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Innocent passage in the Black Sea?

SOVIET naval vessels on Feb. 11 deliberately sideswiped two United States naval vessels sailing within the 12-mile ``territorial sea'' claimed by the Soviet Union off the Crimean Peninsula in the Black Sea. The US passage was reportedly planned in Washington as a political act, an ``innocent passage'' within US rights under the international law of the sea.

The US position is wrong in law and will be seen by US allies as foolish policy.

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The current Soviet 12-mile limit traces back at least as far as czarist Russian fisheries claims in 1911. The US three-mile limit of the time is irrelevant; US objections could not make law for the Russians any more than Russian assertions could make law for the US.

The US, quite unnecessarily and very publicly, acknowledged the validity of North Korea's 12-mile claim in 1967. The US asserted that the voyage of the eavesdropping ship, the USS Pueblo, was governed by the general law of the sea and not by the Panmunjom Armistice Agreement; that passive eavesdropping did not justify military counteraction in ``self-defense''; and that the North Korean taking of the ship was illegal, primarily because the action occurred more than 12 miles from the Korean coast.

The issue of the seaward extent of territorial areas was more or less resolved in favor of coastal state discretion up to 12 miles by the practice of states; this was ultimately codified in article 3 of the 1982 Law of the Sea Convention. The treaty has not been ratified by the USSR or the US. Yet its territorial sea provisions are usually regarded as declaratory of the legal views of maritime states in their claims and diplomatic correspondence. This includes the US's exclusive fisheries claim; it went to 12 miles in 1966 and has been enforced since 1976 out to 200 miles from the US coast.

Since 1976, all Soviet, Japanese, and other foreign fishing vessels acting within the US 200-mile limit have done so with formal permission or been subject to arrest. The US does not object to the ``innocent passage'' of foreign non-fishing vessels hovering up to 3 miles off the US coast for some purposes, 12 miles for others, eavesdropping freely even when in port. US silence is usually regarded as a policy decision.

Assuming no serious doubt about the legality of the Soviet 12-mile limit, what are foreign warship passage rights? The World Court focused on the question in 1949 when British warships exercised a right of ``innocent passage'' through Albanian territorial waters in the Corfu Channel. But the British case focused on the ``international'' character of that channel. It appears to have been conceded by the British and assumed by the Court that the rules permitting ``innocent passage'' apply only when there is reason for the passage other than naval exercises or display of the flag. In the Black Sea incident there was no such reason. Thus there is a serious question as to whether a military passage, not in a normal sea lane, qualifies as ``innocent'' under general law before the 1982 Convention.

The evolution of the law after 1949 offers no help. The US interpreted the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone in the 1967 Pueblo incident by volunteering that passive eavesdropping by a barely-armed auxiliary vessel would have justified its capture if done within 12 miles of the coast. This position was then adopted in the 1982 Law of the Sea Treaty; excluded from that definition of ``innocent passage'' was ``any act aimed at collecting information to the prejudice of the defense or security of the coastal state.''

Passive eavesdropping has never been considered a threatening act justifying self-defense when done from land. Thus the legal threshold for Soviet counteraction is much lower than ``self-defense.'' If the radio shacks of the US warships were listening to anything from the coastal state not directly aimed at them, if the officers on the bridge were scanning the land, or if, in the language of the Geneva Convention, ``any other activity not having a direct bearing on passage'' was involved, the passage was not ``innocent.'' Indeed, once the US admitted that the purpose of the passage was political, it is doubtful that its ``innocence'' in terms of the 1982 Convention and the general law of the sea could be convincingly argued.

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Under the Law of the Sea Treaty, the coastal state ``may take the necessary steps in its territorial sea to prevent passage which is not innocent.'' An argument might be raised that the onus should be on the coastal state to show that some prohibited activity is taking place; it is doubtful that the US or any other coastal state would accept such a restriction on its policing of such waters.

In sum, the US seems to be asserting ``rights'' the British declined to assert in 1949 and the US denied to itself in 1967; such ``rights'' were withheld from the 1958 and 1982 codifications of the law of the sea and would almost certainly be rejected by any objective tribunal today. Only two years ago in the Gulf of Sidra the US gave Libya a self-defense rationale to obstruct US use of a disputed sea area and confused a forced incursion into Libya's claimed territorial waters with freedom of navigation on the high seas.

It is time to question the quality of legal counsel and the political sense of the naval operations planners involved. The US and the free world need better than this.

Alfred P. Rubin, formerly Charles H. Stockton professor of international law at the US Naval War College, is a professor of international law at the Fletcher School of Law and Diplomacy, Tufts University.