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Operational Maritime Law 1
Jörg Schildknecht
Rebecca Dickey
Martin Fink
Lisa Ferris Editors
Operational Law in
International Straits
and Current Maritime
Security Challenges
Operational Maritime Law
Volume 1
Editor-in-Chief
Jörg Schildknecht
NATO Centre of Excellence for Operations in Confined and Shallow Waters
Kiel, Germany
Advisory Editors
Wolff Heintschel von Heinegg
European University Viadrina, Frankfurt (Oder), Germany
Steven Haines
University of Greenwich, London, United Kingdom
Sean P. Henseler
Naval War College, Newport, RI, USA
David Letts
Australian National University, Acton ACT, Australia
Rebecca Dickey
United States Navy, Jacksonville, FL, USA
The Operational Maritime Law Volumes, an independent series in the field of public
international maritime law, bridges the gap between operators and legal practitioners
in an effort to further legal understanding and international cooperation for a better,
safer, maritime domain. At first glance international law provides a well-defined
framework for military action. However, it is all too evident from day-to-day
practice in any operation that application is a nontrivial task. It is rather the key
challenge, governed by each particular situation as well as individual legal
interpretations. As modern threats become more complex and naval assets increas-
ingly protect and defend against threats from both State and non-State actors, it
intrinsically becomes more evident that further study and review of current maritime
law is necessary. Bearing in mind that all naval operations are bound by international
law, having knowledge of the legal boundaries of military operations and responses
is paramount. The Operational Maritime Law Volumes are independently peer-
reviewed by international reviewers and contain contributions on topics addressing
all aspects of operational maritime law inside and outside armed conflict. The aim is
to provide a forum for military and legal experts to publish new research advancing
legal discourse, as well as analysis of current issues, in order to create a comprehen-
sive compilation of articles, reports, findings, and documents. The volumes contain
contributions from international experts as authors, ranging from international law
professors and adjunct professors; university researchers; to operational law
practitioners, who provide robust analyses, insights, and offer new conclusions on
topics that are directly relevant for navy operations that are carried out in the 21st
Century. The organizing principles of the series are two-fold. First, to examine so far
unsolved legal questions in an effort to provide guidelines for the conduct of
maritime operations. Second, the volume creates a reference book for general
education on the law of naval operations as well as a comprehensive source for
operational handbooks and military planning. The full range of analysis of opera-
tional maritime law is one of this series’ strengths. The approach in dealing with
multiple legal issues across the domains of command and control, civil military
cooperation, operational necessities and legal restraints, framed in a clear and
consistent principal-agent analysis, and written by scholars across multiple
disciplines, demonstrates how military operations at sea can legally be executed.
The series is focused on the operational and tactical level making it distinctly a
unique work in the market.
Operational Law in
International Straits and
Current Maritime Security
Challenges
Editors
Jörg Schildknecht Rebecca Dickey
NATO Centre of Excellence for United States Navy
Operations in Confined and Shallow Jacksonville, FL, USA
Waters
Kiel, Germany
This is a U.S. government work and its text is not subject to copyright protection in the United States;
however, its text may be subject to foreign copyright protection 2018
All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically
the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on
microfilms or in any other physical way, and transmission or information storage and retrieval,
electronic adaptation, computer software, or by similar or dissimilar methodology now known or
hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or
the editors give a warranty, express or implied, with respect to the material contained herein or for any
errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional
claims in published maps and institutional affiliations.
This Springer imprint is published by the registered company Springer International Publishing AG part of
Springer Nature.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Contents
v
vi Contents
Abstract
This book is the first volume of the Operational Maritime Law series. The series
provides a platform for practitioners and scholars with specific interest in current
operational maritime law issues, to publish research advancing legal discourse, as
well as analysing current issues. The theme of the first volume is Operational
Law in International Straits and Current Maritime Security Challenges. This
volume is broken down into three parts. Part I explores international straits in an
operational law context, Part II discusses current subjects on maritime security
and maritime safety and Part III offers some thoughts on the law of armed conflict
at sea. This introduction highlights today’s maritime challenges in naval
operations and provides an explanation of the relevance of each section of the
publication. In regard to operational maritime law, three strands, in particular,
stand out: maritime security, focus on persons and non-international armed
conflict. Furthermore, in terms of positioning the law applicable for naval
operations within the context of international law, it is argued that this area
may be seen as a sub-regime of the international law of military operations.
M. Fink (*)
Royal Netherlands Navy, University of Amsterdam, Amsterdam, Netherlands
e-mail: fi[email protected]
R. Dickey
United States Navy, Jacksonville, FL, USA
J. Schildknecht
Centre of Excellence for Operations in Confined and Shallow Waters, Kiel, Germany
L. Ferris
New Zealand Defence Force, Wellington, New Zealand
This is a U.S. government work and its text is not subject to copyright protection in 1
the United States; however, its text may be subject to foreign copyright protection 2018
J. Schildknecht et al. (eds.), Operational Law in International Straits and Current
Maritime Security Challenges, Operational Maritime Law 1,
https://doi.org/10.1007/978-3-319-72718-9_1
2 M. Fink et al.
1 Introduction
What are today’s legal challenges for States and their defence forces in the maritime
domain? How do naval operations adapt to modern conflict to confront the changing
nature of legal challenges while operating at sea? These questions are central to this,
first-in-a-series, publication on operational maritime law. It provides a platform for
practitioners and scholars with specific expertise in current operational maritime law
to publish research advancing legal discourse, as well as analysing current issues on
these matters. The initiative of this series is driven by the Centre of Excellence for
Operations in Confined and Shallow Waters (COE CSW) in Kiel, Germany.1 It is
born out of an understanding that the combination of broad tasking and an array of
growing mission sets for naval assets today and the increasing complexity of
international law at sea create a necessity to further study current international law
applicable to the maritime domain. The first volume’s theme is Operational Law in
International Straits and Current Maritime Security Challenges. To present this first
volume, some introductory remarks are made here with regard to today’s legal
challenges in the maritime dimension.
There is little debate over the existence and relevance of the maritime domain in
modern conflict. But what does ‘modern conflict’ actually mean in a maritime
context? Perhaps one important overarching evolution in conflict from the last two
decades has been the gradual decline of the ‘statist approach’. The rise of non-State
actors and non-international armed conflict developed as one of the main challenges
inherent to today’s conflict. An abundance of legal questions also emerged from this
evolution. These questions spring from issues that originate from trying to fit or
adapt the ius ad bellum and ius in bello to this changing situation and have also
included debates from other sources of international law, such as human rights law.
The maritime domain did not lag in this evolution of the decline of the statist
approach. Although the legal debates, arguably, have not been as vigorous as in
the land dimension, it has not felt the changing face of conflict any less. The recent
focus within the maritime dimension may, arguably, be captured in three distinct
themes: the rise of the importance of the concept of maritime security, the focus on
persons during naval operations and the participation of naval forces in
non-international armed conflict (NIAC). These three themes can be discussed as
separate issues but are clearly related to each other.
1
See the website of the CEO CSW at: http://www.coecsw.org/.
Introduction: Challenges in Operational Maritime Law 3
States analyse the maritime dimension in terms of possible threats that may come
from or arise from the sea and aim to enhance security against those threats.
Maritime security is the enhancement of a State’s security interests in the maritime
dimension. Interestingly, the concept of maritime security takes on a broad under-
standing, and it can be perceived that the sharp classic divide between war and peace
has completely melted away. Threats to a State in the maritime dimension can exist
at all levels and types of conflict. The scope of the threat is broad and is difficult to
concretely define. More often maritime security is defined as a set of pressing
security issues, which may include topics such as illegal fisheries, security and safety
in ports and on board vessels, piracy, boat refugees, terrorism at sea and weapons of
mass destruction at sea.
Today, States generally accept that naval forces play a role in enhancing maritime
security. The military and the more traditional military security issues are, however,
not central to maritime security. The military is one of the many different
instruments to help enhance maritime security. Still, what is interesting to note is
that organisations such as NATO and the EU have through their recent maritime
strategies bound themselves to this idea of a role for naval forces in maritime
security.2 NATO, as a classic collective defence organisation, assumed a role in
counter-piracy operations, became active in the Aegean Sea in relation to refugees,
and recently changed its Article-V Operation Active Endeavour into Operation Sea
Guardian, which aims to build on maritime situational awareness, counter-terrorism
and support to capacity building.3 Oliver Clark, in his chapter on piracy, is exposing
some legal challenges that arise from the involvement of traditional naval forces in
maritime security operations in the context of piracy. Jouko Lehti’s contribution
explains the EU’s legal ventures into helping boat refugees and battling refugee
smuggling and trafficking operations.
What also emerged in this context is the issue of private military companies
(PMCs) at sea to protect merchant vessels and maritime trade. After we have seen
much (legal) discussion in the land dimension with regard to PMCs in Iraq and
Afghanistan, the piracy threat that emerged in the last 10 years in and around the
Indian Ocean has fired this practice also in the maritime dimension, with
accompanying legal debates. Are they a welcome alternative for sea-trade protection
by naval forces? Should they exist next to, or instead of the military? And how will
they meet the legal thresholds for using force? In this volume, Ian Ralby discusses
some of these challenges of regulating the use of PMCs.
Apart from operational level consequences and legal challenges that focus on the
importance of enhancing maritime security, on a strategic-political level maritime
security arguably advances a different point of departure than the classic ‘Grotian’
2
NATO has adopted its Alliance Maritime Strategy (AMS) in 2011. The EU adopted its
EU-Maritime Security Strategy (EUMSS) in 2015.
3
NATO (2016).
4 M. Fink et al.
view of the freedom of the seas. In order to enhance security at sea and act in a timely
manner against threats, one must understand the maritime environment, gain a
sufficient level of awareness of the operating environment and reach a certain level
of control. Often used terms like ‘policing the seas’ and the general acceptance of
so-called ‘maritime security operations’ may have, arguably, caused a silent evolu-
tion in which the strategic-political thinking has changed from freedom of the seas to
controlling the seas. The question is whether this way of thinking is also trickling
through legal concepts and thinking or whether the legal fundamental point of
departure of the freedom of the seas still stands.
2.2 Persons
The importance of enhancing maritime security has also brought about a focus on
persons. Traditional naval warfare and naval operations conducted within the UN
collective security system, such as maritime embargo operations, always had a primary
focus on goods and vessels. Today’s challenge for naval forces in the maritime
dimension is mainly focused on human beings. Warships are tasked to confront
pirates, boat refugees, slave and drug traffickers, mercenaries and terrorists. Naval
operations moved from its traditional goods/vessel focus to person-focused operations.
This focus also provides a new dimension to legal challenges at sea. To name two
of these challenges in particular, firstly, in the past decade, the application of human
rights law in the maritime environment has emerged as an important and well-
discussed legal issue.4 It ranges from issues with regard to fundamental human
rights in relation to piracy and arresting persons for drug trafficking, such as fair
trial and detention rights, to non-refoulement in the context of boat refugees. Some of
these legal challenges that apply human rights law in the maritime dimension have
reached the European Court of Human Rights (ECtHR). In this context of applying
human rights law at sea, the challenges between the interrelationship of human rights
law and the international law of the sea are on different subjects not yet crystallised.
Rick Button, for instance, highlights the challenges of the difference between search
and rescue (SAR) and law enforcement operations. The same question examining
the interrelationship that exists may be present between the provisions on the rescue
of persons in the law of naval warfare, the law of the sea and human rights law.
The second example of a legal challenge that can be mentioned here is the
so-called ‘legal finish’ during naval operations. Interestingly, this issue of the legal
finish appeals back to the way traditional, but unused, prize law is organised, namely
in a ‘wet’ dimension and a ‘dry’ dimension. The wet dimension is the actual action
and legal issues at sea in which a good, a vessel or—today—a person is captured.
The dry dimension is the subsequent actions that need to be considered in the
aftermath of the action. The smooth connection between both dimensions is chal-
lenging in itself. Transferring the person to a State or to another State that is willing
4
See e.g. Treves (2010), Guilfoyle (2010) and Papastavridis (2013).
Introduction: Challenges in Operational Maritime Law 5
to start legal procedures and ensuring that sufficient evidence is produced that holds
in a court of law are examples of this. Apart from the non-use of prize law, during the
‘1990s of the former century, maritime embargo operations that had been the
primary focus in naval operations arguably pushed the notion of a dry dimension
in naval operations further to the background. Today, however, law enforcement
types of operations that naval forces are confronted with have renewed the under-
standing that efforts must be put also into the dry dimension and that a successful
‘legal finish’ to what happens at sea urges for a whole government approach.
If conflict rises to the level of an armed conflict, then current conflicts can often be
characterised as non-international. Fighting against non-State actors has given States
a plethora of legal issues to debate, ranging from detention issues to an expanding set
of conflict types beyond international and non-international, to complex issues on
the legal boundaries of the battlefield. Obviously, these debates also have an impact
in the maritime dimension. At the same time, recent years have seen armed conflicts
erupt in coastal States in which naval forces were part of the military campaign.
Examples are Libya, Yemen, Iraq Gaza and Lebanon. These conflicts confronted
maritime lawyers with interesting legal questions, such as whether the law of naval
warfare, and the law of blockade in particular, actually applies to conflicts in the
Gaza or off the coast of Yemen. How must the right of belligerent visit and search be
understood in the fight against non-State actors? What are the legal possibilities to
detain persons on a foreign-flagged vessel from a State that has nothing to do with
the underlying conflict? These are all questions that surface when having to deal with
non-State actors during a non-international armed conflict at sea.
Having noted above the focus in the maritime dimension during the last 15 years
through three strands that have emerged as a consequence of the decline of the statist
approach, it is something completely different to state that traditional international
armed conflict is a thing of the past. The current situation is, in fact, quite the
contrary. Much on the foreground, for instance, is the tension between States in
the South China Sea, which is an issue that cannot be forgotten in this context. David
Letts, in his chapter, searches for options on how to scale down tensions between
States. Re-emerging tensions between Russia and other States may also develop
beyond the cyber-dimension or a situation where Russia’s military involvement is
kept in the grey zone of conflict. What must, therefore, be underlined is that the
above-mentioned strands have resulted in a certain focus, rather than concluding that
6 M. Fink et al.
other types of warfare belong to history. The challenge for naval operators (and the
military as a whole) is that they have to deal with the complete spectrum of conflict
and crises from peacetime crises to ‘grey-on-grey’ war fighting and from law
enforcement operations to restoring international peace. It merits, therefore, also to
keep in mind that certain aspects of international law may have been snowed under
but still exist, like the forgotten basics of prize law, to which Marcel Schulz devotes a
chapter. This volume also includes multiple authors’ analyses on the use of interna-
tional straits and maritime areas. Another forward-leaning analysis in this context is
Tassilo Singer’s chapter on the legal possibilities of occupational law applied at sea.
One can take different approaches to study the relationship between international
law and the maritime dimension. Broadly seen, there are two approaches that have
emerged. The first is the increasingly generally accepted approach to centralise
military operations and consider what aspects of international law apply and how
they interrelate to each other during military operations. This approach, usually
termed the International Law of Military Operations, has become a well-accepted
approach and term. The term underlines the influence of and the interrelationship
between various branches of international law that regulate military operations.5 The
maritime dimension is an essential aspect of military operations with particular legal
challenges of its own. Similar to international law of military operations, the law that
applies to maritime operations consists of various branches of international law.
Arguably, the particularities and challenges of the maritime dimension and applica-
ble laws make Operational Maritime Law a specific sub-discipline of its own within
the general international law of military operations.6
The second is the approach that centralises around the term of maritime security,
which logically flows from the focus on the strands mentioned above and is reflected
in a legal sub-discipline that is termed Maritime Security Law. Although these terms
may overlap in terms of content, the difference between operational maritime law
and maritime security law lies with the view that the first focuses on security and
military operations, and the second contains a broader scope of issues in which the
military may play a role within security and safety challenges in the maritime
dimension. In the latter, for instance, port security measures, merchant vessel safety
measures and maritime environmental issues belong to this broader legal discipline.
Maritime Security Law, therefore, includes both security and safety issues that
emerge out of the maritime community as a whole. There is merit in combining
security and safety, as Kraska and Pedrozo mention, ‘In many respects the fusion of
5
Gill and Fleck (2015), p. 5.
6
Arguably the term operational maritime law encompasses a broader term than the law of naval
operations, because the ‘naval’ emphases the military, where maritime includes all maritime
activities of a State.
Introduction: Challenges in Operational Maritime Law 7
maritime security and maritime safety is unavoidable. The legal regimes that regulate
each activity are less distinct today than in the past and now share common and
mutually reinforcing objectives.’7 However, as this series is primarily aiming to
unlock the current legal challenges that are connected to the use of naval assets, the
term Operational Maritime Law will be used as the more on point approach and term
for this particular purpose.
This introduction has touched upon only a few challenges that are emerging in the
maritime dimension and has not even scratched the surface of the legal issues that
come with these challenges. For sure, scholars and practitioners will have many
more analyses, findings and debates on their minds that need sharing and a platform
in order to enhance our understanding of international law in the maritime dimen-
sion. Let this be your invitation.
References
Centre of Excellence Confined and Shallow Waters CEO CSW at: http://www.coecsw.org/.
Accessed 7 July 2017
Gill TD, Fleck D (2015) Concept and sources of the international law of military operations. In: Gill
TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn.
Oxford University Press, Oxford, pp 3–13
Guilfoyle D (2010) Counter piracy law enforcement and human rights. Int Comp Law Q
59:141–169
Kraska J, Pedrozo R (2013) International maritime security law. Nijhoff publishers, Martinus
NATO (2016) Operation active endeavour. http://www.nato.int/cps/en/natohq/topics_7932.htm.
Accessed 5 July 2017
Papastavridis E (2013) European convention on human rights and the law of the Sea: the Strasbourg
court in unchartered waters. In: Fitzmaurice M, Merkouris P (eds) The interpretation and
application of the European -convention of human rights: legal and practical implications.
Martinus Nijhoff, Leiden, pp 117–146
Treves T (2010) Human rights and the law of the sea. Berkely J Int Law 28(1):1–13
Martin Fink is a Commander in the Royal Netherlands Navy. He has served in several national
and international legal postings as a military legal advisor, among which were the Netherlands
Maritime Force (NLMARFOR) and the NATO Joint Force Command Naples, and a brief spell at
the Netherlands Ministry of Defence. He has been on several operational tours as a legal advisor,
among which were Iraq, Afghanistan and South Sudan. He has been a lecturer of international law
at the Netherlands Defence Academy and is a researcher at the University of Amsterdam, at the
Amsterdam Centre of International Law (ACIL), and holds a doctor iuris at the same university.
Rebecca Dickey is a Lieutenant in the United States Navy. She has served in operational positions
on board multiple naval vessels and has served internationally as a Legal Advisor at the NATO
Centre of Excellence for Operations in Confined and Shallow Waters (COE CSW). Her operational
tours include Humanitarian Aid missions to Central and South America, as well as deployments to
the South China Sea, East China Sea and Yellow Sea.
7
Kraska and Pedrozo (2013), p. 5.
8 M. Fink et al.
Jörg Schildknecht is a Commander (res.) of the German Navy. He is currently stationed as the
Legal Advisor of the NATO Centre of Excellence for Operations in Confined and Shallow Waters
(COE CSW) in Kiel, Germany. He is a civil servant of the German Navy and has been deployed in
several military missions in his military reserve rank. He has worked for, inter alia, EU NAVFOR
Northwood and Rome, the Mürwik Naval Academy, German Fleet Command Flensburg and the
International Law Department of the German Ministry of Defense in Berlin. He is a specialist in
international law and holds a doctor iuris at the University of Hamburg.
Lisa Ferris is the Director of New Zealand Defence Legal Services. In 2008, she was deployed to
the Arabian Gulf as the Legal Officer aboard the frigate HMNZS TE MANA where she provided
legal advice to the Commanding Officer. In late 2009, Lisa Ferris was deployed to Afghanistan as
the legal officer advising the New Zealand senior national officer on rules of engagement, law of
armed conflict, and general military law issues. Lisa Ferris was deployed to Afghanistan again in
2012 as counsel assisting a Court of Inquiry, and to Iraq in 2015 to support the planning for the
deployment of NZ force elements. In 2013, she was appointed as the Deputy Director Operations
Law and the Chief of Staff for Defence Legal Services. In 2017, Lisa Ferris was promoted to
Colonel and appointed as the Director of Defence Legal Services. On 23 January 2018, Lisa Ferris
was appointed to her present rank. Lisa Ferris holds a Master of Laws with Honours and a Bachelor
of Commerce and Administration from Victoria University and completed United States Marine
Corps Staff College (Extramural) in 2014.
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