Law Commons^™

Naval War College Situation: Conflict In Gregoria And Tanaka: The Law Of Targeting, Project Director: Michael N. Schmitt

International Law Studies

This article addresses complex law of armed conflict (LOAC) issues posed by a scenario with eight “situations” examined during a tabletop workshop conducted by the U.S. Naval War College’s Stockton Center for International Law. Participants included judge advocates from the United States and uniformed legal advisors from Israel, the Netherlands, and the United Kingdom, all of whom had extensive experience providing legal advice on targeting. Also included were academics with particular expertise in the law of armed conflict. The situations were drafted to reflect situations some of the participants had faced in international or non-international armed conflict.

The scenario involves …

Manifestly Unlawful: Why Russian Military Commanders Must Disobey A Nuclear Launch Order Against Ukraine, Christopher J. Hart

International Law Studies

Applying the international legal framework governing the use of nuclear weapons to the facts of the war in Ukraine leads to a clear answer to the question of whether the use of nuclear weapons in Ukraine by Russia would be legal. While the 1996 International Court of Justice Advisory Opinion on the Threat or Use of Nuclear Weapons did not conclusively decide whether the use of nuclear weapons was per se illegal, by applying the legal framework articulated by the International Court of Justice to the facts of Russia’s war against Ukraine it is clear that any conceivable use of …

Equitable Considerations In The Delimitation Of The Continental Shelf, Murat Sümer

International Law Studies

The delimitation of the continental shelf is often regarded as one of the most controversial inter-State delimitation disputes due to the significant advantages it can offer to coastal States. Since the conception of the continental shelf regime, i.e., the 1945 Truman Proclamation, equitable considerations have been central to the delimitation of this zone, which has been consistently reflected in the jurisprudence and in UNCLOS.

As an umbrella instrument with a framework character, UNCLOS usually suffices to stipulate the fundamental norms and principles. This was also the case for the delimitation of the continental shelf. Article 83, whilst not prescribing a …

Earth’S First Line Of Defense: Establishing Celestial Body-Based Planetary Defense Systems, Yang Liu

International Law Studies

This article discusses legal issues related to the establishment and use of celestial body-based planetary defense systems (CBPDS). It first finds that the application of current international space law to analyze the lawfulness of CBPDS can lead to many ambiguities. Accordingly, this article proposes a new construction of Article IV of the Outer Space Treaty to balance the need to develop celestial body-based planetary defense capacities and the risk of militarization of outer space. According to this article’s approach, neither the “exclusively for peaceful purposes” clause nor the clause prohibiting “military bases, installations and fortifications” on the moon and other …

Awakening The Law Of Contraband In The Russia-Ukraine Conflict, Martin Fink

International Law Studies

Following the collapse of the Black Sea Grain Initiative, both Russia and Ukraine announced measures against shipping that may have introduced counter-contraband operations into the maritime dimension of the Russia-Ukraine conflict. The law of contraband, which is at the heart of the law of naval warfare, regulates such operations. The law of contraband has, however, not been often used in current conflicts and some of its details are not crystalized as generally accepted law. Awakening this instrument in the current conflict brings questions for both belligerents and non-State parties, some of whom have adopted a position of qualified neutrality that …

Law Enforcement Measures Against Chinese Maritime Militia, Kentaro Furuya

International Law Studies

This article undertakes a comprehensive legal assessment of Chinese maritime militia vessels and their operations, employing a law enforcement perspective as the analytical lens. During peacetime, those vessels engage in fishing and low-intensity military activities but during armed conflict they transition to tasks like reconnaissance. Notably, these maritime militias are frequently deployed in what is commonly termed as "gray zone" scenarios, which lack a clearly defined designation as either peacetime or armed conflict. Their principal objective lies in asserting territorial claims without resorting to full-scale armed conflict. This article delves into an exploration of the legal status accorded to these …

Japanese Legal Challenges In Rescuing Nationals Abroad, Yurika Ishii

International Law Studies

This article explains Japanese legal challenges in rescuing its nationals abroad and analyzes the mechanisms that limit Japanese Self-Defense Force responses to potential crises. The scope of analysis encompasses Japan’s national security laws, defense policies, and engagement in bilateral and multilateral cooperation. It provides noncombatant evacuation operation case studies to explore collaboration between the rescuing State, the host State, and third parties.

The article outlines Japanese laws and policies regarding the Self Defense Force’s mandate to rescue Japanese nationals abroad. It focuses on details of current legislation that provide authority and limitations for the operation. It will also track the …

Does International Humanitarian Law Confer Undue Legitimacy On Violence In War?, Kieran R.J. Tinkler

International Law Studies

International humanitarian law is lauded as a civilizing force that seeks to limit the effects of war for humanitarian reasons. There is, however, an increasing sense that IHL has facilitated rather than restrained military operations by conferring undue legitimacy on violence in war. This article focuses on the nature of the relationship between legitimacy and IHL to ascertain whether this is indeed the case. It concludes that, while IHL alone cannot confer "normative legitimacy" on battlefield conduct, it does frame "empirical legitimacy." Whether such legitimacy is unwarranted is, ultimately, best judged by reference to morality. Yet insistence on the pre-eminence …

China’S New Law On Foreign Relations: Transforming The Rules-Based International Order With Chinese Characteristics, Raul (Pete) Pedrozo

International Law Studies

In 2023 China adopted a comprehensive Law on Foreign Relations. Although the law is intended to shape China’s diplomatic relations and its cultural, economic, and other exchanges, as well as China’s relations with the United Nations and other international organizations, implementation of the law will be guided by (inter alia) Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era. The law makes clear that China’s foreign relations will be conducted to uphold its system of socialism with Chinese characteristics, safeguard its sovereignty, unification and territorial integrity, and promote its economic and social development. This revisionist “rule by …

The Legal Boundaries Of (Digital) Information Or Psychological Operations Under International Humanitarian Law, Tilman Rodenhäuser

International Law Studies

“Information operations” or “psychological operations” have long been part of armed conflicts. Among Western militaries, they are commonly understood as the employment of communication or other means to influence the views, attitudes, or behavior of adversaries or civilian populations to achieve political and military objectives. Chinese military strategy describes “psychological offense and defense” as “a combat action that uses specific information and media to influence the psychology and behavior of the target object through rational propaganda, deterrence and emotional guidance based on strategic intentions and combat missions.” Likewise, Russian military doctrine elaborates on concepts such as “psychological warfare” and on …

Prisoner Of War Status And Nationals Of A Detaining Power, W. Casey Biggerstaff, Michael N. Schmitt

International Law Studies

This article examines whether a Detaining State is obliged to recognize prisoner of war status for its own nationals under Article 4A of the 1949 Geneva Convention III. It begins with an assessment of that article from the perspective of established principles for construing treaty provisions. It then adds context to that assessment by examining relevant scholarship and State practice regarding its prescriptions before and after the Convention’s negotiation and adoption. Although it concludes that denying prisoner of war status to a national of the Detaining Power is the more persuasive interpretation of Article 4A, it concludes by highlighting the …

The Strategic Use Of Ransomware Operations As A Method Of Warfare, Jeffrey Biller

International Law Studies

This article examines the potential use and legal limitations of ransomware to achieve strategic effects in armed conflicts. Ransomware is defined here as the temporary encryption of data until some pre-condition is met to release the encryption. The article focuses on international law as applicable to a State’s use of ransomware against another State, where both are parties to an existing international armed conflict. The author finds that international humanitarian law does not currently prohibit most uses of ransomware against non-military related targets in armed conflicts. While the encryption of data may be a legal violation when it inhibits the …

Adjusting The Aperture: The International Law Case For Qualifying Unmanned Vessels As Warships, Malgorzata Materna

International Law Studies

A number of stakeholders in the international community have advocated for the establishment of restrictions on the development and acquisition of unmanned vessels capable of contributing to naval warfare. These efforts are often based on the notion that the law did not anticipate the existence and use of unmanned vessels, and therefore the drafters of applicable legal frameworks—including the longstanding international law definition of a “warship”—did not consider them. However, this article evaluates, element by element, how unmanned vessels can, should, and already do meet the requirements for the warship designation under international law, based on a reading compatible with …

The Black Sea Grain Initiative: Russia’S Strategic Blunder Or Diplomatic Coup?, Raul (Pete) Pedrozo

International Law Studies

On July 22, 2022, Ukraine, the Russian Federation, Türkiye, and the United Nations signed a groundbreaking agreement to allow for the safe transport of grain, related foodstuffs, and fertilizer from three Ukrainian ports to global markets. Concurrently, a second (lesser known) agreement was concluded between the United Nations and Russia that would allow the unimpeded export of Russian food and fertilizer (including raw materials to produce fertilizers) to world markets. These agreements were hailed as a critical solution for the impending global food crisis and the safety and security of neutral shipping in the Black Sea resulting from the Russia-Ukraine …

Anatomy Of China’S Maritime Strategy: Threatening The Maritime Order Through Its National Legislation And Self-Centered Interpretation Of Unclos, Shigeki Sakamoto

International Law Studies

While the 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes an objective framework for the coordinated handling of the use of the sea by States in the exercise of their legislative, judicial, and executive powers, China’s legislative bodies, in enacting domestic laws for the fulfillment of treaty obligations, distort obligations in its domestic laws to secure their own national interests. For example, Article 6.2 of China’s Territorial Sea Law violates articles of UNCLOS by denying the right of innocent passage. In addition, China is extending its jurisdiction over security to the contiguous zone with Article 13 …

Maritime Security Governance: Indonesia, Malaysia, And Singapore’S Approach Towards The Proliferation Security Initiative, Sumathy Permal

International Law Studies

Maritime security governance of a strategic strait is a unique exercise that presents formidable complexity for States bordering the strait. These waterways often have choke points the proper management of which is critical for the safe passage of commercial and military vessels. The focus of this article is on the Straits of Malacca (SOM) as a strategic maritime passage that is subject to multiple interests involving governance, military, and commercial aspects. This article seeks to examine maritime security governance approaches by Indonesia, Malaysia, and Singapore towards the Proliferation Security Initiative (PSI).

The littoral States bordering the SOM bear the responsibility …

The Newport Manual On The Law Of Naval Warfare, James Kraska, Raul "Pete" Pedrozo, David Letts, Wolff Heintschel Von Heinegg, Rob Mclaughlin, James Farrant, Yurika Ishii, Gurpreet S. Khurana, Koki Sato

International Law Studies

The Newport Manual on the Law of Naval Warfare is the first effort to restate the law of naval warfare as a purely lex lata exercise since 1955. It is designed to provide a practical guide for commanders and seafarers, lawyers and officials, and educators and students. In doing so, the Manual also factors in the developments in warfighting technologies in recent decades, which have significantly influenced the nature of war at sea.

Should Have Known Better? The Standard Of Knowledge For Command Responsibility In International Criminal Law, Roee Bloch

International Law Studies

The criminal doctrine of command responsibility has a rich legal history, which makes it a widely recognized, if unsettled, concept of international criminal law. This article focuses on a key element of command responsibility: the commander’s knowledge of a subordinate's crimes. This article argues that current customary law instructs to apply a standard of actual knowledge of the commander, rather than the lower standard of constructive knowledge. The article reaches this conclusion by observing the primary shaping factor of international law—State behavior. Through the example of six diverse legal systems, the article demonstrates how the approach of legislative, executive, and …

Russia’S Attack On Ukraine: The Montreux Convention And Turkiye, Yücel Acer

International Law Studies

The straits of Çanakkale and İstanbul and the Sea of Marmara, known as the Turkish Straits, together constitute a single waterway that connects the Black Sea to the Mediterranean and the rest of the world's oceans. These maritime passages have always been significant enough to constitute the subject of power struggles between major powers and has therefore been a subject of various international regulations.

The existing international accord regulating the passage though the Turkish Straits is the 1936 Montreux Convention on Straits. The Convention establishes the right to freedom of passage for all ships. It also addresses the security concerns …

Building Capacity In The Law Of The Sea: The Imo International Maritime Law Institute’S Experience, Ángeles Jiménez García-Carriazo

International Law Studies

Although the United Nations Convention on the Law of the Sea (UNCLOS) does not make any express reference to capacity-building, scientific and technological development is a centerpiece of the Convention. In 1982, UNCLOS established a comprehensive legal framework for ocean-related activities with a latent and inexorable link to capacity-building through the transfer of technology, scientific and technical assistance, knowledge sharing, and cooperation and collaboration. Building capacity in the law of the sea enables States to benefit from the conservation and sustainable use of the oceans and seas and their resources. In the absence of expertise to incorporate and effectively implement …

“Nationals” At Forty: From An Undefined Unclos Term To Due Diligence Obligations On The State Of Nationality To Combat Iuu Fishing, Arron N. Honniball, Valentin J. Schatz

International Law Studies

Illegal, unreported and unregulated (IUU) fishing represents a global common concern, incorporating large-scale and highly mobile environmental, economic, and sometimes criminal, concerns. IUU fishing can result in dysfunctional fisheries governance, including through the non-application of relevant conservation and management measures. Non-application results, in part, from both incomplete implementation and insufficient enforcement by flag, coastal, port, and market States, and the States of nationality. This article focuses on the State of nationality that may exercise territorial and extraterritorial prescriptive jurisdiction on the basis of the active personality principle of jurisdiction. Firstly, global instruments have long held the State of nationality as …

Aid And Assistance As A “Use Of Force” Under The Jus Ad Bellum, Michael N. Schmitt, W. Casey Biggerstaff

International Law Studies

Although the prohibition of the use of force is a cornerstone of international law, our understanding of what constitutes a “use of force” under Article 2(4) of the UN Charter nonetheless continues to evolve. While the term was traditionally understood to mean armed force, emerging interpretations are expanding our understanding of the prohibition’s breadth. The Charter’s text, travaux préparatoires, and subsequent interpretations and practice by States, reinforced by the persuasive reasoning of the International Court of Justice, all confirm that the notion of force extends to indirect force, which includes military support provided to parties to a conflict. Yet, to …

The Shadow Of Success: How International Criminal Law Has Come To Shape The Battlefield, Gabriella Blum

International Law Studies

The rise of international criminal law (ICL) has undoubtedly contributed to the development and enforcement of international humanitarian law (IHL). Yet, there are also important and oft-overlooked ways in which it has done the opposite. By labeling certain violations of the laws of war as “criminal” and setting up dedicated mechanisms for prosecution and punishment of offenders, the content, practice, and logic of ICL are displacing those of IHL. With its doctrinal precision, elaborate institutions, and the seemingly irresistible claim of political and moral priority, ICL is overshadowing the more diffuse, less institutionalized, and more difficult to enforce IHL.

But …

Malware, A Device Under The 1988 Sua Convention, Michael Petta

International Law Studies

In 1988 the International Maritime Organization modernized international law in response to a vexing problem of the time—maritime terrorism. Before then, not all violent crimes against vessels amounted to piracy and therefore many maritime criminals escaped justice. To close this gap and facilitate the prosecution of those who endanger navigation, IMO member States enacted the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. More than three decades later, the 1988 SUA Convention may be useful to address a more modern problem—cyberattacks against commercial vessels. The 1988 treaty prohibits various acts against shipping, including the …

One Treaty To Apply Them All? Defining Maritime Terrorism By Cross-References And Reservations: The Asean Region Example, Arron N. Honniball

International Law Studies

Defining terms will shape a State’s treaty obligations, the domestic legislation necessary, the availability of cooperative mechanisms, and norm diffusion. Maritime terrorism is an umbrella term referring to the piecemeal approach of treaties creating offenses for identified acts at sea. Further treaties cross-reference the offenses in a selection of global instruments to create related offenses. This includes financing of terrorism (Convention for the Suppression of the Financing of Terrorism (ICSFT)) and regional maritime terrorism (ASEAN Convention on Counter Terrorism (ACCT)). All cross-referenced instruments shall apply to define ICFST or ACCT offenses unless a State excludes, by reservation, a cross-referenced instrument …

Russia-Ukraine Conflict: The War At Sea, Raul (Pete) Pedrozo

International Law Studies

Although much has been written about the Russia-Ukraine conflict, most writings have focused on land warfare. This article explores the conflict at sea and a host of legal issues arising from that aspect of the conflict. The article begins with a discussion of a series of events at sea that preceded the Russian invasion in 2022, including the Kerch Strait incidents and interference with freedom of navigation in the Black Sea. It then discusses multiple post-invasion legal issues involving the war at sea, including access to the Black Sea, maritime exclusion zones, naval mines, naval bombardment, unmanned maritime systems, targeting …