Defense Against Insurgents on the High Seas:
The Lyla Express and Johnny Express

Major Robert W. Gehring, JAGC, USMC*

Were the Johnny Express and the Lyla Express seized by
Cuba in December 1971, "pirate ships" as defined by interna-
tional law? Were Cuba's actions a valid exercise of self-defense
against insurgents? A careful examination of all the facts and
circumstances surrounding the two incidents within the confines
of generally accepted principles of international law leads Major
Gehring to answer both interrogations in the negative.

I. FACTUAL BACKGROUND

A. SEQUENCE OF EVENTS 1

The deck is covered with blood. I am dying, Chico. Tell the Coast Guard to come. quickly. Tell them there are dead and wounded here.2

THESE WERE the words of Captain Jose Villa, master of the Johnny Express, as he radioed for help after a Cuban naval gunboat attacked his ship in the territorial waters of the Bahama Islands. Help never arrived, and the wounded Captain Villa was taken with his ship and crew to Cuba.

The Johnny Express is one of six ships owned by the Bahamas Lines, a corporation organized under the laws of Florida. The company is wholly owned by the Babun brothers, Cuban exiles now resident in Miami. Two weeks earlier, another vessel owned by the same company, the Lyla Express, was seized on the high seas by a Cuban gunboat and taken to Cuba.

Two weeks later, the crews of both ships were released to Panama, but Captain Villa was kept for trial, reportedly having confessed to being an agent for the CIA. Cuba announced that it would have "no compunction

Major Gehring is currently serving in the International Law Division, Office of the Judge Advocate General of the Navy. He received the B.A. degree (Cum Laude) from Harvard University in 1962, the J.D. (Cum Laude) from Columbia Law School in 1966 and a Masters in International Affairs from Columbia School of International Affairs in 1966. He is admitted to practice before the bars of the State of New York, the Supreme Court, and the Court of Military Appeals.

1. Unless otherwise indicated, the narrative of events is taken from the following newspaper articles: New York Times, Dec. 16, 1971, at 1, col. 6; Dec. 17, 1971, at 1, col. 2; Dec. 18, 1971, at 1, col. 7; Dec. 19, 1972, at 7, col. 1; Dec. 19, 1971, sec. IV, at 2, col. 6; Dec. 20, 1971, at 10, col. 1; Dec. 21, 1971, at 3, col. 6; Dec. 23, 1971, at 5, col. 1; Dec. 29, 1971, at 8, col. 6; Apr. 14, 1972, at 1, col. 1; Wall Street Journal, Apr. 13, 1972, at 1, col. 4; Washington Post, Dec. 31, 1971, at A9, col. 8.

2. New York Times, Dec. 16, 1971, at 25, col. 3.

whatsoever" about attacking vessels "under any flag or camouflage" that the Cuban Government believed were engaged in "counterrevolutionary" activities, and would attack "pirate" ships "no matter the distance from our coasts or the flag."

The Babun brothers replied that the Johnny Express was returning empty from a charter to Haiti when attacked. The United States Government denied that the two ships had any connection with the United States Government and stated that neither was carrying arms or agents to Cuba. Initially, the United States Government deplored the incident but found itself without competence to assist à foreign-flag vessel outside United States territorial waters. Later, the United States Government warned that the Cuban actions were a "clear and present threat to the freedom of navigation and international commerce in the Caribbean and a threat to American citizens." It was reported that orders were issued to air and naval units in the Caribbean to provide armed assistance to any vessel, American or foreign, that might find itself under attack by Cuba.

B. HISTORICAL CONTEXT

The seizure of the Lyla Express and the Johnny Express must be consid ered in the context of past attacks upon Cuba. The history of such incidents influences any review of the necessity for Cuba's actions. The most recent incidents were reported in the United States press in 1970. In April of that year, thirteen men of the Alpha 66 anti-Castro Cuban exile group landed in Oriente Province. Cuban forces soon mounted a massive roundup and captured or killed all thirteen in fighting lasting nine or ten days.3 Alpha 66 also kidnapped eleven Cuban fishermen and sank two Cuban fishing vessels in May 1970. A separate nine-man raiding party was captured in September 1970. Since 1961, the Cuban Government has reported more than a dozen landings involving groups of five to thirty men. That the Cuban Government would regard such landings as very significant threats is not at all surprising remembering its own origin. In 1956 Fidel Castro directed a similar operation against President Fulgencio Batista. His original force of eighty men was reduced to only twelve before events turned for the better. Some two years after the landing, President Batista was defeated and fled the country."

3. These events are reported in the following issues of the New York Times, Apr. 20, 1970, at 1, col. 6; Apr. 21, 1970, at 6, col. 4; Apr. 26, 1970, sec. IV, at 2, col. 6; Apr. 28, 1970, at 13, col. 1.

4. New York Times, May 14, 1970, at 2, col. 4. 5. New York Times, Sep. 24, 1970, at 6, col. 5.

6. New York Times, Apr. 20, 1970, at 10, col. 5. 7. New York Times, Apr. 21, 1970, at 6, col. 4.

II. CENTRAL LEGAL POLICY ISSUES

A. QUESTION ASKED

Is the seizure by Cuba of a foreign merchant vessel on the high seas or in foreign territorial waters a permissible use of coercion under applicable principles of international law? An answer requires first an identification of the applicable principles.

Two bodies of doctrine appear relevant from Cuban statements and the factual background: piracy and self-defense. The principles of each will be explored. But an item of shared applicability will be examined first.

B. UNITED NATIONS CHARTER, ARTICLE 2(4)

Since 1945, any discussion of the use of coercion must consider the United Nations Charter,8 specifically, article 2(4):

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

By this proscription, the United Nations seeks to advance one of its purposes, “To maintain international peace and security, . . " 9 A question arises when this prescription is applied to cases like the Lyla Express and the Johnny Express. No State's territorial integrity or political independence was threatened by Cuba's action.10 Article 2(4), however, also prohibits the threat or use of force "in any other manner inconsistent with the Purposes of the United Nations."

In order to maintain international peace and security, the United Nations is authorized "to take effective collective measures . . . to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace." 11 Certainly, an attack upon a foreign vessel in violation of international law is a situation which might lead to a breach of the peace.

8. June 26, 1945, 59 Stat. 1031, T.S. No. 993.

9. U.N. Charter, art. 1, para. 1, id. [hereinafter cited as U.N. Charter]. 10. Described as "classic, technical terms embracing in summary reference the most important bases of State power, the values or interests whose impairment and destruction are sought to be prohibited and, correlatively, whose necessary protection by coercion is permitted. 'Political independence' is commonly taken most comprehensively to refer to the freedom of decision-making or self-direction customarily demanded by state officials. . . . The reference commonly assigned to 'territorial integrity,' on the other hand, is that control which state officials hold over a certain geographic resource base and the peoples there located." M. MCDOUGAL & F. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 177 (1961) [hereinafter cited as McDOUGAL & FELICIANO].

11. U.N. Charter, art. 1, para. 1.

Neither article 2(4) nor article 1(1) totally prohibit coercion or even the threat or use of force.12 They prohibit only that threat or use of force inconsistent with the standards of articles 2(4) and 1(1). For example, article 51 specifically ensures that the right of self-defense, including the use of force, is preserved, subject to notification to the Security Council of actions taken in the exercise of self-defense.

The customary international law of piracy permits the use of force by any State against a pirate, and it would appear that force can still be used for that purpose, and further that this use of force is not prohibited by article 2(4). This customary rule was transformed into written law in the 1958 High Seas Convention,13 presumably indicating that the unilateral use of coercion by a State against a pirate is not inconsistent with the purposes of the United Nations. The pirate is traditionally an outlaw-the enemy of all humanity. Force used against him cannot offend other States. The pirate's activities are themselves sufficiently destructive of human and material values to cause a breach of the peace in the international community. Force may be necessary to curtail this piratical conduct.

III. NATIONAL CLAIMS TO CONTROL PIRACY

A. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAWS OF PIRACY

Municipal law frequently punishes as piracy acts not included within the international law definition of piracy. Both British law and United States law punish as pirates their respective subjects or citizens who, under the color of authority of a foreign State, commit acts of hostility upon the high seas against their own States or fellow subjects or citizens.14 British law also punishes as a pirate any subject who transports slaves upon the high seas.15 French law punishes as pirates the crew of an armed vessel navigating in time of peace with irregular documents, even without the commission of any act of violence.16 There is no reason why Cuba, as a matter of municipal law, cannot characterize as piracy acts committed by insurgents against the security of the Cuban State. The question is what effect such municipal law has under international law.

12. The United Nations Charter seeks only to draw a distinction between permissible and impermissible coercion. MCDOUGAL & FELICIANO 123-29.

13. Convention on the High Seas, art. 19, opened for signature Apr. 29, 1958, [1962] 2 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82 [hereinafter cited as High Seas Convention]. Cuba is not a party.

14. C. COLOMBOS, THE INTERNATIONAL LAW OF THE SEA § 463 (6th rev. ed. 1967) [hereinafter cited as COLOMBOS]; 18 U.S.C. § 1652 (1970).

15. COLOMBOS § 463.

16. Id.

There is wide agreement that the status of insurgents as pirates under international law depends on their conduct and objectives measured by international law standards rather than by the municipal law of their target State.17 There is also agreement that the municipal law characterization of conduct as piracy applies to all persons only within the target State's territory, and outside that territory only to its own ships and nationals.18 But these areas of agreement usually consider only (1) the appropriate policy for States other than the target State, and the impact upon them of a target-State declaration of piracy, or (2) attempts by the target State to characterize as piracy conduct occurring outside its recognized geographical scope of authority under international law. Our case is a third situation.

There is no question that Cuba can characterize a raid on her coast, even if committed by foreign nationals on a foreign vessel, as an act of piracy. The question is whether Cuba can later seize that ship and its personnel on the high seas, not in hot pursuit, and impose criminal punishments.

A State's authority to seize persons or property to enforce its criminal law is limited geographically to its own territory and its ships or planes on the high seas, with only limited exceptions.19 Some of those exceptions relate to a vessel's proximity to the foreign State claiming the authority, for example, the enforcement of laws in contiguous zones and the doctrine of hot pursuit. Only a very few exceptions are unrelated to the proximity of the State claiming the authority. The international law of piracy is one of those exceptions. If the Lyla Express and the Johnny Express were pirate ships, there would be authority under international law for Cuba to seize them and their personnel and transport them back to Cuba for criminal prosecution on the basis of their past acts.

For crimes under her municipal law, Cuba could gain control over someone outside her territorial jurisdiction, and not on one of her ships or planes, only by requesting extradition. Our question now is whether Cuba, by exercising her authority to characterize conduct within her territory as piracy, can use the procedural aspects of the international law of piracy permitting any State to seize a pirate on the high seas.

17. Convention on the Rights and Duties of States in the Event of Civil Strife, art. 2, Feb. 20, 1928, 46 Stat. 2749, T.S. 814, 134 L.N.T.S. 45 [hereinafter cited as 1928 Havana Conv.]. Cuba is a party to this convention. Also, see cases and principles discussed in I OPPENHEIM-LAUTERPACHT, INTERNATIONAL LAW § 273 (8th ed. 1955) [hereinafter cited as OPPENHEIM]; I C. HYDE, INTERNATIONAL LAW § 233 (2d rev. ed. 1945) [hereinafter cited as HYDE]; Report of the Sub-Committee of the League of Nations Committee of Experts for the Progressive Codification of International Law, League of Nations pub. C.196M.70.1927.V at 119, quoted at II G. HACKWORTH, Digest of InteRNATIONAL LAW § 204, at 695 (1941) [hereinafter cited as HACKWORTH], and cases at HACKWORTH, supra, at 696-99; II J. MOORE, A DIGEST OF INTERNATIONAL LAW § 331 (1906) [hereinafter cited as MOORE].

18. I OPPENHEIM § 280; COLOMBOS § 463.

19. High Seas Conv. art. 6; M. MCDOUGAL & W. BURKE, THE PUBLIC ORDER OF THE OCEANS 868-75 (1962) [hereinafter cited as MCDOUGAL & BURKE].