Book Reviews De Guttry, Andrea. Lo status della nave da guerra in tempo di pace. Milano: A. Giuffrè, 1994. Pp. ix, 308. In the realm of international law, few sectors can be deemed to have undergone such a radical change in the last decades than the law of the sea. Correspondingly, legal doctrine is called upon to verify how the traditional categories and concepts on which the law of the sea has rested for centuries must be adjusted to meet the new exigencies. Among many, this book, which aims to describe the status of warships in peacetime, deserves attention. Its subject constitutes a point of intersection between different interrelating norms of international law. It is here that the main merit of the book lies, offering scholars and practitioners a comprehensive legal framework of the various situations in which warships may become involved. On the other hand, a major methodological difficulty arises from the fact that each of the norms dealt with has its own historical origins and function in the system of the law of nations. To find a coherent order in such a broad and controversial set of norms may not be an easily accomplished task. The book is divided into five chapters. The first chapter sets out to define the warship, while the next chapter looks into the status of warships in zones under the jurisdiction of coastal states. Special regard is given to certain problems of contemporary international law that are yet to be resolved, such as a balance between the claims of coastal states whose aim is to enlarge exclusive rights of control and exploitation and the counterclaims of other states whose objective is to reaffirm traditional freedom of the sea. The third chapter examines the problems of navigation on the high sea. The legality of measures establishing security zones for military purposes and enforcing their effectiveness as well as other claims for exclusive utilization of zones of the high sea are discussed at length. Attention shifts in the fourth chapter to the tasks assigned to warships in zones in which coastal states may legally exercise their jurisdiction. Finally, in Chapter 5, the author deals with immunities and privileges afforded to warships in foreign waters. The legality of violation of these immunities and privileges as an act of countermeasure, in relation to a previous breach committed by mean of warships, is the most interesting aspect of the section. The book thus provides an excellent overview of the law and practice of states concerning the utilization of warships in peacetime. Some critical remarks, however, are in order. The first concerns the line to be drawn between the exclusive right of the coastal state to exploit resources in its Exclusive Economic Zone (EEZ) and the traditional freedom of the high sea, including for purposes of naval manoeuvres and exercises. The traditional view holds that the freedom of the high sea applies to the EEZ, albeit subjected to the duty of respecting rights and prerogatives of the coastal state. Within the perspective of the 1982 United Nations Convention, a competence of the coastal state to ‘balance the equities’ and to adjust the exercise of its own rights with the rights and freedoms of third states may however be asserted. This more flexible approach would seem preferable in that it is based on a determination of the method through which the rule of the case, taking into account the exigencies at stake, may be found. A second remark addresses the limitation of the right of use of force to implement laws and regulations of the coastal state. The author seems to rely on the rule applied in the well-known case I’m Alone, in which the right to use necessary and reasonable force was admitted, on the condition that no other means were available to stop and divert the pursued ship. However, in accordance with the most recent international practice, the ‘other-means-test’ is adjusted in order to adopt the more comprehensive ‘proportionality test’, requiring that the need to assure compliance with laws and regulations of the coastal state be weighed against other values at stake, such as the security of the pursued ship and individuals on board. A third issue concerns the legality of forcible intervention by a state other than the flag state to rescue a ship seized by terrorists in high sea. The author seems to assert a right to intervene by a state whose citizens are endangered in cases in which the flag state is unwilling or unable to intervene; the legal ground for intervention is found in the existence of a state of necessity and in the right to take forcible countermeasures. As is well known, the entire matter of the use of force is among the most controversial in international law. We must just note that the opposite view, according to which international law does not condone use of force except in the case of self-defence, seems to be recommended even from a practical point of view. In fact, the right of the flag state to exert its exclusive authority on ships flying its flag includes the right to determine freely the course of action needed to confront terrorist attacks, possibly by actions falling short of force. Enzo Cannizzaro University of Macerata
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