Recognising the military and economic impact of denying one’s adversaries access to free trade over the sea during hostilities, nations have over centuries resorted to what is commonly known as a naval blockade. The legal framework perfected over time( and codified in the London Declaration of 1909) specifies that only a warring country with the means to enforce a blockade can only formally declare one and while doing so, must behave impartially and not bar access to neutral ports.
The London Protocol of 1936 subsequently accorded a privileged status to all merchant ships, with a belligerent being required to effectively ensure the safety of the ship’s crew, passengers and papers. Surprisingly, the London Protocol is still serving a useful need amidst a legislative vacuum.
The recognised practice of establishing ‘defence sea areas’ for discerning hostile acts and ‘operational zones’ for protecting neutral shipping, can be said to be the forerunners of the Exclusion Zone, which unfortunately became obsessed with restricting commerce rather than ensuring the safety of neutrals.
Newly-emerging lethal technologies in the form of submarines, aircraft, aircraft carriers, mines, sonars, radars, EW and wireless communications at the turn of the twentieth century not only transformed the nature of maritime warfare, it also resulted in sacrificing the privileges afforded to merchant ships at the altar of one’s own safety. Blockade in the classical sense, with its primary focus on vessels engaged in war-sustaining commerce and in trafficking of contraband cargo, gradually fell into disuse as it became increasingly difficult to execute without jeopardising the safety of the blockading units. It is only possible these days in the context of a large maritime coalition taking on a much weaker foe.
All adversaries accordingly imposed and violently enforced exclusion zones during the two world wars. The sinking of the RMS Lusitania in the German declared war zone off Ireland on 7 May 1915 was a singularly gruesome incident, which despite generating wide outrage, did not lead to any change in German strategy. The international Military Tribunal trying Admiral Donitz for waging unrestricted submarine warfare during the Second World War declined to find him guilty for the said offence on the grounds that the British had roped in belligerent merchant vessels into its war effort. The Tribunal could surely not have been unaware of the fact that the British too had established an Exclusion Zone in the Skaggerak, within which all ships were liable to be attacked at night without warning(German ones only by day). During the waning years of the War, the the U.S. Navy had also indulged in a relentless anti-shipping campaign against Japan by declaring the entire Pacific Ocean as an Exclusion Zone. It can be assumed that it was because of these parallel considerations that the Donitz ruling was not unequivocal in its findings and sought the loophole of belligerent merchantmen to avoid an across-the-board condemnation of an obvious war crime.
The establishment of exclusion zones in subsequent conflicts resultantly became the norm. During the Iran-Iraq war of the 1980s, both sides declared maritime exclusion zones, the Iranian one being defensive in nature, the Iraqi one around the Kharg Island export terminal overtly offensive. While the Iranian one was regarded more as a ‘defence sea area’ and hence deemed inobjectionable, the Iraqi one also did not evoke condemnation for the following reasons: the Iraqi war effort was being backed, implicitly or explicitly, by most of the world powers, a very large tanker surplus existed to take up the slack, was perceived as suppressing an oil glut which could have depressed prices, limited loss of lives due to the large tanker’s ability to absorb missile damage and the favourable insurance conditions of the time.
The Falklands/Malvinas war again saw the maritime exclusion zone rear its head with a vengeance. The British justified the establishment of a Total Exclusion Zone off the Falklands as well as the Argentinian coast on 28 April 1982 by invoking its inherent right of self-defence under the UN charter, while Argentina sought legal refuge in the doctrine of reprisal for declaring its own version of the Exclusion Zone, the entire South Atlantic being deemed a war zone. Argentine had, a month earlier on 8 April, soon after its invasion, announced a self-defence area some 200 miles around the Falklands/South Georgia islands and off its own coast. The sinking of the ARA General Belgrano by a British submarine outside the declared TEZ did generate some flak, though it’s not clear why: any enemy combatant anywhere during hostilities is supposed to be fair game.
The concept of establishing exclusion zones appears to be a legal black hole. The prevalent view is that it is not the establishment of MEZ per se that matters, but the use it is put to and the more such actions defy an element of rationality towards non-combatants, the more they will be viewed with abhorrence. The only time the establishment of MEZ can arguably be deemed lawful is when it is being backed by an express UN authorisation, while in other cases defensive zones generally enjoy a greater degree of acceptability. Offensive zones should in general not pose a threat to international shipping routes.
Owing to the multitude of international SLOCs crisis-crossing the Indian Ocean, South Asian countries in particular should display extra caution while declaring exclusion zones. An offensive war zone off our coast may not garner much attention because the only traffic found there would in all probability be heading to or from a Pakistani port, though any attempt to disrupt the adjoining international SLOCs during a localised conflict may attract global opprobrium. In a worst case scenario, those found involved in targeting shipping plying in internationally acknowledged routes may end up in hot waters. Extreme care would thus need to be exercised while pursuing broader national objectives on the high seas of a tactically offensive nature.
Note: This article was published in the April 2015 edition of the ‘Navy News’.