 Well, good morning. My name is Wolf Heinzschild von Heineck. I'm the current Stockton Professor of International Law here at the Naval War College and I have the privilege of giving you a presentation on maritime security operations. In view of the fact that this is an overseable crowd, please do not hesitate to interrupt me if you have any questions or annotations to make. I think that is the best way, but of course if you wish to, we can reserve the Q&A period for the time after my presentation. So whatever you wish to do, you are free to do. Of course, when I'm saying maritime security operations, I have to make a very important caveat at the very beginning. I'm just a stupid lawyer, so I'm just going to talk about the law, meaning international law that applies to maritime security operations. And what you will see is the following. First of all, we have to take a look at what maritime security operations encompass. So of course, first of all, there are operations that are guided by purely national objectives or interests, especially if it comes to protecting your own sea areas against all kinds of threats, not necessarily only armed threats, but name it you have it, could be smuggling, could be anything that somehow impedes on your national interests. But you will conduct maritime security operations not only in your own sea areas, and if I'm talking about own sea areas, I mean of course the territorial sea and even the exclusive economic zone that extends up to 200 nautical miles measured from the baseline. But in that EEZ, or some call it EEZ I'm afraid, of course those are areas where other states enjoy high seas freedoms as well. So we have to be very clear that even though the coastal state exercises certain sovereign rights in the EEZ, that does not mean that those rights are unlimited, they are resource related, and other states of course continue to enjoy the right of navigation, of laying submarine cables and pipelines, and to use those areas for all kinds of operations, including military by the way. So that's something we have to be very much aware of, and of course maritime security operations can depending on the respective mission, even extend to foreign territory depending on your respective legal basis. So the other aspect is of course that you may not only be there and conduct your operations because you are pursuing some national sea goals, but also be for the sake of international interest. For example, you may be authorized, you may have been authorized by the United Nations Security Council, for example, or you may cooperate with other states that have asked for your assistance. So all these aspects have to be taken into consideration. When it comes to the term security, well, we very often tend to focus on military aspects of security, but if we look at security from a broader perspective, we think, I think we all understand that for example, resources, whether it is natural resources like fish or whatever or minerals, they are of course also of high relevance and safety at sea, protecting the marine environment. All these aspects can also come into play. So the spectrum is rather wide. So it's not just military operations in the strict sense of the word or in a very narrow meaning, but as you can see, a rather wide area that is being covered. In view of the fact that the spectrum of maritime security operations is so broad, it is quite understandable that there are many different legal rules that apply. So it would be of course an ideal world if we had an international treaty or some other written text that would provide us with the respective legal basis for all these kinds of and different operations I've just mentioned. But we are not living in an ideal world and there is no such treaty. So we have to pick all the relevant legal rules from all kinds of different legal regimes. Starts with the law of the sea convention of 1982, although the United States has not yet become a party to that treaty. There are other rules out there. Treaties that have that are focusing on maritime naval aspects of the uses of the seas of the seas. And there are others. I already mentioned environmental law, for example, that may play a role. You may be confronted with a regional regime of states that have agreed to ban nuclear weapons, for example, from their respective area. Even though that treaty does not apply to you, you will be confronted with it because the respective national authorities will remind you that you are in an area that is supposed to be nuclear weapons free and the like and the like. I won't deal today with war fighting proper, meaning the conduct of military operations during an armed conflict. At least not in so far as the United States or any of its allies is not a party to that conflict. But I will shortly also touch the issue of the United States being a neutral country in an ongoing armed conflict between states A and B, whatever the states are. Because there we have the law of neutrality and that may give us some hint of what we would be entitled to do when the belligerents are resorting to the use of certain methods and means of warfare that would be unlawful under the law of armed conflict or the law of naval warfare. The magic word is, of course, mining an international strait. What would those states that are not a party to the conflict be entitled to do with regard to such mine laying? However, peacekeeping operations, some of you may have been part of such a peacekeeping operation. For example, UNIFIL, the first maritime peacekeeping operation with regard to Lebanon. It was pure peacekeeping, no robust peacekeeping, no armed force. Everything was dependent upon the approval by the Lebanese government. So you have to do with that as well, probably, or not, depending on where you are. Protecting your own navigation or the navigation of allied countries. Remember that also occurred, for example, during the Tanker War from 1980 to 1988, where Kuwaiti tankers had been reflacked. They were flying the U.S. flag in order to be protected by U.S. warships. All these operations may come into play. Maritime interception slash interdiction operations, something that should, or I believe at least, belongs to everything modern navies do today. For all kinds of purposes, you could either be engaged in counter piracy operations, which are, of course, very notorious or have become very notorious in view of the situation in Africa. Counterterrorism operations, you may interfere with organized crime for all kinds of purposes, either because you have a bilateral agreement with another country so that you are trying to prevent the illicit trafficking of drugs or even of human beings. Noncombatant evacuation operations happen from time to time. Just think of Libya before the alliance actively took part in that conflict. And finally, humanitarian assistance, the best example, I guess, would be the tsunami in Indonesia a couple of years ago. So that's what we have, a wide spectrum, all kinds of aspects, and of course, all kinds of different legal rules that apply. Now, what we have to be aware of when we are operating at sea, we will very often have to interfere with the navigation of other states. And what you must keep in mind in this context is that the free navigation is a very high value, not only for the United States but for most of the countries in the world. Freedom of navigation means you are entitled to use the oceans, the world's oceans, to pursue your economic, your security policy interests. And you have, of course, a keen interest that other states don't interfere with the exercise of that right. We are all heavily dependent on freedom of navigation. The figures vary a little bit, but I think it's safe to say that nearly 90% of our in and exports go via the sea. Just remember that. So if anybody tries to prevent us from using the world's oceans, that also has an economic impact immediately. And you will pay it at the gas station or wherever. But of course, the characteristics of the world oceans is they are interconnected. And since they are interconnected, they are the runway, so to speak. That is the medium which you use in order to get from A to B. So there's also a very important security policy aspect to the uses of the sea that not only that you can use the high seas for weapons, exercises, military maneuvers, et cetera, but also to deploy your forces or to project power into a given region. So for all these reasons I've just given, freedom of navigation, high seas freedoms that include the freedom of overflight are very important and high values. In view of that, if you are interfering with a foreign vessel, that is flying the flag, in other words, of another state, this means you are infringing upon the sovereignty of the flag state. So before you do that, you should have a sound legal basis. And that legal basis must be found in international law either in a bilateral treaty, in a multilateral treaty, or in customary international law. Without such a legal basis, any interference with a foreign ship is a violation of the flag state sovereignty. This is important to keep in mind. State organs do, meaning including what you do at sea, is attributable to your country. So even though you may have the best motives, the best reasons, even you could claim legitimacy of what you are doing, if you are lacking a legal basis for what you are doing when you're interfering with a foreign ship, is a violation of the United States of America of the flag state's sovereignty. The question that arises here, and here you will already see that the law is less clear than it should be, is the question of consent. Of course, if somebody consents, you can interfere with his or her rights. That's not a big problem. But the question with regard to navigation is who must consent if you want to take a closer look at a ship, for example, by boarding it or just inspecting the ship's documents? The United States and other countries take the position that master's consent would be a sufficient legal basis. And a master is very often cooperative for various reasons. They don't want to lose too much time. And if they are asked politely, they will very often cooperate, not in all cases. But the United States, and for example, Germany, my country, even though we believe that master's consent is sufficient, there are other states out there that heavily oppose this idea, including France and the United Kingdom, that say, since the flag state exercises sovereignty and jurisdiction over the ship flying the flag, it's not the master who can wave any rights of sovereignty because he is just a human being. And the only one that would be entitled to wave any rights would be the flag state. In other words, the flag state must consent before you board a ship or you stop a ship or you do other things with a respected vessel. And always remember, we are not in an armed conflict. In armed conflict, things are much easier. There you can even sink a ship under certain conditions. You don't even have to ask or you don't even have to warn. So that is the easy thing. But here, in maritime security operations outside an international or non-international armed conflict, things are much more complicated. And in view of that, we have the problem with other states, even allies, join you in a maritime security operation if you exercise, for example, the right of boarding by relying on master's consent. Well, they may not leave the operation, but they will certainly say, not with me, I won't help you. Because we are not entitled to do that. So here the first problems arise. But don't overestimate master's consent either. Because what does it mean? The master tells you, yes, you may come on board, right? And what do you do if the master changes his or her mind? What he does within a second, actually? He may invite you and say, oh, no, no. I changed my mind. What do you do? You go back, I guess, hopefully. And flex state consent, you have partly, however, under existing treaties. So there are certain rules that allow you to board a vessel. For example, if there are reasonable grounds for suspicion that it is engaged in acts of piracy or unlawful broadcasting at sea, slave trade, then you are good to go if you have reasonable grounds for suspicion that the ship is engaged in any of these activities that is expressly laid down in the law of the sea convention, and it reflects customary international law. So that's rather easy, even though we will see that the definition of piracy is less clear if you look at it a little bit more closely. Of course, the convention for the suppression of unlawful acts at sea, it's called SUA convention that was amended in 2005 that would give you a legal basis for boarding a ship if that treaty enters into force, but it has not yet entered into force. So then, after a certain time period, you would be entitled to board a ship even though you have not yet acquired the consent of the flag state. The United States is in a rather comfortable position because it has concluded with many important seafaring nations bilateral boarding agreements. For example, with Panama, with the Marshall Islands, etc., etc., a wide range of bilateral treaties that would entitle U.S. forces to board a foreign vessel flying the flag of the respective state, but again, that is exceptional in character and it would only apply to those states that have concluded the bilateral treaty. United Nations Security Council resolutions, well, yes, if they contain the magic words, all necessary means, that's rather simple. But the problem with the United Nations Security Council resolutions is they are a compromise. I mean, just imagine five permanent members that sometimes disagree slightly or more and four further members must agree with such a resolution. You can imagine that the wording is very often less clear. I mentioned in the beginning Unifil, the 11 peacekeeping operation. If you just read that resolution, you believe to have understood everything if you have read it, you know, quickly for the first time. Then you, since you are, well, you want to do it thoroughly and good, you read it a second time, you start to doubt. Third time, you don't understand a single thing and then you, if you did it the fourth or fifth time, then you slowly but surely know what the Security Council did. Result, nothing. You always have to ask Beirut. That's in a nutshell what the resolution says. It doesn't give you any authority. It does not give you any authority to board a vessel even though you know those are bad guys. They are smuggling weapons, nothing, which you can do if the authorities in Beirut tell you no or if they don't respond at all, which can sometimes happen, as you know. So United Nations Security Council resolutions, we lawyers are so fond of them, we believe that is the magic tool but very often the magic of the tool disappears if you have them. Aspect of international laws, some people forget and that's the good old reprisal which today has the politically correct label of countermeasures. What does it mean? Well, in short, I for an I. In other words, if a state violates your rights, it has committed an internationally wrongful act, right? So are you now powerless? Can't you react to that violation of your rights by another state? International law says yes, you can. By violating that state's rights. So you respond to a violation of the law by violating the law. And don't forget, we are not talking about self-defense here, okay? We are not talking about self-defense. Self-defense presupposes an armed attack. I guess Mike Schmidt has extensively told you what an armed attack is. But here we have to do with violations of international law that remain below a use of force or an armed attack. For example, a state that would interfere with your shipping would violate your sovereignty, the U.S. being the flag state, if there's no legal basis, right? So you could respond by violating that state's right. And you don't even have to respond in kind. There's a parallel to the right of self-defense. You must only respond in a proportionate manner. What is the idea behind it? The idea behind it is that international law lacks a central enforcement institution or authority. The security council very often doesn't work as you know, right? So since there is no central enforcement mechanism in international law, states have to resort to self-help. And the only way to respond to a wrongdoer is by convincing that wrongdoer that it better return to a legal conduct and the only means you have available is violating that state's right. That's what reprisals are about or countermeasures. Now this is very important. Why? Because, for example, in the area of terrorism, in the area of the proliferation of weapons of mass destruction, we have rather clear rules that are laid down in the United Nations security council resolution that are all binding upon all states that are members of the United Nations. 193 states are bound by those resolutions. So just imagine one of those states, one of the member states, is assisting transnational terrorism. Not actively assisting, not providing them arms, but they are providing shelter or a safe haven. Now either you have to resort to or use, make use of the right of self-defense, which is always a tricky thing because you have to establish a link, you have to establish a link to an armed attack, et cetera, et cetera, which is sometimes simply impossible. But if you can say, now since they are providing safe haven to terrorists, they are clearly in violation of their obligations under the United Nations security council resolution. And if that state is unwilling or unable, again, two magic words, to comply with its obligations under the respective security council resolution, you may violate that state's rights by inducing that state to comply with its obligations. So what could you do? You could, for example, inspect that state's ships because you would have reasonable grounds to suspect that, obviously, that state is engaged in some form of assistance to transnational terrorists. So here you have an exceptional legal basis, meaning your conduct would otherwise be unlawful, right? But it exceptionally is lawful because you are responding to a violation of the law by the respective flag state. So nothing we should underestimate. Finally, there is customer international law, noncombatant evacuation operations. I'm just mentioning it for the following reason. Some are referring here to the right of self-defense. That would work sometime if it's about your own nationals. Okay? But even there, I would have doubts. So this is a very Anglo-American approach to the right of self-defense. But for a continental European, this doesn't work. So we would say, but the interesting thing is we come to the same conclusion, exactly the same conclusion. We would all say it is lawful to evacuate foreigners in a foreign territory that run the risk of being killed or injured, be it in Libya, be it in Albania or wherever. So here you have either a customary exception to a limited use of force and interference with foreign tripping, or you would rely upon the right of self-defense. Again, the result of the same. There are other things you have to keep in mind that are customary. Everything you do for force protection is not a right of self-defense exercise, because you want to prevent to get into a self-defense situation, right? You don't want to become the target of an armed attack or of an imminent armed attack. So you do everything to prevent that from happening. So in view of that, you may take all necessary and proportionate measures in order to eliminate or neutralize the threat, which you must of course establish on reasonable grounds. Sea lines of communications, protecting them is yet another aspect. Customary and character, the law of the sea convention does not say anything about that. It only refers to rights of the obligations of the coastal nations that are of course obliged to warn of dangers, et cetera, et cetera. But the law of the sea convention does not say anything about enforcing the freedom of navigation. And here we have certain developments in customer international law that would allow you to take the appropriate measures. So here are some of the legal basis. Do I want to cover them all? Yeah. Can I cover them all? No. So it all depends on your questions later on or during that lecture. I will have to concentrate on some aspects today. Before I do that, yet some other current issues, let's put it that way. If you are exercising coastal states rights, the rule is the closer you are to your coast, the more rights to enforce your domestic legal order you have. In other words, if you are exercising enforcement measures in your territorial sea, or even certain others in the contiguous zone, the coastal state would of course be entitled to take considerable measures against foreign shipping up to 24 nautical miles measured from the baseline, which is extensive. I must say 24 nautical miles is quite a lot. But don't forget, only within the applicable rules. Because what you don't want others to do to you, you'd better not do to them. And there are nations out there that watch everything we are doing very closely. And they will not remind you of it tomorrow. But they will remind you of it maybe in five or 10 years from now. And they have a long, long memory. So if you don't want to set precedence, rather be certain about the legal basis you have. If you have a legal basis, no problem. But if you are uncertain, you'd better refrain from interfering with foreign vessels. Because again, you are setting precedence, whether you want it or not. Even if you expressly say or your government expressly says, no, no, this is not a precedent. We saw that, right? Kosovo was no precedent. It was one. And we got the bill when it came to Georgia and Southern Ossetia, right? So everything is a precedent, even though governments deny a certain situation to qualify as such. What is of high importance in the maritime environment is that many, many coastal states are abusing or simply violating international law. They are extending their jurisdiction into the high seas areas by excessive maritime claims. If you look, for example, at China, to give you just one example, they have not only implemented straight baselines that are clearly in violation of international law. They have thus widened or broadened their territorial sea into high seas areas. They are also claiming what is called a kautang, which would encompass huge sea areas in the South China Sea that simply do not belong to China. And they are certainly overlapping the claims of other neighboring states in that area. But let's not do only China bashing here. Other states are rather good in that as well. Just look at Iran. Just look at North Korea, just to name the notorious states that are not necessarily law abiding. But even, you know, those states which you would never suspect of being in violation of international law sometimes overdo it. For example, my country established in the North Sea a box which extended up to 16 nautical miles and claimed that to be territorial sea. Now, after a while, the German government was convinced inter alia by the US government that they should rather not do that. And so they gave that up. So even allies may in the one or the other form have excessive maritime claims. And that, of course, is very, very sensitive. Why? Because it limits your freedom of movement. It limits you in what you want to do. Of course, some states like the United States are countering those claims if they can. But unfortunately, with the present budget, it becomes increasingly difficult to counter excessive maritime claims by other countries because it's expensive. I mean, if you want to send two warships in order to challenge an unlawful claim somewhere in the world, be it in the Black Sea, be it somewhere in Asian Sea areas, well, this is something you have to pay for, right? And nobody, nobody will pay the bill for you. So you have to do it on your own. And the problem is that you acquiesce for a longer period into a claim, or if you seem to have acquiesced into an unlawful claim, you may be stopped after a while from challenging that claim. That can happen very easily. For example, the Denmark has a rather weak claim on the Danish straits, the belt, for example, and the sound. Germany, for different reasons, did not challenge and protest. And today, we are told by the government, by the Kingdom of Denmark, that we'd better ask for authorization if we want to pass through any of those straits with our warships, which is clearly not in accordance with the law. But we have been stopped because we have acquiesced in that claim. So you have to challenge those claims. Why either you go there, you conduct operations there and convince them that they are wrong. The U.S. sometimes used quite convincing means. For example, when Libya, the time when Gaddafi still was the bad guy, in between he was the good guy, remember, and then bad again. And he had established a line of death in the Gulf of Cyprus. Well, yeah, he shouldn't have done that. Okay, so that claim was challenged. And now they understood the message, but you don't have that option too often. Then if you are in a foreign EZ, the coastal state will tell you, you are not entitled to be here. You should have acquired an authorization from our government. So get out of here. You are not entitled to even navigate here, certainly are not entitled to exercise military maneuvers or weapons tests or the like. And this is something we have to also deal with under the heading of excessive maritime claims, because that happens on an almost everyday basis. Foreign warships are being told to leave the area. Many coastal nations try to prevent or to more or less prevent warships from using their EZ altogether. And don't forget, 200 nautical miles measured from the coastline, right? 200. That's certainly limits your maneuverability considerably. And we always have to remind those coastal nations that there is no prohibition of military uses of a foreign EZ. No prohibition. To the contrary, customer international law expressly allows military uses of those sea areas. But of course, they will tell you, you are killing our fish. You are interfering with the exploration and exploitation of our natural resources. How can you? And then, of course, they use all kinds of means in order to make your life a little bit more difficult. You, of course, don't respond to such challenges by the use of force, okay? You don't want to start a war. But you have to be prepared to challenge those claims, which you do sometimes in a very polite manner. You're just reminding them that you are a U.S. warship enjoying sovereign immunity and you are exercising your right of freedom of navigation. Then they are very often satisfied and then you won't hear anything from them any longer. But there may be a little bit more proactive or even aggressive nations out there that may even send patrol boats or even warships out. They may harass you. They may make your life difficult. So what do you do then? Some of you may have seen videos from the Persian Gulf, where suddenly those small speed boats, the Barg Hammers used by the Iranian Revolutionary Guards, were surrounding U.S. warships and well, giving them a hard time actually. Do you blow them out of the water? Sometimes you can, okay, if you are in a self-defense situation. But not because they are there. Don't forget, they are, they have the right to be there. Okay, they may navigate in those sea areas. You don't like them. I don't like them either. Okay, but you cannot just tell them, I don't like you. That's why you should get out of here. Remember, setting precedence. So that's a very sensitive thing. So if you want to do something against them, even though they give you a hard time, you'd better know what your legal basis is, because if you haven't any, then you are in trouble, and your nation is in trouble as well. So never forget flag state sovereignty, high value, high important, highly important. So don't do it before, without considering, let's put it that way, without considering whether there is a sustainable legal basis for what you wish to do. Just to remind you what 200 nautical miles means. Everything in yellow is 200 nautical miles. In the good old days, the territorial sea extended up to three nautical miles, three nautical miles, and that was it. Nothing beyond that. Now we have an easy of 200 nautical miles, even though it's not sovereignty, the coastal states are exercising there, but they have far reaching rights, including the protection of the environment, etc., etc. It's not just natural resources, but it's also protecting the environment. And even energy production is covered by EZ, right? So suddenly you are in a sea area where you are confronted with those windmills, right? Does it prevent you from proceeding? Yes. Yes, of course. Are they entitled to do that? Yes, they are. They may even establish security zones around their oil installations, for example. Well, it's not that big a problem because it's only 500 meters in diameter, but again, prevents you from going where you may want to go. So the oceans become smaller and smaller, almost on an everyday basis. As I mentioned before, there are many treaties out there, just some you should remember, Law of the Sea Convention. Again, the United States is not a party to that treaty, but everything regarding navigation in that treaty is considered by the United States government customary international law. Okay? So every rule you find there on navigation, on sea areas, on the extent of sea areas, all that is considered customary international law. So at least this is something you can use without having to search for other treaties or rules. I already mentioned the Convention for the Suppression of Unlawful Acts at Sea, especially the 2005 amendment, which is very important with regard to the prevention of the proliferation of weapons of mass destruction by non-state actors. But there was an incident back in 2003. You may remember the Sosaan incident where a flag, a vessel without a flag, sorry, was intercepted by a Spanish frigate. After the United States had told them that there were reasonable grounds for suspicion that it was engaged in the illicit transportation of weapons of mass destruction. So they stopped the ship. They found scut missile parts, but they had to let them go. Why? Because that was an official transport between Korea, North Korea, and Yemen. So it was an interstate thing. Okay? That was not an illicit trafficking in weapons of mass destruction by non-state actors. It was an official contract between the two states, and they had purchased the parts. And there was no prohibition under international law that one state acquires certain weapons from another state, especially not carrier systems like the scut. Even though we do everything possible to prevent other nations, especially rogue nations, to acquire technology or weapons of mass destruction or the respective components of them, it is quite a difficult undertaking. Because very often you have no treaty that would prohibit those states from acquiring those things. They have simply not become parties to that treaty. North Korea is not any longer a member state to the non-proliferation treaty. So they would be entitled to use nuclear energy for military purposes because they are not prohibited by the NPT. So this shows you that it's quite a difficult undertaking. And the SUA convention that was amended in 2005 is an effort to at least interfere and interdict the trafficking in weapons of mass destruction by non-state actors. But if states are involved, that's very, very difficult to do something. Unless, of course, you have a security council resolution. If you have a security council resolution, then you are on a rather safe side. Counterterrorism. We have many, many counterterrorism conventions out there. 14 of a universal character and a number of regional counterterrorism treaties. Remember, it all started with the hijacking of aircraft when everybody wanted to go to Cuba for some strange reason. But that's when it started. It then continued. But most of the counterterrorism conventions we have out there do not give you a right to interfere with foreign vessels or aircraft. They only oblige the respective states to enact or to implement national rules in order to deal with the respective act of terrorism. They don't give you any legal basis to do more than just providing for the respective remedies. Now, I won't talk about the law of armed conflict. I will only shortly talk about the law of neutrality. But here, human rights law. That's what HRL stands for. Now, you may say, I don't care. This is a typical European problem. No, wait and see. Wait and see. It will be soon a U.S. problem as well. Because the development is such that you will be increasingly confronted with claims of human rights or alleged human rights violations. Because you are or the United States is set to be bound by the respective human rights treaties extraterritorially. So even though you may be operating either on high seas or even on foreign territory, the claim will be that you are or that you continue to be bound by human rights law and you will be confronted with allegations of having violated human rights of others. Just give an example. Pirates, right? You have a good legal basis to capture pirates, to even destroy their assets. But if you hold them on deck, for example, because you don't have any facilities where you could detain them, and let's imagine it's a hot area, which could sometimes be the case, right? You let them there. You protect them, of course, against the sun. You give them food and water, but still somebody will say, oh, you have violated the human rights of those pirates. And of course, I admit this problem is a big one in Europe because of the jurisprudence of the European Court of Human Rights, but I'm afraid that here in the United States and in the Americas, we are heading into exactly the same direction. It may take a while until we get there, and fortunately, we are not there yet. But ask, for example, our Brits, our British friends, they can tell you lots of stories about their defeats in Strasbourg, where the court ruled that they had violated the human rights of terrorists, of insurgents, of pirates, et cetera, et cetera, which means that your government also has to compensate them, right? Which is just a byproduct. And regional and bilateral agreements, just remember them, that may always be the case. So what your legal advisor, at least, should know, and what you should know as a responsible commanding officer, if there is a bilateral treaty, you should know that treaty. Don't just rely on your legal advisor, because you as the commanding officer should have at least a clear idea of what the respective treaty would entitle you to do. So you should know that treaty, okay? If there is even if the nation's Security Council resolution again, read it yourself as well. Don't rely on the lawyers only. That's not, I'm not saying the lawyers are unreliable to the country. Perfect people, dedicated, good operational and legal thinkers, but you should also know what the legal basis is. I could go on and on with all those nice treaties, et cetera, et cetera. Just also remember there are also informal instruments out there, all right? For example, in the security related area, you have certain rights under the, for example, container security initiative. You have rights under the ISPIS code. This is the international security in ports and shipping code, which would entitle you to take the necessary measures in order to prevent a threat from materializing. So rather far-reaching rights you have under those. So here the international maritime operation has done a great, great job by providing us with lots of instruments that help us in furthering our security interests. But you can imagine that it's very time consuming. You have, of course, bind your forces, et cetera, et cetera. So this is nothing you'd easily do within a couple of hours. I will have to cover the law of neutrality. That's why I have to remind you of the Hague conventions that date back to 1907, 1907, so more than 100 years old. So there you find at least something when you are a bystander of a war between states A and B and that will give you an answer of what you may do if they don't comply with the applicable law. For the U.S. Navy, U.S. Coast Guard and U.S. Marine Corps, the NWP1-14 mic is a very important document because it contains all the rules as understood by the United States of America with regard to the international law applicable to all kinds of naval operations, including maritime security operations. That is a very important document that is being updated right now. The San Remo Manual is a private draft which is considered, well, 90%, let's put it that way, a restatement of customer international law. So here again you have an up-to-date or an updated reflection of it. The International Law Association has also a document out there, the Helsinki Principles on Maritime Neutrality. Again, important if you are not part of an ongoing armed conflict. And why is it important? What do we do if Iran and Kuwait were at war? If they are laying mines in the Persian Gulf or even in the Strait of Hormuz? Do we just have to wait and see and do nothing or can we do something about it? If so, what can we do? How far can we go? These are the relevant issues. Now, you have seen a wide variety of aspects. All kinds of legal rules that apply. We have, of course, the principle of sovereignty, the principle of sovereignty, the principle of sovereignty. We don't want others to interfere with our sovereignty, so we shouldn't too easily interfere with theirs. So that's why it's important to keep that in mind. Then, of course, you have all kinds of actors. Don't forget, it's not only some self-established, self-proclaimed guardians of self-determined values. You are always confronted with those, right? Some human rights groups or whatever they call themselves. But there are many others as well. You have very often national actors, industry, economy that pursues its own interests. Sometimes they ask for your help, sometimes they don't want your help. Just think about or remember the beginning of piracy in Somalia where the shipping industry didn't want protection. They didn't want protection. Why? Because it would become too expensive for them. Because they would admit that it's a dangerous sea area. Okay? Insurance companies were already calculating how far the respective rates should increase. So here you have suddenly the problem of your national interests, of providing the flow of goods, whatever the goods are, and those who are engaged in the trade of those goods simply refuse your assistance. Of course, you could always, as the government tells them, now you are obliged to do that, but you know how problematic that is. And then you will get into the area of national constitutional law, of course. Another problem, yet another problem. But I will not deal with American constitutional law. I will just deal with international law. Yeah. Some states consider the law of the sea convention an achievement which should be preserved at all costs. Even the United States takes that position, although it's not a party to that treaty. Other states take a rather liberal approach. They look at the treaty as a recommendation rather than binding rules. And they do everything possible in order to escape the legal consequences of the respective rules of that treaty. We have, of course, all kinds of national interests. Just don't forget about oil and gas, which is of course always important. And if there is somewhere oil or gas in the seabed, you will have overlapping claims of the neighboring countries. Just look at the South China Sea. But there's also the other thing, fish. Many nations are heavily dependent on fish because of nutrition of their population. So it's a very, very important aspect. And if they want to survive, well, they will do everything in order to defend their fish stocks, etc., etc. And even countries with no armed forces at all, like Iceland, took a very aggressive stance back in the 1970s, okay, when they tried to prevent English and other fishermen from Europe to fish in their respective grounds, you know, cutting nets, even ramming vessels, etc., etc., so Iceland, peace-loving nation, no armed forces, they were suddenly bloodthirsty. Can you imagine what would happen if you did that in some Asian sea areas? Probably they would be even more aggressive then. So all these things we have to take into consideration. Now, I will talk about a little bit about piracy, proliferation of weapons of mass destruction, and counter-terrorism. I won't deal with peacekeeping operation for a simple reason. Because peacekeeping operations, even though they are all more or less based on the United Nations Charter, they all are different. Okay, it all depends on what the government has consented to or the parties to the conflict, what the respective Security Council Resolution says. So one cannot easily deduce rules from those various operations that we have witnessed in the past. So, and everybody who tells you there is a common legal denominator for all peacekeeping operation, well, he's just lying. There is none. Okay, they are too diverse. So let's look at piracy. Okay, I told you we have a long-standing definition of piracy, customary in character, laid down in the Law of the Sea Convention. And here again we have the problem. If you look at it, you find, for example, that piracy only applies to acts of violence at sea in high seas areas. So the first issue is high seas. What does that mean? Does that mean outside of the territorial sea of another state? Or does it mean beyond the outer limit of the EEZ? Makes a big difference, right? 12 or 200 nautical miles. Well, the answer is, of course, outside the territorial sea. But the Law of the Sea Convention has been misinterpreted by some. Okay, so they would limit acts of piracy to high seas areas in the technical sense, which is simply wrong. Then the problem with the definition is that it refers to private ends. There's also the two-ship criterion. Okay, a pirate can only be a pirate if the act of violence is committed from one ship against another ship. That's piracy. If they are swimming to the ship, no piracy. Lack of a second ship. Okay, but that doesn't occur all too often because, after all, they need some kind of vessel in order to get there. But private ends, what does that mean? The problem is that lawyers are lazy. I admit that. Lazy. If they can quote someone or something, they do it because they don't have to think, right? They don't have to interpret the rule. So it started all back in the 1950s that somebody said, oh, private ends means the opposite of political ends. The consequence is disastrous because everybody who is committing acts of violence at sea is then, by necessity, not a pirate, right? Environmentalists, they want to save the dolphins or other marine mammals. They are not doing it for private ends, right? Environmental purposes, political aims, not a pirate. A terrorist, not for private ends because in pursuance of terrorist aims or somebody who has been directed by some authority, not a governmental authority, but a self-proclaimed authority. Let's call it the daisy flower rescuers. They could claim that they would not be committing those acts of violence for private ends. And that is the problem. Since lawyers are so lazy, they are copying from each other and nobody really considers what private ends mean, means. And in the international law context, I believe the best interpretation would be to say it's the opposite of non-governmental. So everybody who has not or is not acting under some governmental authority at sea and committing an act of violence is by definition a pirate. And I'm emphasizing that. Just remember the situation of the Horn of Africa. For United States Navy ships, it's easy to get out of a task force and to change the respective operation. For others, it's almost impossible. They are there on the basis of counter-piracy, right? So for them, it's almost impossible to then do something in counter-terrorism, in the counter-terrorism context, because they say, oh, this is not something absolutely new and different, which is not. Because somebody who commits acts of violence at sea and even in if it is in pursuance of some terrorist aims, that person is pursuing private ends and not governmental ends and by definition becomes a pirate. And the good thing is, I have a sound legal basis. Yeah. But that's what we need, right? So the interpretation, it means the opposite of political, is a self-restriction, which is unnecessary. And I would even venture to say wrong. Simply wrong. So we should make clear that we understand the definition of piracy in that way, and then many problems would be resolved, not all, of course, but many. Another aspect that has been all too often forgotten is that very often, it's not about capturing pirates, it's not about enforcing the law, it's not about bringing them before a court. But very often, it's a simple thing of rescuing those who are in distress at sea. There are people who are threatened to lose their life, right? Because pirates are attacking them, they may be taking hostages, et cetera, et cetera. So they are in a distressed situation. And let me remind you that under the law of the Sea Convention and customer international law, it's not only a right to render assistance to those who are in distress at sea, but even an obligation, which is customary in character. So everything you do in order to prevent a pirate attack from succeeding is rendering assistance to those who are in need of that assistance. You don't have to pursue the pirates, just use proportionate force in order to prevent them from achieving what they are about to achieve. You can do that. If necessary, you can even sink their ships, or their little skiffs, or if necessary, if there's no other means available, you can even kill them. Think of a hostage situation. Of course, you can kill a hostage taker. And I don't need to look for whether they qualify as pirates under the definition or not. Because sometimes it's difficult to really understand are they pirates, or are they terrorists, etc., etc., and if you have that traditional interpretation of piracy, you will have a problem, right? But if you're just helping somebody in distress, that's something you can do always, even in foreign territorial sea areas, if the coastal nation is unwilling or unable to do what is necessary. Don't look at it too close. That's a typical slide. I would always refuse, and I have it here only for the purpose of showing you that when it comes to weapons of mass destruction and the proliferation of weapons of mass destruction, this is a very complex regime. So there is not only one treaty. Okay? There are many treaties involved. Some date back to 1925, the Geneva Gas Protocol, for example, or the Chemical Weapons Convention, etc., etc., so you have multilateral treaties. Then you have regimes that are political in character. For example, the nuclear supplier group plays a big role here, which is a loose assembly of states that dispose of nuclear technology and providing others with that technology. So here we have a mix of formal, informal instruments, and I could even have made it more complicated by introducing the respective national implementation acts of that regime. But what it shows you here, you have, of course, PSI, the Proliferation Security Initiative that was initiated by President Bush in 2003. You have United Nations Security Council resolutions. You have the Suhrakon, etc., etc., etc. And they all aim at what? Preventing the proliferation of weapons of mass destruction, meaning biological, chemical, and nuclear weapons, and, of course, also delivery systems, including unmanned aerial vehicles, for example. So all that is something that regulates whatever you try to achieve when you are part of a counter-proliferation operation. And, again, it's not to deter you, it's just to illustrate what it means when we talk about legal regimes. They can be rather complex and difficult to, and difficult when it comes to identifying the respective applicable rules. Remember what I said about terrorism conventions and also about counter-measures? This is important when it comes to terrorism. The problem with regard to terrorism is that we all too easily and all too often satisfied ourselves by saying, oh, it's all the right of self-defense. I don't know. I don't know. I don't misunderstand me. I'm a strong believer in the right of self-defense, and I certainly share the opinion that the right of self-defense applies to armed attacks by non-state actors. It even applies, although the respective initial armed attack dates back quite a while. Ten years, maybe 12 years, that is not the problem. So, because it all depends on the threat that has been, that has come into existence by an armed attack or a series of armed attacks. But the problem is that governments have been rather unclear of what the exercise of the right of self-defense in counter terrorism operations at sea means. Certainly, they all agree that you cannot just sink any ship where you have a suspicion that it might somehow be linked to terrorism, right? That would be easy, but that's not what governments say. Moreover, do governments give us enough guidance when we do have reasonable grounds for suspicion? Can we really then stop a vessel, go on board, overcome resistance by force, by minimum force, including deadly force? Can we make that ship take a certain course, divert it from its course, order it to enter a certain port against the will of the master and or the flag state? So, yes, the right of self-defense is a perfect tool, but unfortunately we are left a little bit in the unclear when it comes to clear questions of what can I do in a given situation. It's not about, you know, killing Osama bin Laden, that's simple, that's easy. That was an exercise of the right of self-defense. But what do you do with a ship flying the flag off France, where you do have grounds for suspicion that it might be engaged in some kind of terrorist activity, directly or indirectly? You certainly don't sink them, okay? And before you enter, you board the ship, well, you should consider, you should at least consider more than just the right of self-defense. So governments unfortunately have been unclear, so self-defense, yeah, but you know it doesn't give you what you really need, it doesn't give you operational guidance and that's the problem. Now the United Nations Security Council resolution forever help you when it comes to interstate relations and here the law of countermeasures gives you a legal basis. However, you must have reasonable grounds, not beyond any doubt. We are not at court here, okay? And it's not a hindsight rule that applies. So if you in a given situation have reasonable grounds for suspicion that there is a link to terrorism, good enough. No hindsight rule, no beyond doubt evidence, etc., etc., but you must have at least those reasonable grounds. So you must not only convince your superiors but maybe even other governments that you just didn't do it on a wanton in a wanton way, that you really had a good case in interfering with that vessel and that is sometimes more difficult. Of course, as commanders you can always rely on intelligence provided to you by your government, okay? So that's quite clear. But the problem is that intelligence information will very often not be disclosed to others, certainly not to other governments, all right? And certainly not openly. So you must have something which you can also disclose, which you can also show the world if necessary. Because otherwise it's again the bad United States Navy doing whatever they wish to do without caring about the law. I mean, that's the usual reaction you must be aware of. But the fact that you have certain rights under the existing international law means that you may use force in order to enforce your rights if somebody tries to prevent you from exercising those rights. For example, take a ship at sea where you have reasonable grounds for suspicion that it was engaged in an act of piracy, right? So you may go on board, you may inspect the ship, you may look at the ship's documents, you may even look at the ship's cargo, etc., etc., in order to verify whether it has indeed been engaged in piratical acts. Now you are sending a boarding team over and they are trying to prevent you from boarding the ship. Now now you are of course entitled to use proportionate force in order to get on board. And the magic word is here minimum force and I'm emphasizing that because the sewer convention uses that term. And you as operators know much better than I what minimum force means. Very often it means up to or including deadly force if there's no other remedy than to overcome the resistance by those who are trying to prevent you from exercising your rights. So all rights you have, including capture and seizure of vessels, of persons, you may enforce with minimum force. Don't shoot on sight, that's not what the law says. But use it in an escalating manner and that's something you may do at all times. So it does not mean that international law would be a showstopper, that it would prevent you from achieving your mission's goal. To the contrary, it's rather flexible, it gives you quite many options and of course that is subject to proportionality. Why? Because you're not at war. Remember when you are at war it's simple, think them, that's it. But if you're not at war it's a little bit more complicated. And that is the rule I'm referring to. Article 8Bs of the SUA protocol and the last three lines are important, the minimum degree of force which is necessary. That is the magic formulation. And of course that is circumstantial. Okay, there's no absolute rule which tells you you may always shoot to kill, nor does it say you may never shoot to kill. It is circumstantial, it depends on the circumstances ruling at the time. Principle of proportionality, don't forget it. Okay, it does not mean you have to respond in kind, but that's something you have to keep in mind. I already mentioned human rights law, which may be a problem or not. You may recall that in counter piracy operation the role of private actors has become quite famous in the last couple of months. Many governments have decided to use or make use of private security companies in order to protect the vessels flying their flags, or even the ship owners did that. This is now a recognized method of protecting shipping against piracy. But of course there are many problems related just to think about even though they are of course Italian state organs, but the two Italian officers who were captured in India because they allegedly killed two Indian fishermen, because they mistook them for pirates, that's something that can of course very often happen to a private security company as well. So how do you select them? How do you control their use of force? Very often you have to have a certification procedure etc etc. Let's be frank, we don't like that all too often, right? I mean people in uniform have a certain privilege and that privilege is that they are armed and that they make use of those weapons in certain circumstances, and if you are confronted with too many others who claim to have the same right, it's not necessarily what you want to have in all situations. Let's put it that way. Criminal jurisdiction is another issue and you know that ship was sunk by the Indian Navy with hostages on board. Can you imagine the CNN effect? Strangely enough not in India, the commander of the warship responsible for the sinking of that ship where pirates and hostages were killed in the attack, he's a hero. But I think here in the United States it would be a little bit more problematic from the public and media side of the issue. So what we can say is that we have a rather established regime and we have legal basis for all kinds of maritime security operations, right? They are complex, complicated sometimes, but very often we can live with it rather well, but as so often the devil lies with the details and very often those little details give you a hard time. For example, can you destroy pirate assets like skiffs or isn't that a violation of private property? Don't you need something for that? Don't you need an accord order for example? All these issues come up. The Belgians for example were told oh if you have captured a pirate you must release him or her within 24 hours. We are not a commons off the coast or 500. How do you release them within 24 hours? So what did the Belgians do? They didn't capture them. Well, it doesn't really make sense, right? Okay, so remember the magic words reasonable grounds for suspicion, then you very often can do something with a given threat, with regard to given threat, the principle of proportionality. Before I give you the floor I promised you to say something about the law of neutrality, okay? Now imagine Iran closing the strait of Hamoos with mines because it is at war with Oman. Let's put it that way, okay? Iran and Oman being at war. Is that unlawful? Who would say yes? Why is it unlawful? Laying of mines during an armed conflict is something the United States Navy would claim to be a belligerent right. When it comes to changing geography in depriving a certain sea area to the enemy, hey, the United States Navy would be badly advised if it gave up the right to mine sea areas because that's a rather cheap effective means, right? So do we want to deny others the right only because we don't like it or do we have to be a little bit more careful? Again, remember precedents, precedents. Now, first of all, mining the Persian Gulf during a war between Iran and Oman. Let's leave it with that. It's a hypothetical thing, I know. It's not prohibited as such, okay? It's not prohibited. They may do that. It has been laid down in the 8th Hague Convention of 1907 that you may use naval mines, but you may not bar access to the coasts of other states, and now it becomes important. And now we have the problem with straits, an invention of 1982. You know, although the straits issue was an issue already back in 1907, they discussed that heavily. They even discussed the prohibition of mining international straits, but that was not included in the treaty. So what do we do now? What do we do now? On the one hand, we know have a right to use naval mines. We have old ancient rules, or even 1907, very old rules. We want to preserve our right to use naval mines in an armed conflict against demonia, right? So how do we solve the problem? Well, first of all, you have to see if the access to neutral ports and coasts is not prevented, and they are limiting mine operation to high seas areas, you cannot do much. You can only ask the belligerents to provide, gosh, safe ways through the mine fields by piloting you, okay? Now in an international strait, it seems to be different, but let me assure you it's less from clear, because in an international strait, which is of course necessary for international navigation, even vital, like the strait of Hamoos, one of the most important straits in the world, that of course would mean if they are mining the strait, forget about the flow of oil or of goods from and to the Persian Gulf. Nobody would continue, right? So is there an absolute prohibition of mining an international strait? Meaning no mine at all? And how far does the international strait extend? It's also a problem. Are the approaches to the strait included into the regime? I would say yes. Other countries don't share that view. The US certainly shares the view that it includes the approaches. Or may they lay mines, but must they leave a safe channel open within the strait? You see, those are the issues. Now let's assume there were a prohibition of mining an international strait altogether. In the war between Iran and Oman, both would be obliged not to lay any mines in the strait. What does that mean for us? Well, we would do something about it, right? We would try to neutralize the mines by whatever means available. Either we are conducting a rather sophisticated counter-mine operation, which is very time-consuming and expensive, so we shouldn't do that. Maybe we should acquire a big hull somewhere, which nobody wants any longer, and then just move it through the area. Maybe it helps. Well, maybe it helps. You don't know whether it helps, right? Because there are rather sophisticated mines out there that no longer react on contact, on physical contact, but they only react to certain signatures. So what do you do with them? They may even be lying on the seabed and wait and wait and wait until the right hull comes. So you cannot really neutralize the entire threat, but that's something you would do, right? What would the belligerents say in that respect? Well, they would claim that you are violating your neutral, your status of impartiality under the law of neutrality, because you would do something assisting the enemy's effort, because you would relieve the enemy from taking mine countermeasures. So that's a delicate thing, a delicate thing, even under the law of armed conflict. Now, if Iran, however, and that's the good thing about it, were not at war with Oman, and there are good chances that they won't, but if they were just laying mines in the Strait of Famos, things become different. But again, the problem is that, for example, Iran could claim, oh, we have mine, we have mined the Strait of Famos, but it's our territorial sea. We just limited our mine countermeasures to the territorial sea. The problem now is Iran is not a party to the law of the sea convention. They claim that the trended passage to a regime does not apply, because they are not a party to the treaty, and they limit everything to their territorial sea, and they may even add that they have just laid controlled mines, which you can switch on and off. Something the US claims to be entitled to do in high seas areas, because they have taken a look at NWP, right? They quote you. So a very delicate problem, a very delicate problem, also in peacetime, because what you start doing is, of course, if you are mine clearance operation in the Strait of Famos, you are in the territorial sea of Iran. You are in Iranian territory. In Iranian territory is, in principle, entitled to do something about it, unless you can claim that conduct was unlawful. So what is the solution? Well, make it short. It is unlawful to lay at least uncontrolled international strait. You may take all necessary and proportionate countermeasures in order to neutralize that. Be aware, be prepared that they won't just wait if any government, because hopefully it will not only be the US government that decides to do something about the mining of the Strait of Famos. Hopefully European governments will do something about it as well, because it's vital for them as well, maybe even more vital for them than for the US. Then, of course, you must do that well prepared. They have coastal batteries, they have missile sites, they have all kinds of things that give you a hard time. So exercising your right of counter measures and or self-defense, it's perfectly all right under the law, okay, but don't go there blindly, because they will do something for sure. All right, questions? Yes, man. According to my position, there is no impediment to treat them as pirates if they're doing it in high seas areas. Because I don't care whether they are claiming to be protecting the marine environment and pursuing a political and or goal or whether they are doing it for pure greed. And the funny thing about it is there are two court decisions that treated environmentalists as pirates. One Belgian court a couple of years ago, 40 years, and the recent one, James, what was it? The district court? Yeah, exactly. So they were also treated as pirates for the simple reason. Who are they to claim to be entitled to interfere with foreign shipping? Where's their authority? They don't even have legitimacy, right? I mean, they have not been there or they have not come there because of the democratic process or whatever. Again, I call them self-proclaimed guardians of self-established values. Everybody from of us can do that. Again, if you love daisy flowers, you build up an NGO for the protection of daisy flowers and then you are entitled to do whatever to protect daisy flowers? No, certainly not. So they are powerful. Don't forget that. It's just the law, the law, what I'm referring to. They are powerful, they have accomplished quite a lot by political pressure, not only the Greenpeace, but many others as well. Just think of all the successful campaigns with regard to the outlawing of certain weapons and weapons systems. They are very, very influential, but that doesn't mean that you have to tolerate everything they are doing. Don't be afraid of Greenpeace. Hopefully, yesterday, then tomorrow. I tell you why. I know that I'm a little bit in disagreement here with Pete Bedroso, I think, who says, wow, we have it all. We don't need to become a party to it. Well, yes, if you look at it just from that perspective, there is no need for the United States to become a party to the law of the Sea Convention, because indeed, you have everything. You have passage rides, you have the sea areas, you even have an extended continental shelf, which is important in the Arctic, taken, and I agree. However, the problem is that under the law of the Sea Convention, there are certain institutions that have been established on the basis of that treaty. It starts with the commission for the outer limit of the continental shelf, which is not a legal institution. They are just verifying whether the geological data you provide justify an extended continental shelf or not. Well, yes, you don't need it, because you could easily say, oh, we are proclaiming our own. But you see, it's much easier to be part of that process, because then others won't challenge you right, because others will say, oh, if you are not a party to the law of the Sea Convention, there is no right under customer international law to have an extended continental shelf that goes beyond 200 nautical miles. Another example is the CBAT, International CBAT Authority, which is an international organization of its own. And that organization is issuing licenses for deep CBAT mining, racial and exploitation activities, something that was too expensive back in the 1980s, but which today has become an option. So they are issuing licenses for the exploration of mineral resources on the ocean floor in great depth. Could be a rather lucrative business in a short time. And don't forget, the United States is a technologically advanced country that disposes of the technology, even though, and on the other hand, the United States was a big promoter of the amended Part 11 of the Law of the Sea Convention, without which many states wouldn't have ratified the convention at all. So being part of that process gives you influence, gives you power. If you are not part of the process, you are an bystander, you can only indirectly exert influence, and that makes things much more difficult. And I think I'm in agreement with many, at least here at the Naval War College and elsewhere, that at the end of the day, the profit would be higher if the United States became a party. Does that prevent the group in Senate to continue what they have been doing successfully for the last 30 or so years? No, no. But that's your political system, and I'm not commenting upon that. But I think it would be at the end of the day better for the United States if they became a party. They immediately would take, that's something I can predict, even though I never, I don't know when it will ever occur. But I can clearly predict that if the United States becomes a party, it will immediately be in the leading role within the LOS law of the sea system. Immediately the leading role. Nobody can ignore the United States, especially not if they are part of the game. No questions? Thanks for your attention.