What Does Hybrid Warfare Mean for Maritime Security?
The acceptance of a new legal concept of hybrid conflict that falls between the fields of naval warfare and peacetime law enforcement could further complicate the already difficult assessment of the legality of the aggressor’s actions in the so-called grey area.
Legal Implications of Grey Zone in the Maritime Domain
The aggressor usually uses grey areas to complicate decision-making on the (il)legality of its actions in conflict situations and, from other states’ perspective, make it more difficult to take resolute steps in response. This is partly because it remains unclear what is the threshold for the applicability of the law of naval warfare in situations of hybrid conflict. Nonetheless, this does not necessarily mean that hybrid conflict should be subjected to a new set of rules. Usually, incidents that have occurred in grey areas in the context of hybrid conflict (e.g. the examples provided above) can be subjected to the legal framework of humanitarian law or peacetime law enforcement based on which it is possible to assess their legality.
Historians have pointed out that hybrid warfare is not a distinctly new phenomenon and, instead, simply constitutes a new term for a centuries-old concept.23 In the negotiations, drafting, and discussions during the process of creating the relevant treaties on the law of the sea and armed conflict, states did not consider it necessary to establish a separate legal framework for hybrid warfare. When drafting the relevant treaties, they instead proceeded from traditional concepts of laws of peace and war. Although rapid developments in technology have made it now possible to adopt more sophisticated means of hybrid warfare, including cyber warfare, states should still principally be able to classify any incidents of hybrid warfare under either the ramifications of armed conflict or peacetime law enforcement operations.
Any new legal framework for hybrid naval warfare that falls between the laws of peace and war would risk creating additional ambiguities in assessing the legality of the aggressor’s actions in the so-called grey area. Generally, where disputes arise over the interpretation of the applicable laws in situations concerning grey areas in whatever field of law, recourse is made to courts for justice and legal certainty. Similarly, one may expect that the current ambiguities regarding the classification of incidents which have occurred in grey areas in a hybrid conflict will gradually dissolve in the proceedings before international judicial bodies on a case-by-case basis.
In this context, the ongoing arbitral proceedings between Ukraine and Russia over the Kerch Strait incident of November 2018 are particularly promising. The International Tribunal for the Law of the Sea has found that “the distinction between military and law enforcement activities must be based primarily on an objective evaluation of the nature of the activities in question, taking into account the relevant circumstances in each case.”24 This question will likely be addressed in greater detail during the arbitral proceedings as instituted by Ukraine on April 1, 2019 under Annex VII to the Law of the Sea Convention25 on the Kerch Strait incident.26
Thus, instead of drafting new international rules on the so-called grey area in hybrid warfare or conflict, it might be feasible to first wait for international judicial bodies to develop their case law which would clarify the criteria for distinguishing between law enforcement operations in the maritime domain from naval warfare operations.
At the same time, states could modify their current domestic legal acts on national defense, law enforcement, and state of emergency in order to ensure that the key provisions on declaring a state of emergency or war and maintaining order in the maritime domain are sufficiently flexible for responding to the dynamic challenges of hybrid warfare. This may require amendments to domestic definitions such as those pertaining to a state of emergency or defense readiness. For example, maintaining in a domestic legal act a closed list of instances that constitute a threat to constitutional order (e.g. terrorist activity, forceful isolation of an area), and offer a prerequisite for a state to declare a state of emergency, might not enable it to proportionately tackle the irregular tactics and formations of hybrid warfare. This is especially the case where a state has defined the state of emergency via an outdated closed list of activities that are deemed to pose threat to its constitutional order. States that are located at the front line of hybrid warfare should consider making the threshold for declaring a state of emergency rather flexible.
Conclusion
Based on the incidents in the Black Sea, the Strait of Hormuz, the Baltic Sea, and the South China Sea in the past decade, one may reasonably argue that state practice demonstrates the increasing use of hybrid naval warfare techniques. Yet the acceptance of a new legal concept of hybrid conflict that falls between the fields of naval warfare and peacetime law enforcement could further complicate the already difficult assessment of the legality of the aggressor’s actions in the so-called grey area. A distinct legal framework for hybrid naval warfare would arguably create further legal ambiguity, rather than help solving current problems in distinguishing the law of peace from the laws of naval warfare. Hence, it might contribute to the aims of states that employ practices of maritime hybrid warfare.
States may wait for international judicial bodies to establish solid case law on differences between military and law enforcement operations in the context of hybrid conflict, including in the current proceedings on the Kerch Strait incident of November 2018. At the same time, states should revise their domestic legal acts where necessary for ensuring that the key provisions on declaring a state of emergency or war and maintaining order in the maritime domain are sufficiently flexible for responding to the dynamic challenges of hybrid warfare.
Dr. Alexander Lott is a postdoctoral fellow at the Norwegian Centre for the Law of the Sea at the University of Tromsø, the Arctic University of Norway. He is also a Lecturer of Administrative Law at the University of Tartu, Estonia.
References
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18. Keyuan, supra n 9, p. 245.
19. See further A. Lott. Le régime légal de la partie septentrionale de la mer Baltique dans le contexte des récents développements de sécurité. – Stratégique 2019(1-2), pp. 255-272.
20. C. S. Chivvis. Understanding Russian “Hybrid Warfare” and What Can be Done About It. The RAND Corporation, Santa Monica 2017, p. 7.
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22. Niinistö, supra n 5. R. Uosokainen. Puolustusministeri Niinistö: Demilitarisoituna Ahvenanmaa muodostaa sotilaallisen tyhjiön. Yle Uutiset, 17.10.2016.
23. P. R. Mansoor. Introduction: Hybrid Warfare in History, in W. Murray, P. R. Mansoor (eds.). Hybrid Warfare: Fighting Complex Opponents from the Ancient World to the Present. New York: Cambridge University Press 2012, p. 1.
24. International Tribunal for the Law of the Sea. Order: Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), 25.05.2019, para. 66.
25. United Nations Convention on the Law of the Sea. Montego Bay 10.12.1982, e.i.f. 16.11.1994.
26. Annex VII Arbitral Tribunal. Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. Russia). Case No. 2019-28.
This article by Alexander Lott first appeared Center for International Maritime Security on August 3, 2020.