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Articles

The use of force in the course of maritime law enforcement operations

Pages 253-272 | Received 26 Oct 2016, Accepted 02 Dec 2016, Published online: 14 Mar 2017
 

ABSTRACT

Naval forces are increasingly involved in law enforcement operations. The level of coercion as well as the means/methods that may be legitimately used by warships in the course of police-type interventions differ substantially from the ones that may be administered in conflict-type engagements. In this respect, this article seeks to clarify the scope and contents of international law principles and rules applicable to the use of force in maritime law enforcement operations, and show how they may be applied in the current naval practice. The analysis is focused on how the criteria of unavoidability, reasonableness and necessity, as developed by the International Tribunal for the Law of the Sea, are to be interpreted according to, and complemented by, the principles and rules contained in international human rights law instruments and in the related case law (with a specific focus on the European Court of Human Rights’ case law).

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 See Patricia Jimenez Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13(1) Journal of Conflict and Security Law 49; Vasilios Tasikas, ‘Unmanned Aerial Vehicles and the Doctrine of Hot Pursuit: A New Era of Coast Guard Maritime Law Enforcement Operations’ (2004) 29(1) Tulane Maritime Law Journal 59.

2 This phenomenon is named ‘Creeping Jurisdiction’. See, on the matter, John A Knauss, ‘Creeping Jurisdiction and Customary International Law’ (1985) 15(2) Ocean Development & International Law 209.

3 See David H Anderson, ‘Some Aspects of the Use of Force in Maritime Law Enforcement’ in Nerina Boschiero, Tullio Scovazzi, Chiara Ragni and Cesare Pitea (eds), International Courts and the Development of International Law (T.M.C. Asser Press, 2013) 233, 234. See also Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009) 278 (‘[T]he use of reasonable force within the EEZ for EEZ-related purposes […] is encompassed within the grant of sovereign rights within the EEZ and is analogous to police action within state territory’). With regard to anti-piracy operations, see Tullio Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 European Journal of International Law 399, 413 (‘Action against pirates may, in my view, be assimilated to the exercise of the power to engage in police action on the high seas’).

4 Fisheries Jurisdiction (Spain v Canada) (merits) [1998] ICJ Rep 432, para 80. The only provisions contained in the United Nations Convention on the Law of the Sea (1982) 1833 UNTS 3 (UNCLOS) on the use of enforcement powers by coastal states against foreign vessels are arts 73(1) and 225, which are discussed in section 4(4) of this article.

5 Saint Vincent and the Grenadines v Guinea (M/V ‘Saiga’ (no. 2)) (judgment) [1999] ITLOS, paras 155­–6.

6 The definition of ‘transnational crime’ is quite broad. According to art 3(2) of the Palermo Convention on Transnational Crime (United Nations Convention against Transnational Organized Crime (2000) 2237 UNTS 319), an offence is ‘transnational in nature’ when it is committed by a criminal organisation: (a) in more than one state; (b) in one state but a substantial part of its preparation, planning, direction or control takes place in another state; (c) in one state but involves an organised criminal group that engages in criminal activities in more than one state; (d) it is committed in one state but has substantial effects in another state. For a more theoretical analysis of transnational law as an autonomous legal category, see Neil Boister, ‘“Transnational Criminal Law?”’ (2003) 14(5) European Journal of International Law 953.

7 On the distinction between maritime law enforcement and the use of force at sea as an inter-state (counter)measure, see Kwast (n 1). See also Douglas Guilfoyle, ‘Interdicting Vessels to Enforce the Common Interest: Maritime Countermeasures and the Use of Force’ (2007) 56 International and Comparative Law Quarterly 69.

8 See, e.g. on the matter Didier Bigo, ‘When Two Become One: Internal and External Securitisations in Europe’ in Morten Kelstrup and Michael Williams (eds), International Relations Theory and The Politics of European Integration: Power, Security and Community (Routledge, 2000), 171–204; Johan Eriksson and Mark Rhinard, ‘The Internal-External Security Nexus: Notes on an Emerging Research Agenda’ (2009) 44(3) Cooperation and Conflict 243; Magnus Ekengren, ‘The Interface of External and Internal Security in the EU and in Nordic Policies’, in Alyson J K Bailes, Gunilla Herolf and Bengt Sundelius (eds), The Nordic Countries and the European Security and Defence Policy (Oxford University Press, 2006), 267–87.

9 Ivan T Luke, ‘Naval Operations in Peacetime: Not Just “Warfare Lite”’ (2013) 66(2) Naval War College Review 11, 13.

10 See, e.g. Peter B Kraska, Militarizing the American Criminal Justice System: The Changing Roles of the Armed Forces and the Police (Northeastern University Press, 2001).

11 Ivan Shearer, ‘The Development of International Law with Respect to the Law Enforcement Roles of Navies and Coast Guards in Peacetime’ (1998) 71 International Law Studies 429.

12 UNCLOS (n 4). See, in particular, arts 92, 97, 99, 100, 105, 107, 109–10, 224.

13 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (2000) 2241 UNTS 507 (II Palermo Protocol) art 9(4); United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) 1582 UNTS 95, art 17(10); Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1995) ETS no. 156, art 11(2); 2005 Protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (2005) IMO Doc LEG/CONF.15/21, art 8(2).

14 Sam Bateman, ‘Regional Navies and Coastguards: Striking a Balance between “Lawships” and Warships’ in Geoffrey Till and Jane Chan (eds), Naval Modernisation in South-East Asia: Nature, Causes and Consequences (Routledge, 2014) 245, 245.

15 Basil Germond, ‘Maritime Security Cooperation in the Mediterranean: Towards a Comprehensive Approach’ in Eduard Soler i Lecha and Irene García (eds), VIII Seminario Internacional sobre Seguridad y Defensa en el Mediterráneo: New Scenarios for Cooperation (Barcelona Center for International Studies, Dirección General de Relaciones Institucionales – Ministerio de Defensa de España, 2010) 65, 68.

16 Giampiero Giacomello and Chiara Ruffa, ‘Small Navies and Border and Immigration Control: Frontex Operations in the Mediterranean’, in Michael Mulqueen, Deborah Sanders and Ian Speller (eds) Small Navies: Strategy and Policy for Small Navies in War and Peace (Ashgate, 2014) 133, 134. The same trend is visible in the Indian Ocean Region. See P V Rao, ‘Indian Ocean Maritime Security Cooperation: The Employment of Navies and other Maritime Forces’ (2010) 6(1) Journal of the Indian Ocean Region 129.

17 Terry D Gill, ‘The Forcible Protection, Affirmation and Exercise of Rights by States under Contemporary International Law’ (1992) 13 Netherlands Yearbook of International Law 121.

18 We understand that, in principle, this is not always true. See, for instance, the case of a small patrol boat (falling within the definition of ‘warship’ according to the flag state’s legislation) carrying officers armed only with semi-automatic light weapons attempting to stop a big bulk-carrier or oil tanker. The latter could easily overcome and/or overturn the patrol boat by manoeuvring against it, without the officers on board being able to defend themselves and the patrol boat firing at the attackers. Nevertheless, similar circumstances are to be considered exceptional. Naval practice suggests that, in normal circumstances, a private vessel is not in the position to use the same level of coercion as a warship.

19 Convention on the International Regulations for Preventing Collisions at Sea (1972) IMO, www.mar.ist.utl.pt/mventura/Projecto-Navios-I/IMO-Conventions%20(copies)/COLREG-1972.pdf (COLREGs).

20 See section 5.3. of this article. See also Cameron Moore, ‘Use of Force’ in Robin Warner and Stuart Kaye (eds), Routledge Handbook of Maritime Regulation and Enforcement (Routledge, 2016) 27, 28.

21 However, see the 1994 ‘battle’ between a vessel belonging to the Sea Shepherd Conservation Society and the Norwegian Coast Guard, which led to a collision and mutual allegations of ramming. According to Sea Shepherd, the Norwegian authorities also used depth charges to try to make their vessel stop (‘The Battle of the Lofotens’, Sea Shepherd Conservation Society (6 July 1994) www.seashepherd.org/who-we-are/the-battle-of-the-lofotens.html).

22 See, e.g. the Court of Cassation’s decision in the Xhavara case. The case concerns the collision between an Italian warship (ITS Sibilla) and the Albanian vessel Kater I Rades on 28 March 1997. The incident took place in the Channel of Otranto, around 35 nautical miles from the Italian coast. The Sibilla was trying to prevent the illegal entry of the Albanian ship, which was stuffed with Albanian citizens fleeing their own country, in the Italian territorial waters. The collision led to the death of around 100 people. In 2014 the Court of Cassation sentenced both the warship’s commanding officer and the master of the vessel (Namik Xhaferi et al., decision no. 24527 [2014] Court of Cassation). The case had been initially considered by the ECtHR in 2001 (Xhavara et Autres c. Italie et Albanie, application no. 39473/98 (decision) [2001] ECtHR).

23 The same solution has been developed by British authorities to halt suspect speedboats on the Thames (see Ben Leapman, ‘“James Bond Harpoon” to Stop Terrorist Attack from the Thames’, The Telegraph (14 January 2007) www.telegraph.co.uk/news/uknews/1539466/James-Bond-harpoon-to-stop-terrorist-attack-from-the-Thames.html).

24 M/V ‘Saiga’ (no. 2) (n 5).

25 ibid, paras 157­–58.

26 By virtue of UNCLOS (n 4) art 293.

27 See M/V ‘Saiga’ (no. 2) (n 5) para 155. The principles of reasonableness and necessity were lately restated by the Tribunal in the 2014 decision in the M/V Virginia G case (Panama v Guinea-Bissau (M/V Virginia G) (judgment) [2014] ITLOS, www.itlos.org/fileadmin/itlos/documents/cases/case_no.19/judgment/C19-Judgment_14.04.14_corr2.pdf, para 361). In the Matter of the Arctic Sunrise Arbitration (The Netherlands v Russia), PCA case no. 2014-02 [2015] Arbitral Tribunal, www.pcacases.com/web/sendAttach/1438, an Arbitral Tribunal made a further distinction: before even applying the principles of unavoidability, reasonableness and necessity, it is to be verified whether the intercepting warship’s flag state may lawfully exercise its powers over the intercepted vessel, i.e. whether the law enforcement measures undertaken by the warship have a legal basis in international law. The case concerned the pursuit and arrest by Russian authorities of a Dutch-flagged vessel (named ‘Artic Sunrise’) with Greenpeace protesters on board in 2013. According to the arbitral tribunal:

To assess the lawfulness of measures taken by a coastal State in response to protest actions within its EEZ, the Tribunal considers it necessary to determine whether: (i) the measures had a basis in international law; and (ii) the measures were carried out in accordance with international law, including with the principle of reasonableness. Where such measures involve enforcement measures they are subject to the general principles of necessity and proportionality (ibid, para 222).

However, after a careful scrutiny of all enforcement powers that Russia could potentially exercise in the case at hand, the arbitral tribunal found that

all law enforcement measures taken by Russia vis-à-vis the Arctic Sunrise subsequent to its unlawful boarding, seizure, and detention of the vessel have no basis in international law. Having reached this conclusion, the Tribunal does not need to consider the reasonableness, necessity, and proportionality of those measures. (ibid, para 333)

28 In the Matter of an Arbitration between Guyana v Suriname [2007] Arbitral Tribunal, www.pca-cpa.org/Guyana-Suriname%20Award70f6.pdf?fil_id=664, para 445.

29 For analysis, see Guilfoyle (n 3) 278­–82.

30 S.S. ‘I’m Alone’ (Canada, United States) [1933 and 1935] UNRIAA, vol III, 1609. The case concerned the intentional sinking of a Canadian-flagged sailing vessel by two U.S. Coastguard patrol boats in 1929, after a long chase. The Commission of Enquiry found that

the United States might … use necessary and reasonable force for the purpose of effecting the objects of boarding, searching, seizing and bringing into port the suspected vessel; and if sinking should occur incidentally, as a result of the exercise of necessary and reasonable force for such purpose, the pursuing vessel might be entirely blameless. But the Commissioners think that […] the admittedly intentional sinking of the suspected vessel was not justified […] (ibid, 1615).

31 Investigation of Certain Incidents Affecting the British Trawler Red Crusader, Report of 23 March 1962 of the Commission of Enquiry established by the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Denmark on 15 November 1961 (23 March 1962), UNRIAA, vol XXIX, 521. The case concerned the use of force by a Danish warship against a British fishing boat off the Faroe Islands in 1961. The Danish warship (two officers of which had remained entrapped on board the fishing vessel when it began to flee) had first used warning shots and then tried (mostly unsuccessfully) to hit the fishing boat’s mast, masthead light and stem with a 40mm automatic gun. An Anglo-Danish Commission of Enquiry found that the Danish patrol boat had ‘exceeded legitimate use of armed force’ because it had fired solid (namely non-explosive) gunshots at the fishing boats without previous warning, also putting at risk the lives of the people on board ‘without proved necessity’, the Commission being convinced that ‘other means should have been attempted, which, if duly persisted in, might have finally persuaded [the master] to stop and revert [the fishing boat]’ (ibid, 538).

32 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc A/CONF.164/37 (8 September 1995) art 22(1)(f) (‘The inspecting State shall ensure that its duly authorized inspectors: […] (f) avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances’). As Guilfoyle noted, however, while the I’m Alone and The Red Crusader cases ‘dealt only with use of force against a vessel [, …] the FSA deals with the use of force aboard a vessel’ (Guilfoyle (n 3), 277).

33 Tullio Scovazzi, ‘ITLOS and Jurisdiction over Ships’, in Henrik Ringbom (ed), Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea (Brill Nijhoff, 2015) 382, 395.

34 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba (27 August to 7 September 1990) www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx.

35 ibid, art 4.

36 Graham v Connor, Case No. 87-6571 (judgment) [1989] US Supreme Court, 490 US 386.

37 ibid.

38 Geoffrey P Alpert and William C Smith, ‘How Reasonable is the Reasonable Man?: Police and Excessive Force’ (1994) 85 Journal of Criminal Law and Criminology 481, 487. According to Del Carmen and Hemmens, ‘reasonable force is subjective, meaning it depends on the circumstances in each case and ultimately the perception of the judge or jury that tries the case’ (Rolando V Del Carmen and Craig Hemmens, Criminal Procedure: Law and Practice (Cengage Learning, 10th rev edn 2016) 180).

39 Giuliani and Gaggio v Italy, application no. 23458/02 (judgment) [2011] ECtHR (GC), para 178.

40 See, e.g., art 87J of the Australian Fisheries Management Act, according to which ‘[a]n officer must not use force … unless it is necessary to do so: (a) to ensure the safety of an officer; or (b) to overcome obstruction of an officer in the exercise of that officer’s powers … The force used must not be more than is reasonably required for the relevant purpose’ (Fisheries Management Act 1991, Act No. 162 of 1991 [as further amended], www.comlaw.gov.au/Details/C2015C00407, art 87J).

41 See Craig H Allen, ‘Limits on the Use of Force in Maritime Operations in Support of WMD Counter-Proliferation Initiatives’ (2006) 81 Naval War College International Law Studies 77, 87 (‘Disabling fire is the firing of ordnance at a vessel with the intent to disable it, with minimum injury to personnel or damage to the vessel’).

42 Julia Hornberger, Policing and Human Rights: The Meaning of Violence and Justice in the Everyday Policing of Johannesburg (Routledge, 2011) 68.

43 Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, CoE, ETS 156 (31 January 1995) https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168007cdab, art 12(1)(d): ‘In the application of this Agreement, the Parties […] shall take into account […] the need to restrict the use of force to the minimum necessary to ensure compliance with the instructions of the intervening State’.

44 Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, IMO, Doc No. LEG/CONF.15/21 (1 November 2005) www.unodc.org/tldb/pdf/Protocol_2005_Convention_Maritime_navigation.pdf, art 8bis(9): ‘Any use of force pursuant to this article shall not exceed the minimum degree of force which is necessary and reasonable in the circumstances.’

45 Fisheries Jurisdiction (n 4) 466. The case concerned the use of force by a Canadian patrol boat, on 9 March 1995, against a Spanish fishing vessel off the Canadian coasts. The Canadian legislation on the use of force by state vessels during fisheries control operations allowed (and still allows) law enforcement officers to ‘use force that is intended or is likely to disable a foreign fishing vessel’ when officers ‘believ[e] on reasonable grounds that the force is necessary’ (Coastal Fisheries Protection Act (1985) R.S.C., c. C-33, http://laws-lois.justice.gc.ca/eng/acts/C-33/FullText.html, art 8.1). More specifically, at the time of facts, fisheries protection officers could (and they still may) use ‘all less violent means reasonable in the circumstances’ (Coastal Fisheries Protection Regulations, C.R.C., c. 413, http://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._413/FullText.html, art 19.4) to enforce the law. Direct force should, however, be preceded by warning shots (ibid, art 19.5). In assessing such provisions, the Court found them to fall ‘within the ambit of what is commonly understood as enforcement of conservation and management measures’ (Fisheries Jurisdiction (n 4) para 84).

46 McCann and Others v the United Kingdom, application no. 18984/91 (judgment) [1995] ECtHR (GC).

47 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (1950) ETS 5 (ECHR), art 2(2):

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

48 McCann (n 46) para 149.

49 ibid, para 148.

50 ibid, para 149, referring to arts 8(2), 9(2), 10(2), 11(2) of the ECHR (n 47).

51 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (n 13) art 17(5):

Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.

52 CoE Agreement (n 43) art 12(1):

In the application of this Agreement, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and cargo and not to prejudice any commercial or legal interest.

53 See Moore (n 20) 32 (stating that such flag States represent 60% of the world’s shipping by tonnage).

54 M/V Virginia G (n 27) para 373.

55 UNCLOS (n 4) art 73(1):

The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.

56 M/V Virginia G (n 27) separate opinion of Judge Paik, para 9.

57 McCann (n 46) para 149. As McLaughlin argues in his article on the use of force by coastal states in their EEZ: ‘[W]hen interpreting the word “necessary” it is arguably the question of “proportionality” that must actually be addressed’ (Rob McLaughlin, ‘Coastal State Use of Force in the EEZ under the Law of The Sea Convention 1982’ (1999) 18 University of Tasmania Law Review 11, 17–18).

58 Code of Conduct for Law Enforcement Officials, adopted by General Assembly Resolution No. 34/169 of 17 December 1979, www.ohchr.org/EN/ProfessionalInterest/Pages/LawEnforcementOfficials.aspx, art 3 and commentary thereto. See also Committee of Ministers of the Council of Europe, The European Code of Police Ethics, Rec(2001)10 (19 September 2001) http://polis.osce.org/library/f/2687/500/CoE-FRA-RPT-2687-EN-500, rule 37 and commentary thereto, 55.

59 Nachova and Others v Bulgaria, applications nos. 43577/98 and 43579/98 (judgment) [2005] ECtHR (GC), par. 107.

60 Alikaj and Others v Italy, application no. 47357/08 (judgment) [2011] ECtHR, para 63.

61 Efthymios Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart, 2013) 301.

62 See, e.g. Guilfoyle (n 3) 293; Shearer (n 11) 441–2. Interestingly, Chinese scholars seem to refer to similar legal principles, even without considering the Saiga II judgment. See, in particular, Zhao Weidong, ‘A Discourse on the Use of Force by China Coast Guard in Maritime Law Enforcement’ (2009) 1 China Oceans Law Review 73.

63 M/V ‘Saiga’ (no. 2) (n 5) para 156.

64 Louise De La Fayette, ‘The M/V “Saiga” (no.2) Case (St. Vincent and the Grenadines v Guinea), Judgment’ (2000) 49(2) International and Comparative Law Quarterly 467, 473.

65 UN Principles (n 34) art 10:

… law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

66 Craig H Allen, ‘Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices’ (1989) 20 Ocean Development & International Law 309, 320; Rachel Canty, ‘Developing Use of Force Doctrine: A Legal Case Study of the Coast Guard's Airborne Use of Force’ (2000) 31 University of Miami Inter-American Law Review 357, 366.

67 See in general William Terrill, Police Coercion: Application of the Force Continuum (LFB Scholarly Publishing, 2001). See also Allen (n 41) 86; Canty (n 66) 369.

68 William Terrill, ‘Police Use of Force: a Transactional Approach’ (2005) 22 Justice Quarterly 107.

69 UN Principles (n 34) art 10.

70 Kallis and Androulla Panayi v Turkey, application no. 45388/99 (judgment) [2009] ECtHR, para 62.

71 Güleç v Turkey, application no. 21593/93 (judgment) [1998] ECtHR, para 71; Simsek and Others v Turkey, applications nos. 35072/97 and 37194/97 (judgment) [2005] ECtHR, par. 111.

72 Makaratzis v Greece, application no. 50385/99 (judgment) [2004] ECtHR, para 59; Alikaj (n 60) para 64. See also Parliamentary Assembly of the Council of Europe, Declaration on the Police, Resolution 690 of 8 May 1979, www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=16101&lang=en, Appendix 1, art 13: ‘Police officers shall receive clear and precise instructions as to the manner and circumstances in which they should make use of arms.’

73 Makaratzis (n 72).

74 Ergi v Turkey, application no. 23818/94 (judgment) [1998] ECtHR, para 79; McCann (n 46) para 150; Makaratzis (n 72) para 59; Alikaj (n 60) para 61.

75 See, e.g. the prohibition of penalties entailing detention for violations of fisheries laws in the EEZ, as established in UNCLOS (n 4) art 73(3).

76 Huohvanainen v Finland, application no. 57389/00 (judgment) [2007] ECtHR, paras 97­–8.

77 David J Letts, ‘The Use of Force in Patrolling Australia's Fishing Zones’ (2000) 24 Marine Policy 149, 155.

78 McLaughlin (n 57) 17 and 20.

79 James Anderson, ‘A Sea of Change Reforming the International Regime to Prevent, Suppress and Prosecute Sea Piracy’ (2013) 44 Journal of Maritime Law and Commerce 47, 57; Andrew Murdoch and Douglas Guilfoyle, ‘Capture and Disruption Operations: The Use of Force in Counter-Piracy Off Somalia’, in Douglas Guilfoyle (ed), Modern Piracy: Legal Challenges and Responses (Edward Elgar, 2013) 147, 166.

80 See, in particular, Fletcher’s theory (and criticism) of ‘necessary defence’, according to which

the model of necessary defense is founded on the principle that it is right and proper to use force, even deadly force, in certain situations. The source of the right is a comparison of the competing interests of the aggressor and the defender, as modified by the important fact that the aggressor is the one party responsible for the fight. This theory of the defense appears to be a straightforward application of the principle of lesser evils.

George P Fletcher, Rethinking Criminal Law (Oxford University Press, 2000), 857–8.

81 Rules of Engagement (RoE) may be defined as ‘[d]irectives issued by competent military authority that delineate the circumstances and limitations under which [a state] forces will initiate and/or continue combat engagement with other forces encountered’ (Dictionary of Military and Associated Terms, Department of Defense, Joint Publication 1-02 (8 November 2010) (as amended through 15 February 2016) www.dtic.mil/doctrine/new_pubs/jp1_02.pdf, 207).

82 Non-Lethal Weapons may be defined as ‘weapons which are explicitly designed and developed to incapacitate or repel personnel, with a low probability of fatality or permanent injury, or to disable equipment, with minimal undesired damage or impact on the environment’ (NATO Policy on Non-Lethal Weapons, NATO (13 October 1999) www.nato.int/docu/pr/1999/p991013e.htm, para 3). See Massimo Annati, ‘The Role of Non-Lethal Weapons in Maritime Operations’ (2014) 9 NATO- NMIOTC Maritime Interdiction Operations Journal 38.

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