XIII. The Legality of Maritime Interception/Interdiction Operations Within the Framework of Operation ENDURING FREEDOM

• Author: Wolff von Heinegg
• Pages: 253

Panel III - Maritime & Coalition Operations

Moderator:

Vice Admiral James Doyle

US Navy (Ret.)

Presenters:

Professor Wolff Von Heinegg

University of Frankfurt-Oder

Professor Ivan Shearer Challis

Professor of International Law

University of Sydney

Commentators:

Commander Kenneth O'Rourke

Judge Advocate, US Navy

Chief, Operations Law Division

United States Central Command

Commander Neil Brown

Royal Navy, United Kingdom

Fleet Legal Advisor

CINCFLEET, United Kingdom

Wing Commander Paul Cronan

Legal Advisor, Headquarters Australian Theatre

Australian Defense Force

Lieutenant Colonel Jean-Guy Perron

Assistant Judge Advocate/Ottawa

Canadian Forces

XIII. The Legality of Maritime Interception/Interdiction Operations Within the Framework of Operation ENDURING FREEDOM - Wolff von Heinegg'.

Object and Purpose of Operation ENDURING FREEDOM W hile Operation ENDURING FREEDOM covers a wide set of measures against international terrorism, the naval forces deployed to the Horn of Africa and in the sea areas around the Arab peninsula have a clear task to fulfil. Their assignment covers inter alia '* control of sea traffic in the area;

'* guaranteeing the freedom and safety of navigation;

'* protection of endangered vessels;

'* disruption of supplies for terrorist groups, especially by preventing others from supporting and financing international terrorism;

'* elimination of terrorist command and training facilities; and '* capture of international terrorists for the purpose of prosecuting them.

1. Wolff von Heinegg is a Professor of International Law at Europa-University in Frankfurt (Oder), Germany.

   The tasks presuppose a sound knowledge of the geography and of those present in the sea area concerned. The naval units, therefore, have to precisely and comprehensively monitor sea and air traffic. Intelligence collection and surveillance by means of the electronic and other equipment on board such warships does not create any significant legal problems, since it does not interfere with the rights of other states. If such equipment is used during passage in the territorial sea of another state, in principle, the prohibitions found in Article 19 of the UN Convention on the Law of the Sea (hereinafter LOS Convention) must be observed.2 Activities 'prejudicial to the peace, order or security of the coastal state' are, however, to some extent modified by the inherent right of self-defense found in both Article 51 of the UN Charter and customary international law. As soon as there is reasonable grounds to believe a concrete threat against the vessel or its personnel exists, the warships are entitled to take all measures necessary to neutralize or eliminate the threat.

2. Article 19 of the UN Convention on the Law of the Sea provides that '[p] assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.' Passage prejudicial to peace, good order or security of the coastal state includes a foreign ship engaging in any of the following activities:

   (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

   (b) any exercise or practice with weapons of any kind;

   (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

   (d) any act of propaganda aimed at affecting the defence or security of the coastal State;

   (e) the launching, landing or taking on board of any aircraft;

   (f) the launching, landing or taking on board of any military device;

   (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

   (h) any act of wilful and serious pollution contrary to this Convention;

   (i) any fishing activities;

   (j) the carrying out of research or survey activities;

   (k) any act aimed at interfering with any systems of communication or any other 'facilities or installations of the coastal State;

   (1) any other activity not having a direct bearing on passage.

   See U.N. Convention on Law of the Sea, U.N. Doc. A/CONF.62/122 (1982), art. 19, reprinted in BARRY CARTER AND PHILLIP TRIMBLE, INTERNATIONAL LAW SELECTED DOCUMENTS (2001), at 553 [hereinafter INTERNATIONAL LAW SELECTED DOCUMENTS].

   Within a foreign territorial sea, replenishment at sea would be contrary to Article 19(g) of the LOS Convention, unless the coastal state expressly authorized it. All other activities, not listed in Article 19 UNCLOS are permitted. Importantly, coastal states may not require warships to notify them of their passage in advance or to make that passage subject to prior consent.3

   This, a fortiori, holds true for transit passage through international straits, such as in the Strait of Bab el Mandeb.

   The purpose of this article is not to analyze each of these issues, however.

   Instead, the emphasis of this article is on the basis for, and legality of, maritime interception/interdiction operations.

   Legality of Maritime Interception/Interdiction Operations Given that flag states exercise exclusive jurisdiction over 'their' vessels in sea areas beyond the territorial sea of third states, the question arises as to whether coalition members in the Global War on Terror may interfere with such vessels if the flag state has not consented or has expressly objected.

   MoreoVer, even if the flag state is obliged to tolerate maritime interception/interdiction operations (MIO) against its shipping, the applicable legal regime must be understood for such operations. This is particularly true today as although MIO is currently being conducted by the United States and coalition members in Operation ENDURING FREEDOM, the UN Security Council has neither imposed such an obligation on flag states nor expressly authorized the United States and its coalition members to conduct such operations.

   Legal Basis For MIO What then is the legal basis for the United States and coalition members conduct of MIO in support of Operation ENDURING FREEDOM? It must first be emphasized that international law permits interference with foreign ships, their cargo and their crew/passengers only when:

3. In their joint statement agreed upon inJackson Hole on 23 September 1989 the former Soviet Union and the United States emphasized that 'the provisions of the 1982 United Nations Convention on the Law of the Sea, with respect to traditional uses of the oceans, generally constitute international law and practice and balance fairly the interests of all States.' See 89

   DEPT. STATE BULL. 25f. (December 1989), reprinted in 14 LAW OF THE SEA BULLETIN, at 12 (December 1989).

   * a treaty rule exists that expressly provides for interference such as in the case of piracy4 or severe pollution of the marine environment,5 or * the interfering state finds itself in a special situation, i.e., in an international armed conflict. 6

   In the latter situation the parties of the conflict are not limited to visit, search, and capture of only enemy vessels. Rather, according to the law of maritime neutrality,7 each state party may also take measures against vessels flying the flags of third/neutral states to include visit and search, capture, and in exceptional circumstances, even to the destruction of those vessels.8 As long as these measures conform with the law of naval warfare and with the law of maritime neutrality, flag states must tolerate them. The reason for this requirement stems from the merging in certain aspects of the law of peace and the law of war. Given the existence of the UN Charter, the following considerations are now decisive:

   In the absence of a Security Council resolution affirmatively identifying the aggressor state, it remains essential, in view of the continuing object and purpose of international law to secure international peace and security, to prevent the escalation of an ongoing international armed conflict. This purpose 4. See LOS Convention, supra note 2, at art. 105, reprinted in INTERNATIONAL LAW SELECTED DOCUMENTS at 582. Note, however, that the customary definition of piracy is broader than that agreed upon in the LOS Convention. See A.P. Rubin, The Law of Piracy, 63 INT'L L. STUD 305, 337 (1988). For measures that may be taken against pirates, see S.P. Menefee, Foreign Naval Intervention in Cases of Piracy: Problems and Strategies, 14 INT'L J. MARINE AND COASTAL L. 353 (1999).

5. See, e.g., LOS Convention, supra note 2, at art. 220, para. 6, reprinted in INTERNATIONAL LAW SELECTED DOCUMENTS at 621. See also, Myron H. Nordquist, UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982, A COMMENTARY, Vol. IV, at 301 (Dordrecht et al. eds., 1991); T. Treves, Intervention en haute-mer et navires 6trangers, XLI ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL 651 (1995).

6. For the measures that may be taken against (neutral) merchant vessels see SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS AT SEA, paras. 59, 67, 118, 146 (Cambridge Univ. Press, 1995) [hereinafter SAN REMO MANUAL]. See also, W.

   HEINTSCHEL v. HEINEGG, SEEKRIEGSRECHT UND NEUTRALITAT IM SEEKRIEG, at 363, 483, 567, 582 (Berlin 1995) [hereinafter SEEKRIEGSRECHT UND NEUTRALITAT IM SEEKRIEG].

7. The exact status of the traditional law of neutrality is far from clear. On the one hand, there are overlaps with political concepts of neutrality. On the other hand, the scope of applicability (only in a 'war' strictu sensu?) is highly disputed. Still, with regard to the maritime aspects of the law of neutrality some rules and principles have developed that are met by wide agreement. See, e.g., Helsinki Principles on the Law of Maritime Neutrality, in 68 INT'L L. ASSOC. REP. 497 (1998) [hereinafter Helsinki Principles].

8. Cf. SAN REMO MANUAL, supra note 6, at paras. 67, 118, 146. See also, SEEKRIEGSRECHT UND NEUTRALITAT IM SEEKRIEG, supra note 6, at 567...