War and security at sea

IRRC No. 902

War and security at sea

Tensions over disputed territory in the South China Sea, East China Sea and elsewhere have brought to light the importance of addressing military operations at sea in recent years. The hard law related to the use of force at sea has not evolved much since 1949, but new political realities and new technologies such as autonomous weaponry have tested the limits of the law. This issue of the Review addresses not only the IHL considerations related to armed conflict at sea, but also the role of bodies of law such as the law of the sea, the law of neutrality and human rights law, as many maritime operations are related to law enforcement or to humanitarian assistance outside of armed conflict.

Table of contents

  • Editorial: War and security at sea - warning shots

    Naval warfare and maritime security may seem a surprising theme to choose for the Review today. As a matter of fact, in the last few years most discussion about humanitarian law and action has centred on other spaces such as the arid reaches of Central Asia and the Sahel, urban areas in the Middle East, or even cyberspace, rather than the seas.
    Vincent Bernard, Editor-in-Chief

  • Interview with Ambassador Ong Keng Yong

    The topic of war and security at sea is increasingly becoming more important considering the latest trends and maritime operations carried out by States. It seems to be especially important in the region of Southeast Asia. Tell us about the current situation in the South China Sea, and provide our readers with an overview of the region, the territorial disputes and the players involved.
    Ong Keng Yong, S. Rajaratnam School of International Studies

  • The updated ICRC Commentary on the Second Geneva Convention: Demystifying the law of armed conflict at sea

    Since their publication in the 1950s and 1980s respectively, the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977 have become a major reference for the application and interpretation of those treaties. The International Committee of the Red Cross, together with a team of renowned experts, is currently updating these Commentaries in order to document developments and provide up-to-date interpretations of the treaty texts. Following a brief overview of the methodology and process of the update as well as a historical background to the Second Geneva Convention, this article addresses the scope of applicability of the Convention, the type of vessels it protects (in particular hospital ships and coastal rescue craft), and its relationship with other sources of international humanitarian law and international law conferring protection to persons in distress at sea. It also outlines differences and commonalities between the First and the Second Conventions, including how these have been reflected in the updated Commentary on the Second Convention. Finally, the article highlights certain substantive obligations under the Convention and how the updated Commentary addresses some of the interpretive questions they raise.
    Bruno Demeyere, International Committee of the Red Cross
    Jean-Marie Henckaerts, International Committee of the Red Cross
    Heleen Hiemstra, ICRC
    Ellen Nohle, International Committee of the Red Cross

  • War at sea: Nineteenth-century laws for twenty-firstcentury wars?

    While most law on the conduct of hostilities has been heavily scrutinized in recent years, the law dealing with armed conflict at sea has been largely ignored. This is not surprising. There have been few naval conflicts since 1945, and those that have occurred have been limited in scale; none has involved combat between major maritime powers. Nevertheless, navies have tripled in number since then, and today there are growing tensions between significant naval powers. There is a risk of conflict at sea. Conditions have changed since 1945, but the law has not developed in that time. Elements of it, especially that regulating economic warfare at sea, seem outdated and it is not clear that the law is well placed to regulate socalled “hybrid” warfare at sea. It seems timely to review the law, to confirm that which is appropriate and to develop that which is not. Perhaps a new edition of the San Remo Manual would be timely.
    Steven Haines, University of Greenwich

  • The difficulties of conflict classification at sea: Distinguishing incidents at sea from hostilities

    Incidents at sea between warships and military aircraft often involve more than provocative actions – they may be aggressive and can sometimes result in death and destruction. In view of the low threshold of a resort to armed force by one State against another that would bring an international armed conflict into existence, it is rather difficult to determine whether incidents at sea remain below that threshold. Similar, albeit less difficult problems arise with regard to forceful measures taken by States against foreign merchant vessels. Here it is important to clearly distinguish between law enforcement at sea and the exercise of belligerent rights.
    Wolff Heintschel von Heinegg, Europa-Universitat Viadrina

  • Authorizations for maritime law enforcement operations

    Although there are areas of uncertainty and overlap, authorizations for maritime law enforcement operations are beholden to a different regime from that which governs the conduct of armed conflict at sea. This article seeks to briefly describe five regularly employed authorizations for maritime law enforcement operations at sea: flag State consent, agreed pre-authorization, coastal State jurisdiction, UN Security Council resolutions, and the right of visit.
    Dr Rob McLaughlin, UNSW Canberra (Australian Defence Force Academy)

  • The duty to rescue at sea, in peacetime and in war: A general overview

    The duty to rescue persons in distress at sea is a fundamental rule of international law. It has been incorporated in international treaties and forms the content of a norm of customary international law. It applies both during peacetime and during wartime, albeit with the necessary adjustments to take into account the different circumstances. States are also under the duty to provide search and rescue services. This article discusses the content and limitations of these provisions and assesses their potential to ensure the protection of human lives at sea. Furthermore, the article suggests that reference to the right to life, as protected in international human rights law, may be useful in further safeguarding human life and ensuring compliance by States with their duties.
    Irini Papanicolopulu, University of Milano-Bicocca

  • Restrictions on the use of force at sea: An environmental protection perspective

    The restrictions on the use of force at sea exist in different branches of international law: the law of the sea and environmental law, mainly applicable during peacetime, and international humanitarian law (IHL), as the law applicable in times of armed conflict. Different rules from these areas must be compared and analyzed to determine the common principles applicable to restricting the use of force at sea for the purposes of environmental protection. Taking into account the particular problems of protecting the marine environment in the context of the use of force, the law of the sea and international environmental law should be applied to restrict means and methods of using force at sea during armed conflict. The detailed concepts and approaches in the law of the sea and environmental law may complement IHL, and the precautionary principle of international environmental law should be triggered to address the lacunae in IHL protecting the marine environmental during armed conflict.
    Shiyan Sun, Chinese Academy of Social Sciences
    Jinxing Ma, Chinese Academy of Social Sciences

  • Naval mines: Legal considerations in armed conflict and peacetime

    The purpose of this article is to examine the key elements of the legal framework in which naval mines are used both across the spectrum of conflict and during peacetime. The article will also consider the legal issues associated with the use of mines by States in international armed conflict, and address the distinct legal issues which arise in non-international armed conflict, where the emergence of an increasing presence of non-State armed groups has been a hallmark of the late twentieth and early twenty-first centuries. The obligations placed upon States in peacetime, and under the law of neutrality, when the use and presence of naval mines is a relevant factor will also be analyzed.
    David Letts, Australian National University

  • International law and the military use of unmanned maritime systems

    Unmanned maritime systems (UMSs) comprise an important subcategory of unmanned military devices. While much of the normative debate concerning the use of unmanned aerial and land-based devices applies equally to those employed on or under water, UMS present unique challenges in understanding the application of existing law. This article summarizes the technological state of the art before considering, in turn, the legal status of UMSs, particularly under the UN Convention on the Law of the Sea (UNCLOS), and the regulation of their use under the law of naval warfare. It is not yet clear if UMSs enjoy status as ships under UNCLOS; even if they do, it is unlikely that they can be classified as warships. Nevertheless, their lawful use is not necessarily precluded in either peacetime or armed conflict.
    Michael N. Schmitt, Professor and Director of the Stockton Center for the Study of International Law, United States Naval War College
    David S. Goddard, Royal Navy

  • Africa and international humanitarian law: The more things change, the more they stay the same

    Africa, both on the inter-State level and the academic level, maintains a very low profile in the global debate on international humanitarian law (IHL). IHL issues do not feature prominently in the armed conflict debate within Africa, and African States and people do not significantly participate in the global IHL debate. This contribution is aimed at both identifying the reasons for this lack of regional engagement with IHL and identifying entry points for such engagement. It also ambitiously calls for ongoing and engaged focus on IHL in Africa, and to this end, a number of issues for future consideration can be extrapolated from the issues discussed.
    Gus Waschefort, University of Essex

  • Inclusive gender: Why tackling gender hierarchies cannot be at the expense of human rights and the humanitarian imperative

    The “Debate” section of the Review aims to contribute to the reflection on current ethical, legal or operational controversies around humanitarian issues. In its issue on “Sexual Violence in Armed Conflict” (Vol. 96, No. 894, 2014), the Review published an Opinion Note by Chris Dolan entitled “Letting Go of the Gender Binary: Charting New Pathways for Humanitarian Interventions on Gender-Based Violence”, arguing for a shift in the conceptualization of gender-based violence (GBV) in humanitarian settings from an emphasis on gender equality to an ethos of gender inclusivity.
    Chris Dolan, Director of the Refugee Law Project

  • Protection considerations in the law of naval warfare: The Second Geneva Convention and the role of the ICRC

    Speech given by ICRC President Peter Maurer on the occasion of the launch of the Updated Commentary on the Second Geneva Convention on 4 May 2017.
    Peter Maurer, President of the ICRC

  • Reports and documents. War in cities: What is at stake?

    Speech given by ICRC President Peter Maurer, as part of the ICRC’s Research and Debate Cycle on War in Cities, at the Graduate Institute, Geneva, on 4 April 2017
    Peter Maurer, President of the ICRC

  • Revised practical guidance for first responders managing the dead after disasters

    The proper and dignified management of the dead is one of the three pillars of the humanitarian response to disasters, along with the rescue and care of survivors and the provision of essential services. First launched in 2006, the widely used publication Management of Dead Bodies after Disasters: A Field Manual for First Responders offers practical and easy-to-follow guidelines. It has become the go-to guide not only for non-experts confronted with dead bodies in the aftermath of a catastrophe, but also for those responsible for disaster planning and preparedness in countries with well-developed forensic services. Ten years after the publication of the 2006 Manual, a revised edition has been released. The inclusion of a decade of experience in its field implementation, as well as the incorporation of recent scientific developments in mass fatality management, makes the revised Manual an invaluable resource for first responders confronted with the realities of dead body management following a disaster.
    Dr Sarah Ellingham, ICRC
    Dr Morris-Tidball-Binz, ICRC
    Dr Stephen Cordner, Victoria Institute of Forensic Medecine

  • Reports and documents. Generating respect for the law: An appraisal

    The symposium on "Generating Respect for the Law: An Appraisal" brought together experts from various disciplines, including law, political science, government, philosophy, history, humanitarian action, the military and academia, from across Australia. Over the course of two days, these experts considered several questions: How have perceptions of international humanitarian law (IHL) evolved over time, and where do we now stand? What are the challenges raised by transnational asymmetric armed conflict? How should armed groups who do not accept the constraints of IHL be approached? What roles should States, academics and civil society play in generating respect for the law? And lastly, how does new technology change the face of contemporary warfare?

  • Comparative book review: Protection of Civilians

    Protection of civilians (PoC) is a theme that is high on the policy agenda of the international community. This is well illustrated by the activity of the United Nations (UN) Security Council in 2016.

  • Book review: A World History of War Crimes: From Antiquity to the Present

    To comprehend, understand and appreciate the present legal system adequately, it is necessary to acquire a background knowledge of the course of its growth and development. … If we were to confine our attention exclusively to the law as it is, our understanding of it is bound to be deficient as it is not possible to appreciate its present ordering without some familiarity with its past.

  • Books and articles: New publications in humanitarian action and the law

    This selection is based on the new acquisitions of the ICRC Library