Abstract
This chapter analyses self-defence as a legal basis for conducting maritime interception operations. Generally speaking, there are two manners in which way self-defence is argued as a legal basis. The first manner is as a legal basis for larger scale naval operations , among which the naval forces could also perform maritime interception operations. The second is that self-defence is used as a direct legal basis to board foreign-flagged vessels. The latter is often discussed in the context of effectively dealing with terrorist threats and possible weapons of mass destruction at sea. Self-defence in this regard is argued in an anticipatory manner.
As a practical guideline naval planning staffs should take it for granted that the employment of force…will be regarded as overstepping the boundaries of the legitimate, except when resorted to in self-defence . The real problem is what is meant by self-defence against an armed attack?
—D. P. O’Connell, The Influence of Law on Seapower
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
O’Connell 1975, p. 54.
- 2.
- 3.
UN Doc A/3159, YILC 1956 vol. II. Comment 4 to Article 46, p. 284. Comment 4 is worthwhile quoting here because it remains of relevance to this day. It reads:
The question arose whether the right to board a vessel should be recognized also in the event of a ship being suspected of committing acts hostile to the state to which the warship belongs, at a time of imminent danger to the security of that state. The commission did not deem it advisable to include such a provision mainly because of the vagueness of terms like ‘imminent danger’ and ‘hostile acts’, which leaves them open to abuse.
- 4.
Syrigos 2006, p. 163.
- 5.
Somers 2010, p. 291.
- 6.
Next to these conditions, there is also a procedural condition that obliges to inform the UNSC that use of force is used in the context of self-defence . This procedural obligation is explicitly stated in Article 51 of the UN Charter .
- 7.
- 8.
- 9.
- 10.
Van Steenberghe 2010, p. 207.
- 11.
In the Oil Platform case, the ICJ dealt with the case of the US attacking a number of Iranian oil platforms. The attacks came as a reaction to a missile attack during the Iran-Iraq War that caused damage to the Kuwaiti owned but US-reflagged oil-tanker vessel Sea Isle City in 1987, and the damage caused by mines, a year later, to the warship USS Samuel B. Roberts . The US chose to attack the oil platforms because it was believed that the platforms collected and reported intelligence concerning passing vessels, acted as military communication link for Iranian naval forces and as military staging bases. The ICJ noted that although in the specific circumstances of the incident with the USS Samuel B. Roberts being struck by a mine, the Court considered that attacking the platforms was not justifiable in response to an armed attack, the Court did, however, state it does not exclude the possibility that; ‘the mining of a single military vessel be sufficient to bring into play the “inherent right of self-defense”’. See ICJ, Oil Platform (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, 161 (Oil Platforms case).
- 12.
Gill 2007, p. 125.
- 13.
Gill 1990, p. 133.
- 14.
Westra 2007, pp. 113–114.
- 15.
Fielding 1997, pp. 46–47; Fielding 1993; McNeill 1991, p. 641. The announcement ran as follows (quoted from Robertson 1991, p. 295):
U.S. Forces participate in a multinational effort that will intercept ships carrying products and commodities that are bound to and from Iraq and Kuwait. This action is consistent with UN Security Council Resolution 661, which imposed mandatory sanctions on trade with Iraq and occupied Kuwait.
See also a more recent comment by Heintschel von Heinegg 2015, p. 942 on this episode that underlines this view.
- 16.
Gill 2002, p. 9.
- 17.
Ruys 2010, pp. 419–462.
- 18.
S/2006/515, 12 July 2006. The latter states:
Israel thus reserves the right to act in accordance with Article 51 of the Charter of the United Nations and exercise its right of self-defence when an armed attack is launched against a Member of the United Nations. The State of Israel will take the appropriate actions to secure the release of the kidnapped soldiers and bring an end to the shelling that terrorizes our citizens.
- 19.
- 20.
Becker mentions one action that occurred in July 2002 against Al Qaida terrorists, which was according to him presumably conducted within the context of OAE . Although it could have been warships from NATO-members, considering that the area of operations did not go beyond the Suez Canal, I hesitate to believe that the action was taken under NATO-command. See Becker 2005, p. 152.
- 21.
- 22.
Hodgkinson 2007.
- 23.
Papastavridis 2011, pp. 45–69.
- 24.
In a letter to the UN-Secretary General (4 January 2002, A/56/766) Israel told the UNSC the following:
The attempt by the Palestinian Authority to smuggle this unprecedented number of weapons is a flagrant violation of agreements reached between the parties and is an ominous sign of Palestinian intentions to continue their terrorist campaign well into the future. These weapons were capable of striking deep into Israel and their seizure constitutes a vital act of self-defence and an important counter-terrorist measure, that has saved Israeli civilians from an untold number of terrorist attacks against Israeli population centres.
- 25.
Williams 2014.
- 26.
Klein 2011, p. 270.
- 27.
Joyner 2015, p. 1043.
- 28.
Dinstein 2003, p. 184.
- 29.
Gill 2007, p. 151.
- 30.
Ruys 2010, pp. 320–321.
- 31.
Akande and Liefländer 2013, p. 565.
- 32.
Mordarai et al. 2013, p. 823.
- 33.
ICJ, Nicaragua (merits), para 191.
- 34.
Ruys 2010, pp. 520–524.
- 35.
Guilfoyle 2005, p. 758.
- 36.
Klein 2011, p. 264.
- 37.
Bethlehem 2012, pp. 769–777.
- 38.
Bethlehem 2012, p. 774.
- 39.
See on this practice Trapp (2015), who mentions Al Qaida (2001) and Hezbollah (2006) as examples in which self-defence was used to act against non-state actors who deeds where not attributable to the State they were in (Afghanistan and Lebanon ).
- 40.
- 41.
Schmitt 2013, p. 89.
- 42.
Ahmed 2013, p. 12.
- 43.
- 44.
Heintschel von Heinegg 2010, pp. 389–390.
- 45.
Heintschel von Heinegg 2004, p. 154.
- 46.
See e.g. Pejic 2007, p. 345.
- 47.
- 48.
Kreß 2010, pp. 245–274.
- 49.
Corn 2012.
- 50.
Corn 2012, p. 73.
- 51.
US DoD, DILS, Maritime interception operations, 13 June 2005.
- 52.
- 53.
O’Connell 1970, p. 36. He mentions a French note that contended that the visits were justified by the French based on self-defense.
References
Ahmed D (2013) Defending Weak States Against the “Unwilling or Unable” Doctrine of Self-Defense. Journal of International Law and International Relations 9, pp. 1–37
Akande D, Liefländer T (2013) Clarifying necessity, imminence, and proportionality in the law of self-defense. American Journal of International Law 107, pp. 364–570
Becker M (2005) Shifting public order of the oceans. Harvard International Law Journal 46:1, pp. 131–230
Bethlehem D (2012) Self-defense against an imminent or actual armed attack by non-state actors. American Journal of International Law 106, pp. 769–777
Buchan R (2012) The Palmer Report and the legality of Israel’s naval blockade of Gaza. International and Comparative Law Quarterly 61, pp. 264–273
Churchill R, Lowe A (1999) The Law of the Sea. Manchester University Press, Manchester
Corn G (2012) Self-defense targeting: Blurring the line between the ius ad bellum and the ius in bello. In: Watkin, K, Norris R (eds) International Law Studies 88. Naval War College, Newport RI, pp. 57–92
Dinstein Y (2003) War, Aggression and Self-Defence. Cambridge University Press, Cambridge
Dinstein N (2005) The conduct of hostilities under the law of international armed conflict. Cambridge University Press, Cambridge
Doolin J (2006) The Proliferation Security Initiative. Cornerstone of a new international norm. Naval War College Review 59:2, pp. 29–57
Farrant J (2013) The Gaza Blockade incident and the modern law of blockade. Naval War College Review 66:3, pp. 81–98
Fielding L (1992–1993) Maritime Interception: Centrepiece of Economic Sanctions in the New World Order. Louisiana Law Review 53, pp. 191–1241
Fielding L (1997) Maritime interception and U.N. Sanctions. Austin & Winfield, San Francisco/ London/Bethesda
Fitzgerald M (2008) Seizing weapons of mass destruction from foreign-flagged ships on the high seas under Article 51 of the UN Charter. Virginia Journal of International Law 49:2, pp. 473–506
Garvey J (2005) The international institution imperative for countering the spread of weapons of mass destruction: Assessing the Proliferation Security Initiative. Journal of Conflict and Security Law 10:2, pp. 125–147
Gill T (1990) De Golf crisis. De volkenrechtelijke regels inzake het gebruik van militair geweld. Nederlands Juristenblad 38, pp. 1475–1487
Gill T (2002) The 11th September and the International Law of Military Operations. Vossiuspers, UVA, Amsterdam
Gill T (2007) The Temporal Dimension of Self-Defence: Anticipation, Pre-Emption, Prevention and Immediacy. In: Schmitt M, Pejic J (eds) International Law and Armed Conflict: Exploring the Faultlines - Essays in Honour of Yoram Dinstein. Martinus Nijhoff Publishing, Leiden, pp. 113–157
Guilfoyle D (2005) The Proliferation Security Initiative: Interdiction vessels in international waters to prevent the spread of weapons of mass destruction. Melbourne University Law Review 29, pp. 733–764
Guilfoyle D (2010) The Mavi Marmara incident and blockade in armed conflict. British Yearbook of International Law 81, pp. 171–213
Heintschel von Heinegg W (1995) Visit, search, diversion and capture – condition of applicability. In: Reports and commentaries of the round table of experts on international humanitarian law applicable to armed conflict at sea, Bochum, pp. 1–93
Heintschel von Heinegg W (2004) Current legal issues in maritime operations: Maritime interception operations in the global war on terrorism, exclusion zones, hospital ships and maritime neutrality. Israel Yearbook of International Law 34, pp. 151–178
Heintschel von Heinegg W (2010) Maritime interception/interdiction operations. In: Gill T, Fleck D (eds) The Handbook of the International Law of Military Operations. Oxford University Press, New York, pp. 375–393
Heintschel von Heinegg W (2011) Methods and means of naval warfare in non-international armed conflicts. In: Jacques R (ed) International Law Studies 88. Naval War College Newport RI, pp. 211–236
Heintschel von Heinegg W (2015) Blockade and interdictions. In: Weller M (ed) The Oxford Handbook of the Use of Force in International Law. Oxford University Press, New York, pp. 925–946
Hodgkinson S (2007) Challenges to Maritime Interception Operations in the War on Terror: Bridging the Gap. American University International Law Review 22:4, pp. 853–671
ICJ, Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America) Merits. 27 June 1986
ICJ, Oil Platform (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003
Joyner D (2015) The implications of the proliferation of Weapons of mass destruction for the prohibition of the use of force. In: Weller M (ed) The Oxford Handbook of the Use of Force in International Law. Oxford University Press, New York, pp. 1034–1056
Klein N (2005) The right of visit and the 2005 Protocol on the suppression of unlawful acts against the safety of maritime navigation. Denver Journal of International Law and Policy 35:2, pp. 287–332
Klein N (2011) Maritime security and the law of the sea. Oxford University Press, New York
Kraska J (2010) Rule selection in the case of Israel’s naval blockade of Gaza: Law of naval warfare or the law of the sea? In: Schmitt M (ed) Yearbook of Humanitarian International Law 13, pp. 367–395
Kreß C (2010) Some reflections on the international legal framework governing transnational armed conflicts. Journal of Conflict and Security Law 15:2, pp. 245–274
Kretzmer D (2013) The inherent right to self-defence and proportionality in ius ad bellum. European Journal of International Law 24, pp. 35–282
McNeill J (1991) Neutral rights and maritime sanctions: The effects of two Gulf Wars. Virginia Journal of International Law 31, pp. 631–643
Mordarai G, O’Connell D, Kelly T, Farrant J (2013) The seizure of Abu Anas Al-Libi: An international law assessment. International Law Studies 89, Naval War College, Newport RI, pp. 817–839
Nincic D (2005) The challenge of maritime terrorism: Threat identification, WMD and regime response. The Journal of Strategic Studies 28:4, pp. 619–644
O’Connell D (1970) International Law and Contemporary Naval Operations. British Yearbook of International Law 44, pp. 19–68
O’Connell D (1975) The influence of law on sea power. Manchester University Press, Manchester
Papastavridis E (2011) The right of visit on the high seas in a theoretical perspective: Mare Liberum versus Mare Clausum revisited. Leiden Journal of International Law 24, pp. 45–69
Paust J (2010) Self-defense targeting of non-state actors and permissibility of U.S. use of drones in Pakistan. Journal of Transnational Law and Policy 19:2, pp. 237–280
Pejic J (2007) Unlawful/enemy combatants: Interpretations and consequences. In: Schmitt M, Pejic J (eds) International law and armed conflict: Exploring the faultlines. Martinus Nijhoff Publishing, Dordrecht, pp. 335–355
Robertson H (1991) Interdiction of Iraqi Maritime Commerce in the 1990–1991 Persian Gulf Conflict. Ocean Development and International Law 22, pp. 289–299
Ruys T (2010) ‘Armed attack’, and Article 51 of the UN Charter. Cambridge University Press, Cambridge
Sanger E (2010) The contemporary law of blockade and the Gaza Freedom Flotilla. Yearbook of International Humanitarian Law 13, pp. 397–444
Schmitt M (2008) “Change Direction” 2006: Israeli operations in Lebanon and the International law of self-defense. Michigan Journal of International Law 29:2, pp. 127–164
Schmitt M (2013) Extraterritorial Lethal Targeting: Deconstructing the Logic of International Law. Columbia Journal of Transnational Law 52, pp. 79–114
Scott G (2010) Israel’s seizure of the Gaza-bound flotilla: Applicable laws and legality. Research paper no. 42/2010, Osgoode Hall Law School
Shulman M (2006) The Proliferation Security Initiative and the evolution of the law on the use of force. Houston Journal of International Law 28:3, pp. 771–828
Somers E (2010) Inleiding tot het internationaal zeerecht. Kluwer, Mechelen
Syrigos A (2006) Development on the interdiction of vessels on the high seas. In: Strati A, Gavouneli M, Skourtos N (eds) Unresolved issues and new challenges to the law of the sea. Time before and time after. Publication on Ocean Development 54, pp. 149–202
Trapp KN (2015) Can Non-State Actors Mount an Armed Attack? In: Weller M (ed) The Oxford Handbook of the Use of Force in International Law. Oxford University Press, New York, pp. 679–719
UN (1956) UN Doc. A/3159, Yearbook of the International Law Commission, 1956 vol. II
UN Security Council (2006) UN Security Council, S/2006/515, 12 July 2006
UN SG, 4 January 2002, A/56/766
US DOD, DILS, Maritime interception operations, 13 June 2005
Van Dyke J (2004) The disappearing right to navigational freedom in the exclusive economic zone. Marine Policy 29, pp. 107–121
van Steenberghe R (2010) Self-defence in response to attacks by non-state actors in the light of recent state practice: A step forward. Leiden Journal of International Law 23, pp. 183–208
Walker G (2009) Self-defense, the law of armed conflict and port security. South Carolina Journal of International law and Business 5:2, pp. 347–410
Waxman M (2013) Regulating resort to force: form and substance of the UN Charter regime. European Journal of International Law 24:1, pp. 151–189
Westra J (2007) International Law and the Use of Armed Force. Routledge, London/New York
Williams D (2014) Israel seizes arms shipment. www.reuters.com/article/us-israel-gaza-ship-idUSBREA240X720140305. Accessed 22 March 2017
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2018 T.M.C. Asser Press and the author
About this chapter
Cite this chapter
Fink, M. (2018). Self-Defence and Maritime Interception. In: Maritime Interception and the Law of Naval Operations. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-249-1_6
Download citation
DOI: https://doi.org/10.1007/978-94-6265-249-1_6
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-248-4
Online ISBN: 978-94-6265-249-1
eBook Packages: Law and CriminologyLaw and Criminology (R0)