1. Garner, J.W., ‘Some Questions of International Law in the European War. War Zones and Submarine Warfare’, 9 AJIL (1915) p. 596CrossRefGoogle Scholar.

2. Zemanek, K., ‘War Zones’, in Bernhardt, R., ed., Encyclopedia of Public International Law, instalment 4 (1982) at p. 337Google Scholar.

3. See United States Naval War College, 12 International Law Situations (1912) pp. 122–126Google Scholar. The freedom of movement of neutral ships was considerably curtailed and strictly regulated but not in any sense excluded. No attack on sight was envisaged for the violators. The only provision which comes close to the idea of immediate attack is to be found in the ‘Rules to be observed by vessels passing the Tokyo bay, Hakodate, and Otary strategical sea areas’, Art. 9 of which read as follows: ‘vessels passing the area at night in violation of article 7, shall do so at the risk of being fired upon by torpedo boats or patrol boats’. Art. 7 referred to an exceptional situation and stipulated: ‘when necessary, passage of vessels may for a time be prohibited within the area’. The Japanese example was taken over by the United States as soon as they entered the First World War. Several defensive sea areas were proclaimed, the maximum width of which being some 13 n.m. Again minute control over foreign shipping by choking up the access to main ports or strategic localities was the declared goal and its defensive character undisputed; see 12 AJIL (1918) Suppl., pp. 13–22CrossRefGoogle Scholar. For the text of an analogous Executive Order establishing defensive sea areas off both entrances of the Panama canal, see 11 AJIL (1917) Suppl. at p. 168CrossRefGoogle Scholar. The only provision which went beyond the threat of seizure concerned approaching defensive sea areas in darkness and read as follows: ‘vessels discovered near die limits of the areas at night may be fired upon’ ibid. at pp. 17 and 170 respectively. On contiguous zones for defensive purposes, see also United States Naval War College, International Law Situations (1939) p. 59Google Scholar.

4. See United States Naval War College, 12 International Law Situations (1912) p. 128Google Scholar. It should not escape our attention what exactly Wilson, as well as other writers at the beginning of our century, found justifiable on account of its reasonableness. It is more than our impression that legal analysis ever since sounds poorly monotonous, despite the phenomenal changes intervening in the meantime. The context of war keeps revolutionizing, historical experience ceaselessly upsets accepted legal forms and models, and yet authors continue to view the question of war zones and eventually justify modern practices under the singular prism of reasonableness.

5. See Fauchille, P., ‘La guerre sous-marine allemande’ 25 RGDIP (1918) pp. 75–84Google Scholar; Guichard, L., The Naval Blockade 1914–1918 (1930) p. 46 et seq.Google Scholar; Garner, J.W., International Law and the World War, vol. I (1920) pp. 329–383Google Scholar; Turlington, E., Neutrality. Its History, Economics and Law, vol. III (1936) pp. 34–66Google Scholar; Garner, , loc. cit. n. 1, p. 594 et seq.Google Scholar; Perrinjaquet, J., ‘La guerre européenne et les relations commerciales des belligérants et des neutres, l'application des théories de la contrebande de guerre et du blocus’ 22 RGDIP (1915) pp. 127–238Google Scholar; Tucker, R.W., The Law of War and Neutrality at Sea, United States Naval War College, 50 International Law Situations (1955) pp. 296–317Google Scholar; Mallison, W.T., Submarines in General and Limited Wars, United States Naval War College, International Law Series (1966) p. 55 et seqGoogle Scholar. See also Sims, W.S., The Victory at Sea (1920)Google Scholar; Jellicoe, J.R., The Grand Fleet 1914–1916. Its Creation, Development and Work (1919)Google Scholar; Parmelee, M., Blockade and Sea Power (1924)Google Scholar; Laurens, A., Le blocus et la guerre sous-marine (1924)Google Scholar; Kenworthy, J.M. and Young, G., Freedom of the Seas (1928)Google Scholar.

6. In the first days of October 1914 the Strait of Dover was mined at a point off the Belgian coast. The British Admiralty duly notified the limits of what it came to term a danger zone while it emphasized that shipping should not be considered less unsafe beyond these limits. Shortly after the British minefield was announced, the French Ministry for Naval Affairs gave notification of the establishment of a zone dangerous to navigation in the Adriatic off the Dalmatian coast and Russian naval authorities warned of similar measures around the Åland archipelago and at the entrance of the Gulf of Riga. For the proclamations of these zones, see 11 AJIL (1917) Suppl., at pp. 12–13Google Scholar, 34 and 9 AJIL (1915) at p. 463Google Scholar.

7. The British Admiralty proceeded to give a concrete description of the warned-off area by drawing a closing line from the northern point of the Hebrides through the Faeroe Islands to Iceland. It so ordered to compel merchant ships to deviate and sail through the narrow seas of the English Channel. The German response equally provided precise limits for the encirclement of the British Isles, its strategic aim being fairly the converse of the British one, that is to say, keeping the North Sea approaches open while controlling the navigation through the English Channel.

8. It should be emphasized that in the view of the United States Government not only the actual enforcement but even the declaration of contemplated indiscriminate destruction should be held unlawful, or, as it has been pithily expressed, ‘a threat to do an illegal act is, according to municipal law, a separate crime in itself … it rather aggravates the offence by showing premeditation and design’; see 9 AJIL (1915) at p. 674Google Scholar. For die prolonged diplomatic tug of war between Germany and the United States, see Seymour, C., American Diplomacy During the World War (1934) p. 80 et seqGoogle Scholar. See also Seymour, C., American Neutrality 1914–1917 (1935) p. 27 et seqGoogle Scholar. For similar Dutch protests, see the White Books Diplomatieke bescheiden betreffende de vaart in de Noordzee en het Kanaal in verband met den oorlogstoestand (1915) at pp. 5 and 9 and Diplomatieke bescheiden betreffende den verscherpten-duikbootoorlog (1917) at p. 2. See also the Orange Book entitled Recueil de diverses communications du Ministre des affaires étrangères aux États-généraux par rapport à la neutralité des Pays-Bas et au respect du droit des gens (1916) at pp. 87 and 94. On how the Netherlands defended its neutrality in the naval context of the world war, see Vandenbosch, A., The Neutrality of the Netherlands During the World War (1927) pp. 191–226Google Scholar.

9. See editorial comment, 9 AJIL (1915) p. 47 et seqGoogle Scholar.

10. On the question whether enemy and neutral merchantmen had the right to be fitted out with weaponry in order to resist visit and search forcibly, and to resort to what was called aggressive defence, see Higgings, A.P., ‘Armed Merchant Ships’ 8 AJIL (1914) pp. 705–722CrossRefGoogle Scholar; Borchard, E., ‘Armed Merchantmen’ 34 AJIL (1940) pp. 107–112CrossRefGoogle Scholar; Bellot, H.L., ‘The Right of a Belligerent Merchantman to Attack’ 7 Grotius Society Transactions (1921) pp. 43–57Google Scholar; Scott, J.B., ‘The Execution of Captain Fryatt’ 10 AJIL (1916) pp. 865–877CrossRefGoogle Scholar. See also Garner, , op. cit n. 5, pp. 384–416Google Scholar; Anderson, C.P., ‘The Status of Armed Merchantmen’ 11 Proceedings of the American Society of International Law (1917) pp. 19–23CrossRefGoogle Scholar. See also 9 AJIL (1915) Suppl., pp. 222–240CrossRefGoogle Scholar; 10 AJIL (1916) Suppl., pp. 310–341,367–372CrossRefGoogle Scholar.

11. On this anti-submarine stratagem, see Chatterton, , Les bateaux-pièges (Q-ships) contre les sous-marins allemands (1928)Google Scholar; Smith, R.W., ‘The Q-Ships, Cause and Effect’ 79 United States Naval Institute Proceedings (05, 1953) pp. 533–541Google Scholar; Sims, , op. cit. n. 5, pp. 141–167Google Scholar.

12. On the Lusitania, see Bailey, T.A. and Ryan, P.B., The Lusitania Disaster (1975)Google Scholar. See also Perrinjaquet, J.., ‘La guerre commerciale sous-marine. Les torpillages du Lusitania, de L'Arabic, de l'Ancona et du Persia. Les protestations des États-Unis et les concessions de l'Allemagne’ 23 RGDIP (1916) pp. 117 et seq., 394 et seq.Google Scholar, and 24 RGDIP (1917) pp. 137 et seq., 365 et seqGoogle Scholar.

13. On the Order in Council of March 11, 1915, see Garner, J.W., ‘Some Questions of International Law in the European War’ 9 AJIL (1915) p. 818 et seq.CrossRefGoogle Scholar; Malkin, H.W., ‘Blockade in Modern Conditions’ 3 BYIL (1922–1923) p. 87 et seqGoogle Scholar. As from October 1915 the quota system was first operated as a back-up procedure in order to render the economic blockade of the Central Powers even more stringent.

14. The calculation of German military planners concerning the U-boat guerre de course, though it may have sounded simplistic, was patently clear and realistic. Waging an unrestricted submarine warfare could be counted upon to destroy no less than six hundred thousand tons of shipping a month, depriving Great Britain of all its essential supplies and making the final victory a matter of six months; see, for example, the Holtzendorff Memorandum as cited in Corbett, J.S. and Newbolt, H., History of the Great War. Naval Operations, vol. IV (1928) at p. 345Google Scholar.

15. Garner, , loc. cit. n. 1, at p. 623Google Scholar. Both belligerents, in the long exchange of accusations and their diplomatic correspondence with neutral powers, admitted the fresh character of the adopted practices Britain referred to as ‘exceptional measures appropriate to the novel condition under which this war is being waged’ while Germany did not deny mat its policies ‘constitute new forms of maritime war, as has hitherto been the case with the English measures’.

16. The propriety, for instance, of enforcing a blockade all around the British Isles by the sole means of the U-boat flotilla is known to have caused the discord between the Minister of Naval Affairs, von Tirpitz, and Admiral von Pohl. For the inner history of mat dispute, see von Tirpitz, A., Mimoires du Grand-Admiral von Tirpitz (1922) p. 401 et seqGoogle Scholar. On the resulting on-off U-boat campaign, see ibid., p. 431 et seq. After citing some of the contradictory and often inexecutable orders communicated to the submarine crews in the first nine months of 1915, von Tirpitz concludes: ‘voilà quelle était l'impression de la flotte. Ordre, contre-ordre, désordre!’, ibid, at p. 424.

17. It is not without significance that Admiral von Tirpitz figured prominently among the ‘enemies’ the defeated Germany was to hand over to the Allied and Associated Powers pursuant to the peace treaty of Versailles. Besides, the ‘destruction of merchant ships and passenger vessels without warning and without provision for the safety of passengers and crew’ was listed as a war crime far the purpose of the Commission on the responsibility of the authors of the war and the enforcement of penalties. On the composition and the work of the Commission, see Willis, J.F., Prologue to Nuremberg (1982) p. 68 et seqGoogle Scholar. For the American reservations, see Marin, M.A., ‘The Evolution and Present Status of the Laws of War’ 92 Hague Recueil (1957) p. 680 et seqGoogle Scholar. The whole operation to implement the recommendations of the Commission ended in complete failure, but this in no way decreases the significance of the Commission's conclusion that ‘the war was carried on by the Central Empires together with their allies Turkey and Bulgaria, by barbarous and illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity’ (emphasis added).

18. For an extensive narration of the blockade measures enacted by both parties, see Rousseau, C., ‘La non-intervention en Espagne’ 19 RDILC (1938) p. 529 et seqGoogle Scholar.

19. On the international law parameters of the Spanish civil war, see Padelford, N.J., ‘Foreign Shipping During the Spanish Civil War’ 32 AJIL (1938) p. 264 et seq.CrossRefGoogle Scholar; Garner, J.W., ‘Questions of International Law in the Spanish Civil War’ 31 AJIL (1937) p. 66 et seq.CrossRefGoogle Scholar; Jessup, P., ‘The Spanish Rebellion and International Law’ 15 Foreign Affairs (1937) p. 260 et seq.CrossRefGoogle Scholar; Rousseau, , loc.cit. n. 18, pp. 217 et seq., 473 et seq., 700 et seq.Google Scholar; Padelfard, N.J., ‘International Law and the Spanish Civil War’ 31 AJIL (1937) p. 226 et seq.CrossRefGoogle Scholar; Smith, H.A., ‘Some Problems of the Spanish Civil War’ 18 BYIL (1937) p. 17 et seqGoogle Scholar.

20. The Nyon agreement of September 14, 1937, appears in Padelford, N J., International Law and Diplomacy in the Spanish Civil Strife (1939) at p. 603Google Scholar. On the question of piracy raised in mat context, see Lauterpacht, H., ‘Insurrection et piraterie’ 46 RGDIP (1939) p. 513 et seq.Google Scholar; Finch, G.A., ‘Piracy in the Mediterranean’ 31 AJIL (1937) p. 659 et seq.CrossRefGoogle Scholar; Genet, R., ‘The Charge of Piracy in the Spanish Civil War’ 32 AJIL (1938) p. 253 et seq.CrossRefGoogle Scholar; Anonymous, , ‘Piracy by Treaty?’ 19 BYIL (1938) p. 198 et seqGoogle Scholar. For the discussion on the contemplated abolition of the Submarine after die First World War and the abortive Washington Conference of 1921, see Douglas, L.H., ‘The Submarine and the Washington Conference of 1921’ United States Naval War College, 62 InternationalLaw Studies (1980) p.477 et seq.Google Scholar; François, J.P.A., ‘L'avenir du sous-marin’ 30 RGDIP (1923) p. 34 et seq.Google Scholar; Roxburgh, R.F., ‘Submarines at the Washington Conference’ 3 BYIL (1922–1923) p. 150 et seqGoogle Scholar. See also ‘Discussion on the Abolition of Submarines’ 11 Grotius Society Transactions (1925) p. 65 et seqGoogle Scholar.

21. Resolution of October 5, 1937, cited in Padelford, , op. cit n. 20 at p. 629Google Scholar. On February 2, 1938, a meeting of British, French and Italian delegations was convened at the Foreign Office upon the initiative of the British Government and it was decided that the warships composing the International Naval Patrol should be given instructions to attack and if possible destroy within their assigned zones any submerged submarine mat they might detect. The fact that the sink at sight order exclusively concerned warships and more specifically underwater crafts made the occurrence of collateral damage inflicted upon merchant bottoms highly improbable. In any event the Spanish civil war witnessed the creation for the first time of a special exclusion zone enforced only against submarines. It was designed as an operational device bearing no connection whatsoever with economic warfare which was set up within the framework of a treaty and which aspired to be a collective measure against piracy. If one adds to this description the confusing detail that the whole operation was undertaken in the name of ‘non-intervention’ the precise qualification of the campaign becomes even less clear. For critical remarks on the so-called policy of non-intervention, see Scelle, G., ‘La guerre civile espagnole et le droit des gens’ 46 RGDIP (1939) p. 197 et seq.Google Scholar; Rousseau, C., ‘Lanon-interventionenEspagne’ 20 RDILC (1939) p. 114 et seq.Google Scholar; Padelford, N.J., ‘The International Non-intervention Agreement and the Spanish Civil War’ 31 AJIL (1937) p. 578 et seqCrossRefGoogle Scholar.

22. See 18 Official Proceedings — InternationalMilitary Tribunal at pp. 321–322Google Scholar. The British Defence of Merchant Shipping Handbook of 1938 which was invoked during the Nuremberg trials and classified as document Donitz-67 read as follows: ‘as soon as the Master of a merchant ship realizes that a ship or aircraft in sight is an enemy, it is his first and most important duty to report the nature and position of the enemy by wireless telegraphy’ 40 Official Proceedings — International Military Tribunal at p. 87Google Scholar. See also Assmann, K., ‘Why U-Boat Warfare Failed’ 28 Foreign Affairs (1949–1950) p. 659 et seqCrossRefGoogle Scholar.

23. Three years later, the German submarines were prohibited from aiding or rescuing survivors from torpedoed ships. On the so-called Laconia order, see Maurer, M. and Paszek, L.J., ‘Origin of the Laconia Order’ 109 Journal of the Royal United Services Institution (1964) p. 338 et seqCrossRefGoogle Scholar. See also Bekker, C.D., Swastika at Sea. The Struggle and Destruction of the German Navy 1939–1945 (1953) pp. 26–34Google Scholar. For a thorough analysis of British and Allied economic warfare, see Medlicott, W.N., The Economic Blockade, vol. I (1952) and vol. II (1959)Google Scholar. The aggregate of the German instituted operational areas amounted, according to Allied estimates, to 750,000 square nautical miles while the Germans lowered the figure to 600,000 square miles. The dangerous to shipping areas proclaimed by Britain covered about 120,000 square nautical miles. According to other accounts the British Admiralty declared as late as February 15, 1944, a vast additional area which singly amounted to 150,000 square nautical miles; see 18 Official Proceedings — International Military Tribunal at pp. 331, 336–337Google Scholar. By far the largest war zone, however, was that declared by the United States in the Pacific entailing more than thirty million square miles. According to Admiral Nimitz, Commander-in-Chief of the US Pacific fleet, unrestricted submarine warfare was ordered on December 7, 1941, in retaliation for the Japanese attacks on that date on US bases; see the reply to interrogatories put to Admiral Nimitz in the context of the Nuremberg trials and classified as document Dönitz-100, 17 Official Proceedings — International Military Tribunal, pp. 378–381Google Scholar. Apart from the Pacific Ocean war zone, the United States with the executive order of December 11, 1941, proceeded also to establish several ‘naval defensive sea areas’ along their coasts; see United States Naval War College, International Law Documents (1941) at p. 83 et seqGoogle Scholar.

24. See 18 Official Proceedings — International Military Tribunal at p. 328. Another German statement relating to a submarine zone, effected as from June 26, 1942, referred to a ‘zone of operation in which fighting may be expected’, and warned ‘ all ships against navigating in this danger zone’. Elsewhere in the same communiqué the German authorities spoke of the ‘extension of the realm of operations of the German Navy’ without the slightest mention of the law of reprisals; see United States Naval War College, International Law Documents (1941) at pp. 158–159Google Scholar.

25. See 18 Official Proceedings — International Military Tribunal at p. 329.

26. Ibid, at pp. 333–334.

27. Ibid, at p. 336. For an outstanding scholar of the laws of naval warfare such as Robert Tucker, the argument of reprisals by the time of the 1939 war was ‘a plea mat had admittedly taken on a rather perfunctory character and that on occasion was simply omitted altogether’: Tucker, , op. cit. n. 5, at pp. 301–302 and fn. 44Google Scholar. In fact, a few weeks before the Germans established a war zone around the British Isles in late November 1939, the President of the United States had issued a proclamation forbidding American citizens, ships and aircraft to enter a combat area which covered a large area of the Atlantic ocean off the European continent; see proclamation of November 4, 1939, 34 AJIL (1940) Suppl, at p. 58Google Scholar. The prohibited area was extended by the proclamations of April 10, 1940 and of June 11, 1940 while it was further modified by the proclamation of April 10, 1941; see 34 AJIL (1940) SuppL, at pp. 162, 171CrossRefGoogle Scholar and 35 AJIL (1941) SuppL, at p. 178Google Scholar. The German diplomacy thought mat duplicating the US combat zone would make its submarine operational areas more likely to meet the acquiescence of third States. In the view of certain German naval officers like Raeder, no official proclamation of a war zone was even necessary, as the United States had forbidden access to their citizens on their own initiative; see Jouan, R., La marine allemande dans la seconde guerre mondiale d'après les conférences navales du Führer (1949) p. 252 et seqGoogle Scholar. Outside the German camp, many also interpreted the American prohibition as a tacit consent to war zone tactics. Prof. Payson Sibley Wild, for instance, evaluating the legal status of war zones in the mid-1940s had this to say: ‘in modern practice, however, zones have again been proclaimed by belligerents. Some neutrals, including the United States, recognized these danger zones by proclaiming combat areas’ (emphasis added); see United States Naval War College, International Law Documents (1943) at pp. 57–58Google Scholar.

28. In the words of one commentator, ‘a fair scrutiny of the last two World Wars makes clear the steady intensification in the inhumanity of the weapons and methods employed by both the aggressors and the victors. In order to defeat Japanese aggression, we were forced, as Admiral Nimitz has stated, to employ a technique of unrestricted submarine warfare not unlike mat which 25 years ago was the proximate cause of our entry into World War I’; see Stimson, H.L., ‘The Nuremberg Trial: Landmark in Law’ 25 Foreign Affairs (1947) at p. 189CrossRefGoogle Scholar. In fact, the jus ad reprehendere had become such a pandemic feature that virtually no authority challenged its foundation upon an international custom; see Higgins, A.P., ‘Retaliation in Naval Warfare’ 8 BYIL (1927) p. 129 et seqGoogle Scholar. In this sense, estimations like the one which argues that ‘as an institution of the law of armed conflict belligerent reprisals have been in decline for most of this century’ sound rather curious; see Greenwood, C., ‘The Twilight of the Law of Belligerent Reprisals’ 20 NYIL (1989) at p. 69CrossRefGoogle Scholar. See also Bierzanek, R., ‘Reprisals in Armed Conflicts’ 14 Syracuse JIL & Commerce (1988) Special Issue, p. 829 et seqGoogle Scholar.

29. See Cagle, M.W. and Manson, F.A., The Sea War in Korea (1957) pp. 281–373Google Scholar; Field, J.A., History of U.S. Naval Operations. Korea (1962) p. 58 et seqGoogle Scholar. See also Fenrick, W.J., Developments in the Law of Naval Warfare Since World War II: The Potential Emergence of a Law of Naval Warfare for Limited Conflicts, unpublished thesis (1983) p. 63 et seq.Google Scholar; Rees, D., Korea. The Limited War (1964) p. 366 et seq.Google Scholar; Verplaetse, J.G., The Jus in Bello and Military Operations in Korea 1950–1953, 23 ZaöRV (1963) p. 698 et seqGoogle Scholar.

30. See O'Cormell, D.P., ‘International Law and Contemporary Naval Operations’ 44 BYIL (1970) p. 30 et seq.Google Scholar; Fenrick, , op. cit. n. 29, p. 79 et seq.Google Scholar; Cagle, M.W., ‘Task Force 77 in Action off Vietnam’ 98 United States Naval Institute Proceedings (05 1972) p. 74 et seqGoogle Scholar.

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32. See Lapidoth, R., ‘The Reopened Suez Canal in International Law’ 4 Syracuse JIL & Commerce (1976) p. 1 et seq.Google Scholar; Lapidoth, R., ‘The Suez Canal, the Gulf of Suez and the 1979 Treaty of Peace between Egypt and Israel’ in Mélanges Rudolf Bindschedler (1980) p. 617 et seq.Google Scholar; Lapidoth, R., The Red Sea and the Gulf of Aden (1982)Google Scholar; Gross, L., ‘Passage through the Suez Canal of Israel Cargo and Israel Ships’ 51 AJIL (1957) p. 532 et seq.CrossRefGoogle Scholar; Dinitz, S., ‘The Legal Aspects of the Egyptian Blockade of the Suez Canal’ 45 Georgetown LJ (1956–1957) p. 169 et seq.Google Scholar; Brown, T.D., ‘World War Prize Law Applied in a Limited War Situation: Egyptian Restrictions on Neutral Shipping with Israel’ 50 Minnesota LR (1966) p. 849 et seqGoogle Scholar. See also Bloomfield, L.M., Egypt, Israel and the Gulf of Aqaba in International Law (1957)Google Scholar; Gross, L., ‘Passage through the Strait of Tiran and in the Gulf of Aqaba’ 33 Law and Contemporary Problems (1968) p. 125 et seq.CrossRefGoogle Scholar; Zeidan, A.L., ‘The Emergence of the Gulf of Aqaba Problem’ 35 REDI (1979) p. 1 et seq.Google Scholar; Whetten, L.L., ‘Legal Aspects of the Egyptian Blockade of the Gulf of Aqaba’ 45–46 Revue de Droit International de Sciences Diplomatiques et Politiques (1967–1968) p. 339 et seq.Google Scholar; Salans, C.F., ‘Gulf of Aqaba and Strait of Tiran — Troubled Waters’ 94 United States Naval Institute Proceedings (12 1968) p. 54 et seqGoogle Scholar.

33. Among the copious evaluations of the legal, political and military aspects of the Falklands war, see Barston, R.P. and Birnie, P.W., ‘The Falkland Islands/Islas Malvinas Conflict. A Question of Zones’ 7 Marine Policy (1953) p. 14 et seq.CrossRefGoogle Scholar; Bring, O.E., ‘The Falkland Crisis and International Law’ 51 Nordisk Tidsskrift for International Ret (1982) p. 129 et seq.Google Scholar; Cable, J., ‘The Falklands Conflict’ 108 United States Naval Institute Proceedings (11 1982) p. 70 et seq.Google Scholar; Coote, J.O., ‘Send Her Victorious …’, 109 United States Naval Institute Proceedings (01 1983) p. 34 et seq.Google Scholar; Dillon, G.M., The Falklands, Politics and War (1989)Google Scholar; Fenrick, W.J., ‘Legal Aspects of the Falklands Naval Conflict’ 24 Revue de Droit PinalMilitaire etde Droit de la Guerre (1985) p. 241 et seq.Google Scholar; Freedman, L., ‘The War of the Falkland Islands, 1982’ 61 Foreign Affairs (1982) p. 196 et seq.CrossRefGoogle Scholar; Friedman, N., ‘The Falklands War: Lessons Learned and Misleamed’, 26 Orbis (1982–1983) p. 907 et seq.Google Scholar; Gavshon, A. and Rice, D., The Sinking of the Belgrano (1984)Google Scholar; Green, L.C., ‘The Falklands, theLawandmeWar’ 38 Yearbook of World Affairs (1984) p.89 et seq.Google Scholar; Guilmartin, J.F., ‘The South Atlantic War: Lessons and Analytical Guideposts — A Military Historian's Perspective’ in Brown, J. and Snyder, W.P., eds., The Regionalization of Warfare (1985) p. 55 et seq.Google Scholar; Hastings, M. and Jenkins, S., The Battle for the Falklands (1983)Google Scholar; Levie, H.S., ‘The Falklands Crisis and the Laws of War’ in Coll, A.R. and Arend, A.C., eds., The Falklands War. Lessons for Strategy, Diplomacy and International Law (1985) p. 64 et seq.Google Scholar; Nott, J., ‘The Falklands Campaign, 109 United States Naval Institute Proceedings (05 1983) p. 118 et seq.Google Scholar; Ponting, C., The Right to Know — The Inside Story of the Belgrano Affair (1985)Google Scholar; Scheina, R.L., ‘The Malvinas Campaign’ 109 United States Naval Institute Proceedings (05 1983) p. 98 et seq.Google Scholar; The Sunday Times Insight Team, TheFalkkmds War The Full Story (1982); Turner, S., ‘The Unobvious Lessons of the Falkland War’ 109 United States Naval Institute Proceedings (04 1983) p. 5O et seq.Google Scholar; Several contributors, ‘Falklands Postscripts’ 109 United States Naval Institute Proceedings (06 1983) p. 99 et seq.Google Scholar; Zakhrim, D.S., ”The South Atlantic Conflict: Strategic, Military, and Technological Lessons’ in Coll and Arend, supra, p. 159 et seqGoogle Scholar.

34. See 53 BYIL (1982) at p. 539Google Scholar.

35. Ibid, at pp. 540–541.

36. Ibid, at p. 542.

37. Ibid, at p. 549. By the end of May, Admiral Woodward had asked that his forces be allowed to operate inside the 12-mile limit, but permission was not granted; see Gavshon, and Rice, , op. cit n. 33 at p. 130Google Scholar.

38. Argentina also operated three versions of war zones. Less attention is usually paid to its declarations, however, because they are commonly seen as a tit-for-tat reaction to the British declarations rather than as an autonomous strategy. Moreover, the Argentines had cautiously formulated their announcements so as to make clear that only British vessels and aircraft were concerned. On April 8, the military Government of Buenos Aires identified an area extending 200 n.m. off the mainland and around the Falklands and South Georgia Islands as a theatre of operations, and warned that military action could be taken therein if necessary far self-defence. This can hardly be considered as a war zone since no vessel or aircraft was attempted to be excluded. One day after the British TEZ was declared, the Argentines claimed the waters within the circumference of the exclusion zone to be Argentine territorial waters, and warned all British aircraft not to intrude into the zone otherwise they would be attacked. Finally, following the British policy statement of May 7, Argentina declared on May 11 that the South Atlantic, without further precision, was to be a war zone and gave notice to all British vessels to keep clear.

39. See 53 BYIL (1982) at p.557Google Scholar. On October 29, 1986, a Falkland Islands interim conservation and management zone (FICZ) was proclaimed — coming into force in February 1987 — which ran partly coterminous with the 150 n.m. MPZ. For its novel characteristics and the problems related to it, see Symmons, C.R., ‘The Maritime Zones Around the Falkland Islands’ 37 ICLQ (1988) p. 283 et seqCrossRefGoogle Scholar. See also Churchill, R.R., ‘The Falkland Fishing Zone — Legal Aspects’ 12 Marine Policy (1988) p. 343 et seqCrossRefGoogle Scholar.

40. On the last moments of the Belgrano, see Gavshon, and Rice, , op. cit n. 33, p. 97 et seq.Google Scholar; See also The Sunday Times Insight Team, op. cit. n. 33, p. 156 et seq.; Middlebrook, M., The Fight for the Mahinas — The Argentine Forces in the Falklands War (1989) p. 104 et seqGoogle Scholar.

41. According to the initial official reports, the decision to launch a torpedo was clearly one taken by the submarine commander. This allegation later proved incorrect, Mrs. Thatcher having publicly stated that ‘the task force clearly is and was under political control’. The Conqueror returned to its base on July 3, after a round trip of some 25,000 miles flying the Jolly Roger, a disquieting reference to past eras.

42. The Belgrano, escorted by Hipolito Bouchard and Piedra Buena, would launch an attack from the south, while the aircraft carrier Veinticinco de Mayo, escorted by two destroyers, Hercules and Santisima Trinidad, would join from the north. Moreover, a submarine was thought to lurk in the area where HMS Hermes and HMS Invincible were to be attacked. It is worm noticing that, according to Argentine accounts, the Veinticinco de Mayo on May 2 scheduled an attack, but ‘the lack of wind combined with the inability of the 25 de Mayo to close on the enemy frustrated the desired attack’; see Scheina, , loc. cit. n. 33, at pp. 105–106Google Scholar. Yet, recent research work insists that ‘the idea of a pincer movement, implying an aggressive role for the Belgrano, is not supported by the evidence which is now available’; see Dillon, , op. cit. n. 33, at p. 208Google Scholar.

43. See HC Majority Report at para. 6.16 as quoted in Dillon, , op. cit. n. 33, at p. 224Google Scholar.

44. Ponting, , op. cit. n. 33, at p. 75Google Scholar.

45. Fenrick, , loc. cit. n. 33 at p. 258Google Scholar.

46. Best, G., ‘The Belgrano Sinking’ letter to The Times (11 10 1982) p. 11Google Scholar.

47. See HC Majority Report at para. 6.20.

48. Hastings, and Jenkins, , op. cit. n. 33, at p. 116Google Scholar. Rear Admiral Woodward's view was that ‘exclusion zones may appear politically attractive to those who draw them as nice clean lines on maps and charts. They would seem to be the ideal tool in applying minimum military farce to achieve a political aim. You can shoot inside, but not outside — it is all crystal clear. The problem is that it is not actually like that. In practical terms the boundary is not clear cut — it is very fuzzy and operating a 50-mile across task group, within a similar distance of that edge is a military nightmare’; cited in Dillon, , op. cit. n. 33, at p. 223Google Scholar. On the problem of drafting rules of engagement in general, see Shearer, I., ‘Rules of Engagement and the Implementation of the Law of Naval Warfare’ 14 Syracuse JIL & Commerce (1988) Special Issue, p. 767 et seq.Google Scholar; Roach, J. A., ‘Rules of Engagement’ 14 Syracuse JIL & Commerce (1988) Special Issue, p. 865 et seqGoogle Scholar.

49. I.A. Shearer, Comments on the occasion of a symposium held at the University of Kiel on December 1–4, 1982; see Delbrück, J., ed., ‘Das neue Seerecht. Internationale und nationale Perspektiven’ Veröffentlichungen des instituts für internationales Reckt an der Universität Kiel, no. 89 (1984) at p. 204Google Scholar.

50. Freedman, , loc. cit. n. 33, at p. 203Google Scholar.

51. The text of the proposal appears in Gavshon, and Rice, , op. cit. n. 33, appendix 2 at p. 186Google Scholar.

52. Ibid., appendix 3 at p. 189.

53. 54 BYIL (1983) at p. 546Google Scholar. See also 53 BYIL (1982) at p. 558Google Scholar.

54. 55 BYIL (1984) at p. 593Google Scholar. Fiancis Pym, the Foreign Secretary, though not dissenting from the decision to sanction the attack, recommended that Argentina should be warned that the Veinticinco de Mayo was not to move outside a limit of twelve miles from the coast of the mainland; see Dillon, , op. cit. a 33, at p. 225Google Scholar and Ponting, , op. cit. n. 33, at p. 82Google Scholar.

55. The Belgrano incident brought the British Government not far from being accused of perfidy, or even deliberate murder, see Gavshon, and Rice, , op. cit. n. 33, at p. 111Google Scholar: ‘the generalized warning to Argentine ships coupled with the creation of a limited TEZ was at best loaded with ambiguity, at worst a deliberate trap for the unwary’. Hastings and Jenkins wonder: ‘what was the purpose of declaring geographical limits within which enemy ships would be liable to attack, only to act outside them, even if Britain was within the letter of her legal rights? … But it is difficult to believe that, if the British had delayed an attack until they had given warning of an extension of the TEZ, the task force would have been put at serious risk’; Hastings, and Jenkins, , op. cit. n. 33, at p. 150Google Scholar. See also the writings of a particularly militant (in this respect) Labour MP, T. DalyellThatcher's Torpedo — The Sinking of the Belgrano (1983)Google Scholar; Dalyell, T., Thatcher: Patterns of Deceit (1986)Google Scholar. See also New Statesman (August 24, 1984) p. 7 et seq. and (August 31, 1984) p. 8. et seq. Far a catalogue of inconsistencies and contradictions in British statements, see Gavshon, and Rice, , op. cit. n. 33, appendix 7, p. 211 et seqGoogle Scholar. For another list of embarassing revelations that the British Government was forced reluctantly to accept by March 1984, see Ponting, , op. cit. n. 33, at p. 124Google Scholar. It may well be long before the exact conditions and calculations underlying the go-ahead order to the submarine commander become firmly established, but the point remains that the fatal torpedoes were launched only three hours before a scheduled press conference at Lima was to announce peace in the South Atlantic, along the lines of the Peruvian peace plan; see Kinney, D., ‘Anglo-Argentine Diplomacy and the Falklands Crisis’ in Coll, and Arend, , eds., op. cit. n. 33, at p. 101Google Scholar. Some have gone further to suggest that the unflagging British commitment to a military solution, once the fleet had reached the islands, dictated such an onerous blow as to compel the Argentines to fight. To enter this discussion goes well beyond the purview of our analysis. The point, however, is that after the Belgrano and the Sheffield incidents, the comic opera that many had predicted was over, and the margins for a negotiated settlement were virtually eliminated. On the Sheffieldincident, see Gavshon, and Rice, , op. cit. a 33, p. 121 et seqGoogle Scholar. See also The Sunday Times Insight Team, op. cit. n. 33, p. 163 et seq.; Middlebrook, M., Operation Corporate – the Falklands War, 1982 (1985) p. 153 et seq.Google Scholar; Preston, A., Sea Combat off the Falklands (1982) p. 61 et seqGoogle Scholar.

56. For some arguments along these lines, ‘it was perfectly reasonable for the authorities ordering the sinking to act on the presumption that the ship was or was intended to become engaged in the operations, and was in any case, as a naval cruiser, a legitimate object of attack’; see Green, , op. cit. n. 33, at p. 116Google Scholar. See also Burns, J., The Land that Lost its Heroes (1987) pp. 227–230Google Scholar.

57. See, far example, the statement of the UK representative, A. Parsons, in the course of the UN Security Council debate of May 22, 1982, in 53 BYIL (1982) at pp. 551–553Google Scholar.

58. See the revealing wording of the policy statement of April 23: ‘any approach … which could amount to a threat to interfere’. Gavshon and Rice have commented on this potential threat proviso as follows: ‘if this possible threat really meant something merely imaginable sooner or later, then Conqueror could have opened fire the previous day, when the cruiser and her escorts were refuelling’; Gavshon, and Rice, , op. cit. n. 33, at pp. 143–144Google Scholar.

59. See 53 BYIL (1982) at p. 550Google Scholar.

60. See 55 BYIL (1984) at p. 590Google Scholar. The inside story of this reply to Denzil Davies' letter, as well as revealing moments of the political mechanics of the Belgrano cover-up, are given in Ponting, , op. cit. n. 33, p. 125 et seqGoogle Scholar.

61. See Barston, and Birnie, , loc. cit. n. 33, at p. 20Google Scholar.

62. As one commentator noted apropos of the TEZ, ‘on se trouve niplus ni moins en présence de la création d'une vraie presumptio juris et de jure, d'une présomption irréfragable qui sans doute dépasse toute limite raisonnable du concept du défense … comme on le sait, dans le cas aussi bien des représailles que la légitime défense nous nous trouvons en présence d'actes en eux-mêmes contraires au droit des gens. Avoir done recours à ces deux concepts pour y trouver une justification exceptionnelle du procedé des zones de guerre ne fait que confirmer l'illégalité de celui-ci’: Halkiopoulos, T., ‘L'interférence des règles du nouveau droit de la mer et du droit de la guerre’ in Dupuy, R.-J. and Vignes, D., eds., Traité du nouveau droit de la mer (1985) at pp. 1101–1102Google Scholar.

63. According to the official British account, stated by the Defence Minister Nott, ‘the General Belgrano and a group of British warships could have been within striking distance of each other in a matter of some five to six hours, converging from a distance of some 200 nautical miles’. Cf., Middlebrook, , op. cit. n. 40, at p. 105Google Scholar.

64. See 53 BYIL (1982) at p. 558Google Scholar. It has now been established that the Argentine cruiser had been steaming on a steady westerly course, not zig-zagging, for at least six hours before it was attacked, and that its position and reversed course had been communicated to Admiral Northwood twice on May 3; see Ponting, , op. cit. a 33, at p. 87Google Scholar.

65. Freedman, , loc. cit. n. 33, at p.209Google Scholar. In the view of another scholar, the attack on the Belgrano failed to meet the requirements of last resort and proportionality; see Bluth, C., ‘The British Resort to Force in the Falklands/Malvinas Conflict 1982: International Law and Just War Theory’ 24 Journal of Peace Research (1987) p. 15 et seqCrossRefGoogle Scholar.

66. Among the prolific literature on the legal, political and military parameters of the maritime war in the Gulf, see Biller, D.P., ‘Policing the Persian Gulf: Protecting United States Interests and Freedom of Navigation Through Military Force’ 11 Loyola of Los Angeles ICLJ (1989) p. 171 et seq.Google Scholar; Boczek, B.A., ‘Law of Warfare at Sea and Neutrality: Lessons from the Gulf War’ 20 Ocean Development and IL (1989) p. 239 et seq.CrossRefGoogle Scholar; Conference Report, ‘The Persian/Arabian Gulf Tanker War: International Law or International Chaos’ 19 Ocean Development and IL (1988) p. 299 et seq.CrossRefGoogle Scholar; Danziger, R., ‘The Persian Gulf Tanker War’ 111 United States Naval Institute Proceedings (1985) p. 160 et seq.Google Scholar; David, E., ‘La guerre du Golfe et le droit intemational’ 20 RBDI (1987) p. 153 et seq.Google Scholar; Davidson, S., ‘United States Protection of Reflagged Kuwaiti Vessels in the Gulf War: The Legal Implications’ 4 Int. J. Estuarine and Coastal Law (1989) p. 173 et seq.CrossRefGoogle Scholar; Hiro, D., The Longest War: The Iran-Iraq Military Conflict (1989)Google Scholar; Jenkins, M., ‘Air Attacks on Neutral Shipping in the Persian Gulf, The Legality of the Iraqi Exclusion Zone and Iranian Reprisals’ 8 Boston College ICLR (1985) p. 517 et seq.Google Scholar; Karsh, E., ‘Military Lessons of the Iran-Iraq War’ 33 Orbis (1989) p. 209 et seq.Google Scholar; Leckow, R., ‘The Iran-Iraq Conflict in the Gulf: The Law of War Zones’ 37 ICLQ (1988) p. 629 et seq.CrossRefGoogle Scholar; Mehr, F., ‘Neutrality in the Gulf War’ 20 Ocean Development and IL (1989) p. 105 et seq.CrossRefGoogle Scholar; Levran, A., ‘The Iran-Iraq War and the American Naval Intervention’ JCSS, Middle East Military Balance (1987–1988) p. 63 et seq.Google Scholar; Levran, A., ‘Strategic Air Attacks in the Iran-Iraq War: the Gulf Campaign’ JCSS, Middle East Military Balance (1987–88) p. 230 et seq.Google Scholar; Nordquist, M.H. and Wachenfeld, M.G., ‘Legal Aspects of Reflagging Kuwaiti Tankers and Laying of Mines in the Persian Gulf’, 31 GYIL (1988) p. 138 et seq.Google Scholar; O'Rourke, R., ‘The Tanker War’ 114 United States Naval Institute Proceedings (1988) p. 30 et seq.Google Scholar; Peace, D.L., ‘Major Maritime Events in the Persian Gulf War’ 82 Proceedings of the American Society of International Law (1988) p. 146 et seq.Google Scholar; Ronzitri, N., ‘La guerre du Golfe, le déninage et la circulation des navires’ 33 AFDI (1987) p. 647 et seq.CrossRefGoogle Scholar; Russo, F.V., ‘Neutrality at Sea in Transition: State Practice in the Gulf War as Emerging International Customary Law’ 19 Ocean Development and IL (1988) p. 381 et seq.CrossRefGoogle Scholar; Schiller, T.S., ‘The Gulf War and Shipping: Recent Developments’ in Parritt, B.A.H., ed., Violence at Sea (1986) p. 261 et seq.Google Scholar; Tavernier, P., ‘La guerre du Golfe: quelques aspects de l'application du droit des conflits armés et du droit humanitaire’ 30 AFDI (1984) p. 43 et seq.CrossRefGoogle Scholar; Wolfram, R., ‘Reflagging and Escort Operation in the Persian Gulf: An International Law Perspective’ 29 Virginia JIL (1989) p. 387 et seqGoogle Scholar.

67. Some highlights of the Gulf war at this initial stage were as follows. In September 1980, Iran declared all its coastal waters to be zones of war and prohibited all freighters from unloading cargo at Iraqi ports. In the words of the NOTAM no. 17/59 of September 22, ‘the Iranian government does not give any authorization to the vessels intending to proceed to Iraqi ports’ while all other ‘vessels after having passed Hormuz strait will change the route to pass 12 miles south of Abu Musa island, 12 miles south of Sirri island, south of Cable Bank light and 12 miles south west of Farsi island’. At any rate, Iran did not threaten to attack non-complying ships and, in fact, refrained up to May 1984 from attacking merchant ships in the Gulf. It was rather a blockade of the short Iraqi coast, though never declared eo nomine, coupled with a defensive sea area roughly coterminous with its territorial sea limits. Another four Notices to Mariners that followed, no. 18/59 of October 1, no. 20/59 of November 4, no. 22/59 of November 16 and no. 23/59 of January 27, 1981, intended to regulate the clearance procedure to be followed by all in/outbound vessels. The Iraqi response took up the Iranian challenge but sounded more like an exclusion zone. On October 7, 1980, Iraq qualified all the Iranian coastline north of 29° 03' as a prohibited zone and made haste to announce its intention to attack all ships therein and all tankers docking at Kharg island. On 12 August, 1982, Iraq formally proclaimed an exclusion zone of 50 n.m. around Kharg island and openly stated that all vessels would be liable to attack. A few days later, on August 19, the Turkish freighter Mar Transporter was hit and sunk some 240 km. away from the exclusion zone; see 28 Keesing's Contemporary Archives (1982) at p. 31850Google Scholar. Overall, the anti-ship campaign during the first three years had not received worrying dimensions. The first official protest filed with the United Nations for the attacks did not come until December 1983; see the Iranian letter to the UN Secretary General, S/16222 of December 16, 1983.

68. Events to be recalled in the second period are as follows. The opening act of the so-called tanker war came in October 1983. At that time, five French Super-Etendard bombers, equipped with the redoubtable Exocet missiles, were delivered on loan (!) to the Iraqi air farce; see 29 Keesing's Contemporary Archives (1983) at p. 32595Google Scholar. On February 27, 1984, Iraq finally claimed that ‘the siege of Kharg island had begun’ ban threatened retaliation; see S/16585, May 25, 1984. The Iraqi Government justified its campaign by invoking the law of reprisals and the right of self-defence; see S/16590, May 27, 1984. The Iranians, facing the extraordinary seriousness of the threat (oil exports dropped by 50% in the first weeks of May) decided to respond by viciously ‘harmonizing’ their tactics to those of their enemy. In the absence of vessels trading with Iraq, Iran found it pertinent to direct its attacks against Kuwaiti and Saudi vessels. The following year the devastating attacks on the Kharg oil terminal multiplied. Iraq declared 1985 as ‘the year of the pilot’. The Iraqi air force claimed to have flown twenty thousand missions, staging 77 destructive raids against Kharg and scoring 124 hits on naval targets; see RUSI & Brassey's Defence Yearbook (1987) at p. 318.

69. See S/16590, May 27, 1984: ‘Iraqhasdeclaredastrictlydelimitedzoneintheextremenortheastem part of the Arabian Gulf a military operations zone and has warned against dispatching vessels to it … Iran, on the other hand, has decided to strike at random against vessels … far from the theatre of operations’. Note also the words of an analyst: ‘despite the big headlines and worldwide condemnation, Iran's attacks have not only been far less frequent than Iraq's but have caused much less damage and fewer casualties. In stark contrast to the results of the Iraqi attacks, no major ship has been sunk by the Iranians and very few crewmen have been killed in their raids’; see Danziger, , loc. cit. n. 66, at p. 164Google Scholar.

70. A striking expansion of the naval operations marked the culmination of the Gulf War. On August 12, 1986, the first Iraqi air attack on the Iranian oil terminal at Sirri island and on tankers lying off Sirri added the final dimension to the maritime conflict; see 32 Keesing's Contemporary Archives (1986) at p. 34592Google Scholar. Similar attacks at Larak island, another makeshift oil terminal lying at a distance exceeding 800 km. from the nearest Iraqi air base, began on November 25, 1986; see 33 Keesing's Record of World Events (1987) at p. 35160Google Scholar. An air raid on Sirri island required a flight of 1, 300 km., while a similar attack on Larak involved a return trip of over 2,500 miles; see Eshel, D., ‘The Iraqi Air Force — How Effective Is It?’ 15 Military Technology (02 1991) p. 72 et seqGoogle Scholar. In September 1987, a total of 16 vessels were damaged in just one week. The long-promised Iranian reprisals took the form of considerable minelaying in busy sea lanes along the central sector of the Gulf. The fragile US-Iranian relations deteriorated sharply as Iran tested the newly acquired Chinese Silkworm missiles against Kuwait. By October, the American naval forces deployed in the Gulf increasingly entered into action against Iran. December saw most attacks since 1984. On December 14, 1987, an Iraqi Exocet caused the death of 21 seamen aboard the Norwegian tanker Susangerd. On May 14, 1988, Iraqi planes scoredfive tanker hits killing 20 seamen, among the attacked vessels the world's largest supertanker, the Seawise Giant. It has recently been argued that Iraq by hitting ships along the Iranian coast could validly claim that it was only enforcing the Iranian war zone (!). This singular proposition was promptly noticed by academics like Dinstein who commented: ‘if Iraq treats its exclusion zone as a war zone, that is one thing, but far a belligerent to treat an enemy's exclusion zone as its own makes a mockery of the laws or armed conflict’ 82 Proceedings of the American Society of International Law (1988) at p. 608Google Scholar.

71. See S/19989, July 6, 1988. See also 34 Keesing's Record of World Events (1988) at p. 36169Google Scholar.

72. See International Herald Tribune (July 7, 1988) at p, 2.

73. See 34 Keesing's Record of World Events (1988) at p. 36170Google Scholar.

74. The repent is reproduced in 28 ILM (1989) p. 900 et seqGoogle Scholar. Selected excerpts also appear in 83 AJIL (1989) pp. 332–335CrossRefGoogle Scholar. It has now been established that thejetliner was ascending, rather than descending, after permission was given to climb from twelve to fourteen thousand feet, that its transponder had been sending out signals on the appropriate IFF frequency, and that it was flying well within the provided commercial ‘Amber 59’ air corridor. But even if one admits, arguendo gratia, that there was an irregularity concerning the Airbus flight path, or its signals, there was a significant clause in the US standing orders sufficient in itself to refute any claim which might draw thereupon and which reads as follows: ‘US Navy ship captains realize that not all commercial aircraft transmit their proper IFF (identification Friend or Foe) code or remain in the proper airways and will take this into account when they encounter such an aircraft’ (emphasis added); see the US Navy procedure for communicating with unidentified aircraft, 28 ILM (1989) at p. 943Google Scholar. For some of the first reflections published after the exact conditions of the tragic incident had been elucidated, see Lowenfeld, A.F., ‘Looking Back and Looking Ahead’ 83 AJIL (1989) pp. 336–341CrossRefGoogle Scholar. See also Entessar, N., ‘Superpowers and Persian Gulf Security: The banian Perspective’ 10 Third World Q. (1988) p. 1447 et seqCrossRefGoogle Scholar.

75. The United States has long been thinking about offering an ex gratia payment to the families of the victims while emphatically denying legal liability for the incident; see Leich, M.N., ‘Denial of Liability: Ex Gratia Compensation on a Humanitarian Basis’ 83 AJIL (1989) p. 319 et seq.CrossRefGoogle Scholar; Maier, H.G., ‘Ex Gratia Payments and the Iranian Airline Tragedy’ 83 AJIL (1989) p. 325 et seq.CrossRefGoogle Scholar; Ewing, D.A., ‘The Downing of Iran Air Flight 655: Highlighting the Need for International Adjudication of Damages’ 13 Suffolk Transnational LJ (1990) p. 656 et seqGoogle Scholar.

76. On January 20, 1984, a Notice to Airmen (NOTAM) was published by the ICAO upon a request of the United States which ‘requested aircraft at less than two thousand feet altitude and not cleared for approach to or departure from a regional airport to avoid approaching closer than five nautical miles to United States naval forces’. Aircraft approaching in defiance of the notice and ‘whose intentions were unclear to United States naval forces, might be held at risk by their defensive measures’ (emphasis added); see 78 AJIL (1984) at p. 884CrossRefGoogle Scholar. A similar Notice to Mariners was issued on January 21, 1984; see ibid, at p. 885. See also 28 ILM (1989) at pp. 910, 942Google Scholar. A week earlier, the US Department of State, in a Note addressed to the Iranian Government, had announced that ‘the United States has been compelled to adopt prudent defensive measures governing the approach of unidentified ships and aircraft in close proximity to United States military forces’; see 78 AJIL (1984) at p. 884CrossRefGoogle Scholar.

77. It appears fairly safe to argue that, in the mind of captain William Rogers, the recollection of another incident must have weighed heavily. In May 1987, the USS Stark was hit by an Exocet missile fired by an Iraqi aircraft off Bahrain, the attack resulting in the death of 37 crewmen; for a succinct narration of the conditions of the incident, see Vlahos, M., ‘The Stark Report’ 114 United States Naval Institute Proceedings (1988) p. 64 et seqGoogle Scholar. The passivity of the Stark's skipper and his failure to anticipate the incoming threat ‘hurried’ him and his first officer into retirement; see 33 Keesing's Record of World Events (1987) at p. 35597Google Scholar.

78. See International Herald Tribune (July 4, 1988) at p. 1.

79. See 34 Keesing's Record of World Events (1988) at p. 36169Google Scholar.

80. See Jane's Weapon Systems (1988–89) at pp. 478–479. For a description of the system, see International Herald Tribune (July 8, 1988) at p. 3. See also Santos, A., ‘Le systéme d'armes Aegis ou les limites du systéme d'initiative stratégique’ 11 Cahiers d'Études Stratigiques (1987) p. 93 et seqGoogle Scholar. And while the crew was probably misreading computerized data in the vessel's dark combat information center, the incoming ‘threat’ must have been visible to men using binoculars from the warship's bridge; see 34 Keesing's Record of World Events (1988) at p. 36169Google Scholar.

81. The US Secretary of Defence, Weinberger, reporting to the Congress in 1987 on the Persian Gulf security arrangements, had stated that as ‘international law recognizes an inherent right to employ proportional force as necessary in self-defence, this right will be exercised in the face of attack or hostile intent indicating imminent attack’; see 26 ILM (1987) at p. 1437Google Scholar. The hostile intent was defined as ‘the threat of imminent use of force against friendly forces, for instance, any aircraft or surface ship that maneuvers into a position where it could fire a missile, drop a bomb, or use gunfire on a ship is demonstrating evidence of hostile intent. Also, a radar lock-on to a ship from any weapons system fire control radar that can guide missiles or gunfire is demonstrating hostile intent This includes lock-on by land-based missile systems that use radar’; ibid, at p. 1454. The report concluded that ‘the RoE provide authority to the on-scene commander to declare a threat hostile and engage that threat (i.e., a force demonstrating hostile intent or committing a hostile act) with all forces available to him in self-defence of his unit and US-flagged vessels. Only that force which is required to neutralize the threat or prevent a hostile act is authorized’.

82. The destroyer USS Chandler and the cruiser USS Richmond K.Turner narrowly escaped Iraqi missile attacks in February 1988; see 34 Keesing's Record of World Events (1988) at p. 36168Google Scholar.

83. To our knowledge, no other country participating in the international Gulf armada found it necessary to declare analogous zones around their naval units. The Italian Government, however, instructed vessels to act progressively in response not only to hostile acts (atti ostili), but also to hostile intents (comportamenti ostili); see Ronzitti, N., loc. cit. n 66, at p. 655Google Scholar. Similarly, the British Government changed the RoE for its Armilla Patrol in July 1987, ‘to allow the Royal Navy to react much more positively to a threat, and even to take preemptive action. The Armilla ships would now apparently be allowed in certain circumstances to fire the first shot if Iraqi or Iranian missiles were about to leave their launchers’; see Kinley, G., ‘Legal Principles Governing the Armilla Patrol’ Lloyd's List (07 31, 1987) at p. 2Google Scholar.

84. More precisely, the dispute now pending before the ICJ concerns the interpretation and application of the 1944 Convention on International Civil Aviation and of the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation; see 28 ILM (1989) at p. 842Google Scholar. For the submitted Iranian contentions, see ibid, at p. 845. See also Aerial Incident of 3 July 1988 (Islamic Republic oflranv. United States of America), Order of 13 December 1989, ICJ Rep. (1989) p. 132.

85. It is not the purport of this study to address the question of die exact scope of application of part IV of the First Additional Protocol according to Art. 49 paras. 3, 4. On the doctrinal discussion whether the new rules for the protection of the civilian population are applicable to naval warfare, see Rauch, E., ‘The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed Conflicts and the United Nations Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare’ Veröffentlichungen des instituts für internationales recht an der universität Kiel, no. 90 (1984)Google Scholar. See also Rauch, E., ‘Le droit contemporain de la guerre maritime. Quelques problemes crées par le Protocole Additionnel I de 1977’ 89 RGDIP (1985) p. 958 et seqGoogle Scholar. Contra see Meyrowitz, M., ‘Le Protocole Additionnel I aux conventions de Genève de 1949 et le droit de la guerre maritime’ 89 RGDIP (1985) p. 243 et seqGoogle Scholar.

86. See Scott, L.B., ‘The Declaration of London of February 26, 1909’ 8 AJIL (1914) p. 274 et seq.CrossRefGoogle Scholar; Root, E., ‘The Real Significance of the Declaration of London’ 6 AJIL (1912) p. 583 et seqCrossRefGoogle Scholar.

87. The Manual of naval warfare is reprinted in Ronzirti, N., ed., The Law of Naval Warfare (1988) p. 277 et seqGoogle Scholar. It is also to be found in Scott, J.B., ed., Resolutions of the Institute of International Law (1916) p. 174 et seqGoogle Scholar.

88. During the deliberations among the members of the Institut, it became evidently clear mat the intention was to confine the term zone des opérations as denoting nothing more man the area of active hostilities, or of the current confrontation of belligerent fleets. Fauchille, for example, acting as Rapporteur, responded to a proposed amendment by saying that, ‘les mots employes par la Commission dans l'article 53 zone correspondant … actuelle indiquent nettement qu'il s'agit uniquement des lieux où se déroulent en fait les opérations’ (italics in the original); see 26 Annuaire (1913) at p. 560. In fact, what was originally Art. 67 referred merely to the ‘sphére d'action de ses operations militaires’, and was amended on the initiative of Strisower who proposed the wards ‘action actuelle’ in order to limit the ‘droit de police’ under consideration; see ibid, at pp. 281–283. Verri, in what is probably the most recent commentary on the 1913 Manual, wrongly ascribes to its drafters the intention to regulate ‘barred’ or ‘exclusion’ zones of the First World War type; see Verri, P., ‘Commentary on the 1913 Oxford Manual’ in Ronzitti, N., ed., The Law of Naval Warfare (1988) at pp. 331, 339Google Scholar.

89. Note, however, that Art. 32 and Art. 21 of Appendix I refer to condemnation in cases of resistance to the exercise of the right of search or of attempted blockade running.

90. Cf., the provisions on mining in a blockade operation, Appendix I, Art. 22.

91. Art. 50 is identical to Art. 50 of the Oxford Manual of 1913.

92. A blockade zone was defined in Art. l(e) of the Draft Convention as ‘that area of water extending fifty miles from a blockaded coast, proclaimed by a belligerent to be such a zone’.

93. See the commentary on Art. 69 in 33 AJIL (1939) Suppl., p. 692 et seqGoogle Scholar.

94. Ibid, at p. 705.

95. See Nwogugu, E.I., ‘Commentary on the 1936 London Procès Verbal’ in Ronzitti, , ed., op. cit. n. 88, p. 353 et seqGoogle Scholar.

96. The Court, having exonerated Admiral Donitz from the war crimes charges for having launched an unrestricted submarine campaign against British armed merchant vessels, went on to declare: ‘however, the proclamation of operational zones and the sinking of neutral merchant vessels which enter those zones presents a different question … the order of Dönitz to sink neutral ships without warning when found within these zones was, in the opinion of the Tribunal, therefore a violation of the Protocol … the argument of the Defense is that the security of the submarine is, as the first rule of the sea, paramount to rescue and that the development of aircraft made rescue impossible. This may be so, but the Protocol is explicit. If the commander cannot rescue, then under its terms he cannot sink a merchant vessel and should allow it to pass unharmed before his periscope’; see 22 Official Proceedings — International Military Tribunal at pp. 558–559.

97. A principle ofanalogous content was endorsed by the 1928 Havana Convention on Maritime Neutrality in Art. 1(2). See Nelson, L.D.M., ‘Commentary on the 1928 Havana Convention’ in Ronzitti, , op. cit. a 95, p. 779 et seqGoogle Scholar. The German doctrine of kriegsraison was refuted in several post war trials; see Dunbar, N.C.H., ‘Military Necessity in War Crimes Trials’ 29 BYIL (1952) p. 442 et seq.Google Scholar; Röling, B.V.A., ‘The Law of War and the National Jurisdiction Since 1945’ 100 Hague Recueil (1960) p. 383 et seqGoogle Scholar. For a discussion on the notions of Notstand and Kriegsraison, see Rodick, B.C., The Doctrine of Necessity in International Law (1928) pp. 58–118Google Scholar; Weiden, P., ‘Necessity in International Law’ 24 Grotius Society Transactions (1938) p. 105 et seq.Google Scholar; Kaeckenbeeck, G., ‘Divergences between British and Other Views on International Law’ 4 Grotius Society Transactions (1918) p. 229 et seqGoogle Scholar. On military necessity in general, see de Visscher, C., ‘Les lois de la guerre et la théorie de la nécessité’ 24 RGDIP (1917) p. 74 et seq.Google Scholar; Downey, W.G., ‘The Law of War and Military Necessity’ 47 AJIL (1953) p. 251 et seq.CrossRefGoogle Scholar; Rauch, E., ‘Le concept de nécessité militaire dans le droit de la guerre’ 19 Revue de Droit Pénal Militaire et de Droit de la Guerre (1980) p. 205 et seqGoogle Scholar.

98. Among the earlier publicists there is a clear tendency to approve the notion of defensive sea areas in the immediate vicinity of active hostilities, while discarding the idea of war zones associated with unrestricted submarine warfare. See Colombos, L. J., The International Law of the Sea, 6th edn. (1967) at p. 531Google Scholar; Hall, W.E., A Treatise on International Law, 8th edn. (1924) at p. 642Google Scholar; Hershey, A.S., ‘Should the Right to Establish War Zones on the High Seas be Recognized and What, If Any, Should be the Provisions of International Law on the Subject?’ 10 Proceedings of the American Society of International Law (1916) at p. 92CrossRefGoogle Scholar; Hyde, C.C., International Law, 2nd edn. (1945) at p. 1952Google Scholar; Lawrence, T.H., ‘Neutrality and War Zones’ 1 Grotius Society Transactions (1915) at p. 44Google Scholar; Mori, K., The Submarine in War (1931) at p. 172Google Scholar; Smith, H.A., The Law and Custom of the Sea (1948) at pp. 90–91Google Scholar.

99. See Castrén, E.J.S., The Present Law of War and Neutrality (1954) at p. 316Google Scholar. See also Jenkins, , loc. cit. n. 66, at p. 534Google Scholar: ‘recognition of such a claim would entail the abandonment of all legal limitation on the conduct of war, as presumably within a legally recognized war zone, belligerents would have carte blanche to operate as they perceive necessary … mere notification of an intent to commit an illicit act at a certain place will not suffice to make the act legal’. For another scholar, ‘war zones enforced against neutrals … are to be regarded as unlawful even according to pre-Charter law’; Ronzitti, N., ‘The Crisis of the Traditional Law Regulating International Armed Conflicts at Sea and the Need for its Revision’ in Ronzitti, , op. cit n. 88, at p. 10Google Scholar. And elsewhere: ‘if the total exclusion zone was unlawful under the classic rule of neutrality, a fortiori it has to be considered unlawful under the law of self-defense as adumbrated in the Charter’; see Ronzitti, N., ‘The Right of Self-Defense and the Law of Naval Warfare’ 14 Syracuse TIL & Commerce (1988) Special Issue, at p. 575Google Scholar. See also Eichelberger, C.A., ‘The Law and the Submarine’ 77 United States Naval Institute Proceedings (07 1951) at pp. 695–696Google Scholar; Powers, R.D., ‘International Law and Open-Ocean Mining’ 15 US Judge Advocate General's Journal (1961) at p. 71Google Scholar. O'Connell thinks that the question of legality seems categorically settled since the Nuremberg trial of Admiral Dönitz, but adds: ‘provided that publicity is given to the creation of an exclusion zone, and neutral shipping is not put unduly at risk, self-defence can conceivably justify a proclamation that contacts within a zone will be treated as hostile’; O'Connell, D.P., The International Law of the Sea (1984) vol. II at p. 1111Google Scholar. One cannot help thinking, however, that the requisite of publicity is too easy a procedure, whereas the safeguards of low-risk for neutral shipping is too doubtful a goal.

100. See Mallison, , op. cit. n 5, at p. 74Google Scholar. His argumentation is replete with references to realism and military efficiency, ibid., pp. 91, 93. Mallison's work epitomizes the tendency shared by several scholars to readily espouse the idea that changed circumstances suffice to transform traditional legal precepts. But if the technological leap which separates the steamship from the submarine is considered to be adequate to destabilize the classical legal order, what should be expected then in our days of frenetic and truly revolutionary military developments? Following the proposed logic adabsurdum, we should rather bury lex lata in its entirety since the continual advancement leads no more to marginal transformation but to the outright eclipse of established legal rules. We, therefore, run the risk of inevitably trapping the law in futile and extremely narrow considerations of efficacies and ultimately of exculpating any illegality in the name of controlling necessities.

101. See Tucker, , op. cit. n. 5, pp. 305, 317Google Scholar. See also Oppenheim, L.F.L., International Law, Lauterpacht, H., ed., 7th edn. (1952) vol. II pp. 681, 683–684Google Scholar.

102. Russo, for example, deduces the international customary character of war zones from the silence observed by the UN Security Council in its resolutions regarding the Gulf war, see Russo, , loc. cit n. 66, at p. 396Google Scholar. See also Roach, J.A., ‘Missiles on Target, the Law of Targeting and the Tanker War’ 82 Proceedings of the American Society of International Law (1988) at p. 158Google Scholar; Leckow, , loc. cit. n. 66, at p. 644Google Scholar. This is believed to be a weak argument, far the Security Council was silent on so many aspects of the Iran-Iraq conflict. The four resolutions it was capable of adopting in the course of the eight year war will remain a monument to the inefficacy and stagnancy of the international organization. It took them more than three years to realize that a ‘break of peace’ had occurred in the region, and, even then, the most they could agree upon was an urgent appeal to the parties to the conflict to respect the flora and fauna of the Persian gulf (!). In such circumstances, it is no wonder that the Security Council did not ‘pronounce’ on the legality of war zones. In a more recent writing, however, Russo concedes that an exclusion zone ‘fails to satisfy important humanitarian considerations because it neither conserves, values nor promotes target discrimination … [it] is neither recognized in traditional law nor has it clearly achieved legitimacy in customary law’; Russo, F.V., ‘Targeting Theory in the Law of Armed Conflict at Sea: the Merchant Vessel as Military Objective in the Tanker War’ a paper presented at the colloquium entitled ‘The Gulf War in International Legal Perspective’ and held at The Hague on 11 23, 1990 at pp. 33, 54Google Scholar.

103. Reed maintains that ‘the value of the war zone to neutral shippers is that since they ate at least given warning, they know their legal rights before compromising them’; see Reed, J J., ‘Damn be Torpedoes!: International Standards Regarding the Use of Automatic Submarine Mines’ 8 Fordham ILJ (1984–1985) at p. 315Google Scholar. Reisman also views the war zone device as ‘a major contribution to humanitarian conflict, since it tends to localize the conflict by concentrating in one place, rather than spreading it out’ 14 Syracuse JIL & Commerce (1988) Special Issue, at p. 756Google Scholar. For Harlow, ‘a law of neutrality which would seriously impede military operations [not taking into account the legitimate concerns of operational commanders] would not survive for long’; Harlow, B A., ‘The Law of Neutrality at Sea for the 80's and Beyond’ 3 Pacific Basin LJ (1984) at pp. 49–50Google Scholar. See also Gilliland, J., ‘Submarines and Targets: Suggestions for New Codified Rules of Submarine Warfare’ 73 Georgetown LJ (1985) at p. 1005Google Scholar; Weiss, C.J., ‘Problems of Submarine Warfare under International Law’ 22 Intramural LR (1967) at p. 149Google Scholar; Barnes, W.H., ‘Submarine Warfare and International Law’ 2 World Polity (1960) at p. 146Google Scholar. All these views may have drawn their inspiration from writings such as Stone's who believes that war law should be ‘law in action rather man on paper’, and that international lawyers should face the ‘bitter truth’ abridged to the caption ‘war law … is no expression of sheer humanity, save as adjusted to the exigencies of military success’; see Stone, J., Legal Controls of International Conflict (1959) at p. 606Google Scholar. In other words, whatever is tactically feasible and militarily advantageous should be accorded instant legitimacy, since any attempt to codify ‘new’ practices would be rapidly superseded by newer ones, or, international law, devoid of any desuasive or regulatory role, should be projected as an absolutely permissive behavioral code, saturated by the logic of kriegsraison in all its catalytic force. To those who maintain that a simple warning suffices to exonerate indiscriminate attack, let the words of Dr.Kranzbühler who pleaded the case of Admiral Dönitz before the International Military Tribunal be an answer: ‘if therefore in the sea zones mentioned neutral ships and crews sustained losses, at least they cannot complain about not having been warned explicitly and urgently beforehand … this statement in itself has not much meaning in the question of whether areas of operation as such constitute an admissible measure’; 18 Official Proceedings — InternationalMilitary Tribunal at p. 329.

104. Lowe, for instance, advocates the usefulness of the exclusion zone device, at least as it was employed in the Falklands context, and considers it a ‘reasonable, prudent compromise’ and an ‘excellent example’ of modernizing the laws of war, see Lowe, V., ‘Some Legal Problems Arising from the Use of the Seas for Military Purposes’ Marine Policy (1986) at p. 184Google Scholar. See also Barston, and Birnie, , loc. cit n. 33, at p. 24Google Scholar. Following the same train of thought, L. Doswald-Beck argues that war zones ‘should be imposed in accordance with certain rules and within the exigencies of military necessity’ and she seems ready to recognize the major virtues of a war zone, namely, ‘that they protect neutral ships from undue harassment and give combatants the necessary undisturbed space for their operations’; see Doswald-Beck, L., ‘After the Submarine: The Need for a New Law of Naval Armed Conflict’ 7 IYIL (1986–1987) at p. 278Google Scholar. It remains clear, however, that for her ‘any move toward an attitude that one can attack without prior identification is totally impermissible’ see Doswald-Beck, L., ‘The Principle of Humanity in the Law of the Sea Warfare: the Protection of Civilians and the Hors de Combat’ 82 Proceedings of the American Society ofInternational Law (1988) at p. 601Google Scholar. Van Hegelsom, who signed the introductory report for the Toulon session of the Round Table of Experts on International Humanitarian Law Applicable to Armed Conflicts at Sea, held in October 1990, attempts to elaborate a framework of legitimacy for exclusion zones and expresses the view that ‘the zones envisaged might be the ultimate tool in enhancing the protection of innocent shipping. For mis reason, the zones are to be given the benefit of the doubt in international law’; see van Hegelsom, G.J.F., ‘Methods and Means of Combat in Naval Warfare’ Report of 08 7, 1990 at p. 69Google Scholar. See also his comments at the 1987 San Remo Round Table on The International Humanitarian Law Applicable to Armed Conflict at Sea, 14 Syracuse JIL & Commerce (1988) pp. 592, 752, 784Google Scholar. Finally, there are certain writers who confine themselves to affirming the unsatisfactory present state of the law; see Fleck, D., ‘Rules of Engagement far Maritime Forces and the limitation of the Use of Force under the United Nations Charter’ 31 GYIL (1988) p. 182 et seq.Google Scholar; Zemanek, K., ‘War Zones’ in Bernhardt, , ed., op. cit. a 2, p. 337 et seqGoogle Scholar.

105. For some of the most interesting reflections on the legal-philosophical affinities of the notion of reasonableness, see Foriers, P., ‘Le raisonnement pratique. Le raisonnable et ses limites’ 33 Revue Internationale de Philosophie (1979) p. 323 et seq.Google Scholar; Perelman, C., ‘L'usage et l'abus des notions confuses’ 21 Logique et Analyse (1978) p. 3 et seq.Google Scholar; Perelman, C., ‘The Rational and the Reasonable’ in his The New Rhetoric and the Humanities (1979) p. 121 et seq.Google Scholar; Siches, L. Recaséns, ‘Equity and Logic of the Reasonable’ in Newman, R.A., ed., Equity in the World's Legal Systems (1973) p. 411 et seq.Google Scholar; Siches, L. Recaséns, ‘La logique matérielle du raisonnement juridique’ in Hubien, H., ed., Le raisonnement juridique. Actes du Congrès de Bruxelles (1971) p. 129 et seq.Google Scholar; Salmon, J.J.A., ‘Le concept de raisonnable en droit international public’ in Mélanges Paul Reuter, Le droit international: unité et diversité (1981) p. 447 et seqGoogle Scholar.

106. McDougal, M.S. and Schlei, N.A., ‘The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security’ 64 Yale LJ (1955) at p. 691CrossRefGoogle Scholar. See also McDougal, M.S. and Burke, W.T., The Public Order of the Oceans (1962) at p. 48, fn. 125Google Scholar.

107. Fenrick, , loc. cit. n. 33, at p. 254Google Scholar.

108. Leckow, , loc. cit. n. 66, at p. 644Google Scholar. Similarly, Boczek, , loc. cit. n. 66, at p. 251Google Scholar.

109. Russo, , loc. cit. n. 66, at p. 396Google Scholar.

110. See Altschuler v. Coburn, Nebraska case, quoted (and translated) in Tixier, G., ‘La règie de reasonableness dans la jurisprudence Anglo-Américaine’ 72 Revue de Droit Public et de la Science Politique en France et á l'étranger (1956) at p. 281Google Scholar.

111. Schwarz-Liebennann von Wahlendorf, H.A., ‘Quelques reflexions sur l'affaire Case v. Code’ Politique, Droit, Raison (1982) at p. 70Google Scholar.

112. Schwarz-Liebermann von Wahlendarf, H.A., ‘Les notions de right reason etde reasonable man en droit anglais’ 23 Archives dePhilosophie du Droit (1978) at p. 45Google Scholar.

113. Westlake, J., International Law, vol. I, 2nd edn. (1910) at p. 15Google Scholar.

114. PCIJ, Series C, No. 75.

115. See the reply by Mr. Beckett, ibid, at p. 304.

116. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. (1986) para. 236 at p. 379.

117. McDougal, and Schlei, , loc. cit. n. 106 at p. 660Google Scholar. Contra, see Margolis, E., ‘The Hydrogen Bomb Experiments and International Law’ 64 Yale LJ (1955) p. 629 et seqCrossRefGoogle Scholar. Far a rejoinder to Prof. McDougal's analytical model, see Anderson, S.V., ‘A Critique of Professor McDougal's Doctrine of Interpretation by Major Purposes’ 57 AJIL (1963) p. 378 et seqCrossRefGoogle Scholar.

118. See ILC Yearbook 1956 vol. L para. 35, at p. 11.

119. Doc.A/CN.4/97 in ILC Yearbook 1956 vol. II para. 52, at p. 10. When discussing the exploitation rights over the continental shelf, the ILC members were again facing the problem of best expressing the idea of reasonable use. Terms such as unreasonable, substantial, d'une manière injustifiée, sensiblement, unfounded, unnecessary and exagérément were all given consideration in prescribing the obligation not to interfere abusively with navigation or shipping; see ILC Yearbook 1953 vol. I, 201st meeting, p. 108 et seq. and 206th meeting, paras. 50, 53, 56 at pp. 141–142. It was only natural, therefore, that the 1982 Law of the Sea Convention be replete with ‘reasonable’ clauses. Among the nearly four hundred articles, one can find provisions for reasonable safety zones (60 para. 4), or safety zones of a reasonable breadth (260), unreasonable risk (225), or unreasonable threat (226 para, 1c), reasonable regard (147 para. 1) and reasonable manner (236), reasonable rules (255) and reasonable procedures (226 para, lb), reasonable measures (79 para. 2, 232) and reasonable terms (266 para. 1), reasonable period of time (74 para. 2, 83 para. 2, 246 para. 6, 253 para. 3, 298 para, 1a), reasonable time (anx.II,8-anx.III para. 1-anx JX,5 para. 5) or reasonable time-limit (294 para. 2), equitable and reasonable conditions (269b), reasonable bond (292 para. 1) and reasonable quantity (anx.III, para. 2), reasonable opportunity (242 para. 2) and reasonable allowance (anx.III, 17 para. 2c), reasonable rates of interest (anx.III, 130) andreasonabty attributable revenues(anx.III, 13 paras. 6g, n), as well as many others. The doctrine of so-called ‘reasonable use’ already prominent in the context of riparian rights and international watercourses law, is now envisaged for the eventual exploitation of natural resources in celestial bodies; see Barritt, D.A., ‘A Reasonable Approach to Resource Development in Outer Space’ 12 Loyola of Los Angeles ICLJ (1990) p. 615 et seqGoogle Scholar.

120. Whiteman, M.M., Digest of International Law, vol. IV (1965) at p. 524Google Scholar.

121. Mallison, W.T., ‘Limited Naval Blockade or Quarantine-Interdiction: National and Collective Defense Claims Valid Under International Law’ 31 Georgetown LJ (1962) at p. 345Google Scholar.

122. MacChesney, B., ‘Some Comments on the Quarantine of Cuba’ 57 AJIL (1963) at p. 595CrossRefGoogle Scholar. See also McDougaL, M.S. ‘The Soviet-Cuban Quarantine and Self-Defense’ 57 AJIL (1963) at pp. 602–603CrossRefGoogle Scholar.

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125. Perelman, C., ‘Le raisoimable et le déraisonnable en droit’ 23 Archives de Philosophic du Droit (1978) at p. 36Google Scholar.

126. It suffices to cite one example in this connection. Prof. Mallison, in his contribution to the US Naval War College blue book series, clears the US submarine war zone established in the Second World War (which, it should be remembered, covered the whole Pacific ocean) with disarming effortlessness: ‘considering the factual characteristics of the Pacific war, the area of the Pacific ocean is not an unreasonable extent for the United States submarine operational area. It is therefore not persuasive to argue that the United States operational area is illegal because of its size’. Having determined so, he proceeds to demonstrate the reasonableness of the German zones with even greater ease, in just a footnote: ‘it is easier, a fortiori, to uphold the reasonableness of the geographic extent of the smaller German operational areas’: Mallison, , op. cit. n. 5, at p. 88Google Scholar.

127. Perelman, , loc. cit. n. 125, at p. 42Google Scholar.

128. One notes at this juncture the interesting correlation between the notions of reasonableness and State necessity. In fact, the inherent characteristics of pervasive ambiguity and capricious subjectivism become more patent in connection with the timidly re-emerging idea of State necessity, now featured as Art. 33 of the ILC's Draft Articles on State Responsibility. On this debate, see Salmon, J.J.A., ‘Faut-il codifier l'état de nécessité en droit international?’ in Mélanges Manfred Lochs (1984) p. 233 et seq.Google Scholar; contra, see Barboza, J., ‘Necessity (Revisited) in International Law’ in Milanges Manfred Lacks (1984) p. 27 et seqGoogle Scholar. Necessity, as a study of the ILC debates reveals, is conceived not only as the material condition precluding the international responsibility of a State for an act in violation of standing rules, but also as an indication of the measure not to be exceeded in the exercise of such an exceptional power. Prof. Ago, speaking of the limits of the plea of necessity, has suggested that ‘the state must not go beyond what was strictly necessary to safeguard that interest: any excess, either in proportion or in time, must be regarded as wrongful. As soon as such action was no longer “necessary” no excuse of necessity could justify it’: see ILC Yearbook 1980 vol. I, 1612th meeting, para. 44 at p. 154. Under this construction, therefore, necessity comes decisively close to reasonableness. What could be mare illustrative of the kinship Unking the two notions than the fact that, in the mind of one of the members of the ILC, Art. 33 should be supplemented ‘by introducing into the text a standard of reasonableness’; C.W. Pinto, in a somewhat curious proposal, suggested that, in order to mitigate the overt subjectivism that Art 33 lays bare, the supplement of the criterion of reasonableness could possibly bestow ‘a minimum of objectivity’ in the assessment of a situation of grave and imminent peril; see ILC Yearbook 1980 vol. I, 1618th meeting, paras. 4, 6 at p. 178. Although Prof. Ago devoted a lengthy part of his reports to trying to distinguish the concept of necessity from that of self-preservation and the theory of vital interests, it is difficult to see how these postulates can be meaningfully separated in practice; see ILC Yearbook 1980 vol. I, 1612th meeting, paras. 41–42 atp. 154, 1613th meeting, paras. 4–7 at pp. 155–156. See also Doc.A/CN.4/318/ADD.5–7 in ILC Yearbook 1980 vol. II, part one, paras. 7–8 at pp. 16–17.

129. Reuter, P., ‘Quelques réflexions surle vocabulaire du droit international’ in Mélanges Louis Trotabas (1970) at p. 434Google Scholar.

130. On blockade, see Jones, T.D., ‘The International Law of Maritime Blockade - A Measure of Naval Economic Interdiction’ 26 Howard LJ (1983) p. 759 et seq.Google Scholar; Leiner, F.C., ‘Maritime Security Zones: Pohibited Yet Perpetuated’ 24 Virginia AJIL (1984) p. 967 et seq.Google Scholar; Mallison, S.V. and Mallison, W.T., ‘A Survey of the International Law of Naval Blockade’ 102 United States Naval Institute Proceedings (02 1976) p. 44 et seqGoogle Scholar.

131. Contrary to widespread belief, and in the light of the on-going UN action against Iraq, one might argue that a close-in blockade is still operationally feasible. To date, thousands of merchant vessels have been searched by the coalition naval forces numbering some 200 warships deployed in the Persian Gulf, the Red Sea and the eastern Mediterraneaa At the time it was launched, by virtue of SC Res. 665 of August 25, 1990, the campaign resembled more a UN-decreed pacific blockade, assuming the character of a war-time blockade as from January 16, 1991. With the exception of the Colombian representative, Penalosa, however, none of the Security Council members called the operation a blockade; see S/PV.2938, August 25, 1990 at p. 21.

132. See the accurate remarks of Nelson, L.D.M., ‘Certain Aspects of the Legal Regime of the High Seas’ in Mélanges Shabtai Rosenne (1989) p. 525 et seqGoogle Scholar.

133. Westlake, , op. cit. n. 113, at p. 318Google Scholar: ‘but the office of jural law is not to register and consecrate the effects of the laws of nature, but to control them by the introduction of the principle of justice, where an unreflecting submission to the tendencies which in their untamed state they promote would be destructive of society’.

134. Smith, H.A., ‘Le développement modeme des lois de la gueire maritime’ 63 Hague Recueil (1938) at p. 607Google Scholar.

135. The McDougal vision of the function of the laws of war runs somewhat differently: ‘the realistic function of those rules considered as a whole, is, accordingly, not mechanically to dictate specific decision but to guide the attention of decision-makers to significant variable factors in typical recurring contexts of decision, to serve as summary indices to relevant crystallized community expectations and, hence, to permit creative and adaptive, instead of arbitrary and irrational decisions’; McDougal, M.S. and Feliciano, F.P., ‘International Coercion and World Public Order: The General Principles of the Laws of War’ 67 Yale LJ (1958) at p. 815CrossRefGoogle Scholar.

136. In the words of one of the leading authorities in the field, ‘today we talk of die international humanitarian law of aimed conflict to indicate that the principle of humanity dominates the modern law of war, humamtarianism in warfare is no longer an ideal exclusive to the Red Cross movement’; Draper, G.I.A.D., ‘Humanitarianism in the Modern Law of Armed Conflicts’ in Meyer, M.A., ed., Armed Conflict and the New Laws: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention (1989) at p. 4Google Scholar.

137. For one of the most recent articles on the issue of the implications of the UN Charter upon the right to wage war, see Fleck, , loc. cit. n. 104, p. 165 et seqGoogle Scholar. See also Greenwood, C., ‘The Concept of War in Modern International Law’ 36 ICLQ (1987) p. 283 et seqCrossRefGoogle Scholar.

138. See, for example, how identical the argumentation read apropos the Cuban quarantine operation. Christol and Davis invoke a ‘realistic interpretation of Art. 51 of the UN Charter which takes into account the tempo and scientific capabilities of the atomic-space age’, while for MacChesney, ‘realism, common sense and the destructive nature of modern weapons demand the retention of this customary right [Art. 51] under adequate safeguards’: see Christol, and Davis, , loc.cit n. 123, at p. 543Google Scholar and MacChesney, , loc. cit. n. 122, at p. 595Google Scholar. Regrettably enough, the Liternational Court in the latest offered occasion to pronounce on the moot questions of the use of force, reserved judgment on the lawfulness of anticipatory self-defence; see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. (1986) para. 194 at p. 103: ‘the issue of the lawfulness of a response to the imminent threat of armed attack has not been raised. Accordingly the Court expresses no view on that issue’.