Year Ahead – Gearing Up for Possible Naval Conflict

Editors’ note: We are pleased to announce that Articles of War has recently added several thematic editors to our staff. Each editor has contributed a post to this year’s Year Ahead series with thoughts on issues or situations they recommend our readers track over the coming months in their respective field of the law of war. We will resume our usual publications at the conclusion of this series.

The final days of 2024 saw hectic activity concerning a vessel in the ongoing “Cable War” in the Northern waters of the European Peninsula. It is but one in a series of maritime security incidents over the last months of the past year. Adjacent issues, such as the civilianization of State competition in the maritime dimension and matters related to the intricate game of blurring conflict thresholds have surfaced as well. None of these issues is likely to disappear as we sail into 2025. Rather, they are likely to highlight underlying legal debate relating to both legal substance and process in the law of naval warfare.

Law of Naval Warfare Returns to the Spotlight

While many European States gear up their armed forces to avoid, deter, or if necessary, conduct armed conflict, the law of naval warfare is returning to legal agendas. The ongoing Russia-Ukrainian conflict has provided important and updated practice, spawning lively scholarly legal debate. To illustrate, in 2023, a group of naval law experts published The Newport Manual on the Law of Naval Warfare (NPM). It is also intended as a guide for interoperability in possible future conflicts in the Indo-Pacific region.

Based on its geographical features, a conflict in the Indo-Pacific would likely have an enormous maritime dimension. As a manual ought to, the NPM pronounces itself the lex lata of the law of naval warfare. A fine-tuning revision of the NPM is said to be expected. Meanwhile, on 16 December, the Institute of International Humanitarian Law (IIHL) in San Remo, Italy, issued a statement launching the drafting phase of the update of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (SRM), with an aim to finish in 2027.

To my (albeit limited) knowledge, at this stage, there are neither State initiatives addressing the law of naval warfare on an international level, nor any near future State plans to crystalise this specialized sub-regime of the law of armed conflict, not even on certain aspects of it. For the time being, discussing the shape of the law of naval warfare continues to be largely a scholarly exercise. Be that as it may, apart from existing practice, State legal advisors now find available a wide range of views to guide their law of naval warfare advice.

Manuals Are Not the End

While the above-mentioned publications are positive developments and we should welcome the discussions that will hopefully emerge from these drafting efforts, some caution is called for in the coming year. Although manual drafting may have a legal crystalising effect, there are obvious drawbacks to their publication and influence. Apart from the fact they fall short of formal law making, drafters are limited to expressing the current state of the law and inevitably hew closely to existing frameworks. Perhaps different from exploring new and upcoming areas of law, manual drafting, when it concerns the law of naval warfare, leaves less room to question the framework itself, unless States themselves are shown to have departed from it.

Panning out from the cramped process of manual drafting, diverging thoughts soon emerge on what the law of naval warfare is, or should be. Not just in terms of interpretation of rules or other details, but rather on more fundamental views. The general critique seems that while international law has developed considerably in recent times, the law of naval warfare is little changed. It is as if the latter has come loose from its mooring in the former and now drifts as a stand-alone regime, with its own special and particular concepts and doctrines that trump those of the general law.

A competing approach, therefore, finds scholars approaching the law of naval warfare from the perspective of the international legal system as a whole (see also Clapham, War, ch. 8; Gill & Tabori-Szabo, in The Use of Force and the International Legal System, ch. 14). These contributions look to (re)fit the law of naval warfare within, rather than apart from, the greater system of international law and where it currently stands. In short, this view centralizes international law, rather than the law of naval warfare. To understand the full picture of views, I commend attention to this approach precisely because it results in substantially different outlooks on how the law of naval warfare should be applied in future conflict.

A Broad View for 2025

While preparing for future naval warfare, supported by new manuals that seek to confirm the current state of naval warfare, other views are emerging that question whether the existing rules expressed in manual projects remain the right fundamentals upon which future application of the law can be built. An important question for States, therefore, is whether these diverging views should be permitted to develop independently in the private and non-governmental sphere or should be addressed directly by sovereigns. My point is that neither an updated SRM, nor a possibly revised NPM, should curtail broader discussion of the future direction of the law of naval warfare. Legal advice and State legal decisions and policymaking must, in my opinion, include careful appraisals the whole spectrum from lata, ferenda, to scholarly views. In the coming year, I look forward to contributing to and, in my new capacity as a thematic editor at Articles of War, curating those assessments of the law of naval warfare in 2025.

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Captain Martin Fink is a legal advisor in the Royal Netherlands Navy and research fellow at the Royal Netherland Defence Academy. He currently holds the position of Head of Legal Affairs of the Royal Marechaussee.

Photo credit: UK Ministry of Defence