17 Nov “Friendly Fire: On!” – Some Thoughts on the Jersey Incident
[Mustafa Tuncer is a PhD Candidate at University of Exeter. His research focuses on the legal situation of civilian vessels in armed conflicts at sea.]
Post-Brexit fisheries disputes between the UK and France broke out over the island of Jersey’s territorial waters in an unprecedented way. After the post-Brexit trade deal on 24 December 2020, the government of Jersey, a self-governing Crown dependency, issued new licenses and restrictions for French fishing vessels operating in its territorial sea. These new requirements caused harsh reactions on the French side, including French fishermen threatening to blockade the island, and warnings by the French Minister of the Seas, Annick Girardin, to cut the electricity to Jersey as retaliation.
On 6 May 2021, about 50 French fishing vessels gathered in the St. Helier port of Jersey to protest the new fisheries regulations. During this demonstration, described in British press as a “blockade,” the UK sent two Royal Navy warships to Jersey “as a precaution”, along with two French coastal patrol ships to monitor the situation. However, small violent actions took place; such as the ramming of a British vessel by a French boat, and the firing on the protesting French vessels with a musket by a Jersey Militia re-enactment group member. At the end of the day, French fishing vessels left St. Helier and the tensions eased, but the legal controversy remains. As of 19 October, the French government gave a deadline of two weeks so that more fishing licenses would be granted, under the threat of sanctions towards Jersey and the UK.
This article will primarily deal with the relationship between the use of force in the context of maritime law enforcement (MLE) and the possible application of the law of naval warfare (LONW) in similar incidents, with a specific focus on the Jersey Incident on 6 May. Thus, the current fisheries dispute between France and the UK is not included in this paper. The first part will present the conditions of the lawful use of armed force during MLE operations, with examples from the case law. Next, the second part will look for an answer to the question of whether LONW would be applicable in MLE operations, especially in disputed maritime areas. Finally, this paper will present the view that the application of LONW is not purely a legal matter, the context plays a more significant role in determining the applicable law.
MLE vs. Use of Force at Sea: A Borderline Jurisprudence
Coastal States, to implement their maritime legislations, sometimes employ armed force during MLE operations. Although this is a quite common phenomenon, as the ITLOS also pointed out in the M/V Saiga (No. 2) case, “the UNCLOS does not contain express provisions on the use of force in the arrest of ships.” Therefore, case law provides the applicable principles for analysis.
The I’m Alone arbitral award between the United States and Canada laid the foundations. In 1929, the US Coast Guard sank the vessel I’m Alone, a British ship of Canadian registry, for an alleged violation of the liquor prohibition rules. According to the arbitral award, “[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.” (emphasis added). Thus, the sinking of the I’m Alone was not found justified.
The principle created by the I’m Alone case continued to apply in subsequent incidents. In 1961, a British trawler, Red Crusader, was arrested by the Danish warship HDNS Niels Ebbesen, because of the alleged violation of exclusive fishing rights in Danish territorial waters. However, the Red Crusader attempted to escape. To prevent this escape, the Niels Ebbesen first fired some warning shots, then solid gunshots hitting the Red Crusader, which still managed to reach Great Britain. After the incident, the governments of the United Kingdom and Denmark established a commission to make a legal assessment. According to the investigation report of the Commission of Enquiry, the Niels Ebbesen “exceeded legitimate use of armed force” because of “firing without warning of solid gun-shot” and “creating danger to human life on board the “Red Crusader” without proved necessity.”
The arbitral award between Guyana and Suriname dealt with the use of force during MLEs in the context of a maritime delimitation dispute. In 2000, two Surinamese gunboats expelled the C.E. Thornton, a Canadian oil rig and drill ship authorised by Guyana, from the disputed territorial waters, after the transmission of the warning message “leave the area in 12 hours, (or) the consequence will be yours.” Having repeated the historical principle of “unavoidable, reasonable and necessary” conditions for the lawful use of force, the Arbitral Tribunal considered that the action of Suriname “constituted a threat of the use of force in contravention of the Convention, the UN Charter and general international law.”
The case law demonstrates that the use of force is an exceptional measure during MLE activities. The Guyana vs. Suriname Arbitral Award shows the decreasing necessary threshold of violence for the threat and use of force. Thus, depending on the context, an explicit warning or even an implicit behaviour could constitute a threat of force.
While analysing the activities of the Royal Navy, it seems unlikely to consider that these warships used armed force or made a threat to use force against the protesting French fishing vessels, because of the “precautionary” character of their patrol. If the attitude of both parties was different, even the appearance of these warships could constitute a threat of force. Hence, the Jersey incident mostly remained within MLE. However, an analysis based on LONW is still necessary to clarify ambiguities.
What about LONW?
When a coastal State threatens or uses armed force in the sense of the UN Charter, LONW could get on the stage. Several legal challenges complicate its applicability in incidents arising from maritime disputes. Those challenges help to specify the cases of use of force at sea triggering an IAC. Nevertheless, the legal framework provided by the existing law is not enough to acknowledge that the existence of an IAC at sea, thus the application of LONW, only depends on objective legal considerations. Instead, as demonstrated below, the context plays a more decisive role.
Firstly, under Common Article 2 of the Geneva Conventions, the existence of an armed conflict is the most essential requirement for the application of IHL. The ICRC Commentary of the GC III of 2020 maintained the perspective adopted in the Tadic case according to which “an armed conflict exists whenever there is a resort to armed force between States.” This “absence of threshold” principle is also applicable in armed conflicts at sea. the San Remo Manual of 1994, a restatement of LONW, reflected the same view. Accordingly, “even minor skirmishes” at sea, would trigger the application of IHL. For example, after the sinking of the South Korean warship ROKS Cheonan in 2010 by a North Korean submarine; the ICC Prosecutor considered that the incident “created an IAC.”
Civilian vessels could be on both sides of an incident at sea. They sometimes participate in activities constituting the use of force. But they mostly become targets of warships belonging to coastal States.
In recent years, civilian vessels, have been involved in several incidents against warships or coast guard vessels. On 7 October 2016, a Chinese fishing vessel sank a South Korean Coast Guard patrol craft. Moreover, Chinese fishing vessels reportedly conduct harassment and coercion activities against foreign warships in the disputed parts of the South China Sea, while acting as “China’s maritime militias.” Similarly, the North Korean Navy also escorts their fishing vessels violating the disputed Northern Limit Line between the two Koreas.
These incidents show that fishing vessels could commit acts amounting to the use of force, possibly triggering an IAC. For such a qualification, something more than a simple State encouragement is necessary. The effective control or overall control tests will become applicable for the attribution of their acts to the flag State. Nonetheless, if those vessels maintain MLE activities as auxiliaries to their country’s navy under the guise of fishing, they will be able to initiate an IAC and become legitimate targets.
The other side of the coin seems less complicated. For instance, according to the ICRC Commentary, the use of force “against the enemy’s territory, its civilian population and/or civilian objects … constitutes an IAC.” However, when a coastal State uses force against foreign civilian vessels during an MLE operation, the situation would not directly transform into an IAC. As the ICRC Commentary pointed out, for the application of LONW, “the use of force at sea [must be] motivated by something other than a State’s authority to enforce a regulatory regime applicable at sea.” ICRC apparently provides a fair balance between MLE measures and naval belligerency. The “motivation” requirement necessitates more clarification concerning the scope of LONW in an incident triggered by a fisheries dispute.
The use of the term “motivation” by the ICRC Commentary is not unanimously supported. For example, Heintschel von Heinegg criticised the use of this term: “the ICRC Commentary is rather cryptic” because it lacks an explanation of its legal implications. Also, a justification based on MLE does not always present an objective finding. This is especially the case when a dispute arises between two States on sovereign rights on the waters where an incident takes place. While one State could assert that the armed force was used as MLE; the other party would consider that its sovereignty was violated by the use of force. Then this could cause the application of IHL.
The modern IHL aimed at creating an objective legal framework applicable to “all cases of declared war or of any other armed conflict” (CA 2). The ICRC Commentary of 2020 interpreted the declaration of war “as the only expression of the States’ belligerent intent.” Considering that contemporary IACs do not start with such declarations, the concept of belligerent intent seems outdated in this sense. However, while analysing the recent incidents at sea, it is highly unlikely to see a completely objectified application of LONW. In each case of the use of force at sea, either between naval forces or towards civilian vessels as part of MLEs, the international community make a contextual analysis containing political and geostrategic aspects, rather than a purely legal one.
Concluding Remarks: Somewhere in the Grey Zone
The 6 May protest and the deployment of British and French warships do not obviously constitute an IAC, but this analysis is not only based on strictly legal arguments. Moreover, due to the age-long Franco-British alliance and the decreased tension in the present incident, such a qualification cannot meet any support. However, if such an incident took place in a different atmosphere, for instance, in the South China Sea between China and the Philippines, or around the Northern Limit Line between the two Koreas; the assessment would have been different, and LONW could have been applicable.
Although the Jersey incident did not trigger the application of the jus in bello, it is a valuable example to demonstrate the complexities to distinguish “peace” and “war.” Therefore, the concept of “grey zone” conflict could become applicable, because of the diversity of actors (States and private actors such as fishermen) and actions (threatening statements from both sides, activities of warships, so-called “blockade,” and attitude of the press). For example, HMS Severn, one of two Royal Navy warships in the Jersey incident, had previously shadowed Russian warships in the English Channel in late 2020. This could be a simple coincidence, but the language of some government officials and the press was not very peaceful. According to the Daily Telegraph, an anonymous British government source said, concerning the French threat to cut the electricity, that: “At least the Nazis kept the lights on” referring to the Nazi occupation of the Channel Islands between 1940-1945. The Sun used the words “Retreat”, while asserting that “Next time will be war”.
The Jersey incident helps to illuminate the use of contextual perspective in legal analysis vis-à-vis LONW. It also diverges from the previous “grey zone” conflicts having mostly taken place between rival States, but not between traditional allies. Hence, the Jersey incident provides an example influencing the development of the “grey zone” concept.