MARITIME LAW AND THE GULF WAR

Iranian and Iraqi air attacks against neutral vessels in the Persian Gulf strongly suggest that the time has come to reconsider whether international law governing the rights of such vessels in a wartime setting has become outdated and perhaps even counterproductive.

The situation has deteriorated to the point where neutral vessels, primarily tankers, clearly engaged in trade with non-belligerent Gulf states have become targets for air-to-surface missiles when they are transiting waters outside the exclusion zones declared by both Iran and Iraq.The basic rights under today's international law were fashioned in earlier centuries when the principal threat to neutral merchant vessels came from armed surface ships of the belligerents. Under these rules, neutral vessels supposedly have a right to ply the high seas without interruption, provided they are not transporting contraband (essentially munitions and other war materials) to a belligerent.

On the other hand, a belligerent has the right to board and search suspicious neutral vessels on the high seas and to capture or, under certain circumstances, even destroy such vessels - after safe removal of seafarers and passengers - when contraband is discovered.

These rules worked reasonably well when sail and steam surface vessels were the attackers. But they have been sorely tested in the 20th century with the advent of modern warfare in the form of submarines, airplanes and, more recently, heat-seeking or radar directed missiles fired from aircraft many miles away.

How can a bomber or a distant missile launching plane board and search a neutral vessel? How can any of these attackers, each with its cramped quarters, disembark crew members and passengers, even assuming knowledge that the vessel is carrying contraband? How accurately can these modern attackers, under adverse weather conditions or darkness, differentiate a neutral vessel

from a belligerent vessel?

The inescapable conclusion is that during this century international law has failed to develop in a manner that would balance more precisely the rights of neutral nations against those of belligerents as modern weaponry has become progressively more sophisticated and more deadly. With such weapons, the destruction of the enemy's economic base has increasingly become a prime military objective, and that, in turn, has further imperiled neutral shipping.

This added dimension of modern warfare with its focus on actively preventing all trade (rather than contraband alone) with the enemy, clearly runs counter to earlier international conventions, such as the Hague Conventions of 1907, as well as long-standing customary international law.

But it is a sorry fact of life that in modern warfare at its extreme, typified by the carnage of World War I and and the unconditional surrender mandate of World War II, the rights of neutrals have been given short shrift by belligerents engaged in life and death struggles. In World War II, for example, all major powers, save Japan, declared war zones in which even neutral vessels were subject to unrestricted submarine warfare.

In this century, the distinction between transporting contraband and transporting imports and exports of raw materials and other commodities that permit an enemy to continue to fuel its war machine has been blurred, if not obliterated. That reality has been underscored by the establishment of so- called exclusion zones (or war zones) encompassing specified areas of the high seas in open disregard of the existing rules of international law guaranteeing safe passage for neutral vessels not carrying contraband.

The fact is that international law has not yet given explicit recognition to the concept of exclusion zones in which neutral shipping is forewarned of the risk of capture or destruction upon entering a specified area of the high seas. Nevertheless, the 20th century has witnessed the establishment of zones ''off limits" to shipping, starting with the Russian mining of an area near Port Arthur in 1904.

Zones were also established, with varying restrictions, in World War I, the Spanish Civil War, World War II, Korean War, the Cuban missile crisis and the Falklands conflict. The Iran-Iraq war has also given rise to exclusion zones declared by both combatants, but they have had too little meaning in too many instances.

It may well be that the failure to adapt international law to such realities has not only failed to afford any privileged status to neutral vessels trading with belligerents, but, even worse, has served to place truly innocent neutral vessels (those trading with non-belligerents) at greater risk. That seems to be the situation in the Gulf, where merchant vessels having no trading connections with either Iran or Iraq have been indiscriminately attacked.

It would be foolhardy to believe that rewriting international law might resolve these complex problems, but clear cut and realistic international rules on properly established exclusion zones and the rights (and risks) of neutral vessels inside and outside such areas would be a step in the right direction and might result in more respect for the rights of truly innocent neutrals.

At the very least, serious consideration should be given to drafting a limited but updated international convention recognizing the concept of openly declared wartime exclusion zones that cover areas of the high seas reasonably adjacent to the territorial waters of belligerents.

In cases where narrow waters cause zones to overlap sea lanes necessary for trade with non-belligerents, the right of safe transit should be guaranteed for neutral vessels, subject to reasonable prior notice by those vessels. Attacks against all neutral vessels outside such zones should be expressly prohibited, although the long-established rules covering boarding and searching suspicious vessels for contraband could continue to apply.

The international convention should also establish the right of neutrals to seek redress in the courts of parties to the convention against the assets of belligerents that disregard such zones and the rights of innocent neutrals. A meaningful right of redress may represent the most effective deterrent to future attacks on neutral shipping.

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