Operational Law in International Straits and Current Maritime Security Challenges

Naval mines are considered to pose a serious threat to international shipping. This certainly holds true for free-floating submarine contact mines but not necessarily for modern naval mines that are highly discriminating weapons. Be that as it may, the mere fact that naval mines have been laid in a given sea area will impede upon freedom of navigation. The only international treaty dealing with naval mines is the 1907 Hague Convention VIII, whose scope is limited to automatic submarine contact mines and which was concluded at a time when the breadth of the territorial sea did not exceed 3 nautical miles and other concepts, such as the EEZ, were unknown. The first part of the present chapter deals with the question whether and to what extent belligerents are entitled to lay mines in international straits overlapped by their territorial sea, their archipelagic waters, or in the high seas. The second part deals with the legality of naval minelaying in times of peace, which is to be determined in the light of the Corfu Channel judgment, the international law of the sea, and the positions taken by States in military manuals.

Since late 2011, Iranian officials on more than one occasion have suggested that Iran would consider “closing” the Strait of Hormuz (SOH) in response to economic sanctions or an attack on its nuclear facilities. Moreover, many experts believe that in the event of an armed conflict, naval mining would likely be part of an Iranian anti-access, area denial (A2AD) strategy. As a result, policy makers and military commanders must consider options required to maintain freedom of navigation (FON) through this vital chokepoint. A thorough understanding of the legal issues related to mining is essential to formulating courses of action that will be perceived as legitimate. This article addresses the most significant legal issues and reaches three conclusions for consideration by decision makers during course of action development. Firstly, nations can lawfully conduct intelligence, surveillance, and reconnaissance (ISR); maintain a “fires” presence; and conduct mine warfare information-gathering activities in the SOH during peacetime. Secondly, nations may use proportionate force against assets about to mine, or in the act of mining, the SOH either in self-defense or to ensure the freedom of maritime commerce depending on the circumstances. Lastly, nations may use proportionate force in self-defense to protect assets engaged in mine hunting and sweeping, to possibly include attacking targets ashore that represent an imminent threat to the MCM forces.

The modern concept of transit passage came into play when coastal states agreed in 1982 to extend their territorial seas to a maximum of 12 nm, thereby removing most of the high seas passages through international straits. Before 1982, the legal situation was quite clear. Military ships and aircraft transiting through a strait enjoyed the operational freedoms of the high seas corridor while being reduced to innocent passage rights and obligations in the territorial waters (TTW) of the riparian states.

At first glance, it seems that Art. 39 of the United Nations Convention on the Law of the Sea (UNCLOS 1982) precisely defines the obligations and duties of ships and aircraft exercising the right of transit passage. However, digging deeper into the matter, it becomes clear that many questions at the interface of legal and operational issues remain open until today. The reason for this might be that the interest of most seafaring states to explicitly identify and write down rights and duties of their military aircraft or vessels in an international strait is limited. This approach clearly offers more operational leeway but is problematic for commanding officers of warships (COs) and legal advisors as they remain, to a certain extent, unaware of the precise legal demands while engaged in transit passage. This chapter not only focusses on legal problems but proposes possible operational and policy approaches as well.

As a cooperative effort between the Combined Joint Operations from the Sea Centre of Excellence in Norfolk, U.S.A.; the Centre of Excellence for Operations in Confined and Shallow Waters in Kiel, Germany; and the Maritime Security Centre of Excellence in Marmaris, Turkey, an international workshop on Maritime Situational Awareness was held in Istanbul, Turkey, from 9 to 11 October 2013. A legal syndicate, consisting of legal advisors from Australia, France, Germany, New Zealand, Turkey and the United Kingdom, was an integral component of this workshop. The participants of the legal syndicate focused on the topic of international straits and examined legal issues that might be of operational relevance to the maritime nations for planning current and future maritime operations. The findings of the syndicate were presented at the second Conference on Operational Maritime Law in Rome 2014 and following conferences in Lisbon 2015 and Turku 2016 (see Centre of Excellence for Operations in Confined and Shallow Waters http://​www.​coecsw.​org, http://​www.​operationalmarit​imelaw.​org, accessed 06 Jan 2018). This chapter summarises the view of the majority of the participants who joined those events. In cases where opinions were divided, the author outlines the arguments brought forward and offers solutions. During both events, Chatham House Rule applied.

Although not as well covered by the media as other disputes over island territories, the conflict between the Islamic Republic of Iran and the United Arab Emirates concerning the sovereignty over the Greater and Lesser Tunbs and Abu Musa is one of the most crucial current unresolved territorial questions.

The critical importance of the Greater and Lesser Tunbs due to their location in the Persian/Arabian Gulf and close to the Strait of Hormuz on the one hand and the historical ambiguities and uncertainties surrounding the islands on the other make the legal assessment of the ownership question over the islands particularly challenging.

The article focuses on the historical and legal dimension of the conflict: taking as starting point the rival historical claims by both States, the article shows that there is no conclusive evidence proving a valid historical title to the islands of any of the States. Subsequently, the article deals with the question of (mere) physical control over a territory and the consequences thereof, concluding that even if a State exercises effective control over a certain territory and hence has specific legal obligations towards other States that are inherent to that factual situation, this does not constitute a legal basis for its sovereignty claims over that territory. Finally, the article mentions briefly the possible modes of settling the dispute between the UAE and Iran.

This article provides a broad overview of several international law and policy issues that search and rescue (SAR) authorities worldwide should consider. First, the article will discuss the global SAR system’s international framework and organization implemented by coastal states. While not perfect, the global SAR system provides an important basis on which coastal states can build cooperative relationships to enable them to conduct this important lifesaving mission more effectively. Second, this article will review the SAR responsibilities and international legal requirements placed on shipmasters and coastal states as they work together in coordinating and conducting maritime SAR operations. In addition, this section also will briefly discuss the tragic issue of mixed migration by sea from a SAR perspective. Third, this article will address two additional SAR-specific issues that legal advisers and policy makers need to consider: the responsibilities and requirements of a ship or aircraft when conducting a rescue operation within another coastal state’s territorial sea and the issue of forcibly evacuating a person from a vessel when doing so is, in the judgment of the SAR responders on scene, the only way to save the person’s life. May SAR responders use force to compel a person to abandon his vessel? What type of force should be considered? The discussion of each of these unique operational issues will provide points to consider from both policy and international law perspectives.

The South China Sea is an area that is subject to numerous competing sovereignty claims over the many maritime features that exist in the region. None of these claims appear capable of easy resolution, and a number of the States directly involved, as well as States that have an interest in the preservation of passage and overflight rights through and over the South China Sea, have used their military forces as the means by which they have sought to exert influence in this region. Fears that the increased presence of military vessels and aircraft might lead to unintended outbreak of armed conflict have been constantly raised by academic and political commentators with the contention from some that armed conflict is an inevitable outcome of this increased military presence. However, this article undertakes a review of these concerns and reaches the conclusion that the likelihood of conflict inadvertently occurring is low. In particular, the requirement to ensure the continued flow of maritime trade throughout the South China Sea is likely to drive State behaviour away from any desire for armed conflict as a means of resolving the various tensions and claims that exist in the region.

When regulating private maritime security companies arose as a pressing issue in 2012, a number of key actors made a conceptual choice that turned out to be a mistake. The discussion centered on whether private maritime security companies (PMSCs) were primarily a subset of the security industry or the maritime industry. At the time, PMSCs’ principal activity was to provide armed guards on ships transiting the High Risk Area off Somalia. Since they were then considered necessary supernumeraries to the crews of commercial vessels, representatives of the shipowners won the argument that PMSCs should be treated as part of the broader maritime industry. The main regulatory initiatives, therefore, were divorced from existing private security accountability initiatives and were developed in such a way as to suit the needs of commercial vessels in transit. This approach, however, has proved shortsighted. Even after the first successful attacks in 5 years, armed transits off Somalia are a fraction of what they used to be in terms of both frequency and financial value. But the PMSCs that have survived this bust period have sought and found work performing other services in the maritime space. Unfortunately, however, those activities are generally not covered by the regulatory initiatives that were produced under the erroneous notion that private maritime security companies are more maritime service providers than security service providers. The consequence, therefore, is that the private maritime security industry, as it currently operates, is largely unregulated.

To understand the nature of this accountability gap, it is necessary to review (1) the private security regulatory initiatives that were rejected when addressing PMSCs, (2) what has been done to regulate PMSCs specifically, and (3) what PMSCs are now doing. Only then can this analysis really delve into why current measures do not adequately cover the private maritime security industry.

The year 2015 was marked by a dramatic increase in the irregular migration to Europe, one of the primary routes being from Libya across the Southern Central Mediterranean to Southern Italy. Following the drowning of hundreds of persons in April 2015, the European Union (EU) adopted a ten-point action plan of the immediate actions to be taken in response to the crisis situation in the Mediterranean. One of those actions is a systematic effort to capture and destroy vessels used by the human smugglers, which was put into practice by establishing in May 2015 the EU military operation, EUNAVFOR MED operation SOPHIA. Under the EU Mandate, the operation will contribute to the disruption of the business model of human smuggling and trafficking networks in the Southern Central Mediterranean. Following the increase of migration at sea, the United Nations Security Council authorised UN Member States and regional organisations to conduct certain essential military activities in the fight against migrant smuggling and human trafficking.

This contribution discusses the military activities of the European Union from a legal point of view. Focus of the study is on the mandate of the European Union and the UN Security Council resolution 2240 (2015) while operating on the high seas. Special attention will be paid to five specific questions faced by the operation: flag state consent; rescue of persons at sea; disembarkation of rescued and apprehended persons; collection, storing and transition of personal data; and use of force. It may be concluded that the EU has opened a new page in the application and development of public international law with the EUNAVFOR MED operation SOPHIA by introducing mechanisms of a regional organisation within a legal framework designed for state activities. The operation has not encountered such legal obstacles that would endanger the carrying out of the EU mandate. However, a continuous study of the legal framework of the Common Security and Defence Policy in the fight against human smuggling and trafficking is required.

To the untrained eye, the only way to counter criminality in international waters is via the use of navies operating in a constabulary role across the oceans of the world. They certainly have a role to play, but it would be a mistake to say that just because warships provide a solution in one scenario the same ‘business model’ would continue to deliver success in another.

In this article, the author seeks to demonstrate why the successes displayed by maritime forces off the coast of Somalia in countering piracy cannot have the same effect when redeployed in the Mediterranean, where smuggling and human trafficking are now stealing the headlines as the biggest maritime blight on Europe. He does so by first explaining why navies were free to operate effectively around the Horn of Africa through the legal framework, both internationally and domestically, that enabled that operation. He then contrasts that with the lack of a similar legal framework in the Mediterranean that has rendered impotent any international efforts to deter criminal gangs from operating freely around the coast of Libya.

The author concludes that, unless more is done to combat the root causes of transnational crime ashore, navies will continue to focus on delivering a short-term means to address the symptoms rather than seeking a permanent cure.

Prize law and the law of contraband are based on the rules of peacetime public international law, especially peacetime law of the sea. The origin of prize and contraband laws is the Paris Declaration of 1856; however, they still are part of the modern humanitarian law and the law of armed conflict at sea. Many historical regulations have barely changed and remain valid today, with States showing no interest in changing them.

This chapter initially illuminates historical developments of this very unique and special aspect of naval warfare, which is the precondition for any understanding of modern rules. The Paris Declaration abolished privateering and established the distinction between the neutral and enemy characteristics of vessels as the legal basis for capture and seizure.

The second part of this chapter discusses how only civilian objects—vessels, aircraft and goods—may be subject to prize law and the law of contraband and details necessary definitions. It then focuses on conditions and different aspects of the right to visit, search and diversion that exists today. Lastly, the second part of the chapter outlines conditions for capture and seizure and the legal consequences of resistance against it.

The last section of the chapter addresses the issue of prize court proceedings.

While there may be uncertainties regarding some details, the chapter demonstrates that there is a general agreement on the core rules of prize law and law of contraband. They are in no way outdated but rather provide a very practicable framework.

This chapter presents three theories on the use of the right of visit during non-international armed conflicts. The belligerent right of visit and search, which is part of the laws of naval warfare, applies only in international armed conflict. Current conflicts are, however, more often non-international in character. Viewed within this context, the non-existence of a right of visit during a non-international armed conflict may present itself as a legal gap in the operational need for States to board foreign-flagged vessels. The three theories could serve as a departure for discussion whether there may be sufficient legal grounds to apply the right of visit in a non-international armed conflict.

The law of occupation is codified solely with a view to land territory in Hague Convention IV and Geneva Convention IV. It can be argued, however, that the law of occupation can also be applied to the sea. This requires a simultaneous occupation of the adjacent land territory and sufficient capability of the occupying power to enforce its authority at sea in the form of effective control. The article discusses the legal basis for such an application of the rules of occupation to the sea, as well as requirements for military authority in the maritime domain. The article also points out several peculiarities of the adaption for the sea territory concerning the rights and duties of the occupying power, such as the duty to guarantee freedom of communications. The legal challenges, which remain due to indefinite terms or wide margins of appreciation, do, however, prove the need for a careful adaption.