Operational Law in International Straits and Current Maritime Security Challenges 9783319727172, 9783319727189, 2018935285

Table of contents :
Contents
Introduction: Challenges in Operational Maritime Law
1 Introduction
2 Today´s Maritime Challenges
2.1 Maritime Security
2.2 Persons
2.3 Non-international Armed Conflict
3 Traditional Conflict Is Not a Thing of the Past
4 Operational Maritime Law
References
Part I: International Straits
Minelaying and the Impediment of Passage Rights
1 Introduction
2 The Law of International Armed Conflict on Naval Mines and Passage Rights
2.1 The 1907 Hague Convention VIII and the Freedom of Navigation
2.2 Subsequent Practice and Developments
2.2.1 The Two World Wars
2.2.2 Post-1945 Mining During International Armed Conflicts
2.2.3 Some Preliminary Conclusions
2.3 Belligerent Minelaying and Passage Rights: Contemporary Law
2.3.1 Access to and from Neutral Waters
2.3.2 Belligerent National Waters and the Right of Innocent Passage
2.3.3 Transit Passage and Archipelagic Sea-Lane Passage Through Belligerent Waters
2.3.4 Neutral Navigation in International Waters
2.4 Notification
2.5 Demining Operations by Neutral States
3 Peacetime Mining
3.1 National Positions on Peacetime Mining Operations
3.2 The Corfu Channel Judgment
3.3 Peacetime Mining and UNCLOS Navigational Provisions
3.3.1 Innocent Passage
3.3.2 Transit Passage and Archipelagic Sea-Lane Passage
3.3.3 Freedom of Navigation in High Seas Areas
4 Concluding Remarks
References
``Left of Splash´´ Legal Issues Related to the Use of Force to Counter Mining in the Strait of Hormuz
1 Foreword by Rear Admiral (Ret.). Kenneth M. Perry, U.S. Navy, Former Vice Commander of Naval Mine and Anti-Submarine Warfare...
2 Could a Nation Maintain a Persistent MCM Presence in the SOH?
3 Could Iran Lawfully Mine Its TTS?
4 Could Iran Lawfully Mine the SOH?
5 Is Iranian Mining ``An Act of War?´´
6 Are There Any Rules Concerning Responses to Unlawful Mining?
7 Could a Nation Use Force If Mines Are Emplaced Directly in the Path of a Vessel?
8 Could a Nation Use Force After a Mine Strike When the Mine Was Not Emplaced ``Directly in the Path´´ of a Transiting Vessel?
9 During Peacetime, Could a Nation Use Force to Counter Mining in Sea Lanes Leading Toward the SOH and Its Approaches?
10 During Peacetime, Could Nations Use Force Against Minelaying Assets ``Left of Splash´´ or ``In the Act of´´ Mining the SOH ...
11 Could Nations Use Force If Iran Did Mine the SOH or Its Approaches?
References
International Straits: Peacetime Rights and Obligations
1 Introduction
2 The True Nature of the Right of Transit Passage
3 Where to Pass through
4 Territorial Scope of the Right of Transit Passage
5 Duty to Render Assistance
6 The Problematic Notion of `Normal Mode´: How to Pass Through
7 The Right of Self-Defence During Transit Passage
8 Conclusion
References
Belligerent Rights and Obligations in International Straits
1 Preliminary Remark
2 Findings
2.1 The Right of Passage
Offensive Operations
Base for Naval Operations
No Sanctuary
Self-Defence
2.2 Passage Right Scenarios
2.3 Belligerent Waters
2.4 Neutral Waters and Neutral States´ Rights
3 Recommendations
References
The Legal Status of Greater and Lesser Tunbs Islands Including a Brief History of the Legal Dispute
1 Introduction
2 Geographical Setting and Strategic Importance
3 History of the Legal Dispute from the Perspective of Both States
3.1 General Background
3.2 The Perspective of Iran
3.2.1 The Historical Supremacy of Iran in the Gulf Region and Its State Sovereignty Over the Islands
3.2.2 The Qawasim As Persian Subjects
3.2.3 The Doctrine of Revocation
3.2.4 A Package Deal with Great Britain
3.3 The Perspective of the UAE
3.3.1 A Priority in Occupation and Control
3.3.2 The Qawasim Were Independent Rulers Exercising Their Sovereignty Over the Islands
3.3.3 The Emirates As Protected States Were Subjects of Public International Law
3.3.4 Persian Occupation of the Islands was Temporary
4 Legal Assessment
4.1 The Factual Challenges Inherent to the Dispute Over the Islands
4.2 The Assessment of the Arguments of the UAE and Iran
4.3 The Actions of Iran and the Prohibition of Threat or Use of Force in International Relations
4.4 The Situation of the Tunbs Under the Rules Concerning the Determination of Borders in Public International Law
4.5 A Derivative Acquisition of the Islands: Annexation and Article 2 (4) of the UN Charter
4.6 Possible Modes of Settling the Dispute Between the UAE and Iran
5 Conclusion
References
Part II: Maritime Safety and Maritime Security
International Law and Search and Rescue
1 Introduction
2 Overview: Global Search-and-Rescue System
2.1 Search-and-Rescue Regions
2.2 Rescue Coordination Center (RCC)/Rescue Subcenter (RSC)
2.3 Obligations of the Shipmaster and the Coastal State: Persons Rescued at Sea
2.3.1 Shipmaster
2.3.2 Coastal State
2.4 Mixed Migration by Sea
3 Assistance Entry
3.1 Scenario A
3.2 Scenario B
3.3 Scenario C
3.4 Scenario D
3.5 Scenario E
3.6 Scenario F
3.7 Scenario G
4 Forcible Evacuation for SAR
5 Summary
References
A Review of Selected Measures for Reducing Potential Conflict Among Naval Vessels in the South China Sea
1 Introduction
2 The Meaning of Conflict
2.1 `Armed Conflict´ and `Armed Attack´
3 Regulation of Activities at Sea
4 The Impact of the 1982 Law of the Sea Convention
5 The Maritime Environment
6 Implications for Naval Operations in the South China Sea
7 Conclusion
References
International Instruments and Court Rulings
What Went Wrong When Regulating Private Maritime Security Companies
1 Introduction
2 The Private Security Regulatory Initiatives That Were Rejected
2.1 The Montreux Document
2.2 The International Code of Conduct
2.3 The ICoC Association
2.4 ANSI/ASIS PSC.4 Standard
2.5 None of the Above
3 What Has Been Done to Regulate PMSCs
3.1 IMO Circulars
3.2 ISO 28007
3.3 Nongovernmental Initiatives
4 Private Maritime Security Beyond Transits
4.1 The Current State of Transits and Decline in the Industry
4.2 Other Private Maritime Security
5 Conclusion
References
`in These Exceptional and Specific Circumstances´: The EU Military Operation Against Human Smuggling and Trafficking in the So...
1 Introduction
2 EU Mandate of EUNAVFOR MED Operation SOPHIA
3 UN Security Council Resolution 2240(2015)
4 Flag State Consent and UNSCR 2240(2015)
5 Rescue of Persons at Sea
6 Disembarkation of Rescued and Apprehended Persons
7 Collection and Transition of Personal Data
8 Use of Force and the Rules of Engagement
9 Conclusion
References
From Piracy to Palermo: The Changing Challenges of Maritime Crime
1 Introduction
2 The Wave of Piracy
3 Resolution 2240
4 Human Trafficking vs Migrant Smuggling
5 Combatting Transnational Crime Under Resolution 2240
6 Combatting Transnational Crime Under a Future Resolution
7 Conclusion
References
Part III: Law of Armed Conflict
Prize Law and Contraband in Modern Naval Warfare
1 Introduction
2 Definition of Prize and Contraband
3 History
4 Contemporary Public International Law
4.1 Existence of an Armed Conflict
4.2 Areas of Naval Warfare
4.2.1 Land Territory and Internal Waters, Territorial Sea
4.2.2 High Seas, Exclusive Economic Zone and Continental Shelf
4.2.3 The Final Theatre of Naval Warfare
4.3 Subject to Prize Law and the Law of Contraband
4.3.1 Civilian Objects
4.3.2 Neutral or Enemy Character of Vessels and Aircraft
4.3.3 Enemy or Neutral Character of Goods
4.4 Right to Visit, Search and Diversion, Capture/Seizure
4.4.1 Entitlement to Exercise the Rights of Visit, Search and Diversion, Capture/Seizure and Condemnation
4.4.2 Visit, Search, Diversion
4.4.3 Measures of Supervision
4.4.4 Resistance to Visit and Search
4.4.5 Capture/Seizure of Enemy Vessels or Aircraft
4.4.6 Capture/Seizure of Cargo on Board of Enemy Vessels or Aircraft
4.4.7 Capture/Seizure of Neutral Vessels or Aircraft
4.4.7.1 Carriage of Contraband
4.4.7.2 Un-neutral Service
4.4.7.3 Consequences of the Exceptional Liability to Capture of Neutral Vessels or Aircraft
4.4.8 Capture/Seizure of Cargo on Board of Neutral Vessels and Aircraft
4.5 Prize Court Proceedings
4.5.1 The General Rule of Prize Court Proceedings
4.5.2 Consequences of Improper Exercise of Rights
5 Concluding Remarks
References
The Right of Visit of Foreign-Flagged Vessels on the High Seas in Non-international Armed Conflict
1 Introduction
2 Three Theories for Ship Boarding During a NIAC
2.1 Theory One: Self-Defence As a Basis for a Single-Action Ship Boarding
2.2 Theory Two: A Self-Defence Right of Visit
2.3 Theory Three: The Vessel As Military Objective
3 Purpose of a NIAC Visit
4 Advantages
5 Concerns
6 Concluding Remarks
References
Occupation of Sea Territory: Requirements for Military Authority and a Comparison to Art. 43 of the Hague Convention IV
1 Legal Basis and Scope: Law of Occupation and Sea Territory
1.1 Legal Basis
1.2 Scope and Applicability of the Law of Occupation
1.2.1 The Hague Convention (IV) and the Hague Regulations
1.2.2 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV)
1.2.3 Additional Protocol I (AP I)
1.2.4 Human Rights Law
1.2.5 UN Security Council Resolutions
2 Military Authority: Requirements and Application to Sea Territory
2.1 Meaning of Military Authority
2.2 Requirements and Scope
2.2.1 Requirements
2.2.2 Effective Control in the Context of Belligerent Occupation
2.2.3 Scope and Limits of Military Authority
2.3 Transfer and Scope of Military Authority Over Sea Territory
2.3.1 Authority and Effective Control Over Sea Territory
2.3.2 Scope
3 Rights and Duties of the Occupying Power: Reference and Transfer of Art. 43 of Hague Convention IV
3.1 Art. 43 of Hague Convention IV
3.1.1 Public Order and Life
3.1.2 Legislation and the Existing Legal System
3.2 Transfer and Adaption of Art. 43 Over Occupied Sea Territory
4 Conclusion
References
Books and Articles
Judgments and Court Decisions
Treaties and Resolutions