Podcast: “Maritime Law and Global Security”

How are 80% of the world’s goods transported?  By sea.  Given the obvious security implications of that economic truth, you’ll want to listen to (and/or watch) the Maritime Law and Global Security podcast from the 29th Annual National Security Law ConferenceYou’ll hear an exceptionally distinguished group of panelists James Kraska, Raul (Pete) Pedrozo, and Robin Ellerbe) discuss an array of ‘hot topics’ in today’s maritime law space.

The new treatises

Dr. Kraska discusses the new (2023) Newport Manual on the Law of Naval Warfare (available for free online here).  He tells the interesting story of how and why it came into existence as something of a replacement for the San Remo Manual. It was written by Dr. Kraska and Prof. Pedrozo along with other experts from the UK, Germany, India, Japan, and Australia.  He made it clear that “it’s an academic work. It’s a work of scholarship. It is not official US government, US Navy, US Coast Guard, US Marine Corps perspective.” 

He advised that that the more definitively U.S. view can be found in another publication of the Naval War College’s Stockton Center for International Law.  It is the just published the Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations.”  This 1,200+ page treatise is a magnificent accomplishment and is also available online for free here.  (The authors are Dr. Kraska, Prof. Pedrozo, and Prof. Mike Schmitt)

James explained how these documents are necessary because of the unique way the law has developed in the maritime context.  For example, the principle of proportionality applies differently. He said that at sea

[The principle of] proportionality is an analysis of what is surrounding the ship rather than the individual [ship itself]  And the ship is the target. Say, a warship would be a target. And the law of naval warfare is a platform-based construct. And therefore, if you have, for example, 50 nuns on a warship, they do not figure into your proportionality analysis.

China’s Maritime Militia

Prof. Pedrozo (a Lawfire® contributor!) spoke about the various permutations of China’s Peoples Liberation Army’s (PLA) Maritime Militia.  He said that while they may pose as mere fishing boats their actual purpose is rather different:

“The Chinese Maritime Militia is the largest government-sanctioned maritime militia in the world and it is trained, equipped, and financed by local PLA military commanders along the coast. And the government will actually subsidize or rent out these private fishing vessels to perform official missions on behalf of the PLA Navy, or on behalf of the China Coast Guard, either on an ad hoc basis or on a permanent basis. They fall directly under the PLA chain of command”

Pete points put that these vessels are used to “directly interfere with resource rights of their neighbors,” often by harassing the ships of other nations.  He warns that in wartime we should expect the Maritime Militia to directly support the PLA Navy while at the same time trying to exploit provisions of international law designed to protect small fishing boats.

 Illegal, unregulated, and unlawful fishing

CAPT Ellerbe talked about the challenges the Coast Guard faces being such a small service trying to stop such things as drug smuggling, unlawful migration, as well as IUU (the illegal, unregulated, unlawful fishing).  Along that line he said:

CAPT Ellerbe

[“T]the Chinese fishing fleet, to include the Maritime Militia, is the largest in the world. China has over 560,000 fishing vessels that can be deployed around the world, or deep water fishing fleet ranges anywhere from 3,000 to 4,000.  What that means is that [this] deep water fleet can come out as far as the South America to the Galapagos, and 300, 400 vessels at one time can just, en masse, overtake a country’s economic exclusive zone. And that’s a finite resource that they’re taking back to China that that money doesn’t go into the national economy, and further degrades that national economy and causes some of that economic instability that I was talking about.

He also spoke about a new Executive Order that gave the Coast Guard new authorities to battle cyber threats–at the same time the service is doing other tasks such enforcing maritime safety and conducting search and rescue operations.

Maritime neutrality

During the question and answer period, the issue of wartime maritime neutrality arose. Dr. Kraska noted:

“I can say just a word or two about maritime neutrality. And we talk about this extensively in the Newport Manual. Neutral states have rights, and they also have duties. So they have the right of inviolability of their commerce, but they also have a duty of impartiality.  And belligerents have corresponding rights and duties as well. They have the right to insist that the neutral state really does abstain and is neutral. And then they have the duty to respect neutral vessels.  They also have an additional right. They have the belligerent right of visit and search of all neutral ships, neutral merchant ships. Not sovereign immune vessels, but neutral merchant ships.

So if you have a combat cargo on a contract vessel that’s not a sovereign immune vessel, then that ship, if it’s heading toward Ukraine, is subject to Russia’s belligerent right. It’s an unmitigated right to visit and search that ship, and seize the cargo if it’s contraband. That hasn’t happened for political reasons, but not for legal reasons. Russia would have the legal right to do so.

We also talk about another theory, a minority position, which is, well, there’s a qualified neutrality in which states might side with one of the belligerents that’s the victim state. In this case, let’s say Ukraine. And therefore, those traditional laws of neutrality don’t apply.

The Newport Manual is not doctrinaire. We have both views. It’s not like some manuals where we say rule number one is this, rule number two is that. As long as it is within the boundaries of the acceptable state practice as it’s developed through the centuries, then we include that. And so we have both of those perspectives on maritime neutrality.”

Of course, this is just a sampling of what was discussed during this fascinating panel. Getting spooled up on maritime law is clearly already vital, and will only become even more necessary in the (near!) future.  If you need something to get you started, this podcast is it.

Again, you can watch or listen to this presentation here.

Don’t miss these other podcasts from LENS’ 29th Annual Conference :

My fireside chat with CIA General Counsel Kate Heinzelman can found here.

Brig. Gen. Linell Letendre’s presentation “Guardians of Code and Conscience: Exploring Legal and Ethical Frontiers of Generative AI” is found here.

Col (Ret.) Dawn Zoldi’s presentation “Domestic Drones and National Security,” is found here.

Dean Cheng’s presentation “Update on China: Lawfare, Technology and More” is found here.

Gary Corn on “Attacking Big Data: Strategic Competition, the Race for AI, and Cyber Sabotageis found here.

BG David Mendelson on “LOAC in 21st Century Battlespaces” found here.

Prof. Bobby Bishop’s ‘fireside chat,’ “Business and American National Security: A Conversation with SEC Commissioner Caroline Crenshaw” is found here.    

As more podcasts from the Conference become available, they’ll be posted on Lawfire® so stay tuned! 

Unless otherwise indicated, Conference speakers are expressing their personal opinions, and not necessarily those of their employer (to include the U.S. government), the Center of Law, Ethics and National Security, Duke University, or any other person or entity (see also here)

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!



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