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NIRMA UNIVERSITY

INSTITUTE OF LAW
A PROJECT SUBMITTED FOR THE PARTIAL FULFILLMENT
OF THE FIVE YEARS INTEGRATED DEGREE OF LAW
HONOURS
ON

Use of Force at Sea


Course Name
MARITIME LAW
B.COM. LL.B (Hons.)
SEMESTER-X

Under the Guidance of


Prof. U. Varadharajan

Submitted By
Yukti Vyas
(11BBL128)
Use of Force at Sea

Introduction
The 1982 United Nations Convention on the Law of the Sea (UNCLOS), in its preamble,
codifies the peaceful uses of the seas and oceans. In Article 301 which titles Peaceful uses of the
seas, it basically deals with what are not peaceful uses of the seas, prohibiting the threat and use
of force against territorial integrity and political independence. The issue about peaceful uses of
the seas seems today not to be that much discussed.1
The concept of use of force at sea is a relative one. It has many dimensions involved, like the
under what circumstances the force has been used and in which area, in territorial waters, EEZ,
contiguous zone or high seas. Each and every dimension has different legal implications and
consequences involved, that can be witnessed through the latest cases and incidents happening
around the world.
The circumstance under which force is used also varies. Often it is seen that the country exerting
force is under a condition where the use of force becomes a necessity. In cases where the threat
of harm is eminent, states are engaged in activities of self-defense where the attacker is in a
position that can prove to be a greater harm and loss. The other circumstances wherein the use of
force could be observed are when the state is attacker itself, and that has a purpose and motive to
exert force.
The above arena of use of force is again surrounded by one more ring that has been commonly
accepted by the states and is a part of both, customary international law as well as conventional
law. This concept is known to be Doctrine of Proportionality, which vehemently propagates the
use of force in a controlled and regulated behavior that meets the demand of the situation and
controls the exaggerated situations of war-like.
Thus, the following paper is going to discuss the dimensions of use of force, place and
proportionality and its legal implications so as to give the entire reflection of use of force at sea.
The final draft of the paper shall also include following points:

History of use of force


Codification of the concept
Analysis of important case laws

1 Sarah Goyette Threat of Use of Force at Sea, Master Thesis in the Law of Sea, Faculty of
Law, The Arctic University of Norway, available at
http://munin.uit.no/bitstream/handle/10037/7156/thesis.pdf;jsessionid=D6C5D0518D4CA363A8
23E133F5934CCE?sequence=1 last accessed on Jan 30th, 2016

Use of Force at Different Places at Sea


Territorial Waters
It is generally observed that the occasions in which the territorial sea has been the theater for acts
of force arise in two typical situations. The first occurs when coastal states react against what
they perceive as a provocative or offensive act by foreign ships. The second situation arises when
a foreign state acts to assert navigational claims against the coastal state.2
The Pueblo incident of 1968 exemplifies the first situation. In that incident, a Navy intelligence
vessel Pueblo was engaged in a routine surveillance of the North Korean coast within 16
kilometers of coast, when it was intercepted by North Korean patrol boats. The Americans
attempted to escape, and the North Koreans opened fire, wounding the commander and two
others. The U.S. and North Korean negotiators reached a settlement to resolve the crisis. Under
the settlements terms, the United States admitted the ships intrusion into North Korean territory,
apologized for the action, and pledged to cease any future such action. 3 The principle of
complete immunity of foreign warships holds that no force is allowable to enforce jurisdiction.
This principle is derived from the combined interpretation of article 8 of the 1958 Geneva
Convention of the High Seas, which gives complete immunity to warships on the high seas, and
article 23 of the Geneva Convention on the Territorial Sea, which provides that if a foreign
warship does not comply with a coastal state's regulations in the territorial sea, the coastal state
may "require the ship to leave the territorial sea." The combined reading of these provisions do
not contemplate coercive measures against the illegal presence of foreign warships in territorial
waters, the conclusion is that no use of force is admissible against a foreign warship in the
territorial sea except in self-defense.4 While on the other hand, the view is that the coastal state is
free to determine the scope of threat in its coastal waters and adopt coercive measures that help
in safeguarding its territorial integrity.
2 Francesco Francioni Peacetime Use of Force, Military Activities, and the New Law of the
Sea, Cornell International Law Journal, Issue 2 Summer 1985, Article 3. Available at
http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1152&context=cilj , last accessed
on Jan 30,2016.
3 Available at http://www.history.com/this-day-in-history/uss-pueblo-captured , last accessed on
Jan 30th, 2016
4 Supra Note 2

Both the views bring the unsatisfactory answers wherein it is difficult to decide what should be
the extent of use of force at sea by the coastal waters within its territorial waters. The doctrine of
proportionality and self-defense still acts as the shield for the use of force but the issue still
remains debatable.

Use of force in Exclusive Economic Zone

Article 56 of UNCLOS establishes the substantive regime of the EEZ. This maritime zone begins
where the territorial sea ends and is to extend no more than 200 nm from the baseline. The
coastal state has the sovereign rights for the economic exploitation and exploration of all
resources in the EEZ, for instance, energy production. As the concept of EEZ is relatively new
concept in international law, the specific scope of rights and responsibilities in the EEZ is
dynamic and ever-evolving.5 UNCLOS does not clarify the specific issue of military activities in
the EEZ and there is a growing issue of use of force in EEZ without due permission and
considering the concept of due regard of rights of other states. Some maritime powers support
unfettered use of military activity in the EEZ by emphasizing the freedom of navigation, and
conversely, some coastal states object to military activity in their EEZ by expressing concern for
their national security and their resource sovereignty.

The Impeccable Incident of 2009, is one such incident wherein the military activities happened
in the EEZ, wherein the Impeccable, vessel of US was engaged in routine mapping activities in
EEZ of South China wherein they were threatened to move out their EEZ. The Impeccable
withdrew from the area but returned next day with US guarded missile destroyer in the same
area. This incident grew tensions for the military activities and use of force in EEZ.

Thus, here also, there is no straight answer for use of force and the proportionality and necessity
continue to guard even this regime of EEZ.
5 Jing Geng The Legality of Foreign Military Activities in EEZ under UNCLOS,Utrecht
Journal of International and European Law, ISSN 0927-406X

Doctrine of Proportionality and Self Defense


A state may use force in self-defence against a threatened attack only if that attack is imminent.
There is a risk of abuse of the doctrine of anticipatory self-defence, and it needs to be applied
in good faith and on the basis of sound evidence. But the criterion of imminence must be
interpreted so as to take into account current kinds of threat and it must be applied having
regard to the particular circumstances of each case. The criterion of imminence is closely
related to the requirement of necessity.

Force may be used only when any further delay would result in an inability by the threatened
state effectively to defend against or avert the attack against it.

In assessing the imminence of the attack, reference may be made to the gravity of the attack,
the capability of the attacker, and the nature of the threat, for example if the attack is likely to
come without warning.

Force may be used only on a proper factual basis and after a good faith assessment of the
facts.

The exercise of the right of self-defense must comply with the criterion of proportionality.

The force used, taken as a whole, must not be excessive in relation to the need to avert or
bring the attack to an end.

The physical and economic consequences of the force used must not be excessive in relation
to the harm expected from the attack.

The proportionality requirement has been said to mean in addition that the physical and
economic consequences of the force used must not be excessive in relation to the harm expected
from the attack. But because the right of self-defense does not allow the use of force to punish
an aggressor, proportionality should not be thought to refer to parity between a response and the
harm already suffered from an attack, as this could either turn the concept of self-defense into a
justification for retributive force, or limit the use of force to less than what is necessary to repel
the attack.