Robert McLaughlin

United Nations Naval Peace Operations in the Territorial Sea

Drawing on the operational experience of United Nations naval peace operations, this book examines issues of authority for such operations as they relate to and impact upon the Territorial Sea.

Towards a more effective counter-drugs regime in the Indian Ocean

ABSTRACT Use of the Indian Ocean as a major drugs trafficking route – particularly for heroin originating in Afghanistan – poses a maritime security and a maritime law enforcement challenge. This article seeks to explore one dimension of this challenge – the lack of a ‘legal finish’ (such as prosecution) for the majority of drug seizures made within international waters in the Indian Ocean region. The article proposes three possible avenues towards improved outcomes: Formally combining the issues of terrorism and terrorist financing in Afghanistan with Indian Ocean heroin trafficking, in order to better leverage existing authorisations relating to the former; taking a more robust approach to asserting follow-on jurisdiction over unflagged vessels; and better utilisation of existing obligations, mechanisms and networks in order to achieve improved interdiction rates over flagged vessels.

The Continuing Conundrum of the Somali Territorial Sea and Exclusive Economic Zone

Among the many challenges facing Somalia as it seeks to enable its maritime future is the continuing conundrum presented by its historical claim to a 200-nautical-mile territorial sea. However, as a degree of stability has returned, a series of important—but largely forgotten—national and international legislative and policy steps taken by the Somali Democratic Republic just prior to the onset of the civil war have been rediscovered. This has cast the issue in a new light, and raises several questions as to the consequences and evolution of the Somali legal relationship to the maritime domain. This article describes the current status of the Somali claim, with a view to illuminating the legal history behind the Somali legislative ‘start point’ for the recently filed application with the International Court of Justice in relation to its Exclusive Economic Zone delimitation with Kenya.

Authorizations for maritime law enforcement operations

Although there are areas of uncertainty and overlap, authorizations for maritime law enforcement operations are beholden to a different regime from that which governs the conduct of armed conflict at sea. This article seeks to briefly describe five regularly employed authorizations for maritime law enforcement operations at sea: flag State consent, agreed pre-authorization, coastal State jurisdiction, UN Security Council resolutions, and the right of visit.

Introduction: Conundrum of New Technologies in the Law of Armed Conflict

This introductory chapter outlines the general relationship between technological development and the conduct of warfare in the historical context. It then introduces the objective of the book, which is to critically examine the potential legal challenges arising from the use of new technologies in warfare, and future directions of legal development. It proceeds on the premise that the fundamentally transformative impact of new technologies on the means and methods of warfare, and on the broader environment in which warfare is conducted, cannot be understood without specific characteristics of the technology and challenges each technology presents for both the law of armed conflict and the battlespace. Each chapter of this book is introduced in the broader context of the four thematic issues that emerged during the discussion among scholars and practitioners working in the field, held at the Workshop at the Australian National University in September 2012.

Unmanned Naval Vehicles and the Law of Naval Warfare

This chapter examines the adequacy of the existing law of the sea and law of armed conflict in regulating and assessing the employment of unmanned vehicles in maritime operational contexts. On the basis of a general assumption as to the enduring relevance and utility of existing law in addressing the challenges of new technology in the maritime domain, the chapter focuses upon unmanned vehicles as a case study of how existing law can meet the challenge of describing and regulating the military applications of new technology at sea. To this end, the analysis concentrates upon two talismans fundamental to defining and understanding this relationship: (1) the status of unmanned vehicles at sea, most particularly in terms of their legal personality and access to flag state immunities; and (2) the poise and positioning of unmanned vehicles at sea in terms of the legal affront they may generate.

International Humanitarian Law in the Maritime Context: Conflict Characterization in Judicial and Quasi-Judicial Contexts

Introducing International Humanitarian Law to Judicial and Quasi Judicial Bodies.- Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armes Conflict.- The Role of the U.S. Judicial Branch During the Long War: Drone Courts, Damage Suits, and Freedom of Information Act (FOIA) Requests.- International Humanitarian Law in the Maritime Context: Conflict Characterization in Judicial and Quasi-Judicial Contexts.- Domestic Humanitarian Law: Developing the Law of War in Domestic Courts.- The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience.- Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law.- Armed Conflict and the Inter-American Human Rights System: Application or Interpretation of International Humanitarian Law? The European Court of Human Rights Engagement with International Humanitarian Law.- The Interaction between Domestic Law and International Humanitarian Law at the Extraordinary Chambers in the Courts of Cambodia.- Applying the Laws of Armed Conflict in Swiss Courts.- International Humanitarian Law in the Courts of Australia.- Aut Deportare Aut Judicare: Current Topics in International Humanitarian Law in Canada.- International Humanitarian Law in Indian Courts: Application, Misapplication and Non-Application.- Interpretations of IHL in Tribunals of the United States.- The International Commission of Inquiry on Darfur and the Application of International Humanitarian Norms.- The Mavi Marmara Incident and the Application of International Humanitarian Law by Quasi-Judicial Bodies.

‘Terrorism’ as a Central Theme in the Evolution of Maritime Operations Law Since 11 September 2011

As D.P O’Connell noted in a seminal 1970 article (‘International Law of Contemporary Naval Operations’) and in his equally seminal 1975 book The Influence of Law on Sea Power, maritime operations law is a constantly evolving discipline in both theory and practice—with law often lagging practice by a noticeable margin. One consequence of the (then) ‘Dreadnought era’ focus of much of the law of naval warfare was that ‘[I]f international law appears to the naval officer a tangle of uncertainties in which he is likely to be ensnared, the technology of naval warfare induces in the legal theorists perplexity and dismay’. However, for all of the sometimes haphazard and ‘catch-up’ nature of the relationship between law and practice in maritime operations, there are clearly a number of fundamental, normative, defining themes which have tended to play the dominant role in shaping and informing the evolution of maritime operations law over the last several decades (or, indeed, centuries).

The Law of Armed Conflict and International Human Rights Law: Some Paradigmatic Differences and Operational Implications

Debate over the interplay between the Law of Armed Conflict (LOAC) and International Human Rights Law (IHRL) is maturing. This article attempts to contribute to this process by focussing more specifically upon the potential operational effects of the paradigmatic blurring which appears to underpin the debate. To this end, the argument looks to the broader issue of paradigmatic purpose, and the more specific issue of ‘proportionality’, as vehicles for pointing out some practical implications which this blurring may hold for military operations.

The Use of Lethal Force by Military Forces on Law Enforcement Operations - Is There a 'Lawful Authority'?

Now a person, whether a magistrate, or a peace-officer, who has the duty of suppressing a riot, is placed in a very difficult situation, for if, by his acts, he causes death, he is liable to be indicted for murder or manslaughter, and if he does not act, he is liable to an indictment on an information for neglect; he is, therefore, bound to hit the precise line of his duty: and how difficult it is to hit that precise line, will be a matter for your consideration, but that, difficult as it may be, he is bound to do. R v Pinney (1832) 5 Car & P [254], [270] (Littledale J). A soldier is bound to obey any lawful order which he receives from his military superior. But a soldier cannot any more than a civilian avoid responsibility for breach of the law by pleading that he broke the law in bona fide obedience to the orders (say) of the commander-in-chief. Hence the position of a soldier is in theory and may be in practice a difficult one. He may, as it has been well said, be liable to be shot by a court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it. A V Dicey, Introduction to the Study of the Law of Constitution (10th ed, 1959) 303.