A growing number of incidents—particularly since 2009—highlight the South China Sea (SCS) as the preeminent venue for the People's Republic of China (PRC) maritime gray zone operations. “Gray zone ...operations” are, in essence, operations that are designed to exploit or create legal (and other) uncertainties for a military or strategic advantage. A prominent example is the way that China has used the so-called nine(ten)-dash line without fully explaining the legal basis for it. There are other examples, as well. China has deliberately cultivated uncertainty about the sovereign status of maritime militia vessels—and thus about whether and how the conduct of these vessels might be directly attributable to the PRC. It has harassed U.S. survey vessels seventy-five nautical miles (nm) south of Hainan Island in an effort to disrupt military survey operations that it claims are impermissible and has sunk a Philippine fishing vessel at Reed Bank in an effort to enforce Chinese claims to exclusive fisheries rights in this area. It has also asserted claims and enforcement rights in zones that clearly belong to other states—including actions against Indonesian fishing vessels in seas in the vicinity of the Natuna Islands, which are part of the Indonesian Exclusive Economic Zone (EEZ) (and Continental Shelf). And it has conducted operations on the basis of inapplicable maritime zone rights, such as by asserting a territorial sea and thus the right to control innocent passage around low-tide elevations with artificial installations built upon them—such as with Mischief Reef. The list goes on.
Although there are areas of uncertainty and overlap, authorizations for maritime law enforcement operations are beholden to a different regime from that which governs the conduct of armed conflict at ...sea. This article seeks to briefly describe five regularly employed authorizations for maritime law enforcement operations at sea: flag State consent, agreed pre-authorization, coastal State jurisdiction, UN Security Council resolutions, and the right of visit.
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Abstract
Among the new technologies being deployed at sea, maritime autonomous vehicles (MAV) are of increasing interest to States to enhance their intelligence, surveillance and reconnaissance ...capabilities to improve their maritime security. This article analyses the international law implications of this use of MAV to support maritime law enforcement efforts in response to drug trafficking and other crimes at sea. The use of MAV for criminal purposes, especially smuggling goods, also holds international law consequences. The article assesses how these different operations of MAV fit within existing legal regimes, highlighting emerging legal questions for resolution and setting out recommendations for law reform to enhance counter-smuggling operations at sea.
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Cyberspace is now acknowledged not only as the newest domain of warfare, but also as a space vital to economic, educational and cultural development for all States. This thin consensus ignores the ...fundamental fact that the backbone of cyber infrastructure—submarine telecommunication cables—is not (for the large part) located within sovereign territorial jurisdiction. The radically increased reliance of States upon submarine data cables emphasises their vulnerability to damage by malicious acts, accidents, or natural phenomena. Faced with these problems, legal analysis has tended to identify gaps or deficiencies in the law, and propose the creation of new legal instruments. The contribution of this article is twofold. First, it expands the frame of analysis to include deliberate damage to cables not only in peacetime but under the law of armed conflict. Second, rather than treating the legal framework as inherently deficient, it considers the extent to which existing rules and principles can be progressively developed, interpreted, or creatively applied to close perceived gaps. This article surveys the existing law specific to the protection of submarine cables and assesses how general principles of the law of the sea, State responsibility, the law on the use of force, and the law of armed conflict apply to this problem. It thus considers in turn the applicable ‘law of peace’, the jus ad bellum and the jus in bello.
Among the many challenges facing Somalia as it seeks to enable its maritime future is the continuing conundrum presented by its historical claim to a 200-nautical-mile territorial sea. However, as a ...degree of stability has returned, a series of important-but largely forgotten-national and international legislative and policy steps taken by the Somali Democratic Republic just prior to the onset of the civil war have been rediscovered. This has cast the issue in a new light, and raises several questions as to the consequences and evolution of the Somali legal relationship to the maritime domain. This article describes the current status of the Somali claim, with a view to illuminating the legal history behind the Somali legislative 'start point' for the recently filed application with the International Court of Justice in relation to its Exclusive Economic Zone delimitation with Kenya.
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Written by people selected for their personalized knowledge of the Rwandan genocide, Rwanda Revisited: Genocide, Civil War, and the Transformation of International Law provides a unique level of ...insight, detail and first-hand knowledge about the Rwandan genocide and its aftermath.
The ongoing development of diverse maritime autonomous vehicles for varied ocean activities—ranging from scientific research, security surveillance, transportation of goods, military purposes and ...commission of crimes—is prompting greater consideration of how existing legal frameworks accommodate these vehicles. This article brings together the core legal issues, as well as current developments in relation to commercial shipping, the law of naval warfare, and maritime security. This article captures how these issues are now being addressed and what other legal questions will likely emerge as the newest technology impacts on one of the oldest bodies of international law.
Determination of characteristics of international and non-international armed conflict and lower threshold internal hostilities or violence - options for a government faced with a threshold situation ...- elements of legal and policy discretion - jurisdiction - law enforcement - use of lethal force - Geneva Conventions - authorisation of intervention.
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As DP O'Connell noted in a seminal 1970 article (‘International Law of Contemporary Naval Operations’) and in his equally seminal 1975 book The Influence of Law on Sea Power, maritime operations law ...is a constantly evolving discipline in both theory and practice—with law often lagging practice by a noticeable margin. One consequence of the (then) ‘Dreadnought era’ focus of much of the law of naval warfare was that ‘If international law appears to the naval officer a tangle of uncertainties in which he is likely to be ensnared, the technology of naval warfare induces in the legal theorists perplexity and dismay’. However, for all of the sometimes haphazard and ‘catch-up’ nature of the relationship between law and practice in maritime operations, there are clearly a number of fundamental, normative, defining themes which have tended to play the dominant role in shaping and informing the evolution of maritime operations law over the last several decades (or, indeed, centuries). Pinpointing which themes come within this category is of course a matter for debate, but it would seem reasonably safe to assert that an indication as to their form and colour is evident in paradigmatic themes such as resource exploitation, maritime claims, technological advance, and freedom of navigation.
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Debate over the degree to which International Human Rights Law (IHRL) should legitimately inform and alter the interpretation of the Law of Armed Conflict (LOAC) is increasing in intensity. It is not ...a new debate—G.I.A.D. Draper was considering the issue in 1971, and there have been numerous general statements by the UN recognizing that there is indeed interplay between the two bodies of law. Yet despite a long formative period, the debate—which is now beginning to attract much greater attention jurisprudentially, operationally, and academically—is still being conducted in a procedurally flawed manner. This flawed procedure has two characteristics. First, it is characterized by a process of reverse engineering. By this I mean it is characterized by reasoning froma limited number of particular instances to arrive at a general thesis, followed by the subsequent re-application of this apparent general thesis to other instances. The second procedural characteristic is that the debate is substantially in the form of a one-way argument. I will briefly elaborate on both.
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