Current Legal Issues in Maritime Operations: Maritime Interception Operations in the Global War on Terrorism, Exclusion Zones, Hospital Ships and Maritime Neutrality

• Author: Wolff Heintschel von Heinegg
• Position: Professor of International Law at Europe-University in Frankfurt (Oder) Germany
• Pages: 207-233

XI

Current Legal Issues in Maritime Operations:

Maritime Interception Operations in the

Global War on Terrorism, Exclusion Zones,

Hospital Ships and Maritime Neutrality

Wolff Heintschel von Heinegg1

Preliminary Remarks

Withthe adoption ofthe UN Law ofthe Sea Convention in 19822there was

astrong belief that with that "constitution of the world's oceans" all the

disputed issues relating to coastal State rights on the one hand, and to freedom of

navigation on the other hand, had been settled for good. Since 1982, however,

coastal State legislation has frequently had anegative impact on the latter. The US

Freedom of Navigation Program gives ample proof of excessive maritime claims

ranging from restrictions of the rights of innocent passage, transit passage, and

archipelagic sea lanes passage, to the establishment of illegal baselines and mari-

time security zones, all of which have no basis in either the LOS Convention or in

customary international law.3The problem of "creeping jurisdiction" has gradu-

ally been reinforced by national legislation on the protection of the marine envi-

ronment. Many coastal States have understood that when adeviation from the

established rules and principles of the law of the sea is justified on environmental

grounds, it creates enormous difficulties for those States that are prepared to coun-

ter these claims. The general public will all too easily accept them as reasonable and

Current Legal Issues in Martime Operations

legitimate. Still, for countries like the United States and the member States of the

European Union,4in view of their dependence on the freedom of navigation for se-

curity and economic reasons, it is of tantamount importance to preserve the

achievements of the LOS Convention.

At the same time, these very States are confronted with new challenges. There al-

ready exists reliable intelligence information that transnational terrorists may tar-

get ships and ports. Moreover, transnational terrorism may well seek to take

advantage of navigational freedoms by transporting weapons, including weapons

of mass destruction, by sea. In order to prevent them from reaching their destina-

tion it is necessary not only to establish effective control mechanisms in ports5but

also to interfere with international shipping on the high seas if there is no such ef-

fective control mechanism in the port of origin, or if the flag State is unwilling to

comply with its obligations under treaties in force6or under the respective resolu-

tions of the UN Security Council.7

The dilemma the target States of transnational terrorism find themselves in seems

to be obvious. On the one hand, there is anecessity to interfere with foreign shipping,

thus restricting the freedom of navigation. On the other hand, these measures may

be precedents for amodification ofthe law which would, if going too far, be contrary

to the vital interests of these States whose economies depend on the free flow of

goods by sea and whose security interests presuppose that their navies remain in a

position to exercise power projection whenever and wherever necessary.

The first section of this paper will deal with the question of whether and to what

extent the law as it stands provides asufficient legal basis for Maritime Intercep-

tion/Interdiction Operations (MIO)8in the Global War on Terrorism (GWOT).9

If the answer to this question is affirmative, the said dilemma will prove to be less

dramatic than it seems to be at first glance.

The second part of this paper will be devoted to three further current legal issues

in maritime operations that, although dealing with the law of naval warfare and

neutrality at sea, are not in toto unrelated to the issues dealt with in the first part.

Firstly, the establishment of "exclusion/operational zones" during an international

armed conflict will, in any event, interfere with the freedom of navigation of "neu-

tral" and innocent shipping. Secondly, the threat posed by transnational terrorism

will not vanish or even decrease during an international armed conflict. Rather,

transnational terrorists may consider warships and hospital ships perfect targets,

be it only for propaganda reasons. 10 Hence, the question arises as to which mea-

sures belligerents may take in order to effectively protect their units. Thirdly, and

finally, in view of the persisting terrorist threat during an international armed con-

flict, the traditional rules and principles of the law of (maritime) neutrality, if

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