The Houthi Attacks on Ships and Freedom of Navigation

In many ways, the atrocities committed on 11 September 2001 changed our perception of international law, norms and rules, one result of which was The Bush Doctrine attributed to President George W. Bush.

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A November 20, 2023 file photo of a Houthi military helicopter flying over Galaxy Leader cargo ship in the Red Sea

Inter arma enim silent leges ~ Attributed to Cicero

In English interpretation, the above phrase signifies that amid times of war, legal principles lose their influence. This statement conveys the notion that in moments of conflict or emergency, established laws and norms could be disregarded or sacrificed to prioritize security and military goals.

The Current Crisis

The Houthis, an armed faction backed by Iran, and a formidable military presence in Yemen, perceives Israel as an adversary. Following the commencement of the Israel-Hamas conflict, the Houthis initiated the launch of drones and missiles towards Israel. Although the majority were intercepted by Israeli and US forces, the Houthis also seized a commercial ship in the Red Sea and targeted over two dozen others using drones and missiles. They claim to be aiming at ships with Israeli ownership or those transporting goods to Israel, but many of the targeted vessels have no ties to Israel. As a consequence, major shipping companies have chosen  to avoid the Red Sea, opting for a much longer route around southern Africa instead. This diversion reportedly costs a shipping company one million dollars more per journey.

The United States and The United Kingdom have retaliated by firing at Houthi targets: on  16 sites with more than 60 attacks. Some fear this has led to a potential regionalizing of the Israel-Gaza war. Farea Al-Muslimi, Research Fellow at Chatham House writes that the military actions carried out by the United States and the United Kingdom in Yemen on January 11 and 12 2024 were framed by the Biden administration as a decisive statement indicating that the US will not tolerate any threat to the freedom of navigation in the Red Sea from hostile entities. UK Prime Minister Rishi Sunak characterized the strikes as a limited, necessary, and proportionate defensive measure.

These airstrikes followed the Houthis’ refusal to heed calls to cease their attacks, which included a formal letter conveyed by the UK on behalf of the international community to the group’s leadership, as reported by several senior Houthi figures.

It is presumed that the US and UK strikes are the perceived, albeit undesirable, option to exert pressure on the Houthis to halt their aggressive activities. However, these strikes are largely symbolic and are seen as a response to pressure from local stakeholders, shipping companies, and other interests that have faced increased costs due to the recent surge in Houthi attacks. Notably, one shipping company has already expressed support for the operation.

Freedom of Navigation

The actions taken by the United States and The United Kingdom have been defended on the grounds that they align with international legal principles. President Joe Biden asserted that the strikes were a “direct response” to assaults on ships in the Red Sea, posing risks to trade and the freedom of navigation. UK Prime Minister Rishi Sunak described the measures as “essential and proportionate” in safeguarding global shipping. Turkey has protested against the retaliation by saying the actions of the two countries have been “disproportionate”.

The concept of Freedom of Navigation of the Seas is a globally acknowledged legal principle that guarantees both military and civilian vessels the entitlement to traverse the Earth’s oceans unimpeded. This principle stands as a fundamental element of maritime law and finds expression in numerous international agreements and conventions.

The United Nations Convention on the Law of the Sea (UNCLOS) serves as a pivotal legal framework that addresses the notion of freedom of navigation. As per UNCLOS, vessels under the flag of any State have the right to innocent passage through territorial seas, and there should be no unjustifiable restrictions on the freedom of ships to navigate the high seas.

Essential for worldwide trade, economic endeavors, and communication, freedom of navigation ensures the unobstructed movement of ships across international waters, fostering peaceful collaboration and averting conflicts linked to maritime routes. Nations are generally expected to honor and maintain the principles of freedom of navigation to preserve stability and order in the global oceans.

The enduring concept of freedom of the seas allows ships to navigate without hindrance, primarily governed by the legal jurisdiction of the vessel’s flag. Even within the 12 nautical miles (22 kilometers) territorial sea zones of sovereign states, ships are authorized to engage in “innocent passage” according to the provisions of UNCLOS. It is only upon entering the internal waters or port regions of another nation that the jurisdiction of the flag State may be superseded. Nevertheless, there have been instances where decisions deviated from this customary practice, notwithstanding this principle.

The paramount goal of maritime safety is to efficiently eliminate the risk of encountering danger. This concept encompasses three key dimensions: ensuring the well-being and safety of individuals at sea; safeguarding maritime assets;  and preserving the integrity of the marine environment.

My Take

The issue of Cicero’s quote boils down to whether military peccadillos and retaliatory warfare override established principles of international law. The implication of Cicero’s aphorism is that civil liberties and freedoms are subservient to a nation’s self-defence from enemies within or without. The term “war” is no longer used in its traditional restrictive sense of a conflict involving international dimensions. In the modern sense, war is any prolonged state of violent, large-scale conflict involving two or more groups of people and is now considered to include non-international armed conflicts.

In many ways, the atrocities committed on 11 September 2001 changed our perception of international law, norms and rules, one result of which was The Bush Doctrine attributed to President George W. Bush. The Bush Doctrine proposes a potential alteration to international law, suggesting that nations should be permitted to initiate pre-emptive military measures to prevent terrorist attacks or enemy offensives involving weapons of mass destruction. Paul F. Diehl, Shyam Kulkarni, and Adam Irish, in an article published in Loyola University Chicago International Law Review define the Bush Doctrine as “claim of authority to use, unilaterally and without international authorization, high levels of violence in order to arrest a development that is not yet operational and hence is not yet directly threatening, but which, if permitted to mature, could be neutralized only at a high, possibly unacceptable, cost”.

Currently, though, the Bush Doctrine is more of a conceptual idea rather than a fully articulated set of proposed legal regulation. However, this new dimension has resulted in the juridification of war, even as an implicit doctrine enunciating the primacy of security of a State.

Arguably, The United States and the United Kingdom can anchor themselves on this concept. It may be time though to ascribe  some legal legitimacy to the Bush Doctrine with the attachment of several conditions. The above mentioned authors inquire into some of these conditions,  by asking questions such as:  what constitutes the triggering threat threshold for the Doctrine? who possesses the authority to authorize actions under the Doctrine? is it mandatory for this to be considered a last resort option? must the exercise of this right involve multilateral action, or is unilateral action acceptable? in what ways do the laws of war limit the actions dictated by the Doctrine? what mechanisms are in place to guarantee compliance/enforcement and to penalize violations of the Doctrine?

If these conditions are addressed through compelling international accord, the world could indeed be a more peaceful place to live.

Ruwantissa Abeyratne

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.

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