Contents Understanding the Law of Armed Conflict at Sea in the 21st Century .................................................. 1

Abstract ............................................................................................................................................ 1

Background ....................................................................................................................................... 2

The Chronicles of Naval Warfare ....................................................................................................... 2

Modern Law of War at Sea ................................................................................................................ 6

Changing Nature of Conflicts at Sea ................................................................................................... 9

Trio Role of Navies........................................................................................................................... 11

Determination of International Armed Conflict at Seas .................................................................... 14

Conclusion ....................................................................................................................................... 18

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Understanding the Law of Armed Conflict at Sea in the 21st Century

Abstract

Few aspects have the interests in warfare treated as inadequate as the law of armed conflict at sea. It is

because many scholars dismiss the relevance of such debate and glorify the literature of land battles instead.

They forget that almost all of them included maritime dimensions to capitalize on the naval doctrine of sea control and sea denial. The economic warfare, on the other hand, projects the oceans as a distinct asset in

the sense that millions are affected if a single routine-activity is interrupted at seas. It is critical to

contextualizing naval confrontations in such maritime hotspots with the law in the background. This paper

seeks to map out past maritime battles that inspired the codification process. It guides through how the deployment of paramilitary and grey zone merchant vessels is questioning the changing role of navies and

making it difficult to determine the existence of an international armed conflict. Notably, in the South China

Sea, the fleets require an understanding of a complex system of good order while exercising their enforcement and belligerent rights. This paper will make an argument for the prospects of naval conflicts

in the 21st century and concludes with the proposition for developed navies to avoid circumventing the legal

boundaries to create relentless hegemony in the watery spaces that are the providence of mankind. It will ultimately lead to setting good precedents for developing and under-developed navies in the maritime world

who are prone to deploying un-conventional tactics to protect their strategic interests.

Keywords: Armed Conflict at Sea, Navies, South China Sea, Maritime Militia

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Background

Our oceans are burdened with the smooth-running of the world’s 90 % trade that has

provided unprecedented economic benefits to humanity. To protect such strategic interests, it

underscores the continued relevance of navies. Who, of course, have duties to perform as military

and constabulary of the seas. Instead, the navies are involved in low-intensity conflicts,

disturbance, and incidents at sea. Such ‘encounters’ fall short of an act of war and seem more like

a security protocol. This paper will explain which conduct of navies against the other fleets of

merchant vessels registered in the third states qualifies as an act of war or the use of maritime

militia for purposes other than law enforcement. By guiding through the episodes of naval history,

the paper will make an argument for the never-ending prospect of conflicts at sea and how

international law will stay relevant in case of a full-scale maritime battle, for instance, in the South

China Sea.

The Chronicles of Naval Warfare

Armed conflict at sea,1 as understood in 2020, has gone through a myriad of phases.2 This

is because neutral interests are involved at seas, and the real struggle is to intact legal discourse in

actual naval practice. It reminds us of the all-time relevance in war and peace alike of the United

Nations Convention on Law of the Seas (“UNCLOS”), which consolidated the concept of

1 Sea and oceans, terminologies that are often used interchangeably, however, geography defines the sea as

a smaller water body than the ocean and located precisly where the land meets the ocean. 2 There is a tendency today to regard law of armed conflict at (“LOAC”) as synonymous with international

humanitarian law (“IHL”) but the law that regulates the conduct of hostilities at sea is traditionally known as the law of war and neutrality at sea, which is now referred to as the law of armed conflict at sea. Steven Haines, "War at sea:

Nineteenth-century laws for twenty-firstcentury wars?" International Review of the Red Cross 98, no. 902 (2016),

419-447. Law of the seas regulates disputes between states over oceans’ governance and maritime boundaries etc.

Maritime law, on the other hand, takes a more domestic stance and regulates maritime disputes between individuals.

Both of the terms are used interchangeably, however, it is important to understand the substantial differences.

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diminishing sovereignty in 1982 in anticipation of abuse of oceans. 3 It finally laid down the

jurisdictional foundations of a state to exercise various roles as a coastal, port, or a flag state.

UNCLOS provides sovereignty on internal waters and territorial sea, archipelagic waters,

the contiguous zone, exclusive economic zone (“EEZ”), and the continental shelf. Coastal states

exercise jurisdiction in the territorial sea up to 12 nautical miles,4 and the airspace above, with the

right of innocent passage for foreign vessels.5 The territorial sea is vital to exploit sea resources,

to promulgate any enactment, to search and arrest merchant's vessels, and to maintain neutrality in

the event of war.6 The contiguous zone extends up to 24 nautical miles and used to supervise and

prevent infringement of customs, fiscal, and immigration regulations.7 It is where the states enforce

quarantine rules to stop the spread of foreign diseases. The jurisdiction over each maritime zone

decreases as the distance increases from the coast.

The EEZ is up to 200 nautical miles, which further extends to 350 nautical miles in the

presence of a continental shelf. It provides the exclusive right to coastal states to prevent marine

pollution, conduct marine research, and to mechanize fish-catch by foreign vessels.8 High seas, on

the other hand, are enjoyed and navigated freely by ships and planes of all states. In addition to

free fishing rights, laying submarine cables, and pipelines, the building of artificial islands, all is

3 Peter Malanczuk, Akehurst's Modern Introduction to International Law (New York: Routledge, 1997), 175. 4 A nautical mile is a unit of measurement used in both air and marine navigation, and for the definition of

territorial waters. 5 UNCLOS defines the internal waters are defined as lakes, canals, rivers, harbors, ports, under article 2 and

3, with water on landward side of the baseline under article 8, from which width of territorial sea is measured as 12

nautical miles (1 nautical mile is equivalent to 6080 feet). 6 Ibid. 7 UNCLOS, art. 33, 60, 73, 105, 110, 111. 8 UNCLOS, art. 61-62. “The largest EEZ in the world is enjoyed by United States in Atlantic, Pacific and

Arctic Oceans, including areas surrounding U.S islands… A port state has the right to deny access to foreign vessels

in its internal waters. A flag state has the right to fly its flag and gives the ships its nationality on international waters,

but there must be a genuine link between the state and the ship.” Malanczuk, Akehurst's Modern Introduction to

International Law, p. 183.

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permitted under the UNCLOS.9 Similarly, good order is frequently disturbed when a merchant

vessel of a naval ship is prevented from doing its routine business. It has been like this since ancient

times. However, the mid-nineteenth-century is the era that kickstarted the codification of the

western law of naval warfare.10

The very first attempt was made at the time of the conclusion of the Treaty of Paris in 1856.

It ended the Crimean War (1853-56) and came a long way from Anglo-Dutch wars (1652

and1674), Napoleonic wars (1792-1815), and the battle of Trafalgar (1805).11 The envoys of the

Paris Treaty signed the Declaration Respecting Maritime Law. It recognized the protection of

neutral vessels, enemy goods on neutral vessels, and the conduct of naval blockade. The

International Committee of the Red Cross (“ICRC”) was also established in 1863 to campaign for

the protection of victims of armed conflict vigorously.12

Bruno Demeyere explained that only after the Battle of Lissa in 1866 at the Adriatic states

endorsed the need to extend protection to wounded and shipwrecked members of the armed

forces at sea.13 Those events encouraged the adoption of Hague Conventions of 1907 to regulate

naval warfare and to protect merchant shipping. The conventions further incorporated the

technological advancements and became part of the permanent body of customary international

9 UNCLOS, art. 87-115. These freedoms are also enjoyed by the landlocked countries under United Nations

General Assembly Resolution 46/212. The resolution furnished a good standing for the landlocked countries to have

a share in oceans but the drafters were too conscious to take any assertive approach on the duties of transit countries

to cooperate with their land locked neighbors against their sovereign interests. A/RES/46/212; Mom Ravin, “Law of

The Sea Maritime Boundaries And Dispute Settlement Mechanism.” United Nations-The Nippon Foundation Fellow

Germany (2005), 1-169. 10 Haines recommends the period between 1939-1945 as the most recent of naval wars. Haines, War at Sea,

p. 426. 11 See "Treaties, States Parties, and Commentaries - Paris Declaration ,1856." ICRC Databases on

International Humanitarian Law | International Committee of the Red Cross. Accessed July 4, 2018. https://ihl-

databases.icrc.org/ihl/INTRO/105?OpenDocument. 12 "Who We Are." International Committee of the Red Cross. Accessed September 15, 2017.

https://www.icrc.org/en/who-we-are. 13 Bruno Demeyere, Jean-Marie Henckaerts, Heleen Hiemstra and Ellen Nohle, "The updated ICRC

Commentary on the Second Geneva Convention: Demystifying the law of armed conflict at sea" International Review

of the Red Cross 98, no. 902 (2016), p. 404.

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law applicable at seas.14 The ICRC introduced modifications when the neutral vessels and hospital

ships suffered through the torpedo attacks and underwater mines during the Second World War.15

The changes resulted in the adoption of the Geneva Convention II om Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea (“GC-II”) in 1949.

The fundamental principles of the GC-II had remained unshaken and proved, the only recourse

by the time when no treaty or statute addressed the major part of armed conflict at sea. Despite

such convictions, civilians became frequent casualties of naval campaigns on the high seas,

particularly in the Arab-Israeli wars (1948), and also when the Egyptians suffered through the

Anglo-French amphibious assault on the Suez Canal (1956).16 In the aftermath of Israeli-

Palestinian conflicts with a frequent naval blockade of Gaza, scholars argued that “the ICRC did

not research practice in naval warfare during its study into customary international humanitarian

law”.17 It also set the stage for a subsequent crisis in theory and practice of the law; especially

during the events of the Vietnam War (1955-75), the Indo-Pakistan War (1971), the Paracels War

(1974), the Malvinas War (1982), the Gulf Wars (1990-91), and the Kosovo armed conflict

(1999).18 The experts in the field pointed out that no naval cases had been dealt with by the

international tribunals compared with armed conflict on land, air, or even the cyberspace.19

Someone has to go as far as the Nuremberg Trials to study the case law on how also to conduct a

14 Doswald-Beck, Louise. "San Remo Manual on International Law Applicable to Armed Conflict at Sea."

International Review of the Red Cross 309 (1995), p. 583. 15 See for instance “Document No. 90, United Kingdom/Germany, Sinking of the Tubingen in the Adriatic”,

Marco Sassoli, Antoine A. Bouvier, Anne Quintin, How Does Law Protect In War? 3rd. Vol. I. III vols. (Geneva:

International Committee of the Red Cross, 2011). 16 Steven Haines, "War at sea: Nineteenth-century laws for twenty-firstcentury wars?" International Review

of the Red Cross 98, no. 902 (2016), p. 427. 17 Ibid., p. 420. 18 Ibid., p. 428. 19 The individual criminal responsibility is not established with regard to the war crimes committed during

an armed conflict at sea, even after the inauguration of International Criminal Tribunal for Former Yugoslavia,

Rwanda and the International Criminal Court. Panagiotis Sergis, War Crimes During Armed Conflicts at Sea, La

criminalité en mer = Crimes at Sea (Leiden; Boston, Martinus Nijhoff Publishers, 2014), 523.

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naval battle.20 Thus, the law applied at sea on no account attracted enough attention or academic

analysis.

Modern Law of War at Sea

San Remo Manual that came out in 1994, is only a non-binding international law instrument

explaining how to conduct naval warfare.21 With the use of unmanned vessels and autonomous

weapons, it has been argued for more than two decades that it may be time to consider updating

parts of the San Remo Manual.22 For the right amount of ambiguities carrying in the application

of the San Remo Manual, it is still considered the most celebrated treaty law. An international

armed conflict (“IAC”), after all, remains purely a conflict between states, let them be China, the

United States, and India in the Indian Ocean, following provisions are rendered customary and

must be observed at all times:

a) Only navies are allowed to conduct naval hostilities;23 in a coastal area, internal waters, the

territorial sea, the contiguous zone, the EEZ, the continental shelf, and Archipelago

waters.24

b) The principle of distinction is more critical on seas than on land because third states use

the oceans.25

20 Ibid. 21 Commander Alan Cole, Major Phillip Drew, Captain Rob McLaughlin, Professor Dennis Mandsager,

Sanremo Handbook on Rules of Engagement. (Sanremo: International Institute of Humanitarian Law, 2009). 22 Louise, San Remo Manual on International Law Applicable to Armed Conflict at Sea, p. 586. 23 Only warships are entitled to exercise belligerent rights during an armed conflict. It is due to the norm that

non-state actors cannot acquire warships, which is strictly the state affair. Warships are those vessels that meet the

criteria set forth in articles 2-5 of the 1907 Hague Convention VII, article 8(2) of the 1958 High Seas Convention and

article 29 of UNCLOS, describing, ships belonging to armed forces, manned by their crew, under command of

commissioned officer, and bearing military mark. Wolff Heintschel von Heineg, “Methods and Means of Naval

Warfare in Non-International Armed Conflicts.” International Law Studies (U.S Naval War College) 88 (2012), p.

219. 24 There are limitations on the exercise of belligerent rights when interference is necessary on the high seas

with neutral navigation and aviation. San Remo Manual, art. 10-12. 25 Straits are used for international navigation between one part of the high seas to another. UNCLOS, art.

37. For a better illustration, take for example the Panama Canal, on which the Treaty of 7 September 1973 provides

that “in time of peace and in time of war it shall remain secure and open to peaceful transit by the vessels of all nations

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c) Belligerents are responsible for leaving international straits open for commercial,

navigational, aerial, and neutral shipping.26

d) Warships, military aircraft27 are the responsibility of those who control them. They are

considered a legitimate military objective.

e) Merchant vessel is a civilian object but loses protection if employed in military or

governmental purposes or contributes to enemy war sustaining efforts.28

f) Perfidy is prohibited but controversial in naval warfare. The warship may pretend to be

neutral, but before launching an attack, she has to reveal her identity. It is a jeopardous

action towards the principle of distinction.29

g) Ruses of war are permitted but seem impractical now because of advancements in means

and methods.30

h) The fact that there are growing numbers of civilians being hired by the naval armed forces

does not alter the legal status of a military vessel,31 or a military aircraft.32

on terms of entire equality”, and the Suez Canal, on which Treaty of Constantinople of 29 October 1888 provides that

“it shall always be free and open, in time of war and in time of peace, to every vessel of commerce or war, without distinction of the flag”, and Kiel Canal, on which Treaty of Versailles 28 June 1919 provides that “it is open to all

vessels flying the flags of States not at war with Germany”. Wolff Heintschel von Heinegg, "The Law of Naval

Warfare and International Straits." International Law Studies 71 (1998), 263-264. 26 For instance, if war breaks out between Morocco and Spain on the strait of Gibraltar, the area being only

8 nautical miles (the closest point) should always stay open for naval and aerial traffic. 27 San Remo Manual, art. 13. It also addresses the concerns over unmanned autonomous maritime vessels or

aircrafts. The person who remotely controls such vehicle or weapon is responsible of the outcomes of its use. See,

Schmitt, Michael N., and David S. Goddard, "International law and the military use of unmanned maritime

systems." International Review of the Red Cross 98, no. 902 (2016), 567-592. 28 San Remo Manual, art. 41. It concerns the status of maritime militia. Their recruitment has become a recent

trend by developed navies to attack enemy vessels or to disrupt their merchant fleets. Their frequent engagement in

maritime incidents and armed hostilities makes them a legitimate target. 29 Ibid., art. 109. 30 Ibid., art. 110. 31 Hague Convention (VII) relating to the Conversion of Merchant Ships into Warships states that the crew

must be subject to military discipline. 32 San Remo Manual, art. 60, 63.

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i) Civilians are respected, protected at sea, in the event of capture by belligerent or a neutral

party.33

j) The crew of a hospital ship or a rescue craft is also respected and cannot be captured while

conducting a rescue operation.34

k) Religious and other affiliated medical staff on assigned duties cannot be captured or made

a prisoner of war.35

l) Nationals of an enemy state are subject to capture.36 While citizens of a neutral country,

cannot be captured or made prisoners of war,37 unless they have committed an offense

against the captors or interrupted their activities during an on-going armed hostility.38

m) Medical aircraft, hospital ships, vessels engaged in the transport of cultural property,

coastal fishing vessels, humanitarian relief vessels, cartel vessels, port rescue boards, and

aircraft are protected.39

n) Hospital ships are allowed to carry light arms as a means of defense, such as chaff and

flares.40 But GC-II prohibits it merely on the ground that carrying arms might alter the

status of a hospital ship.41

During and after the conduct of hostilities at sea, there is a crucial matter of search and

rescue operations for the wounded, sick, shipwrecked and dead civilians, and members of armed

33 Ibid., art. 161. 34 Ibid., art. 162. 35 Ibid., art. 164. 36 Ibid., art. 165. 37 Ibid., art. 165. 38 Ibid., art. 166. 39Ibid., art. 47, 174-182. 40 Ibid., art. 170. 41 There have been accidental attacks on hospital ships, the status of which could be determined through

factual circumstances. See R. W. Apple Jr. and Special to The New York Times. "WAR IN THE GULF: The

Overview; 2 U.S. Ships Badly Damaged By Iraqi Mines in Persian Gulf." The New York Times - Breaking News,

World News & Multimedia. Accessed October 18, 2017. https://www.nytimes.com/1991/02/19/world/war-gulf-

overview-2-us-ships-badly-damaged-iraqi-mines-persian-gulf.html.

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forces. The GC-II goes to the length of obliging neutral states, humanitarian organizations, and

merchant shipping nearby to render assistance in this regard.42 But contemplating the nature of

armed engagement, humanitarian operations might risk the protection of rescue personnel, facility,

and transport. For that purpose, there should be a 24-hour rule based on the Red Cross Box

compositions, as observed during the South Atlantic conflict in 1982,43 to allow relief activities by

the humanitarian personnel without the fear of being harmed or killed.

Changing Nature of Conflicts at Sea

For international lawyers, navies, and students alike, the standardization of terms is critical

and classification of conflicts to apply the relevant law. Non-international armed conflict

(“NIAC”) at sea occurs either with the declaration of blockade by the state, control of maritime

zones by non-state actors or by naval measures taken under colonial occupation or civil war. The

world experienced such kind of conflicts during the American Civil War (1861-1865), the Spanish

Civil War (1936-1939), and the Algerian War of Independence (1954-1962).44 However, conflict

classification is purely a product of the Cold War era when non-state actors challenged the status

quo. Take, for example, three-decades-long ethnic-nationalist sectarian troubles in Northern

Ireland,45 and the resistance of Sea Tigers against the Sri Lankan Navy. The interference by Sea

Tigers in the Indian Ocean made a mess of smooth-running of neutral traffic.46 The conflict of

42 The duty to render assistance is a well established customary norm also applicable during peace time; it

could potentially create a protectionist environment for the refugees and migrants crossing the Mediterranean under

the auspices of International Maritime Organization treaties. See Irini Papanicolopulu, “The duty to rescue at sea, in

peacetime and in war: A general overview” International Review of the Red Cross 98, no. 902 (2016), 491-514 43 "Argentina/United Kingdom, The Red Cross Box." How Does Law Protect in War? - Online Casebook.

Accessed February 25, 2018. https://casebook.icrc.org/case-study/argentinaunited-kingdom-red-cross-box. 44 Heinegg, Methods and Means of Naval Warfare in Non-International Armed Conflicts, p. 214-217. 45 The Northern Ireland conflict involved a significant naval element in 1972 when British military

reinforcements were landed into the province from Royal Navy amphibious shipping. Haines, War at Sea, p. 427. 46 "Sri Lanka, Naval War Against Tamil Tigers." How Does Law Protect in War? - Online Casebook.

Accessed May 10, 2017. https://casebook.icrc.org/case-study/sri-lanka-naval-war-against-tamil-tigers.

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Libya (2011) came as a big shock when Gaddafi forces laid anti-shipping mines outside the harbor

of Misurata city to block food supplies.47 The situation raised a serious question of whether and to

what extent the parties to NIAC at sea are entitled to exercise belligerent rights,48 as one cannot

only conclude that the law of naval warfare extends to NIAC at sea.

NIAC can only occur in internal and territorial waters.49 Non-state actors simply are not

allowed to interfere with the neutral shipping or aviation, unless the neutral states also recognize

them.50 As highlighted earlier that only warships are entitled to exercise belligerent rights against

lawful targets because “naval forces are generally too expensive and sophisticated to be deployed

by non-state actors and can easily be deterred through effective maritime operations”.51 On that

account, the merger of IAC and NIAC is strongly opposed to maintaining a clear difference in the

context of naval warfare.

While full-scale naval battles are a rare thing now, one can always find old fashioned

conflicts between Israel and Lebanon over territorial waters of 2006,52 and the Mavi Marmara

incident between Israel and Turkey of 2010.53 Today armed conflicts at sea are motivated mostly

by the accumulation and distribution of marine resources, maritime delimitation, freedom of

navigation, and control over sea lines of communication. Approximately 60% of the ocean space

is yet to be delimited, and the scope of the law of armed conflict at sea is critical, in the

47 Heinegg, Methods and Means of Naval Warfare in Non-International Armed Conflicts,

p. 216. 48Arnold Fraleigh, "THE ALGERIAN WAR OF INDEPENDENCE." Proceedings of the American Society

of International Law at Its Annual Meeting (1921-1969) 61 (1967), 6-12. NIAC is mostly restricted to territorial sea,

where the states practice territorial sovereignty but in the Algerian War, the operation extended to high seas up to 60

nautical miles. Heinegg, Methods and Means of Naval Warfare in Non-International Armed Conflicts, p. 220. 49 Ibid., p. 218. 50 Ibid. 51 Haines, War at Sea, p. 441. 52 Ehud Eiran, “Between Land and Sea: Spaces and Conflict Intensity”, Territory, Politics, Governance 5:2,

(2017), p. 197. 53 The shocking incident of Mavi Marmara was the result of Gaza naval Blockade, placed by Israel in 2010.

To follow an in-depth analysis on naval blockade and the law of neutrality, see Martin D. Fink, “Naval Blockade and

Humanitarian Crisis in Yemen”, Netherland International Law Review, 64 (2017), 291-307.

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Mediterranean Sea, Gulf, Africa, and the Korean Peninsula.54 Everyday clashes over maritime

boundaries have become the rule now in the South China Sea, known today for various territorial

disputes between Brunei, Malaysia, Philippines, Vietnam, China, and Taiwan. 55 The following

section will briefly delve upon the role of navies, who are at the forefront in such situations and

are prepared with combat operations as a principal consideration.

Trio Role of Navies

Navies are inherently tasked with benign, constabulary, and military operations.56 Benign

operations involve engaging in the “exploration, charting and other voyages of scientific

discovery, conducting hydrographic surveying, providing navigational charts, search and rescue,

salvage, and disaster relief”.57 Constabulary operations entail “law enforcement in the domestic

and international sphere on inshore fisheries regulations, territorial integrity and the enforcement

of quarantine, customs, and fiscal regulations”.58

Navies exercise exclusive flag state jurisdiction on the high seas and over their own states’

merchant vessels.59 They engage in anti-piracy operations for the safety of sea-borne trade

activities through maritime economic embargos and responding to illicit drug trafficking (or

54 Haines, War at Sea, p. 432. 55 In such a scenaio states are subject to jus ad bellum (to the mandate of UN Charter and protocol followed

by UNSC under Chapter VII). When such enforcement measures escalate into a full-scale armed conflict, it attracts

automatically jus in bello (the law of armed conflict at sea). “Jus ad bellum refers to the conditions under which States

may resort to war or to the use of armed force in general. The prohibition against the use of force amongst States and

the exceptions to it (self-defence and UN authorization for the use of force), set out in the United Nations Charter

of 1945. Jus in bello regulates the conduct of parties engaged in an armed conflict. IHL is synonymous with jus in

bello; it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed

conflict to the greatest extent possible.” "What Are Jus Ad Bellum and Jus in Bello?" International Committee of the Red Cross. Accessed January 27, 2018. https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0.

56 Haines, War at Sea, p. 421. 57 Ibid. 58 Ibid., p. 423. 59 Ibid., p. 421.

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maritime crimes).60 In a typical naval warfare scenario, navies project their influence at seas

through shore bombardment, amphibious operations, or resorting to blockade.61 Today the struggle

between navies to control the seas on their terms is one of the most challenging puzzles for the

experts to address in the wake of state interests. There is a growing trend of employing private

maritime security contractors by the shipping companies to provide defense onboard their

merchant ships.62 It challenges the traditional monopoly of navies to use legitimate force.63

Moreover, the civilian-manned vessels of coastguards that have a similar capability of

warships can be identified as if manned by naval personnel.64 For example, the Iranian

Revolutionary Guards’ Navy and the one deployed by the People’s Republic of China both operate

in unconventional ways “with no articulation of their legal status and conduct”.65 The fishing fleets

of the Chinese Peoples Liberation Army Navy are minimally armed to assert Chinese prerogatives

through the employment of a range of nonlethal tactics.66 They employ powerful water cannons to

damage sensitive equipment aboard foreign ships and flood their power plants, and most ly “bump,

ram, and physically obstruct the moments of other vessels”.67 Such conduct creates grey areas and

60 The majority of navies are engaged in constabulary operations as their principal employment and are

required minimum levels of force to be used at all times, the primary legal basis today being human rights law. Ibid.,

p. 424. 61 Ibid., p. 430. Haines categories navies based on an assessment of size, reach, combat capability and general

utility. The United States possess the only major global force projection navy, then comes the second-rank navies of

China, France, India, Japan, Russia and the United Kingdom, and third-rank navies are Australia, Brazil, Canada,

Italy, Germany, Singapore, South Korea, Denmark, Norway and Sweden. The majority of the world’s navies are in

ranks four to six, and while they are less capable, it has been combat capability that has driven their force development,

the rest known as eight ranked token navies are unable to deploy any effective combat capability. 62 Vincent Bernard, "War and Security at Sea: Warning Shots." International Review of the Red Cross 98,

no. 893 (2016), 383-392. 63 Ibid. 64 Ibid. 65 James Kraska and Michael Monti, “The Law of Naval Warfare and China’s Maritime Militia”,

International Law Studies, Vol. 91, No. 450, 2015. It is even daunting that the pirate groups could be well organized

and capable for criminal activity at sea with their motives switched from financial to entirely political. The pirate vessels are often not revealed as such until they launch an attack on vulnerable shipping. It is firmly-established that

the pirates are rather criminals than combatants. Sergis, War Crimes During Armed Conflicts at Sea, p. 530. 66 "Interview: China's Maritime "Gray Zone" Operations." The Maritime Executive. Accessed

March 27, 2019. https://www.maritime-executive.com/editorials/interview-china-s-maritime-gray-zone-operations. 67 Ibid.

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diverging state practice. The nature of such operations falls short of actual armed conflict, and the

law is intentionally avoided. But the prospects of naval warfare are squeezed between law

enforcement operations and actions in self-defense.

It holds true that maritime warfare is proving strenuous because of the difficulty in

accepting the situation of armed conflict. There are abundant examples of conflicts in which the

constabulary right of the visit of navies has been used as self-defense, meaning belligerent right to

control the sea. It is highly unlikely for nation-states to confess the existence of armed conflict

while they are always eager to demand protections guaranteed even in minor incidents at seas.

The Israeli forces intercepted flotilla on 31 May 2010 headed to Gaza, killing nine people.68

The incident provides an extensive illustration of the application of law enforcement and armed

conflict paradigms, swung back and forth. The Turkish authorities claimed it an enforcement issue,

whereas the Israel Defense Force dealt the matter by exercising their right to belligerence.69 While

there is a difference between police action and a belligerent action, the scholars point out the modus

operandi of the opposing forces “in relation to human rights law and right to life as the decisive

criterion,”70 as the enforcement operation tends to use less force in careful deliberation of right to

life as opposed to belligerent one. However, there is always a tendency of escalation of an

enforcement operation into an armed conflict. The question of the threshold as well is problematic.

Too low the threshold means that every incident attracts IHL, too high the threshold means creating

legal deserts. The following part explores the official Commentary to the GC-II in the

determination of armed conflict at sea.

68 Robert Booth. "Israeli Attack on Gaza Flotilla Sparks International Outrage." The Guardian. Accessed

November 26, 2017. https://www.theguardian.com/world/2010/may/31/israeli-attacks-gaza-flotilla-activists. 69 Sergis, War Crimes During Armed Conflicts at Sea, p. 547. 70 Ibid., p. 531.

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Determination of International Armed Conflict at Seas

Armed conflict is determined by the prevailing facts demonstrating the de facto existence

of hostilities between the belligerents, even without a declaration of war.71 Its distinction from

incidents at sea, in a nutshell, is explained as follows:72

(1) IAC exists as soon as one or more states resorts to armed force against another state,

and in the event of any use of force, irrespective of its intensity or duration

Countries sometimes resort to conduct that does not involve conventional means and

methods of warfare but may be considered violent, aggressive, or amounting to physical coercion.

Apart from frequent harassments in the South China Sea and the Arabian Sea (at the Strait of

Hormuz), countless incidents may or may not qualify as a use of force that is necessarily called an

international armed conflict.73 In 2014, Russian military aircraft were involved in almost forty

events, “bringing a higher level risk of escalation” at the Baltic Sea.74 In 1988, the Soviet Union

rammed the US warships in the Black Sea after transmitting a warning to USS Yorktown and USS

Caron conducting navigational operations within the territorial sea of the Soviet Union.75 It means

that any form of physical coercion by a warship or military aircraft (a traditional means of warfare)

71 ICRC Commentary on Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick

and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, 2nd ed., 2017 (online version) (ICRC

Commentary on GC II), art. 2, para. 233. “An armed conflict exists, whenever there is a resort to armed force between

states or protracted armed violence between governmental authorities and organized armed groups of between such

groups within a state, however, any armed confrontation between two states does not suffice for former, as regards

the latter two cumulative criteria must be met, that of organization and more significantly that a minimum intensity.”

Prosecutor v. Tadic, Case No. It-94-1-t, Decision on Defence Motion for

Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70. 72 Heineg, Wolff Heintschel von. "The difficulties of conflict classification at sea: Distinguishing incidents

at sea from hostilities." International Review of the Red Cross 98, no. 2 (2016), p. 450-451; ICRC Commentary on

GC II, art. 2, para. 233, 235, 240, 247, 248, 251, 258, 263. 73 “Harassment is defined as ‘repeated, deliberate and intimidating activities intended to discourage, impede

and disrupt’. See NATO Glossary, AAP-06(2014), 2014, p. 2-H-1, available at: wcnjk.wp.mil. pl/plik/file/N_20130808_AAP6EN.pdf.” Ibid., p. 453.

74 Ibid. 75 Lieutenant Commander John W. Rolph, "FREEDOM OF NAVIGATION AND THE BLACK SEA

BUMPING INCIDENT: HOW "INNOCENT" MUST INNOCENT PASSAGE BE?" Military Law Review

(Department of ARMY Pamphlet) 135 (1992), 137-168.

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against foreign warships or military aircraft will not qualify as a use of force. Such acts qualify as

measures enforcing coastal states’ rights. However, “if endorsed and undertaken to hamper another

State’s military operations at sea,” minor skirmishes between the armed forces, be they land, air,

or naval forces, will qualify as IAC.76

(2) IAC exists when classic means and methods of warfare come into play

Cheonan, a South Korean warship sailing in the Yellow Sea, was thumped by a torpedo

constructed and launched from a North Korean submarine, killing forty-six South Koreans on

board in 2010.77 The International Criminal Court observed that even a unilateral resort to force

by North Korea in the form of the alleged launching of a torpedo (a traditional means of warfare),

when the target was another state’s warship (a legitimate military target), created IAC.78 In the

case of USS Pueblo,79 a ship employed in the Auxiliary General Environmental Research program

of the United States to collect signals intelligence was attacked by the North Korean vessels in

1968. The states did not recognize 12 nautical miles breadth of the territorial sea at that time, and

the Pueblo’s presence was estimated between 7.1 or 15 nm off the coast. Therefore, the use of

force by North Korea was never accepted as legit and rendered it a situation of IAC.80

Only last year, in 2019, the Pakistani Navy successfully deterred an Indian submarine from

entering in the maritime waters of Pakistan. When a foreign submarine operating submerged,

intentionally, in the internal waters of another state without that state’s consent,81 it resorts to the

76 ICRC Commentary on GC II, art 2, para. 259. Sergis reasons that the very low threhhold accepted by the

ICRC is based on policy and not by a matter of law. Sergis, War Crimes During Armed Conflicts at Sea, p. 527;

Heinegg, The difficulties of conflict classification at sea, p. 454. 77 “International Criminal Court, Office of the Prosecutor, Situation in the Republic of Korea: Article 5

Report, June 2014 (Article 5 Report), pp. 4, 10 ff, available at: www.icc-cpi. int/iccdocs/otp/SAS-KOR-Article-5-

Public-Report-ENG-05Jun2014.pdf”. Heinegg, The difficulties of conflict classification at sea, p. 452. 78 Ibid. 79 Ibid., p. 459-460. 80 Ibid. 81 Violation of article 20 of the UNLCOS by a foreign submarine not navigating on the surface and not

showing its flag is subject to enforcement regime. Also article 30 of UNCLOS does not provide a right to use forceful

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constabulary role of navies and not the act of war. Imagine another situation where Pakistani coast

guards suspect a violation by Indian fishing vessels of Pakistan’s fisheries legislation in its EEZ.

If the coast guards meet resistance while attempting to board the Indian vessel and use

disproportionate force motivated by something other than to enforce an enforcement regime, it

will be considered an act of war.82

(3) IAC exists even if the armed confrontation does not involve military personnel but rather

non-military state agencies such as paramilitary forces, border guards or coast guards

In the South China Sea, countries now have commissioned coast guards and maritime militia

to assert their territorial claims. There is no prohibition from asserting territorial claims by

resorting to less aggressive means than the deployment of naval forces.83 It certainly adds to the

problem when such non-naval forces are confronted with hostile conduct. As explained earlier,

most of the time, such vessels are engaged in dangerous maneuvers, including the ramming of

ships and using deadly force against foreign fishermen. It is sufficient to conclude here for an IAC

to come into existence, the conduct of maritime militias, coast guards, or other civilian law

enforcement agencies must, by necessity, qualify as a resort to force against another state.84

It brings us to our last proposition that IAC exists when the situation objectively shows that a

state is effectively involved in military operations or neutralizing enemy assets, hampering its

military operations, using or controlling its territory. However, the mere hampering of another

State’s military operations will hardly bring an international armed conflict into existence.85 And

no national or supranational body is authoritative in its determination or implication that a

measures to compel a foreign warship to leave the territorial sea, although such a vessel would no longer benefit from the right of innocent passage.

82 ICRC Commentary on GC II, art 2, para. 249 83 Heinegg, The difficulties of conflict classification at sea, p. 464 84 Ibid. 85 Ibid., p. 457.

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particular situation of armed violence constitutes an armed conflict.86 It exclusively is an objective

test and not a political decision.

86 Annyssa Bellal, The War Report Armed Conflict in 2017 (Geneva: The Geneva Academy of International

Humanitarian Law and Human Rights, 2018), 13.

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Conclusion

International humanitarian law is not relevant as long as the conduct does not qualify as a

resort to force by one state against another. However, it has been argued to re-visit the role of

navies, and their new auxiliaries. Even when the present conflicts are accruing out of enforcement

measures, coastal states are aggressive in their conduct, vis-à-vis the vessels of other countries.

Therefore, the classification of an armed conflict is imperative, because individual rights and

liabilities are affiliated and dependent upon the status of parties to the conflict, their positing at

seas, naval capability, and on-going civilian traffic. At the same time, navies are advised not to

circumvent the legal boundaries created under the enforcement regime and belligerent actions

towards the other states. And principally avoid setting wrong precedents for developing and under-

developed navies prone to deploying un-conventional

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Tuba Azeem

Tuba Azeem has done her LL.M in International Law from International

Islamic University. She recently completed a project on Coastal

Communities of Balochistan for the Maritime Desk, at the Institute of Policy

Studies, Islamabad. Tuba can be reached at @azeem_tuba.