International Humanitarian Law and Protection of Neutral Merchant Shipping Explained

Subject: GS 2: International Relations

Context: Recent United States missile strikes near the Strait of Hormuz, affecting merchant vessels carrying Indian seafarers, have renewed concerns over the protection of neutral merchant shipping during armed conflict under International Humanitarian Law (IHL), UNCLOS, and the Law of Maritime Neutrality.

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About International Legal Framework Governing Naval Warfare

• International Humanitarian Law (IHL)/Law of Naval Warfare: The Law of Naval Warfare, a branch of International Humanitarian Law (IHL), regulates the conduct of hostilities at sea by prescribing the circumstances under which warships and merchant vessels may be visited, searched, captured, blockaded, or attacked during an international armed conflict. 
  • Its primary objective is to minimise human suffering by protecting civilians and civilian objects while regulating the means and methods of warfare.
• United Nations Convention on the Law of the Sea (UNCLOS), 1982: UNCLOS establishes the legal framework governing maritime zones, navigational rights, and the rights and obligations of coastal States, flag States, and user States. 
  • Although some countries are not parties to the Convention, many of its provisions have attained the status of customary international law.
• Law of Maritime Neutrality: The Law of Maritime Neutrality governs the legal relationship between belligerent States and neutral States during armed conflict. 
  • It seeks to protect neutral territory, neutral shipping, and commercial trade while requiring neutral States not to provide military assistance to any party to the conflict.

Core Principles of International Humanitarian Law

• Principle of Distinction: Parties to an armed conflict must distinguish at all times between military objectives and civilian persons or civilian objects. Direct attacks may only be directed against lawful military objectives.
• Principle of Proportionality: Even where a legitimate military objective exists, an attack is prohibited if the expected incidental civilian harm would be excessive in relation to the anticipated concrete and direct military advantage.
• Principle of Military Necessity: The use of force must be limited to that which is necessary to achieve a legitimate military objective and must not exceed what is required to accomplish that objective.
• Principle of Precaution: Belligerents must take all feasible precautions before launching an attack to avoid or minimise civilian casualties and damage to civilian objects.

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Protection of Neutral Merchant Shipping

• General Protection: Neutral merchant vessels flying the flag of a State not party to the armed conflict are presumed to be civilian objects and therefore enjoy protection from attack under International Humanitarian Law and the Law of Maritime Neutrality.
• Protection of Civilian Cargo: Commercial vessels carrying civilian goods such as food, fertilisers, petroleum products, medicines, and consumer goods do not become lawful military objectives merely because of their commercial cargo.
• Transit Through International Straits: Under Part III (Articles 37–44) of UNCLOS, all ships and aircraft enjoy the right of transit passage through international straits such as the Strait of Hormuz, subject to applicable rules of international law.

When Can Neutral Merchant Ships Lose Protection?

• Limited Exceptions: According to the San Remo Manual (1994), a neutral merchant vessel may lose its protected status only if it:
  • Is reasonably believed to be carrying contraband intended for the enemy.
  • Intentionally breaches a lawfully established naval blockade.
  • Refuses, after prior warning, to stop for inspection or search.
  • Intentionally resists visit, search, capture, or diversion.
  • Makes an effective contribution to the enemy’s military operations such that its destruction offers a definite military advantage.
  • Outside these narrowly defined circumstances, attacks on neutral merchant vessels are prohibited under international law.

Can Oil Tankers Be Lawfully Attacked?

• Traditional Interpretation: Commercial oil exports do not become lawful military objectives merely because they generate revenue for a belligerent State. 
  • The tanker or its cargo must make an effective contribution to military operations, and its destruction must provide a definite military advantage.
• War-Sustaining Theory: A broader interpretation argues that commercial assets generating revenue that directly sustains a belligerent’s military effort may themselves become lawful military objectives. 
  • However, this theory remains controversial and has not gained universal acceptance under customary international law.

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Naval Blockades under International Law

• Meaning: A naval blockade is a belligerent measure intended to prevent vessels and aircraft from entering or leaving enemy-controlled ports or coastal areas in order to restrict military supplies, imports, and exports.
• Conditions for a Lawful Blockade: According to the San Remo Manual and the Helsinki Principles (1998), a lawful blockade must be officially declared, effectively enforced, applied impartially to all States, and must not exist merely as a paper blockade. 
  • However, compliance with these conditions alone does not necessarily make the blockade lawful under the UN Charter.

Jus ad Bellum vs. Jus in Bello

• Jus ad Bellum (Legality of Using Force): Jus ad Bellum determines when a State may lawfully resort to force. Under Article 2(4) of the UN Charter, force is prohibited except in self-defence (Article 51) or when authorised by the UN Security Council (UNSC).
• Jus in Bello (Conduct of Hostilities): Jus in Bello, primarily embodied in International Humanitarian Law, regulates the conduct of military operations regardless of whether the conflict itself is lawful.
• Key Distinction: A naval blockade may comply with Jus in Bello while still violating Jus ad Bellum if the underlying use of force lacks a valid legal basis.

Major International Legal Instruments

• United Nations Charter (1945): Prohibits the unlawful use of force and empowers the UN Security Council to authorise enforcement measures, including naval blockades, under Article 42.
• Geneva Conventions (1949): Establish the core rules of International Humanitarian Law protecting civilians, civilian objects, prisoners of war, and other protected persons.
• UNCLOS (1982): Codifies the legal framework governing maritime zones, freedom of navigation, transit passage, and the rights and obligations of States at sea.
• San Remo Manual (1994): Although not legally binding, it is regarded as the most authoritative restatement of customary international law governing armed conflicts at sea.
• Helsinki Principles on the Law of Maritime Neutrality (1998): Provide authoritative guidance on the rights and obligations of belligerent States and neutral States during maritime armed conflicts.

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Implications for India

• Protection of Indian Seafarers: India has a legitimate interest in ensuring the safety and legal protection of Indian nationals serving aboard merchant vessels operating in conflict-prone maritime regions.
• Diplomatic Protection: Under the doctrine of Diplomatic Protection, India may espouse claims arising from injuries suffered by its nationals, seek explanations, demand accountability, compensation, and call for independent investigations into internationally wrongful acts.
• Maritime and Energy Security: As a major maritime trading nation heavily dependent on the Strait of Hormuz for crude oil imports, India has a strategic interest in preserving freedom of navigation and protecting neutral shipping.

Its Significance

• Protection of Civilians and Commercial Shipping: International law safeguards civilian seafarers, merchant vessels, and commercial cargo from unnecessary harm during armed conflict.
• Preservation of Freedom of Navigation: Protection of neutral shipping ensures uninterrupted international trade through strategic maritime chokepoints.
• Global Maritime Stability: Compliance with the law of naval warfare reduces disruptions to global supply chains, energy security, and international commerce.
• International Accountability: The legal framework facilitates investigation of violations, reparations, and accountability for unlawful attacks on civilian shipping.
• Protection of India’s Strategic Interests: Upholding international rules protecting neutral shipping strengthens India’s maritime security, energy security, and the safety of Indian seafarers operating across global sea lanes.

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Conclusion

Upholding International Humanitarian Law, freedom of navigation, and the protection of neutral shipping is essential for maintaining global maritime stability, safeguarding civilian lives, and securing India’s strategic, energy, and commercial interests in an increasingly contested maritime domain. 

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