The use of force at sea involving warships – the cases

There is some useflil international case law on the use of force at sea involving warships. It illustrates the distinctive character of the maritime environment, in which the orthodox jus ad bellum described previously often applies differently to the way it does in the terrestrial environment.

The Corfu Channel Case (UK v Albania)

The Corfu Channel Case was the first case heard by the International Court of Justice and, helpfully, is directly concerned with the issue of the passage of warships and the use of force. The statement of the facts of the case in the judgment is succinct:

On October 22nd, 1946, a squadron of British warships, the cruisers Mauritius and Leander and the destroyers Saumare: and Volage, left


See David Letts, ‘A Review of Selected Measures for Reducing Potential Conflict Among Naval Vessels in the South China Sea’, in Jorg Schildknecht, Rebecca Dickey, Martin Fin and Lisa Fems (eds), Operational Law in International Straits and Ciment Maritime Security Challenges (Springer International Publishing, 2018) 143,153

the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. The cruiser Mauritius was leading, followed by the destroyer Saumare:; at a certain distance thereafter came the cruiser Leander followed by the destroyer Volage. Outside the Bay of Saranda, Saumare: struck a mine and was heavily damaged. Volage was ordered to give her assistance and to take her in tow. Whilst towing the damaged ship, Volage struck a mine and was much damaged. Nevertheless, she succeeded in towing the other ship back to Corfu. Three weeks later, on November 13th, the North Corfu Channel was swept by British minesweepers and twenty-two moored mines were cut.[1]

The incident saw the loss of 44 dead and 42 wounded in the British ships. This incident followed an incident a few months earlier in which Albanian shore batteries fired at British warships, as described in the judgment:

On May 15th, 1946, the British cruisers Orion and Superb,while passing southward through the North Corfu Channel, were fired at by an Albanian battery in the vicinity of Saranda. It appears from the report of the commanding naval officer dated May 29th, 1946, that the firing started when the ships had already passed the battery and were moving away from it; that from 12 to 20 rounds were fired; that the firing lasted 12 minutes and ceased only when the ships were out of range; but that the ships were not hit although there were a number of ‘shorts’ and of ‘overs’.

As a result, the subsequent passage of the warships on October 22nd occurred in a situation of heightened tension with an expectation of using force. If fir ed upon by coastal batteries, the British warships had orders to return fire. The International Court of Justice accepted this robust view of innocent passage by warships, stating that:

the object of sending the warships through the Strait was not only to cany out a passage for the purposes of navigation, but also to test

Albania’s attitude. .. . The legality of this measure cannot be disputed, provided that it was earned out in a manner consistent with the requirements of international law. The ‘mission’ was designed to affirm a right which had been unjustly denied. The Government of the United Kingdom was not bound to abstain from exercising its right of passage, which the Albanian Government had illegally denied.[2]

The Court went on to state:

the Commander-in-Chief reported that the passage ‘was made with ships at action stations in order that they might be able to retaliate quickly if fried upon again’. In view of the firing from the Albanian batteiy on May 15th, this measure of precaution cannot, in itself, be regarded as unreasonable. But four warships - two cruisers and two destroyers - passed in this maimer, with crews at action stations, ready to retaliate quickly if fri ed upon. They passed one after another through this narrow channel, close to the Albanian Coast, at a time of political tension in this region. The intention must have been, not only to test Albania’s attitude, but at the same time to demonstrate such force that she would abstain from firing again on passing ships. Having regard, however, to all the circumstances of the case, as described above, the Court is unable to characterize these measures taken by the United Kingdom authorities as a violation of Albania’s sovereignty.

This first International Court of Justice case makes some veiy important points. It was acceptable for the United Kingdom ‘to test Albania’s attitude'. It was ‘not bound to abstain from exercising its right of passage’. Despite the existing tensions, and the warships being prepared to use force to conduct the passage, these were not acts of aggression. The Court found at the time that there was a customary international law right of innocent passage through an international strait, including for warships, which could not be suspended.[3]

It was, however, contrary to the right of innocent passage to conduct the subsequent minesweeping operation. Chapter 5 will address the question of the extent to which the transit passage regime under the 1982 Convention alters any right to clear an obstruction of an international strait.

Nicaragua v United States

The International Court of Justice considered sea mines again in the Nicaragua Case. It primarily concerned United States support for the Contra rebels seeking to overthrow’ the Nicaraguan government. (This aspect of the case is significant mainly for its treatment of the threshold of an armed attack and the requirements for collective self-defence, which Chapters 3 and 2 respectively will consider.) A less prominent but still important aspect of the case concerned the US mining of Nicaraguan waters, without any warning to shipping, which the court described as follows:

76. On 25 February' 1984, two Nicaraguan fishing vessels struck mines in the Nicaraguan port of El Bluff, on the Atlantic coast. On 1 March 1984 the Dutch dredger Geoponte, and on 7 March 1984 the Panamanian vessel Los Caraibes were damaged by mines at Corinto. On 20 March 1984 the Soviet tanker Lugansk was damaged by a mine in Puerto Sandino. Further vessels were damaged or destroyed by mines in Corinto on 28, 29 and 30 March. The period for w'hich the mines effectively closed or restricted access to the ports was some two months. Nicaragua claims that a total of 12 vessels or fishing boats were destroyed or damaged by mines, that 14 people were woimded and two people killed. The exact position of the mines - whether they were in Nicaraguan internal waters or in its territorial sea - has not been made clear to the Court: some reports indicate that those at Corinto were not in the docks but in the access channel, or in the bay where ships wait for a berth.

While the United States did not participate in the substantive proceedings, the Court, including the dissenting judges, was unequivocal in finding such actions unlaw'fiil. It stated that:

At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters, and the right of free access enjoyed by foreign ships.[4]

Somewhat more surprisingly, the Court did not see such action as amounting to an aimed attack by the United States on Nicaragua:

Nevertheless, such activities may well constitute a breach of the principle of the non-use of force and an intervention in the internal affairs of a State, that is, a form of conduct which is certainly wrongfill but is of lesser gravity than an aimed attack.

This conclusion has implications for the issue of unit self-defence, which Chapter 2 will address in more detail.

The Saiga Case (St Vincent and the Grenadines v Guinea)

The Saiga Case, the fust substantive case before the International Tribunal for the Law of the Sea in 1999, does not concern the use of force against warships but does involve the use of force by warships. In that case, a Guinean patrol boat sought to apprehend a St Vincent and the Grenadines registered tanker upon suspicion that it was bunkering fishing vessels contrary to Guinean customs law. The Tribunal found that the Guinean patrol boat opened fire without warning. Among a range of issues, the Tribunal particularly considered the use of force to apprehend vessels at sea. It stated the following important principles:

Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.

The principles on the use of force stated here derive from general international law. They are arguably equally applicable to situations where coastal states wish to repel sovereign immune warships and military aircraft. For example, the statement that ‘considerations of humanity apply at sea’ should apply equally to situations where the threat is to sovereignty rather than life.[5] Even when defending sovereignty against sovereign immune vessels, actions should be reasonable and necessary. This approach appears to have been borne out in the next relevant case four years later, this time before the International Court of Justice.

The Oil Platforms Case (Iran v US)

The Oil Platforms Case brought by Iran against the United States in the International Court of Justice is more directly concerned with the use of force by warships in response to threats to navigation. As discussed in the introduction, the subject matter of tension between the United States and Iran over navigation in the Strait of Hormuz is also of high current significance.

Iran commenced the proceedings on the basis of a breach by the United States of the bilateral 1955 Treaty’ of Amity, Economic Relations and Consular Rights.* As noted by the Court, this was an action not dissimilar to that brought by Nicaragua. The Court did not find that the United States had breached the treaty, nor did it uphold the counter-claim of the United States that Iran had breached the treaty. It also did not accept the arguments of the United States that it had acted lawfully in self-defence when it used force against Iranian oil platforms.

The facts arose in the context of the war between h an and Iraq between 1980 and 1988, which the Court described as follows:

From the very beginning of the conflict, on 22 September 1980, Iran established a defence exclusion zone around its coasts; shortly after, in early October 1980, Iraq declared a ‘prohibited war zone’ and later established a ‘naval total exclusive zone’ in the northern area ofthe Persian Gulf. In 1984, Iraq commenced attacks against ships in the Persian Gulf, notably tankers carrying Iranian oil. These were the first incidents of what later became known as the ‘ Tanker War ’: in the period between 1984 and 1988, a number of commercial vessels and warships of various nationalities, including neutral vessels, were attacked by aircraft, helicopters, missiles or warships, or struck mines in the waters of the Persian Gulf.[6]

Significantly, there were then extensive escort operations in the Gulf. These were acknowledged by the Court, without negative comment, as follows:

A number of States took measures at the time aimed at ensuring the security of their vessels navigating in the Persian Gulf. In late 1986 and early 1987, the Government of Kuwait expressed its preoccupation at Iran’s alleged targeting of its merchant vessels navigating in the Persian Gulf. It therefore requested the United States, the United Kingdom and the Soviet Union to ‘reflag’ some of these vessels to ensure their protection. Following this request, the Kuwaiti Oil Tanker Company was able to charter a number of Soviet vessels, and to flag four ships under United Kingdom registry and 11 ships under United States registry. In addition, the Government of the United States agreed to provide all United States-flagged vessels with a naval escort when transiting the Persian Gulf, in order to deter further attacks; these escort missions were initiated in July 1987, under the designation ‘Operation Earnest Will’. Other foreign powers, including Belgium, France, Italy, the Netherlands and the United Kingdom, took parallel action, sending warships to the region to protect international shipping. Despite these efforts, a number of ships, including reflagged Kuwaiti vessels, merchant tankers carrying Kuwaiti oil and warships participating in ‘Operation Earnest Will’, suffered attacks or struck mines in the Persian Gulf between 1987 and the end of the conflict.

It is within the context of these escort operations that the specific incidents the subject of the case occuned, as described by the Court:[7]

Two specific attacks on shipping are of particular' relevance hi this case. On 16 October 1987, the Kuwaiti tanker Sea Isle City, reflagged to the United States, was hit by a missile near- Kuwait harbour. The United States attributed this attack to han, and three days later, on 19 October 1987, it attacked Iranian offshore oil production installations, claiming to be acting m self-defence. United States naval forces launched an attack against the Reshadat [‘Rostam’] and Resalat [‘Raklish’] complexes; the R-7 and R-4 platforms belonging to the Reshadat complex were destroyed in the attack. On 14 April 1988, the warship USS Samuel B. Roberts struck a urine in international waters near Bahrain while returning from an escort mission; four days later the United States, again asserting the right of self-defence, employed its naval forces to attack and destroy simultaneously the Nasr [‘Sirri’] and Salman [‘Sassan’] complexes.

The 1987 attack was without loss of life as the platforms were evacuated. hi 1988, in what was known as ‘Operation Praying Mantis’, there was an order to evacuate the platforms but there was Iranian resistance from both the platforms and Iranian surface forces. The extent of Iranian loss of life is not known but must inevitably have followed the destruction of two Iranian warships and damage to other vessels and aircraft.

With respect to the 1987 attack, the United States reported this to the Security Council as an action in self-defence, on the basis that:

The military forces stationed on this platform have engaged in a variety of actions directed against United States flag and other non-belligerent vessels and aircraft. They have monitored the movements of United States convoys by radar and other means; co-ordinated minelaying in the path of our convoys; assisted small-boat attacks against other nonbelligerent shipping; and fired at United States military helicopters, as occuned on 8 October 1987. Prior warning was given to pennit the evacuation of the platform.

With respect to the 1988 attack, the United States also reported this to the Security Council as an action in self-defence, stating:

The mines were laid in shipping lanes known by han to be used by US vessels, and intended by them to damage or sink such vessels ... US forces attacked military targets in the Persian Gulf which have been used for attacks against non-belligerent shipping in international waterways of the Gulf. The US actions have been against legitimate military' targets. All feasible measures have been taken to minimize the risk of civilian damage or casualties.[8]

The case is usefol for what it says aborrt the use of force in response to threats to navigation. The test the Court applied was:

the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any ‘measure of discretion’. The Court will therefore turn to the criteria of necessity and proportionality in the context of international law on self-defence.

The Court found that the attacks were not necessary as a direct response to the attacks on the Sea Isle City and Samuel B Roberts, particularly noting that the second platform attacked in 1987 was a ‘target of opportunity’. Interestingly, the Court stated that the 1987 attack, had it been necessary in order to defend the Sea Isle City, might have been proportionate. On the other hand, the 1988 attack on two platforms together with ‘Operation Praying Mantis’, which was a significant naval battle, was disproportionate to the mining of a US warship which resulted in injury and damage but not loss of life. Altogether, ‘those actions constituted recourse to armed force not qualifying, under international law on the question, as acts of self-defence’. Judge Elaraby in dissent went further, describing the US actions as illegal reprisals. He rioted that in the Corfu Channel Case, quoting Sir Humphrey Waldock:

the Court thus drew a sharp distinction between forcible affirmation of legal rights against a threatened unlawfol attempt to prevent their exercise and forcible self-help to obtain redress for rights already violated: the fust it accepted as legitimate, the second it condemned as illegal.[9]

The separate but not dissenting opinions are also instructive. Judge Higgins and Judge Buergenthal stated that there could have been, and Judge Kooi-jmans accepted that there was, sufficient evidence of han being responsible for at least the mine attack on USS Samuel B Roberts. Judge Higgins extended this to the use of the platforms in the laying of the mines. The opinion of Judge Simina also usefully considered whether there are uses of force that do not amount to an aimed attack in the teims of article 51 of the UN Charter, and that there may be forcefill countermeasures in response which also do not amount to self-defence within the meaning of article 51.

In the present case, I agree with the Court that neither the broad pattern of unlawfiil use of force by han against United States vessels and their naval escorts nor the two specific attacks against the Sea Isle City and the Samuel B. Roberts amounted to an ‘aimed attack’ within the meaning of Article 51 of the United Nations Charter. These hostile activities could, as I have pointed out. have been countered immediately by ‘proportionate counter-measures’ also of a military nature, consisting of defensive measures designed to eliminate the specific source of the threat or harm to affected ships in, and at the time of, the specific incidents. The Iranian oil platforms and their possible non-commercial activities dining the Gulf War were too remote from these incidents (in every sense of this word) to provide a legitimate target for countermeasures within the meaning given to this term in the Nicaragua Judgment. Also, there is in the international law on the use of force no ‘qualitative jump' from iterative activities remaining below the threshold of Article 51 of the Charter to the type of ‘aimed attack’ envisaged there. However, as I read the facts of the present case, there was on the part of Iran no iterative or continued pattern of aimed attacks against United States ships to begin with. Attacks on ships flying foreign flags could not be relied on by the United States in order to trigger

Article 51 action. Furthermore, not a single Security Council resolution adopted at the material time determined that it was Iran (alone) which had engaged in ‘armed attacks’ against neutral shipping in the Gulf.[10]

This point goes to the question of unit self-defence discussed in Chapter 2. It also goes to the question of whether it is lawful to use force to assert navigation without breaching article 2(4) suggesting, consistently with the robust view of innocent passage in the Corfu Channel Case, that it is.

This case is also a good example of the effects of an excessive response. Assuming that Iran did engage in the acts of which the United States accused it, as some of the separate opinions found, the US response was dispropor-tional or excessive. This undermined its argument before the ICJ and possibly the opportunity to build diplomatic support for its naval operations in the Gulf at the time. The accidental shooting down of a civilian Iranian Airbus passenger aircraft by USS Vincennes in July 1988, with the loss of 290 lives, most likely exacerbated the perception of the United States as too willing to use force. During tensions between the United States and Iran in January 2020, the President of Iran referred to the 290 deaths.

The US Navy did not, and has not, left the Gulf and hostilities between Iran and Iraq came to an end within months of Operation Praying Mantis. The events of 1987 and 1988 have, however, apparently set up a pattern of action on the part of Iran since then which seeks to provoke excessive responses from the United States. It is quite likely that China and Russia would be similarly seeking to provoke excessive responses from the United States. This leads to the case which concerns China.

The South China Sea Arbitration (Philippines v China)

The South China Sea Arbitration of 2016 was the result of an arbitral proceeding brought by the Philippines against China. It clarified the status of the various features in the South China Sea as rocks which may have a territorial sea, or low tide elevations which may not. It explicitly did not address sovereignty over the features. Even though primarily focussed on the maritime entitlements of the various rocks and reefs, the Award also addressed some questions in relation to the use of force. They concerned navigational rights in the vicinity of the rocks, as well as occupied low tide elevations which generate no territorial sea.

The Arbitral Tribunal analysed three particular incidents involving Chinese and Philippine vessels and made some clear statements about forcefill Chinese actions that were unlawful. It rejected the practice of Chinese vessels manoeuvering at high speed in close proximity to Philippines vessels as dangerous and contrary to the Collision Regulations, to which China is party.[11] Similarly, the tribunal also criticised Chinese attempts to ram Philippines vessels. Notably however, the Tribunal did not state that China, or the Philippines, was unable to use force to prevent non-innocent passage. Chapter 4 will address these issues in more detail. Also, the Tribunal did not reject the Chinese practice of escorting Chinese fishing vessels as such. It found the conduct of the Chinese government in facilitating fishing in the Philippine exclusive economic zone to be a violation of the rights of the Philippines, but the escort was not in itself subject to question. This is an issue which Chapter 6 will address further. Finally, as Chapter 2 will discuss in more detail, the Tribunal decided that it was precluded from dealing with the blockade of the Philippine Marine garrison at Second Thomas Shoal as it was subject to the military activities exception to dispute settlement under article 298( 1 )(b) of the 1982 Convention. This book will therefore refer to the South China Sea Award on a number of questions.

Conclusion – collected rules from case law on the use of force at sea

This analysis of the relevant cases means that it is possible to discern a number of specific rules or principles as follows, broadly, in order from the more general to the more particular:

i Considerations of humanity apply at sea;

ii Warships have a right of innocent passage;

iii Warships can defend themselves when asserting a navigational right;

iv Self-defence is limited to what is necessary and proportional;[12]

v Self-defence may not amount to a reprisal;

vi Some ‘less grave forms of the use of force’ may not amount to an aimed attack, and may give rise to forcefill countermeasures;

vii High speed manoeuvring in close proximity to other vessels, as well as ramming, is a potential threat to life and can be contrary to the Collision Regulations;10

viii Indiscriminate mining of straits used for international navigation is unlawfiil in peace or war, as is mining of other waters without notice to shipping; (Given the concern to prevent damage or disruption to the freedom of maritime commerce, this may extend to other obstructions to shipping, which could include propeller fouling devices, submarine and toipedo nets, or booms.)

ix Escort of vessels is not in itself unlawfiil. but it is a matter of the purpose of the escort and the extent to which it may be able to use force.

The rules derived from the cases are usefill but still leave many questions. It will be the task of the rest of this book to address those questions, applying these rules as a starting point. Some of the more difficult questions include whether a warship using force in self-defence is operating below the threshold of an aimed attack within the meaning of article 51 of the UN Charter. This has significant implications for the extent to which a warship may use force - whether only against those targets w'hich threaten it or, instead, against an adversaries’ forces more generally. Another difficult question is whether the transit passage regime through international straits from the 1982 Law of the Sea Convention makes a difference to the conclusions to be drawn the Corfu Channel Case: would it now' be lawfill to clear mines blocking an international strait w'here a coastal state was unwilling or unable to do so? Whilst the law' is far from comprehensive on questions of the use of force and the freedom of navigation of warships, the relevant cases do at least provide some helpfill guidance.

  • [1] Corfu Channel Case 12; A broader narrative events can be found in Graham Wilson, ‘Corfu Incident: HM Ships Saumarez and Volage in the Corfu Straits 22 October 1946’ (July/ September 1997) Journal ofthe Australian Naval Institute 45; see also 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 117,132-134 2 Corfu Channel Case 10 3 Ibid. 27 4 Ibid.
  • [2] 2 IS Ibid. 31; O’Connell put tins into the context of the relationship between the United Kingdom and Albania at the tune, stating that ‘the fact that the ships were closed up did not present an ostensible threat to the coastal state’, in DP. O’Connell (ed), The Influence of Law on Sea Power (Naval Institute Press, 1975) 104, and discusses self-defence of warships at 70-82, 172-174; he also discusses the Corfu Channel Case, with less analysis, in The International Law of the Sea: Volume I (Clarendon Press, 1982) at 306-314; for a view sympathetic to the British assertion of the right of passage see James Kraska and Raul Pedrozo, International Maritime Security Law (Martinus Nijhoff Publishers, 2013) 219-222; also C.J. Colombos, The International Law of the Sea (6th ed, David McKay Company, 1967) 471—472; for a more equivocal view see also Ian Brownlie, International Law and the Use of Force by States (Oxford, 1963) 283-289
  • [3] Corfu Channel Case 28 2 Ibid. 36 3 Nicaragua 36
  • [4] Ibid. 101-102 2 Ibid. 117 3 Saiga, paras 137 and 142 4 Saiga, para 157 5 Saiga, paras 155-156
  • [5] See discussion of the customary international law on the use of force in maritime law enforcement in Cameron Moore, ‘Use of Force in Maritime Regulation and Enforcement’, in Rohm Warner and Stuart Kaye (eds), International Research Handbook on Maritime Regulation and Enforcement (Routledge, 2015) 27-40; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009) 271-282 2 signed in Tehran on 15 August 1955 and entered into force on 16 June 1957 3 Oil Platforms Case 179 4 Ibid. 218 5 Ibid.
  • [6] Oil Platforms Case 17: the Court noted that it was not disputed between the parties ‘that neutral shipping in the Persian Gulf was caused considerable inconvenience and loss, and grave damage, during the Iran-Iraq war’. 24 2 Ibid. 18; Myron Nordquist and Margaret Wachenfeld saw the US attack on the Iranian vessel Iran Ajr, which was laying mines m the Gulf, as a lawful act in self-defence of US-flagged shippmg in “Legal Aspects of Reflagging Kuwaiti Tankers and Laying of Mmes in the Persian Gulf,” (1988) 31 German Yearbook of International Law 138,159-164
  • [7] For more detail see Oil Platforms Case 28-42 2 More detail on the US evidence that this was likely to be a moored Iranian mine is at ibid. 71 3 Ibid. 18-19 4 For more detail on the attacks see ibid. 25 and 26 5 Ibid. 198-199 6 Ibid. 194 7 For more details see ibid. 31-32 8 Ibid. 26
  • [8] Ibid. 193-194 2 Ibid. 196 3 Ibid. 198 4 Ibid. 5 Ibid. 6 Ibid. 199
  • [9] Ibid. 295 2 Ibid. 234-235 3 Ibid. 288 4 Ibid. 263 5 Ibid. 235 6 Ibid. 331-332; see Lindsay Moir, Reappraising the Resort to Force: International Law, Jus AdBellum and the War on Terror (Hart, 2010) 117-130
  • [10] Ibid. 333 2 Brad Lendon, ‘In 1988, a US Nary Warship Shot Down an banian Passenger Plane in the Heat of Battle’ CNN (online), 10 January 2020 iniddleeast/u'an-an-fhght-655-us-inilitai-y-mtl-link /index.html 3 Ibid. 4 Oil Platforms Case 17 5 South China Sea Arbitration 119-261 6 Ibid. 58-59
  • [11] Ibid. 435; Convention on the International Regulations for Preventing Collisions at Sea, concluded 20 October 1972,1050 UNTS 1976 (entered into force 15 July 1977) (‘ Collision Regulations') 2 Ibid. 420-421 and 435 3 Ibid. 296-297 4 Ibid 456 5 Corfu Channel Case 22; Saiga, paras 155-156 6 Corfu Channel Case 28 and LOSC art 17 7 Ibid. 30
  • [12] Ibid. 31; Nicaragua 196 2 Nicaragua 295 3 Ibid. 117, 331-333 4 South China Sea Arbitration 420-421 and 435 5 Corfu Channel Case 22; Nicaragua 101-102 6 South China Sea Arbitration 296-291
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