Introduction
The law of naval warfare (LONW) is a domain-nuanced body of law constituting a sub-regime within the general regime of the law of armed conflict (LOAC).Footnote 1 As such, it would be logical and appropriate that the application of the LONW would be closely coherent with that of its parent LOAC regime. This includes consistency in relation to key regime-wide concepts (such as direct participation in hostilities, or DPHFootnote 2), schemes (such as the prisoner of war (PoW) treatment Footnote scheme 3) and approaches (such as a focus on the status or conduct of a person when making targeting decisions that may involve the application of lethal force in relation to that personFootnote 4). Conscious and constant vigilance in seeking and imposing this conceptual coherence across the regime has long been considered an essential prerequisite to paradigmatic coherence within the LOAC more generally. As the International Committee of the Red Cross (ICRC) has observed,
[a] common complaint heard from legal and non-legal military officers alike is that the international law relevant to their operations is a patchwork of provisions from many different treaties and customary rules … and that these instruments are difficult to stitch together into operationally relevant doctrine, education and field training. Another common complaint is that intricate terminology tends to dominate discussions of this body of law. These are serious concerns, since military commanders stand at the interface between the law and its application in the field.Footnote 5
An examination of the maritime-domain-specific history that stands behind the development or incorporation of many of these concepts, schemes and approaches within the LONW confirms this point, disclosing clear instances of a need for differential application and interpretation when considering armed conflict at sea. For example, the LONW is founded upon a “platform” status-based targeting methodology, as opposed to the personnel status- and/or conduct-based targeting methodology that infuses the LOAC more generally.Footnote 6 That is to say, the observable potential target at sea is a vessel or aircraft; certainly, there are people on or in the platform (usually), but it is the platform itself that is targeted. The commander ashore, by contrast, is concerned fundamentally with the status of the person – for example, combatantFootnote 7 or member of an organized armed group,Footnote 8 as opposed to civilian. Additionally, given the sanctity of the requirement to assume civilian status in cases of doubt,Footnote 9 it may also be necessary in some situations (e.g., where the civilian is engaged in certain hostile conduct) to further interrogate the targetability of a person. This is particularly the case where the person otherwise “looks” to be a civilian; in such cases, the commander ashore will be concerned as to the nature of that individual’s conduct and whether it meets the criteria for civilians directly participating in hostilities (CDPH). At sea, however, it is the platform rather than the person that matters.Footnote 10
Consequently, at sea, the status and conduct of the crew of a vessel are derivative rather than primary – that is, the crew are “tarred” with the status “brush” of the vessel they are in. This means that merchant mariners generally share the rights and liabilities that attend their vessel’s status.Footnote 11 Take, for example, a belligerent auxiliary vessel,Footnote 12 which is generally commanded and crewed by civilian mariners, although some auxiliaries will carry detachments of armed forces personnel for specific tasks such as operating specialized sensor, communications and cryptological equipment.Footnote 13 Because an auxiliary vessel is ab initio a military objective in the same way that a warship is,Footnote 14 the civilian crew in that auxiliary vessel shares the same liability to attack that their platform’s status brings.Footnote 15 This means that the civilian crew are not considered as collateral damage – they are inherently targetable with their ship (and States must ensure that these crews are aware of this liability). It must be noted, however, that other approaches do exist – for example, one such approach asserts that the principle of proportionality does formally apply, although it will generally be the case that the expected military advantage in neutralizing the auxiliary will far outweigh the incidental civilian harm.Footnote 16
These inconsistencies are more than merely historically curious; indeed, they can result in quite significant differences between the application of key LOAC rules at sea and ashore. For example, an appreciation of the history behind the application of the PoW regime in naval warfare allows us to understand why it is that the civilian crews of enemy merchant vessels that have resisted or even attacked adversary warships are not prohibited from such conduct and, upon capture, are treated as PoWs.Footnote 17 Yet that same conduct – attacking the enemy’s military forces – carried out by a civilian ashore would result in that civilian (if captured) being treated as a civilian who is potentially liable (depending on the relevant domestic laws) to criminal prosecution for DPH for their otherwise LOAC-compliant battlefield conduct.Footnote 18 Indeed, at the Hague Conference of 1907, where the issue of whether the land-based concept of francs-tireurs (a term which gained prominence as a result of the Franco-Prussian War of 1870–71,Footnote 19 but which today is termed CDPH) should apply to warfare at sea was explicitly considered, the clear conclusion was that it should not. This was evident in the report of the specialist committee assigned the task of analyzing the proposed Regulations Respecting the Laws and Customs of War on Land, which became the Annex to 1907 Hague Convention (IV) relating to the Laws and Customs of War on Land. The purpose of this examination was to ascertain which of the draft Annex’s provisions might have relevance for the proposed naval warfare conventions. The committee’s assessment was that “[i]nasmuch as in the present state of affairs there can be no further thought of irregular hostilities on the seas, the considerations which prompted Article 1 [of the draft Annex] do not appear to be applicable to naval warfare”.Footnote 20 In other words, differential interpretation is required.
This article seeks to describe and assess three broad sets of challenges that attend the application and interpretation of the LONW. In some regards, these challenges may appear novel; however, they are, in many cases, actually quite enduring. As has been noted many times in the last few hundred years, when it is not in daily consideration, the LONW tends to fall quickly from view, meaning that when maritime tensions periodically re-emerge, we often have to “relearn”. As Thomas Baty said in 1916, reflecting on the paucity of LONW knowledge on the cusp of the twentieth century: “Then came the Russo-Japanese War of 1904–5. It found an ignorant world, which had forgotten its rights.”Footnote 21 Assessing that we may now be in a similar state of forgetting, this article will therefore begin with an outline of the current geostrategic situation in relation to the potential for armed conflict at sea. This is the essential precondition for any analysis of application and interpretation challenges in the LONW because – as a sub-discipline prone to “out of sight, out of mind” forgetting, and noting the current fact of many other intensely challenging international law issues to manage – history indicates that unless there is a crisis driver, it is unlikely that the LONW will re-emerge as an issue for attention. Following this – and noting the concurrent need for nuanced LONW assessments that this situation evokes – the analysis will then drill down into five specific challenges to the application and interpretation of the LONW: the risks of misinterpretation and misapplication; the risk arising from the recent shore-based focus on the LOAC; LONW interpretation’s fundamental indebtedness to historical examples; the necessity for LONW interpretive fidelity in the context of the broader trend towards systemic integration; and some challenges in relation to sources to assist in the application and interpretation of the LONW.
Lack of appreciation of the heightened risk of international armed conflict at sea
Amongst specialist maritime scholars and practitioners, there is relatively little demurrer from the concern that we currently face a troublingly increased potential for international armed conflict (IAC) at sea. However, there is a tendency for this risk to be discounted, or even not recognized at all, amongst the broader legal and policy communities. This tendency is arguably a function of two factors. The first is strategic: the patchy history of post-1945 IAC at sea. The second is legal: the nature of the Article 2 common to the four Geneva Conventions (common Article 2) threshold at sea.
The current prospects for renewed geopolitical tension at sea
The late 2010s and early 2020s have evidenced a sense of pessimism amongst a range of observers, analysts and practitioners of maritime operations around the potential for a significant IAC at sea to manifest over the next decade. As Dale Stephens and Matthew Stubbs observed even in 2019,
[c]learly articulating the rules of international law applicable to naval conflict is more relevant now than in living memory, with rising naval tensions in the South China Sea constantly in the news, and great power naval rivalries brewing in both the Indian and Pacific Oceans.Footnote 22
Such perceptions of heightened risk and potential for IAC at sea are closely aligned to the fact that there appear to be increased tensions playing out at sea in interactions between antagonist warships and other vessels. In the past, it has been precisely these types of interactions within contexts of broader geopolitical tension that have signalled escalatory potential. The near-breach of the US Navy’s October 1962 “quarantine” by Soviet merchant vessels and warships during the Cuban Missile Crisis was a close-run thing – interactions between US and Soviet fleet units were, on some accounts, mere minutes from causing a general conflagration between the fleets.Footnote 23 Such tense interactions between naval units at sea are more common than is often appreciated, and it is only the political palatability of, and planning for, de-escalatory responses during times of moderate tension, and the tendency to more assiduously avoid close interactions during periods of heightened tension (which was the precise purpose of the US–Soviet Incidents at Sea Agreement negotiated in 1972Footnote 24), that have kept these incidents subdued.
But at a time of heightened geopolitical tensions in the Indo-Pacific, Baltic and Black Seas in particular, there is an increasing tendency for these tensions to be played out between naval and coastguard units, and maritime militia vesselsFootnote 25 in disputed waters. This shadow cast by the confluence of contextual tension, increased perceived risk, competing perceived national interests and a simply greater number of opportunities for incidents looks to be deeper and more sustained than at any time since the winding down of the Cold War.Footnote 26 This retreat from post-Cold War policies of limiting provocation and pursuing de-escalation at seaFootnote 27 also indicates that the current uptick in maritime incidents within a broader context of increased geopolitical tensions is a global phenomenon. There is, consequently, a re-emerging need for accurate re-engagement with the LONW given these current strategic circumstances.
However, the stepping off point for this re-engagement is itself a challenge, as a consequence of the LONW’s recent relative invisibility. For some, this “long neglect” of the LONW has significantly “blurred the picture to the point that problems [of interpretation and application of the LONW] have now assumed an acute, some would even say insurmountable, complexity”.Footnote 28 The potential for an unfriendly navigational harassment incident to turn into a collision, and a collision to result in loss of life and significant damage, and for force to be used in response, must not be underestimated.Footnote 29 Should the unthinkable eventuate – a short-lead-time, major-power IAC at sea – then it will already be quite late for government legal advisers to start skilling-up on the LONW and its quirks and nuances. What, for example, will a belligerent State do if an IAC at sea between that State and another breaks out, and there are “enemy” flagged merchant vessels in the State’s port at the time? Will – and if so, how will – the belligerent State manage the LONW obligation-permission rule set encapsulated in Articles 1 and 4 of 1907 Hague Convention (VI) relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities? Article 1 of the Convention reads:
When a merchant ship belonging to one of the belligerent Powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely, either immediately, or after a reasonable number of days of grace, and to proceed, after being furnished with a pass, direct to its port of destination or any other port indicated.
However, Article 4 reads:
Enemy cargo on board the vessels referred to in Articles 1 and 2 [the latter of which concerns vessels unable to leave the enemy port due to force majeure] is … liable to be detained and restored after the termination of the war without payment of compensation, or to be requisitioned on payment of compensation, with or without the ship.
Similarly, how would the belligerent State manage – or would it even implement? – the authorization to intern the crews of any captured enemy registered merchant vessels as PoWs (noting that crews today are predominantly multinational rather than of the nationality of the vessel’s flag as was the case when the governing rule set – Articles 5–8 of 1907 Hague Convention (XI) relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War – was crystallized)? How will the belligerent State respond to third-State consular pressure to release what will be predominantly neutral-nationality merchant mariners from indefinite PoW internment based on rules that assign status under the LONW based on ship nationality? Would the option of “parole” for neutral mariners on captured enemy merchant vessels be offered? If these were neutrals captured in enemy territory ashore, they would simply be civilians, but under the LONW, they are not. And what of a small regional State that finds itself obliged to intern a belligerent auxiliary crew, for example due to circumstances similar to those in which the Graf Spee’s crew were required to be interned by neutral Uruguay in 1939?Footnote 30 The logistical, diplomatic, reputational, legal and commercial ramifications of implementing – or not implementing – these LONW provisions are complex and carry significant consequences. This is why the LONW needs to be better understood both in general and within its historical context. Illustrative of these contexts are the two specific issues of the common Article 2 threshold for IAC, and the often forgotten history of post-1945 IAC at sea. It is to these two factors that the analysis now turns.
The common Article 2 threshold for IAC
A key legal factor contributing to this risk of misapplication is the very low legal threshold for triggering an IAC. As traditionally understood, common Article 2 – which sets the threshold for IAC – is relatively easily activated:
It makes no difference how long the conflict lasts, or how much slaughter takes place. … If there is only a single wounded person as a result of the conflict, the [1949 Geneva] Convention [I] will have been applied as soon as he has been collected and tended, the provisions of Article 12 [which, in the context of Geneva Convention II, relates to protection and care of the sick, wounded and shipwrecked] observed in his case, and his identity notified to the Power on which he depends.Footnote 31
There has been some attention of late as to the complicated question of how the common Article 2 threshold interacts with the quite different contexts that can surround the use of force at sea by sovereign immune vessels (being warships, and other vessels on State non-commercial service which are appropriately authorized and identified as having the requisite authorityFootnote 32) within the context of what are often referred to as “maritime security operations”, as compared to the use of force by military agents ashore. Wolff Heintschel von Heinegg’s analysis of several iconic maritime incidents clearly indicates
that certain military operations against foreign warships or military aircraft do not constitute a use of force, although they are provocative or aggressive in nature[,] because they are neither intended nor expected to directly result in damage or injury. The same holds true if they in fact, but mistakenly, result in damage or injury. State practice provides sufficient evidence that there are certain actions which are to be strictly avoided because they have the potential of escalating a given situation, but which do not as such bring an international armed conflict into existence.Footnote 33
Heintschel von Heinegg concludes that “not every confrontation at sea results in an international armed conflict. Although aggressive in nature or legally doubtful, most maritime operations, worrying as they may be, remain within the paradigm of incidents at sea.”Footnote 34 Cameron Moore has similarly argued that incidents between warships must be understood as being “between states, not tactical commanders”, and that, consequently,
[i]t is possible to argue that the threshold of application of the law of armed conflict at sea is actually quite high. It is unlikely to apply to incidents involving the navigation of warships where there is no intention to engage in broader conflict.Footnote 35
The 2017 ICRC Commentary on Geneva Convention II (GC II) similarly tries to distinguish maritime incidents from the common Article 2 threshold on the basis of context and intention, but without cancelling out the broadly desirable option of having the protective aspects of the LOAC apply at the first opportunity.Footnote 36
Given that the LOAC has always looked at facts on the ground, while in practice it is politicians who decide whether to accept the legal qualification of those facts, these arguments are logical, persuasive and legally well founded. However, they do not guarantee that a legal adviser with no particular knowledge of the conduct of maritime operations, who is faced at short notice with a critical interaction between sovereign immune vessels at sea, will not simply revert to the orthodox interpretation of the common Article 2 threshold and find that an IAC at sea has commenced and that the LONW is consequently applicable in its full and forcible panoply.
The nature of post-1945 maritime IACs
The next factor contributing to the generalized under-appreciation of an uptick in potential for conflict at sea is that, as a matter of maritime operational history, maritime IACs since the large-scale, five-year-long conflict at sea during World War II have on the whole been short, sharp – even a single day or single event – conflicts. This is significant because it has perhaps distracted analysis from considering elements of the LONW as they apply in protracted conflict at sea. For example, the short Indo-Pakistani War of 3–16 December 1971 involved a series of attacks by naval forces and significant loss of life and ships over the course of just 13 days.Footnote 37 Similarly, the Battle of the Paracels on 19–20 January 1974, when People’s Republic of China (PRC) forces evicted the South Vietnamese garrison from the Paracel Islands, was a two-day naval armed conflict that resulted in significant loss of life, along with the damaging or sinking of one PRC warship and several South Vietnamese warships and auxiliaries.Footnote 38 The battle for Johnson South Reef between PRC and Vietnamese forces, on 14 March 1988, similarly lasted for one day, and resulted once again in significant Vietnamese casualties and the taking of nine Vietnamese PoWs by Chinese forces;Footnote 39 these PoWs were ultimately returned to Vietnam only in 1991.Footnote 40 During the 1980–88 Iran–Iraq War and its associated “Tanker War”, the Iranian mining of a US warship on 14 April 1988 led to Operation Praying Mantis,Footnote 41 a four-day (14–18 April 1988) US naval operation against Iranian oil platforms, and Iranian Navy and Iranian Revolutionary Guard Corp Navy vessels. This combat action resulted in many Iranian casualties and, ultimately, the Oil Platforms case before the International Court of Justice (ICJ). The Democratic People’s Republic of Korea’s (DPRK) submarine-perpetrated sinking of Republic of Korea ship (ROKS) Cheonan on 26 March 2010Footnote 42 was also a single-day incident that constituted – as the International Criminal Court (ICC) Office of the Prosecutor advised – either the renewal of the 1950–53 armed conflict via a breach of the armistice, or a new IAC.Footnote 43 The Mavi Marmara incident in the eastern Mediterranean on 31 May 2010 – although it took place within a much broader and protracted conflict contextFootnote 44 – is yet a further illustration of the often short, sharp, limited, nature of LONW-governed incidents since 1945.
Indeed, in this regard, the ten-week-long UK–Argentina Falkland Islands/Islas Malvinas War in April–June 1982 (which involved significant loss of life at sea, and of warships and auxiliariesFootnote 45) and the limited direct naval engagements between Iran and Iraq during the 1980–88 warFootnote 46 are in many ways the post-1945 outliers in terms of the length of IACs at sea. Furthermore, the single major Iran–Iraq naval engagement of the 1980–88 war, Operation Morvarid, took place very early in the conflict and tends to confirm the trend at any rate – it lasted around twelve hours over the course of 29–30 November 1980, and left the Iraqi Navy in a parlous state.Footnote 47 Thereafter, the naval component of the Iran–Iraq War mainly consisted of attacks by both sides on merchant shipping (the “Tanker War”Footnote 48), although Iraq also struck USS Stark with two Exocet missiles on 17 May 1987,Footnote 49 and USS Samuel B. Roberts was damaged by an Iranian mine on 14 April 1988Footnote 50 (leading inter alia, as noted, to Operation Praying Mantis and, ultimately, the Oil Platforms caseFootnote 51).
Five current risks attending application and interpretation of the LONW
With this background as to how and why there is a persistent under-appreciation of the potential for IAC at sea to arise in our current geostrategic circumstances, it is now possible to describe and assess the risks that attend this “out of sight, out of mind” challenge. From the perspective of applying and interpreting the LONW, there are five significant challenges: misinterpretation and misapplication of the LONW due to a failure to appreciate its often sui generis nature; the lure of application and interpretation by analogy from the shore-based LOAC; the heavy reliance of the LONW on historical examples; the highly lex specialis nature of the LONW in relation to the non-fragmentation trends underpinning the modern international law interpretive endeavour; and finally, the consequences that could be assumed to flow from the aged nature of the LONW’s main sources. In this regard, it is important to register (as noted previously) that while eloquent, logical and provocative arguments have been made for the desuetude, or even evolved illegality (in respect of UN Charter law, for example), of several LONW rule sets (such as prize law), this article takes the position that neither law nor State practice has extinguished the relevance of these admittedly often quite old rules.
The risk of misinterpretation and misapplication of the LONW
The requirement for different interpretations of the LOAC as between sea and shore can and does manifest in different legal characterizations assigned to otherwise similar conduct. This is well illustrated in the 1916 German trial and execution of British Merchant Marine Captain Charles Fryatt, a merchant mariner and master of the British merchant vessel SS Brussels. Captured, tried and executed by the German Navy, Fryatt’s alleged offence was that on 20 March 1915 he had attempted to ram a German U-boat as it sought to stop and capture his vessel.Footnote 52 In essence, he was characterized by the German Naval Court Martial as a francs-tireur. Yet, as the official history of the Merchant Navy in World War I records,
[i]t was Captain Fryatt’s plain duty to escape capture if he could, and his obligation was the more binding in that the Admiralty had instructed all merchant captains to thwart submarine attacks by every means in their power.Footnote 53
These initial instructions had included that all merchant vessels – armed or not – should not surrender to German U-boats and should seek to defend themselves, including, if unarmed, by ramming.Footnote 54 These instructions were further formalized in October 1915, noting that
[t]he right of the crew of a merchant vessel forcibly to resist visit and search, and to fight in self-defence, is well recognised in International Law, and is expressly admitted by the German Prize Regulations in an addendum issued in June 1914, at a time when it was known that numerous vessels were being armed in self-defence.Footnote 55
James Brown Scott, commenting at the time upon the Fryatt case, specifically noted that the general scholarly view amongst English, US, German and other scholars “call[ed] attention to the differences between the laws of land and maritime warfare, and state[d] the confusion which results if they be not kept separate and distinct”.Footnote 56
Edwin Maxey similarly recognized the distinction to be drawn between the LOAC ashore and the LONW at sea:
Under international law, the crew of a merchant vessel has the right to resist an unlawful attack by an enemy warship and has a legal right to capture or sink the warship if it can. By making such an attempt, the members of the crew become combatants and subject themselves to the risk of being sunk or captured; but in case they are captured, they are legally entitled to being treated as prisoners of war. The chances of being sunk are such that a merchant vessel will not often assume the risks of resisting capture by an enemy warship. But if its crew choose to assume the risks, those risks are determined by international law.Footnote 57
The legal consequences of applying such “ashore”-informed general LOAC perspectives and appreciations – in this case, in relation to what is now known as DPH – to armed conflict at sea can therefore include applying the wrong treatment and detention scheme to merchant vessel crews. As evidenced in the Fryatt case, and more recently perhaps in the report of the Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commission Report) in relation to the 2010 Mavi Marmara incident (see below), this risk of incorrect application is not simply theoretical. This challenge is also reflected in the next risk on our list – the recent pervasiveness of shore-based non-international armed conflict (NIAC) and counterterrorism LOAC considerations.
The risk arising from a shore-based focus on the LOAC
One key current reason underpinning a potential for interpretive error, and which indicates that such potential is not merely theoretical, is the land- and counterterrorism-based focus of military operations, and thus LOAC interpretive endeavours, over the last two decades. The almost overwhelming dominance of this land-based LOAC interpretive context and narrative has indeed led to assertions of exactly this nature in operational contexts. For example, the Turkel Commission Report on the 2010 boarding by the Israel Defense Forces (IDF) of the Gaza-blockade-breaching Mavi Marmara clearly characterized passenger and crew conduct as CDPH, and did not demur from the initial Israeli view that these individuals could be liable to criminal prosecution for their uses of force against the IDF units involved (though they ultimately were not subjected to such prosecution).Footnote 58 This would make sense if there was a complete analogy between CDPH characterization ashore and at sea, but as the LONW mandates, this is not the correct approach at sea: while passengers may be characterized as CDPH, the crew of neutral merchant vessels that take on “enemy character” via conduct (such as seeking to breach a blockade or actively resisting belligerent enforcement rights) are generally to be made PoWs (which implies immunity from criminal prosecution).Footnote 59 This “maritime uniqueness” also serves to indicate the next risk to be assessed: the LONW’s indebtedness to (often quite old, but not necessarily dated) historical case study exemplars.
Risks flowing from LONW interpretation’s fundamental indebtedness to historical examples
Mark Janis notes that “the traditional law of the sea was much more the creature of customary than conventional development”.Footnote 60 This general statement holds true for the deep reliance upon historical examples and consequent customary rule distillation that characterizes analysis, interpretation and application of the LONW. In his 1975 book The Influence of Law on Sea Power, D. P. O’Connell – a historian of international law as much as he was an international lawyer – observed how
[a]n approach to the subject [of the law applicable to naval operations] from the historical point of view makes it possible to envisage a philosophy of law in relation to strategy which can bring some coherence to the analysis of contemporary questions. The law has never been static. Its pliable character has meant that it has been made to serve the purposes of sea power, and so it has become a weapon in the naval armoury. Just how it has played this role has depended on the issues that occasioned resort to naval force, but it has always been prominent in giving form and character to the issues as well as in influencing the conduct of those who have sought their resolution.Footnote 61
For example, the intensely practical and incident-based,Footnote 62 often judge-made,Footnote 63 and (within the LOAC) sui generis roots of prize law – which “has never been codified”Footnote 64 – make that body of law almost unintelligible. This also makes the LONW highly sensitive to modern critiquesFootnote 65 – unless it is viewed within its historical context.Footnote 66 As R. G. Marsden observed in 1909, “[t]he prize jurisdiction now vested in our high court of justice originated in the disciplinary powers conferred upon the admirals of the early fourteenth century by their patents”.Footnote 67 Consequently, the occasionally counter-intuitive nuance and stasisFootnote 68 of this body of law can be subject to perceptions of opacity unless its historical roots are understood.Footnote 69
The same must be said as regards the LONW-specific rule on the false use of enemy or neutral flags at sea (that is, when warships fly enemy colours to deceive the enemy on approach, but hoist their true colours prior to an actual armed engagement) not being classified as perfidy, as would generally be the case ashore. Indeed, this is expressly stated in Article 39(3) of Additional Protocol I to the Geneva Conventions.Footnote 70
As Politakis observes, the LONW’s heavy reliance on historical examples and precedents can create an unhealthy dichotomy whereby “looking to the past resembles an excursion through anachronisms, while looking ahead obliges a confession of impotence”.Footnote 71 This state of affairs also highlights the fourth risk to be noted: the challenge of maintaining what some might call “anachronistic” lex specialis in the face of the systemic drive for non-fragmentation in international law.
The necessity of LONW interpretive fidelity, and the trend towards systemic integration
The LONW is intensely sensitive to the broader ongoing legal methodological debate around the interaction (and generally competition) between systemic interpretive coherence and lex specialis Footnote 72 interpretive fidelity. The International Law Commission (ILC), in its report on Fragmentation of International Law, describes the purpose of interpretive approaches thusly:
Legal interpretation, and thus legal reasoning, builds systemic relationships between rules and principles by envisaging them as parts of some human effort or purpose. … In international law, there is a strong presumption against normative conflict. Treaty interpretation is diplomacy, and it is the business of diplomacy to avoid or mitigate conflict. This extends to adjudication as well.Footnote 73
Consequently, the first approach at play in the cascading international law–LOAC–LONW interpretive conundrum is the general preference for systemic integration (or the technique of “mutual supportiveness”), which privileges “read[ing] the relevant materials from the perspective of their contribution to some generally shared – ‘systemic’ – objective”.Footnote 74
This interpretive coherence (systemic integration) project seeks to privilege coherence in interpretation and application, and in terminology, across the key component regimes of international law. Support for this approach is often cited as leveraging Article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties, being reflected in ICJ decisions including the 1971 Namibia Advisory Opinion,Footnote 75 the 1980 WHO and Egypt Advisory OpinionFootnote 76 and the 2003 Oil Platforms case,Footnote 77 and (as noted above) endorsed by the ILC in its Fragmentation of International Law report.Footnote 78 This is a laudable and necessary development if the system is to avoid irremediable fragmentation. Consequently, the general trajectory of interpretive endeavour in international law is undoubtedly towards this system-wide coherence objective; indeed, the vast – decades-long – endeavour to ensure and refine the parameters and detail of LOAC–international human rights law (IHRL) interaction is perhaps one of the examples par excellence of this trend.Footnote 79
However, the ILC also recognized that this preference for, and trend towards, systemic harmonization has limits in that whilst it can resolve “apparent” interpretive conflicts, it may not resolve “genuine” interpretive conflicts.Footnote 80 One such situation occurs when the preference for systemic integration confronts an exceptionalist need for lex specialis interpretive fidelity in order to ensure sensitivity to context.Footnote 81
Significantly, the ILC also recognized that “fragmentation” can affect interpretive coherence not only between legal “regimes” but also between sub-regimes within a single regimeFootnote 82 – precisely the challenge posed by the LONW within the LOAC. Consequently, while fidelity to lex specialis does not dispute the validity of this general inter-regime coherence project, it does preserve some highly contextualized, generally practice-proven exceptional interpretations necessary for the legitimate operation of certain unique rule sets. Thus, where validly invoked, this rule-bespoke exceptionalism is necessary in order to ensure critical elements of regime (such as the LOAC) or sub-regime (such as the LONW) coherence. At a regime level, this is why, for example, detention in the LOAC is increasingly understood as an amalgam of LOAC and IHRL rulesFootnote 83 (the systemic coherence imperative), whilst the narrower PoW regime is still considered to be sui generis, specialist and self-contained to the general exclusion of broader IHRL principles.Footnote 84
As noted, however, this requirement for exceptionalism can also manifest at a sub-regime level such as that of the LONW within the LOAC. For the LONW, this imperative for situational (but not complete) exceptionalism ensures that adequate attention is given to operational domain sensitivity, practicality in employment of naval capabilities, and historical nuance when interpreting and applying the LONW. Consequently, the associated challenge in identifying and contextualizing LONW source material in order to understand the architecture of LONW exceptionalism is an inescapable element of applying and interpreting the LONW, and it is to the risks attending this factor that the analysis now turns.
Challenges in relation to sources to assist in the application and interpretation of the LONW
In any application and interpretive endeavour concerning the LONW, it is important to note that this sub-discipline is (incorrectly) considered by some LOAC practitioners and scholars to be arcane, archaic, obsolete or all three.Footnote 85 Steven Haines points out the context for this perception:
In the past quarter of a century, the lex specialis for armed conflict has been subjected to intense public, official, judicial and academic attention, becoming one of the most intensely scrutinized areas of public international law today. … One element of the lex specialis has been largely overlooked, however. The law regulating the conduct of hostilities in naval war – the [LOAC] applicable at sea – has attracted little general attention or focused scrutiny.Footnote 86
However, as Haines continues, the LONW in fact remains as relevant and robust as any other aspect of the LOAC, and the fact that it may require revisiting, and perhaps even revision, proves rather than negates this conclusion. Indeed, until the upsurge in piracy off the coast of Somalia in the 2000s, the charge of quaint obsolescence – of being “chiefly of historical significance” – was intermittently levelled at the law of piracy.Footnote 87 Arguments regarding the desuetude of another supposedly extinct doctrine in the LOAC, recognition of belligerency,Footnote 88 require similar scrutiny. The initial point to be made in respect of this risk is simply that long periods of dormancy or “forgotten-ness” do not necessarily render legal regimes irrelevant, and even the precise criteria for identifying and declaring desuetude are themselves unsettled.Footnote 89 Indeed, it often takes but a single incident or series of incidents to resurrect such areas of law as matters of immediate concern – as the experience of piracy certainly attests.
Why is the LONW sometimes considered obsolete?
That being said, the tendency to perceive the LONW as archaic, arcane and obsolete is not without some foundation. This is in many ways a function of two factors. The first is that recent incidents where application of the LONW was warranted are often thought of as rare. This is a misperception, but it is nevertheless widely held, and also draws life from the fact that cases and commentary where the LONW should be relevant are often dealt with by reference to other legal regimes. Politakis has observed of LONW jurisprudence that
authors have practically nothing to quarrel over but a few lines from the Donitz judgment of the Nuremberg Tribunal, while the ICJ pronouncements in the Corfu Channel and the Nicaragua cases have not touched upon truly controversial matters of the law of sea warfare.Footnote 90
The Oil Platforms case, for example, offered a clear opportunity for the ICJ to engage with the LONW,Footnote 91 but the Court did not take this up and instead focussed on the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, and the “importable” law of national self-defence.Footnote 92 Similarly, the 2018 Kerch Strait incident has been widely dissectedFootnote 93 and decided in law of the sea terms.Footnote 94 This is understandable and appropriate, but it misses the fact that it has been argued that the LOAC was also applicable to that situation. In other words, many situations liable to LONW analysis and jurisdiction tend to be dealt with as law of the sea situations only. This does not mean that the LONW is irrelevant; it just means that the LONW’s applicability has been sidelined.
Source implications flowing from the LONW’s “comparative antiquity”
The second reason that this “arcane, archaic and obsolete” perception has some currency is the fact that most specialist LONW treaties and instruments are more than 100 years old and are thus prima facie suspect in terms of current relevance. The “comparative antiquity”Footnote 95 of the essential corpus of LONW-specific instruments is bounded by the four-sentence 1856 Paris Declaration, the 1907 Hague Conventions dealing with LONW matters (i.e., those which ultimately entered into force),Footnote 96 and – although of more recent provenance – the 1949 GC II regarding the sick, wounded and shipwrecked at sea.Footnote 97 This factor has three significant implications in relation to sources for the LONW.
The first implication of the LONW’s “comparative antiquity” is that, given this paucity of recent treaty law in the LONW – what Politakis has called an intentional “penury of binding legal instruments” which has sometimes led to assessments of the LONW being “undecipherable”,Footnote 98 and Fink has described as the normalcy of a “continuing crisis” in LONW crystallizationFootnote 99 – there is significant emphasis in the LONW on customary international law. This is perhaps highlighted in the reliance placed upon more recent incident reports such as the previously noted Mavi Marmara report and the ICC Office of the Prosecutor report on the sinking of ROKS Cheonan. Additionally, the LONW applicable in NIAC is even less instrumentally based, relying predominantly on customary international law for its content.Footnote 100
The second implication – which follows from the points above – is that the LONW has tended to be, and remains, characterized by a select number of highly influential “soft-law” publications that tend to dominate analytical endeavour. As Politakis notes, “[i]n view of the dearth of legal sources on the subject, doctrinal works are most often confined to a narrative discourse on state practice and a review of the relevant literature”.Footnote 101 These doctrinal works are of three types. The first is specialist national military manuals and naval codes such as the 1895 Russian Regulations as to Naval Prizes,Footnote 102 the US Code of Naval Warfare of 1900,Footnote 103 the 1955 US Law of Naval Warfare Manual,Footnote 104 the US Navy, Marine Corps and Coast Guard Commander’s Handbook on the Law of Naval Operations,Footnote 105 and the German Commander’s Handbook: Legal Bases for the Operations of Naval Forces.Footnote 106 The second is expert commentaries, commencing with the 1913 Manual on the Laws of Naval War, or Oxford Manual,Footnote 107 and reflected today in the 1995 San Remo Manual on International Law Applicable to Armed Conflicts at Sea Footnote 108 (which itself is in need of updatingFootnote 109), the 1960 and 2017 ICRC Commentaries on GC IIFootnote 110 and the recent Newport Manual on the Law of Naval Warfare.Footnote 111 The third regular source for LONW analysis is a select cadre of historically significant academic works on the LONW such as texts by Hall (1914)Footnote 112 and Tucker (1955),Footnote 113 and Natalino Ronzitti’s 1988 collection of documents with commentaries.Footnote 114 The LONW has a long history, and almost all of its sources are historical; the consequences of this legal antiquity for LONW analysis and interpretation should never be understated or underestimated, and certainly cannot be ignored.
Conclusion
This article has sought to outline why the analysis and exegesis of the LONW – often and enduringly subject to “out of sight, out of mind” invisibility and a consequent trend for post-conflict “forgetting” – requires some dusting off. It has suggested that the current geostrategic environment, enduring uncertainties as to how common Article 2 operates at sea, and a better appreciation of the nature of post-1945 IACs at sea all provide contextually significant reasons for deeper and wider engagement with the LONW. However, this objective is not without inherent problems, and the analysis has therefore also sought to describe five risks and challenges that will inevitably attend efforts to rejuvenate the study, application and interpretation of the LONW. Several of these challenges are manifest in the LONW’s long and often nuanced history – including the high priority placed on lex specialis interpretation, the LONW’s heavy reliance on custom distilled from historical examples, and the “comparative antiquity” of its key sources. Other challenges are more a result of the clash between enduring LONW precepts and modern LOAC interpretive trends, such as with status and characterization paradigms and the dangers of importing recent shore-based LOAC concerns such as CDPH into LONW analysis. Nevertheless, as challenging as the endeavour may be, it is essential that the discipline of international law makes some room for the application and interpretation of the LONW to resurface into the observable shallows so that it is no longer out of sight and out of mind.
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