Introduction

The effects of a state blocking the Straits of Hormuz, the South China Sea, the Black Sea or the Baltic Sea could seriously threaten international peace and security. Even so, in 2019 Iran threatened to block the Straits of Hormuz. and a number of merchant ships were struck by mines.1 For a number of years China has made clear that it does not accept the presence in the South China Sea of navies from outside the region,[1] as has been made obvious by numerous incidents. Russia too has engaged in numerous incidents with foreign navies in the Baltic Sea and Black Sea. In 2019 the Russian Navy intercepted and detained Ukrainian naval vessels entering the Kerch Strait.

The purpose of many of these aggressive operations at sea appears to be to deter an opponent by making it seem too difficult to operate in a particular area. Worse still, the intention could be to provoke an over-reaction.

Provoking an opponent to be the fust to use excessive, particularly lethal, force could cause them to lose the moral ascendancy, which could lead to a loss of diplomatic or domestic public support. It could even lead to a situation where domestic and international opinion holds that it is too provocative for that nary, or even any outside navy, to be present in a contested region.3 This is not unique to maritime operations, it is a dynamic that occurs across the spectrum of conflict, whether between people, within states or between states. In this sense it is just another aspect of human behaviour, but it does have distinct characteristics at sea. The capability of different ships and aircraft, the differing rules applying in various maritime zones, and the hostile nature of maritime environment itself, combmed with the rise in these types of incidents in recent years, require particular consideration.[2] The challenge is to ascertain who can do what and where and, then, how much force is too much force in these very finely balanced incidents.

The reason for this book is the increase in incidents in recent years involving warships mainly, but not only, involving the United States, China, Russia and Iran. While the law alone cannot prevent these incidents developing into more serious conflict, a lack of clarity as to the law may start one. The use of force is at the heart of the concern of this book, and with it the power to take or save lives. The intention here therefore is to clarify the applicable rules as much as possible and so reduce the risk of misunderstanding. To provide a context for the discussion it is worth describing briefly the nature of the incidents in key regions.

  • [1] See David Uren, ‘Will US-Iran Tensions Disrupt the Global Oil Market?’ The Strategist (online), 13 May 2019; James Kraska and Robert McLaughlin, ‘Attribution of Naval Mme Strikes in International Law’ EJIL Talk (online), 24 June 2019 www.ejiltalk.org/attribution-of-naval-mine-stnkes-in-intemational-law/ 2 Carl Thayer, ‘South China Sea Code of Conduct Closer’ Australian Naval Institute (online), 19 January 2020 https://navalinstitute.com.au/south-china-sea-conduit-code-closer/ 3 Discussed later 4 Heinrich Lange, Bill Combes, Tomas Jermalavicius, and Tony Lawrence, To the Seas Again: Maritime Defence and Deterrence in the Baltic Region (International Centre for Defence and Security, Baltic Defence College, 2019) 14-17 5 Case Concerning the Detention of Three Ukrainian Naval Vessels: Requestfor the Prescription of Provisional Measures (Ukraine v Russian Federation) International Tribunal for the Law of the Sea, Case No 26,25 May 2019 (the ‘Kerch Strait Case') 6 See Stuart Kaye, ‘Freedom of Navigation, Surveillance and Security: Legal Issues Surrounding the Collection of Intelligence from Beyond the Littoral’ (2005) 24 Australian Year Book of International Law 93,103; Douglas Guilfoyle (ed), Strategy and Law in the South China Sea Disputes: Workshop Report (Maritime Security Research Group, UNSW Canberra, 2019) https://papers.ssm.com/sol3/papers.cfm?abstract_id=3505724 7 see Dieter Fleck, ‘Rules of Engagement for Mantime Forces and the Limitation of the Use of Force Under the UN Charter’ (1988) 31 German Yearbook of International Law 165,
  • [2] 2 54-55 3 Credit is due to Professor Stuart Kaye for clarifying my thoughts on this in our discussions of the issues. See also Sam Bateman, Freedoms of Navigation in the Asia-Pacific Region: Strategic, Political and Legal Factors (Routledge, 2020) 88 4 See Hitoshi Nasu, ‘Regunes of Navigation and Maritime Security in South East Asia’ in Donald Rothwell and David Letts (eds), Law of the Sea in South East Asia (Routledge, 2020) 180, 187, 189-191 and generally 5 James Kraska and Raul Pedrozo, International Maritime Security Law (Martinus Nijhoff Publishers, 2013) 313-314; Cameron Moore, ‘The Arbitral Award in the Matter of the South China Sea Between the Philippines and China - The Use of Force and Freedom of Navigation’ (2017) Asia Pacific Journal of Ocean Law and Policy 117,117-119
 
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