Enforcement of Sovereingty and Assistance to Law Enforcement: Extending the Reach Beyond the Grasp
In accordance with Canadian law, the Canadian Forces may be authorized to conduct two different types of activities in the waters of the Canadian Archipelago and beyond: first, military operations to preserve political sovereignty and territorial integrity; and second, support to civilian authorities including the provision of assistance to law enforcement. The legal basis for each of these is distinct from the other and imposes very different legal constraints on the conduct of CF operations.
The Navy has the standing authority to patrol and exercise in international waters (exclusive economic zone and high seas) and within its own national waters (internal waters and territorial sea) as established through custom and practice. On the other hand, military taskings such as visit and search operations require direction from the Government of Canada. While many international maritime interdiction operations have relied upon a variety of specific legal authorities, including United Nations Security Council resolutions pursuant to Chapter VII of the United Nations Charter and Article 110 of UNCLOS147 as the legal bases for these actions, Canadian naval operations in support of Canadian territorial and maritime sovereignty would rely upon the principles of inviolability of territorial integrity and the right of national self-defence to legitimize action.148
As distinct from operations in support of law enforcement, it must be recognized that vessels fired upon have a prima facie argument to justify firing back in their own self-defence. With both sides claiming to exercise the right of self-defence, the question for the Canadian Navy protecting Arctic maritime sovereignty is reduced – as in so many other questions of jus ad bellum – to whether their actions can be justified as an act of self-defence against an "armed attack".149
It is at this juncture that the exceptional nature of the Canadian claim of "historic internal waters" will exert its strongest influence on the course of operations. The political direction of the Canadian warships defending Canadian Arctic waters from incursion must take the nature and strength of the position – that it does not rest upon a prima facie case, but rather relies upon an unlitigated exception - into account before providing instructions on the use of force. As noted above, both belligerents may believe in the righteousness of their cause and of the legitimacy of the use of force in self-defence. As has happened in every instance of the use of force by Canada in the past, the legal basis for the Government of Canada's direction for the use of force will be scrutinized and evaluated publicly by official and private critics. Further, while the issue of Canadian maritime delimitation may never be formally litigated before the I.C.J. or other international tribunal, the use of naval force may itself provoke domestic or international litigation. Courts may then be provided an opportunity to render a judgment on Canada's satisfaction of the burden imposed by the Convention, despite the language in the Statement filed at Canada's ratification in 2003.
An illustration of the complex legal issues associated with the use of force may be drawn by considering the possible responses available to the Government of Canada upon the discovery of a submerged foreign submarine transiting the channels of the Arctic Archipelago. Once detected within the territorial sea or internal waters claimed by Canada, a threshold question for the Canadian Navy would be the legal basis for any belligerent response. There is no literal guidance available in the Convention or commentaries to provide the authority to use force against submerged contacts in internal waters. It may be attractive to conclude that the submerged submarine's non-consensual passage through of a State's internal waters is such an egregious breach sovereignty – a warship entering a port normally requires diplomatic clearance - as to automatically justify the use of force in self-defence. However, the dearth of precedent may also be explained by recalling that normal and straight baselines have generally been located in waters in which submerged submarines or warships have difficulty navigating.
Reference may be made to the related issue of the lawful response to the detection of a submerged submarine's passage through a territorial sea. Despite Professor D.P. O'Connell's pithy observation that the “
law relating to submerged contacts is itself so malleable as to be dangerous to both sides,”150 he subscribed to the view that while coastal States are entitled to exercise the right of self-defence in the face of an armed attack, the targeting analysis conducted in relation to the submerged submarine should determine whether in the circumstances its presence constitutes an "armed attack." If the coastal State makes that determination, it must apply the principles of proportionality and necessity to assist in determining the force of the response. Professor O'Connell proposed consideration of a number of factors in assessing the innocence of a submerged submarine's passage through a territorial seas to include the reasonableness of the use of the territorial sea for transit purposes, which may be in ratio with its extent, the weather conditions at the time, the political climate and, most important, the actual track taken by the submarine.151 Other factors that might also be considered in the present context could include the state of ice-cover, the likely flag of the submarine, and the proximity and spatial relationships of other vessels.
Consideration must also be given to an intermediate step in the escalation of force used against a submarine incursion. If the defender attacks the covert character of the submarine operations it tears away one of the boat's most essential operational qualities. For example, in 2004 the Japanese Maritime Self-Defence Force (JMSDF) detected a Chinese People's Liberation Army Navy (PLAN) Han-class SSN (attack submarine) transiting the Ishigaki Strait at the southwestern edge of Japan's Sakishima island chain. These waters are claimed by Japan as part of its territorial sea. As soon as the boat entered the Japanese waters the Japanese patrol aircraft switched from passive acoustic to active radar tracking. This not only provide the Japanese with a more accurate fix on the Chinese submarine, but it served as an explicit warning signal to the boat. When the Chinese submarine continued its transit, ignoring the warning, the Japanese aggressively tracked the Han for two days with P-3C maritime patrol and AWACs aircraft, ASW-destroyers and SH-60 helicopters well into international waters.152
The increase in commercial maritime traffic in the Arctic waters and the waters claimed by Canada to be "historic internal waters" will undoubtedly strain the enforcement capabilities of the Government of Canada and any CF assistance to law enforcement sought to ease that strain. The most likely process used to obtain the necessary authority to provide that assistance would be in accordance with section 273.6(2) of the National Defence Act.153 This provision preserves the customary role of the CF as the "force of last resort" and requires the CF to act only in support of Canadian peace officers, such as members of the RCMP, fishery enforcement officers, and pollution prevention officers.
In turn, this means that the activities of the Canadian Navy are restricted to the provision of assistance to the respective peace officers in the exercise of their lawful functions. For example, the fishery enforcement officers can be supported in their enforcement activities up to 200 nm seaward of the Arctic straight baselines and the pollution prevention officers up to 100 nm seaward of those same baselines. While in the past it has been accepted that the RCMP may only be supported in their conduct of counter-terrorism investigations on foreignflagged vessels within the territorial sea and landward of the baselines, recent evolution of international law has provided a significant number of exceptions to strict reliance upon the 12-nm limit of the Canadian territorial sea that have been incorporated into Canadian law.154
The question of the propriety of the enforcement of the pollution regulations in the Arctic waters shipping safety control zones might present difficult threshold issues for the Canadian Navy. The international legal authorities for the enforcement of pollution regulations in the 100-nm pollution prevention zone may be found in either Article 56155 and Article 234 of UNCLOS authorizing coastal States like Canada to adopt and enforce “
nondiscriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone.” While the AWPPA and its Regulations156 indeed regulate the “
prevention, reduction and control of marine pollution from vessels”, there are provisions which extend much further and regulate the conduct of shipping in the Arctic. For example, there are provisions purporting to regulate ship construction standards, machinery and navigational equipment, manning of the ship, type of cargo carried, quantities of fuel, water and other supplies, and the navigational documents on board.157 Any Government of Canada attempts to enforce these regulations in "Arctic waters" - section 15(4) of the AWPPA grants a pollution prevention officer the power to board a ship in the shipping safety control zone, conduct an inspection, order the ship outside the zone or to anchor in a place selected by him158 - may meet resistance if other interested States hold alternative interpretations of the application of Article 234.
Besides the waters of the Northwest Passage, the question of Canadian control over vessels sailing in other Canadian Arctic internal waters may also present significant challenges. The Canadian government must assert a similar level of control over foreign vessels sailing in the waters of the Arctic Archipelago as that asserted in the southern internal waters. This level of control would include the exercise of the exclusive territorial jurisdiction of Canadian courts and might well exceed that expected by foreign-flagged vessels exercising innocent passage through those same waters, in accordance with Article 8(2) of the Convention. Further, if the vessel is transiting the Northwest Passage, it may well be intending to exercise its right of transit passage in accordance with Article 35(a) of the Convention. As previously observed, there are many differences between innocent passage and transit passage. Two of the most significant differences are that ships conducting transit passage are not required to give notice to Canadian authorities, and transit passage is not subject to suspension by the Canadian government for security concerns. This wide disparity of expectations between the transiting vessels and the Canadian domestic authorities charged with enforcing Canadian law may well create difficult enforcement scenarios.
Only limited authority for enforcement of coastal State regulations over foreign-flagged vessels can be found in international law. The question of the lawful use of force in the execution of law enforcement functions such as search and arrest does not receive direct attention in UNCLOS. In UNCLOS Part III (Straits Used for International Navigation) the coastal State bordering an international strait may regulate ships exercising transit passage through an international strait in relation to safety of navigation, pollution prevention, with respect to fishing, and in relation to customs, fiscal, immigration, or sanitary laws.159 Enforcement of these regulations over foreign vessels is restricted to violations of the coastal states laws and regulations pertaining to the safety of navigation or prevention of pollution. However, it should be noted that in order for the coastal state to enforce the navigation or pollution-prevention regulation within the international strait, the breach would have to be of such gravity as causing or threatening to cause major damage to the marine environment of the straits.160 Otherwise, the coastal State may only require the foreign vessel to give certain identification information necessary to establish whether a violation has occurred.161
When enforcing the Fisheries Regulations in the Fisheries Zone, Section 8.1 of the Coastal Fisheries Protection Act provides that:
"8.1 A protection officer may, in the manner and the extent prescribed by the regulations, use force that is intended or is likely to disable a foreign fishing vessel, if the protection officer
- is proceeding lawfully to arrest the master or other person in command of the vessel; and
- believes on reasonable grounds that force is necessary for the purpose of arresting that master or other person."
However, there are currently no regulations in force supporting fisheries enforcement of this type in Arctic waters.
The AWPPA creates a number of offences (sections 18-22) including the depositing of waste in Arctic waters, failure to make a report to a pollution prevention officer, failure to provide the Governor in Council with evidence of financial responsibility or the plans and specifications of the vessel, and navigating within a shipping safety control zone with a ship that does not comply with the prescribed standards.
However, these pollution prevention offences are exclusively summary conviction matters and therefore do not include powers of arrest pursuant to the Criminal Code. Section 15(4) of the AWPPA provides for the pollution prevention officer's enforcement powers pursuant to the Act, but these are limited to the powers to board, inspect, and order a vessel out of a shipping control zone or to remain outside of a zone. No powers in relation to a use of force are specified in the AWPPA. In summary, the current legislative regime in place in Canada's Arctic waters does not support arrests or use of force, except pursuant to the limited application of the Criminal Code.
Operations by Canadian warships in support of law enforcement activities outside of Canadian national waters – in the Arctic waters pollution prevention zone or fisheries protection zone beyond Canadian territorial waters – must be conducted with special care. Despite the "functional jurisdiction" exercised by Canadian law enforcement, they are also regarded as international waters in which foreign warships can themselves lawfully conduct operations. As observed by Professor Ken Booth, the exclusive economic zone is a zone sui generis “
since it is neither high sea nor territorial sea as normally understood.”162 While the AWPPA and UNCLOS may afford jurisdiction to enforce the pollution prevention regulations, it simultaneously remains ocean space in which foreign warships may conduct operations unmolested. Any use of Canadian warships to support law enforcement activities in these zones must be measured against the possibility of inadvertent escalation of risk by operating in the same ocean space as foreign warships escorting commercial vessels in their legitimate exercise of freedom of the seas.
Finally, the various outer limits of the enforcement zones including the straight baselines, the 12-nm territorial sea, the 100-nm pollution prevention zone and the 200-nm fisheries zone will be regarded by all participants as significant boundaries that will greatly influence operations. These nominal boundaries serve the dual roles of precisely marking the extent of enforcement jurisdictions and also as boundaries of politically charged sensitivities.163 Such boundaries influence the perceptions of all vessels involved because of their legal significance. In the case of the 200-nm fisheries zone boundary, for example, as long as the Canadian warship remains landward of the fisheries zone outer limit, it could be easily argued that it is only operating in support of law enforcement. Crossing that boundary introduces ambiguity about its intentions since, beyond the 200-nm limit, it may only lawfully conduct military operations in self-defence. Obviously, the complex overlap of regulatory jurisdictions seaward of the straight baselines will influence the manner in which the Canadian Navy conducts its operations.
144 Donat Pharand, "Canada's Sovereignty over the Newly Enclosed Arctic Waters" (1987) 25 Can. Y.B. Int'l L. 325 at 329 observed that the right of innocent passage was not permitted through waters enclosed by straight baselines where there had been no prior historic title to those waters by customary international law. Professor Pharand noted that while the right of innocent passage would in fact apply in accordance with the 1958 Territorial Sea Convention, Canada was not a party to that treaty.
145 UNCLOS, Article 45:
"SECTION 3. INNOCENT PASSAGE
Article 45 - Innocent passage
- The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits used for international navigation :
- excluded from the application of the regime of transit passage under article 38, paragraph 1; or
- between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.
- There shall be no suspension of innocent passage through such straits."
UNCLOS, Article 38(1) states:
Right of transit passage
- In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics."
146 J.B. McKinnon, supra note 105 at 810. The conclusion that the Canadian claim that the strait is enclosed by the straight baselines is an exceptional claim is supported by some evidence of state practice. Chile used straight baselines to enclose the waters around some of its islands in the Straits of Magellan (only 3-nm wide at its narrowest) and Denmark enclosed islands on its east coast which effectively block access to the Baltic Sea. However, neither state chose to enclose the waters in the international strait with their claimed baselines.
147 UNCLOS, Article 110:
Right of Visit Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:
- the ship is engaged in piracy;
- the ship is engaged in the slave trade;
- the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under Article 109;
- the ship is without nationality; or
- though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
- In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
- If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
- These provisions apply mutatis mutandis to military aircraft.
- These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.
148 D.P. O'Connell, The Influence of Law on Sea Power (Manchester University Press, 1975) 54. Professor O'Connell observed that, “
As a practical guideline naval planning staffs should take it for granted that the employment of force, as distinct from its manifestation – or of violence, as distinct from intimidation, if one likes – will be regarded as overstepping the boundaries of the legitimate, except when resorted to in self-defence.”
149 See also Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [6 November 2003] ICJ (http://www.icj-cij.org/docket/index.php?sum=634&code=op&p1=3&p2=3&case=90&k=0a&p3=5&lang=en) 1 May 2004, (Oil Platforms Case) where the Court rejected the American claim that an Iranian missile attack upon the US-flagged ship Sea Isle City near Kuwait and the mine-strike by the warship Samuel B. Roberts did not constitute an "armed attack" upon the United States sufficient to trigger a use of force in self-defence. However, there was some support in the decision for acceptance of the "cumulative effect" approach to determining whether a state suffered an "armed attack". Further , it should be acknowledged that an alternative international legal analysis based upon the reasoning of the International Court of Justice in the Nicaragua Case  I.C.J. Rep. 14, has been suggested by commentators such as Dale Stephens, "The Impact of the 1982 Law of the Sea Convention on the Conduct of Peacetime Naval/Military Operations," (1998-1999) 29 Cal. W. Int'l L.J. 283-311, 298. He proposed justifying the limited use of naval force based upon the Court's analysis of "proportionate countermeasures."
150 O'Connell, supra note 148 at 142.
151 Ibid., at 143.
152 Peter A. Dutton, "International Law and the November 2004 'Han Incident'", 162-181, China's Future Nuclear Submarine Force, ed. Andrew S. Ericson, Lyle J. Goldstein, William S. Murray, and Andrew R. Wilson, Naval Institute Press, 2007.
153 National Defence Act, R.S.C. 1985, c. N-5, s. 273.6(2):
"273.6(2) The Governor in Council, or the Minister on the request of the Minister of Public Safety and Emergency Preparedness or any other Minister, may issue directions authorizing the Canadian Forces to provide assistance in respect of any law enforcement matter if the Governor in Council or the Minister, as the case may be, considers that
- the assistance is in the public interest; and
- the matter cannot be effectively dealt with except with the assistance of the Canadian Forces."
154 The exceptions include: (1) offences committed outside of Canadian national waters involving a Canadian-flagged vessel (s. 477.1(c) Criminal Code of Canada (C.C.C.)); (2) offences committed outside of Canada in the course of hot pursuit (s. 477.2(d) C.C.C.); (3) offences committed outside the territory of any State by a Canadian citizen (s. 477.1(e) C.C.C.); conspiracy offences where an individual outside of Canada conspires with anyone to commit an offence in Canada (s. 465(4) C.C.C.); offences occurring in the EEZ in relation to the exploring, exploiting, conserving or managing a natural resource and is committed by a Canadian citizen or permanent resident (s. 477.1(a) C.C.C.); offences committed on or under a marine installation attached to the continental shelf (s. 477.1(b) C.C.C.) offence in which someone unlawfully exercises control over a ship or fixed platform (s. 7(2.1) and s. 78.1 C.C.C.); offences against "internationally protected persons" where committed on a Canadian flagged vessel or the person is a Canadian citizen or found in Canada after the offence (s. 7(3) C.C.C.); hostage taking (s. 7(3.1) C.C.C.); piracy (s. 74 C.C.C.); piratical acts in relation to a Canadian ship (s. 75 C.C.C.); offences in relation to nuclear material (s. 7(3.2) and s. 7(3.3) C.C.C.); offences in relation to torture (s. 7(3.7) and s. 269.1 C.C.c.); offences in relation to terrorism or financing of terrorism (s. 7(3.73), s. 7(3.74), s. 7(3.75), s. 83.01 and s.83.02 C.C.C.); offences by federal employees (s. 7(4) C.C.C.); sexual offences against children committed outside Canada by a Canadian citizen or permanent resident (s. 7(4.1) C.C.C.); and offences under the Crimes Against Humanity and War Crimes Act.
155 UNCLOS, Art. 56:
"Article 56 – Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
- In the exclusive economic zone, the coastal State has:
- sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superadjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
- jurisdiction as provided for in the relevant provisions of this Convention with regard to:
- the establishment and use of artificial islands, installations and structures;
- marine scientific research;
- other rights and duties provided for in this Convention.
- In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
- The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI."
156 Arctic Shipping Pollution Prevention Regulations (C.R.C., c. 353).
157 AWPPA, section 12.
158 AWPPA, section 15(4):
"Powers in relation to ships
(4) A pollution prevention officer may
- board any ship that is within a shipping safety control zone and conduct such inspections thereof as will enable the officer to determine whether the ship complies with standards prescribed by any regulations made under section 12 that are applicable to it within that shipping safety control zone;
- order any ship that is in or near a shipping safety control zone to proceed outside the zone in such manner as the officer may direct, to remain outside the zone or to anchor in a place selected by the officer, if (i) the officer suspects, on reasonable grounds, that the ship fails to comply with standards prescribed by any regulations made under section 12 that are or would be applicable to it within that shipping safety control zone, (ii) the ship is within the shipping safety control zone or is about to enter the zone in contravention of a regulation made under paragraph 12(1)(b) or (c), or (iii) the officer is satisfied, by reason of weather, visibility, ice or sea conditions, the condition of the ship or its equipment or the nature or condition of its cargo, that such an order is justified in the interests of safety; and
- where the officer is informed that a substantial quantity of waste has been deposited in the arctic waters or has entered the arctic waters or where, on reasonable grounds, the officer is satisfied that a grave and imminent danger of a substantial deposit of waste in the arctic waters exists, (i) order all ships within a specified area of the arctic waters to report their positions to the officer, and (ii) order any ship to take part in the clean-up of the waste or in any action to control or contain the waste."
Article 42 Laws and regulations of States bordering straits relating to transit passage
- Subject to the provisions of this section, States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following:
- the safety of navigation and the regulation of maritime traffic, as provided in article 41;
- the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait;
- with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear;
- the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits.
- Such laws and regulations shall not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section.
- States bordering straits shall give due publicity to all such laws and regulations.
- Foreign ships exercising the right of transit passage shall comply with such laws and regulations.
- The flag State of a ship or the State of registry of an aircraft entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of this Part shall bear international responsibility for any loss or damage which results to States bordering straits.
Article 233 Safeguards with respect to straits used for international navigation:
- Nothing in sections 5, 6 and 7 affects the legal regime of straits used for international navigation. However, if a foreign ship other than those referred to in section 10 has committed a violation of the laws and regulations referred to in article 42, paragraph 1(a) and (b), causing or threatening major damage to the marine environment of the straits, the States bordering the straits may take appropriate enforcement measures and if so shall respect mutatis mutandis the provisions of this section.
Article 30 Non-compliance by warships with the laws and regulations of the coastal State:
- If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.
Article 31 Responsibility of the flag State for damage caused by a warship or other government ship operated for noncommercial purposes:
- The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the noncompliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.
Article 32 Immunities of warships and other government ships operated for non-commercial purposes:
- With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes
Article 220 Enforcement by coastal States
3. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred.
4. States shall adopt laws and regulations and take other measures so that vessels flying their flag comply with requests for information pursuant to paragraph 3.
5. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a substantial discharge causing or threatening significant pollution of the marine environment, that State may undertake physical inspection of the vessel for matters relating to the violation if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection.
6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws
7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organization or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed.
8. The provisions of paragraphs 3, 4, 5, 6and 7 also apply in respect of national laws and regulations adopted pursuant to article 211, paragraph 6.
162 Ken Booth, Law, Force and Diplomacy at Sea, (George Allen & Unwin, 1985) 43. Booth named these "psycho-legal boundaries" in recognition of the psychological character of naval diplomacy.
163 Ken Booth, "Naval Strategy and the Spread of Psycho-Legal Boundaries at Sea" (1982-1983), 38 Int'l J., 373 at 384-385. “
Naval diplomacy, therefore, is a test of nerve rather than force, with naval powers seeking to achieve their objectives by demonstrating a willingness to embark upon risky actions which could develop a momentum of their own; they might escalate out of control. Coercive naval diplomacy rocks the diplomatic boat; it creates an unpredictability which is fraught with the danger of war. By so doing warships charge the diplomatic atmosphere in ways which the naval power hopes will be politically exploitable.”
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