Some current (and enduring) challenges in the application and interpretation of the law of naval warfare

Abstract As a nuanced and quite domain-specific subset of international humanitarian law (IHL), the law of naval warfare (LONW) occasionally differs from general IHL in terms of rule content, interpretation, and application. For example, the targeting regime in the LONW is primarily platform-based, while the concept of civilian direct participation in hostilities is significantly less relevant at sea. Similarly, the application of the common Article 2 threshold at sea does not always parallel its application in other battlespaces and domains. Such inconsistencies – when compared to IHL more generally – can appear to be archaic and obtuse, but fidelity to the historical provenance and differential interpretation and application of these specialist rules is both essential and, in the current geostrategic environment, worth recalling. Given this predisposition to difference, this article outlines five current risks attending the modern application and interpretation of the LONW: misinterpretation and misapplication of the LONW due to a failure to appreciate its often sui generis nature; the lure of application and interpretation by analogy from shore-based LOAC; the heavy reliance of the LONW on historical examples; the highly lex specialis nature of the LONW in relation to the non-fragmentation trends underpinning the modern international law interpretive endeavour; and the consequences often assumed to flow from the aged nature of the LONW’s main sources.