of measures:

(d) necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests; (Italics added).

These treaties contain another provision stating that any dispute concerning the interpretation or application of the treaty shall if other means of settlement are not agreed, be submitted to the International Court of Justice.10 This provision constitutes a "special" agreement between the United States and each treaty partner to submit such disputes to the Court's jurisdiction, within the meaning of Article 36 (1) of the Court's statute. Accordingly, this class of disputes between the respective treaty partners is subjected to the Court's jurisdiction independently, and apart from the limitations of their submissions to compulsory jurisdiction generally, if any. What is the significance of these two provisions?

IN THE FIRST place, they represent a clear recognition that even with respect to relatively non-political matters such as exchange controls, protection of interest in trade-marks, patents, and other forms of property and the other commercial matters which are the heart of the Friendship, Commerce and Navigation treaty,11 countries must have an overriding national security exception to be invokable if they consider it necessary. This exception runs against every substantive obligation in the Treaty. Secondly, the wide scope of commercial matters on which the treaty contains international engagements indicates the unreality of the "domestic jurisdiction" conception in a rapidly contracting world. Thirdly, the exception is stated in non-self judging terms with full confidence that the Court, if the exception is ever invoked, will honor it because a country will be able to assert a colorable connection between its action and its security. The expectation that countries will not hide behind the security exception when there is no legitimate security interest involved has not been disappointed. None ever has.12

10. Art. XXIV (2), T.I.A.S. 3862.

12

11. See Metzger, U.S. Commercial Treaties and Private Investment, 19 Fed. Bar J. 367 (1959); Walker, Modern Treaties of Friendship, Commerce and Navigation, 42 Minn. L. Rev. 805 (1958). 12. There has never been any international litigation under Article XXIV or comparable provisions of the commercial treaties. In the few cases in which it has been alleged that the United States has acted inconsistently with commitments in the commercial treaty, the United States has either disagreed on the basis of its interpretation of the particular provision involved, or has freely admitted the violation. See Department of State Press Release No. 339, June 20, 1956, in which The Legal Adviser, Herman

Lastly and most importantly, the very fact that a security exception is considered necessary in a relatively non-political commercial treaty indicates a fortiori its desirability in a submission to general adjudications in any field, including the most sensitive, by a Court whose jurisdiction under the statute is limited only to "questions of international law" and whose decisions are binding upon members of the United Nations (Art. 94, U.N. Charter). Such questions of law may be intertwined with large political, military and economic matters and a decision on the legal question may have important and undesirable effects on the position of nations in these large matters. Just as war is too important, according to Clemenceau, to leave to the generals, countries have regarded and will undoubtedly continue to regard many international matters as too vital to leave to lawyers.

The Friendship Commerce, and Navigation Treaty security exception is not unique, having been duplicated in even wider terms. Thus, Article XXI of the General Agreement on Tariffs and Trade states that:

Nothing in this Agreement shall be construed . . .

b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests,

(iii) taken in time of war or other emergency in international relations; . . .13

These international agreements are examples of what is appropriate and what is not by way of curtailing nations' freedom of action in the world today. It is appropriate to undertake commitments to refrain from engaging in discriminations against another country's trade and commerce in principle and in order to secure fair treatment for one's own trade. Apart from such commitments, such discriminations can be engaged in lawfully by any nation. Nations and peoples benefit from the increased commerce which flows from a non-discrimination regime in higher standards of living and mutually beneficial intercourse. It is peculiarly appropriate to frame these obligations as concretely as possible, basing them upon ascertainable standards of behavior, so that countries can know with a high degree of accuracy what they are and what they are not obliged to do. It is inappropriate however, to refuse to recognize the possibility that the overriding concern of any nation—to exist as such-may be adversely

Phleger, stated with respect to a formal protest against violation of the commercial treaty by a South Carolina statute discriminating against Japanese textiles: "There can be no doubt that its [Japanese Government's] position is well founded."

13. Dept. of State Publication 6629, p. 44.

affected even by such a concrete commitment in circumstances which cannot be known in advance. It is thus inappropriate to force upon a country the alternative of no security exception or no agreement. It will either refuse an agreement, to the detriment of sensible international relations, or it will violate or evade or "write in" a security exception when a security circumstance impels it.1 Neither result is helpful to the "rule of law" or to sensible relationships.

If this is sensible so far as substantive treaty commitments are concerned, as practice since World War II by a very large number of countries attests, why isn't it sensible so far as the Court's compulsory adjudicative process is concerned? It would not appear to serve the purpose of expansion of the Court's role as an arbiter of a larger number of international disputes,15 to present countries with the alternative of no security exception or no submission, any more than it would have been wise to do so in the area of tariffs and trade. In fact it would appear even more desirable that a security exception such as is contained in the present French submission be emulated by present declarants to the Court's jurisdiction and explained to the large number of countries which have not hitherto submitted, precisely in order to allay their fears that their security interests might be adversely affected by the open-end commitment of Article 36 (2) of the statute, a commitment that encompasses any question of

14. See Opinion of Acting Attorney General Biddle with respect to International Load Line Convention (47 Stat. 2228), 40 Op. A.G. 119 (Opinion of July 28, 1941). The Load Line Convention, which limited the degree to which ships may be loaded, did not contain any security exception nor did it otherwise in terms limit its application to "peacetime" conditions. The Acting Attorney General nevertheless was of the view that peacetime commerce was "a basic assumption of the treaty", and that since "the present situation with respect to shipping is a wholly different one," the United State had "the unquestioned right" to suspend the application of the treaty. President Roosevelt thereupon, on Aug. 9, 1941, proclaimed the Convention "suspended and inoperative in the ports and waters of the United States of America, and in so far as the United States is concerned, for the duration of the present emergency." 6 Fed. Reg. 3999. 15. The larger question of the Court's proper role in this area is not here discussed. See Metzger, Settlement of International Disputes by Non-Judicial Methods, 48 A.J.I.L. 408 (1954) where it is suggested that this role is and will continue to be marginal. The major multilateral international instruments negotiated since 1944 which involve substantial commitments of money or materials, reserve dispute-settling among members exclusively to an administering Council of member government representatives (in some agreements the name is Board of Governors, etc.) established by the agreement itself, which decides such disputes by weighted voting, the weight determined largely by the size of a country's commitment of money or materials. The Council's decision is final, with no appeal to the Court or to anyone else. The following agreements so provide: International Monetary Fund, International Bank for Reconstruction and Development, International Wheat Agreement, International Sugar Agreement, International Tin Agreement, Inter-American Development Bank, and the recently-negotiated International Development Association.

international law whether it is enmeshed with a political, or a military or an economic matter. It is as unreal to imagine expansion of compulsory jurisdiction to a wider group of countries without a security exception as it is to imagine that they will invoke it every time they are made defendants before the Court. Those who insist that a security exception would lead to effective nullification because it would be invoked in key cases are in the position of wanting all or nothing. It is clear they will not get all. Moreover, even if it could be imagined that they might get an unrestricted submission in words, they would lose it in deeds whenever the shoe pinched tight. This, among its other manifold defects, would be committing the basic error in the diplomatic arena-failing to be frank and clear in your expectations and in what is expected of you. It would be a retrograde step in the development of healthy international relations and law.

*Professor of Law, Georgetown University Law Center; recently Assistant Legal Adviser for Economic Affairs, Department of State; Member of Bar of New York and Supreme Court of the United States; of counsel to the United States in the Interhandel Case (Switzerland v. United States of America) in the International Court of Justice. A.B. 1936, LL.B. 1938, Cornell University.

By

OHN PAUL JONES in his famous letter "Qualifications of the Naval Officer" wrote the following concerning the need of a knowledge of the principles of International Law.

The naval officer should be familiar with the principles of International Law, and the general practice of Admiralty Jurisprudence, because such knowledge may often, when cruising at a distance from home, be necessary to protect his flag from insult or his crew from imposition or injury in foreign ports.

Through the years of the square rigger, the iron clad and the battleship this advice has proved sound and timely.

What of this need of familiarity in today's world? Can Commanding Officers now rely on our instantaneous communication systems to ask for and receive guidance concerning decisions involving international relations? Is this particular qualification of a naval officer now merely a quaint, historical euphemism, void of meaningful implications in this time-space age?

We need only consider the steady, rapid march of our weapon system development to appreciate the timelessness of John Paul Jones's advice. Today, the response to military challenges at sea requires the immediate and rapid application of available naval weapons. Launch orders for missiles or aircraft must issue as a result of instantaneous decisions if the capacity to destroy is not to vanish within the minute of hesitation. Today there is no time to signal "what'll I do now."

THIS IS PARTICULARLY true in the "pursuit" situations. Even with a satellite relay communication system, the Commanding Officer will not have time to receive directions. With the present speed of the tactical picture, the

*Commander John R. Brock, U.S. Navy, is the Assistant Director of the International Law Division, Office of the Judge Advocate General. Commander Brock received his AB in 1941 and his LLB in 1948 from the George Washington University. He is a member of the Virginia State Bar, the United States Supreme Court, Court of Military Appeals and of the American Bar Association.

opportunity of pursuit can be lost in the instant of delay.

Yet, even when time is of the essence, our naval might cannot operate by international lawlessness. One of the greatest assets of seapower is its capability of supporting our international policies with pressures applied as the situation dictates but within established rules of international conduct.

During the Korean hostilities the term right of “hot pursuit" became fashionable. By a logical comparison to the right of a policeman to pursue a felon beyond the bounds of his jurisdiction when the pursuit is "hot", one was apt to assume that this well known international doctrine permitted a like pursuit upon the high seas. This is not so. Logic does not substitute for familiarity and knowledge. Such a misunderstanding of the doctrine of hot pursuit could lead to lawlessness and subsequent damage to the national policy.

Let us first precisely define the term hot pursuit and then look for other principles that may have application to pursuing the "felon". The long established doctrine of hot pursuit was recently codified at Geneva in 1958 where the major maritime nations of the world agreed upon certain rules concerning the high seas. Here the general ground rules concerning hot pursuit were set forth.

The elements of this doctrine are seven in number. Unless all of these elements are present the right of hot pursuit does not exist.

1. The "hot pursuit" of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State.

2. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the contiguous one of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.

3. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone

receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone.

4. If the foreign vessel is within a contiguous zone as distinguished from the territorial sea, the pursuit may only be undertaken if it has been a violation of the rights for which that zone was established.

5. The right of "hot pursuit" ceases as soon as the ship pursued enters the territorial sea of its own country or of a third State.

6. "Hot pursuit" is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship are within the limits of the territorial sea, or as the case may be within the contiguous zone.

7. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.

THE DOCTRINE OF Hot Pursuit is internationally recognized as the right of a coastal State to pursue commercial vessels of a foreign State suspected of violating the laws or regulations of the coastal State applicable to its territorial sea or contiguous zone. Hot pursuit is generally considered as a peacetime concept not connected with hostilities or the threat of hostilities by the military forces of a State. Pursuit under this doctrine does not include the right to pursue warships or military aircraft.

Hot pursuit may commence within the territorial sea for a violation of any law or regulation enacted pursuant to the sovereign authority of the coastal State. Hot pursuit can commence only for a violation occurring within the contiguous zone of laws covering customs, fiscal, immigration or sanitary matters.

The right of "hot pursuit" may be exercised only by warships and ships on government service specially authorized by the flag state to that effect. It is quite natural that customs and police vessels should be able to exercise the right of "hot pursuit", but government ships on commercial service cannot claim that right.

The ship finally arresting the ship pursued need not necessarily be the same as the one which began the pursuit, providing that it has joined in the pursuit and has not merely affected an interception.

A ship pursued by aircraft should have been ordered to stop while it was still in the territorial sea or the contiguous zone. The aircraft must be in a position to give a visible and comprehensible signal to that effect.

The International Law Commission, which drafted Article 23 of the High Seas Convention

on hot pursuit recommended that the pursuing ship or aircraft should establish the position of the ship pursued at the moment when hot pursuit commences and that wherever possible mark this position by physical means, for example, by dropping a buoy.

Hot pursuit by aircraft is a new concept which emerged from the 1958 Geneva Conference on the High Seas. The aircraft giving the order to stop, must itself actively pursue the ship until a ship or aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest on the high seas that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption.

THE USE OF more force than necessary to apprehend a vessel for violation of contiguous zone regulations such as smuggling of intoxicating liquors, etc., is considered as unjustified. Although this principle was established in an old case occurring in 1929 the "I'm Alone" case it is still one to remember. The "I'm Alone", built and registered in Canada was sunk by the U.S. Coast Guard vessel Dexter on March 22, 1929 more than 200 miles from the coast of the U.S. with resulting loss of life. The cargo consisting of intoxicating liquors, and valued at $125,457 was lost. The destruction of the vessel was the climax of the pursuit initiated by the United States Coast Guard cutter Wolcott on March 20, 1929, when the "I'm Alone" was within one hour's sailing distance from the coast of the United States but outside of the territorial waters of the U.S. The Dexter joined in the pursuit on March 22. The schooner was fired upon and sunk because of the refusal of the commander to heave to.

IT IS OBVIOUS that the doctrine of hot pursuit is a doctrine of limited scope. It is not a right which gives a blank check to seapower. Hot pursuit has no application to self-preservation. But this is only half the story. International law does recognize the right of a state or of men of war to take whatever measures are necessary in self-defense. Our fleets and task forces and our submarines, ships and aircraft on independent duty, may repel or resist a hostile act committed or threatened by foreign vessels, aircraft or missiles. This right includes the right of pursuit if pursuit is consid

ered necessary to insure the safety of the threatened forces or territory.

This right of pursuit is a part of the right of self-preservation recognized by the Charter of the United Nations in Article 51 and in the numerous defense defense organization agreements which the United States has concluded with other nations of the world. The application of this right of self-preservation will depend, of course, upon the particular facts of each situation.

International law does not require a naval force at sea in time of peace to await the first blow before it can resort to its weapons at hand. Action occasioned by attack or fear of attack can be taken at anytime an opposing ship, aircraft or submarine is in a position to inflict great harm and is manifestly of hostile intent. As is apparent, this concept of self-preservation encompasses an area of broad authority for the naval commander. Even however during times of stress or threatened hostilities he is required by international law to exercise sound judgment and not extend the concept of right of pursuit beyond the bound of reasonableness. Of course, reasonableness is an elastic term; what is reasonable will be judged in the context of the stresses of the times and the peculiar situations at hand.

CONSIDER THE FOLLOWING actual situations which occurred during June of 1959 at approximately 1000 edt on 23 June 1959, an Air Force C-47 stationed at Patrick Air Force Base enroute from San Juan, Puerto Rico, to Guantanamo Bay, Cuba, in accordance with an authorized flight plan was intercepted in the Windward Passage between Cuba and Haiti over international waters by a Dominican Republic P-51. The Air Force C-47 was passing north of the Dominican Republic at a distance of 10-15 miles. A P-51 pilot flew in formation with the C-47 off the left wing, lowered his wheels and pointed down. At a distance of some 100 miles from the Dominican coast, the P-51 fired a short burst parallel to the C-47, and indicated to the pilot by hand signal to make a 180° turn and the C-47 was escorted to within one half hour of Ciudad, Trujillo. The C-47 pilot contacted Ramey Air Force Base for instructions and was advised to land as directed in the Dominican Republic. The landing was accomplished at Ciudad, Trujillo. Subsequently the C-47 took off at 1255 EDT enroute to Guantanamo Bay where it landed. At no time did the C-47 pass over Dominican Republic territory

prior to being intercepted.

On June 22, the United States registry merchant ship, SS Florida State, was spotted by the Dominican Air Force some 5 miles north of the Dominican Republic. A firing pass was made across the bow of the vessel and a Dominican Republic patrol craft was called to the scene to investigate. A shot across the bow was fired by the patrol craft which later inquired as to casualties and damages and then allowed the vessel to proceed.1

Although the U.S. did not formally protest these incidents, the U.S. Ambassador pointed out to the Dominican Secretary of State for Foreign Affairs that while the United States was aware of the tensions that were prevailing at the time of the interceptions, it nevertheless hoped that measures would be taken by the Dominican Republic to prevent other incidents of this nature. Dominican representatives pointed to the fact that invasion ships along their northern coast had flown American flags and that this was the reason for the Government being so concerned about the appearance of planes and vessels so close to their shores.

The Florida State incident occurred only two days after the invasion of the Dominican Republic by ships falsely flying the flag of the United States. Florida State apparently failed to respond to semaphore signals that were made to it repeatedly asking for its identification. Can these situations be fitted into the doctrines of hot pursuit or right of pursuit?

Using these principles of hot pursuit as a touch stone it is apparent that this doctrine applied neither to the Florida State or the C-47.

It is also true that the doctrine of the right of pursuit could not be applied in these cases.

What of the passage of the Florida State through a contiguous zone and of the C-47 through an identification zone. The establishment of identification zones for aircraft is considered to be a reasonable application of the doctrine of self-defense. The Dominican Republic had established a thirty-mile identification zone for aircraft.

The P-51 fired at the C-47 seventy miles beyond the identification zone of the Dominican Republic. Notwithstanding the fact that the C-47 had entered this identification zone of the Dominican Republic, it was not within this zone at the time of firing. Like the Florida State, the C-47 lacked the appearance of being hostile. Lacking hostile manifestations, the application of the doctrine of right of pursuit was neither (Continued on page 24)

1. N.Y. Times, June 25, 1959, p. 1, col. 2.