Admiralty-LOS.11 May 16, 2014 FINAL DRAFT
THE INTERFACE OF ADMIRALTY LAW AND OCEANS LAW
George K. Walker*
Lawyers practicing admiralty and maritime law must be aware of oceans law, i.e.
, the international law of the sea, and general international law, as they apply to their clients.
1
A recent United States District Court opinion in Tarros S.p.a. v. United States
2 is but one example
1
U.S. admiralty lawyers were once known as proctors in admiralty, as distinguished from attorneys at law or counselors in equity. My 1967 admission to the U.S. District Court for the Eastern District of Virginia recites this. Today the distinction is gone, except in organizations like the Maritime Law Association of the United States (MLA), the U.S. national affiliate of the
Comite Maritime Internationale (CMI), sponsor of treaties governing admiralty practice. See also infra note 171 and accompanying text. I am an MLA Proctor member. Today lawyers may advertise their services; previously two specialties – patents and trademarks, and admiralty lawyers – could do so. Compare ABA, Canons of Professional Ethics, canon 27 (1909, amended
1951) with id.
, Model Rules of Professional Conduct, R. 7.2, 7.4(c) (2013). U.S. admiralty practice has always had an international perspective, sometimes with a civil law ancestry.
English admiralty lawyers were known as civilians; some early English admiralty law had civil law roots; the High Court of Justice originally had a Probate, Admiralty and Divorce Division, for the “wrecks of ships, wills and marriages,” because all three bodies of law had Roman (civil) law roots. U.S. admiralty jurisdiction is more extensive than what English courts had, due to
U.S. Const., art. III § 2's extending U.S. courts’ competence “to all Cases of admiralty and maritime jurisdiction.” See also Judiciary Act of 1789 § 9, reenacted as 28 U.S.C. § 1333(1)
(2012); New England Mut. Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 21 (1870), approving Justice Joseph Story’s “learned and exhaustive” opinion in De Lovio v. Boit, 7 F.Cas.
418 (C.C.D. Mass. 1815) (No. 3776). Admiralty law can be a mix of comparative law as well as public international law, cf., e.g.
, The China, 74 U.S. 53 (1869) (analysis of English, U.S.
pilotage law, general civil law principles). For a U.S. practitioner, there are other analyses, the place of the law of the 50 states of the Union in U.S. admiralty law, cf.
, e.g.
, Yamaha Motor
Corp. v. Calhoun, 516 U.S. 199, 206-14 (1996) and a later decision, Calhoun v. Yamaha Motor
Corp., 216 F.3d 338, 342-51 (3d Cir. 2000) (“maritime but local” doctrine); and state court litigation under 28 U.S.C. § 1333(1)’s saving to suitors clause but applying federal admiralty law, cf., e.g., Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959)
(collecting cases). None of these features of admiralty law – scope of admiralty jurisdiction, or a possibility of applying local, i.e.
state law – are directly at stake in this analysis, but U.S.
admiralty attorneys are aware of these problems.
2
Tarros S.p.a. v. United States, 2014 A.M.C. 50 (S.D.N.Y. 2013).
1

of interface issues admiralty lawyers, whether in the private or public sectors, may confront.
This article tries to analyze some of these intricate relationships.
Part I dives into the relationship of national admiralty law and oceans law in Part I; Part
II offers a broader view of general international law issues as they may apply to admiralty cases.
Although the focus is mostly on admiralty and maritime law of the United States as it relates to international law, these observations may be relevant for admiralty practitioners in other countries.
I. National Admiralty Law and General Oceans Law
The 1958 and 1982 law of the sea conventions have two subtle but important exceptions to their application. The first is the “other rules” clauses in these agreements, which declare that they are subject to other rules of international law, 3 the traditional view being that the clauses
3 The phrase varies slightly in the treaties. U.N. Convention on the Law of the Sea
(hereinafter UNCLOS), pmbl., arts. 2(3) (territorial sea); 19, 21, 31 (territorial sea innocent passage); 34(2) (straits transit passage); 52(1) (archipelagic sea lanes passage; incorporation by reference of Articles 19, 21, 31); 58(1), 58(3) (EEZ); 78 (continental shelf; coastal State rights do not affect superjacent waters, i.e., territorial or high seas; coastal State cannot infringe or unjustifiably interfere with "navigation and other rights and freedoms of other States as provided in this Convention"); 87(1) (high seas); 138 (the Area); 293 (court or tribunal having jurisdiction for settling disputes must apply UNCLOS and "other rules of international law" not incompatible with UNCLOS); 303(4) (archeological, historical objects found at sea, "other international agreements and rules of international law regarding the protection of objects of an archeological and historical nature"); Annex III, art. 21(1), Dec. 10, 1982, 1833 U.N.T.S. 3, 397; Convention on the High Seas, art. 2, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82 (hereinafter High Seas
Convention); Convention on the Territorial Sea and Contiguous Zone, arts. 1(2), 22(2), Apr. 29,
1958, 15 U.S.T. 1606, 516 U.N.T.S. 205 (hereinafter Territorial Sea Convention). Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 478, 499 U.N.T.S. 311 (hereinafter
Continental Shelf Convention) and Convention on Fishing and Conservation of the Living
Resources of the High Seas, Apr. 29, 1958, 17 U.S.T. 138, 559 U.N.T.S. 285 (hereinafter Fishing
Convention) do not have other rules clauses, but they declare that waters within their competence are high seas areas. Continental Shelf Convention, supra art. 3; Fishing
Convention, supra arts. 1-2. The same is true for the contiguous zone next to the territorial sea; beyond the territorial sea, the contiguous zone is a high seas area. UNCLOS, supra art. 33(1);
2

mean the law of armed conflict.
4
In situations where treaties other than the law of the sea conventions would apply, the law of treaties would say that the treaty norms may be suspended or, under the older view, terminated because of armed conflict.
5
In the United States the
Territorial Sea Convention, supra art. 24(1). See also High Seas Convention, supra art. 1, defining “high seas” as all parts of the sea not included in a State’s territorial sea or internal waters. Agreement Relating to the Implementation of Part II of the United Nations Convention on the Law of the Sea of 10 December 1982, July 28, 1994, 1836 U.N.T.S. 3, 42 amends
UNCLOS, supra but is not relevant to the ensuing analysis.
4
There is a view that the clauses may have a more expansive meaning in certain
UNCLOS, supra note 3, contexts. George K. Walker, gen. ed., Definitions for the Law of the
Sea: Terms Not Defined by the 1982 Convention 267-72 (2012).
5 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331
(hereinafter Vienna Convention) does not recite rules when treaties apply during armed conflict.
See id. art. 73. International law is in disarray on whether war terminates or suspends treaties.
Modern sources, citing pacta sunt servanda ( cf. id. art. 26), emphasize suspension for the duration of a conflict. Id . art. 60(5) declares that breach of a treaty governing humanitarian law protecting the human person is not subject to the usual treaty breach rules. The Convention does not address the core issue of general treaty application, nonapplication, or suspension. Parties might invoke impossibility of performance or fundamental change of circumstances, cf. Vienna
Convention, supra , arts. 61-62. See generally Gabcikovo-Nagymoros Project (Hungary v.
Slovakia), 1997 I.C.J. 7, 64 (hereinafter Project Case) (confirming Fisheries Jurisdiction [U.K. v.
Ice.], 1973 I.C.J. 3, 63 ruling that Vienna Convention art. 62, supra codifies custom);
International Law Commission, Report on the Work of Its Eighteenth Session, U.N. Doc.
A/6309/Rev.1 (1966), reprinted in 2 (1966) Y.B. Int’l L. Comm’n, U.N. Doc.
A/CN.4/Ser.A/1966/Add. 1, at 160, 236, 256-58, 267 (1966); Anthony Aust, Modern Treaty Law and Practice 10-11, 158-60, 257-68, 271-72 (3d ed. 2013); 2 Oliver Corten & Pierre Klein eds.,
The Vienna Conventions on the Law of Treaties: A Commentary 1654-59); James Crawford, Ian
Brownlie’s Principles of Public International Law 377, 390-94 (8th ed. 2012) (reporting 2011 adoption of International Law Comm’n, Draft Articles, Report on the Work of Its 66th Session,
U.N. Doc. A/66/10, at 173-217 [Supp. No. 10, 2011]); Louise Doswald-Beck, Human Rights in
Times of Conflict and Terrorism 192-93 (2011) (noting problem of non-international armed conflicts); 5 Hackworth, Digest § 513, at 390; compare Institut de Droit International, The
Effects of Armed Conflicts on Treaties , Aug. 28, 1985, 61(2) Annuaire 278 (1980) with id.
,
Regulations Regarding the Effect of War on Treaties , 1912, 7 Am. J. Int’l L.153 (1913);
Research in International Law of the Harvard Law School, Law of Treaties: Draft Convention with Comment , art. 35, 29 id. 663, 664 (1935 Supp.); Robert Jennings & Arthur Watts,
Oppenheim’s International Law §§ 584, 649-51, 655 (9th ed. 1992); Lord McNair, The Law of
Treaties chs. 30, 35-36, 42, 43 (1961); 2 Lassa Oppenheim, International Law § 69 (Hersch
Lauterpacht ed. 1955); Restatement (Third) of the Foreign Relations Law of the United States §§
3

Executive decides if an international agreement is no longer in effect under the law of treaties.
6
And even if no treaty applies in a given situation, i.e.
, that the customary law of the sea would apply, the law of armed conflict as a lex specialis would be an exception to the general law.
7
321, 335-36 (1987) (hereinafter Restatement); Ian Sinclair, The Vienna Convention on the Law of Treaties 6, 163, 165, 188-96 (2d ed. 1984); Herbert W. Briggs, Unilateral Denunciation of
Treaties: The Vienna Convention and the International Court of Justice, 66 Am. J. Int’l L. 51
(1974); Doswald-Beck & Sylvain Vite, International Law and Human Rights Law , 1993 Int’l
Rev. Red Cross 94; G.G. Fitzmaurice, The Judicial Clauses of the Peace Treaties , 73 R.C.A.D.I.
255, 312 (1948); Cecil J.B. Hurst, The Effect of War on Treaties , 2 Brit. Y.B. Int’l L. 37 (1921);
Richard D. Kearney & Robert E. Dalton, The Treaty on Treaties , 64 Am. J. Int’l L. 495, 557
(1970); David Weissbrodt & Peggy L. Hicks, Implementation of Human Rights and
Humanitarian Law in Situations of Armed Conflict , 1993 Int’l Rev. Red Cross 120. Some treaties say whether they are in force during war, e.g.
, Convention on International Civil
Aviation, art. 89, Dec. 7, 1944, 61 Stat.1180, 15 U.N.T.S. 295 (in force during armed conflict)
(hereinafter ICAO Convention). The U.S. Department of State and U.S. courts have declared that parts of the Vienna Convention, supra , not in force for the United States, restate customary international law or are an authoritative guide. See, e.g., Introductory Note , 1 Restatement, supra at 144-45.
6 Charlton v. Kelly, 229 U.S. 447, 469-75 (1913) (political branches must decide if there has been a treaty breach, the international obligation remains until they do; absent a decision, courts must enforce treaty); Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252
(1984) (parties cannot invoke rebus sic stantibus, i.e.
, fundamental change of circumstances, for
States parties to a treaty); Goldwater v. Carter, 817 F.2d 697, 706 (D.C. Cir.) (executive must decide if United States considers fundamental change of circumstances has occurred; courts cannot under Separation of Powers doctrine) (per curiam), vacated , 444 U.S. 996 (1979).
7 High Seas Convention, supra note 3, pmbl. declares its terms are “generally declaratory of established principles of international law.” Since id. art. 2 recites that high seas freedoms are subject to other rules of international law, it follows that at least the high seas were subject to the law of armed conflict as part of the international customary lex specialis in 1958. R.R. Churchill
& A.V. Lowe, The Law of the Sea 15 (3d ed. 1999); 1 D.P. O’Connell, International Law of the
Sea 385, 474-76 (1982). Before States began ratifying UNCLOS, supra note 3, and before and after the breakup of the USSR and Yugoslavia and the unification of Germany, 66 countries became High Seas Convention, supra parties. United States Department of State, Treaties in
Force: A List of Treaties and Other International Agreements of the United States in Force on
January 1, 2012, at 423 (2013) (hereinafter TIF). Treaty succession principles suggest that more than 66 States may be Convention parties, unless they ratified UNCLOS; its art. 311(1) declares
UNCLOS supersedes the High Seas Convention, supra as between parties to both. See also
Vienna Convention on Succession of States in Respect of Treaties, Aug. 23, 1978, 1946
U.N.T.S. 3 (hereinafter Succession Convention); Project Case, supra note 5, 1997 I.C.J. at 71
4

The demise of Mommar Ghaddaffi’s regime in Libya in 2011 is one example of how admiralty rules may be intertwined with general oceans law.
In the Libya crisis, certain countries, e.g.
, the United States, froze Libyan assets.
8
Some of these may or could have involved shipping or payment for ocean carriage. If so, this directly affected oceans trade; the freeze orders were valid as proportional economic reprisals 9 to compel
(Succession Convention, supra , art. 12 reflects custom); Aust, supra note 5, ch. 21; Corten &
Klein, supra note 5, at 1646-49 (Vienna Convention, supra note 5, art. 73, declares id . does not recite treaty succession rules); Crawford, supra note 5, at 438-43; Jennings & Watts, supra note
5, § 62, at 211-13; Restatement, supra note 5, § 210 (generally reflects Succession Convention, supra rules); Sinclair, supra note 5, at 6; Symposium, State Succession in the Former Soviet
Union and in Eastern Europe , 33 Va. J. Int’l L. 253 (1993); George K. Walker, Integration and
Disintegration in Europe: Reordering the Treaty Map of the Continent , 6 Transnat’l Law 1
(1993). Few States have ratified the Succession Convention, supra . United Nations Office of
Legal Affairs, Status of Treaties, Multilateral Treaties Deposited with the Secretary General ch.
23, at 2 (May 18, 2014), http://treaties.un.org/Pages/DB.aspx?path=DB/MTDSG/page1_en.xml
(hereinafter Multilateral Treaties).
8 Exec. Order No. 13566 (Feb. 25, 2011), 76 Fed. Reg. 11315 (Mar. 2, 2011) (freeze, block on assets in United States, prohibiting certain transactions with Libya).
9 Most commentators say use of force as a reprisal during situations not involving armed conflict violates international law. Project Case, supra note 5, 1997 I.C.J. at 54; Military &
Paramilitary Activities in & Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 127 (hereinafter
Nicaragua Case); Declaration on Principles of International Law Concerning Friendly Relations
& Co-Operation Among States in Accordance with the Charter of the United Nations, Principle
6, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (1970);
International Law Commission, Draft Articles on State Responsibility for Internationally
Wrongful Acts, arts. 22, 49-54 in Report of the International Law Commission, 53d Sess., U.N.
Doc. A/56/10 (2001) (hereinafter ILC Draft Articles), commended to States by U.N. General
Assembly Resolution 56/83, ¶ 3 (Dec. 12, 2001); Roberto Ago, Addendum to Eighth Report on
State Responsibility , U.N. Doc. A/CN.4/318 & Add. 1-4, Y.B. Int’l L. Comm. 13, 69-70 (1981);
D.W. Bowett, Self-Defence in International Law 13 (1958); J.B. Briefly, The Law of Nations
401-02 (Humphrey Waldock ed., 6th ed. 1963); Ian Brownlie, International Law and the Use of
Force by States 281 (1963), 2 Oppenheim, supra note 5, §§ 43, 52a; Julius Stone, Legal Controls of International Conflict 286-97 (1959 rev.); A.R. Thomas & James C. Duncan eds., Annotated
Supplement to the Commander's Handbook on the Law of Naval Operations, ¶¶ 6.2.3, 6.2.3.1
(Nav. War C. Int'l L. Stud., v. 73, 1999) (hereinafter Thomas & Duncan); D.W. Bowett,
Reprisals Involving Recourse to Armed Force , 66 Am. J. Int’l L. 20 (1972); David Caron, The
ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and
5

Libya to comply with international law. They were unquestionably valid under the U.S.
National Emergencies Act and the International Emergency Economic Powers Act
10
and therefore binding as national law on U.S. shipping and related interests, e.g.
, transmission of international letters of credit, bills of lading, etc., related to shipping.
At about the same time the European Union issued similar restrictions.
11 These controls did not directly affect U.S.-based interests, but they shut down EU members’ economic relations with Libya in the same way. U.S. and other States’ maritime interests were affected, to the extent that their trade networks with EU members meshed with the EU restrictions.
The U.S. and EU restrictions can also be seen as valid reprisals, not involving the use of force.
12 In both cases these restrictions could also be seen as exceptions under “other rules of law” principles applying to the usual free transport of goods on the seas.
13
In either case admiralty lawyers had to be aware of, and to advise their clients of, these restrictions. For U.S. interests, the President’s executive order was mandatory if it applied to those them, even if there was no direct applicability to a lawyer’s clients, he or she had to take
Authority, 96 Am. J. Int’l L. 857, 858 (2002) (criticism of ILC Draft Articles, supra ); Rosalyn
Higgins, The Attitude of Western States Toward Legal Aspects of the Use of Force , in Anthony
Cassesse, The Current Legal Regulation of the Use of Force 435, 444 (1986); cf. UK Ministry of
Defence, The Manual of Armed Conflict ¶¶ 16.16-16,17 (2004) (hereinafter UK Manual); but see Yoram Dinstein, War, Aggression and Self-Defence 244-55 (5th ed. 2011) (States can use reprisals involving force during peacetime).
10 50 U.S.C. §§ 1601-51 (2012); 50 U.S.C. §§ 1701-07 (2012), cited inter alia in
President Obama’s Libya freeze order, supra note 8.
11
European Union Council Regulation 204/11, 2011 O.J. (L 58) 1 (Mar. 2, 2011)
(hereinafter EU Council Regulation 204/11).
12
See supra notes 7-11 and accompanying text.
13
See supra note 3 and accompanying text.
6

them into account in advising clients on the developing situation in Libya as well as considering whether the lawyer’s clients had dealings with clients affected by the restrictions.
Another exception to applying general oceans law was U.N. action, and the U.N. Security
Council in particular. After countries like the United States and collective organizations like the
EU acted, the Council voted resolutions to the same effect and added authority for States to interdict Libya-bound shipping.
14 The interdictions, and diverting shipping from Libyan ports,
14
Peace and Security in Africa, S.C. Res. 1970, ¶¶ 9-24, U.N. Doc. S/RES/1970 (2011)
(imposing inter alia arms embargo, travel bans, assets freeze). Resolution 1970, which appeared to forbid arms shipments to the rebels as well as the Gadahafi-led government, had different interpretations. France, which had recognized the rebel government, said it airdropped arms and ammunition to allow safe delivery of essential medical and other relief supplies to the rebels.
David Jolly & Kareem Fahim, France Says It Gave Arms to the Rebels in Libya , N.Y. Times,
June 30, 2011, at A4. Russia protested, saying this violated the embargo. Reuters, Russia Says
France Is Violating Embargo , id., July 1, 2011, at A7. A later Council resolution approved a nofly zone over Libya and authorized “all necessary action” to protect civilians. S.C. Res. 1973,
U.N. Doc. S/RES/1973 (2011). The United States initially led no-fly operations, including destruction of Libya’s air defense systems to insure dominance of the skies over Libya. Tarros
S.p.a. v. United States, 2014 A.M.C. at 51-53; James Foggo, A Promise Kept , U.S. Nav. Inst.
Proc. 24 (June 2012); Jordan J. Paust, Constitutionality of U.S. Participation in the United
Nations-Authorized War in Libya , 26 Emory Int’l L. Rev. 43-45 (2012). The operations then went under North Atlantic Treaty Organization (NATO) command, with some non-NATO countries ( e.g.
, Qatar) contributing, soon thereafter. Some NATO countries declared they would not participate. Italy, a NATO member dependent on Libyan oil, “reluctantly” decided to allow use of its bases and “de facto suspended” a 2008 friendship treaty with Libya. The Arab League supported the resolution. Elisabeth Bumiller & David D. Kirkpatrick, Obama Threatens
Military Action Against Qaddafi , N.Y. Times, Mar. 19, 2011, at A1; Helene Cooper & Steven
Lee Myers, Shift by Clinton Helped Persuade President to Take a Harder Line , id . at A1; Adam
Entous et al., Europe Pressure , Arab Support Helped Turn U.S., Wall St. J., supra at A5; Steven
Erlanger, France and Britain Lead Military Push on Libya , N.Y. Times, supra at A9; Keith
Johnson et al., World Rallies to Curb Gadhafi, Wall St. J., Mar. 19-20, at A1. There were debates about U.S. participation, i.e.
, because of the War Powers Resolution, 50 U.S.C. §§ 1541-
48 (2012), and its time clocks. Charlie Savage & Mark Landler, White House Defends
Continuing U.S. Role in Libya Operation , N.Y. Times, June 18, 2011, at A13 (Congressional criticism); Charlie Savage, 2 Top Lawyers Lose Argument on War Power , id., June 18, 2011, at
A1 (division among Obama administration lawyers). A U.S. House of Representatives resolution overwhelmingly rejected a bill authorizing U.S. military operations in Libya but defeated a bill limiting spending on Libyan operations, following a Senate bill. Jennifer
7

was taken under law of armed conflict rules.
15
This action fell within law of armed conflict principles, i.e.
, within the “other rules” principles excluding application of the law of the sea.
One example was interception of S.S. Vento, a Cyprus-flagged general cargo ship Tarros
S.p.a. headquartered in La Spezia, Italy, chartered for a voyage to Tripoli, Libya with a general cargo of 168 containers. U.S. Stout, a U.S. Navy destroyer and part of the maritime interdiction force operating against the Ghadaffi regime under U.N. Security Council Resolutions and U.S.
Steinhauer, House Refuses Backing on Libya; Won’t Cut Funds, id.
, June 23, 2011, at A1. The
President, faced with the WPR 60-day reporting deadline, wrote Congressional leaders on May
20, 2011 that active military operations had been turned over to NATO leadership and that the
U.S. role had been limited to “non-kinetic support,” offshore weapons that destroyed Libyan air defense systems, search and rescue, and “precision strikes by unmanned aerial vehicles” against
Libyan targets. Paust, supra at 45. The Security Council resolutions had followed practice during the disintegration of Yugoslavia. S.C. Res. 781, U.N. Doc. S/RES/781 (1992) (ban on military flights over Bosnia-Herzegovina); S.C. Res. 787, U.N. Doc. S/RES/787 (1992)
(shipping controls in the Adriatic Sea off former Yugoslavia, on the Danube River). As the
Libyan crisis ebbed but did not end after Ghadaffi’s death, Council resolutions have paralleled
Libya’s slow, halting progress toward stable governance. As has been the case in similar cases, these resolutions often incorporate earlier resolutions by reference, and a complete picture of a situation requires reading all of them. See, e.g., S.C. Res. 2009, U.N. Doc. S/RES/2009 (2011), establishing the U.N. Support Mission in Libya (UNSMIL), modifying the arms embargo and assets freeze, and ending, for the time being, the no-fly zone; S.C. Res. 2016, U.N. Doc.
S/RES/2016 (2011), ending other provisions of Resolution 1973, regarding protection for civilians through regional organizations and ending the no-fly zone; S.C. Res. 2040, U.N. Doc.
S/RES/2040 (2012) and S.C. Res. 2095, U.N. Doc. S/RES/2095 (2013), extending UNSMIL’s authority into early 2014. The EU Council has adopted many regulations modifying EU Council
Regulation 204/11, supra note 11, paralleling the Security Council action. See generally EU
Doc. 2011R0204 - EN - 20.05.2013 0 013.001, at 1 (2014). Presidential Notice of Feb. 23, 2012,
Continuation of the National Emergency with Respect to Libya, 77 Fed. Reg. 11381 (Feb. 24,
2012) continued the national emergency declared under 50 U.S.C. §§ 1701–06, supra note 10, for another year. These later developments point to the need for admiralty counsel to continue to monitor fluid situations to assist clients as a crisis builds and dissipates.
15 See, e.g.
, International Lawyers & Naval Experts Convened by the International
Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed
Conflicts at Sea ¶¶ 121, 135 & cmts. (Louise Doswald-Beck ed. 1995) (hereinafter San Remo
Manual); Thomas & Duncan, supra note 9, ¶ 7.6.1 at 389; UK Manual, supra note 9, ¶¶ 13.92,
13.94, 13.111.
8

law, intercepted Vento and directed her master to proceed to Trapani, Italy, for inspection of her cargo. Eventually Vento proceeded to Malta, escorted by Stout. Vento’s owners then directed the ship to return to La Spezia.
16
Her owner filed a claim with the U.S. Navy, which was denied, and then filed suit against the United States under the Public Vessels Act in the United States
District Court for the Southern District of New York. The Court denied relief under the political question doctrine and the related principle of military discretion related to military operations, also rejecting plaintiff’s claims for binding application of international law through Security
Council Resolutions 1970 and 1973, binding rules under North Atlantic Treaty orders for enforcing the embargo, and rules under the 1982 U.N. Convention on the Law of the Sea.
17
The Libya crisis illustrates two other, in this case concentric, applications of exceptions to general oceans law. First, the Treaty of Lisbon mandates compliance with resolutions coming under EU governance.
18 Second, the U.N. Charter provides for mandatory application of
Security Council “decisions.” 19 U.N. Members must comply with this kind of resolution. Other
16 Tarros S.p.a. v. United States, 2014 A.M.C. at 53-55.
17 Id. 56-78, inter alia citing Public Vessels Act, 46 U.S.C.A. §§ 31101-13 (2012); see also supra note 14 and accompanying text; infra note 26 and accompanying text; North Atlantic
Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243, which has expanded its territorial scope through accessions of 16 other States since 1949. See generally TIF, supra note 7, at 438-40.
18 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, art. 288, 2007 O.J. (C 306) 51.
19 U.N. Charter arts. 25, 48, 94(2), 103; see also 1 & 2 The Charter of the United
Nations: A Commentary 786-854, 1376-84, 1957-71, 2110-37 (Bruno Simma, Daniel-Erasmus
Khan, Georg Nolte, Andreas Paulus eds., Nikolai Wessendorf ass’t ed.., 3d ed. 2012)
(hereinafter Charter Commentary); San Remo Manual, supra note 15, ¶¶ 7-9; Robin R.
Churchill, Conflicts between United Nations Security Council Resolutions and the 1982 United
Nations Convention on the Law of the Sea , in International Law and Military Operations 148-49
(Nav. War C. Int’l L. Stud. v. 84, Michael L. Karsten ed. 2008); W. Michael Reisman, The
Constitutional Crisis in the United Nations , 87 Am. J. Int’l L. 83, 87 (1993) (principles flowing
9

U.N. resolutions, i.e.
, Council resolutions recommending action or calling for action, as well as most U.N. General Assembly resolutions, are not per se mandatory,
20
but they may become binding international law through States’ acceptance of them as customary norms.
21
Thus even in these cases an admiralty lawyer must be aware of the potential impact of them on clients.
There are two more considerations to application of U.N. law. First, some countries, notably the United States, would seem to consider law derived from the Charter as non-selfexecuting, i.e.
, a U.S. authority, often considered to be Congress, for implementing treaties like the Charter 22 but possibly also the President through Article II powers under the Constitution and from Council decisions pursuant to arts. 25, 48, 103 are treaty law binding U.N. Members and override other treaty obligations).
20 U.N. Charter arts. 10-11, 13-14, 33, 36-37, 39-41; see also Sydney D. Bailey & Sam
Daws, The Procedure of the UN Security Council 18-21, 236-37 (3d ed. 1998); Crawford, supra note 5, at 14; Jorge Castenada, Legal Effects of United Nations Resolutions 78-79 (Alba Amoia trans. 1969); Jennings & Watts, supra note 5, § 16; Restatement, supra note 5, § 103(2)(d) & r.n.2; Charter Commentary, supra note 19, at 461-506, 525-66, 1069-85, 1119-60, 1272-1329;
Churchill, supra note 19, at 146-48 (analysis in UNCLOS, supra note 3 context, noting division of authorities).
21 Crawford, supra note 5, at 192-93; Jennings & Watts, supra note 5, § 16; Restatement, supra note 5, § 103; W. Michael Reisman, Acting Before Victims Become Victims: Preventing and Arresting Mass Murder , 40 Case W. Res. Int’l L. J. 57, 72-73 (2007-08), citing Uniting For
Peace Resolution, G.A. Res. 377, ¶ 1, U.N. Doc. A.1775 (Nov. 3, 1950), invoked during the
Korean War to continue U.N. operations after USSR vetoes ended Security Council action;
Legal Consequences of Constr. of a Wall in the Occupied Palestine Terr., 2004 I.C.J. 136, 148-
51 (adv. op. July 9); Certain Expenses of the United Nations, 1952 I.C.J. 151, 163-71 (adv. op.
July 20). See also George K. Walker, The Tanker War 1980-1988: Law and Policy 175-77
(Nav. War C. Int’l L. Stud. v. 74, 2000) (hereinafter The Tanker War).
22 Cf. Medellin v. Texas, 552 U.S. 491, 503-23 (2007). Medellin considered the effect on
U.S. law of International Court of Justice judgments and relevant U.N. Charter and I.C.J. Statute provisions. Medellin did not decide whether all or some other Charter provisions are non-selfexecuting, requiring national law implementation, or if the Executive can implement Charter law under its U.S. Constitutional authority. Those issues remain open for other cases, e.g.
, Tarros
S.p.a. v. United States, 2014 A.M.C. at 69-76, to decide.
10

federal legislation for some situations, must act before the Nation is bound as a matter of U.S.
law.
23
Second, how U.N. law, perhaps implemented through national law, applies to rules embedded in traditional admiralty law, is not always clear.
In recent crises the U.N. Security Council has been relatively clear in incorporating these kinds of standards in resolutions governing potential armed conflict at sea.
24
There are other situations where admiralty lawyers must take into account international law as a factor in decisions related to maritime transactions. I list a few.
A. Self-defense in the Charter era
States met the Libyan crisis by individual countries’ economic coercion and collective action through transnational organizations (the EU) and the U.N. Security Council. Notably absent were self-defense claims. In other situations since 1945 countries have asserted the right to individual and collective self-defense. The Charter provides in Article 51:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the . . . Council has taken the measures necessary to preserve international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the . . . Council and shall not in any way affect the authority of the . . . Council under the . . . Charter to take at any time such action as it
58-69.
23 This was another ground for dismissal in Tarros S.p.a. v. United States, 2014 A.M.C. at
24
As the Cold War ended, the first example was the 1990-91 crisis and war over Iraq’s seizure of Kuwait. See generally George K. Walker, The Crisis Over Kuwait, August 1990 -
February 1991 , 1991 Duke J. Comp. & Int’l L. 25.
11

deems necessary . . . to maintain or restore international peace and security.
Like Council decisions, the right to self-defense under the Charter trumps all treaties.
25
There are three issues with respect to self-defense in the Charter era: (1) Is the right limited to
“reactive” self-defense, where a State, States in a collective self-defense organization like
NATO, 26 in a bilateral defense treaty arrangement, or aligned in a coalition, the latter the situations in the 1990-91 Kuwait crisis, 27 or military units or individuals under military command, must await an adversary’s attack before responding while observing principles of necessity and proportionality, i.e.
“reactive” self-defense after “taking the first hit”?
28 Or does
25 U.N. Charter arts. 51, 103; see also supra notes 15, 19 and accompanying text.
26 See North Atlantic Treaty, supra note 17, amended by protocols after 1949; see supra note 17 and accompanying text.
27 See generally Walker, The Crisis, supra note 24.
28 Those arguing that anticipatory self-defense is unlawful in the Charter era include Ian
Brownlie, International Law and the Use of Force by States 257-61, 275-78, 366-67 (1963);
Anthony D'Amato, International Law: Process and Prospect 32 (1987); Dinstein, supra note 9, at 194-200; Louis Henkin, International Law: Politics and Values 121-22 (1995); Philip C.
Jessup, A Modern Law of Nations 166-67 (1948); D.P. O'Connell, The Influence of Law on Sea
Power 83, 171 (1979); 2 Oppenheim, supra note 5, § 52aa, at 156; Ahmed M. Rifaat,
International Aggression 126 (1974); Natalino Ronzitti, Rescuing Nationals Abroad Through
Military Coercion and Intervention on Grounds of Humanity 4 (1985); Tom Farer, Law and War, in 3 Cyril E. Black & Richard A. Falk, The Future of the International Legal Order 30, 36-37
(1971); Yuri M. Kolosov, Limiting the Use of Force: Self-Defense, Terrorism, and Drug
Trafficking, in Lori Fisler Damrosch & David J. Scheffer, Law and Force in the New
International Order 232, 234 (1991) Josef L. Kunz, Individual and Collective Self-Defense in
Article 51 of the Charter of the United Nations, 41 Am. J. Int’l L. 872, 878 (1947); Rainer
Lagoni, Remarks, in Panel, Neutrality, The Rights of Shipping and the Use of Force in the
Persian Gulf War (Part I) , 1988 Proc. Am. Soc'y Int'l L. 158, 161, 162; Jules Lobel, The Use of
Force to Terrorist Attacks, 24 Yale J. Int'l L. 537, 541 (1999); Robert W. Tucker, The
Interpretation of War Under Present International Law, 4 Int'l L. Q. 11, 29-30 (1951); see also id., Reprisals and Self-Defense , 66 Am. J. Int’l L. 586 (1972) (States may respond only after being attacked). Recent commentary supports an expanded view of reactive self-defense to include preparations for attack. See, e.g., Christine Gray, International Law and the Use of Force
130, 133 (2d ed. 2004); Mary Ellen O'Connell, Lawful Self-Defense to Terrorism , 63 U. Pitt. L.
12

self-defense include anticipatory self-defense, i.e.
, responding, observing principles of necessity and proportionality before taking the first hit in situations of immediacy, admitting of no alternative?
29
(2) Is there a parallel customary right to self-defense, separate and apart from
Rev. 889, 894 (2002).
29
United Nations, A More Secure World: Our Shared Responsibility: Report of the
Secretary-General's High-Level Panel on Threats, Challenges and Change ¶¶ 188-92 (2004), citing Wolfgang Friedmann, The Changing Structure of International Law 259-60 (1964); Louis
Henkin, How Nations Behave 143-45 (2d ed. 1979), who later changed his view, see n. 28 supra ;
Oscar Schachter, The Right of States to Use Armed Force , 82 Mich. L. Rev. 1620, 1633-34
(1984), says U.N. Charter art. 51 allows a threatened State, "according to long-established international law," to take military action "as long as the threatened attack is imminent , no other means would deflect it and the action is proportionate." However, a State must act in anticipatory self-defense, not just "preemptively." The latter cases should be brought to the U.N.
Security Council for possible action. Article 51 should not be rewritten or reinterpreted.
This approach is in line with those advocating a right of anticipatory individual and collective self-defense based on the Charter and customary law. ILC Draft Articles, supra note
9, art. 25 & cmt. 5, at 194, 196 recognize anticipatory self-defense under the necessity doctrine.
See also Legality of Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 245 (hereinafter
Nuclear Weapons); Nicaragua Case, supra note 9, 1986 I.C.J. at 347 (Schwebel, J., dissenting);
Stanimar A. Alexandrov, Self-Defense Against the Use of Force in International Law 296
(1996); D.W. Bowett, Self-Defence in International Law 187-93 (1958); Charter Commentary, supra note 19, at 1421-27 (representing a change of view from prior editions); Hans Kelsen,
Collective Security Under International Law 27 (Nav. War C. Int'l L. Stud. v. 49, 1957);
Timothy L.H. McCormack, Self-Defense in International Law: The Israeli Raid on the Iraqi
Nuclear Reactor 122-24, 238-39, 253-84, 302 (1996); Myres S. McDougal & Florentino
Feliciano, Law and Minimum World Public Order 232-41 (1961); Walter Gary Sharp, Sr.,
Cyberspace and the Use of Force 33-48 (1999) (real debate is scope of anticipatory self-defense right; responses must be proportional); Jennings & Watts, supra note 5, § 127; Oscar Schachter,
International Law in Theory and Practice 152-55 (1991); Julius Stone, Of Law and Nations:
Between Power Politics and Human Hopes 3 (1974); Ann Van Wynen Thomas & A.J. Thomas,
The Concept of Aggression in International Law 127 (1972); Richard W. Aldrich, How Do You
Know You Are At War in the Information Age?, 35 Hous. J. Int'l L. 223, 231, 248 (2000); Louis
Rene Beres, After the Scud Attacks: Israel, "Palestine," and Anticipatory Self-Defense, 6 Emory
Int'l L. Rev. 71, 75-77 (1992); George Bunn, International Law and the Use of Force in
Peacetime: Do U.S. Ships Have to Take the First Hit?, 39 Nav. War C. Rev. 69-70 (May-June
1986); James H. Doyle, Jr., Computer Networks, Proportionality, and Military Operations , in
Michael N. Schmitt & Brian T. O'Donnell, Computer Network and International Law 147, 151-
54 (Int'l L.Stud., v. 76, 2002); Thomas M. Franck, When, If Ever, May States Deploy Military
Force Without Prior Security Council Authorization?
, 5 Wash. U.J.L. & Pol'y 51, 68 (2001);
13

Charter principles with different contours?
30
(3) Is the right of self-defense, parallel to Charter
Article 2(4), a jus cogens or peremptory norm,
31
trumping treaty and customary law?
32
Christopher Greenwood, Remarks, in Panel, supra note 28, at 158, 160-61; David K. Linnan,
Self-Defense, Necessity and U.N. Collective Security: United States and Other Views, 1991 Duke
J. Comp. & Int'l L. 57, 65-84, 122; Lowe, The Commander's Handbook on the Law of Naval
Operations , in The Law of Naval Operations 127-30 (Horace B. Robertson, Jr. ed. Nav. War C.
Int’l L. Stud. v. 68, 1991) James McHugh, Forcible Self-Help in International Law, 25 Nav. War
C. Rev. 61 (No. 2, 1972); Rein Mullerson & David J. Scheffer, Legal Regulation of the Use of
Force, in Beyond Confrontation: International Law for the Post-Cold War Era 93, 109-14 (Lori
Fisler Damrosch et al. ed. 1995); John F. Murphy, Commentary on Intervention to Combat
Terrorism and Drug Trafficking, in Law and Force, supra note 28, at 241; W. Michael Reisman,
Allocating Competences to Use Coercion in the Post-Cold War World: Practices, Conditions, and Prospects, in id.
25, 45; Horace B. Robertson, Jr., Self-Defense Against Computer Network
Attack under International Law , in Schmitt & O'Donnell, supra , 121, 140; Michael N. Schmitt,
Bellum Americanum: The U.S. View of Twenty-First Century War and Its Possible Implications for the Law of Armed Conflict, 19 Mich. J. Int'l L. 1051, 1071, 1080-83 (1998); Abraham D.
Sofaer, Sixth Annual Waldemar A. Solf Lecture: International Terrorism, the Law, and the
National Defense, 126 Mil. L. Rev. 89, 95 (1989); Robert F. Turner, State Sovereignty,
International Law, and the Use of Force in Countering Low-Intensity Aggression in the Modern
World, in Legal and Moral Constraints on Low-Intensity Conflict 43, 62-80 (Alberto R. Coll et al. eds., Nav. War C. Int'l L. Stud., v. 67, 1995); Claude Humphrey Meredith Waldock, The
Regulation of Force by Individual States in International Law, 81 R.C.A.D.I. 451, 496-99 (1952)
(anticipatory self-defense permissible, as long as principles of necessity, proportionality observed); George K. Walker, Information Warfare and Neutrality , 33 Vand. J. Transnat'l L.
1079, 1122-24 (2000); Ruth Wedgwood, Responding to Terrorism: The Strikes Against bin
Laden, 24 Yale J. Int'l L. 559, 566 (1999). My article, The Lawfulness of Operation Enduring
Freedom's Self-Defense Responses , 37 Valparaiso L. Rev. 489, 536 (2003) says preemption
"seems" equivalent to anticipatory self-defense, citing contradicting views. Jane Gilliland
Dalton, The United States National Security Strategy: Yesterday, Today and Tomorrow , 52 Nav.
L. Rev. 60, 68-75 (2005) posits that preemption and anticipatory self-defense are not necessarily different, but that national strategy should adhere to the anticipatory self-defense doctrine. The preemption issue may be resolved after a time of interactive claim and counterclaim, cf.
Myres S.
McDougal, The Hydrogen Bomb Tests , 49 Am. J. Int’l L. 357-58 (1955), as the territorial sea breadth dispute was resolved. Michael P. Scharf, Customary International Law in Times of
Fundamental Change (2013) argues that new rules can come suddenly, e.g.
, after 9/11, where there are game-changer events, i.e.
, “Grotian moments.”
30
Some commentators would so argue. See generally supra note 29.
31
See Vienna Convention, supra note 5, pmbl., arts. 53, 64, 71. Some commentators prefer ius cogens or fundamental norm as the proper phrase. Jus cogens has uncertain contours.
See generally Corten & Klein, supra note 5, at 1-11, 1224-35, 1455-80, 1612-25; Crawford,
14

supra note 5, at 594-602 (jus cogens' content uncertain); T.O. Elias, The Modern Law of Treaties
177-87 (1974) (same); Jennings & Watts, supra note 5, §§ 2, 642, 653 (same); McNair, supra note 5, at 214-15 (same); Restatement, supra note 5, §§ 102 r.n. 6, 323 cmt. b, 331(2), 338(2)
(same); Shabtai Rosenne, Developments in the Law of Treaties 1945-1986, at 281-88 (1989);
Sinclair, supra note 5, at 17-18, 218-26 (Vienna Convention rules considered progressive development in 1984); Grigorii I. Tunkin, Theory of International Law 98 (William E. Butler trans. 1974); Levan Alexidze, Legal Nature of Jus Cogens in Contemporary Law , 172
R.C.A.D.I. 219, 262-63 (1981); John N. Hazard, Soviet Tactics in International Lawmaking , 7
Denv. J. Int'l L. & Pol. 9, 25-29 (1977); Jimenez de Arechaga, International Law in the Last
Third of a Century, 159 R.C.A.D.I. 9, 64-67 (1978); Georg Schwarzenberger, International Jus
Cogens?
, 43 Tex. L. Rev. 455 (1978) (jus cogens nonexistent for self-defense, any other purpose); Dinah Shelton, Normative Hierarchy in International Law , 100 Am. J. Int’l L. 291
(2006) (current analysis); Mark Weisburd, The Emptiness of the Concept of Jus Cogens, As
Illustrated by the War in Bosnia-Herzegovina, 17 Mich. J. Int'l L. 1 (1995). An International
Law Commission study acknowledged primacy of U.N. Charter art. 103-based law and jus cogens but declined to catalogue what are jus cogens norms. International Law Commission,
Report on Its Fifty-Seventh Session (May 2-June 3 and July 11-August 5, 2005), UN GAOR,
60th Sess., Supp. No. 10, pp. 221-25, UN Doc. A/60/10 (2005); see also Michael J. Matheson,
The Fifty-Seventh Session of the International Law Commission , 100 Am. J. Int’l L. 416, 422
(2006).
32 Nuclear Weapons, supra note 29, 1996 I.C.J. at 245; Nicaragua Case, supra note 9,
1986 I.C.J. at 100-01 (U.N. Charter art. 2[4] approaches jus cogens status); see also ILC Draft
Articles, supra note 9, art. 50 & cmts. ¶¶ 1-5, in 2001 ILC Rep., supra note 25, at 247-49;
("fundamental substantive obligations"); Jennings & Watts, supra note 5, § 2 (U.N. Charter art.
2[4] a fundamental norm); Restatement, supra note 5, §§ 102, cmts. h, k; 905(2) & cmt. g
(same); Carin Kaghan, Jus Cogens and the Inherent Right of Self-Defense, 3 ILSA J. Int’l &
Comp. L. 767, 823-27 (1997) (U.N. Charter art. 51 represents jus cogens norm); 2001 ILC Rep., supra at 177-80, art. 21 & cmts., resolving the issue of conflict between UN Charter arts. 2(4) and 51 by saying that no art. 2(4) issues arise if there is a lawful self-defense claim, appears to give art. 51 the same status as art. 2(4). Kaghan’s analysis is logical; if a State’s right to territorial integrity under U.N. Charter art. 2(4) has jus cogens status, that State must have a jus cogens right to defend its territory, subject to rules of necessity and proportionality and, in the case of anticipatory self-defense, admitting of no other alternative. The International Court of
Justice may have stopped short of according Article 2(4) jus cogens status because I.C.J. Statute art. 38(1), which does not list jus cogens as a source, may have limited the Court’s analysis.
Armed Activities on Terr. of Congo (Dem. Rep. of Congo v. Rwanda), 2006 I.C.J. 3, 29-30, 49-
50 (jurisdiction, admissibility of application) (hereinafter 2006 Congo Case) held a jus cogens violation allegation was not enough to deprive the Court of jurisdiction, preliminarily stating that
Convention on Prevention & Punishment of Crime of Genocide, Dec. 9, 1948, T.I.A.S. No. — ,
78 U.N.T.S. 277 represented erga omnes obligations; see also Application of Convention on
Prevention & Punishment of Crime of Genocide (Bosnia & Herzegovina v. Serbia &
15

Implications for the law of the sea,
33
and other treaties governing admiralty practice, is that the
Charter-based and customary rights of self-defense trump standards in those treaties and the customary law of the sea.
34
As noted above, how individual countries, collective self-defense
Montenegro), 2007 I.C.J. 47, 110-11 citing 2006 Congo Case, supra . Vienna Convention, supra note 5, art. 53 (declaring jus cogens standards) was among other treaties 2006 Congo Case, supra cited. Also citing Nicaragua and Nuclear Weapons Cases, supra , Shelton, supra note 31 at 305-06 says 2006 Congo Case, supra is the first I.C.J. case to recognize jus cogens, but its holding seems not quite the same as ruling on an issue and applying jus cogens. The case compromis included the Vienna Convention, supra , which raises jus cogens issues that the Court could have decided under that law as well as traditional sources. I.C.J. Statute arts. 36, 38, 59.
Thus the issue technically remains whether the Court will apply jus cogens as a separate trumping norm, or whether it will apply jus cogens as stronger custom among competing primary sources – treaties, custom, general principles – under id. 38(1), or choose not to apply it at all.
33 I respectfully dissent from Churchill & Lowe, supra note 7, at 6, who argue that jus cogens has little relevance for the law of the sea. This article explains why.
34 UNCLOS, supra note 3, arts. 88, 301 acknowledge Charter primacy; see also Churchill
& Lowe, supra note 7, at 170, 411, 430-31; 3 United Nations Convention on the Law of the Sea
1982: A Commentary ¶¶ 88.1-88.7(d) (Satya N. Nandan & Shabtai Rosenne vol. eds., Neal R.
Grandy ass’t ed. 1995) (hereinafter 3 Commentary); 5 id. ¶¶ 301.1-301.6 (Myron H. Nordquist ed.-in-chief, Shabtai Rosenne & Louis B. Sohn vol. eds. 1989) (hereinafter 5 Commentary);
Restatement, supra note 5, § 521 cmt. b; Donald R. Rothwell & Tim Stephens, The International
Law of the Sea 266 (2010); supra note 16 and accompanying text. The “peaceful purposes” language of UNCLOS, supra , art. 88 must be read in the context of id. art. 87's “other rules” exception for the law of armed conflict, and the primacy of the inherent right to individual and collective self-defense, see U.N. Charter arts. 51, 103; supra notes 6, 16, 20 and accompanying text. Tarros S.p.a. v. United States, 2014 A.M.C. at 77-78, noted plaintiff’s citing UNCLOS, supra , arts. 87-88 for the right of freedom of high seas navigation and that the high seas are reserved for peaceful purposes. What was not mentioned was id. art. 87's “other rules” exception, or the supremacy of Charter law through Security Council Resolutions 1970, 1973, supra note 14, under U.N. Charter art. 103, or that, at least insofar as public international law issues are concerned, the United States considers the UNCLOS articles related to navigation to represent customary international law. See President Ronald Reagan, Statement of United States
Oceans Policy, Mar. 10, 1983, 19 Weekly Comp. Pres. Doc. 383 (Mar. 14, 1983) (hereinafter
Reagan Statement). However, for U.S. courts, the High Seas Convention, supra note 3, with its freedom of navigation and “other rules” provisions in Article 2, would apply; The Pacquete
Habana, 175 U.S. at 677, 700 (1900), whose principles Sosa v. Alvarez-Machain, 542 U.S. 692,
734 (2004) repeats, declared that U.S. courts may recognize and apply customary international law if there is no controlling precedent, treaty, federal statute, or executive action. The Habana rule for treaties is also subject to the principle that the treaty must be self-executing. Cf. Medellin
16

organizations like NATO and coalitions, as well as naval forces and units, exercise the right may be conditioned by States’ national directives, which was what happened in the Libya crisis.
35
B. The law of armed conflict at sea and admiralty law
In armed conflict situations not governed by mandatory Council decisions or self-defense situations trumping other rules,
36
the law of armed conflict may oust the general law of the sea and agreements subordinate to it
37
through the “other rules” clauses.
38
The International Law v. Texas, 552 U.S. 491, 503-23 (2007). If a treaty is non-self-executing and Congress has enacted implementing statutes, the legislation must be followed. All of this was beside the point for the Tarros decision; the court correctly held, 2014 A.M.C. at 77-78, that the claim fell under the Public Vessels Act, supra note 17, and the Suits in Admiralty Act, 46 U.S.C. §§ 30901-18
(2012). Federal legislation like this is, of course, an exception to applying customary international law rules, e.g.
, those from UNCLOS, supra . See Sosa, supra ; Habana , supra.
35 See supra notes 8-24 and accompanying text.
36 See supra notes 15, 19, 31 and accompanying text.
37 UNCLOS, supra note 3, arts. 311(2)-311(6), with certain exceptions, e.g.
, express authority within UNCLOS to conclude subordinate agreements permitted or preserved by
UNCLOS, declares that other subordinate agreements may not alter other States’ rights and obligations under the Convention. See also Churchill & Lowe, supra note 7, at 20, 125, 238,
292; 5 Commentary, supra note 34, ¶¶ 311.1-311.11.
38 See supra notes 3, 7 and accompanying text. The ensuing analysis assumes the law of the sea and the law of international armed conflict at sea, as they relate to admiralty practice, apply. There are variants on the theme, some of which are discussed below, e.g., human rights law, infra notes 98-106 and accompanying text, and international environmental law, infra notes
70-84 and accompanying text. There are others. Consider, e.g., riverine warfare and shipping losses on the rivers in an international armed conflict, the situation (at least according to the U.S.
view) of the Vietnam War and attacks by North Vietnam-related forces on South Vietnam river traffic. Inland lakes pose similar problems, e.g.
, naval campaigns on the Great Lakes during the
War of 1812. Nor does the analysis consider differences, if any, of rules for non-international armed conflicts, e.g.
, in, the U.S. Civil War, Confederate blockade runner interdiction by the
U.S. Navy or Confederate high seas interdictions of Union merchant shipping. It does not account for riverine war rules in non-international armed conflicts, e.g., Civil War campaigns on
U.S. western rivers, notably the Mississippi. It does not take into account situations where a conflict has can have international dimensions, such as the U.S. self-defense response after 9/11, the subsequent involvement of NATO and other forces aligned with the United States in
17

Association (American Branch) project on law of the sea definitions illustrates cases where terms in the law of the sea and the law of armed conflict may have quite different meanings.
39
Besides terms, there are practices under the law of the sea that are similar to, but different in concept from, the law of armed conflict at sea. For example, approach and visit may be appropriate under the law of the sea for some situations, e.g.
, drug runners; the concept of visit and search is a practice incident to checking for war contraband.
40 There are law of armed conflict principles that have no law of the sea counterpart, e.g.
, belligerents’ customary rights to exclude merchant shipping from an immediate area of naval operations.
41 Sometimes armed conflict rules are virtually the same as the law of the sea rules; e.g.
, the definition of a warship 42
Afghanistan in the resulting ground and air campaigns, and a parallel non-international armed conflict between Afghanistan’s Northern Alliance and the Taliban government. For an early account of this conflict, see Walker, The Lawfulness, supra note 29.
39 See Walker, Definitions, supra note 4, at 271-72.
40 Compare C. John Colombos, The International Law of the Sea § 334 (6th ed. 1967) with id. ch. 20; Thomas & Duncan, supra note 9, ¶¶ 3.4-3.8 with id. ¶¶ 7.6-7.6.2; see also 2
O’Connell, supra note 7, at 801-03; San Remo Manual, supra note 15, ¶¶ 118-24; UK Manual, supra note 9, ¶¶ 13.91-13.97. Two more current oceans law sources blur the distinction between approach and visit under the law of the sea and visit and search under the law of armed conflict.
Churchill & Lowe, supra note 7, at 210-13, 218, 423; Rothwell & Stephens, supra note 34, at
156, 165-66, 432.
7.8.1.
41 San Remo Manual, supra note 15, ¶ 108; Thomas & Duncan, supra note 9, ¶¶ 7.8-
42 Compare UNCLOS, supra note 3, art. 29; High Seas Convention, supra note 3, art.
8(2); with Hague Convention (VII) Relating to the Conversion of Merchant Ships into War-
Ships, arts. 2-3, Oct. 18, 1907, 205 Consol. T.S. 319 (hereinafter Hague VII); see also 2 United
Nations Convention on the Law of the Sea 1982: A Commentary ¶¶ 29.1-29.8(b) (Satya N.
Nandan & Shabtai Rosenne vol. eds., Neal R. Grandy ass’t ed. 1993) (hereinafter 2
Commentary); Jennings & Watts, supra note 5, §§ 560–61; Rothwell & Stephens, supra note 34, at 265-66; Thomas & Duncan, supra note 9, ¶¶ 2.1.1-2.1.3; in Gabriella Venturini, Commentary , in Natalino Ronzitti, The Law of Naval Warfare 120, 122 (1988) (Hague VII, supra arts. 2-3 customary law). Although many States ratified Hague VII, supra , the United States did not.
18

and the requirement that, commensurate with the safety of a succoring ship and its crew, there is an obligation to rescue those in peril on the sea.
43
(It is also a complete defense under treaties
Signatures, Accessions and Ratifications, Dietrich Schindler & Jiri Toman, The Laws of Armed
Conflicts 1068-70 (4th ed. 2004). Due to the similarity of the Hague VII definition and those in the High Seas Convention and UNCLOS, the principle of treaty succession for Hague
Convention parties, and acceptance of the High Seas Convention and UNCLOS’ navigational articles as customary norms, it is safe to say that the same definition applies during peace and war. The same definition of a warship applies whether it is subject to the law of the sea or is in inland waters. ARA Libertad (Argentina v. Ghana), (No. 20) (Argentina v. Ghana), Request for
Provisional Measures (ITLOS, Dec. 15, 2012), available at http://www.ITLOS.ORG; see also
David P. Stewart, Convention on the Law of the Sea – Warship Immunity – Scope of
Applicability of Convention – Provisional Measures – Definition of Warship – Arbitral Decision ,
107 Am. J. Int’l L. 404 (2012). The attempted Libertad seizure was part of worldwide creditor efforts to seize property of the Republic of Argentina in a sovereign debt case. Brent Kendall &
Shane Romio, Argentina Loses Debt Ruling , Wall St. J., Oct. 8, 2013, at C3, reporting Supreme
Court certiorari denial in RML Capital, Ltd. v. Republic of Argentina, 727 F.3d 230 (2d Cir.
2013), cert. denied , 134 S.Ct. 201 (2014).
43 This rule seems not to have been followed in one case during Libyan interdiction operations. Rose George, Ninety Percent of Everything: Inside Shipping, the Invisible Industry that Puts Clothes on Your Back, Gas in Your Car, and Food on Your Plate 90 (2013). Compare
UNCLOS, supra note 3, arts. 98(1)(a), 98(1)(b); High Seas Convention, supra note 3, arts.
12(1)(a), 12(1)(b); International Convention for Unification of Certain Rules of Law with
Respect to Assistance and Salvage at Sea, arts. 11, 14, Sept. 23, 1910, 37 Stat. 1658 (hereinafter
1910 Salvage Convention) (not applicable to warships), being replaced by International
Convention on Salvage, arts. 4, 10, Apr. 28, 1989, T.I.A.S. — , U.S. Treaty Doc. 102-12 (not applicable to warships unless State party applies Convention to them) (hereinafter 1989 Salvage
Convention); International Convention for the Safety of Life at Sea, Regs. 2, 10, ch. V, Nov. 1,
1974, 32 U.S.T. 47, 1184 U.N.T.S. 2, with Convention (II) for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, arts. 12, 18,
Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (hereinafter Second Convention); see also id. art.
5 (neutrals must apply by analogy id .’s provisions to wounded, sick, shipwrecked, armed forces medical personnel, armed forces chaplains of parties to a conflict, and the dead found at sea);
Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention, art. 16, Oct. 17, 1907, 36 Stat. 2371 (hereinafter Hague X), superseded by Second
Convention, supra , art. 33); 3 Commentary, supra note 34, ¶¶ 98.1, 98.11(g); (treaties’ use of “at sea” means they also apply in the territorial sea); see also Colombos, supra note 40, § 369;
Jennings & Watts, supra note 4, § 298; 2 Oppenheim, supra note 5, §§ 204-05; 2 Jean S. Pictet,
Commentary 41-45, 86-90 (1960); Rothwell & Stephens, supra note 34, at 161-62; Thomas &
Duncan, supra note 9, ¶¶ 3.2.1-3.2.1.2; L.R. Penna, Commentary, in Ronzitti, supra note 42, at
534. George, supra at 211-19 recounts a 2007 containership rescue of survivors of a
19

and other laws governing carriage of goods by sea for deviating to save life or property at sea.
44
)
There are other situations where a proclaimed sea area under the law of armed conflict may be the same, or close to the same area proclaimed under the law of the sea, an example being maritime exclusion zones whose borders may be close to the same as, or different from, e.g.
, claimed a belligerent’s claimed exclusive economic zone.
45 In these circumstances, and others in the maritime law of armed conflict, law of armed conflict rules trump the otherwise applicable law of the sea. Moreover, common sense would suggest avoiding a combat area if feasible, as the tanker Hercules and her owner and charterer discovered during the 1982 Falklands/Malvinas
War.
46 (An example of the mix of these two bodies of law might be a situation where merchantman sinking and other ships that disregarded their duty. While I was aboard U.S.S.
Tweedy (DE-532), we picked up two boatloads of Cuban refugee families adrift in the Gulf
Stream in 1962; if we had not happened upon them (there was only a fuzzy radar signal), they would have drifted until they died. Loss of hundreds of refugees in Italy’s Lampedusa Island territorial sea prompted European Union action to improve Mediterranean Sea rescue patrols.
James Kanter & Gaia Piangiani, After Migrant Deaths, European Official Urges More Patrols at
Sea , N.Y. Times, Oct. 9, 2013, A8. Italian authorities arrested some connected with the human trafficking operation. Deborah Hall, Italy Arrests Alleged Organizer in Ship Disaster , Wall St.
J., Nov. 9-10, 2013, at A8. Warm weather prompts more attempts. Eric Sylvers et al., Warm
Weather Spurs Tide of Migrants , id.
, Apr. 12-13, 2014, A7.
44 See infra note 56 and accompanying text.
45 UNCLOS, supra note 3, arts. 55-75; San Remo Manual, supra note 15, ¶¶ 105-07 & cmts.; Thomas & Duncan, supra note 9, ¶¶ 1.5.2, 7.9; see also Churchill & Lowe, supra note 7, ch. 9; 2 Commentary, supra note 42, Pt. V; Crawford, supra note 5, at 274-80, 293-94; Jennings
& Watts, supra note 5, §§ 327-47; Restatement, supra note 5, §§ 511(d), 514; Rothwell &
Stephens, supra note 34, at 82-97. During the 1982 Falklands/Malvinas War, exclusion zones around the islands were close to, if not the same as, areas that could be claimed as an exclusive economic zone under the law of the sea. See generally The Tanker War, supra note 21, at 129 and sources cited.
46
See generally Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 433-
39 (1989), rev’ing 839 F.2d 421, 423 (2d Cir. 1987) (Foreign Sovereign Immunities Act
(hereinafter FSIA), 28 U.S.C. §§ 1330, 1602-11 [2012] the sole basis for obtaining jurisdiction over a foreign State in U.S. federal courts).
20

merchantmen come upon people in the water while vacating a wartime naval operations area.
The primary rescue obligation would lie with naval forces, not the merchantmen, which must leave the area.) A peripheral problem for armed conflict at sea is the status of the 1907 Hague
Conventions on sea warfare. One, covering the wounded, sick and shipwrecked, has been superseded; 47 others may live on as treaty law or in whole or part by customary acceptance of some or all of their terms.
48
C. Vessel seizure or diversion during armed conflict
Prize law, for which U.S. District Courts have exclusive jurisdiction, 49 remains an
47 Second Convention, supra note 43, art. 33, superseding inter alia Hague X, supra note
43; see also 2 Pictet, supra note 43, at 187-89.
48 Others from the 1907 Conference were Convention (VI) Relating to the Status of
Enemy Merchant Ships at the Outbreak of Hostilities, Oct. 18, 1907, 205 Consol. T.S. 305;
Hague VII, supra note 42; Convention (VIII) Relative to the Laying of Automatic Submarine
Contact Mines, Oct. 18, 1907, 36 Stat. 2332; Convention (IX) Concerning Bombardment by
Naval Forces in Time of War, Oct. 18, 1907, 36 Stat. 2351; Convention (XI) Relative to Certain
Restrictions with Regard to the Exercise of the Right of Capture in Naval War, Oct. 18, 1907, 36
Stat. 2396 (hereinafter Hague XI); see also Convention (XII) Relative to the Creation of an
International Prize Court, Oct. 18, 1907 (hereinafter Hague XII), never ratified, Schindler &
Toman, supra note 42, at 1093. Some provisions are now in desuetude; others may survive through customary acceptance or treaty succession principles; sometimes later customary practice has superseded them. See generally Andrea de Guttry, Commentary , in Ronzitti, supra note 42, at 102; Howard S. Levie, Commentary, in id. 140; Horace B. Robertson, Jr.,
Commentary , in id.
161; I.A. Shearer, Commentary , in id. 183; supra note 6 and accompanying text.
49 28 U.S.C. § 1333(2) (2012). There have been no U.S. prize cases reported since
World War II, see The Europa, 1948 A.M.C. 1454 (S.D.N.Y. 1948); The Wilhelmina, 78 F.Supp.
57 (W.D. Wash. 1942) (no prize declared). If a ship chased for prize boarding and seizure tries to scuttle, and is successfully salvaged, the Navy crew may be entitled to salvage bounty. The
Odenwald, 71 F.Supp. 314, 1947 A.M.C. 666 (D.P.R. 1947), modified sub nom.
Hamburg-
American Line v. United States, 168 F.2d 47 (1st Cir. 1948). Prize money goes to the U.S.
Treasury, 10 U.S.C. § 7668 (2012), where prize sale proceeds in The Pacquete Habana, 175 U.S.
677 (1900), would have gone; however, Habana held the seized boats were not lawful prize.
21

international issue.
50
A narrow issue is whether traditional prize rules apply in diversion situations,
51
and particularly in a U.N.-mandated diversion,
52
a method for examination of contraband today and may qualify for the restraint of princes exception, if not the war exception, in carriage of goods claims and other situations.
53 Undoubtedly this issue will arise in claims, litigation and arbitration in the wake of the Libya crisis; Tarros may be the first of many of these cases.
54
D. Ocean bills of lading
Exceptions under treaties and national legislation governing ocean bills of lading, e.g.
, acts of war, acts of public enemies, arrest or restraint of princes, rulers or people, or seizure
50 See, e.g.
, The Tanker War, supra note 21, at 68 (1988 Iran prize law during 1980-88 conflict). Hague XII, supra note 48, would have created an international appellate prize court; no
State ratified it.
51 In diversion operations, merchantmen are sent to, e.g.
, a sheltered harbor or bay of an ally that is safer than the high seas for onboard inspection. Diversion is an acceptable alternative today. See generally San Remo Manual, supra note 15, ¶¶ 51, 52, 121, 138, 152. Coalition forces diverted merchantmen during the 1990-91 campaign against Iraq. See generally Walker,
The Crisis, supra note 24, at 35.
52 The situation in the 2011 Libya crisis, as in 1990-91 in the Persian Gulf. See supra notes 8-17 and accompanying text.
53 See infra notes 55, 64, 127, 145 and accompanying text.
54 In Tarros S.p.a. v. United States, 2014 A.M.C. at 53-55, the owner claimed the Vento carried “medical equipment, medicine, first aid supplies, and food stuffs,” presumably destined for the civil population and therefore subject to exemption from seizure under the law of armed conflict. Nevertheless, Vento was directed to proceed to an Italian port, presumably for cargo inspection to be certain that this was, in fact, the cargo as declared. This has been typical (and lawful) interdiction, diversion and inspection procedure. See generally San Remo Manual, supra note 15, ¶¶ 47(c)(ii), 118-24; Thomas & Duncan, supra note 9, ¶ 7.6.1; see also supra notes 51-
52 and accompanying text.
22

under legal process, may apply in armed conflict situations.
55
Deviation from course to save, or attempting to save, life or property at sea is a defense to claims against a carrier or the ship.
56
Another provision makes carriers liable for “unreasonable” deviation,
57
which might happen in situations like the Libya crisis if armed forces bar entry into the port(s) designated in a bill of lading or requisition a ship.
58 Bills of lading may have a liberties clause, allowing a carrier
55
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, arts. 4(2)(e)-4(2)(g), Aug. 25, 1924, 51 Stat. 233, 120 L.N.T.S. 157 (hereinafter
Hague Rules); amended by Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading of August 24, 1924, Feb. 23, 1968, 1412
U.N.T.S. 121 with provisions not relevant to this analysis (hereinafter Visby Amendments, also sometimes referred to collectively with Hague Rules, supra as Hague-Visby Rules); Protocol
Amending the International Convention for the Unification of Certain Rules of Law Relating to
Bills of Lading of August 25, 1924, as Amended by Protocol of February 23, 1968, Dec. 21,
1979, 1412 U.N.T.S. 121, whose amendments are not relevant to this analysis; see also United
Nations Convention on the Carriage of Goods by Sea, Mar. 31, 1978, 1695 U.N.T.S. 3
(hereinafter Hamburg Rules); United Nations Convention on Contracts for the International
Carriage of Goods Wholly or Partly by Sea, art. 17(3)(c), Oct. 18, 2009, G.A. Res. 63/122, U.N.
Doc. A/RES/63/122 (2009) (also known as the Rotterdam Rules, not in force); Carriage of
Goods by Sea Act, 46 U.S.C.A. Note, reprinting 46 U.S.C.A. §§ 1304((2)(e)-1304(2)(g) (2012)
(hereinafter COGSA); Harter Act, 46 U.S.C.A. §§ 30706(b)(2)-30706(b)(4) (2012). The United
States is a Hague Rules, supra party, see TIF, supra note 7, at 423; documents involving U.S.
parties may incorporate later treaties by reference as contract terms. See Norfolk S. Ry. v.
Kirby, 543 U.S. 14, 23-25 (2004); Thomas J. Schoenbaum & Jessica McClellan, Admiralty and
Maritime Law § 8-8 (5th ed. 2011).
56 Hague Rules, supra note 55, arts. 4(2)( l ), 4(4); Hamburg Rules, supra note 55, art.
5(6); Rotterdam Rules, supra note 55, arts. 17(3)( l ), 17(3)(m); COGSA, supra note 55, 46
U.S.C.A. Note, §§ 4(2)( l ), 4(4) (2012); Harter Act, supra note 55, 46 U.S.C.A. § 30706(b)(8)
(2012); see also Schoenbaum & McClellan, supra note 55, § 7-34. Rotterdam Rules, supra art.
3(n) also allows reasonable measures to avoid or attempt to avoid damage to the environment.
57 Hague Rules, supra note 55, art. 4(4); Hamburg Rules, supra note 55, art. 5(6); compare Rotterdam Rules, supra note 55, art. 24; COGSA, supra note 55, 46 U.S.C.A. Note §
1304(4) (2012); see also Schoenbaum & McClellan, supra note 55, § 7-34.
58
This was the situation in Sedco, Inc. v. S.S. Sthrathewe, 620 F.Supp. 120, 121
(S.D.N.Y.), aff’d , 800 F.2d 27, 30-33 (2d Cir. 1986); see also Keith W. Heard, Sedco v. M/V
Strathewe: An Interesting Case Indeed , 7 Benedict’s L. Bull. 190, 191-92 (2009).
23

flexibility in offloading cargo at destination ports.
59
Although treaties and national legislation are fairly uniform in language for these exceptions to liability, will new situations in the Charter era fare the same way in the courts and before arbitrators? Whether the result will be the same as the “old law” for these new situations, the admiralty lawyer must be familiar with international law lurking in the background of a claim and defenses to it. The only treaty binding the United States, the 1924 Brussels Convention (the
Hague Rules), presents another interesting application of international law. Congress passed legislation implementing the Brussels Convention before the U.S. Senate gave advice and consent to the treaty. The result was an understanding appended to the U.S. ratification, that as between rules in the Convention and the earlier federal legislation, the federal statute governs.
60
This understanding 61 overrides the usual U.S. construction rule that as between federal legislation and an international agreement, the later in time governs.
62 Thus admiralty proctors
59 See Sedco , 620 F.Supp. at 121, aff’d , 800 F.2d at 29 (2d Cir. 1986) (ship requisitioned for 1982 Falklands/Malvinas War).
60 Hague Rules, supra note 55, 51 Stat. 233. See generally George K. Walker,
Professionals’ Definitions and States’ Interpretative Declarations (Understandings, Statements, or Declarations) for the 1982 Law of the Sea Convention , 21 Emory Int’l L. Rev. 461 (2007)
(proposing rules for declarations like reservations rules under Vienna Convention, supra note 5).
61 Counsel examining TIF, supra note 7, at 423 would have been alerted to the U.S.
understandings, published in 51 Stat. 233, and the U.S. rejection of Kuwait’s reservation to the treaty, which would lead to examination of the complex law of reservations to multilateral agreements. See generally Walker, Professionals’, supra note 60 for analysis in the context of interpretative statements like the U.S. understanding to the same treaty.
62 Breard v. Greene, 523 U.S. 371, 375 (1998); Whitney v. Robertson, 124 U.S. 190, 194
(1888). Another example, prioritizing earlier treaties over later statutes, is in the FSIA, supra note 46, 28 U.S.C. § 1604 (2012), preserving other treaty rules on governmental immunity.
Compare Kalamazoo Spice Extraction Co. v. Provisional Mil. Gov’t of Socialist Ethiopia, 729
F.2d 422, 425-28 (6th Cir. 1984) (treaty governed immunity, not § 1604) with DeCsepel v.
Republic of Hungary, 714 F.3d 591, 601-03 (D.C. Cir. 2013) (earlier treaties did not).
24

must understand these and other aspects of the law of treaties. The Vento interdiction during the
Libya crisis illustrates the problem.
63
E. Chartering ships
Charter party exceptions for e.g.
, enemy action; restraint of princes, rulers and people,
64 or case law exceptions to performance like frustration of contract,
65
may apply in armed conflict situations. While the prior law, based on pre-Charter cases, may be fairly straightforward, how do these exceptions fare under the relatively new law since 1945? Presumably the result would be the same in similar situations, but what about diversions like those that occurred off Libya?
66
Clauses in some charters may cover these situations, too.
67
F. Marine insurance
Ocean marine insurance claims may also raise these kinds of issues, e.g.
, war risk or
63 See Tarros S.p.a. v. United States, 2014 A.M.C. at 53-55.
64 See, e.g.
, Association of Ship Brokers and Agents (U.S.A.), Inc., New York Produce
Exchange Time Charter Party Form (NYPE 93) ¶ 21, Form 7-12C, 2B Benedict on Admiralty
(Le Roy Lambert ed.-in-chief, 7th ed. 2012) (hereinafter NYPE 93). See also id. ¶¶ 31(a) (clause paramount incorporating by reference COGSA, supra note 55; Hague Rules, supra note 55;
Hague-Visby Rules, supra note 55, “as applicable, or any national legislation as may manditorily apply . . . ”), 31(e)( I), (prohibition on shipping contraband, provisions governing war, warlike operations, hostilities), 31(iii), 31(iv), 32 (cancellation clause for war, declared or not).
65 The Claveresk, 264 Fed. 276, 283 (2d Cir. 1920); see also Restatement (Second) of
Contracts §§ 261, 264 (1979).
66 The warship interception of Vento in Tarros S.p.a. v. United States, 2014 A.M.C. at
53-55, might raise contract frustration issues for cargo and other interests; it was not an issue for the parties in id.
, however. See also R. Glenn Bauer, Effects of War on Charter Parties , 13
Tulane Mar. L.J. 13 (1988).
67
See, e.g., NYPE 93, supra note 64, clauses. Arbitration resolves most charter disputes, but arbitral awards are often not published; a corpus of jurisprudence for these kinds of conflicts may be years away. See also Schoenbaum & McClellan, supra note 55, § 14-15, at 943.
25

terrorist attacks, and excluding coverage because of these threats.
68
However, private companies or governments sell war or terrorism risk insurance. Premiums can be high.
69
How marine insurance will or has figured in Libya crisis - related claims like those involved in Tarros is not clear, but these may arise through coverage or subrogation suits in the future. Nothing moves on the water without insurance.
G. Environmental degradation
Environmental pollution can involve international law issues. After the Torrey Canyon
68 Marine Insurance Act, 1906, 6 Edw. 7, ch. 41, § 3 (“‘Maritime perils’ means the perils consequent on, or incidental to, the navigation of the sea, that is to say, . . . war perils, . . .
captures, seizures, restraints, and detainments of princes and peoples, and any other perils, either of the like kind or which may be designated by the policy”); American Institute of Marine
Underwriters, Cargo Clauses 2004 – All Risks (2004) (“1. Average Terms. ‘All Risks.’ The following average terms shall apply: A. Unless otherwise specified below, this policy insures against ‘All Risks’ of physical loss or damage from any external cause irrespective of percentage, but excluding nevertheless the risks of War, . . . Seizure, Detention and other risks excluded by the Nuclear/Radioactive Contamination Exclusions Clause, the F.C. & S. (Free of
Capture and Seizure) Warranty . . . , excepting to the extent that such risks are specifically covered by endorsement [i.e., a rider].”). Although the Insurance Act by its terms covers policies written in England its clauses may be incorporated by reference in other policies; the United
Kingdom has been the home of marine insurance for centuries. In U.S. litigation the specter of applying the law of one of the 50 states may arise because of Wilburn Boat Co. v. Fireman’s
Fund Ins. Co., 348 U.S. 310 (1955), at least for claims with a U.S. nexus under the “maritime but local” doctrine; see supra note 1. See, e.g., Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882 (5th
Cir. 1991). If it is an international, i.e.
transnational case, with no U.S. connection except 28
U.S.C. § 1333(1) (2012) subject matter jurisdiction, Wilburn Boat should not apply. See, e.g.,
Continental Ins. Co. v. Lone Eagle Shipping Ltd., 952 F.Supp. 1046 (S.D.N.Y. 1997), aff’d per curiam , 134 F.3d 103 (2d Cir. 1998). Charters can address war risk insurance, e.g.
, NYPE 93, supra note 64, ¶ 31(e)(ii).
69 War risk insurance is available for voyage legs, e.g., for a Persian Gulf segment but not for legs across the Atlantic Ocean and into the Mediterranean Sea for a Gulf-bound ship. See generally Grant Gilmore & Charles Black, The Law of Admiralty §§ 2-11, at 79, 11-10, at 981
(2d ed. 1975); The Tanker War, supra note 21, at 75, 290-91. A decision to issue war risk insurance is discretionary with the U.S. Government. See generally 46 U.S.C.A. §§ 53901-12
(2012).
26

tanker grounding, breakup and destruction by U.K. armed forces to stop further environmental degradation, the Intervention Conventions and the 1982 Law of the Sea Convention authorize measures to combat pollution beyond the territorial sea.
70
The Law of the Sea Convention also allows coastal States to take measures, including temporarily suspending territorial sea innocent passage, to protect their coastal environments.
71 One example, negotiated before the
Convention, is MARPOL 73/78, requiring States to prohibit violations of its terms through national laws.
72 The Act to Prevent Pollution from Ships fulfils U.S. MARPOL obligations,
70 UNCLOS, supra note 3, art. 224(1); International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Nov. 29, 1969, 26 U.S.T. 765, 970
U.N.T.S. 211; Protocol to the International Convention Relating to Intervention on the High Seas in Cases of Pollution by Substances Other Than Oil, Nov. 2, 1973, 34 U.S.T. 3407, 1313
U.N.T.S. 3 (collectively hereinafter Intervention Conventions). The United States is not an
UNCLOS party; it is party to the Intervention Conventions, supra and the High Seas
Convention, supra note 3, whose arts. 24, 25 require States to have regulations to prevent oil pollution and measures to prevent pollution from dumping radioactive waste, and the
International Convention for the Prevention of the Sea by Oil, May 12, 1954, 12 U.S.T. 3, 327
U.N.T.S. 3. TIF, supra note 7, at 418. The United States has declared it considers UNCLOS’ navigational and overflight provisions to be customary law, however. Reagan Statement, supra note 34. Presumably these would include UNCLOS provisions for intervention to prevent high seas environmental damage, although since the United States is an Intervention Conventions party, under principles in Pacquete Habana and Sosa , supra note 34, U.S. courts would apply the Conventions standards, as implemented by federal statutes, instead of any customary rules flowing from UNCLOS on this point. See also Churchill & Lowe, supra note 7, at 350; 4 United
Nations Convention on the Law of the Sea 1982: A Commentary ¶¶ 224.1-224.7(e) (Myron H.
Nordquist ed.-in-chief, Shabtai Rosenne & Alexander Yankov vol. eds., Neal R. Grandy ass’t ed.
1991) (hereinafter 4 Commentary); Crawford, supra note 5, at 312-13; Jennings & Watts, supra note 5, §§ 353-54; Rothwell & Stephens, supra note 34, at 364.
71 UNCLOS, supra note 3, arts. 21(1)(d), 21(1)(f), 21(4); see also id. art. 42(1)(b)
(coastal State measures to prevent, reduce control pollution in straits); 54 (same rules for archipelagic States); Churchill & Lowe, supra note 7, at 127, 267; 2 Commentary, supra note 42,
¶¶ 21.1-21.11(a), 21.11(c)-21.11(d), 21.11(I)-21.12, 54.1-54.5; Restatement, supra note 5, §
513(2)(b); Rothwell & Stephens, supra note 34, at 355-56.
72
Protocol of 1978 Relating to the International Convention for the Prevention of
Pollution from Ships, 1973, with Annexes and Protocols, Feb. 17, 1978, T.I.A.S. — , 1340
U.N.T.S. 61 (hereinafter MARPOL), in force for the United States and many countries. See TIF,
27

along with implementing administrative regulations; under the Act the U.S. Department of
Homeland Security and other agencies, e.g.
, the U.S. Coast Guard, can withhold clearance for a vessel to leave U.S. waters, seek a bond that can require crew detentions as material witnesses, hefty civil fines and criminal indictments. Traditional admiralty in rem jurisdiction is not available for a vessel’s release.
73 The point for this analysis is that admiralty counsel must be aware of the limits of traditional admiralty law as well as having knowledge of how treaties, implementing legislation and administrative regulations operate.
74
The Law of the Sea Convention is replete with other provisions for environmental protection.
75 Although a few countries ( e.g.
, the United States) are not Convention parties, to the extent these rules reflect customary law, they bind those States as well.
76 Moreover, the customary law of necessity may allow third state intervention in ocean areas other than the high supra note 7, at 420-21.
73 Angelex Ltd. v. United States, 723 F.3d 500, 507-10 (4th Cir. 2013), inter alia citing
MARPOL, supra note 72; Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901-15 (2012)
(hereafter APPS).
74 Although there was no issue of it in Angelex , the later in time construction rule, supra note 62, could have operated as between MARPOL, supra note 72, and APPS, supra note 73.
75 See generally UNCLOS, supra note 3, Part XII; see also Continental Shelf Convention, supra note 3, art. 5(1) (conservation of living resources above the shelf); Fishing Convention, supra note 3, arts. 6-8 (offshore resources conservation); High Seas Convention, supra note 3, arts. 24-25 (oil, radioactive waste ); Churchill & Lowe, supra note 7, ch. 15; 4 Commentary, supra note 70, Pt. XII; Crawford, supra note 5, at 363; Jennings & Watts, supra note 5, §§ 355-
61; Restatement, supra note 5, §§ 502(b), 602-04; Rothwell & Stephens, supra note 34, ch. 15.
76
The United States considers that UNCLOS, supra note 3, navigational and overflight articles reflect customary law that the United States will observe. Reagan Statement, supra note
34. Careful review of other States’ pronouncements and secondary sources may be necessary to determine if other environmental protections are customary rules.
28

seas.
77
Admiralty lawyers must be aware of these issues in advising clients. Even if a client is a
U.S. national or U.S. corporation, his/her/its interests may include parties whose States are
Convention parties. Furthermore, the law of armed conflict at sea supports the view that belligerents must pay due regard to the maritime environment.
78 This does not mean that general environmental rules supersede the law of maritime warfare, which under the law of the sea
“other rules” clauses in the treaties and lex specialis principles continue to apply.
79
Other responses to the Torrey Canyon disaster were international mechanisms for loss compensation, the Civil Liability and Fund Conventions 80 and private insurance under clubs in the International Group of Shipowners’ Protection and Indemnity Associations (IGSP&IA). The
United States is not party to the treaties, but U.S. interests belong to the IGSP&IA. The United
States enacted legislation, the 1970 Water Quality Improvement Act of 1970 and the 1990 Oil
77 See generally ILC Draft Articles, supra note 9, art. 25 & cmts.; The Tanker War, supra note 21, at 180-82, quoting an earlier International Law Commission draft, superseded by art. 25.
78 San Remo Manual, supra note 15, ¶¶ 11, 35, 44; Thomas & Duncan, supra note 9, ¶
8.1.3. Treaties governing the law of naval warfare may have an effect on protecting and preserving the maritime environment. See generally The Tanker War, supra note 21, ch. 6.
79 See supra notes 3, 7 and accompanying text.
80 International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969,
973 U.N.T.S. 3; Protocol, Nov. 19, 1976, 1225 U.N.T.S. 356; Protocol, May 25, 1984, 23 ILM
195, never in force; International Convention on the Establishment of an International Fund for
Oil Pollution Damage, Dec. 18, 1971, 1110 U.N.T.S. 57; Protocol to the International
Convention on the Establishment of an International Fund for Compensation for Oil Pollution
Damage of December 18,1971, Nov. 19, 1976, 16 ILM 621, all being amended by International
Maritime Organization Protocol of 1992 to Amend the International Convention on Civil
Liability for Oil Pollution Damage, 1969, Nov. 27, 1992, 1956 U.N.T.S. 255. Not every State is party to all of these agreements; an admiralty lawyer must be aware of this, too, in applying the law of treaties and whether the treaties recite customary norms. Rotterdam Rules, supra note 55, art. 17(3)(n) allows deviation (“reasonable measures”) to avoid or attempt to avoid damage to the environment; see also supra note 52 and accompanying text.
29

Pollution Act.
81
The admiralty lawyer must navigate the treaties if other than U.S. interests are involved, and to be aware that not all States are parties to all agreements.
82
These treaty and customary rules apply to law of the sea situations; the law of armed conflict at sea says that they must be given “due regard” 83 but, under the “other rules” formulation, are not per se binding.
84
G. Other international institutional lawmaking
As the snapshot view of the Libya crisis reveals, international lawmaking operates at more than the traditional two levels of general multilateral rules exemplified by the Charter and national law, e.g.
, federal legislation or executive action in the United States. In the Libya situation, the European Union voted binding rules for its member States.
85
Many other international organizations have international authority to enact rules binding their member countries, who must enforce them, perhaps through legislation but also executive action or administrative rules. Some are U.N.-affiliated specialized agencies; others are independent of the U.N. system.
86 Two international organizations that may impact admiralty
81 33 U.S.C. §§ 2701-61 (2012).
82 UNCLOS, supra note 3, is a prominent example.
83 San Remo Manual, supra note 15, ¶ 44; Thomas & Duncan, supra note 9, ¶ 8.1.3; see also Walker, Definitions, supra note 4, at 179-88 (definitions for due regard as used in
UNCLOS, supra note 3).
84 See supra notes 3, 7 and accompanying text.
85 See supra notes 11, 16 and accompanying text.
86
Still other intergovernmental organizations do not have international personality but contribute to the body of knowledge and laws that affect seafarers and the attorneys who represent their interests, e.g.
, the International Hydrographic Organization, constituted by
Convention on the International Hydrographic Organization, May 3, 1967, 21 U.S.T. 1857, 751
30

practice are U.N. specialized agencies, the International Maritime Organization (IMO)
87
and the
International Labour Organization(ILO).
88
The IMO develops treaties covering many aspects of oceans law. For example, IMO collision regulation standards amendments go through the IMO
U.N.T.S. 41; it has U.N. observer status and is a recognized authority on hydrographic surveying and nautical charting.
87
Convention on the International Maritime Consultative Organization, Mar. 6, 1948, 9
U.S.T. 621, 289 U.N.T.S. 48, was the original constitutive treaty; Amendments to the
Convention on the Intergovernmental Maritime Consultative Organization of March 6, 1948,
Nov. 14, 1975, 34 U.S.T. 497, 1276 U.N.T.S. 468, changed the name of the organization and the
1948 Convention title to Convention on the International Maritime Organization from IMCO to
IMO, effective May 22, 1982. There have been other amendments to the basic Convention, e.g.,
Amendments to Articles 17 and 18 of the Convention on the Intergovernmental Maritime
Consultative Organization of March 6, 1948, Sept. 15, 1964, 18 U.S.T. 1299, 607 U.N.T.S.
2781; Amendment to Article 28 of the Convention on the International Maritime Consultative
Organization of March 6, 1948, Sept. 28, 1965, 19 U.S.T. 4855, 649 U.N.T.S. 334; Amendments to Certain Articles of the Convention on the International Maritime Consultative Organization of
March 6, 1948, Oct. 17, 1974, 28 U.S.T. 4607, 1080 U.N.T.S. 375; Amendments to the
Convention on the Intergovernmental Maritime Consultative Organization of March 6, 1948, to the Institutionalization of the Committee on Technical Cooperation in the Convention, Nov. 17,
1977, T.I.A.S. 11094, 1380 U.N.T.S. 268; Amendments to the Convention on the
Intergovernmental Maritime Organization, Nov. 15, 1979, T.I.A.S. 11094, 1380 U.N.T.S. 288;
Amendments to the Convention on the International Maritime Organization of March 6, 1948,
Relating to the Institutionalization of the Facilitation Committee, Nov. 7, 1991, U.S.T. Doc. 104-
36; Amendments to the Convention on the International Maritime Organization, Nov. 4, 1993,
T.I.A.S. — , 2199 U.N.T.S. 113.
88 Instrument for the Amendment of the Constitution of the International Labor
Organization, Oct. 9, 1946, 62 Stat. 3485, 15 U.N.T.S. 35, amended by Instrument for the
Amendment of the Constitution of the International Labor Organization, June 25, 1953, 7 U.S.T.
245, 191 U.N.T.S. 143; Instrument for the Amendment of the Constitution of the International
Labor Organization, June 22, 1962, 14 U.S.T. 1039, 466 U.N.T.S. 323; Instrument for the
Amendment of the Constitution of the International Labor Organization, June 22, 1972, 22
U.S.T. 3253, 958 U.N.T.S. 167; Instrument for the Amendment of the Constitution of the
International Labor Organization, June 24, 1986, apparently not in force for some countries, e.g.
, the United States, compare TIF, supra note 7, at 411-12 with Christian L. Wiktor, Multilateral
Treaty Calendar 1290 (1998). Treaty of Peace with Germany (Treaty of Versailles), with
Protocol, arts. 387-427, June 28, 1919, 225 Consol. T.S. 188, 373 established the ILO. Other
World War I peace treaties included these provisions. Wiktor, supra at 458. The United States withdrew from the ILO for three years, 1977-80. TIF, supra at 412.
31

Maritime Safety Committee. If the Committee adopts an amendment, it is communicated to all
States parties at least six months before the IMO Assembly, IMO’s “legislative” body, meets. If the Assembly adopts the amendment by two-thirds vote, it is sent to IMO Members for acceptance. If accepted within a stated time by over two-thirds of the Members, it goes into force for those Members and supersedes previous applicable regulations.
89 A COLREGS violation can possibly result in private law liability, e.g., for a safety statute violation in mariner personal injury or wrongful death suits.
90 Some ILO treaties govern seafarer labor standards.
91
89 International Maritime Organization, Conventions: Adopting a Convention, Entry into
Force, Accession, Amendment, Enforcement, Tacit Acceptance Procedure (Sept. 8, 2013), http://www.org/About/Conventions/Pages/Home.
E.g.
, Convention on the International
Regulations for Preventing Collisions at Sea, art. 6, Oct. 20, 1972, 28 U.S.T. 3459, 1050
U.N.T.S.16 (hereinafter COLREGS). Six States remain parties to International Regulations for
Preventing Collisions at Sea, June 17, 1960, 16 U.S.T. 794. TIF, supra note 7, at 428. See id. for amendments binding the United States. If a COLREG has not been amended, the Convention annex text applies. Adherence to COLREGS also minimizes environmental damage risk.
Rothwell & Stephens, supra note 34, at 362. International Navigation Rules Act of 1977, 33
U.S.C.A. § 1603 & ff. (2012) authorizes the President of the United States to proclaim
COLREGS, supra , declaring that when so proclaimed, they have the same effect as U.S. statutes.
Presidents’ executive orders have directed department secretaries to conform federal regulations, published in the Federal Register, to COLREGS. The Pennsylvania Rule of burden of proof may apply in U.S. admiralty cases. The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1874); see also
Schoenbaum & McClellan, supra note 55, § 11-3.
90 Jones Act, 46 U.S.C.A. § 30104-05 (2012), incorporating by reference the Federal
Employers Liability Act, 45 U.S.C. § 53 (2012) (violation of statute enacted for safety of employees). The Jones Act exception provision, 46 U.S.C.A. § 30105(a), incorporates by reference the continental shelf definition in the 1958 Continental Shelf Convention, supra note 3, art. 1, to which the United States remains a party. This is another reason why U.S. admiralty lawyers should be versed in international law, i.e., they must consult cases and literature on the
Convention.
91 E.g.
, Convention Concerning Minimum Standards in Merchant Ships, Oct. 29, 1976,
U.S.T. Doc. 99-21, 1259 U.N.T.S. 335; Convention Concerning the Certification of Able
Seamen, June 29, 1946, 5 U.S.T. 605, 94 U.N.T.S. 11; Convention Fixing the Minimum Age for the Admission of Children to Employment at Sea, Oct. 24, 1936, 54 Stat. 1705, 40 U.N.T.S. 205;
Convention Concerning the Liability of the Shipowner in Case of Sickness, Injury or Death of
Seamen, Oct. 24,1936, 54 Stat. 1693, 40 U.N.T.S. 169; Convention Concerning the Minimum
32

This is but a sample of the international rules, sometimes regional and sometimes worldwide in scope, that other international organizations generate that may confront an admiralty lawyer. Today proctors must be versed in the lawmaking procedures of these organizations and the law of treaties, because not all States are parties to all organizationsponsored treaties. They must also know how these treaty terms become part of national law.
H. After the accident: salvage law .
Traditional salvage law, governed internationally by an early Twentieth Century treaty, did not deal with environmental issues. A newer treaty making the rounds for ratification and in force for the United States and countries that have ratified it, provides for a salvage award for attempting to protect the maritime environment; the “no cure no pay” principle does not apply to this situation, even though the ship is not salvaged.
92
Armed conflict situations can raise salvage
Requirement of Professional Capacity for Masters and Officers on Board Merchant Ships, Oct.
24, 1936, 54 Stat.1683, 40 U.N.T.S. 133, the last four of which were modified by Convention for the Partial Revision of the Conventions Adopted by the General Conference of the International
Labor Organization at Its First Twenty-Eight Sessions, Oct. 9, 1946, 62 Stat. 1672, 38 U.N.T.S.
3. Adherence to standards not only promotes worker safety but also environmental protection.
Rothwell & Stephens, supra note 34, at 361. Recently the Maritime Labour Convention, Feb.
23, 2006, “an important development of the international framework of seafarers . . . “ Iliana
Christodoulou, Critical Review of the Consolidated Maritime Labour Convention (2006) of the
International Labour Organization , 43 J. Marit. L. & Com. 467, 468 (2012), recently went into force. The Convention adopts the tacit acceptance procedure IMO uses. Id. 471. Under ILO
Constitution arts. 19(5)(b), 19(6)(b), Congress was notified of the new umbrella treaty. Steve
Charnovitz, Note, State Department Notifies Congress of New ILO Conventions and
Recommendations , 103 Am. J. Int’l L. 586 (2009).
92 Compare 1910 Salvage Convention, supra note 43, art. 2, with 1989 Salvage
Convention, supra note 43, arts. 1, 12-14; see also Rothwell & Stephens, supra note 34, at 365;
Schoenbaum & McClellan, supra note 55, § 13-9; Martin Davies, Whatever Happened to the
Salvage Convention 1989?
, 39 J. Mar. L. & Com. 463 (2008). Standard contract salvage forms may reflect this exception. See, e.g., Council of Lloyd’s, Lloyd’s Standard Form of Salvage
Agreement ¶¶ B, C (LOF 2000), available at www.lloyds.com; Semco Salvage & Marine Pte.
Ltd. v. Lancer Nav. Co., 1997 A.M.C. 1989 (U.K. H.L. 1997).
33

issues; the World War II Odenwald case
93
makes this clear; thus military lawyers, usually concerned with the law of naval warfare and the law of the sea, must also be familiar with this aspect of admiralty private practice. For all admiralty lawyers, it is necessary to be versed in law of treaties and treaty succession principles, and the impact of national law, e.g.
, the U.S.
principles of the non-self-executing treaty and the later in time construction rule.
94 Treasure salvage, with its subset of special rules on finds and the like, 95 may be subject to customary international law rules related to salvaging state vessels and aircraft, particularly naval vessels and military aircraft that sink at sea.
96 The 2001 UNESCO Convention, as well as the 1982 Law of the Sea Convention, may also play roles in the law governing recovery of objects on the ocean bottom.
97
I. Human rights
93 See supra note 49 and accompanying text.
94 See supra notes 22, 62 and accompanying text.
95 See Schoenbaum & McClellan, supra note 55, § 13-7.
96 A State’s title to these is never lost until that State relinquishes it. Thomas & Duncan, supra note 9, ¶ 2.1.2.2; see also President William J. Clinton, Statement on United States Policy for the Protection of Sunken Warships, Jan. 19, 2001, 37 Weekly Comp. Presid. Doc. 195 (Jan.
22, 2001); Stewart, supra note 42. State claims can persist for centuries; Spain still asserted title to a warship that exploded and sank in 1708. See, e.g., Carla Rahn Phillips, The Treasure of the
San Jose: Death at Sea in the War of the Spanish Succession 213-15 (2007). Spain successfully claimed title and release of the res, on sovereign immunity grounds under the FSIA, supra note
46, 28 U.S.C. §§ 1609-11 (2012), for remains of a Spanish Royal Navy frigate that exploded and sank on the high seas off Gibraltar in 1804 during the Napoleonic Wars, and its cargo. Odyssey
Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159 (11th Cir. 2011).
97 UNCLOS, supra note 3, art. 149; Convention on the Protection of the Underwater
Cultural Heritage, Nov. 2, 2001, 2562 U.N.T.S. 3; see also 6 United Nations Convention on the
Law of the Sea 1982: A Commentary ¶¶ 149.1-149.11 (Satya N. Nandan ed.-in-chief, Michael
W. Lodge assoc. ed., Shabtai Rosenne gen. ed. 2002). The United States is not party to either treaty.
34

A traditional analysis of the law of the sea might say that there has been little application of human rights norms, as distinguished from humanitarian law principles that apply during armed conflict, in oceans law situations.
98
That may not be true in the future.
99
It may not be so even today, if international labor law principles 100 are at issue. Another candidate is international
98
Humanitarian law, distinguished from human rights law, applies during armed conflict situations; see, e.g., Second Convention, supra note 43, arts. 2, 3; see also 2 Pictet, supra note
43, at 26-39. The blurring has begun in land warfare occupation situations. See, e.g.
, George K.
Walker, Occupation in Iraq: Issues on the Periphery and for the Future , The War in Iraq: A
Legal Analysis ch. 12 (Nav. War C. Int’l L. Stud. v. 86, Raul A. “Pete” Pedrozo ed. 2010).
99
E.g.
, Hirsi Jamaa v. Italy, App. No. 27765/09, 31 ILM 426 (Eur. Ct. H.R., Feb. 23,
2012) invalidated “push back” of undocumented migrants and asylum seekers from Libya by
Italy’s navy, which picked up these people on the high seas and returned them to Libya, pursuant to Italy-Libya treaties, under European Convention for Protection of Human Rights and
Fundamental Freedoms, arts. 3, 13, Nov. 4, 1950, 213 U.N.T.S. 222, and Protocol No. 4, art. 4,
Sept. 16, 1963, 1496 U.N.T.S. 263. See also Jan Arno Hessbreugge, European Court of Human
Rights Protects Migrants Against “Push Back” Operations on the High Seas , 16 ASIL Insight
(No. 14, Apr. 17, 2012), comparing Sale v. Haitian Centers Council, 509 U.S. 155 (1993), approving return of Haitian refugees seeking asylum in the United States under the nonrefoulement principle, cf.
Convention Relating to the Status of Refugees, art. 33(1), July 28,
1951, 189 U.N.T.S. 137. When Italian Navy ships picked up the refugees, Italy complied with its duty to rescue those in peril on the sea, as long as rescue did not imperil the succoring vessel, its crew or passengers, a universal rule applicable in peace and war. See supra note 43 and accompanying text. After rescuing them and sending them ashore, law of the sea obligations ended and those under human rights law began. A more interesting question, unanswered under the case’s facts, would have been the situation if the case had been brought while refugees were aboard ship in territorial waters, where law of the sea and human rights obligations overlapped (if one has a view that human rights obligations are territorial in scope); or in inland waters, cf. ARA Libertad , supra note 42, and only human rights could have applied; or whether
Italy’s human rights obligations accrued under the floating territorial jurisdiction principle, cf.
Restatement, supra note 5, §§ 402 cmt. h, 502(2). In the 2013 Lampedusa Island tragedy survivors were taken ashore after their smugglers’ boat capsized in Italy’s territorial waters.
Many drowned. Kanter & Pianigiani, supra note 43.
100 Although not labeled as such, some multilateral treaties governing international labor law may have a human rights dimension. General human rights treaties speak of working conditions, e.g.
, International Covenant on Economic, Social and Cultural Rights, arts. 6-7, Dec.
16, 1966, 193 U.N.T.S. 3, and ILO-sponsored treaties, some longstanding and some of these binding the United States, e.g.
, Convention Concerning Minimum Standards in Merchant Ships, supra note 91; Convention Concerning the Certification of Able Seamen, supra note 91;
35

environmental law that would declare a human right to a clean environment.
101
Although it might be argued, e.g.
, that U.S. admiralty lawyers need not be concerned with issues essentially involving human rights in Europe,
102
given the worldwide nature of shipping companies and registration and nationality of vessels today, 103 the multinational aspects of chartering and cargoes, crewing and voyages, this could be an unnecessarily narrow course. The same might be said of other issues involving human rights law, in force or evolving, maybe through custom or
Convention Fixing the Minimum Age for the Admission of Children to Employment at Sea, supra note 91; Convention Concerning the Liability of the Shipowner in Case of Sickness, Injury or Death of Seamen, supra note 91; Convention Concerning the Minimum Requirement of
Professional Capacity for Masters and Officers on Board Merchant Ships, supra note 91, the last four of which modified by Convention for the Partial Revision of the Conventions Adopted by the General Conference of the International Labor Organization at Its First Twenty-Eight
Sessions, supra note 91, are aimed at mariners’ work. Lex specialis principles may require applying these treaties’ standards over more general human rights treaty norms, but developing customary or jus cogens norms varying from specific ILO treaty norms may be at stake as well.
See Vienna Convention, supra note 5, arts. 30, 59; I.C.J. Statute art. 38(1); Aust, supra note 5, ch. 12; Corten & Klein, supra note 5, at 764-800; Restatement, supra note 5, § 323; Sinclair, supra note 5, at 93-98, 183-85; supra note 6 and accompanying text. Admiralty lawyers might meet problems these treaties raise.
101 See, e.g.
, Neil A.F. Popovic, In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment , 27 Colum. Hum.
Rts. L. Rev. 487, 489 (1996). How human rights interfaces with UNCLOS, supra note 3 provisions protecting the maritime environment raises other issues, e.g.
, newer customary law superseding earlier treaty law, later in time principles or perhaps jus cogens, is an open question.
See supra notes 29-32, 62 and accompanying text. Admiralty counsel should be aware of these potential issues.
102 As The Tanker War, supra note 21, at 286-91 reported in 2000, oceans transport had become a multinational business. It remains so today. See generally George, supra note 43
(describing ocean merchant shipping).
103 Cf.
UNCLOS, supra note 3, arts. 91, 92, 94; see also High Seas Convention, supra note 3, art. 5(1); Churchill & Lowe, supra note 7, at 208-09, 255-56, 273-74; 3 Commentary, supra note 34, ¶¶ 91.1-92.6(f), 94.1-94.8( l ); Crawford, supra note 5, at 530-34; Jennings &
Watts, supra note 5, §§ 287-88; Restatement, supra note 5, §§ 501-02; Rothwell & Stephens, supra note 34, at 159-60; Walker, Definitions, supra note 4, at 193-95.
36

international agreements. Here too there may be limitations on application of human rights norms, through a rule that armed conflict is an exception to treaty rules,
104
a lex specialis derogating from general custom,
105
or perhaps through human rights treaties’ derogation clauses.
106
J. “Soft law” and the admiralty lawyer
An increasingly important issue in a wired world of instant communications is “soft law,” i.e.
, principles and rules ranking below the standard public international law sources, U.N. and other international organizations’ law, and research of commentators or judicial decisions, the latter two having only secondary source vitality.
107 Soft law has been described as “international instruments which their makers recognise are not treaties, . . . but have as their purpose the promulgation of norms (albeit not legally binding) of general or universal application.” These include “guidelines, codes of practice, programs, etc., and are frequently in the social and environmental fields,” 108 Perceptive admiralty lawyers should take account of these trends, for, like today’s nonbinding U.N. resolutions that can ripen into tomorrow’s treaty or customary rules, 109 today’s soft law can become tomorrow’s legal obligation.
104 See supra note 5 and accompanying text.
105 See supra note 7 and accompanying text.
106 E.g.
, International Covenant on Civil and Political Rights, art. 4, Dec. 17, 1966, 999
U.N.T.S. 171; see also Crawford, supra note 5, at 665-66; Doswald-Beck, supra note 5, at 79-
105,108; Jennings & Watts, supra note 5, § 440, at 1016-17.
107
I.C.J. Statute art. 38(1)(d); see also Crawford, supra note 5, at 37-42; Jennings &
Watts, supra note 5, §§ 13-14; Restatement, supra note 5, § 103(2).
108
Aust, supra note 5, at 49-50; Shelton, supra note 31, at 319-22.
109
See supra notes 19-20 and accompanying text.
37

II. Other International Law Issues Affecting the Admiralty Lawyer
Part I discussed issues related to the interface of international law with oceans law. Part
II concentrates on the influence of international law on national law, and national law related to admiralty in particular.
The piracy epidemic off African coasts and elsewhere illustrates the relationship of national law with international law. The law of the sea defines and denounces high seas piracy.
110 States have legislation denouncing piracy.
111 For counsel, and in particular U.S.
prosecution and defense lawyers in piracy cases, what is the standard to be applied – that of the treaties, general customary law 112 or national law precedents?
113 To be sure, as a technical matter,
110 UNCLOS, supra note 3, art. 105; High Seas Convention, supra note 3, art. 15; see also Churchill & Lowe, supra note 7, at 209-11; 3 Commentary, supra note 34, ¶¶ 105.1-
105.10(c); Jennings & Watts, supra note 5, §§ 299-305; Restatement, supra note 5, §§ 404,
522(2)(a); Rothwell & Stephens, supra note 34, at 162-64.
111 E.g.
, 18 U.S.C. § 1651 (2012).
112 There is no federal common law of crimes. United States v. Hudson, 11 U.S. (7
Cranch) 32 (1812). For the U.S. federal courts, piracy prosecutions must fall under the statute,
18 U.S.C. § 1651 (2012), which can incorporate international standards, as § 1651 does.
113 E.g.
, United States v. Shibin, 722 F.3d 233, 240-43 (4th Cir. 2013) (inter alia citing
UNCLOS, supra note 3, arts. 86, 101; S.C. Res. 2020, U.N. Doc. S/RES/2020 [2011]) ; United
States v. Ali, 718 F.3d 929, 935-39 (D.C. Cir. 2013) (citing inter alia Murray v. Schooner
Charming Betsy, 6 U.S. [2 Cranch] 64, 118 [1804]; UNCLOS, supra , art. 105); Kiobel v. Royal
Dutch Petrol. Co., 133 S.Ct. 1659 [2013], dismissing piracy-related counts of indictment);
Institute of Cetacean Res. v. Sea Shepherd Conserv. Soc’y, 725 F.3d 940, 943 (9th Cir. 2013)
(inter alia citing UNCLOS, supra , art. 101; High Seas Convention, supra note 3, art. 15); United
States v. Dire, 680 F.3d 446, 456-70 (4th Cir. 2012) (High Seas Convention, supra , art. 15 analysis; also citing UNCLOS , supra , art. 105, recognizing that the United States is not a party).
Curiously, although Shibin, Ali and Institute cited UNCLOS, Institute saying Somalia was not an
UNCLOS party, the cases did not recite that the United States was also not an UNCLOS party; on the other hand, Dire declared that the United States was not an UNCLOS party but that
Somalia was in 2010. Presumably Ali and Institute relied on the customary rule in UNCLOS art.
105, a copy of High Seas Convention, supra art. 15. Dire declared the UNCLOS rule was customary law for nonparties and binding treaty law for UNCLOS parties. Dire , supra at 461-
38

piracy is a universal crime,
114
and those who prosecute, defend or suppress piracy are, strictly speaking, not dealing within the admiralty context, but piracy’s effect can be felt in admiralty cases.
For example, in 2010 Congress enacted this legislation, to give self-defense immunity from suit:
(a) . . . An owner, operator, time charterer, master, mariner, or individual who uses force or authorizes the use of force to defend a vessel of the United States against an act of piracy shall not be liable in monetary damages for any injury or death caused by such force to any person engaging in an act of if such force was in accordance with standard rules for the use of force in self-defense of vessels published by the secretary.
(b) . . . To carry out the purpose of this section, the Secretary of the department in which the [U.S.] Coast Guard is operating [currently the U.S. Department of Homeland
Security] shall work through the International Maritime Organization [IMO] to establish agreements to promote coordinated action among the flag- and port-states to deter, protect against, and rapidly respond to piracy against the vessels of, and in the waters under the jurisdiction of, those nations, and to insure limitations on liability similar those established by . . . (a).
(c) . . . For purposes of this section, . . . “act of piracy” means any act of aggression, search, restraint, depredation, or seizure attempted against a vessel of the
United States by an individual not authorized by the United States, a foreign government,
62. See also Kiobel , 133 S.Ct. at 1667-68 (dictum).
114
Restatement, supra note 5, § 404.
39

or an international organization recognized by the United States to enforce law on the high seas.
115
The United States is an IMO member;
116
IMO actions are mandatory rules for the United States and other member countries.
117 Their widespread acceptance by seafaring States may signal status as customary international law.
118 Merchant ships now may carry armed shipriders, hired from private companies, for protection when going through pirate-infested waters.
119 These shipriders may use weapons with the same firepower as those in an arsenal of a warship that may be patrolling the same waters.
120
115 46 U.S.C.A. § 8107 (2012). Id.
§ 116 (2012) defines, for Title 46 purposes, “vessel of the United States”: “A vessel documented under chapter 121 [of 46 U.S.C.A.] (or exempt from documentation under [46 U.S.C.A. § 12102(c) . . . , numbered under chapter 123 [of 46
U.S.C.A.], or titled under the law of a State.” A “foreign vessel” is “a vessel of foreign registry or operated under the authority of a foreign country.” 46 U.S.C.A. § 110 (2012). Chapter 121,
46 U.S.C.A. §§ 12101-52 (2012), covers vessels rebuilt in the United States. Chapter 123, 46
U.S.C.A. §§ 12301-09 (2012), deals with undocumented vessels that must be documented by an issuing authority of a state of the United States and barges operating on U.S. navigable waters.
116 TIF, supra note 7, at 406-07.
117 See supra notes 87-90 and accompanying text.
118 See supra note 21 and accompanying text.
119 As a matter of policy some companies do not, relying on pirate watches and other protections, e.g.
, water cannon. However, pirates have not successfully attacked a vessel with armed shipriders. George, supra note 43, at 113, 115, 162, reporting that Maersk did not employ them when she voyaged with a Maersk-owned vessel. However, since she wrote, Maersk began hiring them; two former U.S. Navy SEALS died recently from substance overdose, perhaps promoted by the boredom Ms. George reported for seafaring generally today. Nicholas Kulich et al., Hired to Fight Pirates, but Doomed by Boredom , N.Y. Times, Feb. 26, 2014, at A1.
120 Shipriders may have their own “mother ships.” Police arrested 8 crew and 25 security officers after the Indian Coast Guard escorted the U.S.-owned, Sierra Leone-registered M/V
Seaman Guard Ohio into Tuticorn, India; those aboard, from Estonia, India, Ukraine and the
United Kingdom, were charged with illegally transporting weapons and ammunition in Indian waters after they could not produce documents allowing carriage of weapons and ammunition.
40

The 2010 legislation provokes questions: Is the statutory meaning of “aggression” the same as under U.N. Charter Article 2(4), or what the United States might declare is the U.S.
public law rule for self-defense in response to aggression?
121
Is the right of self-defense under the statute the same as that under international law, which can include anticipatory selfdefense?
122 A further question is whether the statutory self-defense right is the same in civil litigation as in a criminal case.
123 Does using these weapons violate law of armed conflict rules, one compilation of which says merchant ships can arm for self-defense without losing their neutral status, giving the example of piracy defense?
124 Does having shipriders aboard convert vessels into de facto auxiliaries if armed conflict begins near a pirate-infested sea area?
125 If a warship is in the vicinity as part of an international antipiracy patrol, do the merchantmen
Police seized 35 automatic weapons and 5700 rounds of ammunition. Associated Press, India:
Arrests on American-Owned Ship , N.Y. Times, Oct. 19, 2013, at A9. India has charged two
Italian marines aboard a merchantman, Enrica Lexie , who allegedly fired on a Kerala State fishing boat the marines thought were filled with pirates, with murder of two boat crewmen.
This incident may have occurred outside of Indian territorial waters, perhaps in India’s exclusive economic zone. The media report is not clear. Gardiner Harris, Dispute Over Italian Marines
Prompts Bickering in Indian Court, but No Resolution, id ., Feb. 14, 2014.
121 U.N. Charter art. 2(4); see also UNCLOS, supra note 3, arts. 88, 301; supra note 34 and accompanying text.
122 See supra notes 28-30 and accompanying text.
123 Civil litigation might ensue if shipriders protecting their ship injure or kill fellow crewmen, who then file under maritime law; cargo and other interests might sue for damage, too.
124 San Remo Manual, supra note 15, ¶ 69 & cmt. 69.1.
125
S.C. Res. 1851, U.N. Doc. S/RES/1851 (2008) authorized shiprider agreements with the situation off Somalia in mind; quaere whether this might be interpreted to authorize employment of shipriders elsewhere. See also Hague VII, supra note 42; San Remo Manual, supra note 15, ¶¶ 67-68 & cmts.; Rothwell & Stephens, supra note 34, at 164.
41

assimilate to the warship standards for self-defense or the other way around? If the warship is part of an antipiracy coalition force, what about warship self-defense standards? Pirates have foolishly fired on warships, which responded.
126
Should it be unit self-defense, i.e.
, the warship standards are those of the flag it flies, or should there be a coalition self-defense rule if the warship is in a coalition antipiracy operation, or should a sort of coalition rule apply if the merchantman flies a flag different from the warship? There are no easy answers to these questions, which could arise in advice to military commands or private clients, particularly if the latter are interested in private law liability, including insurance coverage. There are also questions, independent of statute-based issues, of piracy’s impact on charters, carriage of goods and insurance.
127 Reference to IMO rules interlocks with the general U.S. participation in that organization’s worldwide web of standards.
128
Another issue is the breadth of the territorial sea; under the 1982 Convention, States may claim up to 12 nautical miles.
129 If, as under the U.S. Death on the High Seas Act, national legislation limits its scope to death involving a ship or aircraft accident occurring on navigable
126 See, e.g., United States v. Dire, 680 F.3d 446; supra note 113.
127 See, e.g., Hague Rules, supra note 55, art. 4(f) (public enemies); Rotterdam Rules, supra note 55, art. 17(3)(c) (piracy); COGSA, supra note 55, 46 U.S.C.A. Note § 1304(2)(f) (act of public enemies); Harter Act, supra note 55, 46 U.S.C.A. § 192 (same); which may also figure in charter claims if a charter incorporates bill of lading standards for carrier liability sufficiently;
U.K. Marine Insurance Act 1906, supra note 68, ch. 41, 3.
128 See supra notes 81-84 and accompanying text.
129
UNCLOS, supra note 3, art. 3; see also Churchill & Lowe, supra note 7, at 77-81; 2
Commentary, supra note 42, ¶¶ 3.1-3.8(e); Crawford, supra note 5, at 255-61; Jennings & Watts, supra note 5, § 196; Restatement, supra note 5, § 511; Rothwell & Stephens, supra note 34, at
71-73. Reagan Statement, supra note 34, claimed a 12-mile territorial sea for the United States.
42

waters beyond three nautical miles,
130
should a court exclude DOHSA coverage out to twelve miles because of the U.S. claim of 12 miles by executive action?
131
One court said “yes”
132 before the DOHSA amendment for commercial aircraft was in force.
133
The correct answer then was “no.” 134 (There are different rules today for commercial aircraft falling from the sky at sea, 135 but no statutory rules at all for any aircraft accidents resulting in injuries.) Lawyers familiar with the interface of international law, national law in statutes and national law in the executive statement should have been alert to the situation.
Congress solved the issue for the exclusive economic zone under U.S. law for Title 46 of the U.S. Code, a main source for maritime law statutes; it is the same as the 1983 presidential
130 Death on the High Seas Act (hereinafter DOHSA), 46 U.S.C.A. § 30302 (2012), formerly 46 U.S.C.App. § 761(a) (2006) (limited to a marine league, or three nautical miles).
See also Walker, Definitions, supra note 4, at 247-49, defining “mile,” “nautical mile,” noting different definitions, recommending 1852 meters, or 6076.115 feet, corresponding to 60 nautical miles per degree of latitude, defined in id. 233-34.
131 Reagan Statement, supra note 34.
132 In re Air Crash Off Long Island, N.Y., 209 F.3d 200, 203-15 (2d Cir. 2000).
133 See infra note 134 and accompanying text. Reagan Statement, supra note 34, carefully left in place all legislative rules.
134 See Helman v. Alcoa Global Fasteners, 637 F.3d 986, 989-93 (9th Cir. 2011)
(following the then statutory language, rejecting Air Crash , supra note 132, analysis).
135 Under the current DOHSA, supra note 130, 46 U.S.C.A. §§ 30302, 30307 (2012), wrongful death claims will lie for all deaths occurring beyond three miles of a U.S. state’s shore, but whether a plaintiff can get nonpecuniary damages depends on whether the plane hits the ocean more or less than twelve miles seaward. The U.S. coastal state’s law determines damages between three and twelve miles; U.S. coastal state law of liability applies up to three miles off shore; beyond that, DOHSA covers the situation. These rules do not apply to noncommercial aircraft cases, e.g.
, if a private aircraft goes down with nonpaying passengers aboard.
43

statement.
136
DOHSA, however, does not define “shore” of the United States for baselines measurements.
137
Presumably the same baselines derived from the law of the sea
138
apply in
DOHSA cases; that appears to be a trend in the piracy cases for the definition of piracy.
139
National litigation miscues can result in problems for the admiralty lawyer unaware of the impacts of international law and the related fields of transnational law and comparative law.
Issues related to beginning a lawsuit in, e.g.
, the United States, illustrate the point. First, failure to recognize the law of treaty succession may invalidate service.
140 Second, failure to use a
136 46 U.S.C. § 107 (2012), incorporating Reagan Statement, supra note 34 by reference.
Congress also tracked the Continental Shelf Convention, supra note 3, art. 1 definition for the
Jones Act; see also UNCLOS, supra note 3, arts. 55-75, 76; Churchill & Lowe, supra note 7, at
49, 141-51; 2 Commentary, supra note 42, ¶¶ 55.1-76.18(m); Crawford, supra note 5, at 269-74;
Jennings & Watts, supra note 5, §§ 314-47; Restatement, supra note 5, §§ 511(c)-511(d), 514-
15, which errs in id.
§ 511(d) in declaring coastal States may exercise jurisdiction over the shelf
( id.
§ 515 correctly recites that a coastal State has sovereign rights over its shelf); Rothwell &
Stephens, supra note 34, chs. 4-5.
137 46 U.S.C.A. § 30302, 30307 (2012); compare 46 U.S.C.App. §761 (2006).
138 UNCLOS, supra note 3, arts. 3-9, 10(5)-10(6), 13(1), 14-16, 35(a), 47-48, 49(1), 57,
76(1), 76(4)(a), 76(5)-76(8), 82(1), 246(6); Territorial Sea Convention, supra note 3, arts. 3-6,
12(1), 13; Reagan Statement, supra note 34; see also Churchill & Lowe, supra note 7, at 8, 31-
61, 118-25; 2 Commentary, supra note 42, ¶¶ 3.1-9.5(e), 10.1- 10.5(a), 10.5(e)-10.6, 13.1-
13.5(b), 14.1-16.8(e), 35.1-35.7(a), 47.1 -48.7, 49.1-49.9(a), 57.1-57.8(b); 76.1-76.18(a),
76.18(e)-76.18(k), 82.1-82.12(e); 4 id., supra note 70, ¶¶ 246.1-246.17(f); Crawford, supra note
5, at 256-60, 274, 300; Jennings & Watts, supra note 5, §§ 188-94, 215; Restatement, supra note
5, § 511; Rothwell & Stephens, supra note 34, at 33-44, 50-51, 183-85; Walker, Definitions, supra note 4, at 306-08.
139 See supra notes 110-14 and accompanying text.
140 E.g.
, in Nuance Communications, Inc. v. Abbyy Software House, 626 F.3d 1222,
1236-41 (Fed. Cir. 2010), the Russian Federation, a successor State to the imploded USSR, had not declared acceptance of Convention on Service Abroad of Judicial and Extrajudicial
Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163
(hereinafter Hague Service Convention), which had bound the United States and the USSR. The result was that plaintiff was not required to use the Convention method. Convention service was not necessary; defendants could be served by other than under Fed. R. Civ. P. 4(f). The U.S.
44

treaty-approved service method may be treated as invalid service if judgment recognition and enforcement is sought abroad.
141
On the other hand, national legislation or executive action may preserve application of international law. If statutes declare they are subject to other treaties, as the U.S. Foreign
Sovereign Immunities Act does, 142 or incorporate international law as accepted by the United
States, 143 or if executive action directs international law compliance 144 or recognizes the generally accepted norm, 145 the international rule of law is promoted. Moreover, a treaty can
Department of State website or TIF, supra note 7, at 410 and treaty succession law, supra note 7, might have clarified counsel’s course.
141 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 716 (1988). (Brennan,
J. concurring, commenting on proper service under U.S. law [Fed. R. Civ. P. 4 incorporating by reference Illinois law for serving corporation but not proper under Hague Service Convention, supra note 134]).
142 28 U.S.C. § 1604 (2012); see also supra note 62 and accompanying text.
143 See, e.g., supra note 136 and accompanying text.
144 E.g.
, U.S. Navy Regulations art. 0705 (1990), issued pursuant to 10 U.S.C. § 6011
(2012), provides: “At all times, commanders shall observe, and require their commands to observe, the principles of international law. Where necessary to fulfill this responsibility, a departure from other provisions of Navy Regulations is authorized.” Other Regulations are more specific, e.g.
, id. art. 0828.2 (no searches of U.S. Navy ship by a foreign State except under international agreement); 0829 (prisoner of war treatment under Second Convention, supra note
43); 0884 (hospital ships, medical aircraft); 0915 (no use of force in time of peace except in selfdefense); 0916 (respect for foreign State territorial integrity); 1139 (compliance with COLREGS, supra note 89). Undoubtedly these mean international law applying to the United States as the
United States interprets and applies it. Recall the rule and exceptions for applying customary international law in Pacquete Habana and restated in Sosa, supra note 34. These provisions do not mean that every commander must be a trained international law specialist; it does mean, however, that his/her judge advocate, versed in international law, will be available to advise him/her, much as admiralty lawyers are familiar with international law that may apply to clients.
145
This would be the result under the Reagan Statement, supra note 34, on UNCLOS supra note 3, navigational rules. It was also the result in Pacquete Habana , supra note 34, 175
U.S. at 687-97, which applied the then customary international law rule immunizing small
45

supersede a custom-based rule if the national courts recognize the supersession, as most do.
146
Admiralty counsel, whether for private or government interests, must take these national rules, whether in international custom recognized by national decisionmakers, self-executing treaties, or federal legislation or executive action implementing a non-self-executing treaty, 147 into account.
Other rules of application and construction of law confront the admiralty lawyer, like all counsel, involved in international cases.
Since Sabbatino , federal courts must apply federal common law in appropriate cases, 148 including those filed under diversity subject matter jurisdiction.
149 This branch of the federal common law, like the more frequent maritime cases filed under the admiralty jurisdiction coastal fishing vessels from seizure, as long as they do not aid the enemy’s war effort, as contraband into U.S. law. The rule, restated in Hague XI, supra note 48, art. 3, is customary law for States not Hague XI parties or bound by treaty succession principles, supra note 7. See
Colombos, supra note 40, §§ 656-59; 2 O’Connell, supra note 7, at 1122-23; 2 Oppenheim, supra note 5, § 187; San Remo Manual, supra note 15, ¶ 47(g) & cmts.; Thomas & Duncan, supra note 9, ¶ 8.2.3, at 417; UK Manual, supra note 9, ¶¶ 13.21, 13.33, 13.100; Shearer, supra note 48, at 185-87.
146 Pacquete Habana, 175 U.S. at 700, followed by Sosa , 542 U.S. at 734, declares that
U.S. courts may recognize and apply customary international law if there is no controlling precedent, treaty, federal statute, or executive action. Today executive action might be in directives like those Habana mentions, 175 U.S. at 687-97; it also could mean executive action by executive agreements, under U.S. law as a substitute for a treaty involving the U.S. Senate under U.S. Const. art. II, § 2, cl. 2. See also Restatement, supra note 5, § 303; supra note 34.
147 The later in time rule would apply as between a treaty and federal legislation unless the later of the two declares it is subject to the earlier of the two. See supra notes 22, 62 and accompanying text.
148
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 424-38 (1964).
149
28 U.S.C. § 1332 (2012).
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statute’s saving to suitors clause,
150
must be followed in the state courts.
151
Sabbatino itself, decided on the act of state doctrine,
152
was an expropriation related to maritime law, concerning a
Morocco-bound sugar cargo aboard a merchantman in Cuban territorial waters; the financial aspects of the transaction eventually came to New York City.
153 There was no question, then or now, that the vessel was in seas within the exclusive jurisdic2tion of the coastal State, Cuba.
154
A further question is whether federal common law can reach a particular event or transaction.
Kiobel held that claims of human rights violations against corporations at overseas locations under the Alien Tort Claims Act 155 were not under the Act’s substantive umbrella; 156 the case denied extraterritorial effect for U.S. law on those claims. The courts can, using conflict of laws principles, deny extraterritorial effect to a federal statute with international and U.S. maritime law implications; Lauritzen v. Larsen and later cases did this for the phrase “Any seaman” in the
150 Id.
§ 1333(1) (2012); cf. Kermarec, 358 U.S. 628; supra note 1.
151 Free v. Bland, 369 U.S. 663, 666 (1962); see also Charles Alan Wright & Mary Kay
Kane, The Law of Federal Courts § 60 (7th ed. 2011).
152 Sabbatino , 376 U.S. at 400-39.
153 Id. 405-06.
154 UNCLOS, supra note 3, art. 3; Territorial Sea Convention, supra note 3, arts. 1-2;
ICAO Convention, supra note 5, art. 2; see also Churchill & Lowe, supra note 7, at 75-77, 81; 2
Commentary, supra note 42, ¶¶ 2.1-2.8(f); Crawford, supra note 5, at 255; Jennings & Watts, supra note 5, § 187; Restatement, supra note 5, §§ 511-12; Rothwell & Stephens, supra note 34, at 64-65.
155
28 U.S.C. § 1350 (2012).
156
Kiobel , supra note 113, 133 S.Ct. at 1664, citing EEOC v. Arabian American Oil Co.,
499 U.S. 244, 248 (1991) (hereinafter ARAMCO).
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Jones Act.
157
(A particular transaction with “salt water connections” may not be governed by uniform admiralty law, however.
158
)
A similar limitation seems to be at work in other areas of transnational law long thought to have extraterritorial effect, e.g.
, securities litigation under the 1934 Securities Act; in
Morrison the Court overruled longstanding Second Circuit precedent, approved by the
Restatement , to deny extraterritorial effect to the Act.
159
Congress can, of course, partly or wholly supersede the result in a case, as it did after
Sabbatino by the Second Hickenlooper Amendment 160 and ARAMCO , 161 part of the basis of the
Kiobel decision , by passing the Civil Rights Act of 1991 to legislate extraterritorial scope for
157 Lauritzen v. Larsen, 345 U.S. 571, 573-93 (1953), followed by Romero v.
International Term. Op. Co., 358 U.S. 354, 381-84 (1959); Hellenic Lines v. Rhoditis, 398 U.S.
306, 308-10 (1970), construing former 46 U.S.C. § 688 (2006) (“Any seaman”), reenacted as 46
U.S.C.A. § 30104(a) (2012) (“A seaman”). The newer statutory language should be interpreted like the 1920 version of the Jones Act.
158 Compare Kirby , supra note 55, 543 U.S. at 23-25 (“fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce [and] whether inquiry on whether the principal objective of a contract is maritime commerce;” Himalaya clause extended federal admiralty law for carriage of goods liability to last leg of a cargo sent by ship from Australia to
Savannah, followed by train trip through Georgia and Alabama, where damage occurred) with
Village of Bald Head I. v. United States Army Corps of Eng., 714 F.3d 186, 196-97 (4th Cir.
2013) (admiralty law did not govern contract breach claims for specific performance to honor commitments to the Village, other coastal communities for widening, deepening, realigning portions of Cape Fear River navigation channel within North Carolina, therefore no U.S. District
Court admiralty jurisdiction). The River empties into the Atlantic Ocean at Wilmington, N.C.
159 Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2878-88
(2010), abrogating primarily Second Circuit law applying the 1934 Exchange Act extraterritorially and thus rejecting the analysis of Restatement, supra note 5, § 416; see
Morrison , 288-89 (Stevens, Ginsburg, JJ., concurring) for these cases.
160
22 U.S.C. § 2370(c)(2) (2012).
161
ARAMCO, supra note 156, 499 U.S. 244.
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those claims.
162
Although ARAMCO , now superseded, involved land-based workers, it is conceivable that mariners or onshore workers involved with shipping could raise Title VII claims for events overseas.
III. Conclusions
Tarros S.p.a. v. United States , and cases and sources discussed in this article, make the point that those practicing admiralty and maritime law should be familiar with international law.
Comprehensive admiralty and maritime law treatises have long recognized the importance of foreign and international law; for example, Benedict on Admiralty devotes several volumes to reprinting international agreements, including the U.N. Charter, treaties to which the
United States is not a party, and extracts from foreign law pertinent to U.S. admiralty practice.
163
U.S. admiralty lawyers, and their counterparts in other countries, must be versed in these sources besides U.S. law – mostly federal, but sometimes state law entering a case through the “maritime but local” doctrine in the U.S. courts 164 or through supplemental claims tagging along in a case otherwise governed by admiralty law 165 – and how to apply the sources, sometimes in the context
162 Civil Rights Act of 1991, § 109, 105 Stat. 1077, superseding ARAMCO, supra note
156.
163 See generally 6 Benedict on Admiralty (Frank L. Wiswall, Jr. ed.-in-chief, 7th ed.
2013) & ff.
164 See supra note 1 and accompanying text.
165 28 U.S.C. § 1367 (2012). A classic case, decided correctly by a great judge on the then law predicated on United Mine Workers v. Gibbs, 383 U.S. 715 (1966), but today displaced in part by analysis under § 1367 and decisions like Exxon Mobil Corp. v. Allapattah Serv., Inc.,
545 U.S. 546 (2005) based on it, is Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2d
Cir. 1971) (Friendly, J.), where an rem lien against a ship was filed along with in personam claims. COGSA, supra note 55, covered cargo loss until the container was in the U.S. shoreside warehouse company’s custody in New Jersey. State law applied to that part of the transaction.
Through bills of lading with applicable Himalaya clauses can extend COGSA, supra coverage to
49

of general public international law,
166
sometimes with the influence or command of the law of international organizations,
167
and how decisionmakers within the United States or any country
(often the courts, but sometimes the executive or the legislature, e.g.
, Congress)
168
or maybe decisionmakers outside the country 169 will or may react to these sources.
170 the U.S. stateside leg of the transaction. See Kirby, supra note 55, 543 U.S. 14; supra notes 55,
158 and accompanying text.
166
See supra notes 32, 107 and accompanying text.
167 E.g.
, U.N. Charter art. 103's treaty supersession rule. See supra notes 15, 19, 25, 31,
34 and accompanying text.
168 See, e.g., supra note 22 and accompanying text.
169 E.g.
, in the European Union context; see supra notes 11, 18 and accompanying text.
A recent case in the judicial jurisdiction context is J. McIntyre Mach., Ltd. v. Nicastro, 131 S.Ct.
2780, 2794, 2803-04 (2011) (Ginsburg, Sotomayor, Kagan, JJ, dissenting); Justice Ginsburg noted the decision would have gone another way if EU law had applied.
170 Clodfelter v. Republic of Sudan, 720 F.3d 199 (4th Cir. 2013) illustrates many of these points. Family members of victims of a terrorist attack on U.S.S. Cole, a U.S. Navy destroyer, sued Sudan under DOHSA, supra note 130, 46 U.S.C.A. §§ 30301 et seq., for wrongful deaths of
17 Navy Sailors in a 2000 small-boat terrorist attack on Cole while it was in a Yemen port,
Aden, alongside a pier in the harbor, i.e.
, within Yemen territorial waters. See id.
§§ 30302,
30307; supra notes 132-35 and accompanying text. Plaintiffs successfully argued that Sudan harbored terrorists, Sudan’s sovereign immunity was waived under the FSIA, supra note 46, 28
U.S.C. § 1605A; res judicata did not bar suit because of amendments to the FSIA by the National
Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083(a), 122 Stat. 3.
To present the case, lawyers had to be familiar with statutory construction rules, admiralty law
(the reach of DOHSA, supra ), general international law and U.S. rules governing immunities of foreign sovereigns and exceptions to them ( cf. FSIA, supra ), the reach of the law of the sea ( i.e.
, the territorial sea in this case, see Territorial Sea Convention, supra note 3, art. 1, to which the
United States is a party but neither Sudan nor Yemen are parties, see TIF, supra note 7, at 424, except maybe through treaty succession principles as former colonies and merger of States
[Peoples’ Democratic Republic of Yemen - Yemen Arab Republic 1990 merger], see id. 319 and supra note 7 and accompanying text; or UNCLOS, supra note 3, art. 2, to which Sudan and
Yemen are parties, see Multilateral Treaties, supra note 7, ch. 21, at 6, and which the United
States may recognize as customary law as part of the UNCLOS, supra navigational articles, see
Reagan Statement, supra note 34 and accompanying text. Presumably Sudan and Yemen would agree on the customary law issue.) Since UNCLOS, supra art. 2 and the Territorial Sea
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Besides “keeping up” with this myriad of law to avoid its becoming a maelstrom,
171
Convention, supra art. 1 are the same on the point, for this case it was a distinction without a difference, but other cases, whether involving territorial seas or other ocean areas, may raise distinct differences between results under the two Conventions if treaty law applies. Moreover, private counsel must be aware of a possibility of U.S. Government suggestion or intervention, see 28 U.S.C. § 517 (2012) and Fed. R. Civ. P. 24, which occurred in Clodfelter , 720 F.3d at
204. In these cases counsel might bring the litigation to the Government’s attention if the
Government is not aware of the filing. The Government can also move to file amicus curiae briefs if it decides not to seek intervention. The Government had an obvious interest in this case; in 1993 the Department of State declared Sudan a state sponsor of terrorism. Clodfelter , id . 202, citing Determination Sudan, 58 Fed. Reg. 52,523 (Oct. 8, 1993). The foreign relations interest regarding sovereign States (Sudan, United States, Yemen), and therefore these States’ interest in proper application of international law, was another factor. The $7.9+ million damages award,
Clodfelter , 720 F.3d at 203, does not mean payment. After appeals are over, enforcement could come through the FSIA, supra , 28 U.S.C. §§ 1609-11, on Sudan assets in the United States or maybe through diplomatic settlement, see, e.g., Agreement Concerning Claims Resulting from
Attack on U.S.S. Stark , Iraq-U.S., Mar. 27-28, 1989, T.I.A.S. No. 12030, or through litigation in other States. Besides FSIA limits on assets subject to attachment for judgment satisfaction, counsel will be confronted with principles of diplomatic protection if the United States agrees to take up the claims, or transnational litigation issues if U.S. judgment-based suits are filed in other States’ courts for recognition and enforcement. Here again familiarity with international law, and foreign countries’ law, is crucial. ARA Libertad , supra note 42, upholding immunity of a State vessel from creditors’ suit, underscores this point. Lastly, the alleged Cole attack masterminds (the small boat crew was killed when their craft hit the destroyer’s side) are on trial before a U.S. military commission in Guantanamo, where other international law issues, including perhaps peripherally the law of the sea, confront counsel there. See generally
Boumediene v. Bush, 553 U.S. 723, 827 (2008) (Scalia, J., dissenting, joined by Roberts, C.J.
and Thomas, Alito, JJ.).
171 Traditional ways for a U.S. lawyer to stay current remain essential include, e.g.
, reading cases published in specialty reporters like American Maritime Cases (A.M.C.) for national court decisions or cases in other countries ( e.g., Tarros S.p.a. v. United States, 2014
A.M.C. 50 [2013]), as well as the National Reporter System and participation in organizations like the MLA, supra note 1, which interacts with inter alia IMO, the CMI and the American Bar
Association and publishes the MLA Report . Admiralty counsel whose practice includes matters related to international law should consider joining organizations like the International Law
Association, whose American Branch sponsored this panel discussion; the American Society of
International Law that publishes International Legal Materials ( see, e.g., supra notes 80, 99) and the American Journal of International Law ( see, e.g., supra notes 5, 9, 19, 28-30, 42, 91); the
ABA International Law Section, which publishes the International Lawyer , whose annual review summarizes significant maritime law issues. Some State bar associations have international law sections. There are also specialty peer-edited law reviews like the Journal of Maritime Law and
51

maritime lawyers must tune in to daily “non-law” or law-based developments that may affect clients. Once this might mean reports by traditional media (newspapers, television), plus personal conferences, postal mail, telephone calls including teleconferences, cables and telexes.
172 Today these sources pale before the immediacy of facsimiles, the Internet and instant news availability as well as e-mails and video conferencing.
173
Like land-based practices in today’s world ever more interconnected by communications as well as business and other transactions, an admiralty lawyer ignores international law at her or his, or the client’s, peril. Hopefully, this article explains why, at least in part.
174
*Dean’s Research Professor of Admiralty and International Law, Wake Forest University
School of Law; chair, International Law Association (American Branch) [hereinafter ABILA]
Law of the Sea Committee; Proctor in Admiralty, Maritime Law Association of the United
Commerce ( see, e.g.
, supra note 92) and law school-sponsored journals; this article cites many of the latter. Web access can unearth other sources. The MLA and other groups sponsor continuing education programs, often at general meetings.
172 See Heard, supra note 58, at 190, recounting how his firm followed and discussed developments in the 1992 Falklands/Malvinas War as it affected a client’s shipping.
173 As in prior times, valuable methods of keeping up include reading and subscribing to periodicals, study of case advance sheets and statutory amendments, attendance at continuing education programs, and membership and participation in organizations, whose publications can be valuable. For example, U.S. admiralty lawyers should consider these: Maritime Law
Association of the United States, International Law Association (American Branch), American
Society of International Law, American Bar Association and its International Law Section, as well as more local organizations, e.g., those of state or city bar organizations that emphasize maritime or international law practice.
174
Besides standard sources this article cites, attorneys relatively new to the subject might examine American Society of International Law, Benchbook on International Law (Diane
Marie Amann ed. 2014), published online at the American Society of International Law website.
52

States. This article was the basis of my remarks to Panel, Oceans Law and the Practitioner, at the 2013 ABILA annual meeting in New York City; the Law of the Sea Committee sponsored the panel. My thanks to my co-panelists, Charles Norchi, Professor of Law, Director of the
Center for Oceans and Coastal Law and Director of the LL.M. Program, University of Maine
School of Law; and David O’Connell, Commander, U.S. Coast Guard and Military Professor,
U.S. Naval War College International Law Department; for comments and participation on the panel. Panelists spoke, wrote or conferred with me in their personal capacities; their views are not to be considered those of the institutions whom they serve, including the U.S. Coast Guard, the U.S. Navy, the U.S. Department of Defense or the U.S. Government. Thanks also to
Professor Kate Irwin-Smiler, Wake Forest Law Library, who found obscure sources; Alan Keely and Mike Greene, also of the Library, who helped get them to me. Responsibility for content, errors and analysis remains with me. (c) George K. Walker.
53