Neutrality in Contemporary International Law by Upcher James;

Author:Upcher, James; [Upcher, James]
Language: eng
Format: epub
Publisher: Oxford University Press, Incorporated
Published: 2020-03-25T00:00:00+00:00

iii. Use of the territorial sea and neutral ports

Hague Convention XIII provides that belligerent rights may not be asserted in neutral territory.228 Article 9, however, provides that a neutral State must impose any restrictions on access to its ports or territorial waters on the basis of impartiality.229 Numerous other provisions of Hague Convention XIII proceed on the basis that access to neutral ports and territorial waters is to be granted on the basis of impartiality.230

When a determination under Article 39 is made that identifies the responsible State, or enforcement action is authorized, the neutral State must accordingly adjust its application of these rules. Since refuelling and resupply in neutral ports may constitute ‘assistance’ under Article 2(5), the neutral State is under an obligation to prevent the State which is the object of the enforcement action from using its ports or territorial waters. This is the minimum that is required under the second limb of Article 2(5). Failure to comply with it would constitute ‘aid or assistance’ under Article 41(2) of the ILC’s Articles on State Responsibility.231

Whether a neutral State is under an obligation to permit access to its ports by a UN-authorized force is a more difficult question. Quincy Wright argued in 1953 that the UN could ‘authorise measures to assure isolation of the aggressor and to prevent third-state assistance to the aggressor even though those measures go beyond the normal powers of a belligerent to interfere with commerce at sea.’232 Those measures would now include interception of vessels in neutral territorial waters.233

UN Resolution 665, authorizing maritime interdiction in the Gulf, built on Resolution 661, which imposed an economic embargo on Iraq. Following the passage of Resolution 665, Coalition States conducted maritime interception operations in the Persian Gulf, the Gulf of Oman, and the Red Sea, and managed to divert almost all goods headed into or out of Iraq.234

The powers granted under Resolution 665 were (probably deliberately) imprecisely phrased: the degree of force that could be used to verify cargoes, and in what circumstances, was left up to the co-operating States themselves.235 The measures contemplated by Resolution 665 are analogous to blockade action.236 The difference, however, is that under the terms of the Resolution interception measures could be extended to the territorial seas of neutral and non-belligerent States.237 While there was apparently support for the view that neutral States would have to allow the UN-authorized force to use their territorial seas, this did not come to pass.238 The territorial seas and international straits of certain States were used by the coalition force for interception purposes, but only with the permission of the littoral State.239

However, it is increasingly accepted that the territorial seas of neutral and non-belligerent States must be made available for UN-authorized maritime operations.240 Subsequent Security Council resolutions authorizing maritime interdiction measures have presumed a wide spectrum of permissible action. At the outbreak of hostilities in the Federal Republic of Yugoslavia (FRY), for example, the Security Council imposed an embargo on all deliveries of weapons and military equipment.241 This

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