Armed Conflict and Naval Warfare: Shifting Legal Regimes

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Armed Conflict and Naval Warfare: Shifting Legal Regimes

A. Introduction

The threats most commonly of concern to maritime security are predominantly a preoccupation of peacetime uses of the oceans.¹ The broad spectrum of maritime security threats may tie in to military interests—counter-proliferation efforts are obviously aimed at forestalling an armed conflict; surveillance of criminal activities may have military utility; and terrorist attacks against international shipping may threaten the mobility of naval vessels, for example. Maritime security threats may clearly escalate to the point that a state considers resort to force is necessary, particularly as states seek to protect access and use of natural resources, redress concerns related to WMD, and promote more generally their national interest in their region and potentially further afield.²

While means and methods of warfare have changed dramatically with technological improvements, ‘the fundamental role of navies continues to be to establish control at sea or to deny it to the enemy, linking that control to broad political and economic issues ashore’.³ This role is relevant in times of peace and war, but how the role is fulfilled varies depending on the context. The range of military activities considered in Chapter 2 reflects peacetime operations of naval vessels in anticipation of engagement in armed conflict. This chapter is concerned with armed conflict at sea and the law of naval warfare; that is, the permissible military activities undertaken when states are engaged in uses of force. While a distinct body of naval warfare law exists, this chapter highlights the many grey areas for applying this body of law given the varied views on what steps may lawfully be taken to respond to maritime security threats. In this chapter, the intersection of maritime security with armed conflict is examined, especially the reliance on the laws related to armed conflict to justify responses to maritime security threats. The critical question in this regard is whether further (or any) distortion regarding the applicability of the law of naval warfare is warranted to improve maritime security.

The lack of clarity that sometimes exists in determining the applicability of the laws of naval warfare and those related to peacetime uses of the oceans also obfuscates whether or when particular inclusive or exclusive claims should be upheld. Trigger points for the use of force have included the denial of navigational rights, the protection of resources (fish and oil), surveillance activities, as well as responding to threats posed by terrorists and the proliferation of WMD and related material. The balance between the disputing states may be examined through the lens of lawful enforcement jurisdiction, which permits a certain amount of force at sea, and the issues as discussed in Chapter 3 arise once more. Alternatively, the law of naval warfare may be engaged. In the latter situation, the freedoms of the high seas do not hold the same pre-eminent position as compared to the situations discussed in previous chapters. These freedoms are generally subject to other applicable rules of international law, and belligerent rights during times of armed conflict are recognized as such rules.⁴ Yet even within the law of naval warfare, the protection of navigation rights remains of importance given the overall value of international trade.⁵ Many aspects of this law indicate a successful balancing of trade interests with military interests. In the context of armed conflict, the military interests of belligerents necessarily results in an array of exclusive claims. Inclusive claims become the counter-balance for the ongoing protection of other ocean uses during times of armed conflict; the resulting accommodation of competences to prescribe and enforce law can be said to reflect the common interest of participants. It is argued in this Chapter that the current maritime security threats do not warrant any adjustment of this balance.

B. Law of the Sea During Times of Armed Conflict

Commentators have grappled with the issue as to whether UNCLOS continues to apply during times of armed conflict.⁶ The arguments have varied from one extreme to the other—from considering that UNCLOS is not applicable during armed conflict,⁷ to UNCLOS being applicable because the laws of naval warfare are no longer relevant with the changes in laws relating to when states may lawfully resort to force.⁸ As may be expected, a more moderate position whereby ‘the maritime rights and duties States enjoy in peacetime continue to exist, with minor exceptions, during armed conflict’ is the most tenable view, particularly when account is taken of the efforts to recognize the legal framework created by UNCLOS in modern iterations of the laws of naval warfare.⁹ Even if the ongoing applicability of UNCLOS is assumed, there remains scope for belligerent parties to argue that their respective treaty relations inter se may be suspended during the conflict.¹⁰ There is therefore potential for opposing views to be presented as to what laws are regulating contentious activities and this situation is compounded by the blurring as to what activities fall within or are outside the laws of armed conflict.

One issue that arises in discussing the applicability of UNCLOS during armed conflict is the relevance of the ‘peaceful purposes’ provisions. Several articles stipulate that certain areas of the oceans, as well as particular activities, are to be only for peaceful purposes.¹¹ The reservation of areas for ‘peaceful purposes’ has been used in multilateral treaties to refer to complete demilitarization or to exclude particular military activities—either as conventional obligations or as goals for states parties.¹² In the UNCLOS context, the reservation of the high seas for peaceful purposes in Article 88 has largely been considered redundant rather than creating a meaningful restraint on the military activities that may be undertaken there. In this vein, Larson has argued:

Exactly what this means in practice is rather difficult to define, since the superpowers in particular use the [high seas] to deploy sub-surface submarines and surface vessels and use the air space above for naval and other military purposes. As a result, the practical effect of reserving the [high seas] for peaceful purposes is almost non-existent.¹³

At most, the peaceful purposes provisions arguably go no further than requiring states to abide by prohibitions on the threat or use of force.¹⁴ If this view is accepted then no compelling argument can be mounted that various actions to support a state’s maritime security could be justified on the basis that those actions are to ensure that the high seas (and by virtue of Article 58, the EEZ) are only used for peaceful purposes.¹⁵

States do occasionally resort to force in the course of their policing activities and earlier chapters discussed the parameters of such force when states seek to prevent offenders from fleeing from their jurisdiction.¹⁶ Treaties that have addressed law enforcement capabilities of the arresting states typically require that any use of force must be in accordance with international law.¹⁷ Concerted law enforcement efforts, particularly in the protection of fish resources, have led to labels of ‘war’ by commentators and media outlets seeking to underline the seriousness of the dispute. The ‘Turbot War’ between Canada and Spain,¹⁸ and the ‘Cod Wars’ between the United Kingdom and Iceland,¹⁹ stand out in this regard. Even clashes between state vessels and environmentalists at sea have resulted in this nomenclature, as has been seen with the ‘Whale War’ in Antarctic waters between Japanese whaling vessels and the Sea Shepherd Conservation Society.²⁰ Ultimately, it is a question of degree as to when law enforcement becomes unlawful military action. In the Guyana/Suriname arbitration, the demands of Surinamese gunboats against a drilling rig amounted to ‘a threat of military action rather than a mere law enforcement activity’ and were hence unlawful as a result.²¹

Drawing this line between law enforcement and military action is necessary as Article 301 of UNCLOS provides that all military activities in the oceans are governed by the proscriptions of the Charter on the threat or use of force. Military acts prohibited at sea are therefore those that are either directed against the sovereignty, territorial integrity, or political independence of another state or constitute an attack on the sea forces or the marine fleets of another state.²² In this regard, UNCLOS simply prohibits acts that amount to a threat or use of force and allows for military activities that otherwise fall short of this characterization.²³ Permissible military activities during times of peace were discussed in Chapter 2. For present purposes, the military activities, and especially the actions taken to improve maritime security, that fall foul of the prohibition on the threat or use of force are of interest and are examined in the following part.

C. Armed Conflict

The UN Charter prohibits the resort to force except in the exercise of self-defence,²⁴ or unless authorized by the Security Council under Chapter VII.²⁵ One critical question here concerns what actions amount to a threat or use of force; do any maritime security threats constitute an unlawful threat of force? This issue is first examined in this part of the chapter, because the characterization of a particular activity as a threat or use of force or as an armed attack is a precursor to determining the lawful response of a state. The second section then turns to the right of self-defence; the scope of this right has been questioned in the context of maritime security as some interdiction plans or activities have relied on this right rather than risk being challenged as illicit law enforcement. The final section then considers the variety of actions taken by the UN Security Council. As a legal matter, the Security Council constitutes the best avenue for ensuring that forceful responses to maritime security threats are indeed lawful. Though of course reliance on the Security Council necessarily entails all the difficulties associated with the operation of a highly political body.

(1) Threats or uses of force and armed attacks

The current rules regulating the lawful use of force are drawn from the principles set out in the UN Charter and customary international law. Article 2(4) prohibits the threat or use of force against the territorial integrity or political independence of any state. Article 51 then refers to the inherent right of self-defence arising ‘if an armed attack occurs’. The dividing line between threats or uses of force and armed attacks is unclear, as is the line between ‘shows of force’ or ‘gun boat diplomacy’ and threats or uses of force. The characterization of the actions involved is highly significant as it indicates how the victim of the relevant conduct may respond and what body of law is in operation. In the latter regard, the question is whether the laws of naval warfare are engaged or whether peacetime rules under the law of the sea are still determinative.

(a) Inter-state conflicts

There is room for debate as to the extent that a maritime security threat constitutes a ‘threat of force’ that is in violation of Article 2(4) of the Charter. Threats that do not jeopardize peace nor lead to massive human rights violations tend to be accepted or tolerated within the international legal system.²⁶ Hayashi has suggested that threat must be ‘closely tied to what the target State perceives as the readiness of another State to use force’ and ‘usually has a coercive intent to compel the target State to take or not to take certain specific action’.²⁷ For a threat of force to be unlawful, the use of force threatened must also be unlawful.²⁸ The maritime security threat must therefore at least be concerned with threats or uses of armed force, as arguments that the prohibition on ‘force’ in Article 2(4) may extend to other types of force, such as economic force, have generally not been accepted.²⁹

Corfu Channel, which was examined in Chapter 2 in relation to the requirements for innocent passage, remains instructive for what constitutes a threat of force at sea, as that case involved warships proceeding through a strait at a time of high tension between Albania and the United Kingdom. In the case, the Court focused on the manner in which the passage was undertaken by the British warships rather than the purpose of their transit. Notably, the Court considered that the passage of the warships ‘was designed to affirm a right which had been unjustly denied’.³⁰ This language has suggested that states may undertake a show of force in response to a coastal state’s unjustified attempts to deny navigational rights.³¹ There is ample state practice that supports the view that warships may be used as a means of protesting certain maritime claims by coastal states.³² While potential violations of the right of innocent passage, such military action would not constitute a violation of the prohibition on the threat of force.

In Nicaragua, the ICJ drew a distinction between the threat or use of force on the one hand, and armed attacks on the other.³³ It is only the latter that triggers the right of self-defence, as Article 51 of the UN Charter provides: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations…’. An ‘armed attack’ ‘presupposes a use of force producing (or liable to produce) serious consequences, epitomized by territorial intrusions, human casualties or considerable destruction of property’.³⁴ The exact scale required is difficult to judge. In the Oil Platforms case, the Court did ‘not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the “inherent right of self-defence”’.³⁵ The Definition of Aggression identifies the blockade of the ports or coasts of a state by the armed forces of another state, as well as an attack by armed forces on the sea forces or marine fleets of another state, as acts of aggression.³⁶ These actions would also fall under the rubric of an ‘armed attack’.

The Oil Platforms case before the ICJ examined particularly what would constitute an armed attack in the maritime context, thereby justifying the exercise of the right of self-defence. Iran instituted proceedings against the United States at the ICJ on the basis of the bilateral 1955 Treaty of Amity, Economic Relations and Consular Rights, claiming that by its attacks on Iranian oil platforms, the United States had violated Article X, paragraph 1, which establishes the freedom of commerce between their territories. The background to this case concerned the Tanker War between Iran and Iraq whereby both states declared war zones in the Persian Gulf and fired on commercial vessels and warships, particularly those involved in transporting oil for the other side.³⁷ The United States, along with other neutral states, had sought to protect its vessels through the right of convoy, providing naval escorts to merchant vessels. Despite these efforts at protection, ships flagged to the United States or owned by US nationals were still damaged during the conflict.

The particular incidents at issue before the Court concerned a missile attack in October 1987 on the Sea Isle City, which was a Kuwaiti tanker that had been reflagged to the United States, and damage caused by a mine to the US warship USS Samuel B. Roberts in international waters in April 1988.³⁸ Subsequent to the missile attack, the United States attacked Iranian offshore oil production installations, the Reshadat and Resalat complexes. The United States then destroyed the Nasr and Salman complexes following the mine damage caused to the USS Samuel B. Roberts. Iran claimed that these actions by the United States were in violation of the 1955 Treaty whereas the United States asserted that they were justified under Article XX, paragraph 1(d) whereby the treaty does not preclude the application of measures by a party ‘necessary to protect its essential security interests’.

At the time of the attacks, the United States claimed to be acting in self-defence and the destruction of the oil platforms was assessed against the requirements of self-defence by the Court. In attacking the Reshadat and Resalat complexes, the United States not only referred to the missile attack on the Sea Isle City as triggering the right of self-defence, but also to the following:

• the mining of the US-flagged Bridgeton.

The United States argued that the attack against the Sea Isle City gave rise to the right of self-defence, but that the additional attacks showed a pattern of unlawful armed attacks that ‘added to the gravity of the specific attacks, reinforced the necessity of action in self-defense, and helped to shape the appropriate response’.³⁹ The critical question for the Court was whether these acts could be attributed to Iran. Iran alleged that it was not responsible for these actions, suggesting that Iraq could have been culpable instead. The Court’s assessment of the evidence led to the conclusion that the United States had not established that the acts in question were committed by Iran.⁴⁰

The Court further considered that even if Iran was responsible for these actions, they ‘[e]ven taken cumulatively… do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in [Nicaragua], qualified as a “most grave” form of the use of force’.⁴¹ Two key points may be drawn from this conclusion. First, there is an emphasis that the armed attack must clearly be targeted against the state that acts in individual self-defence. Second, the particular acts in question, namely mining of vessels and firing on helicopters, were not grave enough to be viewed as ‘armed attacks’ triggering the right of self-defence, even when considered cumulatively. Articulating additional criteria for an ‘armed attack’ is consistent with an approach that seeks to reduce the instances where states may resort to force, even if they are doing so in self-defence.⁴²

In examining whether a particular state is targeted or not, this question has especial importance in the maritime context because of the use of flags of convenience. Clearly, the United States was concerned with ensuring that it was responsible for the particular vessels it had under convoy given that various Kuwaiti vessels were reflagged to the United States. In Oil Platforms, the Court did not accept that an attack on a vessel, the Texaco Caribbean, was an attack on the United States since it did not have a US flag but was owned by US nationals.⁴³ This position did not take into account the law of naval warfare whereby prize courts might look beyond nationality of the vessel to issues of ownership.⁴⁴ Such a stance may have been justified because looking beyond the nationality is primarily to determine if a vessel is a neutral or enemy merchant vessel, rather than determining which neutral state is responsible for the ship in question.

A further aspect of this requirement that a particular state is targeted or not indicates that there is an element of intention that must be discerned in an armed attack to warrant the exercise of the right of self-defence.⁴⁵ The Court considered that the missile attack was not against US ships in particular but against shipping in general.⁴⁶ This criterion appears as a novel addition to ascertaining whether an armed attack has occurred.⁴⁷ It is unclear whether this element of intention must be assessed on all occasions or whether it is only relevant in assessing an attack against a third state that is not otherwise one of the belligerents.

The determination that the mining of vessels and firing on naval helicopters were not ‘grave’ enough to be considered as armed attacks has been criticized for utilizing the standards considered in Nicaragua in a different context.⁴⁸ Raab has noted that the reference to most grave and less grave uses of force in Nicaragua was based on the particular wording of the Definition of Aggression in relation to sending armed bands into the territory of another state.⁴⁹ In referencing the gravity of the acts to determine if there was an armed attack or not, the Court extended its reasoning in Nicaragua without justification.⁵⁰ The indication appears to be that any use of force must be assessed as to its gravity. However, it has been more commonly held that if regular military forces are engaged in armed action then there is no need to assess the gravity of the particular acts.⁵¹ Moreover, the UN Charter does not refer to a ‘grave’ armed attack in Article 51 and the severity of an armed attack mediates what constitutes a proportionate response rather than whether there has been an armed attack at all.⁵²

The Court, in referring to the series of acts complained of, does appear to accept that they could have been considered cumulatively and as such allows for the possibility that a number of small incidents may amount to an armed attack, provided they are sufficiently grave.⁵³ Given that a single attack on a merchant vessel is unlikely to be viewed as an armed attack,⁵⁴ it is understandable that an accumulation of events should be considered. The Court has not explicitly addressed this issue, but its decision in Oil Platforms, as well as Nicaragua and Cameroon/Nigeria⁵⁵ tend to support the notion that an accumulation of events could be an armed attack.⁵⁶

In setting forth these criteria for what constitutes an armed attack, the Court appears to have been reducing the instances in which a state might in turn resort to the use of force by way of self-defence. The Oil Platforms decision has been criticized as a result, particularly because it reduces the means by which states, notably the United States, may respond to terrorist attacks.⁵⁷ The Court not only created parameters for what would constitute an armed attack but arguably removed any exercise of discretion for decision-makers in determining when to resort to force.⁵⁸

While states may not be able to rely on a right of self-defence, a denial of navigational rights may give rise to a right of a state to undertake proportionate counter-measures, which may involve a show of force.⁵⁹ Acts that may create such a right include violations of the prohibition against intervention, violations of sovereignty and the freedom of navigation and communication.⁶⁰ A violation of the principle of non-intervention ‘would give rise to a right by the coastal State to employ proportionate countermeasures to restore the status quo ante, even if the overt manner of the transit by the naval task force was consistent with the literal requirements of innocent passage’.⁶¹ As noted above, the passage of British warships through the Corfu Channel at action stations was accepted as lawful by the ICJ in response to a denied right of navigation.⁶²

In Oil Platforms, the Court’s interpretation of the 1955 Treaty between the United States and Iran meant that it considered whether the US reliance on its ‘essential security interests’ to justify the attacks was a question to be resolved by reference to the law on the use of force.⁶³ It is disappointing the Court did not look at the broader meaning of Article XX, paragraph 1(d) in as much as it may have been an opportunity to indicate what level of force may be lawful as a proportionate counter-measure in response to violations of the territorial sovereignty, or the principle of non-intervention, or freedom of navigation. Judge Higgins noted in her Separate Opinion that whether Nicaragua or the Oil Platforms decisions allowed for only non-forceful counter-measures in response to less grave forms of the use of force remained a matter of conjecture.⁶⁴

(b) Conflicts with non-state actors

Following the response to the terrorist attacks on September 11, 2001, it is now established that an armed attack may include attacks against a state by non-state actors whose acts are not attributable to a state.⁶⁵ Dinstein has noted that earlier controversy on whether an armed attack by non-state actors was envisaged under Article 51 had been settled by international practice following the September 11 attacks.⁶⁶ Moreover, Security Council Resolutions 1368 and 1373 of 2001 both recognized and reaffirmed the inherent right of self-defence in reference to the September 11 terrorist attacks. Similarly, NATO and the states parties to the Inter-American Treaty of Reciprocal Assistance also affirmed the right of self-defence in response to the terrorist attacks against the United States.⁶⁷

The Court considered in Nicaragua that the supply of arms and other support to ‘armed bands’ in the territory of another state could not be equated with an armed attack.⁶⁸ The Court instead determined that the arming and training of the contras were violations of the prohibition on the recourse to the threat or use of force,⁶⁹ and the principle of non-intervention.⁷⁰ Judge Jennings, in dissent, took the view that there may be an ‘armed attack’ through the supply of weapons if it was coupled with logistical or other support.⁷¹ The Definition of Aggression does not speak to the issue of supply of arms and support, but considers the ‘sending’ of armed groups that carry out particularly grave acts of armed force to amount to an act of aggression.⁷² Gray has argued persuasively that the views of the dissenting judges in Nicaragua are not in line with state practice and that the supply of arms should be viewed as a violation of the obligation of non-intervention and not an armed attack triggering the right of self-defence.⁷³ Her position undermines arguments of states relying on self-defence to justify actions preventing the shipment of weapons to terrorists.

What falls within the category of a ‘threat of force’ or ‘use of force’ has been elaborated on in the Declaration on Friendly Relations,⁷⁴ and includes prohibitions on aggression, reprisals, as well as the following:

Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State.

Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.

These prohibitions are relevant for maritime security in as much as state-sponsored terrorism is prohibited and that no state may assist in terrorist acts that would involve a threat or use of force. A state that refrained from taking steps to prevent— or actively assisted—preparatory acts of a terrorist group that blows up a port or causes a vessel to explode in a strait, for example, could be viewed as violating Article 2(4) of the UN Charter. The reach of the Declaration on Friendly Relations to modern maritime security threats is otherwise quite limited.

The distinction between threats or uses of force and armed attacks generally means that states may not rely on the right of self-defence to justify responses for current maritime security threats.⁷⁵ So, for example, the supply of weapons to hostile non-state actors in another state may constitute a threat of force for another state and a prohibited intervention in its internal affairs. Yet it does not necessarily constitute an armed attack justifying the interdiction of a foreign flagged vessel on the high seas pursuant to a right of self-defence.⁷⁶ Whether a right of anticipatory or pre-emptive self-defence may arise is discussed below.

(c) Conclusion

In sum, in addressing military activities, international law has provided a gradation from intervention to threats of force to use of force to armed attack. Which activities fall within these various categories will be a question for the protagonists and other decision-makers at the relevant time. The case law of the ICJ has been shaping these parameters through the Corfu Channel, Nicaragua and Oil Platform decisions. As noted, what constitutes a prohibited threat of force does not align easily with the range of modern maritime security concerns that have been the focus of discussion in this book. At most, the shipment of weapons to support a terrorist attack against another state is a threat of force. Also in relation to maritime security, support of terrorist acts may amount to a violation of the prohibition on the use of force but the circumstances for such a characterization appear quite constrained in this regard if there is strict adherence to the wording of the Declaration of Friendly Relations. From the judgment in Oil Platforms, the threshold to establish that an armed attack has occurred is quite high. The Court at least indicated that a single attack on a warship may be an armed attack, although the mining of merchant vessels were not.

The characterization of particular acts as a threat or use of force or as an armed attack is important because it determines the lawful response of the victim state. Proportionate counter-measures are likely to be the available remedy to the prohibition on intervention and threats of force and may allow for force that is proportionate to the degree and nature of the threat. A state may only rely on the right of self-defence if there has been an armed attack. The recent jurisprudence of the ICJ tends to indicate that there is a policy preference to reduce the instances in which states may lawfully rely on self-defence. Consequently, the criteria for what constitutes an armed attack, according to the Court, are quite strict. States seeking to respond to maritime security concerns have occasionally relied on self-defence, and the following section examines further when a state may lawfully act on the basis of this right.

(2) Requirements for the lawful exercise of the right of self-defence

Article 51 of the UN Charter provides:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Notable from this provision is that the ‘inherent right’ of self-defence still allows for customary international law standards to inform the exercise of this right.⁷⁷ Further, states may exercise the right of self-defence on either an individual or a collective basis.⁷⁸ Article 51 also establishes, on a prima facie basis, that an armed attack must have taken place prior to a state acting in self-defence.⁷⁹ This classic position on self-defence has been subject to challenge, particularly by reference to customary international law standards.

Academic analyses of the right of self-defence have produced different views as to whether there is an anticipatory right of self-defence under international law.⁸⁰ The UN High Level Panel noted the restrictive position of Article 51 and posited that ‘a threatened State… can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate’.⁸¹