Law of naval warfare

The law of naval warfare (LONW) is a specialised component of international humanitarian law (IHL), focused upon the application of fundamental IHL principles to maritime operational conduct. Contextually, this encompasses both the unique nature of the maritime environment and a long history of mediated resolutions to tensions between trade, maritime communications and maritime security, common heritage and sovereignty, and armed conflict and neutrality. Perhaps because of this mediating function, LONW has rarely kept pace with either tactical or technological developments in maritime operations,¹ although it has (at least since the 1990s) responded efficiently to norm crystallisation in terms of the general management and regulation of the maritime domain. This tendency to lag tactics and technology defines what is perhaps the core thematic challenge faced by the LONW: the scant likelihood of naval armed conflict occurring in the ‘classic’ way envisaged when much of the black letter law was crafted. This is not to say that situations do not arise where traditional LONW clearly applies – the maritime aspects of the 2003 Iraq War (such as visit and search, albeit with the complicating overlay of a UN Security Council (UNSC) sanctions regime in parallel operation), and the 2006 blockade with respect to the Israel–Lebanon conflict, provide two recent examples of relatively traditional applications of LONW. The form and nature of challenges to the utility and interpretation of traditional LONW vary widely, but are illustrated in four discrete, but indicative, issues: (1) non-international armed conflict (NIAC) at sea (and in particular some of the as-yet unresolved issues that surround the application of LONW to Sri Lankan maritime operations against the LTTE (the Tamil Tigers),² 265and the Gaza Flotilla incident);³ (2) the seduction of paradigm blurring – from constabulary operations into armed conflict operations – that is a defining operational factor of the incidence of maritime terrorism⁴ (although this is also of course a broader IHL challenge); (3) issues of status raised by increased mixing of military and civilian crews and personnel at sea,⁵ along with the increased potential for civilians to be characterised as taking a direct part in hostilities at sea;⁶ and (4) the unavoidable interpretive challenges that weaponised technologies such as cyber, and unmanned and even autonomous surface and subsurface combat vehicles⁷ portend for traditional black letter LONW, as equally as for broader IHL. This chapter, however, will focus upon the historical development of the LONW, rather than its likely responses to these many current and future challenges.