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

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 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 ( 1 ) 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. ( 2 ) 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. ( 3 ) 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

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