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Irregular Naval Warfare and Blockade

The law of naval warfare is a subset of the law of armed conflict, and it consists mostly of jus in bello, or the conduct of hostilities during a state of war. The law of naval warfare still reflects a great dose of customary international law, although much of it has been codified in treaty. The contemporary law of naval warfare was developed largely through customary international law from the time of the age of sail through the end of World War I, and it was largely codified by the Hague Conventions of 1907. The 1995 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, which was developed in the aftermath of the Iran-Iraq “tanker war” of the 1980s, contains a restatement of current practice in the law of naval warfare.1

23.1 Irregular Naval Warfare

Before we discuss the law, it is useful to scope out the nature of the new face of irregular naval warfare, which is a function of changing tactics and doctrine and the emergence of new technologies. The combination of small, organized armed groups able to inflict devastation previously reserved only for nation-states is symptomatic of the contemporary international security system. Advances in information technology, communications, and kinetic warheads have transformed war at sea. First, perhaps the greatest change in naval warfare over the past 30 years is the revolution in precision-guided munitions (PGMs). PGMs were once

1 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Louise Doswald-Beck ed., 1995) [Hereinafter San Remo Manual]. See also, Louise Doswald-Beck, The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 89 Am. J. Int’l L. 192 (1995). 860 chapter twenty-three considered purely an advanced and top-tier capability—the preserve of only a few of the most advanced naval forces. Now PGMs are ubiquitous, a pervasive presence in Asia, Africa, and the Middle East—a proliferating maritime capability that even terrorist groups are acquir- ing. Emerging technologies and the downward curve in acquisition costs have stripped developed nations of their monopoly on higher end naval weapons. These changes have had a profound effect on maritime security. For the first time in recent memory, if not the first time in history, the maritime commons is no longer a permissive operating environment for the most powerful navies. Second, the end of the Cold War brought a return of the historic truism that instability on land produces disorder at sea. In this regard, the present is no dif- ferent than the past. During the era of the Barbary pirates, for example, the power of despots and absence of rule of law in North Africa made the entire Mediter- ranean Sea and part of the Atlantic Ocean a danger zone. Today, organized gangs of Somali pirates roam throughout the western Indian Ocean, threatening ship- ping traffic and extracting ransom booty that flows into the failed state, propping up militias. The political turbulence that emanates from parts of the developing world since the implosion of the bipolar political order in 1989 has fueled the emergence of large, well organized non-state organizations such as Hezbollah, that are able to project force far out to sea. This element represents the maritime dimension of the “return of history.”2 The irregular or asymmetric threats emerging in the maritime domain belie the state-centered, indeed in many ways anachronistic character of the law of naval warfare. Many aspects of the law of naval warfare were codified at the Hague Conference of 1907—the first successful effort at defining in a treaty specific rules of international humanitarian law (IHL). The Hague law is supplemented by custom and state practice honed by two world wars, which cemented norms governing new technologies, including poisonous gas, effective naval mines, the submarine and torpedoes, and the atomic bomb. Likewise, the law of naval warfare was shaped by changes in public inter- national law after World War II. Two transformational strands of international law—entry into force of the UN Charter and entry into force of the United Nations Convention on the Law of the Sea (UNCLOS)—have brought further changes to how the law of naval warfare applies in practice, particularly to irregular con- flicts at sea.3 Today naval warfare most likely means hybrid conflict—set at the

2 Robert Kagan, The Return of History and the End of Dreams 102–03 (2009) and Louise Oswald-Beck, Vessels, Aircraft, and Persons Entitled to Protection During Armed Conflicts at Sea, 1994 Brit. Y.B. Int’l L. 211. 3 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122 (1982), 1833 U.N.T.S. 3, 397, 21 I.L.M. 1261 (1982), entered into force Nov. 16, 1994 [Hereinafter UNCLOS].