Dr. Robert S. Wood
This book, the seventy-third volume of the International Law Studies series, is dedicated
to Dr. Wood in recognition of his devoted service to the Naval War College, his
visionary leadership of the Center for Naval Warfare Studies, and his support for the rule
of law.
INTERNATIONAL LAW STUDIES
Volume 73
INTERNATIONAL LAW STUDIES
Volume 73
Annotated Supplement to The Commander's
Handbook on the Law of Naval Operations
A.R. Thomas and James C. Duncan
Editors
Naval War College
Newport, Rhode Island
1999
FOREWORD
The International Law Studies "Blue Book" series was initiated by the Naval
War College in 1901 to publish essays, treatises and articles that contribute to the
broader understanding of international law. This, the seventy-third volume of
that series, publishes the Annotated Supplement to The Commander's Handbook on
the Law of Naval Operations. Originally prepared in soft cover in late 1997 for use
by students at the Naval War College and by judge advocates and others
responsible for advising operational commanders on the law, it has been so well
received that we are pleased to be able to make it available to a wider audience
through the "Blue Book" series.
The Commander's Handbook on the Law of Naval Operations provides guidance
to operational commanders and supporting staff elements at all levels of
command of the Navy, Marine Corps, and Coast Guard. As an official
publication, it expresses the views of the United States wi*h respect to the
international norms governing the conduct of military operations in both time of
peace and time of war. This encyclopedic Annotated Supplement provides a
section-by-section analysis of the Handbook with full discussion of the concepts
involved and the sources of the rules stated. As an unofficial publication, the
positions and opinions expressed in the annotations are not necessarily those of
the United States Navy or the Naval War College.
The Annotated Supplement was prepared under the leadership of Professor
Emeritus Jack Grunawalt, while he served as Director of the Naval War
College's Oceans Law and Policy Department. On behalf of the Secretary of the
Navy, the Chief of Naval Operations, and the Commandant of the Marine
Corps, I extend to Professor Grunawalt and the countless others who
participated in the development of this publication my gratitude and thanks. I
hope that it will prove as useful to those who study international law as it has to
those who advise operational commanders on the complex and difficult issues
associated with military operations.
A. K. Cebrowski
Vice Admiral, U.S. Navy
President, Naval War College
INTRODUCTION AND ACKNOWLEDGEMENTS
The Commander's Handbook on the Law of Naval Operations (NWP
1-14M/MCWP 5-2.1/COMDTPUB P5800.1) and the 1997 Annotated
Supplement have been well received in the fleet, in the field, and at headquarters
activities for both United States forces and those of other nations. We extend our
appreciation to the Naval War College Foundation and their anonymous
contributors for funding the publication of this volume of the International Law
Studies ("Blue Book") series. As a result of their generous support, the Annotated
Supplement will achieve a much wider distribution to academic institutions and
military commands around the world. That distribution will facilitate research
on the law of naval operations and will serve to promote the rule of law in the
conduct of future operations.
Others also are deserving of special recognition:
Captain J. Ashley Roach, JAGC, USN (ret.) was the primary author of the
first Annotated Supplement. Ash has been a tremendous asset to the JAG Corps and
to the operational law community. Among his many accomplishments, he can
be credited with setting the stage for the Annotated Supplement series.
Professor Emeritus and Captain Richard J. Grunawalt, JAGC, USN (ret.) was
a primary drafter and the leader of the team that produced this iteration of the
Annotated Supplement. Bravo Zulu to Jack for this and his many other operational
law achievements.
Lieutenant Colonel James Duncan, USMC of the Oceans Law and Policy
Department has served as the editor for this Blue Book. Without his energy and
enthusiasm, this Blue Book would not have been published.
Dr. Robert S. Wood, the Dean of the Center for Naval Warfare Studies, has
provided leadership and constant support to the Oceans Law and Policy
Department throughout its existence.
All those who have served in the Oceans Law and Policy Department and
many other members of the operational law community have contributed to the
Commander's Handbook and the Annotated Supplement over the years. Thank you
all for your continuing support in updating and improving these manuals.
Both the Commander's Handbook and the Annotated Supplement are "works in
progress." The Oceans Law and Policy Department has started the draft of the
next iteration. We welcome inputs from all readers.
Dennis Mandsager
Professor of Law
Director, Oceans Law
and Policy Department
ANNOTATED SUPPLEMENT TO
THE COMMANDER'S HANDBOOK
ON THE LAW OF NAVAL
OPERATIONS
NEWPORT, RI
1997
15 NOV 1997
INTRODUCTORY NOTE
The Commander's Handbook on the Law of Naval Operations (NWP
1-14M/MCWP 5-2.1/ COMDTPUB P5800.1), formerly NWP 9 (Rev.
A)/FMFM 1-10, was promulgated to U.S. Navy, U.S. Marine Corps, and U.S.
Coast Guard activities in October 1995. The Commander's Handbook contains
no reference to sources of authority for statements of relevant law. This approach
was deliberately taken for ease of reading by its intended audience — the
operational commander and his staff. This Annotated Supplement to the
Handbook has been prepared by the Oceans Law and Policy Department,
Center for Naval Warfare Studies, Naval War College to support the academic
and research programs within the College.
Although prepared with the assistance of cognizant offices of the General
Counsel of the Department of Defense, the Judge Advocate General of the
Navy, The Judge Advocate General of the Army, The Judge Advocate General
of the Air Force, the Staff Judge Advocate to the Commandant of the Marine
Corps, the Chief Counsel of the Coast Guard, the Chairman, Joint Chiefs of
Staff and the Unified Combatant Commands, the annotations in this Annotated
Supplement are not to be construed as representing official policy or positions of
the Department of the Navy or the U.S. Government.
The text of the Commander's Handbook is set forth verbatim. Annotations
appear as footnotes numbered consecutively within each Chapter.
Supplementary Annexes, Figures and Tables are prefixed by the letter "A" and
incorporated into each Chapter.
Comments, suggestions and recommendations for changes to this volume may
be submitted to the undersigned.
Richard J. Grunawalt
Director, Oceans Law and
Policy Department
ANNOTATED SUPPLEMENT TO
THE COMMANDER'S HANDBOOK
ON THE LAW OF
NAVAL OPERATIONS
CONTENTS
Page
No.
INTRODUCTORY NOTE lii
CONTENTS v
ABBREVIATIONS AND
RECURRING CITATIONS xxi
PREFACE
SCOPE xxxv
PURPOSE xxxv
APPLICABILITY xxxvi
STANDING RULES OF ENGAGEMENT (SROE) xxxvi
INTERNATIONAL LAW xxxvii
Practice of Nations xxxvii
International Agreements xxxvii
U.S. Navy Regulations xxxviii
VI
Page
No.
PART I— LAW OF PEACETIME NAVAL OPERATIONS
CHAPTER 1 LEGAL DIVISIONS OF THE OCEANS
AND AIRSPACE
1.1 INTRODUCTION 1
1.2 RECOGNITION OF COASTAL NATION
CLAIMS 2
1.3 MARITIME BASELINES 3
1.3.1 Low- Water Line 5
1.3.2 Straight Baselines 5
1.3.3 Bays and Gulfs 7
1.3.4 Paver Mouths 12
1.3.5 Reefs 13
1.3.6 Harbor Works 13
1.4 NATIONAL WATERS 14
1.4.1 Internal Waters 15
1.4.2 Territorial Seas 15
1.4.3 Archipelagic Waters 18
1.5 INTERNATIONAL WATERS 19
1.5.1 Contiguous Zones 20
1.5.2 Exclusive Economic Zones 20
1.5.3 High Seas 23
1.5.4 Security Zones 23
1.6 CONTINENTAL SHELVES 23
1.7 SAFETY ZONES 25
1.8 AIRSPACE 25
1.9 OUTER SPACE 26
VII
Page
No.
ANNEXES
Al-1 U.S. Statement in Right of Reply 27
A 1-2 Letter of Transmittal & Letter of Submittal 32
Al-3 U.S. Oceans Policy Statement 43
Al-4 Maritime Claims of the U.S 46
Al-5 Consolidated Glossary of Technical Terms 51
Al-6 U.S. Territorial Sea Proclamation 78
Al-7 U.S. EEZ Fact Sheet . 80
Al-8 U.S. EEZ Proclamation 83
FIGURES
1-1 Straight Baselines 8
1-2 The Semicircle Test 9
1-3 Bay With Islands 10
1-4 Bay With Mouth Exceeding 24 Nautical Miles .... 10
1-5 Territorial Sea of Islands and Low-Tide Elevations . . 17
Al-1 Legal Regimes for Oceans & Airspace 85
A 1-2 Continental Shelf Delimitation 86
Al-3 Depth of Sediment Test 86
TABLES
Al-1 Parties to the 1982 LOS Convention 87
A 1-2 Parties to the 1958 Geneva Conventions 90
Al-3 States Delimiting Straight Baselines 94
Al-4 Claimed Historic Bays 96
Al-5 Claimed Territorial Seas 97
Al-6 Expansion of Territorial Sea Claims 100
Al-7 Archipelagic State Claims 101
Al-8 A. Multi-Island States Not Qualified 104
B. Dependent Territories 104
A 1-9 States With Acceptable Archipelagic Ratios 105
Al-10 Contiguous Zone Claims 106
Al-11 Illegal Security Zones 108
VIII
Page
No.
CHAPTER 2 INTERNATIONAL STATUS AND
NAVIGATION OF WARSHIPS AND
MILITARY AIRCRAFT
2.1 STATUS OF WARSHIPS 109
2.1.1 Warship Defined 109
2.1.2 International Status 110
2.1.3 Auxiliaries 112
2.2 STATUS OF MILITARY AIRCRAFT 114
2.2.1 Military Aircraft Defined 114
2.2.2 International Status 114
2.2.3 Military Contract Aircraft 115
2.3 NAVIGATION IN AND OVERFLIGHT OF
NATIONAL WATERS 115
2.3.1 Internal Waters 115
2.3.2 Territorial Seas 116
2.3.3 International Straits 121
2.3.4 Archipelagic Waters 127
2.4 NAVIGATION IN AND OVERFLIGHT OF
INTERNATIONAL WATERS 129
2.4.1 Contiguous Zones 129
2.4.2 Exclusive Economic Zones 129
2.4.3 High Seas 131
2.4.4 Declared Security and Defense Zones 132
2.4.5 Polar Regions 134
2.4.6 Nuclear Free Zones 136
2.5 AIR NAVIGATION 138
2.5.1 National Airspace 138
2.5.2 International Airspace 140
2.6 EXERCISE AND ASSERTION OF NAVIGATION
AND OVERFLIGHT RIGHTS AND
FREEDOMS 143
IX
Page
No.
2.7 RULES FOR NAVIGATIONAL SAFETY FOR
VESSELS AND AIRCRAFT 146
2.7.1 International Rules 146
2.7.2 National Rules 146
2.7.3 Navigational Rules for Aircraft 147
2.8 U.S.-U.S.S.R. AGREEMENT ON THE PREVENTION
OF INCIDENTS ON AND OVER THE
HIGH SEAS 147
2.9 MILITARY ACTIVITIES IN OUTER SPACE. . . 149
2.9.1 Outer Space Defined 149
2.9.2 The Law of Outer Space 149
2.9.3 International Agreements on Outer Space
Activities 151
2.9.4 Rescue and Return of Astronauts 153
2.9.5 Return of Outer Space Objects 154
ANNEXES
A2-1 ALP ACFLT 016/94: Sovereign Immunity Policy . . 155
A2-2 Joint US/USSR Territorial Sea Statement 161
A2-3 Policy on Exercise of the Right of
Assistance Entry 163
A2-4 CJCSI 2410.01A: Guidance for
The Exercise of Right of Assistance Entry 165
A2-5 NAVJAG MSG 061630Z Jun 88: Guidance on
Transit Passage 175
A2-6 Draft MSG on Transit Passage Policy . 179
A2-7 U.S. Freedom of Navigation Program 186
A2-8 Navigation Rights & the Gulf of Sidra 188
FIGURES
2-1 A Designated Archipelagic Sea Lane . 129
A2-1 Danish Straits 190
A2-2 Strait of Gibralter 191
A2-3 Strait of Bab El Mandeb 192
Page
No.
A2-4 Strait of Hormuz 193
A2-5 Strait of Malacca 194
A2-6 Strait of Tiran 195
A2-7 Canadian Arctic 196
A2-8 Northwest Passage 197
A2-9 Latin American Nuclear-Free Zone 198
A2-10 South Pacific Nuclear-Free Zone 199
A2-11 African Nuclear- Weapon-Free Zone 200
A2-12 GulfofSidra 201
TABLES
A2-1 Restrictions on Warship Innocent Passage 202
A2-2 Straits Between an Island & Mainland 204
A2-3 Straits Regulated by Long-standing Conventions . . 205
A2-4 Straits Not Connecting High Seas/EEZ 206
A2-5 International Straits: Least Width 207
A2-6 Straits Less Then 24NM but with Adjacent High
Seas Route 209
A2-7 States with EEZ Claims Inconsistent with 1982
LOS Convention 210
A2-8 EEZ Proclamations Regarding Navigation 211
CHAPTER 3 PROTECTION OF PERSONS AND PROPERTY
AT SEA AND MARITIME LAW
ENFORCEMENT
3.1 INTRODUCTION 213
3.2 RESCUE, SAFE HARBOR, AND QUARANTINE 213
3.2.1 Assistance to Persons, Ships, and Aircraft in Distress. . 214
3.2.2 Safe Harbor 215
3.2.3 Quarantine 216
3.3 ASYLUM AND TEMPORARY REFUGE 216
3.3.1 Asylum 216
3.3.2 Temporary Refuge 219
3.3.3 Inviting Requests for Asylum or Refuge 220
XI
Page
No.
3.3.4 Protection of U.S. Citizens 220
3.4 RIGHT OF APPROACH AND VISIT 221
3.5 REPRESSION OF PIRACY 221
3.5.1 U.S. Law 222
3.5.2 Piracy Defined 222
3.5.3 Use of Naval Forces to Repress Piracy 225
3.6 PROHIBITION OF THE TRANSPORT
OF SLAVES 226
3.7 SUPPRESSION OF UNAUTHORIZED
BROADCASTING 227
3.8 SUPPRESSION OF INTERNATIONAL
NARCOTICS TRAFFIC. . . 227
3.9 RECOVERY OF GOVERNMENT PROPERTY
LOST AT SEA 228
3.10 PROTECTION OF PRIVATE AND MERCHANT
VESSELS AND AIRCFJVFT, PRIVATE PROPERTY,
AND PERSONS 228
3.10.1 Protection of U.S. Flag Vessels and Aircraft,
U.S. Nationals and Property 229
3.10.2 Protection of Foreign Flag Vessels
and Aircraft, and Persons 230
3.10.3 Noncombatant Evacuation Operations (NEO) .... 231
3.11 MARITIME LAW ENFORCEMENT 231
3.11.1 Jurisdiction to Proscribe 232
3.11.2 Jurisdiction to Enforce 234
3.11.3 Limitations on the Exercise of Maritime
Law Enforcement Jurisdiction 240
3.11.4 Counterdrug Operations 244
3.11.5 Use of Force in Maritime Law Enforcement 245
3.11.6 Other Maritime Law Enforcement Assistance 246
XII
Page
No.
TABLES
A3-1 Maritime Counterdrug/ Alien Migrant
Interdiction Agreements 247
CHAPTER 4 SAFEGUARDING OF U.S. NATIONAL
INTERESTS IN THE
MARITIME ENVIRONMENT
4.1 INTRODUCTION 249
4.1.1 Charter of the United Nations 250
4.2 NONMILITARY MEASURES 254
4.2.1 Diplomatic 254
4.2.2 Economic 256
4.2.3 Judicial 257
4.3 MILITARY MEASURES 257
4.3.1 Naval Presence 258
4.3.2 The Right of Self-Defense 259
4.4 INTERCEPTION OF INTRUDING
AIRCRAFT 265
ANNEXES
A4-1 United Nations Peace-keeping Operations 267
A4-2 President's Letter of Instruction 272
A4-3 JCS Standing Rules of Engagement 277
TABLES
A4-1 States That Ratified Amendment to the Convention
On International Civil Aviation 286
XIII
Page
No.
PART II— LAW OF NAVAL WARFARE
CHAPTER 5 PRINCIPLES AND SOURCES OF THE LAW
OF ARMED CONFLICT
5.1 WAR AND THE LAW 289
5.2 GENERAL PRINCIPLES OF THE LAW OF
ARMED CONFLICT 290
5.3 COMBATANTS AND NONCOMBAT ANTS . . . 296
5.4 SOURCES OF THE LAW OF ARMED
CONFLICT 297
5.4.1 Customary Law 297
5.4.2 International Agreements 299
5.5 RULES OF ENGAGEMENT 305
ANNEXES
A5-1 Letter of Transmittal & Letter of Submittal 306
FIGURES
A5-1 Spectrum of Conflict 314
TABLES
A5-1 Parties to the Geneva Conventions and Their
Additional Protocols 315
CHAPTER 6 ADHERENCE AND ENFORCEMENT
6. 1 ADHERENCE TO THE LAW OF ARMED
CONFLICT 323
6.1.1 Adherence by the United States 324
6.1.2 Department of the Navy Policy 324
XIV
Page
No.
6.1.3 Command Responsibility 327
6.1.4 Individual Responsibility 328
6.2 ENFORCEMENT OF THE LAW OF
ARMED CONFLICT 329
6.2.1 The Protecting Power 333
6.2.2 The International Committee of the Red
Cross (ICRC) 334
6.2.3 Reprisal 335
6.2.4 Reciprocity. 342
6.2.5 War Crimes Under International Law 343
ANNEXES
A6-1 Reportable Violations 359
A6-2 Rules for Combatants 362
CHAPTER 7 THE LAW OF NEUTRALITY
7.1 INTRODUCTION 365
7.2 NEUTRAL STATUS 367
7.2.1 Neutrality Under the Charter of the
United Nations 368
7.2.2 Neutrality Under Regional and Collective
Self-Defense Arrangements 370
7.3 NEUTPJVL TERRITORY 370
7.3.1 Neutral Lands 371
7.3.2 Neutral Ports and Roadsteads 371
7.3.3 Neutral Internal Waters 374
7.3.4 Neutral Territorial Seas 375
7.3.5 Neutral International Straits 377
7.3.6 Neutral Archipelagic Waters 378
7.3.7 Neutral Airspace 379
7.4 NEUTRAL COMMERCE 380
7.4.1 Contraband 381
XV
Page
No.
7.4.2 Certificate of Noncontraband Carriage 385
7.5 ACQUIRING ENEMY CHARACTER 385
7.5.1 Acquiring the Character of an Enemy Warship or
Military Aircraft 386
7.5.2 Acquiring the Character of an Enemy Merchant Vessel
or Civil Aircraft 387
7.6 VISIT AND SEARCH . 387
7.6.1 Procedure for Visit and Search 388
7.6.2 Visit and Search by Military Aircraft 389
7.7 BLOCKADE 390
7.7.1 General 390
7.7.2 Traditional Rules 390
7.7.3 Special Entry and Exit Authorization 392
7.7.4 Breach and Attempted Breach of Blockade 392
7.7.5 Contemporary Practice 393
7.8 BELLIGERENT CONTROL OF THE IMMEDIATE
AREA OF NAVAL OPERATIONS 394
7.8.1 Belligerent Control of Neutral Communications
at Sea 394
7.9 EXCLUSION ZONES AND WAR ZONES .... 395
7.10 CAPTURE OF NEUTFJUL VESSELS AND
AIRCRAFT 396
7.10.1 Destruction of Neutral Prizes 397
7.10.2 Personnel of Captured Neutral Vessels and Aircraft . . 398
7.11 BELLIGERENT PERSONNEL INTERNED BY A
NEUTRAL GOVERNMENT 399
FIGURES
A7-1 Reciprocal Fdghts and Duties 400
XVI
Page
No.
CHAPTER 8 THE LAW OF TARGETING
8.1 PRINCIPLES OF LAWFUL TARGETING .... 401
8.1.1 Military Objectives 402
8.1.2 Civilians and Civilian Objects 403
8.1.3 Environmental Considerations 405
8.2 SURFACE WARFAM 407
8.2.1 Enemy Warships and Military Aircraft 407
8.2.2 Enemy Merchant Vessels and Civil Aircraft 408
8.2.3 Enemy Vessels and Aircraft Exempt From
Destruction or Capture 412
8.3 SUBMARINE WARFAM 419
8.3.1 Interdiction of Enemy Merchant Shipping by
Submarines 419
8.3.2 Enemy Vessels and Aircraft Exempt From Submarine
Interdiction 421
8.4 AIR WARFAM AT SEA 421
8.4.1 Enemy Vessels and Aircraft Exempt From Aircraft
Interdiction 422
8.5 BOMBARDMENT 422
8.5.1 General Rules 423
8.5.2 Warning Before Bombardment 427
8.6 LAND WARFARE 428
8.6.1 Targeting in Land Warfare 428
8.6.2 Special Protection 428
ANNEXES
A8-1 ICRC Guidelines for Military Manuals 430
XVII
Page
No.
CHAPTER 9 CONVENTIONAL WEAPONS AND
WEAPONS SYSTEMS
9.1 INTRODUCTION 437
9.1.1 Unnecessary Suffering 438
9.1.2 Indiscriminate Effect 440
9.2 NAVAL MINES 441
9.2.1 Current Technology 442
9.2.2 Peacetime Mining 442
9.2.3 Mining During Armed Conflict 443
9.3 LAND MINES 448
9.4 TORPEDOES 451
9.5 CLUSTER AND FRAGMENTATION
WEAPONS 451
9.6 BOOBY TRAPS AND OTHER DELAYED
ACTION DEVICES 451
9.7 INCENDIARY WEAPONS ............ 452
9.8 DIRECTED ENERGY DEVICES 452
9.9 OVER-THE-HORIZON WEAPONS
SYSTEMS 454
ANNEXES
A9-1 Letter of Transmittal 455
CHAPTER 10 NUCLEAR, CHEMICAL, AND
BIOLOGICAL WEAPONS
10.1 INTRODUCTION 459
XVIII
Page
No.
10.2 NUCLEAR WEAPONS 459
10.2.1 General 459
10.2.2 Treaty Obligations 461
10.3 CHEMICAL WEAPONS 466
10.3.1 Treaty Obligations 466
10.3.2 Pdot Control Agents 473
10.3.3 Herbicidal Agents 476
10.4 BIOLOGICAL WEAPONS 477
10.4.1 Treaty Obligations 478
10.4.2 United States Policy Regarding Biological
Weapons 478
CHAPTER 11 NONCOMBATANT PERSONS
11.1 INTRODUCTION 481
11.2 PROTECTED STATUS 481
11.3 THE CIVILIAN POPULATION 482
11.4 THE WOUNDED, SICK, AND
SHIPWRECKED 484
11.5 MEDICAL PERSONNEL AND CHAPLAINS . . . 486
11.6 PARACHUTISTS 488
11.7 PRISONERS OF WAR 489
11.7.1 Trial and Punishment 492
11.7.2 Labor 493
11.7.3 Escape 493
11.7.4 Temporary Detention of Prisoners of War, Civilian
Internees, and Other Detained Persons Aboard
Naval Vessels 494
11.8 INTERNED PERSONS 495
XIX
Page
No.
11.9 PROTECTIVE SIGNS AND SYMBOLS 496
11.9.1 The Red Cross and Red Crescent 496
11.9.2 Other Protective Symbols 497
11.9.3 The 1907 Hague Symbol 498
11.9.4 The 1954 Hague Convention Symbol 498
11.9.5 The White Flag 499
11.9.6 Permitted Use 499
11.9.7 Failure to Display 499
11.10 PROTECTIVE SIGNALS 500
11.10.1 Radio Signals 500
11.10.2 Visual Signals 500
11.10.3 Electronic Identification . 500
11.11 IDENTIFICATION OF NEUTRAL
PLATFORMS 501
ANNEXES
All-1 Code of Conduct 502
FIGURES
11-1 Protective Signs and Symbols 503
CHAPTER 12 DECEPTION DURING ARMED CONFLICT
12.1 GENERAL 507
12.1.1 Permitted Deceptions 507
12.1.2 Prohibited Deceptions 509
12.2 MISUSE OF PROTECTIVE SIGNS, SIGNALS,
AND SYMBOLS 510
12.3 NEUTRAL FLAGS, INSIGNIA, AND
UNIFORMS 511
12.3.1 At Sea 511
12.3.2 In the Air 512
XX
Page
No.
12.3.3 On Land 512
12.4 THE UNITED NATIONS FLAG AND
EMBLEM 512
12.5 ENEMY FLAGS, INSIGNIA, AND
UNIFORMS 512
12.5.1 At Sea 512
12.5.2 In the Air 513
12.5.3 On Land 513
12.6 FEIGNING DISTRESS 514
12.7 FALSE CLAIMS OF NONCOMBATANT STATUS 514
12.7.1 Illegal Combatants 515
12.8 SPIES 515
12.8.1 Legal Status 516
INDEX 517
ABBREVIATIONS AND
RECURRING CITATIONS
Short form citations, abbreviations and acronyms are utilized throughout the
footnotes for recurring references in lieu of full citations. The following
alphabetical listing provides full citations and spells out abbreviations and
acronyms for those short form references.
ACDA
AFP
AFP 110-20
AFP 110-31
AFP 110-34
Alexander
AR
ATP
Bevans
BFSP
Bothe, Partsch &
Solf
U.S. Arms Control and Disarmament Agency
Air Force Pamphlet
U.S. Air Force, Selected International
Agreements (AFP 110-20, 1981) (with Navy
Supplement)
U.S. Air Force, International Law — The
Conduct of Armed Conflict and Air
Operations (AFP 110-31, 1976)
U.S. Air Force, Commander's Handbook on
the Law of Armed Conflict (AFP 1 10-34, 1980)
Offshore Consultants, Inc., Navigational
Restrictions Within the New LOS Context:
Geographical Implications for the United
States 8 (Alexander, ed. Final Report under
Defense Supply Service Contract
903-84-C-0276, Dec. 1986)
Army Regulation
Allied Tactical Publication
Treaties and Other International Agreements
of the United States of America, 1776-1949
(Bevans ed., 1968-76)
British and Foreign State Papers
New Rules for Victims of Armed Conflicts
(1982)
XXII
CDDH
C.F.R.
Chicago Convention
Coll, Ord & Rose
COMDTINST
Common article
Continental Shelf
Convention
DAPam
DA Pam 27-1
DA Pam 27-1-1
DA Pam 27-161-1
DA Pam 27-161-2
Diplomatic Conference on the Reaffirmation
and Development of International
Humanitarian Law Applicable in Armed
Conflicts, 1974-1977
Code of Federal Regulations
Convention on International Civil Aviation,
Chicago, 7 December 1944, 59 Stat. 1693, 84
U.N.T.S. 389
Legal and Moral Constraints on Low-Intensity
Conflict (U.S. Naval War College
International Law Studies No. 67, Coll et al.
eds., 1995)
Commandant of the Coast Guard Instruction
Article common to all four Geneva
Conventions of 12 August 1949 for the
Protection of War Victims
Convention on the Continental Shelf, Geneva,
29 April 1958, 15 U.S.T. 471, 499 U.N.T.S.
311
Department of the Army Pamphlet
Department of the Army, Treaties Governing
Land Warfare (DA Pam 27-1, 1956)
Department of the Army, Protocols to the
Geneva Conventions of 12 August 1949 (DA
Pam 27-1-1, 1979)
Department of the Army, 1 International Law
PA Pam 27-161-1, 1979)
Department of the Army, 2 International Law
(DA Pam 27-161-2, 1962)
XXIII
Declaration of
Brussels
Declaration of
London
Declaration of Paris
DODDIR
Doswald-Beck
Fed. Reg.
Fleck
FM
FM 27-10
FMFRP
GAOR
GC
Project of an International Declaration
Concerning the Laws and Customs of War,
Brussels, 27 August 1874, 65 B.F.S.P. 1005,
reprinted in Schindler & Toman 25
Declaration Concerning the Laws of Naval
War, London, 26 February 1909, 104 B.F.S.P.
242, reprinted in Schindler & Toman 755
Declaration Respecting Maritime Law, Paris,
16 April 1856, 115 Parry 1, 1 Am. J. Int'l L.
(Supp.) 89, reprinted in Schindler & Toman 699
Department of Defense Directive
San Remo Manual on International Law
Applicable to Armed Conflicts at Sea, Prepared
by International Lawyers and Naval Experts
Convened by the International Institute of
Humanitarian Law (Doswald-Beck ed., 1995)
Federal Register
The Handbook of Humanitarian Law in
Armed Conflict (Fleck ed., 1995)
U.S. Army Field Manual
U.S. Army Field Manual 27-10, The Law of
Land Warfare, 1956
Fleet Marine Force Reference Publications
United Nations General Assembly, Official
Records
Convention Relative to the Protection of
Civilian Persons in Time of War, Geneva, 12
August 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
XXIV
GPI
GPII
GPW
GPW 1929
Green
Greenspan
Grunawalt
Grunawalt, King &
McClain
GWS 1929
Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating
to the Protection of Victims of International
Armed Conflicts, 16 I.L.M. 1391, reprinted in
Schindler & Toman 551 [Additional
Protocol I]
Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating
to the Protection of Victims of
Non-International Armed Conflicts, 16 I.L.M.
1442 [Additional Protocol II]
Convention Relative to the Treatment of
Prisoners of War, Geneva, 12 August 1949,
6 U.S.T. 3316, 75 U.N.T.S. 135
Convention Relative to the Treatment of
Prisoners of War, Geneva, 27 July 1929, 47 Stat.
2021, 118 LNTS 343, reprinted in
Schindler & Toman 271
The Contemporary Law of Armed Conflict
(1993)
The Modern Law of Land Warfare (1959)
The Law of Naval Warfare: Targeting Enemy
Merchant Shipping (U.S. Naval War College
International Law Studies No. 65, Grunawalt
ed., 1993)
Protection of the Environment During Armed
Conflict (U.S. Naval War College
International Law Studies No. 69, Grunawalt et
al. eds., 1996)
Convention for the Amelioration of the
Condition of the Wounded and Sick in Armies
in the Field, Geneva, 27 July 1929, 47 Stat.
2074, 118 L.N.T.S. 303, reprinted in Schindler
& Toman 257
XXV
GWS
GWS-Sea
Hackworth
Hague III
Hague IV
HR
Hague V
Hague VIII
Hague IX
Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed
Forces in the Field, Geneva, 12 August 1949, 6
U.S.T.3114, 75U.N.T.S. 31
Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, Geneva, 12
August 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85
Digest of International Law (8 vols., 1940-44)
Hague Convention No. Ill Relative to the
Opening of Hostilities, The Hague, 18
October 1907, 36 Stat. 2259, 7 Am. J. Int'l L.
(Supp.) 85
Hague Convention No. IV Respecting the
Laws and Customs of War on Land, The
Hague, 18 October 1907, 36 Stat. 2227, 2 Am.
J. Int'l L. (Supp.) 90
Regulations Respecting the Laws and Customs
of War on Land, annex to Hague IV (see Hague
IV)
Hague Convention No. V Respecting the
Rights and Duties of Neutral Powers and
Persons in Case of War on Land, The Hague,
18 October 1907, 36 Stat. 2310, 2 Am. J. Int'l
L. (Supp.) 117
Hague Convention No. VIII Relative to the
Laying of Automatic Submarine Contact
Mines, The Hague, 18 October 1907, 36 Stat.
2332, 2 Am. J. Int'l L. (Supp.) 138
Hague Convention No. IX Concerning
Bombardment by Naval Forces in Time of
War, The Hague, 18 October 1907, 36 Stat.
2351, 2 Am. J. Int'l L. (Supp.) 146
XXVI
Hague X
Hague XI
Hague XIII
High Seas
Convention
Hudson
Hyde
ICAO
I.CJ.
ICRC
ICRC, Commentary
('49 Conventions)
ICRC, Commentary
(GP I & II)
Hague Convention No. X for the Adaptation
to Maritime Warfare of the Principles of the
Geneva Convention, [of 1906], The Hague, 18
October 1907, 36 Stat. 2371, 2 Am. J. Int'l L.
(Supp.) 153
Hague Convention No. XI Relative to Certain
Restrictions with Regard to the Exercise of the
Pdght of Capture in Naval War, The Hague, 18
October 1907, 36 Stat. 2396, 2 Am. J. Int'l L.
(Supp.) 167
Hague Convention No. XIII Concerning the
Rights and Duties of Neutral Powers in Naval
War, The Hague, 18 October 1907, 36 Stat.
2415, 2 Am. J. Int'l L. (Supp.) 202
Convention on the High Seas, Geneva,
29 April 1958, 13 U.S.T. 2312, 450 U.N.T.S.
92
International Legislation 1919-1945 (Hudson
ed., 9 vols. 1939-49)
International Law Chiefly as Interpreted and
Applied by the United States (Hyde ed., 2d rev.
ed., 1945-47)
International Civil Aviation Organization
International Court of Justice, Reports of
Judgments, Advisory Opinions and Orders
International Committee of the Red Cross
Commentary on the Geneva Conventions of
12 August 1949 (Pictet et al. eds., 1952)
Commentary on the Additional Protocols of
8 June 1977 to the Geneva Conventions of 12
August 1949 (Sandoz et al eds., 1987)
XXVII
IMO
IMT
IMTFE
INCSEA
Int'l Leg. Mat'ls
JAG Manual
JCS
Joint Pub.
Joint Pub. 1-02
JSCP
Kelsen
Levie, Documents
Levie, Prisoners
of War
International Maritime Organization (formerly
International Maritime Consultative
Organization (IMCO))
International Military Tribunal, Nuremberg
International Military Tribunal for the Far East
Agreement Between the Government of the
United States of America and the Government
of the Union of Soviet Socialist Republics on
the Prevention of Incidents On and Over the
High Seas, Moscow, 25 May 1972, 23 U.S.T.
1168, 852 U.N.T.S. 151 [Incidents at Sea
Agreement]
International Legal Materials
Manual of the Judge Advocate General of the
Navy, JAG' Instruction 5800.7C
U.S. Joint Chiefs of Staff
JCS Joint Publication
Dictionary of Military and Associated Terms
JCS, Joint Strategic Capabilities Plan
Collective Security Under International Law
(U.S. Naval War College International Law
Studies No. 39, 1954)
Documents on Prisoners of War (U.S. Naval
War College International Law Studies No. 60,
Levie ed., 1979)
Prisoners of War in International Armed
Conflict (U.S. Naval War College
International Law Studies No. 59, 1978)
XXVIII
Lieber Code
Lillich & Moore
L.N.T.S.
LOAC
London Protocol
LOS
LOS Bulletin
LOS Convention
LOS Glossary
LOS Official Records
LRTWC
U.S. Department of War, Instructions for the
Government of the Armies of the United States
in the Field, General Orders No. 100, 24 April
1863
Readings in International Law from the Naval
War College Review (U.S. Naval War College
International Law Studies Nos. 61 & 62, Lillich
& Moore eds., 1980)
League of Nations Treaty Series
Law of Armed Conflict
Proces-Verbal Relating to the Rules of
Submarine Warfare set forth in Part IV of the
Treaty of London of 22 April 1930, London,
6 November 1936, 173 U.N.T.S. 353, 31
Am. J. Int'lL. (Supp.) 137
Law of the Sea
United Nations Office for Ocean Affairs and
the Law of the Sea, Law of the Sea Bulletin
United Nations Convention on the Law of the
Sea opened for signature 10 December 1982, 21
I.L.M. 1261
Consolidated Glossary of Technical Terms used
in the United Nations Convention on the Law
of the Sea, International Hydrographic Bureau
Special Pub. No. 51, A Manual on Technical
Aspects of the United Nations Convention on
the Law of the Sea, Part I (1982)
Official Records of the Third United Nations
Conference on the Law of the Sea (1975-1984)
U.N. War Crimes Commission, Law Reports
of Trials of War Criminals, 1948-49
XXIX
MacChesney
Malloy
Mallison
McDougal & Burke
McDougal &
Feliciano
MCM, 1995
MCRM
MJCS
MLEM
Moore
Moore & Turner
Situation, Documents and Commentary on
Recent Developments in the International Law
of the Sea (U.S. Naval War College,
International Law Studies No. 51 (1956))
Treaties, Conventions, International Acts,
Protocols and Agreements between the United
States of America and Other Powers,
1776-1909 (Malloy comp., 1910-38)
Studies in the Law of Naval Warfare:
Submarines in General and Limited War (U.S.
Naval War College International Law Studies
No. 58, 1966)
The Public Order of the Oceans (1962)
Law and Minimum World Public Order: The
Legal Regulation of International Coercion
(1961)
Manual for Courts-Martial, United States
(1995 Edition)
Maritime Claims Reference Manual, DoD
2005. 1-M, 1997 (Available at
http://www.dtic.dla.mil/defenseHnk)
Memorandum from the Joint Chiefs of Staff
U.S. Coast Guard, Maritime Law Enforcement
Manual, COMDTINST 16247.1 A
A Digest of International Law (1906)
Readings on International Law from the Naval
War College Review 1978-1994 (U.S. Naval
War College International Law Studies No. 68,
Moore & Turner eds., 1995)
NCA
National Command Authorities
XXX
Nordquist
Nuremberg
Principles
NWIP
NWIP 10-2
NWP
NWP9
NWP 9 (Rev. A)
O'Connell
Official Records
1 Oppenheim-
Lauterpacht
2 Oppenheim-
Lauterpacht
Oxford Manual
Pictet
United Nations Convention on the Law of the
Sea, 1982: A Commentary (Nordquist et al.
eds., 1985-)
Principles of International Law Recognized in
the charter of the Nuremberg Tribunal and in
the Judgment of the Tribunal
Naval Warfare Information Publication
Law of Naval Warfare (NWIP 10-2, 1955)
Naval Warfare Publication
The Commander's Handbook on the Law of
Naval Operations (NWP 9, 1987)
The Commander's Handbook on the Law of
Naval Operations (NWP 9 (Rev. A)/FMFM
1-10, 1989)
The International Law of the Sea (Shearer ed.,
2d ed., 2 vols. 1982)
Official Records of the Diplomatic Conference
on the Reaffirmation and Development of
International Humanitarian Law applicable in
Armed Conflicts, Geneva, 1974-1977 (1978)
1 Oppenheim, International Law: A Treatise
(Lauterpacht ed., 8th ed., 1955)
2 Oppenheim, International Law: A Treatise
(Lauterpacht ed., 7th ed., 1952)
Institute of International Law, The Laws of
War on Land, 9 September 1880
The Geneva Conventions of 12 August 1949
(Pictet ed., 1958)
PW
Prisoner of War
XXXI
R.C.M.
Restatement (Third)
Roach & Smith
Robertson
ROE
Roerich Pact
Ronzitti
Rubin
San Remo Manual
Schindler & Toman
Schmitt & Green
Scott, Reports
Sohn & Gustafson
Manual for Courts-Martial (MCM), United
States (1995 Edition), Part II, Rules for
Courts-Martial
Restatement (Third) of The Foreign Relations
Law of the United States (1987)
Excessive Maritime Claims (U.S. Naval War
College International Law Studies No. 66,
1994)
The Law of Naval Operations (U.S. Naval War
College International Law Studies No. 64,
Robertson ed., 1991)
Rules of engagement
Treaty on the Protection of Artistic and
Scientific Institutions and Historic
Monuments, Washington, 15 April 1935; 49
Stat. 3267, T.S. 899
The Law of Naval Warfare (Ronzitti ed., 1988)
The Law of Piracy (U.S. Naval War College
International Law Studies No. 63, 1988)
San Remo Manual on International Law
Applicable to Armed Conflicts at Sea (1995)
The Laws of Armed Conflict: A Collection of
Conventions, Resolutions and Other
Documents (Schindler & Toman eds., 3rd
Rev. ed., 1988)
Levie on the Law of War (U.S. Naval War
College International Law Studies No. 70,
Schmitt & Green eds., 1998) (Forthcoming)
The Reports to the Hague Conferences of
1899 and 1907 (Scott ed., 1917)
The Law of the Sea in a Nutshell (1984)
XXXII
Spaight
SROE
Stone
Stat.
Swarztrauber
Territorial Sea
Convention
T.I.A.S.
T.I.F.
Title V Report
T.S.
Tucker
TWC
Air Power and War Rights (3d ed., 1947)
Joint Chiefs of Staff Standing Rules of
Engagement for U.S. Forces, CJCSI 3121.01
(1994)
Legal Controls of International Conflict:
A Treatise on the Dynamics of Disputes War
Law (1954)
U.S. Statutes at Large
The Three-Mile Limit of Territorial Seas
(1972)
Convention on the Territorial Sea and
Contiguous Zone, Geneva, 29 April 1958, 15
U.S.T. 1606, 516 U.N.T.S. 205
U.S. Treaties and Other International
Agreements Series
U.S. Department of State, Treaties in Force
Final Report to the Congress, Conduct of the
Persian Gulf War, Pursuant to Tide V of the
Persian Gulf Conflict Supplemental
Authorization and Personnel Benefits Act of
1991 (Pub. L. 102-25, April 1992)
Treaty Series
The Law of War and Neutrality at Sea (U.S.
Naval War College International Law Studies
No. 50, 1955)
Trials of War Criminals before the Nuremberg
Military Tribunals Under Control Council
Law No. 10: Nuremberg, October 1946-April
1949 (1949-53)
UCMJ
Uniform Code of Military Justice
XXXIII
UNCLOS III
U.N.G.A.
U.N.S.C.
U.N.T.S.
U.S.C.
U.S.T.
Whiteman
Wiktor
Third United Nations Conference on the Law
of the Sea, 1974-1982
United Nations General Assembly
United Nations Security Council
United Nations Treaty Series
United States Code
United States Treaties and Other International
Agreements
Digest of International Law (Whiteman ed.,
1973)
Unperfected Treaties of the United States of
America 1776-1976 (Wiktor ed., 1976-1994)
PREFACE
SCOPE
This publication sets out those fundamental principles of international and
domestic law that govern U.S. naval operations at sea. Part I, Law of Peacetime
Naval Operations, provides an overview and general discussion of the law of the
sea, including definitions and descriptions of the jurisdiction and sovereignty
exercised by nations over various parts of the world's oceans; the international
legal status and navigational rights of warships and military aircraft; protection of
persons and property at sea; and the safeguarding of national interests in the
maritime environment. Part II, Law of Naval Warfare, sets out those principles
of law of special concern to the naval commander during any period in which
U.S. naval forces are engaged in armed conflict. Although the primary emphasis
of Part II is upon the rules of international law concerned with the conduct of
naval warfare, attention is also directed to relevant principles and concepts
common to the whole of the law of armed conflict.
PURPOSE
This publication is intended for the use of operational commanders and
supporting staff elements at all levels of command. It is designed to provide
officers in command and their staffs with an overview of the rules of law
governing naval operations in peacetime and during armed conflict. The
explanations and descriptions in this publication are intended to enable the naval
commander and his staff to comprehend more fully the legal foundations upon
which the orders issued to them by higher authority are premised and to
understand better the commander's responsibilities under international and
domestic law to execute his mission within that law. This publication sets forth
general guidance. It is not a comprehensive treatment of the law nor is it a
substitute for the definitive legal guidance provided by judge advocates and
others responsible for advising commanders on the law.
1 . Although The Commander's Handbook on the Law of Naval Operations is a publication
of the Department of the Navy, neither The Handbook nor its annotated supplement can be
considered as a legislative enactment binding upon courts and tribunals applying the rules of war.
However, their contents may possess evidentiary value in matters relating to U.S. custom and
practice. See The Hostages Trial (Wilhelm List et al.), 11 TWC 1237-38, 8 LRTWC 51-52 (U.S.
Military Tribunal, Nuremberg, 8 July 1947-19 Feb. 1948); The Peleus Trial, 1 LRTWC 19 (British
Military Ct., Hamburg, 1945); Tlie Belsen Trial, 2 LRTWC 48-49 (British Military Ct., Luneburg,
1945); The Abbage Ardenne Case (Trial of Brigadefurher Kurt Meyer), 4 LRTWC 110 (Canadian
Military Ct., Aurich, Germany, 1945).
(continued...)
XXXVI
Officers in command of operational units are encouraged to utilize this
publication as a training aid for assigned personnel.
APPLICABILITY
Part I of this publication is applicable to U.S. naval operations during time of
peace. Part I also complements the more definitive guidance on maritime law
enforcement promulgated by the U.S. Coast Guard.
Part II applies to the conduct of U.S. naval forces during armed conflict. It is
the policy of the United States to apply the law of armed conflict to all
circumstances in which the armed forces of the United States are engaged in
combat operations, regardless of whether such hostilities are declared or
otherwise designated as "war."- Relevant portions of Part II are, therefore,
applicable to all hostilities involving U.S. naval forces irrespective of the
character, intensity, or duration of the conflict. Part II may also be used for
information and guidance in situations in which the United States is a
nonparticipant in hostilities involving other nations. Part II complements the
more definitive guidance on land and air warfare promulgated, respectively, by
the U.S. Army and U.S. Air Force.
STANDING RULES OF ENGAGEMENT (SROE)
The National Command Authorities (i.e., the President and the Secretary of
Defense or their duly deputized alternates or successors — commonly referred to
as the NCA) approve and the Chairman of the Joint Chiefs of Staff promulgates
SROE for U.S. forces (Chairman of the Joint Chiefs of Staff Instruction 3121.01
1 October 1994). These rules delineate the circumstances under which U.S.
forces will initiate and/or continue engagement with other forces encountered.
l.(... continued)
In the course of these cases, the question of the status of such official publications and the British
and U.S. military manuals arose on various occasions. Although the courts recognized these
publications as "persuasive statements of the law" and noted that, insofar as the provisions of
military manuals are acted upon, they mold State practice, itself a source of international law, it was
nevertheless stated that since these publications were not legislative instruments they possessed no
formal binding power. Hence, the provisions of military manuals which clearly attempted to
interpret the existing law were accepted or rejected by the courts in accordance with their opinion
ofthe accuracy with which the law was set forth. NWIP 10-2, para. 100 n.l; FM 27-10, para. 1; 15
LRTWC, Digest of Law and Cases 21-22.
2. DODDIR 5100.77, Subj: DOD Law ofWar Program, implemented for the Department
ofthe Navy by SECNAVINST 3300. 1 A, para 4a. Similar directions have been promulgated by the
operational chain of command, e.g., MJCS 0124-88 4 August 1988; USCINCLANTINST
3300.3A; CINCPACFLTINST 3300.9.
3. The unclassified portion ofthe SROE is at Annex A4-3 (p. 277).
XXXVII
Combatant commanders may augment the standing rules as necessary to reflect
changing political and military policies, threats, and missions specific to their area
of responsibility (AOR). Such augmentations to the standing rules are approved
by the NCA and promulgated by the Joint Staff, J-3, as annexes to the standing
rules.
This publication provides general information, is not directive, and does not supersede
guidance issued by such commanders or higher authority.
INTERNATIONAL LAW
For purposes of this publication, international law is defined as that body of
rules that nations consider binding in their relations with one another.
International law derives from the practice of nations in the international arena
and from international agreements. International law provides stability in
international relations and an expectation that certain acts or omissions will effect
predictable consequences. If one nation violates the law, it may expect that
others will reciprocate. Consequendy, failure to comply with international law
ordinarily involves greater political and economic costs than does observance. In
short, nations comply with international law because it is in their interest to do
so. Like most rules of conduct, international law is in a continual state of
development and change.
Practice of Nations. The general and consistent practice among nations
with respect to a particular subject, which over time is accepted by them
generally as a legal obligation, is known as customary international law.
Customary international law is the principal source of international law and is
binding upon all nations.
International Agreements. An international agreement is a commitment
entered into by two or more nations that reflects their intention to be bound by
4. Art. 38 of the Statute of the International Court ofjustice (59 Stat. 1031, T.S. 993, 3Bevans
1 179) provides that, in adjudicating disputes brought before it, the Court shall apply international
agreements, custom (as evidence of a general practice accepted as law), general principles of law
recognized by civilized nations, decisions of national and international courts, texts on
international law, and (where the parties to the dispute agree) general principles of equity. The
Statute is set forth in AFP 110-20 at 5-19. Walker, The Sources of International Law and the
Restatement (Revised) Foreign Relations Law of the United States, 37 Nav. L. Rev. 1 (1988)
provides a comprehensive, yet basic, analysis of the sources of international law and their impact on
the municipal law of the United States.
Countries are generally called "States" in international law. To avoid confusion with the states of
the United States, the term "nation" is used in this publication to include countries and States in the
international law sense of the term.
5. This concept is expanded upon in Joyner, The Reality and Relevance of International
Law, in Kegley & Wittkopf, The Global Agenda: Issues and Perspectives 186-97 (2d ed. 1988).
6. See also paragraph 5.4.1 (p. 297).
XXXVIII
its terms in their relations with one another. International agreements, whether
bilateral treaties, executive agreements, or multilateral conventions, are the
second principal source of international law. However, they bind only those
nations that are party to them or that may otherwise consent to be bound by
them. To the extent that multilateral conventions of broad application codify
existing rules of customary law, they may be regarded as evidence of
international law binding upon parties and non-parties alike.
U.S. Navy Regulations. U.S. Navy Regulations, 1990, require U.S. naval
commanders to observe international law. Article 0705, Observance of
International Law, states:
At all times, a commander shall observe, and require their command to observe, the principles
of international law. Where necessary to fulfill this responsibility, a departure from other
Q
provisions of Navy Regulations is authorized.
7. The particular name assigned to the arrangement, e.g., treaty, executive agreement,
memorandum of understanding, exchange of notes or letters, technical arrangement or plan, does
not alter the fact that it is an international agreement if the arrangement falls within the definition of
international agreement provided in this paragraph. Procedures within the U.S. Government for
negotiating international agreements may be found in State Department, DOD and Navy
regulations which impose stringent controls on the negotiation, conclusion and forwarding of
international agreements by organizational elements of the Department of the Navy. Those
requirements are set forth in 22 C.F.R. part 181; DODDIR 5530.3, Subj: International
Agreements, 11 June 1987. Implementing Navy instructions include SECNAV Instruction
5710.25 (series), Subj: International Agreements; OPNAV Instruction 5710.24, Subj:
International Agreements Navy Procedures; and OPNAV Instruction 5710.25, Subj: International
Agreements OPNAV Procedures. Questions regarding the definition and processing of
international agreements should be referred to the Office of the Chief of Naval Operations
(N3L/N5L) or the Office of the Deputy Assistant Judge Advocate General of the Navy
(International and Operational Law (Code 10)).
8. Vienna Convention on the Law of Treaties, arts. 1, 26 & 38, reprinted in 8 Int'l Leg. Mat'ls
679 (1969) and AFP 110-20, at 7-2.
9. UCMJ, art. 92, provides that a violation of a lawful general regulation, such as art. 0705,
Navy Regulations, 1990, is punishable by court-martial.
PARTI
LAW OF PEACETIME NAVAL OPERATIONS
Chapter 1 — Legal Divisions of the Oceans and Airspace
Chapter 2 — International Status and Navigation of Warships and
Military Aircraft
Chapter 3 — Protection of Persons and Property at Sea and
Maritime Law Enforcement
Chapter 4 — Safeguarding of U.S. National Interests in the
Maritime Environment
CHAPTER 1
Legal Divisions of the Oceans and Airspace
1.1 INTRODUCTION
The oceans of the world traditionally have been classified under the broad
headings of internal waters, territorial seas, and high seas. Airspace has
1
been divided into national and international airspace. In recent years, new
concepts have evolved, such as the exclusive economic zone and archipelagic
waters, that have dramatically expanded the jurisdictional claims of coastal and
island nations over wide expanses of the oceans previously regarded as high seas.
The phenomenon of expanding maritime jurisdiction and the rush to extend the
territorial sea to 12 nautical miles and beyond were the subject of international
negotiation from 1973 through 1982 in the course of the Third United Nations
Conference on the Law of the Sea. That Conference produced the 1982 United
Nations Convention on the Law of the Sea (1982 LOS Convention).
In 1983, the United States announced that it would neither sign nor ratify the
1982 LOS Convention due to fundamental flaws in its deep seabed mining
1. Space, or outer space, begins at the undefined upward limit of national or international
airspace and extends to infinity. That undefined point of demarkation between airspace and outer
space is generally regarded as occurring at that yet to be determined point where the atmosphere is
incapable of sustaining aerodynamic flight and where artificial satellites cannot be sustained in
orbit. Christol, The Modern International Law of Outer Space 522-33 (1982); Fawcett, Outer
Space: New Challenges to Law and Policy 16-17 (1984).
2. The 1982 United Nations Convention on the Law of the Sea, opened for signature 10
December 1982, U.N. Doc. A/CONF. 62/122 (1982), is reprinted in the Navy supplement to AFP
110-20 and in 21 Int'l Leg. Mat'ls 1261 (1982).
Each country has its own preference for maximizing the benefits of its relationships with the sea.
Those without a strong maritime history tend to see their interests more exclusively as coastal
nations than inclusively with the international community favoring maritime navigation and
overflight. Alexander, 8. The interests of the United States reflect that apparent dichotomy: as a
coastal nation the United States seeks to exploit its fisheries resources and offshore oil deposits; as a
maritime power the United States is dependent on unencumbered navigation and overflight
routes throughout the world and in outer space. Negroponte, Who Will Protect Freedom of the
Seas?, Dep't St. Bull., Oct. 1986, at 42.; However, an approach reflecting the inclusive interests of
the international community actually benefits all nations, since the fundamental importance of the
oceans lies in the equal and reasonable access to them for all nations. Harlow, Book Review, 18 J.
Mar. L. & Comm. 150-51 (1987).
An understanding of the historical development of the law of the sea is necessary to appreciate the
evolutionary nature of international law generally and the importance the actions and inactions of
governments, including their navies, have in establishing and losing rights.
2 Commander's Handbook on the Law of Naval Operations
provisions. Although the Convention, by its terms, would not come into formal
effect until one year following deposit with the United Nations of the 60th
instrument of ratification, the United States considered that the provisions
relating to navigation and overflight codified existing law and practice and
reflected customary international law.
On November 16, 1994, the 1982 LOS Convention came into force, with
respect to those nations that are parties to it. The concerns of the United States
and other industrialized nations with respect to the deep seabed mining
provisions of the Convention were successfully resolved by an Agreement
adopted without dissent by the United Nations General Assembly on July 28,
1994. That Agreement contains legally binding changes to the 1982 LOS
Convention and is to be applied and interpreted together with the Convention
as a single treaty. On October 7, 1994, the President of the United States
submitted the 1982 LOS Convention and the Agreement reforming its deep
seabed mining provisions to the Senate for its advice and consent to accession and
ratification, respectively.
1.2 RECOGNITION OF COASTAL NATION CLAIMS
In a statement on U.S. oceans policy issued 10 March 1983, the President
stated:
First, the United States is prepared to accept and act in accordance with the
balance of interests relating to traditional uses of the oceans [in the 1982 LOS
Convention] — such as navigation and overflight. In this respect, the United States
will recognize the rights of other States in the waters off their coasts, as reflected in
3. See Statement by the President, Mar. 10, 1983, Annex Al-3 (p. 43).
4. See Table Al-1 (p. 87) for a listing of nations that have ratified or acceded to the 1982 LOS
Convention as of 1 November 1997. See Annex Al-1 (p. 27) for the views of the United States as
to the rights and duties of non-parties to the Convention as articulated in its 8 March 1983
Statement in Right of Reply, 17 LOS Official Records 243. Figure Al-1 (p. 85) illustrates the
several regimes. International navigation and overflight and conduct by coastal nations in those
areas are discussed in Chapter 2. The United States is a party to the Territorial Sea Convention, the
Continental Shelf Convention, the High Seas Convention and the Fisheries Convention. See
Table Al-2 (p. 90) for a listing of nations that are parties to these four 1958 Geneva Conventions.
5. U.N. General Assembly Resolution A/RES/48/263 of 17 Aug 1994 and accompanying
Annex "Agreement Relating to the Implementation of Part XI of the United Nations Convention
on the Law of the Sea of 10 December 1982," reprinted in Nordquist, Vol. 1 at 471-91.
6. Id., Agreement Art. 2 at 474.
7. Letter of Transmittal, Oct. 7, 1994, Senate Treaty Doc. 103-39, (see Annex Al-2 (p. 32)).
For an excellent overview of the 1982 LOS Convention seeDoran, An Operational Commander's
Perspective of the 1982 LOS Convention, Int'lJ. of Marine & Coastal L., Vol. 10, No. 3 (August
1995) at 335-47. On the national security aspects of the Convention see Department of Defense
White Paper, National Security and the Law of the Sea, 2nd ed., January 1996.
Legal Divisions of the Oceans and Airspace 3
the Convention, so long as the rights and freedoms of the United States and others
under international law are recognized by such coastal States.
Second, the United States will exercise and assert its navigation and overflight
rights and freedoms on a worldwide basis in a manner that is consistent with the
balance of interests reflected in the Convention. The United States will not,
however, acquiesce in unilateral acts of other States designed to restrict the rights
and freedoms of the international community in navigation and overflight and
other related high seas uses.
The legal classifications ("regimes") of ocean and airspace areas directly affect
naval operations by determining the degree of control that a coastal nation may
exercise over the conduct of foreign merchant ships, warships, and aircraft
operating within these areas. The methods for measuring maritime jurisdictional
claims, and the extent of coastal nation control exercised in those areas, are set
forth in the succeeding paragraphs of this chapter. The DOD Maritime Claims
Reference Manual (DoD 2005. 1-M) contains a listing of the ocean claims of
coastal nations.
1.3 MARITIME BASELINES
The territorial sea and all other maritime zones are measured from baselines.
In order to calculate the seaward reach of claimed maritime zones, it is first
1 1
necessary to comprehend how baselines are drawn.
8. See Annex Al-3 (p. 43) for the full text of this statement. United States practice has been to
recognize those provisions of maritime claims that are consistent with the 1982 LOS Convention
and to diplomatically protest and assert its rights against those aspects that are inconsistent with
internationally recognized rights and freedoms. For example, the United States will recognize a 12
nautical mile territorial sea claim, but not a restriction on warship innocent passage in those waters.
9. See also Figure Al-1 (p. 85).
10. The MCRM provides a description of the nature of the various claims and includes a
system of charts depicting the baselines and seaward reach of the claimed areas of national
jurisdiction. These claims also appear in certain issues of Notice to Mariners (e.g., 1/97), U.S. Dep't
State, Limits in the Seas No. 36, National Claims to Maritime Jurisdictions (7th rev. 1995), and
U.S. Dep't State, Limits in the Seas No. 112, United States Responses to Excessive National
Maritime Claims (1992). Publication of these lists does not constitute U.S. recognition or
acceptance of the validity of any claim. The list of United States claims is reproduced in Annex
Al-4 (p. 46). For a comprehensive analysis of excessive maritime claims, see Roach & Smith.
1 1 . The current rules for delimiting baselines are contained in articles 5 through 14 of the 1982
LOS Convention. They distinguish between "normal" baselines (following the sinuosities of the
coast) and "straight" baselines (which can be employed along certain irregular coasts). As noted by
the I.C.J., delimitation of straight baselines "cannot be dependent merely upon the will of the
coastal State as expressed in its municipal law. . . . [T]he validity of the delimitation with regard to
other States depends upon international law." Trie Anglo -Norweigan Fisheries Case, [1951] I.C.J.
(continued...)
4 Commander's Handbook on the Law of Naval Operations
11. (...continued)
Rep. 132. The baseline rules take into account most of the wide variety of physical conditions
existing along the coastlines of the world. Alexander, at 13-14. The MCRM lists the baseline
claims of the coastal nations. National legislation on baselines is compiled in U.N. Office for Ocean
Affairs and the Law of the Sea, The Law of the Sea: Baselines: National Legislation With
Illustrative Maps, U.N. Sales No. E.89.V.10 (1989). The baseline provisions of the 1982 LOS
Convention are examined in U.N. Office for Oceans Affairs and the Law of the Sea, The Law of
the Sea: Baselines, U.N. Sales No. E.88.V.5* (1989). See also Atlas of the Straight Baselines (T.
Scovazzi et al. eds., 2d ed. 1989) and Roach & Smith, at 41-91.
The discussion of maritime zones in the text of this chapter assumes that the adjacent land area is
within the undisputed sovereignty of the claimant nation. However, the legal title to some
mainland and island territories is in dispute, thus affecting the offshore zones; for example:
Essequibo region of western Guyana claimed by Venezuela; Western Sahara presently occupied by
Morocco, but claimed by the Polisario supported by Algeria and Mauritania; the southern Kuriles,
claimed by Japan and occupied by the U.S.S.R. (now Russia) since the end of World War II;
various of the Spratly Islands claimed by China, Vietnam, Malayasia, the Philippines, Taiwan and
Brunei; the Senkakus Islands disputed among China, Japan, and Taiwan; Liancourt Rock (or
Takeshima) disputed between Japan and the Republic of Korea; Mayotte Island in the Indian
Ocean disputed between France and Comoros; British Indian Ocean Territory (including Diego
Garcia) where the United Kingdom's ownership is disputed by Mauritius; some small islands in the
Mozambique Channel between Mozambique and Madagascar disputed between Madagascar and
France; Persian Gulf islands of Abu Musa, Tunb al Sughra, and Tunb al Kabra disputed between
Iran and the United Arab Emirates; Kubbar, Qaruh, and Umm al Maraden Islands disputed
between Kuwait and Saudi Arabia; Hawar Islands disputed between Bahrain and Qatar;
Falklands/Malvinas dispute between the United Kingdom and Argentina; and the two
uninhabited islands of Hunter and Matthew, to the east of New Caledonia, disputed between
France and Vanuatu.
Further, although there are close to 400 maritime boundaries, less than a quarter of them have been
definitely resolved by agreement between the adjacent or opposing neighbors. Alexander, 41-44.
Most of these agreements are collected in U.N. Office for Ocean Affairs and the Law of the Sea,
The Law of the Sea: Maritime Boundary Agreements (1970-1984), U.N. Sales No. E.87.V.12
(1987); maritime boundary agreements concluded prior to 1970 are listed in an annex to this
collection. See also U.S. Dep't State, Limits in the Seas No. 108, Maritime Boundaries of the
World, (rev. 1990) and International Maritime Boundaries (Charney & Alexander eds., 1993 (2
Vols.). The Antarctic is discussed in paragraph 2.4.5.2.
U.S. maritime boundaries have been established with the Soviet Union (now Russia), Sen. Treaty
Doc. 101-22 and Sen. Ex. Rep. 102-13, to which the Senate gave its advice and consent on 16
Sep. 1991; Canada in the Gulf of Maine, (see 1984 I.C.J. Rep. 345-46 and 23 Int'l Leg. Mats.
1247); Mexico, T.I.A.S. 8805 (see Dep't State, Limits in the Seas No. 45), Cuba (see Dep't State,
Limits in the Seas No. 1 10); Venezuela, T.I.A.S. 9890 (see Dep't State, Limits in the Seas No. 91);
and the Cook Islands and Tokelau, T.I.A.S. 10775 (see Dep't State, Limits in the Seas No. 100). The
boundary with Cuba is established by executive agreement, pending advice and consent of the
Senate to the treaties establishing these boundaries. Sen. Ex. H, 96th Cong. 1st Sess., T.I.A.S.
9732, 32 U.S.T. 840; T.I.A.S. 10,327; T.I.A.S. 10,913; T.I.A.S. 1 1,853 (Cuba). See also Feldman
& Colson, The Maritime Boundaries of The United States, 75 Am. J. Int'l L. 729 (1981); Smith,
The Maritime Boundaries of The United States, 71 Geographical Rev., Oct. 1981, at 395; and
Maritime Boundary: Cuba-United States, Limits in the Seas No. 110 (1990). The United States
has outstanding maritime boundary issues with Canada, including areas in the Beaufort Sea, Dixon
Entrance, and Strait of Juan de Fuca. The U.S. -Canada dispute regarding the extension of the
Gulf of Maine boundary was resolved in the Gulf of Maine Case, 1984 I.C.J. Regs. 347. See I
(continued...)
Legal Divisions of the Oceans and Airspace 5
1.3.1 Low- Water Line. Unless other special rules apply, the baseline from
which maritime claims of a nation are measured is the low- water line along the
12
coast as marked on the nation's official large-scale charts.
1.3.2 Straight Baselines. Where the coastline is deeply indented or where
there is a fringe of islands along the coast in its immediate vicinity, the coastal
nation may employ straight baselines. The general rule is that straight baselines
must not depart from the general direction of the coast, and the sea areas they
1 3
enclose must be closely linked to the land domain. A coastal nation which uses
straight baselines must either clearly indicate them on its charts or publish a list of
11. (...continued)
International Maritime Boundaries (Charney, & Alexander eds., 1993 at 401-16. Negotiations
continue to resolve the U.S. -Dominican Republic maritime boundary. Negroponte, Current
Developments in U.S. Oceans Policy, Dep't St. Bull., Sep. 1986, at 86. Tb ; United States has
established a provisional enforcement boundary between it and the Bahamas.
There has been considerable litigation between the United States and several states of the United
States concerning the application of these rules. United States v. California, 332 U.S. 19, 67 S.Ct.
1658, 91 L.Ed. 1889 (1947); United States v. California, 381 U.S. 139, 85 S.Ct. 1401, 14 L4Ed.2d
296 (1965); United States v. Louisiana, 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44 (1969); United
States v. Alaska, 422 U.S. 184, 95 S.Ct. 2240, 45 L.Ed.2d 109 (1975), on remand 519 F.2d 1376
(9th Cir. 1975); United States v. California, 432 U.S. 40, 97 S.Ct. 2915, 53 L.Ed.2d 94 (1977),
modified 449 U.S. 408, 101 S.Ct. 912, 66 L.Ed.2d 619 (1981).
12. Territorial Sea Convention, art. 3; 1982 LOS Convention, art. 5. "Low-water line" has
been defined as "the intersection of the plane of low water with the shore. The line along a coast, or
beach, to which the sea recedes at low-water." The actual water level taken as low-water for
charting purposes is known as the level of Chart Datum. LOS Glossary, definition 50, Annex Al-5
(p. 51). Since 1980, the United States has used a uniform, continuous Chart Datum of Mean Lower
Low Water for all tidal waters of the United States, the Commonwealth of Puerto Rico, Guam,
American Samoa, United States Virgin Islands, Commonwealth of Northern Mariana Islands, and
its other territories and possessions. 45 Fed. Reg. 70296-97, 23 Oct. 1980; Hicks, Tide and
Current Glossary 3 & 15 (NOAA 1989).
Normal baselines must be consistent with the rule set forth in the text. Excessive "normal" baseline
claims include a claim that low-tide elevations wherever situated generate a territorial sea and that
artificial islands generate a territorial sea (Egypt and Saudi Arabia). Churchill & Lowe, The Law of
the Sea 46 (2d ed. 1988). On low-tide elevations, see 1.3.2.2; on artificial islands, see 1.4.2.2.
13. Territorial Sea Convention, art. 4; 1982 LOS Convention, art. 7.
Norway is an example of a country whose coastline is deeply indented and fringed with islands; in
1935 it was the first country to establish a baseline consisting of a series of straight lines between
extended land points. In its decision, the International Court of Justice approved the system. Tlie
Anglo-Norwegian Fisheries Case, [1951] I.C.J. Rep. 116; MacChesney 65. The criteria laid down in
the decision for delimiting straight baselines independent of the low-water line were copied almost
verbatim in the 1958 Territorial Sea Convention, and continued, with some additional provisions,
in the 1982 LOS Convention. See U.S. Dep't of State, Limits in the Seas No. 106, Developing
Standard Guidelines for Evaluating Straight Baselines (1987).
(continued...)
6 Commander's Handbook on the Law of Naval Operations
geographical coordinates of the points joining them together. See Figure 1-1.
The United States, with few exceptions, does not employ this practice and
interprets restrictively its use by others.
1.3.2.1 Unstable Coastlines. Where the coastline is highly unstable due to
natural conditions, e.g., deltas, straight baselines may be established connecting
13. (...continued)
Properly drawn straight baselines do not significantly push the seaward limits of the territorial sea
away from the coast. Straight baselines are not authorized for the purpose of territorial sea
expansion, which seizes property interests from other States in coastal adjacency or opposition, and
from all other States of the world who share a common interest in the high seas and deep seabed. In
viewing the 1982 LOS Convention as a whole, the U.S. position is that straight baseline segments
must not exceed 24 NM in length. See note 15.
If the portion of the coast being examined does not meet either criterion (deeply indented or
fringed with islands), then no straight baseline segment may lawfully be drawn in that locality, and
the subordinate rules (on permissible basepoints, vector of the putative straight baseline in relation
to the coast, and the requisite quality of the waters that would be enclosed), may not be invoked.
Further, the coastal State must fulfill all the requirements of one test or the other, and may not mix
the requirements. For example, a State may not claim that a locality is indented, though not deeply,
and that it has some islands, though they do not constitute a fringe, and claim it may draw straight
baselines in that locality. Either test selected must be met entirely on its own terms. If neither test is
met, then the low-water mark must be used in that locality. However, failure to meet this
preliminary geographical test in one locality does not preclude establishing it in another.
14. Territorial Sea Convention, art. 4(6); 1982 LOS Convention, art. 16.
15. Letters from Sec'y State to Dep't Justice, 13 Nov. 1951 and 12 Feb. 1952, quoted in 1
Shalowitz, Shore and Sea Boundaries 354-57 (1962) and 4 Whiteman 174-79. Straight baselines must
be constructed stricdy in accordance with international law to avoid unilateral attempts to diminish the
navigational rights of all States. A concise description of the U.S. position on the use of straight baselines
may be found in the Commentary in the Transmittal Message at pp. 8-10 (see note 7).
Several parts of the U.S. coast (e.g., Maine and southeast Alaska) have the physical characteristics that
would qualify for the use of straight baselines. Alexander, at 19. The U.S. Supreme Court has held that
straight baselines could be applied in the United States only with the federal government's approval.
United States v. California, 381 U.S. 139, 167-69, 85 S.Ct. 1401, 14 L.Ed.2d 296, 314-15 (1965);
Louisiana Boundary Case, 394 U.S. 11, 36-38, 89 S.Ct. 773, 787-89, 22 L.Ed.2d 44 (1969); and Alabama
and Mississippi Boundary Case, 470 U.S. 93, 99, 105 S.Ct. 1074, 84 L.Ed.2d 73, 79 (1985).
Seventy-five nations have delimited straight baselines along all or a part of their coasts. See Table
Al-3 (p. 94). No maximum length of straight baselines is set forth in the 1982 LOS Convention.
The longest line used by the Norwegians in 1935 was the 44-mile line across Lopphavet. Much
longer lines have since been drawn, not in conformity with the law, such as Ecuador (136 nautical
miles), Madagascar (123 nautical miles), Iceland (92 nautical miles), and Haiti (89 nautical miles).
Alexander, Baseline Delimitations and Maritime Boundaries, 23 Va. J. Int'l L. 503, 518 (1983).
Vietnam's baseline system departs to a considerable extent from the general direction of its coast.
Alexander, id. , at 520. Other straight baselines that do not conform to the 1 982 LOS Convention's
provisions include Albania, Canada, Colombia, Cuba, Italy, Senegal, Spain, and the
former-U.S.S.R. Alexander, at 37; U.S. Dep't of State, Limits in the Seas No. 103 (1985); and
MCRM. Among the straight baselines that depart most radically from the criteria of the 1982 LOS
Convention are the Arctic straight baselines drawn by Canada and the former-U.S.S.R. See Roach
& Smith at 57-8.
(continued...)
Legal Divisions of the Oceans and Airspace 7
appropriate points on the low- water line. These straight baselines remain
effective, despite subsequent regression or accretion of the coastline, until
changed by the coastal nation.
1.3.2.2 Low-Tide Elevations. A low- tide elevation is a naturally formed land
area surrounded by water and which remains above water at low tide but is
submerged at high tide. As a rule, straight baselines may not be drawn to or from
a low-tide elevation unless a lighthouse or similar installation, which is
17
permanently above sea level, has been erected thereon.
1.3.3 Bays and Gulfs. There is a complex formula for determining the baseline
18 .
closing the mouth of a legal bay or gulf. For baseline purposes, a "bay" is a
well-marked indentation in the coastline of such proportion to the width of its
mouth as to contain landlocked waters and constitute more than a mere
curvature of the coast. The water area of a "bay" must be greater than that of a
19
semicircle whose diameter is the length of the line drawn across the mouth. See
Figure 1-2. Where the indentation has more than one mouth due to the presence
15. (...continued)
Some of the Soviet straight baseline claims are analyzed in U.S. Dep't of State, Limits in the Seas
No. 107 (1987) (Pacific Ocean, Sea of Japan, Sea of Okhotsk, Bering Sea) and No. 109 (1988)
(Black Sea). The USS ARKANSAS (CGN-41) challenged the Soviet straight baseline drawn
across Avacha Bay, the entrance to Petropavlovsk, Kamchatka Peninsula, on 17 and 21 May 1987.
Washington Post, 22 May 1987, at A34; 39 Current Dig. Soviet Press, 24 June 1987, at 18; U.S.
Naval Inst. Proc. Naval Review, May 1988, at 231.
16. 1982 LOS Convention, art. 7(2). States making use of the delta provision must first meet
the threshold test of art. 7(1) of the LOS Convention which permits the drawing of straight
baselines by joining appropriate points along the coast in localities where the coastline is deeply
indented and cut into or where a fringe of islands exists along the coast. Applicable deltas include
those of the Mississippi and Nile Rivers, and the Ganges-Brahmaputra River in Bangladesh.
Alexander, at 81 n.10.
17. Territorial Sea Convention, arts. 11 & 4(3); 1982 LOS Convention, arts. 13 & 7(4).
Low-tide elevation is a legal term for what are generally described as drying banks or rocks. On
charts they should be distinguishable from islands. International Hydrographic Organization
(IHO) definition 49, Annex Al-5 (p. 51). The LOS Convention would also permit the use of
low-tide elevations without lighthouses as basepoints for straight baselines if the usage "has
received general international recognition." LOS Convention, art. 7(4). No low-tide elevation
may be used as a basepoint for establishing straight baselines if it is located wholly outside the
territorial sea measured from normal baselines. Where a low-tide elevation is situated at a distance
not exceeding the breadth of the territorial sea measured from the mainland or an island, the
low-tide elevation may also be used as the normal baseline. See Figure 1-5 (p. 17).
18. Many bodies of waters called "bays" in the geographical sense are not "bays" for purposes
of international law. See Westerman, The Juridical Bay (1987).
19. Territorial Sea Convention, art. 7(2); 1982 LOS Convention, art. 10(2). Islands landward
of the line are treated as part of the water area for satisfaction of the semicircle test. Territorial Sea
Convention, art. 7(3); 1982 LOS Convention, art. 10(3).
8 Commander's Handbook on the Law of Naval Operations
FIGURE 1-1 STRAIGHT BASELINES
A. DEEPLY INDENTED COASTLINE
B. FRINGING ISLANDS
Legal Divisions of the Oceans and Airspace 9
FIGURE 1-2. The Semicircle Test
a
/
/
/
f
C.
•
mm *~
\ \
\ \
I 1
O /
/
/
$/ *-
\ \
\ \
l \
i V
/ N
/ J
S f
''V
I V y •
^^ ^< ^
NOTE: ONLY INDENTATION b. MEETS THE
SEMICIRCLE TEST AND QUALIFIES
AS A JURIDICAL BAY.
10 Commander's Handbook on the Law of Naval Operations
FIGURE 1-3. Bay with Islands
BAY WITH ISLANDS MEETS SEMICIRCLE
TEST
\ SEMICIRCLE WITH DUMETER j
V EQUAL TO TOTAL OF /
\ DISTANCE BETWEEN /
\ ISLANDS J
FIGURE 1-4. Bay with Mouth Exceeding 24 Nautical Miles
BASELINE WHERE BAY NARROWS
TO 24 NM
' /\
' 3& i i
^_J NV/i-^ ]
/
Legal Divisions of the Oceans and Airspace 1 1
of islands, the diameter of the test semicircle is the sum of the lines across the
20
various mouths. See Figure 1-3.
The baseline across the mouth of a bay may not exceed 24 nautical miles in
length. Where the mouth is wider than 24 nautical miles, a baseline of 24 nautical
miles may be drawn within the bay so as to enclose the maximum water
area. See Figure 1-4. Where the semicircle test has been met, and a closure line
of 24 nautical miles or less may be drawn, the body of water is a "bay" in the legal
21
sense.
1.3.3.1 Historic Bays. So-called historic bays are not determined by the
22
semicircle and 24-nautical mile closure line rules described above. To meet the
international standard for establishing a claim to a historic bay, a nation must
demonstrate its open, effective, long term, and continuous exercise of authority
over the bay, coupled with acquiescence by foreign nations in the exercise of that
authority. The United States has taken the position that an actual showing of
acquiescence by foreign nations in such a claim is required, as opposed to a mere
23
absence of opposition.
20. Territorial Sea Convention, art. 7(3); 1982 LOS Convention, art. 10(3).
21. The waters enclosed thereby are internal waters. Territorial Sea Convention, art. 7(4)-(5);
1982 LOS Convention, art. 10(4)-(5).
If an indentation with a mouth wider than 24 nautical miles meets the semicircle test, it qualifies as a
juridical bay. The waters landward of the 24 nautical mile "closure line" in such a bay need not
meet the semicircle test. See Figure 1-4 (p. 10). Territorial Sea Convention, arts. 7(2) & (5); 1982
LOS Convention, arts. 10(2) & (5); Westerman, The Juridical Bay 170-76 (criticizing the contrary
view in I Shalowitz, Shore and Sea Boundaries 223 (1962)). This "closure line" is described as a
straight baseline in article 10(5) of the 1982 LOS Convention.
Closure lines for bays meeting the semicircle test must be given due publicity, either by chart
indications or by listed geographic coordinates. Where the semicircle test is not met in the first
instance, the coastal water area is not a "bay" in the legal sense, but a mere curvature of the coast. In
this case, the territorial sea baseline must follow the low water line of the coastline, unless the coastal
configuration justifies use of straight baselines (see paragraph 1.3.2) or the waters meet the criteria
for an "historic bay" (see paragraph 1.3.3.1). Territorial Sea Convention, arts. 3 & 7(6); 1982 LOS
Convention, arts. 16 & 10(6). The 1984 Soviet straight baseline decree along the Arctic coast
specifically closed offat their mouths 8 bays wider than 24 nautical miles. Alexander, at 36. The unique
Soviet claims of closed seas are discussed in paragraph 2.4.4, note 68 (p. 1 33) and Alexander, at 67-69.
The U.S. Supreme Court has held that Long Island and Block Island Sounds west of the line
between Montauk Point, L.I., and Watch Hill Point, R.I., constitute a juridical bay. United States v.
Maine et al. (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985).
22. Territorial Sea Convention, art. 7(6); 1982 LOS Convention, art. 10(6).
23. 1973 Digest of U.S. Practice in International Law 244-45 (1974); Goldie, Historic Bays in
International Law — An Impressionistic Overview, 11 Syracuse J. Int'l L. & Comm. 205, 221-23,
248 & 259 (1984). Cf. United States v. Alaska, 422 U.S. 184, 200 (1975) (absence of foreign protest does
not constitute acquiescence absent showing foreign nations knew or reasonably should have known
that territorial sovereignty was being asserted); but see Fisheries Case (U.K. v. Norway), 1951 I.CJ. Rep.
(continued...)
12 Commander's Handbook on the Law of Naval Operations
1.3.4 River Mouths. If a river flows directly into the sea, the baseline is a
straight line across the mouth of the river between points on the low- water line
of its banks.
23. (...continued)
116, 138 & 139 (mere toleration is sufficient). See also Juridical Regime of Historic Waters,
Including Historic Bays, U.N. Doc. A/CN.4/143, 9 March 1962, in 2 Y.B. Int'l L. Comm. 1
(1964).
The United States "has only very few small spots of historic waters, which are of no consequence
to the international community and which could have been incorporated in a straight baseline
system had it chosen to do so." Negroponte, Who Will Protect Freedom of the Seas?, Dep't St.
Bull., Oct. 1986, at 42-43. Mississippi Sound, a shallow body of water immediately south of the
mainland of Alabama and Mississippi, has been held by the U.S. Supreme Court to be an historic
bay, United States v. Louisiana et al. (Alabama and Mississippi Boundary Case), 470 U.S. 93 (1985), as
has Long Island Sound, United States v. Maine et al, 469 U.S. 509 (1985). The United States has
held that certain other bodies of United States waters do not meet the criteria for historic waters.
These include Cook Inlet, Alaska, (United States v. Alaska, 422 U.S. 184 (held to be high seas));
Santa Monica and San Pedro Bays, California (United States v. California, 381 U.S., at 173-75
(1965)); Florida Bay {United States v. Florida, 420 U.S. 531, 533 (1975)); numerous bays along the
coast of Louisiana {Louisiana Boundary Case, 420 U.S. 529 (1975)); and Nantucket Sound,
Massachusetts (Massachusetts Boundary Case, 475 U.S. 86 (1986)). The Supreme Court has also
noted that no exceptions have been taken to the Master's finding that Block Island Sound was not a
historic bay. United States v. Maine et al., 469 U.S. 509 n.5. The Supreme Court also adopted the
recommendations of its Special Masters in the Florida and Louisiana cases. Their Reports,
containing the primary analyses of these waters, were not generally available until their publication
in Reed, Koester and Briscoe, The Reports of the Special Masters of the United States Supreme
Court in the Submerged Lands Cases, 1949-1987 (1992). In 1965, the U.S. Supreme Court
declined to consider the claim that Monterey Bay, California, is historic, noting that it met the
24-nautical mile closing line test. United States v. California, 381 U.S., at 173. On the other hand,
while the Chesapeake and Delaware Bays meet the criteria for historic bays, and have been so
recognized by other nations (2 Restatement (Third), sec. 511 Reporters' Note 5, at 32), both now
qualify as juridical bays and do not depend upon historic bay status for treatment as internal waters.
Table Al-4 (p. 96) lists claimed and potential historic bays, none of which are recognized by the
United States. The status of some of these bays, and others, are discussed in 4 Whiteman 233-57,
Churchill & Lowe, The Law of the Sea 36-38 (2d rev. ed. 1988); and Roach & Smith, at 23-40.
Hudson Bay, with a 50-mile closing line, is not conceded by the United States to be a historic bay,
despite Canada's claim since 1906. Colombos, International Law of the Sea 186 (6th ed. 1967);
Bishop, International Law 605 (3d ed. 1971); 1 Hackworth 700-01; 4 Whiteman 236-37.
The claim of Libya to historic status for the Gulf of Sidra (Sirte), with a closure line of about 300
miles, first advanced in 1973, has not been accepted by the international community and has been
the subject of frequent protests and assertions {see paragraph 2.6 (p. 143)). 1974 Digest of U.S.
Practice in International Law 293; U.N. Law of the Sea Bulletin No. 6, Oct. 1985, at 40 (U.S.
protests). Many other nations also reject Libya's claim to the Gulf of Sidra, including Australia
(Hayden press conference in Brisbane, 26 March 1986), France (FBIS Western Europe, 26 March
1986, at Kl); Federal Republic of Germany (FBIS Western Europe 26 March 1986, at Jl);
Norway (FBIS Western Europe 7 April 1986, at P3-P4); and Spain (FBIS Western Europe, 26
March 1986, at Nl). Only Syria, Sudan, Burkina Faso (formerly Upper Volta), and Romania have
(continued...)
Legal Divisions of the Oceans and Airspace 13
1.3.5 Reefs. The low- water line of a reef may be used as the baseline for islands
25
situated on atolls or having fringing reefs.
1.3.6 Harbor Works. The outermost permanent harbor works which form an
integral part of the harbor system are regarded as forming part of the coast for
23. (...continued)
publicly recognized the claim. U.N. Doc. S/PV.2670, at 12 (1986) (Syria); Foreign Broadcast
Information Service (FBIS) Daily Report, Middle East & Africa, 27 Mar. 1986, at Q5 (Sudan); id.,
13 Dec. 1985, at Tl (Burkina Faso); FBIS Daily Report, Eastern Europe, 27 Mar. 1986, at HI
(Romania). The Libyan claim is carefully examined in Spinatto, Historic and Vital Bays: An
Analysis of Libya's Claim to the Gulf of Sidra, 13 Ocean Dev. & Int'l L.J. 65 (1983); Francioni, The
Status of The Gulf of Sirte in International Law, 1 1 Syracuse J. Int'l L. & Comm. 311 (1984); Blum,
The Gulf of Sidra Incident, 80 Am. J. Int'l L. 668 (1986); Neutze, The Gulf of Sidra Incident: A
Legal Perspective, U.S. Naval Inst. Proc, January 1982, at 26-31; and Parks, Crossing the Line,
U.S. Naval Inst. Proc, November 1986, at 41-43.
The U.S., Japan, Great Britain, France, Canada, and Sweden have protested the Soviet Union's
1957 claim that Peter the Great Bay (102 nautical miles) is a historic bay. 4 Whiteman 250-57; 2
Japanese Ann. of Int'l L. 213-18 (1958); Darby, The Soviet Doctrine of the Closed Sea, 23 San
Diego L. Rev. 685, 696 (1986). The operations of USS LOCKWOOD (FF-1064) on 3 May 1982
and USS OLDENDORF (DD-972) on 4 September 1987 challenged the Soviet historic bay and
straight baseline claims in Peter the Great Bay. See Roach & Smith at 31.
Several countries have protested Vietnam's claims to portions of the Gulfs of Tonkin and Thailand
as its historic waters. Protests of the claim in the Gulf of Thailand may be found in U.N. Law of the
Sea Bulletin No. 10, Nov. 1987, at 23 (U.S.); U.N. LOS Office, Current Developments in State
t Practice 147 (Thailand); U.N. LOS Office, Current Developments in State Practice No. II 84-85
(Singapore); and of the claim in the Gulf of Tonkin in U.N. LOS Office, Current Developments in
State Practice 146-47 (France and Thailand). See also Limits in the Seas No. 99, Straight Baselines
Vietnam 9-10 (1983) and Roach & Smith at 33.
24. Territorial Sea Convention, art. 13; 1982 LOS Convention, art. 9. The Conventions place
no limit on the length of this line. Since estuaries and bays are necessarily much wider than mouths
of rivers, a straight baseline across the mouth of a river should not be longer than the maximum
permitted for bays. This rule does not apply to estuaries. (An estuary is the tidal mouth of a river,
where the tide meets the current of fresh water. IHO definition 30, Annex Al-5 (p. 51).) The
baseline adopted for a river mouth must be given due publicity either by chart indication or by
] listed geographical coordinates. Territorial Sea Convention, art. 3; 1982 LOS Convention, art. 16.
) If the river forms an estuary, the rule for bays should be followed in closing the river's mouth. IHO
i definition 54, Annex Al-5 (p. 51). Further, the Conventions do not state exactly where, along the
! banks of estuaries, the closing points should be placed. Some nations have sought to close off large
I estuaries at their seaward extent. For example, Venezuela has closed off the mouth of the Orinoco
with a 99-mile closing line, although the principal mouth of the river is 22 miles landward from
that baseline. Limits in the Seas No. 21. That claim was protested by the United States and the
United Kingdom in 1956. 4 Whiteman 343; Roach & Smith at 74.
No special baseline rules have been established for rivers entering the sea through deltas, such as the
Mississippi, (i.e., either the normal or straight baseline principles may apply) or for river entrances
dotted with islands.
25. 1982 LOS Convention, art. 6. A reef is "a mass of rock or coral which either reaches close
to the sea surface or is exposed at low tide." A fringing reef is "a reef attached directly to the shore or
(continued...)
14 Commander's Handbook on the Law of Naval Operations
baseline purposes. Harbor works are structures, such as jetties, breakwaters and
groins, erected along the coast at inlets or rivers for protective purposes or for
enclosing sea areas adjacent to the coast to provide anchorage and shelter.
1.4 NATIONAL WATERS27
For operational purposes, the world's oceans are divided into two parts. The
first includes internal waters, territorial seas, and archipelagic waters. These
national waters are subject to the territorial sovereignty of coastal nations, with
certain navigational rights reserved to the international community. The second
part includes contiguous zones, waters of the exclusive economic zone, and
the high seas. These are international waters in which all nations enjoy the high seas
freedoms of navigation and overflight. International waters are discussed further
in paragraph 1.5.
25. (continued...)
continental land mass, or located in their immediate vicinity." IHO definition 66, Annex Al-5
(p. 51). An atoll is "a ring-shaped reef with or without an island situated on it surrounded by the
open sea, that encloses or nearly encloses a lagoon." IHO definition 9, Annex Al-5 (p. 51). While
the LOS Convention does not state how a closing line is to be drawn across the opening of an atoll,
waters inside the lagoon of an atoll are internal waters. See paragraph 1.4.1 (p. 15) and Beazley,
Reefs and the 1982 Convention on the Law of the Sea, 6 Int'lJ. Estuarine & Coastal L. 281 (1991).
In warm water areas, where atolls and reefs are prevalent, navigators may thus have difficulty in
precisely determining the outer limits of a nation's territorial sea. Alexander, at 14.
26. Territorial Sea Convention, art. 8; 1982 LOS Convention, art. 11. Other harbor works
include moles, quays and other port facilities, as well as coastal terminals, wharves and sea walls
built along the coast at inlets or rivers for protective purposes or for enclosing sea areas adjacent to
the coast to provide anchorage and shelter. IHO definition 38, Annex Al-5 (p. 51).
Offshore installations and artificial islands are not considered permanent harbor works for
baseline purposes. Notwithstanding suggestions that there are uncertainties relating to
monobuoys (single point mooring systems for tankers), which may be located some distance
offshore, Alexander, at 17, the U.S. Government rejects the use of monobuoys as valid base
points. The U.S. Supreme Court has held that "dredged channels leading to ports and harbors"
are not "harbor works." United States v. Louisiana, 394 U.S. 11, 36-38, 89 S.Ct. 773, 787-89, 22
L.Ed.2d44(1969).
Further, the Conventions do not address ice coast lines, where the ice coverage may be permanent
or temporary. The U.S. Government considers that the edge of a coastal ice shelf does not support
a legitimate baseline. Navigation in polar regions is discussed in paragraph 2.4.5 (p. 134).
27. Although "national waters" are not words of art recognized in international law as having a
specialized meaning, their use in the text to distinguish such waters from "international waters" is
considered a useful aid to understanding the contrasting operational rights and duties in and over
the waters covered by these two terms.
28. The high seas rights of navigation in and over the waters of the exclusive economic zone
are examined in paragraph 2.4.2 (p. 129).
Legal Divisions of the Oceans and Airspace 15
1.4.1 Internal Waters. Internal waters are landward of the baseline from 'which
the territorial sea is measured. Lakes, rivers, some bays, harbors, some canals,
and lagoons are examples of internal waters. From the standpoint of international
law, internal waters have the same legal character as the land itself There is no
right of innocent passage in internal waters, and, unless in distress (see paragraph
2.3.1), ships and aircraft may not enter or overfly internal waters without the
permission of the coastal nation. Where the establishment of a straight baseline
has the effect of enclosing as internal waters areas which had previously not been
31
considered as such, a right of innocent passage exists in those waters.
1.4.2 Territorial Seas. The territorial sea is a belt of ocean which is measured
32
seaward from the baseline of the coastal nation and subject to its sovereignty.
The U.S. claims a 12-nautical mile territorial sea and recognizes territorial sea
claims of other nations up to a maximum breadth of 12 nautical miles.
29. Territorial Sea Convention, art. 5(1); 1982 LOS Convention, arts. 2(1) & 8(1). Nordquist,
Vol. II at 104-8.
30. It should be noted that rivers that flow between or traverse two or more nations are
generally regarded as international rivers (e.g., St. Lawrence, Rhine, Elbe, Meuse, Oder, Tigrus,
Euphrates). 3 Whiteman 872-1075; Berber, Rivers in International Law (1959); Vitanyi, The
International Regime of River Navigation (1979).
31. Territorial Sea Convention, art. 5(2); 1982 LOS Convention, art. 8(2).
32. Territorial Sea Convention, arts. 1-2; 1982 LOS Convention, art. 2. Nordquist, Vol. II at
49-86.
33. By Presidential Proclamation 5928, 27 December 1988, the United States extended its
territorial sea, for international purposes, from 3 to 12 nautical miles. 54 Fed. Reg. 777, 9 Jan.
1989; 24 Weekly Comp. Pres. Doc. 1661, 2 Jan. 1989; 83 Am. J. Int'l L. 349; 43 U.S.C.A. sec.
1331 note; Annex Al-6 (p. 78). See also Schachte, The History of the Territorial Sea From a
National Security Perspective, 1 Terr. Sea J. 143 (1990). The 3-nautical mile territorial sea had
been established by Secretary of State Jefferson in his letters of 8 Nov. 1793 to the French and
British Ministers, 6 The Writings of Thomas Jefferson 440-42 (Ford ed. 1895) ("reserving . . . the
ultimate extent of this for future deliberation the President gives instructions to the officers acting
under his authority to . . . [be] restrained for the present to the distance of one sea-league, or three
geographical miles from the sea-shore"); Act of 5 June 1794, for the punishment of certain crimes
against the United States, sec. 6, 1 Stat. 384 (1850) (granting jurisdiction to the Federal District
Courts in certain cases "within a marine league of the coasts or shores" of the United States); Dep't
of State Public Notice 358, 37 Fed. Reg. 11,906, 15 June 1972. See Swarztrauber, generally.
By its terms, Proclamation 5928 does not alter existing state or Federal law. As a result, the 9
nautical mile natural resources boundary off Texas, the Gulf coast of Florida, and Puerto Rico, and
the 3 nautical mile line elsewhere, remain the inner boundary of Federal fisheries jurisdiction and
the limit of the states' jurisdiction under the Submerged Lands Act, 43 U.S.C. sec. 1301 etseq. The
Puerto Rico natural resources boundary is the limit of that commonwealth's jurisdiction under 48
U.S.C. sec. 749. See Arruda, The Extension of the United States Territorial Sea: Reasons and
Effects, 4 Conn. J. Int'l L. 698 (1989); Kmiec, Legal Issues Raised by the Proposed Presidential
Proclamation to Extend the Territorial Sea, 1 Terr. Sea J. 1 (1990); Office of NOAA General
Counsel, Effect of the Territorial Sea Proclamation on the Coastal Zone Management Act, id. 169;
Archer and Bondareff, The Role of Congress in Establishing U.S. Sovereignty Over the Expanded
Territorial Sea, id. 117.
1 6 Commander's Handbook on the Law of Naval Operations
1.4.2.1 Islands, Rocks, and Low-Tide Elevations. Each island has its own
territorial sea and, like the mainland, has a baseline from which it is calculated.
An island is defined as a naturally formed area of land, surrounded by water,
which is above water at high tide. Rocks are islands which cannot sustain
human habitation or economic life of their own. Provided they remain above
water at high tide, they too possess a territorial sea determined in accordance
with the principles discussed in the paragraphs on baselines. A low-tide
elevation (above water at low tide but submerged at high tide ) situated wholly
or partly within the territorial sea may be used for territorial sea purposes as
though it were an island. Where a low-tide elevation is located entirely beyond
the territorial sea, it has no territorial sea of its own. See Figure 1-5.
1.4.2.2 Artificial Islands and OfF-Shore Installations. Artificial islands and
off-shore installations have no territorial sea of their own.
1.4.2.3 Roadsteads. Roadsteads normally used for the loading, unloading, and
anchoring of ships, and which would otherwise be situated wholly or partly
34. See paragraph 2.6 (p. 143) regarding the U.S. Freedom of Navigation and Overflight
Program.
The history of claims concerning the breadth of the territorial sea reflects the lack of any
international agreement prior to the 1982 LOS Convention, either at the Hague Codification
Conference of 1930 or UNCLOS I and II, on the width of that maritime zone. Today, most
nations claim no more than a 12 nautical mile territorial sea. This practice is recognized in the 1982
LOS Convention, art. 3, which provides that "every [nation] has the right to establish the breadth
of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the baseline."
Table A 1-5 (p. 97) lists the territorial sea claims including those few coastal nations that presently
claim territorial sea breadths greater than 12 nautical miles in violation of art. 3 of the 1982 LOS
Convention. Table Al-6 (p. 100) shows the expansion of territorial sea claims since 1945.
35. Territorial Sea Convention, art. 10; 1982 LOS Convention, art. 121(1). The travaux
preparatoires of art. 121 may be found in U.N. Office for Oceans Affairs and the Law of the Sea, The
Law of the Sea: Regime of Islands (1988). See also Nordquist, Vol. Ill, at 319-39.
36. Rocks, however, have no exclusive economic zone or continental shelf. Territorial Sea
Convention, art. 10; 1982 LOS Convention, art. 121(3); see also paragraph 1.3 (p. 1-3) and
Kwiatkowska & Soons, Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human
Habitation or Economic Life of Their Own, 21 Neth. Yb. Int'l L. 139 (1990).
37. See paragraph 1.3.2.2 (p. 7).
38. Territorial Sea Convention, art. 11; 1982 LOS Convention, art. 13. "Low-tide" is not
defined in the Conventions. Various measures of low tide exist, including mean low water and
mean lower low water. See paragraph 1.3.1, note 12 (p. 5) regarding low-water line.
39. 1982 LOS Convention, arts. 11 & 60(8). These terms are defined in IHO definitions
8 & 41, Annex Al-5 (p. 51). "Offshore terminals" and "deepwater ports" are defined in U.S. law as
"any fixed or floating man-made structures other than a vessel, or any group of such structures,
located beyond the territorial sea . . . and which are used or intended for use as a port or terminal for
the loading or unloading and further handling of oil for transportation to any State." Deepwater
Port Act of 1974, as amended, 33 U.S.C. sec. 1501 & 1502(10).
Legal Divisions of the Oceans and Airspace 17
FIGURE 1-5. Territorial Sea of Islands and Low-Tide Elevations
LOW-TIDE
ELEVATIONS
a
18 Commander's Handbook on the Law of Naval Operations
beyond the outer limits of the territorial sea, are included in the territorial sea.
Roadsteads must be clearly marked on charts by the coastal nation.
1.4.3 Archipelagic Waters. An archipelagic nation is a nation, that is
constituted wholly of one or more groups of islands. Such nations may draw
straight archipelagic baselines joining the outermost points of their outermost
islands, provided that the ratio of water to land within the baselines is between 1
to 1 and 9 to 1 . The waters enclosed within the archipelagic baselines are called
40. Territorial Sea Convention, art. 9; 1982 LOS Convention, arts. 12 & 16. Only the
roadstead itself is territorial sea; roadsteads do not generate territorial seas around themselves. See
McDougal & Burke 423-27. Accordingly, the United States does not recognize Germany's claim
to extend its territorial sea at one point in the Helgoland Bight of the North Sea to 16 nautical
miles.
41. 1982 LOS Convention, art. 46. Art. 46 defines an archipelagic nation as being constituted
wholly by one or more archipelagos, and provides that it may include other islands. The article also
defines "archipelago" as "a group of islands, including parts of islands, interconnecting waters and
other natural features which are so closely interrelated that [they] form an intrinsic geographical,
economic, and political entity, or which historically have been regarded as such." A number of
nations fall within the scope of this definition, including Antigua and Barbuda, The Bahamas, Cape
Verde, Comoros, Fiji, Indonesia, Papua New Guinea, Philippines, Sao Tome and Principe, the
Solomon Islands, Trinidad and Tobago, and Vanuatu. See Table Al-7 (p. 101).
Other nations fall outside the Convention's definition. Continental countries possessing island
archipelagos which are not entitled to archipelagic status under the Convention include the
United States (Hawaiian Islands and Aleutians), Canada (Canadian Arctic Islands), Greece (the
Aegean archipelago), Ethiopia (Dahlak), Ecuador (the Galapagos Islands) and Portugal (the Azores
Islands). These islands, although archipelagos in a geographical sense, are not archipelagos in the
political-legal sense under the Convention. See Table Al-8 (p. 104) for a complete list.
The concept of archipelagos is examined in detail in Churchill & Lowe, The Law of the Sea
98-111 (2d rev. ed. 1988); Herman, The Modern Concept of the Off-Lying Archipelago in
International Law, Can. Y.B. Int'l L. 1985 at 172; 1 O'Connell 236-258; Rodgers, Midocean
Archipelagos and International Law (1981); Symmons, The Maritime Zones of Islands in
International Law 68-81 (1979); Dubner, The Law of Territorial Waters of Mid-Ocean
Archipelagos and Archipelagic States (1976); and O'Connell, Mid-ocean Archipelagos, 45 Br.
Y.B. Int'l L. 1 (1971). The travaux preparatories of the archipelagic articles of the LOS Convention
may be found in U.N. Office for Ocean Affairs and the Law of the Sea, Archipelagic States:
Legislative History of Part IV of the United Nations Convention on the Law of the Sea (U.N. Sales
No. E.90.V.2, 1990); and in a series of articles by the principal U.S. negotiators: Stevenson &
Oxman, The Preparations for the Law of the Sea Conference, 68 Am. J. Int'l L. 1, 12-13 (1974);
The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session, 1, 21-22
(1975); id., The Third United Nations Conference on the Law of the Sea: The 1975 Geneva
Session, 69 Am. J. Int'l L. 763, 784-85 (1975); Oxman, The Third United Nations Conference on
the Law of the Sea: The 1977 New York Session, 72 Am. J. Int'l L. 57, 63-66 (1978). See also
Nordquist, Vol. II at 397-487.
42. 1982 LOS Convention, art. 47. The ratio is that of the area of the water to the area of the
land, including atolls, within the baselines. Art. 47 also requires that the length of such baselines not
exceed 100 nautical miles (with limited exceptions up to 125 nautical miles); that the baselines do
not depart to any appreciable extent from the general configuration of the archipelago; and that the
(continued...)
Legal Divisions of the Oceans and Airspace 1 9
archipelagic waters. (The archipelagic baselines are also the baselines from which
the archipelagic nation measures seaward its territorial sea, contiguous zone, and
exclusive economic zone.) The U.S. recognizes the right of an archipelagic
nation to establish archipelagic baselines enclosing archipelagic waters provided
the baselines are drawn in conformity with the 1982 LOS Convention.
1.4.3.1 Archipelagic Sea Lanes. Archipelagic nations may designate
archipelagic sea lanes through their archipelagic waters suitable for continuous
and expeditious passage of ships and aircraft. All normal routes used for
international navigation and overflight are to be included. If the archipelagic
nation does not designate such sea lanes, the right of archipelagic sea lanes passage
may nonetheless be exercised by all nations through routes normally used for
international navigation and overflight.
1.5 INTERNATIONAL WATERS
For operational purposes, international waters include all ocean areas not
subject to the territorial sovereignty of any nation. All waters seaward of the
territorial sea are international waters in which the high seas freedoms of
navigation and overflight are preserved to the international community.
International waters include contiguous zones, exclusive economic zones, and
high seas.
42. (...continued)
system of baselines does not cut off, from the high seas or EEZ, the territorial sea of another nation.
If part of the archipelagic waters lies between two parts of an immediately adjacent neighboring
nation, the existing rights and all other legitimate interests which the latter nation has traditionally
exercised in such waters will survive and must be respected.
The 1:1 - 9:1 water-land area ratio serves to exclude large land area island nations such as Great
Britain and New Zealand where the ratio is less than 1:1, and scattered island nations such as
Kiribati and Tuvalu where the ratio is greater than 9:1. See Table A1-8A (p. 104). Table Al-9
(p. 105) lists those nations with ah acceptable water:land ratio.
Several nations have drawn straight baselines around non-independent archipelagos, in violation of
art. 7 of the 1982 LOS Convention: Canada (Canadian Arctic Islands), Denmark (Faeroe Islands),
Ecuador (Galapagos Islands), Ethiopia (Dahlak Archipelago), Norway (Svalbard) and Portugal
(Azores and Madeira Islands). See Table A 1-8 (p. 104).
43. 1982 LOS Convention, art. 49. Archipelagic waters are subject, along with the airspace
over such waters and the subjacent seabed and subsoil, to archipelagic national sovereignty,
excepting, inter alia, certain historical rights preserved for existing fisheries agreements and
submarine cables. Id. at art. 51. See paragraph 2.3.4 (p. 127) regarding navigation in and overflight
of archipelagic waters.
44. 1982 LOS Convention, art. 53. Air routes may be designated for the passage of aircraft. The
axis of the sea lanes (and traffic separation schemes) are to be clearly indicated on charts to which
due publicity shall be given.
20 Commander's Handbook on the Law of Naval Operations
1.5.1 Contiguous Zones. A contiguous zone is an area extending seaward
from the territorial sea in which the coastal nation may exercise the control
necessary to prevent or punish infringement of its customs, fiscal, immigration,
and sanitary laws and regulations that occur within its territory or territorial sea
AC.
(but not for so-called security purposes - see paragraph 1.5.4). The U.S. claims
a contiguous zone extending 12 nautical miles from the baselines used to
measure the territorial sea. The U.S. will respect, however, contiguous zones
extending up to 24 nautical miles from the baseline, provided the coastal nation
recognizes U.S. rights in the zone consistent with the provisions of the 1982
LOS Convention.
1.5.2 Exclusive Economic Zones. An exclusive economic zone (EEZ) is a
resource-related zone adjacent to the territorial sea. An EEZ may not extend
beyond 200 nautical miles from the baseline. As the name suggests, its central
purpose is economic. The U.S. recognizes the sovereign rights of a coastal nation
to prescribe and enforce its laws in the exclusive economic zone for the purposes
of exploration, exploitation, management, and conservation of the natural
45. Territorial Sea Convention, art. 24; 1982 LOS Convention, art. 33; Restatement (Third)
Foreign Relations Law of the United States, sec. 513 Comment f, sec. 511 Comment k. The term
"sanitary," a literal translation from the French "sanitaire," refers to "health and quarantine"
matters. See Lowe, The Development of the Concept of the Contiguous Zone, 1981 Br. Y.B. Int'l
L. 109 (1982) and Oda, The Concept of the Contiguous Zone, 1 1 Int'l & Comp. L.Q. 31 (1962).
See also, Nordquist, Vol. II at 266-75.
46. Dep't of State Public Notice 358, 37 Fed. Reg. 11,906, 15 June 1972. This is now also the
outer limit of the U.S. territorial sea for international purposes; for U.S. domestic law purposes the
U.S. territorial sea remains at 3 nautical miles. See paragraph 1.4.2, note 33 (p. 15).
47. White House Fact Sheet, Annex Al-7 (p. 80). A list of those nations claiming contiguous
zones beyond their territorial sea appears as Table Al-10 (p. 106).
Contiguous zones may be proclaimed around both islands and rocks following appropriate
baseline principles. 1982 LOS Convention, art. 121(2).
Low-tide elevations (which are not part of the baseline) and man-made objects do not have
contiguous zones in their own right. 1982 LOS Convention, arts. 11 & 60(8). Man-made objects
include oil drilling rigs, light towers, and off-shore docking and oil pumping facilities.
48. 1982 LOS Convention, arts. 55 & 86; Sohn & Gustafson 122-23 (pointing out that some
nations insist that the exclusive economic zone is a special zone of the coastal nation subject to the
freedoms of navigation and overflight). Japan is of the view that "the rights and jurisdiction of the
coastal states over the 200 nautical mile exclusive economic zone are yet to be established as
principles of general international law." Japanese Embassy ltr to U.S. Dep't of State (OES/OLP),
15 June 1987.
The broad principles of the exclusive economic zone reflected in the LOS Convention, art. 55-75,
were established as customary international law by the broad consensus achieved at UNCLOS III
and the practices of nations. Continental Shelf Tunisia /Libya Judgment, [1982] I.C.J. Rep. 18; Case
Concerning Delimitation of the Maritime Boundary of the Gulf of Maine (Canada /United States), [1984]
I.C.J. Rep. 246, 294; Sohn & Gustafson 122; 2 Restatement (Third), sec. 514 Comment a &
Reporters' Note 1, at 56 & 62. See also, Nordquist, Vol. II at 489-821.
Legal Divisions of the Oceans and Airspace 21
resources of the waters, seabed, and subsoil of the zone, as well as for the
49
production of energy from the water, currents, and winds. The coastal nation
may exercise jurisdiction in the zone over the establishment and use of artificial
islands, installations, and structures having economic purposes; over marine
scientific research (with reasonable limitations); and over some aspects of marine
environmental protection (including implementation of international
50
vessel-source pollution control standards). However, in the EEZ all nations
49. 1982 LOS Convention, arts. 56(l)(a) & 157; White House Fact Sheet, Annex Al-7 (p. 80).
These "sovereign rights" are functional in character and are limited to the specified activities; they
do not amount to "sovereignty" which a nation exercises over its land territory, internal waters,
archipelagic waters (subject to the right of innocent passage for foreign vessels and archipelagic sea
lanes passage for foreign vessels and aircraft), and territorial sea (subject to the rights of innocent
passage for foreign vessels and transit passage for foreign ships and aircraft). International law also
grants to coastal States limited "jurisdiction" in the exclusive economic zone for the other purposes
mentioned in the text at note 50. 2 Restatement (Third), sec. 511 Comment b at 26-27. Article
3(3) of the 1990 U.S. -Soviet Maritime Boundary Agreement provides that the exercise by either
Party of sovereign rights and jurisdiction in the "special areas" does not constitute unilateral
extension of coastal State EEZ jurisdiction beyond 200 nm of its coasts. Sen. Treaty Doc. 101-22,
p.VII.
50. 1982 LOS Convention, art. 56(1) (b). The United States rejects Brazil's assertion that no
nation has the right to place or to operate any type of installation or structure in the exclusive
economic zone or on the continental shelf without the consent of the coastal nation. 17 LOS
Official Records, para. 28, at 40 and U.S. Statement in Right of Reply, 17 LOS Official Records
244, Annex Al-1 (p. 27).
Marine scientific research (MSR). MSR is addressed in Part XIII of the LOS Convention but is not
specifically defined. The United States accepts that MSR is the general term most often used to
describe those activities undertaken in the ocean and coastal waters to expand scientific knowledge
of the marine environment. MSR includes oceanography, marine biology, fisheries research,
scientific ocean drilling, geological/geophysical scientific surveying, as well as other activities with
a scientific purpose. See paragraph 2.4.2.1 (p. 130). It may be noted, however, that "survey
activities," "prospecting" and "exploration" are primarily dealt with in other parts of the LOS
Convention, notably Parts II, III, XI and Annex III, rather than Part XIII. "This would indicate
that those activities do not fall under the regime of Part XIII." U.N. Office for Oceans Affairs and
the Law of the Sea, Law of the Sea: Marine Scientific Research: A Guide to the Implementation of
the Relevant Provisions of the United Nations Convention on the Law of the Sea 1 para. 2 (U.N.
Sales No. E.91.V.3 (1991)). See also, Law of the Sea: National Legislation, Regulations and
Supplementary Documents on Marine Scientific Research in Areas under National Jurisdiction,
(U.N. Sales No. E.89.V.9 (1989)). The United States does not claimjurisdiction over MSR in its
EEZ but recognizes the right of other nations to do so, provided they comply with the provisions
of the 1982 LOS Convention. See the President's Ocean Policy Statement, 10 March 1983, and
accompanying Fact Sheet, Annexes Al-3 (p. 43) & Al-7 (p. 80), respectively.
When activities similar to those mentioned above as MSR are conducted for commercial
resource purposes, most governments, including the United States, do not treat them as MSR.
Additionally, activities such as hydrographic surveys (see IHO definition 40, Annex Al-5
(p. 51)), the purpose of which is to obtain information for the making of navigational charts, and
the collection of information that, whether or not classified, is to be used for military purposes,
are not considered by the United States to be MSR and, therefore, are not subject to coastal State
(continued...)
22 Commander's Handbook on the Law of Naval Operations
enjoy the right to exercise the traditional high seas freedoms of navigation and
overflight, of the laying of submarine cables and pipelines, and of all other
traditional high seas uses by ships and aircraft which are not resource related.5
The United States established a 200-nautical mile exclusive economic zone by
Presidential Proclamation on 10 March 1983.
50. (...continued)
jurisdiction. 1989 State telegram 122770; see also paragraph 2.4.2.2 (p. 130). In Part XII of the
Convention regarding protection and preservation of the marine environment, art. 236 provides
that the environmental provisions of the Convention do not apply to warships, naval auxiliaries,
and other vessels and aircraft owned or operated by a nation and used, for the time being, only on
government non-commercial service. The provisions of Part XIII regarding marine scientific
research similarly do not apply to military activities. Oxman, The Regime of Warships Under the
United Nations Convention on the Law of the Sea, 24 Va. J. Int'l L. 809, 844-47 (1984). See also
Negroponte, Current Developments in U.S. Oceans Policy, Dep't St. Bull., Sep. 1986, at 86. U.S.
policy is to encourage freedom of MSR. See Statement by the President, Annex A 1-3 (p. 43).
51. 1982 LOS Convention, art. 58. The United States rejects Brazil's assertion that other
nations "may not carry out military exercises or manoeuvres within the exclusive economic zone,
particularly when these activities involve the use of weapons or explosives, without the prior
knowledge and consent" of the coastal nation. 17 LOS Official Records, para. 28, at 40, and U.S.
Statement in Right of Reply, 17 LOS Official Records 244, Annex Al-1 (p. 27).
52. Presidential Proclamation No. 5030, 48 Fed. Reg. 10,601, 16 U.S.C.A. sec. 1453n, 10
March 1983, Annex Al-8 (p. 83). The U.S. thereby acquired the world's largest EEZ (2,831,400
square nautical miles). Alexander, 88 (Table 5). Although the nations with the next 9 largest actual
or potential EEZs are all developed nations, the EEZ was proposed by the developing nations. A
useful compilation of national legislation on the EEZ appears in U.N. Office of the Special
Representative of the Secretary-General for the Law of the Sea, The Law of the Sea: National
Legislation on the Exclusive Economic Zone, the Economic Zone and the Exclusive Fishery
Zone (U.N. Sales No. E.85.V.10 (1986)). Other national EEZ legislation appears in later editions
of the LOS Bulletin.
Fishery and other resource-related zones adjacent to the coast and extending to a distance of 200
nautical miles from the baseline from which the territorial sea is measured are accepted in
customary international law. The U.S. claims and recognizes broad and exclusive fisheries
jurisdiction to a limit of 200 nautical miles. 16 U.S.C. sec. 1811-61. See Hay, Global Fisheries
Regulations in the First Half of the 1990s, 11 Int'l J. of Marine & Coastal L. 459 (Nov. 96), for a
discussion of recent international efforts to regulate fishing activities beyond the EEZ including the
U.N. General Assembly Driftnet Regulations, the Food and Agriculture Organization (FAO)
Compliance Agreement, the Straddling Stocks Agreement, the FAO Code of Conduct and the
Biodiversity Convention. For a comprehensive analysis of the Canadian-Spanish Fisheries dispute
of 1995 (the "Turbot War"), see]oyntr & v. Gustedt, The 1995 Turbot War: Lessons for the Law
of the Sea, 11 Int'l J. Marine & Coastal L. 425 (Nov. 96).
Islands capable of supporting human habitation or economic life may have an exclusive economic
zone. 1982 LOS Convention, art. 121. Such an island located more than 400 nautical miles from
the nearest land can generate an EEZ of about 125,000 square nautical miles. Rocks, low-tide
elevations and man-made objects, such as artificial islands and off-shore installations, are not
independently entitled to their own EEZs. 1982 LOS Convention, arts. 60(8) & 121(3).
Legal Divisions of the Oceans and Airspace 23
1.5.3 High Seas. The high seas include all parts of the ocean seaward of the
exclusive economic zone. When a coastal nation has not proclaimed an exclusive
53
economic zone, the high seas begin at the seaward edge of the territorial sea.
1.5.4 Security Zones. Some coastal nations have claimed the right to establish
military security zones, beyond the territorial sea, of varying breadth in which
they purport to regulate the activities of warships and military aircraft of other
nations by such restrictions as prior notification or authorization for entry, limits
on the number of foreign ships or aircraft present at any given time, prohibitions
54
on various operational activities, or complete exclusion. International law does
not recognize the right of coastal nations to establish zones that would restrict the
exercise of non-resource-related high seas freedoms beyond the territorial sea.
Accordingly, the U.S. does not recognize the validity of any claimed security or
military zone seaward of the territorial sea which purports to restrict or regulate
55
the high seas freedoms of navigation and overflight. (See paragraph 2.3.2.3 for
a discussion of temporary suspension of innocent passage in territorial seas.)
1.6 CONTINENTAL SHELVES
The juridical continental shelf of a coastal nation consists of the seabed and
subsoil of the submarine areas that extend beyond its territorial sea to the outer
edge of the continental margin, or to a distance of 200 nautical miles from the
53. 1982 LOS Convention, art. 86. Navigation in the high seas is discussed in paragraph 2.4.3
(p. 131).
54. Sixteen nations claim security zones seaward of their territorial seas. Most such claims are
designed to control matters of security within a contiguous zone geographically no broader than
that permitted under the 1982 LOS Convention. However, security has never been an interest
recognized in the Conventions as subject to enforcement in the contiguous zone. See Table Al-1 1
(p. 108). North Korea, on the other hand, has claimed no contiguous zone, but claims a security
zone extending 50 nautical miles beyond its claimed territorial sea off its east coast and a security
zone to the limits of its EEZ off its west coast. Park, The 50-Mile Military Boundary Zone of
North Korea, 72 Am. J. Int'l L. 866 (1978); Park, East Asia and the Law of the Sea 163-76 (1983);
N.Y. Times, 2 Aug. 1977, at 2; MCRM. The United States protest of this claim may be found in
U.N., Law of the Sea Bulletin, No. 15, May 1990, at 8-9; the Japanese protest may be found in 28
Jap. Ann. Int'l L. 122-23 (1985). See also Boma, Troubled Waters off the Land of the Morning
Calm: A Job for the Fleet, Nav. War Col. Rev., Spring 1989, at 33.
Greece's claim to restrict the overflight of aircraft out to 10 nautical miles while claiming only a 6
nautical mile territorial sea has been protested by the United States; Greece also does not claim a
contiguous zone. Schmitt, Aegean Angst: The Greek-Turkish Dispute, Nav. War Coll. Rev.,
Summer 1 996, at 42. Brazil claims a security zone out to 200 nautical miles as part of its 200 nautical
mile territorial sea claim; Indonesia likewise, but to an area 100 nautical miles seaward of its
territorial sea. MCRM passim; Notice to Mariners 39/86, pages III-2.31 to III-2.34.
55. N.Y. Times, 3 Aug. 1977, at 3 (State Dep't statement regarding the North Korean zone);
U.N., LOS Bulletin No. 15, at 8-9 (May 1990). The Government of Japan is of the same view. 28
Jap. Ann. Int'l L. 123 (1985) (testimony in House Foreign Affairs Comm, Sept. 16, 1977).
24 Commander's Handbook on the Law of Naval Operations
baseline used to measure the territorial sea where the continental margin does
not extend to that distance. The continental shelf may not extend beyond 350
nautical miles from the baseline of the territorial sea or 100 nautical miles from the
2,500 meter isobath, whichever is greater. Although the coastal nation
exercises sovereign rights over the continental shelf for purposes of exploring
and exploiting its natural resources, the legal status of the superjacent water is not
affected. Moreover, all nations have the right to lay submarine cables and
57
pipelines on the continental shelf.
56. See Figure Al-2 (p. 86). The geologic definition of a continental shelf differs from the
juridical definition. Geologically, the continental shelf is the gently-sloping platform extending
seaward from the land to a point where the downward inclination increases markedly as one
proceeds down the continental slope. The depth at which the break in angle of inclination occurs
varies widely from place to place. At the foot of the slope begins the continental rise, a second
gently-sloping plain which gradually merges with the floor of the deep seabed. The shelf, slope, and
rise, taken together, are geologically known as the continental margin. Alexander, 22-23. The
outer edge of any juridical (as opposed to geophysical) continental margin extending beyond 200
nautical miles from the baseline is to be determined in accordance with either the depth of sediment
test (set forth in art. 76(4) (a) (i) of the 1982 LOS Convention and illustrated in Figure Al-2), or
along a line connecting points 60 nautical miles from the foot of the continental slope (art.
76(4)(a)(ii), illustrated in Figure Al-3 (p. 86)), or the 2500 meter isobath plus 100 nautical miles (art.
76(5)). The broad principles of the continental shelf regime reflected in the 1982 LOS Convention,
arts. 76-81, were established as customary international law by the broad consensus achieved at
UNCLOS III and the practices of nations. Case Concerning Delimitation of the Maritime Boundary of
the Gulf of Maine (Canada /United States), [1984] I.C.J. Rep. 246, 294; Case Concerning the
Continental Shelf (Libya /Malta), [1985] I.C.J. Rep. 13, 55; 2 Restatement (Third), sec. 515
Comment a & Reporters' Note 1, at 66-69; Sohn & Gustafson 158. See also, Nordquist, Vol. II at
837-90.
In the case of opposite or adjacent shelves, delimitation shall be based on equitables principles. LOS
Convention, art. 83. See also, e.g., North Sea Continental Shelf Cases (W. Germ. v. Denmark; W.
Germ. v. Netherlands), 1969 I.C.J. Rep. 3; The United Kingdom-French Continental Shelf (U.K.
v. France), 54 I.L.R. 6, 1977; Continental Shelf (Tunisia v. Libya), 1982 I.C.J. Rep. 18;
Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 25 I.L.M. 251
(1985).
The United States made its first claim to the resources of the continental shelf in the Truman
Presidential Proclamation No. 2667, 28 Sep. 1945, 3 C.F.R. 67 (1943-48 Comp.); 13 Dep't St.
Bull. 484-85; 4 Whiteman 752-64.
A recent compilation of national legislation on the continental shelf appears in U.N. Office for
Ocean Affairs and the Law of the Sea, The Law of the Sea: National Legislation on the Continental
Shelf (U.N. Sales No. E.89.V.5 (1989)). See also Roach & Smith, at 121-9.
57. Continental Shelf Convention, arts. 1-3 & 5; 1982 LOS Convention, arts. 60(7), 76-78 &
80-81. See paragraph 2.4.3, note 64 (p. 131) for further information regarding cables and pipelines.
It should be noted that the coastal nation does not have sovereign rights per se to that part of its
continental shelf extending beyond the territorial sea, only to the exploration and exploitation of its
natural resources. U.S. Statement in Right of Reply, 8 March 1983, 17 LOS Official Records 244,
Annex Al-1 (p. 27). Shipwrecks lying on the continental shelf are not considered to be "natural
resources." Cf LOS Convention, arts. 33 and 303.
(continued...)
Legal Divisions of the Oceans and Airspace 25
1.7 SAFETY ZONES
Coastal nations may establish safety zones to protect artificial islands,
installations, and structures located in their internal waters, archipelagic waters,
territorial seas, and exclusive economic zones, and on their continental shelves.
In the case of artificial islands, installations, and structures located in the
exclusive economic zones or on the continental shelf beyond the territorial sea,
safety zones may not extend beyond 500 meters from the outer edges of the
facility in question, except as authorized by generally accepted international
standards.
1.8 AIRSPACE
Under international law, airspace is classified as either national airspace (that
over the land, internal waters, archipelagic waters, and territorial seas of a nation)
or international airspace (that over contiguous zones, exclusive economic zones,
the high seas, and territory not subject to the sovereignty of any
nation). Subject to a right of overflight of international straits (see paragraph
57. (...continued)
The U.S. position regarding Part XI (The Area) of the 1982 LOS Convention, as that Part was
originally formulated, was that:
[T]he Convention's deep seabed mining provisions are contrary to the interests and
principles of industrialized nations and would not help attain the aspirations of
developing countries.
. . . [T]he United States will continue to work with other countries to develop a
regime, free of unnecessary political and economic restraints, for mining deep seabed
minerals beyond national jurisdiction. Deep seabed mining remains a lawful exercise
of the freedom of the high seas open to all nations. The United States will continue
to allow its firms to explore for and, when the market permits, exploit these
resources.
Statement by the President, 10 March 1983, Annex Al-3 (p. 43). See also the United States' 8
March 1983 statement in right of reply, 17 LOS Official Records 243, Annex Al-1 (p. 27). The
changes desired by the United States to Part XI were set out in the President's statement of 23
January 1982 on U.S. Participation in the Third United Nations Conference on the Law of the
Sea, 1 Public Papers of President Reagan, 1982, at 92. The U.S. Congress had, however, approved
the legal principle, reflected in art. 136 of the LOS Convention, that the resources of the deep
seabed are the common heritage of mankind. Sec. 3(b)(1) of the Deep Seabed Minerals Resources
Act, Pub.L. 96-283, 94 Stat. 555, 30 U.S.C. sec. 1402(a)(1). The 1994 Agreement Relating to the
Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea
addressed and corrected the flawed provisions. Sec paragraph 1.1 and accompanying notes (p. 1).
58. Continental Shelf Convention, art. 5; 1982 LOS Convention, art. 60. Safety zones may
not cause any interference with the use of recognized sea lanes essential to international navigation.
59. Territorial Sea Convention, art. 2; High Seas Convention, art. 2; 1982 LOS Convention,
arts. 2(2), 49(2), 58(1) Sc 87(1).
26 Commander's Handbook on the Law of Naval Operations
2.5.1.1) and archipelagic sea lanes (see paragraph 2.5.1.2), each nation has
complete and exclusive sovereignty over its national airspace. Except as
nations may have otherwise consented through treaties or other international
agreements, the aircraft of all nations are free to operate in international airspace
without interference by other nations.
1.9 OUTER SPACE
The upper limit of airspace subject to national jurisdiction has not been
authoritatively defined by international law. International practice has
established that airspace terminates at some point below the point at which
artificial satellites can be placed in orbit without free-falling to earth. Outer space
begins at that undefined point. All nations enjoy a freedom of equal access to
outer space and none may appropriate it to its national airspace or exclusive
use.
60. Convention on International Civil Aviation (Chicago Convention), 7 December 1944,
61 Stat. 1 180, T.I.A.S. 1591, 15 U.N.T.S. 295, 3 Bevans 944, AFP 1 10-20, chap. 6, arts. 1-2. The
U.S. declaration of its sovereignty in national airspace is set forth in 49 U.S.C. sec. 1508(a) (1982).
61. See paragraphs 2.5.2.2 (p. 141) and 2.5.2.3 (p. 142) regarding flight information regions
and air defense identification zones, respectively. See 54 Fed. Reg. 264, 4 Jan. 1989, for FAA
regulations applying to the airspace over waters between 3 and 12 nautical miles from the U.S.
coast, occasioned by the extension of the U.S. territorial sea to 12 nautical miles.
62. AFP 110-31, para. 2-lh, at 2-3. See also paragraph 1.1, note 1 (p. 1). Military activities in
outer space are addressed in paragraph 2.9 (p. 149).
Legal Divisions of the Oceans and Airspace 27
ANNEX Al-1
United States of America
Statement in Right of Reply
Rights and duties of non-parties
[Original English]
[8 March 1983]
Some speakers discussed the legal question of the rights and duties of States
which do not become party to the Convention adopted by the Conference.
Some of these speakers alleged that such Sates must either accept the provisions
of the Convention as a "package deal" or forgo all of the rights referred to in the
Convention. This supposed election is without foundation or precedent in
international law. It is a basic principle of law that parties may not, by agreement
among themselves, impair the rights of third parties or their obligations to third
parties. Neither the Conference nor the States indicating an intention to become
parties to the Convention have been granted global legislative power.
The Convention includes provision, such as those related to the regime of
innocent passage in the territorial sea, which codify existing rules of international
law which all States enjoy and are bound by. Other provisions, such as those
relating to the exclusive economic zone, elaborate a new concept which has
been recognized in international law. Still others, such as those relating to deep
sea-bed mining beyond the limits of national jurisdiction, are wholly new ideas
which are binding only upon parties to the Convention. To blur the distinction
between codification of customary international law and the creation of new law
between parties to a convention undercuts the principle of the sovereign equality
of States.
The United States will continue to exercise its rights and fulfill its duties in a
manner consistent with international law, including those aspects of the
Convention which either codify customary international law or refine and
elaborate concepts which represent an accommodation of the interests of all
States and form part of international law.
Deep sea-bed mining
Some speakers asserted that existing principles of international law, or the
Convention, prohibit any State, including a non-party, from exploring for and
exploiting the mineral resources of the deep sea-bed except in accordance with the
Convention. The United States does not believe that such assertions have any
merit. The deep sea-bed mining regime of the Convention adopted by the
Conference is purely contractual in character. The United States and other
non-parties do not incur the obligations provided for therein to which they object.
28 Commander's Handbook on the Law of Naval Operations
Article 137 of the Convention may not as a matter of law prohibit sea-bed
mining activities by non-parties to the Convention: nor may it relieve a party
from the duty to respect the exercise of high seas freedoms, including the
exploration for and exploitation of deep sea-bed minerals, by non-parties.
Mining of the sea-bed is a lawful use of the high seas open to all States. United
States participation in the Conference and its support for certain General
Assembly resolutions concerning sea-bed mining do not constitute acquiescence
by the United States in the elaboration of the concept of the common heritage of
mankind contained in Part XI, nor in the concept itself as having any effect on
the lawfulness of deep sea-bed mining. The United States has consistently
maintained that the concept of the common heritage of mankind can only be
given legal content by a universally acceptable regime for its implementation,
which was not achieved by the Conference. The practice of the United States
and the other States principally interested in sea-bed mining makes it clear that
sea-bed mining continues to be a lawful use of the high seas within the traditional
meaning of the freedom of the high seas.
The concept of the common heritage of mankind contained in the
Convention adopted by the Conference is not jus cogens. The Convention text
and the negotiating record of the Conference demonstrate that a proposal by
some delegations to include a provision on jus cogens was rejected.
Innocent passage in the territorial sea
Some speakers spoke to the right of innocent passage in the territorial sea and
asserted that a coastal State may require prior notification or authorization before
warships or other governmental ships on non-commercial service may enter the
territorial sea. Such assertions are contrary to the clear import of the
Convention's provisions on innocent passage. Those provisions, which reflect
long-standing international law, are clear in denying coastal State competence to
impose such restrictions. During the eleventh session of the Conference, formal
amendments which would have afforded such competence were withdrawn.
The withdrawal was accompanied by a statement read from the Chair, and that
statement clearly placed coastal State security interests within the context of
articles 19 and 25. Neither of those articles permits the imposition of notification
or authorization requirements on foreign ships exercising the right of innocent
passage.
Exclusive economic zone
Some speakers described the concept of the exclusive economic zone in a
manner inconsistent with the text of the relevant provisions of the Convention
adopted by the Conference.
Legal Divisions of the Oceans and Airspace 29
The International Court of Justice has noted that the exclusive economic
zone "may be regarded as part of modern international law" (Continental Shelf
Tunisia Libya Judgement (I.C.J. Reports 1982, p. 18), para. 100). This concept,
as set forth in the Convention, recognizes the interest of the coastal State in the
resources of the zone and authorizes it to assert jurisdiction over resource-related
activities therein. At the same time, all States continue to enjoy in the zone
traditional high seas freedoms of navigation and overflight and the laying of
submarine cables and pipelines, and other internationally lawful uses of the sea
related to these freedoms, which remain qualitatively and quantitatively the same
as those freedoms when exercised seaward of the zone. Military operations,
exercises and activities have always been regarded as internationally lawful uses of
the sea. The right to conduct such activities will continue to be enjoyed by all
States in the exclusive economic zone. This is the import of article 58 of the
Convention. Moreover, Parts XII and XIII of the Convention have no bearing
on such activities.
In this zone beyond its territory and territorial sea, a coastal State may assert
sovereign rights over natural resources and related jurisdiction, but may not claim
or exercise sovereignty. The extent of coastal State authority is carefully defined in
the Convention adopted by the Conference. For instance, the Convention, in
codifying customary international law, recognizes the authority of the coastal State
to control all fishing (except for the highly migratory tuna) in its exclusive
economic zone, subject only to the duty to maintain the living resources through
proper conservation and management measures and to promote the objective of
optimum utilization. Article 64 of the Convention adopted by the Conference
recognizes the traditional position of the United States that highly migratory
species of tuna cannot be adequately conserved or managed by a single coastal State
and that effective management can only be achieved through international
cooperation. With respect to artificial islands, installations and structures, the
Convention recognizes that the coastal State has the exclusive right to control the
construction, operation and use of all artificial islands, of those installations and
structures having economic purposes and of those installations and structures that
may interfere with the coastal State's exercise of its resource rights in the zone. This
right of control is limited to those categories.
Continental shelf
Some speakers made observations concerning the continental shelf. The
Convention adopted by the Conference recognizes that the legal character of the
continental shelf remains the natural prolongation of the land territory of the
coastal State wherein the coastal State has sovereign rights for the purpose of
exploring and exploiting its natural resources. In describing the outer limits of
30 Commander's Handbook on the Law of Naval Operations
the continental shelf, the Convention applies, in a practical manner, the basic
elements of natural prolongation and adjacency fundamental to the doctrine of
the continental shelf under international law. This description prejudices
neither the existing sovereign rights of all coastal States with respect to the natural
prolongation of their land territory into and under the sea, which exists ipso facto
and ab initio by virtue of their sovereignty over the land territory, nor freedom of
the high seas, including the freedom to exploit the sea-bed and subsoil beyond
the limits of coastal State jurisdiction.
Boundaries of the continental shelf and exclusive economic zone
Some speakers directed statements to the boundary provisions found in
articles 4 and 83 of the Convention adopted by the Conference. Those
provisions do no more than reflect existing law in that they require boundaries to
be established by agreement in accordance with equitable principles and in that
they give no precedence to any particular delimitation method.
Archipelagic sea lanes passage and transit passage
A small number of speakers asserted that archipelagic sea lanes passage, or
transit passage, is a ''new" right reflected in the Convention adopted by the
Conference. To the contrary, long-standing international practice bears out the
right of all States to transit straits used for international navigation and waters
which may be eligible for archipelgic status. Moreover, these rights are well
established in international law. Continued exercise of these freedoms of
navigation and overflight cannot be denied a State without its consent.
One speaker also asserted that archipelagic sea lanes passage may be exercised only
in sea lanes designated and established by the archipelagic States. This assertion fails to
account for circumstances in which all normal sea lanes and air routes have not been
designated by the archipelagic State in accordance with Part IV, including articles 53
and 54. In such circumstances, archipelagic sea lanes passage may be exercised
through all sea lanes and air routes normally used for international navigation. The
United States regards these rights as essential components of the archipelagic regime
if it is to find acceptance in international law.
Consistency of certain claims with provisions of the
Convention adopted by the Conference
Some speakers also called attention to specific claims of maritime jurisdiction
and to the application of certain provisions of the Convention adopted by the
Conference to specific geographical areas. These statements included assertions
that certain claims are in conformity with the Convention, that certain claims are
Legal Divisions of the Oceans and Airspace 31
not in conformity with the Convention but are nevertheless consistent with
international law, that certain baselines have been drawn in conformity with
international law, and that transit passage is not to be enjoyed in particular straits
due to the purported applicability of certain provisions of the Convention.
The lawfulness of any coastal State claim and the application of any
Convention provision or rule of law to a specific geographic area or
circumstance must be analyzed on a case-by-case basis. Except where the United
States has specifically accepted or rejected a particular claim or the application of
a rule of law to a specific area, the United States reserves its judgement. This
reservation of judgement on such questions does not constitute acquiescence in
any unilateral declaration or claim. In addition, the United States reserves its
judgement with respect to any matter addressed by a speaker and not included in
this right of reply, except where the United States has specifically, indicated its
agreement with the position asserted.
Source: 17 OFFICIAL RECORDS 244, U.N. Doc. A/Conf. 62/WS/37.
32 Commander's Handbook on the Law of Naval Operations
ANNEX Al-2
Letter of Transmittal and Letter of Submittal Relating
to the UN Convention on the Law of the Sea and the "Agreement."
LETTER OF TRANSMITTAL
The White House, October 7, 1994.
To the Senate of the United States:
I transmit herewith, for the advice and consent of the Senate to accession, the
United Nations Convention on the Law of the Sea, with Annexes, done at
Montego Bay, December 10, 1982 (the "Convention"), and, for the advice and
consent of the Senate to ratification, the Agreement Relating to the
Implementation of Part XI of the United Nations Convention on the Law of the
Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994 (the
"Agreement"), and signed by the United States, subject to ratification, on July
29, 1994. Also transmitted for the information of the Senate is the report of the
Department of State with respect to the Convention and Agreement, as well as
Resolution II of Annex I and Annex II of the Final Act of the Third United
Nations Conference on the Law of the Sea.
The United States has basic and enduring national interests in the oceans and
has consistently taken the view that the full range of these interests is best
protected through a widely accepted international framework governing uses of
the sea. Since the late 1960s, the basic U.S. strategy has been to conclude a
comprehensive treaty on the law of the sea that will be respected by all countries.
Each succeeding U.S. Administration has recognized this as the cornerstone of
U.S. oceans policy. Following adoption of the Convention in 1982, it has been
the policy of the United States to act in a manner consistent with its provisions
relating to traditional uses of the oceans and to encourage other countries to do
likewise.
The primary benefits of the Convention to the United States include the
following:
— The Convention advances the interests of the United States as a global
maritime power. It preserves the right of the U.S. military to use the
world's oceans to meet national security requirements and of
commercial vessels to carry sea-going cargoes. It achieves this, inter alia,
by stabilizing the breadth of the territorial sea at 12 nautical miles; by
setting forth navigation regimes of innocent passage in the territorial sea,
transit passage in straits used for international navigation, and
archipelagic sea lanes passage; and by reaffirming the traditional
Legal Divisions of the Oceans and Airspace 33
freedoms of navigation and overflight in the exclusive economic zone and
the high seas beyond.
— The Convention advances the interests of the United States as a coastal
State. It achieves this, inter alia, by providing for an exclusive economic
zone out to 200 nautical miles from shore and by securing our rights
regarding resources and artificial islands, installations and structures for
economic purposes over the full extent of the continental shelf. These
provisions fully comport with U.S. oil and gas leasing practices, domestic
management of coastal fishery resources, and international fisheries
agreements.
— As a far-reaching environmental accord addressing vessel source
pollution, pollution from seabed activities, ocean dumping, and
land-based sources of marine pollution, the Convention promotes
continuing improvement in the health of the world's oceans.
— In light of the essential role of marine scientific research in understanding
and managing the oceans, the Convention sets forth criteria and
procedures to promote access to marine areas, including coastal waters,
for research activities.
— The Convention facilitates solutions to the increasingly complex
problems of the uses of the ocean — solutions that respect the essential
balance between our interests as both a coastal and a maritime nation.
— Through its dispute settlement provisions, the Convention provides for
mechanisms to enhance compliance by Parties with the Convention's
provisions.
Notwithstanding these beneficial provisions of the Convention and bipartisan
support for them, the United States decided not to sign the Convention in 1982
because of flaws in the regime it would have established for managing the
development of mineral resources of the seabed beyond national jurisdiction (Part
XI). It has been the consistent view of successive U.S. Administrations that this
deep seabed mining regime was inadequate and in need of reform if the United
States was ever to become a Party to the Convention.
Such reform has now been achieved. The Agreement, signed by the United
States on July 29, 1994, fundamentally changes the deep seabed mining regime of
the Convention. As described in the report of the Secretary of State, the
Agreement meets the objections the United States and other industrialized nations
previously expressed to Part XI. It promises to provide a stable and internationally
recognized framework for mining to proceed in response to future demand for
minerals.
Early adherence by the United States to the Convention and the Agreement is
important to maintain a stable legal regime for all uses of the sea, which covers
34 Commander's Handbook on the Law of Naval Operations
more than 70 percent of the surface of the globe. Maintenance of such stability is
vital to U.S. national security and economic strength.
I therefore recommend that the Senate give early and favorable consideration
to the Convention and to the Agreement and give its advice and consent to
accession to the Convention and to ratification of the Agreement. Should the
Senate give such advice and consent, I intend to exercise the options concerning
dispute settlement recommended in the accompanying report of the Secretary of
State.
WILLIAM J. CLINTON
Legal Divisions of the Oceans and Airspace 35
LETTER OF SUBMITTAL
DEPARTMENT OF STATE,
Washington, September 23, 1994.
The President,
The White House.
THE PRESIDENT: I have the honor to submit to you the United Nations
Convention on the Law of the Sea, with Annexes, done at Montego Bay,
December 10, 1982 (the Convention), and the Agreement Relating to the
Implementation of Part XI of the United Nations Convention on the Law of the
Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994,
(the Agreement), and signed by the United States on July 29, 1994, subject to
ratification. I recommended that the Convention and the Agreement be
transmitted to the Senate for its advice and consent to accession and ratification,
respectively.
The Convention sets forth a comprehensive framework governing uses of the
oceans. It was adopted by the Third United Nations Conference on the Law of
the Sea (the Conference), which met between 1973 and 1982 to negotiate a
comprehensive treaty relating to the law of the sea.
The Agreement, adopted by United Nations General Assembly Resolution
A/P^ES/48/263 on July 28, 1994, contains legally binding changes to that part of
the Convention dealing with the mining of the seabed beyond the limits of
national jurisdiction (Part XI and related Annexes) and is to be applied and
interpreted together with the Convention as a single instrument. The
Agreement promotes universal adherence to the Convention by removing
obstacles to acceptance of the Convention by industrialized nations, including
the United States.
I also recommend that Resolution II of Annex I, governing preparatory
investment in pioneer activities relating to polymetallic nodules, and Annex II, a
statement of understanding concerning a specific method to be used in
establishing the outer edge of the continental margin, of the Final Act of the
Third United Nations Conference of the Law of the Sea be transmitted to the
Senate for its information.
THE CONVENTION
The Convention provides a comprehensive framework with respect to uses of
the oceans. It creates a structure for the governance and protection of all marine
areas, including the airspace above and the seabed and subsoil below. After
decades of dispute and negotiation, the Convention reflects consensus on the
36 Commander's Handbook on the Law of Naval Operations
extent of jurisdiction that States may exercise off their coasts and allocates
rights and duties among States.
The Convention provides for a territorial sea of a maximum breadth of 12
nautical miles and coastal State sovereign rights over fisheries and other natural
resources in an Exclusive Economic Zone (EEZ) that may extend to 200 nautical
miles of the coast. In so doing the Convention brings most fisheries under the
jurisdiction of coastal States. (Some 90 percent of living marine resources are
harvested within 200 nautical miles of the coast.) The Convention imposes on
coastal States a duty to conserve these resources, as well as obligations upon all
States to cooperate in the conservation of fisheries populations on the high seas
and such populations that are found both on the high seas and within the EEZ
(highly migratory stocks, such as tuna, as well as "straddling stocks"). In addition,
it provides for special protective measures for anadromous species, such as
salmon, and for marine mammals, such as whales.
The Convention also accords the coastal State sovereign rights over the
exploration and development of non-living resources, including oil and gas,
found in the seabed and subsoil of the continental shelf, which is defined to
extend to 200 nautical miles from the coast or, where the continental margin
extends beyond that limit, to the outer edge of the geological continental
margin. It lays down specific criteria and procedures for determining the outer
limit of the margin.
The Convention carefully balances the interests of States in controlling
activities off their own coasts with those of all States in protecting the freedom to
use ocean spaces without undue interference. It specifically preserves and
elaborates the rights of military and commercial navigation and overflight in
areas under coastal State jurisdiction and on the high seas beyond. It guarantees
passage for all ships and aircraft through, under and over straits used for
international navigation and archipelagos. It also guarantees the high seas
freedoms of navigation, overflight and the laying and maintenance of submarine
cables and pipelines in the EEZ and on the continental shelf.
For the non-living resources of the seabed beyond the limits of national
jurisdiction (i.e., beyond the EEZ or continental margin, whichever is further
seaward), the Convention establishes an international regime to govern
exploration and exploitation of such resources. It defines the general conditions
for access to deep seabed minerals by commercial entities and provides for the
establishment of an international organization, the International Seabed
Authority, to grant title to mine sites and establish necessary ground rules. The
system was substantially modified by the 1994 Agreement, discussed below.
The Convention sets forth a comprehensive legal framework and basic
obligations for protecting the marine environment from all sources of pollution,
including pollution from vessels, from dumping, from seabed activities and from
Legal Divisions of the Oceans and Airspace 37
land-based activities. It creates a positive and unprecedented regime for marine
environmental protection that will compel parties to come together to address
issues of common and pressing concern. As such, the Convention is the strongest
comprehensive environmental treaty now in existence or likely to emerge for
quite some time.
The essential role of marine scientific research in understanding and managing
the oceans is also secured. The Convention affirms the right of all States to
conduct marine scientific research and sets forth obligations to promote and
cooperate in such research. It confirms the rights of coastal States to require
consent for such research undertaken in marine areas under their jurisdiction.
These rights are balanced by specific criteria to ensure that coastal States exercise
the consent authority in a predictable and reasonable fashion to promote
maximum access for research activities.
The Convention establishes a dispute settlement system to promote
compliance with its provisions and the peaceful settlement of disputes. These
procedures are flexible, in providing options as to the appropriate means and fora
for resolution of disputes, and comprehensive, in subjecting the bulk of the
Convention's provisions to enforcement through binding mechanisms. The
system also provides parties the means of excluding from binding dispute
settlement certain sensitive political and defense matters.
Further analysis of provisions of the Convention's 17 Parts, comprising 320
articles and nine Annexes, is set forth in the Commentary that is enclosed as part
of this Report.
THE AGREEMENT
The achievement of a widely accepted and comprehensive law of the sea
convention — to which the United States can become a Party — has been a
consistent objective of successive U.S. administrations for the past quarter
century. However, the United States decided not to sign the Convention upon
its adoption in 1982 because of objections to the regime it would have
established for managing the development of seabed mineral resources beyond
national jurisdiction. While the other Parts of the Convention were judged
beneficial for U.S. ocean policy interest, the United States determined the deep
seabed regime of Part XI to be inadequate and in need of reform before the
United States could consider becoming Party to the Convention.
Similar objections to Part XI also deterred all other major industrialized
nations from adhering to the Convention. However, as a result of the important
international political and economic changes of the last decade — including the
end of the Cold War and growing reliance on free market
principles — widespread recognition emerged that the seabed mining regime of
38 Commander's Handbook on the Law of Naval Operations
the Convention required basic change in order to make it generally acceptable.
As a result, informal negotiations were launched in 1990, under the auspices of
the United Nations Secretary-General, that resulted in adoption of the
Agreement on July 28, 1994.
The legally binding changes set forth in the Agreement meet the objections of
the United States to Part XI of the Convention. The United States and all other
major industrialized nations have signed the Agreement.
The provisions of the Agreement overhaul the decision-making procedures
of Part XI to accord the United States, and others with major economic interests
at stake, adequate influence over future decisions on possible deep seabed
mining. The Agreement guarantees a seat for the United States on the critical
executive body and requires a consensus of major contributors for financial
decisions.
The Agreement restructures the deep seabed mining regime along free
market principles and meets the U.S. goal of guaranteed access by U.S. firms to
deep seabed minerals on the basis of reasonable terms and conditions. It
eliminates mandatory transfer of technology and production controls. It scales
back the structure of the organization to administer the mining regime and links
the activation and operation of institutions to the actual development of
concrete commercial interest in seabed mining. A future decision, which the
United States and a few of its allies can block, is required before the
organization's potential operating arm (the Enterprise) may be activated, and any
activities on its part are subject to the same requirements that apply to private
mining companies. States have no obligation to finance the Enterprise, and
subsidies inconsistent with GATT are prohibited.
The Agreement provides for grandfathering the seabed mine site claims
established on the basis of the exploration work already conducted by companies
holding U.S. licenses on the basis of arrangements "similar to and no less
favorable than" the best terms granted to previous claimants; further, it
strengthens the provisions requiring consideration of the potential
environmental impacts of deep seabed mining.
The Agreement provides for its provisional application from November 16,
1994, pending its entry into force. Without such a provision, the Convention
would enter into force on that date with its objectionable seabed mining
provisions unchanged. Provisional application may continue only for a limited
period, pending entry into force. Provisional application would terminate on
November 16, 1998, if the Agreement has not entered into force due to failure of
a sufficient number of industrialized States to become Parties. Further, the
Agreement provides flexibility in allowing States to apply it provisionally in
accordance with their domestic laws and regulations.
Legal Divisions of the Oceans and Airspace 39
In signing the Agreement on July 29, 1994, the United States indicated that it
intends to apply the Agreement provisionally pending ratification. Provisional
application by the United States will permit the advancement of U.S. seabed
mining interests by U.S. participation in the International Seabed Authority
from the outset to ensure that the implementation of the regime is consistent
with those interests, while doing so consistent with existing laws and regulations.
Further analysis of the Agreement and its Annex, including analysis of the
provisions of Part XI of the Convention as modified by the Agreement, is also set
forth in the Commentary that follows.
STATUS OF THE CONVENTION AND THE AGI^EEMENT
One hundred and fifty-two States signed the Convention during the two
years it was open for signature. As of September 8, 1994, 65 States had deposited
their instruments of ratification, accession or succession to the Convention. The
Convention will enter into force for these States on November 16, 1994, and
thereafter for other States 30 days after deposit of their instrument of ratification
or accession.
The United States joined 120 other States in voting for adoption of the
Agreement on July 28, 1994; there were no negative votes and seven
abstentions. As of September 8, 1994, 50 States and the European Community
have signed the Agreement, of which 19 had previously ratified the Convention.
Eighteen developed States have signed the Agreement, including the United
States, all the members of the European Community, Japan, Canada and
Australia, as well as major developing countries, such as Brazil, China and India.
RELATION TO THE 1958 GENEVA CONVENTIONS
Article 311(1) of the LOS Convention provides that the Convention will
prevail, as between States Parties, over the four Geneva Conventions on the Law
of the Sea of April 29, 1958, which are currently in force for the United States:
the Convention on the Territorial Sea and the Contiguous Zone, 15 U.S.T.
16-6, T.I.A.S. No. 5639, 516 U.N.T.S. 205 (entered into force September 10,
1964); the Convention on the High Seas, 13 U.S.T. 2312, T.I.A.S. No. 5200,
450 U.N.T.S. 82 (entered into force September 30, 1962); Convention on the
Continental Shelf, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311
(entered into force June 10, 1964); and the Convention on Fishing and
Conservation of Living Resources of the High Seas, 17 U.S.T. 138, T.I.A.S.
No. 5969, 559 U.N.T.S. 285 (entered into force march 20, 1966). Virtually all of
the provisions of these Conventions are either repeated, modified, or replaced by
the provisions of the LOS Convention.
40 Commander's Handbook on the Law of Naval Operations
DISPUTE SETTLEMENT
The Convention identifies four potential fora for binding dispute settlement:
— The International Tribunal for the Law of the Sea constituted under
Annex VI;
— The International Court of Justice;
— An arbitral tribunal constituted in accordance with Annex VII; and
— A special arbitral tribunal constituted in accordance with Annex VIII for
specified categories of disputes.
A State, when adhering to the Convention, or at any time thereafter, is able to
choose, by written declaration, one or more of these means for the settlement of
disputes under the Convention. If the parties to a dispute have not accepted the
same procedure for the settlement of the dispute, it may be submitted only to
arbitration in accordance with Annex VII, unless the parties otherwise agree. If a
Party has failed to announce its choice of forum, it is deemed to have accepted
arbitration in accordance with Annex VII.
I recommend that the United States choose special arbitration for all the
categories of disputes to which it may be applied and Annex VII arbitration for
disputes not covered by the above, and thus that the United States make the
following declaration:
The Government of the United States of America declares, in accordance with
paragraph 1 of Article 287, that it chooses the following means for the settlement of
disputes concerning the interpretation or application of the Convention:
(A) a special arbitral tribunal constituted in accordance with Annex VIII for the
settlement of disputes concerning the interpretation or application of the articles of
the Convention relating to (1) fisheries, (2) protection and preservation of the
marine environment, (3) marine scientific research, and (4) navigation, including
pollution from vessels and by dumping, and
(B) an arbitral tribunal constituted in accordance with Annex VII for the
settlement of disputes not covered by the declaration in (A) above.
Subject to limited exceptions, the Convention excludes from binding dispute
settlement disputes relating to the sovereign rights of coastal States with respect
to the living resources in their EEZs. In addition, the Convention permits a State
to opt out of binding dispute settlement procedures with respect to one or more
enumerated categories of disputes, namely disputes regarding maritime
boundaries between neighboring States, disputes concerning military activities
Legal Divisions of the Oceans and Airspace 41
and certain law enforcement activities, and disputes in respect of which the
United Nations Security Council is exercising the functions assigned to it by the
Charter of the United Nations.
I recommend that the United States elect to exclude all three of these
categories of disputes from binding dispute settlement, and thus that the United
States make the following declaration:
The Government of the United States of America declares, in accordance with
paragraph 1 Article 298, that it does not accept the procedures provided for in
section 2 of Part XV with respect to the categories of disputes set forth in
subparagraphs (a), (b) and (c) of that paragraph.
RECOMMENDATION
The interested Federal agencies and departments of the Untied States have
unanimously concluded that our interests would be best served by the United
States becoming a Party to the Convention and the Agreement.
The primary benefits of the Convention to the United States include the
following:
• The Convention advances the interests of the United States as a global
maritime power. It preserves the right of the U.S. military to use the world's
oceans to meet national security requirements and of commercial vessels to carry
sea-going cargoes. It achieves this, inter alia, by stabilizing the breadth of the ter-
ritorial sea at 12 nautical miles; by setting forth navigation regimes of innocent
passage in the territorial sea, transit passage in straits used for international naviga-
tion, and archipelagic sea lanes passage; and by reaffirming the traditional free-
doms of navigation and overflight in the EEZ and the high seas beyond.
• The Convention advances the interests of the United States as a coastal
State. It achieves this, inter alia, by providing for an EEZ out to 200 nautical miles
from shore and by securing our rights regarding resources and artificial islands,
installations and structures for economic purposes over the full extent of the con-
tinental shelf. These provisions fully comport with U.S. oil and gas leasing prac-
tices, domestic management of coastal fishery resources, and international
fisheries agreements.
• As a far-reaching environmental accord addressing vessel source pollution,
pollution from seabed activities, ocean dumping and land-based sources of ma-
rine pollution, the Convention promotes continuing improvement in the health
of the world's oceans.
• In light of the essential role of marine scientific research in understanding
and managing the oceans, the Convention sets forth criteria and procedures to
promote access to marine areas, including coastal waters, for research activities.
42 Commander's Handbook on the Law of Naval Operations
• The Convention facilitates solutions to the increasingly complex problems
of the uses of the ocean — solutions which respect the essential balance between
our interests as both a coastal and a maritime nation.
• Through its dispute settlement provisions, the Convention provides for
mechanisms to enhance compliance by Parties with the Convention's provi-
sions.
• The Agreement fundamentally changes the deep seabed mining regime of
the Convention. It meets the objections the United States and other industrial-
ized nations previously expressed to Part XL It promises to provide a stable and
internationally recognized framework for mining to proceed in response to fu-
ture demand for minerals.
The United States has been a leader in the international community's effort to
develop a widely accepted international framework governing uses of the seas.
As a Party to the Convention, the United States will be in a position to continue
its role in this evolution and ensure solutions that respect our interests.
All interested agencies and departments, therefore, join the Department of
State in unanimously recommending that the Convention and Agreement be
transmitted to the Senate for its advice and consent to accession and ratification
respectively. They further recommend that they be transmitted before the
Senate adjourns sine die this fall.
The Department of State, along with other concerned agencies, stands ready
to work with Congress toward enactment of legislation necessary to carry out
the obligations assumed under the Convention and Agreement and to permit the
United States to exercise rights granted by the Convention.
Respectfully submitted,
WARREN CHRISTOPHER
Legal Divisions of the Oceans and Airspace 43
ANNEX Al-3
United States Oceans Policy [*]
Statement by the President, March 10, 1983
The United States has long been a leader in developing customary and
conventional law of the sea. Our objectives have consistently been to provide a
legal order that will, among other things, facilitate peaceful, international uses of
the oceans and provide for equitable and effective management and conservation
of marine resources. The United States also recognizes that all nations have an
interest in these issues.
Last July, I announced that the United States will not sign the United Nations
Law of the Sea Convention that was opened for signature on December 10. We
have taken this step because several major problems in the Convention's deep
seabed mining provisions are contrary to the interests and principles of
industrialized nations and would not help attain the aspirations of developing
countries.
The United States does not stand alone in those concerns. Some important
allies and friends have not signed the convention. Even some signatory states
have raised concerns about these problems.
However, the Convention also contains provisions with respect to traditional
uses of the oceans which generally confirm existing maritime law and practice
and fairly balance the interests of all states.
Today I am announcing three decisions to promote and protect the oceans
interest of the United States in a manner consistent with those fair and balanced
results in the Convention and international law.
First, the United States is prepared to accept and act in accordance with the
balance of interests relating to tradition*! uses of the oceans — such as navigation
and overflight. In this respect, the United States will recognize the rights of other
states in the waters off their coasts, as reflected in the Convention, so long as the
rights and freedoms of the United States and others under international law are
recognized by such coastal states.
Second, the United States will exercise and assert its navigation and overflight
rights and freedoms on a worldwide basis in a manner that is consistent with the
balance of interests reflected in the Convention. The United States will not,
however, acquiesce in unilateral acts of other states designed to restrict the rights
* Reproduced from the weekly Compilation of Presidential Documents,
Volume 19, Number 10 (March 14, 1983), pp. 383-85.
44 Commander's Handbook on the Law of Naval Operations
and freedoms of the international community in navigation and overflight and
other related high seas uses.
Third, I am proclaiming today an Exclusive Economic Zone in which the
United States will exercise sovereign rights in living and nonliving resources
within 200 nautical miles of its coast. This will provide United States jurisdiction
for mineral resources out to 200 nautical miles that are not on the continental
shelf. Recently discovered deposits there could be an important future source of
strategic minerals.
Within this Zone all nations will continue to enjoy the high seas rights and
freedoms that are not resource related, including the freedoms of navigation and
overflight. My proclamation does not change existing United States policies
concerning the continental shelf, marine mammals, and fisheries, including
highly migratory species of tuna which are not subject to United States
jurisdiction. The United States will continue efforts to achieve international
agreements for the effective management of these species. The proclamation also
reinforces this government's policy of promoting the United States fishing
industry.
While international law provides for a right of jurisdiction over marine
scientific research within such a zone, the proclamation does not assert this right.
I have elected not to do so because of the United States interest in encouraging
marine scientific research and avoiding any unnecessary burdens. The United
States will nevertheless recognize the right of other coastal states to exercise
jurisdiction over marine scientific research within 200 nautical miles of their
coasts, if that jurisdiction is exercised reasonably in a manner consistent with
international law.
The Exclusive Economic Zone established today will also enable the United
States to take limited additional steps to protect the marine environment. In this
connection, the United States will continue to work through the International
Maritime Organization and other appropriate international organizations to
develop uniform international measures for the protection of the marine
environment while imposing no unreasonable burdens on commercial shipping.
The policy decisions I am announcing today will not affect the application of
existing United States law concerning the high seas or existing authorities of any
United States Government agency.
In addition to the above policy steps, the United States will continue to work
with other countries to develop a regime, free of unnecessary political and]
economic restraints, for mining deep seabed minerals beyond national
jurisdiction. Deep seabed mining remains a lawful exercise of the freedom of the
high seas open to all nations. The United States will continue to allow its firms to
explore for and, when the market permits, exploit these resources.
Legal Divisions of the Oceans and Airspace 45
The administration looks forward to working with the Congress on
legislation to implement these new policies.
Source: 22 International Legal Materials 464 (1983).
46 Commander's Handbook on the Law of Naval Operations
ANNEX Al-4
MARITIME CLAIMS OF THE UNITED STATES
(As of 1 January 1997)
TYPE
DATE
SOURCE
LIMITS
NOTES
I. TERRITORIAL
SEA
1793
Apr 61
3nm
3nm
Became party to the
1958 Convention on
the Territorial Sea and
the Contiguous Zone.
Jun72
Public Notice
No. 358, Fed. Reg.
Vol. 37, No. 116
3nm
Reaffirmed U.S. claim.
Dec 88
ffl. CONTINENTAL Sep 45
SHELF
Presidential
Proclamation
No. 5928
12nm Territorial Sea
extension also applies
to Commonwealth of
Puerto Rico, Guam,
American Samoa, U.S.
Virgin Islands and the
Commonwealth of the
Northern Mariana
Islands and other
territories and
possessions.
II. CONTIGUOUS
1930
Tariff Act
12nm
Customs regulations.
ZONE
Jun72
Public Notice
N. 358, Fed. Reg.
Vol. 37, No. 116
12nm
Reaffirmed U.S. claim;
for purposes of
customs, fiscal,
immigration and
sanitary controls.
Proclamation No. 2667
White House press
release issued on same
date described
100-fathom depth as
outer limit.
Aug 53
Apr 61
Outer Continental
Shelf Lands Act, 43
U.S.C. 1331
Seabed
and subsoil
appertaining
Became party to the
1958 Convention on
the Continental Shelf.
Source: DoD 2005. 1-M, Maritime Claims Reference Manual, pp. 2-552 to 2-554 (1997); U.S. Dep't of
State, Limits in the Sea No. 36 (7th Revision).
Legal Divisions of the Oceans and Airspace 47
TYPE
DATE
SOURCE
LIMITS
NOTES
IV. FISHING/
Oct 66
Law No. 89-658
12nm
EXCLUSIVE
ECONOMIC
Mar 77
P.L. No. 94-265
200nm
Fishing zone: claimed
ZONE
(Magnuson Fishery
Conservation and
Management Act of
1976)
exclusive management
authority; applied to
American Samoa,
Guam, Puerto Rico,
U.S. Virgin Islands,
and other possessions
and territories.
Jan 78
200nm Fishery law applied to
Northern Marianas.
Mar 83
Presidential
Proclamation
No. 5030
200nm EEZ: applied to
Puerto Rico,
Northern Marianas
and overseas
possessions; no claim
to jurisdiction over
scientific research.
Jul 94
Exchange of Notes
with Japan
Confirms with Japan
that the "line of
delimitation" of
Japan's fishing zone is
identical to the US
EEZ limits north of
the Northern
Marianas.
Aug 95
Federal Register Pub.
Not. No. 2237
Published limits of the
EEZ.
48 Commander's Handbook on the Law of Naval Operations
TYPE
DATE
SOURCE
LIMITS
NOTES
V. ENVIRON-
MENTAL
REGULATION
Oct 72
Marine Protection,
Research and
Sanctuaries Act,
Title I &c II
(33 U.S.C. §§1401
et seq., as amended)
Regulated
transportation of
wastes for ocean
dumping in waters
adjacent to the U.S.
Oct 72
Clean Water Act,
(33 U.S.C. §§1321
et seq., as amended)
Regulated pollution
which may affect
resources under the
exclusive management
authority of the U.S. or
which is caused by
activities under the
Outer Continental
Shelf Lands Act.
Feb 74
Intervention on the
High Seas Act
P.L. 93-248
Jun78
Intervention on the
High Seas Act
Amendment
Sep 78
Outer Continental
Shelf Lands Act
Liability for spills from
any facility or vessel
operated in
conjunction with an
OCS lease.
Legal Divisions of the Oceans and Airspace 49
TYPE
DATE
SOURCE
LIMITS
NOTES
VI. MARITIME Apr 72
BOUNDARIES
Agreement
Maritime boundary
agreement with
Mexico entered into
force.
Dec 77
Agreement
May 78
Nov 80
Agreement
Agreement
Maritime boundary
agreement with Cuba
signed. (See U.S. Dep't
of State, Limits in the
Sea, No. 110).
Maritime boundary
agreement with
Mexico (Caribbean Sea
and Pacific) signed.
Maritime boundary
agreement with
Venezuela (Puerto
Rico and U.S. Virgin
Islands) entered
into force.
Sep 83
Agreement
American Samoa:
maritime boundary
agreement with Cook
Islands entered into
force.
Sep 83
Agreement
American Samoa:
maritime boundary
agreement with New
Zealand (Tokelau)
entered into force.
Oct 84
Jun90
Jun95
I. C.J. Judgement
Agreement
Agreement
Jun95
Agreement
Maritime boundary
with Canada (Gulf of
Maine and Georges
Bank) delimited.
Maritime boundary
agreement with USSR
(Bering Sea) signed.
Agreement with the
UK (for the British
Virgin Islands) entered
into force. (See U.S.
Dep't of State, Limits
in the Sea, No. 115.)
Agreement with the
UK (for Anguilla)
entered into force.
50 Commander's Handbook on the Law of Naval Operations
VII. LAW OF Signed Part XI Agreement July 29, 1994, subject to ratification.
THE SEA Submitted Convention to Senate for advice and consent to accession,
CONVENTION October 6, 1994, along with Part XI Agreement.
Legal Divisions of the Oceans and Airspace 51
ANNEX Al-5
CONSOLIDATED GLOSSARY OF TECHNICAL TERMS USED
IN THE UNITED NATIONS CONVENTION ON THE LAW OF
THE SEA
INTRODUCTION
The 1982 United Nations Convention on the Law of the Sea includes terms
of a technical nature that may not always be readily understood by those seeking
general information or those called upon to assist in putting the Convention
articles into effect. Such readers could vary from politicians and lawyers to
hydrographers, land surveyors, cartographers and other geographers. The need
to understand such terms may become of particular concern to those involved in
maritime boundary delimitation. Accordingly, the Technical Aspects of the Law
of the Sea Working Group of the International Hydrographic Organization has
endeavored to produce this glossary to assist all readers of the Convention in
understanding the hydrographic, cartographic and oceanographic terms used.
INDEX OF GLOSSARY TERMS
1 Adjacent coasts
22
Continental slope
41
Hydrographic survey
2 Aid to navigation
23
Danger to navigation
42
Internal waters
3 Archipelagic baselines
24
Deep ocean floor
43
Islands
4 Archipelagic sea lane
25
Delimitation
44
Isobath
5 Archipelagic State
26
Delta
45
Land territory
6 Archipelagic waters
27
Due publicity
46
Latitude
7 Area
28
Enclosed sea
47
Line of delimitation
8 Artificial island
29
Equidistance line
48
Longitude
9 Atoll
30
Estuary
49
Low-tide elevation
10 Bank
31
Exclusive economic zone
50
Low-water line/
11 Baseline
(EEZ)
Low-water mark
12 Basepoint
32
Facility (navigational)
51
Median line/
13 Bay
33
Facility (port)
Equidistance line
14 Cap
15 Chart
16 Closing line
17 Coast
18 Contiguous zone
19 Continental margin
20 Continental rise
21 Continental shelf
34
Foot of the continental
52
Mile
35
slope
Geodetic data
53
54
Mouth (bay)
Mouth (river)
36
Geodetic datum
55
Nautical chart
37
38
39
40
Geographical co-ordinates
Harbour works
Historic bay
Installation (off-shore)
56
57
58
Nautical mile
Navigational aid
Navigational chart
52 Commander's Handbook on the Law of Naval Operations
INDEX OF GLOSSARY TERMS (cont'd)
59 Oceanic plateau
60 Oceanic ridge
61 Opposite coasts
62 Outer limit
63 Parallel of latitude
64 Platform
65 Port
66 Reef
67 Rise
68 River
69 Roadstead
70 Rock
71 Routing system
72 Safety aids
73 Safety zone
74 Scale
75 Sea-bed
76 Sedimentary rock
77 Semi-enclosed sea
78 Shelf
79 Size of area
80 Slope
81 Spur
82 Straight baseline
83 Straight line
84 Strait
85 Structure
86 Submarine cable
87 Submarine pipelines
88 Submarine ridge
89 Subsoil
90 Superjacent waters
91 Territorial sea
92 Tide
93 Traffic separation scheme
94 Water column
Adapted from International Hydrographic Bureau Special Pub. No. 51, and UN
Office for Ocean Affairs and the Law of the Sea, Baselines, 46-62 (1989)
Legal Divisions of the Oceans and Airspace 53
1 Adjacent coasts
The coasts lying either side of the land boundary between two adjoining
States.
2 Aid to navigation
Visual, acoustical or radio device external to a craft designed to assist in the
determination of a safe course or of a vessel's position, or to warn of dangers and
obstructions.
See: Navigational aid.
3 Archipelagic baselines
See: Baseline.
4 Archipelagic sea lane
As defined in article 53.
See: Routing system; traffic separation scheme.
5 Archipelagic State
As defined in article 46.
See: Archipelagic waters; baseline; islands.
6 Archipelagic waters
The waters enclosed by archipelagic baselines
See: Articles 46, 47 and 49.
See: Archipelagic State; baseline; internal waters.
7 Area
As defined in article 1.1.(1).
54 Commander's Handbook on the Law of Naval Operations
See: Baseline; continental shelf; deep ocean floor; exclusive economic
zone; sea-bed; subsoil.
8 Artificial island
See: Installation (off-shore).
9 Atoll
A ring-shaped reef with or without an island situated on it surrounded by
the open sea, that encloses or nearly encloses a lagoon.
Where islands are situated on atolls the territorial sea baseline is the seaward
low- water line of the reef as shown by the appropriate symbol on charts officially
recognized by the coastal State (article 6).
For the purpose of computing the ratio of water to land when establishing
archipelagic waters, atolls and the waters contained within them may be included
as part of the land area (article 47.7).
See: Archipelagic waters; baseline; island; low-water line; reef.
10 Bank
An elevation of the sea floor located on a continental (or an island) shelf,
over which the depth of water is relatively shallow.
A shallow area of shifting sand, gravel, mud, etc., as a sand bank, mud
bank, etc., usually constituting a danger to navigation and occurring in relatively
shallow waters.
See: Continental shelf.
1 1 Baseline
The line from which the seaward limits of a State's territorial sea and
certain other maritime zones of jurisdiction are measured.
The term usually refers to the baseline from which to measure the breadth
of the territorial sea; the seaward limits of the contiguous zone (article 33.2), the
Legal Divisions of the Oceans and Airspace 55
exclusive economic zone (article 57) and, in some cases, the continental shelf
(article 76) are measured from the same baseline.
See: Internal waters.
The territorial sea baseline may be of various types depending on the
geographical configuration of the locality.
The "normal baseline" is the low- water line along the coast (including the
coasts of islands) as marked on large-scale charts officially recognized by the
coastal State (article 5 and 121.2).
See: Low- water line.
In the case of islands situated on atolls or of islands having fringing reefs,
the baseline is the seaward low- water line of the reef, as shown by the appropriate
symbol on charts officially recognized by the coastal State (article 6).
Where a low-tide elevation is situated wholly or partly at a distance not
exceeding the breadth of the territorial sea from the mainland or an island, the
low- water line on that elevation, maybe used as part of the baseline (article 13).
See: Low-tide elevation.
Straight baselines are a system of straight lines joining specified or discrete
points on the low-water line, usually known as straight baseline turning points,
which may be used only in localities where the coasdine is deeply indented and
cut into, or if there is a fringe of islands along the coast in its immediate vicinity
(article 7.1).
See: Straight line.
Archipelagic baselines are straight lines joining the outermost points of the
outermost islands and drying reefs which may be used to enclose all or part of an
archipelago forming all or part of an archipelagic State (article 47).
12 Basepoint
A basepoint is any point on the baseline. In the method of straight
baselines, where one straight baseline meets another baseline at a common point,
56 Commander's Handbook on the Law of Naval Operations
one line may be said to "turn" at that point to form another baseline. Such a point
may be termed a "baseline turning point" or simply "basepoint".
13 Bay
For the purposes of this Convention, a bay is a well-marked indentation
whose penetration is in such proportion to the width of its mouth as to contain
land-locked waters and constitute more than a mere curvature of the coast. An
indentation shall not, however, be regarded as a bay unless its area is as large as, or
larger than, that of the semi-circle whose diameter is a line drawn across the
mouth of that indentation (article 10.2).
This definition is purely legal and is applicable only in relation to the
determination of the limits of maritime zones. It is distinct from and does not
replace the geographical definitions used in other contexts.
This definition does not apply to "historic" bays (article 10.6).
See: Historic bays.
14 Cap
Feature with a rounded cap-like top. Also defined as a plateau or flat area
of considerable extent, dropping off abruptly on one or more sides.
15 Chart
A nautical chart specially designed to meet the needs of marine
navigation. It depicts such information as depths of water, nature of the sea-bed,
configuration and nature of the coast, dangers and aids to navigation, in a
standardized format; also called simply "chart".
See: Baseline; coast; danger to navigation; geodetic datum; low-water
line; navigation aid; sea-bed; tide.
16 Closing line
A line that divides the internal waters and territorial seas of a coastal State
or the archipelagic waters of an archipelagic State. It is most often used in the
context of establishing the baseline at the entrance to rivers (article 9), bays
(article 10), and harbours (article 11).
Legal Divisions of the Oceans and Airspace 57
See: Archipelagic State; baseline; bay; harbour works; internal waters,
low- water line.
17 Coast
The sea-shore. The narrow strip of land in immediate contact with any
body of water, including the area between high- and low- water lines.
See: Baseline; low- water line.
18 Contiguous zone
1. In a zone contiguous to its territorial sea, described as the contiguous
zone, the coastal State may exercise the control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or sanitary
laws and regulations within its territory or territorial sea;
(b) Punish infringements of the above laws and regulations committed
within its territory or territorial sea.
2. The contiguous zone may not extend beyond 24 nautical miles from
the baselines from which the breadth of the territorial sea is measured (article
33)).
See: Baseline; exclusive economic zone; high seas.
19 Continental margin
As defined in article 76.3, as follows: "The continental margin comprises
the submerged prolongation of the land mass of the coastal State, and consists of
the sea-bed and subsoil of the shelf, the slope and the rise. It does not include the
deep ocean floor with its oceanic ridges or the subsoil thereof.
See: Continental rise; continental shelf; continental slope, foot of the
continental slope; deep ocean floor; sea-bed subsoil.
20 Continental rise
58 Commander's Handbook on the Law of Naval Operations
A submarine feature which is that part of the continental margin lying
between the continental slope and the abyssal plain.
It is usually a gentle slope with gradients of 1/2 degree or less and a
generally smooth surface consisting of sediments.
See: Continental margin; continental slope; deep ocean floor; foot of the
continental slope.
21 Continental shelf
As defined in article 76.1, as follows:
"The continental shelf of a coastal State comprises the sea-bed and subsoil
of the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the baseline from which the
breadth of the territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance."
The limits of the continental shelf or continental margin are determined
in accordance with the provisions of article 76 of the Convention. If the
continental margin extends beyond a 200 nautical mile limit measured from the
appropriate baselines the provisions of article 76.4 to 76.10 apply.
See: Continental margin; outer limit.
22 Continental slope
That part of the continental margin that lies between the shelf and the rise.
Simply called the slope in article 76.3.
The slope may not be uniform or abrupt, and may locally take the form of
terraces. The gradients are usually greater than 1.5 degrees.
See: Continental margin; continental shelf; continental rise; deep ocean
floor, foot of the continental slope.
23 Danger to navigation
Legal Divisions of the Oceans and Airspace 59
A hydrographic feature or environmental condition that might operate
against the safety of navigation.
24 Deep ocean floor
The surface lying at the bottom of the deep ocean with its oceanic ridges,
beyond the continental margin.
The continental margin does not include the deep ocean floor with its
oceanic ridges or the subsoil thereof.
See: Continental margin; oceanic ridge; sea-bed; submarine ridge;
subsoil.
25 Delimitation
See: Line of delimitation.
26 Delta
A tract of alluvial land enclosed and traversed by the diverging mouths of a
river.
In localities where the method of straight baselines is appropriate, and
where because of the presence of a delta and other natural conditions the
coastline is highly unstable, appropriate basepoints may be selected along the
furthest seaward extent of the low- water line and, notwithstanding subsequent
regression of the low- water line, the straight baselines shall remain effective until
changed by the coastal State in accordance with the Convention (article 7.2).
See: Baseline; low- water line.
27 Due publicity
Notification of a given action for general information through
appropriate authorities within a reasonable amount of time in a suitable manner.
Under the provisions of the Convention, States shall give due publicity,
inter alia, to charts or lists of geographical co-ordinates defining the baselines and
some limits and boundaries (articles 16.2, 47.9, 75.2 and 84.2), to laws and
regulations pertaining to innocent passage (article 21.3), and to sea lanes and
60 Commander's Handbook on the Law of Naval Operations
traffic separation schemes established in the territorial sea (article 22.4) and
archipelagic waters (article 53.10).
In addition to notification to concerned States through diplomatic
channels, more immediate dissemination to mariners may be achieved by passing
the information directly to national Hydrographic Offices for inclusion in their
Notices to Mariners.
See: Baseline; chart; geographical co-ordinates; traffic separation scheme.
28 Enclosed sea
As defined in article 122, as follows:
"For the purposes of this Convention, 'enclosed or semi-enclosed sea'
means a gulf, basin, or sea surrounded by two or more States and connected to
another sea or the ocean by a narrow outlet or consisting entirely or primarily of
the territorial seas and exclusive economic zones of two or more coastal States".
29 Equidistance line
See: Median line.
30 Estuary
The tidal mouth of a river, where the tide meets the current of fresh water.
See: Bay; river; delta.
31 Exclusive economic zone (EEZ)
As defined in article 55.
The zone may not be extended beyond 200 nautical miles from the
territorial sea baselines (article 57).
The rights and jurisdictions of a coastal State in the EEZ are detailed in
article 56. Other aspects of the EEZ are to be found in Part V of the Convention.
32 Facility (navigational)
Legal Divisions of the Oceans and Airspace 61
See: Aid to navigation.
33 Facility (port)
See: Harbour works.
34 Foot of the continental slope
"In the absence of evidence to the contrary, the foot of the continental
slope shall be determined as the point of maximum change in the gradient at its
base" (article 76.4 (b)).
It is the point where the continental slope meets the continental rise or, if
there is no rise, the deep ocean floor.
To determine the maximum change of gradient requires adequate
bathymetry covering the slope and a reasonable extent of the rise, from which a
series of profiles may be drawn and the point of maximum change of gradient
located.
The two methods laid down in article 76.4 for determining the outer limit
of the continental shelf depend upon the foot of the continental slope.
See: Continental rise; continental shelf; continental slope.
35 Geodetic data
Information concerning points established by a geodetic survey, such as
descriptions for recovery, co-ordinate values, height above sea-level and
orientation.
See: Geodetic datum.
36 Geodetic datum
A datum defines the basis of a co-ordinate system. A local or regional
geodetic datum is normally referred to an origin whose co-ordinates are defined.
The datum is associated with a specific reference ellipsoid which best fits the
surface (geoid) of the area of interest. A global geodetic datum is now related to
the center of the earth's mass, and its associated spheroid is a best fit to the known
size and shape of the whole earth.
62 Commander's Handbook on the Law of Naval Operations
The geodetic datum is also known as the horizontal datum or horizontal
reference datum.
The position of a point common to two different surveys executed on
different geodetic datums will be assigned two different sets of geographical
co-ordinates. It is important, therefore, to know what geodetic datum has been
used when a position is defined.
The geodetic datum must be specified when lists of geographical
co-ordinates are used to define the baselines and the limits of some zones of
jurisdiction (articles 16.1, 47.8, 75.1 and 84.1).
See: Baseline; geographical co-ordinates; geodetic data.
37 Geographical co-ordinates
Units of latitude and longitude which define the position of a point on the
earth's surface with respect to the ellipsoid of reference.
Latitude is expressed in degrees( ), minutesf) and seconds(") or decimals
of a minute, from 0 to 90 north or south of the equator. Lines or circles joining
points of equal latitude are known as "parallels of latitude" (or just "parallels").
Longitude is expressed in degrees, minutes and seconds or decimals of a
minute from 0° to 180° east or west of the Greenwich meridian. Lines joining
points of equal longitude are known as "meridians".
Examples: 47° 20' 16" N, 20° 18' 24" E, or 47° 20.27' N, 20° 18.4' E
See: Geodetic datum.
38 Harbour works
Permanent man-made structures built along the coast which form an
integral part of the harbour system such as jetties, moles, quays or other port
facilities, coastal terminals, wharves, breakwaters, sea walls, etc. (article 11).
Such harbor works may be used as part of the baseline for the purposes of
delimiting the territorial sea and other maritime zones.
Legal Divisions of the Oceans and Airspace 63
See: Baseline; port.
39 Historic bay
See article 10.6. This term has not been defined in the Convention.
Historic bays are those over which the coastal State has publicly claimed and
exercised jurisdiction and this jurisdiction has been accepted by other States.
Historic bays need not meet the requirements prescribed in the definition of
"bay" contained in article 10.2.
40 Hydrographic survey
The science of measuring and depicting those parameters necessary to
describe the precise nature and configuration of the sea-bed and coastal strip, its
geographical relationship to the land-mass, and the characteristics and dynamics
of the sea.
Hydrographic surveys may be necessary to determine the features that
constitute baselines or basepoints and their geographical positions.
During innocent passage, transit passage, and archipelagic sea lane passage,
foreign ships, including marine scientific research and hydrographic survey ships,
may not carry out any research or survey activities without the prior
authorization of the coastal States (article 19.2 (/), 40 and 54).
See: Baseline; geographical co-ordinates.
41 Installation (off-shore)
Man-made structure in the territorial sea, exclusive economic zone or on
the continental shelf usually for the exploration or exploitation of marine
resources. They may also be built for other purposes such as marine scientific
research, tide observations, etc.
Off-shore installations or artificial islands shall not be considered as
permanent harbour works (article 11), and therefore may not be used as part of
the baseline from which to measure the breadth of the territorial sea.
Where States may establish straight baselines or archipelagic baselines,
low-tide elevations having lighthouses or similar installations may be used as
basepoints (articles 7.4 and 47.4).
64 Commander's Handbook on the Law of Naval Operations
Artificial islands, installations and structures do not possess the status of
islands. They have no territorial sea of their own, and their presence does not
affect the delimitation of the territorial sea, the exclusive economic zone or the
continental shelf (article 60.8).
Article 60 provides, inter alia, for due notice to be given for the
construction or removal of installations, and permanent means for giving
warning of their presence must be maintained. Safety zones, not to exceed 500
metres, measured from their outer edges, may be established. Any installations
abandoned or disused shall be removed, taking into account generally accepted
international standards.
42 Internal waters
As defined in article 8.1; the relevant straits regime applies in a strait
enclosed by straight baselines (article 35 (a)).
A State exercises complete sovereignty over its internal waters with the
exception that a right of innocent passage exists for foreign vessels in areas that
had not been considered as internal waters prior to the establishment of a system
of straight baselines (article 8.2).
See: Baseline; bay; coastline; low-water line; historic bay; installations
(off-shore); river.
43 Islands
As defined in article 121.1.
Maritime zones of islands are referred to in article 121.2.
See: Atoll; baseline, contiguous zone; continental margin, exclusive
economic zone; rock; tide.
44 Isobath
A line representing the horizontal contour of the sea-bed at a given depth.
See: Article 76.5.
Legal Divisions of the Oceans and Airspace 65
45 Land territory
A general term in the Convention that refers to both insular and
continental land masses that are above water at high tide (articles 2. 1 and 76.1).
See: Tide.
46 Latitude
See: Geographical co-ordinates.
47 Line of delimitation
A line drawn on a map or chart depicting the separation of any type of
maritime jurisdiction.
A line of delimitation may result either from unilateral action or from
bilateral agreement and, in some cases, the State (s) concerned may be required to
give due publicity.
See: Due publicity.
The term "maritime boundary" may sometimes be used to describe
various lines of delimitation.
See: Baseline; chart; coast; continental margin; geographical co-ordinates;
exclusive economic zone; median line; opposite coasts; outer limit; territorial
sea.
48 Longitude
See: Geographical co-ordinates.
49 Low-tide elevation
A low-tide elevation is a naturally formed area of land which is
surrounded by and above water at low tide but submerged at high tide (article
13.1).
66 Commander's Handbook on the Law of Naval Operations
Low-tide elevation is a legal term for what are generally described as
drying banks or rocks. On nautical charts they should be distinguishable from
islands.
Where a low-tide elevation is situated wholly or partly at a distance not
exceeding the breadth of the territorial sea from the mainland or an island, the
low-water line on that elevation may be used as the baseline for measuring the
territorial sea (article 13.1).
Articles 7.4 and 47.4 refer to the use of low- tide elevations as basepoints in
a system of straight baselines or archipelagic baselines.
See: Baseline; island; low-water line; chart; territorial sea; installation
(off-shore).
50 Low-water line / low-water mark
The intersection of the plane of low water with the shore. The line along a
coast, or beach, to which the sea recedes at low water.
It is the normal practice for the low-water line to be shown as an
identifiable feature on nautical charts unless the scale is too small to distinguish it
from the high- water line or where there is no tide so that the high-and low water
lines are the same.
The actual water level taken as low- water for charting purposes is known
as the level of chart datum (document A/CONF. 62/L7.6).
See: Baseline; chart; tide.
51 Median line/equidistance line
A line every point of which is equidistant from the nearest points on the
baselines of two or more States between which it lies.
See: Adjacent coasts; baseline; opposite coasts; territorial sea.
52 Mile
See: Nautical mile.
Legal Divisions of the Oceans and Airspace 67
53 Mouth (bay)
Is the entrance to the bay from the ocean.
Article 10.2 states "a bay is a well-marked indentation," and the mouth of
that bay is "the mouth of the indentation". Articles 10.3, 10.4 and 10.5 refer to
"natural entrance points of a bay". Thus is can be said that the mouth of a bay lies
between its natural entrance points.
In other words, the mouth of a bay is its entrance.
Although some States have developed standards by which to determine
natural entrance points to bays, no international standards have been established.
See: Baseline; bay; closing line; estuary; low-water line.
54 Mouth (river)
The place of discharge of a stream into the ocean.
If a river flows directly into the sea, the baseline shall be a straight line
across the mouth of the river between points on the low- water line of its banks
(article 9). Note that the French text of the Convention is "si un fleuve se jette
dans la mer sans former d'estuaire. . ." (underlining added).
No limit is placed on the length of the line to be drawn.
The fact that the river must flow "directly into the sea" suggests that the
mouth should be well marked, but otherwise the comments on the mouth of a
bay apply equally to the mouth of a river.
See: Baseline; closing line; estuary; low-water line; river.
55 Nautical chart
See: Chart.
56 Nautical mile
A unit of distance equal to 1,852 metres.
68 Commander's Handbook on the Law of Naval Operations
This value was adopted by the International Hydrographic Conference in
1929 and has subsequently been a adopted by the International Bureau of
Weights and Measures. The length of the nautical mile is very close to the mean
value of the length of V of latitude, which varies from approximately 1,843
metres at the equator to 1,861 2/3 metres at the pole.
See: Geographical co-ordinates.
57 Navigational aid
See: Aid to navigation.
58 Navigation chart
See: Aid to navigation.
59 Oceanic plateau
A comparatively flat-topped elevation of the sea-bed which rises steeply
from the ocean floor on all sides and is of considerable extent across the summit.
For the purpose of computing the ratio of water to land enclosed within
archipelagic baselines, land areas may, inter alia, include waters lying within that
part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a
chain of limestone islands and drying reefs lying on its perimeter (article 47.7).
See: Archipelagic State; baseline.
60 Oceanic ridge
A long elevation of the ocean floor with either irregular or smooth
topography and steep sides.
Such ridges are excluded from the continental margin (article 76.3).
See: Deep ocean floor.
61 Opposite coasts
The geographical relationship of the coasts of two States facing each
other.
Legal Divisions of the Oceans and Airspace 69
Maritime zones of States having opposite coasts may require boundary
delimitation to avoid overlap.
62 Outer limit
The extent to which a coastal State claims or may claim a specific
jurisdiction in accordance with the provisions of the Convention.
In the case of the territorial sea, the contiguous zone and the exclusive
economic zone, the outer limits lie at a distance from the nearest point of the
territorial sea baseline equal to the breadth of the zone of jurisdiction being
measured (articles 4, 33.2 and 57).
In the case of the continental shelf, where the continental margin extends
beyond 200 nautical miles from the baseline from which the territorial sea is
measured, the extent of the outer limit is described in detail in article 76.
See: Baseline; contiguous zone; continental margin; continental shelf;
exclusive economic zone; isobath; territorial sea.
63 Parallel of latitude
See: Geographical co-ordinates.
64 Platform
See: Installation (off-shore).
65 Port
A place provided with various installations, terminals and facilities for
loading and discharging cargo or passengers.
66 Reef
A mass of rock or coral which either reaches close to the sea surface or is
exposed at low tide.
Drying reef. That part of a reef which is above water at low tide but
submerged at high tide.
70 Commander's Handbook on the Law of Naval Operations
Fringing reef. A reef attached directly to the shore or continental land
mass, or located in their immediate vicinity.
In the case of islands situated on atolls or of islands having fringing reefs,
the baseline ... is the seaward low-water line of the reef, as shown by the
appropriate symbol on charts officially recognized by the coastal State (article 6) .
See: Atoll; baseline; island; low-water line.
67 Rise
See: Continental rise.
68 River
A relatively large natural stream of water.
69 Roadstead
An area near the shore where vessels are intended to anchor in a position
of safety; often situated in a shallow indentation of the coast.
"Roadsteads which are normally used for loading, unloading and
anchoring of ships, and which would otherwise be situated wholly or pardy
outside the outer limit of the territorial sea, are included in the territorial sea"
(article 12).
In most cases roadsteads are not clearly delimited by natural geographical
limits, and the general location is indicated by the position of its geographical
name on charts. If article 12 applies, however, the limits must be shown on charts
or must be described by a list of geographical co-ordinates.
See: Line of delimitation; chart; geographical co-ordinates; territorial sea.
70 Rock
A solid mass of limited extent.
There is no definition given in the Convention. It is used in article 121.3,
which states:
Legal Divisions of the Oceans and Airspace 71
"Rocks which cannot sustain human habitation or economic life of their
own shall have no exclusive economic zone or continental shelf."
See: Island; low-tide elevation.
71 Routing system
Any system of one or more routes and/or routing measures aimed at
reducing the risk of casualties; it includes traffic separation schemes, two-way
routes, recommended tracks, areas to be avoided, inshore traffic zones,
roundabouts, precautionary areas and deep-water routes.
72 Safety aids
See: Aid to navigation.
73 Safety zone
Zone established by the coastal State around artificial islands, installations
and structures in which appropriate measures to ensure the safety both of
navigation and of the artificial islands, installations and structures are taken. Such
zones shall not exceed a distance of 500 metres around them, except as
authorized by generally accepted international standards or as recommended by
the competent international organization (articles 60.4 and 60.5).
See: Installation (off-shore).
74 Scale
The ratio between a distance on a chart or map and a distance between the
same two points measured on the surface of the Earth (or other body of the
universe) .
Scale may be expressed as a fraction or as a ratio. If on a chart a true
distance of 50,000 metres is represented by a length of 1 metre the scale may be
expressed as 1:50,000 or as 1/50,000. The larger the divisor the smaller is the
scale of the chart.
See: Chart.
72 Commander's Handbook on the Law of Naval Operations
75 Sea-bed
The top of the surface layer of sand, rock, mud or other material lying at
the bottom of the sea and immediately above the subsoil.
The sea-bed may be that of the territorial sea (article 2.2), archipelagic
waters (article 49.2), the exclusive economic zone (article 56), the continental
shelf (article 76), the high seas (article 112.1) or the area (articles 1 1 (1) and 133).
It may be noted, however, that in reference to the surface layer seaward of the
continental rise, article 76 uses the term "deep ocean floor" rather than
"sea-bed."
See: Area; continental shelf; deep ocean floor; exclusive economic zone;
subsoil.
76 Sedimentary rock
Rock formed by the consolidation of loose sediments that have
accumulated in layers in water or in the atmosphere. (The term sedimentary rock
is used in article 76.4. (a) (i)).
The sediments may consist of rock fragments or particles of various sizes
(conglomerate, sandstone, shale), the remains or products of animals or plants
(certain limestones and coal), the product of chemical action or of evaporation
(salt, gypsum, etc.) or a mixture of these materials.
77 Semi-enclosed sea
See: Enclosed sea (article 122).
78 Shelf
Geologically an area adjacent to a continent or around an island and
extending from the low-water line to the depth at which there is usually a
marked increase of slope to greater depth.
See: Continental shelf.
79 Size of area
Legal Divisions of the Oceans and Airspace 73
The general requirements are laid down in annex III, articles 8 and 17.2
(a) of the Convention. The first of these articles requires that the applicant shall
indicate the co-ordinates dividing the area.
The most common system of co-ordinates are those of latitude and
longitude, although rectangular co-ordinates on the Universal Transverse
Mercator Grid (quoting the appropriate zone number), Marsden Squares, Polar
Grid Co-ordinates, etc. are also unambiguous. The Preparatory Commission has
under consideration that applications for plans of work should define the areas by
reference to the global system WGS (article 2.12 of Draft Regulations on
Prospecting, Exploration and Exploitation of Ploymetallic Nodules in the Area,
document LOS/PCN/SCN.3/WP 6).
See: Geographical co-ordinates.
80 Slope
See: Continental slope.
81 Spur
A subordinate elevation, ridge or projection outward from a larger
feature.
The maximum extent of the outer limit of the continental shelf along
submarine ridges is 350 nautical miles from the baselines. This limitation
however "does not apply to submarine elevations that are natural components of
the continental margin, such as plateaux, rises, caps, banks and spurs" (article
76.6).
See: Bank; cap; continental shelf; submarine ridge.
82 Straight baseline
See: Baseline.
83 Straight line
Mathematically the line of shortest distance between two points.
See: Baseline; continental margin; continental shelf.
74 Commander's Handbook on the Law of Naval Operations
84 Strait
Geographically, a narrow passage between two land masses or islands or
groups of islands connecting two larger sea areas.
Only straits "used for international navigation" are classified as
"international straits", and only such straits fall within the specific regime
provided in part III, sections 2 and 3, of the Convention.
85 Structure
See: Installation (off-shore).
86 Submarine cable
An insulated, waterproof wire or bundle of wires or fibre optics for
carrying an electric current or a message under water.
They are laid on or in the sea-bed, and the most common are telegraph or
telephone cables, but they may also be carrying high voltage electric currents for
national power distribution or to off-shore islands or structures.
They are usually shown on charts if they lie in an area where they may be
damaged by vessels anchoring or trawling.
All States are entitled to lay submarine cables on the continental shelf
subject to the provisions of article 79.
Articles 113, 114 and 115 provide for the protection of submarine cables
and indemnity for loss incurred in avoiding injury to them.
See: Submarine pipelines.
87 Submarine pipelines
A line of pipes for conveying water, gas, oil, etc., under water.
They are laid on or trenched into the sea-bed, and they could stand at
some height above it. In areas of strong tidal streams and soft sea-bed material the
Legal Divisions of the Oceans and Airspace 75
sea-bed may be scoured from beneath sections of the pipe leaving them partially
suspended.
They are usually shown on charts if they lie in areas where they may be
damaged by vessels anchoring or trawling.
The delineation of the course for the laying of such pipelines on the
continental shelf is subject to the consent of the coastal State.
Articles 113, 114 and 115 provide for the protection of submarine
pipelines and indemnity for loss incurred in avoiding injury to them.
All States are entitled to lay submarine pipelines on the continental shelf
subject to the provisions of article 79.
See: Submarine cables.
88 Submarine ridge
An elongated elevation of the sea floor, with either irregular or relatively
smooth topography and steep sides, which constitutes a natural prolongation of
land territory.
On submarine ridges the outer limits of the continental shelf shall not
exceed 350 nautical miles from the territorial sea baselines, subject to a
qualification in the case of submarine elevations which are natural components
of the continental margin of a coastal State (article 76.6).
See: Continental shelf.
89 Subsoil
All naturally occurring matter lying beneath the sea-bed or deep ocean
floor.
The subsoil includes residual deposits and minerals as well as the bedrock
below.
The area and a coastal State's territorial sea, archipelagic waters, exclusive
economic zone and continental shelf all include the subsoil (articles 1.1(1), 2.2,
49.2, 56.1 (a) and 76.1).
76 Commander's Handbook on the Law of Naval Operations
See: Area; continental shelf; exclusive economic zone; sea-bed.
90 Superjacent waters
The waters lying immediately above the sea-bed or deep ocean floor up to
the surface.
The Convention only refers to the superjacent waters over the
continental shelf and those superjacent to the area in articles 78 and 135
respectively.
See: Area; continental shelf; exclusive economic zone; sea-bed; water
column.
91 Territorial sea
A belt of water of a defined breadth but not exceeding 12 nautical miles
measured seaward from the territorial sea baseline.
The coastal State's sovereignty extends to the territorial sea, its sea-bed
and subsoil, and to the air space above it. This sovereignty is exercised subject to
the Convention and to other rules of international law (articles 2 and 3).
The outer limit of the territorial sea is the line every point of which is at a
distance from the nearest point of the baseline equal to the breadth of the
territorial sea (article 4).
Article 12 provides that certain roadsteads wholly or partly outside the
territorial sea are included in the territorial sea; no breadth limitation is
expressed.
The major limitations on the coastal State's exercise of sovereignty in the
territorial sea are provided by the rights of innocent passage for foreign ships and
transit passage and archipelagic sea lanes passage for foreign ships and aircraft (part
II, section 3, part III, section 2, and part IV of the Convention).
See: Archipelagic sea lanes; baseline; islands; low-tide elevations; nautical
mile; roadsteads.
92 Tide
Legal Divisions of the Oceans and Airspace 77
The periodic rise and fall of the surface of the oceans and other large
bodies of water due principally to the gravitational attraction of the Moon and
Sun on a rotating Earth.
Chart datum: The tidal level to which depths on a nautical chart are
referred to constitutes a vertical datum called chart datum.
While there is no universally agreed chart datum level, under an
International Hydrographic Conference Resolution (A 2.5) it "shall be a plane
so low that the tide will seldom fall below it".
See: Chart; low-water line.
93 Traffic separation scheme
A routing measure aimed at the separation of opposing streams of traffic by
appropriate means and by the establishment of traffic lanes.
See: Routing system.
94 Water column
A vertical continuum of water from sea surface to sea-bed.
See: Sea-bed; superjacent waters.
78 Commander's Handbook on the Law of Naval Operations
ANNEX Al-6
Presidential Documents
Federal Register
Vol. 54. No. 5
Monday, January 9, 1989
Title 3— Proclamation 5928 of December 27, 1988
The President Territorial Sea of the United States of America
By the President of the United States of America
A Proclamation
International law recognizes that coastal nations may exercise sovereignty and
jurisdiction over their territorial seas.
The territorial sea of the United States is a maritime zone extending beyond the land
territory and internal waters of the United States over which the United States exercises
sovereignty and jurisdiction, a sovereignty and jurisdiction that extend to the airspace
over the territorial sea, as well as to its bed and subsoil.
Extension of the territorial sea by the United States to the limits permitted by
international law will advance the national security and other significant interests of the
United States.
NOW, THEREFORE, I, RONALD P^AGAN, by the authority vested in me as
President by the Constitution of the United States of America, and in accordance with
international law, do hereby proclaim the extension of the territorial sea of the United
States of America, the Commonwealth of Puerto Rico, Guam, American Samoa, the
United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and
any other territory or possession over which the United States exercises sovereignty.
The territorial sea of the United States henceforth extends to 12 nautical miles from the
baselines of the United States determined in accordance with international law.
In accordance with international law, as reflected in the applicable provisions of the 1982
United Nations Convention on the Law of the Sea, within the territorial sea of the
United States, the ships of all countries enjoy the right of innocent passage and the ships
and aircraft of all countries enjoy the right of transit passage through international straits.
Legal Divisions of the Oceans and Airspace 79
Nothing in this Proclamation:
(a) extends or otherwise alters existing Federal or State law or any jurisdiction, right,
legal interests, or obligations derived therefrom; or
(b) impairs the determination, in accordance with international law, of any maritime
boundary of the United States with a foreign jurisdiction.
IN WITNESS WHEREOF, I have hereunto set my hand this 27 th day of December, in
the year of our Lord nineteen hundred and eighty-eight, and of the Independence of the
United States of American the two hundred and thirteenth.
RONALD REAGAN
80 Commander's Handbook on the Law of Naval Operations
ANNEX Al-7
THE WHITE HOUSE
Office of the Press Secretary
March 10, 1983
EMBARGOED FOR RELEASE AT 4:00 PM EST
FACT SHEET
UNITED STATES OCEANS POLICY
Today the president announced new guidelines for U.S. oceans policy and
proclaimed an Exclusive Economic Zone (EEZ) for the United States. This
follows his consideration of a senior interagency review of these matters.
The EEZ Proclamation confirms U.S. sovereign rights and control over the
living and non-living natural resources of the seabed, subsoil and superjacent
waters beyond the territorial sea but within 200 nautical miles of the United
States coasts. This will include, in particular, new rights over all minerals (such as
nodules and sulphide deposits) in the zone that are not on the continental shelf
but are within 200 nautical miles. Deposits of polymetallic sulphides and
cobalt/ manganese crusts in these areas have only been recently discovered and
are years away from being commercially recoverable. But they could be a major
future source of strategic and other minerals important to the U.S. economy and
security.
The EEZ applies to waters adjacent to the United States, the Commonwealth
of Puerto Rico, the Commonwealth of the Northern Mariana Islands
(consistent with the Covenant and UN Trusteeship Agreement), and United
States overseas territories and possessions. The total area encompassed by the
EEZ has been estimated to exceed two million square nautical miles.
The President's statement makes clear that the proclamation does not change
existing policies with respect to the outer continental shelf and fisheries within
the U.S. zone.
Since President Truman proclaimed U.S. jurisdiction and control over the
adjacent continental shelf in 1945, the U.S. has asserted sovereign rights for the
purpose of exploration and exploitation of the resources of the continental shelf.
Fundamental supplementary legislation, the Outer Continental Shelf Lands Act,
was passed by Congress in 1953. The President's proclamation today
incorporates existing jurisdiction over the continental shelf
Since 1976 the United States has exercised management and conservation
authority over fisheries resources (with the exception of highly migratory species
Legal Divisions of the Oceans and Airspace 81
of tuna) within 200 nautical miles of the coasts, under the Magnuson Fishery
Conservation and Management Act. The U.S. neither recognizes nor asserts
jurisdiction over highly migratory species of tuna. Such species are best managed
by international agreements with concerned countries. In addition to
confirming the United States sovereign rights over mineral deposits beyond the
continental shelf but within 200 nautical miles, the Proclamation bolsters U.S.
authority over the living resources of the zone.
The United States has also exercised certain other types of jurisdiction beyond
the territorial sea in accordance with international law. This includes, for
example, jurisdiction relating to pollution control under the Clean Water Act of
1977 and other laws.
The President has decided not to assert jurisdiction over marine scientific
research in the U.S. EEZ. This is consistent with the U.S. interest in promoting
maximum freedom for such research. The Department of State will take steps to
facilitate access by U.S. scientists to foreign EEZ's under reasonable conditions.
The concept of the EEZ is already recognized in international law and the
President's Proclamation is consistent with existing international law. Over 50
countries have proclaimed some form of EEZ; some of these are consistent with
international law and others are not.
The concept of an EEZ was developed further in the recently concluded Law
of the Sea negotiations and is reflected in that Convention. The EEZ is a
maritime area in which the coastal state may exercise certain limited powers as
recognized under international law. The EEZ is not the same as the concept of
the territorial sea, and is beyond the territorial jurisdiction of any coastal state.
The President's proclamation confirms that, without prejudice to the rights
and jurisdiction of the United States in its EEZ, all nations will continue to enjoy
non-resource related freedoms of the high seas beyond the U.S. territorial sea
and within the U.S. EEZ. This means that the freedom of navigation and
overflight and other internationally lawful uses of the sea will remain the same
within the zone as they are beyond it.
The President has also established clear guidelines for United States oceans
policy by stating that the United States is prepared to accept and act in
accordance with international law as reflected in the results of the Law of the Sea
Convention that relate to traditional uses of the oceans, such as navigation and
overflight. The United States is willing to respect the maritime claims of others,
including economic zones, that are consistent with international law as reflected
in the Convention, if U.S. rights and freedoms in such areas under international
law are respected by the coastal state.
The President has not changed the breadth of the United States territorial sea.
It remains at 3 nautical miles. The United States will respect only those territorial
sea claims of others in excess of 3 nautical miles, to a maximum of 12 nautical
82 Commander's Handbook on the Law of Naval Operations
miles, which accord to the U.S. its full rights under international law in the
territorial sea.
Unimpeded commercial and military navigation and overflight are critical to
the national interest of the United States. The United States will continue to act
to ensure the retention of the necessary rights and freedoms.
By proclaiming today a U.S. EEZ and announcing other oceans policy
guidelines, the President has demonstrated his commitment to the protection
and promotion of U.S. maritime interests in a manner consistent with
international law.
END
Source: 22 International Legal Materials 461 (1983),
Legal Divisions of the Oceans and Airspace 83
ANNEX Al-8
Proclamation 5030 of March 10, 1983
Exclusive Economic Zone of the United States of America
48 F.R. 10605
By the President of the United States of America
A Proclamation
WHEREAS the Government of the United States of America desires to facilitate the
wise development and use of the oceans consistent with international law;
WHEREAS international law recognizes that, in a zone beyond its territory and adjacent
to its territorial sea, known as the Exclusive Economic Zone, a coastal State may assert
certain sovereign rights over natural resources and related jurisdiction; and
WHEREAS the establishment of an Exclusive Economic Zone by the United States will
advance the development of ocean resources and promote the protection of the marine
environment, while not affecting other lawful uses of the zone, including the freedoms
of navigation and overflight, by other States;
NOW, THEREFORE, I, RONALD REAGAN, by the authority vested in me as
President by the Constitution and laws of the United States of America, do hereby
proclaim the sovereign rights and jurisdiction of the United States of America and
confirm also the rights and freedoms of all States within an Exclusive Economic Zone, as
describe herein.
The Exclusive Economic Zone of the United States is a zone contiguous to the territorial
sea, including zones contiguous to the territorial sea of the United States, the
commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands
(to the extent consistent with the Covenant and the United Nations Trusteeship
Agreement), and United States overseas territories and possessions. The Exclusive
Economic Zone extends to a distance 200 nautical miles from the baseline from which
the breadth of the territorial sea is measured. In cases where the maritime boundary with
a neighboring State remains to be determined, the boundary of the Exclusive Economic
Zone shall be determined by the United States and other State concerned in accordance
with equitable principles.
Within the Exclusive Economic Zone, the United States has, to the extent permitted by
international law, (a) sovereign rights for the purpose of exploring, exploiting,
conserving and managing natural resources, both living and non-living, of the seabed
84 Commander's Handbook on the Law of Naval Operations
and subsoil and the superjacent waters and with regard to other activities for the
economic exploitation and exploration of the zone, such as the production of energy
from the water, currents and winds; and (b) jurisdiction with regard to the establishment
and use of artificial islands, and installations and structures having economic purposes,
and the protection and preservation of the marine environment.
This Proclamation does not change existing United States policies concerning the
continental shelf, marine mammals and fisheries, including highly migratory species of
tuna which are not subject to United States jurisdiction and require international
agreements for effective management.
The United States will exercise these sovereign rights and jurisdiction in accordance with
the rules of international law.
Without prejudice to the sovereign rights and jurisdiction of the United States, the
Exclusive Economic Zone remains an area beyond the territory and territorial sea of the
United States in which all States enjoy the high seas freedoms of navigation, overflight,
the laying of submarine cables and pipelines, and other internationally lawful uses of the
sea.
IN WITNESS WHEREOF, I have hereunto set my hand this tenth day of March, in the
year of our Lord nineteen hundred and eighty-three, and of the Independence of the
United States of America the two hundred and seventh.
RONALD REAGAN
Legal Divisions of the Oceans and Airspace 85
FIGURE Al-1
86 Commander's Handbook on the Law of Naval Operations
FIGURE Al-2
CONTINENTAL SHELF DELIMITATION
CONTINENTAL MARGIN
TERRITORIAL
SEA BASELINE
350 NAUTICAL MILES
2500 METER
ISOBATH
♦100 NAUTICAL
MILES
FOOT OF CONTINENTAL SLOPE
CONTINENTAL RISE
(SEE SEDIMENT TEST)
1*OFX
NAUTICAL MILES
FIGURE Al-3
DEPTH OF SEDIMENT TEST
60 NAUTICAL MILES OR LESS
Source: Roach & Smith
Legal Divisions of the Oceans and Airspace 87
TABLE Al-l
PARTIES TO THE 1982 UN CONVENTION ON
THE LAW OF THE SEA
As of 1 November 1997, the following nations had deposited their instruments of ratification or
accession:
Nations
Algeria
Angola
Antigua and Barbuda
Argentina
Australia
Bahamas
Bahrain
Barbados
Belize
Benin
Bosnia & Herzegovina
Brazil
Brunei Darussalam
Bulgaria
Cameroon
Cape Verde
Chile
China
Comoros
Congo
Cook Islands
Costa Rica
Croatia
Cuba
Cyprus
Czech Republic
Djibouti
Dominica
Egypt
Equatorial Guinea
Fiji
Finland
France
Gambia
Georgia
Germany
Ghana
Greece
Grenada
Guatemala
Guinea
Dates of Ratification /Accession /Succession
•11
June 1996
5
December 1990
2
February 1989
1
December 1995
5
October 1994
29
July 1983
30
May 1985
12
October 1993
13
August 1983
16
October 1997
12
January 1994
22
December 1988
5
November 1996
15
May 1996
19
November 1985
10
August 1987
25
August 1997
7
June 1996
21
June 1994
17
February 1989
15
February 1995
21
September 1992
5
April 1995
15
August 1984
12
December 1988
21
June 1996
8
October 1991
24
October 1991
26
August 1983
21
July 1997
10
December 1982
21
June 196
11
April 1996
22
May 1984
21
March 1996
14
October 1994
7
June 1983
21
July 1995
25
April 1991
11
February 1977
6
September 1985
88 Commander's Handbook on the Law of Naval Operations
TABLE Al-l (cont'd)
Guinea-Bissau
25
August 1986
Guyana
16
November 1993
Haiti
31
July 1995
Honduras
5
October 1993
Iceland
21
June 1985
India
29
June 1995
Indonesia
3
February 1986
Iraq
30
July 1985
Ireland
21
June 1996
Italy
13
January 1995
Ivory Coast
26
March 1984
Jamaica
21
March 1983
Japan
30
June 1996
Jordan
27
November 1995
Kenya
2
March 1989
Korea (Rep. of)
29
January 1996
Kuwait
2
May 1986
Lebanon
5
January 1995
Macedonia
19
August 1994
Malaysia
14
October 1996
Malta
20
May 1993
Marshall Islands
9
August 1991
Mauritania
17
July 1996
Mauritius
4
November 1994
Mexico
18
March 1983
Micronesia, Federated States of
29
April 1991
Monaco
20
March 1996
Mozambique
13
March 1997
Myanmar
21
May 1996
Namibia (U.N. Council for)
18
April 1983
Nauru
23
January 1996
Netherlands
28
June 1996
New Zealand
19
July 1996
Nigeria
14
August 1986
Norway
24
June 1996
Oman
17
August 1989
Pakistan
26
February 1997
Palau
30
September 1996
Panama
1
July 1996
Philippines
8
May 1984
Romania
17
December 1996
Russia
12
March 1997
St. Kitts and Nevis
7
January 1993
Saint Lucia
27
March 1985
Saint Vincent and the Grenadines
1
October 1993
Samoa
14
August 1995
Sao Tome and Principe
3
November 1987
Saudi Arabia
24
April 1996
Senegal
25
October 1984
Seychelles
16
September 1991
Sierra Leone
14
December 1994
Legal Divisions of the Oceans and Airspace 89
TABLE Al-l (cont'd)
Singapore
17
November 1994
Slovenia
16
June 1995
Solomon Islands
23
June 1997
Somalia
24
July 1989
Spain
15
January 1997
Sri Lanka
19
July 1994
Sudan
23
January 1985
Sweden
25
June 1996
Tanzania, United Republic of
30
September 1985
Togo
16
April 1985
Tonga
2
August 1995
Trinidad and Tobago
25
April 1986
Tunisia
24
April 1985
United Kingdom
25
July 1997
Uruguay
10
December 1992
Vietnam
25
July 1994
Yemen
21
July 1987
Yugoslavia
5
May 1986
Zimbabwe
24
February 1993
Land-Locked Nations
Dates of Ratification /Accession
Austria
Bolivia
Botswana
Mali
Mongolia
Paraguay
Slovakia
Uganda
Zambia
14
July 1995
28
April 1995
2
May 1990
16
July 1985
9
August 1996
26
September 1986
8
May 1996
9
November 1990
7
March 1983
Source: U.N. Office for Ocean Affairs and the Law of the Sea (the current listing of parties to
the 1982 LOS Convention can be found on the Internet at: http://www.un.org/Depts/Los/
90 Commander's Handbook on the Law of Naval Operations
TABLE Al-2
PARTIES TO THE 1958 GENEVA CONVENTIONS
Convention on the territorial sea and
contiguous zone. Done at Geneva April 29,
1958; entered into force September 10, 1964.
15 UST 1606; TIAS 5639; 516 UNTS 205.
States which are parties:
-I
Australia
Belgium
Belarus2
Bosnia-Herzegovina
Bulgaria
Cambodia
Croatia
Czech Rep.
Czechoslovakia '
•i
Denmark
Dominican Rep.
Fiji1
Finland
9 5
German Dem. Rep. ,D
Haiti
Hungary
Israel
Italy2
Jamaica
J i
Japan1
Kenya
Latvia
Lesotho
Lithuania
Madagascar
Malawi
Malaysia
Malta
Mauritius
Mexico^
Netherlands1'6
Nigeria
Portugal
Romania
Sierra Leone^
Slovak Rep.
Slovenia
Solomon Islands
South Africa
Spaim*
Swaziland
Switzerland
Thailand
Tonga
Trinidad & Tobago
Uganda
Ukraine
Union of Soviet Socialist Reps. »'
United Kingdom
United States1
Venezuela^
o
Yugoslavia
NOTES:
1
With a statement.
With reservation.
With a declaraton.
4 Czechoslovakia was succeeded by the Czech
Republic and the Slovak Republic on 31 Dec
1992.
•* The Federal Republic of Germany acceded
the German Democratic Republic on 3 Oct
1995.
Applicable to Netherlands Antilles and
Aruba.
' The Union of Soviet Socialist Republics
desolved on 25 Dec 1991.
° Yugoslavia has desolved.
Convention on the high seas. Done at Geneva
April 29, 1958; entered into force September
30, 1962.
13 UST 2312; TIAS 5200; 450 UNTS 82.
States which are parties:
Afghanistan
Albania1'2
Australia-3
Austria
Belarus1'2
Belgium
Bosnia-Herzegovina
Bulgaria1'2
Burkina Faso
Cambodia
Central African Rep.
Legal Divisions of the Oceans and Airspace 91
TABLE Al-2 (cont'd)
Costa Rica
Croatia
Cyprus
Czech Rep.
• 1 9 4
Czechoslovakia ' '^
Denmark
Dominican Rep.
Fiji3
Finland
IOC
German Dem. Rep. '^'^
Germany, Fed. Rep. '^
Guatemala
Haiti
1 9
Hungary '
Indonesia
Israel3
Italy
Jamaica
Japam
Kenya
Latvia
Lesotho
Madagascar^
Malawi
Malaysia
Mauritius
Mexico
Mongolia2
Nepal
Netherlands3'"
Nigeria
Poland1'2
■l
PortugaP
1 9
Romania '
Senegal
Sierra Leone
Slovak Rep. ,2
Slovenia
Solomon Islands
South Africa
Spain2
Swaziland
Switzerland
Thailand
Tonga
Trinidad & Tobago
Uganda
1 9
Ukraine '
1 7
Union of Soviet Socialist Reps. ''
United Kingdom^
United States3
Venezuela
o
Yugoslavia"
NOTES:
-i
1 With reservation.
With declaration.
J With a statement.
See note on Czechoslovakia under
Territorial Sea Convention.
~* See note on Germany under Territorial Sea
Convention.
Applicable to Netherlands Antilles and
Aruba.
->
See note on the Union of Soviet Socialist
Republics under Territorial Sea Convention.
Q
See note on Yugoslavia under Territorial Sea
Convention.
Convention on the continental shelf. Done at
Geneva April 29, 1958; entered into force June
10, 1964.
15 UST 471; TIAS 5578; 499 UNTS 311.
States which are parties:
Albania
Australia
Belarus
Bosnia-Herzegovina
Bulgaria
Cambodia
1 9
Canada '
China (Taiwan)^'4
Colombia
Costa Rica
Croatia
Cyprus
Czech Rep.
Czechoslovakia^
Denmark
Dominican Rep.
Fiji2
Finland
France '
92 Commander's Handbook on the Law of Naval Operations
TABLE Al-2 (cont'd)
German Dem. Rep.
Greece
Guatemala
Haiti
Israel
Jamaica
Kenya
Latvia
Lesotho
Madagascar
Malawi
Malaysia
Malta
Mauritius
Mexico
Netherlands2'7
New Zealand
Nigeria
Norway2
Poland
Portugal
Romania
Sierra Leone
Slovak Rep.
Solomon Is.
South Africa
Spain1,2
Swaziland
Sweden
Switzerland
Thailand2
Tonga
Trinidad & Tobago
Uganda
Ukraine
Q
Union of Soviet Socialist Reps.
United Kingdom^
United States2
Venezuela"5
O T Q
Yugoslavia '^'
NOTES:
1 With declaration.
2 With a statement.
J With reservation.
^ The United States does not recognize China
(Taiwan) as a sovereign State.
~* See note on Czechoslovakia under
Territorial Sea Convention.
" See note on Federal Republic of Germany
under Territorial Sea Convention.
Applicable to Netherlands Antilles and
Aruba.
Q
° See note on Union of Soviet Socialist
Republics under Territorial Sea Convention.
See note on Yugoslavia under Territorial
Sea Convention.
Convention on fishing and conservation of
living resources of the high seas. Done at
Geneva April 29, 1958; entered into force
March 20, 1966.
17 UST 138; TIAS 5969; 559 UNTS 285.
States which are parties:
Australia
Belgium
Bosnia-Herzegovina
Burkina Faso
Cambodia
Colombia
Denmark
Dominican Rep.
Fiji
Finland
France
Haiti
Jamaica
Kenya
Lesotho
Madagascar
Malawi
Malaysia
Mauritius
Mexico
Netherlands2
Nigeria
Portugal
Sierra Leone
Solomon Is.
South Africa
Spain^
Switzerland
Thailand
Legal Divisions of the Oceans and Airspace 93
TABLE Al-2 (cont'd)
Tonga NOTES:
Trinidad & Tobago With reservation.
Uganda Applicable to Netherlands Antilles and
United Kingdom^ Aruba.
United States4 ^ With a statement.
Venezuela With an understanding.
Yugoslavia*5 See note on Yugoslavia under Territorial
Sea Convention.
Source: U.S. Dep't of State, Treaties in Force, 1 Jan. 1995.
94 Commander's Handbook on the Law of Naval Operations
TABLE Al-3
STATES DELIMITING STRAIGHT BASELINES ALONG ALL OR
PART OF THEIR COASTS
(As of 1 November 1997)
[Absence of protest or assertion should not be inferred as acceptance
or rejection by the United States of the straight baseline claims.]
U.S. Assertion of Right
State
U.S. Protest
Albania
1989
Algeria
Angola
Argentina
1967
Australia
Bangladesh
1978
Barbados
Brazil
Bulgaria
Burma
1982
Cambodia
Cameroon
1963
Canada
Labrador & Newfoundland
1967
Nova Scotia, Vancouver &
Queen Charlotte Island
■\
Arctic
1986a
Chile
China
1996
Colombia
1988
Costa Rica
1989
Cote D'lvoire
Cuba
1983a
Cyprus
Denmark
Faroe Islands
1991
Greenland
Djibouti
1989
Dominica
Dominican Republic
Ecuador
1986
Egypt
Estonia
1991
Finland
France
French Departments and
Dependencies:
Fr. Guiana
Mayotte
St. Pierre & Miquelon
Fr. Southern & Antarctic Lands
Germany
Guinea
1964
Guinea-Bissau
Haiti
1973
Iceland
Iran
1994
Ireland
Italy
1986a
Japan
1996
1985!
1986
1996a
1988
1985a
1991
1992a
1987a
1997
1996
1981
1989.
1986
1994a
Legal Divisions of the Oceans and Airspace 95
TABLE Al-3 (cont'd)
State U.S. Protest U.S. Assertion of Right
Kenya
Korea, South
Lithuania
Madagascar
Malta 1981 a
Mauritania 1989 1981
Mauritius
Mexico 1969
Morocco
Mozambique
Netherlands
Norway
Norwegian Dependencies:
Jan Mayen
Svalbard
Oman ' 1991 1991a
Pakistan
Portugal 1986
Romania
Saudi Arabia
Senegal 1989
Somalia a
Soviet Union (now Russia) 1984a 1982
Spain
Sudan 1989
Sweden
Syria
Tanzania
Thailand 1995
Tunisia
Turkey
United Arab Emirates
United Kingdom
UK Dependencies:
Turks & Caicos
Falkland Islands
So. Georgia Islands
Venezuela 1956
Vietnam 198?a 1996
Yemen i
Yugoslavia
a Multiple protests or assertions.
D Serbia and Montenegro have asserted the formation of a joint independent state, but this
entity has not been recognized as a state by the U.S.
Sources: U.N. Office for Oceans and Law of the Sea, Baselines: National
Legislation With Illustrations (1989); U.S. Dep't of State, National Claims to
Jurisdiction, Limits in the Seas No. 36 (rev. 6, 1990); Roach & Smith at 44-8;
U.S. Dep't of State, Office of Ocean Affairs.
96 Commander's Handbook on the Law of Naval Operations
TABLE Al-4
CLAIMED HISTORIC BAYS
A. Bays directly claimed as historic
Hudson Bay (Canada)
Mississippi Sound (USA)
Long Island Soundb'c (USA)
Santo Domingo Bay (Dominican Republic)
Bay of Escocesa (Dominican Republic)
Gulf of Fonseca (El Salvador, Honduras)
Gulf of Panama ' (Panama)
Rio de la Plata (Argentina, Uruguay)
Gulf of Taranto (Italy)
Gulf of Sidra ' (Libya)
Gulf of Rigaa (USSR)
White Sea (USSR)
BayofCheshsk(USSR)
Bay of Bajdaratsk (USSR)
Bay of Penzhirisk (USSR)
Peter the Great Baya'd (USSR)
Gulf of Tonkin3 - western portion (Vietnam)
Gulf of Thailand - eastern portion
(Vietnam)
Bight of Bangkok (Thailand)
Gulf of Thailand ' (Cambodia)
Palk Bay (India, Sri Lanka)
Gulf of Manaar ' (India, Sri Lanka)
Ungwana Bay (Kenya)
Anxious Bay (Australia)
Rivoli Baya (Australia)
Encounter Bay (Australia)
Lacepede Bay (Australia)
B. Bays previously claimed as historic
Delaware BayD (USA)
Chesapeake Bay (USA)
Ocoa Bay (Dominican Republic)
Samana Bay (Dominican Republic)
Neyba Bay (Dominican Republic)
Bay d'Amatique (Guatemala)
Bay ofelAraba (Egypt)
Sea of Azovb (USSR)
Shark Bay (Australia)
Spencer Bay (Australia)
St. Vincent Gull (Australia)
Claim protested by the United States.
Qualifies as a juridical bay.
Per U.S. Supreme Court decision.
U.S. assertion of right against claim.
Note: None of these bays have been officially recognized by the United States as historic,
including those of the U.S. identified as such by the Supreme Court.
Sources: Dep't of State (L/OES) files; Atlas of the Straight Baselines (Scovazzi ed., 2d ed. 1989);
Roach & Smith, at 23-4.
Legal Divisions of the Oceans and Airspace 97
TABLE Al-5
TERRITORIAL SEA
(As of 1 November 1997)
Three nautical miles (4)
Denmark0'0'"
Jordana
Singapore1
Palau
Four nautical miles (1)
Norwaya
Six nautical miles (3)
Dominican Republic0'"
Greecea»e
Turkey*
Twelve nautical miles (122)
Albania^
Algeria3
Antigua and Barbudaa
Argentina3
Australia3.0'**
Bahamas3
Bahrain3
Bangladesh
Barbados3
Belgium0
Belize3.g
Brazil3
Brunei
Bulgaria3'0'"
Burma3
Cambodia0'"
Canada
Cape Verde3'"
Chile3
China3
Colombia
Comoros3'"
Cook Islands3
Costa Rica3»"
Cote d'lvoire3'"
Croatia3
Cuba3
Cyprus3' "
Djibouti3
Dominica3
Egypt3
Equatorial Guinea3
Estonia
Fijia,c,d,h
Finland3>D>°>d
France3'1
Gabon
Gambia, The3
Germany3'0'"
Ghana3
Grenada3
Guatemala3'"
Guinea3
Guinea-Bissau3
Guyana3
98 Commander's Handbook on the Law of Naval Operations
Haitia>c>d
Honduras2
Iceland2
Indiaa
Indonesia2'"'"
Iran
Iraq2
Ireland2
Israeli
Italya,c,d
Jamaica2-0'"
Japan2'0 >d>j
Kenya2»c»"
Kiribati
Korea, Norh
Korea, South2'*1
Kuwait2
Latvia
Lebanon2
Libya
Lithuania
Madagascar0-"
Malaysia2'0'"
Maldives
Malta2*0
Marshall Islands2
Mauritania2
TABLE Al-5 (cont'd)
Mauri tius2'0'^
Mexico2'0'"
Micronesia, Fed. States of2
Monaco2
Morocco
Mozambique2
Namibia2
Nauru2
Netherlands2'0^
New Zealand2'^
Niue
Oman2
Panama2
Pakistan2
Papua New Guinea2'"
Polandd
Portugal0 'd
Qatar
Romania2'0'"
Russia2*0'"
Saint Kitts and Nevis2
Saint Lucia2
Saint Vincent
and the Grenadines2
Samoa2
Sao Tome & Principe2'"
Saudi Arabia2
Senegal2'"
Seychelles2
Solomon Islands2'0'"'"
South Africa°'d
Spain2'0'"
Sri Lanka2
Sudan2
Suriname
Sweden2
Tanzania2
Thailand0- d
Tonga2'0'"
Trinidad & Tobago2'0'"'"
Tunisia2'0
Tuvalu
Ukraine
United Arab Emirates
United Kingdom2- °'d'm
United States0'^'"
Vanuatu"
Venezuela0'"
Vietnam2
Yemen2
Yugoslavia, Former2'0'"
Zaire2
Twenty nautical miles (1)
Angola2
Thirty nautical miles (2)
Nigeria2'0'"
Togo2
Thirty-five nautical miles (1)
Syria
Fifty nautical miles (1)
Cameroon2
Legal Divisions of the Oceans and Airspace 99
TABLE Al-5 (cont'd)
Two hundred nautical miles (10)
3. c d
Benin Liberia Sierra Leone ' '
Congo Nicaragua Somalia
Ecuador Peru Uruguay '
El Salvador
Rectangular claim (1)
Philippinesa'n
Notes
a Party to the 1982 Convention,
b Includes Greenland and the Faroe Islands.
c Party to the 1958 Territorial Sea Convention,
d Party to the 1958 High Seas Convention.
e Greece claims a 10-mile territorial air space.
* In the Aegean Sea. Turkey claims a 12-mile territorial sea offits coast in the Black Sea and the
Mediterranean.
g From the mouth of the Sarstoon River to Ranguana Caye, Belize's territorial sea is 3 miles;
according to Belize's Maritime Areas Act, 1992, the purpose of this limitation is "to provide a
framework for the negotiation of a definitive agreement on territorial differences with the
Republic of Guatemala."
n Maritime limits are measured from claimed "archipelagic baselines" which generally
connect the outermost points of outer islands or drying reefs.
1 Includes all French overseas departments and territories.
J Japan's territorial sea remains 3 miles in five "international straits", i.e., Soya (LaPerouse),
Tsugaru, Osumi, and the eastern and western channels of Tsushima.
k South Korea's territorial sea remains 3 miles in the Korea Strait.
* Includes Tokelau.
m Includes Bermuda, Cayman Islands, Falkland Islands, St. Helena, Ascension, Triston de
Cunha, Gough Island, Nightengale Island, Inaccessible Island, South Georgia, South Sandwich
Islands, and the Turks and Caicos Islands.
n Includes Puerto Rico, U.S. Virgin Islands, Navassa Island, American Samoa, Guam,
Johnston Atoll, Palmyra Atoll, Midway Island, Wake Island, Jarvis Island, Kingman Reef,
Howland Island, Baker Island, Northern Marianas.
° Overflight and navigation permitted beyond 12 n.m.
Source: U.S. Department of State, Office of Ocean Affairs; Roach & Smith.
100 Commander's Handbook on the Law of Naval Operations
TABLE Al-6
THE EXPANSION OF TERRITORIAL SEA CLAIMS
National Claims
1945
1958
1965
1974
1979
1983
1994
1997
3 NM
46
45
32
28
23
25
5
4
4-11 NM
12
19
24
14
7
5
5
4
12 NM
2
9
26
54
76
79
119
122
Over 12 NM
0
2
3
20
25
30
17
15
Number of
Coastal Nations
60
75
85
116
131
139
146
151*
* As of 1 November 1997, information was not available on the territorial sea claims of
Bosnia-Herzegovina, Eritrea, Georgia or the Federal Republic of Yugoslavia (Serbia &
Montenegro).
Sources: Office of Ocean Affairs, U.S. Department of State; DOD Maritime Claims Reference
Manual; Roach & Smith, at 94.
Legal Divisions of the Oceans and Airspace 101
TABLE Al-7
ARCHIPELAGOS
(As of 1 November 1997)
Nation
Status of Claim to be an
Archipelago
Reference
ANTIGUA AND
BARBUDA
Claimed archipelagic status.
Straight baselines drawn.
Ratified 1982 LOS
Convention.
MCRM, p. 2-9 (1997)
UN, Baselines: Legislation
pp. 13-15
BAHAMAS
Claimed archipelagic status.
Not drawn baselines.
Ratified 1982 LOS
Convention.
MCRM, p. 2-36 (1997)
CAPE VERDE
Claimed archipelagic status.
Archipelagic baselines drawn.
Ratified 1982 LOS
Convention.
MCRM, p. 2-78 (1997)
UN, Baselines: Legislation
pp. 99-100
COMOROS
Claimed archipelagic status.
Not drawn baselines.
Ratified 1982 LOS
Convention.
MCRM, p. 2-97 (1997)
FIJI
Claimed archipelagic status.
Drawn archipelagic baselines.
Ratified 1982 LOS
Convention.
Limits in the Seas
No. 101 (1984)
MCRM, p. 2-166 (1997)
GRENADA
Claimed archipelagic status.
Not drawn baselines.
Ratified 1982 LOS
Convention.
MCRM, p. 2-205 (1997)
INDONESIA
Claimed archipelagic status.
Drawn archipelagic baselines.
Ratified 1982 LOS
Convention.
Limits in the Seas
No. 35 (1971)
MCRM, p. 2-223 (1997)
102 Commander's Handbook on the Law of Naval Operations
TABLE Al-7 (cont'd)
Nation
Status of Claim to be an
Archipelago
Reference
JAMAICA
Claimed archipelagic status.
Drawn archipelagic baselines.
Ratified 1982 LOS
Convention.
MCRM, p. 2-255 (1997)
KIRIBATI
Claimed archipelagic status.
Not drawn baselines.
Not signed 1982 LOS
Convention.
MCRM, p. 2-273 (1997)
MARSHALL ISLANDS
Claimed archipelagic status.
Not drawn baselines.
Ratified 1982 LOS
Convention.
MCRM, p. 2-306 (1997)
PAPUA NEW
GUINEA
Delimited interim archipelagic
waters.
Ratified 1982 LOS
Convention.
MCRM, p. 2-363 (1997)
UN, Ocean Affairs & Law
PHILIPPINES
Claimed archipelagic status.
Drawn archipelagic baselines.
Ratified 1982 LOS
Convention.
MCRM, p. 2-369 (1997)
Limits in the Sea No. 33
(1971)
ST. VINCENT AND
THE GRENADINES
Claimed archipelagic status.
Not drawn archipelagic
baselines.
Ratified 1982 LOS Convention.
MCRM, p. 2-434 (1997)
SAO TOME AND
PRINCIPE
Claimed archipelagic status.
Drawn archipelagic baselines.
Ratified 1982 LOS Convention.
MCRM, p. 2-435 (1997)
UN, Baselines: Legislation
pp. 271-73;
Limits in the Seas No. 98
SOLOMON
ISLANDS
Claimed archipelagic status.
Established archipelagic
baselines.
Ratified 1982 LOS
Convention.
MCRM, p. 2-453 (1997)
UN, Baselines: Legislation
pp. 277-280
UN, Ocean Affairs & Law
of the Sea
Legal Divisions of the Oceans and Airspace 1 03
TABLE Al-7 (cont'd)
Nation
Status of Claim to be an
Archipelago
Reference
TRINIDAD
AND TOBAGO
Claimed archipelagic status.
Not drawn archipelagic
baselines.
Ratified 1982 LOS Convention.
LOS Bulletin No. 9
MCRM, p. 2-511 (1997)
TUVALU
Claimed archipelagic status.
Not drawn archipelagic
baselines.
Not ratified 1982 LOS
Convention.
UN Law of the Sea:
Practice of Archipelagic
States 124-130
VANUATU
Claimed archipelagic status.
Established archipelagic
baselines.
Not reatified 1982 LOS
Convention.
MCRM, p. 2-584 (1997)
UN, Baselines: Legislation
pp. 376-380
See also Roach & Smith, at 131-40.
104 Commander's Handbook on the Law of Naval Operations
TABLE Al-8
A. Multi-Island States Not Physically Qualified for Archipelagic Status
Mauritius
Samoa
Singapore
St. Lucia
Japan
New Zealand
United Kingdom
B. Dependent Territories Which, If Independent, Would Qualify for Archipelagic
Status
American Samoa (USA)
Anguilla (UK)
Azores (Portugal)
Dahlak Archipelago
(Ethiopia)
Canary Islands (Spain)
Faroe Islands (Denmark)
Falkland & South Georgia
Isl..a (UK)
Galapagos Islands (Ecuador)'
Guadeloupe (France)
Jan Mayen Island (Norway)
Madeiras Islands (Portugal)3
New Caledonia (France)
Svalbard (Norway)
Turks and Caicos Islands
(UK)
Straight baseline system illegally proclaimed about island group.
Sources: U.S. Department of State (L/OES); Alexander, at 91; Roach & Smith, at 131-40.
Legal Divisions of the Oceans and Airspace 1 05
TABLE Al-9
STATES WITH ACCEPTABLE WATER/LAND RATIOS
FOR CLAIMING ARCHIPELAGIC STATUS
Antigua & Barbuda*
The Bahamas
Cape Verde Islands
Comoro Islands
Fiji
Grenada
Indonesia
Jamaica
h
Maldives
Malta
Papua New Guinea
The Philippinesa'b
St. Vincent and the
Grenadines
Sao Tome & Principe
Seychelles
Solomon Islands
Tonga
Trinidad and Tobago
Vanuatu
Archipelagic status has been declared.
Baseline system does not conform to LOS Convention provisions.
Sources: U.S. Department of State (L/OES); Alexander, at 91; Roach & Smith, at 131-40.
106 Commander's Handbook on the Law of Naval Operations
TABLE Al-10
NATIONS CLAIMING A CONTIGUOUS ZONE
BEYOND THE TERRITORIAL SEA
(As of 1 November 1997)
CZ
nm
Antigua
24
Argentina
24
Australia
24
Bahrain
24
Bangladesh
18
Brazil
24
Bulgaria
24
Burma
24
Cambodia
24
Cape Verde
24
Chile
24
China
24
Denmark
4
Djibouti
24
Dominica
24
Dominican Republic
24
Egypt
24
Finland
6
France
24
Gabon
24
Gambia
18
Ghana
24
Haiti
24
Honduras
24
India
24
Iran
24
Iraq
24
Jamaica
24
Korea, Republic of
24
Madagascar
24
Malta
24
Marshall Islands
24
Mauritania
24
Mexico
24
Morocco
24
Namibia
24
New Zealand
24
Norway
10
Oman
24
Pakistan
24
Qatar
24
Romania
24
St. Kitts and Nevis
24
Saint Lucia
24
TS
nm
12
12
12
12
12
12
12
12
12
12
12
12
3
12
12
6
12
4
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
4
12
12
12
12
12
12
CZ
nm
St. Vincent & The Grenadines
24
Saudi Arabia
18
Senegal
24
Spain
24
Sri Lanka
24
Sudan
18
Syria
411
Trinidad and Tobago
24
Tunisia
24
Tuvalu
24
United Arab Emirates
24
Vanuatu
24
Venezuela
15
Vietnam
24
Yemen
24
Legal Divisions of the Oceans and Airspace 1 07
TABLE Al-10 (cont'd)
TS
nm
12
12
12
12
12
12
35
12
12
12
12
12
12
12
12
Total of Nations: 59
Claim protested by the United States.
Sources: U.S. Department of State (L/OES) files; Roach & Smith, at 103-4.
108 Commander's Handbook on the Law of Naval Operations
TABLE Al-ll
ILLEGAL SECURITY ZONES BEYOND THE TERRITORIAL SEA
(As of 1 November 1997)
[Absence of protest or assertion should not be inferred as acceptance
or rejection by the United States of the security zone claims.]
Nation
Breadth
U.S. Protest
U.S. Assertion
of Right
Bangladesh
18 nm
1982
1995a
Burma
24 nm
1982
1985a
Cambodia
24 nm
1992
China
24 nm
1992
Egypt
24 nm
Haiti
24 nm
1989
1986a
India
24 nm
Iran
24 nm
1994
1995
Korea, North
50 nm
1990
1990
Nicaragua
25 nm
1993
Pakistan
24 nm
1997
1986a
Saudi Arabia
18 nm
Sri Lanka
24 nm
1986
Sudan
18 nm
1989
1979a
Syria
41 nm
1989
1981a
United Arab Emirates
24 nm
Venezuela
15 nm
1989
Vietnam
24 nm
1982a
1982a
Yemen
24 nm
1982a
1979a
Multiple protests.
Source: U.S. Department of State (L/OES) files.
CHAPTER 2
International Status and Navigation of
Warships and Military Aircraft
2.1 STATUS OF WARSHIPS
2.1.1 Warship Defined. International law defines a warship as a ship belonging
to the armed forces of a nation bearing the external markings distinguishing the
character and nationality of such ships, under the command of an officer duly
commissioned by the government of that nation and whose name appears in the
appropriate service list of officers, and manned by a crew which is under regular
armed forces discipline. In the U.S. Navy, those ships designated "USS" are
"warships" as defined by international law. U.S. Coast Guard vessels designated
"USCGC" under the command of a commissioned officer are also "warships"
under international law.
1. High Seas Convention, art. 8(2); 1982 LOS Convention, art. 29; Hague Convention No.
VII Relating to the Conversion of Merchant Ships into Warships, The Hague, 18 October 1907, 2
Am. J. Int'lL. (Supp.) 133, Schindler& Toman 591, arts. 2-5; GPI, art. 43. The service list for U.S.
naval officers is the Register of Commissioned and Warrant Officers of the United States Navy and
Naval Reserve on the active duty list (NAVPERS 15018); the comparable list for the U.S. Coast
Guard is COMDTINST M1427.1 (series), Subj: Register of Officers.
2. U.S. Navy Regulations, 1990, art. 0406; SECNAVINST 5030.1 (series), Subj:
Classification of Naval Ships and Aircraft. It should be noted that neither the High Seas
Convention nor the LOS Convention requires that a ship be armed to be regarded as a warship.
Under the LOS Convention, however, a warship no longer need belong to the "naval" forces of a
nation, under the command of an officer whose name appears in the "Navy list" and manned by a
crew who are under regular "naval" discipline. The more general reference is now made to
"armed forces" to accommodate the integration of different branches of the armed forces in
various countries, the operation of seagoing craft by some armies and air forces, and the existence
of a coast guard as a separate unit of the armed forces of some nations. Oxman, The Regime of
Warships Under the United Nations Convention on the Law of the Sea, 24 Va. J. Int'l L. 813
(1984).
3. The U.S. Coast Guard is an armed force of the United States. 10 U.S. C. sec. 101 (1988), 14
U.S.C. sec. 1 (1988). U.S. Coast Guard cutters are distinguished by display of the national ensign
and the union jack. The Coast Guard ensign and Coast Guard commission pennant are displayed
whenever a USCG vessel takes active measures in connection with boarding, examining, seizing,
stopping, or heaving to a vessel for the purpose of enforcing the laws of the United States. U.S.
Coast Guard Regulations, 1985, sees. 10-2-1, 14-8-2 & 14-8-3; 14 U.S.C. sees. 2 & 638 (1988);
33 C.F.R. part 23 (distinctive markings for USCG vessels and aircraft).
110 Commander's Handbook on the Law of Naval Operations
2.1.2 International Status. A warship enjoys sovereign immunity from
interference by the authorities of nations other than the flag nation. Police
and port authorities may board a warship only with the permission of the
commanding officer. A warship cannot be required to consent to an
onboard search or inspection, nor may it be required to fly the flag of the
host nation. Although warships are required to comply with coastal nation
traffic control, sewage, health, and quarantine restrictions instituted in
conformance with the 1982 LOS Convention, a failure of compliance is subject
only to diplomatic complaint or to coastal nation orders to leave its territorial sea
immediately. Moreover, warships are immune from arrest and seizure, whether
in national or international waters, are exempt from foreign taxes and regulation,
and exercise exclusive control over all passengers and crew with regard to acts
performed on board.
2.1.2.1 Nuclear Powered Warships. Nuclear powered warships and
conventionally powered warships enjoy identical international legal status.
4. High Seas Convention, art. 8; 1982 LOS Convention, arts. 32, 58(2), 95 & 236. The rules
applicable in armed conflict are discussed in Part II, particularly Chapters 7 and 8. The historic basis
of this rule of international law is evidenced in 77ie Schooner Exchange v. McFaddon, 1 Cranch 116
(1812).
5. U.S. Navy Regulations, 1990, art. 0828. CNO Washington DC message 032330Z MAR
88, NAVOP 024/88, regarding foreign port visits, points out that the United States also will not
respond to host nation requests for specific information on individual crew members including
crew lists and health records, and will not undertake other requested actions upon which the
Commanding Officer's certification is definitive. See also Annex A2-1 (p. 155) for a more recent
summary of U.S. sovereign immunity policy regarding U.S. warships, auxiliaries and military
aircraft promulgated as ALPACFLT message 016/94, 020525Z Jun 94.
6. The U.S. Navy has provided, as a matter of policy and courtesy, for the display of a foreign
flag or ensign during certain ceremonies. See U.S. Navy Regulations, 1990, arts. 1276-78.
7. Territorial Sea Convention, art. 23; 1982 LOS Convention, art. 30; U.S. Navy
Regulations, 1990, art. 0832, 0859, & 0860. Quarantine is discussed in paragraph 3.2.3 (p. 216). As
stated in paragraph 2.3.2.1 (p. 116), force may also be used, where necessary, to prevent passage
which is not innocent.
8. Territorial Sea Convention, art. 22; High Seas Convention, art. 8(1); 1982 LOS
Convention, arts. 32, 95 & 236. While on board ship in foreign waters, the crew of a warship are
immune from local jurisdiction. Their status ashore is the subject of SECNAVINST 5820.4
(series), Subj: Status of Forces Policies, Procedure, and Information. Under status of forces
agreements, obligations may exist to assist in the arrest of crew members and the delivery of them to
foreign authorities. See AFP 110-20, chap. 2; U.S. Navy Regulations, 1990, art. 0822; and JAG
Manual, sec. 0609.
9. Cf. 1982 LOS Convention, arts. 21(1), 22(2) and 23, and U.S.-U.S.S.R. Uniform
Interpretation of Rules of International Law Governing Innocent Passage, Annex A2-2 (p. 161),
para. 2. For further information and guidance see OPNAVINST C3000. 5 (series), Subj: Operation
of Naval Nuclear Powered Ships (U). See also Roach & Smith, at 160-1.
The Department of State has noted that:
(continued...)
International Status and Navigation of Warships 111
2.1.2.2 Sunken Warships and Military Aircraft. Sunken warships and
military aircraft remain the property of the flag nation until title is formally
relinquished or abandoned, whether the cause of the sinking was through
accident or enemy action (unless the warship or aircraft was captured before it
9. (...continued)
[I]n recognition of the sovereign nature of warships, the United States permits their
[nuclear powered warships] entry into U.S. ports without special agreements or
safety assessments. Entry of such ships is predicated on the same basis as U.S. nuclear
powered warships' entry into foreign ports, namely, the provision of safety
assurances on the operation of the ships, assumption of absolute liability for a nuclear
accident resulting from the operation of the warship's reactor, and a demonstrated
record of safe operation of the ships involved. . . .
1979 Digest of U.S. Practice in International Law 1084 (1983). Exec. Order 11,918, ljune 1976, 3
C.F.R. part 120 (1976), 42 U.S.C. sec. 221 In (1988), was issued pursuant to 42 U.S.C. sec. 2211
to provide prompt, adequate, and effective compensation in the unlikely event of injury or damage
resulting from a nuclear incident involving the nuclear reactor of a U.S. warship. 1976 Digest of
U.S. Practice in International Law 441-42 (1977).
Although nuclear powered warships frequently pass through the Panama Canal, they have
transitted the Suez Canal only infrequently. The transit by USS ARKANSAS (CGN 41) on 3
November 1984 was the first (U.S. Naval Inst. Proc, May 1985, at 48); the transit by USS
ENTERPRISE (CVN 65) from the Indian Ocean to the Mediterranean via the Suez Canal on 28
April 1986 was the second (U.S. Naval Inst. Proc, May 1987, at 38). A request for ENTERPRISE
to return to the Pacific via the Suez Canal was denied by Egypt "because it is reviewing its new
rules governing passage. "Washington Post, 4July 1986, atA21. The Egyptian President noted in a
newspaper interview that safety of the waterway and residents on both banks had to be considered,
along with a possible surcharge for the passage of nuclear ships, as well as a guarantee for
compensation in case of nuclear accidents. USS EISENHOWER (CVN-69) on 7 August 1990
and USS THEODORE ROOSEVELT (CVN-71) on 14 January 1991 transited the Suez Canal
into the Red Sea in response to Iraq's attack on Kuwait on 2 August 1990. See paragraph 2.3.3.1,
note 36 (p. 124) for a discussion of canals.
With regard to nuclear armed warships and aircraft, U.S. policy is to neither confirm nor deny the
presence of nuclear weapons on board specific U.S. ships and aircraft. The firmness of the U.S.
policy is illustrated by the U.S reaction to the February 1985 decision of the Government of New
Zealand to deny permission for USS BUCHANAN (DDG 1 4) to enter Auckland Harbor since the
U.S. would not confirm the absence of nuclear weapons in BUCHANAN. The U.S. suspended all
military cooperation with New Zealand, including the ANZUS agreement, training, foreign
military sales, and intelligence exchange. Dep't St. Bull., Sep. 1986, at 87; Note, The
Incompatibility of ANZUS and a Nuclear-Free New Zealand, 26 Va. J. Int'l L. 455 (1986);
Woodlife, Port Visits by Nuclear Armed Naval Vessels: Recent State Practice, 35 Int'l & Comp.
L.Q. 730 (1986); Recent Developments, International Agreements: United States' Suspension of
Security Obligations Toward New Zealand, 28 Harv. Int'l L.J. 139 (1987); Chinkin, Suspension
of Treaty Relationship: The ANZUS Alliance, 7 UCLA Pac. Bas. LJ. 114 (1990). Cf. Flacco,
Whether to Confirm or Deny?, U.S. Naval Inst. Proc, Jan. 1990, at 52. See also Thies & Harris, An
Alliance Unravels: The United States and Anzus, Nav. War Coll. Rev., (Spring 1993), at 98. On
27 September 1991, President Bush ordered the removal of all tactical nuclear weapons from all
U.S. surface ships, tactical submarines and land-based naval aircraft bases, reserving the right to
return them during a crisis. The President also ordered the elimination of ground-launched tactical
nuclear weapons, stood down strategic bombers from alert and stood down all ICBM's scheduled
for deactivation under START. SeeN.Y. Times, 28 Sept. 1991, at Al; id. 29 Sept. 1991, sec. 1, at 1
& 10; Dep't State Dispatch, 30 Sep. 1991, at 715.
112 Commander's Handbook on the Law of Naval Operations
sank). As a matter of policy, the U.S. Government does not grant permission to
salvage sunken U.S. warships or military aircraft that contain the remains of
deceased service personnel or explosive material. Requests from foreign
countries to have their sunken warships or military aircraft, located in U.S.
1 n
national waters, similarly respected by salvors, are honored.
2.1.3 Auxiliaries. Auxiliaries are vessels, other than warships, that are owned by
or under the exclusive control of the armed forces. Because they are state owned
or operated and used for the time being only on government noncommercial
service, auxiliaries enjoy sovereign immunity. This means that, like warships,
10. 9 Whiteman 221 & 434; Deputy Legal Adviser, U.S. Dep't of State letter to Deputy
General Counsel, Maritime Administration, 30 December 1980, reprinted in 1980 Digest of U.S.
Practice in International Law 999-1006; Roach, France Concedes United States Has Title to CSS
ALABAMA, 85 Am. J. Int'l L. 381 (1991); 29 Jap. Ann. Int'l L. 114-15, 185-87 (1986); 30 id.
182-83 (1987). Under analogous reasoning, on 12 November 1976 Japan returned a MiG-25
Foxbat flown by LT Victor I. Belenko from Chuguyevka, U.S.S.R., to Hakodate Airport,
Hokkaido, Japan on 4 September 1976, albeit the Foxbat was returned disassembled. Barron, MiG
Pilot: The Final Escape of LT. Belenko 129, 180 (1980); 28 Jap. Ann. Int'l L. 142-43, 146-47
(1985). See paragraph 3.9 (p. 228) regarding attempts by other nations to recover U.S. government
property at sea, and paragraph 4.3.2 (p. 259) regarding the right of self-defense.
The procedures for abandonment of sunken U.S. warships and aircraft located outside the territory
of the United States are set forth in 40 U.S.C. sec. 512 (1987 Supp. V), and its implementing
regulation, 41 CFR sec. 101-45.9 (1989). Hatteras, Inc. v. Tlie U.S.S. Hatteras, her engines, etc., in
rem, and the United States of America, in personam, 1984 AMC 1094 (S.D. Tex. 1981) (failure to
follow disposal procedures renders null purported abandonment by the Secretary of the Navy),
affd w/o opinion 698 F.2d 1215 (5th Cir.), cert, denied 464 U.S. 815 (1983). Government and
military vessels are exempt from the International Convention for the Unification of Certain Rules
Relating to Salvage of Vessels at Sea, 23 September 1910, 37 Stat. 1658, T.I.A.S 576, art. 14; the
1989 International Convention on Salvage, art. 4; and 46 U.S.C. sec. 731 (1982). 46 U.S.C. App.
sec. 316(d) (1988) forbids foreign vessels from engaging in salvaging operations within the
territorial or inland waters of the United States, except pursuant to treaty or 46 U.S.C. App. sec.
725. However, the United States is subject to claims for salvage outside U.S. territorial waters.
Vernicos Shipping Co. v. United States, 223 F. Supp. 116 (S.D.N.Y. 1963), affd, 349 F.2d 465 (2d
Cir. 1965) (tugs prevented USS ALTAIR and USS MERCHANT from sinking in Piraeus harbor,
Greece); B. V. Bureau Wijsmuller v. United States, 487 F. Supp. 156 (S.D.N.Y. 1979), affd 633 F.2d
202 (2d Cir. 1980); 8 J. Mar. L. & Com. 433 (1977) (tugs pulled USS JULIUS A. FURER from a
sandbar off the Dutch coast). The Abandoned Shipwreck Act of 1987, 43 U.S.C. sec. 2101 etseq.
(1988), is not applicable to sunken warships which have not been affirmatively abandoned.
H. Rep. 100-514(1), at 3, 4 U.S.C.C.A.A.N. 367-68 (1988); H. Rep. 100-514(11), at 5, 4
U.S.C.C.A.A.N. 374 & 381.
Control over shipwrecks and sunken aircraft is distinguished from control over the environs
surrounding a wreck. When a sovereign immune vessel or aircraft lies within what is or becomes
the territorial sea or internal waters of a foreign nation, the flag State retains control over the
disposition of the vessel or aircraft, while the coastal nation controls access to its situs. As a practical
matter, such situations may be the subject of cooperative arrangements for the preservation or
exploration of the site. See, for example, the U.S. -French agreement concerning the CSS
ALABAMA, 3 Oct. 1989, 85 Am. J. Int'l L. 381 (1991).
See also Roach, Sunken Warships and Military Aircraft, 20 Marine Policy 351 (1996).
International Status and Navigation of Warships 113
they are immune from arrest and search, whether in national or international
waters. Like warships, they are exempt from foreign taxes and regulation, and
exercise exclusive control over all passengers and crew with respect to acts
performed on board.
U.S. auxiliaries include all vessels which comprise the Military Sealift
Command (MSC) Force. The MSC Force includes: (1) United States Naval
Ships (USNS) (i.e., U.S. owned vessels or those under bareboat charter, and
assigned to MSC); (2) the National Defense Reserve Fleet (NDRF) and the
Ready Reserve Force (RRF) (when activated and assigned to MSC); (3)
privately owned vessels under time charter assigned to the Afloat Prepositioned
Force (APF); and (4) those vessels chartered by MSC for a period of time or for a
12
specific voyage or voyages. "" The United States claims full rights of sovereign
immunity for all USNS, APF, NRDF and P^RF vessels. As a matter of policy,
however, the U.S. claims only freedom from arrest and taxation for those MSC
13
Force time and voyage charters not included in the APF.
11. Territorial Seas Convention, art. 22; High Seas Convention, art. 9; 1982 LOS
Convention, arts. 32, 96 & 236. The right of self-defense, explained in paragraph 4.3.2 (p. 259),
applies to auxiliaries as well as to warships. Auxiliaries used on commercial service do not enjoy
sovereign immunity. See Territorial Sea Convention, arts. 21-22; High Seas Convention, art. 9;
1982 LOS Convention, arts. 27-28, 32 & 236.
12. Commander Military Sealift Command Force Inventory, MSC Rep. 3110-4, Pub. 8 (8
Aug. 1988); Whitehurst, The U.S. Merchant Marine 113-27 (1983) (describing U.S.
government-owned shipping).
13. 1985 SECSTATE Washington DC message 317062, Subj: Status of MSC vessels. The
United States also claims sovereign immunity for the ships belonging to the National Oceanic and
Atmospheric Administration (NOAA) of the Department of Commerce. See Leonard, NOAA
and the Coast Guard Ark, U.S. Naval Inst. Proceedings, Dec. 1990, at 81.
Merchant Ships. In international law, a merchant ship is any vessel, including a fishing vessel, that is
not entitled to sovereign immunity, i.e., a vessel, whether privately or publicly owned or
controlled, which is not a warship and which is engaged in ordinary commercial activities. For an
excellent discussion on the distinction between commercial and non-commercial service, see
Knight & Chiu, The International Law of the Sea: Cases, Documents, and Readings at 364-69
(1991).
In International Waters (i.e., beyond the territorial sea). Merchant ships, save in exceptional
cases expressly provided for in international treaties, are subject to the flag nation's exclusive
jurisdiction in international waters. High Seas Convention, art. 6(1); 1982 LOS Convention, art.
92(1). Unless pursuant to hot pursuit (see paragraph 3.11.2.2.1 (p. 235)), merchant vessels in
international waters may not be boarded by foreign warship personnel without the master's or flag
nation consent, unless there is reasonable ground for suspecting that the ship is engaged in piracy,
unauthorized broadcasting, or the slave trade, that the ship is without nationality, or that, though
flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the
warship, High Seas Convention, art. 22; 1982 LOS Convention, art. 110. Warship's right of
approach and visit is discussed in paragraph 3.4 (p. 221). The belligerent right of visit and search is
discussed in paragraph 7.6 (p. 387). On flags of convenience, see 1982 LOS Convention, art. 91, and
Mertus, The Nationality of Ships and International Responsibility: The Reflagging of the Kuwaiti
Oil Tankers, 17 Den. J. Int'l L. & Pol'y 207 (1988).
(continued...)
114 Commander's Handbook on the Law of Naval Operations
U.S. Navy and U.S. Coast Guard vessels which, except for the lack of a
commissioned officer as commanding officer would be warships, also are auxiliaries.
2.2 STATUS OF MILITARY AIRCRAFT
2.2.1 Military Aircraft Defined. International law defines military aircraft to
include all aircraft operated by commissioned units of the armed forces of a nation
bearing the military markings of that nation, commanded by a member of the
armed forces, and manned by a crew subject to regular armed forces discipline.
2.2.2 International Status. Military aircraft are "state aircraft" within the
meaning of the Convention on International Civil Aviation of 1944 (the
"Chicago Convention"), and, like warships, enjoy sovereign immunity from
foreign search and inspection. Subject to the right of transit passage, archipelagic
sea lanes passage, and entry in distress (see paragraph 2.5.1), state aircraft may not
enter national airspace (see paragraph 1.8) or land in the sovereign territory of
another nation without its authorization. Foreign officials may not board the
13. (...continued)
The coastal nation may, in the exercise of its economic resource rights in the EEZ, take
such measures, including boarding, inspection, arrest, and judicial proceedings against foreign flag
merchant vessels as are necessary to ensure compliance with coastal nation rules and regulations
adopted in conformity with the Convention. 1982 LOS Convention, art. 73. Compare id., art. 220.
In the Territorial Sea. Foreign merchant vessels exercising the right of innocent passage
through the territorial sea have the duty to comply with coastal nation rules and regulations, as
discussed in paragraph 2.3.2.2 (p. 118). On board the transiting vessel, the coastal nation may
exercise its criminal jurisdiction, if a crime is committed on board the ship during its passage and:
a. the consequences of the crime extend to the coastal nation;
b. the crime is a kind which disturbs the peace of the coastal nation or the good order
of the territorial sea;
c. assistance of local authorities has been requested by the flag nation or the master of
the ship transiting the territorial sea; or
d. such measures are necessary for the suppression of illicit drug trafficking.
The above circumstances do not affect the broader right of the coastal nation to take any steps
authorized by its laws for the purpose of an arrest or investigation on board a foreign merchant ship
passing through the territorial sea after leaving that coastal nation's internal waters. Territorial Sea
Convention, art. 19; 1982 LOS Convention, art. 27. See Nordquist, Vol. II, at 237-43.
14. AFP 110-31, para. 2-4b, at 2-4 to 2-5. Commissioned units of U.S. military aircraft are
called squadrons and are established pursuant to the authority of the chief of service concerned. All
aircraft, like ships, assume the nationality of the nation in which they are registered, and are marked
with symbols or designations of their nationality. The markings of military aircraft should differ
from those of other state aircraft and of civil aircraft. AFP 110-31, para. 2-4d.
15. "State aircraft" include aircraft used in "military," "customs" and "police" service.
Chicago Convention, art. 3(b). Transit passage through international straits and archipelagic sea
lanes passage are discussed in paragraphs 2.3.3 (p. 121) and 2.3.4.1 (p. 127) respectively. See also
paragraph 2.3.2.5 (p. 120) regarding the right of assistance entry.
International Status and Navigation of Warships 115
aircraft without the consent of the aircraft commander. Should the aircraft
commander fail to certify compliance with local customs, immigration or
quarantine requirements, the aircraft may be directed to leave the territory and
national airspace of that nation immediately.
2.2.3 Military Contract Aircraft. Civilian owned and operated aircraft, the
full capacity of which has been contracted by the Air Mobility Command
(AMC) and used in the military service of the United States, qualify as "state
aircraft" if they are so designated by the United States. In those circumstances
1 7
they too enjoy sovereign immunity from foreign search and inspection. As a
matter of policy, however, the United States normally does not designate
AMC-charter aircraft as state aircraft.
2.3 NAVIGATION IN AND OVERFLIGHT OF NATIONAL WATERS
18
2.3.1 Internal Waters. As discussed in the preceding chapter, coastal
nations exercise the same jurisdiction and control over their internal waters and
superjacent airspace as they do over their land territory. Because most ports and
harbors are located landward of the baseline of the territorial sea, entering a
port ordinarily involves navigation in internal waters. Because entering
internal waters is legally equivalent to entering the land territory of another
nation, that nation's permission is required. To facilitate international
maritime commerce, many nations grant foreign merchant vessels standing
permission to enter internal waters, in the absence of notice to the contrary.
Warships and auxiliaries, and all aircraft, on the other hand, require specific and
advance entry permission, unless other bilateral or multilateral arrangements
have been concluded.
16. AFP 110-31, paras. 2-2a & 2-5a, at 2-3 & 2-5. CNO Washington DC message 032330Z
MAR 88, NAVOP 024/88, reinforced the U.S. position that detailed lists of personnel embarked
in military aircraft visiting foreign airfields may not be released to foreign governments. See also
Annex A2-1 (p. 155). See paragraph 2.3.1 (p. 115) regarding entry in distress. Quarantine is
discussed in paragraph 3.2.3 (p. 216). Self-defense is discussed in paragraph 4.3.2 (p. 259).
17. Taylor, Fed. B.J., Winter 1968, at 48. The Civil Reserve Air Fleet is distinguished from
military contract aircraft and discussed in Bristol, CRAF: Hawks in Doves Clothing? 20 A.F. L.
Rev. 48 (1978).
18. Territorial Sea Convention, art. 5, 1982 LOS Convention, art. 8.
19. For further information and guidance, see OPNAVINST 3128.3 (series), Subj: Visits by
U.S. Navy Ships to Foreign Countries, and OPNAVINST 3128.10 (series), Subj: Clearance
Procedures for Visits to United States Ports by Foreign Naval Vessels.
1 1 6 Commander's Handbook on the Law of Naval Operations
Exceptions to the rule of non-entry into internal waters without coastal nation
permission, whether specific or implied, arise when rendered necessary by force
majeure or by distress, or when straight baselines are established that have the
effect of enclosing, as internal waters, areas of the sea previously regarded as
territorial seas or high seas. In the latter event, international law provides that the
22
right of innocent passage (see paragraph 2.3.2.1) or that of transit passage in an
23
international strait (see paragraph 2.3.3.1) may be exercised by all nations in
those waters.
2.3.2 Territorial Seas
2.3.2.1 Innocent Passage. International law provides that ships (but not
aircraft) of all nations enjoy the right of innocent passage for the purpose of
continuous and expeditious traversing of the territorial sea or for proceeding to
or from internal waters. Innocent passage includes stopping and anchoring, but
only insofar as incidental to ordinary navigation, or as rendered necessary by force
majeure or by distress. Passage is innocent so long as it is not prejudicial to the
peace, good order, or security of the coastal nation. ' Military activities
considered to be prejudicial to the peace, good order, and security of the coastal
nation, and therefore inconsistent with innocent passage, are:
1. Any threat or use of force against the sovereignty, territorial integrity, or
political independence of the coastal nation
2. Any exercise or practice with weapons of any kind
3. The launching, landing, or taking on board of any aircraft or of any
military device
4. Intelligence collection activities detrimental to the security of that coastal
nation
20. Force majeure includes a ship forced into internal waters by distress or bad weather. The
distress must be caused by an uncontrollable event which creates an overwhelming or grave
necessity to enter port or risk loss of the vessel or her cargo. See paragraph 3.2, note 1 (p. 213). See
also Tlie New York, 3 Wheat. 59 (16 U.S. 59) (1818); see also O'Connell 853-58; Restatement
(Third) sec. 48. See paragraph 3.2.2 (p. 215) regarding safe harbor, and paragraph 4.4 (p. 265)
regarding interception of intruding aircraft.
21. 1982 LOS Convention, art. 8(2).
22. Id.
23. 1982 LOS Convention, art. 35(a).
24. Navigation by foreign vessels in the territorial sea is regulated by the regimes of innocent
passage, assistance entry, transit passage and archipelagic sea lanes passage which are discussed in
paragraphs 2.3.2.1 (p. 116), 2.3.2.5 (p. 120), 2.3.3.1 (p. 121), and 2.3.4.1 (p. 127), respectively.
25. Territorial Sea Convention, art. 14(2), (3) & (6); 1982 LOS Convention, art. 18. Stopping
or anchoring is also permitted to assist those in danger or distress.
26. What constitutes prejudice under art. 14(4) of the Territorial Sea Convention was left
undefined. The 1982 LOS Convention endeavors to eliminate the subjective interpretative
difficulties that have arisen concerning the innocent passage regime of the Territorial Sea
Convention.
International Status and Navigation of Warships 117
5. The carrying out of research or survey activities
6. Any act aimed at interfering with any system of communication of the
coastal nation
7. Any act of propaganda aimed at affecting the defense or security of the
coastal nation
8. The loading or unloading of any commodity, currency or person
contrary to the customs, fiscal, immigration or sanitary laws and regulations of
the coastal nation
9. Any act of willful and serious pollution contrary to the 1982 LOS
Convention
10. Any fishing activities
27
11. Any other activity not having a direct bearing on passage.
27. 1982 LOS Convention, art. 19. This is an "exhaustive list of activities that would render
passage not innocent." Joint Interpretation of the Rules of International Law Governing Innocent
Passage, attached to the Joint Statement by the United States of America and the Union of Soviet
Socialist Republics, Jackson Hole, Wyoming, 23 September 1989, Dep't St. Bull., Nov. 1989, at
25, 28 Int'l Leg. Mat'ls 1445 (1989), 84 Am. J. Int'l L. 239 (1990), Annex A2-2, para. 3 (p. 161).
On the other hand, 1 O'Connell 270 suggests the list may not be complete since the list does not
say "only" the listed actions are prejudicial. The Territorial Sea Convention contains no
comparable listing. See Stevenson & Oxman, The Third United Nations Conference on the Law
of the Sea: the 1975 Geneva Session, 69 Am. J. Int'l L. 763, 771-72 (1975); Froman, Uncharted
Waters: Non-innocent Passage of Warships in the Territorial Sea, 21 San Diego L. Rev. 625, 659
(1984); Grammig, The Yoronjima Submarine Incident of August 1980: A Soviet Violation of the
Law of the Sea, 22 Harv. Int'l L.J. 331, 340 (1981). See also Nordquist, Vol. II, at 164-178.
Since these activities must occur "in the territorial sea" (LOS Convention, art. 19(2)), any
determination of noninnocent passage by a transiting ship must be made on the basis of acts
committed while in the territorial sea. Thus cargo, destination, or purpose of the voyage can not be
used as a criterion in determining that passage is not innocent. Professor H.B. Robertson
testimony, House Merchant Marine & Fisheries Comm., 97th Cong., hearing on the status of the
law of the sea treaty negotiations, 27 July 1982, Ser. 97-29, at 413-14. Accord Oxman, paragraph
2.1.1, note 2 (p. 109), at 853 (possession of passive characteristics, such as the innate combat
capabilities of a warship, do not constitute "activity" within the meaning of this enumerated list).
The 1983 Soviet "Rules for Navigation and Sojourn of Foreign Warships in the Territorial Waters
and Internal Waters and Ports of the USSR," translation in 24 Int'l Leg. Mat'ls 1717 (1985), were
not entirely consistent with the relevant provisions of the 1982 LOS Convention. Butler,
Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, 81 Am. J.
Int'l L. 331 (1987). In particular, the Soviet claim to limit the innocent passage of warships to five
"routes ordinarily used for international navigation" was inconsistent with the Convention's terms
and negotiating history, and prior Soviet support therefor. Neubauer, The Right of Innocent
Passage for Warships in the Territorial Sea: A Response to the Soviet Union, Nav. War Coll.
Rev., Spring 1988, at 49; Franckx, Further Steps in the Clarification of the Soviet Position on the
Innocent Passage of Foreign Warships through its Territorial Waters, 19 Ga. J. Int'l & Comp. L.
535 (1990). That portion of the 1983 Rules was amended effective 23 September 1989 to conform
to the Uniform Interpretation, Annex A2-2 (p. 161). See paragraph 2.6, note 105 (p. 143)
regarding U.S. challenges to this and other excessive maritime claims.
Since coastal nations are competent to regulate fishing in their territorial sea, passage of foreign
fishing vessels engaged in activities that are in violation of those laws or regulations is not innocent.
Territorial Sea Convention, art. 14(5); 1982 LOS Convention, art. 21(l)(e).
1 1 8 Commander's Handbook on the Law of Naval Operations
Foreign ships, including warships, exercising the right of innocent passage are
required to comply with the laws and regulations enacted by the coastal nation in
conformity with established principles of international law and, in particular,
OCT
with such laws and regulations relating to the safety of navigation. Innocent
passage does not include a right of overflight.
The coastal nation may take affirmative actions in its territorial sea to prevent
passage that is not innocent, including, where necessary, the use of force. If a
foreign ship enters the territorial sea and engages in non-innocent activities, the
appropriate remedy, consistent with customary international law, is first to
inform the vessel of the reasons why the coastal nation questions the innocence
of the passage, and to provide the vessel a reasonable opportunity to clarify its
intentions or to correct its conduct in a reasonably short period of time.
2.3.2.2 Permitted Restrictions. For purposes such as resource conservation,
environmental protection, and navigational safety, a coastal nation may establish
certain restrictions upon the right of innocent passage of foreign vessels. Such
restrictions upon the right of innocent passage through the territorial sea are not
prohibited by international law, provided that they are reasonable and necessary;
do not have the practical effect of denying or impairing the right of innocent
passage; and do not discriminate in form or in fact against the ships of any nation or
those carrying cargoes to, from, or on behalf of any nation. The coastal nation may,
where navigational safety dictates, require foreign ships exercising the right of
innocent passage to utilize designated sea lanes and traffic separation schemes.
28. Territorial Sea Convention, arts. 16(1) & 17; 1982 LOS Convention, art. 21(1) & 21(4).
29. This concept of customary international law was incorporated into the U.S.-U.S.S.R.
Uniform Interpretation of the Rules of International Law Governing Innocent Passage. See Annex
A2-2, para. 4 (p. 161). See also Kinley, The Law of Self-Defense, Contemporary Naval Operations,
and the United Nations Convention on the Law of the Sea, 19 L. Sea Inst. Proc. 10, 12-15 (1987)
discussing coastal nation enforcement options in light of the U.N. Charter and the law of the sea,
particularly articles 25, 27, 28 and 30 of the 1982 LOS Convention.
30. 1982 LOS Convention, art. 21. Tankers, nuclear powered vessels, and ships carrying
dangerous or noxious substances may be required, for safety reasons, to utilize designated sea lanes.
1982 LOS Convention, art. 22(2). These controls may be exercised at any time.
Art. 21 of the 1982 LOS Convention empowers a coastal nation to adopt, with due publicity, laws
and regulations relating to innocent passage through the territorial sea in respect of all or any of the
following eight subject areas (which do not include security, but see art. 25(3) re temporary closure
of the territorial sea for security purposes):
1 . The safety of navigation and the regulation of marine traffic (including traffic separation
schemes).
2. The protection of navigational aids and facilities and other facilities or installations.
3. The protection of cables and pipelines.
4. The conservation of living resources of the sea.
(continued...)
International Status and Navigation of Warships 119
2.3.2.3 Temporary Suspension of Innocent Passage. A coastal nation may
suspend innocent passage temporarily in specified areas of its territorial sea when
it is essential for the protection of its security. Such a suspension must be
preceded by a published notice to the international community and may not
discriminate in form or in fact among foreign ships.
2.3.2.4 Warships and Innocent Passage. All warships, including submarines,
enjoy the right of innocent passage on an unimpeded and unannounced basis.
Submarines, however, are required to navigate on the surface and to show their
30. (...continued)
5. The prevention of infringement of the fisheries regulations of the coastal nation.
6. The preservation of the environment of the coastal nation and the prevention,
reduction and control of pollution thereof.
7. Marine scientific research and hydrographic surveys.
8. The prevention of infringement of the customs, fiscal, immigration or sanitary
regulations of the coastal nation.
This list is exhaustive and inclusive.
The coastal nation is required to give appropriate publicity to any dangers to navigation of which it
has knowledge within its territorial sea. Territorial Sea Convention, art. 15; 1982 LOS
Convention, art. 24. The U.S. Inland Rules are discussed in paragraph 2.7.2.1 (p. 146).
31. Territorial Sea Convention, art. 16(3); 1982 LOS Convention, art. 25(3). Authorization to
suspend innocent passage in the U.S. territorial sea during a national emergency is given to the
President in 50 U.S. C. sec. 191 (1988). Seealso33 C.F.R. part 127. "Security" includes suspending
innocent passage for weapons testing and exercises.
For instances in which innocent passage has been suspended, see 4 Whiteman 379-86.
The Conventions do not define how large an area of territorial sea may be temporarily closed off.
The 1982 LOS Convention does clearly limit the maximum breadth of the territorial sea to 12
nautical miles, and thus any nation claiming to close areas beyond 12 NM during such a suspension
would be in violation of international law. The Conventions do not explain what is meant by
"protection of its security" beyond the example of "weapons exercises" added in the 1982 LOS
Convention. Further, how long "temporarily" may be is not defined, but it clearly may not be
factually permanent. Alexander, 39-40; McDougal & Burke 592-93. The prohibition against
"discrimination in form or fact among foreign ships" clearly refers to discrimination among flag
nations, and, in the view of the United States, includes direct and indirect discrimination on the
basis of cargo, port of origin or destination, or means of propulsion. This position is strengthened
by the provisions of the LOS Convention explicitly dealing with nuclear powered and nuclear
capable ships (arts. 22(2) & 23).
See the last subparagraph of paragraph 2.3.3.1 (p. 126) regarding the regime of nonsuspendable
innocent passage in international straits.
32. Territorial Sea Convention, art. 14(1); 1982 LOS Convention, art. 17. Some nations view
the mere passage of foreign warships through their territorial sea per se prejudicial (e.g., because of
the military character of the vessel, the flag it is flying, its nuclear propulsion or weapons, or its
destination), and insist on prior notice and/or authorization before foreign warships transit their
territorial sea. See the list of such nations at Table A2-1 (p. 204). The United States' position,
(continued...)
120 Commander's Handbook on the Law of Naval Operations
flag when passing through foreign territorial seas. If a warship does not comply
with coastal nation regulations that conform to established principles of
international law and disregards a request for compliance which is made to it, the
coastal nation may require the warship immediately to leave the territorial sea in
which case the warship shall do so immediately.
2.3.2.5 Assistance Entry. All ship and aircraft commanders have an obligation
to assist those in danger of being lost at sea. See paragraph 3.2.1. This
long-recognized duty of mariners permits assistance entry into the territorial sea
by ships or, under certain circumstances, aircraft without permission of the
coastal nation to engage in bona fide efforts to render emergency assistance to
those in danger or distress at sea. This right applies only when the location of the
danger or distress is reasonably well known. It does not extend to entering the
32. (...continued)
consistent with the travaux preparatoires of the Territorial Sea Convention and the 1982 LOS
Convention, is that warships possess the same right of innocent surface passage as any other vessel in
the territorial sea, and that right cannot be conditioned on prior coastal nation notice or
authorization for passage. Oxman, paragraph 2.1, note 2 (p. 109), at 854; Froman, paragraph
2.3.2.1, note 27 (p. 117), at 625; Harlow, Legal Aspects of Claims to Jurisdiction in Coastal Waters,
JAG J., Dec. 1969-Jan. 1970, at 86; Walker, What is Innocent Passage?, Nav. War Coll. Rev., Jan.
1969, at 53 & 63, reprinted in 1 Lillich & Moore, at 365 & 375. The Soviet Union (now Russia) has
accepted the United States' position. See para. 2 of the Uniform Interpretation of the Rules of
International Law Governing Innocent Passage, Annex A2-2 (p. 161), and Franckx, Innocent
Passage ofWarships: Recent Developments in US-Soviet Relations, Marine Policy, Nov. 1990, at
484-90. For the earlier Soviet views, see Franckx, The U.S.S.R. Position on the Innocent Passage
ofWarships Through Foreign Territorial Waters, 18 J. Mar. L. & Com. 33 (1987), and Butler,
Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, 81 Am. J.
Int'l L. 331 (1987). Attempts to require prior authorization or notification of vessels in innocent
passage during the Third LOS Conference were focused on warships. All attempts were defeated:
3d session, Geneva 1975; 4th session, New York 1976; 9th session, New York 1980; 10th session
1981; 11th session, New York 1982; and 11th resumed session, Montego Bay 1982. The United
States' views on innocent passage in the territorial sea were set forth in its 8 March 1983 statement
in right of reply, 17 LOS Documents 243-44, Annex Al-1 (p. 27).
33. Territorial Sea Convention, art. 14(6); 1982 LOS Convention, art. 20. Unless the coastal
nation has consented to submerged passage, which none has done publicly to date (January 1997).
For discussions of the incident in which the Soviet Whiskey-class submarine U-137 grounded
outside the Swedish naval base of Karlskrona, after having entered Swedish territorial and internal
waters submerged without Swedish permission, see Sweden and the Soviet Submarine — A Diary
of Events, 112 Army Q. & Def. J. 6 (1982); Leitenberg, Soviet Submarine Operations in Swedish
Waters 1980-1986 (1987); Bildt, Sweden and the Soviet Submarines, Survival, Summer 1983, at
168; Lofgren, Soviet Submarines Against Sweden, Strategic Review, Winter 1984, at 36; Delupis,
Foreign Warships and Immunity for Espionage, 78 Am. J. Int'l L. 53 (1984); Amundsen, Soviet
Submarines in Scandinavian Waters, The Washington Quarterly, Summer 1985, at 111.
34. Territorial Sea Convention, art. 23; 1982 LOS Convention, art. 30. A warship required to
leave for such conduct shall comply with the request to leave the territorial sea immediately.
Uniform Interpretation of the Rules of International Law Governing Innocent Passage, para. 7,
Annex A2-2 (p. 161).
(continued...)
International Status and Navigation of Warships 1 21
territorial sea or superjacent airspace to conduct a search, which requires the
consent of the coastal nation.
2.3.3 International Straits
2.3.3.1 International Straits Overlapped by Territorial Seas. Straits used
for international navigation through the territorial sea between one part of the
high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone are subject to the legal regime of transit passage.
34. (...continued)
Under art. 23 of the 1982 LOS Convention, foreign nuclear-powered ships, and ships carrying
nuclear or other inherently dangerous or noxious substances, exercising the right of innocent
passage must "carry documents and observe special precautionary measures established for such
ships by international agreements," such as Chap. VIII of the 1974 International Convention for
the Safety of Life at Sea (SOLAS), 32 U.S.T. 275-77, 287-91, T.I.A.S. 9700 (nuclear passenger
ship and nuclear cargo ship safety certificates). These provisions of the 1974 SOLAS are specifically
not applicable to warships.
35. Art. 0925, U.S. Navy Regulations, 1990; COMDTINST 16100.3, Subj: Search and
Rescue in Foreign Territory and Territorial Seas, 3 December 1987; National Search and Rescue
Manual, vol. I, COMDTINST M16120.5A, para. 1222 (1991). The U.S. Department of State is
of the view that the right of assistance entry for aircraft is not as fully developed as that for vessels.
The efforts to render emergency assistance must be undertaken in good faith and not as a
subterfuge. See Statement of Policy by The Department of State, the Department of Defense, and
the United States Coast Guard Concerning Exercise of the Right of Assistance Entry, Annex A2-3
(p. 163). That Statement of Policy, extended to include assistance entry into archipelagic waters, is
implemented within the Department of Defense by CJCSI 2410. 01A, Subj: Guidance for the
Exercise of Right of Assistance Entry, of 23 April 1997. Annex A2-4 (p. 165).
36. Under the 1958 Territorial Sea Convention, international straits overlapped by territorial
seas were subject to a regime providing only nonsuspendable innocent surface passage. Territorial
Sea Convention, arts. 14 & 16(4). Part III of the 1982 LOS Convention establishes the regime of
transit passage for international straits overlapped by territorial seas. Transit passage also applies in
those straits where the high seas or exclusive economic zone corridor is not suitable for
international navigation. See 1982 LOS Convention, arts. 36 & 37. See also Nordquist, Vol. II at
279-396.
The United States' view regarding the status of the transit passage regime as existing law is reflected
in its 3 March 1983 Statement in Right of Reply, Annex Al-1 (p. 27), and Presidential
Proclamation 5928, Annex Al-6 (p. 78). The right of transit passage was fully recognized in art. 4
of the Treaty of Delimitation between Venezuela and the Netherlands, 21 March 1978, an English
translation of which is set out in Annex 2 to U.S. Dep't of State, Limits in the Seas No. 105,
Maritime Delimitations, and in Art. VI of the Agreement on the Delimitation of Maritime and
Submarine Areas between Venezuela and Trinidad and Tobago, 18 April 1990, reprinted in U.N.
LOS Bull., No. 19, Oct. 1991, at 24. Although the term "transit passage" was not used in the
statement in connection with extension of Great Britain's territorial sea to 12 NM (apparently to
preclude any implication of incorporation by reference of the entire straits regime, 37 Int'l &
Comp. L.Q. 415 (1988)), the "transit passage" regime was used in a Declaration issued by
France and Great Britain setting out the governing regime of navigation in the Dover Straits in
(continued...)
122 Commander's Handbook on the Law of Naval Operations
36. (...continued)
conjunction with signature on 2 November 1988 of an Agreement establishing a territorial sea
boundary in the Straits of Dover. U.K. White Paper, France No. 1, Cm. 557 (1989); FCO Press
Release No. 100, 2 Nov. 1988.
Straits used for international navigation: In the opinion of the International Court of Justice in the
Corfu Channel Case, 1949 I.C.J. 4, reprinted in U.S. Naval War College, International Law
Documents 1948-1949, "Blue Book" series, 1950, v. 46, at 108 (1950), the decisive criterion in
identifying international straits was not the volume of traffic flowing through the strait or its
relative importance to international navigation, but rather its geographic situation connecting, for
example, the two parts of the high seas, and the fact of its being "used for international navigation."
Id. at 142. This geographical approach is reflected in both the Territorial Sea Convention (art.
16(4)) and the 1982 LOS Convention (arts. 34(1), 36 & 45). The geographical definition appears to
contemplate a natural and not an artificially constructed canal, such as the Suez Canal. Efforts to
define "used for international navigation" with greater specificity have failed. Alexander, 153-54.
The United States holds that all straits susceptible of use for international navigation are included
within that definition. Grunawalt, United States Policy on International Straits, 18 Ocean Dev. &
Int'lLJ. 445, 456(1987).
Part III of the 1982 LOS Convention addresses five different kinds of straits used for international
navigation, each with a distinct legal regime:
1 . Straits connecting one part of the high seas/EEZ and another part of the high seas/EEZ
(art. 37, governed by transit passage, see paragraph 2.3.3.1 (p. 121)).
2. Straits connecting a part of the high seas/EEZ and the territorial sea of a foreign nation
(art. 45(l)(b), regulated by nonsuspendable innocent passage, see paragraph 2.3.3.1, last
subparagraph (p. 126)).
3. Straits connecting one part of the high seas/EEZ and another part of the high seas/EEZ
where the strait is formed by an island of a nation bordering the strait and its mainland, if there exists
seaward of the island a route through the high seas/EEZ of similar convenience with regard to
navigation and hydrographical characteristics (art. 38(1), regulated by nonsuspendable innocent
passage). (Table A2-2 (p. 204) lists 22 such straits, including the Strait of Messina (between the
Italian mainland and Sicily). Difficulties in defining "mainland" and alternate routes are discussed
in Alexander, 157-61.)
4. Straits regulated in whole or in part by international conventions (art. 35(c)). The 1982
LOS Convention does not alter the legal regime in straits regulated by long-standing international
conventions in force specifically relating to such straits. While there is no agreed complete list of
such straits, the Turkish Straits and the Strait of Magellan are generally included:
- the Turkish Bosphorus and Dardanelles Straits, governed by the Montreux
Convention of 20 July 1936, 173 L.N.T.S. 213, 31 Am. J. Int'l L. Supp. 4; and
- the Straits of Magellan, governed by article V of the Boundary Treaty
between Argentina and Chile, 23 July 1881, 82 Brit. Foreign & State Papers 1103,
159 Parry's T.S. 45 (Magellan Straits are neutralized forever, and free navigation is
assured to the flags of all nations), and article 10 of the Treaty of Peace and Friendship
between Argentina and Chile, 29 November 1984, 24 Int'l Leg. Mat'ls 11,13 (1985)
("the delimitation agreed upon herein, in no way affects the provisions of the
Boundary Treaty of 1881, according to which the Straits of Magellan are perpetually
neutralized and freedom of navigation is assured to ships of all flags under the terms of
Art.5° of said Treaty").
(continued...)
International Status and Navigation of Warships 123
36. (...continued)
Alexander 140-50 and Moore, The Regime of Straits and the Third United Nations Conference
on the Law of the Sea, 74 Am. J. Int'lL. 77, 111 (1980) also list in this category The Oresund and the
Belts, governed by the Treaty for the Redemption of the Sound Dues, Copenhagen, 14 March
1857, 116 Parry's T.S. 357, 47 Brit. Foreign & State Papers 24, granting free passage of the Sound
and Belts for all flags on 1 April 1857, and the U.S. -Danish Convention on Discontinuance of
Sound Dues, 1 1 April 1857, 1 1 Stat. 719, T.S. 67, 7 Miller 519, 7 Bevans 1 1 , guaranteeing "the free
and unencumbered navigation of American vessels, through the Sound and the Belts forever" {see
Figure A2-1 (p. 190)). Warships were never subject to payment of the so-called "Sound Dues,"
and thus it can be argued that no part of these "long-standing international conventions" are
applicable to them. 7 Miller 524-86; 2 Bruel, International Straits 41 (1947). The U.S. view is that
warships and State aircraft traverse the Oresund and the Belts based either under the conventional
right of "free and unencumbered navigation" or under the customary right of transit passage. The
result is the same: an international right of transit independent of coastal nation interference. The
Danish view is, however, to the contrary. Alexandersson, The Baltic Straits 82-86 & 89 (1982).
Both Denmark and Sweden (Oresund) maintain that warship and State aircraft transit in the Baltic
Straits are subject to coastal nation restrictions. They argue that the "longstanding international
conventions" apply, as "modified" by longstanding domestic legislation. The United States does
not agree. See Table A2-3 (p. 205) (listing the Bosporus, Dardanelles, Magellan, Oresund and Store
Baelt) and Alexander, 140-50.
Sweden and Finland claim Aland's Hav, the 16 NM wide entrance to the Gulf of Bothnia,
as an exception to the transit passage regime, since passage in that strait is regulated in part by the
Convention relating to the Non-fortification and Neutralization of the Aaland Islands, Geneva, 20
Oct. 1921, 9 L.N. T.S. 211, art. 5 ("The prohibition to send warships into [the waters of the Aaland
Islands] or to station them there shall not prejudice the freedom of innocent passage through the
territorial waters. Such passage shall continue to be governed by the international rules and usage in
force.") Declarations on signature of the 1982 LOS Convention, 10 December 1982. It should be
noted that under art. 4. II of the 1921 Convention, the territorial sea of the Aaland Islands extends
only "three marine miles" from the low-water line and in no case extends beyond the outer limits
of the straight line segments set out in art. 4.1 of that convention. The 1 92 1 Convention is therefore
not applicable to the remaining waters that form the international strait. The United States, which
is not a party to this Convention, has never recognized this strait as falling within art. 35(c) of the
LOS Convention. The parties to the 1921 Convention include Denmark, Finland, Germany,
Italy, Poland, Sweden, the United Kingdom, Estonia and Latvia.
It may be noted that free passage of the Strait of Gibraltar was agreed to in a series of
agreements between France, Spain and Great Britain in the early 20th Century. Article VII of the
Declaration between the United Kingdom and France respecting Egypt and Morocco, London, 8
April 1904, 195 Parry's T.S. 198, acceded to by Spain in the Declaration of Paris, 3 Oct. 1904, 196
Parry's T.S. 353; Declarations on Entente on Mediterranean Affairs, Paris, 16 May 1907, 204
Parry's T.S. 176 (France and Spain) and London, 16 May 1907, 204 Parry's T.S. 179 (United
Kingdom and Spain); and art. 6 of the France-Spain Convention concerning Morocco, Madrid, 27
Nov. 1912, 217 Parry's T.S. 288.
5. Straits through archipelagic waters governed by archipelagic sea lanes passage (art. 53(4)
(see paragraph 2.3.4.1 (p. 127)). For a listing of nations claiming the status of archipelagic States in
accordance with the 1982 LOS Convention see Table Al-7 (p. 101).
There are a number of straits connecting the high seas/EEZ with claimed historic waters (see Table
A2-4 (p. 206)). The validity of those claims is, at best, uncertain (see paragraph 1.3.3.1 (p. 11)). The
regime of passage through such straits is discussed in Alexander, at 155.
(continued...)
124 Commander's Handbook on the Law of Naval Operations
2.3.3.1 International Straits Overlapped by Territorial Seas. Straits used
for international navigation through the territorial sea between one part of the
high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone are subject to the legal regime of transit passage.
Transit passage exists throughout the entire strait and not just the area overlapped
by the territorial sea of the coastal nation(s).
36. (...continued)
Canals. Man-made canals used for international navigation by definition are not "straits used for
international navigation," and are generally controlled by agreement between the countries
concerned. They are open to the use of all vessels, although tolls may be imposed for their use.
They include:
- the Panama Canal, governed by the 1977 Panama Canal Treaty, 33 U.S.T.
1, T.I.A.S. 10,029, ("in time of peace and in time of war it shall remain secure and
open to peaceful transit by the vessels of all nations on terms of entire equality ....
Vessels of war and auxiliary vessels of all nations shall at all times be entitled to transit
the Canal, irrespective of their internal operation, means of propulsion, origin,
destination or armament");
- the Suez Canal, governed by the Convention respecting the Free
Navigation of the Suez Canal, Constantinople, 29 October 1888, 79 Brit. Foreign &
State Papers 18, 171 Parry's T.S. 241, 3 Am. J. Int'l L. Supp. 123 (1909) ("the Suez
maritime canal shall always be free and open, in time of war and in time of peace, to
every vessel of commerce or war, without distinction of flag"), reaffirmed by Egypt in
its Declaration on the Suez Canal, 24 April 1957, U.N. Doc. A/3576 (S/3818), and
U.N. Security Council Res. 118, S/3675, 13 Oct. 1956 ("There should be free and
open transit through the Canal without discrimination, overt or covert — this covers
both political and technical aspects"), Dep't St. Bull., 22 Oct. 1956, at 618; and
- the Kiel Canal, governed by art. 380 of the Treaty of Versailles, 28 June
1919, T.S. 4, 13 Am. J. Int'l L. 128, MaUoy 3329, 2 Bevans 43, 225 Parry's T.S. 188
("the Kiel Canal and its approaches shall be maintained free and open to the vessels of
commerce and of war of all nations at peace with Germany on terms of entire
equality"). The Federal Republic of Germany does not consider the Treaty of
Versailles to apply to the Kiel Canal. Alexander, at 181. See also The SS Wimbledon,
P.C.I.J., Ser. A, No. 1, 1923.
The passage of nuclear powered warships through the Suez Canal is discussed in paragraph 2.1.2.1,
note 9 (p. 110). Canals are further discussed in Alexander, at 174-81. Other canals may involve
internal waters only, such as the U.S. Intracoastal Waterway, and the Cape Cod and Erie Canals.
37. The great majority of strategically important straits, i.e., Gibraltar (Figure A2-2 (p. 191)),
Bab el Mandeb (Figure A2-3 (p. 192)), Hormuz (Figure A2-4 (p. 193)), and Malacca (Figure A2-5
(p. 194)) fall into this category. Transit passage regime also applies to those straits less than six miles
wide previously subject to the regime of nonsuspendable innocent passage under the Territorial
Sea Convention, e.g., Singapore and Sunda. See Table A2-5 (p. 207). It should be noted that transit
passage exists throughout the entire strait and not just the area overlapped by the territorial seas of
the littoral nation(s). Navy JAG message 061630Z JUN 88 (Annex A2-5, (p. 175)). See, e.g.,
Figure A2-4 (p. 193).
38. 1982 LOS Convention, arts. 38(2) & 39(l)(c); Moore, The Regime of Straits and The
Third United Nations Conference on the Law of the Sea, 74 Am. J. Int'l L. 77, 95-102 (1980); 1
O'Connell 331-37. Compare art. 53(3) which defines the parallel concept of archipelagic sea lanes
(continued...)
International Status and Navigation of Warships 1 25
Under international law, the ships and aircraft of all nations, including
warships, auxiliaries, and military aircraft, enjoy the right of unimpeded transit
37
passage through such straits and their approaches. Transit passage is defined as
the exercise of the freedoms of navigation and overflight solely for the purpose of
continuous and expeditious transit in the normal modes of operation utilized by
38
ships and aircraft for such passage. This means that submarines are free to transit
international straits submerged, since that is their normal mode of operation, and
that surface warships may transit in a manner consistent with sound navigational
practices and the security of the force, including formation steaming and the
launching and recovery of aircraft. All transiting ships and aircraft must
proceed without delay; must refrain from the threat or the use of force against the
sovereignty, territorial integrity, or political independence of nations bordering
the strait; and must otherwise refrain from any activities other than those incident
to their normal modes of continuous and expeditious transit.
Transit passage through international straits cannot be hampered or suspended
by the coastal nation for any purpose during peacetime. This principle of
international law also applies to transiting ships (including warships) of nations at
peace with the bordering coastal nation but involved in armed conflict with
another nation.
Coastal nations bordering international straits overlapped by territorial seas may
designate sea lanes and prescribe traffic separation schemes to promote navigational
safety. However, such sea lanes and separation schemes must be approved by the
38. (...continued)
passage as "the exercise . . . of the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit between one part of the high seas or
an exclusive economic zone and another part of the high seas or an exclusive economic zone." The
emphasized words do not appear in art. 38(2), but rather in the plural in art. 39(l)(c); art. 39 also
applies mutatis mutandis to archipelagic sea lanes passage.
39. Burke, Submerged Passage Through Straits: Interpretations of the Proposed Law of the Sea
Treaty Text, 52 Wash. L. Rev. 193 (1977); Robertson, Passage Through International Straits: A
Right Preserved in the Third United Nations Conference on the Law of the Sea, 20 Va. J. Int'l L.
801 (1980); Clove, Submarine Navigation in International Straits: A Legal Perspective, 39 Naval
L. Rev. 103 (1990). Bw£5eeReisman, The Regime of Straits and National Security: An Appraisal of
International Lawmaking, 74 Am. J. Int'l L. 48 (1980). See also Nordquist, Vol. II at 342.
40. 1982 LOS Convention, art. 39(1).
41. Id., at art. 44.
42. Warships and other targetable vessels of nations in armed conflict with the bordering
coastal nation may be attacked within that portion of the international strait overlapped by the
territorial sea of the belligerent coastal nation, as in all high seas or exclusive economic zone waters
that may exist within the strait itself.
43. 1982 LOS Convention, arts. 41(1) & 41(3). Traffic separation schemes have been adopted
for the Bab el Mandeb (Figure A2-3, (p. 192)), Hormuz (Figure A2-4, (p. 193)), Gibraltar (Figure
A2-2, p. (191)), and Malacca-Singapore straits (Figure A2-5, (p. 194)).
44. Merchant ships and government ships operated for commercial purposes must respect
properly designated sea lanes and traffic separation schemes. Warships, auxiliaries and government
ships operated for non-commercial purposes, e.g., sovereign immune vessels (see paragraph 2.1
(continued...)
126 Commander's Handbook on the Law of Naval Operations
competent international organization (the International Maritime Organization)
in accordance with generally accepted international standards. Ships in transit
must respect properly designated sea lanes and traffic separation schemes.
The regime of innocent passage (see paragraph 2.3.2.1), rather than transit
passage, applies in straits used for international navigation that connect a part of
the high seas or an exclusive economic zone with the territorial sea of a coastal
nation. There may be no suspension of innocent passage through such straits.
2.3.3.2 International Straits Not Completely Overlapped by Territorial
Seas. Ships and aircraft transiting through or above straits used for international
navigation which are not completely overlapped by territorial seas and through
which there is a high seas or exclusive economic zone corridor suitable for such
navigation, enjoy the high seas freedoms of navigation and overflight while
44. (...continued)
(p. 109)) are not legally required to comply with such sea lanes and traffic separation schemes while
in transit passage. Sovereign immune vessels must, however, exercise due regard for the safety of
navigation. Warships and auxiliaries may, and often do, voluntarily comply with IMO-approved
routing measures in international straits when practicable and compatible with the military
mission. When voluntarily using an IMO-approved traffic separation scheme, such vessels must
omply with applicable provisions of the 1 972 International Regulations for Preventing Collision at
Sea (COLREGS). (Annex A2-6 (p. 179)).
45. 1982 LOS Convention, art. 45. These so-called "dead-end" straits include Head Harbour
Passage, the Bahrain-Saudi Arabia Passage, and the Gulf of Honduras. Moore, The Regime of
Straits and the Third United Nations Conference on the Law of the Sea, 74 Am. J. Int'l L. 112
(1980). Alexander, 154-55 & 186 n.46, asserts the Strait of Juan de Fuca, which is capable of
shallow water passage, would belong in this list when the U.S. claims a 12 NM territorial sea, as it
now does.
As between Israel and Egypt at least, the Strait of Tiran (Figure A2-6, (p. 195)) is governed by the
Treaty of Peace between Egypt and Israel, 26 March 1979, 18 Int'l Leg. Mat'ls 362, art. V(2) ("the
Parties consider the Strait of Tiran and the Gulf of Aqaba to be international waterways open to all
nations for unimpeded and non-suspendable freedom of navigation and overflight"). See the list at
Table A2-4 (p. 206). Israel did not object to Part III of the LOS Convention "to the extent that
particular stipulations and understandings for a passage regime for specific straits, giving broader rights to
their users, are protected, as is the case for some of the straits in my country's region, or of interest to my
country." 17 LOS Official Records 84, para. 19. Egypt's declaration accompanying its ratification of
the LOS Convention on 26 August 1983 stated "[t]he provisions of the 1979 Peace Treaty Between
Egypt and Israel concerning passage though the Strait of Tiran and the Gulf of Aqaba come within the
framework of the general regime of waters forming straits referred to in part III of the Convention,
wherein it is stipulated that the general regime shall not affect the legal status of waters forming straits
and shall include certain obligations with regard to security and the maintenance of order in the State
bordering the strait." At a 29 January 1982 press conference, U.S. LOS Ambassador Malone said, "the
U.S. fully supports the continuing applicability and force of freedom of navigation and overflight for the
Strait of Tiran and the Gulf of Aqaba as set out in the Peace Treaty between Egypt and Israel. In the U.S.
view, the Treaty of Peace is fully compatible with the LOS Convention and will continue to prevail.
The conclusion of the LOS Convention will not affect these provisions in any way." 128 Cong. Rec.
S4089, 27 April 1982. Compare Lapidoth, The Strait of Tiran, the Gulf of Aqaba, and the 1979 Treaty of
Peace Between Egypt and Israel, 77 Am. J. Int'l L. 84 (1983) with El Baradei, The Egyptian-Israeli
Peace Treaty and Access to the Gulf of Aqaba: A New Legal Regime, 76 id. 532 (1982).
International Status and Navigation of Warships 1 27
operating in and over such a corridor. Accordingly, so long as they remain
beyond the territorial sea, all ships and aircraft of all nations have the
unencumbered right to navigate through and over such waters subject only to
due regard for the right of others to do so as well.
2.3.4 Archipelagic Waters
2.3.4.1 Archipelagic Sea Lanes Passage. All ships and aircraft, including
warships and military aircraft, enjoy the right of archipelagic sea lanes passage while
transiting through, under or over archipelagic waters and adjacent territorial seas
via all routes normally used for international navigation and overflight.
Archipelagic sea lanes passage is defined under international law as the exercise of
the freedom of navigation and overflight for the sole purpose of continuous,
expeditious and unobstructed transit through archipelagic waters, in the normal
modes of operations, by the ships and aircraft involved. ' This means that
submarines may transit while submerged and that surface warships may carry out
those activities normally undertaken during passage through such waters,
including activities necessary to their security, such as formation steaming and the
launching and recovery of aircraft. The right of archipelagic sea lanes passage is
substantially identical to the right of transit passage through international straits (see
paragraph 2.3.3.1). When archipelagic sea lanes are properly designated by the
archipelagic nation, the following additional rules apply:
1 . Each such designated sea lane is defined by a continuous axis line from the
point of entry into the territorial sea adjacent to the archipelagic waters, through
those archipelagic waters, to the point of exit from the territorial sea beyond.
2. Ships and aircraft engaged in archipelagic sea lanes passage through such
designated sea lanes are required to remain within 25 nautical miles either side of
the axis line and must approach no closer to the coast line than 10 percent of the
distance between the nearest islands. See Figure 2-1.
46. 1982 LOS Convention, art. 36. See Table A2-5 (p. 207). Table A2-6 (p. 209) lists other
straits less than 24 NM wide which could have a high seas route if the littoral nations continue to
claim less than a 12 NM territorial sea. While theoretically the regime of transit passage would
apply if the corridor is not suitable for passage, Alexander found no such strait. Alexander at
151-52. Compare, however, the suitability for the passage of deep draft tankers through the waters
in the vicinity of Abu Musa Island in the southern Persian Gulf.
47. 1982 LOS Convention, art. 53(3).
48. Nordquist, Vol. II at 342 (para. 39.10(e)) and 476-77 (paras. 53.9(c) & 53.9(d)).
49. 1982 LOS Convention, art. 54. See discussion at paragraph 2.3.4.2, note 56 (p. 128).
50. 1982 LOS Convention, art. 53(5).
51. Id.
52. Id., art 53(3). See also Nordquist, Vol. II at 476-77.
128 Commander's Handbook on the Law of Naval Operations
This right of archipelagic sea lanes passage, through designated sea lanes as
well as through all normal routes, cannot be hampered or suspended by the
archipelagic nation for any purpose.
2.3.4.2 Innocent Passage. Outside of archipelagic sea lanes, all ships,
including warships, enjoy the more limited right of innocent passage throughout
archipelagic waters just as they do in the territorial sea. Submarines must
remain on the surface and fly their national flag. Any threat or use of force
directed against the sovereignty, territorial integrity, or political independence of
the archipelagic nation is prohibited. Launching and recovery of aircraft are not
allowed, nor may weapons exercises be conducted. The archipelagic nation may
promulgate and enforce reasonable restrictions on the right of innocent passage
through its archipelagic waters for reasons of navigational safety and for customs,
fiscal, immigration, fishing, pollution, and sanitary purposes. Innocent passage
may be suspended temporarily by the archipelagic nation in specified areas of its
archipelagic waters when essential for the protection of its security, but it must
first promulgate notice of its intentions to do so and must apply the suspension in
a nondiscriminating manner. There is no right of overflight through airspace
over archipelagic waters outside of archipelagic sea lanes.
53. 1982 LOS Convention, art. 52(1).
54. Id., arts. 52(1), 53 & 21.
55. Id., art. 52(2).
56. Most of the essential elements of the transit passage regime in non-archipelagic
international straits (paragraph 2.3.4.1 (p. 127)) apply in straits forming part of an archipelagic sea
lane. 1982 LOS Convention, art. 54, applying mutatis mutandis art. 39 (duties of ships and aircraft
during transit passage), 40 (research and survey activities), and 42 and 44 (laws, regulations and
duties of the bordering State relating to passage). This right exists regardless of whether the strait
connects high seas/EEZ with archipelagic waters (e.g., Lombok Strait) or connects two areas of
archipelagic waters with one another (e.g., Wetar Strait). Alexander, 155-56. Although
theoretically only the regime of innocent passage exists in straits within archipelagic waters not part
of an archipelagic sea lane (paragraph 2.3.4.2 (p. 128); 1982 LOS Convention, art. 52(1);
Alexander, 156), since archipelagic sea lanes "shall include all normal passage routes . . . and all
normal navigational channels . . ." (art. 53(4)), the regime of archipelagic sea lanes passage
effectively applies to these straits as well.
If a nation meets all the criteria but has not claimed archipelagic status, then high seas freedoms exist
in all maritime areas outside the territorial seas of the individual islands; transit passage applies in
straits susceptible of use for international navigation; and innocent passage applies in other areas of
the territorial sea. See also U.S. Statement in Right of Reply, Annex Al-1 (p. 27).
International Status and Navigation of Warships 1 29
FIGURE 2-1. A Designated Archipelagic Sea Lane
50 NM ARCHIPELAGIC SEA LANE
DISTANCE BETWEEN ISLANDS A AND BIS 40 NM, SHIPS AND AIR-
CRAFT MUST APPROACH NO CLOSER THAN 4 NM TO EITHER
ISLAND (10 PERCENT OF DISTANCE BETWEEN ISLANDS).
2.4 NAVIGATION IN AND OVERFLIGHT OF
INTERNATIONAL WATERS
2.4.1 Contiguous Zones. The contiguous zone is comprised of international
waters in and over which the ships and aircraft, including warships and military
aircraft, of all nations enjoy the high seas freedoms of navigation and overflight as
described in paragraph 2.4.3. Although the coastal nation may exercise in those
waters the control necessary to prevent and punish infringement of its customs,
fiscal, immigration, and sanitary laws that may occur within its territory
(including its territorial sea), it cannot otherwise interfere with international
navigation and overflight in and above the contiguous zone.
2.4.2 Exclusive Economic Zones. The coastal nation's jurisdiction and
control over the exclusive economic zone are limited to matters concerning the
exploration, exploitation, management, and conservation of the resources of
those international waters. The coastal nation may also exercise in the zone
jurisdiction over the establishment and use of artificial islands, installations, and
structures having economic purposes; over marine scientific research (with
reasonable limitations); and over some aspects of marine environmental
57. Territorial Sea Convention, art. 24; 1982 LOS Convention, art. 33. See paragraph 2.4.4
(p. 132) regarding security zones.
130 Commander's Handbook on the Law of Naval Operations
protection. Accordingly, the coastal nation cannot unduly restrict or impede the
exercise of the freedoms of navigation in and overflight of the exclusive
economic zone. Since all ships and aircraft, including warships and military
aircraft, enjoy the high seas freedoms of navigation and overflight and other
internationally lawful uses of the sea related to those freedoms, in and over those
waters, the existence of an exclusive economic zone in an area of naval
operations need not, of itself, be of operational concern to the naval
commander.
2.4.2.1 Marine Scientific Research. Coastal nations may regulate marine
scientific research conducted in marine areas under their jurisdiction. This includes
the EEZ and the continental shelf. Marine scientific research includes activities
undertaken in the ocean and coastal waters to expand knowledge of the marine
environment for peaceful purposes, and includes: oceanography, marine biology,
geological/geophysical scientific surveying, as well as other activities with a
scientific purpose. The United States does not require that other nations obtain its
consent prior to conducting marine scientific research in the U.S. EEZ.
2.4.2.2 Hydrographic Surveys and Military Surveys. Although coastal
nation consent must be obtained in order to conduct marine scientific research in
its exclusive economic zone, the coastal nation cannot regulate hydrographic
surveys or military surveys conducted beyond its territorial sea, nor can it require
notification of such activities.
A hydrographic survey is the obtaining of information in coastal or relatively
shallow areas for the purpose of making navigational charts and similar products to
support safety of navigation. A hydrographic survey may include measurements of
the depth of water, configuration and nature of the natural bottom, direction and
force of currents, heights and times of tides, and hazards to navigation.
58. 1982 LOS Convention, arts. 56, 58 & 60; see paragraph 1.5.2, note 49 (p. 21). A few
nations explicitly claim the right to regulate the navigation of foreign vessels in their EEZ beyond
that authorized by customary law reflected in the LOS Convention: Brazil, Guyana, India,
Maldives, Mauritius, Nigeria, Pakistan and the Seychelles. See Tables A2-7 (p. 210) and A2-8
(p. 211); Attard, The Exclusive Economic Zone in International Law 51-52, 81 & 85-86 (1987);
Rose, Naval Activity in the EEZ— Troubled Waters Ahead?, 39 Naval L. Rev. 67 (1990). The
United States rejects those claims. U.S. Statement in Right of Reply, Annex Al-1 (p. 27), and
1983 Oceans Policy Statement, Annex A 1-3 (p. 43).
59. 1982 LOS Convention art. 246.
60. See Annex Al-7 (p. 80).
61. See Commentary accompanying Letter of Transmittal, Oct. 7, 1994, Senate Treaty Doc.
103-39 (Annex Al-2 (p. 32)), at 80. The Commentary may be found in U.S. State Department,
Dispatch, Vol. 6, Supp. No. 1 (Feb. 1995).
62. Roach, Research and Surveys in Coastal Waters, Vol. 20 Center for Oceans Law and
Policy, UVA, Annual Seminar (1996), at 187.
International Status and Navigation of Warships 131
A military survey is the collecting of marine data for military purposes. A
military survey may include collection of oceanographic, marine geological,
geophysical, chemical, biological, acoustic, and related data.
2.4.3 High Seas. All ships and aircraft, including warships and military aircraft,
enjoy complete freedom of movement and operation on and over the high seas.
For warships, this includes task force maneuvering, flight operations, military
exercises, surveillance, intelligence gathering activities, and ordnance testing and
firing. All nations also enjoy the right to lay submarine cables and pipelines on the
bed of the high seas as well as on the continental shelf beyond the territorial sea,
with coastal nation approval for the course of pipelines on the continental
shelf. All of these activities must be conducted with due regard for the rights of
other nations and the safe conduct and operation of other ships and aircraft.
63. Id., at 187-88. See also Roach, Marine Scientific Research and the New Law of the Sea, 27
Ocean Dev. & Int'l L. 59 (1996) at 61.
64. Submarine cables include telegraph, telephone and high-voltage power cables.
Commentary of the International Law Commission on draft arts. 27 and 35 on the law of the sea,
U.N. GAOR Supp. 9, U.N. Doc. A/3159, II Int'l L. Comm. Y.B. 278 & 281 (1956). See also
Commentary accompanying Letters of Transmittal and Submittal in U.S. Department of State,
Dispatch, Vol. 6, Supp. No. 1 (Feb. 1995) at 19. All nations enjoy the right to lay submarine cables
and pipelines on the bed of the high seas as well as on their own and other nations' continental
shelves. Consequently, SOSUS arrays can be lawfully laid on other nations' continental shelves
beyond the territorial sea without notice or approval. 1982 LOS Convention, art. 79.
Willfully or with culpable negligence damaging a submarine cable or pipeline, except in legitimate
life-saving or ship-saving situations, is a punishable offense under the laws of most nations. In
addition, provisions exist for compensation from a cable owner for an anchor, net or other fishing
gear sacrificed in order to avoid injuring the cable. Warships may approach and visit a vessel, other
than another warship, suspected of causing damage to submarine cables in investigation of such
incidents. Convention on the Protection of Submarine Cables, Paris, 14 March 1884, 24 Stat. 989,
T.S. No. 380, as amended, 25 Stat. 1414, T.S. Nos. 380-1, 380-2, 380-3, reproduced in AFP 1 10-20 at
36-1; Franklin, The Law of the Sea: Some Recent Developments 157-178 (U.S. Naval War
College, International Law Studies 1959-1960, v. 53, 1961) (discussing the boarding of the Soviet
trawler NOVOROSSIISK by USS ROY O. HALE on 26 February 1959, 40 Dep't St. Bull. 555-58
(1959)). The 1884 Submarine Cables Convention is implemented in 47 U.S.C. sec. 21 etseq. (1982).
65. High Seas Convention, art. 2; Continental Shelf Convention, art. 4; 1982 LOS
Convention, arts. 79 & 87; Chicago Convention, art. 3(d) (military aircraft). The exercise of any of
these freedoms is subject to the conditions that they be taken with "reasonable regard", according
to the High Seas Convention, or "due regard", according to the 1982 LOS Convention, for the
interests of other nations in light of all relevant circumstances. The "reasonable regard" or "due
regard" standards are one and the same and require any using nation to be cognizant of the interests
of others in using a high seas area, and to abstain from nonessential, exclusive uses which
substantially interfere with the exercise of other nations' high seas freedoms. Any attempt by a
nation to impose its sovereignty on the high seas is prohibited as that ocean space is designated open
to use by all nations. High Seas Convention, art. 2; 1982 LOS Convention, arts. 87 & 89. See
MacChesney 610-29. Section 101(c) of the Deep Seabed and Hard Minerals Resources Act, 30
U.S.C. sec. 1411(c) (1988), requires U.S. citizen licensees to exercise their rights on the high seas
with reasonable regard for the interests of other States in their exercise of the freedom of the high
(continued...)
132 Commander's Handbook on the Law of Naval Operations
2.4.3.1 Warning Areas. Any nation may declare a temporary warning area in
international waters and airspace to advise other nations of the conduct of
activities that, although lawful, are hazardous to navigation and/or overflight.
The U.S. and other nations routinely declare such areas for missile testing,
gunnery exercises, space vehicle recovery operations, and other purposes
entailing some danger to other lawful uses of the high seas by others. Notice of
the establishment of such areas must be promulgated in advance, usually in the
form of a Notice to Mariners (NOTMAR) and/or a Notice to Airmen
(NOTAM). Ships and aircraft of other nations are not required to remain outside
a declared warning area, but are obliged to refrain from interfering with activities
therein. Consequently, ships and aircraft of one nation may operate in a warning
area within international waters and airspace declared by another nation, collect
intelligence and observe the activities involved, subject to the requirement of
due regard for the rights of the declaring nation to use international waters and
airspace for such lawful purposes.
2.4.4 Declared Security and Defense Zones. International law does not
recognize the right of any nation to restrict the navigation and overflight of
65. (...continued)
seas. Section 111, codified at 30 U.S.C. sec. 1421, requires licensees to act in a manner that does
not unreasonably interfere with interests of other States in their exercise of freedom of the high
seas, as recognized under general principles of international law.
A legislative history of the articles of the 1982 LOS Convention regarding navigation on the high
seas (arts. 87, 89-94 and 96-98) may be found in U.N. Office for Oceans Affairs and the Law of the
Sea, The Law of the Sea: Navigation on the High Seas, U.N. Sales No. E.89.V.2 (1989). See also
Commentary, paragraph 2.4.2.2, note 61 (p. 130) at 17-19; Nordquist, Vol. Ill at 72-86.
66. Franklin, paragraph 2.4.3, note 64 (p. 131), at 178-91; SECNAVINST 2110.3 (series),
Subj: Special Warnings to Mariners; OPNAVINST 3721.20 (series), Subj: The U.S. Military
Notice to Airmen (NOTAM) System.
For example, in response to the terrorist attacks on U.S. personnel in Lebanon on 18 April and 23
October 1983, involving the use of extraordinarily powerful gas-enhanced explosive devices light
enough to be carried in cars and trucks, single engine private aircraft, or small high-speed boats,
U.S. forces in the Mediterranean off Lebanon and in the Persian Gulf took a series of defensive
measures designed to warn unidentified ships and aircraft whose intentions were unknown from
closing within lethal range of suicide attack. Warnings were promulgated through NOTMARS
and NOTAMS requesting unidentified contacts to communicate on the appropriate international
distress frequency and reflected NCA authorization of commanders to take the necessary and
reasonable steps to prevent terrorist attacks on U.S. forces. See 78 Am. J. Int'l L. 884 (1984).
The effectiveness of such attacks was firmly established by the 23 October 1983 levelling of the
USMC BLT 1/8 Headquarters building at Beirut International Airport by a truck bomb
generating the explosive power of at least 12,000 pounds effective yield equivalent of TNT.
Report of the DOD Commission on Beirut International Airport Terrorist Act, October 23,1 983
(Long Commission Report), 20 Dec. 1983, at 86; Frank, U.S. Marines in Lebanon 1982-1984, at
152 (1987); Navy Times, 15 Dec. 1986, at 11.
International Status and Navigation of Warships 133
foreign warships and military aircraft beyond its territorial sea. Although several
coastal nations have asserted claims that purport to prohibit warships and military
aircraft from operating in so-called security zones extending beyond the
territorial sea, such claims have no basis in international law in time of peace, and
are not recognized by the United States.
The Charter of the United Nations and general principles of international law
recognize that a nation may exercise measures of individual and collective
self-defense against an armed attack or imminent threat of armed attack. Those
measures may include the establishment of "defensive sea areas" or "maritime
control areas" in which the threatened nation seeks to enforce some degree of
control over foreign entry into those areas. Historically, the establishment of
such areas extending beyond the territorial sea has been restricted to periods of
war or to declared national emergency involving the outbreak of hostilities.
International law does not determine the geographic limits of such areas or the
degree of control that a coastal nation may lawfully exercise over them, beyond
laying down the general requirement of reasonableness in relation to the needs of
national security and defense.
67. Leiner, Maritime Security Zones: Prohibited Yet Perpetuated, 24 Va. J. Int'l L. 967, 980 &
984-88 (1984). See paragraph 1.5.4, note 54 (p. 23). U.S. protest of the "restricted area" established
by Libya within 100 NM radius of Tripoli is recorded in 1973 Digest of U.S. Practice in
International Law 302-03. See also 1975 id. 451-52; 1977 id. 636; Note-Air Defense Zones,
Creeping Jurisdiction in the Airspace, 18 Va. J. Int'l L. 485 (1978). Roach & Smith discuss
so-called "security zones" at 104-106.
68. Defense Zones. Measures of protective jurisdiction referred to in this paragraph may be
accompanied by a special proclamation defining the area of control and describing the types of
control to be exercised therein. Typically, this is done where a state of belligerence exists, such as
during World War II. In addition, so-called "defensive sea areas," though usually limited in past
practice to the territorial sea, occasionally have included areas of the high seas as well. See U.S.
Naval War College, International Law Documents, "Blue Book" series, 1948-49, v. 46 (1950) at
157-76, MacChesney 603-04 & 607.
The statute authorizing the President to establish defensive sea areas by Executive Order (18
U.S.C. sec. 2152 (1988)) does not restrict these areas to the territorial sea. Executive Orders
establishing defensive sea areas are promulgated by the Department of the Navy in OPNAVINST
5500.1 1 (series) and 32 C.F.R. part 761. It should also be noted that establishment of special control
areas extending beyond the territorial sea, whether established as "defensive sea areas" or
"maritime control areas," has been restricted in practice to periods of war or of declared national
emergency. On the other hand, in time of peace the United States has exercised, and continues to
exercise, jurisdiction over foreign vessels in waters contiguous to its territorial sea consistent with
the authority recognized in art. 24 of the 1958 Territorial Sea Convention and art. 33 of the 1982
LOS Convention. This limited jurisdiction has, of course, been exercised without establishing
special defensive sea areas or maritime control areas covering such waters. NWIP 10-2, art. 413d
n.21. See Woods, State and Federal Sovereignty Claims Over the Defensive Sea Areas in Hawaii,
39 Nav. L. Rev. 129 (1990).
Closed Seas and Zones of Peace. Proposals have been advanced at various times to exclude
non-littoral warships from "closed" seas such as the Black Sea or Baltic Sea, where water access is
limited, or from the entire Indian Ocean as a designated "zone of peace." These claims have not
gained significant legal or political momentum or support and are not recognized by the United
(continued...)
134 Commander's Handbook on the Law of Naval Operations
2.4.5 Polar Regions
2.4.5.1 Arctic Region. The U.S. considers that the waters, ice pack, and
airspace of the Arctic region beyond the lawfully claimed territorial seas of littoral
nations have international status and are open to navigation by the ships and
aircraft of all nations. Although several nations have, at times, attempted to claim
sovereignty over the Arctic on the basis of discovery, historic use, contiguity
(proximity), or the so-called "sector" theory, those claims are not recognized in
international law. Accordingly, all ships and aircraft enjoy the freedoms of high
seas navigation and overflight on, over, and under the waters and ice pack of the
69
Arctic region beyond the lawfully claimed territorial seas of littoral states.
68. (...continued)
States. Views of the former-Soviet Union on closed seas are discussed in Darby, The Soviet
Doctrine of the Closed Sea, 23 San Diego L. Rev. 685 (1986). See also paragraph 1.3.3.1, note 23
(p. 11). The proposed Indian Ocean Zone of Peace is discussed in Alexander, at 339-40.
Nuclear free zones are discussed in paragraph 2.4.6 (p. 136).
69. Arctic operations are described in Lyon, Submarine Combat in the Ice, U.S. Naval Inst.
Proc, Feb. 1992, at 33; Allard, To the North Pole!, U.S. Naval Inst. Proc, Sept. 1987, at 56;
LeSchack, ComNavForArctic, U.S. Naval Inst. Proc, Sept. 1987, at 74; Atkeson, Fighting Subs
Under the Ice, U.S. Naval Inst. Proc, Sept. 1987, at 81; Le Marchand, Under Ice Operations, Nav.
War Coll. Rev., May-June 1985, at 19; and Caldwell, Arctic Submarine Warfare, The Submarine
Rev., July 1983, at 5. Alexander, Navigational Restrictions 311-19 & 358-59, notes the following
unilateral claims that adversely impact on navigational freedoms through Arctic straits:
- The [former] U.S.S.R. claims the White Sea and Cheshskaya Gulf to the
east as historic waters, and has delimited a series of straight baselines along its Arctic
coast closing off other coastal indentations, as well as joining the coastal islands and
island groups with the mainland, thereby purporting to close off the major straits of
the Northeast Passage. See Franckx, Non-Soviet Shipping in the Northeast Passage,
and the Legal Status of Proliv Vil'kitskogo, 24 Polar Record 269 (1988).
- Norway has delimited straight baselines about the Svalbard Archipelago
that do not conform to art. 7 of the 1982 LOS Convention.
- Canada purports to close off its entire Arctic archipelago with straight
baselines and declares that the waters within the baselines — including the
Northwest Passage — are internal waters. 24 Int'l Leg. Mat'ls 1728 (1985). See
Figures A2-7 (p. 196) and A2-8 (p. 197). The United States has not accepted that
claim. See the Agreement between the Government of Canada and the Government
of the United States of America on Arctic Cooperation, 11 January 1988, 28 Int'l
Leg. Mat'ls 142 (1989). The negotiation of this agreement is discussed in Howson,
Breaking the Ice: The Canadian-American Dispute over the Arctic's Northwest
Passage, 26 Colum. J. Trans. L. 337 (1988). The October 1988 transit by the
icebreaker USCGC POLAR STAR pursuant to this agreement is discussed in 83
Am. J. Int'l L. 63 and 28 Int'l Leg. Mat'ls 144-45 (1989); the POLAR STAR's
August 1989 transit is summarized in West, Breaking Through the Arctic, U.S.
Naval Inst. Proc, Jan. 1990, at 57. The Canadian claim is discussed in Pullen, What
Price Canadian Sovereignty?, U.S. Naval Inst. Proc, Sept. 1987, at 66 (Captain
Pullen, Canadian Navy retired, argues that the Northwest Passage is the sea route
(continued...)
International Status and Navigation of Warships 135
2.4.5.2 Antarctic Region. A number of nations have asserted conflicting and
often overlapping claims to portions of Antarctica. These claims are premised
variously on discovery, contiguity, occupation and, in some cases, the "sector"
theory. The U.S. does not recognize the validity of the claims of other nations to
70
any portion of the Antarctic area.
2.4.5.2.1 The Antarctic Treaty of 1959. The U.S. is a party to the
multilateral treaty of 1959 governing Antarctica. Designed to encourage the
scientific exploration of the continent and to foster research and experiments in
Antarctica without regard to conflicting assertions of territorial sovereignty, the
1959 accord provides that no activity in the area undertaken while the treaty is in
79
force will constitute a basis for asserting, supporting, or denying such claims.
The treaty also provides that Antarctica "shall be used for peaceful purposes
only," and that "any measures of a military nature, such as the establishment of
military bases and fortifications, the carrying out of military maneuvers, as well as
"I'X.
the testing of any type of weapons" shall be prohibited. All stations and
installations, and all ships and aircraft at points of discharging or embarking cargo
or personnel in Antarctica, are subject to inspection by designated foreign
observers. Therefore, classified activities are not conducted by the U.S. in
Antarctica, and all classified material is removed from U.S. ships and aircraft prior
75
to visits to the continent. In addition, the treaty prohibits nuclear explosions
and disposal of nuclear waste anywhere south of 60 South Latitude. The
treaty does not, however, affect in any way the high seas freedoms of navigation
69.(...contined)
that links the Atlantic and the Pacific oceans north of America, and lists the 36 transits of the Passage
from 1906 to 1987). See Figure A2-8 (p. 197). See also Maclnnis, Braving the Northwest Passage,
Nat'l Geog., May 1989, at 584-601 and Roach & Smith, at 207-215.
Other Arctic straight baselines not drawn in conformity with the 1982 LOS Convention include
those around Iceland and Danish-drawn lines around Greenland and the Faeroe Islands.
70. Although the United States would be fully justified in asserting a claim to sovereignty over
one or more areas of Antarctica on the basis of its extensive and continuous scientific activities
there, it has not done so. Seejoyner, Maritime Zones in the Southern Ocean: Problems concerning
the Correspondence of Natural and Legal Maritime Zones, 10 Applied Geog. 307 (1990);
Hinckley, Protecting American Interests in the Antarctic: The Territorial Claims Dilemma, 39
Naval L. Rev. 43 (1990).
71. Antarctic Treaty, Washington, 1 December 1959, 12 U.S.T. 794; 402 U.N.T.S. 71;
T.I.A.S. 4780; text reprinted in AFP 110-20 at 4-21. Its provisions apply south of 60° South
Latitude.
72. Art. IV.2.
73. Art. 1.1.
74. Art. VII.3.
75. For further information and guidance, see DOD Directive 2000.6, Subj: Conduct of
Operations in Antarctica, and OPNAVINST 3120.20 (series), Subj: Navy Policy in Antarctica and
Support of the U.S. Antarctic Program.
76. Arts. V and VI.
136 Commander's Handbook on the Law of Naval Operations
and overflight in the Antarctic region. Antarctica has no territorial sea or
territorial airspace.
2.4.6 Nuclear Free Zones. The 1968 Nuclear Weapons Non-Proliferation
77
Treaty, to which the United States is a party, acknowledges the right of
groups of nations to conclude regional treaties establishing nuclear free
78
zones. Such treaties or their provisions are binding only on parties to them or
to protocols incorporating those provisions. To the extent that the rights and
freedoms of other nations, including the high seas freedoms of navigation and
overflight, are not infringed upon, such treaties are not inconsistent with
79
international law. The 1967 Treaty for the Prohibition of Nuclear Weapons
80
in Latin America (Treaty of Tlatelolco) is an example of a nuclear free zone
arrangement that is fully consistent with international law, as evidenced by
81
U.S. ratification of its two Protocols. This in no way affects the exercise by
77. Treaty on the Non-proliferation of Nuclear Weapons, Washington, London & Moscow,
1 July 1968, 21 U.S.T. 483; 729 U.N.T.S. 161; T.I.A.S. 6839.
78. Id., Art. VII.
79. The United States, therefore, does not oppose the establishment of nuclear free zones
provided certain fundamental rights are preserved in the area of their application. These include
non-interference with the high seas freedoms of navigation and overflight beyond the territorial
sea, the right of innocent passage in territorial seas and archipelagic waters, the right of transit
passage of international straits and the right of archipelagic sea lanes passage of archipelagic waters.
Parties to such agreements may, however, grant or deny transit privileges within their respective
land territory, internal waters and national airspace, to nuclear powered and nuclear capable ships
and aircraft of non-party nations, including port calls and overflight privileges. Dept St. Bull., Aug.
1978, at 46-47; 1978 Digest of U.S. Practice in International Law 1668; 1979 Digest of Practice in
International Law 1844. See also Rosen, Nuclear- Weapon-Free Zones, Nav. War Coll. Rev.,
Autumn 1996, at 44.
80. Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlateloco),
Mexico City, 14 February 1967, 22 U.S.T. 762; 64 U.N.T.S. 281, T.I.A.S. 7137; AFP 1 10-20 at
4-9, entered into force 22 April 1968. The Treaty of Tlateloco consists of the Treaty and two
Additional Protocols. The parties to the Treaty are listed in 28 Int'l Leg. Mat'ls 1404 (1989). By its
terms, the United States cannot be a party to the Treaty of Tlateloco since the United States does
not lie within the zone of its application. See Figure A2-9 (p. 198). The United States is, however, a
party to both Additional Protocols.
81. Additional Protocol I to the Treaty of Tlateloco, 33 U.S.T. 1972; T.I.A.S. 10147; 634
U.N.T.S. 362, entered into force 11 December 1969 (for the U.S., 23 November 1981), and calls
upon nuclear-weapons nations outside the treaty zone to apply the denuclearization provisions of
the Treaty to their territories in the zone. As of 1 January 1997, France, the Netherlands, the
United Kingdom, and the United States are parties to Additional Protocol I. Within the Latin
American nuclear-weapons free zone lie the Panama Canal, Guantanamo Naval Base in Cuba, the
Virgin Islands, and Puerto Rico. Since Addition Protocol I entered into force for the United States
on 23 November 1981, the U.S. may not store or deploy nuclear weapons in those areas, but its
ships and aircraft may still visit these ports and airfields, and overfly them, whether or not these
ships and aircraft carry nuclear weapons. In this regard, see also Articles III. 1(e) and VI. 1 of the 1977
Treaty Concerning the Permanent Neutrality and Operations of the Panama Canal, 33 U.S.T. 1;
T.I.A.S. 10,029, which specifically guarantee the right of U.S. military vessels to transit the Canal
regardless of their cargo or armament. This includes submarines as well as surface ships. The United
(continued...)
International Status and Navigation of Warships 137
the U.S. of navigational rights and freedoms within waters covered by the Treaty
of Tlatelolco.
81. (...continued)
States also has the right to repair and service ships carrying nuclear weapons in ports in the Virgin
Islands, Puerto Rico and Guantanamo when incident to transit through the area. Further, the
United States retains the right to off-load nuclear weapons from vessels in these ports in the event
of emergency or operational requirements if such off-loading is temporary and is required in the
course of a transit through the area.
The U.S. ratification of Protocol I (and of Protocol II discussed below) was subject to
understandings and declarations that the Treaty of Tlateloco does not affect the right of a nation
adhering to Protocol I to grant or deny transit and transport privileges to its own or any other
vessels or aircraft irrespective of cargo or armaments, and that the treaty does not affect the rights of
a nation adhering to Protocol I regarding exercise of the freedoms of the seas, or regarding passage
through or over waters subject to the sovereignty of a Treaty nation. See 28 Int'l Leg. Mat'ls
1410-12 (1989).
The terms "transit and transport" are not defined in the Treaty. These terms should be interpreted
on a case-by-case basis, bearing in mind the basic idea that the Treaty was not intended to inhibit
activities reasonably related to the passage of nuclear weapons through the zone. No Latin
American party to the Treaty objected when the United States and France made formal statements
confirming transit and transport rights when ratifying Protocol II. No Latin American party has
denied transit or transport privileges on the basis of the Treaty or its Protocols, notwithstanding the
fact that U.S. military vessels and aircraft frequently engage in transit, port calls and overflights in
the region, and that it is U.S. policy neither to confirm nor deny the presence of nuclear weapons
in such cases. 1978 Digest at 1624; Prohibition of Nuclear Weapons in Latin America, Hearing
before Sen. For. Rel. Comm., 97th Cong., 1st Sess., 22 Sept. 1981, at 18-20.
Additional Protocol II to the Treaty of Tlateloco, 22 U.S.T. 754; T.I.A.S. 7137; 634 U.N.T.S.
364; AFP 110-20 at 4-18, entered into force 11 December 1969 (for the U.S., 12 May 1971) and
obligates nuclear-weapons nations to respect the denuclearized status of the zone, not to
contribute to acts involving violation of obligations of the parties, and not to use or threaten to use
nuclear weapons against the contracting parties (i.e., the Latin American countries). The United
States ratified Protocol II subject to understandings and declarations, 22 U.S.T. 760; 28 Int'l Leg.
Mat'ls at 1422-23 (1989), that the Treaty and its Protocols have no effect upon the international
status of territorial claims; the Treaty does not affect the right of the Contracting Parties to grant or
deny transport and transit privileges to non-Contracting Parties; that the United States would
"consider that an armed attack by a Contracting Party, in which it was assisted by a
nuclear-weapon State, would be incompatible with the contracting Party's corresponding
obligations under Article I of the Treaty;" and, although not required to do so, the United States
will act, with respect to the territories of Protocol I adherents that are within the Treaty zone, in the
same way as Protocol II requires it to act toward the territories of the Latin American Treaty
parties. China, France, the former-Soviet Union, the United Kingdom, and the United States are
parties to Protocol II. 28 Int'l Leg. Mat'ls 1413 (1989). See also id. at 1414-23.
82. Both the 1985 South Pacific Nuclear Free Zone Treaty and the 1995 African
Nuclear- Weapon-Free Zone Treaty seek the same goals as the Treaty of Tlateloco. The South
Pacific Nuclear Free Zone Treaty (Treaty of Rarotonga), Rarotonga, 6 August 1985, 24 Int'l Leg.
Mat'ls 1442 (1985) entered into force 1 1 December 1986. The Treaty of Rarotonga consists of the
Treaty and three Protocols. The Treaty itself is open only to members of the South Pacific Forum
(Australia, Cook Islands, Fiji, Kiribati, Marshall Islands, Micronesia, Nauru, New Zealand, Niue,
Palau, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu and Western Samoa, all but
four of whom (Marshall Islands, Micronesia, Palau and Tonga) are parties. Modeled after the
(continued...)
138 Commander's Handbook on the Law of Naval Operations
2.5. AIR NAVIGATION
83
2.5.1 National Airspace. * Under international law, every nation has
complete and exclusive sovereignty over its national airspace, that is, the airspace
82. (...continued)
Treaty of Tlateloco, the Treaty of Rarotonga does not impinge on international freedoms of
navigation and overflight in the area of its application (See Figure A2-10 (p. 199)).
- Protocol I to the Treaty of Rarotonga (not in force as of 1 January 1997) calls
upon parties to apply the prohibitions of the Treaty to the territories for which they are
internationally responsible within the zone. Protocol 1 is open to France, the United
Kingdom and the United States, all of whom are signatories. U.S. ratification of
Protocol I was awaiting Senate advice and consent as of 1 November 1997.
- Protocol II to the Treaty of Rarotonga (not in force for the U.S. as of
1 January 1997) calls upon the parties not to use or threaten to use nuclear weapons
against any party of the Treaty. Protocol II is open to China, France, the
former-Soviet Union, the United Kingdom and the United States, all of whom are
signatories. U.S. ratification of Protocol II was awaiting Senate advice and consent as
of 1 November 1997.
- Protocol III to the Treaty of Rarotonga (not in force for the U.S. as of
1 January 1997) calls upon the parties not to test any nuclear explosive device within
the zone. Protocol III is open to China, France, the former-Soviet Union, the
United Kingdom and the United States, all of whom are signatories. U.S. ratification
of Protocol III was awaiting Senate advice and consent as of 1 November 1997.
African Nuclear- Weapon-Free Zone Treaty (Treaty of Pelindaba), (Cairo), 11 April
1996, 35 Int'l Leg. Mat'ls 698 (1996) (not in force as of 1 January 1997). The Treaty of Pelindaba
consists of the Treaty and three Protocols. The Treaty is open to all African nations. As of 1 January
1997, Mauritius was the only African nation to have ratified the Treaty. The Treaty of Pelindaba
explicitly upholds the freedoms of navigation and overflight of the international community in its
area of application (see Figure A2-11 (p. 200).
- Protocol I to the Treaty of Pelindaba (not in force as of 1 January 1997)
calls upon its parties not to use or threaten the use of nuclear weapons within the
African zone (see Figure A2-1 1 (p. 200). Protocol I is open to China, France, Russia,
the United Kingdom and the United States, all of whom are signatories except
Russia. U.S. ratification of Protocol I was awaiting the advice and consent of the
Senate as of 1 November 1997.
- Protocol II to the Treaty of Pelindaba (not in force as of 1 January 1997) calls
upon its parties to refrain from testing any nuclear explosive device within the zone.
Protocol II is open to China, France, Russia, the United Kingdom and the United
States, all of whom are signatories except Russia. U.S. ratification of Protocol II was
awaiting the advice and consent of the Senate as of 1 November 1997.
- Protocol III to the Treaty of Pelindaba (not yet in force) applies to nations
with dependent territories in the zone (e.g., France and Spain) and calls upon them to
observe certain provisions of the Treaty in those territories. Although France is a
signatory, neither France nor Spain are parties as of 1 November 1997.
83. Under international law, airspace is classified under two headings: national airspace
(airspace over the land, internal waters, archipelagic waters, and territorial sea of a nation) and
international airspace (airspace over a contiguous zone, an exclusive economic zone, and the high
(continued...)
International Status and Navigation of Warships 1 39
above its territory, its internal waters, its territorial sea, and, in the case of an
84
archipelagic nation, its archipelagic waters. There is no right of innocent passage of
aircraft through the airspace over the territorial sea or archipelagic waters analogous to the
right of innocent passage enjoyed by ships of all nations. Accordingly, unless party to
an international agreement to the contrary, all nations have complete discretion
in regulating or prohibiting flights within their national airspace (as opposed to a
Flight Information Region - see paragraph 2.5.2.2), with the sole exception of
overflight of international straits and archipelagic sea lanes. Aircraft wishing to
enter national airspace must identify themselves, seek or confirm permission to
land or to transit, and must obey all reasonable orders to land, turn back, or fly a
prescribed course and/or altitude. Aircraft in distress are entitled to special
consideration and should be allowed entry and emergency landing rights.
Concerning the right of assistance entry, see paragraph 2.3.2.5. For jurisdiction
over aerial intruders, see paragraph 4.4.
2.5.1.1 International Straits Which Connect EEZ/High Seas to
EEZ/High Seas. All aircraft, including military aircraft, enjoy the right of
unimpeded transit passage through the airspace above international straits
87
overlapped by territorial seas. ' Such transits must be continuous and
expeditious, and the aircraft involved must refrain from the threat or the use of
force against the sovereignty, territorial integrity, or political independence of
88
the nation or nations bordering the strait. The exercise of the right of
overflight by aircraft engaged in the transit passage of international straits cannot
89
be impeded or suspended in peacetime for any purpose.
In international straits not completely overlapped by territorial seas, all
aircraft, including military aircraft, enjoy high seas freedoms while operating in
the high seas corridor beyond the territorial sea. (See paragraph 2.5.2 for a
83. (...continued)
seas, and over unoccupied territory (i.e., territory not subject to the sovereignty of any nation,
suchas Antarctica)). Airspace has, in vertical dimension, an upward (but undefined) limit, above
which is outer space (see paragraph 1.1, note 1 (p. 1) and paragraph 2.9.2 (p. 149)).
84. Territorial Sea Convention, art. 2; Chicago Convention, art. 1; 1982 LOS Convention,
art. 2. Effective upon the extension of the U.S. territorial sea on 27 December 1988, the Federal
Aviation Administration extended seaward the limits of controlled airspace and applicability of
certain air traffic rules. Amendment 91-207, 54 Fed. Reg. 265, 4 Jan. 1989, amending 14 C.F.R.
parts 71 and 91, and 54 Fed. Reg. 34292, 18 Aug. 1989.
85. There is also no right of overflight of internal waters and land territory.
86. Chicago Convention, arts. 5-16.
87. 1982 LOS Convention, art. 38(1).
88. Id., art. 38(2). All aircraft must, however, monitor the internationally designated air-traffic
control circuit or distress radio frequency while engaged in transit passage. Art. 39.
89. Id., art. 44.
140 Commander's Handbook on the Law of Naval Operations
discussion of permitted activities in international airspace.) If the high seas
corridor is not of similar converience (e.g., to stay within the high seas corridor
would be inconsistent with sound navigational practices), such aircraft enjoy the
right of unimpeded transit passage through the airspace of the strait.
2.5.1.2 Archipelagic Sea Lanes. All aircraft, including military aircraft, enjoy the
right of unimpeded passage through the airspace above archipelagic sea lanes. The
right of overflight of such sea lanes is essentially identical to that of transit passage
through the airspace above international straits overlapped by territorial seas.
2.5.2 International Airspace. International airspace is the airspace over the
contiguous zone, the exclusive economic zone, the high seas, and territories not
subject to national sovereignty (e.g., Antarctica). All international airspace is
92
open to the aircraft of all nations. Accordingly, aircraft, including military
aircraft, are free to operate in international airspace without interference from
coastal nation authorities. Military aircraft may engage in flight operations,
including ordnance testing and firing, surveillance and intelligence gathering,
and support of other naval activities. All such activities must be conducted with
due regard for the rights of other nations and the safety of other aircraft and of
vessels. * (Note, however, that the Antarctic Treaty prohibits military
maneuvers and weapons testing in Antarctic airspace. ) These same principles
apply with respect to the overflight of high seas or EEZ corridors through that
part of international straits not overlapped by territorial seas.
2.5.2.1 Convention on International Civil Aviation. The United States is a
party to the 1944 Convention on International Civil Aviation (as are most
nations). That multilateral treaty, commonly referred to as the "Chicago
96
Convention," applies to civil aircraft. It does not apply to military aircraft or
AMC-charter aircraft designated as "state aircraft" (see paragraph 2.2.2), other
than to require that they operate with "due regard for the safety of navigation of
civil aircraft." The Chicago Convention established the International Civil
Aviation Organization (ICAO) to develop international air navigation principles
90. 1982 LOS Convention, art. 38(1). See also, Nordquist, Vol. II at 312-315.
91. 1982 LOS Convention, art. 53. As in the case of transit passage, all aircraft overflying
archipelagic sea lanes must monitor the internationally designated air-traffic control circuit or
distress radio frequency. 1982 LOS Convention, arts. 39 & 54.
92. High Seas Convention, art. 2; Territorial Sea Convention, art. 24; 1982 LOS Convention,
arts. 87, 58 & 33.
93. 1982 LOS Convention, art. 87(2), Chicago Convention, art. 3(d).
94. See paragraph 2.4.5.2.1 (p. 135).
95. 1982 LOS Convention, arts. 35(b), 87 & 58.
96. Art. 3(a); text reprinted in AFP 110-20, at 6-3.
97. Art. 3(d).
International Status and Navigation of Warships 141
and techniques and to "promote safety of flight in international air
• • „98
navigation.
Various operational situations do not lend themselves to ICAO flight
procedures. These include military contingencies, classified missions, politically
sensitive missions, or routine aircraft carrier operations. Operations not
conducted under ICAO flight procedures are conducted under the "due regard"
standard. (For additional information see DOD Dir. 4540.1 and OPNAVINST
3770.4 (series) and the Coast Guard Air Operations Manual, COMDTINST
M3710.1 (series).)
2.5.2.2 Flight Information Regions. A Flight Information Region (FIR) is a
defined area of airspace within which flight information and alerting services are
provided. FIRs are established by ICAO for the safety of civil aviation and
encompass both national and international airspace. Ordinarily, but only as a
matter of policy, U.S. military aircraft on routine point-to-point flights through
international airspace follow ICAO flight procedures and utilize FIR services. As
mentioned above, exceptions to this policy include military contingency
operations, classified or politically sensitive missions, and routine aircraft carrier
operations or other training activities. When U.S. military aircraft do not follow
ICAO flight procedures, they must navigate with "due regard" for civil aviation
safety.
Some nations, however, purport to require all military aircraft in international
airspace within their FIRs to comply with FIR procedures, whether or not they
utilize FIR services or intend to enter national airspace. The U.S. does not
recognize the right of a coastal nation to apply its FIR procedures to foreign
military aircraft in such circumstances. Accordingly, U.S. military aircraft not
intending to enter national airspace need not identify themselves or otherwise
98. Art. 44(h).
99. Chicago Convention, art. 3(d); DOD Directive 4540.1; 9 Whiteman 430-31; AFP
110-31, at 2-9 to 2-10 n.29. Acceptance by a government of responsibility in international airspace
for a FIR region does not grant such government sovereign rights in international airspace.
Consequently, military and State aircraft are exempt from the payment of en route or overflight
fees, including charges for providing FIR services, when merely transiting international airspace
located in the FIR. The normal practice of nations is to exempt military aircraft from such charges
even when operating in national airspace or landing in national territory. The only fees properly
chargeable against State aircraft are those which can be related directly to services provided at the
specific request of the aircraft commander or by other appropriate officials of the nation operating
the aircraft. 1993 State message 334332.
100. The United States has protested such claims by Cuba, Ecuador, Nicaragua and Peru, and
has asserted its right to operate its military aircraft in the international airspace of their FIRs without
notice to or authorization from their Air Traffic Control authorities. See Roach & Smith at
231-34.
142 Commander's Handbook on the Law of Naval Operations
comply with FIR procedures established by other nations, unless the U.S. has
specifically agreed to do so.
2.5.2.3 Air Defense Identification Zones in International Airspace.
International law does not prohibit nations from establishing Air Defense
Identification Zones (ADIZ) in the international airspace adjacent to their
territorial airspace. The legal basis for ADIZ regulations is the right of a nation to
establish reasonable conditions of entry into its territory. Accordingly, an aircraft
approaching national airspace can be required to identify itself while in
international airspace as a condition of entry approval. ADIZ regulations
promulgated by the U.S. apply to aircraft bound for U.S. territorial airspace and
1 (Y)
require the filing of flight plans and periodic position reports. " The U.S. does
not recognize the right of a coastal nation to apply its ADIZ procedures to
foreign aircraft not intending to enter national airspace nor does the U.S. apply
its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace.
Accordingly, U.S. military aircraft not intending to enter national airspace need
not identify themselves or otherwise comply with ADIZ procedures established
103
by other nations, unless the U.S. has specifically agreed to do so.
It should be emphasized that the foregoing contemplates a peacetime or
nonhostile environment. In the case of imminent or actual hostilities, a nation
may find it necessary to take measures in self-defense that will affect overflight in
international airspace.
101. Chicago Convention, arts. 3(a), 11, 28; OPNAVINST 3770.4 (series), promulgating
DOD Directive 4540.1, Subj: Use of Airspace by U.S. Military Aircraft and Firings Over the High
Seas. Applicable ROE should also be consulted. See also ALLANTFLT 016/97 (CINCLANTFLT
MSG 101900Z OCT 97).
102. United States air defense identification zones have been established by Federal Aviation
Administration (FAA) regulations, 14 C.F.R. part 99. (The ADIZs for the contiguous U.S. are set
out in 14 C.F.R. part 99.42; for Alaska in 99.43; for Guam in 99.45 and for Hawaii in 99.47.) In
order that the Administrator may properly carry out the responsibilities of that office, the authority
of the Administrator has been extended into the airspace beyond the territory of the United States.
U.S. law (49 U.S.C. sec. 1510) grants the president the power to order such extraterritorial
extension when requisite authority is found under an international agreement or arrangement; the
president invoked this power by Exec. Order 10,854, 27 November 1959, 3 C.F.R. part 389
(1959-1963 Comp.). See also MacChesney 579-600; NWIP 10-2, art. 422b.
103. Chicago Convention, art. 11; OPNAVINST 3770.4 (series), promulgating DOD
Directive 4540.1, Subj: Use of Airspace by U.S. Military Aircraft and Firings Over the High Seas;
OPNAVINST 3772.5 (series), Subj: Identification and Security Control of Military Aircraft;
General Planning Section, DoD Flight Information publications. Appropriate ROE should also be
consulted.
104. See also paragraph 2.4.4, note 68 (p. 133).
International Status and Navigation of Warships 143
2.6 EXERCISE AND ASSERTION OF NAVIGATION AND
OVERFLIGHT RIGHTS AND FREEDOMS
As announced in the President's United States Oceans Policy statement of 10
March 1983,
"The United States will exercise and assert its navigation and overflight rights and
freedoms on a worldwide basis in a manner that is consistent with the balance of
interests reflected in the [1982 LOS] convention. The United States will not,
however, acquiesce in unilateral acts of other states designed to restrict the rights
and freedoms of the international community in navigation and overflight and
other related high seas uses."
When maritime nations appear to acquiesce in excessive maritime claims and
fail to exercise their rights actively in the face of constraints on international
navigation and overflight, those claims and constraints may, in time, be
considered to have been accepted by the international community as reflecting
the practice of nations and as binding upon all users of the seas and superjacent
airspace. Consequently, it is incumbent upon maritime nations to protest
diplomatically all excessive claims of coastal nations and to exercise their
navigation and overflight rights in the face of such claims. The President's
Oceans Policy Statement makes clear that the United States has accepted this
105
responsibility as a fundamental element of its national policy.
105. Annex Al-3 (p. 43). See U.S. Dep't State, GIST: US Freedom of Navigation Program,
Dec. 1988, Annex A2-7 (p. 186); and DOD Instruction C2005.1, Subj: U.S. Program for the
Exercise of Navigation and Overflight Rights at Sea (U). See also Roach & Smith, at 255; National
Security Strategy of the United States, August 1991, at 15; and Rose, Naval Activity in the
Exclusive Economic Zone— Troubled Waters Ahead?, 39 Naval L. Rev. 67, 85-90 (1990). On 23
September 1989 the United States and the former-Soviet Union issued a joint statement (Annex
A2-2 (p. 161)) in which they recognized "the need to encourage all States to harmonize their
internal laws, regulations and practices" with the navigational articles of the 1982 LOS
Convention.
The 1 982 LOS Convention was designed in part to halt the creeping jurisdictional claims of coastal
nations, or ocean enclosure movement. While that effort appears to have met with some success, it
is clear that many nations currently purport to restrict navigational freedoms by a wide variety of
means that are neither consistent with the 1982 LOS Convention nor with customary
international law. See Negroponte, Who Will Protect the Oceans?, Dep't St. Bull., Oct. 1986, at
41-43; Smith, Global Maritime Claims, 20 Ocean Dev. & Int'l L. 83 (1989). Alexander warns of a
continuation of the ocean enclosure movement. He particularly sees more unauthorized
restrictions on the movement of warships, military aircraft and "potentially polluting" vessels in
the territorial seas and EEZ, and on transit passage in international straits. Alexander 369-70. The
United States' view regarding the consistency of certain claims of maritime jurisdiction with the
provisions of the LOS Convention is set forth in its 3 March 1983 Statement in Right of Reply,
Annex Al-1 (p. 27).
(continued...)
144 Commander's Handbook on the Law of Naval Operations
105. (...continued)
Since 1948, the Department of State has issued approximately 150 protest notes to other nations
concerning their excessive maritime claims, as well as engaging in numerous bilateral discussions with
many countries. Negroponte, Current Developments in U.S. Oceans Policy, Dep't St. Bull., Sept.
1986, at 84, 85; Navigation Rights and the Gulf of Sidra, Dep't St. Bull., Feb. 1987, at 70; Roach,
Excessive Maritime Claims, 1990 Proc. Am. Soc. Int'l L. 288, 290; Roach & Smith, at 4. United
States responses to excessive maritime claims are discussed in Limits in the Seas No. 112 (1992).
See 1 O'Connell 38-44 for a discussion of the significance of protest in the law of the sea. Compare
Colson, How Persistent Must the Persistent Objector Be?, 61 Wash. L. Rev. 957, at 969 (1986):
First, States should not regard legal statements ofposition as provocative political acts.
They are a necessary tool of the international lawyer's trade and they have a purpose
beyond the political, since, occasionally, States do take their legal disputes to court.
Second, there is no requirement that a statement ofposition be made in a particular
form or tone. A soft tone and moderate words may still effectively make the necessary
legal statement.
Third, action by deed probably is not necessary to protect a State's legal position as a
persistent objector when that State has otherwise clearly stated its legal position.
Action by deed, however, promotes the formation of law consistent with the action
and deeds may be necessary in some circumstances to slow erosion in customary legal
practice.
Fourth, not every legal action needs an equal and opposite reaction to maintain one's
place in the legal cosmos.
Fifth, the more isolated a State becomes in its legal perspective, the more active it
must be in restating and making clear its position.
"The exercise of rights — the freedoms to navigate on the world's oceans — is not meant to be a
provocative act. Rather, in the framework of customary international law, it is a legitimate,
peaceful assertion of a legal position and nothing more." Negroponte, Who Will Protect the
Oceans?, Dep't St. Bull., Oct. 1986, at 42. In exercising its navigational rights and freedoms, the
United States "will continue to act strictly in conformance with international law and we will
expect nothing less from other countries." Schachte, The Black Sea Challenge, U.S. Naval Inst.
Proc, June 1988, at 62.
"Passage does not cease to be innocent merely because its purpose is to test or assert a right disputed
or wrongfully denied by the coastal State." Fitzmaurice, The Law and Procedure of the
International Court ofjustice, 27 Br. Y.B. Int'l L. 28 (1950), commenting on the Corfu Channel
Case in which the Court held that the United Kingdom was not bound to abstain from exercising
its right of innocent passage which Albania had illegally denied. 1949 ICJ Rep. 4, 4 Whiteman356.
The Special Working Committee on Maritime Claims of the American Society of International
Law has advised that
programs for the routine exercise of rights should be just that, "routine" rather than
unnecessarily provocative. The sudden appearance of a warship for the first time in
years in a disputed area at a time of high tension is unlikely to be regarded as a largely
inoffensive exercise related solely to the preservation of an underlying legal position.
Those responsible for relations with particular coastal states should recognize that, so
long as a program of exercise of rights is deemed necessary to protect underlying legal
positions, delay for the sake of immediate political concerns may invite a deeper
dispute at a latter [sic] time.
(continued...)
International Status and Navigation of Warships 145
105. (...continued)
Am. Soc. Int'l L. Newsletter, March-May 1988, at 6.
The United States has exercised its rights and freedoms against a variety of objectionable claims,
including: unrecognized historic waters claims; improperly drawn baselines for measuring
maritime claims; territorial sea claims greater than 12 NM; and territorial sea claims that impose
impermissible restrictions on the innocent passage of any type of vessel, such as requiring prior
notification or authorization. Since the policy was implemented in 1979, the United States has
exercised its rights against objectionable claims of over 35 nations, including the former-Soviet
Union, at the rate of some 30-40 per year. Department of State Statement, 26 March 1986, Dep't
St. Bull., May 1986, at 79; Navigation Rights and the Gulf of Sidra, Dep't St. Bull., Feb. 1987, at
70. See also, Roach & Smith, at 6.
Perhaps the most widely publicized of these challenges has occurred with regard to the Gulf of
Sidra (closing line drawn across the Gulfat30°30'N). See Figure A2- 12 (p. 201) and Annex A2-8
(p. 188). The actions of the United States are described in Spinatto, Historic and Vital Bays: An
Analysis of Libya's Claim to the Gulf of Sidra, 13 Ocean Dev. & Int'l L.J. 65 (1983); N.Y. Times,
27 July 1984, at 5; and Parks, Crossing the Line, U.S. Naval Inst. Proc, Nov. 1986, at 40.
Other publicized examples include the transits of the Black Sea in November 1984 and March
1986 (Washington Post, 19 March 1986, at 4 & 21; Christian Science Monitor, 20 March 1986, at
1, 40) and in February 1988 (N.Y. Times, 13 Feb. 1988, at 1 & 6) challenging the Soviet limitations
on innocent passage, see paragraph 2.3.2.1, note 27 (p. 1 17), and of Avacha Bay, Petropavlovsk in
May 1987 (straight baseline) (Washington Post, 22 May 1987, at A34). Most challenges, however,
have occurred without publicity, and have been undertaken without protest or other reaction by
the coastal nations concerned.
Some public commentary on the Black Sea operations has incorrectly characterized the passage as
being not innocent. Rubin, Innocent Passage in the Black Sea? Christian Sci. Mon., 1 Mar. 1988,
at 14; Carroll, Murky Mission in the Black Sea, Wash. Post Nat'l Weekly Ed., 14-20 Mar. 1988, at
25; Carroll, Black Day on the Black Sea, Arms Control Today, May 1988, at 14; Arkin, Spying in
the Black Sea, Bull, of Atomic Scientists, May 1988, at 5. Authoritative responses include
Armitage, Asserting U.S. Rights On the Black Sea, Arms Control Today, June 1988, at 13;
Schachte, The Black Sea Challenge, U.S. Naval Inst. Proc, June 1988, at 62; and Grunawalt,
Innocent Passage Rights, Christian Sci. Mon., 18 Mar. 1988, at 15. See also, Note, Oceans Law and
Superpower Relations: The Bumping of the Yorktown and the Caron in the Black Sea, 29 Va. J.
Int'l L. 713 (1989); Franckx, Innocent Passage of Warships, Marine Policy, Nov. 1990, at 484-90;
Rolph, Freedom of Navigation and the Black Sea Bumping Incident: How "Innocent" Must
Innocent Passage Be? 135 Mil. L. Rev. 137 (1992); and Aceves, Diplomacy at Sea: U.S. Freedom
of Navigation Operations in the Black Sea, Nav. War Coll. Rev., Spring 1993, at 59. Mere
incidental observation of coastal defenses could not suffice to render noninnocent a passage not
undertaken for that purpose. Fitzmaurice, this note, 27 Br. Y.B. Int'l L. 29, n.l, quoted in 4
Whiteman 357.
Other claims not consistent with the 1982 LOS Convention that adversely affect freedoms of
navigation and overflight and which are addressed by the U.S. FON program include:
- claims to jurisdiction over maritime areas beyond 12 NM which purport to
restrict non-resource related high seas freedoms, such as in the EEZ (paragraph 2.4.2
(p. 129)) or security zones (paragraph 2.4.4 (p. 132));
- archipelagic claims that do not conform with the 1982 LOS Convention
(paragraph 2.3.4 (p. 127)), or do not permit archipelagic sea lanes passage in
(continued...)
146 Commander's Handbook on the Law of Naval Operations
2.7 RULES FOR NAVIGATIONAL SAFETY FOR VESSELS
AND AIRCRAFT
2.7.1 International Rules. Most rules for navigational safety governing surface
and subsurface vessels, including warships, are contained in the International
Regulations for Preventing Collisions at Sea, 1972, known informally as the
"International Rules of the Road" or "72 COLREGS." These rules apply to all
international waters (i.e., the high seas, exclusive economic zones, and contiguous
zones) and, except where a coastal nation has established different rules, in that
nation's territorial sea, archipelagic waters, and inland waters as well. The 1972
COLREGS have been adopted as law by the United States. (See Title 33 U.S.
Code, Sections 1601 to 1606). Article 1139, U.S. Navy Regulations, 1990, directs
that all persons in the naval service responsible for the operation of naval ships and
craft "shall diligendy observe" the 1972 COLREGS. Article 4-1-11 of U.S. Coast
Guard Regulations (COMDTINST M5000.3 (series)) requires compliance by
Coast Guard personnel with all Federal law and regulations.
2.7.2 National Rules. Many nations have adopted special rules for waters
subject to their territorial sovereignty (i.e., internal waters, archipelagic waters,
and territorial seas). Violation of these rules by U.S. government vessels,
including warships, may subject the U.S. to lawsuit for collision or other
damage, provide the basis for diplomatic protest, result in limitation on U.S.
access to foreign ports, or prompt other foreign action.
108
2.7.2.1 U.S. Inland Rules. The U.S. has adopted special Inland Rules
applicable to navigation in U.S. waters landward of the demarcation lines
105. (...continued)
conformity with the 1982 LOS Convention, including submerged passage of
submarines and overflight of military aircraft, and transit in a manner of
deployment consistent with the security of the forces involved (paragraph 2.3.4.1
(p. 127)); and
- territorial sea claims that overlap international straits, but do not permit
transit passage (paragraph 2.3.3.1 (p. 121)), or that require advance notification or
authorization for warships and auxiliaries, or apply discriminatory requirements to
such vessels (paragraph 2.3.2.4 (p. 119)), or apply requirements not recognized by
international law to nuclear powered warships or nuclear capable warships and
auxiliaries (paragraph 2.3.2.4, note 32 (p. 119)).
See also Boma, Troubled Waters off the Land of the Morning Calm: A Job for the Fleet, Nav. War
Coll. Rev., Spring 1989, at 33.
106. 28 U.S.T. 3459, T.I.A.S. 8587, 33 U.S.C. sec. 1602 note (1988), 33 C.F.R. part 81,
app. A.
107. See U.S. Navy Regulations, 1990, art. 1139.
108. 33 U.S.C. sec. 2001 et seq. (1988), implemented in 33 C.F.R. parts 84-90.
International Status and Navigation of Warships 147
109
established by U.S. law for that purpose. (See U.S. Coast Guard publication
Navigational Rules, International — Inland, COMDTINSTM 16672.2 (series),
Title 33 Code of Federal Regulations part 80, and Title 33 U.S. Code, sections
2001 to 2073.) The 1972 COLREGS apply seaward of the demarcation lines in
U.S. national waters, in the U.S. contiguous zone and exclusive economic zone,
and on the high seas.
2.7.3 Navigational Rules for Aircraft. Rules for air navigation in
international airspace applicable to civil aircraft may be found in Annex 2 (Rules
of the Air) to the Chicago Convention, DOD Flight Information Publication
(FLIP) General Planning, and OPNAVINST 3710.7 (series) NATOPS. The
same standardized technical principles and policies of ICAO that apply in
international and most foreign airspace are also in effect in the continental
United States. Consequently, U.S. pilots can fly all major international routes
following the same general rules of the air, using the same navigation equipment
and communication practices and procedures, and being governed by the same
air traffic control services 'with which they are familiar in the United States.
Although ICAO has not yet established an "International Language for
Aviation," English is customarily used internationally for air traffic control.
2.8 U.S.-U.S.S.R. AGREEMENT ON THE PREVENTION OF
INCIDENTS ON AND OVER THE HIGH SEAS
In order better to assure the safety of navigation and flight of their respective
warships and military aircraft during encounters at sea, the United States and the
former Soviet Union in 1972 entered into the U.S.-U.S.S.R. Agreement on the
Prevention of Incidents On and Over the High Seas. This Navy-to-Navy
agreement, popularly referred to as the "Incidents at Sea" or "INCSEA"
agreement, has been highly successful in minimizing the potential for harassing
actions and navigational one-upmanship between U.S. and former Soviet units
operating in close proximity at sea. Although the agreement applies to warships
and military aircraft operating on and over the "high seas," it is understood to
embrace such units operating in all international waters and international airspace,
including that of the exclusive economic zone and the contiguous zone.
109. Such demarcation lines do not necessarily coincide with the boundaries of internal waters
or the territorial sea. For the U.S., they are indicated on navigational charts issued by the United
States Coast and Geographic Survey.
110. OPNAVINST C5711.94 (series), Subj: US/USSR Incidents at Sea and Dangerous
Military Activities Agreements; and U.S. Addendum to volume II of ATP 1. The 1972 INCSEA
Agreement, 23 U.S.T. 1 168, T.I.A.S. 7379, and its 1973 Protocol, 24 U.S.T. 1063, T.I.A.S. 7624,
are reproduced in AFP 110-20, at 36-4.
(continued...)
148 Commander's Handbook on the Law of Naval Operations
Principal provisions of the INCSEA agreement include:
1 . Ships will observe strictly both the letter and the spirit of the International
Rules of the Road.
2. Ships will remain well clear of one another to avoid risk of collision and,
when engaged in surveillance activities, will exercise good seamanship so as not to
embarrass or endanger ships under surveillance.
3 . Ships will utilize special signals for signalling their operation and intentions.
4. Ships of one party will not simulate attacks by aiming guns, missile
launchers, torpedo tubes, or other weapons at the ships and aircraft of the other
party, and will not launch any object in the direction of passing ships nor illuminate
their navigation bridges.
5. Ships conducting exercises with submerged submarines will show the
appropriate signals to warn of submarines in the area.
6. Ships, when approaching ships of the other party, particularly those engaged
in replenishment or flight operations, will take appropriate measures not to hinder
maneuvers of such ships and will remain well clear.
110. (...continued)
The INCSEA Agreement does not prescribe minimum fixed distances between ships or aircraft;
rules of prudent seamanship and airmanship apply.
Similar agreements, incorporating the provisions and special signals from the U.S.-U.S.S.R. INCSEA
Agreement, entered into force between the former-Soviet Union and the United Kingdom on 15 July
1986 (U.K.T.S. No. 5 (1987)), the Federal Republic of Germany on 28 October 1988; Canada on 20
November 1989; France on 4 July 1989; and Italy on 30 November 1989.
An agreement on the prevention of dangerous military activities between the armed forces of the
United States and the former-Soviet Union operating in proximity to each other during peacetime
entered into force on 1 January 1990. The agreement provides procedures for resolving incidents
involving entry into the national territory, including the territorial sea, of the other nation "owing
to circumstances brought about by force majeure, or as a result of unintentional actions by such
personnel;" using a laser in such a manner that its radiation could cause harm to the other nation's
personnel or equipment; hampering the activities of the other nation in Special Caution Areas in a
manner which could cause harm to its personnel or damage to its equipment; and interference with
the command and control networks of the other party in a manner which could cause harm to its
personnel or damage to its equipment. The text of the agreement, entitled Agreement Between
the Government of the United States of America and the Government of the Union of Soviet
Socialist Republics on the Prevention of Dangerous Military Activities, which was signed in
Moscow, 12 June 1989, appears in 28 Int'l Leg. Mat'ls 879 (1989); see also Leich, Contemporary
Practice of the United States Relating to International Law — Prevention of Dangerous Military
Activities, 83 Am. J. Int'l L. 917 (1989).
International Status and Navigation of Warships 149
7. Aircraft will use the greatest caution and prudence in approaching aircraft
and ships of the other party, in particular ships engaged in launching and landing
aircraft, and will not simulate attacks by the simulated use of weapons or perform
aerobatics over ships of the other party nor drop objects near them.
The INCSEA agreement was amended in a 1973 protocol to extend certain of
its provisions to include nonmilitary ships. Specifically, the 1973 protocol
provided that U.S. and Soviet military ships and aircraft shall not make simulated
attacks by aiming guns, missile launchers, torpedo tubes, and other weapons at
nonmilitary ships of the other party nor launch or drop any objects near
nonmilitary ships of the other party in such a manner as to be hazardous to these
ships or to constitute a hazard to navigation.
The agreement also provides for an annual review meeting between Navy
i"i 1
representatives of the two parties to review its implementation. The INCSEA
112
agreement continues to apply to U.S. and Russian ships and military aircraft.
2.9 MILITARY ACTIVITIES IN OUTER SPACE
2.9.1 Outer Space Defined. As noted in paragraph 2.5.1, each nation has
complete and exclusive control over the use of its national airspace. Except when
exercising transit passage or archipelagic sea lanes passage, overflight in national
airspace by foreign aircraft is not authorized without the consent of the territorial
sovereign. However, man-made satellites and other objects in earth orbit may
overfly foreign territory freely. Although there is no legally defined boundary
between the upper limit of national airspace and the lower limit of outer space,
international law recognizes freedom of transit by man-made space objects at
earth orbiting altitude and beyond.
2.9.2 The Law of Outer Space. International law, including the United
Nations Charter, applies to the outer space activities of nations. Outer space is
open to exploration and use by all nations. However, it is not subject to national
appropriation, and must be used for peaceful purposes. The term "peaceful
111. The results of each annual review meeting are promulgated by the Chief of Naval
Operations to the operational commanders. Consult appropriate Fleet Commander instructions
and OPORDS for detailed guidance.
112. The INCSEA Agreement is also in force between the U.S. and Ukraine. Treaties in
Force 266 (1995).
113. See paragraph 1.1, note 1 (p. 1) and Schwetje, The Development of Space Law and a
Federal Space Law Bar, Fed. B. News & J., Sep. 1988, at 316.
114. Although a number of nations maintain that "peaceful purposes" excludes military
measures, the United States has consistently interpreted "peaceful purposes" to mean nonaggressive
purposes. Military activity not constituting the use of armed force against the sovereignty,
territorial integrity, or political independence of another nation, and not otherwise inconsistent
(continued...)
150 Commander's Handbook on the Law of Naval Operations
purposes" does not preclude military activity. While acts of aggression in
violation of the United Nations Charter are precluded, space-based systems may
lawfully be employed to perform essential command, control, communications,
intelligence, navigation, environmental, surveillance and warning functions to
assist military activities on land, in the air, and on and under the sea. Users of
outer space must have due regard for the rights and interests of other users.
2.9.2.1 General Principles of the Law of Outer Space. International law
governing space activities addresses both the nature of the activity and the
location in space where the specific rules apply. As set out in paragraph 2.9.1,
outer space begins at the undefined upper limit of the earth's airspace and extends
to infinity. In general terms, outer space consists of both the earth's moon and
other natural celestial bodies, and the expanse between these natural objects.
The rules of international law applicable to outer space include the following:
1 . Access to outer space is free and open to all nations.
116
2. Outer space is free from claims of sovereignty and not otherwise subject to
national appropriation.
3. Outer space is to be used for peaceful purposes.
1 1 9
4. Each user of outer space must show due regard for the rights of others.
114. (...continued)
with the U.N. Charter, is permissible. The right of self-defense applicable generally in
international law also applies in space. For a discussion of the U.S. interpretation of "peaceful
purposes" and related issues see, De Saussure & Reed, Self-Defense — A Right in Outer Space, 7
AF JAG L. Rev. (No. 5) 38 (1985), and Reed, The Outer Space Threaty:
Freedoms— Prohibitions— Duties, 9 AF JAG L. Rev. (No. 5) 26 (1967).
115. Naval operations in support of national security objectives are increasingly dependent upon
space systems support services. Today, virtually every fleet unit relies to some extent on space systems
for support, and the military applications of space technology are steadily increasing. See Holland,
The Challenge in Space: The Navy's Case, U.S. Naval Inst. Proc, Feb. 1990, at 37; Skolnick, The
Navy's Final Frontier, id. Jan. 1989, at 28; Howard, Satellites and Naval Warfare, id. April 1988, at
39; Jones, Photographic Satellite Reconnaissance, id., June 1980, at 41; U.S. Naval Space
Command: Supporting the Fleet, Aviation Week & Space Technology, March 21, 1988, at 38-51;
Burrows, Deep-Black: Space Espionage and National Security (1986); Yost, Spy-Tech (1985);
Karas, The New High Ground: Strategies and Weapons of Space-Age War (1983); Canan, War in
Space (1982); Stine, Confrontation in Space (1981); and Jane's Spaceflight Directory (annual).
116. Art. I, Treaty on Principles Governing the Activities of States in the Exploration and Use
of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 18 U.S.T.
241 1;T.I.A.S. 6347; 610U.N.T.S. 205; AFP 110-20 at 6-2 [hereinafter "Outer Space Treaty"].
117. Id., art. II.
118. W.,arts. Ill & IV.
119. W.,art. IX.
International Status and Navigation of Warships 1 51
5. No nuclear or other weapons of mass destruction may be stationed in outer
120
space.
121
6. Nuclear explosions in outer space are prohibited.
7 . Exploration of outer space must avoid contamination of the environment of
outer space and of the earth's biosphere.
123
8 . Astronauts must render all possible assistance to other astronauts in distress .
2.9.2.2 Natural Celestial Bodies. Natural celestial bodies include the earth's
moon, but not the earth. Under international law, military bases, installations
and forts may not be erected nor may weapons tests or maneuvers be undertaken
on natural celestial bodies. Moreover, all equipment, stations, and vehicles
located there are open to inspection on a reciprocal basis. There is no
corresponding right of physical inspection of man-made objects located in the
expanse between celestial bodies. Military personnel may be employed on
natural celestial bodies for scientific research and for other activities undertaken
for peaceful purposes.
2.9.3 International Agreements on Outer Space Activities. The key
legal principles governing outer space activities are contained in four widely
125
ratified multilateral agreements: the 1967 Outer Space Treaty; the 1968
Rescue and Return of Astronauts Agreement; ' the Liability Treaty of
120. Id., art. IV.
121. Art. I, Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space, and
UnderWater, 5 August 1963, 14 U.S.T. 1313; T.I.A.S. 5433; 480 U.N.T.S. 43; AFP 1 10-20 at 4-3.
122. Note 116, Outer Space Treaty, art. IX.
123. Id., art. V.
124. See paragraph 2.9.2, note 114 (p. 149) fortheU.S. interpretation of "peaceful purposes."
125. See paragraph 2.9.2.1, note 116 (p. 150), regarding the Outer Space Treaty.
126. Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of
Objects Launched into Outer Space, 22 April 1968, 19 U.S.T. 7570; T.I.A.S. 6599; 672 U.N.T.S.
119; AFP 110-20 at 6-34.
127. Convention on International Liability for Damage Caused by Space Objects, 29 June
1971, 24 U.S.T. 2389; T.I.A.S. 7762, AFP 110-20 at 6-37. The "launching nation" is responsible
for damage. The launching nation is, for purposes of international liability, the nation launching,
procuring the launch, or from whose territory the launch is made. Thus, with respect to any
particular space object, more than one nation may be liable for the damage it causes. The launching
nation is internationally liable for damages even if the launch is conducted entirely by a private,
commercial undertaking.
The launching nation is said to be absolutely liable for space-object damage caused on earth or to an
aircraft in flight. Liability can be avoided only if it can be shown that the claimant was grossly
negligent. The question of liability for space object damage to another space object, at any location
(continued...)
152 Commander's Handbook on the Law of Naval Operations
1972;127 and the Space Objects Registration Treaty of 1975. 128 A fifth, the 1979
1 29
Moon Treaty, ' has not been widely ratified. The United States is a party to all
of these agreements except the Moon Treaty.
2.9.3.1 Related International Agreements. Several other international
agreements restrict specific types of activity in outer space. The US-USSR
Anti-Ballistic Missile (ABM) Treaty of 1972 prohibits the development, testing,
and deployment of space-based ABM systems or components. Also prohibited,
127. (...continued)
other than the surface of the earth, is determined by the relative negligence or fault of the parties
involved. The Liability Convention elaborates the general principle of international liability for
damage set forth in Art. VII of the Outer Space Treaty in Arts. la, II, III and VI. Arts. IV and V
address joint and several liability. The crash of COSMOS 954 in the Canadian Arctic on 24 January
1978 is discussed in Galloway, Nuclear Powered Satellites: The U.S.S.R. Cosmos 954 and the
Canadian Claim, 12 Akron L. Rev. 401 (1979), and Christol, International Liability for Damage
Caused by Space Objects, 74 Am. J. Int'l L. 346 (1980). The Canadian claim is set forth in 18 Int'l
Leg. Mat'ls 899-930 (1979); its resolution is at 20 Int'l Leg. Mat'ls 689 (1981) wherein the USSR
agreed to pay C$3M in settlement. See also Lee & Sproule, Liability for Damage Caused by Space
Debris: The Cosmos 954 Claim, 26 Can. YB. Int'l L. 273 (1988).
There are no "rules of the road" for outer space to determine which spacecraft has the right of way.
The Liability Convention does not distinguish between civil and military space objects. If military
weapons are involved, the injured nation may take the view that the principle of self-defense,
rather than the Liability Convention, applies. Advice and consent to U.S. ratification of the
Convention came only after the Department of State provided assurances to the Senate that it was
inapplicable to intentionally caused harm. Christol at 367 citing Senate Comm. on Foreign
Relations, Convention on International Liability for Damage Caused by Space Objects, S. Exec.
Rep. 92-38, 92d Cong., 2d Sess. 10 (1972).
128. Convention on Registration of Objects Launched into Outer Space, 14 January 1975, 28
U.S.T. 695; T.I.A.S. 8480; 1023 U.N.T.S. 15; AFP 1 10-20 at 6-42. In order to enhance safety of
space operations, a dual system for registering space objects launched from earth has been
established in the Registration Treaty.
The first obligation is for each launching nation to maintain a registry containing certain
information about every space object launched.
The second obligation is to pass this basic information to the Secretary-General of the United
Nations "as soon as practicable," and to advise the Secretary-General when the object is no longer
in earth orbit. A United Nations registry is thereby maintained for all space objects launched from
earth. Objects in space remain subject to the jurisdiction and control of the nation of registry. Arts.
11(1), 11(2), III, IV & VIII, Outer Space Treaty, (paragraph 2.9.2.1, note 116 (p. 150). If more than
one nation is involved in a launch, one of those nations must agree to act as the nation of registry
(article 11(2)). The term "as soon as practicable" is not defined in the Registration Treaty. State
practice has established that the extent and timeliness of information given concerning space
missions may be limited as required by national security.
129. Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 18
December 1979, 18 Int'l Leg. Mat'ls 1434 (1979), reprinted in AFP 110-20 at 6-45.
130. The United States' objections to the Moon Treaty include those advanced regarding the
deep seabed provisions of the 1982 LOS Convention. See paragraph 1.6, note 57 (p. 24). See also
Hosenball, Relevant Treaties Governing Space Activities: A Summary of World Wide
Agreements, Fed. Bar News & J., April 1991, at 128.
International Status and Navigation of Warships 153
is any interference with the surveillance satellites both nations use to monitor
131
ABM Treaty compliance. The ABM Treaty continues in force between the
U.S. and Russia.
The 1963 Limited Test Ban Treaty (a multilateral treaty) includes an
agreement not to test nuclear weapons or to carry out any other nuclear
explosions in outer space.
The 1977 Environmental Modification Convention (also a multilateral
treaty) prohibits military or other hostile use of environmental modification
1 33
techniques in several environments, including outer space.
The 1982 International Telecommunication Convention and the 1979
135
Radio Regulations govern the use of the radio frequency spectrum by
satellites and the location of satellites in the geostationary-satellite orbit.
2.9.4 Rescue and Return of Astronauts. Both the Outer Space Treaty and
the Rescue and Return of Astronauts Agreement establish specific requirements
for coming to the aid of astronauts. The treaties do not distinguish between
civilian and military astronauts.
Astronauts of one nation engaged in outer space activities are to render all
possible assistance to astronauts of other nations in the event of accident or
distress. If a nation learns that spacecraft personnel are in distress or have made an
emergency or unintended landing in its territory, the high seas, or other
international area (e.g., Antarctica), it must notify the launching nation and the
Secretary-General of the United Nations, take immediate steps to rescue the
personnel if within its territory, and, if in a position to do so, extend search and
131. Treaty Between the United States and the Union of Soviet Socialist Republics on the
Limitation of Anti-Ballistic Missile Systems, 26 May 1972, 23 U.S.T. 3435; T.I.A.S. 7503, reprinted
in AFP 1 10-20 at 4-29. Sofaer, The ABM Treaty and the Strategic Defense Initiative, 99 Harv. L.
Rev. 1972, and Chayes & Chayes, Testing and Development of 'Exotic' Systems Under the ABM
Treaty: The Great Reinterpretation Caper, 99 Harv. L. Rev. 1956 (1986), discuss the
interpretation of the scope of the obligation in article V of the ABM Treaty not to "develop, test or
deploy space-based ABM systems or components." See 26 Int'l Leg. Mat'ls 282 (1987), id. 1130,
and id. 1743 for additional debates on this issue, as well as 133 Cong. Rec. S6623 (19 May 1987), id.
S12181 (16 Sep. 1987) (State Department Legal Adviser's report to Congress), and id. S6809 (20
May 1987) (fourth part of Sen. Nunn's restrictive view). See also the series of articles and
commentaries in Arms Control Treaty Reinterpretation, 137 U. Pa. L. Rev. 1351-1558(1989).
132. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under
Water, 5 August 1963, 14 U.S.T. 1313, T.I.A.S. 5433, 480 U.N.T.S. 43, reprinted in AFP 110-20,
at 4-3. See paragraph 10.2.2.5, note 9 (p. 463).
133. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques, 18 May 1977, 31 U.S.T. 333; T.I.A.S. 9614, reprinted in AFP 110-20 at
4-74.
134. Sen. Treaty Doc. 99-6, Sen. Ex. Rep. 99-4, entered into force for the United States 10
January 1986.
135. Sen. Treaty Doc. 97-21, entered into force for the United States 27 October 1983.
154 Commander's Handbook on the Law of Naval Operations
rescue assistance if a high seas or other international area landing is involved.
1 36
Rescued personnel are to be safely and promptly returned.
Nations also have an obligation to inform the other parties to the Outer Space
Treaty or the Secretary-General of the United Nations if they discover outer
1 37
space phenomena which constitute a danger to astronauts.
2.9.5 Return of Outer Space Objects. A party to the Rescue and Return of
Astronauts Agreement must also notify the Secretary-General of the United
Nations if it learns of an outer space object's return to earth in its territory, on the
high seas, or in another international area. If the object is located in sovereign
territory and the launching authority requests the territorial sovereign's
assistance, the latter must take steps to recover and return the object. Similarly,
such objects found in international areas shall be held for or returned to the
launching authority. Expenses incurre in assisting the launching authority in
either case are to be borne by the launching authority. Should a nation discover
that such an object is of a "hazardous or deleterious" nature, it is entitled to
immediate action by the launching authority to eliminate the danger of harm
from its territory.
136. Outer Space Treaty, paragraph 2.9.2.1, note 116 (p. 150), art. V; Rescue and Return
Agreement, paragraph 2.9.3, note 126 (p. 151), arts. 1-4. If the astronauts land during an armed
conflict between the launching nations and the nations in which they land, the law of armed
conflict would likely apply and permit retention of the astronauts under the 1949 Geneva
Conventions. See Part II, Chapter 11 of this publication.
137. Outer Space Treaty, art. V.
138. Rescue and Return Agreement, art. 5.
International Status and Navigation of Warships 155
ANNEX A2-1
R 020525Z JUN 94
FM CINCPACFLT PEARL HARBOR HI
TO ALPACFLT
INFO USCINCPAC HONOLULU HI
CINCLANTFLT NORFOLK VA
CINCUSNAVEUR LONDON UK//N00//
BT
UNCLAS //N00000//
ALPACFLT 016/94
SUBJ/SOVEREIGN IMMUNITY POLICY
REF/A/DOC/OPNAV/05OCT8 9
REF/B/DOC/SECNAV/14SEP90
REF/C/DOC/CINCPACFLT/24JAN8 5
REF/D/DOC/SECNAV/24JAN92
NARR/REF A IS PARAS 2.1.2 AND 3.2.3 OF NWP-9A. REF B IS
ARTS
0828, 0859, AND 0860 OF U.S. NAVY REGULATIONS 1990. REF
C IS
CINCPACFLTINST 5440. 3H, ART. 2605. REF D IS SECNAVINT
6210.2,
QUARANTINE REGULATIONS OF THE ARMED FORCES, PARA 1.5.
RMKS/1. PURPOSE. TO PROVIDE PERIODIC EMPHASIS ON UNITED
STATES
SOVEREIGN IMMUNITY POLICY. REFS A THROUGH D ARE
PERTINENT POLICY DIRECTIVES.
2. U.S. MILITARY AIRCRAFT, WARSHIPS, AND AUXILIARIES
(INCLUDING USNS VESSELS AND AFLOAT PREPOSITIONED FORCE
SHIPS) ENJOY SOVEREIGN IMMUNITY FROM INTERFERENCE BY
FOREIGN GOVERNMENTAL AUTHORITIES (E.G., POLICE, HEALTH,
CUSTOMS, IMMIGRATION, MILITARY, ETC.) WHETHER WITHIN
FOREIGN TERRITORY, FOREIGN TERRITORIAL SEAS/AIRSPACE, OR
INTERNATIONAL WATERS/AIRSPACE. THIS IMMUNITY PRECLUDES
FOREIGN GOVERNMENTAL ACTIONS SUCH AS SEARCH, INSPECTION,
OR DETENTION; AND ALSO PROHIBITS FOREIGN GOVERNMENTAL
OFFICIALS FROM EXERCISING AUTHORITY OVER PASSENGERS OR
CREW WHEN EMBARKED, OR WITH RESPECT TO OFFICIAL OR
PRIVATE ACTS PERFORMED ON BOARD.
3. ALTHOUGH IMMUNE FROM LAW ENFORCEMENT ACTIONS BY
FOREIGN AUTHORITIES, U.S. MILITARY SHIPS AND AIRCRAFT
PROCEEDING TO AND FROM A FOREIGN PORT UNDER DIPLOMATIC
CLEARANCE SHALL COMPLY WITH REASONABLE HOST COUNTRY
REQUIREMENTS AND/OR RESTRICTIONS ON TRAFFIC, HEALTH,
156 Commander's Handbook on the Law of Naval Operations
CUSTOMS, IMMIGRATION, QUARANTINE, ETC. NONCOMPLIANCE,
HOWEVER, IS SUBJECT ONLY TO BEING ASKED TO COMPLY,
PURSUING DIPLOMATIC PROTEST, OR TO BEING ORDERED TO
LEAVE THE HOST COUNTRY'S TERRITORY OR TERRITORIAL
SEA/AIRSPACE, NOT TO LAW ENFORCEMENT ACTIONS.
4 . WHILE ENFORCEMENT ACTIONS BY FOREIGN OFFICIALS TO
ENSURE COMPLIANCE WITH HOST COUNTRY LEGAL REQUIREMENTS
ARE NOT PERMITTED, COMMANDING OFFICERS, MASTERS, AND
AIRCRAFT COMMANDERS MAY THEMSELVES, OR THROUGH THEIR
REPRESENTATIVES, CERTIFY COMPLIANCE WITH HOST COUNTRY
LAWS/REQUIREMENTS. IF REQUESTED BY HOST COUNTRY
AUTHORITIES, CERTIFICATION MAY INCLUDE A GENERAL
DESCRIPTION OF MEASURES TAKEN BY U.S. OFFICIALS TO
COMPLY WITH REQUIREMENTS. AT THE DISCRETION OF THE
COMMANDING OFFICER, MASTER, OR AIRCRAFT COMMANDER,
FOREIGN AUTHORITIES MAY BE RECEIVED ON BOARD FOR PURPOSE
OF ACCEPTING CERTIFICATION OF COMPLIANCE, BUT UNDER NO
CIRCUMSTANCES MAY THEY BE PERMITTED TO EXERCISE
GOVERNMENTAL AUTHORITY, NOR MAY THEY INSPECT THE
SHIP/AIRCRAFT OR ACT AS AN OBSERVER WHILE U.S. PERSONNEL
CONDUCT SUCH INSPECTIONS.
5. BEFORE ENTERING THE TERRITORY, TERRITORIAL SEA, OR
AIRSPACE OF A FOREIGN COUNTRY, COMMANDING OFFICERS,
MASTERS, OR AIRCRAFT COMMANDERS SHOULD DETERMINE THE
NATURE AND EXTENT OF LOCAL LAWS /REQUIREMENTS BY
REVIEWING APPLICABLE SOURCES OF INFORMATION, E.G.,
FOREIGN CLEARANCE GUIDE, PORT DIRECTORY, OPORDS, LOGREQ
RESPONSES, NCIS SUMMARIZES OF LOCAL LAW ENFORCEMENT
ISSUES, OR OTHER PERTINENT REFERENCE SOURCES.
6. GUIDANCE FOR SPECIFIC SITUATIONS IS PROVIDED BELOW:
SITUATION GUIDANCE
A. FOREIGN AUTHORITIES DO NOT PERMIT THE
REQUEST SHIP/AIRCRAFT TO BE
PERMISSION/DEMAND TO SEARCHED FOR ANY REASON BY
SEARCH SHIP, AIRCRAFT, FOREIGN AUTHORITIES.
OR ANY PART THEREOF, EXPLAIN U.S. SOVEREIGN
INCLUDING PERSONAL IMMUNITY POLICY. U.S.
EFFECTS OR LOCKERS, FOR AUTHORITIES MAY THEMSELVES
CONTRABAND, EVIDENCE OF CONDUCT CONSENT, COMMAND
CRIME, ETC. AUTHORIZED, OR OTHER LAWFUL
SEARCHES OR INSPECTIONS AND
PRESERVE EVIDENCE WITHOUT
International Status and Navigation of Warships 157
FOREIGN OFFICIALS BEING
PRESENT, BUT EVIDENCE
SEIZED SHALL NOT BE TURNED
OVER TO FOREIGN AUTHORITIES
ABSENT SPECIFIC DIRECTION
BY HIGHER AUTHORITY.
B. FOREIGN AGRICULTURAL OR
HEALTH INSPECTIONS
DEMAND/ REQUEST TO COME
ON BOARD U.S. AIRCRAFT
OR SHIP TO CONDUCT
SPRAYING/INSPECTION I AW
FOREIGN COUNTRY
REGULATIONS.
U.S. AUTHORITIES SHALL
REFUSE FOREIGN OFFICIALS
ACCESS TO INSPECT OR SPRAY,
BUT MAY AGREE TO CONDUCT
REQUIRED
INSPECTION/SPRAYING
THEMSELVES AND CERTIFY THAT
APPROPRIATE REQUIREMENTS
HAVE BEEN MET.
C. FOREIGN AUTHORITIES
REQUEST/ DEMAND CREW
LIST, PERSONNEL RECORDS
OR PERSONAL INFORMATION
ON MILITARY PERSONNEL.
COMPLY WITH APPLICABLE
STATUS OF FORCE AGREEMENTS
(SOFA) , OR OTHER
INTERNATIONAL AGREEMENT.
ABSENT AN INTERNATIONAL
AGREEMENT REQUIRING
DISCLOSURE, U.S.
AUTHORITIES MAY NOT PROVIDE
SUCH INFORMATION, BUT MAY
CERTIFY COMPLIANCE WITH
INOCULATION OR OTHER PUBLIC
HEALTH REQUIREMENTS THAT
CREW IS FREE OF
COMMUNICABLE DISEASE. WITH
RESPECT TO HOST COUNTRY
INQUIRIES ABOUT HIV
INFECTION, THE FOLLOWING
CERTIFICATION MAY BE
OFFERED: U.S. POLICY
REQUIRES ALL MILITARY
PERSONNEL TO BE SCREENED
FOR SEROLOGICAL EVIDENCE OF
HIV INFECTION. THOSE
TESTING POSITIVE FOR HIV
ARE ASSIGNED WITHIN THE
158 Commander's Handbook on the Law of Naval Operations
UNITED STATES AND NOT TO
DEPLOYING UNITS.
D. FOREIGN AUTHORITIES
REQUEST/ DEMAND CREW
LISTS, PERSONNEL
RECORDS OR PERSONAL
INFORMATION ABOUT
NON-MILITARY PERSONNEL,
INCLUDING CREWMEMBERS
(CIVIL SERVICE AND
COMMERCIAL MARINERS),
OTHER CIVIL CONTRACTOR
PERSONNEL (E.G. TECH
REPS) .
COMPLY WITH APPLICABLE SOFA
OR OTHER INTERNATIONAL
AGREEMENT. ABSENT AN
INTERNATIONAL AGREEMENT
REQUIRING DISCLOSURE, A
LIST LIMITED TO NAMES AND
PASSPORT NUMBERS OF
NON-MILITARY PERSONNEL ON
BOARD USN SHIPS (VESSELS)/
AIRCRAFT MAY BE PROVIDED TO
FOREIGN AUTHORITIES. OTHER
INFORMATION CONCERNING
EMBARKED NON-MILITARY
PERSONNEL, SUCH AS HEALTH
RECORDS, JOB DESCRIPTION,
OR EMPLOYER, MAY NOT BE
PROVIDED.
E. FOREIGN AUTHORITIES
REQUEST/ DEMAND A LIST
OF STORES OR FIREARMS
ON BOARD VESSELS/ ACFT .
DO NOT PROVIDE LIST OF
STORES/ FIREARMS WHICH ARE
TO REMAIN ON BOARD
VESSEL/ACFT. LIST OF ITEMS
TO BE TAKEN OFF VESSEL/ACFT
MAY BE PROVIDED.
FOREIGN AUTHORITIES
ATTEMPT TO LEVY FINE OR
TAX ON VESSEL/ACFT.
PAYMENT OF ANY FINES OR
TAXES IS PROHIBITED
REGARDLESS OF REASONS
OFFERED FOR IMPOSITION.
APPROPRIATE CHARGES FOR
PILOTS, TUGBOATS, SEWER,
WATER, POWER AND OTHER
REQUIRED GOODS OR SERVICES
MAY BE PAID.
FOREIGN AUTHORITIES
REQUIRE VESSELS TO FLY
FOREIGN COUNTRY'S FLAG
WHILE IN PORT.
FLYING FOREIGN COUNTRY'S
FLAG IS PROHIBITED EXCEPT
IN SPECIAL CIRCUMSTANCES AS
PROVIDED IN NAVY
International Status and Navigation of Warships 1 59
REGULATIONS. WHEN IN DOUBT
CONSULT HIGHER AUTHORITY.
H. IN A COUNTRY WHICH DOES
NOT HAVE A SOFA WITH
THE U.S. , FOREIGN
AUTHORITIES DEMAND/
REQUEST THAT AN
INDIVIDUAL (MILITARY OR
EMBARKED CIVILIAN)
SUSPECTED OF AN OFFENSE
BE TURNED OVER FOR
ARREST OR INVESTIGATION
PURPOSES.
IF AN INDIVIDUAL (MILITARY
OR EMBARKED CIVILIAN)
SUSPECTED OF AN OFFENSE
ASHORE IS ON BOARD, EITHER
BECAUSE HE HAS RETURNED TO
THE VESSEL/ACFT BEFORE
BEING APPREHENDED, OR
BECAUSE HE WAS RETURNED BY
LOCAL POLICE OR SHORE
PATROL BEFORE FORMAL DEMAND
FOR CUSTODY WAS MADE BY
FOREIGN AUTHORITIES, DO NOT
TURN OVER INDIVIDUAL
WITHOUT PERMISSION FROM
HIGHER AUTHORITY. IF
FOREIGN OFFICIALS RETURN
SOMEONE TO U.S.
JURISDICTION, U.S.
OFFICIALS MAY NOT PROMISE
TO RETURN THE INDIVIDUAL
UPON LATER DEMAND BY
FOREIGN AUTHORITIES.
IN A COUNTRY WHICH HAS
A SOFA WITH THE U.S. ,
FOREIGN AUTHORITIES
REQUEST AN INDIVIDUAL
WHO IS SUSPECTED OF AN
OFFENSE BE TURNED OVER
TO THEM FOR ARREST OR
INVESTIGATION.
IAW SOFA, U.S. OFFICIALS
MAY BE REQUIRED TO
SURRENDER AN INDIVIDUAL
SUSPECTED OF COMMITTING AN
OFFENSE IN THE FOREIGN
JURISDICTION; TO TURN OVER
EVIDENCE OBTAINED BY
VESSEL/ACFT INVESTIGATORS;
OR TO PROVIDE SUSPECTED
PERSONNEL TO PARTICIPATE IN
OFF SHIP/ACFT
IDENTIFICATION OR LINE-UP.
IF ANY DOUBT EXISTS AS TO
SOFA TERMS, GUIDANCE SHOULD
BE SOUGHT FROM HIGHER
AUTHORITY.
160 Commander's Handbook on the Law of Naval Operations
J. DURING GENERAL PUBLIC
VISITING IN FOREIGN
PORTS, VISITORS ENGAGE
IN PROTEST AND/OR
DISRUPTIVE ACTIVITY, OR
OTHERWISE VIOLATE
CONDITIONS OF ACCESS TO
SHIP OR AIRCRAFT.
RESTORE ORDER, ESCORT
OFFENDERS OFF SHIP OR
AIRCRAFT AND TURN OVER TO
LOCAL AUTHORITIES. DO NOT
ALLOW/ INVITE FOREIGN
POLICE ON BOARD TO ARREST
OR TAKE CUSTODY OF THE
OFFENDERS.
7. ALL CINCPACFLT PERSONNEL WHO ARE LIKELY TO DEAL WITH
FOREIGN OFFICIALS (E.G., CO, MASTER OF A SHIP, ACFT
COMMANDER, SUPPLY OFFICER, SHORE PATROL OFFICER, MEDICAL
DEPT REPRESENTATIVE, LIAISON PERSONNEL, ETC.) SHOULD
UNDERSTAND U.S. SOVEREIGN IMMUNITY POLICY AND COMPLY
WITH REQUIREMENTS. IF IN DOUBT ABOUT APPLICATION OF
PRINCIPLES OF SOVEREIGN IMMUNITY TO SPECIFIC SITUATIONS,
CONSULT A JUDGE ADVOCATE FOR ADVICE OR ASSISTANCE,
AND/OR SEEK GUIDANCE FROM HIGHER AUTHORITY.
. ADM R. J. KELLY, USN
International Status and Navigation of Warships 1 61
ANNEX A2-2
JOINT STATEMENT BY
THE UNITED STATES OF AMERICA
AND THE UNION OF SOVIET
SOCIALIST REPUBLICS
UNIFORM INTERPRETATION OF
RULES OF INTERNATIONAL LAW
GOVERNING INNOCENT PASSAGE
Since 1986, representatives of the United
States of America and the Union of Soviet
Socialist Republics have been conducting
friendly and constructive discussions of certain
international legal aspects of traditional uses of
the oceans, in particular, navigation.
The Governments are guided by the
provisions of the 1982 United Nations
Convention on the Law of the Sea, which, with
respect to traditional uses of the oceans,
generally constitute international law and
practice and balance fairly the interests of all
States. They recognize the need to encourage all
States to harmonize their international laws,
regulations and practices with those provisions.
The Governments consider it useful to issue
the attached Uniform Interpretation of the
Rules of International Law Governing
Innocent Passage. Both Governments have
agreed to take the necessary steps to conform
their internal laws, regulations and practices
with this understanding of the rules.
FOR THE UNITED STATES OF
AMERICA:
James A. Baker, III
FOR THE UNION OF SOVIET
SOCIALIST REPUBLICS:
E.A. Shevardnadze
Jackson Hole, Wyoming
September 23, 1989
1. The relevant rules of international law
governing innocent passage of ships in the
territorial sea are stated in the 1982 United
Nations Convention on the Law of the Sea
(Convention of 1982), particularly in Part II,
Section 3.
2. All ships, including warships, regardless
of cargo, armament or means of propulsion,
enjoy the right of innocent passage through the
territorial sea in accordance with international
law, for which neither prior notification nor
authorization is required.
3. Article 19 of the Convention of 1982 sets
out in paragraph 2 an exhaustive list of activities
that would render passage not innocent. A ship
passing through the territorial sea that does not
engage in any of those activities is in innocent
passage.
4. A coastal State which questions whether
the particular passage of a ship through its
territorial sea is innocent shall inform the ship of
the reason why it questions the innocence of the
passage, and provide the ship an opportunity to
clarify its intentions or correct its conduct in a
reasonably short period of time.
5. Ships exercising the right of innocent
passage shall comply with all laws and
regulations of the coastal State adopted in
conformity with relevant rules of international
law as reflected in Articles 21, 22, 23 and 25 of
the Convention of 1982. These include the laws
and regulations requiring ships exercising the
right of innocent passage through its territorial
sea to use such sea lanes and traffic separation
schemes as it may prescribe where needed to
protect safety of navigation. In areas where no
such sea lanes or traffic separation schemes have
been prescribed, ships nevertheless enjoy the
right of innocent passage.
Department of State Bulletin/November 1989
162 Commander's Handbook on the Law of Naval Operations
6. Such laws and regulations of the coastal
State may not have the practical effect of
denying or impairing the exercise of the right of
innocent passage as set forth in Article 24 of the
Convention of 1982.
7. If a warship engages in conduct which
violates such laws or regulations or renders its
passage not innocent and does not take
corrective action upon request the coastal State
may require it to leave the territorial sea, as set
forth in Article 30 of the Convention of 1982.
In such case the warship shall do so
immediately.
8. Without prejudice to the exercise of
rights of coastal and flag States, all differences
which may arise regarding a particular case of
passage of ships through the territorial sea shall
be settled through diplomatic channels or other
agreed means.
International Status and Navigation of Warships 163
ANNEX A2-3
STATEMENT OF POLICY
BY
THE DEPARTMENT OF STATE,
THE DEPARTMENT OF DEFENSE,
AND
THE UNITED STATES COAST GUARD
CONCERNING
EXERCISE OF
THE RIGHT OF ASSISTANCE ENTRY
I. Purpose. To establish a uniform policy for the exercise of the right of
assistance entry by United States military ships and aircraft.
II. Background. For centuries, mariners have recognized a humanitarian duty to
rescue others, regardless of nationality, in danger or distress from perils of the sea.
The right to enter a foreign territorial sea to engage in bona fide efforts to render
emergency assistance to those in danger or distress from perils of the sea
(hereinafter referred to as the right of assistance entry) has been recognized since
the development of the modern territorial sea concept in the eighteenth century.
Acknowledgment of the right of assistance entry is evidenced in customary
international law. The right of assistance entry is independent of the rights of
innocent passage, transit passage, and archipelagic sea lanes passages.
III. Right of Assistance Entry. The right of assistance entry is not dependent
upon seeking or receiving the permission of the coastal State. While the
permission of the coastal State is not required, notification of the entry should be
given to the coastal State both as a matter of comity and for the purpose of
alerting the rescue forces of that State. The right of assistance entry extends only
to rescues where the location of the danger or distress is reasonably well known.
The right does not extend to conducting searches within the foreign territorial
sea without the permission of the coastal State. The determination of whether a
danger or distress requiring assistance entry exists properly rests with the
operational commander on scene.
IV. Policy.
a. Assistance Entry by Military Vessels. When the operational commander of
a United States military vessel determines or is informed that a person, ship, or
aircraft in a foreign territorial sea (12nm or less) is in danger or distress from perils
164 Commander's Handbook on the Law of Naval Operations
of the sea, that the location is reasonably well known, and that the United States
military vessel is in a position to render assistance, assistance may be rendered.
Notification of higher authority and the coastal State will be as specified in
applicable implementing directives. Implementing directives will provide for
prompt notification of the Department of State.
b. Assistance Entry by Military Aircraft. In accordance with applicable
implementing directives, when the appropriate operational commander
determines or is informed that a person, ship, or aircraft in a foreign territorial sea is
in danger or distress from perils of the sea, that the location is reasonably well
known, and that he is in a position to render assistance by deploying or employing
military aircraft, he shall request guidance from higher authority by the fastest
means available. Implementing directives will provide for consultation with the
Department of State prior to responding to such requests. If, in the judgment of the
operational commander, however, any delay in rendering assistance could be
life-threatening, the operational commander may immediately render the
assistance. Notification of higher authority and the coastal State will be as specified
in applicable implementing directives. Implementing directives will provide for
prompt notification of the Department of State.
V. Application. This statement of policy applies only in cases not covered by prior
agreement with the coastal State concerned. Where the rendering of assistance to
persons, ships, or aircraft in a foreign territorial sea is specifically addressed by an
agreement with that coastal State, the terms of the agreement are controlling.
VI. Implementation. The parties to this statement of policy will implement the
policy in directives, instructions, and manuals promulgated by them or by
subordinate commands and organizations.
June 27. 1986 /S/
Date for the Department of State
Abraham Sofaer, Legal Adviser
July 20. 1986 /S/
Date for the Department of Defense
Hugh O'Neill, Oceans Policy Adviser
Aug 8. 1986 /S/
Date for the U.S. Coast Guard
P.A. Yost
Admiral, U.S. Coast Guard
Commandant
International Status and Navigation of Warships 1 65
ANNEX A2-4
CHAIRMAN OF THE JOINT
CHIEFS OF STAFF
INSTRUCTION
J-5 CJCSI 2410.01A
DISTRIBUTION: A,C,S 23 APRIL 1997
GUIDANCE FOR THE EXERCISE OF RIGHT OF
ASSISTANCE ENTRY
References: a. "Statement of Policy by the Department of
State, the Department of Defense, and the United States Coast Guard
Concerning Exercise of the Fdght of Assistance Entry," 8 August 1986
b. Joint Pub 3-50/COMDTINST M1620.5 (Coast Guard), 1 February
1991, "National Search and Rescue Manual," Volume 1
c. DOD 2500.1M, 6 January 1997, "Maritime Claims Reference Manual"
d. CJCSI 3121.01, "Standing rules of Engagement for US Forces,"
Enclosure A, subpragraph 8(e)
1. Purpose. This instruction establishes uniform policy for the exercise of the
right of assistance entry (PJ\E) by US ships or aircraft within the territorial seas or
archipelagic 'waters of foreign states.
2. Cancellation. CJCSI 2410.01, 20 July 1993, "Guidance for the Exercise of
right of Assistance Entry" is hereby canceled.
3. Applicability. This instruction applies to the CINCs, Services, and the
Directors for Operations and Strategic Plans and Policy, Joint staff. Copies are
provided to the Secretary of State and the Commandant of the Coast Guard for
information and use as appropriate.
4. Background.
a. For centuries, mariners have recognized a humanitarian duty to rescue
persons in distress due to perils of the sea, regardless of their nationality or
166 Commander's Handbook on the Law of Naval Operations
location. The international community has long accepted the right of vessels of
any nation to enter a foreign state's territorial sea to engage in good faith efforts to
render emergency assistance. RAE is independent of the customary
international legal rights of innocent passage, transit passage, and archipelagic sea
lanes passage.
b. Following incidents in which US vessels on scene failed to assist ships in
distress because of excessive concern about entry into the territorial sea of
another state, the Department of Defense, DOS and US Coast Guard reviewed
US Government policy. The result was a unified statement of policy concerning
RAE within the territorial sea of another state, issued in August 1986
(reference a).
c. The UN Law of the Sea Convention provides that ships of all states enjoy
the right of innocent passage through the territorial sea of other states. Article 18
of the Convention provides that passage includes stopping and anchoring for the
purpose of rendering assistance to persons, ships, or aircraft in clanger or distress.
As the regime of innocent passage now applies in archipelagic waters, and given
the longstanding duty of mariners to render assistance to persons in distress due to
perils of the sea, it follows that the right of assistance entry is equally applicable to
archipelagic waters.
d. This instruction implements the 1986 statement of policy and extends it
to include archipelagic -waters. This instruction applies in all cases except those
specifically covered by prior agreements with foreign states that address assistance
to persons, ships, or aircraft in their territorial seas or archipelagic waters. The
enclosure discusses bilateral RAE agreements with Canada and Mexico.
5. Policy.
a. RAE applies only to rescues in which the location of the persons or
property in danger or distress is reasonably well known. The right does not
extend to conducting area searches for persons or property in danger or distress
when their location is not yet reasonably well known. US forces will conduct
area searches within a U.S. recognized foreign territorial sea or archipelagic
waters only with the permission of the coastal state. Such permission may be by
international agreement, such as a search and rescue (SAR) agreement with that
state, as listed in Appendix B of reference b. When considering or conducting
area searches within a claimed or U.S. recognized foreign territorial sea or
archipelagic waters, commanders should inform those agencies listed in
Enclosure A, subparagraph 4a.
International Status and Navigation of Warships 167
b. RAE into the territorial sea or archipelagic waters of a foreign state
involves two conflicting principles: (1) the right of nations to regulate entry into
and the operations within territory under their sovereignty, and (2) the
time-honored mariners' imperative to render rapid and effective assistance to
persons, ships, or aircraft in imminent peril at sea without regard to nationality or
location.
c. The operational commander on the scene must determine whether RAE
is appropriate under the circumstances. The test is whether a person, ship, or
aircraft, whose position within the territorial sea or archipelagic waters of
another state is reasonably well known, is in danger or distress due to perils of the
sea and requires emergency assistance.
d. In determining whether to undertake RAE actions, commanders must
consider the safety of the military ships and aircraft they command, and of their
crews, as well as the safety of persons, ships, and aircraft in danger or distress.
e. Commanders should also consider whether other rescue units, capable
and willing to render timely and effective assistance, are on the scene or
immediately en route.
f. The customary international law of RAE is more fully developed for
vessels than for aircraft. Therefore, the military commander must consider the
possible reaction of the coastal or archipelagic state, especially if the commander
intends to employ military aircraft within its territorial sea or its archipelagic
waters.
g. Although exercise of BAE does not require the permission of the foreign
coastal or archipelagic state, US commanders should notify the state's authorities
of the entry in order to promote international comity, avoid misunderstanding,
and alert local rescue and medical assets.
h. Because of the implications for international relations and for US security,
commanders should keep appropriate authorities and the NMCC informed. See
subparagraph 8d(l) below.
i. PAE actions should comply with any applicable bilateral RAE and SAR
agreements (Enclosure B), including those listed in Appendix B of reference b.
168 Commander's Handbook on the Law of Naval Operations
j. Reference c is the DOD source document for determining the scope of a
particular maritime claim (e.g., extent of a claimed territorial sea) and whether or
not that particular maritime claim is recognized by the United States. The fact
that the United States has conducted an operational freedom of navigation
assertion or sent a protest note regarding a particular coastal state claim can be
taken as nonrecognition of the claim in question. Otherwise, the territorial sea of
a coastal state or the archipelagic waters of an archipelagic state will be regarded as
presumptively valid for the purpose of this instruction. The DOS "Limits of the
Seas" series and the Naval War College -'Blue Book, Vol. 66," are secondary
sources for determining whether and to what extent a particular country's
maritime claims are considered excessive by the United States.
k. The policy set forth in this instruction is consistent with the current
standing rules of engagement for US forces pursuant to reference d.
6. Definitions.
a. Operational commander on the scene. The senior officer in tactical
command of the unit(s) capable of rendering meaningful and timely assistance;
this commander is responsible for coordinating rescue efforts at the site.
b. Territorial sea. The belt of ocean measured seaward up to 12 nm from a
state's baselines determined in accordance with international law and subject to
the state's sovereignty. The U.S. does not recognize the portions of claimed
territorial sea more than 12 nm from properly drawn baselines.
c. Archipelagic waters. An archipelagic state is a state that is constituted
wholly of one or more groups of islands. Such states may draw straight
archipelagic baselines joining the outermost points of their outermost islands,
providing the ratio of water to land within the baselines is between 1 to 1 and
9 to 1. The waters enclosed within properly drawn archipelagic baselines are
called archipelagic waters and are subject to the archipelagic state's sovereignty.
d. Danger or distress. A clearly apparent risk of death, disabling injury, loss,
or significant damage.
e. Perils of the sea. Accidents and dangers peculiar to maritime activities,
including storms, waves, and wind; grounding; fire, smoke and noxious fumes;
flooding, sinking, and capsizing; loss of propulsion or steering; and other hazards
of the sea.
International Status and Navigation of Warships 169
f. Emergency assistance. Rescue action that must be taken without delay to
avoid significant risk of death or serious injury or the loss of or major damage to a
ship or aircraft.
g. Military ships and aircraft. For the purposes of this instruction, a US
military ship is either a warship designated "USS" or an auxiliary in the Military
Sealift Command (MSC) force. For the purposes of this instruction, a US
military aircraft is an aircraft operated by a unit of the US Armed Forces, other
than the Coast Guard (except when operating as part of the Navy), bearing
military markings and commanded and manned by personnel of the Armed
Forces.
7. Responsibilities.
a. The Chairman of the Joint Chiefs of Staff will monitor the exercise of
RAE and develop further procedural guidance for the CINCs and the Chiefs of
the Services under the overall DOD policy guidance.
b. The combatant commanders will issue policy guidance and specific
procedural reporting requirements tailored to their areas of regional
responsibility and the forces under their operational control.
c. The NMCC will follow routine procedures to coordinate with cognizant
DOS and US Coast Guard officials to ensure timely notification, review, and
response to CINCs and operational commanders in RAE situations.
d. The Military Services will provide training on RAE operations,
coordination, and communications procedures.
e. Guidance for operational commanders is contained in Enclosure A.
8. Summary of Changes. This revision updates CJCSI 2410.01 to include the
right of assistance entry within archipelagic waters, clarifies that RAE only
applies within a foreign state's US-recognized territorial sea or archipelagic
waters and clarifies that the instruction applies to auxiliaries in the MSC Force.
9. Effective Date. This instruction is effective upon receipt.
170 Commander's Handbook on the Law of Naval Operations
For the Chairman of the Joint Chiefs of Staff:
/s/
Dennis C. Blair
Vice Admiral, U.S. Navy
Director, Joint Staff
Enclosures:
A — Guidance for Operational Commanders
B — Bilateral Agreements Affecting Right of Assistance Entry
International Status and Navigation of Warships 171
ENCLOSURE A
GUIDANCE FOR OPERATIONAL COMMANDERS
1. The operational commander of a US military ship should exercise RAE and
immediately enter a foreign state's US-recognized territorial sea or archipelagic
waters when all three following conditions are met:
a. A person, ship, or aircraft within the foreign territorial sea or archipelagic
waters is in danger or distress from perils of the sea and requires emergency
assistance.
b. The location is reasonably well known.
c. The US military ship is in a position to render timely and effective
assistance.
Although not a required condition, the operational commander should also
consider whether other rescue units, capable and willing to render timely and
effective assistance, are on the scene or immediately en route. Military ships
conducting RAE operations will not deploy aircraft (including helicopters)
within a US-recognized foreign territorial sea or archipelagic waters unless
paragraphs 2 or 3 below apply.
2. An operational commander may render emergency assistance employing US
military aircraft in a US recognized foreign territorial sea or archipelagic waters
under RAE only when the commander determines that all four following
conditions apply:
a. A person, ship, or aircraft in the foreign territorial sea or archipelagic
waters is in danger or distress from perils of the sea and requires emergency
assistance.
b. The location is reasonably well known.
c. The US military aircraft is able to render timely and effective assistance. If
available, unarmed aircraft will be used to conduct RAE activities.
d. Any delay in rendering assistance could be life threatening.
Enclosure A
172 Commander's Handbook on the Law of Naval Operations
Although not a required condition, the operational commander should also
consider whether other rescue units, capable and willing to render timely and
effective assistance, are on the scene or immediately en route.
3. An operational commander may render assistance in non-life-threatening
situations employing US military aircraft in a US-recognized foreign territorial
sea or archipelagic waters under RAE when the following two conditions are
met:
a. The Conditions in subparagraphs 2a, b, and c above are met.
b. The cognizant CINC or other appropriate authority in the operational
chain of command has specifically authorized the exercise of RAE employing
aircraft. Before authorizing RAE employing aircraft, such higher authority will
consult with the DOS (Operations Center) by contacting the NMCC.
4. When a commander enters or authorizes entry into the claimed or
US-recognized territorial sea or archipelagic waters of a foreign state under
RAE, the commander will immediately notify:
a. Appropriate authorities and the NMCC by an OPREP-3 PINNACLE.
The OPP<£P-3 PINNACLE will describe location; unit(s) involved; nature of
the emergency assistance; reaction by the coastal or archipelagic state, including
efforts to deny entry or offers of assistance; and estimated time to complete the
mission. The NMCC will immediately inform the DOS (Operations Center)
and Headquarters, US Coast Guard (Flag Plot). (USCG HQ is prepared to
facilitate contacting foreign state rescue authorities to notify them of the I^AE
operation, as appropriate.) The cognizant Chief of Mission and US Defense
Attache Office (USDAO) will be information addresses.
b. The coastal or archipelagic state, by the fastest means available, of the
location, unit(s) involved, nature of the emergency and assistance required,
whether any assistance is needed from that government, and estimated time of
departure from the territorial sea or archipelagic waters. Contact will normally
be with the Rescue Coordination Center of the foreign state involved.
Enclosure A
International Status and Navigation of Warships 173
ENCLOSURE B
BILATERAL AGREEMENTS AFFECTING
RIGHT OF ASSISTANCE ENTRY
International agreements to which the United States is a party and that modify
the application of this guidance are discussed below. (For more information, see
Appendix B of reference b.)
a. Canada. "Memorandum of Understanding Between the United States
Coast Guard, the United States Air Force, the Canadian Forces and the Canadian
Coast Guard on Search and Rescue," 24 March 1995.
(1) This understanding states that in accordance with customary
international law, solely for the purposes of rendering emergency rescue
assistance to persons, vessels, or aircraft in danger or distress, when the location is
reasonably well known, SAR units of either country may immediately enter
onto or over the territory or the territorial seas of the other country, with
notification of such entry made as soon as practicable.
(2) Pursuant to this understanding, commanders should notify the nearest
Canadian Rescue Coordination Centre (RCC). (Upon receipt by the NMCC
of the OPREP-3 required in subparagraph 4a, Enclosure A of this instruction,
the NMCC will notify US Coast Guard Headquarters, which will arrange
contact with the appropriate Canadian RCC.)
b. Mexico. Treaty to Facilitate Assistance to and Salvage of Vessels in
Territorial Waters," 13 June 1935, T.I.A.S. No. 905, 49 Stat. 3359.
(1) This treaty permits vessels and rescue equipment of either country to
assist vessels (and crews) of their own nationals that are disabled or in distress
within the territorial waters or on the shores of the other country:
(a) Within a 720-nm radius of the intersection of the international
boundary line and the Pacific Coast.
(b) Within a 200-nm radius of the intersection of the international
boundary line and the coast of the Gulf of Mexico.
Enclosure B
174 Commander's Handbook on the Law of Naval Operations
(2) The treaty requires the commander to send notice of entry to assist a
distressed vessel to appropriate authorities of the other country at the earliest
possible moment. Assistance efforts may proceed unless the authorities advise
that such assistance is unnecessary.
(3) In this treaty, assistance means any act that helps prevent injury arising
from a marine peril to persons or property, and the term vessel includes aircraft.
Enclosure B
International Status and Navigation of Warships 1 75
ANNEX A2-5
R 061630Z JUN 88
FM NAVY JAG ALEXANDRIA VA
TO AIG NINE NINE ZERO TWO
BT
UNCLAS //NO5800//
SUB J: GUIDANCE FOR JUDGE ADVOCATES CONCERNING THE
TRANSIT PASSAGE REGIME IN INTERNATIONAL STRAITS
1. PASS TO ASSIGNED JUDGE ADVOCATES.
2. THIS MESSAGE PROVIDES GUIDANCE AND AMPLIFYING
INFORMATION CONCERNING THE RIGHT OF TRANSIT PASSAGE
THROUGH INTERNATIONAL STRAITS AS IT EXISTS IN CUSTOMARY
INTERNATIONAL LAW AS REFLECTED IN THE 1982 U.N.
CONVENTION ON THE LAW OF THE SEA (HEREINAFTER REFERRED
TO AS "THE 1982 CONVENT I ON" ) . THE US IS NOT A SIGNATORY
TO THE 1982 CONVENTION DUE TO ITS SEABED MINING
PROVISIONS. HOWEVER, IN HIS STATEMENT ON UNITED STATES
OCEANS POLICY OF MARCH 10, 1983, PRESIDENT REAGAN
ANNOUNCED THAT THE US CONSIDERS THE NON-SEABED
PROVISIONS OF THE 1982 CONVENTION AS REFLECTIVE OF
EXISTING MARITIME LAW AND PRACTICE AND THAT THE US WOULD
ACT ACCORDINGLY.
3. THE REGIME OF TRANSIT PASSAGE IS DEFINED IN PART III
(ARTICLES 34 THROUGH 45) OF THE 1982 CONVENTION. TRANSIT
PASSAGE MEANS THE EXERCISE OF THE FREEDOM OF NAVIGATION
AND OVERFLIGHT, SOLELY FOR THE PURPOSE OF CONTINUOUS AND
EXPEDITIOUS TRANSIT OF A STRAIT. THERE IS NO REQUIREMENT
OF PRIOR NOTIFICATION TO OR AUTHORIZATION OF THE STATE
OR STATES BORDERING A STRAIT. WITH VERY FEW EXCEPTIONS,
SOME NOTED IN PARAGRAPH 8 BELOW, THE REGIME APPLIES TO
ALL STRAITS USED FOR INTERNATIONAL NAVIGATION BETWEEN
ONE PART OF THE HIGH SEAS OR AN EXCLUSIVE ECONOMIC ZONE
(EEZ) AND ANOTHER PART OF THE HIGH SEAS OR AN EEZ, IF
EITHER OF THE FOLLOWING CONDITIONS EXIST: (A) THE
TERRITORIAL SEA CLAIMS (OF 12 NM OR LESS) OF THE STATE
OR STATES BORDERING THE STRAIT OVERLAP SO THAT THERE IS
176 Commander's Handbook on the Law of Naval Operations
NO HIGH SEAS OR EEZ ROUTE THROUGH THE STRAIT, OR (B)
THERE IS NO OVERLAP, BUT THE RESULTING CORRIDOR BETWEEN
THE AREAS OF TERRITORIAL SEA IS UNSUITABLE FOR SURFACE
OR SUBSURFACE TRANSIT BECAUSE OF ITS NAVIGATIONAL AND
HYDROGRAPHIC CHARACTERISTICS.
4. THE GEOGRAPHICS OF STRAITS VARY. THE AREAS OF
OVERLAPPING TERRITORIAL SEAS IN MANY CASES DO NOT
ENCOMPASS THE ENTIRE AREA OF THE STRAIT IN WHICH THE
TRANSIT PASSAGE REGIME APPLIES. THE REGIME APPLIES NOT
ONLY IN OR OVER THE WATERS OVERLAPPED BY TERRITORIAL
SEAS BUT ALSO THROUGHOUT THE STRAIT AND IN ITS
APPROACHES, INCLUDING AREAS OF THE TERRITORIAL SEA THAT
ARE OVERLAPPED. THE STRAIT OF HORMUZ PROVIDES A CASE IN
POINT; ALTHOUGH THE AREA OF OVERLAP OF THE TERRITORIAL
SEAS OF IRAN AND OMAN IS RELATIVELY SMALL, THE REGIME OF
TRANSIT PASSAGE APPLIES THROUGHOUT THE STRAIT AS WELL AS
IN ITS APPROACHES INCLUDING AREAS OF THE OMANI AND THE
IRANIAN TERRITORIAL SEAS NOT OVERLAPPED BY THE OTHER.
(NOTE: THE ESSENCE OF TRANSIT PASSAGE IS THAT A VESSEL
OR AIRCRAFT IN A STRAIT CONTINUOUSLY AND EXPEDITIOUSLY
MOVING BETWEEN TWO BODIES OF WATER (IN WHICH THE FREEDOM
OF NAVIGATION AND OVERFLIGHT IS THE APPLICABLE REGIME)
NEED NOT BECOME SUBJECT TO THE REGIME OF INNOCENT
PASSAGE WHEN REQUIRED TO ENTER A TERRITORIAL SEA IN THE
STRAIT OR ITS APPROACHES.)
5. SHIPS AND AIRCRAFT ENGAGED IN TRANSIT PASSAGE ARE
SUBJECT TO THE RESTRICTIONS AND OBLIGATIONS DESCRIBED IN
ARTICLE 39 OF THE 1982 CONVENTION. THEY MUST REFRAIN
FROM ACTIVITIES OTHER THAN THOSE INCIDENT TO THEIR
" NORMAL MODES" OF CONTINUOUS AND EXPEDITIOUS TRANSIT.
THUS, SHIPS AND AIRCRAFT MAY PROCEED IN THEIR NORMAL
MODES, I.E., SUBMARINES MAY TRANSIT SUBMERGED, SHIPS MAY
DEPLOY AIRCRAFT, AND NAVAL/AIR FORCES GENERALLY MAY BE
DEPLOYED IN A MANNER CONSISTENT WITH THE NORMAL SECURITY
NEEDS OF THOSE FORCES WHILE IN THE STRAIT. ALSO, THEY
MUST PROCEED WITHOUT DELAY, REFRAIN FROM ANY THREAT OR
USE OF FORCE, COMPLY WITH ACCEPTED INTERNATIONAL (I.E.,
IMO-TYPE) REGULATIONS, ETC. THERE IS NO REQUIREMENT FOR
STATE (INCLUDING MILITARY) AIRCRAFT (ARTICLE 39) OR FOR
SUBMERGED NAVIGATION TO FOLLOW ANY PARTICULAR ROUTE
WHILE EXERCISING THE RIGHT OF TRANSIT PASSAGE.
International Status and Navigation of Warships 177
6. THE REGIME OF TRANSIT PASSAGE DOES NOT IN OTHER
RESPECTS AFFECT THE LEGAL STATUS OF THE WATERS FORMING
THE STRAITS (ARTICLE 34.1). JURIDICALLY, INTERNAL WATERS
REMAIN INTERNAL WATERS; TERRITORIAL SEAS REMAIN
TERRITORIAL SEA; EEZ'S AND HIGH SEAS AREAS REMAIN EEZ'S
AND HIGH SEAS. (ARTICLE 35). ANY ACTIVITY WHICH IS NOT
AN EXERCISE OF THE RIGHT OF TRANSIT PASSAGE REMAINS
SUBJECT TO WHATEVER LEGAL REGIME IS APPLICABLE UNDER THE
1982 CONVENTION TO THE WATER AREA OF THE STRAIT IN WHICH
THE ACTIVITY OCCURS. (ARTICLE 38.3). THUS, IF NOT
ENGAGED IN TRANSIT PASSAGE, E.G., IF THE SHIP IS NOT
TRANSITING CONTINUOUSLY AND EXPEDITIOUSLY THROUGH THE
STRAIT, THE SHIP IS SUBJECT TO THE RULES FOR NAVIGATING
IN INTERNAL WATERS, TERRITORIAL SEAS, EEZ'S, AND HIGH
SEAS, AS THE CASE MAY BE.
7. IN SUMMARY, THE REGIME OF TRANSIT PASSAGE CONFERS
CERTAIN RIGHTS AND IMPOSES CERTAIN DUTIES ON SHIPS AND
AIRCRAFT EXERCISING THE RIGHT OF TRANSIT PASSAGE. THESE
RIGHTS AND DUTIES COMMENCE AS SOON AS THE SHIP OR
AIRCRAFT ENTERS THE APPROACHES TO AN INTERNATIONAL
STRAIT FOR THE PURPOSE OF CONTINUOUS AND EXPEDITIOUS
TRANSIT OF THE STRAIT, AND THEY CEASE AS SOON AS THE
SHIP OR AIRCRAFT DEPARTS THE APPROACHES ON THE OTHER
SIDE. HOWEVER, THE PROVISIONS FOR TRANSIT PASSAGE DO NOT
ALTER THE UNDERLYING JURIDICAL NATURE OF THE WATERS
WHICH MAKE UP THE STRAIT.
8. AS NOTED IN PARAGRAPH 3, ABOVE, THE 1982 CONVENTION
PROVIDES THAT THERE ARE A FEW STRAITS USED FOR
INTERNATIONAL NAVIGATION IN WHICH THE REGIME OF TRANSIT
PASSAGE DOES NOT APPLY. ONE CATEGORY (ARTICLE 35(C)) IS
STRAITS SPECIFICALLY REGULATED BY LONG-STANDING
CONVENTIONS, FOR EXAMPLE, THE BOSPORUS AND DARDANELLES,
WHICH ARE GOVERNED BY PROVISIONS OF THE MONTREUX
CONVENTION. ANOTHER CATEGORY (ARTICLE 38.1) IS STRAITS
FORMED BY AN ISLAND AND THE MAINLAND OF A STATE, IF
THERE EXISTS, SEAWARD OF THE ISLAND, A HIGH SEAS OR EEZ
ROUTE OF SIMILAR NAVIGATIONAL AND HYDROGRAPHIC
CONVENIENCE. THE PRIME EXAMPLE OF THIS LATTER CATEGORY
IS THE STRAIT OF MESSINA; IN SUCH A STRAIT, THE REGIME
OF NON-SUSPENDABLE INNOCENT PASSAGE APPLIES. (ARTICLE
45.1 (A) ) .
178 Commander's Handbook on the Law of Naval Operations
9. THIS MESSAGE HAS BEEN COORDINATED WITH THE DEPARTMENT
OF STATE AND REFLECTS OFFICIAL US POLICY. QUESTIONS
SHOULD BE REFERRED TO CODE 10 (DSN: 227-9161,
COMMERCIAL: 202-697-9161) .
BT
International Status and Navigation of Warships 179
ANNEX A2-6
(In draft as of 1 November 1997)
FM
TO
INFO
BT
UNCLAS//N00000//
MSGID/GENADMINXXXXXXXXX/-//
SUBJ/TRANSIT PASSAGE IN INTERNATIONAL STRAITS POLICY//
REF/A/DOD 4500.54-G/-/NOTAL//
NARR/REF A IS DOD FOREIGN CLEARANCE GUIDE. CHAPTER FIVE
CONTAINS JOINT STAFF GUIDANCE ON MILITARY FLIGHTS IN
INTERNATIONAL AIRSPACE, INTERNATIONAL STRAITS AND
ARCHIPELAGIC SEA LANES.//
RMKS/1. SUMMARY. RECENT CHALLENGES TO U.S. TRANSIT
RIGHTS THROUGH THE STRAIT OF HORMUZ BY OMAN AND IRAN
HAVE MADE IT NECESSARY TO CLARIFY GUIDANCE ON POLICY AND
PROCEDURES FOR U.S. SOVEREIGN IMMUNE VESSELS ENGAGED IN
TRANSIT PASSAGE THROUGH INTERNATIONAL STRAITS. U.S.
SOVEREIGN IMMUNE VESSELS ENJOY A RIGHT OF TRANSIT
PASSAGE THROUGHOUT THE STRAIT (SHORELINE TO SHORELINE),
AS WELL AS ITS APPROACHES (INCLUDING THE TERRITORIAL SEA
OF ADJACENT COASTAL STATES). ALTHOUGH U.S. SOVEREIGN
IMMUNE VESSELS WILL NORMALLY USE INTERNATIONAL MARITIME
ORGANIZATION ( IMO) -APPROVED TRAFFIC SEPARATION SCHEMES
(TSS) AND COMPLY WITH RULE 10 OF COLREGS WHILE
TRANSITING AN INTERNATIONAL STRAIT, THERE IS NO LEGAL
REQUIREMENT TO DO SO IF SUCH VESSELS DO NOT ELECT TO
VOLUNTARILY USE THE TSS. TRANSITS THAT DO NOT MAKE USE
OF A TSS SHALL BE CONDUCTED WITH DUE REGARD FOR THE
SAFETY OF NAVIGATION. IF CHALLENGED BY COASTAL STATE
AUTHORITIES, A U.S. SOVEREIGN IMMUNE VESSEL SHOULD
RESPOND THAT IT IS A U.S. WARSHIP OR OTHER SOVEREIGN
IMMUNE VESSEL AND STATE, "I AM ENGAGED IN TRANSIT
PASSAGE IN ACCORDANCE WITH INTERNATIONAL LAW/' A
DETAILED LEGAL ANALYSIS FOLLOWS IN PARAGRAPHS 3 THROUGH
6 FOR USE BY COMMAND JUDGE ADVOCATES.
180 Commander's Handbook on the Law of Naval Operations
2. PURPOSE.
A. TO CLARIFY GUIDANCE AND PROVIDE AMPLIFYING
INFORMATION ON U.S. POLICY AND PROCEDURES FOR U.S.
SOVEREIGN IMMUNE VESSELS ENGAGED IN TRANSIT PASSAGE
THROUGH INTERNATIONAL STRAITS CONNECTING ONE PORTION OF
THE HIGH SEAS/EXCLUSIVE ECONOMIC ZONE (EEZ) WITH ANOTHER
PORTION OF THE HIGH SEAS/EEZ.
B. THIS GUIDANCE DOES NOT APPLY TO STRAITS
SPECIFICALLY REGULATED BY LONG-STANDING CONVENTIONS
(SUCH AS THE TURKISH STRAITS), TO STRAITS FORMED BY AN
ISLAND AND THE MAINLAND OF A STATE, IF THERE EXISTS,
SEAWARD OF THE ISLAND, A HIGH SEAS/EEZ ROUTE OF SIMILAR
NAVIGATIONAL AND HYDROGRAPHIC CONVENIENCE (SUCH AS THE
STRAIT OF MESSINA) OR TO STRAITS IN WHICH THERE EXISTS A
HIGH SEAS/EEZ CORRIDOR OF SIMILAR NAVIGATIONAL AND
HYDROGRAPHIC CONVENIENCE (SUCH AS THE FEMER BELT) .
C. GUIDANCE ON MILITARY FLIGHTS IN INTERNATIONAL
STRAITS IS PROVIDED IN REF A.
D. NOTHING IN THIS GUIDANCE IS INTENDED TO IMPAIR THE
ABILITY TO CONDUCT OPERATIONS CONSISTENT WITH SAFETY OF
NAVIGATION OR THE COMMANDER'S INHERENT AUTHORITY AND
OBLIGATION TO USE ALL NECESSARY MEANS AVAILABLE AND TO
TAKE ALL APPROPRIATE ACTION IN SELF-DEFENSE OF THE
COMMANDER'S UNIT AND OTHER U.S. FORCES IN THE VICINITY.
3. BACKGROUND/REGULATORY REGIME.
A. THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF
THE SEA (1982 LOS CONVENTION).
(1) THE UNITED STATES IS NOT YET A PARTY TO THE
1982 LOS CONVENTION. HOWEVER, IN HIS STATEMENT ON U.S.
OCEAN POLICY OF MARCH 10, 1983, PRESIDENT REAGAN
ANNOUNCED THAT THE UNITED STATES CONSIDERS THE
NON-SEABED PROVISIONS OF UNCLOS AS REFLECTIVE OF
EXISTING MARITIME LAW AND PRACTICE AND THAT THE UNITED
STATES WOULD ACT ACCORDINGLY. THIS VIEW HAS BEEN
REITERATED BY EVERY SUCCESSIVE ADMINISTRATION.
International Status and Navigation of Warships 181
(2) THE REGIME OF TRANSIT PASSAGE IS SET OUT IN
PART III OF THE 1982 LOS CONVENTION (ARTICLES 37 THROUGH
44). TRANSIT PASSAGE IS DEFINED AS THE FREEDOM OF
NAVIGATION AND OVERFLIGHT SOLELY FOR THE PURPOSE OF
CONTINUOUS AND EXPEDITIOUS TRANSIT OF THE STRAIT IN THE
NORMAL MODE OF OPERATION. THIS MEANS THAT SUBMARINES MAY
TRANSIT SUBMERGED; MILITARY AIRCRAFT MAY OVERFLY IN
COMBAT FORMATION AND WITH NORMAL EQUIPMENT OPERATION;
AND SURFACE SHIPS MAY TRANSIT IN A MANNER NECESSARY FOR
THEIR SECURITY, INCLUDING FORMATION STEAMING AND THE
LAUNCHING AND RECOVERY OF AIRCRAFT, WHERE CONSISTENT
WITH SOUND NAVIGATIONAL PRACTICES. ALL SHIPS AND
AIRCRAFT, REGARDLESS OF CARGO, ARMAMENT OR MEANS OF
PROPULSION, ENJOY THIS NONSUSPENDABLE RIGHT OF TRANSIT
PASSAGE, WITHOUT PRIOR APPROVAL BY OR NOTIFICATION TO
THE COASTAL STATES BORDERING THE STRAIT.
(3) COASTAL STATES BORDERING INTERNATIONAL STRAITS
MAY DESIGNATE SEA LANES AND TRAFFIC SEPARATION SCHEMES
(TSS) FOR NAVIGATION IN STRAITS WHERE NECESSARY TO
PROMOTE THE SAFE PASSAGE OF SHIPS. SUCH ROUTING MEASURES
SHALL CONFORM TO IMO STANDARDS (I.E., REGULATION V/8 OF
THE 1974 INTERNATIONAL CONVENTION FOR THE SAFETY OF LIFE
AT SEA (SOLAS) AND ITS ASSOCIATED GUIDELINES AND
CRITERIA) AND SHALL BE REFERRED TO THE IMO FOR ADOPTION
PRIOR TO THEIR DESIGNATION. SHIPS IN TRANSIT PASSAGE
SHALL RESPECT APPLICABLE SEA LANES AND TSS ESTABLISHED
IN ACCORDANCE WITH IMO STANDARDS. (NOTE: IMO-APPROVED
ROUTING MEASURES APPLICABLE IN INTERNATIONAL STRAITS ARE
SET OUT IN IMO PUBLICATION "SHIPS' ROUTEING" (SIXTH
EDITION), AS AMENDED.)
(4) SHIPS IN TRANSIT PASSAGE SHALL COMPLY WITH
GENERALLY ACCEPTED INTERNATIONAL REGULATIONS, PROCEDURES
AND PRACTICES FOR SAFETY AT SEA, INCLUDING THE 1972
INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT
SEA (COLREGS) . SHIPS IN TRANSIT PASSAGE SHALL ALSO
PROCEED WITHOUT DELAY THROUGH THE STRAIT, REFRAIN FROM
ANY THREAT OR USE OF FORCE AGAINST THE SOVEREIGNTY,
TERRITORIAL INTEGRITY OR POLITICAL INDEPENDENCE OF THE
STATES BORDERING THE STRAIT; AND REFRAIN FROM ANY
ACTIVITIES OTHER THAN THOSE INCIDENT TO THEIR NORMAL
MODE OF CONTINUOUS AND EXPEDITIOUS TRANSIT UNLESS
RENDERED NECESSARY BY FORCE MAJEURE OR BY DISTRESS.
182 Commander's Handbook on the Law of Naval Operations
B. THE 197 4 INTERNATIONAL CONVENTION FOR THE SAFETY
OF LIFE AT SEA (SOLAS), AS AMENDED.
(1) REGULATION V/8 OF SOLAS RECOGNIZES THE
INTERNATIONAL MARITIME ORGANIZATION (IMO) AS THE ONLY
INTERNATIONAL BODY RESPONSIBLE FOR ESTABLISHING AND
ADOPTING SHIPS' ROUTING MEASURES, INCLUDING TSS, ON AN
INTERNATIONAL LEVEL.
(2) RULES GOVERNING THE ESTABLISHMENT OF SHIPS'
ROUTING MEASURES ARE CONTAINED IN REGULATION V/8 OF
SOLAS AND ITS ASSOCIATED GUIDELINES AND CRITERIA (I.E.,
IMO ASSEMBLY RESOLUTION A. 572(14), AS AMENDED).
REGULATION V/8 AND RESOLUTION A. 572 (14) DO NOT APPLY TO
WARSHIPS, NAVAL AUXILIARIES OR OTHER GOVERNMENT-OWNED OR
OPERATED VESSELS USED ONLY FOR NON-COMMERCIAL SERVICE.
HOWEVER, SUCH SHIPS ARE ENCOURAGED TO PARTICIPATE IN
IMO-APPROVED SHIPS' ROUTING SYSTEMS.
(3) ADDITIONALLY, NOTHING IN REGULATION V/8 NOR
ITS ASSOCIATED GUIDELINES AND CRITERIA SHALL PREJUDICE
THE RIGHTS AND DUTIES OF STATES UNDER INTERNATIONAL LAW
OR THE LEGAL REGIMES OF STRAITS USED FOR INTERNATIONAL
NAVIGATION AND ARCHIPELAGIC SEA LANES.
(4) THE UNITED STATES IS A PARTY TO SOLAS.
C. THE 1972 INTERNATIONAL REGULATIONS FOR PREVENTING
COLLISIONS AT SEA (COLREGS), AS AMENDED.
(1) PURSUANT TO RULE 1, COLREGS APPLY TO ALL
VESSELS ON THE HIGH SEAS AND IN ALL WATERS CONNECTED
THEREWITH NAVIGABLE BY SEAGOING VESSELS, INCLUDING
VESSELS ENTITLED TO SOVEREIGN IMMUNITY.
(2) RULE 10 OF COLREGS PRESCRIBES THE CONDUCT OF
VESSELS WITHIN OR NEAR TSS ADOPTED BY THE IMO IN
ACCORDANCE WITH REGULATION V/8 OF SOLAS. PURSUANT TO
RULE 10 OF COLREGS, A VESSEL USING A TSS SHALL NOT USE
AN INSHORE TRAFFIC ZONE WHEN IT CAN SAFELY USE THE
APPROPRIATE TRAFFIC LANE WITHIN THE ADJACENT TSS, EXCEPT
THAT A VESSEL MAY USE AN INSHORE TRAFFIC ZONE WHEN EN
ROUTE TO OR FROM A PORT, OFFSHORE INSTALLATION OR
STRUCTURE, PILOT STATION OR ANY OTHER PLACE SITUATED
WITHIN THE INSHORE TRAFFIC ZONE, OR TO AVOID IMMEDIATE
DANGER. VESSELS NOT USING A TSS SHALL AVOID THE
SEPARATION SCHEME BY AS WIDE A MARGIN AS IS PRACTICABLE.
(NOTE: A VESSEL RESTRICTED IN HER ABILITY TO MANEUVER
International Status and Navigation of Warships 183
WHEN ENGAGED IN AN OPERATION (1) FOR THE MAINTENANCE OF
SAFETY OF NAVIGATION IN A TSS OR (2) FOR THE LAYING,
SERVICING OR PICKING UP OF A SUBMARINE CABLE, WITHIN A
TSS IS EXEMPT FROM COMPLYING WITH RULE 10 TO THE EXTENT
NECESSARY TO CARRY OUT THE OPERATION.)
(3) THE UNITED STATES IS A PARTY TO COLREGS .
D. U.S. NAVY REGULATIONS (1990).
(1) PURSUANT TO ARTICLE 1139, ALL PERSONS IN THE
NAVAL SERVICE RESPONSIBLE FOR THE OPERATION OF NAVAL
SHIPS AND CRAFT SHALL DILIGENTLY OBSERVE COLREGS AND THE
INLAND NAVIGATION RULES, WHERE SUCH RULES AND
REGULATIONS ARE APPLICABLE TO NAVAL SHIPS.
(2) IN THOSE SITUATIONS WHERE SUCH RULES OR
REGULATIONS ARE NOT APPLICABLE TO NAVAL SHIPS OR CRAFT,
THEY SHALL BE OPERATED WITH DUE REGARD FOR THE SAFETY OF
OTHERS.
4. ANALYSIS.
A. FOR TRANSIT PASSAGE TO HAVE ANY MEANING, SURFACE,
SUBSURFACE AND OVERFLIGHT NAVIGATION OF WATERS
CONSTITUTING THE APPROACHES TO THE STRAIT MUST BE
INCLUDED. IF THE RIGHT OF OVERFLIGHT OR SUBMERGED
TRANSIT APPLIED ONLY WITHIN THE GEOGRAPHICAL DELINEATION
OF A CERTAIN STRAIT, BUT NOT TO AREAS LEADING INTO/OUT
OF THE STRAIT, IT WOULD EFFECTIVELY PREVENT THE EXERCISE
OF THE RIGHT OF OVERFLIGHT AND SUBMERGED TRANSIT.
MOREOVER, REQUIRING SHIPS AND AIRCRAFT TO CONVERGE AT
THE HYPOTHETICAL ENTRANCE TO THE STRAIT WOULD BE
INCONSISTENT WITH SOUND NAVIGATIONAL PRACTICES. THE
RIGHT OF TRANSIT PASSAGE THEREFORE APPLIES NOT ONLY TO
THE WATERS OF THE STRAIT ITSELF, BUT ALSO TO ALL
NORMALLY USED APPROACHES TO THE STRAIT.
B. THE 1982 LOS CONVENTION RECOGNIZES THE AUTHORITY
OF COASTAL STATES TO DESIGNATE, AND REQUIRES SHIPS IN
TRANSIT PASSAGE TO RESPECT, IMO-APPROVED TSS IN
INTERNATIONAL STRAITS, PROVIDED SUCH ROUTING MEASURES
CONFORM TO IMO STANDARDS SET OUT IN REGULATION V/8 OF
SOLAS AND RESOLUTION A. 572(14). HOWEVER, AS DISCUSSED
ABOVE, ROUTING MEASURES ADOPTED PURSUANT TO REGULATION
184 Commander's Handbook on the Law of Naval Operations
V/8 AND ITS ASSOCIATED GUIDELINES AND CRITERIA (I.E.,
RESOLUTION A. 572(14)) DO NOT APPLY TO SOVEREIGN IMMUNE
VESSELS. HENCE, COMPLIANCE WITH AN IMO-APPROVED TSS IN
AN INTERNATIONAL STRAIT IS NOT LEGALLY REQUIRED OF
SOVEREIGN IMMUNE VESSELS.
C. SIMILARLY, RULE 1 OF COLREGS PROVIDES THAT TSS MAY
BE ADOPTED BY THE IMO FOR THE SAFETY OF NAVIGATION. RULE
10 OF COLREGS APPLIES TO ANY TSS ADOPTED BY THE IMO,
PURSUANT TO ITS AUTHORITY UNDER REGULATION V/8 OF SOLAS
AND ITS ASSOCIATED GUIDELINES.' HOWEVER, AS PREVIOUSLY
DISCUSSED, SOVEREIGN IMMUNE VESSELS ARE SPECIFICALLY
EXEMPT FROM COMPLIANCE WITH IMO-APPROVED ROUTING
MEASURES. SOVEREIGN IMMUNE VESSELS ARE ENCOURAGED TO
COMPLY VOLUNTARILY WITH SUCH MEASURES, BUT THERE IS NO
LEGAL REQUIREMENT TO DO SO. HENCE, COMPLIANCE WITH RULE
10 OF COLREGS, WHICH PROHIBITS THE USE OF AN INSHORE
TRAFFIC ZONE WHEN A SHIP CAN SAFELY USE THE APPROPRIATE
TRAFFIC LANE WITHIN THE ADJACENT TSS AND REQUIRES SHIPS
NOT USING THE TSS TO AVOID IT BY AS WIDE A MARGIN AS IS
PRACTICABLE, IS NOT LEGALLY REQUIRED OF SOVEREIGN IMMUNE
VESSELS THAT HAVE ELECTED NOT TO USE THE TSS.
ACCORDINGLY, TRANSIT PASSAGE APPLIES THROUGHOUT THE
STRAIT, SHORELINE TO SHORELINE.
5. POLICY.
A. FOR SOVEREIGN IMMUNE VESSELS, THE RIGHT OF TRANSIT
PASSAGE APPLIES THROUGHOUT THE STRAIT (SHORELINE TO
SHORELINE), AS WELL AS IN ITS APPROACHES (INCLUDING THE
TERRITORIAL SEA OF AN ADJACENT COASTAL STATE) .
B. ALTHOUGH U.S. SOVEREIGN IMMUNE VESSELS WILL
NORMALLY USE IMO-APPROVED TSS (WHEN PRACTICABLE AND
COMPATIBLE WITH THE MILITARY MISSION) AND COMPLY WITH
RULE 10 OF COLREGS (INCLUDING ITS PROHIBITION ON THE USE
OF INSHORE TRAFFIC ZONES) WHILE TRANSITING AN
INTERNATIONAL STRAIT, THERE IS NO LEGAL REQUIREMENT TO
DO SO IF SUCH VESSELS DO NOT ELECT TO VOLUNTARILY USE
THE TSS. WHEN VOLUNTARILY USING AN IMO-APPROVED TSS,
RULE 10 OF COLREGS MUST BE OBSERVED.
C. SITUATIONS WHICH MAY NOT LEND THEMSELVES TO
COMPLIANCE WITH AN IMO-APPROVED ROUTING MEASURE INCLUDE:
MILITARY CONTINGENCIES; CLASSIFIED MISSIONS; POLITICALLY
International Status and Navigation of Warships 1 85
SENSITIVE AREA MISSIONS; FREEDOM OF NAVIGATION
ASSERTIONS; ROUTINE AIRCRAFT CARRIER OPERATIONS; MINE
CLEARANCE OPERATIONS; SUBMERGED OPERATIONS; OR VARIOUS
OTHER LEGITIMATE PURPOSES/MISSIONS. SUCH OPERATIONS
SHALL BE CONDUCTED WITH DUE REGARD FOR THE SAFETY OF
NAVIGATION.
D. IF CHALLENGED BY AUTHORITIES OF A COASTAL STATE
WHILE TRANSITING AN INTERNATIONAL STRAIT, U.S. SOVEREIGN
IMMUNE VESSELS SHOULD ADVISE COASTAL STATE AUTHORITIES
THAT IT IS A U.S. WARSHIP OR OTHER SOVEREIGN IMMUNE
VESSEL AND STATE, "I AM ENGAGED IN TRANSIT PASSAGE IN
ACCORDANCE WITH INTERNATIONAL LAW." THE VESSEL SHOULD
THEN CONTINUE ON ITS PLANNED TRACK.
6. CONCLUSION. THE REGIME OF TRANSIT PASSAGE CONFERS
CERTAIN RIGHTS AND IMPOSES CERTAIN DUTIES ON SHIPS AND
AIRCRAFT EXERCISING THE RIGHT OF TRANSIT PASSAGE. THESE
RIGHTS AND DUTIES COMMENCE AS SOON AS THE SHIP OR
AIRCRAFT ENTERS THE APPROACHES TO AN INTERNATIONAL
STRAIT FOR THE PURPOSE OF CONTINUOUS AND EXPEDITIOUS
TRANSIT OF THE STRAIT, AND THEY CEASE AS SOON AS THE
SHIP OR AIRCRAFT DEPARTS THE APPROACHES ON THE OTHER
SIDE. THERE IS NO LEGAL REQUIREMENT FOR SOVEREIGN IMMUNE
VESSELS TO COMPLY WITH IMO-APPROVED ROUTING MEASURES IN
INTERNATIONAL STRAITS. SOVEREIGN IMMUNE VESSELS ARE ONLY
LEGALLY OBLIGATED TO EXERCISE DUE REGARD FOR THE SAFETY
OF NAVIGATION WHILE ENGAGED IN TRANSIT PASSAGE. HOWEVER,
SUCH VESSEL MAY VOLUNTARILY COMPLY WITH IMO-APPROVED
ROUTING MEASURES IN INTERNATIONAL STRAITS WHEN
PRACTICABLE AND COMPATIBLE WITH THE MILITARY MISSION.
WHILE VOLUNTARILY USING AN IMO-APPROVED TSS, RULE 10 OF
COLREGS MUST BE OBSERVED.
7. THIS MESSAGE HAS BEEN COORDINATED WITH THE DEPARTMENT
OF STATE AND REFLECTS OFFICIAL U.S. POLICY. QUESTIONS
SHOULD BE REFERRED TO DOD REPOPA (DSN 227-9161, COMM
703-697-9161) OR N3L/N5L (DSN 227-0835, COMM
703-697-0835) .
186 Commander's Handbook on the Law of Naval Operations
ANNEX A2-7
gist
A quick reference aid on U S foreign relations
Not a comprehensive policy statement
Bureau of Public Affairs • Department of State
US Freedom of Navigation Program December 1988
Background: US interests span the world's oceans geopolitically and
economically. US national security and commerce depend greatly upon the
internationally recognized legal rights and freedoms of navigation and overflight
of the seas. Since World War II, more than 75 coastal nations have asserted
various maritime claims that threaten those rights and freedoms. These
"objectionable claims" include unrecognized historic waters claims; improperly
drawn baselines for measuring maritime claims; territorial sea claims greater than
12 nautical miles; and territorial sea claims that impose impermissible restrictions
on the innocent passage of military and commercial vessels, as well as ships
owned or operated by a state and used only on government noncommerical
service.
US policy: The US is committed to protecting and promoting rights and
freedoms of navigation and overflight guaranteed to all nations under
international law. One way in which the US protects these maritime rights is
through the US Freedom of Navigation Program. The program combines
diplomatic action and operational assertion of our navigation and overflight
rights by means of exercises to discourage state claims inconsistent with
international law and to demonstrate US resolve to protect navigational
freedoms. The Departments of State and Defense are jointly responsible for
conducting the program.
The program started in 1979, and President Reagan again outlined our position
in an ocean policy statement in March 1983:
. . .the United States will exercise and assert its navigation and overflight rights and
freedoms on a worldwide basis in a manner that is consistent with the balance of
interests reflected in the [1982 UN Convention on the Law of the Sea]. The
United States will not, however, acquiesce in unilateral acts of other states
designed to restrict the rights and freedoms of the international community in
navigation and overflight and other related high seas uses.
International Status and Navigation of Warships 187
The US considers that the customary rules of international law affecting
maritime navigation and overflight freedoms are reflected and stated in the
applicable provisions of the 1982 UN Convention on the Law of the Sea.
Nature of the program: The Freedom of Navigation Program is a peaceful
exercise of the rights and freedoms recognized by international law and is not
intended to be provocative. The program impartially rejects excessive maritime
claims of allied, friendly, neutral, and unfriendly states alike. Its objective is to
preserve and enhance navigational freedoms on behalf of all states.
Diplomatic action: Under the program, the US undertakes diplomatic action at
several levels to preserve its rights under international law. It conducts bilateral
consultations with many coastal states stressing the need for and obligation of all
states to adhere to the international law customary rules and practices reflected in
the 1982 convention. When appropriate, the Department of State files formal
diplomatic protests addressing specific maritime claims that are inconsistent with
international law. Since 1948, the US has filed more than 70 such protests,
including more than 50 since the Freedom of Navigation Program began.
Operational assertions: Although diplomatic action provides a channel for
presenting and preserving US rights, the operational assertion by US naval and
air forces of internationally recognized navigational rights and freedoms
complements diplomatic efforts. Operational assertions tangibly manifest the US
determination not to acquiesce in excessive claims to maritime jurisdiction by
other countries. Although some operations asserting US navigational rights
receive intense public scrutiny (such as those that have occurred in the Black Sea
and the Gulf of Sidra) , most do not. Since 1979, US military ships and aircraft
have exercised their rights and freedoms in all oceans against objectionable
claims of more than 35 nations at the rate of some 30-40 per year.
Future intentions: The US is committed to preserve traditional freedoms of
navigation and overflight throughout the world, while recognizing the
legitimate rights of other states in the waters off their coasts. The preservation of
effective navigation and overflight rights is essential to maritime commerce and
global naval and air mobility. It is imperative if all nations are to share in the full
benefits of the world's oceans.
For further information: See also GISTs, "Law of the Sea," June 1986, and
"Navigation Paghts and the Gulf of Sidra," December 1986. ^_^
Harnet Culley, Editor (202) 647-1208
188 Commander's Handbook on the Law of Naval Operations
Navigation Rights
and the Gulf of Sidra
Background
In October 1973, Libya
announced that it considered
all water in the Gulf of Sidra
south of a straight baseline
drawn at 32° 30' north latitude
to be internal Libyan waters
because of the gulfs
geographic location and
Libya's historic control over it.
The United States and other
countries, including the
U.S.S.R., protested Libya's
claim as lacking any historic or
legal justification and as
illegally restricting freedom of
navigation on the high seas.
Further, the U.S. Navy has
conducted many operations
within the gulf during the past
12 years to protest the Libyan
claim. These exercises have
resulted in two shooting
incidents between Libyan and
U.S. forces. The first was in
1981, when two Libyan
aircraft fired on U.S. aircraft
and were shot down in
air-to-air combat, and the
second in March 1986, when
the Libyans fired several
missiles at U.S. forces and the
United States responded by
attacking Libyan radar
installations and patrol boats.
Barbary Coast History
This is not the first time that
the United States has
contended with navigational
hindrances imposed by North
African states. After the
American Revolution, the
United States adhered to the
ANNEX A2-8
[See map at Figure A2-12
(p. 2-82)]
then common practice of
paying tribute to the Barbary
Coast states to ensure safe
passage of U.S. merchant
vessels. In 1796, the United
States paid a one-time sum
(equal to one-third of its
defense budget) to Algiers with
guarantees of further annual
payments. In 1801, the United
States refused to conclude a
similar agreement with
Tripoli, and the Pasha of
Tripoli declared war on the
United States. After
negotiations failed, the United
States blockaded Tripoli, in the
autumn of 1 803 Commodore
Edward Preble led a squadron,
including the U.S.S.
Constitution ("Old Ironsides"),
to the Mediterranean to
continue the blockade. Shortly
after the squadron arrived off
Tripoli, a U.S. frigate, the
Philadelphia, ran aground and
was captured. Lt. Stephen
Decatur led a team into Tripoli
harbor and successfully burned
the Philadelphia. In June 1805,
the Pasha agreed to terms
following a ground assault led
by U.S. marines that captured a
port near Tripoli. In 1810
Algiers and Tripoli renewed
raids against U.S. shipping, and
in 1815, Commodore
Decatur's squadron caught the
Algerian fleet at sea and forced
the Dey of Algiers to agree to
terms favorable to the United
States. Decatur then proceeded
to Tunis and Tripoli and
obtained their consent to
similar treaties. A U.S.
squadron remained in the
Mediterranean for several years
to ensure compliance with the
treaties.
Current Law and Custom
By custom, nations may lay
historic claim to those bays and
gulfs over which they have
exhibited such a degree of
open, notorious, continuous,
and unchallenged control for
an extended period of time as
to preclude traditional high
seas freedoms within such
waters. Those waters (closed
off by straight baselines) are
treated as if they were part of
the nation's land mass, and the
navigation of foreign vessels is
generally subject to complete
control by the nation. Beyond
lawfully closed-off bays and
other areas along their coasts,
nations may claim a "territorial
sea" of no more than 12
nautical miles in breadth
(measured 12 miles out from
the coast's low water line — or
legal straight baseline) within
which foreign vessels enjoy the
limited navigational "right of
innocent passage." Beyond the
International Status and Navigation of Warships 1 89
Since Libya cannot make a
valid historic waters claim and
meets no other international
law criteria for enclosing the
Gulf of Sidra, it may validly
claim a 12-nautical-mile
territorial sea as measured from
the normal low-water line
along its coast (see map).
Libya also may claim up to a
200-nautical-mile exclusive
economic zone in which it
may exercise resource
jurisdiction, but such a claim
would not affect freedom of
navigation and overflight.
(The United States has
confined its exercises to areas
beyond 12 miles from Libya's
coast.)
U.S. Position
The United States supports
and seeks to uphold the
customary law outlined above,
and it has an ongoing global
program of protecting
traditional navigation rights
and freedoms from
encroachment by illegal
maritime claims. This program
includes diplomatic protests
(delivered to more than 50
countries since 1975) and ship
and aircraft operations to
preserve those navigation
rights. Illegal maritime claims
to which the United States
responds include:
• Excessive territorial sea
claims;
• Improperly drawn
baselines for measuring
maritime claims; and
• Attempts to require
notification or permission
before foreign vessels can
transit a nation's territorial sea
under the right of innocent
passage.
Thus Libya has not been
singled out for special
consideration but represents
simply one instance in the
continuing U.S. effort to
preserve worldwide
navigational rights and
freedoms. The fact that Libya
chose to respond militarily to
the U.S. exercise of traditional
navigation rights was
regrettable and without any
basis in international law.
U.S. Intentions
The United States will pursue
actively its efforts to preserve
traditional navigation rights
and freedoms that are equally
guaranteed to all nations. The
preservation of rights is
essential to maritime
commerce and global naval
and air mobility and is
imperative if all nations are to
share equally in the benefits of
the world's oceans. As always,
the United States will exercise
its rights and freedoms fully in
accord with international law
and hopes to avoid further
military confrontations, but it
will not acquiesce in unlawful
maritime claims and is
prepared to defend itself if
circumstances so require.
Taken from the GIST series of
December 1986, published by the
Bureau of Public Affairs,
Department of State.
190 Commander's Handbook on the Law of Naval Operations
FIGURE A2-1
DANISH STRAITS
;-,-A"^.V
Germany
,V.y,VJ.Vfl"V*.^y_*'',V^,*^y^'.V,?,Vjr1yy
jw&VaiTwiV^v-VY.v****^** >*iWi**i**-*"-*-'y:*° i~? ■».v.y«T^^myjs*»v»*V*V*V0\ j Jft *v»'»v* **iVjY^jy«yr jjyffifccjyjsa',nyoo<s> ; . ,
.JSKSWS-Jte
yy^^yy^rareae.^vxf'Asvu.'j^ ^Tva^^Ayx^rygr^gwgsrAVAgx;
JMravKS^jSJ^yKmgvs:^
Source: Roach & Smith, at 216.
International Status and Navigation of Warships 1 91
FIGURE A2-2
STRAIT OF GIBRALTER
Namm ond boundary rtprtMMotioni arc not necetsorly ovthoritotivt
12
NAUTICAL MILES
Source: Roach & Smith, at 186.
192 Commander's Handbook on the Law of Naval Operations
FIGURE A2-3
STRAIT OF BAB EL MANDEB
%&♦
Strait of
Bab el Mandeb
Hypothetical equidistant Una
' International boundary
Nom«a and boundary rasrtsantotion art not nectstority outhorHotive
12
NAUTICAL MILES
Source: Roach & Smith, at 184.
International Status and Navigation of Warships 193
FIGURE A2-4
STRAIT OF HORMUZ
Source: Roach & Smith, at 190.
194 Commander's Handbook on the Law of Naval Operations
FIGURE A2-5
STRAIT OF MALACCA
w >or *or >••' mv w»" **r
1 nJ U arzZXTTTT^
tott
• ThoHond
tf »srVlETNAHO i) «>
o o
Souf/i
China Seo
Strait off
Malacca Region
'v 1
10 fotiiom «n«
100 Wlwn Mm
'•,
t ^ M. f WO
V
MWMMKMta*
*€
(S?, MALAYSI
<i
1\
• <>
^§k\ " ..f;* ind6nesi
LSkii i uJ r °'»r TV.
•r ■»■ tar «•'• •••■ ••»»
wr wr
Source: Roach & Smith, at 195.
International Status and Navigation of Warships 1 95
FIGURE A2-6
STRAIT OF TIRAN
Source: Roach & Smith, at 220.
1 96 Commander's Handbook on the Law of Naval Operations
FIGURE A2-7
CANADIAN ARCTIC
Source: Roach & Smith, at 66.
International Status and Navigation of Warships 1 97
FIGURE A2-8
THE NORTHWEST PASSAGE
0 25 50 75 100
i ■ ■ ■ ■ < ■ ■ ■ ■ I * i ■ » I i ■ ■ i I
NAUTICAL MILES
Source: Roach & Smith, at 208.
198 Commander's Handbook on the Law of Naval Operations
FIGURE A2-9
LATIN AMERICA NUCLEAR FREE ZONE
33'N/75#W
!60*S/115*W
N 5* N/20' W
60'S/20*W|
Source: Rosen, Nav. War Coll. Rev., Autumn 1996 at 46.
International Status and Navigation of Warships 199
FIGURE A2-10
SOUTH PACIFIC NUCLEAR-FREE ZONE
/ Philippine Sea •.
l/o
v * /i •■• - • • ' ~ —
£0
•*.-.*- •
Worth Pacific Ocean
i • i
Jarvis (U.S.)
.American Samoa (U.S.) %. . _ ._ .
» v *»^^-l-Fangatua(Fr.)
•'• a* • •_■
/ •
Mururoa (Fr.)
T&sman
{^> Sea
<?
>
5ou//> flsc/flc Ocean
Source: Rosen, Nav. War Coll. Rev., Autumn 1996 at 49.
200 Commander's Handbook on the Law of Naval Operarations
FIGURE A2-11
AFRICAN NUCLEAR- WEAPON-FREE ZONE
Canaries
«•• »
Cape
Verde •■
Islands
Zanzibar and 0-^1.- Chagos
Pemba Islands*3 5*Ycneues , ;- ;. Archipeiat
^Mayotle w Diego Gar
[7 •Agatega Islands
TromeBn Island
• Cargados Carajos Shoals
deNoval / % «v • Rodrigues Island
(I Reunion X^^^
Madagascar
Basses
da Europe Island
India
Appears without prejudice to
the question of sovereignty
ft Prince Edward
and Marion Islands
Source: Rosen, Nav. War Coll. Rev., Autumn 1996 at 50.
International Status and Navigation of Warships 201
FIGURE A2-12
GULF OF SIDRA
SicKy ::(
ITALY):
Volleta*MALTA
Mediterranean
Sea
INISIA
Ubyon doim«d
12 nm limit
/
Libya's Claim to
the Gulf of Sidra
LIBYA
Source: Roach & Smith, at 30.
202 Commander's Handbook on the Law of Naval Operations
TABLE A2-1
Restrictions on Warship Innocent Passage
(As of 1 January 1997)
U.S. Assertion
Nation
Albania
Algeria
Antigua & Barbuda
Bangladesh
Barbados
Brazil
Bulgaria
Burma
Cambodia
Cape Verde
China (PRC)
Congo
Croatia
Denmark
Djibouti
Egypt
Finland
Grenada
Guyana
India
Indonesia
Iran
Korea, South
Libya
Maldives
Malta
Mauritius
Oman
Pakistan
Philippines
Restriction. Year of Claim
Special permission; 1946
Prior permission; 1963
Prior permission; 1982
Prior permission; 1974
Prior permission; 1979
Prior permission; 1954
Limited to sea lanes; 1987
Prior permission; 1977
Prior permission; 1982
Prior permission; 1982
Prior permission; 1958; 1992, 1996
Prior permission; 1977
Prior notification; 1995
Prior permission; 1976
Nuclear power/materials; 1979
Prior notification; 1983
Nuclear power/materials; 1982
Prior notification; 1981
Prior permission; 1978
Prior notification; 1977
Prior notification; 1976
Prior notice; 1962
Prior permission; 1982, 1994
Prior notification; 1978
Prior notice; 1985
Prior permission; 1976
Prior notification; 1981
Prior notification; 1977
Prior permission; 1989
Nuclear power/materials; 1989
Prior permission; 1976
Nuclear power/materials; 1976
Prior permission; 1968
U.S.
of Right of
Protest
Innocent Passage
1989
1985a
1964a
a
1979
1987
1987
1982
1996
1982
1982a
1982
1982
1985a
1986a
1989
1991
1992a
1986a
1987
1991
1989
1985
1993a
1983
1989
1982a
1988
1982
1988
1976
19872
2
1977
1985
1982
198l'
1982
1991
1991
1982
1982
1969
1985
1989
1981
1991
1986
1994
International Status and Navigation of Warships 203
TABLE A2-1 (cont.)
U.S. Assertion
U.S.
of Right of
Nation
Restriction. Year of Claim
Protest
Innocent Passage
Poland
Prior permission; 1968
1989
Romania
Prior permission; 1956
1989
1985a
St. Vincent & the
Grenadines
Prior permission; 1983
Seychelles
Prior notification; 1977
1982
Somalia
Prior permission; 1972
1982
1979a
Sri Lanka
Prior permission; 1977
1986
1985a
Sudan
Prior permission; 1970
1989
1979a
Syria
Prior permission; 1963
1989
1984a
United Arab Emirates
Prior permission; 1993
1995
Vietnam
Prior permission; 1980
Limit on number; 1980
1982
1982
1982a
Yemen
Prior permission (PDRY);
1967
1982
1982a
Nuclear power/materials (PDRY); 1977
1982
Prior notification (YAR);
1978
1986
1979a
Nuclear power (YAR); 1982
1986
Yugoslavia, Former
Prior notification; 1965
Limit on number; 1986
1986a
1986
1990
Multiple protests or assertions
Source: U.S. Department of State, Office of Ocean Affairs; Roach & Smith, at 158-9.
204 Commander's Handbook on the Law of Naval Operations
TABLE A2-2
Straits Formed by an Island of a Nation and the Mainland Where
There Exists Seaward of the Island a Route Through the High Seas
or an Exclusive Economic Zone of Similar Convenience
Coastal Nation
Strait
Island
Alternative Route
Argentina
Estrecho de la Maire
Isla de los Estados
high seas/eez
route east of Isla de los Estados
Canada
Canso
Cape Breton
Cabot Strait
Canada
Georgia
Vancouver
high seas/eez
route west of Vancouver Island
Canada
Jacques Carder Passage
Anticosti
Cabot Strait
Canada
Johnstone
Vancouver
high seas/eez
route west of Vancouver Island
Canada
Northumberland
Prince Edward
high seas/eez
route north of Prince Edward Island
Canada
Queen Charlotte
Vancouver
high seas/eez
route west of Vancouver Island
China
Hainan
Hainan
high seas/eez
route south of Hainan Island
France
He d'Yeu
He d'Yeu
high seas/eez
route west of He d'Yeu
Greece
1
Elafonisou
Kithira
Kithira or Andirkithiron Straits
Italy
Messina
Sicily
high seas/eez
route south of Sicily
Japan
Okushiri-kaikyo
Okushiri
high seas/eez
route west of Okushiri Island
Japan
Rishiri-suido
Rishiri
high seas/eez
route west of Rishiri Island
Japan
Sado-kaikyo
Sado
high seas/eez
route west of Sado Island
New Zealand
Foveaux
Stewart
high seas/eez
route south of Stewart Island
Russia
Provirv Litke
Karaginsky
high seas/eez
route east of Ostov Karaginsky
Sweden
Kalmar Sund
Oland
high seas/eez
route east of Oland Island
Tanzania
Mafia
Mafia
high seas/eez
route east of Mafia Island
International Status and Navigation of Warships 205
TABLE A2-2 (cont.)
Coastal Nation
Tanzania
Strait
Zanzibar Channel
Island
Zanzibar
Alternative Route
Turkey Imroz
United Kingdom Pentland Firth
United Kingdom The Solent
high seas/eez
route east of Zanzibar Island
Imroz high seas/eez
route west of Imroz Island
Orkney Islands high seas/eez
route north of the Orkneys
Isle of Wight high seas/eez
route south of the Isle of Wight
1
Andikithiron Strait has a least width of 16 miles. Given Greece's 6-mile territorial sea claim, this leaves a high
seas/eez corridor of 4 miles through the strait.
Source: Alexander, at 206-7.
TABLE A2-3
Straits in Which Passage is Regulated by Long- Standing
Conventions in Force
Bosorus
Dardanelles
Magellan
Oresund
Store Baelt
Source: Alexander, Navigational Restrictions, at 205.
206 Commander's Handbook on the Law of Naval Operations
TABLE A2-4
Straits Which do not Connect Two Parts of the High Seas or an
Exclusive Economic Zone with One Another
(1) Straits Connecting the High Seas or an Exclusive Economic Zone with the Territorial Sea of a
Foreign State
Bahran-Qatar Passage
Bahrain-Saudi Arabia Passage
Head Harbour Passage
Strait of Tiran
(2) Straits Connecting the High Seas or an Exclusive Economic Zone with Claimed Historic Waters
Strait
State
Amundsen Gulf
Canada
Barrow Strait
Canada
Entrance to the Bay D'Amatique
Guatema
Geographe Channel
Australia
Hainan Strait*
China
Hudson Strait
Canada
Investigator Strait
Australia
Kerch Strait
USSR
Lancaster Sound
Canada
M'Clure Strait
Canada
Naturaliste Channel
Australia
Palk Strait
India
Pohai Strait
China
Prince of Wales Strait
Canada
Viscount Melville Sound
Canada
Claimed Historic Waters
Arctic Archipelago
Arctic Archipelago
Bay D'Amatique
Shark Bay
Gulf of Tonkin
Hudson Bay
Gulf of St. Vincent
Sea of Azov
Arctic Archipelago
Arctic Archipelago
Shark Bay
Gulf of Manaar
Gulf of Pohai
Arctic Archipelago
Arctic Archipelago
*China Claims the strait itself as historic, rather than the gulf with which it connects.
(3) Straits Connecting with Claimed "Special Status" Waters
Provliv Blagoveshchenskiy
Provliv Dmityra Lapteva
Provliv Karskiye Vorota
Provliv Longa
Provliv Sannikova
Provliv Shokal'skogo
Provliv Vilkit'skogo
Source: Alexander, at 207-8.
International Status and Navigation of Warships 207
TABLE A2-5
International Straits: Least Width
Less than Six Miles in Width (52)
Alalakeiki Channel
Apolima Strait
Bali Channel
Beagle Channel
Bonifacio, Strait of
Bosporus
Canso Strait
Chatham Strait
Clarence Strait [U.S.]
Corfu Channel
Dardanelles
Dragon's Mouths
Durian Strait
Elafonisou Strait
Gaspar Strait
Georgia, Strait of
Goschen Strait
Head Harbour Passage
Icy Strait
Johnstone Strait
Kalmar Sund
Kerch Strait
Kuchinoshima-suido
Lamina Channel
Langeland Belt
Little Belt
Magellan, Strait of
Maqueda Channel
Massawa Strait
Messina, Strait of
Oresund
Palk Strait
Pentland Firth
Prince of Wales Strait
Provliv Nevel'skogo
Queen Charlotte Strait
Between Six and Twenty-four Miles in Width (153)
Adak Strait
Agattu Strait
Aland's Hav
Alas Strait
Andikithiron Strait
Api Passage
Aruba-Paraguana Passage
Auau Channel
Bab el Mandeb
Babuyan Channel (Luzon Strait)
Bahrain-Qatar Passage
Bahrain-Saudi Arabia Passage
Balabac Strait
Balintang Channel (Luzon Strait)
Bangka Passage
Bangka Strait
Banks Strait
Barrow Strait
Basilan Strait
Bass Strait
Belle Isle, Strait of
Berhala Strait
Bering Strait, East
Bering Strait, West
Boeton Passage
Bornholmsgat
Bougainville Strait
Bristol Channel
Cameroon Strait
Cheju Strait
Clarence Strait [Australia]
Coco Channel
Cook Strait
Dampier Strait
Dominica Channel
Dover Strait
Dundas Strait
Entrance to Bay d'Amatique
Entrance to the Gulf of Finland
Entrance to Gulf of Fonseca
Estrecho de la Maire
Etolin Strait
Etorofu-kaikyo
Fehmarn Belt
Foveaux Strait
Freu de Menorca
Galleons Passage
Geographe Channel
Gibraltar, Strait of
Greyhound Strait
Hainan Strait
Herbert Pass
Hecate Strait
The Hole
Huksanjedo
He d'Yeu
Rosario Strait
Roti Strait
Saipan Channel
San Bernardino Strait
Sape Strait
Serpent's Mouth
Singapore Strait
The Solent
Store Baelt
Sumner Strait
Sunda Strait
Tiran, Strait of
Torees Strait
Vatu-I-Ra Channel
Verde Island Passage
Vieques Passage
Imroz Strait
Indispensable Strait
Investigator Strait
Isumrud Strait
Jacques Chartier Passage
Jailolo Passage
Juan de Fuca, Strait of
Jubal, Strait of
Kadet Channel
Kafireos Strait
Kaiwi Channel
Kalohi Channel
Kandavu Strait
Karpathos Strait
Kasos Strait
Kasos Strait
Kaulakahi Channel
Kealaikahiki Channel
Keas Strait
Kennedy Channel
Kithira Strait
Korea Strait, West
Koti Passage
Kunashiri-suido
Little Minch
Lombok Strait
Maemel Sudo
Mafia Strait
208 Commander's Handbook on the Law of Naval Operations
TABLE A2-5 (cont.)
Between Six and Twenty-four Miles in Width (cont.)
Malacca Strait
Manipa Strait
Manning Strait
Martinique Channel
Mayaguana Passage
Mindoro Strait
Mouchoir Passage
Nakanoshima-suido
Nanuku Passage
Nares Strait
Naturaliste Channel
Neumuro-kaikyo
North Channel
North Minch
Northumberland Strait
Notsuke-suido
Obi Strait
Okushiri-kaikyo
Old Bahama Channel
Ombai Strait
Osumi-kaikyo
Pailolo Channel
Pervyy Kuril'sky Provliv
Pescadores Channel
Pohai Strait
Polillo Strait
Provliv Alaid
Provliv Diany
Provliv Blagoveschenskiy
Provliv Golovnina
Provliv Krenitsyna
Provliv Litke
Provliv Luzhinka
Provliv Nadezhedy
Provliv Rikorda
Provliv Severgina
Provliv Shokal'skogo
Provliv Urup
Provliv Yevreinova
Rishiri-suido
Robeson Channel
Sado-kaikyo
St. George's Channel
St. Lucia Channel
St. Vincent Passage
Sam alga Pass
Samsoe Belt
Santa Barbara Channel
Sapudi Strait
Seguam Pass
Serasan Passage
Shelikof Strait
Shikotan-siudo
Sibutu Passage
Soya-kaikyo
Surigao Strait
Suwanose-suido
Tanaga Pass
Tanegashima-kaikyo
Taraku-suido
Tokara-kaikyo
Tsugaru-kaikyo
Turks Island Passage
Unimak Pass
Virgin Passage
Vitiaz Strait
Wetar Strait
Yakushima-kaikyo
Yunaska Pass
Zanzibar Channel
More than Twenty-four Miles in Width (60)
Alenuihaha Channel
Amami Passage
Amchitka Pass
Amundsen Gulf
Amutka Pass
Anegada Passage
Balut Channel
Bashi Channel (Luzon Strait)
Cabot Strait
Caicos Passage
Chetvertyy Kuril'sky Provliv
Corsica-Elba Passage
Crooked Island Passage
Davis Strait
Denmark Strait
Detroit d'Honguedo
Dixon Entrance
Eight Degree Channel
Florida, Straits of, East
Florida, Straits of, South
Formosa Strait
Gorlo Strait
Great Channel
Grenada-Tobago Passage
Guadeloupe Passage
Hormuz, Strait of
Hudson Strait
Jamaica Passage
Kamchatsky Provliv
Karimata Strait
Kauai Channel
Korea Strait,East
Lancaster Sound
Makassar Strait
Malta Channel
M'Clure Strait
Mona Passage
Moxambique Channel
Otranto, Strait of
Pemba Channel
Preparis North Channel
Preparis North Channel
Preparis South Channel
Providence Channel, Northeast
Providence Channel, Northwest
Provliv Bussol
Provliv Dmitrya Lapteva
Provliv Karskiye Vorota
Provliv Kruzenshterna
Provliv Longa
Provliv Sannikova
Provliv Tatarskiy
Provliv Vil'kitskogo
St. George's Channel
[U.K.-Ireland]
Sicily, Strait of
Silver Bank Passage
Sumba Strait
Ten Degree Channel
Viscount Melville Sound
Windward Passage
Yucatan Channel
Source: Alexander, at 202-3.
International Status and Navigation of Warships 209
TABLE A2-6
Straits, Less Than 24 Miles in Least Width, in Which There Exists a
Route Through the High Seas or an Exclusive Economic Zone of
Similar Convenience With Respect to Navigational or
Hydrographical Characteristics
Andikithiron Strait — 4 (Greece)
Bahrain-Qatar Passage — 13
(Bahrain/Qatar)
Banks Strait — 3 (Australia)
Bass Strait — 17 (Australia)
Bornholmsgat — 6.5 (Denmark)
Bristol Channel— 4 (U.K.)
Dover Strait— 6 (U.K.)
Entrance to Gulf of
Finland — 3.4 (Finland)
Fehmarn Belt — 4 (Denmark/
Germany)
The Hole— 14 (U.K.)
Kadet Channel — 12
(Denmark/F.R.G.)
Karpathos Strait — 1 1 (Greece)
Kasos Strait — 11.8 (Greece)
Kennedy Channel — 4.5
(Denmark)
Korea Strait West — 7 (South
Korea/Japan)
Litde Minch— 3 (U.K.)
Mayaguana Passage — 14 (The
Bahamas)
Mouchoir Passage — 17 (U.K.)
Nares Strait — 4 (Denmark)
North Channel— 5 (U.K.)
Old Bahama Channel — 3 (Bahamas)
Osumi-kaikyo — 11 (Japan)
Robeson Channel — 2 (Denmark)
Samsoe Belt — 1 (Denmark)
Soya-kaikyo — 7.5 (Japan/Russia)
Tsugaru-kaikyo — 4 (Japan)
Turks Island Passage — 12 (U.K.)
Distance given is for least width of the belt of high seas/EEZ, assuming current breadths claimed for
territorial seas continue. Countries named are those off whose coasts the belt of high seas/EEZ exists.
Source: Alexander, at 206.
21 0 Commander's Handbook on the Law of Naval Operations
TABLE A2-7
States Whose EEZ Proclamations and/or National Laws Appear
Inconsistent with the Convention Provisions Regarding Freedoms of
Navigation and Overflight
Bangladesh — a, c, f
Burma — e
Cape Verde — b, c, f
Colombia — a, c, e
Comoros — a, c
Cook Islands — a, c, f
Costa Rica — a
Cuba — a
Dominican Republic — a
Fiji— a
France — c
Guinea-Bissau — a, c
Guyana — a, d, e
Haiti — b
Iceland — c
India — d, e
Indonesia — c
Ivory Coast — f
Kampuchea — c
Kenya — c
Malaysia — a, c
Maldives — a, d
Mauritania — d
Mauritius — d, e
Mexico — a
Mozambique — a, c
New Zealand — a, c
Nigeria — a, d
Norway — a, f
Oman — a, c
Pakistan — d, e, f
Portugal — f
Russia — d
Samoa — c, f
Sao Tome & Principe — a
Seychelles — d, e, f
Spain — f
Sri Lanka — c
Suriname — a, f
Togo — a, c
Trinidad & Tobago — a
United Arab Emirates — a
-Uruguay — b
Vanuatu — c, e
Venezuela — a
Vietnam — c
Yemen (Aden) — e
a. States silent on the question of residual rights in their EEZ.
b. States claiming possession of residual rights in their EEZ.
c. States whose EEZ proclamations and/or national laws are silent on foreign rights to navigation and
overflight in their EEZ.
d. States whose EEZ proclamations and/or national laws allow the government to regulate the
navigation of foreign vessels in the EEZ or in nationally designated zones of the EEZ (see Table A2-8 (p.
2-89)).
e. States claiming "exclusive jurisdiction" over environemtnal protection in their EEZ.
f. States having special formulations with respect to environmental protection in their EEZ.
Source: Alexander, at 91.
International Status and Navigation of Warships 21 1
TABLE A2-8
State Proclamations Regarding Navigation and Overflight
in and over the EEZ
A. States whose EEZ proclamations and/or laws explicitly recognize the right of foreign navigation
through and overflight over their national EEZ.
Barbados Guatemala Spain
Burma Ivory Coast Suriname
Cuba Mexico Thailand
Democratic Yemen Norway Trinidad and Tobago
Dominica Philippines United Arab Emirates (1)
Dominican Republic Portugal United States
Grenada Sao Tome and Principe Venezuela
(1) The UAE legislation provides that national rights in the EEZ "shall not prejudice international
navigation rights exercised by states in accordance with the rules of international law." It is not clear if
this provision applies to aircraft.
B. States whose EEZ proclamations and/or laws are silent on foreign navigation through and overflight
over their national EEZ.
Bangladesh Iceland Oman
Cape Verde Indonesia Sri Lanka
Colombia Kampuchea Togo
Comoros Kenya Vanuatu
Cook Islands Malaysia Vietnam
France Mozambique Western Samoa
Guinea-Bissau New Zealand
C. States whose EEZ proclamations and/or laws explicitly allow the government to regulate the navigation
of foreign vessels in the EEZ or nationally designed zones of the EEZ (article citations refers to the
respective national legislation).
Guyana: The President may declare any area of the EEZ to be a designated area and make provisions he
deems necessary with respect to "entry into and passage through the designated area of foreign ships by the
establishment of fairways, sealanes, traffic separation schemes or any other mode of ensuring freedom of
navigation which is not prejudicial to the interests of Guyana." [article 18(a) and (b) (vi)]
India: The government may provide for regulation of entry passage through designated area "by
establishment of fairways, sealanes, traffic separation schemes or any other mode of ensuring freedom of
navigation which is not prejudicial to the interests of India." [article 7(6) (Explanation)]
Maldives: "Ships of all States shall enjoy the right of innocent passage through the territorial waters and
other exclusive economic zone of the Republic of the Maldives. . . [No] foreign fishing vessel shall enter its
economic zone without prior consent of the Government of the Maldives." [article 1]
Mauritania: In its EEZ the rights and freedoms of States with respect to navigation, overflight, the laying of
cables and pipelines, as provided for on the high seas, shall not be amended unless they adversely affect the
provisions of Article 185 above [treating Mauritania's sovereign rights and jurisdiction in the EEZ] and the
security of the Mauritanian State." [article 186]
Mauritius: The Prime Minister may provide in designated areas of the EEZ or continental shelf necessary
provisions with respect to "the regulation of entry into the passage of foreign ships through the designated
area" and "the establishment of fairways, sealanes, traffic separation schemes or any other mode of ensuring
freedom of navigation which is not prejudicial to the interest of Mauritius." [article 9(a) and (b) (vi)]
212 Commander's Handbook on the Law of Naval Operations
TABLE A2-8 (cont.)
Nigeria: The government "may, for the purpose of protecting any installation in a designated area. . . prohibit
ships. . . from entering without its consent such part of that area as may be specified." [article 392)]
Pakistan: The government may declare any area of the EEZ to be a designated area and make provisions as it
deems necessary with respect to "the regulation of entry into the passage through the designated area of
foreign ships by the establishment of fairways, sealanes, traffic separation schemes or any other mode of
ensuring freedom of navigation which is not prejudicial to the interest of Pakistan." [article 6(a) and (b) (vi)]
Seychelles: The President may declare any area of the continental shelf or EEZ to be a designated area and
make provisions as he considers necessary with respect to "the regulation of entry into and passage of foreign
ships through the designated area [and] the establishment of fairways, sealanes, traffic separation schemes or
any mode of ensuring freedom of navigation which is not prejudicial to the interest of Seychelles." [article
9(a) and (b) (vii)]
Russia: "In connection with certain specifically bounded regions of the economic zone of the USSR in
which, for technical reasons connected with oceanographic and ecological conditions, as well as for the use of
these regions or for the protection of their resources, or because of the special requirements for navigation in
them, it is necessary that special obligatory measures shall be taken to prevent pollution from vessels, such
measures, including those connected with navigation practices, may be established by the Council of
Ministers of the USSR in regions determined by it. The borders of these special regions should be noted in
'Notification to Mariners'. ." [article 13]
Source: Alexander, at 91-92.
CHAPTER 3
Protection of Persons and Property at Sea
and
Maritime Law Enforcement
3.1 INTRODUCTION
The protection of both U.S. and foreign persons and property at sea by
U.S. naval forces in peacetime involves international law, domestic U.S.
law and policy, and political considerations. Vessels and aircraft on and over the
sea, and the persons and cargo embarked in them, are subject to the hazards
posed by the ocean itself, by storm, by mechanical failure, and by the actions of
others such as pirates, terrorists, and insurgents. In addition, foreign authorities
and prevailing political situations may affect a vessel or aircraft and those on
board by involving them in refugee rescue efforts, political asylum requests,
law enforcement actions, or applications of unjustified use of force against
them.
Given the complexity of the legal, political, and diplomatic considerations
that may arise in connection with the use of naval forces to protect civilian
persons and property at sea, operational plans, operational orders, and, most
importantly, the applicable standing rules of engagement promulgated by the
operational chain of command ordinarily require the on-scene commander to
report immediately such circumstances to higher authority and, whenever it is
practicable under the circumstances to do so, to seek guidance prior to the use of
armed force.
A nation may enforce its domestic laws at sea provided there is a valid
jurisdictional basis under international law to do so. Because U.S. naval
commanders may be called upon to assist in maritime law enforcement actions,
or to otherwise protect persons and property at sea, a basic understanding of
maritime law enforcement procedures is essential.
3.2 RESCUE, SAFE HARBOR, AND QUARANTINE
Mishap at sea is a common occurrence. The obligation of mariners to provide
material aid in cases of distress encountered at sea has long been recognized in
custom and tradition. A right to enter and remain in a safe harbor without
prejudice, at least in peacetime, when required by the perils of the sea or force
214 Commander's Handbook on the Law of Naval Operations
i
majeure is universally recognized. At the same time , a coastal nation may lawfully
promulgate quarantine regulations and restrictions for the port or area in which a
vessel is located.
3.2.1 Assistance to Persons, Ships, and Aircraft in Distress. Customary
international law has long recognized the affirmative obligation of mariners to go
to the assistance of those in danger of being lost at sea. Both the 1958 Geneva
Convention on the High Seas and the 1982 LOS Convention codify this custom
by providing that every nation shall require the master of a ship flying its flag,
insofar as he can do so without serious danger to his ship, crew, or passengers, to
render assistance to any person found at sea in danger of being lost and to proceed
with all possible speed to the rescue of persons in distress if informed of their need
of assistance, insofar as it can reasonably be expected of him. He is also to be
required, after a collision, to render assistance to the other ship, its crew, and its
1. See 2 O'Connell 853-58, MLEM 2-9, and paragraph 3.2.2 (p. 215). Force majeure, or Act of
God, involves distress or stress of weather. Distress may be caused, inter alia, by equipment
malfunction or navigational error, as well as by a shortage of food or water, or other emergency.
Distress is further discussed in paragraph 2.3.2.1, note 25 (p. 116).
2. International Health Regulations, Boston, 1969, 21 U.S.T. 3003, T.I.A.S. 7026, 764
U.N.T.S. 3, as amended at Geneva, 1973, 25 U.S.T. 197, T.I.A.S. 7786. See paragraph 3.2.3
(p. 216) regarding the duty of commanders to comply with quarantine regulations.
3. High Seas Convention, art. 12; 1982 LOS Convention art. 98. "Article 98 [1982 LOS
Convention] gives expression to the general tradition and practice of all seafarers and of maritime
law regarding the rendering of assistance to persons or ships in distress at sea, and the elementary
considerations of humanity." Nordquist, Vol. Ill at 571.
"The duty to render assistance is also addressed in article 18 (Meaning of Passage).
Under paragraph 2 of that article, a ship exercising its right of innocent passage
through the territorial sea may stop and anchor if it is necessary for the purpose of
rendering assistance to persons, ships or aircraft in danger or distress" Article 98,
paragraph 1 (a) sets out the general obligation to render assistance to persons in distress
'at sea' (i.e., anywhere in the oceans). Article 98 is applicable in the exclusive
economic zone in accordance with article 58, paragraph 2. Therefore, in
combination with article 18, the duty to render assistance exists throughout the
ocean, whether in the territorial sea, in straits used for international navigation, in
archipelagic waters, in the exclusive economic zone or on the high seas."
Id., at 176-77.
See also International Convention for the Unification of Certain Rules of Law with Respect to
Assistance and Salvage at Sea, Brussels, 23 September 1910, 37 Stat. 1658, T.I.A.S. 576; (to be
superseded for States Party by the 1989 Salvage Convention, Chap. 2, art. 10.); and 46 U.S.C. sec.
2304 (1994). The United States ratified the 1989 International Convention on Salvage on 27
March 1992. See Senate Treaty Doc. 12, 102d Cong., 1st Sess. (1991). Further, the 1979
International Convention on Search and Rescue, T.I.A.S. 11093, requires parties to ensure that
persons and property in distress at sea are provided assistance. This obligation has been fulfilled
domestically through creation of a National Search and Rescue System. See National Search and
Rescue Manual, U.S. Coast Guard, COMDTINSTM16120.5A and .6A(vols. 1 &2). Compare
(continued...)
Protection of Persons and Property at Sea 21 5
passengers and, where possible, to inform the other ship of the name of his own
ship, its port of registry, and the nearest port at v
2.3.2.5 for a discussion of "Assistance Entry.")
ship, its port of registry, and the nearest port at which it will call. (See paragraph
3.2.1.1 Duty of Masters. In addition, the U.S. is party to the 1974 London
Convention on Safety of Life at Sea, which requires the master of every
merchant ship and private vessel not only to speed to the assistance of persons in
distress, but to broadcast warning messages with respect to dangerous conditions
or hazards encountered at sea.
3.2.1.2 Duty of Naval Commanders. Article 0925, U.S. Navy Regulations,
1990, requires that, insofar as he can do so without serious danger to his ship or
crew, the commanding officer or senior officer present, as appropriate, shall
proceed with all possible speed to the rescue of persons in distress if informed of
their need for assistance (insofar as this can reasonably be expected of him) ;
render assistance to any person found at sea in danger of being lost; and, after a
collision, render assistance to the other ship, her crew and passengers, and, where
possible, inform the other ship of his identity. Article 4-2-5, U.S. Coast Guard
Regulations (COMDTINST M5000.3 (series)) imposes a similar duty for the
Coast Guard.
3.2.2 Safe Harbor. Under international law, no port may be closed to a foreign
ship seeking shelter from storm or bad weather or otherwise compelled to enter
it in distress, unless another equally safe port is open to the distressed vessel to
which it may proceed without additional jeopardy or hazard. The only
condition is that the distress must be real and not contrived and based on a
3. (...continued)
art. 21 of the Second Geneva Convention of 1949 regarding the right of belligerents to appeal to
the "charity of commanders of neutral merchant vessels, yachts or other craft, to take on board and
care for the wounded, sick or shipwrecked persons, and to collect the dead" and the special
protection accorded those who respond to such appeals. See paragraph 3.2.2.1 (p. 216) regarding
the right of ships transiting territorial seas in innocent passage to render assistance to persons, ships
or aircraft in danger or distress.
4. 46 U.S.C. sec. 2303 (1994).
5. 1974 International Convention for Safety of Life at Sea (SOLAS), Regulations 10 and 2,
Chapter V, 32 U.S.T. 47, T.I.A.S. 9700. The failure of masters or persons in charge of vessels to
render assistance so far as they are able (absent serious danger to their own vessel) to every person
found at sea in danger of being lost is a crime under U.S. law punishable by a fine not exceeding
$1,000 and/or imprisonment for up to two years (46 U.S.C. sec. 2304 (1994)). This section does
not apply to public vessels (see 46 U.S.C. sec. 2109 (1994)).
6. In addition to these obligations explicitly required by the law of the sea conventions, U.S.
Navy Regulations, 1990, art. 0925, also requires that ships and aircraft in distress be afforded all
reasonable assistance. Actions taken pursuant to art. 0925 are to be reported promptly to the Chief
of Naval Operations and other appropriate superiors. See Harry, Failure to Render Aid, U.S. Naval
Inst. Proc, Feb. 1990, at 65.
216 Commander's Handbook on the Law of Naval Operations
well-founded apprehension of loss of or serious damage or injury to the vessel,
cargo, or crew. In general, the distressed vessel may enter a port without being
subject to local regulations concerning any incapacity, penalty, prohibition,
duties, or taxes in force at that port. (See paragraph 4.4 for a discussion of aircraft
in distress.)
3.2.2.1 Innocent Passage. Innocent passage through territorial seas and
archipelagic waters includes stopping and anchoring when necessitated by force
majeure or by distress. Stopping and anchoring in such waters for the purpose of
rendering assistance to others in similar danger or distress is also permitted by
international law.
3.2.3 Quarantine. Article 0859, U.S. Navy Regulations, 1990, requires that
the commanding officer or aircraft commander of a ship or aircraft comply with
quarantine regulations and restrictions. While commanding officers and aircraft
commanders shall not permit inspection of their vessel or aircraft, they shall
afford every other assistance to health officials, U.S. or foreign, and shall give all
information required, insofar as permitted by the requirements of military
9
necessity and security. To avoid restrictions imposed by quarantine regulations,
10
the commanding officer should request free pratique in accordance with the
Sailing Directions for that port.
3.3 ASYLUM AND TEMPORARY REFUGE
3.3.1 Asylum. International law recognizes the right of a nation to grant asylum
11
to foreign nationals already present within or seeking admission to its territory.
The U.S. defines "asylum" as:
7. 2 O'Connell 853-58. See also paragraph 2.3.1, note 20 (p. 116).
8. Territorial Sea Convention, art. 14; 1982 LOS Convention, arts. 18 & 52. Innocent
passage is discussed in greater detail in paragraph 2.3.2 (p. 116). See also paragraph 3.2.1, note 3
(p. 214).
9. See also SECNAVINST 6210.2 (series), Subj: Medical and Agricultural Foreign and
Domestic Quarantine Regulations for Vessels, Aircraft, and Other Transports of the Armed
Forces, and paragraph 3.2 (p. 213). The sovereign immunity of warships and military aircraft is
discussed in paragraphs 2.1.2 (p. 110) and 2.2.2 (p. 114), respectively.
10. Clearance granted a ship to proceed into a port after compliance with health or quarantine
regulations.
11. Sometimes referred to as "political asylum," the right of asylum recognized by the U.S.
Government is territorial asylum. Christopher, Political Asylum, Dep't St. Bull., Jan. 1980, at 36.
The 1948 U.N. Universal Declaration of Human Rights declares that "[ejveryone has the right to
seek and to enjoy in other countries asylum from persecution," see Declaration on Territorial
Asylum, 22 U.N. GAOR, Supp. No. 16, at 81, U.N. Doc. A/6716 (1968). The decision to grant
asylum remains within the discretion of the requested nation. The Refugee Act of 1980, Pub. L.
(continued...)
Protection of Persons and Property at Sea 217
Protection and sanctuary granted by the United States Government within its territorial
jurisdiction or in international waters to a foreign national who applies for such protection
because of persecution or fear of persecution on account of race, religion, nationality,
membership in a particular social group , or political opinion.
Whether to grant asylum is a decision reserved to higher authority.
3.3.1.1 Territories Under the Exclusive Jurisdiction of the United States
and International Waters. Any person requesting asylum in international
waters or in territories under the exclusive jurisdiction of the United States
11. (...continued)
No. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 U.S. Code), for the first
time created substantial protections for aliens fleeing persecution who are physically present in
U.S. territory. The Act is carefully examined in Anker, Discretionary Asylum: A Protection
Remedy for Refugees Under the Refugee Act of 1980, 28 Va. J. Int'l L. 1 (1987). With regard to
illegal Haitian migrants, see the Agreement Relating to Establishment of a Cooperative Program
of Interdiction and Selective Return of Persons Coming from Haiti, 33 U.S.T. 3559; T.I.A.S.
10,241, reprinted in 20 Int'l Leg. Mat'ls 1198 (1981), entered into force 23 Sept. 1981. See also
Leich, Contemporary Practice of the United States Relating to International Law — Illegal Haitian
Migrants, 83 Am. J. Int'l L. 906 (1989); paragraph 3.3.1.3, note 14 (p. 218).
12. This definition is derived from art. 1 of the 1951 Convention Relating to the Status of
Refugees, 19 U.S.T. 6260, 189 U.N.T.S. 150 (in respect to refugees resulting from pre-1951
events), arts. 2 to 34 of which are incorporated in the 1967 Protocol Relating to the Status of
Refugees, 19 U.S.T. 6223, T.I.A.S. 6577, 606 U.N.T.S. 267, AFP 1 10-20 (Navy Supp.) at 37-2,
which makes its provisions applicable without time reference. The United States is party to the
latter instrument. Refugees are defined in 8 U.S.C. sec. 1 101(42)(A) (1982) in substantially similar
terms.
Asylum responsibility rests with the government of the country in which the seeker of asylum finds
himself or herself. The U.S. Government does not recognize the practice of granting "diplomatic
asylum" or long-term refuge in diplomatic missions or other government facilities abroad or at sea
and considers it contrary to international law (but see paragraph 3.3.2 (p. 219)). However,
exceptions to this policy have been made. For example, the United States received Cardinal
Mindszenty in the U.S. Embassy in Budapest in 1956, and accorded him a protected status for
some six years. 6 Whiteman 463-64. Several Pentacostals spent five years in the U.S. Embassy in
Moscow between 1978 and 1983. 1 Restatement (Third), sec. 466 Reporters' Note 3, at 488-89.
In 1989 two Chinese dissidents were received in the U.S. Embassy in Beijing. Wash. Post, 13June
1989, at A25; Wall St. J., 13 June 1989, at A20.
Guidance for military personnel in handling requests for political asylum and temporary refuge (see
paragraph 3.3.2 (p. 219)) is found in DODDIR. 2000.11; SECNAVINST 5710.22 (series), Subj:
Procedures for Handling Requests for Political Asylum and Temporary Refuge; U.S. Navy
Regulations, 1990, art. 0939; and applicable operations orders. These directives were promulgated
after the Simas Kurdika incident. See Mann, Asylum Denied: The Vigilant Incident, Nav. War
Coll. Rev., May 1971, at 4, reprinted in Lillich & Moore, Vol. 60 (1980) at 598; Goldie, Legal
Aspects of the Refusal of Asylum by U.S. Coast Guard on 23 November 1970, Nav. War Coll.
Rev., May 1971, at 32, reprinted in Lillich & Moore, Vol 60 (1980) at 626; Fruchterman, Asylum:
Theory and Practice, 26 JAG J. 169 (1972). Special procedures, held locally, apply to Antarctica
and Guantanamo Bay.
(continued...)
218 Commander's Handbook on the Law of Naval Operations
(including the U.S. territorial sea, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, territories under U.S.
administration, and U.S. possessions), will be received on board any U.S. armed
forces aircraft, vessel, activity or station. Persons seeking asylum are to be
afforded every reasonable care and protection permitted by the circumstances.
Under no circumstances will a person seeking asylum in U.S. territory or in
international waters be surrendered to foreign jurisdiction or control, unless at
the personal direction of the Secretary of the Navy or higher authority. (See
Article 0939, U.S. Navy Regulations, 1990; SECNAVINST 5710.22 (series),
and U.S. Coast Guard Maritime Law Enforcement Manual, COMDTINST
M16247.1 (series) (MLEM), Enclosure 17, for specific guidance.)
3.3.1.2 Territories Under Foreign Jurisdiction. Commanders of U.S.
warships, military aircraft, and military installations in territories under foreign
jurisdiction (including foreign territorial seas, archipelagic waters, internal
waters, ports, territories, and possessions) are not authorized to receive on board
foreign nationals seeking asylum. Such persons should be referred to the
American Embassy or nearest U.S. Consulate in the country, foreign territory,
or foreign possession involved, if any, for assistance in coordinating a request for
asylum with the host government insofar as practicable. Because warships are
extensions of the sovereignty of the flag nation and because of their immunity
from the territorial sovereignty of the foreign nation in whose waters they may
1 3
be located, they have often been looked to as places of asylum. The U.S.,
however, considers that asylum is generally the prerogative of the government of
the territory in which the warship is located.
However, if exceptional circumstances exist involving imminent clanger to
the life or safety of the person, temporary refuge may be granted. (See paragraph
3.3.2.)
3.3.1.3 Expulsion or Surrender. Article 33 of the 1951 Convention Relating
to the Status of Refugees provides that a refugee may not be expelled or returned
12.(.. .continued)
On the other hand, some refugees may seek resettlement and not specifically request asylum, such
as some of the Indochinese refugees encountered by U.S. naval vessels in the South China Sea since
1975. Guidance for handling refugee resettlement requests may be found in cognizant operations
orders, such as CINCPACFLT OPORD 201, Tab E to Appendix 6 to Annex C, para. 3(b).
The legal protection of refugees and displaced persons are discussed in the following four articles
appearing in 1988 Int'lRev. Red Cross 325-78: Hacke, Protection by Action, at 325; Krill, ICRC
Actions in Aid of Refugees, at 328; Mumtarbhom, Protection and Assistance for Refugees in
Ground Conflicts and Internal Disturbances, at 351; and Patrnogic, Thoughts on the Relationship
Between International Humanitarian Law and Refugee Law, their Protection and Dissemination,
at 367.
13. See paragraph 2.2.2 (p. 114) and Annex A2-1 (p. 155).
Protection of Persons and Property at Sea 219
in any manner whatsoever to the frontier or territories of a nation where his life
or freedom would be threatened on account of his race, religion, nationality,
political opinion, or membership in a particular social group, unless he may
reasonably be regarded as a danger to the security of the country of asylum or has
been convicted of a serious crime and is a clanger to the community of that
country. This obligation applies only to persons who have entered territories
under the exclusive jurisdiction of the United States. It does not apply to
temporary refuge granted abroad.
3.3.2 Temporary Refuge. International law and practice have long
recognized the humanitarian practice of providing temporary refuge to anyone,
regardless of nationality, who may be in imminent physical danger for the
duration of that danger. (See Article 0939, U.S. Navy Regulations, 1990,
SECNAVINST 5710.22 (series), and the Coast Guard's MLEM.)
SECNAVINST 5710.22 defines "temporary refuge" as:
Protection afforded for humanitarian reasons to a foreign national in a Department of Defense
shore installation, facility, or military vessel within the territorial jurisdiction of a foreign
nation or [in international waters], under conditions of urgency in order to secure
the life or safety of that person against imminent danger, such as pursuit by a mob.
14. This obligation, known as non-refoulement, is implemented by 8 U.S.C. sec. 1231(b)(3)
(1997). See 2 Restatement (Third), sec. 711 Reporters' Note 7, at 195-96, and 1 id., sec. 433,
Reporters' Note 4, at 338-39.
This obligation does not apply to Haitian migrants intercepted at sea under the Haitian Migration
Interdiction Program. Under this executive agreement between the United States and Haiti, 23
September 1981, 33 U.S.T. 3559, T.I.A.S. 10241, Haiti authorized U.S. Coast Guard personnel to
board any Haitain flag vessel on the high seas or in Haitian territorial waters which the Coast Guard
has reason to believe may be involved in the irregular carriage of passengers outbound from Haiti,
to make inquiries concerning the status of those on board, to detain the vessel if it appears that an
offense against U.S. immigration laws or appropriate Haitian laws has been or is being committed,
and to return the vessel and the persons on board to Haiti. Under this agreement the United States
"does not intend to return to Haiti any Haitian migrants whom the United States authorities
determine to qualify for refugee status." See Presidential Proclamation 4865, 3 C.F.R. 50 (1981
Comp.) (suspending the entry of undocumented aliens from the high seas); Executive Order
12324, 3 C.F.R. 180 (1981 Comp.) (prohibiting the return of a refugee without his consent and
requiring observance of our international obligations); 5 Op. Off. Legal Counsel 242, 248 (1981)
(discussing U.S. obligations under the Protocol); and Haitian Refugee Center, Inc. v. Baker, Sec. of
State, 953 F.2d 1498 (11th Cir. 1991) (art. 33 not self-executing; interdiction at sea not judicially
reviewable), cert, denied, 112 S. Ct. 1245 (1992). See also Sale v. Haitian Centers Council, 113 S. Ct.
2549 (1993).
15. Including foreign territorial seas, archipelagic waters, internal waters, ports, territories and
possessions. See paragraph 3.3.1 (p. 216) regarding asylum in international waters
16. This definition derives from DODDIR2000.il of 3 Mar. 1972 {see paragraph 3.3, note 12
(p. 217)). The language of the actual definition provides, in pertinent part, "on the high seas." The
(continued...)
220 Commander's Handbook on the Law of Naval Operations
It is the policy of the United States to grant temporary refuge in a foreign
country to nationals of that country, or nationals of a third nation, solely for
humanitarian reasons when extreme or exceptional circumstances put in
imminent danger the life or safety of a person, such as pursuit by a mob. The
officer in command of the ship, aircraft, station, or activity must decide which
measures can prudently be taken to provide temporary refuge. The safety of U.S.
personnel and security of the unit must be taken into consideration.
3.3.2.1 Termination or Surrender of Temporary Refuge. Although
temporary refuge should be terminated when the period of active danger is
ended, the decision to terminate protection will not be made by the commander.
Once temporary refuge has been granted, protection may be terminated only
when directed by the Secretary of the Navy, or higher authority. (See Article
0939, U.S. Navy Regulations, 1990, and SECNAVINST 5710.22 (series), and
the Coast Guard's MLEM.)
A request by foreign authorities for return of custody of a person under the
protection of temporary refuge will be reported in accordance with
SECNAVINST 5710.22 (series). The requesting foreign authorities will then
be advised that the matter has been referred to higher authorities.
3.3.3 Inviting Requests for Asylum or Refuge. U.S. armed forces
personnel shall neither directly nor indirecdy invite persons to seek asylum or
1 Q
temporary refuge.
3.3.4 Protection of U.S. Citizens. The limitations on asylum and temporary
refuge are not applicable to U.S. citizens. See paragraph 3.10 and the standing
rules of engagement for applicable guidance.
16. (...continued)
substituted language "[in international waters]" equates to that area of the oceans beyond the
territorial sea which was regarded as high seas prior to the 1982 LOS Convention and advent of the
exclusive economic zone. See paragraph 1.5 (p. 19).
17. All requests for asylum or temporary refuge received by Navy or Marine Corps units and
activities will be reported immediately and by the most expeditious means to CNO or CMC in
accordance with SECNAVINST 5710.22 (series). Coast Guard units and activities will report
such requests through the chain of command for coordination with the Department of State in
accordance with the MLEM. No information will be released by Navy or Marine Corps units or
activities to the public or the media without the prior approval of the Assistant Secretary of
Defense for Public Affairs or higher authority. Coast Guard units and activities are similarly
constrained by the MLEM, E-17-8.
18. Coast Guard units and activities will report such requests in accordance with the MLEM,
E-17-6.
19. U.S. Navy Regulations, 1990, art. 0939; SECNAVINST 5710.22 (series); MLEM, 12-3.
Protection of Persons and Property at Sea 221
3.4 RIGHT OF APPROACH AND VISIT
As a general principle, vessels in international waters are immune from the
jurisdiction of any nation other than the flag nation. However, under
international law, a warship, military aircraft, or other duly authorized ship or
20
aircraft may approach any vessel in international waters to verify its nationality.
Unless the vessel encountered is itself a warship or government vessel of another
nation, it may be stopped, boarded, and the ship's documents examined, provided
there is reasonable ground for suspecting that it is:
1. Engaged in piracy (see paragraph 3.5).
2. Engaged in the slave trade (see paragraph 3.6).
3. Engaged in unauthorized broadcasting (see paragraph 3.7).
4. Without nationality (see paragraphs 3.11.2.3 and 3.11.2.4).
5. Though flying a foreign flag, or refusing to show its flag, the vessel is, in
reality, of the same nationality as the warship.
The procedure for ships exercising the right of approach and visit is similar to
that used in exercising the belligerent right of visit and search during armed
conflict described in paragraph 7.6.1. See Article 630.23, OPNAVINST
3120. 32B, and paragraph 2.9 of the Coast Guard's MLEM for further guidance.
3.5 REPRESSION OF PIRACY
International law has long recognized a general duty of all nations to
cooperate in the repression of piracy. This traditional obligation is included in
the 1958 Geneva Convention on the High Seas and the 1982 LOS Convention,
both of which provide:
20. Mariana Flora, 24 U.S. (11 Wheaton) 1, 43-44 (1826); 4 Whiteman 515-22; 2 O'Connell
802-03. See also Zwanenberg, Interference with Ships on the High Seas, 10 Int'l & Comp. L.Q.
785 (1961); 1 Oppenheim-Lauterpacht 604; McDougal & Burke 887-93; 2 Moore 886; and 1
Hyde sec. 227. This customary international law concept is codified in art. 110, 1982 LOS
Convention.
21. 1982 LOS Convention, art. 1 10. Sovereign immunity ofwarships is discussed in paragraph
2.1.2 (p. 110); the belligerent right of visit and search is discussed in paragraph 7.6 (p. 387).
222 Commander's Handbook on the Law of Naval Operations
[A]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high
seas or in any other place outside the jurisdiction of any State.
3.5.1 U.S. Law. The U.S. Constitution (Article I, Section 8) provides that:
The Congress shall have Power ...to define and punish piracies and felonies committed on
the high seas, and offences against the Law of Nations.
Congress has exercised this power by enacting title 18 U.S. Code section
1651 which provides that:
Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is
afterwards brought into or found in the United States, shall be imprisoned for life.
U.S. law authorizes the President to employ "public armed vessels" in
protecting U.S. merchant ships from piracy and to instruct the commanders of
such vessels to seize any pirate ship that has attempted or committed an act of
piracy against any U.S. or foreign flag vessel in international waters.
3.5.2 Piracy Defined. Piracy is an international crime consisting of illegal acts
of violence, detention, or depredation committed for private ends by the crew or
passengers of a private ship or aircraft in or over international waters against
22. The international law of piracy also applies within the exclusive economic zone. 1982 LOS
Convention, art. 58(2). Art. 19 of the High Seas Convention and art. 105 of the 1982 LOS
Convention permit any nation to seize a pirate ship or aircraft, or a ship or aircraft taken by and
under the control of pirates, and to arrest the persons and seize the property on board. The courts of
the seizing nation may also decide upon the penalties to be imposed and the disposition of the ship,
aircraft or property, subject to the rights of third parties acting in good faith.
23. High Seas Convention, art. 14; 1982 LOS Convention, art. 100.
24. Congressional exercise of this power is set out in 18 U.S.C. sections 1651-61 (1988)
(piracy), 33 U.S.C. sections 381-84 (1988) (regulations for suppression of piracy), and 18 U.S.C.
section 1654 (privateering). While U.S. law makes criminal those acts proscribed by
international law as piracy, other provisions of U.S. municipal law proscribe, as criminal, related
conduct. For example, U.S. law makes criminal arming or serving on privateers (18 U.S.C. sec.
1654), assault by a seaman on a captain so as to prevent him from defending his ship or cargo (18
U.S.C. sec. 1655), running away with a vessel within the admiralty jurisdiction (18 U.S.C. sec.
1656), corruption of seamen to run away with a ship (18 U.S.C. sec. 1657), receipt of pirate
property (18 U.S.C. sec. 1660), and robbery ashore in the course of a piratical cruise (18 U.S.C.
sec. 1661). SeeMenefee, "Yo Heave Ho!": Updating America's Piracy Laws, 21 Cal. West. Int'l
L.J. 151 (1990).
25. 33 U.S.C. sees. 381 & 382 (1988). These sections also authorize issuance of instructions to
naval commanders to send into any U.S. port any vessel which is armed or the crew of which is
armed, and which shall have "attempted or committed any piratical aggression, search, restraint,
depredation, or seizure, upon any vessel," U.S. or foreign flag, or upon U.S. citizens; and to retake
any U.S. flag vessel or U.S. citizens unlawfully captured in international waters.
Protection of Persons and Property at Sea 223
another ship or aircraft or persons and property on board. (Depredation is the act
of plundering, robbing, or pillaging.)
3.5.2.1 Location. In international law piracy is a crime that can be committed
only on or over international waters (including the high seas, exclusive
economic zone, and the contiguous zone), in international airspace, and in
other places beyond the territorial jurisdiction of any nation. The same acts
committed in the internal waters, territorial sea, archipelagic waters, or
national airspace of a nation do not constitute piracy in international law but
are, instead, crimes -within the jurisdiction and sovereignty of the littoral
27
nation.
3.5.2.2 Private Ship or Aircraft. Acts of piracy can only be committed by
private ships or private aircraft. A warship or other public vessel or a military or
26. The 1982 LOS Convention defines piracy as follows:
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for
private ends by the crew or or the passengers of a private ship or a private aircraft, and
directed:
(i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of a ship or of an
aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph
(a) or (b).
1982 LOS Convention, art. 101. The High Seas Convention, art. 15, defines piracy in essentially
identical terms. Municipal law definitions, however, vary. Compare paragraph 3.5.1, note 24
(p. 222). The international law of piracy is neither clearly nor completely set forth in the law of the
sea conventions. See the discussions in 2 O'Connell 966-83; Rubin, The Law of Piracy; and Essays
on Piracy, 21 Cal. West. Int'l LJ. 105-79 (1990).
A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant
control to be used for the purpose of committing an act of piracy. The same applies if the ship or
aircraft has been used to commit any such act, so long as it remains under the control of the persons
guilty of that act. High Seas Convention, art. 17; 1982 LOS Convention, art. 103.
O'Connell correctly notes that "it is the repudiation of all authority that seems to be the essence of
piracy." 2 O'Connell 970.
27. In recent years, piracy has been prevalent in the Strait of Malacca, Singapore Strait, Gulf of
Thailand, South China Sea, coastal waters off West Africa and Baja California, the Persian Gulf,
and the Caribbean. The impact of modern piracy on the U.S. Navy is described in Petrie, Pirates
and Naval Officers, Nav. War Coll. Rev., May-June 1982, at 15. See also Ellen, Contemporary
Piracy, 21 Cal. West. Int'l LJ. 123 (1990).
224 Commander's Handbook on the Law of Naval Operations
other state aircraft cannot be treated as a pirate unless it is taken over and operated
by pirates or unless the crew mutinies and employs it for piratical purposes. By
committing an act of piracy, the pirate ship or aircraft, and the pirates
themselves, lose the protection of the nation whose flag they are otherwise
entitled to fly.
3.5.2.3 Private Purpose. To constitute the crime of piracy, the illegal acts
must be committed for private ends. Consequently, an attack upon a merchant
ship at sea for the purpose of achieving some criminal end, e.g., robbery, is an act
of piracy as that term is currently defined in international law. Conversely, acts
otherwise constituting piracy done for purely political motives, as in the case of
insurgents not recognized as belligerents, are not piratical.
3.5.2.4 Mutiny or Passenger Hijacking. If the crew or passengers of a ship or
aircraft, including the crew of a warship or military aircraft, mutiny or revolt and
"2 -I
convert the ship, aircraft or cargo to their own use, the act is not piracy. If,
however, the ship or aircraft is thereafter used to commit acts of piracy, it
28. High Seas Convention, art. 16; 1982 LOS Convention, art. 102.
29. However, the nationality of the vessel is not affected by its piratical use unless such is
specifically provided for in the law of the country of the vessel's nationality. High Seas
Convention, art. 18; 1982 LOS Convention, art. 104. It should be noted that it is not a
precondition for a finding of piracy that the ship in question does not have the right to fly the flag, if
any, which it displays. Additionally, the mere fact that a ship sails without a flag is not sufficient to
give it the character of a pirate ship, although it could be treated as a ship without nationality. 2
O'Connell 755-57; 9 Whiteman 35-37.
30. "So long as the acts are those which are normally incidental to belligerent activity they
would not be characterized as piracy, even though the actors may have only the most slender claims
to international authority. . . . [I]t would be a false characterization of illicit acts to describe them as
piracy when the intention of the insurgents is to wage war as distinct from committing random
depredation." 2 O'Connell 975 & 976; 2 Restatement (Third), sec. 522, Reporters' Note 2, at 85.
See also, Green, The Santa Maria: Rebels or Pirates, 37 Brit. Y.B. Int'l L. 465 (1961). Therefore,
terrorist attacks on shipping for the sole purpose of achieving some political end are arguably not
piracy under current international law. See paragraph 3.10 (p. 228). Terrorist acts committed on
board or against a vessel are proscribed by the Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation (Rome Convention), 10 March 1988, 27 I.L.M. 668
(1988), (entered into force for the United States on 6 March 1995), codified at 18 U.S. C. sec. 2280
(1994). Acts of terrorism against an oil rig or platform anchored on the continental shelf are
addressed in the Protocol to the Rome Convention. See Protocol for the Suppression of Unlawful
Acts Against the Safety of Fixed Platforms located on the Continental Shelf, 10 March 1988, 27
Int'l Leg. Mat'ls 685 (1988), implemented by the United States in 18 U.S.C. sec 2281 (1994). See
also Omnibus Diplomatic Security and Anti Terrorism Act of 1986, Pub. L. No. 99-399, Title IX,
sec. 906, codified at 33 U.S.C. sec. 1226 (1994), authorizing the Secretary of Transportation to
take action including establishing safety and security zones on U.S. waters including the EEZ to
prevent or respond to acts of terrorism.
31. Although it is a crime if it occurs on a U.S. flag vessel or aircraft under 18 U.S.C. sec. 1656.
See also paragraph 3.5.2.3. (p. 224).
Protection of Persons and Property at Sea 225
becomes a pirate ship or pirate aircraft and those on board voluntarily
participating in such acts become pirates.
3.5.3 Use of Naval Forces to Repress Piracy. Only warships, military aircraft,
or other ships or aircraft clearly marked and identifiable as being on governmental
service and authorized to that effect, may seize a pirate ship or aircraft.
3.5.3.1 Seizure of Pirate Vessels and Aircraft. A pirate vessel or aircraft
encountered in or over U.S. or international waters may be seized and detained
by any of the U.S. vessels or aircraft listed in paragraph 3.5.3. The pirate vessel or
aircraft, and all persons on board, should be taken, sent, or directed to the nearest
U.S. port or airfield and delivered to U.S. law enforcement authorities for
disposition according to U.S. law. Alternatively, higher authority may arrange
with another nation to accept and try the pirates and dispose of the pirate vessel
or aircraft, since every nation has jurisdiction under international law over any
. r ■ 34
act of piracy.
32. In international law certain types of acts, perhaps technically falling within the definition of
piracy in paragraph 3.5.2 (p. 222), are generally recognized as not being piracy. Their general
character is simply not of a nature so offensive and harmful to international maritime commerce
and to the community of all nations as to warrant the designation of the perpetrators as enemies of
the human race. Here a rule of reason is applied. For example, a mere quarrel followed by acts of
violence or depredations occurring between fishermen in international waters ought not be
regarded as an incident of piracy. Likewise, efforts (however unlawful) of conservationists to detain
or disrupt whaling vessels on their high seas operations ought not generally be treated as piracy, but
may violate U.S. criminal laws. See also Gehring, Defense Against Insurgents on the High Seas:
The Lyla Express and Johnny Express, 27 JAG J. 317 (1973).
33. High Seas Convention, art. 21; 1982 LOS Convention, art. 107. U.S. Coast Guard cutters
are warships. Paragraph 2.1.1, note 3 (p. 109).
In many cases, circumstances may be such that there is no reason to doubt the piratical nature of a
ship or aircraft. Where, however, the situation is not so clear, before action may be taken against
"pirates" it must first be ascertained that they are in fact pirates. A warship may exercise the right of
approach and visit (see paragraph 3.4 (p. 221)) at any time to verify the nationality of another vessel
and, if there are reasonable grounds to do. so, to determine if it is engaged in piracy.
It is within the general authority of the naval commander to protect innocent shipping in
international waters from piratical attack. This authority, with respect to U.S. citizens and U.S. flag
vessels is specified in U.S. Navy Regulations, 1990, arts. 0914 and 0920; authority is derived from
an amalgam of customary international law, treaty obligation, statute and Navy Regulations with
respect to foreign flag vessels. Guidance for dealing with piracy is contained in the fleet
commanders' basic operational orders, and for Coast Guard units, in the MLEM 12-13. The
commander's specific authority to use force in such circumstances is derived from the standing
rules of engagement promulgated by the operational chain of command. When circumstances
permit, higher authority should be consulted. See para. 8c(5), Standing Rules of Engagement for
U.S. Forces, Annex A4-3 (p. 277).
34. High Seas Convention, art. 19; 1982 LOS Convention, art. 105; 1 Restatement (Third),
sees. 404 & 423 (an exercise of universal jurisdiction to prescribe and to enforce), and sec. 404
Reporters' Note 1, at 255. See also paragraph 3.11.1.5 (p. 234).
226 Commander's Handbook on the Law of Naval Operations
3.5.3.2 Pursuit of Pirates into Foreign Territorial Seas, Archipelagic
Waters, or Airspace. If a pirate vessel or aircraft fleeing from pursuit by a
warship or military aircraft proceeds from international waters or airspace into
the territorial sea, archipelagic waters, or superjacent airspace of another country,
every effort should be made to obtain the consent of the nation having
sovereignty over the territorial sea, archipelagic waters, or superjacent airspace to
continue pursuit (see paragraphs 3.11.2.2. and 3.1 1.3.3). The inviolability of the
territorial integrity of sovereign nations makes the decision of a warship or
military aircraft to continue pursuit into these areas without such consent a
serious matter. However, the international nature of the crime of piracy may
allow continuation of pursuit if contact cannot be established in a timely manner
with the coastal nation to obtain its consent. In such a case, pursuit must be
broken off immediately upon request of the coastal nation, and, in any event, the
right to seize the pirate vessel or aircraft and to try the pirates devolves on the
nation to which the territorial seas, archipelagic waters, or airspace belong.
Pursuit of a pirate vessel or aircraft through or over international straits
overlapped by territorial seas or through archipelagic sea lanes or air routes, may
proceed with or without the consent of the coastal nation or nations, provided
the pursuit is expeditious and direct and the transit passage or archipelagic sea
lanes passage rights of others are not unreasonably constrained in the process.
3.6 PROHIBITION OF THE TRANSPORT OF SLAVES
International law stricdy prohibits use of the seas for the purpose of
transporting slaves. The 1982 LOS Convention requires every nation to
prevent and punish the transport of slaves in ships authorized to fly its flag. If
confronted with this situation, commanders should maintain contact, consult
applicable standing rules of engagement and Coast Guard use of force policy, and
request guidance from higher authority.
35. But see Lowe, The Commander's Handbook on the Law of Naval Operations and the
Contemporary Law of the Sea, in Robertson at 126.
36. Convention to Suppress the Slave Trade and Slavery, Geneva, 25 September 1926, 46
Stat. 2183, T.S. No. 778, 2 Bevans 607, 60 L.N.T.S. 253; Protocol Amending the Slavery
Convention of 25 September 1926, New York, 7 December 1953, 7 U.S.T. 479, T.I.A.S. 3532,
182 U.N. T.S. 51; Supplementary Convention on the Abolition of Slavery, the Slave Trade and
Institutions and Practices Similar to Slavery, Geneva, 5 September 1956, 18 U.S.T. 3201, T.I.A.S.
6418, 266 U.N.T.S. 3. This obligation is implemented in 18 U.S.C. sec. 1581-88 (1988). See 1
Restatement (Third), sees. 404 & 423, and Reporters' Note 1, at 253; and Sohn, Peacetime Use of
Force on the High Seas, in Robertson at 39-59.
37. 1982 LOS Convention, art. 99. The Slavery Convention, Amending Protocol, and
Supplementary Convention, note 36, do not authorize nonconsensual high seas boarding by
foreign flag vessels. Nevertheless, such nonconsensual boarding was generally authorized in art.
22(1) of the 1958 High Seas Convention and reaffirmed in art. 110(l)(b) of the 1982 LOS
Convention.
Protection of Persons and Property at Sea 227
3.7 SUPPRESSION OF UNAUTHORIZED BROADCASTING
The 1982 LOS Convention provides that all nations shall cooperate in the
suppression of unauthorized broadcasting from international waters.
Unauthorized broadcasting involves the transmission of radio or television
signals from a ship or off-shore facility intended for receipt by the general public,
contrary to international regulation. Commanders should request guidance
from higher authority if confronted with this situation.
3.8 SUPPRESSION OF INTERNATIONAL NARCOTICS
TRAFFIC
All nations are required to cooperate in the suppression of the illicit traffic in
narcotic drugs and psychotropic substances in international waters. International
law permits any nation which has reasonable grounds to suspect that a ship flying
its flag is engaged in such traffic to request the cooperation of other nations in
effecting its seizure. International law also permits a nation which has reasonable
grounds for believing that a vessel exercising freedom of navigation in
accordance with international law and flying the flag or displaying the marks of
registry of another nation is engaged in illegal drug trafficking to request
confirmation of registry and, if confirmed, request authorization from the flag
nation to take appropriate action with regard to that vessel. Coast Guard
personnel, embarked on Coast Guard cutters or U.S. Navy ships, regularly
board, search and take law enforcement action aboard foreign-flagged vessels
pursuant to such special arrangments or standing, bilateral agreements with the
39 • r
flag state. (See paragraph 3.11.3.2 regarding utilization of U.S. Navy assets in
the support of U.S. counterdrug efforts.)
38. 1982 LOS Convention, art. 109. This provision supports the Regulations annexed to the
International Telecommunications Convention, Malaga-Torremolinos, 25 October 1973, 28
U.S.T. 2495, T.I.A.S. 8572, and the Radio Regulations, Geneva, 6 December 1979.
Unauthorized broadcasting from international waters is made a crime in the U.S. by 47 U.S.C. sec.
502 (1988). These rules are designed to aid in the suppression of "pirate broadcasting" which had
become a problem to European countries within range of international waters in the North Sea in
the 1960s, 2 O'Connell 814-19, and thus was not addressed in art. 22(1) of the 1958 High Seas
Convention. The Malaga-Torremolinos Convention was replaced by the 1982 International
Telecommunications Convention, Nairobi, 6 November 1982 (entered into force for the United
States on 10 January 1986). See also Robertson, The Suppression of Pirate Broadcasting: A Test
Case of the International System for Control of Activities Outside National Territory, 45.1 Law &
Contemp. Problems 73 (1982).
39. 1982 LOS Convention, art. 108; U.N. Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances, Vienna, December 20, 1988, art. 17, entered into force 11
November 1990, 28 Int'l Leg. Mat'ls 497 (1989), and implemented by the United States in 46
(continued...)
228 Commander's Handbook on the Law of Naval Operations
3.9 RECOVERY OF GOVERNMENT PROPERTY LOST AT SEA
The property of a sovereign nation lost at sea remains vested in that sovereign
until title is formally relinquished or abandoned. Aircraft wreckage, sunken
vessels, practice torpedoes, test missiles, and target drones are among the types of
U.S. Government property which may be the subject of recovery operations.
Should such U.S. property be recovered at sea by foreign entities, it is U.S. policy
to demand its immediate return. Specific guidance for the on-scene commander
in such circumstances is contained in the standing rules of engagement and
applicable operation order (e.g., CINCPACFLT OPORD 201,
CINCLANTFLT OPORD 2000).4"
3.10 PROTECTION OF PRIVATE AND MERCHANT VESSELS
AND AIRCRAFT, PRIVATE PROPERTY, AND PERSONS
In addition to the obligation and authority of warships to repress international
crimes such as piracy, international law also contemplates the use of force in
peacetime in certain circumstances to protect private and merchant vessels,
private property, and persons at sea from acts of unlawful violence. The legal
doctrines of individual and collective self-defense and protection of nationals
provide the authority for U.S. armed forces to protect U.S. and, in some
circumstances, foreign flag vessels, aircraft, property, and persons from violent
and unlawful acts of others. U.S. armed forces should not interfere in the
legitimate law enforcement actions of foreign authorities even when directed
against U.S. vessels, aircraft, persons or property. Consult the JCS Standing
Rules of Engagement for U.S. Forces for detailed guidance.
39. (...continued)
U.S.C. App. sec. 1901-04 (1988), 49 U.S.C. App. sec. 781-789 (1988) and 14 U.S.C. sec. 89
(1988). The Single Convention on Narcotic Drugs, 1961, New York, 30 March 1961, 18 U.S.T.
1407, T.I.A.S. 6298, 520 U.N.T.S. 204, including the protocol amending the Single Convention
on Narcotic Drugs, 1961, Geneva, 25 March 1972, 26 U.S.T. 1439, T.I.A.S. 8118, 976 U.N.T.S.
3, is implemented by the United States in 22 U.S.C. sec. 2291 (1988). See also Convention on
Psychotropic Substances, Vienna, 21 February 1971, 32 U.S.T. 543, T.I.A.S. 9725, 1019
U.N.T.S. 175; Innis, The U.N. Convention, Fed. Bar News &J., March/April 1990, at 118-19;
2 Restatement (Third), sec. 522 comment d & Reporters' Notes 4 & 8; 1 id., sec. 433, Reporters'
Note 4, at 337-39; 2 id., sec. 513, comment f; 1 id., sec. 403, Reporters' Note 9, at 253-54 (special
maritime and territorial jurisdiction of the United States). See Sohn, Peacetime Use of Force on the
High Seas, in Robertson at 59-79.
40. See also paragraph 2.1.2.2 (p. Ill) and Annex A2-3 (p. 163); regarding self-defense, see
paragraph 4.3.2 (p. 259).
41. International law regards these doctrines as exceptional relief measures that are permitted,
under certain pressing circumstances, to override interests protected by the countervailing
principles of noninterference with foreign flag ships and aircraft and inviolability of foreign
territory (including territorial seas). See generally, Chapter 4.
Protection of Persons and Property at Sea 229
3.10.1 Protection of U.S. Flag Vessels and Aircraft, U.S. Nationals and
Property. International law, embodied in the doctrines of self-defense and
protection of nationals, provides authority for the use of proportionate force by
U.S. warships and military aircraft when necessary for the protection of U.S. flag
vessels and aircraft, U.S. nationals (whether embarked in U.S. or foreign flag
vessels or aircraft), and their property against unlawful violence in and over
international waters. Standing rules of engagement promulgated by the Joint
Chiefs of Staff (JCS) to the operational chain of command and incorporated into
applicable operational orders, operational plans, and contingency plans, provide
guidance to the naval commander for the exercise of this inherent authority.
Those rules of engagement are rarefully constructed to ensure that the
protection of U.S. flag vessels and aircraft and U.S. nationals and their property at
sea conforms with U.S. and international law and reflects national policy.
3.10.1.1 Foreign Internal Waters, Archipelagic Waters, and Territorial
Seas. Unlawful acts of violence directed against U.S. flag vessels and aircraft and
U.S. nationals within and over the internal waters, archipelagic waters, or
territorial seas of a foreign nation present special considerations. The coastal
nation is primarily responsible for the protection of all vessels, aircraft and
persons lawfully within its sovereign territory. However, when that nation is
unable or unwilling to do so effectively or when the circumstances are such that
immediate action is required to protect human life, international law recognizes
the right of another nation to direct its warships and military aircraft to use
proportionate force in or over those waters to protect its flag vessels, its flag
aircraft, and its nationals. Because the coastal nation may lawfully exercise
jurisdiction and control over foreign flag vessels, aircraft and citizens within its
internal waters, archipelagic waters, territorial seas and national airspace, special
42. High Seas Convention, arts. 4-5, and the 1982 LOS Convention, arts. 91-92, vest
nationality of ships in the nation whose flag they fly, and reserve to that flag nation the exclusive
right, in peacetime, to exercise jurisdiction over that ship on the high seas. U.S. Navy Regulations,
1990, arts. 0914, 0915 and 0920, also reflect this authority. It must be recognized that, for policy
reasons, the U.S. Government may choose to protect only those vessels flying the U.S. flag
notwithstanding the existence of other vessels flying foreign flags of convenience which are
beneficially owned by U.S. persons or corporations.
43. 22 U.S.C. section 1732 (1988) requires the President to seek the release of U.S. nationals
unjustly deprived of liberty by or under the authority of any foreign government by such means,
not amounting to acts of war, as are necessary and proper to obtain or effectuate their release. The
purpose of this statute, when it was enacted in 1868, was to ensure that naturalized citizens who
return to their country of origin would be protected from unwarranted arrest to the same exent as
native born Americans. The statute thus relates to the act of confinement, rather than to treatment
after confinement, and not protection of their lives. 1975 Digest of U.S. Practice in International
Law 253-54. Protection of nationals in the sense of this statute is among the duties of U.S. consular
officers. See U.S. Consular Officers' Arrests Handbook, 1977 Digest of U.S. Practice in
International Law 297-307.
230 Commander's Handbook on the Law of Naval Operations
care must be taken by the warships and military aircraft of other nations not to
interfere with the lawful exercise of jurisdiction by that nation in those waters
and superjacent airspace. U.S. naval commanders should consult applicable
standing rules of engagement for specific guidance as to the exercise of this
authority.
3.10.1.2 Foreign Contiguous Zones and Exclusive Economic Zones
and Continental Shelves. The primary responsibility of coastal nations for the
protection of foreign shipping and aircraft off their shores ends at the seaward
edge of the territorial sea. Beyond that point, each nation bears the primary
responsibility for the protection of its own flag vessels and aircraft and its own
citizens and their property. On the other hand, the coastal nation may properly
exercise jurisdiction over foreign vessels, aircraft and persons in and over its
contiguous zone to enforce its customs, fiscal, immigration, and sanitary laws,
in its exclusive economic zone to enforce its natural resource-related rules and
regulations, and on its continental shelf to enforce its relevant seabed
resources-related rules and regulations. When the coastal nation is acting
lawfully in the valid exercise of such jurisdiction, or is in hot pursuit (see
discussion in paragraph 3.11.2.2) of a foreign vessel or aircraft for violations
that have occurred in or over those waters or in its sovereign territory, the flag
nation should not interfere. U.S. commanders should consult applicable
standing rules of engagement for specific guidance as to the exercise of this
authority.
3.10.2 Protection of Foreign Flag Vessels and Aircraft, and Persons.
International law, embodied in the concept of collective self-defense, provides
authority for the use of proportionate force necessary for the protection of
foreign flag vessels and aircraft and foreign nationals and their property from
unlawful violence, including terrorist or piratical attacks, at sea. In such instances,
consent of the flag nation should first be obtained unless prior arrangements are
already in place or the necessity to act immediately to save human life does not
permit obtaining such consent. Should the attack or other unlawful violence
occur within or over the internal waters, archipelagic waters, or territorial sea of a
third nation, or within or over its contiguous zone or exclusive economic zone,
44. If a prior arrangement has been made with a coastal nation for U.S. forces to protect
shipping in the waters of that nation, protective measures may be taken by U.S. warships and
military aircraft for these purposes and subject to the limitations of that agreement. So doing would
constitute the exercise of collective self-defense consistent with art. 51 of the United Nations
Charter.
45. Such consent could be embodied in an agreement with the flag nation made in advance or
may be considered inherent in a request from the vessel's master for assistance. If a prior
arrangement has been made, protective measures may be taken for the purposes and subject to the
Protection of Persons and Property at Sea 231
the considerations of paragraphs 3.10.1.1 and 3.10.1.2, respectively, would also
apply. U.S. commanders should consult applicable standing rules of engagement
for specific guidance.
3.10.3 Noncombatant Evacuation Operations (NEO). The Secretary
of State is responsible for the safe and efficient evacuation of U.S. Government
personnel, their family members and private U.S. citizens when their lives are
endangered by war, civil unrest, man-made or natural disaster. The
Secretaries of State and Defense are assigned lead and support responsibilities,
respectively, and, within their general geographic areas of responsibility, the
combatant commanders are prepared to support the Department of State to
conduct NEOs.
3.11 MARITIME LAW ENFORCEMENT
As noted in the introduction to this Chapter, U.S. naval commanders may be
called upon to assist in the enforcement of U.S. laws at sea, principally with
respect to the suppression of the illicit traffic in narcotic drugs and psychotropic
45. (...continued)
limitations of that agreement. The U.S. offer of distress assistance to friendly innocent neutral
vessels in the Persian Gulf and Strait of Hormuz flying a nonbelligerent flag, outside declared
war/exclusion zones, that were not carrying contraband or resisting legitimate visit and search by a
Persian Gulf belligerent, is an example from the Iran-Iraq tanker war. Dep't St. Bull., July 1988, at
61.
46. See generally DoD Dir. 3025.14, Subj: Protection and Evacuation of U.S. Citizens and
Designated Aliens in Danger Areas Abroad; JAGMAN sec. 1013; and FMFM 8-1, Special
Operations, chap. 7.
47. 22 U.S.C. sec. 267 1(b) (2(A) (emergency expenditure authority).
48. Where the lives of U.S. nationals are threatened, the United States has intervened in
internal conflicts. See paragraph 4.3.2 and note 29 (p. 260). Regarding the Indochina evacuations,
see 1975 Digest of U.S. Practice in International Law 875-79. On the evacuation of Somalia on 5
January 1991, see Wash. Post, 5 Jan. 1992, at A21.
49. Sec. 102(b) of the Diplomatic Security Act of 1986, as amended by sec. 115 of the Foreign
Relations Authorization Act, Fiscal Years 1990 and 1991, Pub. L. 101-246, 104 Stat. 22, codified
at 22 U.S.C. sec. 4801(b) (1994).
50. Executive Order 12656, Assignment of Emergency Preparedness Responsibilities, 18
Nov. 1988, 3 C.F.R. 585 (1988), sees. 502(2) & 1301(2)(f).
51. See, e.g., USCINCEUR NEOPLAN 4310-90 (U). Para. 18 of SM-7 12-89, Unified
Command Plan (UCP), 16 Aug. 1989, assigns USCINCCENT, USCINCEUR,
USCINCLANT (now USACOM), USCINCPAC and USCINCSO responsibilities to the NCA
for "[planning and implementing the evacuation of US noncombatant and certain non-US
persons abroad ... in accordance with the provisions of [DoD Directive 3025.14]." NEOs and
NEO planning for areas not included in these CINCs' AORs will be assigned as necessary by
CJCS. UCP, para. 21. See also the JCS Standing Rules of Engagement. Annex A4-3 (p. 277). For
an excellent analysis of legal issues associated with the conduct of a NEO see Day, Legal
Considerations in Noncombatant Evacuation Operations, 40 Nav. L. Rev. 45 (1992).
232 Commander's Handbook on the Law of Naval Operations
substances into the United States. Activities in this mission area involve
international law, U.S. law and policy, and political considerations. Because of
the complexity of these elements, commanders should seek guidance from
higher authority whenever time permits.
A wide range of U.S. laws and treaty obligations pertaining to fisheries,
wildlife, customs, immigration, environmental protection, and marine safety are
enforced at sea by agencies of the United States. Since these activities do not
ordinarily involve Department of Defense personnel, they are not addressed in
this publication.
3.11.1 Jurisdiction to Proscribe. Maritime law enforcement action is
premised upon the assertion of jurisdiction over the vessel or aircraft in question.
Jurisdiction, in turn, depends upon the nationality, the location, the status, and
the activity of the vessel or aircraft over which maritime law enforcement action
is contemplated.
International law generally recognizes five bases for the exercise of criminal
jurisdiction: (a) territorial, (b) nationality, (c) passive personality, (d) protective,
and (e) universal. It is important to note that international law governs the rights
and obligations between nations. While individuals may benefit from the
application of that body of law, its alleged violation cannot usually be raised by an
individual defendant to defeat a criminal prosecution.
3.11.1.1 Territorial Principle. This principle recognizes the right of a nation
to proscribe conduct within its territorial borders, including its internal waters,
archipelagic waters, and territorial sea.
3.11.1.1.1 Objective Territorial Principle. This variant of the territorial
principle recognizes that a nation may apply its laws to acts committed beyond its
territory which have their effect in the territory of that nation. So-called
"hovering vessels" are legally reached under this principle as well under the
protective principle. The extra-territorial application of U.S. anti-drug
statutes is based largely on this concept. (See paragraphs 3. 1 1.2.2.2 and 3. 1 1 .4. 1 .)
52. See the MLEM for details.
53. See Paust, International Law as Law of the United States 387-404 (1996) (providing an
excellent discussion of each of the internationally recognized bases of jurisdiction).
54. See 1 Restatement (Third), sees 402 & 404. Nor can an individual ordinarily assert a breach
of international law as the basis for, or in defense of, a civil action, without the intervention of the
State of which he or she is a national. See Henkin, Pugh, Schachter & Smit, International Law
(1993) at 374-78.
55. United States v. Postal, 589 F.2d 862, 885 (5th Cir. 1979).
56. See the Hovering Vessels Act of 1935, codified at 19 U.S.C. sees. 1401(k), 1432a, 1436,
1455, 1581, 1584, 1586, 1587, 1615, 1709(d) and 46 U.S.C. sec. 91; Ford v. United States, 27 '3 U.S.
593, 618-19, 623 (1927) (alcohol); United States v. Gonzalez, 875 F.2d 875 (D.C. Cir. 1989)
(drugs); and United States v. Cariballo-Tamayo, 865 F.2d 1179 (11th Cir. 1989) (drugs).
Protection of Persons and Property at Sea 233
3.11.1.2 Nationality Principle. This principle is based on the concept that a
nation has jurisdiction over objects and persons having the nationality of that
nation. It is the basis for the concept that a ship in international waters is, with
few exceptions, subject to the exclusive jurisdiction of the nation under whose
flag it sails. Under the nationality principle a nation may apply its laws to its
nationals wherever they may be and to all persons, activities, and objects on
board ships and aircraft having its nationality. As a matter of international comity
and respect for foreign sovereignty, the United States refrains from exercising
that jurisdiction in foreign territory.
3.11.1.3 Passive Personality Principle. Under this principle, jurisdiction is
based on the nationality of the victim, irrespective of where the crime occurred
or the nationality of the offender. U.S. courts have upheld the assertion of
jurisdiction under this principle in cases where U.S. nationals have been taken
hostage by foreigners abroad on foreign flag ships and aircraft, and where
U.S. nationals have been the intended target of foreign conspiracies to
murder. This principle has application to the apprehension and prosecution of
international terrorists.
3.11.1.4 Protective Principle. This principle recognizes the right of a nation
to prosecute acts which have a significant adverse impact on its national security
or governmental functions. Prosecution in connection with the murder of a U.S.
... 63
Congressman abroad on official business was based upon this principle.
57. Active duty U.S. military members, for example, are subject to the Uniform Code of
Military Justice (UCMJ) at all times and in all places. See UCMJ, Art. 2.
58. UCMJ jurisdiction over U.S. military members is exercised in foreign territory pursuant to
status of forces agreements (SOFAs) with host nations. For example, article VII 1(a) of the NATO
SOFA provides:
(a) the military authorities of the sending State shall have the right to exercise
within the receiving State all criminal and disciplinary jurisdiction conferred on
them by the law of the Sending State over all persons subject to the military law of
that State.
Art. VII 1 (a), Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of
Forces, Washington, 19 June 1951, 4 U.S.T. 1792, 119 U.N.T.S. 67, T.I.A.S. 2846, reprinted in
AFP 110-20 at 2-2.
59. The passive personality principle has been disputed as a permissible basis of jurisdiction,
"although no objections to its exercise have been made in recent years." Henkin, Pugh, Schachter
& Smit, International Law (1993) at 1067.
60. United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991) (Yunis III); 18 U.S.C. sec.
1203.
61. United States v. Layton, 855 F.2d 1388 (9th Cir. 1988) (U.S. citizen defendant); United
States v. Benitez, 741 F.2d 1312, 1316 (11th Cir. 1984), cert, denied 471 U.S. 1137 (1985)
(Colombian defendant).
62. See Yunis III, note 60.
63. United States v. Layton, 855 F.2d 1388 (9th Cir. 1988).
234 Commander's Handbook on the Law of Naval Operations
Foreign drug smugglers apprehended on non-U. S. flag vessels on the high seas
have been successfully prosecuted under this principle of international criminal
jurisdiction.
3.11.1.5 Universal Principle. This principle recognizes that certain offenses
are so heinous and so widely condemned that any nation may apprehend,
prosecute and punish that offender on behalf of the world community regardless
65
of the nationality of the offender or victim. Piracy and the slave trade have
historically fit these criteria. More recently, genocide, certain war crimes,
hostage taking, and aircraft hijacking have been added to the list of such
universal crimes.
3.11.2 Jurisdiction to Enforce
3.11.2.1 Over U.S. Vessels. U.S. law applies at all times aboard U.S. vessels as
the law of the flag nation and is enforceable on U.S. vessels by the U.S. Coast
72
Guard anywhere in the world. As a matter of comity and respect of foreign
sovereignty, enforcement action is not undertaken in foreign territorial seas,
archipelagic waters, or internal waters without the consent of the coastal nation.
For law enforcement purposes, U.S. vessels are those which:
1. Are documented or numbered under U.S. Law;
64. United States v. Alomia-Riascos, 825 F.2d 769 (4th Cir. 1987); United States v. Romero-Galue,
757 F.2d 1147, 1154 (11th Cir. 1985).
65. Demjanjuk v. Petrousky, 776 F.2d 571, 582 (6th Cir. 1985).
66. See paragraphs 3.5 (p. 221) and 3.6 (p. 226).
67. Convention on the Prevention and Punishment of the Crime of Genocide, Paris,
9 December 1948, 78 U.N.T.S. 277; Restatement (Third) sec. 404; Demjanjuk v. Petrovsky, note
65.
68. Adolf Eichman was tried by Israel under the universal principle of jurisdiction for war
crimes and crimes against humanity committed in Germany during the course of World War II.
Henkin, et al., paragraph 3.11.1.3, note 59 (p. 233), at 1085. See also paragraph 6.2.5 (p. 343).
69. International Convention Against the Taking of Hostages, New York, 17 December
1979, T.I.A.S. 11081. See also 18 U.S.C. sec. 1203 (1994).
70. Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Tokyo,
14 September 1963, 20 U.S.T. 2941, T.I.A.S. 6768, 704 U.N.T.S. 219; Convention for the
Suppression of Unlawful Seizure of Aircraft (Hijacking), The Hague, 16 December 1970, 22
U.S.T. 1641, T.I.A.S. 7192; Convention for the Suppression of Unlawful Acts Against the Safety
of Civil Aviation (Sabotage), Montreal, 23 September 1971, 24 U.S.T. 564, T.I.A.S. 7570;
Protocol Extending the Montreal Convention to Cover Acts of Violence at Airports Serving Civil
Aviation, 27 I.L.M. 67 (1988). See also 49 U.S.C. App., sec. 1472 (1994).
71. See also 1 Restatement (Third), sec. 404 RN1, at 255-57.
72. 14 U.S.C. sec. 89 (1994).
Protection of Persons and Property at Sea 235
2. Are owned in whole or in part by a U.S. citizen or national (including
corporate entities) and not registered in another country; or
3. Were once documented under U.S. law and, without approval of the U.S.
Maritime Administration (MARAD) have been either sold to a non-U. S. citizen
73
or placed under foreign registry or flag.
3.11.2.2 Over Foreign Flag Vessels. The ability of a coastal nation to assert
jurisdiction legally over non-sovereign immune foreign flag vessels depends
largely on the maritime zone in which the foreign vessel is located and the
activities in which it is engaged. The internationally recognized interests of
coastal nations in each of these zones are outlined in Chapter 2.
Maritime law enforcement action may be taken against a flag vessel of one
nation within the national waters of another nation when there are reasonable
grounds for believing that the vessel is engaged in violation of the coastal nation's
laws applicable in those waters, including the illicit traffic of drugs. Similarly,
such law enforcement action may be taken against foreign flag vessels without
authorization of the flag nation in the coastal nation's contiguous zone (for fiscal,
immigration, sanitary and customs violations), in the exclusive economic zone
(for all natural resources violations), and over the continental shelf (for seabed
resource violations). In the particular case of counter-drug law enforcement (of
primary interest to the Department of Defense), coastal nation law enforcement
can take place in its internal waters, archipelagic waters, territorial sea, or
contiguous zone without the authorization of the flag nation. Otherwise, such a
vessel is generally subject to the exclusive jurisdiction of the nation of the flag it
75
flies. Important exceptions to that principle are:
3.11.2.2.1 Hot Pursuit. Should a foreign ship fail to heed an order to stop and
submit to a proper law enforcement action when the coastal nation has good
reason to believe that the ship has violated the laws and regulations of that nation,
73. 46 U.S.C. App. sec. 1903(b) (1994).
74. 1982 LOS Convention, art. 108(2); 1988 Vienna Drug Convention, art. 7(2) & (3).
75. 1958 High Seas Convention, art. 6(1); 1982 LOS Convention, art. 92(1).
76. Hot pursuit is extensively discussed in 2 O'Connell 1075-93 and Knight & Chiu, The
International Laws of the Sea 385 (1991). See also Maidmont, Historic Aspects of the Doctrine of
Hot Pursuit, 46 Br. Y.B. Int'l L. 365 (1972-1973); Poulantzas, The Right of Hot Pursuit in
International Law (1969); and Nordquist, Vol. Ill 247-260.
Hot pursuit is to be distinguished from the right to take pursuing action, as necessary to ensure the
safety of threatened forces or territory, under the fundamental principle of self-defense {see
paragraph 4.3.2 (p. 259)). The latter is a much broader concept, not dependent upon whether the
threat occurs within territorial waters or the contiguous zone. This concept is frequently referred
to as "immediate pursuit" or "self-defense pursuit."
236 Commander's Handbook on the Law of Naval Operations
77
hot pursuit may be initiated. ' The pursuit must be commenced when the
foreign ship or one of its boats is within the internal waters, the archipelagic
waters, the territorial sea, or the contiguous zone of the pursuing nation, and may
only be continued outside the territorial sea or contiguous zone if the pursuit has
not been interrupted. It is not necessary that, at the time when the foreign ship
within the territorial sea or the contiguous zone receives the order to stop, the
ship giving the order should likewise be within the territorial sea or the
• 79
contiguous zone. If the foreign ship is within a contiguous zone, the pursuit
may only be undertaken if there has been a violation of the rights for the
80
protection of which the zone was established. The right of hot pursuit ceases as
soon as the ship pursued enters the territorial sea of its own nation or of a third
81
nation. The right of hot pursuit may be exercised only by warships, military
aircraft or other ships or aircraft clearly marked and identifiable as being on
government service and authorized to that effect. " The right of hot pursuit
applies also to violations in the exclusive economic zone or on the continental
shelf, including safety zones around continental shelf installations, of the laws and
regulations of the coastal nation applicable to the exclusive economic zone or the
• • 83
continental shelf, including such safety zones.
77. High Seas Convention, art. 23(1); 1982 LOS Convention, art. 111(1). Both the High Seas
Convention and the 1982 LOS Convention require that there be "good reason" to believe such a
violation has occurred. It is therefore clear that while mere suspicion does not trigger the right,
actual knowledge of an offense is not required. 2 O'Connell 1088.
78. High Seas Convention, art. 23(1); 1982 LOS Convention, art. 111(1). The reference to
"one of its boats" reflects the doctrine of constructive presence recognized in the High Seas
Convention, art. 23(1) & (4), and the 1982 LOS Convention, art. 111(1) & (4). See paragraph
3.11.2.2.2 (p. 237). See also 2 O'ConneU 1092-93.
79. High Seas Convention, art. 23(4); 1982 LOS Convention, art. 111(5).
80. High Seas Convention, art. 23(1); 1982 LOS Convention, art. 111(1). The doctrine
applies to all violations within the territorial sea and to violations of customs, fiscal, sanitary, and
immigration laws and regulations in the contiguous zone. However, some contend hot pursuit
commenced in the contiguous zone may be only for offenses committed in the territorial sea, and
not for offenses in the contiguous zone. 2 O'Connell 1083-84. The contiguous zone is defined in
paragraph 2.4.1 (p. 129).
81. High Seas Convention, art. 23(2); 1982 LOS Convention, art. 111(3); 2 Restatement
(Third), sec. 513 Comment g, at 49.
82. High Seas Convention, art. 23(4); 1982 LOS Convention, art. 111(5); Restatement
(Third), sec. 513, Comment g. Because of posse comitatus limitations (see paragraph 3.11.3.1
(p. 241)), the right of hot pursuit is not normally exercised by the U.S. Navy or U.S. Air Force but
rather by U.S. Coast Guard forces. However, while U.S. practice is to utilize Coast Guard forces
for that purpose, under international law, all warships and military aircraft, regardless of service
affiliation, may properly exercise the right of hot pursuit. Id.; Allen, Doctrine of Hot Pursuit: A
Functional Interpretation Adaptable to Emerging Technologies and Practices, 20 Ocean Dev. &
Int'l L. 309, 37 (1989).
83. 1982 LOS Convention, art. 111(2). See also Nordquist, Vol. Ill 249-260.
Protection of Persons and Property at Sea 237
a. Commencement of Hot Pursuit. Hot pursuit is not deemed to have
begun unless the pursuing ship is satisfied by such practicable means as are
available that the ship pursued, or one of its boats or other craft working as a team
and using the ship pursued as a mother ship, is within the limits of the territorial
sea, within the contiguous zone or the exclusive economic zone, or above the
continental shelf Pursuit may only be commenced after a visual or auditory
signal to stop has been given at a distance which enables it to be seen or heard by
the foreign ship.
b. Hot Pursuit by Aircraft. Where hot pursuit is effected by aircraft:
(1) The preceding provisions apply.
(2) The aircraft must do more than merely sight the offender or suspected
offender to justify an arrest outside the territorial sea. It must first order the
suspected offender to stop. Should the suspected offender fail to comply, pursuit
85
may be commenced alone or in conjunction with other aircraft or ships.
c. Requirement for Continuous Pursuit. Hot pursuit must be
continuous, either visually or through electronic means. The ship or aircraft
giving the order to stop must itself actively pursue the ship until another ship or
aircraft of or authorized by the coastal nation, summoned by the ship or aircraft,
arrives to take over the pursuit, unless the ship or aircraft is itself able to arrest the
i • 86
snip.
3.11.2.2.2 Constructive Presence. A foreign vessel may be treated as if it
were actually located at the same place as any other craft with which it is
cooperatively engaged in the violation of law. This doctrine is most commonly
used in cases involving mother ships which use contact boats to smuggle
contraband into the coastal nation's waters. In order to establish constructive
presence for initiating hot pursuit, and exercising law enforcement authority,
there must be:
1 . A foreign vessel serving as a mother ship beyond the maritime area over which
the coastal nation may exercise maritime law enforcement jurisdiction;
84. High Seas Convention, art. 23(3); 1982 LOS Convention, art. 111(4).
Where a ship has been stopped or arrested beyond the territorial seas in circumstances which do not
justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that
may have been thereby sustained. High Seas Convention, art. 23(7); 1982 LOS Convention, art.
111(8).
85. High Seas Convention, art. 23(5); 1982 LOS Convention, art. 111(6). See also Knight &
Chiu, paragraph 3.11.2.2.1, note 76 (p. 235), at 385-86.
86. Allen, note 82 (p. 236) at 319-20; McDougal & Burke at 897.
238 Commander's Handbook on the Law of Naval Operations
2. A contact boat in a maritime area over which that nation may exercise
jurisdiction (i.e., internal waters, territorial sea, archipelagic waters, contiguous
zone, EEZ, or waters over the continental shelf) and committing an act subjecting
it to such jurisdiction; and
3. Good reason to believe that the two vessels are working as a team to violate the
87
laws of that nation.
3.11.2.2.3 Right of Approach and Visit. See paragraph 3.4.
3.11.2.2.4 Special Arrangements and International Agreements.
International law has long recognized the right of a nation to authorize the law
enforcement officials of another nation to enforce the laws of one or both on
board vessels flying its flag. The 1988 UN Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances specifically recognizes and
encourages such arrangements and agreements to aid in the suppression of this
illegal traffic. Special arrangements may be formalized in written agreements or
consist of messages or voice transmissions via diplomatic channels between
appropriate representatives of the requesting and requested nations.
International agreements authorizing foreign officials to exercise law
enforcement authority on board flag vessels take many forms. They may be
bilateral or multilateral; authorize in advance the boarding of one or both
nations' vessels; and may permit law enforcement action or be more limited.
Typically, the flag nation will verify (or refute) the vessel's registry claim, and
authorize the boarding and search of the suspect vessel. If evidence of a violation
of law is found, the flag nation may then authorize the enforcement of the
requesting nation's criminal law (usually with respect to narcotics trafficking) or
may authorize the law enforcement officials of the requesting nation to act as the
flag nation's agent in detaining the vessel for eventual action by the flag nation
itself. The flag nation may put limitations on the grant of law enforcement
88
authority and these restrictions must be strictly observed.
87. 1958 High Seas Convention, art. 23(3); 1982 LOS Convention, art. 111(4); 19 U.S.C.
sees. 1401(k), 1581(g) & 1587 (1994) (customs law violations by hovering vessels); McDougal &
Burke 909-18; Lowe 172-73; The I'm Alone (Canada v. U.S.) 3 R.I.A.A. v. 09 (1941). But see 2
O'Connell 1092-93.
88. Art. 17, U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, Vienna, 20 December 1988, reprinted in 28 Int'lLeg. Mat'ls 493 (1989); 46 U.S.C. App.
sec. 1903(c); 19 U.S.C. sec. 1581(h); United States v. Quemener, 789 F.2d 145 (2d Cir.), cert, denied,
479 U.S. 829 (1986) (US-UK agreement of 13 Nov. 1981, 33 U.S.T. 4224, T.I.A.S. 10296);
United States v. Williams, 589 F.2d 210, rehearing en banc, 617 F.2d 1063 (5th Cir. 1980) (special
arrangement with Panama). See also 2 Restatement (Third), sec. 522 RN 8, at 88; and Gilmore,
Narcotics Interdiction at Sea: UK-US Cooperation, 13 Marine Policy 218-30 (1989).
(continued...)
Protection of Persons and Property at Sea 239
3.11.2.3 Over Stateless Vessels. Vessels which are not legitimately registered
in any one nation are without nationality and are referred to as "stateless vessels".
They are not entitled to fly the flag of any nation and, because they are not
entitled to the protection of any nation, they are subject to the jurisdiction of all
nations. Accordingly, stateless vessels may be boarded upon being
encountered in international waters by a warship or other government vessel and
subjected to all appropriate law enforcement actions.90
3.11.2.4 Over Vessels Assimilated to Statelessness. Vessels may be
assimilated to a ship without nationality, that is, regarded as a stateless vessel, in
some circumstances. The following is a partial list of factors which should be
considered in determining whether a vessel is appropriately assimilated to
stateless status:
No claim of nationality
Multiple claims of nationality (e.g., sailing under two or more flags)
Contradictory claims or inconsistent indicators of nationality (i.e., master's claim
differs from vessel's papers; homeport does not match nationality of flag)
Changing flags during a voyage
Removable signboards showing different vessel names and/or homeports
Absence of anyone admitting to be the master; displaying no name, flag or other
identifying characteristics
91
Refusal to claim nationality.
88. (...continued)
The United States has entered into numerous bilateral agreements addressing counterdrug and
alien migrant interdiction law enforcement operations with nations around the world. Many of the
agreements, particularly those with Caribbean nations, provide U.S. Coast Guard law enforcement
officers with authority to stop, board and search the vessels of the other party seaward of their
territorial seas; to embark U.S. law enforcement officials on their vessels and to enforce certain of
their laws; to pursue fleeing vessels or aircraft into the waters or airspace of the other party; and to
fly into their airspace in support of counterdrug operations. See generally MLEM, end. 4 and the
listing of bilateral maritime counterdrug/alien migrant interdiction operations agreements at Table
A3-1 (p. 247).
89. 1982 LOS Convention, art. 110(l)(d).
90. 2 Restatement (Third), sec. 522(2) (b) & Reporters' Note 7, at 87-88.
91. 1958 High Seas Convention, art. 6(2); 1982 LOS Convention, art. 92(2); 46 U.S.C App.
sec. 1903(c)(1) (1994); United States v. Passos-Patemina, 918 F.2d 979 (1st Cir.), cert, denied, 499
U.S. 982 (1990).
240 Commander's Handbook on the Law of Naval Operations
Determinations of statelessness or assimilation to statelessness usually require
utilization of the established interagency coordination procedures (see paragraph
3.11.3.4).
3.11.2.5 Other Actions. When operating in international waters, warships,
military aircraft, and other duly authorized vessels and aircraft on government
service (such as auxiliaries), may engage in two other actions in conjunction with
maritime law enforcement, neither of which constitute an exercise of
jurisdiction over the vessel in question. However, such actions may afford a
commander with information which could serve as the basis for subsequent law
enforcement.
3.11.2.5.1 Right of Approach. See paragraph 3.4 for a discussion of the
exercise of the right of approach preliminary to the exercise of the right of visit.
3.11.2.5.2 Consensual Boarding. A consensual boarding is conducted at the
invitation of the master (or person-in-charge) of a vessel which is not otherwise
subject to the jurisdiction of the boarding officer. The plenary authority of the
master over all activities related to the operation of his vessel while in
international waters is well established in international law and includes the
authority to allow anyone to come aboard his vessel as his guest, including
foreign law enforcement officials.
The voluntary consent of the master permits the boarding, but it does not
allow the assertion of law enforcement authority (such as arrest or seizure). A
consensual boarding is not, therefore, an exercise of maritime law enforcement
jurisdiction per se. Nevertheless, such boardings have utility in allowing rapid
verification of the legitimacy of a vessel's voyage by obtaining or confirming
vessel documents, cargo, and navigation records without undue delay to the
92
boarded vessel.
3.11.3 Limitations on the Exercise of Maritime Law Enforcement
Jurisdiction. Even where international and domestic U.S. law would recognize
certain conduct as a criminal violation of U.S. law, there are legal and policy
restrictions on U.S. law enforcement actions that must be considered. Outside of
the U.S., a commander's greatest concerns will be: limitations on DOD
assistance to civilian law enforcement agencies; the requirement for coastal
nation authorization to conduct law enforcement in that nation's national
waters; and the necessity for interagency coordination. Similarly, a fourth
restriction, the concept of posse comitatus, limits U.S. military activities within
the U.S.
92. 2 Restatement (Third), sec. 522 RN 4, at 86.
Protection of Persons and Property at Sea 241
3.11.3.1 Posse Comitatus. Except when expressly authorized by the
Constitution or act of Congress, the use of U.S. Army or U.S. Air Force
personnel or resources as a posse comitatus — a force to aid civilian law
enforcement authorities in keeping the peace and arresting felons — or otherwise
to execute domestic law, is prohibited by the Posse Comitatus Act, title 18 U.S.
93
Code section 1385. As a matter of policy, the Posse Comitatus Act is made
equally applicable to the U.S. Navy and U.S. Marine Corps. The prohibitions
of the Act are not applicable to the U.S. Coast Guard, even when operating as a
part of the Department of the Navy.95 (See SECNAVINST 5820.7 (series).)
The Justice Department has opined that the Posse Comitatus Act itself does not
apply outside the territority of the United States. (Memorandum from the Office
of Legal Counsel to National Security Council re: Extraterritorial Effect of the
Posse Comitatus Act (Nov. 3, 1989)).
3.11.3.2 DOD Assistance. Although the Posse Comitatus Act forbids military
authorities from enforcing, or being directly involved with the enforcement of
civil law, some military activities in aid of civil law enforcement may be
authorized under the military purpose doctrine. For example, indirect
involvement or assistance to civil law enforcement authorities which is
incidental to normal military training or operations is not a violation of the Posse
Comitatus Act. Additionally, Congress has specifically authorized the limited
use of military personnel, facilities, platforms, and equipment, to assist Federal
law enforcement authorities in the interdiction at sea of narcotics and other
controlled substances.
93. The Posse Comitatus Act was originally enacted by the Act of June 18, 1878, sec. 15, 20
Stat. 152 (codified in 18 U.S.C. sec. 1385 (1994)) in reaction to the excessive use of, and resulting
abuses by, the U.S. Army in the southern states while enforcing the reconstruction laws. See
Furman, Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act, 7 Mil. L. Rev.
85, 92-96 (1960).
94. DODDIR 3025.12 (Subj: Military Assistance for Civil Disturbances), sees. V.B & X.A.2,
and DODDIR 5525.5, sec. C of end. 4. See also SECNAVINST 5820.7B (Subj: Cooperation
with Civilian Law Enforcement Officials), para. 9a(l). SECNAV may waive that policy.
DODDIR 5525.5 (Subj: DOD Cooperation with Civilian Law Enforcement Officials), encl. 4,
sec. C, and SECNAVINST 5820.7B, para. 9c.
95. 14 U.S.C. sec. 89 (1994).
96. Rice, New Laws and Insights Encircle the Posse Comitatus Act, 104 Mil. L. Rev. 109
(1984); Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse
Comitatus Act, 70 Mil. L. Rev. 83 (1975). See also DODDIR. 5525.5 (series) Subj: DOD
Cooperation with Civilian Law Enforcement Officials; Posse Comitatus Act, and relevant
OPORDERS/ OPLANS for current policy and procedures. Policy waivers may be granted on a
case by case basis by the Secretary of the Navy.
97. 10 U.S.C. sees. 371-78 (1994). The law authorizes DOD to provide support to federal
civilian counterdrug efforts provided that doing so does not adversely affect military preparedness.
10 U.S.C. sec. 376 (1994). Notwithstanding this limitation, the Secretary of Defense may still
(continued...)
242 Commander's Handbook on the Law of Naval Operations
3.11.3.2.1 Use of DOD Personnel. Although Congress has enacted
legislation in recent years expanding the permissible role of the Department of
Defense in assisting law enforcement agencies, DOD personnel may not direcdy
participate in a search, seizure, arrest or similar activity unless otherwise
authorized by law. Permissible activities presently include training and
advising Federal, State and local law enforcement officials in the operation and
maintenance of loaned equipment. DOD personnel made available by
appropriate authority may also maintain and operate equipment in support of
civil law enforcement agencies for the following purposes:
1 . Detection, monitoring, and communication of the movement of air and sea
traffic;
2. Aerial reconnaissance;
3. Interception of vessels or aircraft detected outside the land area of the United
States for the purposes of communicating with them and directing them to a
location designated by law enforcement officials;
4. Operation of equipment to facilitate communications in connection with law
enforcement programs;
5. The transportation of civilian law enforcement personnel; and
6. The operation of a base of operations for civilian law enforcement
, 100 r
personnel.
3.11.3.2.2 Providing Information to Law Enforcement Agencies. The
Department of Defense may provide Federal, State or local law enforcement
97. (...continued)
provide such support if the Secretary determines that the importance of providing support
outweighs the short-term adverse effect doing so will have on military readiness. See National
Defense Authorization Act of Fiscal Year 1991, Pub. L. No. 101-510, sec. 1004(d), 104 Stat. 1630,
codified at 10 U.S.C. sec. 374 note (1994). This waiver of limitation was initially only authorized
for operations occurring in 1991 but has been extended through Fiscal Year 1999. See National
Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-337, sec. 1011(a), 108 Stat.
2836, codified at 10 U.S.C. sec. 374 note (1994).
98. 10 U.S.C. sec. 375 (1994).
99. 10 U.S.C. sec. 373 (1994). The Secretary of Defense, in cooperation with the Attorney
General, is also required to conduct annual briefing of state and local law enforcement personnel
regarding information, training, technical support, and equipment and facilities available from
DOD. 10 U.S.C. sec. 380 (1994). The Secretary of Defense is further required to establish
procedures under which states and local government units can purchase law enforcement
equipment suitable for counterdrug activities from DOD. 10 U.S.C. sec. 381 (1994).
100. 10 U.S.C. sec. 374 (1994). See SECNAVINST 5820.7 (series) and enclosures 3 and 4 to
DODDIR 5525.5. The cognizant OPLAN/OPORDER may provide additional guidance.
Protection of Persons and Property at Sea 243
officials with information acquired during the normal course of military training
or operations that may be relevant to a violation of any law within the
jurisdiction of those officials. Present law provides that the needs of civilian law
enforcement officials for information should, to the maximum extent
practicable, be taken into account in planning and executing military training or
operations. Intelligence information held by DOD and relevant to
counterdrug or other civilian law enforcement matters may be provided to
civilian law enforcement officials, to the extent consistent with national
• 102
security.
3.11.3.2.3 Use of DOD Equipment and Facilities. The Department of
Defense may make available equipment (including associated supplies or spare
parts), and base or research facilities to Federal, State, or local law enforcement
103
authorities for law enforcement purposes. Designated platforms (surface and
air) are routinely made available for patrolling drug trafficking areas with U.S.
Coast Guard law enforcement detachments (LEDETs) embarked. LEDET
personnel on board any U.S. Navy vessel have the authority to search, seize
property and arrest persons suspected of violating U.S. law.
3.11.3.3 Law Enforcement in Foreign National Waters. Law enforcement
in foreign national waters may be undertaken only to the extent authorized by
the coastal nation. Such authorization may be obtained on an ad hoc basis or be
the subject of a written agreement. (See paragraph 3.5.3.2. for exceptions related
to the pursuit of pirates.)
3.11.3.4 Interagency Coordination. Presidential Directive NSC 27 (PD-27)
requires coordination within the Executive Branch of the government for
non-military incidents which could have an adverse impact on U.S. foreign
relations. This coordination includes consultation with the Department of State
and other concerned agencies prior to taking actions that could potentially have
such an impact. The Coast Guard has developed an internal notification
mechanism that results in the provision, or denial, of a Statement of No
Objection (SNO) from the appropriate superior authority which constitutes
authorization to conduct the specific action requested. Interagency coordination
initiated for law enforcement actions on naval vessels will be made through
101. 10 U.S.C. sec. 371(b) (1994). See also 10 U.S.C. sec. 374 note (1994).
102. 10 U.S.C. sec. 371 (1994). See SECNAVINST 5820.7 (series) and enclosure 2 to
DODDIR 5525.5.
103. 10 U.S.C. sec. 372 (1994). See also 10 U.S.C. sec. 374 note (1994).
104. 10 U.S.C. sec. 379 (1994). See SECNAVINST 5820.7 (series) and para. A of end. 3 to
DODDIR 5525.5. The cognizant OPLAN/OPORDER may provide additional guidance. For
U.S. Coast Guard authority, see 14 U.S.C. 89 (1994).
244 Commander's Handbook on the Law of Naval Operations
appropriate law enforcement agency channels by the embarked Coast Guard
LEDET.105
3.11.4 Counterdrug Operations
3.11.4.1 U.S. Law. It is unlawful for any person who is on board a vessel subject
to the jurisdiction of the United States, or who is a U.S. citizen or resident alien
on board any U.S. or foreign vessel, to manufacture or distribute, or to possess
with intent to manufacture or distribute, a controlled substance. This law
applies to:
1: U.S. vessels anywhere (see paragraph 3.11.2.1)
2. Vessels without nationality (see paragraph 3.11.2.3)
3. Vessels assimilated to a status without nationality (see paragraph 3.11.2.4)
4. Foreign vessels where the flag nation authorizes enforcement of U.S. law by the
United States (see paragraph 3.11.2.2.4)
5. Foreign vessels located within the territorial sea or contiguous zone of the
United States (see paragraph 1.5.1)
6. Foreign vessels located in the territorial seas or archipelagic waters of another
nation, where that nation authorizes enforcement of U.S. law by the United States
(see paragraph 3.11.2.2.4).
3.11.4.2 DOD Mission in Counterdrug Operations. The Department of
Defense has been designated by statute as lead agency of the Federal Government
for the detection and monitoring of aerial and maritime transit of illegal drugs
into the United States, including its possessions, territories and
1 07
commonwealths. DoD is further tasked with integrating the command,
control, communications and technical intelligence assets of the United States
that are dedicated to the interdiction of illegal drugs into an effective
communications network.
3.11.4.3 U.S. Coast Guard Responsibilities in Counterdrug Operations.
The Coast Guard is the primary maritime law enforcement agency of the United
105. See MLEM, end. 3.
106. Maritime Drug Enforcement Act of 1986, codified at 46 U.S.C. App. sees. 1901-04
(1994).
107. 10 U.S.C. sec. 124 and note (1994).
108. Id.
Protection of Persons and Property at Sea 245
States. It is also the lead agency for maritime drug interdiction and shares the lead
agency role for air interdiction with the U.S. Customs Service. The Coast Guard
may make inquiries, inspections, searches, seizures, and arrests upon the high seas
and waters over which the United States has jurisdiction, for the prevention,
detection and suppression of violations of the laws of the United States, including
maritime drug trafficking. Coast Guard commissioned, warrant and petty
officers may board any vessel subject to the jurisdiction of the United States,
address inquiries to those on board, examine the ship's documents and papers,
and examine, inspect and search the vessel and use all necessary force to compel
compliance. When it appears that a violation of U.S. law has been committed,
the violator may be arrested and taken into custody. If it appears that the
violation rendered the vessel or its cargo liable to fine or forfeiture, the vessel or
offending cargo may be seized.
Coast Guard commissioned, warrant and petty officers are also designated
customs officers providing them additional law enforcement authority.
3.11.5 Use of Force in Maritime Law Enforcement. In the performance of
maritime law enforcement missions, occasions will arise where resort to the use
of force will be both appropriate and necessary. U.S. armed forces personnel
engaged in maritime law enforcement actions may employ only such force,
pursuant to U.S. Coast Guard Use of Force Policy, as is reasonable and necessary
under the circumstances.
3.11.5.1 Rules of Engagement Distinguished. U.S. rules of engagement
delineate the circumstances and limitations under which U.S. naval, ground
and air forces will initiate and/or continue the combat engagement with other
forces encountered. (See paragraph 4.3.2.2). Use of force in the context of law
enforcement is also permitted to be used to terminate criminal activities and to
effect the apprehension of those engaged in such unlawful conduct. DOD and
Coast Guard units performing law enforcement duties will be guided by the
U.S. Coast Guard Use of Force Policy (Coast Guard MLEM) which details the
109. 14 U.S.C. sec. 89 (1994). See also paragraph 3.4 (p. 221) (right of approach); 46 U.S.C.
App. sees. 1901-04 (1994); U.N. Convention Against Illicit Traffic in Narcotics Drugs and
Psychotropic Substances, Vienna, 20 Dec. 1988, art. 17 (codifying customary law and practice on
illicit traffic by sea), 28 Int'l Leg. Mat'ls 493 (1989), 518-20 (1989) (entered into force 11
November 1990); Trainor, Coping with the Drug Runners at Sea, Nav. War Coll. Rev., Summer
1987, at 77; Young, Griffes & Tomaselli, Customs or Coast Guard?, U.S. Naval Inst. Proc, Aug.
1987, at 67; Lahneman, Interdicting Drugs in the Big Pond, U.S. Naval Inst. Proc, July 1990, at
56. See also Survey of United States Jurisdiction over High Seas Narcotics Trafficking, 19 Ga. J.
Int'l & Comp. L. 119 (1989) (survey ends in 1987). Applicable guidance may be found in
CINCLANTFLT OPORD 2120 and COMTHIRDFLT OPORD 230.
110. 19 U.S.C. sees. 1401(1) & 1581 (1994), and 14 U.S.C. sec. 143 (1994).
111. See MLEM.
246 Commander's Handbook on the Law of Naval Operations
specific circumstances and limitations under which force may be used to
terminate criminal activity and to apprehend those committing such acts.
Neither the rules of engagement nor the rules for the use of force in law
enforcement limit a commander's inherent authority and obligation to use all
necessary means available and to take all appropriate action in self-defense of the
commander's unit and other U.S. forces in the vicinity.
3.11.5.2 Warning Shots. A warning shot is a signal — usually to warn an
offending vessel to stop or maneuver in a particular manner or risk the
i ii
employment of disabling fire or more severe measures. Under international
law, warning shots do not constitute a use of force. Disabling fire is firing under
controlled conditions, when warning shots and further warnings are unheeded,
into the steering gear or engine room of a vessel in order to cause the vessel to
stop. U.S. armed forces personnel employing warning shots and disabling fire
in a maritime law enforcement action will comply with the U.S. Coast Guard
Use of Force Policy.
3.11.6 Other Maritime Law Enforcement Assistance. In addition to the
direct actions and dedicated assistance efforts discussed above, the naval
commander may become involved in other activities supporting law
enforcement actions, such as providing towing and escort services for vessels
seized by the U.S. Coast Guard. Naval commanders may also be called upon to
provide assistance to law enforcement agencies in the return of apprehended
drug traffickers and terrorists to the United States for prosecution. Activities of
this nature usually involve extensive advance planning and coordination.
112. See paragraph 4.3.2.2 (p. 263), Annex A4-3 (p. 277), and Annex B (Counterdrug Support
Operations) to Appendix A to Enclosure A of the JCS Standing Rules of Engagement.
113. See MLEM, para. 4.J.
114. See id., para. 4.K.
Protection of Persons and Property at Sea 247
TABLE A3-1
MARITIME COUNTERDRUG/ ALIEN MIGRANT INTERDICTION
AGREEMENTS
(as of 1 September 1997)
Shipboarding
Shiprider
i
Pursuit
Entry-to-
Investigate
Overflight
Order-to-
Land
AMIO
Antigua &
Barbuda
X
X
X
X
X
X
2
Bahamas
X
X
3
Barbados
X
X
X
X
X
X
Belize
X
X
X
X
Colombia
*
Cuba
X
Dominica
X
X
X
X
Dominican
Republic
X
X
X
X
*
France (incl.
9
Grenada
X
X
X
X
X
X
11
Haiti11
X
X
X
T • 12
Jamaica
X
X
X
X
X
X
Mexico
Netherlands
14
Antilles1^
X
X
X
X
Panama
X
St. Kitts &
M . 16
Nevis
X
X
X
X
X
X
St. Lucia
X
X
X
X
X
X
St. Vincent/
Grenadines
X
X
X
X
Trinidad &
Tobago
X
X
X
X
X
X
Turks &
~ . 20
Caicos
X (air only)
United
Kingdom
X
X
Venezuela
X
X (air only)
"Shipboarding": Standing authority for the USCG to stop, board and search foreign vessels suspected of illicit
traffic located seaward of the territorial sea of any nation.
"Shiprider": Standing authority to embark law enforcement (L/E) officials on platforms of the parties, which
officials may then authorize certain law enforcement actions.
"Pursuit": Standing authority for USG L/E assets to pursue fleeing vessels or aircraft suspected of illicit traffic
into foreign waters or airspace. May also include authority to stop, board and search pursued vessels.
248 Commander's Handbook on the Law of Naval Operations
"Entry-to-Investigate": Standing authority for USG L/E assets to enter foreign waters or airspace to investigate
vessels or aircraft located therein suspected of illicit traffic. May also include authority to stop, board and
search such vessels.
"Overflight": Standing authority for USG L/E assets to fly in foreign airspace when in support of CD operations.
"Order-to-Land": Standing authority for USG L/E assets to order to land in the host nation aircraft suspected
of illicit traffic.
"AMIO": An agreement to facilitate maritime alien migrant interdiction operations, including repatriation authority.
As of 1 September 1997, similar agreements were in the process of negotiation with Costa Rica, Ecuador,
El Salvador, Guatemala, Honduras, and Nicaragua.
Notes:
1 Four part (shipboarding, shiprider, pursuit, entry-to-investigate) "model" counterdrug
(CD) agreement signed 4/19/95. Overflight and order-to-land provisions added by amendment
6/3/96. All parts in force.
2 General MLE shiprider & overflight agreement reflected by exchange of notes May 1 and 6, 1 996.
In force. Other agreements in force; OPBAT Tripart agreement (w/TCI, U.S.), Grey agreement.
3 Shipboarding, shiprider, pursuit, entry-to-investigate, overflight signed but not yet in force.
4 Four part model CD agreement signed 12/23/92. In force.
5 *Operational procedures for shipboarding special arrangements effective 5 Nov 96. In force.
6 AMIO I AW 2 May 95 agreement. In force.
' Four part model CD agreement signed 4/19/95. In force.
° Four part model CD agreement signed 3/23/95. In force. Temporary overflight authority
periodically granted.
9 4/96 French law delegated to Prefect Martinique power to authorize shipboarding,
pursuit, entry-to-investigate, and to Martinique General Prosecutor power to authorize waiver of
prosecutorial jurisdiction on case-by-case basis.
10 Four part model CD agreement signed 5/16/95. Overflight and order-to-land added by
amendment. All in force.
H CD pursuit and entry-to-investigate agreements from 1988 and 1991. All in force.
12 Six part agreement signed but not yet in force.
13 US/MX CD agreements have no maritime component.
14 Shiprider, pursuit, entry-to-investigate, overflight in force.
15 General maritime support & assistance agreement. In force. CGCs operating in PN
territorial sea must do so w/GOP shiprider and GOP vsl escort.
16 Four part model CD agreement signed 4/13/95. Overflight and order-to-land provisions
added by amendment 6/27/96. All in force.
1^ Four part model CD agreement signed 4/20/95. Overflight and order-to-land provisions
added by amendment 6/5/96. All in force.
l^ Four part model CD agreement signed 7/4/95. In force.
19 Six part model CD agreement signed 3/4/96. In force.
20 CD OPBAT Tripart agreement.
21 CD shipboarding for vsls flagged in UK & UK dependent territories located in Westlant,
Caribbean & Gulf of Mexico; MOU for USCG LEDET embarkation in UK WIGS; reciprocal
USCG/BVI shiprider MOU. In force.
22 1991 CD reciprocal shipboarding agreement; MOU setting out procedures for pursuit of
air TOIs by USG aircraft. In force.
Source: USCG COMDT (G-OPL)
CHAPTER 4
Safeguarding of U.S. National Interests
in the Maritime Environment
4.1 INTRODUCTION
This final chapter of Part I — Law of Peacetime Naval
Operations — examines the broad principles of international law that
govern the conduct of nations in protecting their interests at sea during time of
peace. As noted in the preface, this publication provides general information. It is not
directive, and does not supersede guidance issued by the commanders of the combatant
commands, and in particular any guidance they may issue that delineates the circumstances
and limitations under which the forces under their command will initiate and /or continue
engagement with other forces encountered.
Historically, international law governing the use of force between nations has
been divided into rules applicable in peacetime and rules applicable in time of
war. In recent years, however, the concepts of both "war" and "peace" have
become blurred and no longer lend themselves to clear definition.
Consequently, it is not always possible to try to draw neat distinctions between
the two. Full scale hostilities continue to break out around the world, but few are
accompanied by a formal declaration of war. At the same time, the spectrum of
armed conflict has widened and become increasingly complex. At one end of
that spectrum is total nuclear war; at the other, insurgencies and state-sponsored
terrorism. For the purposes of this publication, however, the conduct of armed
1. 2 Grotius, De Jure Belli Ac Pacis 832 (Kelsey, transl. 1925).
2. McDougal & Feliciano 7-9.
3. A number of reasons have been advanced as to why nations conduct hostilities without a
formal declaration of war: (1) a desire to avoid being branded as aggressors and later being
compelled to pay reparations; (2) a desire to avoid triggering the sanctions and peace enforcement
provisions of Chapters VI and VII of the U.N. Charter; (3) the "outlawry" of war by art. 2 of both
the Kellogg-Briand Pact of 1928 and the U.N. Charter of 1945; (4) the post- World War II war
crimes trials in Nuremberg and Tokyo; (5) the fear of embargo on war supplies under national
legislation of neutral countries; and (6) the fear held by an attacked weaker nation of widening
localized hostilities. Stone 311. See also von Glahn, Law Among Nations 712-715 (6th ed. 1992);
and paragraph 7.1 and note 6 (p. 366).
4. Kidron & Smith, The War Atlas: Armed Conflict — Armed Peace (1983); McDougal &
Feliciano 97-120.
5. Terry, Countering State-Sponsored Terrorism: A Law-Policy Analysis, 36 Nav. L. Rev.
159 (1986); Terry, An Appraisal of Lawful Military Response to State-Sponsored Terrorism, Nav.
War Coll. Rev., May-June 1986, at 59; Sofaer, Terrorism, The Law, and the National Defense,
(continued...)
250 Commander's Handbook on the Law of Naval Operations
hostilities involving U.S. forces, irrespective of character, intensity, or duration,
is addressed in Part II — Law of Naval Warfare.
4.1.1 Charter of the United Nations. Article 2, paragraph 3, of the Charter of
the United Nations provides that:
All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
Article 2, paragraph 4, provides that:
All Members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
In combination, these two provisions establish the fundamental principle of
modern international law that nations will not use force or the threat of force to
impose their will on other nations or to otherwise resolve their international
differences.
Under Chapter VI of the Charter, the Security Council has a number of
measures short of the use of force available to it to facilitate the peaceful
settlement of disputes. If, however, the dispute constitutes a threat to the peace,
breach of the peace, or act of aggression, Article 39 of the Charter provides:
The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall be
5. (...continued)
126 Mil. L. Rev. 89 (1989); and Joyner, In Search of an Anti-Terrorism Policy: Lessons from the
Reagan Era, 11 Terrorism 29 (1988). See also U.N.G.A. Res. A/49/60, Measures to Eliminate
International Terrorism, 17 Feb. 1995, reprinted in 10 Terrorism/Documents of International and
Local Control (Levie ed. 1996) at 13.
6. Charter of the United Nations, 26 June 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, as
amended in 1963 (16 U.S.T. 1 134, T.I.A.S. 5857), 1965 (19 U.S.T. 5450, T.I.A.S. 6529) and 1971
(24 U.S.T. 2225, T.I.A.S. 7739) reprinted in AFP 110-20 at 5-2.1. As of 1 November 1997, 186
nations were members of the United Nations. The few nations not members of the United Nations
include Kiribati, Nauru, Switzerland, Tonga, and Tuvalu.
7. The purposes of the U.N. Charter are set forth in art. 1. They include:
To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace.
Safeguarding of U.S. National Interests 251
taken in accordance with Articles 41 and 42, to maintain or restore international peace and
•4 8
security.
Such decisions of the Security Council are implemented under Article 41 or
Article 42 of the Charter. Article 41 provides:
The Security Council may decide what measures not involving the use of armed force are to he
employed to give effect to its decisions, and it may call upon the Members . . . to apply such
measures. These may include complete or partial interruption of economic relations and of
rail, sea, postal, telegraphic, radio, and other means of communication, and the severance of
diplomatic relations.
8. The key provisions of the Charter relating to the role of the Security Council in the
maintenance of international peace and security are as follows:
CHAPTER V. Vie Security Council
Article 24
1. In order to ensure prompt and effective action by the United Nations, its Members
confer on the Security Council primary responsibility for the maintenance of international peace
and security, and agree that in carrying out its duties under this responsibility the Security Council
acts on their behalf. . . .
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter.
CHAPTER VII. Action with Respect to Tlireats to the Peace,
Breaches of the Peace, and Acts of Aggression
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall be
taken in accordance with Articles 41 and 42, to maintain or restore international peace and
security.
Article 41
The Security Council may decide what measures not involving the use of armed force are
to be employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of communications, and the
severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as
may be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the
United Nations.
(continued...)
252 Commander's Handbook on the Law of Naval Operations
8. (...continued)
Article 43
1 . All Members of the United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available to the Security Council, on its call and
in accordance with a special agreement or agreements, armed forces, assistance, and facilities,
including rights of passage, necessary for the prupose of maintaining international peace and security.
2. Such agreement or agreements shall govern the numbers and types of forces, their
degree of readiness and general location, and the nature of the facilities and assistance to be
provided. . . .
Article 45
In order to enable the United Nations to take urgent military measures, Members shall hold
immediately available national air-force contingents for combined international enforcement
action shall be determined, within the limits laid down in the special agreement or agreements
referred to in Article 43, by the Security Council with the assistance of the Military Staff
Committee.
Article 46
Plans for the application of armed force shall be made by the Security Council with the
assistance of the Military Staff Committee.
Article 47
1. There shall be established a Military Staff Committee to advise and assist the Security
Council on all questions relating to the Security Council's military requirements for the
maintenance of international peace and security, the employment and command of forces placed at
its disposal, the regulation of armaments, and possible disarmament.
2. The Military Staff Committee shall consist of the Chiefs of Staff of the permanent
members of the Security Council or their representatives. . . .
3. The Military Staff Committee shall be responsible under the Security Council for the
strategic direction of any armed forces placed at the disposal of the Security Council. . . .
Article 48
1. The action required to carry out the decisions of the Security Council for the
maintenance of international peace and security shall be taken by all the Members of the United
Nations or by some of them, as the Security Council may determine.
2. Such decisions shall be carried out by the Members of the United Nations directly and
through their action in the appropriate international agencies of which they are members.
Article 49
The Members of the United Nations shall join in affording mutual assistance in carrying
out the measures decided upon by the Security Council.
The members of the United Nations have not yet been able to conclude agreements in accordance
with art. 43 and related Charter provisions. Instead, the United Nations, acting through the
Secretary General, has from time to time requested members to voluntarily constitute emergency
international U.N. peacekeeping forces as the need arose. In this way, the United Nations has sent
peacekeeping forces to trouble spots around the world on 46 occasions. See Annex A4-1 (p. 267)
for a current listing of all U.N. peacekeeping operations since 1947. See U.N., The Blue Helmets:
A Review of United Nations Peace-keeping (1985); New Zealand Ministry of Foreign Affairs,
United Nations Handbook (1991); and Fact Sheet: UN Peace-keeping Operations, U.S. Dep't of
(continued...)
Safeguarding of U.S. National Interests 253
Article 42 provides that:
Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces
as may be necessary to maintain or restore international peace and security. Such action may
include demonstrations, blockade, and other operations by air, sea, or land forces of
Members. . . .
These provisions do not, however, extinguish a nation's right of individual
and collective self-defense. Article 51 of the Charter provides, that:
Nothing in the . . . Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member . . . until the Security Council has
taken measures necessary to maintain international peace and security. . . .
8. (...continued)
State Dispatch, Sept. 30,1991, at 722. See also Bowett, United Nations Forces (1964); Boyd,
United Nations Peace-Keeping Operations: A Military and Political Appraisal (1971); Siekmann,
Basic Documents on United Nations and Related Peace-Keeping Forces (1985), and Daniel &
Hayes, Securing Observance of UN Mandates through the Employment of Military Forces,
Strategic Research Department Report 3-95, Nav. War Coll. (1995); Daniel & Hayes, Beyond
Traditional Peacekeeping (1995); Nordquist, What Color Helmet?: Reforming Security Council
Peacekeeping Mandates, The Newport Papers, No. 12, U.S. Nav. War Coll. 1997. The U.N.
Dep't of Peacekeeping maintains a useful website at WWW.UN.ORG/DEPTS/DPKO/.
9. With the exception of the Korean War (see Stone at 228-37) and various peacekeeping
activities (see note 8) armed forces have not been assigned to U.N. Command. Until August 1990,
the veto power exercised by the permanent members of the Security Council prevented the
Council from being able to carry out effectively, or in the manner contemplated by the framers of
the Charter, its role in the maintenance of international peace and security. As a result, member
nations have relied upon their inherent right of individual and collective self-defense to deter
aggression and maintain international peace and security. The Security Council's authorization to
use force to expel Iraq from Kuwait is recounted in Walker, The Crisis over Kuwait, August
1990-February 1991, 1991 DukeJ. Int'lL. 25; andMoore, Crisis in the Gulf (1992). Self-defense is
discussed in paragraph 4.3.2 (p. 259). Nations continue to act in their own self-interest in a
horizontally structured world in which sovereignty plays an extremely important role.
Accordingly, recourse to individual and collective self-defense, as reflected in art. 51 of the
Charter, has become the norm. Secretary of State John Foster Dulles, in testifying before the
Senate Committee on Foreign Relations on the Mutual Defense Treaty with Korea (Hearings,
83d Cong., 2d Sess., 13 Jan. 1954, at 21), explained: "All of the security treaties which we have
made have been conceived of as falling under Article 51." The full text of that art. provides:
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defense shall be immediately reported to the
Security Council and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.
(continued...)
254 Commander's Handbook on the Law of Naval Operations
The following paragraphs discuss some of the measures that nations, acting in
conformity with the Charter of the United Nations, may take in pursuing and
protecting their national interests during peacetime.
4.2 NONMILITARY MEASURES
4.2.1 Diplomatic. As contemplated by the United Nations Charter, nations
generally rely on peaceful means to resolve their differences and to protect their
9. (...continued)
Secretary Dulles testified further that:
[I]n the main, the arrangement that we have made has been under article 5 1 , which is
one of broad and not necessarily regional scope, because the article which deals with
regional associations [article 53], as such, has a provision that no forcible action shall
be taken under thos regional agreements except with the consent of the Security
Council, and in view of the Soviet vto powr in the Security Council, it would result,
if you operated directly nder that regional-pact clause, you would not have the right
to resort to force or use force except with the consent of the Soviet Union.
"Regional arrangements" are specifically addressed in articles 52 and 53 of the Charter:
Article 52
1 . Nothing in the present Charter precludes the existence of regional arrangements or
agencies for dealing with such matters relating to the maintenance of international peace and
security as are appropriate for regional action, provided that such arrangements or agencies and
their activities are consistent with the Purposes and Principles of the United Nations. . . .
Article 53
1. The Security Council shall, where appropriate, utilize such regional arrangements or
agencies for enforcement action under its authority. But no enforcement action shall be taken
under regional arrangements or by regional agencies without the authorization of the Security
Council. . . .
Secretary of State Rusk testified before the Senate Preparedness Subcommittee on 25 August
1966:
The United Nations has not been able to deal effectively with all threats to the peace,
nor will it be able to do so as long as certain of its members believe they must
continue to compromise between their professed desire for peace and their short
range interest in achieving greater power or place in the world. ... It was recognized
from the outset, however, that the United Nations might not prove able by itself to
carry the full burden of collective security. The Charter explicitly provides for the
existence of regional organizations, such as the Organization of American States,
which would deal with problems of international peace and security in their
respective areas. It also explicitly recognizes the inherent right of both individual and
collective self-defense.
Consistently with the United Nations Charter, we [the United States] have entered
into multilateral and bilateral treaty arrangements with more than 40 countries on 5
continents.
(continued...)
Safeguarding of U.S. National Interests 255
interests. Diplomatic measures include all those political actions taken by one
nation to influence the behavior of other nations within the framework of
international law. They may involve negotiation, conciliation or mediation, and
1 0
may be cooperative or coercive (e.g., severing of diplomatic relations). The
behavior of an offending nation may be curbed by appeals to world public
opinion as in the General Assembly, or, if their misconduct endangers the
maintenance of international peace and security, by bringing the issue before the
Security Council. Ordinarily, however, differences that arise between nations
are resolved or accommodated through the normal day-to-day, give-and-take of
international diplomacy. The key point is that disputes between the U.S. and
other nations arising out of conflicting interests are normally addressed and
resolved through diplomatic channels and do not involve resort to the threat or
1 1
use of force.
9. (...continued)
Quoted in U.S. Cong. House Foreign Affairs Comm., Collective Defense Treaties, with maps,
Text of Treaties, A Chronology, Status of Forces Agreements, and Comparative Charts, 91st
Cong., 1st Sess., 15-17 (Comm. Print 1969).
The United States has entered into several mutual defense treaties that are currently in force. The
NATO and Rio Treaties provide that an attack on one member nation is an attack on all and each
will assist in meeting the attack. The ANZUS, Philippine, Japanese, Korean, and SEATO Treaties
provide that an armed attack on any party would endanger its own peace and safety and that each
party will act to meet the common danger "in accordance with its constitutional processes."
10. 2 Restatement (Third), sec. 905, Comments & Reporters' Notes.
11. Under the U.S. Constitution, the President is responsible for the conduct of U.S. foreign
policy. In overseas areas, the President principally exercises that responsibility through the chief
U.S. diplomatic and consular representative to the country concerned, also known as the chief of
mission. The chief of mission is required, under the direction of the president, to exercise "full
responsibility for the direction, coordination, and supervision of all Government employees in that
country (except for employees under the command of a United States area military commander),"
to keep fully and currently informed with respect to "all activities and operations of the
Government within that country," and to ensure that all government employees in that country
(except for employees under the command of a U.S. area military commander) "comply fully with
all applicable directives of the chief of mission." Further, any U.S. government agency having
employees in a foreign country is required to "keep the chief of mission to that country fully and
currently informed with respect to all activities and operations of its employees in that country,"
and to "insure that all of its employees (except for employees under the command of a United
States area military commander) comply fully with all applicable directives of the chief of mission."
22 U.S.C. sec. 3927 (1994). This requirement is included in each presidential letter of instruction
to chiefs of mission. That letter currently (1994) includes the following:
As Commander in Chief, I retain authority over United States Armed Forces. On
my behalf you have responsiblity for the direction, coordination, supervision, and
safety, including secruity from terrorism, of all Defense Department personnel on
official duty [in (country) /at (international organization)], except those personnel
under the command of a U.S. area military commander. You and such commanders
must keep each other currently informed and cooperate on all matters of mutual
interest. Any differences that cannot be resolved in the field should be reported by
(continued...)
256 Commander's Handbook on the Law of Naval Operations
4.2.2 Economic. Nations often utilize economic measures to influence the
actions of others. The granting or withholding of "most favored nation" status to
another country is an often used measure of economic policy. Similarly, trade
agreements, loans, concessionary credit arrangements and other aid, and
investment opportunity are among the many economic measures that nations
1 o
extend, or may withhold, as their national interests dictate. Examples of the
coercive use of economic measures to curb or otherwise seek to influence the
conduct of other nations include the suspension of U.S. grain sales and the
embargo on the transfer of U.S. technology to the offending nation, boycott of
oil and other export products from the offending nation, suspension of "most
favored nation" status, and the assertion of other economic sanctions.
11. (...continued)
to the Secretary of State; area military commanders should report to the Secretary of
Defense.
An extended version of President Clinton's letter of instruction to chiefs of mission is at Annex A4-2
(p. 256). Under 10 U.S.C. sec. 162(a)(4) (1994) "[e]xcept as otherwise directed by the Secretary of
Defense, all forces operating within the geographic area assigned to a unified combatant command
shall be assigned to, and under the command of, the commander of that command."
These requirements are implemented for deployed naval forces in U.S. Navy Regulations, 1990.
Art. 091 1 provides that the senior officer present in a deployed naval force, insofar as possible, shall
preserve close relations with the diplomatic and consular representatives of the United States. Art.
0912 also provides that in the absence of a diplomatic or consular representatives of the United
States, the senior officer present in a foreign country has authority, among other things, to
communicate or remonstrate with foreign civil authorities as may be necessary. Further, art. 0914
provides that "[0]n occasions when injury to the United States or to citizens thereof is committed
or threatened in violation of the principles of international law or in violation of rights existing
under a treaty or other international agreement, the senior officer present shall consult with the
diplomatic or consular representatives of the United States, if possible, and shall take such action as
is demanded by the gravity of the situation." See paragraph 4.3.2.2 and accompany notes (p. 263)
for a discussion of actions to be taken by U.S. military commanders in such circumstances.
On the matter of requests for asylum, see paragraph 3.3 (p. 216).
12. See 12 Whiteman 311-21, 2 Restatement (Third), sec. 905 Comment fat 382, and
Reporters' Note 8, at 300-01 for discussions of retorsion (unfriendly but lawful acts not involving
the use of force in response to objectionable acts of another nation), retaliation and reprisal.
13. The United States took these actions, among others, in its initial response to the December
25, 1979, invasion of Afghanistan by the Soviet Union. Presidential Address to the Nation, 4
January 1980, Dep't St. Bull., Jan. 1980, at B. This embargo was lifted in April 1981. Dep't St.
Bull., Oct. 1982, at 42. Similar actions were taken by the United States in December 1981, in
response to Soviet-inspired repression in Poland. Dep't St. Bull., Feb. 1982, at 8.
14. The United States took these actions against Libya in response to the continuing pattern of
Libyan activity to promote instability and terrorism which violates accepted international norms of
behavior. Exec. Order No. 12,538, 3 C.F.R. 395-96 (1986); Proclamation No. 5141, 3 C.F.R.
143-44 (1984); Proclamation No. 4907, 3 C.F.R. 21-22 (1983) (these presidential documents are
reprinted in 19 U.S.C. sec. 1862 note (Supp. Ill 1985).
15. The United States took such actions against Nicaragua on 1 May 1985, Dep't St. Bull., July
1985, at 74-75, under the International Emergency Economic Powers Act of 1977, 50 U.S.C. sec.
(continued...)
Safeguarding of U.S. National Interests 257
4.2.3 Judicial. Nations may also seek judicial resolution of their peacetime
disputes, both in national courts and before international tribunals. A nation or
its citizens may bring a legal action against another nation in its own national
courts, provided the court has jurisdiction over the matter in controversy (such
as where the action is directed against property of the foreign nation located
within the territorial jurisdiction of the court) and provided the foreign nation
does not interpose a valid claim of sovereign immunity. Similarly, a nation or its
citizens may bring a legal action against another nation in the latter's courts, or in
the courts of a third nation, provided jurisdiction can be found and sovereign
immunity is not interposed.
Nations may also submit their disputes to the International Court of Justice for
resolution. Article 92 of the United Nations Charter establishes the International
Court of Justice as the principal judicial organ of the United Nations. No nation
may bring another before the Court unless the latter nation first consents. That
consent can be general and given beforehand or can be given in regard to a
specific controversy. Nations also have the option of submitting their disputes to
1 7
ad hoc or other established tribunals.
4.3 MILITARY MEASURES
The mission of U.S. military forces is to deter armed attack against the United
States across the range of military operations, defeat an armed attack should
deterrence fail, and prevent or neutralize hostile efforts to intimidate or coerce
18
the United States by the threat or use of armed force or terrorist actions. In
15. (...continued)
1701 et seq. (1982) and other statutory authority. See also Terry, The Iranian Hostages Crisis:
International Law and United States Policy, 32 JAG J. 31, 53-56 (1982). The United States'
unilateral economic reaction to Iraq's invasion of Kuwait on 2 August 1990 involved the freezing
of Iraqi and Kuwaiti assets by Executive Orders 12722-23, 3 C.F.R. 294-96 (1991). More
recently, sanctions have been imposed on Cuba (see. e.g. 22 U.S.C. sec. 6005 (1996)) and Bosnia
{see U.N.S.C. Res. 757 (30 May 1992)).
16. On sovereign immunity see DA Pam 27-161-1, at chap. 5; Franck & Glennon, Foreign
Relations and National Security Law: Cases, Materials and Simulations 214-26 (1987); Brownlie,
Principles of Public International Law 322-45 (4th ed. 1990). The United States has waived its
sovereign immunity in certain types of cases. See, e.g., the Public Vessels Act, 46 U.S.C. sec. 781 et
seq., the Suits in Admiralty Act, 46 U.S.C. sec. 741 et seq., and the Federal Tort Claims Act, 28
U.S.C. sec. 2671 et seq. The United States respects assertions of sovereign immunity by foreign
sovereigns. Foreign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (1976) (codified as
amended at 28 U.S.C. sees. 1330, 1332, 1391, 1441, 1602 et seq. (1994)).
17. For a comprehensive analysis of the International Court of Justice and a discussion of major
cases brought before it, see Rosenne, The World Court: What it is and how it works (5th ed. 1995) .
See also paragraph 10.2.1, note 1 (p. 10-1) for a discussion of the I.C.J. 8July 1996 Advisory Opinion
on the Legality of the Threat or Use of Nuclear Weapons.
18. See National Security Strategy of the United States, "A National Security of Engagement
and Enlargement" The White House, Feburary 1995, at 1-12.
258 Commander's Handbook on the Law of Naval Operations
order to deter armed attack, U.S. military forces must be both capable and ready,
and must be perceived to be so by potential aggressors. Equally important is the
perception of other nations that, should the need arise, the U.S. has the will to
1 9
use its forces in individual or collective self-defense.
4.3.1 Naval Presence. U.S. naval forces constitute a key and unique element of
our national military capability. The mobility of forces operating at sea
combined with the versatility of naval force composition — from units operating
individually to multi-battle group formations — provide the National Command
Authorities with the flexibility to tailor U.S. military presence as circumstances
may require.
Naval presence, whether as a showing of the flag during port visits or as forces
deployed in response to contingencies or crises, can be tailored to exert the
precise influence best suited to U.S. interests. Depending upon the magnitude
and immediacy of the problem, naval forces may be positioned near areas of
potential discord as a show of force or as a symbolic expression of support and
concern. Unlike land-based forces, naval forces may be so employed without
political entanglement and without the necessity of seeking littoral nation
consent. So long as they remain in international waters and international
airspace, U.S. warships and military aircraft enjoy the full spectrum of the high
seas freedoms of navigation and overflight, including the right to conduct naval
maneuvers, subject only to the requirement to observe international standards of
safety, to recognize the rights of other ships and aircraft that may be encountered,
21
and to issue NOTAMs and NOTMARs as the circumstances may require.
Deployment of a carrier battle group into the vicinity of areas of tension and
augmentation of U.S. naval forces to deter interference with U.S. commercial
shipping in an area of armed conflict provide graphic illustrations of the use of
U.S. naval forces in peacetime to deter violations of international law and to
22
protect U.S. flag shipping.
19. See National Military Strategy, "A Strategy of Flexible and Selective Engagement," the
Pentagon, 1995 at 8-16.
20. The term "National Command Authorities" is defined as "The President and the Secretary
of Defense or their duly deputized alternates or successors. Commonly referred to as NCA." Joint
Pub. 1-02.
21 . The term "National Command Authorities" is defined as "The President and the Secretary
of Defense or their duly deputized alternates or successors. Commonly referred to as NCA." Joint
Pub. 1-02.
22. U.S. Navy, Naval Doctrine Publication 1, "Naval Warfare" (1994) at 20-1; Watkins, The
Maritime Strategy, U.S. Naval Inst. Proc. Supp., Jan. 1986, at 7-8; Neutze, Bluejacket Diplomacy:
A Juridical Examination of Naval Forces in Support of United States Foreign Policy, 32 JAG J. 81,
83 (1982).
Safeguarding of U.S. National Interests 259
4.3.2 The Right of Self-Defense. The Charter of the United Nations
23
recognizes that all nations enjoy the inherent right of individual and collective
self-defense against armed attack. U.S. doctrine on self-defense, set forth in
the JCS Standing Rules of Engagement for U.S. Forces, provides that the use of
force in self-defense against armed attack, or the threat of imminent armed
attack, rests upon two elements:
1 . Necessity — The requirement that a use of force be in response to a hostile act or
demonstration of hostile intent.
2. Proportionality — The requirement that the use of force be in all circumstances limited
in intensity, duration, and scope to that which is reasonably required to counter the
attack or threat of attack and to ensure the continued safety of U.S. forces.
Customary international law has long recognized that there are circumstances
during time of peace when nations must resort to the use of armed force to
protect their national interests against unlawful or otherwise hostile actions by
23. The "inherent" right of self-defense refers to the right of self-defense as it existed in
customary international law when the UN Charter was written. See Brierly, The Law of Nations
416-21 (6th ed. 1963); Stone, at 244; von Glahn, Law Among Nations 129-33 (6th ed. 1992);
Harlow, The Legal Use of Force ... Short of War, U.S. Naval Inst. Proc, Nov. 1966, at 89;
Fairley, State Actors, Humanitarian Intervention and International Law: Reopening Pandora's
Box, 10 Ga. J. Int'l & Comp. L. 29 (1980); Bowett, Self-Defense in International Law (1958).
Compare Randelzhofer, Article 51, in The Charter of the United Nations, A Commentary
661-78 (Simma ed. 1994).
24. See 2 Restatement (Third), sec. 905. Collective self-defense is considered in paragraph
7.2.2 (p. 370).
25. While the literal English language of art. 51 limits self-defense to cases where "armed attack
occurs," State practice such as in the case of the 1962 Cuban Quarantine (see paragraph 4.3.2, note
31 (p. 262)) has generally recognized that "armed aggression" rather than "armed attack" justifies
the resort to self-defense; this position is supported by the equally authentic French text of art. 51:
"agression armee." See Brierly and Randelzhofer, both at note 23. Anticipatory self-defense is
discussed in paragraph 4.3.2.1 (p. 263). See also Dinstein, War, Aggression and Self-Defense
187-91 (2ded. 1994).
26. See SROE, para. 5d at Annex A4-3 (p. 277). 2 Restatement (Third), sec. 905(l)(a) &
Comment 3, at 387.
27. See SROE, para. 5d at Annex A4-3 (p. 277). 2 Restatement (Third), sec. 905(l)(b) &
Reporters' Note 3, at 388-89. See also Randelzhofer at 667 for a discussion of the principle of
proportionality (note 23). U.S. Navy Regulations, 1990, art. 0915, addressing the legality of resort
to the use of force against a foreign nation, reflects these principles:
1 . The use of force in time of peace by United States naval personnel against another
nation or against anyone within the territories thereof is illegal except as an act of self-defense.
Naval personnel have a right of self-defense against hostile acts and hostile intent (imminent threat
to use force). This right includes defending themselves, their subunits and, when appropriate,
defending U.S. citizens, their property and U.S. commercial assets in the vicinity.
(continued...)
260 Commander's Handbook on the Law of Naval Operations
28
other nations. A number of legal concepts have evolved over the years to
sanction the limited use of armed forces in such circumstances (e.g.,
29 30
intervention, ' embargo, maritime quarantine). To the extent that such
27. (...continued)
2. The conditions calling for the application of the right of self-defense cannot be precisely
defined beforehand, but must be left to the sound judgment of responsible naval personnel who are
to perform their duties in this respect with all possible care and forbearance. The use of force must
be exercised only as a last resort, and then only to the extent which is absolutely necessary to
accomplish the end required.
3. Force must never be used with a view to inflicting unlawful punishment for acts already
committed.
28. See Schachter, Self-Defense and the Rule of Law, 83 Am. J. Int'l L. 259 (1989); Ronzitti,
Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of
Humanity (1985).
29. While difficult to define precisely, intervention is generally recognized in international law
as at least including the use of force which results in the interference by one nation in matters under
the exclusive jurisdiction of another nation, for instance, interference in its domestic or foreign
affairs. It is also sometimes referred to as interference with the sovereignty of another nation.
Intervention frequently involves the nonpermissive entry into the territory of another nation. Any
action constituting substantial interference with or harassment of a foreign private or public vessel
on the high seas may be considered as an impairment of the foreign nation's sovereignty.
Every nation has the obligation under international law to respect the sovereignty of every other
nation. A violation of that sovereignty by intervention is therefore a violation of international law
unless justified by a specific rule to the contrary, such as the rights of self-defense and of
humanitarian intervention to prevent a nation from committing atrocities against its own subjects
which is itself a violation of international law. There has been, however, considerable
disagreement over this latter rationale.
Intervention may be accomplished either with or without the use of force. Self-defense against
armed attack or the threat of irriminent attack is generally a necessary prerequisite for armed
intervention. Intervention is justified under the following circumstances, which are not all inclusive:
1. To protect nations that request intervention in the face of an external threat and
in certain other special cases. The intervention by the UnitedStates in the
Dominican Republic in 1965 is illustrative of this circumstance.
2. In response to a request from the government of one nation for assistance in
repelling threatened or attempted subversion directed by another nation. Examples of
this circumstance include the U.S. and British actions in Lebanon (1958) and Jordan
(1957-58), and the U.S. actions in Vietnam (1963-75) and El Slavador (1981-86).
3. A serious danger to the territory of a nation may arise either as a result of a natural
catastrophe in another nation or as a result of the other nation deliberately or
negligently employing its natural resources to the detriment of the first nation. For
example, the reservoirs of Nation A on the upper reaches of a river might be
damaged by natural forces, posing a threat to Nation B on the lower reaches.
Intervention by the threatened nation (Nation B) is justified if the other nation
(Nation A) is unwilling or unable to provide a timely and effective remedy. The
U.N. Security Council should be immediately advised of the intervention (art. 51).
(continued...)
Safeguarding of U.S. National Interests 261
29. (...continued)
4. To protect the lives and property of a nation's citizens abroad, particularly its
diplomatic personnel. State practice has tolerated the use of force to protect a
nation's citizens outside its borders if the individuals were in imminent danger of
irreparable harm and the nation in whose territory the individuals were located
could not or would not protect them. The 1976 Israeli raid at Entebbe Airport, the
1977 West German raid at Mogadishu, Somalia, the 1980 U.S. Iranian hostage
rescue attempt, the 1983 U.S. intervention in Grenada and the 1988 U.S.
intervention in Panama are examples of self-defense being asserted on behalf of one
nation's citizens in the territory of another.
5. In response to genocide or other compelling humanitarian circumstance. This
evolving concept ofhumanitarian intervention has not yet attained general acceptance.
See 1976 Digest of U.S. Practice in International Law 3-11; 2 Restatement (Third), sec. 905
Comment g, at 383; Ronzitti, Rescuing Nationals Abroad Through Military Coercion and
Intervention on Grounds of Humanity (1985); Dean, Self-Determination and U.S. Support of
Insurgents, A Policy-Analysis Model, 122 Mil. L. Rev. 149 (1988); Akehurst, Humanitarian
Intervention, in Intervention in World Politics 95 (Bull ed. 1984); and Teson, Humanitarian
Intervention (1995).
The Entebbe raid is discussed in Contemporary Practice of the U.S., 73 Am. J. Int'l L 122 (1979);
Salter, Commando Coup at Entebbe: Humanitarian Intervention or Barbaric Aggression?, 1 1 Int'l
Lawyer 331 (1977); Boyle, International Law in Time of Crisis: From the Entebbe Raid to the
Hostages Convention, 75 Nw. U.L. Rev. 769 (1980); Boyle, The Entebbe Hostages Crisis, 29
Neth. Int'l L. Rev. 32 (1982). See also Green, Rescue at Entebbe — Legal Aspects, 6 Isr. Y.B.
Human Rights 312 (1976) and Ben-Porat, Haber & Schiff, Entebbe Rescue (1977).
The Iranian hostage rescue attempt is described in 78 Am. J. Int'l L. 200 (1984); U.N. Doc.
S/ 13908, 25 April 1980; JCS Special Operations Review Group, Rescue Mission Report, August
1990, reprinted in Aviation Week & Space Technology, 15 Sep. 1980, at 61-71, 22 Sep. 1980, at
140-44, 29 Sep. 1980, at 84-91; Carter, Keeping Faith 506-22 (1982); Brzezinski, Power and
Principle 487-500 (1985); Beckwith & Know, Delta Force (1983); Ryan, The Iranian Rescue
Mission: Why It Failed (1985); Kyle, The Guts to Try (1990); Terry, The Iranian Hostages:
International Law and United States Policy, 32 JAG J. 31 (1982); and Green, The Tehran Embassy
Incident — Legal Aspects, 19 Archiv des Volkerrechts 1 (1980).
On United States intervention in El Salvador/Nicaragua in the 1980s, ^eejoyner & Grimaldi, The
United States and Nicaragua: Reflections on the Lawfulness of Contemporary Intervention, 25
Va. J. Int'l L. 621 (1985); and Moore, The Secret War in Central America and the Future ofWorld
Order, 80 Am. J. Int'l L. 43-127 (1986).
The October 1983 Grenada operation is described in O'Shaughnessy, Grenada: Revolution,
Invasion and Aftermath (1984); The Grenada Papers (Seabury & McDougall, eds. 1984);
American Intervention in Grenada: The Implication of Operation Urgent Fury (Dunn & Watson
eds. 1985); Spector, U.S. Marines in Grenada (1987); Lehman, Command of the Seas 291-305
(1988); Adkin, Urgent Fury: The Battle for Grenada (1989); Weinberger, Fighting for Peace
101-33 (1990); Musicant, The Banana Wars 370-89 (1990); Leich, Current Practice of the United
States Relating to International Law: Rescue Operation by Armed Forces — Grenada, 78 Am. J.
Int'l L. 200-04 (1984); U.N. Doc. S/16076, 25 October 1983; The United States Action in
Grenada, 78 Am. J. Int'l L. 131-75 (1984); Moore, Law and the Grenada Mission (1984); Maizel,
Intervention in Grenada, 35 JAG J. 47 (1986); and Beck, The "McNeil Mission" and the Decision
to Invade Grenada, Nav. War Coll. Rev., Spring 1991, at 93.
(continued...)
262 Commander's Handbook on the Law of Naval Operations
concepts have continuing validity under the Charter of the United Nations, they
are premised on the broader principle of self-defense.
The concept of maritime quarantine provides a case in point. Maritime
quarantine was first invoked by the United States as a means of interdicting the
flow of Soviet strategic missiles into Cuba in 1962. That action involved a
limited coercive measure on the high seas applicable only to ships carrying
offensive weaponry to Cuba and utilized the least possible military force to
achieve that purpose. That action, formally ratified by the Organization of
American States (OAS), has been widely approved as a legitimate exercise of the
inherent right of individual and collective self-defense recognized in Article 51
of the UN Charter.31
29. (...continued)
The December 1989 U.S. intervention in Panama is described in Musicant, The Banana Wars
390-417 (1990); Briggs, Operation Just Cause: Panama December 1989: A Soldier's Eyewitness
Account (1990); Woodward, The Commanders 83-195 (1991); Donnelly, Roth & Baker,
Operation Just Cause: The Storming of Panama (1991); McConnell, Just Cause: The Real Story of
America's High-Tech Invasion of Panama (1991); Buckley, Panama: The Whole Story (1992).
Operation Just Cause is analyzed in Parkerson, United States Compliance with Humanitarian Law
Respecting Civilians During Operation Just Cause, 133 Mil. L. Rev. 31 (1991); and Terry, The
Panamanian Intervention: Law in Support of Policy, 39 Nav. L. Rev. 5 (1990).
On Operation Provide Comfort, relief to Iraqi Kurds in March 1991, see U.N. Security Council
Resolution 688 (1991).
30. In practice, the concepts of embargo and boycott have become blurred and have taken on a
broader meaning. The terms now include preventing the import, export, movement or other
dealing in goods, services or financial transactions to exert pressure on an offending nation. An
embargo or boycott may be used, for example, to preclude an alleged aggressor nation from
increasing its war-making potential, or to prevent the aggravation of civil strife in a nation in which
it may be occurring. See 12 Whiteman 344-49. The maritime interception operations and air
embargo enforced against Iraq as a consequence of its invasion of Kuwait, on 2 August 1990, are
summarized in Walker, The Crisis over Kuwait, August 1990-February 1991, 1991 Duke J.
Comp. & Int'l L. 25, 34-36. See also Joyner, Sanctions, Compliance and International Law:
Reflections on the United Nations' Experience Against Iraq, 32 Va. J. Int'l L. 1 (1991); and
Almond, An Assessment of Economic Warfare: Developments from the Persian Gulf, 31 Va. J.
Int'l L. 645 (1991).
31. At the time, the U.S. Government characterized the quarantine as a sanction imposed by
collective agreement pursuant to art. 52 of the U.N. Charter, and did not rely on self-defense to
justify its actions. Chayes, The Cuban Missile Crisis: International Crises and the Role of Law
(1974); Robertson, Blockade to Quarantine, JAGJ., June 1963, at 87; McDevitt, The UN Charter
and the Cuban Quarantine, JAG J., April-May 1963, at 71; McDougal, The Soviet-Cuban
Quarantine and Self-Defense, 57 Am. J. Int'l L. 597 (1963); Christol & Davis, Maritime
Quarantine: The Naval Interdiction of Offensive Weapons and Associated Material to Cuba,
1962, 57 Am. J. Int'l L. 525; Mallison, Limited Naval Blockade or Quarantine-Interdiction:
National and Collective Defense Claims Valid Under International Law, 31 Geo. Wash. L. Rev.
335 (1962).
The 1990-91 maritime interception operations in the Persian Gulf and Red Sea by
Coalition Forces to prevent Iraqi imports and exports were conducted pursuant to U.N. Security
Council Resolutions 661 and 665 and art. 51 of the U.N. Charter. They are described in Carter,
Blockade, U.S. Naval Inst. Proc, Nov. 1990, at 42; and Delery, Away, the Boarding Party!, U.S.
Nav. Inst. Proc. /Naval Review, May 1991, at 65.
Safeguarding of U.S. National Interests 263
4.3.2.1 Anticipatory Self-Defense. Included within the inherent right of
self-defense is the right of a nation (and its armed forces) to protect itself from
imminent attack. International law recognizes that it would be contrary to the
purposes of the United Nations Charter if a threatened nation were required to
absorb an aggressor's initial and potentially crippling first strike before taking
those military measures necessary to thwart an imminent attack. Anticipatory
self-defense involves the use of armed force where attack is imminent and no
reasonable choice of peaceful means is available.
4.3.2.2 JCS Standing Rules of Engagement (SROE). TheJCS Standing
Rules of Engagement establish fundamental policies and procedures governing
the actions to be taken by U.S. commanders during military operations,
contingencies, or prolonged conflicts. (See also the discussion of SROE in the
Preface.) At the national level, rules of engagement are promulgated by the
NCA, through the Chairman of the Joint Chiefs of Staff, to the combatant
commanders to guide them in the employment of their forces toward the
achievement of broad national objectives. At the tactical level, rules of
32. This is a departure from the treatment of this issue in NWP-9 (Rev. A) which stated:
Anticipatory self-defense involves the use of armed force where there is a clear
necessity that is instant, overwhelming, and leaving no reasonable choice of peaceful
means. [Emphasis added.]
That statement derives from U.S. Secretary of State Daniel Webster's 1841 articulation of the right
to resort to self-defense as emanating from circumstances when the necessity for action is "instant,
overwhelming, and leaving no choice of means, and no moment for deliberation." See Tlie Caroline
Case, 2 Moore 409-14, discussed in Bunn, International Law and the Use of Force in Peacetime: Do
U.S. Ships Have to Take the First Hit?, Nav. War Coll. Rev., May-June 1986, at 70; and Jennings,
The Caroline and McLeod Cases, 32 Am. J. Int'l L. 82 (1938). The Webster formulation is clearly too
restrictive today, particularly given the nature and lethality of modern weapons systems which may
be employed with little, if any, warning. Ascertaining when a modern weapons system's
employment may be "instant" or "overwhelming" is at best problematical. Moreover, as noted by
the Mallisons, "a credible threat may be imminent without being 'instant' and more than a
'moment for deliberation' is required to make a lawful choice of means." See Mallison & Mallison,
Naval Targeting: Lawful Objects of Attack, in Robertson at 263. McDougal and Feliciano, in
commenting on this issue, stated "the standard of required necessity has been habitually cast in
language so abstractly restrictive as almost, if read literally, to impose paralysis. Such is the clear
import of the classical peroration of Secretary of State Webster in The Caroline case .... [T]he
requirements of necessity and proportionality . . . can ultimately be subjected only to that most
comprehensive and fundamental test of all law, reasonableness in particular context." McDougal &
Feliciano 217-18. See also, Jessup, A Modern Law of Nations 163-64 (1948); Sofaer, Terrorism,
The Law, and the National Defense, 126 Mil. L. Rev. 89 (1989); Joyner, The Rabta Chemical
Factory Fire: Rethinking the Lawfulness of Anticipatory Self-Defense, 13 Terrorism 79 (1990);
Dinstein, paragraph 4.3.2, note 25 (p. 259); and Lowe, The Commander's Handbook on the Law
of Naval Operations and the Contemporary Law of the Sea, in Robertson at 127-30.
33. Self-defense, in relation to the United States as a nation, is the act of defending the United
States and U.S. forces from attack or threat of imminent attack. See Annex A4-3, para. 5b (p. 281).
(continued...)
264 Commander's Handbook on the Law of Naval Operations
engagement are task and mission-oriented. At all levels, U.S. rules of
engagement are consistent with the law of armed conflict. Because rules of
engagement also reflect operational and national policy factors, they often
restrict combat operations far more than do the requirements of international
law. A full range of options is reserved to the National Command Authorities to
determine the response that will be made to hostile acts and demonstrations of
33. (...continued)
This concept relates to regional or global situations possibly preceding prolonged engagements and
related to unstable international relations. The concept of self-defense is also invoked in
confrontations between U.S. forces and foreign forces who are involved in an international armed
conflict both where the United States remains neutral or is otherwise not a party to the conflict and
where the United States is a party to the conflict. For a more detailed discussion of neutrality and its
impact on naval operations, see Chapter 7. U.S. forces exercised national self-defense in response to
Libya's attacks on U.S. forces in the Gulf of Sidra on 24-25 March 1986, and to Libya's support for
international terrorism in the attacks on Tripoli and Benghazi on 14 April 1986. U.S. Letter to
U.N. Security Council, 25 March 1986, U.N. Doc. S/17938, reprinted in Dep't St. Bull., May
1986, at 80; Presidential Letters to Congress, 26 March 1986, 22 Weekly Comp. Pres. Doc. 423;
Presidential Letters to Congress, 16 April 1986, reprinted in Dep't St. Bull., June 1986, at 8; U.S.
Letter to U.N. Security Council, 14 April 1986, U.N. Doc. S/17990. See also 80 Am. J. Int'l L. 632
(1986); Lehman, Command of the Seas 357-76 (1988); Weinberger, Fighting for Peace 175-201
(1990); Warriner, The Unilateral Use of Coercion Under International Law: A Legal Analysis of
the United States Raid on Libya on April 14, 1986, 37 Nav. L. Rev. 49 (1988).
Documentation regarding the shooting down of Iran Air Flight 655 on 4 July 1988 is reproduced in
28 Int'l Leg. Mat'ls 896 (1989); 83 Am. J. Int'l 332 (1989), and discussed in Friedman, The Vincennes
Incident, U.S. Nav. Inst. Proc. /Naval Review, May 1989, at 72, and Hearings before the Defense
Policy Panel of the House Armed Service Committee, 9 Sep. 1988. See also Linman, Iran Air 655
and Beyond: Free Passage, Mistaken Self-Defense, and State Responsibility, 16 Yale J. Int'l L. 245
(1991).
34. Self-defense, in relation to a unit of U.S. naval forces, is the act of defending from attack or
threat of imminent attack that unit (including elements thereof) and other U.S. forces in the
vicinity, or U.S. citizens or U.S. flag vessels or other U.S. commercial assets in the vicinity of that
unit. See Annex A4-3, para. 5c (p. 281). Generally, this concept relates to localized, low-level
situations that are not preliminary to prolonged engagements. The response of two U.S. Navy
F-14 aircraft to the attack by two Libyan Su-22 aircraft over the Gulf of Sidra on 14 August 1981
was an exercise of unit self-defense against a hostile force that had committed a hostile act and posed
a continuing threat of immediate attack. U.N. Doc. S/17938, 25 March 1986; Neutze, The Gulf
of Sidra Incident: A Legal Prespective, U.S. Nav. Inst. Proc, Jan 1982, at 26; Parks, Crossing the
Line, U.S. Nav. Inst. Proc, Nov. 1986, at 40 & 43; Rather, The Gulf of Sidra Incident of 1981: A
Study of the Lawfulness of Peacetime Aerial Engagements, 7 Yale J. Int'l L. 59 (1984). Similarly,
the shootdown of two Libyan MiG-23s on 4 January 1989 by two F-14s over international waters
of the Mediteranean Sea more than 40 miles off the eastern coast of Libya, after the MiGs
repeatedly turned toward them and did not break off the intercept, was an act of unit self-defense
against units demonstrating hostile intent. U.N. Doc. S/20366, 4 January 1989.
35. Grunawalt, The JCS Standing Rules of Engagement: A Judge Advocate's Primer, 42 Air
Force L. Rev. 245 (1997); Roach, Rules of Engagement, Nav. War Coll. Rev., Jan.-Feb. 1983, at
46-53, reprinted in 14 Syr. J. Int'l L. & Com. 865 (1988); and Hayes, Naval Rules ofEngagement:
(continued...)
Safeguarding of U.S. National Interests 265
hostile intent. The SROE provide implementation guidance on the inherent
right and obligation of self-defense and the application of force for mission
accomplishment. A principal tenet of these ROE is the commander's inherent
authority and obligation to use all necessary means available and to take all
appropriate action in self-defense of the commander's unit and other U.S. forces
in the vicinity.
4.4 INTERCEPTION OF INTRUDING AIRCRAFT
All nations have complete and exclusive sovereignty over their national
airspace (see paragraphs 1.8 and 2.5.1). With the exception of overflight in transit
passage of international straits and in archipelagic sea lanes passage (see paragraphs
2.3.3 and 2.3.4.1), distress (see paragraph 3.2.2.1), and assistance entry to assist
those in danger of being lost at sea (see paragraph 2.3.2.5), authorization must be
obtained for any intrusion by a foreign aircraft (military or civil) into national
airspace (see paragraph 2.5). That authorization may be flight specific, as in the
case of diplomatic clearance for the visit of a military aircraft, or general, as in the
case of commercial air navigation pursuant to the Chicago Convention.
Customary international law provides that a foreign aircraft entering national
airspace without permission due to distress or navigational error may be required
to comply with orders to turn back or to land. In this connection the Chicago
Convention has been amended to provide, in effect:
1. That all nations must refrain from the use of weapons against civil aircraft, and,
in the case of the interception of intruding civil aircraft, that the lives of persons on
board and the safety of the aircraft must not be endangered. (This provision does
not, however, detract from the right of self-defense recognized under Article 51 of
the United Nations Charter.)
2. That all nations have the right to require intruding aircraft to land at some
designated airfield and to resort to appropriate means consistent with international
35. (...continued)
Management Tools for Crisis, Rand Note N-2963-CC (July 1989). See also Fleck, Rules of
Engagement for Maritime Forces and the Limitations of the Use of Force under the UN Charter,
31 Ger. Y.B. Int'l L. 165 (1988).
36. Contact with a foreign force committing a hostile act or armed attack or displaying hostile
intent or threat of armed attack against the United States, its forces, a U.S. flag vessel, U.S. citizens
or their property must be reported immediately by the fastest possible means to JCS, CNO/CMC,
and the appropriate unified and component commanders (OPREP-1). Where circumstances
permit, guidance as to the use of armed force in defense should be sought. However, where the
circumstances are such that it is impractical to await such guidance, it is the responsibility of the
on-scene commander to take such measures of self-defense to protect his force as are necessary and
proportional, consistent with applicable rules of engagement (see paragraph 4.3.2 (p. 259) and
Annex A 4-3 (p. 277)).
266 Commander's Handbook on the Law of Naval Operations
law to require intruding aircraft to desist from activities in violation of the
Convention.
3. That all intruding civil aircraft must comply with the orders given to them and
that all nations must enact national laws making such compliance by their civil
aircraft mandatory.
4. That all nations shall prohibit the deliberate use of their civil aircraft for purposes
(such as intelligence collection) inconsistent with the Convention.
The amendment was approved unanimously on 10 May 1984 and will come
into force upon ratification by 102 of ICAO's members in respect of those
nations which have ratified it. The Convention, by its terms, does not apply to
intruding military aircraft. The U.S. takes the position that customary
international law establishes similar standards of reasonableness and
proportionality with respect to a nation's response to military aircraft that stray
into national airspace through navigational error or that are in distress
37. Protocol relating to an amendment to the Convention on International Civil Aviation
[Art. 3 bis], Montreal, 10 May 1984, reprinted in 23 Int'l Legal Mat'ls 705 (1984).
Para. 8.1 of Attachment A - Interception of Civil Aircraft - to Annex 2 - Rules of the Air - to the
Chicago Convention provides: "The use of tracer bullets to attract attention is hazardous, and it is
expected that measures will be taken to avoid their use so that the lives of persons on board and the
safety of aircraft will not be endangered."
Documentation regarding the shooting down of KAL 007 is reproduced in 22 Int'l Leg. Mat'ls
FitzGerald, The Use of Force against Civil Aircraft: The Aftermath of the KAL Flight 007
Incident, 22 Can. Y.B. Int'l L. 1984, at 291, 309.
38. As of 4 November 1997, 90 nations have ratified the Protocol, including the United
Kingdom and the Russian Federation. See Table A4-1 (p. 4-33). The Protocol has not been
submitted to the Senate for advice and consent because of concerns about I.C.J, compulsory
jurisdiction.
39. AFP 110-31, para. 2-5d, at 2-6; 9 Whiteman 328. On aerial intrusions, see Hughes, Aerial
Intrusions by Civil Airliners and the Use of Force, 45 J. Air L. & Com. 595 (1980); Hassan, A Legal
Analysis of the Shooting of Korean Airlines Flight 007 by the Soviet Union, 49 J. Air L. & Com.
553 (1984); Laveson, Korean Airline Flight 007: Stalemate in International Aviation Law — A
Proposal for Enforcement, 22 San Diego L. Rev. 859 (1985); Phelps, Aerial Intrusions by Civil and
Military Aircraft in Time of Peace, 107 Mil. L. Rev. 255 (1985) and Schmitt, Aerial Blockades in
Historical, Legal and Practical Perspective, 2 U.S.A.F.A. J. Leg. Studies 21 (1991). See also the
Agreement Between the Government of the United States of America and the Government of the
Union of Soviet Socialist Republics on the Prevention of Dangerous Military Activities, Moscow,
12 June 1989, reprinted in 28 Int'l Leg. Mat'ls 879 (1989).
Safeguarding of U.S. National Interests 267
ANNEX A4-1
UNITED NATIONS PEACE-KEEPING OPERATIONS
1242
Indonesia - United Nations Consular Commission (CC) 1947-1948.
124£
* Middle East - United Nations Truce Supervision Organization (UNTSO)
Jun 1948-date.
Greece - United Nations Special Committee on the Balkans (UNSCOB)
1948.
1242
* India/Pakistan - United Nations Military Observer Group in India &
Pakistan (UNMOGIP) Jan 1949-date.
1250
Korea - United Nations Command (UNC) 1950-1953.
1255
Suez - United Nations Emergency Force (UNEF) 1955-1967.
1256
Middle East - First United Nations Emergency Force (UNEFI) Nov
1956-Jun 1967.
1252
Lebanon - United Nations Observation Group in Lebanon (UNOGIL) Jun
1958-Dec 1958.
1260
Congo - United Nations Operations in the Congo (ONUC) Jul 1960-Jun
1964.
268 Commander's Handbook on the Law of Naval Operations
West New Guinea - United Nations Security Force in West New Guinea
(West Irian) (UNSF) Oct 1962-Apr 1963.
iasa
Yemen - United Nations Yemen Observation Mission (UNYOM) Jul
1963-Sep 1964.
1264
* Cyprus - United Nations Peace-keeping Force in Cyprus (UNFICYP)
Mar 1964-date.
Dominican Republic - Mission of the Representative of the
Secretary-General in the Dominican Republic (DOMREP) May
1965-Oct 1966.
India/Pakistan - United Nations India-Pakistan Observation Mission
(UNIPOM) Sep 1965-Mar 1966.
Middle East - Second United Nations Emergency Force (UNEF II) Oct
1973-Jul 1979.
1Z2A
* Golan Heights - United Nations Disengagement Observer Force
(UNDOF) Jun 1974-date.
12Z3
* Lebanon - United Nations Interior Force in Lebanon (UNIFIL) Mar
1978-date.
Safeguarding of U.S. National Interests 269
Afghanistan/Pakistan - United Nations Good Offices Mission in Afghanistan
& Pakistan (UNGOMAP) Apr 1988-Mar 1990.
Iran/Iraq - United Nations Iran-Iraq Military Observer Group (UNIIMOG)
(Aug88-Feb91.
Angola - United Nations Angola Verification Mission I (UNAVEM I) Jan
89-Jun91.
Namibia - United Nations Transition Assistance Group (UNTAG) Apr
1989-Mar 1990.
Central America - United Nations Observer Group in Central America
(ONUCA) Nov 1989-Jan 1992.
1221
* Iraq/Kuwait - United Nations Iraq-Kuwait Observation Mission
(UNIKOM) Apr 1991-date.
Angola - United Nations Angola Verification Mission II (UNAVEM II) Jun
1991-Feb 1995.
El Salvador - United Nations Observer Mission in El Salvador (ONUS AL) Jul
1991 -Apr 1995.
* Western Sahara - United Nations Mission for the Referendum in Western
Sahara (MINURSO) Sep 1991-date.
Cambodia - United Nations Advance Mission in Cambodia (UNAMIC) Oct
1991-Mar 1992.
1992
Cambodia - United Nations Transitional Authority in Cambodia (UNTAC)
Mar 1992-Sep 1993.
270 Commander's Handbook on the Law of Naval Operations
Former- Yugoslavia - United Nations Protection Force (UNPROFOR) Mar
1992-Dec 1995.
Somalia - United Nations Operation in Somalia I (UNOSOM I) Apr
1972-Mar 1993.
Mozambique - United Nations Operation in Mozambique (ONUMOZ)
Dec 1992-Dec 1994.
mi
Somalia - United Nations Operation in Somalia II (UNOSOM II) Mar
1993-Mar 1995.
Rwanda/Uganda - United Nations Observer Mission Uganda-Rwanda
(UNOMUR) Jun 1993-Sep 1994.
* Georgia - United Nations Observer Mission in Georgia (UNOMIG) Aug
1993-date.
Haiti - United Nations Mission in Haiti (UNMIH) Sep 1993-Jun 1996.
* Liberia - United Nations Observer Mission in Liberia (UNOMIL) Sep
1993-date.
Rwanda - United Nations Assistance Mission for Rwanda (UNAMIR) Oct
1993-Mar 1996.
1224
Chad/Libya - United Nations Aouzou Strip Observer Group (UNASOG)
May-Jun 1994.
* Tajikistan - United Nations Mission of Observers in Tajikistan (UNMOT)
Dec 1994-date.
Safeguarding of U.S. National Interests 271
1225.
* Angola - United Nations Angola Verification Mission III (UNAVEM III)
Feb 1995-date.
Croatia - United Nations Confidence Restoration Organization in Croatia
(UNCRO) Mar 1995-Jan 1996.
* Former-Yugoslavia Republic of Macedonia - United Nations Preventive
Deployment Force (UNPREDEP) Mar 1995-date.
* Bosnia & Herzegovina - United Nations Mission in Bosnia and
Herzegovina (UNMIBH) Dec 1995-date.
* Croatia - United Nations Mission of Observers in Prevlaka (UNMOP) Jan
1996-date.
* Croatia - United Nations Transitional Administration for Eastern Slovenia,
Baranja and Western Sirmium (UNTAES) Jan 1996-date.
* Haiti - United Nations Support Mission in Haiti (UNSMIH) Jul
1996-date.
NOTE: * Indicates an on-going operation as of 1 January 1997.
Source: U.N. Dep't of Public Information.
272 Commander's Handbook on the Law of Naval Operations
ANNEX A4-2
PRESIDENT'S LETTER OF
INSTRUCTION
R 300238Z SEP 94
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
BT
UNCLAS STATE 265203
SUBJECT: PRESIDENT CLINTON'S LETTER OF INSTRUCTION TO
UNITED STATES CHIEFS OF MISSION
1. THIS MESSAGE TPJVNSMITS THE TEXT OF PRESIDENT
CLINTON'S LETTER OF INSTRUCTION TO UNITED STATES
CHIEFS OF MISSION (COMS), WHICH HE SIGNED ON SEPTEMBER
16. PLEASE SHARE IT WITH ALL MEMBERS OF YOUR MISSION.
YOU MAY EXPECT TO RECEIVE YOUR INDIVIDUAL, SIGNED
LETTER BY POUCH IN THE NEXT MONTH OR SO. QUESTIONS
OR COMMENTS ON THE LETTER MAY BE ADDRESSED TO THE
OFFICE OF MANAGEMENT POLICY (FMP/ MP), ROOM 7427NS,
202-647-7789.
2. BEGIN TEXT.
DEAR MR. /MADAM AMBASSADOR:
A) PLEASE ACCEPT MY BEST WISHES AND APPRECIATION FOR
YOUR EFFORTS AS MY PERSONAL REPRESENTS! iVL TO
(COUNTRY/INTERNATIONAL ORGANIZATION) .
B) WE ARE AT A MOMENT OF UNIQUE HISTORIC OPPORTUNITY
FOR THE UNITED STATES AND FOR THE WORLD. WITH THE
END OF THE COLD WAR, WE ARE ENTERING AN ERA SO NEW
THAT IT HAS YET TO ACQUIRE A NAME. OUR TASK AS A NA-
TION, AND YOURS AS CHIEF OF THE UNITED STATES MISSION, IS
TO ENSURE THAT THIS NEW ERA IS ONE CONDUCIVE TO
AMERICAN PROSPERITY, TO AMERICAN SECURITY, AND TO
THE VALUES AMERICA SEEKS TO EXEMPLIFY. TO ACCOMPLISH
Safeguarding of U.S. National Interests 273
THIS TASK I NEED YOUR FULL SUPPORT FOR THE THREE GOALS
OF MY FOREIGN POLICY THAT AIM TO KEEP OUR NATION
STRONG AT HOME AND ABROAD: RENEWING AND ADAPTING
AMERICA'S SECURITY ALLIANCES AND STRUCTURES; RE-
BUILDING AND REVITALIZING THE AMERICAN ECONOMY;
AND PROMOTING DEMOCRACY, HUMAN RIGHTS, AND
SUSTAINABLE DEVELOPMENT.
C) YOU SHOULD GIVE SPECIAL ATTENTION IN THE SECURITY
REALM TO HALTING ARMS PROLIFERATION, PREVENTING,
RESOLVING, AND CONTAINING CONFLICT, AND TO COUNTER-
ING TERRORISM AND INTERNATIONAL CRIME; AND IN THE
ECONOMIC ARENA, TO OPENING AND EXPANDING MARKETS
FOR AMERICA'S EXPORTS. NO COUNTRY CAN BE EXEMPT
FROM UPHOLDING THE BASIC PRINCIPLES IN THE UNIVERSAL
DECLARATION OF HUMAN RIGHTS; ALL SHOULD UNDER-
STAND THAT SHARED DEMOCRATIC VALUES ARE THE MOST
RELIABLE FOUNDATION FOR GOOD RELATIONS WITH THE
UNITED STATES. FINALLY, I WILL NEED YOUR HELP AS MY
ADMINISTRATION SEEKS TO PROMOTE INTERNATIONAL
COOPERATION TO ADDRESS GLOBAL PROBLEMS INCLUDING
THE ENVIRONMENT AND POPULATION, NARCOTICS PRODUC-
TION AND TRAFFICKING, REFUGEES, MIGRATION, AND
HUMANITARIAN ASSISTANCE.
D) ACHIEVING THESE GOALS WILL DEMAND A DYNAMIC
DIPLOMACY THAT HARNESSES CHANGE IN THE SERVICE OF
OUR NATIONAL INTERESTS AND VALUES. IT WILL REQUIRE US
TO MEET THREATS TO OUR SECURITY AND PRACTICE
PREVENTIVE DIPLOMACY, AND TO ANTICIPATE THREATS TO
OUR INTERESTS AND TO PEACE IN THE WORED BEFORE THEY
BECOME CRISES AND DRAIN OUR HUMAN AND MATERIAL
RESOURCES IN WASTEFUL WAYS. I HAVE ASKED YOU TO
REPRESENT THE UNITED STATES IN (COUNTRY) /AT (INTER-
NATIONAL ORGANIZATION) BECAUSE I AM CONFIDENT THAT
YOU POSSESS THE SKILLS, DEDICATION, AND EXPERIENCE
NECESSARY TO MEET THE MANY CHALLENGES THAT THIS NEW
AND COMPLEX ERA PRESENTS. THIS LETTER OUTLINES YOUR
PRINCIPAL AUTHORITIES AND RESPONSIBILITIES. I HAVE
INFORMED ALL DEPARTMENT AND AGENCY HEADS OF THESE
274 Commander's Handbook on the Law of Naval Operations
INSTRUCTIONS, AND I KNOW YOU WILL RECEIVE THEIR FULL
SUPPORT.
E) I CHARGE YOU TO EXERCISE YOUR AUTHORITY WITH
WISDOM, JUSTICE, AND IMAGINATION. DRAMATIC CHANGE
ABROAD AND AUSTERITY HEM AT HOME HAVE PUT A
PREMIUM ON LEADERSHIP AND TEAMWORK. CAREFUL STEW-
ARDSHIP OF YOUR MISSION'S RESOURCES STANDS IN THE
FOREFRONT OF YOUR RESPONSIBILITIES. I URGE YOU TO SEE
BUDGETARY STRINGENCY NOT AS A HARDSHIP TO BE
ENDUMD BUT AS AN INCENTIVE TO INNOVATION.
F) AS MY FEPRESENTATIVE, YOU, WITH THE SECRETARY OF
STATE, ASSIST ME IN THE IMPLEMENTATION OF MY CONSTITU-
TIONAL RESPONSIBILITIES FOR THE CONDUCT OF OUR
RELATIONS WITH (COUNTRY/INTERNATIONAL ORGAN-
IZATION). I CHARGE YOU TO EXERCISE FULL RESPONSIBILITY
FOR THE DIRECTION, COORDINATION, AND SUPERVISION OF
ALL EXECUTIVE BRANCH OFFICES AND PERSONNEL IN
(COUNTRY) /AT (INTERNATIONAL ORGANIZATION), EXCEPT
FOR PERSONNEL UNDER THE COMMAND OF A U.S. AREA
MILITARY COMMANDER, UNDER ANOTHER CHIEF OF MISSION
IN (COUNTRY) OR ON THE STAFF OF AN INTERNATIONAL
ORGANIZATION. THIS ENCOMPASSES ALL AMERICAN AND
FOREIGN NATIONAL PERSONNEL, IN ALL EMPLOYMENT
CATEGORIES, WHETHER DIRECT HIRE OR CONTRACT, FULL-
OR PART-TIME, PERMANENT OR TEMPORARY.
G) ALL EXECUTIVE BRANCH PERSONNEL UNDER YOUR
AUTHORITY MUST KEEP YOU FULLY INFOPJVlED AT ALL TIMES
OF THEIR CURRENT AND PLANNED ACTIVITIES, SO THAT YOU
CAN EFFECTIVELY CARRY OUT YOUR RESPONSIBILITY FOR
U.S. GOVERNMENT PROGRAMS AND OPERATIONS. YOU HAVE
THE RIGHT TO SEE ALL COMMUNICATIONS TO OR FROM
MISSION ELEMENTS, HOWEVER TRANSMITTED, EXCEPT THOSE
SPECIFICALLY EXEMPTED BY LAW OR EXECUTIVE DECISION.
H) AS COMMANDER IN CHIEF, I RETAIN AUTHORITY OVER U.S.
APJV1ED FORCES. ON MY BEHALF YOU HAVE RESPONSIBILITY
FOR THE DIPJECTION, COORDINATION, SUPERVISION, AND
SAFETY, INCLUDING SECURITY FROM TERRORISM, OF ALL
Safeguarding of U.S. National Interests 275
DEPARTMENT OF DEFENSE PERSONNEL ON OFFICIAL DUTY (IN
(COUNTRY) /AT (INTERNATIONAL ORGANIZATION), EXCEPT
THOSE PERSONNEL UNDER THE COMMAND OF A U.S. AREA
MILITARY COMMANDER. YOU AND SUCH COMMANDERS
MUST KEEP EACH OTHER CURRENTLY INFORMED AND
COOPERATE ON ALL MATTERS OF MUTUAL INTEREST. ANY
DIFFERENCES THAT CANNOT BE RESOLVED IN THE FIELD
SHOULD BE REPORTED BY YOU TO THE SECRETARY OF STATE;
AREA MILITARY COMMANDERS SHOULD REPORT TO THE
SECRETARY OF DEFENSE.
I) EVERY EXECUTIVE BRANCH AGENCY UNDER YOUR
AUTHORITY, INCLUDING THE DEPARTMENT OF STATE, MUST
OBTAIN YOUR APPROVAL TO CHANGE THE SIZE, COMPOSI-
TION, OR MANDATE OF ITS STAFF. USE THIS AUTHORITY TO
RESHAPE YOUR MISSION IN WAYS THAT DIRECTLY SERVE
AMERICAN INTERESTS AND VALUES
J) THE SECRETARY OF STATE IS MY PRINCIPAL FOREIGN POLICY
ADVISER. UNDER MY DIRECTION, HE IS, TO THE FULLEST
EXTENT PROVIDED BY THE LAW, RESPONSIBLE FOR THE
OVERALL COORDINATION AND SUPERVISION OF U.S. GOV-
ERNMENT ACTIVITIES ABROAD. THE ONLY AUTHORIZED
CHANNEL FOR INSTRUCTIONS TO YOU IS THROUGH HIM OR
FROM ME
K) THE SECRETARY OF STATE AND, BY EXTENSION, CHIEFS OF
MISSION ABROAD MUST PROTECT ALL U.S. GOVERNMENT
PERSONNEL ON OFFICIAL DUTY ABROAD (OTHER THAN
THOSE PERSONNEL UNDER THE COMMAND OF A U.S. AREA
MILITARY COMMANDER) AND THEIR ACCOMPANYING DE-
PENDENTS. I EXPECT YOU TO TAKE DIRECT RESPONSIBILITY
FOR THE SECURITY OF YOUR MISSION. I ALSO EXPECT YOU TO
SUPPORT STRONGLY APPROPRIATE COUNTERINTELLIGENCE
AND COUNTERTERRORISM ACTIVITIES THAT ENHANCE
SECURITY BOTH LOCALLY AND IN THE BROADER INTERNA-
TIONAL CONTEXT,
L) YOU SHOULD COOPERATE FULLY WITH PERSONNEL OF THE
U.S. LEGISLATIVE AND JUDICIAL BRANCHES IN (COUNTRY)/AT
(INTERNATIONAL ORGANIZATION) SO THAT U.S. FOREIGN
276 Commander's Handbook on the Law of Naval Operations
POLICY GOALS ARE ADVANCED, SECURITY IS MAINTAINED
AND EXECUTIVE, LEGISLATIVE, AND JUDICIAL RESPONSIBILI-
TIES ARE CARRIED OUT.
M) AS CHIEF OF MISSION YOU ARE NOT ONLY MY
REPRESENTATIVE IN (COUNTRY/INTERNATIONAL ORGANI-
ZATION) BUT A SERVANT OF THE PEOPLE OF OUR NATION.
THIS IS BOTH A HIGH HONOR AND A GREAT RESPONSIBILITY. I
EXPECT YOU TO DISCHARGE THIS TRUST WITH PROFESSIONAL
EXCELLENCE, THE HIGHEST STANDARDS OF ETHICAL
CONDUCT, AND DIPLOMATIC DISCRETION
N) ALWAYS KEEP IN MIND THAT, FOR THE GOVERNMENT AND
PEOPLE OF (COUNTRY)/THE SECRETARIAT AND OTHER
REPRESENTATIVES TO (INTERNATIONAL ORGANIZATION),
YOU AND YOUR MISSION SYMBOLIZE THE UNITED STATES OF
AMERICA AND ITS VALUES. NEVER FORGET THE SOLEMN DUTY
THAT WE, AS PUBLIC SERVANTS, OWE TO THE CITIZENS OF
AMERICA— THE ACTIVE PROTECTION AND PROMOTION OF
THEIR WELL-BEING, SAFETY, AND IDEALS. THERE IS NO BETTER
DEFINITION OF AMERICAN NATIONAL INTEREST AND NO
LOFTIER OBJECT FOR OUR EFFORTS.
SINCERELY,
(SIGNED)
BILL CLINTON
END TEXT.
BT
Safeguarding of U.S. National Interests 277
ANNEX A4-3
JOINT CHIEFS OF STAFF
STANDING RULES OF ENGAGEMENT
(SROE)
[NOTE: This annex is a reprint of Enclosure A, Chairman, JCS Instruction
3121.01 (1 Oct 94), which is the unclassified portion of that instruction. Within
Enclosure A, there are references to its Appendix A as well as to Enclosures B and
C and the Glossary of the CJSC instruction. However, those referenced
documents are classified and are not reproduced here.]
STANDING RULES OF ENGAGEMENT FOR US FORCES
1. Purpose and Scope.
a. The purpose of these SROE is to provide implementation guidance on
the inherent right and obligation of self-defense and the application of force for
mission accomplishment. The SROE establish fundamental policies and
procedures governing the actions to be taken by U.S. force commanders during
all military operations, contingencies, or prolonged conflicts. In order to provide
uniform training and planning capabilities, this document is authorized for
distribution to commanders at all levels to be used as fundamental guidance for
training and directing their forces.
b. Except as augmented by supplemental rules of engagement for specific
operations, missions, or projects, the policies and procedures established herein
remain in effect until rescinded.
c. U.S. forces operating with multinational forces:
(1) U.S. forces assigned to the operational control (OPCON) of a
multinational force will follow the ROE of the multinational force unless
otherwise directed by the National Command Authorities (NCA). U.S. forces
will be assigned and remain OPCON to a multinational force only if the
combatant commander and higher authority determine that the ROE for that
multinational force are consistent with the policy guidance on unit self-defense
and with the rules for individual self-defense contained in this document.
278 Commander's Handbook on the Law of Naval Operations
(2) When U.S. forces, under U.S. OPCON, operate in conjunction
with a multinational force, reasonable efforts will be made to effect common
ROE. If such ROE cannot be established, U.S. forces will exercise the right and
obligation of self-defense contained in this document while seeking guidance
from the appropriate combatant command. To avoid mutual interference, the
multinational forces will be informed prior to U.S. participation in the operation
of the U.S. forces' intentions to operate under these SROE and to exercise unit
self-defense. For additional guidance concerning peace operations, see
Appendix A to Enclosure A.
(3) Participation in multinational operations may be complicated by
varying national obligations derived from international agreements, i.e., other
members in a coalition may not be signatories to treaties that bind the United
States, or they may be bound by treaties to which the United States is not a party.
U.S. forces still remain bound by U.S. treaty obligations even if the other
members in a coalition are not signatories to a treaty and need not adhere to its
terms.
d. Commanders of U.S. forces subject to international agreements
governing their presence in foreign countries (e.g., Status of Forces Agreements)
are not relieved of the inherent authority and obligation to use all necessary
means available and to take all appropriate action for unit self-defense.
e. U.S. forces in support of operations not under operational or tactical
control of a combatant commander or performing missions under direct control
of the NCA, Military Departments, or other U.S. government
departments/agencies (i.e., marine security guards, certain special security
forces) will operate under use-of-force or ROE promulgated by those
departments or agencies.
f. U.S. Coast Guard (USCG) units and units under USCG OPCON
conducting law enforcement operations, and USCG personnel using their law
enforcement authority, will follow the use-of-force policy issued by the
Commandant, USCG. Nothing in the USCG use-of-force policy negates a
commander's inherent authority and obligation to use all necessary means
available and to take all appropriate action for unit self-defense in accordance
with these SROE.
g. The guidance in this document does not cover U.S. forces deployed to
assist federal and local authorities during times of civil disturbance within the
territorial jurisdiction of any state, the District of Columbia, Commonwealths of
Safeguarding of U.S. National Interests 279
Puerto Rico and the Northern Marianas, U.S. possessions, and U.S. territories.
Forces in these situations will follow use-of-force policy found in DOD Civil
Disturbance Plan, "Garden Plot" (Appendix 1 to Annex C of Garden Plot).
h. U.S. forces deployed to assist foreign, federal, and local authorities in
disaster assistance missions, such as earthquakes and hurricanes, will follow
use-of-force guidelines as set forth in the mission's execute order and subsequent
orders.
i. U.S. forces will always comply with the Law of Armed Conflict.
However, not all situations involving the use of force are armed conflicts under
international law. Those approving operational rules of engagement must
determine if the internationally recognized Law of Armed Conflict applies. In
those circumstances when armed conflict, under international law, does not
exist, Law of Armed Conflict principles may, nevertheless, be applied as a matter
of national policy. If armed conflict occurs, the actions of U.S. forces will be
governed by both the Law of Armed Conflict and rules of engagement.
2. Policy.
a. THESE RULES DO NOT LIMIT A COMMANDER'S INHER-
ENT AUTHORITY AND OBLIGATION TO USE ALL NECESSARY
MEANS AVAILABLE AND TO TAKE ALL APPROPRIATE ACTION IN
SELF-DEFENSE OF THE COMMANDER'S UNIT AND OTHER U.S.
FORCES IN THE VICINITY.
b. U.S. national security policy serves to protect the United States, U.S.
forces, and, in certain circumstances, U.S. citizens and their property, U.S.
commercial assets, and other designated non-U. S. forces, foreign nationals, and
their property from hostile attack. U.S. national security policy is guided, in part,
by the need to maintain a stable international environment compatible with U.S.
national security interests. In addition, U.S. national security interests guide our
global objectives of deterring armed attack against the United States across the
range of military operations, defeating an attack should deterrence fail, and
preventing or neutralizing hostile efforts to intimidate or coerce the United
States by the threat or use of armed force or terrorist actions. Deterrence requires
clear and evident capability and resolve to fight at any level of conflict and, if
necessary, to increase deterrent force capabilities and posture deliberately so that
any potential aggressor will assess its own risks as unacceptable. U.S. policy,
should deterrence fail, provides flexibility to respond to crises with options that:
280 Commander's Handbook on the Law of Naval Operations
(1) Are proportional to the provocation.
(2) Are designed to limit the scope and intensity of the conflict.
(3) Will discourage escalation.
(4) Will achieve political and military objectives.
3. Intent. These SROE are intended to:
a. Provide general guidelines on self-defense and are applicable worldwide
to all echelons of command.
b. Provide guidance governing the use of force consistent with mission
accomplishment.
c. Be used in operations other than war, during transition from peacetime
to armed conflict or war, and during armed conflict in the absence of superseding
guidance.
4. Combatant Commanders' SROE.
a. Combatant commanders may augment these SROE as necessary to
reflect changing political and military policies, threats, and missions specific to
their AOR. When specific standing rules governing the use of force in a
combatant commander's AOR are required that are different from these SROE,
they will be submitted to the Chairman of the Joint Chiefs of Staff for NCA
approval as necessary and promulgated by the Joint Staff as an Annex to
Enclosure C of these SROE.
b. Combatant commanders will distribute these SROE to subordinate
commanders and units for compliance. The mechanism for disseminating ROE
supplemental measures is set forth in Enclosure B.
5. Definitions.
a. Inherent Right of Self-Defense. A commander has the authority and
obligation to use all necessary means available and to take all appropriate action to
defend that commander's unit and other U.S. forces in the vicinity from a hostile
act or demonstrated hostile intent. Neither these rules nor the supplemental
measures activated to augment these rules limit this inherent right and
Safeguarding of U.S. National Interests 281
obligation. At all times, however, the requirements of necessity and
proportionality as amplified in these SROE will be the basis for the judgment of
the commander as to what constitutes an appropriate response to a particular
hostile act or demonstration of hostile intent.
b. National Self-Defense. National self-defense is the act of defending the
United States, U.S. forces, and, in certain circumstances, U.S. citizens and their
property, U.S. commercial assets, and other designated non-U. S. forces, foreign
nationals and their property, from a hostile act or hostile intent. Once a force or
terrorist unit is declared hostile by appropriate authority exercising the right and
obligation of national self-defense (see paragraph 2 of Appendix A to Enclosure
A), individual U.S. units do not need to observe a hostile act or determine hostile
intent before engaging that force.
NOTE: Collective Self-Defense, as a subset of national self-defense, is the act of
defending other designated non-U. S. forces, personnel and their property from a
hostile act or demonstration of hostile intent. Only the NCA may authorize U.S.
forces to exercise collective self-defense.
c. Unit Self-Defense. Unit self-defense is the act of defending a particular
unit of U.S. forces, including elements or personnel thereof, and other U.S.
forces in the vicinity, against a hostile act or hostile intent. The need to exercise
unit self-defense may arise in many situations such as localized low-level
conflicts, humanitarian efforts, peace enforcement actions, terrorist response, or
prolonged engagements. Individual self-defense is a subset of unit self-defense:
see the Glossary for a definition of individual self-defense.
d. Elements of Self-Defense. The application of armed force in self-defense
requires the folio wing two elements:
(1) Necessity. A hostile act occurs or a force or terrorist unit exhibits
hostile intent.
(2) Proportionality. The force used must be reasonable in intensity,
duration, and magnitude, based on all facts known to the commander at the time,
to decisively counter the hostile act or hostile intent and to ensure the continued
safety of U.S. forces.
e. Hostile Act. A hostile act is an attack or other use of force by a foreign
force or terrorist unit (organization or individual) against the United States, U.S.
forces, and in certain circumstance, U.S. citizens, their property, U.S.
commercial assets, and other designated non-U. S. forces, foreign nationals and
282 Commander's Handbook on the Law of Naval Operations
their property. It is also force used directly to preclude or impede the mission
and/or duties of U.S. forces, including the recovery of U.S. personnel and U.S.
government property. When a hostile act is in progress, the right exists to use
proportional force, including armed force, in self-defense by all necessary means
available to deter or neutralize the potential attacker or, if necessary, to destroy
the threat. (See definitions in the Glossary for amplification.)
f. Hostile Intent. Hostile intent is the threat of imminent use of force by a
foreign force or terrorist unit (organization or individual) against the United
States, U.S. forces, and in certain circumstances, U.S. citizens, their property,
U.S. commercial assets, or other designated non-U. S. forces, foreign nationals
and their property. When hostile intent is present, the right exists to use
proportional force, including armed force, in self-defense by all necessary means
available to deter or neutralize the potential attacker or, if necessary, to destroy
the threat. (See definitions in the Glossary for amplification.)
g. Hostile Force. Any force or terrorist unit (civilian, paramilitary, or
military), with or without national designation, that has committed a hostile act,
demonstrated hostile intent, or has been declared hostile.
6. Declaring Force Hostile. Once a force is declared hostile by appropriate
authority, U.S. units need not observe a hostile act or a demonstration of hostile
intent before engaging that force. The responsibility for exercising the right and
obligation of national self-defense and declaring a force hostile is a matter of the
utmost importance demanding considerable judgement of command. All
available intelligence, the status of international relationships, the requirements
of international law, the possible need for a political decision, and the potential
consequences for the United States must be carefully weighed. Exercising the
right and obligation of national self-defense by competent authority is in
addition to and does not supplant the right and obligation to exercise unit
self-defense. The authority to declare a force hostile is limited as amplified in
Appendix A to Enclosure A.
7. Authority to Exercise Self-Defense.
a. National Self-Defense. The authority to exercise national self-defense is
outlined in Appendix A to Enclosure A.
b. Collective Self-Defense. Only the NCA may authorize the exercise of
collective self-defense.
Safeguarding of U.S. National Interests 283
c. Unit Self-Defense. A unit commander has the authority and obligation to
use all necessary means available and to take all appropriate action to defend the
unit, including elements and personnel thereof, or other U.S. forces in the
vicinity, against a hostile act or hostile intent. In defending against a hostile act or
hostile intent under these SROE, unit commanders should use only that degree
of force necessary to decisively counter the hostile intent and to ensure the
continued safety of U.S. forces.
8. Action in Self-Defense.
a. Means of Self-Defense. All necessary means available and all appropriate
actions may be used in self-defense. The following guidelines apply for unit or
national self-defense:
(1) Attempt to Control Without the Use of Force. The use of force is
normally a measure of last resort. When time and circumstances permit, the
potentially hostile force should be warned and given the opportunity to
withdraw or cease threatening actions. (See Appendix A to Enclosure A for
amplification.)
(2) Use Proportional Force to Control the Situation. When the use of force
in self-defense is necessary, the nature, duration, and scope of the engagement
should not exceed that which is required to decisively counter the hostile act or
hostile intent and to ensure the continued safety of U.S. forces or other protected
personnel or property.
(3) Attack to Disable or Destroy. An attack to disable or destroy a hostile
force is authorized when such action is the only prudent means which a hostile
act or hostile intent can be prevented or terminated. When such conditions exist,
engagement is authorized only until the hostile force no longer poses an
imminent threat.
b. Immediate Pursuit of Hostile Foreign Forces. In self-defense, U.S. forces may
pursue and engage a hostile force that has committed a hostile act or
demonstrated hostile intent and that remains an imminent threat. (See Appendix
A to Enclosure A for amplification.)
c. Defending U.S. Citizens, Property, and Designated Foreign Nationals.
(1) Within a Foreign Nation's U.S. Recognized Territory or Territorial
Airspace. A foreign nation has the principal responsibility for defending U.S.
284 Commander's Handbook on the Law of Naval Operations
citizens and property within these areas. (See Appendix A to Enclosure A for
amplification.)
(2) At Sea. Detailed guidance is contained in Annex A to Appendix B of
this enclosure.
(3) In International Airspace. Protecting civil aircraft in international
airspace is principally the responsibility of the nation of registry. Guidance for
certain cases of actual or suspected hijacking of airborne U.S. or foreign civil
aircraft is contained in MCM- 102-92, 24 July 1992, Hijacking of Civil Aircraft.
(4) Terrorism. Terrorist attacks are usually undertaken by civilian or
paramilitary organizations, or by individuals under circumstances in which a
determination of hostile intent may be difficult. The definitions of hostile act and
hostile intent set forth above will be used in situations where terrorist attacks are
likely. The term "hostile force" includes terrorist units when used in this
document. When circumstances and intelligence dictate, supplemental ROE
will be used to meet this special threat.
(5) Piracy. Piracy is defined as an illegal act of violence, depredation
(i.e., plundering, robbing, or pillaging), or detention in or over international
waters committed for private ends by the crew or passengers of a private ship or
aircraft against another ship or aircraft or against persons or property on board
such ship or aircraft. U.S. warships and aircraft have an obligation to repress
piracy on or over international waters directed against any vessel, or aircraft,
whether U.S. or foreign flagged. If a pirate vessel or aircraft fleeing from pursuit
proceeds into the territorial sea, archipelagic waters, or superjacent airspace of
another country every effort should be made to obtain the consent of nation
sovereignty to continue pursuit. Where circumstances permit, commanders will
seek guidance from higher authority before using armed force to repress an act of
piracy.
d. Operations Within or in the Vicinity of Hostile Fire or Combat Zones Not
Involving the United States.
(1) U.S. forces should not enter, or remain in, a zone in which
hostilities (not involving the United States) are imminent or occurring between
foreign forces unless directed by proper authority.
Safeguarding of U.S. National Interests 285
(2) If a force commits a hostile act or demonstrates hostile intent against
U.S. forces in a hostile fire or combat zone, the commander is obligated to act in
unit self-defense in accordance with SROE guidelines.
e. Right of Assistance Entry.
(1) Ships, or under certain circumstances aircraft, have the right to
enter a foreign territorial sea or archipelagic waters and corresponding airspace
without the permission of the coastal or island state to engage in legitimate efforts
to render emergency assistance to those in danger or distress from perils of the
sea.
(2) Right of assistance extends only to rescues where the location of
those in danger is reasonably well known. It does not extend to entering the
territorial sea, archipelagic waters, or national airspace to conduct a search.
(3) For ships and aircraft rendering assistance on scene, the right and
obligation of self-defense extends to and includes persons, vessels, or aircraft
being assisted. The right of self-defense in such circumstances does not include
interference with legitimate law enforcement actions of a coastal nation.
However, once received on board the assisting ship or aircraft, persons assisted
will not be surrendered to foreign authority unless directed by the NCA.
(4) Further guidance for the exercise of the right of assistance entry is
contained in CJCS Instruction 2410.01, 20 July 1993, "Guidance for the
Exercise of Right of Assistance Entry."
286 Commander's Handbook on the Law of Naval Operations
TABLE A4-1
STATES WHICH HAVE RATIFIED
THE PROTOCOL RELATING TO AN AMENDMENT TO THE
CONVENTION ON INTERNATIONAL CIVIL AVIATION
ARTICLE 3 bis, SIGNED AT MONTREAL ON 10 MAY 1984
(As of 4 November 1997)
Barbados
23 Nov 1984
Niger
8 Apr 1988
Chile
26 Nov 1984
Ecuador
22 Apr 1988
Austria
11 Jan 1985
Guyana
2 May 1988
Oman
21 Feb 1985
Antigua and Barbuda
17 Oct 1988
Republic of Korea
27 Feb 1985
Gabon
1 Nov 1988
Tunisia
29 Apr 1985
Colombia
10 Mar 1989
Senegal
2 May 1985
Cyprus
5 Jul 1989
Luxembourg
10Mayl985
Mauritius
7 Nov 1989
Ethiopia
22 May 1985
Bahrain
7 Feb 1990
Pakistan
lOJun 1985
Hungary
24 May 1990
South Africa
28Jun 1985
Mexico
20Jun 1990
Togo
5 Jul 1985
Morocco
19 Jul 1990
Nigeria
8 Jul 1985
Russian Federation
24 Aug 1990
Thailand
12 Jul 1985
Ireland
19 Sep 1990
Egypt
1 Aug 1985
Qatar
23 Oct 1990
Seychelles
8 Aug 1985
Malawi
13 Dec 1990
France
19 Aug 1985
Portugal
17Junl991
Belgium
20 Sep 1985
Burundi
10 Oct 1991
Denmark
16 Oct 1985
Finland
18 Dec 1991
Norway
16 Oct 1985
Estonia
21 Aug 1992
Sweden
16 Oct 1985
Fiji
21 Sep 1992
Spain
24 Oct 1985
Papua New Guinea
5 Oct 1992
Switzerland
24 Feb 1986
Monaco
27 Jan 1993
Bangladesh
3Jun 1986
Turkmenistan
14 Apr 1993
Italy
12Jun 1986
Czech Republic
15 Apr 1993
Kuwait
18 Jul 1986
Uzbekistan
24 Feb 1994
Saudi Arabia
21 Jul 1986
Malta
25 Mar 1994
Australia
10 Sep 1986
Croatia
6 May 1994
Madagascar
10 Sep 1986
Eritrea
27 May 1994
Canada
23 Sep 1986
Iran
17Junl994
Jordan
8 Oct 1986
Lebanon
14 Dec 1994
Argentina
1 Dec 1986
San Marino
3 Feb 1995
Netherlands
18 Dec 1986
Slovakia
20 Mar 1995
Brazil
21 Jan 1987
Uganda
7 Jul 1995
United Arab Emirates
18 Feb 1987
Kenya
5 Oct 1995
Mali
4 Mar 1987
Germany
2Jul 1996
Panama
22 May 1987
Belarus
24 Jul 1996
Cote d'lvoire
5Jun 1987
Libya
28 Oct 1996
United Kingdom
21 Aug 1987
Maldives
8 Apr 1997
Uruguay
11 Sep 1987
Bosnia & Herzegovina
9 May 1997
Guatemala
18 Sep 1987
Moldova
20Jun 1997
Greece
26 Oct 1987
Ghana
15 Jul 1997
Nepal
26 Oct 1987
China
23 Jul 1997
Cameroon
28 Jan 1988
Belize
24 Sep 1997
Lesotho
17 Marl 988
Israel
30 Sep 1997
Source: International Civil Aviation Organization, Legal Bureau, Montreal.
PART II
LAW OF NAVAL WARFARE
Chapter 5 — Principles and Sources of the Law of Armed Conflict
Chapter 6 — Adherence and Enforcement
Chapter 7 — The Law of Neutrality
Chapter 8 — The Law of Targeting
Chapter 9 — Conventional Weapons and Weapons Systems
Chapter 10 — Nuclear, Chemical, and Biological Weapons
Chapter 1 1 — Noncombatant Persons
Chapter 12 — Deception During Armed Conflict
CHAPTER 5
Principles and Sources of
the Law of Armed Conflict
5.1 WAR AND THE LAW
Article 2 of the United Nations Charter requires all nations to settle their
international disputes by peaceful means and to refrain from the threat or
use of force against the territorial integrity or political independence of other
nations. The United Nations Charter prohibits the use of force by member
nations except as an enforcement action taken by or on behalf of the United
Nations (as in the Gulf War) or as a measure of individual or collective
self-defense. It is important to distinguish between resort to armed conflict, and
the law governing the conduct of armed conflict. Regardless of whether the use
of armed force in a particular circumstance is prohibited by the United Nations
Charter (and therefore unlawful), the manner in which the resulting armed
1. United Nations Charter, arts. 2(3), 2(4), 42 & 51-53. These provisions concerning the use
of force form the basis of the modern rules governing the resort to armed conflict, or jus ad bellum.
See paragraph 4.1.1 and notes 7-9 thereunder (pp. 250 - 253). See also Kellogg-Briand Pact, or the
Treaty for the Renunciation of War as an Instrument of National Policy, Paris, 27 August 1928, 46
Stat. 2343, T.S. No. 796, 2 Bevans 732, 94 L.N.T.S. 57.
The relationship concerning resort to war (jus ad bellum), relations between combatant nations
during war (jus in bello), and the law of neutrality in the late 20th Century, is considered in
Greenwood, The Concept of War in Modern International Law, 36 Int'l & Comp. L.Q. 283
(1987). See also Dinstein, War, Aggression and Self-Defense (2d ed. 1994) at 155-61; Green, The
Contemporary Law of Armed Conflict (1993) at 59-60. Jus in bello is discussed further in note 4
(p. 290).
2. Wars violating these principles are often called "aggressive" or "illegal" wars. Military
personnel may not be lawfully punished simply for fighting in an armed conflict, even if their side is
clearly the aggressor and has been condemned as such by the United Nations. This rule finds firm
support in the Allied war crimes trials that followed World War II. For the crime of planning and
waging aggressive war (defined as a crime against peace, see paragraph 6.2.5, note 55 (p. 343)), the
two post- World War II International Military Tribunals punished only those high ranking civilian
and military officials engaged in the formulation of war-making policy. The twelve subsequent
Proceedings at Nuremberg rejected all efforts to punish lesser officials for this crime merely because
they participated in World War II. See DA Pam 27-161-2, at 221-51.
Because nations have traditionally claimed that their wars are wars of self-defense, the courts of the
Western Allies were unwilling to punish officials of the Axis powers for waging aggressive war if
the officials were not at the policy-making level of government. One of the American tribunals at
(continued...)
290 Commander's Handbook on the Law of Naval Operations
conflict is conducted continues to be regulated by the law of armed conflict.
(For purposes of this publication, the term "law of armed conflict" is
synonymous with "law of war.")
5.2 GENERAL PRINCIPLES OF THE LAW OF ARMED
CONFLICT
The law of armed conflict seeks to prevent unnecessary suffering and
destruction by controlling and mitigating the harmful effects of hostilities
2. (...continued)
Nuremberg stated, "we cannot say that a private citizen shall be placed in the position of being
compelled to determine in the heat of war whether his government is right or wrong, or, if it starts
right, when it turns wrong." Vie I.G. Farben Case, 8 TWC 1126, 10 LRTWC 39 (1949).
Since armed force can lawfully be used today only in individual or collective self-defense (or as an
enforcement action authorized by the United Nations Security Council in accordance with
Chapter VII of the U.N. Charter), the unlawful use of armed force constitutes a crime against
peace under international law. Crimes against peace are defined in art. 6 of the Charter of the
International Military Tribunal at Nuremberg and are discussed in paragraph 6.2.5, note 55
(p. 343).
The Charter of the International Military Tribunal convened at Nuremberg in 1945 empowered
the Tribunal to try individuals for international crimes, including initiation or waging of a war of
aggression as a crime against peace. This was confirmed as a principle of international law by the
U.N. General Assembly in 1946 (Resolution 95(1)) and by the International Law Commission in
1950. In 1974, the U.N. General Assembly adopted by consensus a definition of aggression for use
by the Security Council in determining if an act of aggression had been committed:
Aggression is the use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations, as set out in this Definition.
Resolution 3314 (XXIX), 29 U.N. GAOR, Supp. 31, v.l, U.N. Doc. A/9631, at 142 (1974);
Dep't St. Bull., 3 Deb. 1975, at 158-660; AFP 110-20, at 5-78 & 5-79.
This statement is amplified by a sries of examples of uses of armed force which, unless otherwise
justified in international law or determined by the Security Council not to be of sufficient gravity,
would permit the Security Council reasonably to consider to qualify as potential acts of aggression.
Among these examples are invasion, the use of any weapons by a nation against the territory of
another nation, the imposition of a blockade, an attack by the armed forces of one nation upon the
armed forces of another nation, or the sending of armed bands, irregulars or mercenaries against
another State. (See paragraph 7.7 (p. 390) regarding blockade.) Although neither the International
Military Tribunal judgment nor U.N. General Assembly Resolutions are primary sources of
international law (see Preface, note 4 (p. 3)), they are generally consistent with the current U.S.
view of aggression. Dep't St. Bull., 3 Feb. 1975, at 155-58.
3. See paragraph 6.2.5 (war crimes under international law) (p. 343).
4. Joint Pub. 1-02, at 206. The rules governing the actual conduct of armed conflict are
variously known as the jus in bello, the law of armed conflict (law of war), or international
humanitarian law. See paragraph 6.2.2, note 34 (p. 335).
(continued...)
Principles and Sources of the Law of Armed Conflict 291
4. (...continued)
As a matter of international law, application of the law of armed conflict between belligerents does
not depend on a declaration or other formal recognition of the existence of a state of "war," but on
whether an "armed conflict" exists, and if so, whether the armed conflict is of an "international" or
a "noninternational" character. As a matter of national policy, the Armed Forces of the United
States are required to comply with the law of armed conflict in the conduct of military operations
and related activities in armed conflict "however such conflicts are characterized." DOD Directive
5100.77, Subj: DOD Law of War Program (in draft as of 1 November 1997). See paragraph 5.4.1,
note 15 (p. 298) regarding the Lieber Code and also paragraph 6.1.2 (p. 324).
Although it is frequently difficult to determine when a situation involving violent activity becomes
an "armed conflict," there is general agreement that internal disturbances and tensions are not armed
conflicts. Examples of internal disturbances and tensions include:
- riots (i.e., all disturbances which from the start are not directed by a leader and have
no concerted intent)
- isolated and sporadic acts of violence (as distinct from military operations carried
out by armed forces or organized armed groups)
- other acts of a similar nature (such as mass arrests of persons because of their
behavior or political opinion).
GP II, art. 1(2); ICRC, Commentary on the Draft Additional Protocols to the Geneva
Conventions of August 12, 1949, at 133 (1973), quoted in Bothe, Partsch & Solf 628 n.9. The
ICRC Commentary (GP II) (para. 4477, at 1355) distinguishes internal disturbances from internal
tensions. "Internal disturbances" occur when the State uses armed force to maintain order.
"Internal tensions" refers to those circumstances when force is used as a preventive measure to
maintain respect for law and order.
"International" armed conflicts include cases of declared war or any other armed conflict between
two or more nations even if the state of war is not recognized by one of them. Common article 2.
All other armed conflicts are "noninternational armed conflicts," governed at least by common
article 3 of the 1949 Geneva Conventions, and by GP II for nations bound by it if the situation
meets the criteria set forth in art. 1 (1) thereof (i.e., there must be an armed conflict occurring in the
territory of the nation bound by GP II between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command, exercise such control over a part of
its territory as to enable them to carry out sustained and concerted military operations and to
implement GP II). The United States interprets GP II as applying to all conflicts covered by
common article 3, and encourages all other nations to do likewise. Letter of Transmittal, Jan. 29,
1987, Senate Treaty Doc. 100-2, at 7. See Annex A5-1 (p. 306). See also International
Humanitarian Law and Non-International Armed Conflicts, 1990 Int'l Rev. Red Cross 383-408;
Levie, The Law of Non-International Armed Conflict (1987). "Armed forces" are discussed in
paragraph 5.3, note 11 (p. 296). See paragraph 5.4.2, note 34 (p. 303) regarding the U.S. decision
not to seek ratification of GP I.
The spectrum of conflict, reflecting the threshhold criteria, is illustrated in Figure A5-1 (p. 314).
Among recent international armed conflicts are the Iran-Iraq War (1980-1988), the Libya-Chad
War (1987-1988), the China-Vietnam Conflict (1979), and the Soviet-Afghanistan War
(1979-88). Although some have categorized the latter as an internal conflict in which foreign
troops participated, others list it as an international conflict. Reisman & Silk, Which Law Applies
to the Afghan Conflict?, 82 Am. J. Int'l L. 459, 485-86 (1988) (Soviet invasion resisted by loyal
Afghan government troops met the criteria of common article 2(1), and was followed by
occupation meeting the criteria of common article 2(2)); Roberts, What is Military Occupation?,
(continued...)
292 Commander's Handbook on the Law of Naval Operations
through minimum standards of protection to be accorded to "combatants" and
to "noncombatants" and their property. (Se<
end, the law of armed conflict provides that:
to "noncombatants" and their property. (See paragraphs 5.3 and 11.1.) To that
1. Only that degree and kind of force, not otherwise prohibited by the law of
armed conflict, required for the partial or complete submission of the enemy with
a minimum expenditure of time, life, and physical resources may be applied.
4. (...continued)
55 Brit. Y.B. Intl'l L. 249, 278 (1984) (Soviet occupation may well have met the criteria of
common article 2(2)). Certainly the Falkland (Malvinas) Islands War between the United
Kingdom and Argentina (1982) and the Persian Gulf Conflict of 1990-1991 (Iraqi invasion of
Kuwait and the U.N.-authorized coalition response — e.g. OPERATION DESERT STORM)
constituted international armed conflicts. The U.S. has steadfastly held that the Vietnam War
(1961-1975) was an international armed conflict. U.S. Department of State, The Legality of
United States Participation in the Defense of Viet-Nam, 54 Dep't. of State Bull. 474 (March 28,
1966). For a wide ranging discussion of this issue as it pertains to Vietnam see The Vietnam War
and International Law, Am. Soc. Int'l L., 4 vols. (Falk ed. 1968-76). Among recent
non-international armed conflicts are the Nicaraguan Civil War (1979-90), the ongoing Sri Lanka
Civil War (1983-present), the Chechnya Separatist Conflict (1991-1997), and the Zaire (now
Congo) Civil War (1997).
5. As long as war occurs, the law of armed conflict remains an essential body of international
law. During such strife, the law of armed conflict provides common ground of rationality between
enemies. This body of law corresponds to the mutual interests of belligerents during conflict and
constitutes a bridge for a new understanding after the end of the conflict. The law of armed conflict
is intended to preclude purposeless, unnecessary destruction of life and property and to ensure that
violence is used only to defeat the enemy's military forces. The law of armed conflict inhibits
warfare from needlessly affecting persons or things of little military value. By preventing needless
cruelty, the bitterness and hatred arising from armed conflict is lessened, and thus it is easier to
restore an enduring peace. The legal and military experts who attempted to codify the laws of war
more than a hundred years ago reflected this when they declared that the final object of an armed
conflict is the "re-establishment of good relations and a more solid and lasting peace between the
belligerent States." Final Protocol of the Brussels Conference of 27 August 1874, Schindler &
Toman 26. See also Green, Why is There— The Law ofWar?, 5 Finn. Y.B. Int'l L. 1994 at 99-148.
6. This concept, often referred to as the principle of "necessity" or "military necessity," is
designed to limit the application of military force in armed conflict to that which is in fact required
to carry out a lawful military purpose. See Bothe, Partsch & Solf at 194-95. Too often, "military
necessity" is misunderstood and misapplied to support an application of military force that is
unlawful under the misapprehension that the "military necessity" of mission accomplishment
justifies that result. The Hostages Case (United States v. List et al.), 11 TWC 1253-54 (1950);
McDougal & Feliciano 523-25; AFP 110-31, at 1-5 & 1-6; FM 27-10, at 3 & 4. See also the
definition of "military necessity" in de Muliner, Handbook on the Law of War for Armed Forces
(1987) at Rule 352. In Tlie Hostages Case, the Court explained this principle in the following terms:
Military necessity has been invoked by the defendants as justifying the killing of
innocent members of the population and the destruction of villages and towns in the
occupied territory. Military necessity permits a belligerent, subject to the laws of
war, to apply any amount and kind of force to compel the complete submission of
the enemy with the least possible expenditure of time, life, and money. In general, it
sanctions measures by an occupant necessary to protect the safety of his forces and to
facilitate the success of his operations. It permits the destruction of life of armed
(continued...)
Principles and Sources of the Law of Armed Conflict 293
6. (...continued)
enemies and other persons whose destruction is incidentally unavoidable by the
armed conflicts of the war; it allows the capturing of armed enemies and others of
peculiar danger, but it does not permit the killing of innocent inhabitants for
purposes of revenge or the satisfaction of a lust to kill. The destruction of property to
be lawful must be imperatively demanded by the necessities of war. Destruction as an
end in itself is a violation of international law. There must be some reasonable
connection between the destruction of property and the overcoming of the enemy
forces. It is lawful to destroy railways, lines of communication, or any other property
that might be utilized by the enemy. Private homes and churches even may be
destroyed if necessary for military operations. It does not admit the wanton
devastation of a district or the willful infliction of suffering upon its inhabitants for
the sake of suffering alone.
11 TWC 1253-54, quoted in 10 Whiteman 386-87. See also paragraph 6.2.5.5.2 (military necessity)
(p. 356).
General Eisenhower recognized this distinction in a message on 29 December 1943 from him as
Allied Commander in the Mediterranean to "all commanders":
Nothing can stand against the argument of military necessity. That is an accepted
principle. But the phrase "military necessity" is sometimes used where it would be
more truthful to speak of military convenience or even of personal convenience. I do
not want it to cloak slackness or indifference. . . .
Historical Research Center, Maxwell Air Force Base, AL, File 622.610-2, Folder 2, 1944-45,
quoted in Schaffer, Wings of Judgment: American Bombing in World War II, at 50 (1985) and
Hapgood & Richardson, Monte Cassino 158 (1984). See a/so paragraph 8.5.1.6, note 122 (p. 425).
The principle of military necessity may be, and in many instances is, restricted in its application to
the conduct of warfare by other customary or conventional rules, i.e., military necessity is not a
justification which supersedes all other laws of armed conflict. The minority view that all rules of
warfare are subject to, and restricted by, the principle of military necessity has not been accepted by
the majority of American and English authorities. Furthermore, this opinion has not been accepted
by military tribunals. Indeed, it has been held by military tribunals that the plea of military necessity
cannot be considered as a defense for the violation of rules which lay down absolute prohibitions
(e.g., the rule prohibiting the killing of prisoners of war) and which provide no exception for those
circumstances constituting military necessity. Thus, one United States Military Tribunal, in
rejecting the argument that the rules of warfare are always subject to the operation of military
necessity, stated:
It is an essence of war that one or the other side must lose and the experienced
generals and statesmen knew this when they drafted the rules and customs of land
warfare. In short, these rules and customs of warfare are designed specifically for all
phases of war. They comprise the law for such emergency. To claim that they can be
wantonly — and at the sole discretion of any one belligerent — disregarded when he
considers his own situation to be critical, means nothing more or less than to abrogate
the laws and customs of war entirely.
The Krupp Trial (Trial of Alfred Felix Alwyn Krupp von Bohlen und Halbach and Eleven Others), 10
LRTWC 139 (1949).
(continued...)
294 Commander's Handbook on the Law of Naval Operations
2. The employment of any kind or degree of force not required for the purpose of
the partial or complete submission of the enemy with a minimum expenditure of
time, life, and physical resources, is prohibited.
3. Dishonorable (treacherous) means, dishonorable expedients, and dishonorable
conduct during armed conflict are forbidden.
6. (...continued)
However, there are rules of customary and conventional law which normally prohibit certain acts,
but which exceptionally allow a belligerent to commit these normally prohibited acts in
circumstances of military necessity. In conventional rules, the precise formulation given to this
exception varies. Some rules contain the clause that they shall be observed "as far as military
necessity (military interests) permits." Examples include GWS, art. 8(3) & GWS-Sea, art. 8(3)
(restricting activities of representatives or delegates of Protecting Powers); GWS, art. 33(2),
GWS-Sea, art. 28 (use of captured medical supplies); GWS, art. 32(2) (return of neutral persons);
GWS, art. 30(1) (return of captured medical and religious personnel); GC, arts. 16(2) (facilitating
search for wounded and sick), 55(3) (limiting verification of state of food and medical supplies in
occupied territories), 108(2) (limitations on relief shipments); GWS, art. 42(4), GPW, art. 23(4)
and GC, art. 18(4) (visibility of distinctive emblems). Other rules permit acts normally forbidden,
if "required" or "demanded" by the necessities of war. Examples include HR, art. 23(g), GWS,
art. 34(2) & GC, art. 53 (permitting destruction or seizure of property); GPW, art. 126(2) & GC,
art. 143(3) (limiting visits of representatives and delegates of Protecting Powers); GC, arts. 49(2)
(evacuation of protected persons from occupied territory), 49(5) (detention of protected persons
in areas exposed to dangers of war). Rules providing for the exceptional operation of military
necessity require a careful consideration of the relevant circumstances to determine whether or not
the application of otherwise excessive force is rendered necessary in order to protect the safety of a
belligerent's forces or to facilitate the success of its military operations. 10 Whiteman 302 (citing
NWIP 10-2, sec. 220(b)). See also paragraph 6.2.3 (p. 335) regarding reprisals.
7. See FM 27-10, at 3; AFP 110-31, at 1-6. This principle, directed against infliction of
unnecessary suffering or superflous injury, is referred to as the "principle of proportionality" or the
"principle of humanity." The opinion is occasionally expressed that the principles of necessity and
proportionality contradict each other in the sense that they serve opposing ends. This is not the
case. The principle of necessity allows the use of sufficient force to accomplish a lawful purpose
during armed conflict. It complements the principle of proportionality which disallows any kind
or degree of force not essential for the realization of that lawful purpose. Together, the principles
of necessity and proportionality make unlawful any use of force which needlessly or unnecessarily
causes or aggravates human suffering or physical destruction. The real difficulty arises not from the
actual meaning of the principles, but from their application in practice. 10 Whiteman 302 (citing
NWIP 10-2, sec. 220 n.9). The rule of proportionality has been articulated in GP I, arts. 51(5)(b)
and 57(2)(a)(iii), as prohibiting attacks
[W]hich may be expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which would be excessive in
relation to the concrete and direct military advantage anticipated.
See Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98 Mil. Law
Rev. 1982 at 91. The term "concrete and direct", as used in arts. 51 and 57, refers to "the
advantage anticipated from the specific military operation of which the attack is a part taken as a
whole and not from isolated or particular parts of the operation." Bothe, Partsch & Solf 311. See
also Solf, Protection of Civilians 128-35; paragraph 8.1.2.1 and notes 16-20 thereunder (incidental
injury and collateral damage) (p. 404).
8. See Chapter 12 and Bothe, Partsch & Solf at 201-207 regarding prohibited deceptions or
perfidy.
Principles and Sources of the Law of Armed Conflict 295
The law of armed conflict is not intended to impede the waging of hostilities.
Its purpose is to ensure that the violence of hostilities is directed toward the
enemy's forces and is not used to cause purposeless, unnecessary human misery
and physical destruction. In that sense, the law of armed conflict complements
and supports the principles of warfare embodied in the military concepts of
objective, mass, economy of force, surprise, and security. Together, the law of
armed conflict and the principles of warfare underscore the importance of
concentrating forces against critical military targets while avoiding the
expenditure of personnel and resources against persons, places, and things that
are militarily unimportant. However, these principles do not prohibit the
9. Although the U.S. Navy has not adopted as doctrine the Principles of War, useful
discussions of their application in naval tactics may be found in Hughes, Fleet Tactics 140-45 &
290-97 (1986); Eccles, Military Concepts and Philosophy 108-13 (1965); and Brown, The
Principles of War, U.S. Naval Inst. Proc, June 1949, at 621. The Marine Corps, Army and Air
Force have adopted variations of the principles of war as service doctrine: U.S. Marine Corps,
Marine Rifle Company/Platoon, FMFM 6-4, para. 1403 (1978); U.S. Air Force, Basic Aerospace
Doctrine, AFM 1-1, March 1992, vol. II at 9-15; Department of the Army, Operations, FM
100-5, at 2-4 to 2-5 (1993); Armed Forces Staff College, Joint Staff Officer's Guide, Pub 1, para.
101, at p. 1-3 (1993); Joint Pub 3-0, Doctrine for Joint Operations, 1 February 1995 at II-l. The
principles of war in any case are not a set of inflexible rules; rather they are "good tools to sharpen
the mind," and are essential elements in successful military operations. Eccles 113.
The principle of the objective provides that every military undertaking must have an objective, that
is, it must be directed toward a clearly defined goal and all activity must contribute to the
attainment of that goal. Military objectives necessarily support national objectives — in peace as
well as in war — and, more directly, support the national war aims during conflict. The law of
armed conflict supports this principle by assisting in defining what is politically and legally
obtainable.
The principle of concentration or mass states that to achieve success in war it is essential to concentrate
superior forces at the decisive place and time in the proper direction, and to sustain this superiority
at the point of contact as long as it may be required. With the law of armed conflict, this principle
serves, in part, to employ the proper economy of force at or in the decisive points and to enable
maximum total effective force to be exerted in achieving the objective.
Economy of force means that no more — or less — effort should be devoted to a task than is necessary to
achieve the objective. This implies the correct selection and use of weapons and weapon systems,
maximum productivity from available weapons platforms, and careful balance in the allocation of
tasks. This principle is consistent with the fundamental legal principle of proportionality.
Surprise results from creating unexpected situations or from taking courses of least probable
expectation — both considered from the enemy point of view and both designed to exploit the
enemy's consequent lack of preparedness. It permits the attaining of maximum effect from a
minimum expenditure of effort. The lawfulness of such techniques as deception supports surprise.
Security embraces all measures which must be taken to guard against any form of counter-stroke
which the enemy may employ to prevent the attainment of the objective or to obtain its own
objective. Security implies the gaining of enemy intelligence. Surveillance and spying are not
prohibited by international law including the law of armed conflict.
(continued...)
296 Commander's Handbook on the Law of Naval Operations
application of overwhelming force against enemy combatants, units and
material.
5.3 COMBATANTS AND NONCOMBATANTS
The law of armed conflict is based largely on the distinction to be made
between combatants and noncombatants. In accordance with this distinction,
the population of a nation engaged in armed conflict is divided into two general
classes: armed forces (combatants) and the civilian populace (noncombatants).
Each class has specific rights and obligations in time of armed conflict, and no
1 n
single individual can be simultaneously a combatant and a noncombatant.
The term "combatant" embraces those persons who have the right under
international law to participate directly in armed conflict during hostilities.
Combatants, therefore, include all members of the regularly organized armed
forces of a party to the conflict (except medical personnel, chaplains, civil defense
personnel, and members of the armed forces who have acquired civil defense
status), as well as irregular forces who are under responsible command and
subject to internal military discipline, carry their arms openly, and otherwise
distinguish themselves clearly from the civilian population.
9. (...continued)
Other principles of war are: unity of command which ensures that all efforts are focused on a
common goal or objective; maneuver which seeks to place the enemy in a position of disadvantage
through the flexible application of combat power; and offensive which, contemplates seizing,
retaining and exploiting the initiative.
10. 10 Whiteman 135 (citing NWIP 10-2, para. 221a). Chapter 1 1 discusses noncombatants in
detail. See HR, art. 3(2); GP I, art. 43(2).
11. The "armed forces" of a Party to an armed conflict include all organized armed forces,
groups and units which are under a command responsible to that Party for the conduct of its
subordinates, even if that Party is represented by a government or an authority not recognized by
an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter
alia, shall enforce compliance with the rules of international law applicable in armed conflict. GP I,
art. 43(1). Other requirements for combatant status are discussed in paragraph 11.7 (p. 489),
especially notes 52 & 53 and accompanying text. See also de Preux, Synopsis VII: Combatant and
prisoner-of-war status, 1989 Int'l Rev. Red Cross 43.
Persons acting on their own in fighting a private war, including gangs of terrorists acting on their
own behalf and not linked to an entity subject to international law, are not lawful combatants. See
paragraph 12.7.1 (p. 515), andBaxter, So-Called Unprivileged Belligerency: Spies, Guerrillas and
Saboteurs, 28 Brit. Y.B. Int'l L. 323 (1951), regarding illegal combatants.
On identification of combatants and noncombatants, see de Preux, Synopsis IV:
Identification — Fundamental Principle, 1985 Int'l Rev. Red Cross 364. For a discussion of the
obligation of members of an irregular force to carry their arms openly and otherwise distinguish
themselves from the civilian population, see paragraph 11.7 and note 53 thereunder (p. 491). On
respect for persons protected by the Geneva Conventions, see Green, Contemporary Law of
Armed Conflict, 1993, chaps. 10 & 11; de Preux, Synopsis IX: Respect for the Human Being in
the Geneva Conventions, 1989 Int'l Rev. Red Cross 217.
Principles and Sources of the Law of Armed Conflict 297
Conversely, the term "noncombatant" is primarily applied to those
individuals who do not form a part of the armed forces and who otherwise refrain
from the commission or direct support of hostile acts. In this context,
noncombatants and, generally, the civilian population, are synonymous. The
term noncombatants may, however, also embrace certain categories of persons
who, although members of or accompanying the armed forces, enjoy special
protected status, such as medical officers, corpsmen, chaplains, technical (i.e.,
contractor) representatives, and civilian war correspondents. (See Chapter 11.)
The term is also applied to armed forces personnel who are unable to engage in
12
combat because of wounds, sickness, shipwreck, or capture.
Under the law of armed conflict, noncombatants must be safeguarded against
injury not incidental to military operations directed against combatant forces and
other military objectives. In particular, it is forbidden to make noncombatants
13
the object of attack.
Because only combatants may lawfully participate directly in armed combat,
noncombatants that do so are acting unlawfully and are considered illegal
combatants. See paragraphs 11.5 (Medical Personnel and Chaplains) and 12.7.1
(Illegal Combatants).
5.4 SOURCES OF THE LAW OF ARMED CONFLICT
As is the case with international law generally, the principal sources of the law
of armed conflict are custom, as reflected in the practice of nations, and
international agreements.
5.4.1 Customary Law. The customary international law of armed conflict
derives from the practice of military and naval forces in the field, at sea, and in the
air during hostilities. When such a practice attains a degree of regularity and is
accompanied by the general conviction among nations that behavior in
conformity with that practice is obligatory, it can be said to have become a rule of
customary law binding upon all nations. It is frequently difficult to determine the
12. 10 Whiteman 135, citing NWIP 10-2, para. 221a n.12; Kalshoven, Noncombatant
Persons, in Robertson, at 304-24; Green, note 11, at chap. 12. See paragraph 11.1 (p. 481).
13. 10 Whiteman 135, citing NWIP 10-2. para. 221b; Kalshoven, Noncombatant Persons, in
Robertson, at 306-07. See paragraph 11.2 (protected status) (p. 481). For a discussion ofGP I arts.
48 & 51, see Bothe, Partsch & Solf at 280-86 & 296-318.
14. See Preface (p. 3). Evidence of the law of armed conflict may also be found in national
military manuals, judicial decisions, the writings of publicists, and the work of various international
bodies. Documents on the Laws of War 6-9 (Roberts & Guelffeds., 2d ed. 1989). With regard to
the importance of national military manuals as evidence of the law of armed conflict, see Reisman
& Lietzau, Moving International Law from Theory to Practice: the Role of Military Manuals in
Effectuating the Law of Armed Conflict, in Robertson, at 7-9; Green, paragraph 5.3, note 11
(p. 296), at chap. 2. For a listing of military manuals see Fleck at app. 3.
298 Commander's Handbook on the Law of Naval Operations
precise point in time at which a usage or practice of warfare evolves into a
customary rule of law. In a period marked by rapid developments in technology,
coupled with the broadening of the spectrum of conflict to encompass
insurgencies and state-sponsored terrorism, it is not surprising that nations often
disagree as to the precise content of an accepted practice of armed conflict and to
its status as a rule of law. This lack of precision in the definition and interpretation
of rules of customary law has been a principal motivation behind efforts to codify
the law of armed conflict through written agreements (treaties and
is
conventions.) However, the inherent flexibility of law built on custom and the
15. The roots of the present law of armed conflict may be traced back to practices of
belligerents which arose, and grew gradually, during the latter part of the Middle Ages, primarily as
a result of the influences of Christianity and chivalry. See Draper, The Interaction of Christianity
and Chivalry in the Historical Development of the Law of War, 1965, 5 Int'l Rev. Red Cross 3;
Meron, Henry's Wars and Shakespeare's Laws (1993); Meron, Shakespeare's Henry the Fifth and
the Law of War, 86 Am. J. Int'l L. 1 (1992); The Laws of War: Constraints on Warfare in the
Western World (Howard, Andreopoulus & Shulman eds. 1994) at 27-39. Unlike the savage
cruelty of former times, belligerents gradually adopted the view that the realization of the
objectives of war was in no way limited by consideration shown to the wounded, to prisoners, and
to private individuals who did not take part in the fighting. Progress continued during the
seventeenth and eighteenth centuries. Hugo Grotius codified the first rules of warfare in his Dejure
Belli ac Pads in 1642. These rules were widely adopted by nations, partly for ethical reasons, and
partly because the remnants of chivalry were still influential among aristocratic officers.
The most important developments in the laws of armed conflict took place in the period after
1850. The French Revolution and Napoleonic Wars first introduced the concept of the citizen
army. While during the 17th and 18th centuries the means of destruction were limited by the
absence of industrial might and combatants were limited to a small group of professional soldiers,
the distinction between combatants and noncombatants became blurred as armed forces began to
rely upon the direct support of those who remained at home. Limitations on the means of
destruction were also in transition, as by the middle of the 19th century the effect of the industrial
revolution was beginning to be felt on the battlefield. A combination of the increased killing power
of artillery, the inadequacy of field medical treatment and the outmoded infantry tactics resulted in
unprecedented battlefield losses. The public reaction to the particularly harsh experiences of the
Crimean War (1854-56) and the United States' Civil War, renewed the impetus for the imposition
of limits on war and demonstrated the need for mor. precise written rules of the law of armed
conflict to replace the vague customary rules. The horrors of the Battle of Solferino in northern
Italy in 1859 resulted in the formation of the Red Cross movement in 1863. Dunant, The Battle of
Solferino (1861). (See paragraph 6.2.2 (p. 334) for a description of the ICRC and its activities.) It
was in this light that the first conventions to aid the sick and wounded were concluded at Geneva in
1864. (See Pictet, The First Geneva Convention, 1989 Int'l Rev. Red Cross 277.) In the United
States, President Lincoln commissioned Dr. Francis Lieber, then a professor at Columbia College,
New York City, to draft a code for the use of the Union Army during the Civil War. His code was
revised by a board of Army officers, and promulgated by President Lincoln as General Orders No.
100, on 24 April 1863, as the Instructions for the Government of Armies of the United States in the
Field. (See Baxter, The First Modern Codification of the Law of War, 3 Int'l Rev. Red Cross 1963
at 171; Solf, Protection of Civilians 121; Hoffman, The Customary Law of Non-International
Armed Conflict: Evidence from the United States Civil War, 1990 Int'l Rev. Red Cross 322.) The
(continued...)
Principles and Sources of the Law of Armed Conflict 299
fact that it reflects the actual — albeit constantly evolving — practice of nations,
underscore the continuing importance of customary international law in the
development of the law of armed conflict.
5.4.2 International Agreements. International agreements, whether
denominated as treaties, conventions, or protocols, have played a major role in
the development of the law of armed conflict. Whether codifying existing rules
of customary law or creating new rules to govern future practice, international
agreements are a source of the law of armed conflict. Rules of law established
through international agreements are ordinarily binding only upon those nations
that have ratified or adhered to them. Moreover, rules established through the
treaty process are binding only to the extent required by the terms of the treaty
itself as limited by the reservations, if any, that have accompanied its ratification
15. (...continued)
Lieber Code strongly influenced the further codification of the law of armed conflict and the
adoption of similar regulations by many nations, including the Oxford Manual of 1880;
Declaration of Brussels of 1874; and the United States Naval War Code of 1900, and had a great
influence on the drafters of Hague Convention No. II (1899), replaced by Hague Convention IV
(1907) regarding the Laws and Customs ofWar on Land. The 1907 Hague Regulations annexed to
Hague IV have been supplemented by the 1949 Geneva Convention Relative to Protection of
Civilians in Time ofWar, the 1949 Convention Relative to the Treatment of Prisoners of War, the
1977 Protocols Additional to the 1949 Geneva Conventions, and the 1980 Conventional
Weapons Convention, as amended. The principles of customary international law codified in such
treaties are identified in the relevant notes to the text.
In the past half century there has been a marked tendency to include among the sources of the rules
of warfare certain principles of law adopted by many nations in their domestic legislation. The
Statute of the International Court ofjustice includes within the sources of international law which
it shall apply, "the general principles of law recognized by civilized nations." Statute of the I.C.J.,
art. 38, para. I.e. In the judgment rendered in Tlie Hostages Ca^e, the United States Military
Tribunal stated:
The tendency has been to apply the term "customs and practices accepted by
civilized nations generally, as it is used in international law, to the laws of war only.
But the principle has no such restricted meaning. It applies as well to fundamental
principles ofjustice which have been accepted and adopted by civilized nations
generally. In determining whether such a fundamental rule ofjustice is entitled to be
declared a principle of international law, an examination of the municipal laws of
states in the family of nations will reveal the answer. If it is found to have been
accepted generaDy as a fundamental rule ofjustice by most nations in their municipal
law, its declaration as a rule of international law would seem to be fully justified.
United States v. List et al, 11 TWC 1235 (1950).
16. The role of customary international law in developing the law of armed conflict is cogently
discussed in the introduction to Documents on the Law of War, note 14 (p. 297), at 4-6. See
Meron, Human Rights and Humanitarian Norms as Customary Law (1989) and Meron, The
Geneva Conventions As Customary Law, 81 Am. J. Int'l L. 348 (1987). See also Bruderlein,
Custom in International Humanitarian Law, 1991 Int'l Rev. Red Cross 579.
300 Commander's Handbook on the Law of Naval Operations
17
or adherence by individual nations. Conversely, to the extent that such rules
codify existing customary law or otherwise come, over time, to represent a
general consensus among nations of their obligatory nature, they are binding
upon party and non-party nations alike.
Principal among the international agreements reflecting the development and
codification of the law of armed conflict are the Hague Regulations of 1907, the
17. Vienna Convention on the Law of Treaties, art. 21, reprinted in 8 Int'l Leg. Mat'ls 679
(1969). Numerous multilateral agreements contain a provision similar to that contained in article
28 of Hague Convention No. XIII (1907) that "The provisions of the present Convention do not
apply except between the Contracting Powers, and only if all the belligerents are parties to the
Convention." The effects of this so called "general participation" clause have not been as
far-reaching as might be supposed. In World Wars I and II and the Korean War, belligerents
frequently affirmed their intention to be bound by agreements containing the general participation
clause regardless of whether or not the strict requirements of the clause were actually met. In
practice, prize courts during and after WW I disregarded the nonparticipation of non-naval
belligerents. Tlie Blood [1922] 1 A.C. 313.
18. Certain conventions have been generally regarded either as a codification of pre-existing
customary law or as having come to represent, through widespread observance, rules of law
binding upon all States. Both the International Military Tribunals at Nuremberg and for the Far
East treated the general participation clause in Hague Convention No. IV (1907), Respecting the
Laws and Customs ofWar on Land, as irrelevant. They also declared that the general principles laid
down in the 1929 Geneva Convention relative to the Treatment of Prisoners of War, which does
not contain a general participation clause, were binding on signatories and nonsignatories alike.
Nazi Conspiracy and Aggression: Opinion and Judgment 83, U.S. Naval War College, International
Law Documents 1946-1947, at 281-82 (1948); IMTFE, Judgment 28, U.S. Naval War College,
International Law Documents 1948-49, at 81 (1950). Art. 2, para. 3, of all four 1949 Geneva
Conventions states:
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in their
mutual relations. They shall furthermore be bound by the Convention in relation to
the said Power, if the latter accepts and applies the provisions thereof.
Similar provisions are contained in art. 96 of GP I and art. 7 of the 1980 Conventional Weapons
Convention, as amended.
This subject is explored in detail in Meron, The Geneva Conventions as Customary Law, 81 Am.
J. Int'l L. 348 (1987); Meron, Human Rights and Humanitarian Norms as Customary Law (1989).
Cf. Solf, Protection of Civilians 124, text accompanying nn. 39-41.
For efforts to identify those provisions of GP I which codify existing international law, see Penna,
Customary International Law and Protocol I: An Analysis of Some Provisions, in Studies and
Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 201
(Swinarski ed. 1984); Cassese, The Geneva Protocols of 1977 on the Humanitarian Law of Armed
Conflict and Customary International Law, 3 UCLA Pac. Bas. LJ. 55-118 (1984) (GP I and II);
The Sixth Annual American Red Cross- Washington College of Law Conference on International
Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols
Additional to the 1949 Geneva Conventions, 2 Am. U.J. Int'l L. & Policy 422-28 (1987) (remarks
of U.S. Department of State Deputy Legal Adviser Matheson); Hogue, Identifying Customary
International Law of War in Protocol I: A Proposed Restatement, 13 Loy. L.A. Int'l & Comp. L.J.
279 (1990).
Principles and Sources of the Law of Armed Conflict 301
Gas Protocol of 1925, the Geneva Conventions of 1949 for the Protection of
War Victims, the 1954 Hague Cultural Property Convention, the Biological
Weapons Convention of 1972, and the Conventional Weapons Convention of
1980. Whereas the 1949 Geneva Conventions and the 1977 Protocols
Additional thereto address, for the most part, the protection of victims of war,
the Hague Regulations, the Geneva Gas Protocol, 1993 Chemical Weapons
Convention, Hague Cultural Property Convention, Biological Weapons
Convention, and the Conventional Weapons Convention are concerned,
19
primarily, with controlling the means and methods of warfare. The most
significant of these agreements (for purposes of this publication) are listed
chronologically as follows:
1 . 1907 Hague Convention Respecting the Laws and Customs of War on Land
(Hague IV)
2. 1907 Hague Convention Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land (Hague V)
19. The major treaties on naval warfare presently in force date back to 1907, before the large
scale use of submarines and aircraft in naval operations. The 1936 London Protocol on submarine
warfare resulted from attempts by traditionalists to require submarines, which at that time generally
attacked while on the surface, to adhere to rules governing methods of attack applicable to surface
combatants. See Levie, Submarine Warfare: With Emphasis on the 1936 London Protocol, in
Grunawalt at 41-48. The GWS-Sea, as supplemented by portions of GP I, develops only the rules
on the protection of the wounded, sick and shipwrecked at sea. In large measure, the law of naval
warfare continues to develop in its traditional manner through the practice of nations ripening into
customary (as opposed to treaty) law. A series of meetings of experts, sponsored by the
International Institute of Humanitarian Law, San Remo, Italy commencing in 1987, led to the San
Remo Manual on International Law Applicable to Armed Conflicts at Sea, June 1994. The Manual
and accompanying explanation of its provisions may be found in San Remo Manual on
International Law Applicable to Armed Conflicts at Sea, Prepared by International Lawyers and
Naval Experts Convened by the International Institute of Humanitarian Law (Doswald-Beck ed.
1995). See Robertson, An International Manual for the Law of Armed Conflict at Sea, Duke L.
Mag., Winter 1995, at 14-18.
The rruitary rr.arua!: o:: nazal waifaif A°re, until recently, antiquated. See U.S. Navy, Law of
Naval Warfare, NWIP 10-2 (195b; (set ^dt in its entirety in the appendix to Tucker), which was
rcpV,ed by the Commander's Handbook on the Law of Naval Operations, NWP 9 (1987), NWP
9 Revision A/FMFM 1-10 (1989) (set out in its entirety in the Appendix to Robertson) and this
present mi n.'al. See also chaps. 8-1 1 of the Royal Australian Navy, Manual of the Law of the Sea,
ABR 5179 (1983). New manuals on the law of naval warfare have been recently promulgated or
are in preparation by a number of other nations, including the United Kingdom, Canada,
Germany, Japan, Italy, anH Russia.
20. The general principles of Hague IV reflect customary international law. See cases cited in
note 18 (p. 300), and Solf, Protection of Civilians 123 text at n.41. Hague IV is discussed in
Chapters 8, 9, 1 1 & 12 passim. But see Lowe, The Commander's Handbook on the Law of Naval
Operations and the Contemporary Law of the Sea, in Robertson, at 130.
21. Hague V is discussed in Chapter 7 (The Law of Neutrality).
302 Commander's Handbook on the Law of Naval Operations
3. 1907 Hague Convention Relative to the Laying of Automatic Submarine
Contact Mines (Hague VIII)
4. 1907 Hague Convention Concerning Bombardment by Naval Forces in
23
Time of War (Hague IX)
5 . 1 907 Hague Convention Relative to Certain Restrictions with Regard to the
24
Exercise of the Right of Capture in Naval War (Hague XI)
6. 1907 Hague Convention Concerning the Rights and Duties of Neutral
25
Powers in Naval War (Hague XIII)
7. 1925 Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous, or Other Gases, and of Bacteriological Methods of Warfare
8. 1936 London Protocol in Regard to the Operations of Submarines or Other
War Vessels with Respect to Merchant Vessels (Part IV of the 1930 London Naval
27
Treaty)
9. 1949 Geneva Convention (I) for the Amelioration of the Condition of the
*28
Wounded and Sick in Armed Forces in the Field
10. 1949 Geneva Convention (II) for the Amelioration of the Condition of
*29
Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea
11. 1949 Geneva Convention (III) relative to the Treatment of Prisoners of
*30
War JU
22. Hague VIII is discussed in paragraphs 9.2 (naval mines) (p. 441) and 9.4 (torpedoes)
(p. 9-14).
23. Hague IX is discussed in paragraphs 8.5 (bombardment) (p. 422) and 11.9.3 (Hague
symbol) (p. 498).
24. Hague XI is mentioned in paragraph 8.2.3, notes 72, 74, & 78 (pp. 417 and 418).
25. Hague XIII is discussed in Chapter 7.
26. The 1925 Geneva Gas Protocol is discussed in paragraph 10.3 (chemical weapons) (p. 466).
27. The 1936 London Protocol is discussed in paragraphs 8.2.2.2 (destruction of enemy
merchant vessels) (p. 410) and 8.3.1 (submarine warfare) (p. 419).
28. The 1949 Geneva Wounded and Sick Convention is discussed in paragraph 11.4
(wounded, sick and shipwrecked) (p. 484). See Table A5-1 (p. 315) for a listing of the nations that
are party to the 1949 Geneva Conventions, I, II, III and IV.
29. The 1949 Geneva Wounded, Sick and Shipwrecked Convention is discussed in paragraph
11.4 (wounded, sick and shipwrecked) (p. 484).
30. The general principles (but not the details) of the 1929 Geneva Prisoners of War
Convention, which are repeated in the 1949 Geneva Prisoners of War Convention, have been
held to be declaratory of customary international law. See note 18 (p. 300); FM 27-10, para. 6. The
1949 Geneva Prisoners of War Convention is discussed in paragraph 11.7 (prisoners of war)
(p. 489).
Principles and Sources of the Law of Armed Conflict 303
12. 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons
*31
in Time of War
13. 1954 Hague Convention for the Protection of Cultural Property in the event
of armed conflict
14. 1972 Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their
Destruction
15. 1977 Protocol Additional to the Geneva Conventions of 1949 and Relating
to the Protection of Victims of International Armed Conflict (Additional Protocol
*34
I) ^
31. The 1949 Geneva Civilians Convention is discussed in paragraph 11.8 (interned persons)
(p. 495).
32. The 1954 Hague Cultural Property Convention and the 1935 Roerich Pact are discussed
in paragraph 11.9.2 (other protective symbols) (p. 497).
33. The 1972 Biological Weapons Convention is discussed in paragraph 10.4 (biological
weapons) (p. 477).
34. The President decided not to submit GP I to the Senate for its advice and consent to
ratification. 23 Weekly Comp. Pres. Doc. 91 (29 Jan. 1987), 81 Am. J. Int'l L. 910. France
(Schindler & Toman 709) and Israel have also indicated their intention not to ratify GP I. The U.S.
position on GP I is set forth in Senate Treaty Doc. No. 100-2, reprinted in 26 Int'l Leg. Mat'ls 561
(1987) and Annex A5-1 (p. 306). Other sources opposing U.S. ratification include Roberts, The
New Rules for Waging War: The Case Against Ratification ofAdditional Protocol 1, 26 Va.J. Int'l
L. 109 (1985); Feith, Law in the Service of Terror — The Strange Case of the Additional Protocol,
1 The National Interest, Fall 1985, at 36; Sofaer, Terrorism and the Law, 64 Foreign Affairs,
Summer 1986, at 901; Feith, Moving Humanitarian Law Backwards, 19 Akron L. Rev. 531
(1986); The Sixth Annual American Red Cross-Washington College of Law Conference on
International Humanitarian Law: A Workshop on Customary International Law and the 1977
Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. Int'l L. & Policy 460 (1987)
(remarks of U.S. Department of State Legal Adviser Sofaer); Sofaer, The Rationale for the United
States Decision, 82 Am. J. Int'l L. 784 (1988); Parks, Air War and the Law of War, 32 A.F.L. Rev.
1, 89-225 (1990). Contra, Aldrich, Progressive Development of the Law of War: A Reply to
Criticisms of the 1977 Geneva Protocol I, 26 Va.J. Int'l L. 693 (1986); Solf, Protection of Civilians
Against the Effects of Hostilities Under Customary International Law and Under Protocol 1, 1 Am.
Univ. J. Int'l L. & Policy 117 (1986); Solf, A Response to Douglas J. Feith's Law in the Service of
Terror — The Strange Case of the Additional Protocol, 20 Akron L. Rev. 261 (1986); Gasser,
Prohibition of Terrorist Acts in International Humanitarian Law, 26 Int'l Rev. Red Cross 200,
210-212 (Jul.-Aug. 1986); Gasser, An Appeal for Ratification by the United States, 81 Am. J. Int'l
L. 912 (1987); Gasser, Letter to the Editor in Chief, 83 Am. J. Int'l L. 345 (1989); Bagley, 1 1 Loy.
L.A. Int'l & Comp. L J. 439 (1989); Aldrich, Prospects for United States Ratification ofAdditional
Protocol I to the 1949 Geneva Conventions, 85 Am. J. Int'l L. 1 (1991). See also Levie, The 1977
Protocol I and the United States, 38 St. Louis U. Law J. 469 (1994), reprinted in Schmitt & Green at
chap. XVII.
As of 15 October 1997, 147 nations were party to GP I, including NATO members Belgium,
Canada, Denmark, Germany, Greece, Iceland, Italy, Luxembourg, Netherlands, Norway and
(continued...)
304 Commander's Handbook on the Law of Naval Operations
16. 1977 Protocol Additional to the Geneva Conventions of 1949 and Relating
to the Protection of Victims of Non-International Armed Conflicts (Additional
Protocol II)*35
17. 1980 Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be Deemed to be Excessively Injurious or to
have Indiscriminate Effects
34. (...continued)
Spain; the Republic of Korea; Australia; New Zealand; Russia and the former Warsaw Pact
nations; Austria, Finland, Sweden and Switzerland (each of which has proclaimed itself as neutral
under the doctrine of permanent neutrality); as well as China, Cuba, DPRK and Libya. GP I is in
force as between those nations party to it. See the complete listing at Table A5-1 (p. 315).
The travaux preparatories of GP I are organized by article and published in Levie, Protection of War
Victims: Protocol I to the 1949 Geneva Conventions (4 vols. 1979-81 and Supp.). See also Bothe,
Partsch & Solf at 1-603, and ICRC, Commentary (GP I) 19-1304.
It is important that U.S. military operational lawyers are aware that U.S. coalition partners in a
future conflict will likely be party to GP I and bound by its terms. See also Matheson, note 18
(p. 300) and Annex A5-1 (final paragraph of p. 308).
35. The President submitted GP II to the Senate for its advice and consent to ratification on 29
January 1987. Sen. Treaty Doc. 100-2, 23 Weekly Comp. Pres. Doc. 91; 26 Int'l Leg. Mat'ls 561
(1987), Annex A5-1 (p. 306). The proposed statements of understanding and reservations to GP II
are analyzed in Smith, New Protections for Victims of International [sic] Armed Conflicts: The
Proposed Ratification of Protocol II by the United States, 120 Mil. L. Rev. 59 (1988).
36. The 1980 Conventional Weapons Convention, reprinted in 19 Int'l Leg. Mat'ls 1524
(1980); AFP 110-20 at 3-177, is discussed in paragraphs 9.1.1 (undetectable fragments) (p. 438),
9.3 (land mines) (p. 448), 9.6 (booby traps and other delayed action devices) (p. 451), 9.7
(incendiary weapons) (p. 452) and 9.8 (directed energy devices) (p. 452). The Convention
originally included three separate protocols, e.g., Protocol on Non-Detectable Fragements
(Protocol I); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
Other Devices (Protocol II); and Protocol on Prohibitions or Restrictions on the Use of
Incendiary Weapons (Protocol III). The United States became party to the Convention and
Protocols I and II on 24 September 1995, but declined to ratify Protocol III at that time. At the First
Review Conference (September 1995-May 1996), Protocol II was substantially amended and a
new Protocol on Blinding Laser Weapons (Protocol IV) was adopted. On 5 January 1997,
President Clinton submitted the amended Protocol II, the original Protocol III (with a
reservation), and new Protocol IV to the Senate for its advice and consent to their ratification. See
notes 36, 44 & 45 accompanying paragraphs 9.3 (land mines) (p. 448), 9.7 (incendiary weapons)
(p. 452) and 9.8 (directed energy devices) (p. 453). See also Nash, Contemporary Practice of the
United States Relating to International Law, 91 Am. J. Int'l L. 325 (1997). As of 15 October 1997,
71 nations, including the U.S., U.K., Germany, Italy, Denmark, France, Netherlands, Norway,
Australia, Japan, China, Russia and other ex- Warsaw Pact nations, and the neutral nations, have
ratified the Conventional Weapons Convention (and two or more of its four protocols) , and it is in
force as between those nations with respect to commonly ratified protocols. (For a current listing
of parties to the Convention and its Protocols see www.icrc.ch/icrcnews).
The travaux preparatories of the "umbrella" treaty and Protocol I (non-detectable fragments) are set
forth in Roach, Certain Conventional Weapons Convention: Arms Control or Humanitarian
Law?, 105 Mil. L. Rev. 1; of Protocol II (land mines) in Camahan, The Law of Land Mine
Warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons, id. at
(continued...)
Principles and Sources of the Law of Armed Conflict 305
18. 1993 Convention on the Prohibition of Development, Production,
. 37
Stockpiling and Use of Chemical Weapons and on their Destruction.
An asterisk (*) indicates that signature or ratification of the United States was
subject to one or more reservations or understandings. The United States is a
party to, and bound by, all of the foregoing conventions and protocols, except
numbers 13, 15, 16 and 18. The United States has decided not to ratify number
38
15 (Additional Protocol I). The United States has ratified number 17,
Protocols I and II, but has not ratified Protocol III.
5.5 RULES OF ENGAGEMENT39
During wartime or other periods of armed conflict, U.S. rules of engagement
reaffirm the right and responsibility of the operational commander generally to
seek out, engage, and destroy enemy forces consistent with national objectives,
strategy, and the law of armed conflict.
36. (...continued)
73; and of Protocol III (incendiary weapons) in Parks, The Protocol on Incendiary Weapons, 30
Int'l Rev. Red Cross 535 (Nov. -Dec. 1990). See also Fenrick, The Law of Armed Conflict: The
CUSHIE Weapons Treaty, 11 Can. Def. Q., Summer 1981, at 25; Fenrick, New Developments
in the Law Concerning the Use of Conventional Weapons in Armed Conflict, 19 Can. Y.B. Int'l
L. 229 (1981); Schmidt, The Conventional Weapons Convention: Implication for the American
Soldier, 24 A.F.L. Rev. 279 (1984); Rogers, A Commentary on the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices, 26 Mil. L. & L. of War Rev.
185 (1987); and Symposium, Tenth Anniversary of the 1980 Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons, 30 Int'l Rev. Red Cross 469-577
(Nov.-Dec. 1990).
37. The 1993 Chemical Weapons Convention has since been ratified by the U.S. (24 April
1997). The Convention is discussed in paragraph 10.3.1.2 (p. 10-13).
38. Six of the 1907 Hague Conventions entered into force for the U.S. in 1909, while the four
Geneva Conventions of August 12, 1949 entered into force for the United States in 1956. The
Administration is reconsidering whether to submit the 1954 Hague Cultural Property
Convention to the Senate for its advice and consent to ratification.
39. See Preface and paragraph 4.3.2.2 (p. 263).
40. Accordingly, wartime rules of engagement may include restrictions on weapons and
targets, and provide guidelines to ensure the greatest possible protection for noncombatants
consistent with military necessity. Roach, Rules of Engagement, Nav. War Coll. Rev., Jan. -Feb.
1983, at 49; Phillips, ROE: A Primer, Army Lawyer, July 1993 at 21-23; Grunawalt, The JCS
Standing Rules of Engagement: A Judge Advocate's Primer, 42 Air Force Law Rev. 245 (1 997) .
306 Commander's Handbook on the Law of Naval Operations
ANNEX A5-1
LETTER OF TRANSMITTAL AND LETTER OF SUBMITTAL
RELATING TO PROTOCOL II ADDITIONAL TO THE GENEVA
CONVENTIONS OF 12 AUGUST 1949.
LETTER OF TRANSMITTAL
The White House, January 29, 1987.
To the Senate of the United States
I transmit herewith, for the advice and consent of the Senate to ratification,
Protocol II Additional to the Geneva Conventions of 12 August 1949,
concluded at Geneva on June 10, 1977. 1 also enclose for the information of the
Senate the report of the Department of State on the Protocol.
The. United States has traditionally been in the forefront of efforts to codify
and improve the international rules of humanitarian law in armed conflict, with
the objective of giving the greatest possible protection to victims of such
conflicts, consistent with legitimate military requirements. The agreement that I
am transmitting today is, with certain exceptions, a positive step toward this goal.
Its ratification by the United States will assist us in continuing to exercise
leadership in the international community in these matters.
The Protocol is described in detail in the attached report of the Department of
State. Protocol II to the 1949 Geneva Conventions is essentially an expansion of
the fundamental humanitarian provisions contained in the 1949 Geneva
Conventions with respect to non-international armed conflicts, including
humane treatment and basic due process for detained persons, protection of the
wounded, sick and medical units, and protection of noncombatants from attack
and deliberate starvation. If these fundamental rules were observed, many of the
worst human tragedies of current internal armed conflicts could be avoided. In
particular, among other things, the mass murder of civilians is made illegal, even
if such killings would not amount to genocide because they lacked racial or
religious motives. Several Senators asked me to keep this objective in mind when
adopting the Genocide Convention. I remember my commitment to them.
This Protocol makes clear that any deliberate killing of a noncombatant in the
course of a non-international armed conflict is a violation of the laws of war and a
crime against humanity, and is therefore also punishable as murder.
While I recommend that the Senate grant advice and consent to this
agreement, I have at the same time concluded that the United States cannot ratify
a second agreement on the law of armed conflict negotiated during the same
Principles and Sources of the Law of Armed Conflict 307
period. I am referring to Protocol I additional to the 1949 Geneva Conventions,
which would revise the rules applicable to international armed conflicts. Like all
other efforts associated with the International Committee of the Red Cross, this
agreement has certain meritorious elements. But Protocol I is fundamentally and
irreconcilably flawed. It contains provisions that would undermine
humanitarian law and endanger civilians in war. One of its provisions, for
example, would automatically treat as an international conflict any so-called
"war of national liberation." Whether such wars are international or
non-international should turn exclusively on objective reality, not on one's view
of the moral qualities of each conflict. To rest on such subjective distinctions
based on a war's alleged purposes would politicize humanitarian law and
eliminate the distinction between international and non-international conflicts.
It would give special status to "wars of national liberation," an ill-defined
concept expressed in vague, subjective, politicized terminology. Another
provision would grant combatant status to irregular forces even if they do not
satisfy the traditional requirements to distinguish themselves from the civilian
population and otherwise comply with the laws of war. This would endanger
civilians among whom terrorists and other irregulars attempt to conceal
themselves. These problems are so fundamental in character that they cannot be
remedied through reservations, and I therefore have decided not to submit the
Protocol to the Senate in any form, and I would invite an expression of the sense
of the Senate that it shares this view. Finally, the Joint Chiefs of Staff have also
concluded that a number of the provisions of the Protocol are militarily
unacceptable.
It is unfortunate that Protocol I must be rejected. We would have preferred to
ratify such a convention, which as I said contains certain sound elements. But we
cannot allow other nations of the world, however numerous, to impose upon us
and our allies and friends an unacceptable and thoroughly distasteful price for
joining a convention drawn to advance the laws of war. In fact, we must not, and
need not, give recognition and protection to terrorist groups as a price for
progress in humanitarian law.
The time has come for us to devise a solution for this problem, with which the
United States is from time to time confronted. In this case, for example, we can
reject Protocol I as a reference for humanitarian law, and at the same time devise
an alternative reference for the positive provisions of Protocol I that could be of
real humanitarian benefit if generally observed by parties to international armed
conflicts. We are therefore in the process of consulting with our allies to develop
appropriate methods for incorporating these positive provisions into the rules
that govern our military operations, and as customary international law. I will
advise the Senate of the results of this initiative as soon as it is possible to do so.
308 Commander's Handbook on the Law of Naval Operations
I believe that these actions are a significant step in defense of traditional
humanitarian law and in opposition to the intense efforts of terrorist
organizations and their supporters to promote the legitimacy of their aims and
practices. The repudiation of Protocol I is one additional step, at the ideological
level so important to terrorist organizations, to deny these groups legitimacy as
international actors.
Therefore, I request that the Senate act promptly to give advice and consent to
the ratification of the agreement I am transmitting today, subject to the
understandings and reservations that are described more fully in the attached
report. I would also invite an expression of the sense of the Senate that it shares
the view that the United States should not ratify Protocol I, thereby reaffirming
its support for traditional humanitarian law, and its opposition to the
politicization of the law by groups that employ terrorist practices.
RONALD REAGAN
Principles and Sources of the Law of Armed Conflict 309
LETTER OF SUBMITTAL
DEPARTMENT OF STATE,
Washington, December 13, 1986.
THE PRESIDENT
The White House.
THE PRESIDENT: I have the honor to submit to you, with a view to
transmission to the Senate for its advice and consent to ratification, Protocol II
Additional to the Geneva Conventions of 12 August 1949, concluded at Geneva
on June 10, 1977.
PROTOCOL II
Protocol II to the 1949 Geneva Conventions was negotiated by diplomatic
conference convened by the Swiss Government in Geneva, which met in four
annual sessions from 1974-77. This Protocol was designed to expand and refine
the basic humanitarian provisions contained in Article 3 common to the four
1949 Geneva Conventions with respect to non-international conflicts. While
the Protocol does not (and should not) attempt to apply to such conflicts all the
protections prescribed by the Conventions for international armed conflicts,
such as prisoner-of-war treatment for captured combatants, it does attempt to
guarantee that certain fundamental protections be observed, including: (1)
humane treatment for detained persons, such as protection from violence,
torture, and collective punishment; (2) protection from intentional attack,
hostage-taking and acts of terrorism of persons who take no part in hostilities, (3)
special protection for children to provide for their safety and education and to
preclude their participation in hostilities, (4) fundamental due process for persons
against whom sentences are to be passed or penalties executed; (5) protection and
appropriate care for the sick and wounded, and medical units which assist them;
and (6) protection of the civilian population from military attack, acts of terror,
deliberate starvation, and attacks against installations containing dangerous
forces. In each case, Protocol II expands and makes more specific the basic
guarantees of common Article 3 of the 1949 Conventions. Its specific provisions
are described in greater detail in the attached section-by-section analysis.
The final text of Protocol II did not meet all the desires of the United States
and other western delegations. In particular, the Protocol only applies to internal
conflicts in which dissident armed groups are under responsible command and
exercise control over such a part of the national territory as to carry out sustained
31 0 Commander's Handbook on the Law of Naval Operations
and concerted military operations. This is a narrower scope than we would have
desired, and has the effect of excluding many internal conflicts in which dissident
armed groups occupy no significant territory but conduct sporadic guerrilla
operations over a wide area. We are therefore recommending that U.S.
ratification be subject to an understanding declaring that the United States will
apply the Protocol to all conflicts covered by Article 3 common to the 1949
Conventions (and only such conflicts), which will include all non-international
armed conflicts as traditionally defined (but not internal disturbances, riots and
sporadic acts of violence). This understanding will also have the effect of treating
as non-international these so-called "wars of national liberation" described in
Article 1 (4) of Protocol I which fail to meet the traditional test of an international
conflict.
Certain other reservations or understandings are also necessary to protect U.S.
military requirements. Specifically, as described in greater detail in the attached
annex, a reservation to Article 10 is required to preclude the possibility that it
might affect the administration of discipline of U.S. military personnel under
The Uniform Code of Military Justice, under the guise of protecting persons
purporting to act in accordance with "medical ethics." However, this is
obviously not intended in any way to suggest that the United States would
deliberately deny medical treatment to any person in need of it for political
reasons or require U.S. medical personnel to perform procedures that are
unethical or not medically indicated.
Also, we recommend an understanding with respect to Article 16 to confirm
that the special protection granted by that article is required only for a limited
class of objects that, because of their recognized importance, constitute a part of
the cultural or spiritual heritage of peoples, and that such objects will lose their
protection if they are used in support of the military effort. This understanding is
generally shared by our allies, and we expect it to appear in the ratification
documents of many of them.
Finally, we recommend an understanding to deal with any situation in which
the United States may be providing assistance to a country which has not ratified
Protocol II and would therefore feel under no obligation to comply with its
terms in the conduct of its own operations. Our recommended understanding
would make clear that our obligations under the Protocol would not exceed
those of the State being assisted. The United States would of course comply with
the applicable provisions of the Protocol with respect to all operations conducted
by its own armed forces.
With the above caveats, the obligations contained in Protocol II are no more
than a restatement of the rules of conduct with which U.S. military forces would
almost certainly comply as a matter of national policy, constitutional and legal
protections, and common decency. These obligations are not uniformly
Principles and Sources of the Law of Armed Conflict 31 1
observed by other States, however, and their universal observance would
mitigate many of the worst human tragedies of the type that have occurred in
internal conflicts of the present and recent past. I therefore strongly recommend
that the United States ratify Protocol II and urge all other States to do likewise.
With our support, I expect that in due course the Protocol will be ratified by the
great majority of our friends, as well as a substantial preponderance of other
States.
The Departments of State, Defense, and Justice have also conducted a
thorough review of a second law-of-war agreement negotiated during the same
period — Protocol I Additional to the Geneva Conventions of 12 August 1949.
This Protocol was the main object of the work of the 1973-77 Geneva
diplomatic conference, and represented an attempt to revise and update in a
comprehensive manner the 1949 Geneva Conventions on the protection of war
victims, the 1907 Hague Conventions on means and methods of warfare, and
customary international law on the same subjects.
Our extensive interagency review of the Protocol has, however, led us to
conclude that Protocol I suffers from fundamental shortcomings that cannot be
remedied through reservations or understandings. We therefore must
recommend that Protocol I not be forwarded to the Senate. The following is a
brief summary of the reasons for our conclusion.
In key respects Protocol I would undermine humanitarian law and endanger
civilians in war. Certain provisions such as Article 1 (4), which gives special status
to "armed conflicts in which peoples are fighting against colonial domination
and alien occupation and against racist regimes in the exercise of their right of
self-determination," would inject subjective and politically controversial
standards into the issue of the applicability of humanitarian law. Protocol I also
elevates the international legal status of self-described "national liberation"
groups that make a practice of terrorism. This would undermine the principle
that the rights and duties of international law attach principally to entities that
have those elements of sovereignty that allow them to be held accountable for
their actions, and the resources to fulfill their obligations.
Equally troubling is the easily inferred political and philosophical intent of
Protocol I, which aims to encourage and give legal sanction not only to "national
liberation" movements in general, but in particular to the inhumane tactics of
many of them. Article 44(3), in a single subordinate clause, sweeps away years of
law by "recognizing" that an armed irregular "cannot" always distinguish
himself from non-combatants; it would grant combatant status to such an
irregular anyway. As the essence of terrorist criminality is the obliteration of the
distinction between combatants and non-combatants, it would be hard to square
ratification of this Protocol with the United States' announced policy of
combatting terrorism.
312 Commander's Handbook on the Law of Naval Operations
The Joint Chiefs of Staff have conducted a detailed review of the Protocol,
and have concluded that it is militarily unacceptable for many reasons. Among
these are that the Protocol grants guerrillas a legal status that often is superior to
that accorded to regular forces. It also unreasonably restricts attacks against
certain objects that traditionally have been considered legitimate military targets.
It fails to improve substantially the compliance and verification mechanisms of
the 1949 Geneva Conventions and eliminates an important sanction against
violations of those Conventions. Weighing all aspects of the Protocol, the Joint
Chiefs of Staff found it to be too ambiguous and complicated to use as a practical
guide for military operations, and recommended against ratification by the
United States.
We recognize that certain provision of Protocol I reflect customary
international law, and others appear to be positive new developments. We
therefore intend to consult with our allies to develop appropriate methods for
incorporating these provisions into rules that govern our military operations,
with the intention that they shall in time win recognition as customary
international law separate from their presence in Protocol I. This measure would
constitute an appropriate remedy for attempts by nations to impose unacceptable
conditions on the acceptance of improvements in international humanitarian
law. I will report the results of this effort to you as soon as possible, so that the
Senate may be advised of our progress in this respect.
CONCLUSION
I believe that U.S. ratification of the agreement which I am submitting to you
for transmission to the Senate, Protocol II to the 1949 Geneva Conventions, will
advance the development of reasonable standards of international humanitarian
law that are consistent with essential military requirements. The same is not true
with respect to Protocol I to the 1949 Geneva Conventions, and this agreement
should not be transmitted to the Senate for advice and consent to ratification. We
will attempt in our consultations with allies and through other means, however,
to press forward with the improvement of the rules of international humanitarian
law in international armed conflict, without accepting as the price for such
improvements a debasement of our values and of humanitarian law itself.
The effort to politicize humanitarian law in support of terrorist organizations
have been a sorry development. Our action in rejecting Protocol I should be
recognized as a reaffirmation of individual rights in international law and a
repudiation of the collectivist apology for attacks on non-combatants.
Taken as a whole, these actions will demonstrate that the United States
strongly supports humanitarian principles, is eager to improve on existing
international law consistent with those principles, and will reject revisions of
Principles and Sources of the Law of Armed Conflict 313
international law that undermine those principles. The Departments of State and
Justice support these recommendations.
Respectfully submitted.
GEORGE P. SHULTZ
Attachments:
1 — Detailed Analysis of Provisions
2 — Recommended Understanding and Reservations
314 Commander's Handbook on the Law of Naval Operarations
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Principles and Sources of the Law of Armed Conflict 31 5
TABLE A5-1
STATES PARTY TO THE
GENEVA CONVENTIONS AND
THEIR ADDITIONAL PROTOCOLS
AS OF 15 OCTOBER
1997
• States party to the 1949
Geneva Conventions: 188
• States party to the 1977
Additional Protocol 1: 147
• States having made the
declaration under Article
90 of Protocol I: 50
• States party to the 1977
Additional Protocol II:
140
The following tables show which States were
party to the Geneva Conventions of 1949 and to
the two Additional Protocols of 1977, as of 15
October 1997. They also indicate which States
had made the optional declaration under Article
90 of 1977 Protocol I, recognizing the
competence of the International Fact-Finding
Commission. The names of the countries given in
the tables may differ from their official names.
The dates indicated are those on which the
Swiss Federal Department of Foreign Affairs
received the official instrument from the State that
was ratifying, acceding to or succeeding to the
Conventions and Protocols or accepting the
competence of the International Fact-Finding
Commission. Apart from the exceptions
mentioned in the footnotes at the end of the tables,
for all States the entry into force of the
Conventions and of the Protocols occurs six
months after the date given in the present
document; for States which have made a
declaration of succession, entry into force takes
place retroactively, on the day of their accession to
independence.
Abbreviations
Ratification (R): a treaty is generally open for
signature for a certain time following the conference
which has adopted it. However, a signature is not
binding on a State unless it has been endorsed by
ratification. The time limits having elapsed, the
Conventions and the Protocols are no longer open for
signature. The States which have not signed them may
at any time accede or, where appropriate, succeed to
them.
316 Commander's Handbook on the Law of Naval Operations
Accession (A): instead of signing and then ratifying a
treaty, a State may become party to it by the single act
called accession.
Declaration of Succession (S): a newly independent
State may declare that it will abide by a treaty which was
applicable to it prior to its independence. A State may
also declare that it will provisionally abide by such
treaties during the time it deems necessary to examine
their texts carefully and to decide on accession or
succession to some or all of them (declaration of
provisional application). At present no State is bound by
such a declaration.
Reservation/Declaration (R/D): a unilateral
statement, however phrased or named, made by a State
when ratifying, acceding or succeeding to a treaty,
whereby it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their
application to that State (provided that such reservations
are not incompatible with the object and purpose of the
treaty) .
Declaration provided for under Article 90 of
Protocol I (D 90): prior acceptance of the
competence of the International Fact-Finding
Commission.
Principles and Sources of the Law of Armed Conflict 31 7
GENEVA
PROTOCOL I
PROTOCOL II
CONVENTIONS
COUNTRY
R/A/S
R/D
R/A/S
R/D
D90
R/A/S
R/D
Afghanistan
26.09.1956
R
Albania
27.05.1957
R
16.07.1993
A
16.07.1993
A
Algeria
20.06.1960
A
16.08.1989
A
X
16.08.1989
16.08.1989
A
Andorra
17.09.1993
A
Angola
20.09.1984
A
X
20.09.1984
A
X
Antigua and Barbuda
06.10.1986
S
06.10.1986
A
06.10.1986
A
Argentina
18.09.1956
R
26.11.1986
A
X
11.10.1996
26.11.1986
A
X
Armenia
07.06.1993
A
07.06.1993
A
07.06.1993
A
Australia
14.10.1958
R
X
21.06.1991
R
X
23.09.1992
21.06.1991
R
Austria
27.08.1953
R
13.08.1982
R
X
13.08.1982
13.08.1982
R
X
Azerbaijan
01.06.1993
A
Bahamas
11.07.1975
S
10.04.1980
A
10.04.1980
A
Bahrain
30.11.1971
A
30.10.1986
A
30.10.1986
A
Bangladesh
04.04.1972
S
08.09.1980
A
08.09.1980
A
Barbados
10.09.1968
S
X
19.02.1990
A
19.02.1990
A
Belarus
03.08.1954
R
X
23.10.1989
R
23.10.1989
23.10.1989
R
Belgium
03.09.1952
R
! 20.05.1986
R
X
27.03.1987
20.05.1986
R
Belize
29.06.1984
A
29.06.1984
A
29.06.1984
A ;
Benin
14.12.1961
S
28.05.1986
A
28.05.1986
A
Bhutan
10.01.1991
A
Bolivia
10.12.1976
R
08.12.1983
A
10.08.1992
08.12.1983
A
Bosnia-Herzegovina
31.12.1976
S
31.12.1992
S
31.12.1992
31.12.1992
S
Botswana
29.03.1968
A
23.05.1979
A
23.05.1979
A
Brazil
29.06.1957
R
05.05.1992
A
23.11.1993
05.05.1992
A
Brunei Darussalam
14.10.1991
A
14.10.1991
A
14.10.1991
A
Bulgaria
22.07.1954
R
26.09.1989
R
09.05.1994
26.09.1989
R
Burkina Faso
07.11.1961
s
20.10.1987
R
20.10.1987
R
Burundi
27.12.1971
s
10.06.1993
A
10.06.1993
A
Cambodia
08.12.1958
A
Cameroon
16.09.1963
S
16.03.1984
A
16.03.1984
A
Canada
14.05.1965
R
20.11.1990
R
X
20.11.1990
20.11.1990
R
X
Cape Verde
11.05.1984
A
16.03.1995
A
16.03.1995
16.03.1984
A
Central African Republic
01.08.1966
S
17.07.1984
A
17.07.1984
A
Chad
05.08.1970
A
17.01.1997
A
17.01.1997
A
Chile
12.10.1950
R
24.04.1991
R
24.04.1991
24.04.1991
R
China
28.12.1956
R
X
14.09.1983
A
X
14.09.1983
A
Colombia
08.11.1961
R
01.09.1993
A
17.04.1996
14.08.1995
A
Comoros
21.11.1985
A
21.11.1985
A
21.11.1985
A
Congo
04.02.1967
S
10.11.1983
A
10.11.1983
A
Costa Rica
15.10.1969
A
15.12.1983
A
15.12.1983
A
Cote d'lvoire
28.12.1961
S
20.09.1989
R
20.09.1989
R
Croatia
11.05.1992
S
11.05.1992
S
11.05.1992
11.05.1992
S
Cuba
15.04.1954
R
25.11.1982
A
Cyprus
23.05.1962
A
01.06.1979
R
18.03.1996
A
Czech Republic
05.02.1993
S
X
05.02.1993
S
02.05.1995
05.02.1993
S
Denmark
27.06.1951
R
17.06.1982
R
X
17.06.1982
17.06.1982
R
Djibouti
06.03.19781
S
08.04.1991
A
08.04.1991
A
Dominica
28.09.1981
S
25.04.1996
A
25.04.1996
A
Dominican Republic
22.01.1958
A
26.05.1994
A
26.05.1994
A
Ecuador
11.08.1954
R
10.04.1979
11
10.04.1979
R
Egypt
10.11.1952
R
09.10.1992
R
X
09.10.1992
R
X
lil Salvador
17.06.1953
R
23.11.1978
R
23.11.1978
R
Equatorial Guinea
24.07.1986
A
24.07.1986
A
24.07.1986
A
318 Commander's Handbook on the Law of Naval Operations
GENEVA
PROTOCOL I
PROTOCOL II
CONVENTIONS
COUNTRY
R/A/S
R/D
R/A/S
R/D
D90
R/A/S
R/D
Estonia
18.01.1993
A
18.01.1993
A
18.01.1993
A
Ethiopia
02.10.1969
R
08.04.1994
A
08.04.1994
A
Fiji
09.08.1971
S
Finland
22.02.1955
R
07.08.1980
R X
07.08.1980
07.08.1980
R
France
28.06.1951
R
24.02.19842
A X
Gabon
26.02.1965
S
08.04.1980
A
08.04.1980
A
Gambia
20.10.1966
S
12.01.1989
A
12.01.1989
A
Georgia
14.09.1993
A
14.09.1993
A
14.09.1993
A
Germany
03.09.1954
A
X
14.02.1991
R X
14.02.1991
14.02.1991
R X
Ghana
02.08.1958
A
28.02. 19783
R
28.02. 19784
R
Greece
05.06.1956
R
31.03.1989
R
15.02.1993
A
Grenada
13.04.1981
S
Guatemala
14.05.1952
R
19.10.1987
R
19.10.1987
R
Guinea
11.07.1984
A
11.07.1984
A
20.12.1993
11.07.1984
A
Guinea-Bissau
21.02.1974
A
X
21.10.1986
A
21.10.1986
A
Guyana
22.07.1968
S
18.01.1988
A
18.01.1988
A
Haiti
11.04.1957
A
Holy See
22.02.1951
R
21.11.1985
R X
21.11.1985
R X
Honduras
31.12.1965
A
16.02.1995
R
16.02.1995
R
Hungary
03.08.1954
R
X
12.04.1989
R
23.09.1991
12.04.1989
R
Iceland
10.08.1965
A
10.04.1987
R X
10.04.1987
10.04.1987
R
India
09.11.1950
R
Indonesia
30.09.1958
A
Iran (Islamic Rep. of)
20.02.1957
R
X
Iraq
14.02.1956
A
Ireland
27.09.1962
R
Israel
06.07.1951
R
X
Italy
17.12.1951
R
27.02.1986
R X
27.02.1986
27.02.1986
R
Jamaica
20.07.1964
S
29.07.1986
A
29.07.1986
A
Japan
21.04.1953
A
Jordan
29.05.1951
A
01.05.1979
R
01.05.1979
R
Kazakhstan
05.05.1992
S
05.05.1992
S
05.05.1992
S
Kenya
20.09.1996
A
Kiribati
05.01.1989
S
Korea (Dem People's Rep. of)
27.08.1957
A
X
09.03.1988
A
Korea (Republic of)
16.08.19665
A
X
15.01.1982
R X
15.01.1982
R
Kuwait
02.09.1967
A
X
17.01.1985
A
17.01.1985
A
Kyrgyzstan
18.09.1992
S
18.09.1992
S
18.09.1992
S
Lao People's Dem. Rep.
29.10.1956
A
18.11.1980
R
18.11.1980
R
Latvia
24.12.1991
A
24.12.1990
A
24.12.1991
A
Lebanon
10.04.1951
R
23.07.1997
A
23.07.1997
A
Lesotho
20.05.1968
S
20.05.1994
A
20.05.1994
A
Liberia
29.03.1954
A
30.06.1988
A
30.06.1988
A
Libyan Arab Jamahiriya
22.05.1956
A
07.06.1978
A
07.06.1978
A
Liechtenstein
21.09.1950
R
X
10.08.1989
R X
10.08.1989
10.08.1989
R X
Lithuania
03.10.1996
A
Luxembourg
01.07.1953
R
29.08.1989
R
12.05.1993
29.08.1989
R
Macedonia
01.09.1993
S
X
01.09.1993
S X
01.09.1993
01.09.1993
S
Madagascar
18.07.1963
S
08.05.1992
R
27.07.1993
08.05.1993
R
Malawi
05.01.1968
A
07.10.1991
A
07.10.1991
A
Malaysia
24.08.1962
A
Maldives
18.06.1991
A
03.09.1991
A
03.09.1991
A
Mali
24.05.1965
A
08.02.1989
A
08.02.1989
A
Malta
22.08.1968
S
17.04.1989
A X
17.04.1989
17.04.1989
A X
Principles and Sources of the Law of Armed Conflict 31 9
GENEVA
PROTOCOL I
PROTOCOL II
CONVENTIONS
COUNTRY
R/A/S
R/D
R/A/S
R/D
D90
R/A/S
R/D
Mauritania
30.10.1962
S
14.03.1980
A
14.03.1980
A
Mauritius
18.08.1970
S
22.03.1982
A
22.03.1982
A
Mexico
29.10.1952
R
10.03.1983
A
Micronesia
19.09.1995
A
19.09.1995
A
19.09.1995
A
Moldova (Republic of)
24.05.1993
A
24.05.1993
A
24.05.1993
A
Monaco
05.07.1950
R
Mongolia
20.12.1958
A
06.12.1995
A
X
06.12.1995
06.12.1995
A
Morocco
26.07.1956
A
Mozambique
14.03.1983
A
14.03.1983
A
Myanmar
25.08.1992
A
Namibia
22.08.19916
S
17.06.1994
A
21.07.1994
17.06.1994
A
Nepal
07.02.1964
A
Netherlands
03.08.1954
R
26.06.1987
R
X
26.06.1987
26.06.1987
R
New Zealand
02.05.1959
R X
08.02.1988
R
X
08.02.1988
08.02.1988
R
Nicaragua
17.12.1953
R
Niger
21.04.1964
S
08.06.1979
R
08.06.1979
R
Nigeria
20.06.1961
S
10.10.1988
A
10.10.1988
A
Norway
03.08.1951
R
14.12.1981
R
14.12.1981
14.12.1981
R
Oman
31.01.1974
A
29.03.1984
A
X
29.03.1984
A X
Pakistan
12.06.1951
R X
Palau
25.06.1996
A
25.06.1996
A
25.06.1996
A
Panama
10.02.1956
A
18.09.1995
A
18.09.1995
A
Papua New Guinea
26.05.1976
S
Paraguay
23.10.1961
R
30.11.1990
A
30.11.1990
A
Peru
15.02.1956
R
14.07.1989
R
14.07.1989
R
Philippines
06.10.19527
R
11.12.1986
A
Poland
26.11.1954
R X
23.10.1991
R
02.10.1992
23.10.1991
R
Portugal
14.03.1961
R X
27.05.1992
R
01.07.1994
27.05.1992
R
Qatar
15.10.1975
A
05.04.1988
A
X
24.09.1991
Romania
01.06.1954
R X
21.06.1990
R
13.05.1995
21.06.1990
R
Russian Federation
10.05.1954
R X
29.09.1989
R
X
29.09.1989
29.09.1989
R X
Rwanda
05.05.1964
S
19.11.1984
A
08.07.1993
19.11.1984
A
Saint Kitts and Nevis
14.02.1986
S
14.02.1986
A
14.02.1986
A
Saint Lucia
18.09.1981
s
07.10.1982
A
07.10.1982
A
Saint Vincent & Grenadines
01.04.1981
A
08.04.1983
A
08.04.1983
A
Samoa
23.08.1984
S
23.08.1984
A
X
23.08.1984
A
San Marino
29.08.1953
A
05.04.1994
R
05.04.1994
R
Sao Tome and Principe
21.05.1976
A
05.07.1996
A
05.07.1996
A
Saudi Arabia
18.05.1963
A
21.08.1987
A
X
Senegal
18.05.1963
S
07.05.1985
R
07.05.1985
R
Seychelles
08.11.1984
A
08.11.1984
A
22.05.1992
08.11.1984
A
Sierra Leone
10.06.1965
S
21.10.1986
A
21.10.1986
A
Singapore
27.04.1973
A
Slovakia
02.04.1993
S X
02.04.1993
S
13.03.1995
02.04.1993
S
Slovenia
26.03.1992
S
26.03.1992
S
26.03.1992
26.03.1992
S
Solomon Islands
06.07.1981
s
19.09.1988
A
19.09.1988
A
Somalia
12.07.1962
A
South Africa
31.03.1952
A
21.11.1995
A
21.11.1995
A
Spain
04.08.1952
R
21.04.1989
R
X
21.04.1989
21.04.1989
R
Sri Lanka
28.02. 19598
R
Sudan
23.09.1957
A
Sunname
13.10.1976
S X
16.12.1985
A
16.12.1985
A
Swaziland
28.06.1973
A
02.11.1995
A
02.11.1995
A
Sweden
28.12.1953
R
31.08.1979
R
X
31.08.1979
31.08.1979
R
Switzerland
31.03.19509
R
17.02.1982
R
X
17.02.1982
17.02.1982
R
320 Commander's Handbook on the Law of Naval Operations
GENEVA
PROTOCOL I
PROTOCOL II
CONVENTIONS
COUNTRY
R/A/S
R/D
R/A/S
R/D
D90
R/A/S
R/D
Syrian Arab Republic
02.11.1953
R
14.11.1983
A X
Tajikistan
13.01.1993
S
13.01.1993
S
10.09.1997
13.01.1993
s
Tanzania (United Rep. of)
12.12.1962
S
15.02.1983
A
15.02.1983
A
Thailand
29.12.1954
A
The Former Y.R. Macedonia
01.09.1993
S
01.09.1993
S
01.09.1993
01.09.1993
S
Togo
06.01.1962
S
21.06.1984
R
21.11.1991
21.06.1984
R
Tonga
13.04.1978
S
Trinidad and Tobago
24.09.196310
A
Tunisia
04.05.1957
A
09.08.1979
R
09.08.1979
R
Turkey
10.02.1954
R
Turkmenistan
10.04.1952
S
10.04.1992
S
10.04.1992
s
Tuvalu
19.02.1981
S
Uganda
18.05.1964
A
13.03.1991
A
13.03.1991
A
Ukraine
03.08.1954
R
X
25.01.1990
R
25.01.1990
25.01.1990
R
United Arab Emirates
10.05.1972
A
09.03.1983
A X
06.03.1992
09.03.1983
A X
United Kingdom
23.09.1957
R
X
United States of America
02.08.1955
R
X
Uruguay
05.03.1969
R
X
13.12.1985
A
17.07.1990
13.12.1985
A
Uzbekistan
08.10.1993
A
08.10.1993
A
08.10.1993
A
Vanuatu
27.10.1982
A
28.02.1985
A
28.02.1985
A
Venezuela
13.02.1956
R
Viet Nam
28.06.1957
A
X
19.10.1981
R
Yemen
16.07.1970
A
X
17.04.1990
R
17.04.1990
R
Yugoslavia
21.04.1950
R
X
11.06.1979
R X
11.06.1979
R
Zambia
19.10.1966
A
04.05.1995
A
04.05.1995
A
Zimbabwe
07.03.1983
A
19.10.1992
A
19.10.1992
A
Palestine
On 21 June 1989, the Swiss Federal Department of
Foreign Affairs received a letter from the Permanent
Observer of Palestine to the United Nations Office
at Geneva informing the Swiss Federal Council
"that the Executive Committee of the Palestine
Liberation Organization, entrusted with the
functions of the Government of the Government of
the State of Palestine by decision of the Palestine
National Council, decided, on 4 May 1989, to
adhere to the Four Geneval Conventions of 12
August 1949 and the two Portocols addiitonal
thereto".
On 13 September 1989, the Swiss Federal Council
informed the States that it was not in a position to
decide whether the letter constituted an instrument
of accession, "due to the uncertainty within the
international community as to the existnece or
non-existence of a State of Palestine".
1 Dijibouti's declaration of succession in respect of the First Convention was dated 26 January 1978.
2 On accession to Protocol II, France made a communication concerning Protocol I.
* Entry into force on 7 December 1978.
4 Entry into force on 7 December 1978.
5 Entry into force on 23 September 1977, the Republic of Korea having invoked Art. 62/61/141/157
common ot the First, Second, Thrid and Fourth Conventions respecitvely (immediate effect).
" An instrument of accession to the Geneva Conventions and their additional Protocols was deposited by
the United Nations Council for Namibia on 18 October 1983. In an instrument deposited on 22 Augus 1991,
Namibia declared its succession to the Geneva Conventions, which were previously applicable pursuant to
South Africa's accession on 31 March 1952.
Principles and Sources of the Law of Armed Conflict 321
' The first Geneva Convention was ratified on 17 March 1951.
" Accession to the Fourth Geneva Convention on 23 February 1959 (Ceylon had signed only the First,
Second, and Third Convenitons).
" Entry into force on 21 October 1950.
1" Accession to the First Geneva Convention on 17 May 1963.
Source: International Committee of the Red Cross, 15 October 1997. (A
current listing of parties to the Geneva Conventions and to Additional Protocol I
and II may be found at www.icrc.ch/icrcnews).
CHAPTER 6
Adherence and Enforcement
6.1 ADHERENCE TO THE LAW OF ARMED CONFLICT
N
ations adhere to the law of armed conflict not only because they are legally
obliged to do so but for the very practical reason that it is in their best
9
interest to be governed by consistent and mutually acceptable rules of conduct.
The law of armed conflict is effective to the extent that it is obeyed. Occasional
violations do not substantially affect the validity of a rule of law, provided routine
compliance, observance, and enforcement continue to be the norm. However,
repeated violations not responded to by protests, reprisals, or other enforcement
actions may, over time, indicate that a particular rule is no longer regarded as
valid.
1 . Under Common article 1 , each nation has an affirmative duty at all times not only to respect
the requirements of the 1 949 Geneva Conventions, but also to ensure respect for them by its armed
forces. Nicaragua Military Activities Case, 1986 I.C.J. 114; 25 Int'l Leg. Mat'ls 1073 (para. 220)
(holding this duty is a general principle of international law). Further, under GWS 1929, arts.
28-30, & 49-54; GWS-Sea, arts. 50-53; GPW, arts. 129-132; GC, arts. 146-149 (and GP I, arts.
85-87, for nations bound thereby — see Table A5-1 (p. 315)), every such nation has an obligation to
seek out and cause to be prosecuted violators of the Geneva Conventions irrespective of their
nationality, and to otherwise encourage compliance of the Conventions by any other country or its
armed forces including those of its allies. The United States supports the principle, detailed in GP I,
arts. 85-89, that the appropriate authorities take all reasonable measures to prevent acts contrary to
the applicable rules of humanitarian law. The Sixth Annual American Red" Cross- Washington
College of Law Conference on International Humanitarian Law: A Workshop on Customary
International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J.
Int'l L. & Policy 428 (1987) (remarks of U.S. Department of State Deputy Legal Adviser
Matheson) . This self-interest is reflected in the following:
Any government which, while not itself involved in a conflict, is in a position to exert
a deterrent influence on a government violating the laws of war, but refrains from
doing so, shares the responsibility for the breaches. By failing to react while able to do
so, it fosters the process which could lead to its becoming the victim of similar
breaches and no longer an accessory by omission.
ICRC Appeal, 1985 Int'l Rev. Red Cross 33 & 289-90.
As of 1 November 1997, only Eritrea, the Marshall Islands and Nauru of the 185 U.N. members
were not party to the 1949 Geneva Conventions. See Table A5-1 (p. 315).
2. Discipline in combat is essential. Violations of the law of armed conflict detract from the
commander's ability to accomplish his mission. Violations of that law also have an adverse impact
on national and world public opinion. Violations on occasion have served to prolong a conflict by
inciting an opponent to continue resistance.
(continued...)
324 Commander's Handbook on the Law of Naval Operations
6.1.1 Adherence by the United States. The Constitution of the United
States provides that treaties to which the U.S is a party constitute a part of the
"supreme law of the land" with a force equal to that of law enacted by the
Congress. Moreover, the Supreme Court of the United States has consistently
ruled that where there is no treaty and no controlling executive, legislative, or
judicial precedent to the contrary, customary international law is a fundamental
element of U.S. national law. Since the law of armed conflict is based on
international agreements to which the U.S. is a party and customary law, it is
binding upon the United States, its citizens, and its armed forces.
6.1.2 Department of the Navy Policy. SECNAVINST 3300. 1A states that
the Department of the Navy will comply with the law of armed conflict in the
conduct of military operations and related activities in armed conflicts. Article
0705, U.S. Navy Regulations, 1990, provides that:
2. (...continued)
Violations of commitments under the law of armed conflict can seriously hamper the willingness
and political ability of allies to support military activities within and outside the alliance. This is
particularly true of the United States and other nations with democratic forms of government. In
contrast, dictatorships, depending primarily on the deployment of military forces, with total
control of internal mass media and allowing no political dissent, may disregard legal commitments
without equivalent impact on their overall political and strategic position. Our posture is
strengthened by our continued respect for the law of armed conflict, while theirs may be
strengthened in some cases by their willingness to disregard those laws for temporary tactical
advantage. Therefore, an opponent's disregard of the law is not a sound basis for the United States
to take a similar callous attitude. Rather, the sharper the distinction between our respect for the
sensitivities and individuality of our allies, supported by our respect for the law, and our opponent's
disregard of the interests of their allies and the law, the better for our overall posture. Compliance
will also assure the U.S. of the moral high ground, maintain and enhance support from our allies,
and foster sympathy for our cause among neutrals. In short, U.S. armed forces are committed to
combat to protect fundamental values, not to abandon them.
Accordingly, violations of the law by U.S. armed forces may have greater impact on American and
world public opinion than would similar violations by our adversaries. See AFP 1 10-31, para. 1-6;
Brittin, International Law for Seagoing Officers 227 (5th ed. 1986).
3. U.S. Const., art. VI, cl. 2.
4. E.g., The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 299 (1900); Reid v. Covert, 354 U.S.
1, 18, 77 S.Ct. 1222, 1231 (1957). See also 1 Restatement (Third), sec. Ill, Reporters' Notes 2 &
3, and Introductory Note.
5. The law of armed conflict is part of U.S. law which every servicemember has taken an oath
to obey. This obligation is implemented for the armed forces in DOD Directive 5100.77, Subj:
DOD Law of War Program, and the Uniform Code of Military Justice.
6. SECNAVINST 3300.1 (series), Subj: Law of Armed Conflict (Law of War) Program to
Insure Compliance by the Naval Establishment, para. 4a. Similar directions have been
promulgated by the operational chain of command, e.g., MJCS 0124-88, 4 August 1988, Subj:
Implementation of the DOD Law of War Program; USCINCLANTINST 3300.3 (series), Subj:
DOD Law ofWar Instruction; CINCPACFLTINST 3300.9 (series), Subj: Implementation of the
DOD Law of War Program.
Adherence and Enforcement 325
At all times, commanders shall observe, and require their commands to observe, the principles
of international law. Where necessary to fulfill this responsibility, a departure from other
provisions of Navy Regulations is authorized.
It is the responsibility of the Chief of Naval Operations and the Commandant
of the Marine Corps (see OPNAVINST 3300.52 and MCO 3300.3) to ensure
that:
1. The U.S. Navy and Marine Corps observe and enforce the law of armed
conflict at all times. International armed conflicts are governed by the law of
armed conflict as a matter of law. However, not all situations are "international"
armed conflicts. In those circumstances when international armed conflict does
not exist (e.g. internal armed conflicts), law of armed conflict principles may
nevertheless be applied as a matter of policy.
2. Alleged violations of the law of armed conflict, whether committed by or
against United States or enemy personnel, are promptly reported, thoroughly
investigated, and where appropriate, remedied by corrective action.
7. Other arts, of U.S. Navy Regulations, 1990, concerned with international law and with
international relations in armed conflict, include:
Article Title
0406(5) Designation of Hospital Ships and Medical Aircraft
0829 Prisoners of War
0854 Hospital Ship or Medical Aircraft
0912 Communication with Foreign Officials
0914 Violations of International Law and Treaties
0920 Protection of Commerce of the United States
0924 Medical or Dental Aid to Persons Not in the Naval Service
0925 Assistance to Persons, Ships and Aircraft in Distress
0939 Granting of Asylum and Temporary Refuge
1063 Detail of Persons Performing Medical or Religious Services
1135 Relations with Foreign Nations
8. Para. 3a of the draft revision ofDOD Directive 5100.77 (paragraph 6.1.1, note 5 (p. 324))
provides:
3. The Heads of the POD Components shall:
a. Ensure that the armed forces of the United States will comply with the law of
war during armed conflict however such conflicts are characterized and with the
principles and spirit of the law of war during all other operations.
9. Essential, therefore, is reporting of the facts by all persons with knowledge of suspected
violations up the chain of command to the NCA. In the Department of the Navy, SECNAVINST
3300.1 (series) requires the reporting of all suspected violations of the law of armed conflict. See
Annex A6-1 (p. 359), replicating enclosure (2) to SECNAVINST 3300.1 (series), for an
illustrative list of reportable violations. Arts. 87(1) and (3) of GP I require State parties to require
military commanders at all levels to report to competent authorities breaches of the 1949 Geneva
Conventions and GP I by or against members of the armed forces under their command and other
(continued...)
326 Commander's Handbook on the Law of Naval Operations
3. All service members of the Department of the Navy, commensurate with their
duties and responsibilities, receive, through publications, instructions, training
programs and exercises, training and education in the law of armed conflict.
Navy and Marine Corps judge advocates responsible for advising operational
commanders are specially trained to provide officers in command with advice
and assistance in the law of armed conflict on an independent and expeditious
basis. The Chief of Naval Operations and the Commandant of the Marine Corps
have directed officers in command of the operating forces to ensure that their
9. (...continued)
persons under their control, to take the necessary steps to prevent violations, and where
appropriate, to initiate disciplinary "or penal" action against the violators. The United States
supports this principle as one that should be observed and in due course recognized as customary
law. Matheson, Remarks, paragraph 6.1, note 1 (p. 323), at 422 & 428.
10. SECNAVINST 3300.1 (series), para. 4b. OPNAVINST 3300.52, Subj: Law of Armed
Conflict (Law of War) Program to Ensure Compliance by the U.S. Navy and Naval Reserve; and
MCO 3300.3, Subj: Marine Corps Law of War Program, define, respectively, the U.S. Navy and
U.S. Marine Corps law of armed conflict training programs. Annex A6-2 (p. 362) provides the
fundamental rules for combatants, suitable for a basic training program.
The law of armed conflict has long recognized that knowledge of the requirements of the law is a
prerequisite to compliance with the law and to prevention of violations of its rules, and has
therefore required training of the armed forces in this body of law. On dissemination, see Hague
IV, art. 1; Hague X, art. 20; GWS 1929, art. 29; GWS, art 47; GWS-Sea, art. 48; GPW, art. 127;
GC, art. 144; and for States party thereto, the 1954 Hague Convention on Cultural Property, arts.
7 & 25; GP I, arts. 83 & 87(2); GP II, art. 19; and the 1980 Conventional Weapons Convention,
art. 6. The United States supports the principle in GP I, art. 83, that study of the principles of the
law of armed conflict be included in programs of military instruction. Matheson, Remarks,
paragraph 6.1, note 1 (p. 323), at 428. See also Meyrowitz, The Function of the Laws of War in
Peacetime, 1986 Int'l Rev. Red Cross 77; Hampson, Fighting by the Rules: Instructing the
Armed Forces in Humanitarian Law, 1989 id. Ill; Green, The Man in the Field and the Maxim
Ignorantia Juris Non Excusat, in Essays on the Modern Law of War 27 (1985). On legal advisers in
armed forces, see GP I, art. 82; Parks, The Law of War Adviser, 31 JAG J. 1 (1980); Green, The
Role of Legal Advisers in the Armed Forces, in Essays on the Modern Law of War 73 (1985). The
United States supports the principle of art. 82, that legal advisers be made available, when
necessary, to advise military commanders at the appropriate level on the application of these
principles. Matheson, id., at428.JAGINST 3300.1 (series), note 11 (p. 327), details the operational
law billets identified for U.S. Navy judge advocates. On the duty of commanders, see GP I, art. 87.
The manner of achieving these results is left to nations to implement. Various international bodies
exist to assist, e.g., the ICRC, Henry Dunant Institute in Geneva Switzerland, International
Institute of Humanitarian Law at San Remo Italy, the International Society of Military Law and
the Law of War, and the International Committee of Military Medicine and Pharmacy. See de
Mullinen, Law ofWar Training Within Armed Forces: Twenty Years Experience, 1987 Int'l Rev.
Red Cross 168. On the role of military manuals (such as this publication) in the dissemination of
the law of armed conflict to military forces, see Reisman & Lietzau, Moving International Law
from Theory to Practice: The Role of Military Manuals in Effectuating the Law of Armed
Conflict, in Robertson at 1-7.
Adherence and Enforcement 327
judge advocates have appropriate clearances and access to information to enable
them to carry out that responsibility.
6.1.3 Command Responsibility. Officers in command are not only
responsible for ensuring that they conduct all combat operations in accordance
with the law of armed conflict; they are also responsible for the proper
performance of their subordinates. While a commander may delegate some or all
of his authority, he cannot delegate responsibility for the conduct of the forces he
commands. The fact that a commander did not order, authorize, or knowingly
acquiesce in a violation of the law of armed conflict by a subordinate will not
relieve him of responsibility for its occurrence if it is established that he failed to
exercise properly his command authority or failed otherwise to take reasonable
measures to discover and correct violations that may occur.
11. OPNAVINST 3300.52, para. 4.k.2. See JAG INST 3300.1 (series), Subj: JAG BiUets
Requiring Special or Detailed Knowledge of the Law of Armed Conflict and Training Objectives
for Navy Judge Advocates in Such Billets; and JAGINST 3300.2 (series), Subj: Law of Armed
Conflict Resource Materials. The Army Judge Advocate General's School has developed a
checklist for the review of operational plans to ensure compliance with the law of armed conflict,
which is set forth in chap. 6 of the School's Operational Law Handbook.
12. U.S. Navy Regulations, 1990, art. 0802.1.
13. A commander at any level is personally responsible for the criminal acts of warfare
committed by a subordinate if the commander knew in advance of the breach about to be
committed and had the ability to prevent it, but failed to take the appropriate action to do so. In
determining the personal responsibility of the commander, the element of knowledge may be
presumed if the commander had information which should have enabled him or her to conclude
under the circumstances that such breach was to be expected. Officers in command are also
personally responsible for unlawful acts of warfare performed by subordinates when such acts are
committed by order, authorization, or acquiescence of a superior. Those facts will each be
determined objectively. See Green, War Crimes, Crimes Against Humanity and Command
Responsibility, Nav. War Coll. Rev., Spring 1997, 26-68; Levie, Command
Responsibility, 8 USAFA J. Leg. Stu. (1998) (forthcoming).
Some military tribunals have held that, in suitable circumstances, the responsibility of commanding
officers may be based upon the failure to acquire knowledge of the unlawful conduct of
subordinates. In Tlie Hostages Case, the United States Military Tribunal stated:
Want of knowledge of the contents of reports made to him [i.e., to the commanding
general] is not a defense. Reports to commanding generals are made for their special
benefit. Any failure to acquaint themselves with the contents of such reports, or a
failure to require additional reports where inadequacy appears on their face,
constitutes a dereliction of duty which he cannot use in his own behalf.
United States v. Wilhelm List et al, 9 TWC 127 (1950).
The responsibility of commanding officers for unlawful conduct of subordinates has not been
applied to isolated offenses against the laws of armed conflict, but only to offenses of considerable
magnitude and duration. Even in the latter instances, the circumstances surrounding the
commission of the unlawful acts have been given careful consideration:
(continued...)
328 Commander's Handbook on the Law of Naval Operations
6.1.4 Individual Responsibility. All members of the naval service have a duty
to comply with the law of armed conflict and, to the utmost of their ability and
authority, to prevent violations by others. They also have an affirmative
13. (...continued)
It is absurd ... to consider a commander a murderer or rapist because one of his
soldiers commits a murder or a rape. Nevertheless, where murder and rape and
vicious, revengeful actions are wide-spread offences, and there is no effective
attempt by a commander to discover and control the criminal acts, such a
commander may be held responsible, even criminally liable, for the lawlessness of his
troops, depending upon their nature and the circumstances surrounding them.
Trial of General Tomoyuki Yamashita, 4 LRTWC 35 (1'948).
The responsibility of a commanding officer may be based solely upon inaction. Depending upon
the circumstances of the case, it is not always necessary to prove that a superior actually knew of the
offense committed by his subordinates if it can be established that available information was such
that he or she should have known. (GP I, art. 86, Failure to Act, confirms this rule.) See Parks,
Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973); Green, Essays on the Modern
Law of War 225-37 (1985). See also Levie, at 421-9 for a general discussion of command
responsibility, and at 156-63 for an analysis of the Yamashita trial. The Statute of the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed on the Territory of the Former Yugoslavia Since 1991, reprinted in
32 Int'l Leg. Mat'ls 1192 (1993) [hereinafter "Statute of the International Tribunal for
Yugoslavia"], art. 7, establishes individual criminal responsibility for "a person who planned,
instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or
execution" of grave breaches of the 1949 Geneva Conventions, the laws or customs of war,
genocide or crimes against humanity. Art. 7(3) specifically provides:
3. The fact that any of the acts was committed by a subordinate does not relieve
his superior of criminal responsibility if he knew or had reason to know that the
subordinate was about to commit such acts or had done so and the superior failed to
take the necessary and reasonable measures to prevent such acts or to punish the
perpetrators thereof.
The Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for
Genocide and Other Serious Violations of International Humanitarian Law Committed in the
Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Violations
Committed in the Territory of Neighboring States Between 1 January 1994 and 31 December
1994, reprinted in 33 Int'l Leg. Mat'ls 1598 (1994) [hereinafter "Statute of the International
Criminal Tribunal for Rwanda"] contains essentially identical language at art. 6(3).
The Statute of the International Tribunal for Yugoslavia and the Statute of the International
Criminal Tribunal for Rwanda were adopted by the U.N. Security Council in U.N.S.C.
Resolutions 827 (1993) (reprinted in 32 Int'l Leg. Mat'ls 1203 (1993)) and 955 (1994) {reprinted in 33
Int'l Leg. Mat'ls 1598 (1994)), respectively.
14. Where U.S. personnel are involved, military personnel with supervisory authority have a
duty to prevent criminal acts. Any person in the naval service who sees a criminal act about to be
committed must act to prevent it to the utmost of his or her ability and to the extent of his or her
authority. 10 U.S. Code sec. 5947; U.S. Navy Regulations, 1990, arts. 1131 & 1137. Possible
actions include moral arguments to dissuade, threatening to report the criminal act, repeating
orders of superiors, stating personal disagreement, and asking the senior individual on scene to
intervene as a means of preventing the criminal act. In the event the criminal act directly and
imminently endangers a person's life (including the life of another person lawfully under his or her
(continued...)
Adherence and Enforcement 329
obligation to report promptly violations of which they become aware. Members
of the naval service, like military members of all nations, must obey readily and
strictly all lawful orders issued by a superior. Under both international law and
U.S. law, an order to commit an obviously criminal act, such as the wanton
killing of a noncombatant or the torture of a prisoner, is an unlawful order and
will not relieve a subordinate of his responsibility to comply with the law of
armed conflict. Only if the unlawfulness of an order is not known by the
individual, and he could not reasonably be expected under the circumstances to
recognize the order as unlawful, will the defense of obedience to an order protect
a subordinate from the consequences of violation of the law of armed conflict.
6.2 ENFORCEMENT OF THE LAW OF ARMED CONFLICT
Various means are available to belligerents under international law for
inducing compliance with the law of armed conflict. To establish the facts, the
18
belligerents may agree to an ad hoc inquiry. In the event of a clearly established
1 Q
violation of the law of armed conflict, the aggrieved nation may:
14. (...continued)
custody), force may be used to the extent necessary to prevent the crime. However, the use of
deadly force is rarely justified; it may be used only to protect life and only under conditions of
extreme necessity as a last resort when lesser means are clearly inadequate to protect life. Compare
SECNAVINST 5500.29 (series), Subj: Use of Deadly Force and the Carrying of Firearms by
Personnel of the Department of the Navy in Conjunction with Law Enforcement, Security Duties,
and Personal Protection; OPNAVINST 3120.32 (series), Subj: Standard Organization and
Regulations of the U.S. Navy, art. 412b, circumstances under which a weapon may be fired; and
OPNAVINST C5510.83 (series), Subj: Navy Nuclear Weapons Security Manual.
15. U. S. Navy Regulations, 1990, art. 1132 and UCMJ, arts. 90-92, delineate offenses
involving disobedience of lawful orders. Both SECNAVINST 3300.1 (series) and OPNAVINST
3300.52 (see paragraph 6.1.2, note 11 (p. 327)) are drafted as lawful general orders. See paragraph
6.2.5.5.1 (p. 355).
16. The order may be direct or indirect, explicit or implied.
17. See paragraph 6.2.5.5.1 (p. 355) for a further discussion of the defense of superior orders.
War crimes trials are discussed in paragraphs 6.2.5.1 (p. 350) and 6.2.5.2 (p. 351).
18. The Geneva Conventions have long authorized and encouraged belligerents to agree to
objective enquiries into alleged violations of those Conventions. GWS 1929, art. 30; GWS, art. 52;
GWS-Sea, art. 53; GPW, art. 132; GC, art. 149. (See paragraph 6.1.2 (p. 324) regarding national
requirements to investigate alleged violations of the law of armed conflict.) No such ad hoc
agreement has ever been concluded, in large measure because of mutual suspicions and hostilities.
The United Nations has established a team of experts to investigate allegations of such violations. See,
e.g., Prisoners of War in Iran and Iraq: The Report of a Mission Dispatched by the Secretary-General,
January 1985, U.N. Doc. S/16962, 22 Feb. 1985; and Report of Group of Experts to Investigate
Reports of the Alleged Use of Chemical Weapons, U.N. Doc. S/19823, 25 Apr. 1988, which led to
vigorous condemnation of their use, albeit without assigning responsibility to one side, in Security
Council Resolution 612, 9 May 1988, Dep't St. Bull., July 1988, at 69. See also U.N. General Assembly
Resolution 46/59 (1991), Declaration on Fact-Finding by the United Nations in the Field of the
Maintenance of International Peace and Security, 31 Int'l Leg. Mat'ls 235 (1992).
(continued...)
330 Commander's Handbook on the Law of Naval Operations
1 . Publicize the facts with a view toward influencing world public opinion against
the offending nation
18. (...continued)
An International Fact-Finding Commission has been established under GP I, article 90. See 1991
Int'l Rev. Red Cross 208-09, 411-12. By 15 October 1997, 50 nations had accepted the
competence of the Commission, including the European neutrals (Austria, Finland, Sweden and
Switzerland), and ten NATO countries (Belgium, Canada, Denmark, Germany, Iceland, Italy,
Luxemburg, the Netherlands, Norway and Spain), Russia, Belarus, Ukraine, Australia and New
Zealand. The Commission cannot act without the consent of the parties to the dispute, which can
be given either on a permanent one-time basis or an ad hoc basis for a particular dispute. The
members of the Commission, elected in mid-March 1992, may be found in ICRC Bulletin, April
1992, at 4. The fact that the former-Soviet Union (prior to its acceptance of the Commission's
competence on 29 September 1989), and its allies and clients, were most reluctant to permit
third-party supervision of the Geneva Conventions was another factor in the United States' refusal
to seek ratification of GP I. Sofaer, Remarks, 2 Am. U.J. Int'l L. & Policy 470.
Belligerents not party to GP I, or States party to GP I which have not accepted the competence of
the Fact Finding Commission, may request the Commission to investigate allegations of grave
breaches or serious violations of the Convention. Bothe, Partsch & Solf at 543-44; Krill, The
International Fact-Finding Commission — The Role of the ICRC, 1991 Int'l Rev. Red Cross
190, at 197; Roach, The International Fact-Finding Commission, id. at 176. See also Kalshoven,
Noncombatant Persons, in Robertson at 306-07.
19. See Sachariew, States' Entitlement to Take Action to Enforce International Humanitarian
Law, 1989 Int'l Rev. Red Cross 177.
Commanders are not usually required to make the policy decision as to the appropriate use of one
or more of the remedial actions set forth in the text, although there are exceptional situations in
which even junior commanders may be required to make protests and demands addressed directly
to the commander of offending forces. It is also apparent that a government decision cannot be
made intelligently unless all officers upon whom the responsibility for decision rests understand the
available remedial actions and report promptly to higher authority those circumstances which may
justify their use.
20. Experience in the Southeast Asia conflict amply demonstrates the particular effectiveness
of television in affecting knowledge of and popular (home) support for U.S. forces. Summers,
Western Media and Recent Wars, Mil. Rev., May 1986, at 4; Mitchell, Television and the
Vietnam War, Nav. War Coll. Rev., May-June 1984, at 42; Rinaldo, The Tenth Principle ofWar:
Information, Mil. Rev., Oct. 1987, at 55; Walker, Truth is the Best Propaganda: A Study in
Military Psychological Operations, National Guard Mag., Oct. 1987, at 26; Paddock,
Psychological Operations, Special Operations, and US Strategy, in Special Operations in US
Strategy 229 (Bamett, Tovar & Shultz eds. 1984). For the role of the media during Operations
Desert Shield and Desert Storm, see Shell, A Portrait of Pentagon's Media Strategy, Public
Relations J., June 1991, at 9-11; Zoglin, It Was a Public Relations Rout, Too, Time, March 11,
1991, at 56-57; Holland, Put the Brass on the Tube, U.S. Naval Inst. Proc, April 1991, at 48;
Watson, The Issue of Media Access to Information, in Military Lessons of the Gulf War 202-11
(1991); Smith, How CNN Fought the War (1991); Arnett, Live From Baghdad (1992).
During Iraq's unlawful occupation of Kuwait, the Security Council invited all States to "collate
substantiated information in their possession or submitted to them on the grave breaches by Iraq . . .
and to make this information available to the Council." U.N.S.C. Res. 674, 29 Oct. 1990, reprinted
in U.S. Dep't of State, Dispatch, 5 Nov. 1990, at 239-40. For a report submitted by the U.S.
pursuant to Resolution 674, see U.N. Doc. S/21987, 7 Dec. 1990 (USA). See also U.N. Docs.
S/22535 and S/22536, 29 April 1991 (reports of the Secretary-General).
(continued...)
Adherence and Enforcement 331
2. Protest to the offending nation and demand that those responsible be punished
and/or that compensation be paid
20. (...continued)
Additionally, private individuals and nongovernmental organizations can be expected to attempt
to ascertain and publicize the facts pertaining to alleged violations of the Conventions. Other
organizations that have provided supervision of the application of the law of armed conflict
include, among others, Amnesty International, Commission Medico-Juridique de Monaco,
Human Rights Watch, ICRC, International Commission of Jurists, International Committee of
Military Medicine and Pharmacy, International Law Association and the World Veterans
Federation. All of these organizations have been effective in bringing private and public pressure to
bear on governments regarding the conduct of their armed forces in armed conflicts.
21. Such protest and demand for punishment may be communicated directly to an offending
belligerent or to the commander of the offending forces. On the other hand, an offended
belligerent may choose to forward its complaints through a Protecting Power, a humanitarian
organization acting in the capacity of a Protecting Power, or any nation not participating in the
armed conflict.
Hague IV, art. 3, states:
A belligerent party which violates the provisions of the said [Hague] Regulations
shall, if the case demands, be liable to pay compensation. It shall be responsible for all
acts committed by persons forming part of its armed forces.
See Affaire des Biens Britannique au Maroc Espagnol (Spain v. U.S.), Report III (Oct. 23, 1924), at 2
UNRIAA 645 (1949) and Kalshoven, State Responsibility for Warlike Acts of the Armed Forces,
40 I.C.L.Q. 827 (1991). It is now generally established that the principle laid down in art. 3 is
applicable to the violation of any rule regulating the conduct of hostilities and not merely to
violations of the Hague Regulations. See Sandoz, Unlawful Damage in Armed Conflicts and
Redress Under International Humanitarian Law, 1982 Int'l Rev. Red Cross 131, 136-137. This
customary rule is repeated in GP I, art. 91, and is discussed in useful detail in ICRC, Commentary
1053-58. For an excellent discussion of State responsibility and reparations for violations of the law
of armed conflict pertaining to environmental damage, see Greenwood, State Responsibility and
Civil Liability for Environmental Damage Caused by Military Operations, in Grunawalt, King &
McClain at 397-415; and Green, State Responsibility and Civil Reparation for Environmental
Damage, in id. at 416-39.
Recent demands for compensation involving U.S. forces include the following:
Iraq agreed to give compensation for "the loss of life, personal injuries and material
damages" resulting from the attack on USS STARK on 17 May 1987. Exchange of Notes, 20 & 21
May 1987, 26 Int'l Leg. Mat'ls 1427-28 (1987). Detailed claims for the wrongful deaths were
submitted to Iraq in April 1988, Dep't St. Bull., Oct. 1988, at 59; Iraq paid $27.3 million, Dep't St.
Bull., May 1989, at 67; 28 Int'l Leg. Mat'ls 644, 83 Am. J. Int'l L. 561 (1989).
For almost two hours on 8 June 1967, Israeli aircraft and torpedo boats attacked USS
LIBERTY (AGTR-5) on the high seas of the Mediterranean about 15 NM west of the Gaza strip,
just as Israel was concluding the Six-Day War. On 27 May 1968, Israel paid the United States
$3,323,500, the full amount of compensation claimed on behalf of the 34 U.S. Navy men killed in
the attack. Dep't St. Bull., 17 June 1968, at 799. On 28 April 1969, Israel paid $3,566,457 in
settlement of the United States' claims on behalf of the additional 171 U.S. Navy members
wounded in the attack. Dep't St. Bull., 2June 1969, at 473. On 17 December 1980, Israel agreed to
pay $6 million, in three installments, for its damages to LIBERTY (albeit without conceding
liability). 32 U.S.T. 4434, T.I.A.S. 9957; 1980 Digest of U.S. Practice in International Law
747-48. The factual and legal issues of the attack are carefully examined in Jacobsen, A Juridical
Examination of the Israeli Attack on the USS Liberty, 36 Nav. L. Rev. 1 (1986).
(continued...)
332 Commander's Handbook on the Law of Naval Operations
3. Seek the intervention of a neutral party, particularly with respect to the
protection of prisoners of war and other of its nationals that have fallen under the
control of the offending nation
21. (...continued)
On 1 1 July 1988, the United States offered to compensate ex gratia the families of those lost
in the downing of Iranian Airbus flight 655 on 3 July 1988. 24 Weekly Comp. Pres. Docs. 912 (18
July 1988). See Friedman, The Vtncennes Incident, U.S. Naval Inst. Proc, May 1989, at 72-79, and
Agora: The Downing of Iran Air Flight 655, 83 Am. J. Int'l L. 318-41 (1989). The ICAO report of
investigation and ICAO Council actions are reproduced in 28 Int'l Leg. Mat'ls 896 (1989). Iran's application
against the United States before the I.C.J, appears at 28 id. 842. See also 83 Am. J. Int'l L. 912-13 (1989).
On 25 October 1983, at a time when the People's Revolutionary Army of Grenada was
using a group of buildings inside Fort Matthew, St. George's, Grenada, as a military command post
143 feet away from the Richmond Hill Insane Asylum, a bomb from a Navy A-7 aircraft
accidentally struck the Asylum, killing sixteen patients and injuring six. A complaint against the
United States was deemed admissible by the Inter-American Commission on Human Rights. See
Weissbrodt & Andrus, The Right to Life During Armed Conflict: Disabled Peoples' International
v. United States, 29 Harv. Int'l L.J. 59 (1988). The claim was subsequently withdrawn. While the
U.S. Agency for International Development provided ex gratia compensation to individual victims
and to rebuild the hospital, the U.S. maintained that it had no legal obligation to do so since its
actions were in compliance with the law of armed conflict. Richmond Hill v. United States, Case
9213, Report No. 3/96, Inter-Am. C.H.R., OEA/Ser. L/V/II.91 Doc. 7 at 201 (1996). See also
paragraph 8.1.2.1 (p. 404) regarding incidental injury and collateral damage.
See also the Japanese acceptance of responsibility for the 12 December 1937 sinking in the
Yangtze River of the U.S. gunboat USS PANAY by Japanese aircraft (38 U.S. Naval War
College, International Law Situations, with Situations and Notes, 1938, at 129-50 (1940);
Swanson, The Panay Incident: Prelude to Pearl Harbor, U.S. Naval Inst. Proc, Dec. 1967, at 26,
and the United States acceptance of responsibility for the sinking on 1 April 1945 of the Japanese
passenger-cargo vessel AWA MARU on a voyage in which she had been given assurances of safe
passage, Agreement and Agreed Terms of Understanding on the Settlement of Awa Mam Claim,
Tokyo, 14 April 1949, 9 Bevans 467.
During the course of the afternoon of 8 June 1982, near the end of the Falklands/Malvinas
war, the Liberian flag tanker HERCULES, in ballast, was attacked three times by Argentinian
military aircraft about 600 miles east of Argentina and nearly 500 miles from the Falklands in the
South Adantic. The bombing and rocket attacks damaged her decks and hull and left one
undetonated bomb lodged in her starboard side. The o /ners decided it was too dangerous to attempt
to remove this bomb and had her scuttled 250 NM off the Brazilian coast. The vessel owner and time
charter sued Argentina in U.S. Federal District Court which held that under the Foreign Sovereign
Immunities Act (FSIA), 28 U.S.C. sec. 1330, 1602-1611, the District Court did not have
subject-matter jurisdiction over the claim. Amerada Hess Shipping Corp. v. Argentine Republic, 638 F.
Supp. 73 (S.D.N.Y. 1986). The Court of Appeals reversed, holding that the facts alleged, if proven,
would constitute clear violations of international law (e.g., 1958 High Seas Convention, Hague XIII)
cognizable under the Alien Tort Statute, 28 U.S.C. sec. 1350, which the Foreign Sovereign
Immunities Act did not change. 830 F.2d 421, 26 Int'l Leg. Mat'ls 1375 (2d Cir. 1987), discussed in
Recent Developments, 28 Va. J. Int'l L. 221 (1988) and Morris, Sovereign Immunity for Military
Activities on the High Seas: Amerada Hess v. Argentine Republic, 23 Int'l Lawyer 213 (1989). The
U.S. Supreme Court reversed, holding the FSIA provides the sole basis for obtaining jurisdiction
over a foreign nation in U.S. courts, and the District Court correctly dismissed the action, 109 S.C.
683, 57 U.S.L.W. 4121, 28 Int'l Leg. Mat'ls 382 (1989), 83 Am. J. Int'l L. 565 (1989).
(continued...)
Adherence and Enforcement 333
23
4. Execute a belligerent reprisal action (see paragraph 6.2.3)
5. Punish individual offenders either during the conflict or upon cessation of
hostilities.
6.2.1 The Protecting Power. Under the Geneva Conventions of 1949, the
treatment of prisoners of war, interned civilians, and the inhabitants of occupied
territory is to be monitored by a neutral nation known as the Protecting
Power. Due to the difficulty of finding a nation which the opposing
21. (...continued)
In para. 13 of Resolution 669 (1990), the U.N. Security Council reaffirmed that Iraq is
"liable under the [Fourth Geneva] Convention in respect of the grave breaches committed by it, as
are individuals who commit or order the commission of grave breaches." U.S. Dep't of State
Dispatch, 1 Oct. 1990, at 129. By para. 8 of Resolution 674 (1990), the U.N. Security Council
reminded Iraq of its liability under international law for "any loss, damage or injury arising in
regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion
and illegal occupation of Kuwait by Iraq." Id., 5 Nov. 1990, at 240. See also U.N.S.C. Resolution
687 (1991) reprinted in 30 Int'l Leg. Mat'ls 846 (1991), which established a compensation
commission to administer a fund from which claims against Iraq would be paid.
22. See, e.g., Report of the Mission Dispatched by the Secretary-General on the Situation of
Prisoners of War in the Islamic Republic of Iran and Iraq, U.N. Doc. S/20147, 24 Aug. 1988.
Diplomatic pressure applied through neutral States or through international organizations has
become a major factor in enforcing the law of armed conflict. During the Southeast Asia conflict,
for example, the United States conducted a successful diplomatic effort through neutral States to
prevent political "show trials" of our prisoners of war. Levie, Maltreatment of Prisoners of War in
Vietnam, 48 Boston U.L. Rev. 323, 344-45 (1968), reprinted in 2 The Vietnam War and
International Law 361, 382-83 (Falk ed. 1969). Accurate, thorough investigation of enemy
violations greatly help in pursuing such diplomatic activity. See paragraph 6.2, note 18 (p. 329).
23. See paragraph 6.2.3 (p. 335).
24. See paragraph 6.2.5 (p. 343).
25. GWS, art. 8; GWS-Sea, art. 8; GPW, art. 8, GC, art. 9; GP I, arts. 2(c) & 5; de Preux,
Synopsis I: Protecting Power, 1985 Int'l Rev. Red Cross 86. The United States strongly supports
the principle that Protecting Powers be designated and accepted without delay from the beginning
of any conflict. Matheson, Remarks, paragraph 6.1, note 1 (p. 323), at 428-29. That principle is
contained in GP I, art. 5, but not unequivocally, and is still subject, in the last instance, to refusal by
the nation in question. Id. The United States thus failed to obtain one of its "basic objectives" in the
negotiations that produced art. 5. Sofaer, Remarks, paragraph 6.2, note 18 (p. 330), at 469-70.
Prior to its entry into World War II, the United States acted as protecting power for British
prisoners of war in Europe. Subsequently, the Swiss assumed this duty for both the United States
and Great Britain. Since World War II, the protecting power system has not worked well because
some countries refuse to permit on-site inspection. There was no protecting power for U.S.
prisoners of war during the conflicts in Korea, Southeast Asia, or Kuwait/Iraq. In fact, since 1949, a
Protecting Power (Switzerland) was appointed only in the following cases: the Suez conflict in
1956, the Goa conflict in 1961 and the war between India and Pakistan in 1971-1972 (although in
the latter case the mandate of Switzerland was not understood in the same way by both parties).
Hay, The ICRC and International Humanitarian Issues, 1984 Int'l Rev. Red Cross 3, 5. During
the Falklands/Malvinas conflict, Switzerland and Brazil, although not formally appointed as
Protecting Powers for the United Kingdom and Argentina respectively, exercised functions of an
intermediary and communicated information. Junod, Protection of the Victims of Armed
Conflict, Falkland-Malvinas Islands (1982), at 20 (1984); ICRC, Commentary 77 n.2.
334 Commander's Handbook on the Law of Naval Operations
belligerents will regard as truly neutral, international humanitarian
organizations, such as the International Committee of the Red Cross, have been
authorized by the parties to the conflict to perform at least some of the functions
of a Protecting Power.
6.2.2 The International Committee of the Red Cross (ICRC). The
ICRC is a private, nongovernmental, humanitarian organization based in
Geneva, Switzerland. The ruling body of the ICRC is composed entirely of
Swiss citizens and is staffed mainly by Swiss nationals. (The ICRC is
distinct from and should not be confused with the various national Red Cross
societies such as the American National Red Cross.) Its principal purpose is
to provide protection and assistance to the victims of armed conflict. The
Geneva Conventions recognize the special status of the ICRC and have
assigned specific tasks for it to perform, including visiting and interviewing
prisoners of war, providing relief to the civilian population of occupied
26. The Conventions allow the ICRC to perform some duties of the Protecting Power if such
a power cannot be found and if the detaining power allows it to so act. GWS, art. 10; GWS-Sea, art.
10; GPW, art. 10; GC, art. 11; GP I, art. 5; see Peirce, Humanitarian Protection for the Victims of
War: The System of Protecting Powers and the Role of the ICRC, 90 Mil. L. Rev. 89 (1980).
In Korea and in Southeast Asia, for example, the ICRC acted in its traditional humanitarian role for
North Korean, Chinese, Viet Cong and North Vietnamese prisoners in the hands of the United
States and its allies notwithstanding refusal by North Korea and North Vietnam to provide ICRC
access to prisoners in their hands. Levie, Maltreatment of Prisoners of War in Vietnam, 48 Boston
U. L. Rev. 323 (1968), reprinted in Schmitt & Green at chap. V; Levie, 2 Code of International
Armed Conflict 312; The International Committee and the Vietnam Conflict, 1966 Int'l Rev.
Red Cross 399; Activities of the ICRC in Indochina from 1965 to 1972, 1973 Int'l Rev. Red
Cross 27.
The ICRC also visited Iraqi POWs held by Coalition Forces in Saudi Arabia during the Gulf War.
Iraq, however, refused ICRC access to Coalition POWs held in Iraq. ICRC Bulletin, March 1991,
at 2.
27. Given the increase in the number of situations in which the ICRC is being called upon to
act, it is becoming common for the ICRC to appoint non-Swiss nationals as post and field officers.
28. Statutes of the International Red Cross and Red Crescent Movement, arts. 1 & 5 (1986),
reprinted in 1987 Int'l Rev. Red Cross 29, 32. The ICRC bases its activities on the principles of
neutrality and humanity, and is part of the International Red Cross and Red Crescent Movement.
Some national Red Cross societies are under government control.
29. Statutes of the International Red Cross and Red Crescent Movement, art. 5(2)(d) (1986),
1987 Int'l Rev. Red Cross 33. See While & Raymer, A Little Humanity: the International
Committee of the Red Cross, 170 National Geographic, November 1986, at 647-79.
The ICRC's responsibility to endeavor to ensure the protection of victims extends not only to
international and non-international armed conflicts and their direct results, but also to internal strife.
Red Cross Movement Statute, art. 5(2) (d). Art. 5 also tasks the ICRC with a number of other functions.
30. The ICRC is also authorized to visit and interview detained or interned civilians in
international armed conflicts. All such interviews must be without witnesses present. GPW, art.
126; GC, arts. 30(3), 76(6), 126 & 143(2).
Adherence and Enforcement 335
31 • ... 32
territories, searching for information concerning missing persons, ^ and
offering its "good offices" to facilitate the establishment of hospital and safety
zones. Under its governing statute, the ICRC is dedicated to work for the
faithful application of the Geneva Conventions, to endeavor to ensure the
protection of military and civilian victims of armed conflict, and to serve as a
neutral intermediary between belligerents.
6.2.3 Reprisal. A reprisal is an enforcement measure under the law of armed
conflict consisting of an act which would otherwise be unlawful but which is
31. GC, arts. 59, 61 & 142.
32. GPW, art. 123, and GC, art. 140; GP I, art. 33, for State parties thereto. The ICRC is also
responsible under these articles for transmitting family messages to PWs and interned civilians.
33. GWS, art. 23(3); GC, art. 14(3). The ICRC is also entitled to receive requests for aid from
protected persons (GC art. 30) and to exercise its right of initiative (Red Cross Movement Statute,
art. 5(3)). The ICRC may ask the parties to a conflict to agree to its discharging other humanitarian
functions in the event of non-international armed conflicts (common article 3) and international
armed conflicts (GWS, art. 9; GWS-Sea, art. 9; GPW, art. 9; GC, art. 10). Hay, paragraph 6.2.1,
note 25 (p. 333) at 6. The ICRC is now also authorized to act in cases of internal strife. Red Cross
Movement Statute, art. 5(2)(d).
34. The 1986 Red Cross Movement Statute (art. 5(2)(c)) expanded the ICRC's mandate to
include working for the "faithful application of international humanitarian law applicable in armed
conflicts." See Forsythe, Human Rights and the International Committee of the Red Cross, 12
Human Rights Q. 265 (1990).
The ICRC has defined "international humanitarian law applicable in armed conflicts" as:
[international rules, established by treaties or custom, which are specifically
intended to solve humanitarian problems directly arising from international or
noninternational armed conflicts and which, for humanitarian reasons, limit the right
of parties to a conflict to use the methods and means of warfare of their choice or
protect persons and property that are, or may be, affected by conflict. The expression
"international humanitarian law applicable in armed conflicts" is often abbreviated
to "international humanitarian law" or "humanitarian law."
1981 Int'l Rev. Red Cross 76.
These rules are derived from the Law of the Hague and the Law of Geneva. The Law of the Hague
deals principally with weapons and methods of warfare and was codified by the 1899 and 1907
Hague Peace Conferences. The law relating to the protection of war victims has been contained in
the various Geneva Conventions (of 1864, 1906, 1929, and 1949). The two traditions (Hague and
Geneva) have been somewhat merged in GP I, since Part III of GP I deals with methods and means
of warfare. As a result, a new term, "rules of international law applicable in armed conflict," was
introduced by GP I to encompass "the rules applicable in armed conflict set forth in international
agreements to which the Parties to the conflict are Parties and the generally recognized principles
and rules of international law applicable in armed conflict" (GP I, art. 2(b)). Although this term has
substantially the same meaning as the ICRC's terms, the ICRC's role does not extend to
supervision of the conduct of hostilities.
The ICRC has issued the following internal guidelines to govern its activities in the event of
breaches of the law:
(continued...)
336 Commander's Handbook on the Law of Naval Operations
34. (...continued)
1. Steps taken by the ICRC on its own initiative
General rule: The ICRC shall take all appropriate steps to put an end to violations of
international humanitarian law or to prevent the occurrence of such violations. These
steps may be taken at various levels according to the gravity of the breaches involved.
However, they are subject to the following conditions:
Confidential character of steps taken: In principle these steps will remain confidential.
Public statements: The ICRC reserves the right to make public statements
concerning violations of international humanitarian law if the following conditions
are fulfilled:
- the violations are major and repeated;
- the steps taken confidentially have not succeeded in putting an end to the violations;
- such publicity is in the interest of the persons or populations affected or threatened;
- the ICRC delegates have witnessed the violations with their own eyes, or the
existence and extent of those breaches were established by reliable and verifiable
sources. . . .
1981 Int'l Rev. Red Cross 81-83.
The ICRC made overt representations regarding the Iran-Iraq War. See 1983 Int'l Rev. Red Cross
220-22 (press release of 11 May 1983 describing appeal of 7 May 1983 to the nations party to the
Geneva Conventions); 1984 id. 113-15 (press release of 15 Feb. 1984 regarding appeal to
governments of 10 Feb. 1984); 1984 id. 357-58 (press release describing appeal to governments of
24 Nov. 1984). The ICRC issued a press release regarding misuse of the Red Cross emblem in
Lebanon, 1985 Int'l Rev. Red Cross 316-17; a press release regarding the Afghan Conflict on 20
May 1984, 1985 id. 239-40; and a press release (no. 1705) regarding the escalation of fighting in
Bosnia-Herzegovina on 10 April 1992.
The ICRC Guidelines provide:
Special rule: The ICRC does not as a rule express any views on the use of arms or
methods of warfare. It may, however, take steps and, if need be, make a public
statement if it considers that the use or the threat to make use of a weapon or method
of warfare gives rise to an exceptionally grave situation.
Such situations arose during the course of the Iran-Iraq War. ICRC, Annual Report 1984, at 60-61
(7 March 1984 report on the use of prohibited weapons, and 7 June 1984 press release on the
bombing of Iraqi and Iranian cities); 1987 Int'l Rev. Red Cross 217 (appeal of 11 Feb. 1987
regarding bombing of cities); ICRC Bull., April 1988, at 4 (10 March 1988 press release protesting
against bombing of cities, and 23 March 1988 press release condemning use of chemical weapons in
the province of Sulaymaniyah).
For the appeals and notes verbale issued by the ICRC to the parties to the Persian Gulf Conflict, see
1990 Int'l Rev. Red Cross 444, 1991 id. 22-30 and 211-14.
The ICRC Guidelines continue:
2. Reception and transmission of complaints
Legal basis: In conformity with article 6(4) of the Statutes of the International Red
Cross, the ICRC is entitled to take cognizance of "complaints regarding alleged
breaches of the humanitarian Conventions".
(continued...)
Adherence and Enforcement 337
34. (...continued)
Complaints from a party to a conflict or from the National Society of a party to a conflict: The
ICRC shall not transmit to a party to a conflict (or to its National Red Cross or Red
Crescent Society) the complaints raised by another party to that conflict (or by its
National Society) unless there is no other means of communication and,
consequently, a neutral intermediary is required between them.
Complaints from third parties: Complaints from third parties (governments, National
Societies, governmental or nongovernmental organizations, individual persons) shall
not be transmitted.
If the ICRC has already taken action concerning a complaint it shall inform the
complainant inasmuch as it is possible to do so. If no action has been taken, the ICRC
may take the complaint into consideration in its subsequent steps, provided that the
violation has been recorded by its delegates or is common knowledge, and insofar as
it is advisable in the interest of the victims.
The authors of such complaints may be invited to submit them directly to the
parties in conflict.
Publicity given to complaints received: As a general rule the ICRC does not make public
the complaints it receives. It may publicly confirm the receipt of a complaint if it
concerns events of common knowledge and, if it deems it useful, it may restate its
policy on the subject.
3. Requests for inquiries
The ICRC can only take part in an inquiry procedure if so required under the
terms of a treaty or of an ad hoc agreement by all the parties concerned. It never sets
itself up, however, as a commission of inquiry and limits itself to selecting, from
outside the institution, persons qualified to take part in such a commission.
The ICRC shall moreover not take part in an inquiry procedure if the procedure does not
offer a full guarantee of impartiality and does not provide the parties with means to defend
their case. The ICRC must also receive an assurance that no public communications on an
inquiry request or on the inquiry itself shall be made without its consent.
As a rule, the ICRC shall only take part in the setting up of a commission of
inquiry, under the above-stated conditions, if the inquiry is concerned with
infringements of the Geneva Conventions or of their 1977 Protocols. It shall on no
account participate in the organization of a commission if to do so would hinder or
prevent it from carrying out its traditional activities for the victims of armed conflicts,
or if there is a risk of jeopardizing its reputation of impartiality and neutrality. . . .
4. Requests to record violations
If the ICRC is asked to record the result of a violation of international
humanitarian law, it shall only do so if it considers that the presence of its delegates
will facilitate the discharge of its humanitarian tasks, especially if it is necessary to
assess victims' requirements in order to be able to help them. Moreover, the ICRC
shall only send a delegation to the scene of the violation if it has received an assurance
that its presence will not be used to political ends.
These guidelines do not deal with violations of international law or humanitarian
principles to the detriment of detainees whom they have to visit as part of the activities
which the ICRC's mandate requires it to carry out in the event of internal disturbances
or tensions within a given State. Since this type of activity is based on ad hoc agreements
with governments, the ICRC follows specific guidelines in such situations.
(continued...)
338 Commander's Handbook on the Law of Naval Operations
justified as a response to the unlawful acts of an enemy. The sole purpose of a
reprisal is to induce the enemy to cease its illegal activity and to comply with the
law of armed conflict. Reprisals may be taken against enemy armed forces,
enemy civilians other than those in occupied territory, and enemy property.
6.2.3.1 Requirements for Reprisal. To be valid, a reprisal action must
conform to the following criteria:
34. (...continued)
1981 Int'l Rev. Red Cross 81-83. See also ICRC Protection and Assistance Activities in Situations
Not Covered by International Humanitarian Law, 1988 id. 9-37.
35. Kalshoven, Belligerent Reprisals 33 (1971). McDougal and Feliciano have defined reprisal
during armed conflict as follows:
Legitimate war reprisals refer to acts directed against the enemy which are conceded
to be generally unlawful, but which constitute an authorized reaction to prior
unlawful acts of the .enemy for the purpose of deterring repetition of such antecedent
acts. The doctrine of reprisal thus permits the use of otherwise lawless violence as a
response to the lawless violence.
McDougal & Feliciano 679-80.
36. Reprisals may lawfully be taken against enemy individuals who have not yet fallen into the
hands of the forces making the reprisals. Under customary international law, members of the
enemy civilian population are legitimate objects of reprisals. The United States nonetheless considers
reprisal actions against civilians not otherwise legitimate objects of attack to be inappropriate in most
circumstances. For nations party to GP I, enemy civilians and the enemy civilian population are
prohibited objects of reprisal. The United States has found this new prohibition to be militarily
unacceptable because renunciation of the option of such attacks "removes a significant deterrent that
presendy protects civilians and other war victims on all sides of a conflict." Sofaer, Remarks, paragraph
6.2, note 18 (p. 329) at 469. For a contrary view, see Kalshoven, Noncombatant Persons, in Robertson
at 306. See paragraph 6.2.3.2 (p. 340) for a further discussion of immunity from reprisals.
Collective loss of rights for residents of occupied territory is clearly prohibited by art. 33 of GC.
Internment and assigned residence, whether in the occupying power's natural territory or in
occupied territory, are "exceptional" measures to be taken only after careful consideration of each
individual case. These strict limitations are a direct reaction to the abuses which occurred during
World Wars I and II. See 4 Pictet 256-58. See also Terry, State Terrorism: A Juridical Examination
in Terms of Existing International Law, 10 J. Pal. Studies 94 (1980) for a thorough discussion of
illegal collective measures in occupied territory.
Paragraph 6.2.3 deals only with reprisals taken by one belligerent in response to illegal acts of
warfare performed by the armed forces of an enemy. Paragraph 6.2.3 does not deal with the
collective measures an occupying power may take against the population of an occupied territory
in response to illegitimate acts of hostility committed by the civilian population. Art. 50 of HR
provided that no general penalty, pecuniary or otherwise, may be inflicted upon the population of
occupied territory on account of acts of individuals "for which they cannot be regarded as jointly
and severally responsible," and contemplated that bona fide fines, in a reasonable amount, intended
to insure respect for the rules and decrees in force, were lawful (Levie, 2 The Code of
International Armed Conflict 743). GC, art. 33(1) provides that penal liability is personal:
No protected person may be punished for an offense he or she has not personally
committed. Collective penalties . . . are prohibited.
(continued...)
Adherence and Enforcement 339
1 . Reprisal must be ordered by an authorized representative of the belligerent
government. (For the rule applicable to the United States, see paragraph 6.2.3.3) .
2. It must respond to illegal acts of warfare committed by an adversary
government, its military commanders, or combatants for which the adversary is
responsible. Anticipatory reprisal is not authorized.
3. When circumstances permit, reprisal must be preceded by a demand for redress
by the enemy of its unlawful acts.
4. Its purpose must be to cause the enemy to cease its unlawful activity. Therefore,
acts taken in reprisal should be brought to the attention of the enemy in order to
achieve maximum effectiveness. Reprisal must never be taken for revenge.41
5. Reprisal must only be used as a last resort when other enforcement measures
have failed or would be of no avail.
6. Each reprisal must be proportional to the original violation.43
36. (...continued)
Although the collective measures taken by an occupying power against the population of an
occupied territory are frequently referred to as "reprisals," they should be clearly distinguished
from reprisals between belligerents dealt with here. Nevertheless, it should be remembered that
GC arts. 4 & 33(3) prohibit reprisals against civilians in occupied territory. Thus, those acts
permitted cannot amount to penal punishments or reprisals. See also Lowe, The Commander's
Handbook on the Law of Naval Operations and the Contemporary Law of the Sea, in Robertson
at 133-34.
37. See AFP 110-31, para. 10-7c(8). See also paragraph 6.2.3.3 (p. 341).
38. A careful inquiry by the injured belligerent into the alleged violating conduct should
precede the authorization of any reprisal measure. This is subject to the important qualification
that, in certain circumstances, an offended belligerent is justified in taking immediate reprisals
against illegal acts of warfare, particularly in those situations where the safety of his armed forces
would clearly be endangered by a continuance of the enemy's illegal acts. See paragraph 6.2.3.3
(p. 341) regarding authority to order reprisals.
39. There must be reasonable notice that reprisals will be taken. Green, The Contemporary
Law of Armed Conflict (1993) at 119. The degree of notice required will depend upon the
particular circumstances of each case. Notice is normally given after the enemy's violation but may,
in appropriate circumstances, predate an imminent violation. An example of notice is an appeal to
the transgressor to cease its offending conduct and punish those responsible. Such an appeal may
serve both as a plea for compliance and a notice to the adversary that reprisals will be taken
otherwise. See also FM 27-10, para. 497b.
40. Acts taken in reprisal may also be brought to the attention of neutrals if necessary to achieve
maximum effectiveness. Since reprisals are undertaken to induce an adversary's compliance with
the recognized rules of armed conflict, any action taken as a reprisal must be announced as a reprisal
and publicized so that the adversary is aware of its obligation to abide by the law and to ensure that
the reprisal action is not, itself, viewed as an unlawful act. See McDougal & Feliciano 689 and AFP
110-31, para. 10-7c.
41. FM 27-10, para. 497d.
42. Id., para. 497b.
43. This rule is not one of strict equivalence because the reprisal will usually be somewhat
(continued...)
340 Commander's Handbook on the Law of Naval Operations
7. A reprisal action must cease as soon as the enemy is induced to desist from its
unlawful activities and to comply with the law of armed conflict.
6.2.3.2 Immunity From Reprisal. Reprisals are forbidden to be taken against:
1 . Prisoners of war and interned civilians
2. Wounded, sick, and shipwrecked persons
3. Civilians in occupied territory
49
4. Hospitals and medical facilities, personnel, and equipment, including hospital
ships, medical aircraft, and medical vehicles.
43. (...continued)
greater than the initial violation that gave rise to it. However, care must be taken that the extent of
the reprisal is measured by some degree of proportionality and not solely by effectiveness. Effective
but disproportionate reprisals cannot be justified by the argument that only an excessive response
will forestall a further transgression. Compare McDougal & Feliciano 682-83.
The acts resorted to by way of reprisal need not conform in kind to those complained of by the
injured belligerent. The reprisal action taken may be quite different from the original act which
justified it, but should not be excessive or exceed the degree of harm required to deter the enemy
from continuance of his initial unlawful conduct. McDougal & Feliciano 682.
If an act is a lawful reprisal, it cannot lawfully be a basis for a counter-reprisal. Under international
law, there can be no reprisal against a lawful reprisal.
44. When, for example, one party to an armed conflict commits a breach of law but follows
that violation with an expression of regret and promise that it will not be repeated, then any action
taken by another party to "right" the situation cannot be justified as a lawful reprisal.
45. GPW, art. 13(3); GPW 1929, art. 2(3). Prisoners of war are defined in GPW, art. 4A; see
paragraph 11.7 (p. 489). In light of the wide acceptance of the 1949 Geneva Conventions by the
nations of the world today, this prohibition is part of customary law. Meron, The Geneva
Conventions as Customary Law, 81 Am. J. Int'l L. 348 (1987); Meron, Human Rights and
Humanitarian Norms as Customary Law (1989). Compare NWIP 10-2, para. 310e(l) n.8 ("War
crimes tribunals have considered the rule forbidding reprisals against prisoners of war as a
codification of existing customary law. Hence, this prohibition may be regarded as binding upon
all States regardless of whether or not they are parties to the 1949 Convention.") with Levie,
Prisoners of War 366-69 (describing contrary State practice during both World Wars and the
Korean and Vietnam conflicts). The taking of prisoners by way of reprisal for acts previously
committed (so-called "reprisal prisoners") is likewise forbidden.
46. GC, art. 33(3); see also paragraph 11.8 (p. 495).
47. GWS, art. 46, GWS-Sea, art. 47, as defined in GPW, art. 4A.
48. GC, art. 33, as defined in GC, art. 4. Also immune from reprisals under the Geneva
Conventions are the property of such inhabitants, enemy civilians in a belligerent's own territory,
and the property of such civilians. GC, art. 33, as defined in GC, art. 4.
Civilians not protected from reprisal under these provisions are nationals of a nation not bound by
the GC, nationals of a neutral nation in the territory of a belligerent, and nationals of a
cobelligerent so long as their nation has normal diplomatic relations with the nation in whose
territory they are. These exceptions are eliminated under GP I for nations bound thereby.
49. GWS, art. 46, GWS Sea, art. 47. Medical personnel are defined in GWS, arts. 24-26 and
GWS-Sea, art. 36. See paragraph 1 1 .5 (p. 486). Chaplains attached to the armed forces (GWS, art.
(continued...)
Adherence and Enforcement 341
6.2.3.3 Authority to Order Reprisals. The President alone may authorize
the taking of a reprisal action by U.S. forces.51 Although reprisal is lawful when
the foregoing requirements are met, there is always the risk that it will trigger
retaliatory escalation (counter-reprisals) by the enemy.52 The United States has
historically been reluctant to resort to reprisal for just this reason.
49. (...continued)
46, GWS-Sea, art. 47) as set forth in GWS, art. 24 and GWS-Sea, art. 36, are also immune from
reprisal. See also Green, Essays on the Modern Law of War (1985) at chap VI.
50. Fixed establishments and mobile medical units of the medical service, hospital ships, coastal
rescue craft and their installations, medical transports, and medical aircraft are immune from reprisal
under GWS, art. 46, GWS-Sea, art. 47, as set forth in GWS, arts. 19, 20, 35 & 36- GWS-Sea arts
22, 24, 25, 27 & 39. '
McDougal and Feliciano, in commenting on the question of immunity from reprisal, argue that:
The cumulative effect of the Geneva Conventions of 1949 is that all enemy persons
who find themselves within a belligerent's effective control are immunized as targets
of reprisal. Practically the only enemy persons who may be lawfully subjected to
reprisals are those on the high seas and in the enemy's own teritory.
McDougal & Feliciano 684.
51. See also paragraph 6.2.3.1 (p. 338).
52. McDougal & Feliciano 689. Other factors which governments will usuaUy consider before
taking reprisals include the following:
1. Reprisals may have an adverse influence on the attitudes of governments not
participating in an armed conflict.
2. Reprisals may only strengthen enemy morale and underground resistance.
3. Reprisals may only lead to counter-reprisals by an enemy, in which case the
enemy's ability to retaliate effectively is an important factor.
4. Reprisals may render enemy resources less able to contribute to the
rehabilitation of an area after the cessation of hostilities.
5. The threat of reprisals may be more effective than their actual use.
6. Reprisals, to be effective, should be carried out speedily and should be kept
under control. They may be ineffective if random, excessive, or prolonged.
7. In any event, the decision to employ reprisals will generally be reached as a
matter of strategic policy. The immediate advantage sought must be weighed
against the possible long-range military and political consequences.
AFP 110-31, para. 10-7d, citing NWIP 10-2, ch. 3, n. 6.
Many attempted uses of reprisals in past conflicts have been unjustified either because the reprisals
were not undertaken to deter violations by an adversary or were disproportionate to the preceding
unlawful conduct. In addition to the legal requirements which regulate resort to reprisals, there are
various practical factors which governments will consider before taking reprisals. For'example
when appeal to the enemy for redress has failed, it may be a matter of policy to consider before
resorting to reprisals, whether the opposing forces are not more likely to be influenced by a steady
adherence to the law of armed conflict. The relative importance of these political and practical
ractors depends upon the degree and kind of armed conflict, the character of the adversary and its
resources, and the importance of nations not participating in hostilities. See Colbert, Retaliation in
(continued...)
342 Commander's Handbook on the Law of Naval Operations
6.2.4 Reciprocity. Some obligations under the law of armed conflict are
reciprocal in that they are binding on the parties only so long as both sides
continue to comply with them. A major violation by one side will release the
other side from all further duty to abide by that obligation. The concept of
52. (...continued)
International Law (1948); 10 Whiteman 317-39; Kalshoven, Belligerent Reprisals (1971); and
Greenwood, Reprisals and Reciprocity in the New Law of Armed Conflict, in Armed Conflict
and the New Law (Meyer ed. 1989) at 227 for thorough discussions of reprisals.
The following activities, otherwise prohibited under the law of armed conflict, are among those
which may lawfully be taken in reprisal:
1. Restricted means and methods of warfare set forth in the Hague Conventions of 1907
and, for parties thereto, in GP I, unless specifically prohibited as a means of reprisal. Among the
otherwise unlawful means and methods of warfare that may be employed as reprisal are:
a. employing poison or poisoned weapons;
b. killing, wounding or capturing treacherously or perfidiously individuals
belonging to the hostile nation or army, such as by feigning incapacitation
by wounds or sickness or of civilian noncombatant status;
c. killing or wounding an enemy who, having laid down his arms, or
having no longer a means of defense, has surrendered at discretion;
d. declaring that no quarter will be given;
e. employing weapons, projectiles, or material or methods of warfare of a
nature to cause superfluous injury or unnecessary suffering;
f. making improper use of a flag of truce, of the national, or neutral flag or of
the military insignia and uniform of the enemy as well as the distinctive
badges of the Geneva Conventions;
g. use of unanchored submarine contact mines or mines and torpedoes
which do not render themselves harmless within one hour after they have
broken loose from their moorings or have been fired.
2. Military or other hostile use of environmental modification techniques prohibited by
the 1977 Environmental Modification Convention.
3. For nations party thereto, the use of weapons the primary effect of which is to injure by
fragments which in the human body escape detection by X-rays, in violation of Protocol I to the
1980 Conventional Weapons Convention.
4. For nations party thereto, the use of mines, booby traps and other devices, in violation of j
Protocol II to the Conventional Weapons Convention.
5. For nations party thereto (not including the United States), the use of incendiary
weapons in a manner which violates Protocol III to the Conventional Weapons Convention.
For a discussion of U.S. objections to new restrictions on reprisal set forth in GP I, see paragraph
6.2.3, note 36 (p. 338). Compare Hampson, Belligerent Reprisals and the 1977 Protocols to the
Geneva Conventions of 1949, 37 Int'l & Comp. L.Q. 818 (1988). See also Aldrich, Compliance [
with International Huamnitarian Law, 1991 Int'l Rev. Red Cross 294, 301-03, who examines the
need for States contemplating ratification of GP I, with and without accepting the competence of:
the Fact Finding Commission, to reserve one or more of the provisions on reprisals.
53. Most truces and armistices are of this nature.
Adherence and Enforcement 343
reciprocity is not applicable to humanitarian rules of law that protect the victims
of armed conflict, that is, those persons protected by the 1949 Geneva
54
Conventions. The decision to consider the United States released from a
particular obligation following a major violation by the enemy will be made by the
NCA.
6.2.5 War Crimes Under International Law. For the purposes of this
publication, war crimes are defined as those acts which violate the law of armed
conflict, that is, the rules established by customary and conventional
international law regulating the conduct of warfare, and which have been
generally recognized as war crimes. Acts constituting war crimes may be
committed by the armed forces of a belligerent or by individuals belonging to the
55
civilian population. Belligerents have the obligation under international law to
54. Vienna Convention on the Law of Treaties, art. 60(5) reprinted in 8 Int'l Leg. Mat'ls 679
(1969); de Preux, The Geneva Conventions and Reciprocity, 1985 Int'l Rev. Red Cross 25 (those
portions of GP I & II supplementing the 1949 Geneva Conventions are also not subject to the
principle of reciprocity).
55. War crimes, as defined in paragraph 6.2.5, are distinguished from "crimes against peace"
and "crimes against humanity." This distinction may be seen from art. 6 of the Charter of the
International Military Tribunal at Nuremburg, which defined the Tribunal's jurisdiction as
follows:
The following acts, or any one of them, are crimes coming within the jurisdiction of
the Tribunal for which there shall be individual responsibility [see paragraph 6.1.4
(p. 328)]:
(a) Crimes against peace: namely, planning, preparation, initiation, or waging of a war
of aggression, or a war in violation of international treaties, agreements or assurances,
or participation in a common plan or conspiracy for the accomplishment of any of
the foregoing;
(b) War crimes: namely, violations of the laws or customs of war. Such violations shall
include, but not be limited to, murder, ill treatment, or deportation to slave labor or
for any other purpose, of civilian population of or in occupied territory, murder or ill
treatment of prisoners of war or persons on the seas, killing of hostages, plunder of
public or private property, wanton destruction of cities, towns or villages, or
devastation not justified by military necessity;
(c) Crimes against humanity: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian population,
before or during the war, or persecutions on political, racial, or religious grounds in
execution of or in connection with any crime within the jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where perpetuated.
U.S. Naval War College, International Law Documents 1944-45, at 254 (1946); AFP 110-20, at
3-183.
Although the distinction between crimes against peace and war crimes is readily apparent, there is a
certain difficulty in distinguishing war crimes from crimes against humanity. The precise scope of
those acts included within the category of crimes against humanity is not entirely clear from the
(continued...)
344 Commander's Handbook on the Law of Naval Operations
55. (...continued)
definition given in art. 6 of the Charter of The International Military Tribunal at Nuremberg. A
survey of the judgments of the various tribunals which tried individuals for crimes against
humanity committed during World War II may be summarized in the following manner:
1. Certain acts constitute both war crimes and crimes against humanity and may be
tried under either charge.
2. Generally, crimes against humanity are offenses against the human rights of
individuals, carried on in a widespread and systematic manner. Thus, isolated
offenses have not been considered as crimes against humanity, and courts have
usually insisted upon proof that the acts alleged to be crimes against humanity
resulted from systematic governmental action.
3. The possible victims of crimes against humanity constitute a wider class than
those who are capable of being made the objects of war crimes and may include the
nationals of the State committing the offense as well as stateless persons.
4. Acts constituting crimes against humanity must be committed in execution of, or
in connection with, crimes against peace, or war crimes.
See Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int'l L (1946) 178; Dinstein, Crimes Against
Humanity, in Theory of International Law at the Threshold of the 21st Century (Makarczyk ed.
1996); Levie, Violation of Human Rights as War Crimes, 1995 Isr. Y.B. Human Rights 119.
On 21 November 1947, the United Nations General Assembly adopted Resolution 177(11)
affirming "the principles of international law recognized by the Charter of the Nuremberg
Tribunal and the judgment of the Tribunal" and directing the International Law Commission of
the United Nations to:
(a) Formulate the principles of international law recognized in the Charter of the
Nuremburg Tribunal and in the judgment of the Tribunal, and
(b) Prepare a draft code of offenses against the peace and security of mankind
The text of the principles formulated by the United Nations International Law Commission, with
a commentary, is reprinted in Report of the International Law Commission Covering its Second
Session, General Assembly Official Records: Fifth Session, Supp. No. 12 (A/1316), Pt. Ill, pp.
11-14 (1950); Yearbook of the International Law Commission 1950, at 374-80; and Schindler &
Toman 923-24. That text reads as follows:
Principle I. Any person who commits an act which constitutes a crime under
international law is responsible therefor and liable to punishment.
Principle II. The fact that internal law does not impose a penalty for an act which
constitutes a crime under international law does not relieve the person who
committed the act from responsibility under international law.
Principle III. The fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible Government official
does not relieve him from responsibility under international law.
Principle IV. The fact that a person acted pursuant to order of his Government or of a
superior does not relieve him from responsibility under international law, provided a
moral choice was in fact possible to him.
Principle V. Any person charged with a crime under international law has the right
to a fair trial on the facts and law.
(continued...)
Adherence and Enforcement 345
55. (...continued)
Principle VI. The crimes hereinafter set out are punishable as crimes under
international law: [Here follow substantially similar definitions of crimes against peace,
war crimes and crimes against humanity, as are given in art. 6 of the Charter of the
International Military Tribunal at Nuremberg, quoted at the beginning of this note.]
Principle VII. Complicity in the commission of a crime against peace, a war crime, or
a crime against humanity as set forth in Principle VI is a crime under international
law.
For a discussion of difficulties in punishing war crimes committed in non-international armed
conflicts, see Plattner, The Penal Repression of Violations of International Humanitarian Law
Applicable in Non-International Armed Conflicts, 1990 Int'l Rev. Red Cross 409. See also Meron,
International Criminalization of Internal Atrocities, 89 Am. J. Int'l L. 554 (1995); Bothe, War Crimes
in Non-International Conflicts in War Crimes in International Law (Dinstein & Tabory eds. 1996) at
293-306. For a comprehensive and chilling analysis of crimes against humanity committed by
governments against their own populations, see Rummel, Death by Government (1994).
The International Tribunal for Yugoslavia, established in 1993 pursuant to U.N.S.C. Resolution
829 (see paragraph 6.1.3, note 13 (p. 327)), was empowered to prosecute persons for:
a. Grave breaches of the Geneva Conventions of 1949;
b. Violations of the laws or customs of war;
c. Genocide; and
d. Crimes against humanity.
In contrast, and reflecting the differing factual and legal setting between the conflict in the former
Yugoslavia and that in Rwanda, the International Criminal Tribunal for Rwanda, established in
1994 pursuant to U.N.S.C. Resolution 955 (see paragraph 6.1.3, note 13 (p. 327)), was empowered
to prosecute persons for:
a. Genocide
b. Crimes against humanity
c. Violations of common article 3 and of GP II
Crimes against humanity are identically defined in art. 5 of the Statute for the International Tribunal
for Yugoslavia and in art. 3 of the Statute for the International Criminal Tribunal for Rwanda as:
. . . the following crimes committed in armed conflict, whether international or
internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
The inclusion of rape on this listing of crimes against humanity represents a departure from
Nuremberg where rape was neither mentioned in the Nuremberg Charter nor prosecuted as a war
crime. However, GC, art. 27, provides that:
Women shall be especially protected against any attack on their honor, in particular against rape. . . .
(continued...)
346 Commander's Handbook on the Law of Naval Operations
punish their own nationals, whether members of the armed forces or civilians,
56
who commit war crimes. International law also provides that belligerents have
the right to punish enemy armed forces personnel and enemy civilians who fall
under their control for such offenses.
55. (...continued)
The United States considers that GC, art. 27, and comparable provisions of GPW (arts. 13 & 14),
establish rape as a war crime. See Meron, Comment: Rape as a Crime Under International
Humanitarian Law, 87 Am. J. Int'l L. 425 (1993).
Genocide is defined in both Statutes (Yugoslavia, art. 4; Rwanda, art. 2) as:
. . . any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group;
This definition is identical to that set forth in art. II of the U.N. Convention on the Prevention and
Punishment of the Crime of Genocide, Paris, 12 January 1951, 78 U.N.T.S. 277, reprinted in 11
Whiteman 849 [hereinafter Genocide Convention]. The Genocide Convention entered into
force for the U.S. on 23 February 1989. The Genocide Convention Implementation Act of 1987,
Pub. L. 100-606 of Nov. 4 1988, with commentary, is reprinted in 28 Int'l Leg. Mat'ls 754 (1989). It
is important to note that genocide "whether committed in time of peace or in time of war is a crime
under international law." (Genocide Convention, art. I).
56. The most recent action of the United States with respect to this obligation occurred on 21
August 1996 when President Clinton signed into law the War Crimes Act of 1996. Pub. L. 104-192,
110 Stat. 2184, 18 U.S.C. 2401 reprinted in 35 Int'l Leg. Mat'ls 1539 (1996). The Act provides:
2401. War Crimes
(a) OFFENSE. -Whoever, whether inside or outside the United States, commits a grave
breach of the Geneva Conventions, in any of the circumstances described in subsection (b), shall be
fined under this title or imprisoned for life or any term of years, or both, and if death results to the
victim, shall also be subject to the penalty of death.
(b) CIRCUMSTANCES. -The circumstances referred to in subsection (a) are that the
person committing such breach or the victim of such breach is a member of the Armed Forces of
the United States or a national of the United States (as deined in section 101 of the Immigration and
Nationality Act).
(c) DEFINITIONS.-As used in this section, the term 'grave breach of the Geneva
Conventions' means conduct defined as a grave breach in any of the international conventions
relating to the laws of warfare signed at Geneva 12 August 1949 or any protocol to any such
convention, to which the United States is a party.
For a comprehensive discussion of military jurisdiction over war crimes committed by foreign
nations see Newton, Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who
Commit International Crimes, 153 Mil. L. Rev. 1 (Summer 1996).
57. With respect to "grave breaches" (see following note), parties to the Geneva Conventions
of 1949 are obliged to search out, bring to trial and to punish all persons, regardless of nationality,
who have committed or ordered to be committed, a grave breach of the Conventions. GWS, art.
49(2); GWS-Sea, art. 50(2); GPW, art. 129(2); GC, art. 146(2). SeeFlores, Repression ofBreaches
of the Law of War Committed by Individuals, 1991 Int'l Rev. Red Cross 247.
(continued...)
Adherence and Enforcement 347
58
The following acts are representative war crimes:
1. Offenses against prisoners of war, including killing without just cause; torture or
inhumane treatment; subjection to public insult or curiosity; unhealthy,
57. (...continued)
The cases of misconduct by U.S. combatants in Vietnam are analyzed through examination of
court-martial convictions in Parks, Crimes in Hostilities, Marine Corps Gazette, Aug. 1976, at
16-22 & Sep. 1976, at 33-39.
58. While any violation of the law of armed conflict is a war crime, certain crimes are defined
as "grave breaches" by GWS, art. 50; GWS-Sea, art. 51; GPW, art. 130; GC, art. 147 if committed
against persons or property protected by the Conventions. They include:
1. Willful killing, torture or inhuman treatment of protected persons;
2. Willfully causing great suffering or serious injury to body or health of protected
persons;
3. Taking of hostages and extensive destruction and appropriation of property not
justified by military necessity and carried out unlawfully and wantonly;
4. Unlawful deportation or transfer or unlawful confinement of a protected
person;
5 . Compelling a prisoner of war or other protected person to serve in the forces of a
hostile power; and,
6. Willfully depriving a prisoner of war or other protected person of the rights of
fair and regular trial prescribed in the Geneva Conventions.
GP I, arts. 11(4) & 85(2-4), codify in greater detail the two separate categories of grave breaches.
The first category relates to combat activities and medical experimentation and provides for the
first time a meaningful standard by which such acts can be judged. A breach within this category
requires (1) willfulness and (2) that death or serious injury to body or health be caused (art. 85(3)) .
GP I provides that the following acts constitute grave breaches:
1. Making the civilivan population or individual civilians the object of attack;
2. Launching an indiscriminate attack affecting the civilian population or civilian
objects in the knowledge that such attack will cause extensive loss of life, injury to
civilians and damage to civilian objects, as defined in article 57, paragraph 2(a)(iii);
3. Launching an attack against works or installations containing dangerous forces
in the knowledge that such attack will cause excessive loss of life, injury to civilians
or damage to civilian objects, as defined in article 57, paragraph 2(a) (iii);
4. Making non-defended localities and demilitarized zones the object of attack;
5. Making a person the object of attack in the knowledge that he is hors de combat;
6. The perfidious use, in violation of article 37, of the distinctive emblem of the red
cross, red crescent, or other protective sign recognized by the Conventions or this
Protocol;
7. Physical multilations;
8. Medical or scientific experiments; and,
(continued...)
348 Commander's Handbook on the Law of Naval Operations
dangerous, or otherwise prohibited labor; infringement of religious rights; and
denial of fair trial for offenses
58. (...continued)
9. Removal of tissue or organs for transplantation, except where these acts are
justified in conformity with the state of health of the person or consistent with
medical practice or conditions provided for in the Conventions.
(a) Exceptions may be made only in the case of donations of blood for
transfusion or of skin for grafting, provided that they are given voluntarily
and without any coercion or inducement, and then only for therapeutic
purposes, under conditions consistent with generally accepted medical
standards and controls designed for the benefit of both the donor and the
recipient.
(b) Any willful act or omission which seriously endangers the physical or
mental health or integrity of any person who is in the power of a Party other
than the one on which he depends and which either violates any of the
prohibitions above or fails to comply with these requirements is a grave
breach of Protocol I.
The second category of grave breaches defined by GP I is in art. 85(4). The only requirement to be
satisfied with respect to these offenses is willfulness.
1 . The transfer by the occupying power of parts of its own civilian population into
the territory it occupies, or the deportation or transfer of all or parts of the
population of the occupied territory within or outside this territory, in violation of
article 49 of the [GC];
2. Unjustified delay in the repatriation of prisoners of war or civilians;
3. Practices of apartheid and other inhuman and degrading practices involving
outrages upon personal dignity, based on racial discrimination;
4. Making the clearly recognized historic monuments, works of art or places of
worship which constitute the cultural or spiritual heritage of peoples and to which
special protection has been given by special arrangement, for example, within the
framework of a competent international organization, the object of attack, causing
as a result extensive destruction thereof, where there is no evidence of the violation
by the adverse Party of article 53, subparagraph (b), and when such historic
monuments, works of art and places or worship are not located in the immediate
proximity of military objectives, and,
5. Depriving a person protected by the Conventions or referred to in paragraph 2
of Article 85 of fair and regular trial.
See also Levie, 2 The Code of International Armed Conflict 857-71; Burgos, The Taking of
Hostages and International Humanitarian Law, 1989 Int'l Rev. Red Cross 196; and International
Convention Against the Taking of Hostages, New York, December 17, 1979, 1316 U.N.T.S.
205, T.I.A.S. 11081.
59. Principle VI(b), 1950 Nuremberg Principles (see note 55 (p. 343)); GPW, arts. 13, 17(4),
34-37, 52, 84, 87(3), 105 & 130; GP I, art. 75(2)(a).
Adherence and Enforcement 349
2. Offenses against civilian inhabitants of occupied territory, including killing
without just cause, torture or inhumane treatment, forced labor, deportation,
infringement of religious rights, and denial of fair trial for offenses
3. Offenses against the sick and wounded, including killing, wounding, or
mistreating enemy forces disabled by sickness or wounds
4. Denial of quarter (i.e., killing or wounding an enemy hors de combat or making a
genuine offer of surrender) and offenses against combatants who have laid down
their arms and surrendered
5. Offenses against the survivors of ships and aircraft lost at sea, including killing,
wounding, or mistreating the shipwrecked: and failing to provide for the safety of
survivors as military circumstances permit
60. Principle VI(b), 1950 Nuremberg Principles; GC, arts. 27(1), 31-32, 49(6), 95(3), 100,
118(1) & 147; GP I, art. 75(2)(a); GP II, art. 4(2) (a).
61. Lieber Code, art. 71; HR, art. 23(c); GWS, arts. 12(2) & 50; GP I, arts. 10, 41 & 85(3); GP
II, arts. 4(1) & 7(1).
62. HR, arts. 23(c) & 23(d); GP I, art. 40; GP II, art. 4(1); Trial of Von Ruchteschell, 9 LRTWC
82 (British military court, Hamburg, 1947) (denial of quarter at sea). See paragraph 1 1.9.5 (p. 499)
regarding use of the white flag.
63. Principle VI(b), 1950 Nuremberg Principles; GWS-Sea, arts. 12(2) & 51. This rule was
applied in the 1921 case of the Llandovery Castle, 16 Am. J. Int'l L. 708 (1922); and in a number of
World War II cases, including The PELEUS Trial, 1 LRTWC 1 (British Military Court, Hamburg,
1945), The Trial ofMoehle, 9 LRTWC 75 (British Military Court, Hamburg, 1946) and in the Trial of
Helmuth Von Ruchteschell, 9 LRTWC 92 (1949). The PELEUS and Von Ruchteschell cases are
summarized in Mallison 133-43 and in Jacobsen, A Juridical Examination of the Israeli Attack on the
U.S.S. Liberty, 36 Nav. L. Rev. 48 & 50 (1986). Jacobsen 45-51 argues the Israeli machinegunning of
liferafts on board and thrown from USS LIBERTY, after the attack on the LIBERTY was
completed, falls within this prohibition. See paragraph 11.4 (p. 484). There was no prosecution of
U.S. and Australian forces for the systematic killing of the Japanese survivors of the March 1943,
Batde of the Bismark Sea, who were in lifeboats or clinging to wreckage. See 6 Morison, History of
the United States Naval Operations in World War II, 62 etseq. (1950); Spector, Eagle Against the Sun
227-28 (1985); Dower, War Without Mercy: Race & Power in the Pacific War 67 (1986). Indeed
the Commanding Officer of USS WAHOO was awarded the Navy Cross and an Army
Distinguished Service Cross following his January 1943 patrol notwithstanding his slaughter of the
survivors ofWAHOO's torpedoing of a convoy of two freighters and a large transport. 2 Blair, Silent
Victory 357-60 (1975); Dower 66-67 & n.94. Blair notes that, although the Commanding Officer
[D] escribed the killing of the hundreds (or thousands) of survivors of the transport . . .
no queston was raised about it in the glowing patrol report endorsements, where
policy was usually set forth. Many submariners interpreted this — and the honors and
publicity showered on [Captain] Morton and Wahoo — as tacit approval from the
submarine high command. In fact, neither Lockwood [Commander Submarine
Force Pacific] nor Christie [Commander Task Force 51] nor Fife [Commander Task
Force 42] ever issued a policy statement on the subject. Whether other skippers
should follow Morton's example was left up to the individual. Few did.
Blair 359-60. The following language of GWS-Sea, art. 12, makes clear that since the coming into
force of the 1949 Geneva Conventions, such acts are unlawful:
(continued...)
350 Commander's Handbook on the Law of Naval Operations
6. Wanton destruction of cities, towns, and villages or devastation not justified by
the requirements of military operations; and bombardment, the sole purpose of
which is to attack and terrorize the civilian population
7. Deliberate attack upon medical facilities, hospital ships, medical aircraft, medical
vehicles, or medical personnel
8. Plunder and pillage of public or private property
9. Mutilation or other mistreatment of the dead
/TO
10. Employing forbidden arms or ammunition
11. Misuse, abuse, or firing on flags of truce or on the Red Cross device, and
. . 69
similar protective emblems, signs, and signals
12. Treacherous request for quarter (i.e., feigning surrender in order to gain a
military advantage).
6.2.5.1 Trials During Hostilities. Although permitted under international
law, nations rarely try enemy combatants while hostilities are in progress. Such
63. (...continued)
Article 12
Members of the armed forces . . . who are at sea and who are ... . shipwrecked, shall
be respected and protected in all circumstances, it being understood that the term
"shipwreck" means shipwreck from any cause ....
See Doswald-Beck at 136.
64. HR, arts. 23(g) & 25; Hague IX, art. 1(1); Principle VI(b), 1950 Nuremberg Principles;
GP I, art. 51(2); GP II, art. 13(2).
65. GWS, arts. 19(1), 20 & 36(1); GWS-Sea, arts. 22-27 & 39(1); GC, arts. 18(1), 21, 22(1);
GP I, arts. 12 & 22; GP II, art. 11; Llandovery Castle Case of Dithmar and Boldt, German
Reichgericht, 16 July 1921, 16 Am. J. Int'l L. 708 (1922).
66. HR, arts. 28, 47 & 56; Hague IX, art. 7; Principle VI(b), 1950 Nuremberg Principles;
GWS, art. 15(1); GWS-Sea, art. 18(1); GC, arts. 16(2) & 33(2); GP II, arts. 4(2)(g) & 8.
67. GWS, art. 15(1); GWS-SEA, art. 18(1); GC, art. 16(2); GP I, art. 34(1); GP II, art. 8.
68. HR, arts. 23(a) & 23(e); GP I, art. 35(2).
69. HR, arts. 23(f) & 32-34; 1923 Radio Rules, art. 10 (reprinted in 32 Am. J. Int'l L. Suppl. 10,
(1938)); Levie, 2 The Code of International Armed Conflict 871 (distress signals); GP I, arts. 37(1),
38(1) & 85(3)(f); GWS, arts. 53 & 54; GWS-Sea, arts. 43 & 45; GP I, arts. 18(8), 38 & 85(3)(f); Trial
of Heinz Hagendorf, 1 1 LRTWC 146 (U.S. military court at Dachau, 1946). See 10 Whiteman 398
(white flag lawfully fired on during Korean War); Higginbotham, Case Studies in the Law of Land
Warfare II: The Campaign in the Falklands, Military Rev., Oct. 1984, at 53.
70. HR, art. 23(b); GP I, art. 40.
71 . Exceptions include limited Russian trials in 1943 (McDougal & Feliciano 704) and the trial
of Doolittle's raiders in Japan (Glines, Doolittle's Raiders (1964); Schultz, The Doolittle Raid
305-17, 347-48 (1988); and Spaight 58). This is not to deny that atrocities were committed against
prisoners of war, but only to suggest that this method of adjudication is not routinely employed
against lawful combatants.
Adherence and Enforcement 351
trials might provoke undesirable actions from an enemy and complicate
humanitarian protections applicable to one's own nationals. Trials of unlawful
combatants have been held. Yet, for similar reasons, such trials may be less than
rigorously pursued during the course of hostilities. (Regarding trials of a nation's
own forces, see paragraph 6.2.5.3.)
6.2.5.2 Trials After Hostilities. Even after the close of hostilities, criminal
trials against lawful enemy combatants have been the exception, not the rule.
72. GPW art. 85 does not prohibit such trials, but does require that prisoners of war retain,
even if convicted, the benefits of that Convention. Many former Communist nations reserved art.
85, in various forms, e.g.:
The Union of Soviet Socialist Republics does not consider itself bound by the
obligation, which follows from Article 85, to extend the application of the
Convention to prisoners of war who have been convicted under the law of the
Detaining Power, in accordance with the principles of the Nuremberg trial, for war
crimes and crimes against humanity, it being understood that persons convicted of
such crimes must be subject to the conditions obtaining in the country in question
for those who undergo their punishment.
The United States explicitly rejected these reservations while accepting treaty relations with the
reserving countries as to the remaining unreserved provisions. The reservations are quoted in
Schindler & Toman 563-94. The reservations to art. 85 are analyzed in Pilloud, Reservations to the
Geneva Conventions of 1949, 1976 Int'l Rev. Red Cross 170-80.
For the United States reaction to the threat by the North Vietnamese Government to try U.S.
prisoners of war, see the 13 July 1966 memorandum of the Assistant Legal Adviser, Department of
State, reprinted in 10 Whiteman 231 and Moore, Law and The Indo-China War 635 (1972).
73. See paragraphs 6.2.5.3 (p. 353) and 12.7.1 (p. 515) and 10 Whiteman 150-95.
Historically, unlawful combatants were often not afforded the benefit of trials although this is now
required by GWS, art. 49; GWS-Sea, art. 50; GPW, art. 129; GC, art. 146; and, for nations party
thereto, GP I, art. 75. Ex Parte Quirin, 317 U.S. 1 (1942), involved the trial of unlawful combatants
who were German soldiers smuggled into the United States via submarine who discarded their
uniforms upon entry, but were captured prior to committing acts of sabotage (see paragraph 12.5.3
(p. 513)).
On historical precedents for war crime trials of adversary personnel, particularly unlawful
combatants, see Cowles, Universality of Jurisdiction over War Crimes, 33 Cal. L. Rev. 177, 203
(1945). He notes:
War criminals . . . are especially found among irregular combatants and former
soldiers who have quit their posts to plunder and pillage . . . such as bandits, brigands,
buccaneers, bushwackers, filibusters, franctireurs, free-booters, guerrillas, ladrones,
marauders, partisans, pirates and robbers . . . Historically, brigandage has been to a
large extent international in character . . . Brigandage is a thriving byproduct of war.
The object ... is to bring out the connection between the past and the present ... It is
not meant to be suggested that war crimes committed by members of regularly
constituted units are any less amenable to such jurisdiction.
74. As to unlawful combatants, this was frequently done by summary punishment without
benefit of trial. See Cowles, Universality of Jurisdiction over War Crimes, 33 Cal. L. Rev. 177
(1945).
352 Commander's Handbook on the Law of Naval Operations
After World War I, responsibility for initiating that conflict was formally
assigned to Kaiser Wilhelm, and an extensive report of alleged atrocities
committed by German troops was prepared by the Allies. No international trials
were held against World War I combatants. Some trials were held by German
7S
authorities of German personnel as required by the Allies. Due to the gross
excesses of the Axis Powers during World War II, involving not only initiation
of aggressive war but also wholesale execution of ethnic groups and enslavement
of occupied territories, the Allied Powers determined that large scale assignment
of individual criminal responsibility was necessary. Crimes against peace and
crimes against humanity were charges against the principal political, military and
industrial leaders responsible for the initiation of the war and various inhumane
policies. The principal offenses against combatants directly related to combat
if
activities were the willful killing of prisoners and others in temporary custodv
Since World War II, such prosecutions after conflicts have not occurred.
75. Treaty of Peace Between the Allied and Associated Powers and Germany, Versailles, June
28, 1919, in 1 The Law of War 417 (Friedman ed. 1972); Commission on the Responsibility of the
Authors of the War and On Enforcement of Penalties, 14 Am. J. Int'l. L. 95 (1920); Judgments of
the Supreme Court at Leipzig of the [World War I] German War Trials, 1 6 Am. J. Int'l L. 674-724
(1922); Mullins, The Leipzig Trials (1921); Woetzel, The Nuremberg Trials in International Law
27 (1962); Glueck, War Criminals, Their Prosecution and Punishment 19 (1944); U.N. Sec'y
Gen. Memorandum, Historical Survey of the Questions of International Criminal Jurisdiction,
A/CN4/7/Rev.l (1949). Lauterpacht, The Law of Nations and the Punishment of War Crimes,
21 Br. Y.B. Int'l L. 58, at 84 (1944) notes that of the 901 cases heard before the Leipzig Supreme
Court in 1923-24, only 13 ended in convictions.
76. A representative sample of the literature is given:
Views on the World War II Trials: Bosch, Judgment on Nuremberg (1970) (survey of views of
others); Nuremberg, German Views of the War Trials (Benton and Grimm ed. 1955); Knieriem,
The Nuremberg Trials (1959) (German); Vogt, The Burden of Guilt (1964) (German);
Maugham, UNO and War Crimes (1951) (English); Morgan, The Great Assize (1948) (English);
Klafkowski, The Nuremberg Principles and the Development of International Law (1966)
(Polish); Ginsberg, Laws of War and War Crimes on the Russian Front: The Soviet View, 11
Soviet Studies 253 (1960); Green, Superior Orders in National and International Law (1976);
Taylor, Nuremburg and Vietnam: An American Tragedy (1970); Doenitz at Nuremberg: A
Reappraisal (Thompson & Strutz eds. 1976); Conot, Justice at Nuremberg (1983); Tusa & Tusa,
The Nuremberg Trial (1984).
On the Tokyo war crimes trials, see Minear, Victors' Justice: The Tokyo War Crimes Trial (1971);
Shiroyama, War Criminal: The Life and Death of Hirota Koki (1974, Bester transl. 1977); and
Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials (1987). As
to Japanese atrocities during WWII generally, see Tanaka, Hidden Horrors: Japanese War Crimes
in World War II (1996).
Bibliographies: Garsse, Genocide, Crimes Against Humanity, War Crimes Trials: A Bibliography
(1951); U.S. Library of Congress, The Nazi State, War Crimes and War Criminals (1954).
Summaries of cases are found in U.N. War Crimes Commission, Law Reports of Trials of War
Criminals, 15 volumes (1949); Appleman, Military Tribunals and International Crimes (1954);
U.S. Gov't, Trials of War Criminals Before The Nuremberg Military Tribunals Under Control
(continued...)
Adherence and Enforcement 353
78
6.2.5.3 Jurisdiction over Offenses. Except for war crimes trials conducted
by the Allies after World War II, the majority of prosecutions for violations of the
law of armed conflict have been trials of one's own forces for breaches of military
discipline. Violations of the law of armed conflict committed by persons subject
to the military law of the United States will usually constitute violations of the
Uniform Code of Military Justice and, if so, will be prosecuted under that
Code.
76. (...continued)
Council Law No. 10 (1946-1949) (principal U.S. trials subsequent to International Military
Tribunal); 11 Whiteman, Digest of International Law 884 (1968).
Judgments: International Military Tribunal (Nuremberg), Judgment and Sentence, 41 Am. J. Int'l L.
172 (1947); International Military Tribunal, Nazi Conspiracy and Aggression, Opinion and
Judgment (1947), excerpted in U.S. Naval War College, International Law Documents 1946-1947,
at 241-307 (1948); International Military Tribunal for the Far East, Judgment, 3 parts (1948),
excerpted mU.S. Naval War College, International Law Documents 1948-1949, at 76-106 (1950).
General Literature: Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes
Trials Under Control Council Law No. 10 (1949); Appleman, Military Tribunals and International
Crimes (1954); Davidson, The Trial of the Germans: An Account of the Twenty-two Defendants
Before the International Military Tribunal at Nuremberg (1966); Jackson, The Case Against the Nazi
War Criminals (1946); Jackson, The Nuremberg Case (1947); Keeshan, Justice at Nuremberg
(1946); Woetzel, The Nuremberg Trials and International Law (1962); Weingartner, Crossroads of
Death: The Story of the Malmedy Massacre and Trial (1979); de Zayas, The Wehrmacht War Crimes
Bureau, 1939-1945 (1989); Levie, Terrorism in War— The Law ofWar Crimes (1992); War Crimes
in International Law (Dinstein & Tabory eds. 1996).
Vietnam: Bilton & Sim, Four Hours in My Lai (1992); Peers, The My Lai Inquiry (1979); The My
Lai Massacre and its Cover-up (Goldstein, Marshall & Schwartz, eds. 1976) (the 1970 Peers
Report); Hersh, Cover-Up (1972); McCarthy, Medina (1972); Everett, Johnson & Rosenthal,
Calley (1971).
77. As an example, see Agreement on the Repatriation of Prisoners of War and Civilian
Internees, para. 15, signed by Bangladesh, India and Pakistan 9 April 1974, in 13 Int'l Leg. Mat'ls
505 (1974). Despite the collection by the U.S. and other nations pursuant to U.N.S.C. Resolution
674 (1990) (see paragraph 6.2, note 20 (p. 330)) of extensive evidence of Iraqi war crimes
committed during the 1990-91 Gulf War, no prosecutions ensued from that effort. See McNeill,
Panel Discussion, in Grunawalt, King & McClain at 619-20 for a brief account of political
difficulties that apparently sidetracked that effort. However, internaitonal support of the concept of
post-conflict trials is again apparent, as evidenced by the recently established International Tribunal
for Yugoslavia (1993) and the International Criminal Tribunal for Rwanda (1994). See paragraph
6.2.5, note 55 (p. 343).
78. See GWS, art. 49; GWS-Sea, art. 50; GPW, art. 129; GC, art. 146. On U.S. jurisdiction
over enemy nationals, see UCMJ, art. 18, which creates jurisdiction in general courts-martial to try
"any person" who by the law of armed conflict is subject to trial by a military tribunal; R.C.M. 201
(f)(1)(B), MCM, 1984; FM 27-10, para. 505d; and AFP 110-31, para 15-4a. See also Newton,
paragraph 6.2.5, note 56 (p. 346).
79. U.S. military personnel tried by court-martial for offenses that constitute war crimes are either
charged with the U.S. domestic equivalent of such offenses, e.g., murder (art. 118), rape (art. 120),
assault (art. 128), cruelty and maltreatment (art. 93); with law-of-war specific offenses, e.g., looting and
pillaging (art. 103); with conduct prejudicial to good order and discipline (art. 134); or with violation of
a lawful general order (art. 92), such as art. 0705, U.S. Navy Regulations, 1990 (see paragraph 6.1.2
(p. 324)). See also Solis, Marines and Military Law in Vietnam: Trial by Fire 32-33 (1989).
354 Commander's Handbook on the Law of Naval Operations
Although jurisdiction extends to enemy personnel, trials have almost
exclusively been against unlawful combatants, such as persons who take part in
combat operations without distinguishing themselves clearly from the civilian
population during battle or those acting without state sanction for private ends.
In the United States, its territories and possessions, jurisdiction is not limited
to offenses against U.S. nationals, but extends to offenses against persons of other
nationalities. Violations by enemy nationals may be tried as offenses against
international law, which forms part of the law of the United States. In occupied
territories, trials are usually held under occupation law. Trials of such personnel
have been held in military courts, military commissions, provost courts, military
government courts, and other military tribunals. There is no statute of
82
limitations on the prosecution of a war crime. (On jurisdiction generally, see
paragraph 3.11.1.)
6.2.5.4 Fair Trial Standards. The law of armed conflict establishes minimum
standards for the trial of foreign nationals charged with war crimes. Failure to
80. See Castrer, The Present Law of War and Neutrality 87 (1954) and Greenspan 502-511.
The United States normally punishes war crimes, including "grave breaches," as such only if they
are committed by enemy nationals or by persons serving the interests of enemy nations. Violations of
the law of armed conflict committed within the United States by other persons will usually constitute
violations of federal or state criminal law and preferably will be prosecuted under such law.
81. Although UCMJ, art. 21, establishes concurrent jurisdiction with general courts-martial in
military commissions, provost courts or other military tribunals for offenses that by the law of
armed conflict may be tried by such commissions or tribunals, GP W, art. 85 provides that POWs
who are prosecuted under the laws of the Detaining Power for acts committed prior to capture
shall retain, even if convicted, the benefits of that Convention. One benefit of GPW appears in art.
102 that POWs can be validly sentenced only if such sentences have been pronounced by the same
courts according to the same procedures as in the case of members of the armed forces of the
Detaining Power. A POW in United States custody would enjoy the same procedural safeguards
afforded to U.S. armed forces personnel under the UCMJ for offenses committed whether before
or after capture. These provisions seem to preclude future use of the type of military commission
that tried General Yamashita. See McDougal & Feliciano 730-31.
82. 1977 Digest of United States Practice in International Law 927; UN Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 26
Nov. 1968, entered into force 1 1 Nov. 1970, not in force for the United States, 8 Int'l Leg. Mat'ls
68 (1969). While not opposed to the basic purposes of this convention, the United States voted
against its adoption because it redefined crimes against humanity in a legally unsatisfactory way and
had retroactive application in nations in which existing limits had expired. Dep't St. Bull., 17 Feb.
1969, at 153. Miller, The Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity, 65 Am. J. Int'l L. 476 (1971) examines the travaux
preparatoires of this convention.
83. GPW arts. 82-108, GC, arts. 64-75 & 1 17-26, GP II, art. 6, and for nations party thereto
GP I, art. 75. The United States supports "in particular" the fundamental guarantees contained in
GP I, art. 75, as ones that should be observed and in due course recognized as customary law even if
they have not already achieved that status. Matheson, Remarks, paragraph 6.1, note 1 (p. 323) at 422 &
427.
Adherence and Enforcement 355
provide a fair trial for the alleged commission of a war crime is itself a war
84
crime.
6.2.5.5 Defenses
6.2.5.5.1 Superior Orders. The fact that a person committed a war crime
under orders of his military or civilian superior does not relieve him from
responsibility under international law. It may be considered in mitigation of
85
punishment. To establish responsibility, the person must know (or have reason
to know) that an act he is ordered to perform is unlawful under international
law. Such an order must be manifestly illegal. The standard is whether under
84. GWS, art. 50; GWS-Sea, art. 51; GPW, art. 130; GC, art. 147; GP I, art. 85(4)(e) (for States
party thereto).
85. See paragraph 6.1.4 (p. 328). The Charter of the International Military Tribunal at
Nuremberg, art. 8, stated:
The fact that the Defendant acted pursuant to order of his Government or of a
superior shall not free him from responsibility, but may be considered in mitigation
of punishment if the Tribunal determines that justice so requires.
U.S. Naval War College, International Law Documents, 1944-45, 255 (1946).
Despite efforts to include a provision on the defense of superior orders in the 1949 Geneva
Conventions, and in GP I, nations could not agree on the balance between military discipline and
the requirements of humanitarian law, and thus left unchanged the international law on the
defense of superior orders. Levie, Protection of War Victims: Protocol I to the 1949 Geneva
Conventions: Supplement (1985), provides the negotiating history of the effort to include a
provision on the defense of superior orders in GP I. See also Levie, The Rise and Fall of an
Internationally Codified Denial of the Defense of Superior Orders, 30 Revue De Droit Militaire
Et De Droit De La Guerre 183 (1991), reprinted in Schmitt & Green at chap. XV. Note that the
Statute for the International Tribunal for Yugoslavia and the Statute for the International Criminal
Tribunal for Rwanda (see paragraph 6.2.5, note 55 (p. 343)) provide (in arts. 7(4) & 6(4)
respectively) the following:
The fact that an accused person acted pursuant to an order of a Government or of a
superior shall not relieve him of criminal responsibility, but may be considered in
anticipation of punishment if the Tribunal determines that justice so requires.
86. The following statement indicates those circumstances in which the plea of superior orders
may serve as a defense:
Undoubtedly, a Court confronted with the plea of superior orders adduced in
justification of a war crime is bound to take into consideration the fact that obedience to
military orders, not obviously unlawful, is the duty of every member of the armed forces
and that the latter cannot, in conditions of war discipline, be expected to weigh
scrupulously the legal merits of the order received; that rules of warfare are often
controversial; and that an act otherwise amounting to a war crime may have been
executed in obedience to orders conceived as a measure of reprisals. Such circumstances
are probably in themselves sufficient to divest the act of the stigma of a war crime.
2 Oppenheim-Lauterpact 568-69.
(continued...)
356 Commander's Handbook on the Law of Naval Operations
the same or similar circumstances a person of ordinary sense and understanding
would know the order to be unlawful. If the person knows the act is unlawful
and only does it under duress, this circumstance may be taken into consideration
either by way of defense or in mitigation of punishment.
6.2.5.5.2 Military Necessity. The law of armed conflict provides that only
that degree and kind of force, not otherwise prohibited by the law of armed
conflict, required for the partial or complete submission of the enemy "with a
minimum expenditure of time, life, and physical resources may be applied. This
principle, often referred to as "military necessity," is a fundamental concept of
86. (.., continued)
As to the general attitude taken by military tribunals toward the plea of superior orders, the
following statement is representative:
It cannot be questioned that acts done in time of war under the military authority of an
enemy cannot involve any criminal liability on the part of officers or soldiers if the acts
are not prohibited by the conventional or customary rules of war. Implicit obedience
to orders of superior officers is almost indispensable to every military system. But this
implies obedience to lawful orders only. If the act done pursuant to a superior's orders
be murder, the production of the order will not make it any less so. It may mitigate but
it cannot justify the crime. We are of the view, however, that if the illegality of the
order was not known to the inferior, and he could not reasonably have been expected
to know of its illegality, no wrongful intent necessary to the commission of a crime
exists and the interior [sic] will be protected. But the general rule is that members of the
armed forces are bound to obey only the lawful orders of their commanding officers and
they cannot escape criminal liability by obeying a command which violates international
law and outrages fundamental concepts of justice.
The Hostage Case (United States v. Wilhelm List et al.), 11 TWC 1236.
87. See U.S. v. Calley, 46 CMR 1131, 48 CMR 19 (1969, 1971). UCMJ, art. 92, requires
members of the armed forces to obey only lawful orders. An order that directs the commission of a
crime is a patently illegal order. Para. 14c(2)(a)(i), Part IV, MCM, 1984.
88. R.C.M. 916(d); U.S. v. Calley, 48 CMR 29 (opinion of J. Quinn), 30 (concurring opinion
of J. Duncan); Green, Superior Orders in National and International Law 142 (1976). R.C.M.
916(d) provides:
Obedience to orders. It is a defense to any offense that the accused was acting pursuant to
orders unless the accused knew the orders to be unlawful or a person of ordinary
sense and understanding would have known the orders to be unlawful.
See Green, Superior Orders and the Reasonable Man, in Essays on the Modem Law ofWar (1985) at chap. HI.
89. An individual may plead duress if he can establish that he acted only under pain of an
immediate threat, e.g., the immediate threat of physical coercion, in the event of noncompliance
with the order of a superior. In the judgment of one tribunal, it was declared that:
[T]here must be a showing of circumstances such that a reasonable man would
apprehend that he was in such imminent physical peril as to deprive him of freedom
to choose the right and refrain from the wrong.
The High Command Case (United States v. Wilhelm von Leeb et al.), 11 TWC 509.
(continued...)
Adherence and Enforcement 357
restraint designed to limit the application of force in armed conflict to that which
is in fact required to carry out a lawful military purpose. Too often it is
misunderstood and misapplied to support the application of military force that is
excessive and unlawful under the misapprehension that the "military necessity"
of mission accomplishment justifies the result. While the principle does
recognize that some amount of collateral damage and incidental injury to
civilians and civilian objects may occur in an attack upon a legitimate military
objective, it does not excuse the wanton destruction of life and property
disproportionate to the military advantage to be gained from the attack.
6.2.5.5.3 Acts Legal or Obligatory Under National Law. The fact that
national law does not prohibit an act which constitutes a war crime under
international law does not relieve the person who committed the act from
responsibility under international law. However, the fact that a war crime
under international law is made legal and even obligatory under national law may
92
be considered in mitigation of punishment.
89. (...continued)
The International Military Tribunal at Nuremberg declared in its judgment that the test of
responsibility for superior orders "is not the existence of the order, but whether moral choice was
in fact possible." 1 Trial of Major War Criminals before the International Military Tribunal,
Nuremberg 14 November 1945- 1 October 1946, at 224 (1947), excerpted in U.S. Naval War
College, International Law Documents, 1946-1947, at 260 (1948).
The following examples illustrate these principles:
Case 1: The deliberate target selection of a hospital protected under the Geneva
Conventions for aerial bombardment would be a violation of law. Although the
person making the selection would be criminally responsible, a pilot given such
coordinates would not be criminally responsible unless he knew the nature of the
protected target attacked and that circumstances (e.g., see paragraph 8.5.1 .4 (p. 424))
did not otherwise justify the attack.
Case 2: Faulty intelligence may cause attacks on targets which are not in fact military
objectives. No criminal responsibility would result in this event unless the attack was
pursued after the correct intelligence was received and communicated to the
attacking force.
Case 3. A naval pilot attacks, admittedly in a negligent manner, and consequently
misses his target, a military objective, by several miles. The bombs fall on civilian
objects unknown to the pilot. No deliberate violation of international law occurred.
However, he might be subject to possible criminal punishment under his own
nation's criminal code for dereliction of duty. He could not properly be charged
with a violation of the law of armed conflict.
90. See Stone 352; McDougal & Feliciano 72 & 528; FM 27-10, para. 3; Note, Military
Necessity in War Crimes Trials, 29 Brit. Y.B. Int'l L. 442 (1953); Greenspan 279; and 3 Hyde
1801. Compare paragraph 5.2, note 6 (p. 292). See also De Mulinen, Handbook on the Law War
For Armed Forces (1987) at 352-55.
91. Principle II, paragraph 6.2.5, note 55 (p. 343); FM 27-10, para. 511.
92. DA Pam 27-161-2, at 249, and sources cited therein.
358 Commander's Handbook on the Law of Naval Operations
6.2.5.6 Sanctions. Under international law, any punishment, including the
death penalty, may be imposed on any person found guilty of a war crime.
United States policy requires that the punishment be deterrent in nature and
proportionate to the gravity of the offense.
93. Levie, 2 The Code of International Armed Conflict 907.
94. FM 27-10, para. 508. For a recent general discussion of issues relating to war crimes trials,
defenses, and other developments regarding international tribunals, see Albany Law Review
Annual Symposium: Conceptualizing Violence: Present and Future Developments in
International Law, in 60 Albany L. Rev. 565-1079 (1997).
Adherence and Enforcement 359
ANNEX A6-1
REPORTABLE VIOLATIONS
SECNAVIST 3300.1 (series), OPNAVINST 3300.52 (Navy) and MCO
3300.3 (Marine Corps), require each person in the Department of the Navy who
has knowledge of or receives a report of an apparent violation of the law of armed
conflict to make that incident known to his immediate commander,
commanding officer, or to a superior officer as soon as is practicable, and requires
commanders and commanding officers receiving reports of noncompliance with
or breaches of the law of armed conflict to report the facts promptly to the
National Military Command Center. The 1949 Geneva Conventions for the
Protection of War Victims (and the 1977 Protocol I Additional to those
Conventions for nations bound thereby) proscribe certain acts which are
commonly accepted as violations of the law of armed conflict. See paragraph
6.1.2, note 9 (p. 325) and accompanying text.
The following are examples of those incidents which must be reported:
1. Offenses against the wounded, sick, survivors of sunken ships, prisoners of
war, and civilian inhabitants of occupied or allied territories including interned
and detained civilians: attacking without due cause; willful killing; torture or
inhuman treatment, including biological, medical or scientific experiments;
physical mutilation; removal of tissue or organs for transplantation; any medical
procedure not indicated by the health of the person and which is not consistent
with generally accepted medical standards; willfully causing great suffering or
serious injury to body or health or seriously endangering the physical or mental
health; and taking as hostages.
2. Other offenses against prisoners of war (POW): compelling a POW to
serve in the armed forces of the enemy; causing the performance of unhealthy,
dangerous, or otherwise prohibited labor; infringement of religious rights; and
deprivation of the right to a fair and regular trial.
3. Other offenses against survivors of sunken ships, the wounded or sick:
when military interests do permit, failure to search out, collect, make provision
for the safety of, or to care for survivors of sunken ships, or to care for members of
armed forces in the field who are disabled by sickness or wounds or who have laid
down their arms and surrendered.
4. Other offenses against civilian inhabitants, including interned and detained
civilians of, and refugees and stateless persons within, occupied or allied
territories: unlawful deportation or transfer, unlawful confinement, compelling
forced labor, compelling the civilian inhabitants to serve in the armed forces of
the enemy or to participate in military operations, denial of religious rights,
360 Commander's Handbook on the Law of Naval Operations
denaturalization, infringement of property rights, and denial of a fair and regular
trial.
5. Attacks on individual civilians or the civilian population, or indiscriminate
attacks affecting the civilian population or civilian property, knowing that the
attacks will cause loss of life, injury to civilians or damage to civilian property that
would be excessive or disproportionate in relation to the concrete and direct
military advantage anticipated, and which cause death or serious injury to body
or health.
6. Deliberate attacks upon medical transports including hospital ships, coastal
rescue craft, and their lifeboats or small craft; medical vehicles; medical aircraft;
medical establishments including hospitals; medical units; medical personnel or
crews (including shipwrecked survivors); and persons parachuting from aircraft
in distress during their descent.
7. Killing or otherwise imposing punishment, without a fair trial, upon spies
and other persons suspected of hostile acts while such persons are in custody.
8. Maltreatment or mutilation of dead bodies.
9. Willful or wanton destruction of cities, towns, or villages, or devastation
not justified by military necessity; aerial or naval bombardment whose sole
purpose is to attack and terrorize the civilian population, or to destroy protected
areas, buildings or objects (such as buildings used for religious, charitable or
medical purposes, historic monuments or works of art); attacking localities
which are undefended, open to occupation, and without military significance;
attacking demilitarized zones contrary to the terms establishing such zones.
10. Improper use of privileged buildings or localities for military purposes.
11. Attacks on facilities — such as dams and dikes, which, if destroyed, would
release forces dangerous to the civilian population — when not justified by
military necessity.
12. Pillage or plunder of public or private property.
13. Willful misuse of the distinctive emblem (red on a white background) of
the red cross, red crescent or other protective emblems, signs or signals
recognized under international law.
14. Feigning an intent to negotiate under a flag of truce or surrender; feigning
incapacitation by wounds or sickness; feigning civilian non-combatant status;
feigning protected status by use of signs, emblems or uniforms of the United
Nations or a neutral or other nation not a party to the conflict or by wearing
civilian clothing to conceal military identity during battle.
15. Firing upon a flag of truce.
16. Denial of quarter, unless bad faith is reasonably suspected.
17. Violations of surrender or armistice terms.
18. Using poisoned or otherwise forbidden arms or ammunition.
19. Poisoning wells, streams or other water sources.
Adherence and Enforcement 361
20. Other analogous acts violating the accepted rules regulating the conduct
of warfare.
Source: SECNAVINST 3300.1 A (series)
362 Commander's Handbook on the Law of Naval Operations
ANNEX A6-2
RULES FOR COMBATANTS
U.S. NAVY
FUNDAMENTAL RULES OF HUMANITARIAN
LAW APPLICABLE IN ARMED CONFLICTS
1. Fight only enemy combatants.
2. Destroy no more than your mission requires.
3. Do not attack enemy soldiers, sailors, airmen or marines who surrender.
Disarm them and turn them over to your superior.
4. Prisoners of war and other detainees shall never be tortured or killed.
5. Collect and care for the wounded, sick and shipwrecked survivors, whether
friend or enemy, on land or at sea.
6. Medical personnel and chaplains, medical and religious facilities and medical
transportation are protected. Respect them and do not attack them.
7. Treat all civilians humanely and respect their property. Do not attack them.
8. Do your best to prevent any violation of the above rules. Report any
violations to the appropriate authority promptly.
9. You cannot be ordered to violate these rules.
10. Discipline in combat is essential. Disobedience of the law of armed conflict
dishonors your nation, the Navy, and you. Far from weakening the enemy's will
to fight, such disobedience strengthens it. Disobedience of the law of armed
conflict is also a crime punishable under the Uniform Code of Military Justice
(UCMJ).
Source: OPNAVINST 3300.52
Adherence and Enforcement 363
U.S. MARINE CORPS
LAW OF WAR PRINCIPLES
Discipline in combat is essential. Disobedience to the law of war dishonors the
Nation, the Marine Corps, and the individual Marine; and far from weakening
the enemy's will to fight, it strengthens it. The following principles require the
Marine's adherence in the accomplishment of any mission. Violations have an
adverse impact on public opinion both national and international and have on
occasion served to prolong conflict by inciting an opponent to continue
resistance and in most cases constitute violations of the UCMJ. Violations of
these principles prejudice the good order and discipline essential to success in
combat.
1. Marines fight only enemy combatants.
2. Marines do not harm enemies who surrender. They must disarm them and
turn them over to their superior.
3. Marines do not kill or torture prisoners.
4. Marines collect and care for the wounded, whether friend or foe.
5. Marines do not attack medical personnel, facilities, or equipment.
6. Marines destroy no more than the mission requires.
7. Marines treat all civilians humanely.
8. Marines do not steal. Marines respect private property and possessions.
9. Marines should do their best to prevent violations of the law of war. They
must report all violations of the law of war to their superior.
Source: Marine Corps Institue Order P1500.44C
CHAPTER 7
The Law of Neutrality
7.1 INTRODUCTION
The law of neutrality defines the legal relationship between nations engaged
in an armed conflict (belligerents) and nations not taking part in such
hostilities (neutrals). The law of neutrality serves to localize war, to limit the
conduct of war on both land and sea, and to lessen the impact of war on
international commerce.
Developed at a time when nations customarily issued declarations of war
before engaging in hostilities, the law of neutrality contemplated that the
transition between war and peace would be clear and unambiguous. With the
■a
advent of international efforts to abolish "war," coupled with the proliferation
of collective security arrangements and the extension of the spectrum of warfare
A
to include insurgencies and counterinsurgencies, armed conflict is now seldom
accompanied by formal declarations of war. Consequently, it has become
1. See McDougal & Feliciano 402; Williams, Neutrality in Modern Armed Conflicts: A
Survey of the Developing Law, 90 Mil. L. Rev. 9 (1980); Norton, Between the Ideology and the
Reality: The Shadow of the Law of Neutrality, 17 Harv. Int'l LJ. 249 (1976); Dinstein, War,
Aggression and Self-defense (2nd ed. 1994) at 25-30; Schindler, Commentary: Neutral Powers in
Naval War, in Ronzitti at 211-22; Green 264-67.
2. See Hague III, art. 1.
3. The Treaty for the Renunciation of War (Kellogg-Briand Pact), 27 August 1928, 46 Stat.
2343, T.S. No. 796, 2 Bevans 732, 94 L.N.T.S. 57 (No. 2137)), and the U.N. Charter, were
designed to end the use of force to settle disputes between nations and eliminate war. On this basis,
the International Law Commission refused, at the beginning of its activities, to deal with the law of
armed conflict:
War having been outlawed, the regulation of its conduct has ceased to be relevant....
If the Commission, at the very beginning of its task, were to undertake this study,
public opinion might interpret its action as showing lack of confidence in the
efficiency of the means at the disposal of the United Nations for maintaining peace.
Y.B. Int'l L. Comm., 1949, at 281. Wars having continued to occur, nations and various
non-governmental entities (i.e., International Committee of the Red Cross (ICRC)) have
continued to develop the law of armed conflict.
4. See Sarkesian, The New Battlefield: The United States and Unconventional Conflicts
(1986); Special Operations in U.S. Strategy (Barnett, Tovar & Shultz eds. 1984); Asprey, War in
the Shadows: The Guerrilla in History (1975); Thompson, Defeating Communist Insurgency:
The Lessons of Malaya and Vietnam (1966); Coll, Ord & Rose.
5. Paragraph 4.1 & note 3 thereunder (p. 249); paragraph 5-1, note 4 (p. 290); Greenwood,
The Concept of War in Modern International Law, 36 Int'l & Comp. L.Q. 283 (1987); Green
69-72.
366 Commander's Handbook on the Law of Naval Operations
increasingly difficult to determine with precision the point in time when
hostilities have become a "war" and to distinguish belligerent nations from
neutrals. Notwithstanding these uncertainties, the law of neutrality continues
to serve an important role in containing the spread of hostilities, in regulating the
conduct of belligerents with respect to nations not participating in the conflict, in
regulating the conduct of neutrals with respect to belligerents, and in reducing
the harmful effects of such hostilities on international commerce.
For purposes of this publication, a belligerent nation is defined as a nation
engaged in an international armed conflict, whether or not a formal declaration
of war has been issued. Conversely, a neutral nation is defined as a nation that
has proclaimed its neutrality or has otherwise assumed neutral status with respect
to an ongoing conflict.
6. See Greenwood id., generally. The traditional rule is that the law of neutrality regulating
the behavior of neutrals and belligerents depends on the existence of a state of war, and not merely
an outbreak of armed conflict. Tucker 199-202; Greenwood id. 297-301.
7. See papagraph 7.2, note 13 (p. 368), Tucker 196-99 and Greenwood, note 5 (p. 365) at
298-99.
8. See McNeill, Neutral Rights and Maritime Sanctions: the Effects of Two Gulf Wars, 31
Va. J. Intl L. 631 (1991); and Robertson, Interdiction of Iraqi Maritime Comnmerce in the
1990-1991 Persian Gulf Conflict, 22 Ocean Dev. & Int'l L. 289 (1991). On 8 July 1996, the I.C.J.
stated that:
The Court finds that as in the case of the principles of humanitarian law applicable in
armed conflict, international law leaves no doubt that the principle of neutrality,
whatever its content, which is of a fundamental character similar to that of the
humanitarian principles and rules, is applicable (subject to the relevant provisions of
the United Nations Charter), to all international armed conflict, whatever type of
weapons might be used.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 8 Jul 1996, reprinted in
35 Int'l Leg. Mat'ls 809 (1996) at para. 89. Compare Janis, Neutrality, in Robertson at 148-55.
Compare also Wright, 1968 Proc. Am. Soc. Int'l L. 79, who argues that "neutrality in principle
cannot exist" within the context of the United Nations Charter.
9. See Greenwood, note 5 (p. 365) at 295-96. Compare Common article 2 of the Geneva
Conventions which "apply to all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if the state of war is not
recognized by one of them."
10. NWIP 10-2, para. 230a; Kelsen 141-44; Tucker 196-197. Greenwood correctly states that
"the law of neutrality is brought into operation by the acts of the neutral States, not the
belligerents." Greenwood note 5 (p. 365) at 301. For example, the United States consistently
proclaimed its neutrality in the Iran-Iraq War of 1980-1988. President Carter, Remarks, 24 Sep.
1980, 16 Weekly Comp. Pres. Docs. 1922 (1980); President Reagan, Written Responses to
Questions, 23 Weekly Comp. Pres. Docs. 556 (19 May 1987); U.S. Dep't of State, U.S. Policy in
the Persian Gulf, Special Report No. 166, July 1987, at 8-11 . The San Remo Manual (para. 13(d))
provides simply that "'neutral' means any State not party to the conflict." See also Doswald-Beck at
87-88 for commentary on this definition.
The Law of Neutrality 367
7.2 NEUTRAL STATUS
Customary international law contemplates that all nations have the option to
refrain from participation in an armed conflict by declaring or otherwise
11
assuming neutral status. The law of armed conflict reciprocally imposes duties
and confers rights upon neutral nations and upon belligerents. The principal
right of the neutral nation is that of inviolability; its principal duties are those of
abstention and impartiality. Conversely, it is the duty of a belligerent to respect
1 2
the former and its right to insist upon the latter. This customary law has, to
11. The choice is a political decision. Similarly, recognition of such nonparticipation is also a
political decision. NWIP 10-2, para. 230a. Although it is usual, on the outbreak of armed conflict,
for nonparticipating nations to issue proclamations of neutrality, a special declaration by
nonparticipating nations of their intention to adopt a neutral status is not required. NWIP 10-2,
para. 231. Hague III, article 2, obligates belligerents to inform neutrals of the existence of a state of
war:
The existence of a state of war must be notified to the neutral Powers without delay,
and shall not take effect in regard to them until after the receipt of a notification,
which may, however, be given by telegraph. Neutral Powers, nevertheless, cannot
rely on the absence of notification if it is clearly established that they were in fact
aware of the existence of a state of war.
Art. 2 is binding between a belligerent nation which is a party to Hague III and neutral nations
which also are parties to the Convention. Parties include the United States and many of its allies,
the former-Soviet Union, and five of the internationally recognized or self-proclaimed permanent
neutral nations e.g., Austria, Finland, Ireland, Sweden and Switzerland.
12. Tucker 202-18, esp. n.14. Impartiality obligates neutral nations to fulfill their duties and to
exercise their rights in an equal (i.e., impartial or non-discriminatory) manner toward all
belligerents, without regard to its differing effect on individual belligerents. Tucker 203-05; Hague
XIII, Preamble and art. 9. Abstention is the neutral's duty to abstain from furnishing belligerents
with certain goods or services. Tucker 206-18; Hague XIII, art. 6. Neutral duties also include
prevention and acquiescence. The neutral has a duty to prevent the commission of certain acts by
anyone within its jurisdiction, e.g., to prevent belligerent acts of hostility in neutral waters, or the
use of neutral ports and waters as a base of operations. Tucker 218-53; Hague XIII, art. 8. The
neutral also has a duty to acquiesce in the exercise by belligerents of those repressive measures
international law permits the latter to take against neutral merchantmen engaged in the carriage of
contraband, breach or attempted breach of blockade, or in the performance of unneutral service.
Tucker 252-58; Green 260-62. The application of these concepts in discussed in the balance of this
Chapter. See Figure A7-1 (p. 400) for a representation of the reciprocal rights and duties of neutrals
and belligerents.
A nation may be neutral, insofar as it does not participate in hostilities, even though it may not be
impartial in its attitude toward the belligerents. Whether or not a position of nonparticipation can
be maintained, in the absence of complete impartiality, depends upon the reaction of the aggrieved
belligerent. NWIP 10-2, para. 230b n.14; Tucker 197 ("the only essential condition for neutral
status is that of non-participation in hostilities"). However the Kellogg-Briand Pact (paragraph 7.1,
note 3 (p. 365)) has been interpreted to permit benevolent neutrality on behalf of victims of
aggression.
(continued...)
368 Commander's Handbook on the Law of Naval Operations
some extent, been modified by the United Nations Charter (see paragraph
7.2.1).
Neutral status, once established, remains in effect unless and until the neutral
1 "\
nation abandons its neutral stance and enters into the conflict.
7.2.1 Neutrality Under the Charter of the United Nations. The Charter of
the United Nations imposes upon its members the obligation to settle
international disputes by peaceful means and to refrain from the threat or use of
force in their international relations. In the event of a threat to or breach of the
peace or act of aggression, the Security Council is empowered to take
enforcement action on behalf of all member nations, including the use of force,
in order to maintain or restore international peace and security. When called
12. (...continued)
On the other hand, the fact that a neutral uses force to resist attempts to violate its neutrality does
not constitute participation in the hostilities. Hague XIII, art. 26; Levie, 2 The Code of
International Armed Conflict 788; 11 Whiteman 185-90. That nations retain their right of
self-defense to enforce maintenance of their neutrality is illustrated by actions of neutral nations in
escorting neutral ships in the Persian Gulf during the Iran-Iraq tanker war (1984-88), including the
United States policy of providing assistance upon request of other neutral flag vessels coming under
unlawful attack by belligerent ships or aircraft. See Dep't St. Bull., July 1988, at 61; McNeill,
paragraph 7.1, note 8 (p. 366), at 638; and De Guttry & Ronzitti, The Iran-Iraq War (1980-1988)
and the Law of Naval Warfare (1993) at 173-209. See also the discussion of distress assistance in
paragraph 3.10.2, note 45 (p. 230).
13. Tucker 202; NWIP 10-2, para. 231, n.16. When the United States is a belligerent, designation
of the neutral status of third nations will ordinarily be promulgated by appropriate directives.
To be distinguished from self-proclaimed neutrals — either "permanent" or temporarily during an
armed conflict — are the two nations currently enjoying internationally recognized permanent
neutrality: Switzerland and Austria. 1 Whiteman 342-64. The self-proclaimed (alliance-free)
neutrals include Finland, Ireland, Sweden, and the Vatican (Holy See). See Wachtmeister,
Neutrality and International Order, Nav. War C. Rev., Spring 1990, at 105. On 15 September
1983, Costa Rica proclaimed a policy of "permanent, active and unarmed neutrality" while
maintaining its status as a party to the OAS and the 1947 Rio Treaty. N.Y. Times, 18 Nov. 1983, at
A12.
14. U.N. Charter, arts. 2(3) & 2(4). See also paragraphs 4.1.1 (p. 250) and 7.2.2 (p. 370).
15. U.N. Charter, arts. 39, 41-42; paragraph 4.1.1, note 8 (p. 251). U.N.S.C. Resolutions
S/1501 (1950), S/1511 (1950), and S/1588 (1950), adopted by the Security Council upon the
occasion of North Korea's invasion of South Korea on 24 June 1950, determined that North
Korea's aggression constituted a "breach of peace," recommended that member nations "furnish
such assistance to the Republic of Korea as may be necessary to repel the armed attack,"
recommended that such forces and assistance be made available to a "unified commander under the
United States," and authorized that unified command to use the U.N. Flag "in the course of
operations against North Korean forces." These Resolutions were adopted during the Soviet
Union's self-imposed absence from Security Council proceedings. Upon the Soviet Union's
return, its veto prevented the Council from taking further action. Thereafter, the General
Assembly, having determined that the Security Council was unable (due to the threat of a Soviet
veto) to "discharge its responsibilities on behalf of all the Member States," adopted the "Uniting for
Peace Resolution" of 3 November 1950 which:
(continued...)
The Law of Neutrality 369
upon by the Security Council to do so, member nations are obligated to provide
assistance to the United Nations, or a nation or coalition of nations
implementing a Security Council enforcement action, in any action it takes and
to refrain from aiding any nation against whom such action is directed.
Consequently, member nations may be obliged to support a United Nations
action with elements of their armed forces, a result incompatible with the
17
abstention requirement of neutral status. Similarly, a member nation may be
called upon to provide assistance to the United Nations in an enforcement action
not involving its armed forces and thereby assume a partisan posture inconsistent
1 8
with the impartiality required by the traditional law of neutrality. Should the
Security Council determine not to institute an enforcement action, each United
19
Nations member remains free to assert neutral status.
15. (...continued)
Resolves that if the Security Council, because of lack of unanimity of the permanent
members, fails to exercise its primary responsibility for the maintenance of
international peace . . . , the General Assembly shall consider the matter immediately
with a view to making appropriate recommendations for collective action ....
U.N.G.A. Res. 377 (V) (1950) (reprinted in 13 Whiteman at 564-68, and in Stone at 282-84).
Thereafter, and as of July 1997, the Security Council has adopted mandatory sanctions only five
times: against Southern Rhodesia (U.N.S.C. Res. S/232 (1966) (trade embargo under article 41),
12 Whiteman 394-95 and U.N.S.C. Res. S/253 (1968) (trade embargo expanded under Chapter
VII), 12 Whiteman 403-07)); against South Africa (U.N.S.C. Res. S/418 (1977) (arms embargo
under Chapter VII), 1977 Digest 934-36)); against Iraq (U.N.S.C. Res. S/661 (1990) (total
embargo under Chapter VII) (reprinted in 29 Int'l Leg. Mat'ls 1325 (1990)); against Yugoslavia
(U.N.S.C. Res. S/713 (1991) (weapons and military equipment embargo under Chapter VII)
(reprinted in 31 Int'l Leg. Mat'ls 1433 (1992)); and against Haiti (U.N.S.C. Res. S/841 (1993) (trade
embargo) (reprinted in 32 Int'l Leg. Mat'ls 1206 (1993)). The Iraqi sanctions are still in force.
16. U.N. Charter arts. 2(5), 25, 43 & 49; paragraph 4.1.1, note 8 (p. 251). For an excellent
discussion of this concept see Title V Report, App. O, pp. 626-29.
17. U.N. Charter arts. 43 & 45; paragraph 4.1.1, note 8 (p. 251). See also Doswald-Beck at
155-56. Some States (e.g., Jordan) continued to assert their neutrality and even to trade with Iraq.
18. U.N. Charter arts. 41 & 49; paragraph 4.1.1, note 8 (p. 251).
19. Traditional concepts of neutral rights and duties are substantially modified when the
United Nations authorizes collective action against an aggressor. Absent a Security Council
resolution to the contrary, nations may discriminate, and even resort to armed conflict in
self-defense, against a nation that is guilty of an illegal armed attack. This follows from art. 51 of the
Charter which recognizes the "inherent right of individual or collective self-defense if an armed
attack occurs against a Member of the United Nations . . . ." See paragraph 4.1.1, note 9 (p. 253).
Under the "Uniting For Peace" Resolution, U.N.G.A. Res. 377(V) (1950) (see note 15 (p. 256)),
the General Assembly of the United Nations may, in the event of a breach of the peace and the
inability of the Security Council to act due to a veto, make "appropriate recommendations to
members for collective measures, including . . . the use of armed force when necessary . . . ." In
contrast to a binding Security Council decision, recommendations of the General Assembly do not
constitute legal obligations for the member nations. In sum, then, although members may
discriminate against an aggressor, even in the absence of any action on the part of the Security
Council, they do not have the duty to do so. In these circumstances, neutrality remains a distinct
possibility. NWIP 10-2, para. 232 n.17; Tucker 13-20, 171-80; Schindler, Neutral Powers in
Naval War, Commentary, in Ronzitti at 211.
370 Commander's Handbook on the Law of Naval Operations
7.2.2 Neutrality Under Regional and Collective Self-Defense
Arrangements. The obligation in the United Nations Charter for member
nations to refrain from the threat or use of force against the territorial integrity or
political independence of any state is qualified by the right of individual and
collective self-defense, which member nations may exercise until such time as
the Security Council has taken measures necessary to restore international peace
and security. This inherent right of self-defense may be implemented
individually, collectively or on an ad hoc basis, or through formalized regional
and collective security arrangements. The possibility of asserting and
maintaining neutral status under such arrangements depends upon the extent to
which the parties are obligated to provide assistance in a regional action, or in the
case of collective self-defense, to come to the aid of a victim of an armed attack.
The practical effect of such treaties may be to transform the right of the parties to
assist one of their number under attack into a duty to do so. This duty may
assume a variety of forms ranging from economic assistance to the commitment
21
of armed forces.
7.3 NEUTRAL TERRITORY22
As a general rule of international law, all acts of hostility in neutral territory,
23
including neutral lands, neutral waters, and neutral airspace, are prohibited. A
neutral nation has the duty to prevent the use of its territory as a place of sanctuary
or a base of operations by belligerent forces of any side. If the neutral nation is
unable or unwilling to enforce effectively its right of inviolability, an aggrieved
belligerent may take such acts as are necessary in neutral territory to counter the
activities of enemy forces, including warships and military aircraft, making
unlawful use of that territory. * Belligerents are also authorized to act in
20. See Kelsen, generally. The Charter recognizes regional collective security arrangements in
Chapter VIII, entitled "Regional Arrangements". See paragraph 4.1.1, note 9 (p. 253).
Each of the collective security treaties to which the United States is party refers to and expresses
recognition of the principles, purposes and/or jurisdiction of the United Nations. Art. 103 of the
U.N. Charter states:
In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail.
21. See NWIP 10-2, para. 233 n. 20.
22. The rules of neutral territory stated in paragraph 7.3 are customary in nature and were
codified in Hague XIII. NWIP 10-2, para. 441 & no. 26.
23. Hague V, art. 1; Hague XIII, art. 2. See Green 265-66.
24. Tucker 260-61; Hague V, art. 5. Cf. Hague XIII, art. 25. Resort to force by a neutral
nation to prevent violation of its territory by a belligerent does not constitute an act of hostility.
Hague V, art. 10.
25. McDougal & Feliciano 406-07; NWIP 10-2, para. 441 & n. 27; Tucker 220-26, 256,
261-62; Harlow, UNCLOSIII and Conflict Management in Straits, 15 Ocean Dev. & Int'lL. 197,
(continued...)
The Law of Neutrality 371
self-defense when attacked or threatened with attack while in neutral territory or
96
when attacked or threatened from neutral territory.
7.3.1 Neutral Lands. Belligerents are forbidden to move troops or war
27
materials and supplies across neutral land territory. Neutral nations may be
required to mobilize sufficient armed forces to ensure fulfillment of their
• • 28
responsibility to prevent belligerent forces from crossing neutral borders.
Belligerent troops that enter neutral territory must be disarmed and interned
until the end of the armed conflict.
A neutral may authorize passage through its territory of wounded and sick
belonging to the armed forces of either side on condition that the vehicles
transporting them carry neither combatants nor materials of war. If passage of
sick and wounded is permitted, the neutral nation assumes responsibility for
providing for their safety and control. Prisoners of war that have escaped their
captors and made their way to neutral territory may be either repatriated or left at
liberty in the neutral nation, but must not be allowed to take part in belligerent
activities while there.
7.3.2 Neutral Ports and Roadsteads. Although neutral nations may, on a
nondiscriminatory basis, close their ports and roadsteads to belligerents, they are
not obliged to do so. In any event, Hague Convention XIII requires that a
24-hour grace period in which to depart must be provided to belligerent
warships located in neutral ports or roadsteads at the outbreak of armed
conflict. Thereafter, belligerent warships may visit only those neutral ports and
roadsteads that the neutral nation may choose to open to them for that
25. (...continued)
204 (1985); Robertson, The "New" Law of the Sea and the Law of Armed Conflict at Sea, in
Moore & Turner at 304.
26. Ibid. Compare San Remo Manual paras. 22 & 30, and commentary in Doswald-Beck at
101-02 & 106-07.
27. Hague V, art. 2; FM 27-10, paras. 516-17. The various ways in which Sweden
responded to demands by Germany in 1941 to transport troops and supplies to and from
Norway via Swedish territory is summarized in Levie, 1 The Code of International Armed
Conflict 156.
28. Hague V, art. 5; FM 27-10, para. 519b.
29. Hague V, art. 11; FM 27-10, paras. 532-36.
30. Hague V, arts. 13-14; FM 27-10, paras. 538-39, 541-43; Green 261-62.
31. NWIP 10-2, para. 443b(l) n. 29; Tucker 240. Cf Hague XIII, art. 9.
32. Hague XIII, art. 13. For the most part, Hague XIII is considered as declaratory of the
customary rules restricting belligerent use of neutral ports and waters. Tucker 219. Those of its
provisions which are not so accepted are identified in the notes which follow. Even in relation to
neutral waters and ports, Hague XIII is not considered as being exhaustive. See Hague XIII, art. 1
and Tucker 219 n. 52.
372 Commander's Handbook on the Law of Naval Operations
33
purpose. Belligerent vessels, including warships, retain a right of entry in
distress whether caused by force majeure or damage resulting from enemy action.
34
7.3.2.1 Limitations on Stay and Departure. In the absence of special
3S
provisions to the contrary in the laws or regulations of the neutral nation,
belligerent warships are forbidden to remain in a neutral port or roadstead in
excess of 24 hours. ' This restriction does not apply to belligerent warships
devoted exclusively to humanitarian, religious, or nonmilitary scientific
37
purposes. (Warships engaged in the collection of scientific data of potential
38
military application are not exempt. ) Belligerent warships may be permitted by
a neutral nation to extend their stay in neutral ports and roadsteads on account of
39
stress of weather or damage involving seaworthiness. It is the duty of the
neutral nation to intern a belligerent warship, together with its officers and crew,
that will not or cannot depart a neutral port or roadstead where it is not entided
• 40
to remain.
Unless the neutral nation has adopted laws or regulations to the contrary, no
more than three warships of any one belligerent nation may be present in the
same neutral port or roadstead at any one time. When warships of opposing
belligerent nations are present in a neutral port or roadstead at the same time, not
less than 24 hours must elapse between the departure of the respective enemy
vessels. The order of departure is determined by the order of arrival unless an
extension of stay has been granted. A belligerent warship may not leave a
33. 11 Whiteman 265-69; Compare Hague XIII, art. 9.
34. NWIP 10-2, para. 443b(l) n. 29, quoting Naval War College, International Law Situations
1939, No. 39, at 43-44 (1940); Tucker 240 & 252. The right of entry in distress does not prejudice
the measures a neutral may take after entry has been granted. Under Hague XIII, art. 24(1), should
the belligerent vessel fail to leave port as soon as the cause of entry is abated, the neutral is entitled to
take such measures as it considers necessary to render the ship incapable of taking to sea during the
war, i.e., to intern it. Levie, 2 The Code of International Armed Conflict 816-17.
35. The practice of most neutral nations has been to adopt the 24 hour limit as the normal
period of stay granted to belligerent warships. NWIP 10-2, para. 443b(l) n. 29; Tucker 241 & n.
93.
36. Hague XIII, arts. 12-13; Tucker 241; San Remo Manual, para. 21. Paragraph 7.3.2.1 has
reference only to the stay of belligerent warships in neutral ports, roadsteads, or territorial sea — not
to passage through neutral territorial seas. Passage is discussed in paragraph 7.3.4 (p. 375).
37. See Hague XIII, art. 14(2).
38. This exception to the exemption from the limitations on stay and departure recognizes the
distinction between marine scientific research and military activities. Compare paragraph 1.5.2,
note 50 (p. 21).
39. Hague XIII, art. 14(1).
40. Hague XIII, art. 24; Tucker 242.
41. Hague XIII, art. 15; NWIP 10-2. art. 443b(2).
42. Hague XIII, art. 15.
43. Hague XIII, art. 16(1).
44. Hague XIII, art. 16(2).
The Law of Neutrality 373
neutral port or roadstead less than 24 hours after the departure of a merchant ship
of its adversary (Hague XIII, art. 16(3)).
7.3.2.2 War Materials, Supplies, Communications, and Repairs.
Belligerent warships may not make use of neutral ports or roadsteads to replenish
or increase their supplies of war materials or their armaments, or to erect or
... . 45
employ any apparatus for communicating with belligerent forces. Although
they may take on food and fuel, the law is unsettled as to the quantities that may
be allowed. In practice, it has been left to the neutral nation to determine the
conditions for the replenishment and refueling of belligerent warships, subject to
the principle of nondiscrimination among belligerents and the prohibition
against the use of neutral territory as a base of operations.
Belligerent warships may carry out such repairs in neutral ports and roadsteads
as are absolutely necessary to render them seaworthy. The law is unsettled as to
whether repair of battle damage, even for seaworthiness purposes, is permitted
under this doctrine. In any event, belligerent warships may not add to or repair
weapons systems or enhance any other aspect of their war fighting capability. It is
the duty of the neutral nation to decide what repairs are necessary to restore
seaworthiness and to insist that they be accomplished with the least possible
delay.
45. Hague XIII, arts. 5 & 18. Although Hague XIII, art. 5, addresses the erection of
communication apparatus, during World War II, practically all neutral nations prohibited the
employment by belligerents of radiotelegraph and radiotelephone apparatus within their territorial
sea. NWIP 10-2, para. 443c n. 31.
46. Hague XIII, art. 19; NWIP 10-2, para. 443d; Tucker 243. Art. 19 limits warships to "the
peace standard" of food, and, in practice, this standard has been adhered to generally by neutral
nations. However, the same art. 19 also establishes two quite different standards for refueling.
Warships may take on sufficient fuel "to enable them to reach the nearest port in their own
country," or they may take on the fuel "to fill up their bunkers built to carry fuel, when in neutral
countries which have adopted this method of determining the amount of fuel to be supplied." The
majority of neutral nations appear to have used the former standard, although it is evident that,
given the appropriate circumstances, either standard may easily permit warships to continue their
operations against an enemy. Para. 20(b) of the San Remo Manual would permit "replenishment
by a belligerent warship or auxiliary vessel of its food, water and fuel sufficient to reach a port in its
own territory . . . ." Hague XIII, art. 20, forbids warships to renew their supply of fuel in the ports
of the same neutral nation until a minimum period of three months has elapsed. NWIP 10-2, para.
443d n. 32; Tucker 243 n. 99.
47. Hague XIII, art. 17; NWIP 10-2, para. 443e. See also, San Remo Manual, para. 20(c).
Some nations have interpreted a neutral's duty to include forbidding, under any circumstances, the
repair of damage incurred in battle. Hence, a belligerent warship damaged by enemy fire that will
not or cannot put to sea once her lawful period of stay has expired, must be interned. However,
other nations have not interpreted a neutral's duty to include forbidding the repair of damage
produced by enemy fire provided the repairs are limited to rendering the ship sufficiently
seaworthy to safely continue her voyage. Art. 17 would appear to allow either interpretation.
NWIP 10-2, para. 443e n. 33; Tucker 244-45. These views are illustrated in the case of the
German pocket battleship ADMIRAL GRAF SPEE:
(continued...)
374 Commander's Handbook on the Law of Naval Operations
7.3.2.3 Prizes. A prize (i.e., a captured neutral or enemy merchant ship) may only
be brought into a neutral port or roadstead because of unseaworthiness, stress of
weather, or want of fuel or provisions, and must leave as soon as such
48
circumstances are overcome or cease to prevail. It is the duty of the neutral
nation to release a prize, together with its officers and crew, and to intern the
offending belligerent's prize master and prize crew, whenever a prize is unlawfully
brought into a neutral port or roadstead or, having entered lawfully, fails to depart
as soon as the circumstances which justified its entry no longer pertain.
7.3.3 Neutral Internal Waters. Neutral internal waters encompass those
waters of a neutral nation that are landward of the baseline from which the
territorial sea is measured, or, in the case of archipelagic states, within the closing
47. (...continued)
On December 13, 1939, the GrafSpee entered the Uruguayan port of Montevideo,
following an engagement with British naval forces. A request was made to the
Uruguayan authorities to permit the GrafSpee to remain fifteen days in port in order
to repair damages suffered in battle and to restore the vessel's navigability. The
Uruguayan authorities granted a seventy-two hour period of stay. Shortly before the
expiration of this period the GrafSpee left Montevideo and was destroyed by its own
crew in the Rio de la Plata. The British Government, while not insisting that Article
17 of Hague XIII clearly prohibited the repair of battle damage, did point to the
widespread practice of States when neutral in forbidding the repair of battle damage
in their ports. In accordance with this practice it was suggested that the GrafSpee's
period of stay be limited to twenty-four hours. Uruguay maintained, however, that
the scope of the neutral's duty required it only to prevent those repairs that would
serve to augment the fighting force of a vessel but not repairs necessary for safety of
navigation.
Tucker 245 n. 2. Tucker comments that this incident is "noteworthy as an example of the extent to
which belligerents seemingly can make use of neutral ports without violating the prohibition
against using neutral territory as a base of naval operations." Ibid. See O'Connell, The Influence of
Law on Sea Power (1975) at 27-30; Pope, The Battle of the River Plate (1956); and Bennett, Battle
of the River Plate (1972) for more detailed discussions of this and other aspects of the Battle of the
River Plate. See also Churchill, The Second World War (1948) at 7-5.
48. Hague XIII, arts. 21-22. There is a difference of opinion as to whether prizes may be kept
in neutral ports pending the decision of a prize court. Hague XIII, art. 23, permits neutrals to allow
prizes into their ports "when they are brought there to be sequestrated pending the decision of a
Prize Court." The United States (as well as the United Kingdom and Japan) did not adhere to
article 23 and has maintained the contrary position. In 1916, the British steamship APPAM, seized
by a German raider, was taken into Hampton Roads under a prize crew. The U.S. Supreme Court
restored the vessel to her owners and released the crew on the basis that the United States would
not permit its ports to be used as harbors of safety in which prizes could be kept. Tlie Steamship
Appam, 243 U.S. 124 (1917). NWIP 10-2, para. 443f n. 34; Tucker 246-47.
49. Hague XIII, arts. 21-22; NWIP 10-2, para. 443f. Illustrative of these rules is the World
War II incident involving the CITY OF FLINT:
(continued...)
The Law of Neutrality 375
50
lines drawn for the delimitation of such waters. The rules governing neutral
ports and roadsteads apply as well to neutral internal waters.
7.3.4 Neutral Territorial Seas. Neutral territorial seas, like neutral territory
generally, must not be used by belligerent forces either as a sanctuary from their
enemies or as a base of operations. Belligerents are obliged to refrain from all
49. (...continued)
On October 9th, 1939, the American merchant steamer City of Flint was visited and
searched by a German cruiser at an estimated distance of 1,250 miles from New
York. The Flint, carrying a mixed cargo destined for British ports, was seized by the
German cruiser on grounds of contraband, and a German prize crew was placed on
board. Between the 9th of October and the 4th of November the American ship was
first taken to the Norwegian port of Tromsoe, then to the Russian city of
Murmansk, and then after two days in the last-named port, back along the
Norwegian coast as far as Haugesund where the Norwegian authorities on
November 4th released the Flint on the grounds of the international law rules
contained in articles XXI and XXII of Hague Convention XIII of 1907. Prizes may
be taken to a neutral harbor only because of an "inability to navigate, bad conditions
at sea, or lack of anchors or supplies." The entry of the Flint into Haugesund on
November 3 was not justified by the existence of any one of these conditions. The
original visit and search and seizure of the Flint by the German warship, the placing of
the prize crew on board, and the conduct of that crew were apparently all in accord
with law. The stay in the harbor of Murmansk, however, was of doubtful legality.
No genuine distress or valid reason for refuge in a so-called neutral harbor is evident
from the examination of the facts. Perhaps the Germans and the Russians hoped to
invoke the provisions of Article XXIII of Hague Convention XIII which authorizes
a neutral power to permit "prizes to enter its ports and roadsteads . . . when they are
brought there to be sequestrated pending the decision of a prize court." This article
has never been accepted generally as a part of international law and was specifically
rejected by the United States in ratifying the convention. The situation was
complicated by the equivocal position of Soviet Russia which was not a neutral in
the traditional sense, in the European war. Under strict rules of international law the
U.S.S.R. was derelict in regard to its neutral duties and should not have permitted
the Flint either to enter Murmansk or to find any sort of a haven there.
U.S. Naval War College, International Law Situations 1939, No. 39 at 24-25 (1940), quoted in
NWIP 10-2, para. 443f n. 35. See also Tucker 246 n. 5; Hyde 2277-82.
50. See paragraph 1.4.1 (p. 15).
51. See paragraph 7.3.2 (p. 371).
52. Hague XIII, art. 5; NWIP 10-2, para. 442; Tucker 226-31 . The prohibition against the use
of neutral territorial waters as a sanctuary was at issue in the ALTMARK incident of February 1940
in which the German ship transporting British prisoners of war to Germany attempted to escape
capture by British warships by transiting south through the western Norwegian territorial sea and
ultimately being driven into Norwegian internal waters, the Jossingfjord, by a British naval
squadron. Over Norwegian objections, HMS COSSACK entered the fjord, boarded ALTMARK
and released the prisoners of war. O'Connell, The Influence of Law on Sea Power 40-44 and
sources listed at 195; Tucker 234-39; 7 Hackworth 568-75; 3 Hyde 2339-40; MacChesney 6-48.
See also note 55 (p. 376) and His Majesty's Stationery Office (H.M.S.O.) Cmd. 8012 (1950).
376 Commander's Handbook on the Law of Naval Operations
acts of hostility in neutral territorial seas except those necessitated by self-defense
or undertaken as self-help enforcement actions against enemy forces that are in
violation of the neutral status of those waters when the neutral nation cannot or
53
will not enforce their inviolability.
A neutral nation may, on a nondiscriminatory basis, suspend passage of
belligerent warships and prizes through its territorial seas, except in international
straits. When properly notified of its closure, belligerents are obliged to refrain
from entering a neutral territorial sea except to transit through international
straits or as necessitated by distress. A neutral nation may, however, allow the
"mere passage" of belligerent warships and prizes through its territorial seas.
While in neutral territorial seas, a belligerent warship must also refrain from
adding to or repairing its armaments or replenishing its war materials.
Although the general practice has been to close neutral territorial seas to
belligerent submarines, a neutral nation may elect to allow passage of
submarines. ' Neutral nations customarily authorize passage through their
53. Hague XIII, art. 1; NWIP 10-2, para. 441 & n. 27; Tucker 219-20. The stated exception
reflects the reality that some neutrals either cannot or will not enforce the inviolability of their
territory. See also paragraph 7.3 and notes 25 & 26 thereunder (pp. 370-371).
54. Territorial Sea Convention, art. 16(3); 1982 LOS Convention, arts. 25(3) & 45(2); Scott,
Reports 847-48 (while leaving resolution of the question to the law of nations, "it seems that a
neutral State may forbid even innocent passage through limited parts of its territorial waters so far as
that seems to it necessary to maintain its neutrality, but that this prohibition cannot extend to straits
uniting two open seas"); NWIP 10-2, para. 443a n. 28. See paragraphs 2.3.2.3 and 2.3.3.1 and
accompanying notes (pp. 1 19 & 121). See also paragraphs 7.3.5 and 7.3.6 (pp. 377 & 378) regarding
transit passage in neutral straits and archipelagic sea lanes passage through neutral archipelagic
waters, respectively.
55. Hague XIII, art. 10; NWIP 10-2, para. 443a. Tucker suggests that the phrase "mere
passage," appearing in Hague XIII, art. 10, should be interpreted by reference to Hague XIII, art.
5, which prohibits belligerents from using neutral waters as a base of operations. Tucker 232-39.
However, that interpretation is not universally held; Tucker 235 n. 84. MacChesney's
examination of the meaning of "mere passage" provides the following insights:
The legislative history provides no conclusive interpretation. The British who
introduced the phrase into their draft of [Article 10] indicated that innocent passage
in the peacetime sense was what they had in mind. . . . [T]he peacetime analogy
serves to indicate the type of passage that belligerents were willing to allow neutrals
to grant. The type of passage contemplated is limited by two basic criteria. It must be
an innocent passage for bona fide purposes of navigation rather than for escape or
asylum. The passage must also be innocent in the sense that it does not prejudice
either the security interests of the coastal State, or the interests of the opposing
belligerent in preventing passage beyond the type agreed to in Article X.
MacChesney 18-19. Para. 19 of the San Remo Manual eschews both "innocent" and "mere" in
describing transit of belligerent warships through neutral territorial waters using simply the term
"passage." See also the amplifying discussion in Doswald-Beck at 98 & 99.
56. Hague XIII, art. 18; Tucker 234 n. 81. See also paragraph 7.3.2.2 and notes 46 & 47
thereunder (p. 373).
57. Tucker 240 n. 89.
The Law of Neutrality 377
territorial sea of ships carrying the wounded, sick, and shipwrecked, whether or
58
not those waters are otherwise closed to belligerent vessels.
7.3.4.1 The 12-Nautical Mile Territorial Sea. When the law of neutrality was
codified in the Hague Conventions of 1907, the 3-nautical mile territorial sea was
the accepted norm, aviation was in its infancy, and the submarine had not yet
proven itself as a significant weapons platform. The rules of neutrality applicable to
the territorial sea were designed primarily to regulate the conduct of surface
warships in a narrow band of water off neutral coasts. The 1982 Law of the Sea
Convention provides that coastal nations may lawfully extend the breadth of
claimed territorial seas to 12 nautical miles. The U.S. claims a 12-nautical mile
territorial sea and recognizes the right of all coastal nations to do likewise.
In the context of a universally recognized 3-nautical mile territorial sea, the
rights and duties of neutrals and belligerents in neutral territorial seas were
balanced and equitable. Although extension of the breadth of the territorial sea
from 3 to 12 nautical miles removes over 3,000,000 square miles of ocean from
the arena in which belligerent forces may conduct offensive combat operations
and significantly complicates neutral nation enforcement of the inviolability of
its neutral waters, the 12-nautical mile territorial sea is not, in and of itself,
incompatible with the law of neutrality. Belligerents continue to be obliged to
refrain from acts of hostility in neutral waters and remain forbidden to use the
territorial sea of a neutral nation as a place of sanctuary from their enemies or as a
base of operations. Should belligerent forces violate the neutrality of those
waters and the neutral nation demonstrate an inability or unwillingness to detect
and expel the offender, the other belligerent retains the right to undertake such
self-help enforcement actions as are necessary to assure compliance by his
adversary and the neutral nation with the law of neutrality.
7.3.5 Neutral International Straits. Customary international law as reflected
in the 1982 Law of the Sea Convention provides that belligerent and neutral
surface ships, submarines, and aircraft have a right of transit passage through,
58. Hague XIII, art. 14(2); Tucker 242.
59. Swarztrauber 32 & 116.
60. 1982 LOS Convention, art. 3.
61. See paragraph 1.2 (p. 2) and accompanying notes.
62. Harlow, The Law of Neutrality at Sea for the 80's and Beyond, 3 Pacific Basin L.J. 51
(1984).
63. Swarztrauber 240.
64. See Robertson, paragraph 7.3, note 25 (p. 370) at 278-80.
65. 2 0'Connellll56;NWIP 10-2, para. 441 &n. 27; Waldock, The Release of the Altmark's
Prisoners, 24 Brit. Y.B. Int'l L. 216, 235-36 (1947) (self-preservation). Tucker 262 n. 40 justifies
the British actions in the ALTMARK incident (paragraph 7.3.4, note 52 (p. 375)) as a "reprisal
measure directed against Norway for the latter's refusal to carry out neutral obligations."
378 Commander's Handbook on the Law of Naval Operations
over, and under all straits used for international navigation. Neutral nations
cannot suspend, hamper, or otherwise impede this right of transit passage
through international straits. ' Belligerent forces transiting through
international straits overlapped by neutral waters must proceed without delay,
must refrain from the threat or use of force against the neutral nation, and must
otherwise refrain from acts of hostility and other activities not incident to their
transit. Belligerent forces in transit may, however, take defensive measures
consistent with their security, including the launching and recovery of aircraft,
screen formation steaming, and acoustic and electronic surveillance.
Belligerent forces may not use neutral straits as a place of sanctuary nor as a base of
operations, and belligerent warships may not exercise the belligerent right of visit
70
and search in those waters. (Note: The Turkish Straits are governed by special
rules articulated in the Montreux Convention of 1936, which limit the number
and types of warships which may use the Straits, both in times of peace and
7 1
during armed conflict.)
7.3.6 Neutral Archipelagic Waters. The United States recognizes the right of
qualifying island nations to establish archipelagic baselines enclosing archipelagic
waters, provided the baselines are drawn in conformity with the 1982 LOS
Convention. '' The balance of neutral and belligerent rights and duties with
respect to neutral waters, is, however, at its most difficult in the context of
archipelagic waters.
66. See paragraph 2.3.3.1 and accompanying notes (pp. 121 to 126).
67. 1982 LOS Convention, art. 44; paragraph 2.3.3.1 and note 42 thereto (p. 125); Tucker 232
& n. 80; San Remo Manual, para. 29.
68. 1982 LOS Convention, art. 39(1); paragraph 2.3.3.1 (p. 121). Neutral forces must similarly
conform to these requirements in the exercise of transit passage through straits.
69. For a discussion of the exercise of self-defense in neutral straits see Harlow, paragraph 7.3,
note 25 (p. 370), at 206. See also paragraph 7.3.7 (p. 379); and San Remo Manual, para. 30. Neutral
forces similarly are entitled to take such defensive measures in neutral straits.
70. See NWIP 10-2, para. 441; cf. Hague XIII, art. 5; paragraph 7.3.4 (p. 375), and paragraph
7.6 & note 116 thereto (pp. 387-388). The belligerent right of visit and search is, of course, to be
distinguished from the warship's peacetime right of approach and visit (discussed in paragraph 3.4
(p. 221)) and to board in connection with drug-interdiction efforts (discussed in paragraph 3.11 .2.2
(p. 235)).
71. Convention Regarding the Regime of Straits (Montreux Convention) of 20 July 1936,
173 L.N.T.S. 213, 31 Am. J. Int'l L. Supp. 4; paragraph 2.3.3.1 note 36 (p. 121). Special regimes
also apply to the Suez Canal, the Panama Canal and the Kiel Canal, all of which remain open to
neutral transit during armed conflict. See paragraph 2.3.3.1, note 36 (p. 121).
72. White House Fact Sheet, Annex Al -8 (p. 83); paragraph 1.4.3 and note 41 thereto (p. 18).
73. The application of the customary rules of neutrality to the newly recognized concept of the
archipelagic nation remains largely unsettled as a doctrine of international law. See Harlow,
paragraph 7.3, note 25 (p. 370) at 24-29; Robertson id. at 292-94.
The Law of Neutrality 379
Belligerent forces must refrain from acts of hostility in neutral archipelagic
waters and from using them as a sanctuary or a base of operations. Belligerent
ships or aircraft, including submarines, surface warships, and military aircraft,
retain the right of unimpeded archipelagic sea lanes passage through, over, and
under neutral archipelagic sea lanes. Belligerent forces exercising the right of
archipelagic sea lanes passage may engage in those activities that are incident to
their normal mode of continuous and expeditious passage and are consistent
with their security, including formation steaming and the launching and
recovery of aircraft. Visit and search is not authorized in neutral archipelagic
77
waters.
A neutral nation may close its archipelagic waters (other than archipelagic sea
lanes whether designated or those routes normally used for international
navigation or overflight) to the passage of belligerent ships but it is not obliged to
78
do so. The neutral archipelagic nation has an affirmative duty to police its
archipelagic waters to ensure that the inviolability of its neutral waters is
79
respected. If a neutral nation is unable or unwilling effectively to detect and
expel belligerent forces unlawfully present in its archipelagic 'waters, the
opposing belligerent may undertake such self-help enforcement actions as may
be necessary to terminate the violation of neutrality. Such self-help enforcement
may include surface, subsurface, and air penetration of archipelagic waters and
airspace and the use of proportional force as necessary.
7.3.7 Neutral Airspace. Neutral territory extends to the airspace over a neutral
nation's lands, internal waters, archipelagic waters (if any), and territorial sea.
82
Belligerent military aircraft are forbidden to enter neutral airspace with the
following exceptions:
74. See NWIP 10-2, para. 441; San Remo Manual, paras. 16 & 17; compare Hague XIII, arts. 1,
2&5.
75. 1982 LOS Convention, arts. 53, 54 & 44; paragraph 2.3.4. 1 and notes 47 & 48 (p. 127).
76. 1982 LOS Convention, art. 53(3); paragraph 2.3.4.1 (p. 127); San Remo Manual, para. 30.
77. Since visit and search is a belligerent activity unrelated to navigational passage, it cannot
lawfully be exercised in neutral territory; San Remo Manual, para. 16(d). Compare Hague XIII,
arts. 1 & 2. See NWIP 10-2, para. 441. The belligerent right of visit and search is, of course, to be
distinguished from the warship's peacetime right of approach and visit (discussed in paragraph 3.4
(p. 221)) and to board in connection with drug-interdiction efforts (discussed in paragraph 3.11 .2.2
(P- 235)).
78. San Remo Manual, para. 19. Compare 1982 LOS Convention, arts. 52(2) & 54; Hague
XIII, art. 9; paragraph 2.3.4.1 (p. 127); compare paragraph 7.3.5 (p. 377).
79. San Remo Manual, para. 22. Compare Hague XIII, art. 25.
80. See NWIP 10-2, para. 441 n. 27; paragraph 7.3, note 25 (p. 370).
81. See paragraph 1.8 (p. 25); San Remo Manual, para. 14.
82. Art. 40, Draft 1923 Hague Rules of Aerial Warfare, The Hague, 19 February 1923,
reprinted in Am. J. Int'lL., vol. 17 (1923), Supp., pp. 245-60 (although never having entered into
(continued...)
380 Commander's Handbook on the Law of Naval Operations
1. The airspace above neutral international straits and archipelagic sea lanes
remains open at all times to belligerent aircraft, including armed military aircraft,
engaged in transit or archipelagic sea lanes passage. Such passage must be
continuous and expeditious and must be undertaken in the normal mode of flight
of the aircraft involved. Belligerent aircraft must refrain from acts of hostility while
in transit but may engage in activities that are consistent with their security and the
security of accompanying surface and subsurface forces.
2. Medical aircraft may, with prior notice, overfly neutral territory, may land
therein in case of necessity, and may use neutral airfield facilities as ports of call,
subject to such restrictions and regulations as the neutral nation may see fit to apply
equally to all belligerents.
3. Belligerent aircraft in evident distress may be permitted to enter neutral airspace
and to land in neutral territory under such safeguards as the neutral nation may
wish to impose. The neutral nation must require such aircraft to land and must
intern both aircraft and crew.
7.3.7.1 Neutral Duties In Neutral Airspace. Neutral nations have an
affirmative duty to prevent violation of neutral airspace by belligerent military
aircraft, to compel offending aircraft to land, and to intern both aircraft and
crew. Should a neutral nation be unable or unwilling to prevent the unlawful
entry or use of its airspace by belligerent military aircraft, belligerent forces of the
other side may undertake such self-help enforcement measures as the
■ 87
circumstances may require.
7.4 NEUTRAL COMMERCE
A principal purpose of the law of neutrality is the regulation of belligerent
activities with respect to neutral commerce. For purposes of this publication,
82. (...continued)
force, the draft rules are generally regarded as declaratory of customary law); NWIP 10-2, para. 444a;
Tucker 251; Spaight 420-460. The practice in World Wars I and II was in general conformity with
the rules stated in paragraph 7.3.7. Spaight 424. See also San Remo Manual, para. 181.
83. See paragraphs 7.3.5 & 7.3.6 (pp. 377 & 378).
84. GWS-Sea, art. 40; GP I, art. 31; NWIP 10-2, para. 444a(l); Tucker 130-31; Spaight
443-44. See also San Remo Manual, paras. 182 & 183.
85. Hague V, art. 11; GP I, art. 31(4); Spaight 436-37; Tucker 252; AFP 110-31, para. 2-6c;
and San Remo Manual para. 18. See paragraph 7.11 and accompanying notes 168 & 169 (p. 399).
NWP 9, para. 7.3.74); NWP 9 (Rev. A), para. 7.3.7(4) and NWIP 10-2, para. 444b, provided that
while the neutral nation could intern belligerent aircraft and crews in such circumstances, they
were not obliged to do so, given the varied practice in WW II. Paragraph 7.3.7(3) has been revised
to reflect the prevailing view. See also paragraph 7.11 (p. 399).
86. NWIP 10-2, para. 444b; Tucker 251; San Remo Manual, para. 18.
87. AFP 110-31, para. 2-6c. See also paragraph 7.3 (p. 370).
The Law of Neutrality 381
neutral commerce comprises all commerce between one neutral nation and
another not involving materials of war or armaments destined for a belligerent
nation, and all commerce between a neutral nation and a belligerent that does
not involve the carriage of contraband or otherwise contribute to the
88
belligerent's war-fighting/ war-sustaining capability. Neutral merchant vessels
and nonpublic civil aircraft engaged in legitimate neutral commerce are subject
to visit and search, but may not be captured or destroyed by belligerent forces.
The law of neutrality does not prohibit neutral nations from engaging in
commerce with belligerent nations; however, a neutral government cannot
itself supply materials of war or armaments to a belligerent without violating its
neutral duties of abstention and impartiality and risking loss of its neutral status.
Although a neutral may forbid its citizens from carrying on non-neutral
commerce with belligerent nations, it is not obliged to do so. In effect, the law
establishes a balance-of-interests test to protect neutral commerce from
unreasonable interference on the one hand and the right of belligerents to
93
interdict the flow of war materials to the enemy on the other.
7.4.1 Contraband. Contraband consists of goods which are destined for the
enemy of a belligerent and which may be susceptible to use in armed conflict.
Traditionally, contraband had been divided into two categories: absolute and
conditional. Absolute contraband consisted of goods whose character made it
obvious that they were destined for use in armed conflict, such as munitions,
weapons, uniforms, and the like. Conditional contraband is goods equally
susceptible to either peaceful or warlike purposes, such as foodstuffs,
construction materials, and fuel. Belligerents often declare contraband lists at
88. Although war-sustaining commerce is not subject to precise definition, commerce that
indirectly but effectively supports and sustains the belligerent's war-fighting capability properly
falls within the scope of the term. See paragraph 8.1.1 & note 11 thereto (pp. 402 & 403). Examples
of war-sustaining commerce include imports of raw materials used for the production of armaments
and exports of products the proceeds of which are used by the belligerent to purchase arms and
armaments.
89. Visit and search is discussed in paragraph 7.6 (p. 387). The limited circumstances under
which capture and destruction of neutral merchant vessels and civil aircraft is permitted are
discussed in paragraph 7.10 (p. 396).
90. Hague XIII, art. 7.
91. See paragraphs 7.2 (p. 367) and 7.4.1 (p. 381); Hague XIII, art. 6; and Tucker 206-18.
92. Hague V, art. 7. For example, see the U.S. Neutrality Act, 18 U.S. Code 963 etseq., and the
Arms Export Control Act, 22 U.S.C. 2271 et seq. See also Green 262-63.
93. 10 Whiteman 792, quoting an unofficial translation of Rousseau, Droit International Public
700-01 (1953). Iran's attacks on neutral ships carrying neutral commerce during the 1984-88
Tanker War as herein defined upset that balance and were unlawful. Roach, Missiles on Target:
The Law of Targeting and The Tanker War, 82 Proc. Am. Soc. Int'l L. 154 (1988). See also
De Guttry & Ronzitti, note 12 (p. 367) at 128-29.
94. NWIP 10-2, art. 631a; Tucker 263. This distinction is expanded on in the following:
(continued...)
382 Commander's Handbook on the Law of Naval Operations
the initiation of hostilities to notify neutral nations of the type of goods
considered to be absolute or conditional contraband as well as those not
considered to be contraband at all, i.e., exempt or "free goods." The precise
nature of a belligerent's contraband list may vary according to the circumstances
of the conflict.
The practice of belligerents since 1939 has collapsed the traditional distinction
between absolute and conditional contraband. Because of the involvement of
94. (...continued)
There are, in the first place, articles which by their very character are destined to be
used in war. In this class are to be reckoned, not only arms and ammunition, but also
such articles of ambiguous use as military stores, naval stores, and the like. These are
termed absolute contraband. There are, secondly, articles which, by their very
character, are not necessarily destined to be used in war, but which, under certain
circumstances and conditions, can be of the greatest use to a belligerent for the
continuance of the war. To this class belong, for instance, provisions, coal, gold, and
silver. These articles are termed conditional or relative contraband. . . . [Although
belligerents must be free to take into consideration the circumstances of the particular
war, as long as the distinction between absolute and conditional contraband is upheld
it ought not to be left altogether to their discretion to declare any articles they like to
be absolute contraband. The test to be applied is whether, in the special
circumstances of a particular war, the article concerned is by its character destined to
be made use of for military, naval, or air-fleet purposes because it is essential to those
purposes. If not, it ought not to be declared absolute contraband. However, it may
well happen that an article which is not by its very nature destined to be made use of
in war, acquires this character in a particular war and under particular circumstances;
and in such case it may be declared absolute contraband. Thus, for instance,
foodstuffs cannot, as a rule, be declared absolute contraband; but if the enemy, for the
purpose of securing sufficient [foodstuffs] for his military forces, takes possession of all
the foodstuffs in the country, and puts the whole population on rations, foodstuffs
acquire the character essential to articles of absolute contraband, and can therefore be
declared to be such.
2 Oppenheim-Lauterpacht 801 & 803. See also Green 158. On starvation as an impermissible
method of warfare, see paragraph 8.1.2, note 15 (p. 404).
95. NWIP 10-2, art. 631b, quoted with approval mMcDougal & Feliciano 482-83; Green 158.
96. NWIP 10-2, art. 631b n.18; Tucker 266-67. O'Connell has correctly noted that "the
central principle is the actual commitment of goods to the prosecution of war, and it is obvious that
the principle is differentially applicable in different circumstances. . . . What is likely to occur in the
event of resuscitation of the law of contraband in future limited wars is a readjustment of the items
on the various lists." 2 O'Connell 1144. In December 1971, Pakistan and India each declared
contraband lists containing items traditionally considered to be absolute contraband. The lists are
reprinted in 66 Am. J. Int'l L. 386-87 (1972). Although neither Iran nor Iraq declared contraband
lists in their 1980-88 war, the fact that both nations attacked neutral crude oil carriers, loaded and in
ballast, indicated both Iran and Iraq regarded oil (as an export commodity) to be contraband since
oil and the armaments which its sale or barter on international markets brought were absolutely
indispensable to the war efforts of the Persian Gulf belligerents. See Viorst, Iraq at War, 65 Foreign
Affairs 349, 350 (Winter 1986/87); Bruce, U.S. Request Stretches Iraq's Patience, 8 Jane's
Defence Weekly 363 (29 Aug. 1987); N.Y. Times, 4 Sep. 1986, at Al & All.
The Law of Neutrality 383
virtually the entire population in support of the war effort, the belligerents of
both sides during the Second World War tended to exercise governmental
control over all imports. Consequently, it became increasingly difficult to draw a
meaningful distinction between goods destined for an enemy government and
its armed forces and goods destined for consumption by the civilian populace. As
a result, belligerents treated all imports directly or indirectly sustaining the war
effort as contraband without making a distinction between absolute and
97
conditional contraband. To the extent that international law may continue to
require publication of contraband lists, recent practice indicates that the
98
requirement may be satisfied by a listing of exempt goods.
7.4.1.1 Enemy Destination. Contraband goods are liable to capture at any
place beyond neutral territory, if their destination is the territory belonging to or
occupied by the enemy. It is immaterial whether the carriage of contraband is
direct, involves transshipment, or requires overland transport. When
contraband is involved, a destination of enemy owned or occupied territory may
be presumed when:
1 . The neutral vessel is to call at an enemy port before arriving at a neutral port for
which the goods are documented
2. The goods are documented to a neutral port serving as a port of transit to an
enemy, even though they are consigned to a neutral
97. The San Remo Manual does not define contraband in terms of it being absolute or
conditional. San Remo Manual, para. 148. See also the commentary on that paragraph in
Doswald-Beck at 215-16.
98. But see San Remo Manual, paras. 149 & 150 which would require publication of lists of
goods considered to be contraband; all else being "free goods" not subject to capture.
99. Tucker 267-68. Stone explains this rule as follows:
"Continuous voyage" is where, in order to obtain immunity during a part of its
voyage to the enemy port, the vessel breaks its journey at a neutral intermediate port,
the contraband being ostensibly destined there. At the neutral port, for appearance's
sake it may unload and reload the same contraband cargo, but in any case it then
proceeds with the cargo on the shortened span of its journey to the enemy port. The
doctrine of continuous voyage prescribes that such a vessel and its cargo are to be
deemed to have an enemy destination (and, therefore, to be liable to seizure) from
the time she leaves her home port. Similarly, "continuous transports" is where the
guilty cargo is unloaded at the neutral port, and is then carried further to the enemy
port or destination by another vessel or vehicle. The corresponding doctrine of
continuous transports applies with similar effect, rendering the cargo liable to seizure
from the time it leaves its home port.
Stone 486. The principles underlying the so-called doctrines of "continuous voyage" and
"continuous transports" or "ultimate destination" were applied by prize courts in both World
Wars I and II. NWIP 10-2, para. 631c(l) n. 19. Development of the doctrine of continuous
voyage is succinctly discussed in 2 O'Connell 1146-47.
384 Commander's Handbook on the Law of Naval Operations
3. The goods are consigned "to order" or to an unnamed consignee, but are
destined for a neutral nation in the vicinity of enemy territory.
These presumptions of enemy destination of contraband render the offending
cargo liable to seizure by a belligerent from the time the neutral merchant vessel
leaves its home or other neutral territory until it arrives again in neutral territory.
Although conditional contraband is also liable to capture if ultimately destined
for the use of an enemy government or its armed forces, enemy destination of
conditional contraband must be factually established and cannot be
presumed.
7.4.1.2 Exemptions to Contraband. Certain goods are exempt from capture
as contraband even though destined for enemy territory. Among them are:
1 . Exempt or "free goods"
2. Articles intended exclusively for the treatment of wounded and sick members of
the armed forces and for prevention of disease
3. Medical and hospital stores, religious objects, clothing, bedding, essential
foodstuffs, and means of shelter for the civilian population in general, and women
and children in particular, provided there is not serious reason to believe that such
goods will be diverted to other purpose, or that a definite military advantage would
accrue to the enemy by their substitution for enemy goods that would thereby
become available for military purposes
100. NWIP 10-2, art. 631c(l). The circumstances creating a presumption of ultimate
destination of absolute contraband here enumerated are of concern to the operating commander
for the reason that circumstances held to create a presumption of enemy destination constitute
sufficient cause for capture. Before a prize court, each of these presumptions is rebuttable and
whether or not a prize court will, in fact, condemn the captured cargo and vessel (or aircraft) will
depend upon a number of complex considerations with which the commander need not be
concerned. NWIP 10-2, para. 631c(l) n. 20. See also Green 158.
101. NWIP 10-2, art. 631c(2); Tucker 270-75. See paragraph 7.4.1.1, note 100 (p. 384).
Regarding capture of a vessel carrying contraband, see paragraph 7.10, note 153 (p. 396).
102. See Tucker 263.
103. NWIP 10-2, para. 631e(l) & n. 17.
104. GWS-Sea, art. 38; NWIP 10-2, para. 631e(2). The particulars concerning the carriage of
such articles must be transmitted to the belligerent nation and approved by it.
105. GC, arts. 23 & 59; Tucker 265 n. 4. For nations bound thereby, GP I, art. 70, modifies the
conditions of GC, art. 23, that a nation may impose before permitting free passage of these relief
supplies. The United States supports the principle contained in GP I, art. 70. The Sixth Annual
American Red Cross- Washington College of Law Conference on International Humanitarian
Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the
1949 Geneva Conventions, 2 Am. U.J. Int'l L. & Policy 426 (1987) (remarks of U.S. Department
of State Deputy Legal Adviser Matheson: the United States supports the principle reflected in GP I,
arts. 54 & 70, "subject to the requirements of imperative military necessity, that impartial relief
actions necessary for the survival of the civilian population be permitted and encouraged").
The Law of Neutrality 385
4. Items destined for prisoners of war, including individual parcels and collective
relief shipments containing food, clothing, medical supplies, religious objects, and
educational, cultural, and athletic articles
5. Goods otherwise specifically exempted from capture by international
convention or by special arrangement between belligerents.
It is customary for neutral nations to provide belligerents of both sides with
information regarding the nature, timing, and route of shipments of goods
constituting exceptions to contraband and to obtain approval for their safe
108
conduct and entry into belligerent owned or occupied territory.
7.4.2 Certificate of Noncontraband Carriage. A certificate of
noncontraband carriage is a document issued by a belligerent consular or other
designated official to a neutral vessel (navicert) or neutral aircraft (aircert)
certifying that the cargo being carried has been examined, usually at the initial
place of departure, and has been found to be free of contraband. The purpose of
such a navicert or aircert is to facilitate belligerent control of contraband goods
with minimal interference and delay of neutral commerce. The certificate is not
a guarantee that the vessel or aircraft will not be subject to visit and search or that
cargo will not be seized. (Changed circumstances, such as a change in status of
the neutral vessel, between the time of issuance of the certificate and the time of
interception at sea may cause it to be invalidated.) Conversely, absence of a
navicert or aircert is not, in itself, a valid ground for seizure of cargo. Navicerts
and aircerts issued by one belligerent have no effect on the visit and search rights
of a belligerent of the opposing side. The acceptance of a navicert or aircert by
a neutral ship or aircraft does not constitute "unneutral service".
7.5 ACQUIRING ENEMY CHARACTER
All vessels operating under an enemy flag, and all aircraft bearing enemy
markings, possess enemy character. However, the fact that a merchant ship flies a
106. The conditions that may be set on these shipments are set forth in arts. 72-75 and Annex
III of GPW.
107. NWIP 10-2, para. 631e(3). See GC, arts. 23 & 59.
108. Compare GC, art. 23(4) and 4 Pictet 184.
109. See NWIP 10-2, para. 631d n. 22 and sources cited therein; 1 Medlicott, The Economic
Blockade (United Kingdom Official History of the Second World War, Civil Series) 94 & 95
(1952); Tucker 280-82, 312-15 & 322-23; McDougal & Feliciano 509-13; 2 O'Connell 1 147-48;
Green 164. A similar procedure was used during the Cuban Missile Crisis, when the United States
issued "clearcerts." Dep't St. Bull., 12 Nov. 1962, at 747; and Mallison, Limited Naval Blockade or
Quarantine-Interdiction: National and Collective Defense Claims Valid Under International
Law, 31 Geo. Wash. L. Rev. 389-90 (1962). See also San Remo Manual, paras. 122-124.
110. "Unneutral service" is discussed in paragraph 7.5.1, note 112 (p. 386).
386 Commander's Handbook on the Law of Naval Operations
neutral flag, or that an aircraft bears neutral markings, does not necessarily
establish neutral character. Any merchant vessel or civilian aircraft owned or
controlled by a belligerent possesses enemy character, regardless of whether it is
111
operating under a neutral flag or bears neutral markings. Vessels and aircraft
acquiring enemy character may be treated by an opposing belligerent as if they
are in fact enemy vessels and aircraft. (Paragraphs 8.2.1 and 8.2.2 set forth the
actions that may be taken against enemy vessels and aircraft.)
7.5.1 Acquiring the Character of an Enemy Warship or Military
Aircraft. Neutral merchant vessels and civil aircraft acquire enemy
character and may be treated by a belligerent as enemy warships and military
aircraft when engaged in either of the following acts:
111. See NWIP 10-2, para. 501; Tucker 76-86; Green 162-63.
A neutral nation may grant a merchant vessel or aircraft the right to operate under its flag, even
though the vessel or aircraft remains substantially owned or controlled by enemy interests.
According to the international law of prize, such a vessel or aircraft nevertheless possesses enemy
character and may be treated as enemy by the concerned belligerent. In view of current
commercial practices, determination of true ownership or control may be difficult.
There is no settled practice among nations regarding the conditions under which the transfer of
enemy merchant vessels (and, presumably, aircraft) to a neutral flag legitimately may be made.
Despite agreement that such transfers will not be recognized when fraudulently made for the
purpose of evading belligerent capture or destruction, nations differ in the specific conditions that
they require to be met before such transfers can be considered as bona fide. However, it is generally
recognized that, at the very least, all such transfers must result in the complete divestiture of enemy
ownership and control. The problem of transfer is mainly the proper concern of prize courts rather
than of an operating naval commander, and the latter is entitled to seize any vessel transferred from
an enemy to a neutral flag when such transfer has been made either immediately prior to, or during,
hostilities. NWIP 10-2, para. 501 n. 5. Compare San Remo Manual, paras. 112-117. See also
Doswald-Beck at 187-95.
On the mid-1987 reflagging of eleven Kuwaiti tankers to U.S. registration, see Weinberger, A
Report to the Congress on Security Arrangements in the Persian Gulf, 26 Int'l Leg. Mat'ls 1450-51
(1987); De Guttry & Ronzitti, paragraph 7.2, note 12 (p. 367), at 121-23.
112. NWIP 10-2, para. 501a; Tucker 319-21. Compare San Remo Manual, paras. 67 (neutral
merchant vessels) & 68 (neutral civil aircraft). With the exception of resistance to visit and search,
the acts defined here (and in examples 7 and 8 of paragraph 7.10 (p. 397)) have been traditionally
considered under the heading of "unneutral service." Although originally established for and
applied to the conduct of neutral vessels, the rules regarding unneutral service have been
considered generally applicable to neutral aircraft as well.
The term "unneutral service" does not refer to acts performed by, and attributable to, a neutral
nation itself. Rather, it refers to certain acts which are forbidden to neutral merchant vessels and
civilian aircraft. Attempts to define the essential characteristics common to acts constituting
unneutral service have not been very satisfactory. However, it is clear that the types of unneutral
service which a neutral merchant vessel or civilian aircraft may perform are varied; hence, the
specific sanctions applicable for acts of unneutral service may vary. The services enumerated in
paragraph 7.5.1 are of such a nature as to identify a neutral merchant vessel or civilian aircraft with
(continued...)
The Law of Neutrality 387
1. Taking a direct part in the hostilities on the side of the enemy
2. Acting in any capacity as a naval or military auxiliary to the enemy's armed
forces.
(Paragraph 8.2.1 describes the actions that may be taken against enemy warships
and military aircraft.)
7.5.2 Acquiring the Character of an Enemy Merchant Vessel or Civil
Aircraft. Neutral merchant vessels and civil aircraft acquire enemy character
and may be treated by a belligerent as enemy merchant vessels or civil aircraft
when engaged in either of the following acts:
1. Operating directly under enemy control, orders, charter, employment, or
direction
114
2. Resisting an attempt to establish identity, including visit and search.
(Paragraph 8.2.2 describes the actions that may be taken against enemy merchant
ships and civil aircraft.)
7.6 VISIT AND SEARCH
Visit and search is the means by which a belligerent warship or belligerent
military aircraft may determine the true character (enemy or neutral) of
merchant ships encountered outside neutral territory, the nature (contraband or
exempt "free goods") of their cargo, the manner (innocent or hostile) of their
employment, and other facts bearing on their relation to the armed conflict.
112. (...continued)
the armed forces of the opposing belligerent for whom these acts are performed, and, for this
reason, such vessels or aircraft may be treated in the same manner as enemy warships or military
aircraft. The acts identified in paragraph 7.5.2 (p. 387) involve neutral merchant vessels and aircraft
operating at the direction or under the control of the belligerent, but not in direct support of the
belligerent's armed forces. Such vessels and aircraft are assimilated to the position of, and may be
treated in the same manner as, enemy merchant vessels and aircraft. The acts of unneutral service
cited in paragraph 7.10 (examples 7 and 8) (p. 397) imply neither a direct belligerent control over,
nor a close belligerent relation with, neutral merchant vessels and aircraft. By custom, vessels
performing these acts, though not acquiring enemy character, are liable to capture. NWIP 10-2,
para. 501a n. 6; Tucker 318-21 & 355-56.
113. This would include neutral merchant vessels in belligerent convoy. See San Remo
Manual, para. 67(e).
114. NWIP 10-2, para. 501b; Tucker 322-23. See paragraph 7.5.1, note 112 (p. 386).
115. Hague XIII, art. 2; Tucker 332-33; Green 163; San Remo Manual, para. 118. The
peacetime right of approach and visit is discussed in paragraph 3.4 (p. 221).
388 Commander's Handbook on the Law of Naval Operations
1 1 ft
Warships are not subject to visit and search. The prohibition against visit and
117 •
search in neutral territory extends to international straits overlapped by
118
neutral territorial seas and archipelagic sea lanes. Neutral vessels engaged in
1 1 Q
government noncommercial service may not be subjected to visit and search.
Neutral merchant vessels under convoy of neutral warships of the same
nationality are also exempt from visit and search, although the convoy
commander may be required to provide in writing to the commanding officer of
an intercepting belligerent warship information as to the character of the vessels
1 20
and of their cargoes which could otherwise be obtained by visit and search.
Should it be determined by the convoy commander that a vessel under his charge
possesses enemy character or carries contraband cargo, he is obliged to withdraw
his protection of the offending vessel, making it liable to visit and search, and
121
possible capture, by the belligerent warship.
7.6.1 Procedure for Visit and Search. In the absence of specific rules of
122
engagement or other special instructions issued by the operational chain of
command during a period of armed conflict, the following procedure should be
carried out by U.S. warships exercising the belligerent right of visit and search:
1. Visit and search should be exercised with all possible tact and consideration.
2. Before summoning a vessel to lie to, the warship should hoist its national flag.
The summons is made by firing a blank charge, by international flag signal (SN or
116. Stone 591-92; 11 Whiteman 3. See also paragraph 2.1.2 (p. 110).
117. Hague XIII, art. 2; NWIP 10-2, para. 441.
118. Harlow, paragraph 7.3, note 25 (p. 370), at 205-06, and 1982 LOS Convention, arts. 39 &
54. See paragraphs 7.3.5 (p. 377) and 7.3.6 (p. 378).
119. Oxford Manual, art. 32, Schindler& Toman 862; paragraph 2.1.3 (p. 112); but see Tucker
335-36 & n. 10.
120. This has been the consistent position of the United States which, while previously not
commonly accepted (NWIP 10-2, para. 502a & n. 10, Tucker 334-35) appears to have recently
achieved such acceptance. See San Remo Manual, para. 120(b). Certainly, the experience of the
convoying by several nations in the Persian Gulf during the tanker war between Iran and Iraq
(1984-1988) supports the U.S. position. See De Guttry & Ronzitti, paragraph 7.2, note 12 (p. 367)
at 105, 188-89 & 197. It is unsettled as to whether this rule would also apply to a neutral nerchant
vessel under convoy of a neutral warship of another flag. The San Remo Manual would apply it if
there exists an agreement to that effect between the flag State of the merchant vessel and the flag
State of the convoying warship. San Remo Manual, para. 120(b).
121. NWIP 10-2, para. 502a n. 10, quotingpzns. 58-59 of the 1941 Tentative Instructions for
the Navy of the United States Governing Maritime and Aerial Warfare.
122. The issuance of certificates of noncontraband carriage are one example of special
instructions. See paragraph 7.4.2 (p. 385). The Visit and Search Bill, contained in paragraph
630.23.5 of OPNAVINST 3120.32 (series), Standard Organization and Regulations of the U.S.
Navy, provides instructions which are to be implemented in conjunction with the guidance set
forth in this publication, including paragraph 7.6.1. See also Tucker 336-38.
The Law of Neutrality 389
SQ), or by other recognized means. The summoned vessel, if a neutral merchant
ship, is bound to stop, lie to, display her colors, and not resist. (If the summoned
vessel is an enemy ship, it is not so bound and may legally resist, even by force, but
thereby assumes all risk of resulting damage or destruction.)
3. If the summoned vessel takes flight, she may be pursued and brought to by
forcible measures if necessary.
4. When a summoned vessel has been brought to, the warship should send a boat
with an officer to conduct the visit and search. If practicable, a second officer
should accompany the officer charged with the examination. The officer(s) and
boat crew may be armed at the discretion of the commanding officer.
5. If visit and search at sea is deemed hazardous or impracticable, the neutral vessel
may be escorted by the summoning, or another, U.S. warship or by a U.S. military
aircraft to the nearest place (outside neutral territory) where the visit and search
may be conveniently and safely conducted. The neutral vessel is not obliged to
lower her flag (she has not been captured) but must proceed according to the
orders of the escorting warship or aircraft.
6. The boarding officer should first examine the ship's papers to ascertain her
character, ports of departure and destination, nature of cargo, manner of
employment, and other facts deemed pertinent. Papers to be examined will
ordinarily include a certificate of national registry, crew list, passenger list,
logbook, bill of health clearances, charter party (if chartered), invoices or manifests
of cargo, bills of lading, and on occasion, a consular declaration or other certificate
of noncontraband carriage certifying the innocence of the cargo.
7. Regularity of papers and evidence of innocence of cargo, employment, or
destination furnished by them are not necessarily conclusive, and, should doubt
exist, the ship's company may be questioned and the ship and cargo searched.
8. Unless military security prohibits, the boarding officer will record the facts
concerning the visit and search in the logbook of the visited ship, including the
date and position of the interception. The entry should be authenticated by the
signature and rank of the boarding officer, but neither the name of the visiting
warship nor the identity of her commanding officer should be disclosed.
7.6.2 Visit and Search by Military Aircraft. Although there is a right of visit
and search by military aircraft, there is no established international practice as to
1 95
how that right is to be exercised. Ordinarily, visit and search of a vessel by an
123. See Tucker 338-44.
124. See OPNAVINST 3120.32 (series), note 122 (p. 388).
125. NWIP 10-2, para. 502 n. 8, 502b(5) & nn. 14-15; Tucker 333, 355 & n. 62; 1 1 Whiteman 3-5.
390 Commander's Handbook on the Law of Naval Operations
aircraft is accomplished by directing and escorting the vessel to the vicinity of a
belligerent warship, which will carry out the visit and search, or to a belligerent
port. ' } Visit and search of an aircraft by an aircraft may be accomplished by
directing the aircraft to proceed under escort to the nearest convenient
1 9"/
belligerent landing area.
7.7 BLOCKADE
7.7.1 General. Blockade is a belligerent operation to prevent vessels and/or
aircraft of all nations, enemy as well as neutral, from entering or exiting specified
ports, airfields, or coastal areas belonging to, occupied by, or under the control of
an enemy nation. " A belligerent's purpose in establishing a blockade is to deny
the enemy the use of enemy and neutral vessels or aircraft to transport personnel
and goods to or from enemy territory. While the belligerent right of visit and
search is designed to interdict the flow of contraband goods, the belligerent right
of blockade is intended to prevent vessels and aircraft, regardless of their cargo,
from crossing an established and publicized cordon separating the enemy from
international waters and/or airspace.
7.7.2 Traditional Rules. In order to be valid under the traditional rules of
130
international law, a blockade must conform to the following criteria.
7.7.2.1 Establishment. A blockade must be established by the government of
the belligerent nation. This is usually accomplished by a declaration of the
belligerent government or by the commander of the blockading force acting on
1 "2 1
behalf of his government. The declaration should include, as a minimum, the
126. NWIP 10-2, para. 502 n. 8, 502b(5) & nn. 14-15; Tucker 333, 355 & n. 62; 11
Whiteman 3-5.
127. NWIP 10-2, para. 502b(5) & nn. 14-15; Tucker 333 & 342.
128. NWIP 10-2, para. 502 n. 8; Tucker 354-55; Green 170-72.
129. 10 Whiteman 861-64.
130. Concise statements of these criteria and the rationale for their development appear in
ICRC, Commentary (GP I) 654, para. 2094, and 2 O'Connell 1150-51. See also Mallison &
Mallison, A Survey of the International Law of Naval Blockade, U.S. Naval Inst. Proc, Feb. 1976,
at 44-53.
131. Declaration of London, Concerning the Laws of Naval Warfare, London, 26 February
1909 [hereinafter Declaration of London], art. 9, reprinted in Schindler & Toman at 846; NWIP
10-2, para. 632b; Tucker 287. A blockade may also be ordered by the U.N. Security Council
pursuant to the specific language of art. 42. It is not possible to say whether, or to what extent, a
U.N. blockade would be governed by the traditional rules. NWIP 10-2, para. 632b, at n. 30. Art.
42 has never been applied by the Security Council. For a discussion of the continuing significance
of the Declaration of London see Kalshoven, Commentary on the Declaration of London, in
Ronzitti at 257, 259-62, 274.
The Law of Neutrality 391
date the blockade is to begin, its geographic limits, and the grace period granted
132
neutral vessels and aircraft to leave the area to be blockaded.
7.7.2.2 Notification. It is customary for the belligerent nation establishing the
blockade to notify all affected nations of its imposition. Because knowledge of
the existence of a blockade is an essential element of the offenses of breach and
attempted breach of blockade (see paragraph 7.7.4), neutral vessels and aircraft
are always entitled to notification. The commander of the blockading forces will
usually also notify local authorities in the blockaded area. The form of the
notification is not material so long as it is effective.
7.7.2.3 Effectiveness. In order to be valid, a blockade must be effective. To be
effective, it must be maintained by a surface, air, or subsurface force or other
mechanism that is sufficient to render ingress or egress of the blockaded area
dangerous. The requirement of effectiveness does not preclude temporary
absence of the blockading force, if such absence is due to stress of weather or to
some other reason connected with the blockade (e.g., pursuit of a blockade
runner). Nor does effectiveness require that every possible avenue of approach to
the blockaded area be covered.
132. Declaration of London, art. 9. Only the NCA can direct establishment of a blockade by
U.S. forces. Although it is the customary practice of nations when declaring a blockade to specify a
period during which neutral vessels and aircraft may leave the blockaded area, there is no
uniformity with respect to the length of the period of grace. A belligerent declaring a blockade is
free to fix such a period of grace as it may consider to be reasonable under the circumstances. NWIP
10-2, para. 632b n. 31; Tucker 287; Alford, Modern Economic Warfare (Law and the Naval
Participant) 345-51 (U.S. Naval War College, International Law Studies 1963, No. 61, 1967).
133. Declaration of London, arts. 11 & 16; NWIP 10-2, para. 632c & n. 32; Tucker 288. See
also San Remo Manual, para. 93.
134. Declaration of London, arts. 2 & 3; NWIP 10-2, para. 632d & n. 33; Tucker 288-89. One
commentator has noted that:
"Effective," in short, comes to mean sufficient to render capture probable under
ordinary weather or other similar conditions. But even on this view, due no doubt to
the fact that the lines of controversy were set before the rise of steampower, mines, or
submarines, aircraft and wireless communication, at least one man-o'-war must be
present. Aircraft and submarines, however, as well as mines, concrete blocks, or
other sunken obstacles, may be used as auxiliary to blockading surface vessel or
vessels. How many surface vessels, with what speed and armament, are necessary,
along with auxiliary means, and how close they must operate for effectiveness in
view of the nature of the approaches to the blockaded port, are questions of nautical
expertise in each case.
Stone 496 (footnotes omitted), quoted in NWIP 10-2, para. 632d n. 33. The presence of at least one
surface warship is no longer an absolute requirement to make a blockade legally effective, as long as
other sufficient means are employed. See paragraph 7.7.5 (p. 393); San Remo Manual, paras.
95-97; Doswald-Beck, at 177-78.
392 Commander's Handbook on the Law of Naval Operations
7.7.2.4 Impartiality. A blockade must be applied impartially to the vessels and
aircraft of all nations. Discrimination by the blockading belligerent in favor of or
against the vessels and aircraft of particular nations, including those of its own or
1 ^^
those of an allied nation, renders the blockade legally invalid.
7.7.2.5 Limitations. A blockade must not bar access to or departure from
1 ^ft
neutral ports and coasts. * Neutral nations retain the right to engage in neutral
commerce that does not involve trade or communications originating in or
destined for the blockaded area.
7.7.3 Special Entry and Exit Authorization. Although neutral warships and
military aircraft enjoy no positive right of access to blockaded areas, the
belligerent imposing the blockade may authorize their entry and exit. Such
special authorization may be made subject to such conditions as the blockading
force considers to be necessary and expedient. Neutral vessels and aircraft in
evident distress should be authorized entry into a blockaded area, and
subsequently authorized to depart, under conditions prescribed by the officer in
command of the blockading force or responsible for maintenance of the
blockading instrumentality (e.g., mines). Similarly, neutral vessels and aircraft
engaged in the carriage of qualifying relief supplies for the civilian population
and the sick and wounded should be authorized to pass through the blockade
cordon.
7.7.4 Breach and Attempted Breach of Blockade. Breach of blockade is
the passage of a vessel or aircraft through a blockade without special entry or exit
authorization from the blockading belligerent. Attempted breach of blockade
occurs from the time a vessel or aircraft leaves a port or airfield with the intention
of evading the blockade, and for vessels exiting the blockaded area, continues
1 38
until the voyage is completed. * Knowledge of the existence of the blockade is
essential to the offenses of breach of blockade and attempted breach of blockade.
135. Declaration of London, art. 5; NWIP 10-2, para. 632f & n. 35; Tucker 288 & 291; San
Remo Manual, para. 100.
136. Declaration of London, art. 18; NWIP 10-2, para. 632e; Tucker 289-90. This rule means
that the blockade must not prevent trade and communication to or from neutral ports or coasts,
provided that such trade and communication is neither destined to nor originates from the
blockaded area. It is a moot point to what extent conventions providing for free navigation on
international rivers or through international canals (see paragraph 2.3.3.1, note 36 (p. 121) and 2
Oppenheim- Lauterpacht 771-75) have been respected by blockading nations. The practice of
nations in this matter is far from clear. NWIP 10-2, para. 632e, at n. 34.
137. Declaration of London, art. 6; NWIP 10-2, para. 632h; Tucker 291-92; ICRC,
Commentary (GP I) 654, paras. 2095-96; Matheson, Remarks, paragraph 7.4.1.2, note 105
(p. 384). Compare San Remo Manual, para. 103.
138. Hall, Law of Naval Warfare 205-06 (1921).
The Law of Neutrality 393
Knowledge may be presumed once a blockade has been declared and appropriate
notification provided to affected governments. * It is immaterial that the vessel
or aircraft is at the time of interception bound for neutral territory, if its ultimate
destination is the blockaded area. There is a presumption of attempted breach
of blockade where vessels or aircraft are bound for a neutral port or airfield
serving as a point of transit to the blockaded area. Capture of such vessels is
discussed in paragraph 7.10.
7.7.5 Contemporary Practice. The traditional rules of blockade, as set out
above, are for the most part customary in nature, having derived their definitive
form through the practice of maritime powers during the nineteenth century.
The rules reflect a balance between the right of a belligerent possessing effective
command of the sea to close enemy ports and coastlines to international
commerce, and the right of neutral nations to carry out neutral commerce with
the least possible interference from belligerent forces. The law of blockade is,
therefore, premised on a system of controls designed to effect only a limited
interference with neutral trade. This was traditionally accomplished by a
relatively "close-in" cordon of surface warships stationed in the immediate
vicinity of the blockaded area.
The increasing emphasis in modern warfare on seeking to isolate completely
the enemy from outside assistance and resources by targeting enemy merchant
vessels as well as warships, and on interdicting all neutral commerce with the
enemy, is not furthered substantially by blockades established in strict conformity
with the traditional rules. In World Wars I and II, belligerents of both sides
resorted to methods which, although frequendy referred to as measures of
blockade, cannot be reconciled with the traditional concept of the close-in
blockade. The so-called long-distance blockade of both World Wars departed
materially from those traditional rules and were justified instead upon the
belligerent right of reprisal against illegal acts of warfare on the part of the enemy.
Moreover, recent developments in weapons systems and platforms, particularly
submarines, supersonic aircraft, and cruise missiles, have rendered the in-shore
blockade exceedingly difficult, if not impossible, to maintain during anything
14-1
other than a local or limited armed conflict.
Notwithstanding this trend in belligerent practices (during general war) away
from the establishment of blockades that conform to the traditional rules,
blockade continues to be a useful means to regulate the competing interests of
139. Declaration of London, arts. 14 & 15; NWIP 10-2, para. 632g& n. 36; Tucker 292-93.
140. NWIP 10-2, para. 632g(3); 2 O'Connell 1157. The practice of nations has rendered
obsolete the contrary provisions of the Declaration of London, arts. 17 & 19. See paragraph 7.4.1.1
(p. 383) regarding presumption of ultimate enemy destination.
141. 2 O'Connell 1151-56; NWIP 10-2, para. 632a n. 28; Tucker 305-15. See also Goldie,
Maritime War Zones & Exclusion Zones, in Robertson at 168-71.
394 Commander's Handbook on the Law of Naval Operations
belligerents and neutrals in more limited armed conflict. The experience of the
United States during the Vietnam Conflict provides a case in point. The mining
of Haiphong and other North Vietnamese ports, accomplished by the
emplacement of mines, was undertaken in conformity with traditional criteria of
establishment, notification, effectiveness, limitation, and impartiality, although
1 49
at the time the mining took place the term "blockade" was not used.
7.8 BELLIGERENT CONTROL OF THE IMMEDIATE AREA OF
NAVAL OPERATIONS
Within the immediate area or vicinity of naval operations, a belligerent may
establish special restrictions upon the activities of neutral vessels and aircraft
and may prohibit altogether such vessels and aircraft from entering the area. The
immediate area or vicinity of naval operations is that area within which hostilities
are taking place or belligerent forces are actually operating. A belligerent may
not, however, purport to deny access to neutral nations, or to close an
international strait to neutral shipping, pursuant to this authority unless another
route of similar convenience remains open to neutral traffic.
7.8.1 Belligerent Control of Neutral Communications at Sea. The
commanding officer of a belligerent warship may exercise control over the
communication of any neutral merchant vessel or civil aircraft whose presence in
the immediate area of naval operations might otherwise endanger or jeopardize
142. McDougal & Feliciano 493-95; Swayze, Traditional Principles of Blockade in Modern
Practice: United States Mining of Internal and Territorial Waters of North Vietnam, 29 JAG J. 143
(1977); Clark, Recent Evolutionary Trends Concerning Naval Interdiction of Seaborne
Commerce as a Viable Sanctioning Device, 27 JAG J. 160 (1973). Compare Tucker 316-17. See 2
O'Connell 1156 (who erroneously states only three hours were allowed between notification and
activation of the minefield; actually three daylight periods were allowed). But see Levie, Mine
Warfare at Sea 151-57 (1992) who correctly argues that the mining of North Vietnamese ports did
not constitute a blockade in the traditional sense and that it was not claimed to be a blockade by
U.S. spokesmen at the time. O'Connell (at 1156) suggests that since in conditions of general war
"close blockade is likely in the missile age to be a tactically unavailable option, and long-distance
blockade to be a politically unavailable one," the twelve-mile territorial sea "may have facilitated
naval operations in finding a compromise between close and long-distance blockade." See also
paragraph 9.2.3 (p. 443).
143. See, for example, paragraph 7.8.1 (p. 394) and note 146 (p. 395). See also San Remo
Manual, para. 146; Doswald-Beck, at 214.
144. NWIP 10-2, para. 430b & n. 17; Tucker 300-01. Belligerent control over neutral vessels
and aircraft within an immediate area of naval operations, a limited and transient claim, is based on
a belligerent's right to attack and destroy its enemy, its right to defend itself without suffering from
neutral interference, and its right to ensure the security of its forces.
145. See Declaration of Paris, para. 4, reprinted in Schindler & Toman at 788; Declaration of
London, art. 1; Oxford Manual, art. 30; NWIP 10-2, para. 632a.
The Law of Neutrality 395
those operations. A neutral merchant ship or civil aircraft within that area that
fails to conform to a belligerent's directions concerning communications may
thereby assume enemy character and risk being fired upon or captured.
Legitimate distress communications should be permitted to the extent that the
success of the operation is not prejudiced thereby. Any transmission to an
opposing belligerent of information concerning military operations or military
forces is inconsistent with the neutral duties of abstention and impartiality and
renders the neutral vessel or aircraft liable to capture or destruction.
7.9 EXCLUSION ZONES AND WAR ZONES
Belligerent control of an immediate area of naval operations is to be clearly
distinguished from the belligerent practice during World Wars I and II of
establishing broad ocean areas as "exclusion zones" or "war zones" in which
neutral shipping was either barred or put at special risk. Operational
war/exclusion zones established by the belligerents of both sides were based on
the right of reprisal against alleged illegal behavior of the enemy and were used
to justify the exercise of control over, or capture and destruction of, neutral
vessels not otherwise permitted by the rules of naval warfare. Exclusion or
war zones established by belligerents in the context of limited warfare that has
characterized post-World War II belligerency at sea, have been justified, at
least in part, as reasonable, albeit coercive, measures to contain the geographic
area of the conflict or to keep neutral shipping at a safe distance from areas of
actual or potential hostilities. To the extent that such zones serve to warn
neutral vessels and aircraft away from belligerent activities and thereby reduce
their exposure to collateral damage and incidental injury (see paragraph
8.1.2.1), and to the extent that they do not unreasonably interfere with
legitimate neutral commerce, they are undoubtedly lawful. However, the
establishment of such a zone does not relieve the proclaiming belligerent of the
obligation under the law of armed conflict to refrain from attacking vessels and
148
aircraft which do not constitute lawful targets. In short, an otherwise
146. NWIP 10-2, para. 520a; Tucker 300; 1923 Hague Radio Rules, art. 6, 17 Am. J. Int'l L.
Supp. 242-45 (1923) (text), 32 id. 2-11 (1938) (text and commentary), Schindler & Toman 208
(text).
147. See Tucker 301-17.
148. See San Remo Manual, paras. 105-108. As to when enemy merchant vessels and civil
aircraft constitute lawful targets, see paragraph 8.2.2 (p. 408). Rules pertaining to the permissible
targeting of neutral merchant vessels and civil aircraft that have acquired enemy character, have
resisted visit and search, or have attempted to breach blockade, are addressed in paragraphs 7.5
(p. 385), 7.6 (p. 387) and 7.7.4 (p. 392), respectively. See also discussion of the Iran-Iraq War and
the war zones proclaimed by the two belligerents in De Guttry & Ronzitti, paragraph 7.2, note 12
(p. 367) at 133-38.
396 Commander's Handbook on the Law of Naval Operations
protected platform does not lose that protection by crossing an imaginary line
drawn in the ocean by a belligerent.
7.10 CAPTURE OF NEUTRAL VESSELS AND AIRCRAFT
1 ^n
Neutral merchant vessels and civil aircraft ~ are liable to capture by
belligerent warships and military aircraft if engaged in any of the following
activities:
151
1 . Avoiding an attempt to establish identity
2. Resisting visit and search
153
3. Carrying contraband
154
4. Breaking or attempting to break blockade
5. Presenting irregular or fraudulent papers; lacking necessary papers; or
destroying, defacing, or concealing papers
149. In assessing Iran's proclaimed "exclusion zone" during the Iran/Iraq Tanker War
(1980-88), McNeill stated that:
[International law has never legitimized attacks upon neutral merchant vessels
simply because they ventured into a specified area of the high seas. . . . Iran's attempts
to deny "responsibility for merchant ships failing to comply" with [the Iranian
proclaimed exclusion zone] could not operate to excuse Iran from its legal
obligations to avoid attacks on protected vessels wherever located ....
McNeill, Neutral Rights and Maritime Sanctions: The Effect of Two Gulf Wars, 31 Va. J. Int'l L.
631, 636 (1991).
For a detailed examination of this subject see Fenrick, The Exclusion Zone Device in the
Law of Naval Warfare, 24 Can. Y.B. Int'l L. 91 (1986) and Goldie, Maritime War Zones &
Exclusion Zones, in Robertson at 156-204. See also Russo, Neutrality at Sea in Transition: State
Practice in the Gulf War as Emerging International Law, 19 Ocean Dev. & Int'l L. 381, 389-92,
396 (1988) and Leckow, The Iran-Iraq Conflict in the Gulf: The Law of War Zones, 37 Int'l &
Comp. L.Q. 629 (1988). Compare San Remo Manual, paras. 105 & 106; Doswald-Beck, at
181-83.
150. See paragraph 7.5.1, note 112 (p. 386) for a discussion of how the rules may be applied to
neutral civil aircraft engaging in unneutral service.
151. NWIP 10-2, para. 503d(5); Tucker 336. See also 11 Whiteman 30-38 for a discussion of
resistance and evasion.
152. NWIP 10-2, para. 503d(5). See paragraph 7.6 (p. 387).
153. NWIP 10-2, para. 503d(l). Exceptions may exist when the owner of the vessel is
unaware that some or all of the cargo being carried on his vessel was contraband. Tucker 295; 2
O'Connell 1148-49. See paragraph 7.4.1 (p. 381) for a discussion ofwhat constitutes contraband.
154. NWIP 10-2, para. 503d(2). See paragraph 7.7.4 (p. 392).
155. NWIP 10-2, para. 503d(6); Tucker 338 n. 14.
The Law of Neutrality 397
6. Violating regulations established by a belligerent within the immediate area of
, 156
naval operations
157
7. Carrying personnel in the military or public service of the enemy
158
8. Communicating information in the interest of the enemy.
Captured vessels and aircraft are sent to a port or airfield under
belligerent jurisdiction as prize for adjudication by a prize court.
Ordinarily, a belligerent warship will place a prize master and prize crew on
board a captured vessel for this purpose. Should that be impracticable, the
prize may be escorted into port by a belligerent warship or military aircraft.
In the latter circumstances, the prize must obey the instructions of its escort
or risk forcible measures.159 (Article 630.23 of OPNAVINST 3120.32
(series) , Standard Organization and Regulations of the U.S. Navy, sets forth
the duties and responsibilities of commanding officers and prize masters
concerning captured vessels.)
Neutral vessels or aircraft attempting to resist proper capture lay themselves
open to forcible measures by belligerent warships and military aircraft and
assume all risk of resulting damage.
7.10.1 Destruction of Neutral Prizes. Every reasonable effort should be
made to avoid destruction of captured neutral vessels and aircraft. A capturing
officer, therefore, should not order such destruction without being entirely
satisfied that the prize can neither be sent into a belligerent port or airfield nor, in
his opinion, properly be released. Should it become necessary that the prize
156. NWIP 10-2, para. 503d(7). See paragraph 7.8 (p. 394).
157. NWIP 10-2, para. 503d(3); Tucker 325-30.
Normally, a neutral merchant vessel is not considered liable to capture for the acts enumerated in
examples 7 and 8 of paragraph 7.10 if, when encountered at sea, it is unaware of the opening of
hostilities, or if the master, after becoming aware of the opening of hostilities, has not been able to
disembark those passengers who are in the military or public service of a belligerent. A vessel is
deemed to know of the state of armed conflict if it left an enemy port after the opening of hostilities,
or if it left a neutral port after a notification of the opening of hostilities had been made in sufficient
time to the nation to which the port belonged. However, actual knowledge is often difficult or
impossible to establish. Because of the existence of modern means of communication, a presumption
ot knowledge may be applied in all doubtful cases. The final determination of this question properly
can be left to the prize court. NWIP 10-2, para. 503d n. 25; Tucker 13, 263 & 325.
158. Tucker 336-37 & n. 11.
159. Tucker 345 n. 36 and accompanying text.
160. Tucker 336-37 & n. 11.
161. Compare San Remo Manual, para. 151. It should be noted that paragraph 7.10.1 refers to
destruction of neutral merchant vessels whose capture for any of the acts mentioned in paragraph
7.10 has already been effected. Paragraph 7.10.1 does not refer to neutral merchant vessels merely
under detention and directed into port for visit and search; such vessels are not prizes.
398 Commander's Handbook on the Law of Naval Operations
be destroyed, the capturing officer must provide for the safety of the passengers
and crew. In that event, all documents and papers relating to the prize should
be saved. If practicable, the personal effects of passengers should also be
safeguarded.
7.10.2 Personnel of Captured Neutral Vessels and Aircraft. The officers
and crews of captured neutral merchant vessels and civil aircraft who are
nationals of a neutral nation do not become prisoners of war and must be
repatriated as soon as circumstances reasonably permit. This rule applies equally
to the officers and crews of neutral vessels and aircraft which have assumed the
character of enemy merchant vessels or aircraft by operating under enemy
control or resisting visit and search. If, however, the neutral vessels or aircraft had
taken a direct part in the hostilities on the side of the enemy or had served in any
way as a naval or military auxiliary for the enemy, it thereby assumed the
character of an enemy warship or military aircraft and, upon capture, its officers
and crew may be interned as prisoners of war.
Enemy nationals found on board neutral merchant vessels and civil aircraft as
passengers who are actually embodied in the military forces of the enemy, who
are en route to serve in the enemy's armed forces, who are employed in the
public service of the enemy, or who may be engaged in or suspected of service in
the interests of the enemy may be made prisoners of war. All such enemy
nationals may be removed from the neutral vessel or aircraft whether or not there
is reason for its capture as a neutral prize. Enemy nationals not falling within any
of these categories are not subject to capture or detention.
162. See paragraph 8.2.2.2 (p. 410) and accompanying notes. The obligations laid down in the
London Protocol of 1936, insofar as they apply to neutral merchant vessels and aircraft, remain
valid, exception being made only for those neutral merchant vessels and aircraft performing any of
the acts enumerated in paragraphs 7.5.1 (p. 386), 7.5.2 (p. 387) and 7.8 (p. 394). In its judgment on
Admiral Doenitz, the International Military Tribunal at Nuremberg found the accused guilty of
violating the London Protocol by proclaiming "operational zones" and sinking neutral merchant
vessels entering those zones. The Tribunal noted that:
[T]he protocol made no exception for operational zones. The order of Doenitz to
sink neutral ships without warning when found within these zones was, therefore, in
the opinion of the Tribunal, a violation of the protocol.
U.S. Naval War College, International Law Documents 1946-1947, No. 45, at 300 (1948). Seealso
paragraph 7.9 (p. 395). The San Remo Manual, para. 140, would prohibit the sinking of a
passenger vessel, carrying only passengers, in such circumstances.
163. London Protocol, art. 22; Tucker 325; San Remo Manual, para. 151(b).
164. NWIP 10-2, para. 503e; San Remo Manual, para. 151(c).
165. Hague XI, arts. 5 & 8; NWIP 10-2, art. 513a & n. 40. See also San Remo Manual, para.
166. Auxiliaries are defined in paragraph 2.1.3 (p. 112).
166. GPW, art. 4A; Hague XI, art. 6; NWIP 10-2, art. 513b & n. 41.
The Law of Neutrality 399
7.11 BELLIGERENT PERSONNEL INTERNED BY A NEUTRAL
GOVERNMENT
International law recognizes that neutral territory, being outside the region of
war, offers a place of asylum to individual members of belligerent forces and as a
general rule requires the neutral government concerned to prevent the return of
such persons to their own forces. The neutral nation must accord equal
1 67
treatment to the personnel of all the belligerent forces.
Belligerent combatants taken on board a neutral warship or military aircraft
beyond neutral waters must be interned. Belligerent civilians taken on
board a neutral warship or military aircraft in such circumstances are to be
repatriated.
With respect to aircrews of non-medical belligerent aircraft that land in
neutral territory, whether intentionally or inadvertently, the neutral nation must
intern them.
167. Hague V, art. 1 1; Hague XIII, arts. 9 &24; Tucker 242 & n. 97. Subparagraph 7.3 (p. 370).
168. During the Iran-Iraq Tanker War, U.S. forces rescued 26 crewmembers who abandoned
the Iranian minelayer IRAN AJR following the TF 160 MH-60A helicopter attacks of 21
September 1987 while the IRAN AJR was laying mines in international waters offBahrain. Five
days later they were handed over to Omani Red Crescent officials and shortly thereafter were
turned over to Iranian officials, along with the remains of three others killed in the attack on the
IRAN AJR. SeeDe Guttry & Ronzitte, paragraph 7.2 note 12 (p. 367). On 8 October 1987, U.S.
Navy SEALs rescued six Iranian Revolutionary Guardsmen overboard from Iranian small craft that
had been attacked following their firing at three trailing Army helicopters about 15 NM southwest
of Farsi Island, two of whom subsequently died on board USS RALEIGH. They, and the bodies of
the dead, were similarly returned to Iran. 1987 Int'l Rev. Red Cross 650. It is unknown whether
Iraq consented to these arrangements, as contemplated by GWS-Sea, art. 17(1); in any event it does
not appear that Iraq objected to these actions which seem to be inconsistent with the requirements
of GWS-Sea, art. 15; Hague XIII, art. 24; and Hague V, art. 11, to intern them for the duration of
the conflict.
169. Hague V, art. 11; Draft 1923 Hague Rules of Aerial Warfare, art. 42; AFP 110-31, para.
2-6c; Tucker 251-52; 2 Levie, The Code of International Armed Conflict 807.
On 31 August 1987, in the course of escorting U.S. flag tankers, USS GUADALCANAL rescued
an Iraqi fighter pilot downed by an Iranian air-to-air missile in international waters of the Persian
Gulf. While apparently inconsistent with GWS-Sea, art. 15, he was repatriated through officials of
the Saudi Arabian Red Crescent Society. N.Y. Times, 2 Sep. 1987, at A6; Washington Post, 2 Sep.
1987, at A18. Although the situation never arose, the United States advised Iran during the 1991
GulfWar that in light of U.N.S.C. Resolution 678 which called upon all U.N. member nations to
"provide appropriate support" for coalition actions, and despite Iran's declaration of "neutrality" in
that conflict, Iran would be obligated to return coalition aircraft and aircrew (rather than intern
them) that might be downed in Iranian territory. Title V Report, App. O, p. 628. This again
illustrates the modified nature of neutrality in circumstances where the Security Counsel has issued
binding resolutions. See paragraph 7.2.1 (p. 368).
400 Commander's Handbook on the Law of Naval Operations
FIGURE A7-1
RECIPROCAL RIGHTS AND DUTIES
RIGHTS
NEUTRALS
BELLIGERENTS
° INVIOLABILITY
° NEUTRAL COMMERCE
0 INSIST ON NEUTRAL
IMPARTIALITY,
ABSTENTION AND
PREVENTION
° ENFORCE ITS RIGHTS
DUTIES
° IMPARTIALITY
° ABSTENTION
° PREVENTION
° ACQUIESCENCE
° RESPECT NEUTRAL
INVIOLABILITY
AND COMMERCE
CHAPTER 8
The Law of Targeting
8.1 PRINCIPLES OF LAWFUL TARGETING
T
he law of targeting is premised upon the three fundamental principles of
the law of armed conflict:
1. The right of belligerents to adopt means of injuring the enemy is not
unlimited.
2. It is prohibited to launch attacks against the civilian population as such.
3. Distinctions must be made between combatants and noncombatants, to
the effect that noncombatants be spared as much as possible.
These legal principles governing targeting generally parallel the military
principles of the objective, mass, and economy of force. The law requires that
only objectives of military importance be attacked but permits the use of
sufficient mass to destroy those objectives. At the same time, unnecessary
collateral destruction must be avoided to the extent possible and, consistent with
1 . The United States considers these three fundamental principles as customary international
law. General Counsel, Department of Defense letter of 22 Sept. 1972, reprinted in 67 Am. J. Int'l L.
122 (1973). See also Res. XXVIII of the XXth International Conference of the Red Cross, Vienna,
1965 (Schindler & Toman 259-60), U.N.G.A. Res. 2444(XXIII), 19 Dec. 1968 (Schindler &
Toman 261-62), and U.N.G.A. Res. 2675(XXV), 9 Dec. 1970 (Schindler & Toman 267-68).
2. HR, art. 22; cf. Lieber Code, art. 30. Art. 22 of the Hague Regulations, which refers to
weapons and methods of warfare, is merely an affirmation that the means of warfare are restricted
by rules of conventional (i.e., treaty) and customary international law. This principle is applicable
to the conduct of naval warfare and is viewed by the United States as customary international
law. See also GP I, art. 35(1), which is viewed by the United States as declarative of customary
international law. The Sixth Annual American Red Cross- Washington College of Law
Conference on International Humanitarian Law: A Workshop on Customary International Law
and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. UJ. Int'l L. & Policy
424 (1987) (remarks of U.S. Department of State Deputy Legal Adviser Matheson). Cf.
CDDH/SR.39, annex (FRG) andBothe, Partsch & Solf 194. See paragraph 5.4.2, note 34 (p. 303)
regarding the 1987 U.S. decision not to seek ratification of GP I.
3. This customary rule of international law is codified for the first time in GP I, art. 51(2).
Bothe, Partsch & Solf 299 & n.3; Green 220-33; FM 27-10, para 25; AFP 110-31, para. 5-3. See
paragraphs 5.3 (p. 296) and 11.2 (p. 481).
4. This customary rule of international law is codified for the first time in GP I, arts. 57(1) and
57(4). Bothe, Partsch & Solf 359. See paragraphs 5.3 (p. 296) and 11.2 (p. 481).
5. See paragraph 5.2, note 9 (p. 295).
402 Commander's Handbook on the Law of Naval Operations
mission accomplishment and the security of the force, unnecessary human
suffering prevented. The law of targeting, therefore, requires that all reasonable
precautions must be taken to ensure that only military objectives are targeted so
that civilians and civilian objects are spared as much as possible from the ravages
of war.
o
8.1.1 Military Objectives. Only military objectives may be attacked.
Military objectives are combatants and those objects which, by their nature,
location, purpose, or use, effectively contribute to the enemy's war-fighting or
war-sustaining capability and whose total or partial destruction, capture, or
neutralization would constitute a definite military advantage to the attacker
under the circumstances at the time of the attack. Military advantage may
involve a variety of considerations, including the security of the attacking
force.
Proper targets for naval attack include such military objectives as enemy
warships and military aircraft, naval and military auxiliaries, naval and military
bases ashore, warship construction and repair facilities, military depots and
warehouses, petroleums/oils/lubricants (POL) storage areas, docks, port
facilities, harbors, bridges, airfields, military vehicles, armor, artillery,
ammunition stores, troop concentrations and embarkation points, lines of
communication and other objects used to conduct or support military
operations. Proper naval targets also include geographic targets, such as a
mountain pass, and buildings and facilities that provide administrative and
personnel support for military and naval operations such as barracks,
communications and command and control facilities, headquarters buildings,
mess halls, and training areas.
Proper economic targets for naval attack include enemy lines of
communication, rail yards, bridges, rolling stock, barges, lighters, industrial
installations producing war-fighting products, and power generation plants.
6. Bothe, Partsch & Solf 299, 309 &359-61. See paragraph 8.1.2.1 (p. 404).
7. This customary rule of international law is also codified for the first time in GP I, art. 57(4).
Bothe, Partsch & Solf 369; Green, 168. Compare San Remo Manual, para. 46, which employs the
word "feasible" rather than "reasonable."
8. This customary rule is codified in GP I, art. 52(2). Military personnel that may not be
attacked are discussed in Chapter 1 1 . Military platforms and facilities that enjoy protected status and
may not be attacked are discussed in the succeeding paragraphs of this Chapter.
9. This definition is accepted by the United States as declarative of the customary rule. See
note 1 1 (p. 403). Compare GP I, art. 52(2) and San Remo Manual, para. 40, which utilize the term
"make an effective contribution to enemy action." See also Doswald-Beck at 117.
10. Bothe, Partsch & Solf 325. Some nations have noted that a specific area of land may also be a
military objective. Statements of Italy (1986 Int'l Rev. Red Cross 113), the Netherlands (1987 id.
426) and New Zealand (1988 id. 186) on ratification of, and the United Kingdom (Schindler &
Toman 717) on signature to, GP I. See also ICRC, Commentary (GP I) at 621-22.
The Law of Targeting 403
Economic targets of the enemy that indirectly but effectively support and sustain
1 1
the enemy's war-fighting capability may also be attacked.
8.1.2 Civilians and Civilian Objects. Civilians and civilian objects may not
1 2
be made the object of attack. Civilian objects consist of all civilian property and
activities other than those used to support or sustain the enemy's war-fighting
11. The United States considers this a statement of customary law. General Counsel,
Department of Defense, letter of 22 Sept. 1972, reprinted in 67 Am. J. Int'l L. 123-24 (1973). The
American-British Claims Commission of 1871 recognized that the destruction of raw cotton
within Confederate territory by the Union was justified during the American Civil War since the
sale of cotton provided funds for almost all Confederate arms and ammunition. 6 Papers Relating
to the Treaty of Washington 52-57 (1874) (Report of U.S. Agent); 7 Moore 693-94; Carnahan,
Protecting Civilians Under the Draft Geneva Protocol: A Preliminary Inquiry, 18 A.F.L. Rev.
47-48 (1976); Hague Cultural Property Convention, art. 8(3). Whether this rule permits attacks
on war-sustaining cargo carried in neutral bottoms at sea, such as by Iraq on the tankers carrying oil
exported by Iran during the Iran-Iraq war, is not firmly settled. Authorization to attack such targets
is likely to be reserved to higher authority. See paragraph 7.4 and note 93 thereunder (pp. 380 &
381) and paragraph 8.2.3 (p. 412).
The target sets for the offensive air campaign of OPERATION DESERT STORM illustrate the
range of objectives, both military and economic, which may be attacked. The 12 target sets were:
Leadership Command Facilities; Electricity Production Facilities; Telecommunications and
Command, Control and Communication Nodes (to include microwave relay towers, telephone
exchanges, switching rooms, fiber optic nodes, bridges that carried coaxial communications cables,
and civil television and radio installations since they could easily be used for C-3 backup for
military purposes and were used as the principal media for Iraqi propaganda); Strategic Integrated
Air-Defense System; Air Forces and Air Fields; Nuclear, Biological, and Chemical Weapons
Research, Production, and Storage Facilities; Scud Missile Launchers and Production and Storage
Facilities; Naval Forces and Port Facilities; Oil Refining and Distribution Facilities; Railroads and
Bridges; Iraqi Army Units; and Military Storage and Production Sites. Title V Report, 125-130.
When civil aircraft form part of enemy lines of communication, they are legitimate military
objectives. But see paragraph 8.2.3, subparagraph 6 (p. 418) for the special rules regarding
destruction of civil airliners in flight.
Civilian vessels, aircraft, vehicles, and buildings may be lawfully attacked if they are used for military
purposes, including the housing of military personnel, equipment or supplies, or are otherwise
associated with combat activity inconsistent with their civilian status and if collateral damage and
incidental injury would not be excessive under the circumstances (see paragraphs 8.1.2.1 (p. 404) and
8.2.2.2 (p. 410)). (For other circumstances when civilian objects may be attacked, see paragraphs 8.3
through 8. 5. 1.7 (pp. 419 through 426).) See also paragraph 11.3 (p. 482).
Hospital ships, medical units, medical vehicles and aircraft, noninterfering neutral vessels, civilian
and military churches and chapels, civilian educational institutions, and cultural objects (among
others) may not, of course, be attacked unless they are being used by the enemy for prohibited
purposes. For details, see paragraphs 8.2.3 (p. 412), 8.3.2 (p. 421), 8.4.1 (p. 422), and 8.5.1.4 to
8.5.1.6 (pp. 424 & 425).
12. GP I, art. 51(1), codifying customary international law. See Bothe, Partsch & Solf 299;
Green 151. However, that portion of art. 52(1) stating that civilian objects shall not be the object of
reprisals creates new law for nations party to GP I. See paragraph 6.2.3, note 36 (p. 338).
404 Commander's Handbook on the Law of Naval Operations
13
capability. Attacks on installations such as dikes and dams are prohibited if their
breach or destruction would result in the loss of civilian lives disproportionate to
the military advantage to be gained. (See also paragraph 8.5.1.7.) Similarly, the
intentional destruction of food, crops, livestock, drinking water, and other
objects indispensable to the survival of the civilian population, for the specific
purpose of denying the civilian population of their use, is prohibited.
8.1.2.1 Incidental Injury and Collateral Damage. It is not unlawful to cause
incidental injury to civilians, or collateral damage to civilian objects, during an
attack upon a legitimate military objective. Incidental injury or collateral
damage must not, however, be excessive in light of the military advantage
anticipated by the attack. ' Naval commanders must take all reasonable
13. GP I, art. 52(1), defines civilian objects as "all objects which are not military objectives as
defined in paragraph 2." The definition of military objectives in paragraph 8.1.1 (p. 402), although
not identical to that in GP I, art. 52(2), is similar. See note 11 (p. 403).
14. GP I, art. 56, would create new law to prohibit, except in very limited circumstances, attacks
on this limited class of objects even if the attack was proportional. Such a restriction does not reflect
customary international law and is militarily unacceptable to the U.S. Matheson Remarks, paragraph
8.1, note 2 (p. 401) at 427. See also Green 149-50. For historic development, see Human Rights and
Armed Conflict: Conflicting Views, 1973 Proc. Am. Soc. Int'l L. 141; President Nixon's News
Conference of 27 July 1972, 67 Dep't St. Bull. 173, 201, 203 (1972). For a detailed analysis of art. 56,
see Bothe, Partsch & Solf 350-57 and ICRC, Commentary (GP I) 666-75.
15. This customary rule is accepted by the United States, Letter from DoD General Counsel to
Chairman, Sen. Comm. on For. Rel., 5 April 1971, reprinted in 10 Int'l Leg. Mat'ls 1301 (1971),
and is codified in GP I, art. 54(2).
Art. 54(1) of GP I would create a new prohibition on the starvation of civilians as a method of
warfare (Bothe, Partsch & Solf 336-38; Solf, Protection of Civilians Against the Effects of
Hostilities Under Customary International Law and Under Protocol I, 1 A.U.J. Int'l L. & Pol'y
117, 133 (1986)) which the United States believes should be observed and in due course
recognized as customary law (Matheson, Remarks, paragraph 8.1, note 2 (p. 401), at 426). See also,
Allen, Civilian Starvation and Relief During Armed Conflict: the Modern Humanitarian Law, 19
Ga. J. Int'l & Comp. L. 1 (1989); Green 135-36. Starvation of civilians as a method of warfare has
potential implications on the law of blockade and categories of contraband which are discussed in
Bothe, Partsch & Solf at 338-39 & 433-35, and ICRC, Commentary (GP I) 653-54. Blockade is
discussed in detail in paragraph 7.7 (p. 390).
16. Lieber Code, art. 15; AFP 110-31, para. 5-3c.(2)(b), at 5-10. Accord, An Introduction to
Air Force Targeting, AFP 200-17, attach. 2, para. A2-3a,(2) (1989); AFP 110-34, para. 3-8.
17. This rule of proportionality, which is inherent in both the principles of humanity and
necessity upon which the law of armed conflict is based (see paragraph 5.2 (p. 290)), is codified in GP
I, arts. 51(5)(b) and 57(2)(ii) & (iii). Bothe, Partsch and Solf 309-1 1 & 359-67; Matheson, Remarks,
paragraph 8.1, note 2 (p. 401) at 426. Fenrick, while viewing as unsettled the principle of
proportionality as customary law, views the requirement to reconcile humanitarian imperatives and
military requirements during armed conflict as widely recognized. Fenrick, The Rule of
Proportionality and Protocol I in Conventional Warfare, 98 Mil. L. Rev. 91, 125 (1982). Cf. FM
27-10, para. 41 (ch. 1, 15 July 1976); Green 120-21, 330-32. Some nations have asserted that the
advantage anticipated must consider the attack as a whole and not only isolated or particular parts of
the attack: on ratification of GP I, Belgium (1986 Int'l Rev. Red Cross 174), the Netherlands (1987
id. 426), Italy (1986 id. 113); and the United Kingdom on signature (Schindler & Toman 717). These
and other nuances are examined in ICRC, Commentary (GP I) 683-85, and Kalshoven, Constraints
on the Waging of War 99-100 (1987). See also paragraph 5.2, note 7 (p. 294).
The Law of Targeting 405
precautions, taking into account military and humanitarian considerations, to
keep civilian casualties and damage to the minimum consistent with mission
accomplishment and the security of the force. In each instance, the
commander must determine whether incidental injuries and collateral damage
would be excessive, on the basis of an honest and reasonable estimate of the facts
available to him. Similarly, the commander must decide, in light of all the facts
19
known or reasonably available to him, including the need to conserve
resources and complete the mission successfully, whether to adopt an alternative
method of attack, if reasonably available, to reduce civilian casualties and
i 20
damage.
8.1.3 Environmental Considerations. It is not unlawful to cause collateral
damage to the natural environment during an attack upon a legitimate military
objective. However, the commander has an affirmative obligation to avoid
unnecessary damage to the environment to the extent that it is practicable to do
so consistent with mission accomplishment. To that end, and as far as military
requirements permit, methods or means of warfare should be employed with
due regard to the protection and preservation of the natural environment.
Destruction of the natural environment not necessitated by mission
21
accomplishment and carried out wantonly is prohibited. Therefore, a
commander should consider the environmental damage which will result from
18. This principle, reflected in GP I, art. 57(4), is supported by the United States as customary
law. Bothe, Partsch & Solf 359. See also Title V Report, App. O, at 0-13. Compare the requirement
of GP I, arts. 56-58, to take "feasible" precautions which NATO and other nations understood to
mean "that which is practicable or practically possible, taking into account all circumstances at the
time, including those relevant to the success of military operations." Bothe, Partsch & Solf 373;
declarations on ratification of GP I by Belgium, the Netherlands, and Italy, and by the United
Kingdom on signature, note 17 (p. 404). See also paragraph 8.1, note 7 (p. 402).
19. GP I, art. 57(2)(iii), as interpreted on ratification by Belgium, the Netherlands, and Italy; by
the United Kingdom on signature, note 17 above; and Bothe, Partsch and Solf 279-80, 310 & 363.
Cf FM 27-10, para. 41 (ch. 1, 15 July 1976).
20. GP I, art. 57(3), as interpreted by governments and commentators cited in note 19 (p. 405).
See Green 147-48. Altering a method of attack may involve such factors as choice of attack
platforms, weaponeering, fusing of ordnance, time of attack, and angle of approach to the target.
21 . This provision is responsive to U.N.G.A. Resolutions A/47/37 and A/49/50, adopted by
consensus on 25 November 1992 and 9 December 1994, respectively, which call upon States to
incorporate into their military manuals guidance on the international law applicable to protection
of the environment in time of armed conflict. I.C.R.C. compiled "Guidance for Military Manuals
and Instructions on the Protection of the Environment in Times of Armed Conflict," which were
annexed to U.N. Doc. A/49/323 (1994), are set out in Annex A8-1 (p. 430). See Gasser, The
Debate to Assess the Need for New International Accords, in Grunawalt, King & McClain at 521 .
Para. 44 of the San Remo Manual states that:
(continued...)
406 Commander's Handbook on the Law of Naval Operations
an attack on a legitimate military objective as one of the factors during targeting
analysis.
21. (...continued)
Methods and means of warfare should be employed with due regard for the natural
environment taking into account the relevant rules of international law. Damage to
or destruction of the natural environment not justified by military necessity and
carried out wantonly is prohibited.
For a commentary on this provision of the San Remo Manual see Doswald-Beck at 119-21.
During the Persian Gulf War (1991), between seven and nine million barrels of oil were
intentionally released into the Gulf by Iraqi action. Five hundred and ninety oil well heads in
Kuwait were deliberately damaged or destroyed. Five hundred and eight were set on fire, and
eighty-two were damaged so that oil was flowing freely from them. In July 1991, a conference of
international experts convened in Ottawa, Canada to examine the law of war implications of these
actions. The conference concluded they constituted violations of the law of war, namely:
- Art. 23g of the Annex to Hague IV, which forbids the destruction of "enemy
property, unless . . . imperatively demanded by the necessities of war;" and
- Art. 147 of the GC, which makes a Grave Breach the "extensive destruction ... of
property, not justified by military necessity and carried out unlawfully and
wantonly."
See Title V Report, App. O at 0-26.
In September 1995, the Naval War College hosted a Law of Naval Warfare Symposium on the
Protection of the Environment During Armed Conflict and Other Military Operations. The
papers and proceedings of that conference of forty eminent government officials, legal scholars,
scientists, environmentalists and military commanders from the U.S., the U.K., Australia,
Argentina, Canada, Germany, the Netherlands and Switzerland that participated in the
Symposium are set out in Grunawalt, King & McClain. It was the general consensus of the
participants in the Symposium that it is the failure of enforcement actions for violation of existing
norms rather than the lack of standards for protection of the environment that is the principal
deficiency of this area of international law generally, and of the law of armed conflict in particular.
See Grunawalt, King & McClain at XIX. See also Green, The Environment and the Law of
Conventional Warfare, 29 Can. Y.B. Int'l L. 222-37 (1991); and Baker, Legal Protections for the
Environment in Times of Armed Conflict, 33 Va. J. Int'l L. 351 (1993).
The United States is a party to the 1977 Convention on the Prohibition of Military or Any Other
Hostile Use ofEnvironmental Modification Techniques (ENMOD), 31 UST 233, T.I.A.S. 9614,
reprinted in 16 Int'l Leg. Mat'ls 90 (1977). That Convention provides that it is prohibited to engage
in military or any other hostile use of environmental modification techniques having widespread,
long lasting, or severe effects as a means of destruction, damage, or injury to any other State Party.
The Convention defines "environmental modification techniques" to include any technique for
changing - through the deliberate manipulation of natural processes - the dynamics, composition,
or structure of the Earth, including its biota, lithosphere, hydrosphere, and atmosphere, or of outer
space. Contemporaneous "Understandings" defined "widespread" as encompassing an area on the
scale of several hundred square kilometers; "long-lasting" as lasting for a period of months, or
approximately a season; and "severe" as involving serious or significant disruption or harm to
human life, natural and economic resources, or other assets. See Bothe, Partsch & Solf at 347.
(continued...)
The Law of Targeting 407
8.2 SURFACE WARFARE
As a general rule, surface warships may employ their conventional weapons
22
systems to attack enemy surface, subsurface, and air targets wherever located
23
beyond neutral territory. (Special circumstances in which enemy warships and
military aircraft may be attacked in neutral territory are discussed in Chapter 7.)
The law of armed conflict pertaining to surface warfare is concerned primarily
24
with the protection of noncombatants through rules establishing lawful targets
of attack. For that purpose, all enemy vessels and aircraft fall into one of three
25
general classes, i.e., warships and military aircraft, merchant vessels and civilian
aircraft, and exempt vessels and aircraft.
8.2.1 Enemy Warships and Military Aircraft. Enemy warships and military
aircraft, including naval and military auxiliaries, are subject to attack,
28
destruction, or capture anywhere beyond neutral territory. It is forbidden,
however, to target an enemy warship or military aircraft that in good faith clearly
conveys a timely offer of surrender. Once an enemy warship has clearly
21. (...continued)
The ENMOD Convention is an arms control measure meant to prevent the use of the
environment as an instrument of war. The Convention does not, nor was it ever intended to,
constrain peaceful activities or hostile activities other than those involving environmental
modification techniques as defined in the preceding paragraph. Accordingly, the ENMOD
Convention was not applicable to Iraqi actions since they were undertaken, not as techniques to
modify the environment, but simply as wanton acts of destruction. See McNeill, Protection of the
Environment in Time of Armed Conflict: Environmental Protection in Military Practice, in
Grunawalt, King & McClain at 538; Green 131-32.
22. Conventional weapons are discussed in Chapter 9, Conventional Weapons and Weapons
Systems. Nuclear weapons are discussed in Chapter 10, Nuclear, Chemical, and Biological
Weapons.
23. Neutral territory consists of the lands, internal waters, archipelagic waters, territorial seas and
national airspace of neutral nations. See paragraph 7.3 (p. 370). "Beyond neutral territory" therefore
refers to all waters, airspace and seabed beyond the outer edge of the 12 NM territorial sea.
24. Noncombatants are discussed in Chapter 11, Noncombatant Persons.
25. Discussed in paragraph 8.2.1.
26. Discussed in paragraph 8.2.2 (p. 408).
27. Discussed in paragraph 8.2.3 (p. 412).
28. Although this customary rule is not codified in any treaty on the law of naval warfare, it
appears in the 1913 Oxford Manual of Naval War, arts. 1 & 31, (reprinted in Schindler & Toman
858 & 860); in the San Remo Manual, para. 10; and in NWIP 10-2, arts. 430a, 441 & 503a. The
sinking of the Argentine cruiser GENERAL BELGRANO during the Falklands (Malvinas)
Conflict by the U.K. submarine HMS CONQUEROR beyond the U.K.-declared 200 NM
"Total Exclusion Zone" around the Falkland (Malvina) Islands was a legitimate act of war. For a
discussion of this incident see Woodward, One Hundred Days 149-63 (1992).
29. HR, art. 23(c), reaffirmed in more modem language in GP I, art. 41. See also San Remo
Manual para. 46(i). Art. 40 of GP I and art. 4(1) of GP II reaffirm the prohibition of Hague
Regulations, art. 23(d), against ordering that there shall be no survivors. Matheson, Remarks,
paragraph 8.1, note 2 (p. 401), at 425; Green 166-67.
408 Commander's Handbook on the Law of Naval Operations
indicated a readiness to surrender by hauling down her flag, by hoisting a white
flag, by surfacing (in the case of submarines) , by stopping engines and responding
to the attacker's signals, or by taking to lifeboats, the attack must be
discontinued. Disabled enemy aircraft in air combat are frequently pursued to
destruction because of the impossibility of verifying their true status and inability
to enforce surrender. Although disabled, the aircraft may or may not have lost
its means of combat. Moreover, it still may represent a valuable military asset.
Accordingly, surrender in air combat is not generally offered. However, if
surrender is offered in good faith so that circumstances do not preclude
enforcement, it must be respected. Officers and crews of captured or destroyed
enemy warships, military aircraft, and naval and military auxiliaries should be
made prisoners of war. (See Chapter 1 1 for further discussion of surrender and
prisoners of war.) As far as military exigencies permit, after each engagement all
possible measures should be taken without delay to search for and collect the
shipwrecked, wounded, and sick and to recover the dead.
Prize procedure is not used for captured enemy warships and naval auxiliaries
because their ownership vests immediately in the captor's government by the
fact of capture.
8.2.2 Enemy Merchant Vessels and Civil Aircraft
8.2.2.1 Capture. Enemy merchant vessels and civil aircraft may be captured
wherever located beyond neutral territory. Prior exercise of visit and search is
30. NWIP 10-2, para. 511c and nn. 35-37, and Mallison 134 (summarizing customary practice
described in the Trial of Von Ruchteschell, 1 Reps. U.N. Comm. 89 (1947), 9 LRTWC 89 (1949)).
See also Robertson, The Obligation to Accept Surrender, Nav. War Coll. Rev., Spring 1993, 102.
31. AFP 110-31, para. 4-2d, at 4-1; Spaight 125-27. Spaight, at 128-30, describes a few cases of
surrender in the air during World War I.
32. AFP 110-31, para. 4-2d.
33. Ibid; AFP 110-34, para. 3-3b, at 3-2.
34. GWS-Sea, art. 16.
35. NWIP 10-2, para. 511b; Hague X, art. 16; GWS-Sea, art. 18. The corresponding
provision in land warfare is set forth in GWS, art. 15; there is no corresponding requirement in the
GC. A new duty to search for the missing is imposed by GP I, art. 33, which the United States
supports. Matheson, Remarks, paragraph 8.1, note 2 (p. 401), at 424. See also paragraph 1 1.4, note
19 (p. 485).
Procedures set forth in Combat Search and Rescue Procedures (NWP 19-2/AFDD-34/AR
525-90), Doctrine for Joint Combat Search and Rescue (Joint Pub 3-50.2) and Search and Rescue
(ATP 10), are designed for recovery of own and allied forces. Nevertheless, those procedures
should be followed, to the extent they are applicable, in complying with the requirement set forth
in the text.
36. NWIP 10-2, art. 503a(2). See paragraphs 2.1.2.2 (p. Ill) and 2.1.3 (p. 112).
37. This rule, previously set forth in NWIP 10-2, para. 503b(l) (1956), Tentative Instructions
for the Navy of the United States Governing Maritime and Aerial Warfare, May 1941, para. 67, and
Instructions for the Navy of the United States Governing Maritime Warfare, June 1917, para. 62,
(continued...)
The Law of Targeting 409
not required, provided positive determination of enemy status can be made by other
38
means. When military circumstances preclude sending or taking in such vessel or
aircraft for adjudication as an enemy prize, it may be destroyed after all possible
measures are taken to provide for the safety of passengers and crew. Documents
and papers relating to the prize should be safeguarded and, if practicable, the personal
effects of passengers should be saved. Every case of destruction of a captured
enemy prize should be reported prompdy to higher command.
Officers and crews of captured enemy merchant ships and civilian aircraft may be
made prisoners of war. Other enemy nationals on board such captured ships and
aircraft as private passengers are subject to the discipline of the captor. Nationals of
a neutral nation on board captured enemy merchant vessels and civilian aircraft are
not made prisoners of war unless they have participated in acts of hostility or
resistance against the captor or are otherwise in the service of the enemy.
37. (...continued)
reflects the rejection by the United States of Hague VI relating, inter alia, to the exemption from
capture of enemy merchant vessels located in ports of their adversary at the outbreak of hostilities.
Although originally parties to Hague VI, Japan, France, the UK and the former USSR
subsequently denounced it, and it does not articulate customary international norms. Green 76-7;
Ronzitti, 102 & 108. See also Tucker 74-75, 102-03 & 108-09, and U.S. Naval War College,
International Law Topics and Discussions 1905, at 9-20 (1906), for discussions of this rule which is
opposite to that applicable in land warfare, where the private property of the enemy population
may not, as a general rule, be seized and confiscated. See also Mallison 101.
38. NWIP 10-2, para. 502a & n. 9; Tucker 103-04 & n. 31; Mallison 101 & n. 19; San Remo
Manual, para. 135.
39. NWIP 10-2, para. 502b(2) & nn. 18, 19 & 21; Tucker 106-08 & n. 40; San Remo Manual,
para. 139. As against an enemy, title to captured enemy merchant vessels or aircraft vests in the
captor's government by virtue of the fact of capture. However, claims may be made by neutrals,
either with respect to the captured vessel or aircraft, or with respect to the cargo (normally,
noncontraband neutral cargo on board a captured enemy vessel is not liable to confiscation). For
these reasons, it is always preferable that captured enemy prizes be sent in for adjudication,
whenever possible.
40. NWIP 10-2, para. 503b(2) & n. 20; San Remo Manual, para. 139. All the documents and
papers of a prize, as required by 10 U.S.C. sec. 7657, should be taken on board the capturing vessel
of war and should be inventoried and sealed, in accordance with the procedure set forth in that
section, for delivery to the prize court, with particular attention being paid to the protection of the
interests of the owners of innocent neutral cargo on board, if such exists.
41. NWIP 10-2, para. 503b(2).
42. GPW, art. 4A(5); NWIP 10-2, para. 512 and n. 38. The evolution of the law regarding the
treatment of persons found on captured enemy merchant ships and aircraft is described in Tucker
112-15. See also San Remo Manual, para. 165.
43. NWIP 10-2, para. 512. See also GC, arts. 4 & 41. If necessary, enemy nationals, particularly
those in the public service of the enemy, found on board captured enemy merchant vessels may be
treated as prisoners of war. NWIP 10-2, para. 512, and n. 39.
44. Hague XI, arts. 5 & 8; GPW, art. 5; NWIP 10-2, para. 512; Tucker 113-14 & n. 60 & n.
62. If there is doubt as to entitlement of such detained neutral nationals to treatment as prisoners of
war, they are to be given the benefit of that doubt until the contrary is determined by a "competent
tribunal." GPW, art. 5(2); GP I, art. 45(1). Nationals of a neutral nation who have not so
participated in acts of hostility or resistance are to be released. See San Remo Manual, para. 166.
410 Commander's Handbook on the Law of Naval Operations
8.2.2.2 Destruction. Prior to World War II, both customary and conventional
international law prohibited the destruction of enemy merchant vessels by
surface warships unless the safety of passengers and crew was first assured. This
requirement did not apply, however, if the merchant vessel engaged in active
resistance to capture or refused to stop when ordered to do so. Specifically, the
London Protocol of 1936, to which almost all of the belligerents of World War II
expressly acceded, provides in part that:
In particular, except in the case of persistent refusal to stop on being duly summoned, or of
active resistance to visit or search, a warship, whether suface vessel or submarine, may not
sink or render incapable of navigation a merchant vessel without having first placed
passengers, crew and ship's papers in a place of safety. For this purpose the ship's boats are not
regarded as a place of safety unless the safety of the passengers and crew is assured, in the
existing sea and weather conditions, by the proximity of land, or the presence of another vessel
which is in a position to take them on board.
During World War II, the practice of attacking and sinking enemy merchant
vessels by surface warships and submarines without prior warning and without
first providing for the safety of passengers and crew was widespread on both
sides. Rationale for these apparent departures from the agreed rules of the 1 936
London Protocol varied. Initially, such acts were justified as reprisals against
illegal acts of the enemy. As the war progressed, however, merchant vessels were
regularly armed and convoyed, participated in intelligence collection, and were
otherwise incorporated directly or indirectly into the enemy's
war-fighting/ war-sustaining effort. Consequently, enemy merchant vessels were
48
widely regarded as legitimate military targets subject to destruction on sight.
45. NWIP 10-2, para. (503b(3) and n. 22; Treaty Relating to the Use of Submarines and
Noxious Gases in Warfare, Washington, 6 February 1922, never came into force, 3Malloy 3118, 6
Wiktor 398-99, preamble & art. I; Treaty for the Limitation and Reduction of Naval Armaments,
London, 22 April 1930 [hereinafter Treaty of London], entered into force for the United States 31
December 1930, 46 Stat. 2881-82, T.S. 380, 112 L.N.T.S. 88, 4 Malloy 5281, 2 Bevans 1070, 2
Hackworth 691, art. 22; Proces-Verbal Relating to the Rules of Submarine Warfare set forth in
Part IV of the Treaty of London, 6 November 1936 [hereinafter 1936 London Protocol], 3 Bevans
298-99, 173 L.N.T.S. 357, 7 Hudson 492. The developments are considered in detail in Tucker
55-70 and Mallison 106-23. See also Levie, Submarine Warfare: With Emphasis on the 1936
London Protocol, in Grunawalt at 28-71.
46. China and Romania were the World War II belligerents who had not acceded to the
London Protocol of 1936.
47. See Mallison & Mallison, The Naval Practices of Belligerents in World War II: Legal
Criteria and Development, in Grunawalt at 87-103. Enemy merchant vessels were also destroyed
by military aircraft without warning and without first providing for the safety of passengers and
crew. However, this practice did not constitute a departure from the 1936 London Protocol which
does not address the destruction of merchant shipping by aircraft.
48. Mallison & Mallison, id. at 90-91.
The Law of Targeting 41 1
Although the rules of the 1936 London Protocol continue to apply to surface
warships, they must be interpreted in light of current technology, including
satellite communications, over-the-horizon weapons, and antiship missile
systems, as well as the customary practice of belligerents that evolved during and
following World War II. Accordingly, enemy merchant vessels may be
attacked and destroyed by surface warships, either with or without prior
50
warning, in any of the following circumstances:
51
1. Persistently refusing to stop upon being duly. summoned to do so
52
2. Actively resisting visit and search or capture
... 53
3. Sailing under convoy of enemy warships or enemy military aircraft
4. If armed
49. Nwogugu, Commentary on the 1936 London Proces-Verbal, in Ronzitti at 353.
50. The 1936 London Protocol was designed to protect only those merchant ships which "at the
moment" were not "participating in hostilities in such a manner as to cause [them] to lose [their]
right to the immunities of a merchant vessel." Report of the Committee of Jurists, 3 April 1930,
which drafted article 22, reprinted in Dep't of State, Proceedings of the London Naval Conference of
1930 and Supplementary Documents 189 (Dep't of State Conf. Ser. No. 6, 1931), and quoted in U.S.
Naval War College, International Law Situations 1930, at 5 (1931), Mallison 120, and Tucker 63.
Unfortunately the Conference delegates were unable to agree on the circumstances that would cause
the loss of the immunities of a merchant vessel. The list of circumstances set out in the text of
paragraph 8.2.2.2 reflects the practice of nations and the judgment of the International Military
Tribunal on Admiral Doenitz. 1 TWC 313, 40 U.S. Naval War College, International Law
Documents 1946-47, at 300-301 (1948); Levie, 1 The Code of International Armed Conflict
162-63; and Jacobson, The Law of Submarine Warfare Today, in Robertson at 205. Contra, Parks,
Conventional Aerial Bombing and the Law of War, U.S. Naval Inst. Proc, May 1982, at 106 (the
London Protocol is "of historical interest only"), and O'Connell, International Law and
Contemporary Naval Operations, 44 Br. Y.B. Int'l L. 52 (1970) ("submarines operating in times of
war are today governed by no legal text"). See also Green 163.
51 . The refusal must be persistent to meet the standard of the first exception to the general rule
of the London Protocol quoted in the text of paragraph 8.2.2.2. See paragraph 8.2.3, note 77 and
accompanying text (p. 418).
52. Second exception to the general rule of the 1936 London Protocol quoted in the text of
paragraph 8.2.2.2 (p. 410). See paragraph 7.6 (p. 387) for a general discussion of visit and search.
53. This "accurately reflects the traditional law as well as the uniform practice of the two
World Wars." Mallison 122; Jacobson, note 50 (p. 411) at 231.
54. In light of modem weapons, it is impossible to determine, if it ever was possible, whether
the armament on merchant ships is to be used offensively against an enemy or merely defensively.
It is unrealistic to expect enemy forces to be able to make that determination. Accordingly, this
rule has been modified in this text from that previously appearing in NWIP 10-2, para. 503b(3)(4).
See U.S. Naval War College, International Law Situations 1930, at 9-19 & 21-25 for a discussion
of earlier conflicting views of nations on armed merchant vessels. See also Levie, paragraph 8.2.2.2,
note 45 (p. 410), at 36-41; Fenrick, Comments, in Grunawalt at 113-18. Crew members bearing
side arms for personal protection against pirates and other marauders do not render a merchant
vessel "armed" for purposes of this listing. While the presence on board of shoulder-fired missiles
(continued...)
41 2 Commander's Handbook on the Law of Naval Operations
5. If incorporated into, or assisting in any way, the intelligence system of the
enemy's armed forces
56
6. If acting in any capacity as a naval or military auxiliary to an enemy's armed forces
7. If integrated into the enemy's war-fighting/ war-sustaining effort and
compliance with the rules of the 1936 London Protocol would, under the
circumstances of the specific encounter, subject the surface warship to imminent
danger or would otherwise preclude mission accomplishment.
Rules relating to surrendering and to the search for and collection of the
shipwrecked, wounded, and sick and the recovery of the dead, set forth in
paragraph 8.2.1, apply also to enemy merchant vessels and civilian aircraft that
may become subject to attack and destruction.
8.2.3 Enemy Vessels and Aircraft Exempt from Destruction or
Capture. Certain classes of enemy vessels and aircraft are exempt under the law
of naval warfare from capture or destruction provided they are innocently
employed in their exempt category. These specially protected vessels and
aircraft must not take part in the hostilities, must not hamper the movement of
combatants, must submit to identification and inspection procedures, and may
be ordered out of harm's way. These specifically exempt vessels and aircraft
include:
54. (...continued)
and rockets would likely constitute arming of a merchant vessel, the equipping of the vessel with
chaff launchers would not. See San Remo Manual, para. 60(f) and Doswald-Beck at 151. See also
paragraph 8.2.3, note 66 (p. 414).
55. This reflects the traditional law as it developed during the two World Wars. Mallison
122-23.
56. An enemy merchant ship designed for carrying cargo and actually carrying cargo of
substantial military importance is not a "military or naval auxiliary" unless it is owned by or under
the exclusive control of the armed forces. Mallison 123. (See paragraph 2.1.3 (p. 112) for a
discussion of auxiliaries). Such a vessel would not be subject to destruction unless it otherwise falls
under one of the other numbered headings of paragraph 8.2.2.2.
57. This paragraph addresses the circumstance described in the preceding note and reflects the
actual practice of nations, at least in general wars. See Mallison 120-21 & 123. Although the term
"war-sustaining" is not subject to precise definition, "effort" that indirectly but effectively
supports and sustains the belligerent's war-fighting capability properly falls within the scope of the
term. See also paragraph 7.4, note 88 (p. 381) and paragraph 8.1.1, note 11 (p. 403). Compare San
Remo Manual, para. 60(g) and see Doswald-Beck at 150.
58. See note 35 and accompanying text (p. 408).
59. The granting of this protection is consistent with the "maintenance of military efficiency."
Mallison 16. These classes of exempt vessels are discussed in Tucker 86-98 and Mallison 123-29.
60. In such a way, the law fairly balances the rights of opposing belligerents. As reflected in the
succeeding notes to this paragraph, the practice of nations is generally consistent with this balance.
See also San Remo Manual, paras. 48 & 137.
The Law of Targeting 41 3
1. Vessels and aircraft designated for and engaged in the exchange of prisoners of
war (cartel vessels).
2. Properly designated and marked hospital ships, medical transports, and medical
aircraft. Names and descriptions of hospital ships must be provided to the parties
to the conflict not later than ten days before they are first employed. Thereafter,
61. Tucker 97-98; Mallison 126; NWIP 10-2, para. 503c(l); San Remo Manual, paras. 47(c)
& 136(c). Cartel ships were used at the conclusion of the Falklands/Malvinas conflict to repatriate
about 10,000 Argentine PWs. The British used three requisitioned merchant ships, Argentina two
of its hospital ships. Each ship was identified by flying the flag of truce and the colors of the two
nations. Junod, Protection of the Victims of Armed Conflict Falkland-Malvinas Islands (1982), at
31. During World War II at least 15,000 PWs and civilian internees disappeared at sea as a result of
attacks against non-cartel ships that were carrying them. Report of the ICRC on its Activities
During the Second World War 319. Temporary detention of PWs and others aboard naval vessels
is discussed in paragraph 11.7.4 (p. 494).
62. GWS-Sea, arts. 22 & 29 (hospital ships) and 39 (medical aircraft); Tucker 97 & 123-34;
Mallison 124-25; NWIP 10-2, para 503c(2); San Remo Manual, para. 47(a). Coastal rescue craft are
also exempt from capture and destruction. GWS-Sea, art. 27; Eberlin, The Protection of Rescue
Craft in Periods of Armed Conflict, 1985 Int'l Rev. Red Cross 140; San Remo Manual, para. 47(b).
Temporary medical ships would be granted a lesser degree of protection by GP I, art. 23.
GWS-Sea, art. 14 permits warships to demand the surrender to them of enemy military wounded,
sick and shipwrecked personnel found in hospital ships and other craft "provided they are in a fit
state to be moved and that the warship can provide adequate facilities for necessary medical
treatment." GWS-Sea, art. 36, provides the hospital ship's medical personnel and crew may not be
attacked or captured, even if there are no sick and wounded on board. This extensive protection
reflects the facts that hospital ships without crew cannot function, and that the protection and care
of the sick and wounded would be impossible without a medical staff. They must, however, not be
used for any other purpose during the conflict, particularly in an attempt to shield military
objectives from attack. To ensure this, an opposing force may visit and search hospital ships, put on
board a commissioner temporarily or put on neutral observers (as was done in the 1982 Falklands
war), detain the ship for no more than seven days (if required by the gravity of the circumstances),
and control the ship's means of communications. The opposing force may also order hospital ships
to depart, make them take a certain course, or refuse assistance to them. GWS-Sea, arts. 30-31.
Sick bays and their medical personnel aboard other naval vessels must also be respected by boarding
parties and spared as much as possible. They remain subject to the laws of warfare, but cannot be
diverted from their medical purposes if required for the care of the wounded or sick. If a naval
commander can ensure the proper care of the sick and wounded, and if there is urgent military
necessity, the sick bays may be used for other purposes. GWS-Sea, art. 28.
Hospital ships can leave port even if the port falls into enemy hands. Hospital ships are not classified
as warships with regard to the length of their stay in neutral ports. GWS-Sea, art. 29 & 32. See
paragraph 7.3.2.1 (p. 372). See generally, Green 215-18.
63. GWS-Sea, art. 22, provides that at least ten days prior to placing a hospital ship into service,
notification must be effected to the parties to the conflict of the vessel's characteristics and name.
The characteristics include at least the gross registered tonnage, length and the number of masts and
funnels and may also include, for example, the vessel's silhouette. (See also San Remo Manual, para.
169.) The notification can be made in peacetime (to other nations party to the 1949 Geneva
Conventions), when the ship is nearing completion, or even after the outbreak of hostilities. As a
precaution, it is advisable to confirm earlier notification at the opening of hostilities. 2 Pictet,
Commentary 161 . See also the useful summary provided in Smith, Safeguarding the Hospital Ships,
U.S. Naval Inst. Proc, Nov. 1988, at 56.
414 Commander's Handbook on the Law of Naval Operations
hospital ships must be used exclusively to assist, treat and transport the wounded,
64
sick and shipwrecked. All exterior surfaces of hospital ships are painted white
and the distinctive emblem of the Red Cross or Red Crescent is displayed on the
hull and on horizontal surfaces. Hospital ships may not be armed although crew
members may carry light individual weapons for the maintenance of order, for
their own defense and that of the wounded, sick and shipwrecked. Use or
64. GWS-Sea, art. 22.
65. GWS-Sea, art. 43. To ensure maximum protection for its hospital ships, U.S. practice has
been to mark and illuminate them as follows:
1. Exterior surfaces shall be white except those areas designated for identifying
insignia.
2. Weather decks covered with wood shall be unpainted except for a square white
area to be painted around the distinctive emblem, i.e., red crosses.
3. Steel weather decks outside of walking areas shall be painted white and walking
areas thereon shall be gray.
4. Outer smoke pipe casing, booms, masts, and boats shall be white except that a
black band shall be painted around the top of smoke stacks.
5. Three red crosses, as large as possible, shall be painted on each side of the hull
(forward, center and aft).
6. Two red crosses, as large as possible, shall be painted on top of the superstructure
(forward and aft) with an additional red cross as large as possible on the forward
superstructure.
7. One red cross, as large as possible, shall be painted on each side of the stern of
boats and on each side of life rafts. Each boat may also be equipped with a mast on
which a red cross flag measuring at least 6 by 6 feet can be hoisted.
8. To provide the desired contrast where infra-red instruments and infra-red film
are used, the red cross may be painted over a black cross.
9. Optional flashing blue lights may be installed. See also paragraph 11.10.2
(p. 500)).
10. The whole ship, particularly the red crosses, should be fully illuminated at night.
See International Code of Signals, Pub. No. 102, at 136 (Notice to Mariners 52/85, at II-2.4); and
Figures 11-la and 11-lb (p. 503). See also Eberlin, Identification of Hospital ships and Ships
Protected by the Geneva Conventions of 12 August 1949, 1982 Int'l Rev. Red Cross 315; and
Eberlin, Underwater acoustic identification of hospital ships, 1988 id. 505. GWS-Sea, art. 27,
extends these rules to rescue craft "so far as operational requirements permit." See also paragraph
11.10 (p. 500).
66. GWS-Sea, art. 35. See 2 Pictet 194. The taking of other limited self-defense measures
against antiship missile attack, such as equipping hospital ships with chaff, ECM and infra red decoy
dispensers, as suggested in Oreck, Hospital Ships: The Right of Limited Self Defense, U.S. Naval
Inst. Proc, Nov. 1988, at 65, and as provided in San Remo Manual, para. 170, would not violate
their protected status. However, equipping of such ships with the Phalanx close-in weapon system
(CIWS) would, under the San Remo Manual rule, be inconsistent with their protected status. See
Doswald-Beck at 235 and paragraph 8.2.2.2, note 54 (p. 411).
(continued...)
The Law of Targeting 41 5
possession of cryptographic means of transmitting message traffic by hospital ships
is prohibited under current law. Medical aircraft, whether civilian or military,
and whether permanently or temporarily so employed, must be used exclusively
for the removal and transportation of the wounded, sick and shipwrecked, or for
the transportation of medical personnel or medical equipment. They may not be
armed nor may they be reconnaissance configured. Medical aircraft must be
clearly marked with the emblem of the red cross or red crescent. Hospital ships,
66. (...continued)
Portable arms and ammunition, taken from the wounded, sick and shipwrecked, may be retained
on board for eventual turn-over to proper authority; similarly, arming crews of sick bays with light
individual weapons for the maintenance of order, for their own defense or that of the sick and
wounded, does not deprive a sick bay on a warship of its guaranteed protection and does not
permit attacks on it (GWS-Sea, art. 36).
67. GWS-Sea, art. 35(2), authorizes hospital ships to carry and employ communications
equipment necessary for their movement and navigation. GWS-Sea, art. 34, however, restricts the
use of cryptographic means of communication. The English language version of art. 34 implies
that the possession or use of such means for both sending and receiving encrypted communications
are prohibited. The equally authentic Spanish and French texts of art. 34(2), however, prohibit
only the sending ("pour leurs emissions") of encrypted traffic. See Revision of Annex I to Protocol
I, 1983 Int'l Rev. Red Cross, 22 at 26. The requirement that hospital ships must transmit in the
clear is undergoing critical review in various international fora and it is anticipated that this
prescription will eventually be either relaxed or abandoned. Indeed, the San Remo Manual, para.
171, would permit the use of cryptographic equipment in hospital ships to "fulfill most effectively
their humanitarian mission."
68. GWS, art. 36; GWS-Sea, art. 39; GC, art. 22; and GP I, art. 8. Medical aircraft may not be
used to collect or transmit intelligence data since they may not be used to commit, outside their
humanitarian duties, acts harmful to the enemy. This prohibition does not preclude the presence
or use on board medical aircraft of communications equipment and encryption materials solely to
facilitate navigation, identification or communication in support of medical operations.
See paragraph 7.3.7 (p. 379) for guidance regarding flight of medical aircraft over, or landing on,
neutral territory.
69. See Pictet, Vol. I, 289. Medical aircraft shall contain no armament other than small arms
and ammunition belonging to the wounded and sick or necessary for the defense of the wounded
and sick and the medical personnel. See San Remo Manual, para. 178. As far as practicable under
the circumstances, the medical mission shall be performed in such places and in such a manner as to
minimize the risk that the conduct of hostilities by combatants may imperil the safety of medical
aircraft. See generally, AFR 160-4, Medical Service under the 1949 Geneva Convention [sic] on
Protection of War Victims. See also GP I art. 28.
Aeromedical evacuation also may, of course, be conducted by combat-equipped helicopters and
airplanes. They are not, however, exempt from attack, and fly at their own risk of being
attacked.
70. AFP 110-31. Medical aircraft shall be clearly marked with the red cross/red crescent, as
large as possible, on a white background, together with their national colors, on their upper, lateral
and lower surfaces. They may be painted white all over. See International Code of Signals, Pub.
No. 102, at 136 (Notice to Mariners 52/85, at II-2.2) and Figure 1 1-1 a (p. 503). See also San Remo
Manual, para. 175.
416 Commander's Handbook on the Law of Naval Operations
medical transports and medical aircraft utilized solely for medical purposes and
recognized as such are not to be deliberately attacked.
71. As a general rule, medical aircraft, recognized as such, should not be deliberately attacked.
AFP 110-34, para. 3-2c. However, there is no specific treaty to which the United States is a party
providing this protection. (An earlier Air Force manual would permit attack if "under the
circumstances at the time it represents an immediate military threat and other methods of control
are not available." AFP 110-31, para. 4-2f.) Medical aircraft, wherever flying, are protected from
attack to the extent they are flying at altitudes, times, and on routes specifically agreed upon
between the belligerents. GWS, art. 36; GWS-Sea, art. 39; GC, art. 22. Thus, U.S. medical aircraft
may not over fly enemy-controlled territory and expect to be immune from attack without prior
enemy agreement.
In and over land areas physically controlled by friendly forces, and in and over sea areas not
physically controlled by the enemy, medical aircraft will be immune from attack. Before making
flights bringing them within range of the enemy's surface-to-air weapons systems, however, the
enemy should be notified with a view to ensuring such aircraft will not be attacked. (GP I, art. 25.)
Whether or not the parties to the conflict are bound by GP I, prior agreement between them is
necessary in order to afford protection from attack to medical aircraft that are flying in and over
those parts of the contact zone which are physically controlled by friendly forces, and in and over
those areas the physical control of which is not fully established. In the absence of such an
agreement, medical aircraft operate at their own risk. Nevertheless, they shall be respected after
they have been recognized as medical aircraft. (GP I, art. 26(1); Green 216-18.) These procedures
were followed in the 1982 Falklands war where neither belligerent was a party to GP I. See also San
Remo Manual, para. 180.
"Contact zone"here means any land area where the forward elements of opposing forces are in
contact with each other, especially when they are exposed to direct fire from the ground. The
breadth of the contact zone will vary according to the tactical situation. (GP I, art. 26(2).)
"Friendly forces" are the forces of the nation operating the aircraft, or its allies or co-belligerents.
Medical aircraft must comply with a request to land for inspection. (GWS, art. 36; GWS-Sea, art.
39; GC, art. 22.) Under GP I, art. 30, these requests are to be given in accordance with the
International Civil Aviation Organization (ICAO) standard procedures for interception of civil
aircraft. They are found in Section D of the DOD Flight Information Publication (FLIP) (Enroute)
IFR Supplement.
Medical aircraft complying with such a request to land must be allowed to continue their flight,
with all personnel on board belonging to their forces, to neutral countries, or to countries not a
party to the conflict, so long as inspection does not reveal that the aircraft was engaging in acts
harmful to the inspecting force or otherwise violating the Geneva Conventions of 1949. Persons of
the nationality of the inspecting force found on board may be taken off and retained. Bothe, Partsch
& Solf 163. See also GP I, art. 30.
It is very difficult to ensure the safety of medical aircraft in armed conflict no matter how clear their
markings. If possible, therefore, the parties should reach an agreement to facilitate their protection.
Although rarely reached in the past, a proposal for such an agreement should state the proposed
number of medical aircraft, their flight plans and their means of identification. Receipt of the
proposal should be acknowledged and then answered definitively, as rapidly as possible. The
substance of any proposal, reply and agreement (including the means of identification to be used)
should be rapidly disseminated to the military units concerned. See AFP 110-31, para. 2-6e.
See paragraph 1 1 . 10 (p. 500) for the optional distinctive signals now available for medical aircraft.
The Law of Targeting 41 7
3. Vessels charged with religious, non-military scientific, or philanthropic
missions. (Vessels engaged in the collection of scientific data of potential military
application are not exempt.)
4. Vessels and aircraft guaranteed safe conduct by prior arrangement between the
73
belligerents.
5. Small coastal (not deep-sea) fishing vessels and small boats engaged in local
coastal trade. Such vessels and boats are subject to the regulations of a belligerent
naval commander operating in the area.
72. Hague XI, art. 4; NWIP 10-2, para. 503c(3). As noted in Tucker 96-97 and Mallison 128,
the practice has been to construe this exemption quite narrowly and to grant this exemption by
express agreement between the belligerents. The parenthetical exception to the exemption has
been added to reflect modern practices in the exploration of the sea and seabed; see Mallison 128
and Levie, 1 The Code of International Armed Conflict 186. The San Remo Manual, paras. 47(f)
and 136(e), reflects this exception as well.
73. NWIP 10-2, para. 503c(4); San Remo Manual, paras. 47(c) and 136(c). One such vessel,
the Japanese merchant ship AWA MARU, sailing alone in a fog bank, was torpedoed and sunk by
USS QUEENFISH on 1 April 1945 thinking she was a Japanese destroyer. Although
QUEENFISH had received notice of the guarantee of safe conduct in a plain language
COMSUBPAC message three weeks before, it had not been read by the ship's officers. For details
see Dep't St. Bull., 3 June, 15 July & 12 August 1945, reprinted in U.S. Naval War College,
International Law Documents 1944-45, at 125-38 (1946); Voge, Too much Accuracy, Naval Inst.
Proc, March 1950, at 256; Speer, Let Pass Safely the Awa Maru, id., April 1964, at 69; Lowman,
Treasure of the Awa Maru, id., Aug. 1982, 45; Loughlin, As I Recall "Damned if I Did; Damned if
I Didn't," id. Aug. 1982, at 49; and Innis, In Pursuit of the Awa Maru (1980) (describing the events
and subsequent general court-martial conviction of QUEENFISH's commanding officer). See also
Green 166.
In October 1943, the properly marked Japanese hospital ship TACHIBANA MARU was stopped
at sea by two U.S. Navy destroyers and was found to be carrying 700 drums of oil, 1500
able-bodied combat troops (dressed in white hospital gowns), and 1500 boxes of ammunition
marked with the Red Cross Symbol, all in clear violation of Hague X, art. 4(2). See The trial of
Takaji Wachi, recounted in Levie, Terrorism in War: the Law of War Crimes, at 374 (1993).
Ships chartered to convey medical equipment and pharmaceuticals for the wounded and sick only,
so long as the particulars of the voyage have been agreed to beforehand between the belligerents,
are exempt from capture and destruction. GWS-Sea, art. 38.
74. The Paquete Habana, 175 U.S. 677 (1900); Hague XI, art. 3; Tuckert 95-96; Mallison
15-16 & 126-28; NWIP 10-2, para. 503c(6); San Remo Manual, paras. 47(g) & 136(f). See Cagle
& Manson, The Sea War in Korea 296-97 (1957). It is necessary to emphasize that the immunity of
small coastal fishing vessels and small boats depends entirely upon their "innocent employment." If
found to be assisting a belligerent in any manner whatever (e.g., if incorporated into a belligerent's
naval intelligence network), they may be captured or destroyed. The British were entirely justified
in attacking, on 9 May 1982, the Argentine fishing vessel NARWAL which was used to shadow
the British fleet and report its location. Before NARWAL sank, a British boarding party found an
Argentine naval officer on board with orders directing him to conduct reconnaissance and to
detect and report the position of British units. London Times, 1 1 May 1982, at 1 & 6; Hastings &
Jenkins, The Battle of the Falklands 158 (1983); Middleton, Operation Corporate 186-87 (1985);
Woodward, One Hundred Days 191-5, 197-8 (1992). See also Levie, 1 The Code of International
(continued...)
41 8 Commander's Handbook on the Law of Naval Operations
6. Civilian passenger vessels at sea and civil airliners in flight are subject to capture
but are exempt from destruction. Although enemy lines of communication are
generally legitimate military targets in modern warfare, civilian passenger vessels at
sea, and civil airliners in flight, are exempt from destruction, unless at the time of
the encounter they are being utilized by the enemy for a military purpose (e.g.,
transporting troops or military cargo) or refuse to respond to the directions of the
intercepting warship or military aircraft. Such passenger vessels in port and airliners
on the ground are not protected from destruction.
If an enemy vessel or aircraft assists the enemy's military effort in any manner,
it may be captured or destroyed. Refusal to provide immediate identification
upon demand is ordinarily sufficient legal justification for capture or
destruction. All nations have a legal obligation not to take advantage of the
harmless character of exempt vessels and aircraft in order to use them for military
78
purposes while preserving their innocent appearance. For example, the
utilization by North Vietnam of innocent appearing small coastal fishing boats as
logistic craft in support of military operations during the Vietnam Conflict was in
79
violation of this obligation.
74. (...continued)
Armed Conflict at 186. Refusal to provide immediate identification upon demand is sufficient
basis for capture or destruction of such vessels and boats. See paragraph 8.2.1, note 35 (p. 408) and
accompanying text (regarding duty to search for the shipwrecked) and paragraph 7.7.4 (p. 392)
(regarding breach and attempted breach of blockade).
75. AFP 110-31, para. 4-3, AFP 1 10-34, para. 2.3b. Civilian passenger vessels and civil aircraft
were not addressed in NWIP 10-2, para. 503c. The rule prohibiting destruction of civilian
passenger vessels at sea and civil airliners in flight which have become military objectives by virtue
ofbeing part of enemy lines of communication (see paragraph 8.1.1 and note 11 (pp. 402 & 403)), is
premised upon the assessment that the inevitable death of the large number of innocent civilians
normally carried in them would in the circumstances described in the text of paragraph 6, be clearly
disproportionate to whatever military advantage that might be expected from attacking such
vessels or aircraft. The rule denying protection from destruction of passenger vessels in port and
airliners on the ground assumes they are not carrying passengers at the time of attack. Green
180-81 . Compare the more restrictive approach of San Remo Manual, paras. 47(e), 53(c) and 56.
The list of exempt vessels in paragraph 8.2.3 omits "vessels and aircraft exempt by U.S. or allied
proclamation, operation plan, order or other directive" which were included in NWIP 10-2, para.
503c(5), because of the unilateral basis of the exemption. See Tucker 98 n. 14.
76. See paragraph 8.2.2.2 (p. 410). But also see preceding note.
77. Refusal by an exempt vessel or aircraft to provide immediate identification is considered to
be an act of refusing to stop upon being summoned, particularly in light of the abilities of modern
communications. Compare note 50 and accompanying text (p. 411).
78. Hague XI, art. 3. See also San Remo Manual, paras. 49-51 (loss of exemption of hospital
ships), para. 52 (loss of exemption of other protected vessels), and para. 57 (loss of exemption of
protected aircraft).
79. O'Connell, The Influence of Law on Seapower 177 (1975). See generally Hodgman,
Market Time in the Gulf of Thailand, in Uhlig, Vietnam: The Naval Story 308 (1986).
The Law of Targeting 41 9
8.3 SUBMARINE WARFARE
The law of armed conflict imposes essentially the same rules on submarines as
80
apply to surface warships. Submarines may employ their conventional
weapons systems to attack enemy surface, subsurface or airborne targets
82
wherever located beyond neutral territory. Enemy warships and military
aircraft, including naval and military auxiliaries, may be attacked and destroyed
83
without warning. Rules applicable to surface warships regarding enemy ships
that have surrendered in good faith, or that have indicated clearly their intention
84
to do so, apply as well to submarines. To the extent that military exigencies
permit, submarines are also required to search for and collect the shipwrecked,
wounded, and sick following an engagement. If such humanitarian efforts
would subject the submarine to undue additional hazard or prevent it from
accomplishing its military mission, the location of possible survivors should be
passed at the first opportunity to a surface ship, aircraft, or shore facility capable of
rendering assistance.
8.3.1 Interdiction of Enemy Merchant Shipping by Submarines. The
rules of naval warfare pertaining to submarine operations against enemy
merchant shipping constitute one of the least developed areas of the law of armed
conflict. Although the submarine's effectiveness as a weapons system is
80. The legal principles governing modern submarine warfare are discussed in Gilliland,
Submarines and Targets: Suggestions for New Codified Rules of Submarine Warfare, 73 Geo. L.J.
975 (1985). See also Jacobson, paragraph 8.2.2.2, note 50 (p. 411) at 205.
81. Conventional weapons are discussed in Chapter 9, Conventional Weapons and Weapon
Systems. Nuclear weapons are discussed in Chapter 10, Nuclear, Chemical and Biological Weapons.
82. See paragraph 8.2.1, note 23 (p. 407) and paragraph 7.3 (p. 370) for a discussion of neutral
territory.
83. MaUison 105-06.
84. See paragraph 8.2.1 (p. 407).
85. Paragraph 8.2.1 and note 35 (pp. 407 & 408); Mallison 134-39.
86. All ships, including submarines, must "take all possible measures" to search for and collect
survivors after each engagement. GWS-Sea, art. 18. Fleet Admiral Nimitz indicated before the
International Military Tribunal at Nuremberg trying the German submarine commander Admiral
Doenitz that the U.S. policy in the Pacific during World War II was not to search for survivors if
such action would cause undue additional hazard to the submarine, or prevent the submarine from
accomplishing its military mission. The behavior of the other parties to World War II was similar.
Mallison 134-39. See also Doenitz, Memoirs: Ten Years and Twenty Days, 259 (1958). However,
firing upon shipwrecked survivors in the water is clearly a war crime. See Hie Llandovery Castle Case
(1921), 2 Ann. Dig. 436, in which a German tribunal tried and convicted the officers of a U-boat
for, "contrary to international law," firing upon and killing survivors of an unlawfully torpedoed
hospital ship during WW I. Levie, Terrorism in War: The Law of War Crimes, 33 (1993); Green
33, n. 90. See also The Peleus Case (1946), 13 Ann. Dig. 248, in which a British tribunal tried and
convicted the commanding officer (Heinz Eck) of a German submarine that during WW II had
systematically fired upon survivors of a torpedoed merchant vessel as they clung to wreckage and
rafts. Levie, id. at 105.
420 Commander's Handbook on the Law of Naval Operations
dependent upon its capability to remain submerged (and thereby undetected)
and despite its vulnerability when surfaced, the London Protocol of 1936
(paragraph 8.2.2.2) makes no distinction between submarines and surface
warships with respect to attacks upon enemy merchant shipping. The London
Protocol specifies that except in case of persistent refusal to stop when ordered to
do so, or in the event of active resistance to capture, a warship "whether surface
vessel or submarine" may not destroy an enemy merchant vessel "without
having first placed passengers, crew and ship's papers in a place of safety." The
impracticality of imposing upon submarines the same targeting constraints as
burden surface warships is reflected in the practice of belligerents of both sides
during World War II when submarines regularly attacked and destroyed without
warning enemy merchant shipping. As in the case of such attacks by surface
warships, this practice was justified either as a reprisal in response to unlawful acts
of the enemy or as a necessary consequence of the arming of merchant vessels, of
convoying, and of the general integration of merchant shipping into the enemy's
war-fighting/ war-sustaining effort.
The United States considers that the London Protocol of 1936, coupled with
89
the customary practice of belligerents during and following World War II,
imposes upon submarines the responsibility to provide for the safety of
passengers, crew, and ship's papers before destruction of an enemy merchant
vessel unless:
1 . The enemy merchant vessel persistently refuses to stop when duly summoned to
do so
92
2. It actively resists visit and search or capture
93
3. It is sailing under convoy of enemy warships or enemy military aircraft
94
4. It is armed
87. Mallison 106-22; Mallison & Mallison, The Naval Practices of Belligerents in World War
II: Legal Criteria and Developments, in Grunawalt at 89-102. See also Levie, Submarine Warfare:
With Emphasis on the 1936 London Protocol, in id., at 28.
88. Compare Tucker 63-70 with Mallison 119-20. For a discussion of reprisal, see paragraph
6.2.3 (p. 335).
89. See Mallison 113-122; Mallison & Mallison, note 87.
90. These exceptions are identical to those applicable to surface warfare set forth in paragraph
8.2.2.2 (p. 410).
91. Id., paragraph 8.2.2.2, subparagraph 1 and note 51 (p. 411).
92. Id., subparagraph 2 and note 52 (p. 411).
93. Id., subparagraph 3 and note 53 (p. 411).
94. Id., subparagraph 4 and note 54 (p. 411).
The Law of Targeting 421
5. It is incorporated into, or is assisting in any way the enemy's military intelligence
95
system
6. It is acting in any capacity as a naval or military auxiliary to an enemy's armed
r 96
torces
7. The enemy has integrated its merchant shipping into its
war-fighting/war-sustaining effort and compliance with the London Protocol of
1936 would, under the circumstances of the specific encounter, subject the
submarine to imminent danger or would otherwise preclude mission
97
accomplishment.
8.3.2 Enemy Vessels and Aircraft Exempt From Submarine
Interdiction. The rules of naval warfare regarding enemy vessels and aircraft
that are exempt from capture and/or destruction by surface warships also apply
to submarines. (See paragraph 8.2.3.)
8.4 AIR WARFARE AT SEA
98
Military aircraft may employ conventional weapons systems to attack
warships and military aircraft, including naval and military auxiliaries, anywhere
99
beyond neutral territory. Enemy merchant vessels and civil aircraft may be
attacked and destroyed by military aircraft only under the following
100
circumstances:
1. When persistently refusing to comply with directions from the intercepting
aircraft
2. When sailing under convoy of enemy warships or military aircraft
3. When armed
4. When incorporated into or assisting in any way the enemy's military
intelligence system
95. Id., subparagraph 5 and note 55 (p. 412).
96. Id., subparagraph 6 and note 56 (p. 412).
97. Id., subparagraph 7 and note 57 (p. 412).
98. See paragraph 8.3, note 81 (p. 419).
99. This listing is identical to that for surface warships and for submarines except for the
omission of reference to a merchant vessel resisting visit and search or capture. Should visit and
search or capture of a merchant vessel by an aircraft be feasible, as perhaps by a helicopter, that
provision would apply as it does for surface warships and submarines.
100. AFP 110-31, paras. 4-2a, 4-2c, & 4-4a, at 4-1 & 4-4. See paragraph 8.2, note 23 (p. 407)
for a discussion of neutral territory. See also Green 182.
422 Commander's Handbook on the Law of Naval Operations
5. When acting in any capacity as a naval or military auxiliary to an enemy's armed
forces
6. When otherwise integrated into the enemy's war-fighting or war— sustaining
effort.
To the extent that military exigencies permit, military aircraft are required to
search for the shipwrecked, wounded, and sick following an engagement at
101 ■ •
sea. The location of possible survivors should be passed at the first opportunity
to a surface vessel, aircraft, or shore facility capable of rendering assistance. '
Historically, instances of surrender of enemy vessels to aircraft are rare. If,
however, an enemy has surrendered in good faith, under circumstances that do
not preclude enforcement of the surrender, or has clearly indicated an intention
to do so, the enemy must not be attacked.
8.4.1 Enemy Vessels and Aircraft Exempt From Aircraft Interdiction.
The rules of naval warfare regarding enemy vessels and aircraft that are exempt
from capture and/or destruction by surface warships also apply to military
aircraft. (See paragraph 8.2.3.)
8.5 BOMBARDMENT
For purposes of this publication, the term "bombardment" refers to naval and
air bombardment of enemy targets on land with conventional weapons,
• • • 105
including naval guns, rockets and missiles, and air-delivered ordnance. Land
warfare is discussed in paragraph 8.6. Engagement of targets at sea is discussed in
paragraphs 8.2 to 8.4.
101. GWS, art. 15; GWS-Sea, art. 18; GC, art. 16; AFP 110-31, para. 4-2d n. 11, at 4-7 ("in
the case of aircraft, unfortunately, departure from the scene is usually required"). Under GP I,
medical aircraft flying pursuant to agreement between the parties in the contact zone or over areas
controlled by the enemy may not search for the wounded, sick and shipwrecked except by prior
agreement with the enemy. GP I, art. 28(4).
102. See paragraph 8.2.1 note 35 (p. 408).
103. Spaight 132-134 describes the surrender of U570 in August 1941, of the British
submarine SEAL in May 1940, and of a German convoy on 1 May 1945.
104. AFP 110-31, para. 4-2d, at 4-1. See also paragraph 8.2.1 and notes 29-33 (pp. 407-408).
105. With regard to aerial bombardment, see also AFP 110-31, ch. 5 and para. 6-6a; Parks,
Crossing the Line, U.S. Naval Inst. Proc, Nov. 1986, at 40-52; Parks, Linebacker and the Law of
War, Air U. Rev., Jan.-Feb. 1983, at 2-30; Parks, RoUing Thunder and the Law of War, Air U.
Rev., Jan.-Feb. 1982, at 2-23; Carnahan, "Linebacker II" and Protocol I, The Convergence of
Law and Professionalism, 31 Am. U.L. Rev. 861 (1982); Greenwood, International Law and the
United States' Air Operations Against Libya, 89 W. Va. L. Rev. 933 (1987); and Green, 147-49,
167-68, 183-85.
The Law of Targeting 423
8.5.1 General Rules. The United States is a party to Hague Convention No.
IX (1907) Respecting Bombardment by Naval Forces in Time of War. That
convention establishes the general rules of naval bombardment of land targets.
These rules have been further developed by customary practice in World Wars I
and II, Vietnam, the Falkland/Malvinas Conflict, and the Persian Gulf.
Underlying these rules are the broad principles of the law of armed conflict that
belligerents are forbidden to make noncombatants the target of direct attack,
107
that superfluous injury and unnecessary suffering are to be avoided, and that
108
wanton destruction of property is prohibited. To give effect to these concepts
of humanitarian law, the following general rules governing bombardment must
be observed.
8.5.1.1 Destruction of Civilian Habitation. The wanton or deliberate
destruction of areas of concentrated civilian habitation, including cities, towns,
109 110
and villages, is prohibited. A military objective within a city, town, or
village may, however, be bombarded if required for the submission of the enemy
111
with the minimum expenditure of time, life, and physical resources.
Incidental injury to civilians, or collateral damage to civilian objects must not be
excessive in light of the military advantage anticipated by the attack. (See
Paragraph 8.1.2.1.)
8.5.1.2 Terrorization. Bombardment for the sole purpose of terrorizing the
112
civilian population is prohibited.
8.5.1.3 Undefended Cities or Agreed Demilitarized Zones. Belligerents
are forbidden to bombard a city or town that is undefended and that is open to
106. See paragraph 8.1 and note 3 (p. 401).
107. See paragraph 8.1.2.1, Incidental Injury and Collateral Damage, and notes 16-20
thereunder (pp. 404-405).
108. Id.; GWS, art. 50; GWS-Sea, art. 51; GC, art. 147; GP I, art. 85(2); Charter of the
International Military Tribunal at Nuremberg, art. 6(b) (paragraph 6.2.5, note 55 (p. 343)). See also
Principle VI(b), Nuremberg Principles. The Nuremberg Principles may be found in DA PAM
27-161-2 at 303.
109. GWS, art. 50; GWS-Sea, art. 51; GC, art. 147; GP I, art. 85(2).
110. Military objective is defined in paragraph 8.1.1 (p. 8-2).
111. Cf. HR, art. 23(g); 1923 Draft Hague Rules of Air Warfare, art. 24(4); GP I, art. 51(5)(b);
Conventional Weapons Convention, Protocol III, art. 3.
112. 1923 Draft Hague Rules of Air Warfare, art. 22; NWIP 10-2, para. 221b at n. 15; codified
in GP I, art. 51(2), and GP II, art. 13(2); Matheson, Remarks, paragraph 8.1, note 2 (p. 401), at 426.
Otherwise legal acts which cause incidental terror to civilians, for example, in the bombing of a
munitions factory the work force of which is civilian, are not prohibited. As a practical matter,
some fear and terror will be experienced by civilians whenever military objectives in their vicinity
are attacked. Levie, 1 The Code of International Armed Conflict 217-218; Bothe, Partsch & Solf
300-301.
424 Commander's Handbook on the Law of Naval Operations
113
immediate entry by their own or allied forces. A city or town behind enemy
lines is, by definition, neither undefended nor open, and military targets therein
may be destroyed by bombardr
115
exempt from bombardment.
1 14
may be destroyed by bombardment. An agreed demilitarized zone is also
8.5.1.4 Medical Facilities. Medical establishments and units (both mobile and
fixed), medical vehicles, and medical equipment and stores may not be
deliberately bombarded. Belligerents are required to ensure that such medical
facilities are, as far as possible, situated in such a manner that attacks against
117
military targets in the vicinity do not imperil their safety. If medical facilities
are used for military purposes inconsistent with their humanitarian mission, and
if appropriate warnings that continuation of such use will result in loss of
118
protected status are unheeded, the facilities become subject to attack. The
distinctive medical emblem, a red cross or red crescent, is to be clearly displayed
on medical establishments and units in order to identify them as entitled to
119
protected status. Any object recognized as being a medical facility may not be
120
attacked whether or not marked with a protective symbol.
113. HR, art. 25; Hague IX, art. 1; clarified in GP I, art. 59. Solf views article 59 as a "clear
declaration of well-established customary international law." Solf, Protection of Civilians,
paragraph 8.1.2, note 15 (p. 404), at 135. See also Green 97-8, 147-49. But see Robertson, in
Ronzitti, at 161-171, who regards this provision of Hague IX as "moribund" and inappropriate for
naval forces. He argues that the test should be whether the city or town, or a portion thereof, is a
legitimate military objective. FM 27-10 gives the following conditions that should be fulfilled for a
place to be considered undefended:
(1) Armed forces and all other combatants, as well as mobile weapons and mobile
military equipment, must have been evacuated, or otherwise neutralized;
(2) no hostile use shall be made of fixed military installations or establishments;
(3) no acts of warfare shall be committed by the authorities or by the population; and
(4) no activities in support of military operations shall be undertaken.
The presence in the place, of medical units, wounded and sick, and police forces
retained for the sole purpose of maintaining law and order does not change the
character of such an undefended place.
FM 27-10, para. 39b (Ch. 1, 15 July 1976).
114. Bothe, Partsch & Solf 382.
115. The United States considers this to be customary law. Matheson, Remarks, paragraph
8.1, note 2 (p. 401), at 427. Standards for the creation of demilitarized zones may be found in GP I,
art. 60. See also Green 96-7.
116. HR, art. 27; Hague IX, art. 5; GWS, arts. 19 & 35; GWS-Sea, art. 23; GC, arts. 18 & 21;
GPI, art. 12; GP II, art. 11.
117. GWS, art. 19; GC, art. 18; GP I, art. 12(4).
118. HR, art. 27; Hague IX, art. 5; GWS, art. 21; GWS-Sea, art. 34; GC, art. 19; GP I, art. 13,
GPII, art. 11.
119. See paragraph 11.9.1, The Red Cross and Red Crescent (p. 496).
120. See paragraph 11.9.7 (p. 499).
The Law of Targeting 425
8.5.1.5 Special Hospital Zones and Neutralized Zones. When established
by agreement between the belligerents, hospital zones and neutralized zones are
immune from bombardment in accordance with the terms of the agreement
121
concerned.
8.5.1.6 Religious, Cultural, and Charitable Buildings and Monuments.
Buildings devoted to religion, the arts, or charitable purposes; historic
monuments; and other religious, cultural, or charitable facilities should not be
122
bombarded, provided they are not used for military purposes. It is the
121. GWS, art. 23; GC, arts. 14-15. Annexes to each of these conventions provide sample
agreements relating to the establishment of these zones. On 13 June 1982, the British and
Argentine authorities, at the suggestion of the ICRC representative on scene in the Falklands,
agreed to the establishment of a neutralized zone in the center of Stanley, comprising the Anglican
Cathedral and a clearly defined 5 acre area around it. This zone was, however, not used as the
surrender was accepted at 2100 (local) 14 June 1982. U.N. Doc. S/15215, 14 June 1982; HMSO,
The Falklands Campaign: A Digest of Debates in the House of Commons 2 April to 15 June 1982,
at 340-47 (1982); London Times, 14 June 1982, at 1; London Times, 15 June 1982, at 1 & 8;
Junod, Protection of the Victims of Armed Conflict Falkland-Malvinas Islands 1982, at 33-34.
Similarly, a neutralized zone was established at sea in the Falkland (Malvinas) Conflict by the parties
to permit hospital ships to hold position to facilitate the exchange of wounded and sick British and
Argentine personnel. That zone, referred to as the "Red Cross Box," is discussed in Junod, id. at 26.
For a discussion of the differences among hospital, safety and neutralized zones, see Pictet, Vol. 1 , at
206.
122. HR, art. 27; Hague IX, art. 5; GP I, art. 53(a); Convention for the Protection of Cultural
Property in the Event of Armed Conflict, The Hague, 14 May 1954, 249 U.N.T.S. 216,
[hereinafter 1954 Hague Convention], art. 4. While the United States is not a Party to the 1954
Hague Convention, it considers it to reflect customary law. U.S. and other Coalition forces
followed the Convention throughout the Persian GulfWar. Indeed, Coalition forces continued to
accord protection to Iraqi cultural property even when Iraqi forces unlawfully used such property
to shield military targets from attack. See Title V Report, App. O, at 0-2 & 0-8. For a
comprehensive commentary on the 1954 Hague Convention sec Toman, The Protection of
Cultural Property in the Event of Armed Conflict (1996).
General Eisenhower, as Supreme Allied Commander in Europe preparing to invade Europe,
reminded his forces to comply with this customary rule in the following memorandum:
To Bernard Law Montgomery, May 26, 1944
Omar Nelson Bradley
Bertram Home Ramsey, and
Trafford Leigh-Mallory
Secret [Since declassified]
Subject: Preservation of Historical Monuments
1. Shortly we will be fighting our way across the Continent of Europe in battles
designed to preserve our civilization. Inevitably, in the path of our advance will be
found historical monuments and cultural centers which symbolize to the world all
that we are fighting to preserve.
(continued...)
426 Commander's Handbook on the Law of Naval Operations
responsibility of the local inhabitants to ensure that such buildings and
monuments are clearly marked with the distinctive emblem of such sites — a
rectangle divided diagonally into two triangular halves, the upper portion black
and the lower white. (See paragraph 11.9.)
8.5.1.7 Dams and Dikes. Dams, dikes, levees, and other installations, which if
breached or destroyed would release flood waters or other forces dangerous to
the civilian population, should not be bombarded if the potential for harm to
noncombatants would be excessive in relation to the military advantage to be
124
gained by bombardment. ' Conversely, installations containing such
122. (...continued)
2. It is the responsibility of every commander to protect and respect these symbols
whenever possible.
3. In some circumstances the success of the military operation may be prejudiced
in our reluctance to destroy these revered objects. Then, as at Cassino, where the
enemy relied on our emotional attachments to shield his defense, the lives of our men
are paramount. So, where military necessity dictates, commanders may order the
required action even though it involves destruction of some honored site.
4. But there are many circumstances in which damage and destruction are not
necessary and cannot be justified. In such cases, through the exercise of restraint and
discipline, commanders will preserve centers and objects of historical and cultural
significance. Civil Affairs Staffs at higher echelons will advise commanders of the
locations of historical monuments of this type, both in advance of the front lines and
in occupied areas. This information, together with the necessary instructions, will be
passed down through command channels to all echelons.
The Papers of Dwight David Eisenhower: The War Years: II, at 1890-91 (Chandler & Ambrose,
eds. 1970). See also Schaffer, Wings of Judgment: American Bombing in World War II, at 50
(1985); Hapgood, Monte Cassino 158-59 (1984) (quoting a 29 December 1943 message from
General Eisenhower to "all commanders" to the same effect, Historical Research Center, Maxwell
Air Force Base, AL, File 622.610.2, Folder 2, 1944-45); and Blumenson, United States Army in
World War II: The Mediterranean Theater of Operations: Salerno to Cassino 397-399 (1969)
(quoting Combined Chiefs of Staff messages of 10 and 19 June 1943 to Eisenhower on this effect and
some of the actions taken thereon).
Development of rules for the protection of cultural property is described in Verri, The Condition
of Cultural Property in Armed Conflicts, 1985 Int'l Rev. Red Cross 67 (antiquity to the
Napoleonic Wars) and 127 (1850s to World War II). See also, Green 44, 145-46.
123. Hague IX, art. 5. There is, however, no requirement to observe these signs or any others
indicating inviolability with respect to buildings that are known to be used for military purposes.
124. Compare GP I, art. 56, which, for nations bound thereby, provides a much higher standard
of protection for this limited class of objects, as well as nuclear electrical generating stations. For
example, even if a dam or dike is a military objective, art. 56 prohibits attacking it if the attack may
cause flooding and consequent severe losses among the civilian population. Art. 56 subjects attacks
on military objectives in the vicinity of dams and dikes to the same high standard. (The special
protection can be lost under the limited circumstances described in art. 56(2).) Green 149-50.
Reasons why art. 56 is militarily unacceptable to the United States appear in remarks of U.S.
(continued...)
The Law of Targeting 427
dangerous forces that are used by belligerents to shield or support military
activities are not so protected.
8.5.2 Warning Before Bombardment. Where the military situation permits,
commanders should make every reasonable effort to warn the civilian
population located in close proximity to a military objective targeted for
bombardment. Warnings may be general rather than specific lest the
1 0f\
bombarding force or the success of its mission be placed in jeopardy.
124. (...continued)
Department of State Legal Advisor Sofaer in Sixth Annual American Red Cross — Washington
College of Law Conference, paragraph 8.1, note 2 (p. 401), at 468-9. They include the protection
given under art. 56 to "modern integrated power grids, where it is impossible to say that electricity
from a particular plant goes to a particular customer" and to nuclear power plants "used to produce
plutonium for nuclear weapons purposes." See paragraph 11.9.2 (p. 497) and Figure 11-li (p. 505)
for the protective signs associated with these objects. The United States does not, of course,
consider the provisions of art. 56 to be customary law. Matheson, Remarks, paragraph 8.1, note 2
(p. 401), at 427.
125. Attacks on such installations are, of course, subject to the rule of proportionality described
in paragraph 8.1.2.1 (p. 404). GC, art. 28; GP I, art. 51(7); Solf, Protection ofCivilians, paragraph
8.1.2, note 15 (p. 404) at 134. The practice of nations has previously indicated great restraint in the
attacks of dams and dikes, the breach of which would cause such severe civilian losses. Thus, Solf is
of the view that art. 56 "differs little from customary international law." See, however, the U.K.
destruction of the Ruhr dams during WW II, described in V Churchill, Second World War
(1954), at 63. For an example of U.S. application of this principle in the Vietnam Conflict see
President Nixon's news conference of 27 July 1972, paragraph 8.1.2, note 14 (p. 404).
126. See paragraph 11.2, Protected Status (p. 481). Warnings are relevant to the protection of
the civilian population (so the civilians will have an opportunity to seek safety) and need not be
given when they are unlikely to be affected by the attack.
The requirement of warning is longstanding and derives from both Hague Regulations (art. 26)
and Hague Convention IX (art. 6). Green 101, 148, 168 & 183. During World War II, practice
was lax on warnings because of the heavily defended nature of the targets attacked as well as
attempts to conceal targets. More recently, increased emphasis has been placed on the desirability
and necessity of prior warnings even to military personnel. For example, on 19 October 1987
Iranian naval personnel were warned of the impending attack by U.S. naval forces on the Rashadat
Platform in the Persian Gulf (in response to the attack on the U.S. -flag tanker SS SEA ISLE CITY
four days earlier in Kuwaiti territorial waters) and allowed to depart before the attack commenced.
Presidential Letter to Congress, 20 Oct. 1987, 23 Weekly Comp. Pres. Docs., 1206 (1987). Similar
advance warning was given in the 18 April 1988 attacks on the Sassan and Sirri gas/oil separation
platforms (in response to the near-destruction ofUSS SAMUEL B. ROBERTS (FFG-58) on 14
April 1988 by an Iranian mine in a minefield laid across a neutral shipping channel). Presidential
Letter to Congress, 19 Apr. 1988, 24 Weekly Comp. Pres. Docs., 25 Apr. 1988, at 493. See also
Perkins, The Surface View: Operation Praying Mantis, U.S. Naval Inst. Proc, May 1989, at 68 &
69. Similarly, during the Persian Gulf War Coalition forces frequently dropped leaflets alerting
Iraqi ground forces of impending attacks and encouraging them to surrender. Title V Report, at
0-618. Nevertheless, the practice of nations recognizes that warnings need not always be given.
This same requirement is included as a "precaution in attack" in GP I, art. 57(2)(c), which the
United States supports as customary law. Matheson, Remarks, paragraph 8.1, note 2 (p. 401) at
427.
428 Commander's Handbook on the Law of Naval Operations
8.6 LAND WARFARE.
The guidance in this paragraph provides an overview of the basic principles of
law governing conflict on land. For a comprehensive treatment of the law of
armed conflict applicable to land warfare see FMFM 0-25 "Department of the
Army Field Manual FM 27-10, The Law of Land Warfare."
8.6.1 Targeting in Land Warfare. Only combatants and other military
objectives may be attacked (see paragraph 8.1.1). Noncombatants and civilian
objects may not be objects of attack. Incidental injury to noncombatants and
collateral damage to civilian objects incurred during an attack upon a legitimate
military objective must not be excessive in relation to the military advantage to
be achieved by the attack (see paragraph 8.1.2.1). When circumstances permit,
advance warning should be given of attacks that might endanger noncombatants
in the vicinity (see paragraph 11.2).
8.6.2 Special Protection. Under the law of land warfare, certain persons,
places and objects enjoy special protection against attack. Protection is, of
necessity, dependent upon recognition of protected status and special signs and
symbols are employed for that purpose (see paragraph 11.9). Failure to display
protective signs and symbols does not render an otherwise protected person,
place or object a legitimate target if that status is otherwise apparent (see
paragraph 11.9.6). ' However, protected persons participating directly in
hostilities lose their protected status and may be attacked while so employed.
Similarly, misuse of protected places and objects for military purposes renders
them subject to legitimate attack during the period of misuse.
8.6.2.1 Protected Persons. Protected persons include the wounded, sick, and
128
shipwrecked (see paragraph 11.4), certain parachutists (see paragraph 11.6),
and prisoners of war (see paragraph 11.7). Civilians and other noncombatants,
such as medical personnel and chaplains (see paragraph 11.5), and interned
persons (see paragraph 11.8) also enjoy protected status.
8.6.2.2 Protected Places and Objects. Protected places include undefended
cities and towns and agreed demilitarized zones (see paragraph 8.5.1.3), and
agreed special hospital zones and neutralized zones (see paragraph 8.5.1.5).
Protected objects include historic monuments and structures, works of art,
medical facilities and religious, cultural, and charitable buildings and monuments
(see paragraph 8.5.1.6).
127. This cite to paragraph 11.9.6 is in error. Correct cite is paragraph 11.9.7.
128. Parachutists descending from disabled aircraft are protected. Airborne troops, etc.,
parachuting into combat are not. See paragraph 11.6, note 41 (p. 489).
The Law of Targeting 429
8.6.2.3. The Environment. A discussion of environmental considerations
during armed conflict is contained in paragraph 8.I.3.129 The use of herbicidal
agents is addressed in paragraph 10.3.3.
129. See also ICRC Compiled Guidelines for Military Manuals and Instructions on the
Protection of the Environment in Times of Armed Conflict, appended hereto as Annex A8-1
(P- 430).
430 Commander's Handbook on the Law of Naval Operations
ANNEX 8A-1
INTERNATIONAL COMMITTEE OF THE
RED CROSS (ICRC) COMPILED
GUIDELINES FOR MILITARY MANUALS
AND INSTRUCTIONS ON THE
PROTECTION OF THE ENVIRONMENT IN
TIMES OF ARMED CONFLICT
I. PRELIMINARY
(1) The present Guidelines are drawn from existing international legal
obligations and from State practice concerning the protection of the
environment against the effects of armed conflict. They have been compiled to
promote an active interest in, and concern for, the protection of the
environment within the armed forces of all States.
(2) Domestic legislation and other measures taken at the national level are
essential means of ensuring that international law protecting the environment in
times of armed conflict is indeed put into practice.
(3) To the extent that the Guidelines are the expression of international
customary law or of treaty law binding a particular State, they must be included
in military manuals and instructions on the laws of war. Where they reflect
national policy, it is suggested that they be included in such documents.
II. GENERAL PRINCIPLES OF INTERNATIONAL LAW
(4) In addition to the specific rules set out below, the general principles of
international law applicable in armed conflict — such as the principle of
distinction and the principle of proportionality — provide protection to the
environment. In particular, only military objectives may be attacked and no
methods or means of warfare which cause excessive damage shall be employed.
Precautions shall be taken in military operations as required by international law.
G.P.I Arts. 35, 48, 52 and 57
(5) International environmental agreements and relevant rules of customary law
may continue to be applicable in times of armed conflict to the extent that they
are not inconsistent 'with the applicable law of armed conflict.
The Law of Targeting 431
Obligations relating to the protection of the environment towards States not
party to an armed conflict (e.g., neighbouring States) and in relation to areas
beyond the limits of national jurisdiction (e.g., the High Seas) are not affected by
the existence of the armed conflict to the extent that they are not inconsistent
with the applicable law of armed conflict.
(6) Parties to a non-international armed conflict are encouraged to apply the
same rules that provide protection to the environment as those which prevail in
international armed conflict and, accordingly, States are urged to incorporate
such rules in their military manuals and instructions on the laws of war in a way
that does not discriminate on the basis of how the conflict is characterized.
(7) In cases not covered by rules of international agreements, the environment
remains under the protection and authority of the principles of international law
derived from established custom, from the principles of humanity and from the
dictates of public conscience.
H.IV preamble, G.P.I Art. 1.2, G.P.II preamble
III. SPECIFIC RULES ON THE PROTECTION OF THE
ENVIRONMENT
(8) Destruction of the environment not justified by military necessity violates
international humanitarian law. Under certain circumstances, such destruction is
punishable as a grave breach of international humanitarian law.
H.IV.R Art. 23(g), G.IV Arts. 53 and 147, G.P.I Arts. 35.3 and 55
(9) The general prohibition to destroy civilian objects, unless such destruction is
justified by military necessity, also protect/- the environment.
H. IV. R Art. 23 (g) , G. IV Art. 53, G. P. I Art. 52, G. P. I I Art. 14
In particular, States should take all measures required by international law to
avoid:
(a) making forests or other kinds of plant cover the object of attack by
incendiary weapons except when such natural elements are used to cover,
conceal or camouflage combatants or other military objectives, or are themselves
military objectives;
CW.P.Ili
432 Commander's Handbook on the Law of Naval Operations
(b) attacks on objects indispensable to the survival of the civilian population,
such as foodstuffs, agricultural areas or drinking water installations, if carried out
for the purpose of denying such objects to the civilian population;
G.P.I Art. 54, G.P.II Art. 14
(c) attacks on works or installations containing dangerous forces, namely
dams, dikes and nuclear electrical generating stations, even where they are
military objectives, if such attack may cause the release of dangerous forces and
consequent severe losses among the civilian population and as long as such works
or installations are entitled to special protection under Protocol I additional to
the Geneva Conventions;
G.P.I Art. 56, G.P.II Art. 15
(d) attacks on historic monuments, works of art or places of worship which
constitute the cultural or spiritual heritage of peoples.
H.CP, G.P.I Art. 53, G.P.II Art. 16
(10) The indiscriminate laying of landmines is prohibited. The location of all
pre-planned minefields must be recorded. Any unrecorded laying of remotely
delivered non-self-neutralizing landmines is prohibited. Special rules limit the
emplacement and use of naval mines.
G.P.I Arts. 51.4 and 51.5, CW.P.II Art. 3, H.VIII
(11) Care shall be taken in warfare to protect and preserve the natural
environment. It is prohibited to employ methods or means of warfare which are
intended, or may be expected, to cause widespread, long-term and severe
damage to the natural environment and thereby prejudice the health or survival
of the population.
G.P.I Arts. 35.3 and 55
(12) The military or any other hostile use of environmental modification
techniques having widespread, long-lasting or severe effects as the means of
destruction, damage or injury to any other State party is prohibited. The term
"environmental modification techniques" refers to any technique for
changing — through the deliberate manipulation of natural processes — the
dynamics, composition or structure of the Earth, including its biota, lithosphere,
hydrosphere and atmosphere, or of outer space.
The Law of Targeting 433
ENMOD Arts. I and II
(13) Attacks against the natural environment by way of reprisals are prohibited
for States party to Protocol I additional to the Geneva Conventions.
G.P.I Art. 55.2
(14) States are urged to enter into further agreements providing additional
protection to the natural environment in times of armed conflict.
G.P.I Art. 56.6
(15) Works or installations containing dangerous forces, and cultural property
shall be clearly marked and identified, in accordance with applicable
international rules. Parties to an armed conflict are encouraged to mark and
identify also works or installations where hazardous activities are being carried
out, as well as sites which are essential to human health or the environment.
e.g., G.P.I Art. 56.7, H.CP. Art. 6
IV.IMPLEMENTATION AND DISSEMINATION
(16) States shall respect and ensure respect for the obligations under
international law applicable in armed conflict, including the rules providing
protection for the environment in times of armed conflict.
G.IVArt. 1, G.P.I Art. 1.1
(17) States shall disseminate these rules and make them known as widely as
possible in their respective countries and include them in their programs of
military and civil instruction.
H.IV.R Art. 1, G.IV Art. 144, G.P.I Art. 83, G.P.II Art. 19
(18) In the study, development, acquisition or adoption of a new weapon,
means or method of warfare, States are under an obligation to determine
whether its employment would, in some or all circumstances, be prohibited by
applicable rules of international law, including those providing protection to the
environment in times of armed conflict.
G.P.I Art. 36
434 Commander's Handbook on the Law of Naval Operations
(19) In the event of armed conflict, parties to such a conflict are encouraged to
facilitate and protect the work of impartial organizations contributing to prevent
or repair damage to the environment, pursuant to special agreements between
the parties concerned or, as the case may be, the permission granted by one of
them. Such work should be performed with due regard to the security interests
of the parties concerned.
e.g., G.IV Art. 63.2, G.P.I Arts. 61-67
(20) In the event of breaches of rules of international humanitarian law
protecting the environment, measures shall be taken to stop any such violation
and to prevent further breaches. Military commanders are required to prevent
and, where necessary, to suppress and to report to competent authorities
breaches of these rules. In serious cases, offenders shall be brought to justice.
G.IV Arts. 146 and 147, G.P.I Arts. 86 and 87
The Law of Targeting 435
SOURCES OF INTERNATIONAL OBLIGATIONS
CONCERNING THE PROTECTION OF THE ENVIRONMENT
IN TIMES OF ARMED CONFLICT
1. General principles of law and international customary law
2. International conventions
Main international treaties with rules on the protection of the environment in
times of armed conflict:
Hague Convention (IV) respecting the Laws and Customs of War on Land, of
1907 (H.IV), and Regulations Respecting the Laws and Customs of War on
Land (H.IV.R)
Hague Convention (VIII) relative to the Laying of Automatic Submarine
Contact Mines, of 1907 (H. VIII)
Geneva Convention relative to the Protection of Civilian Persons in Time of
War, of 1949 (GC.IV)
Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict, of 1954 (H.CP)
Convention on the Prohibition of Military or any Other Hostile Use of
Environmental Modification Techniques, of 1976 (ENMOD)
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (Protocol I), of
1977 (G.P.I)
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of Non-International Armed Conflicts (Protocol
II), of 1977 (G.P.II)
Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious or
to Have Indiscriminate Effects, of 1980 (CW), with:
- Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps
and Other Devices (CW.P.II)
436 Commander's Handbook on the Law of Naval Operations
- Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons
(CW.P.III)
Source: U.N. Doc. A/49/323, Annex (1994)
CHAPTER 9
Conventional Weapons and
Weapons Systems
9.1 INTRODUCTION
This chapter addresses the legal considerations pertaining to the use of
conventional weapons and weapons systems. It is a fundamental tenet of
the law of armed conflict that the right of nations engaged in armed conflict to
choose methods or means of warfare is not unlimited. This rule of law is
expressed in the concept that the employment of weapons, material, and
1. DOD Instruction 5500.15, Subj: Review of Legality of Weapons Under International
Law, and DOD Directive 5000.1, Subj: Defense Acquisition, mandate that all weapons newly
developed or purchased by the U.S. armed forces be reviewed for consistency with international
law. These reviews are carried out by the Judge Advocate General of the Service concerned before
the engineering development stage of the acquisition process, and before the initial contract for
production is let. A similar rule of international law is imposed, for the first time, on the nations
party to GP I by art. 36. See Robertson, Modern Technology and the Law of Armed Conflict, 362
at 367-68, in Robertson. See also Green 273-74. For further information see DOD Regulation
5000. 2-R, Subj: Mandatory Procedures for Major Defense Acquisition Programs and Major
Automated Information Systems, and SECNAVINST 5000. 2B, Subj: Implementation of
Mandatory Procedures for Major and Non-Major Defense Acquisition Programs and Major and
Non-Major Information Technology Acquisition Programs. See also Meyrowitz, The Function of
the Laws of War in Peacetime, 1986 Int'lRev. Red Cross 71, 78-81; and paragraph 5.4.2, note 34
(p. 303), regarding the U.S. decision not to seek ratification of GP I.
Non-lethal weapon systems also require legal review. DOD Directive 3000.3, Subj: Policy for
Non-Lethal Weapons, para. E6b. Non-lethal weapons are defined as "[wjeapons that are explicitly
designed and primarily employed so as to incapacitate personnel or material, while minimizing
fatalities, permanent injury to personnel, and undesired damage to property and to the
environment." Id. , para. C. Non-lethal weapons are not intended to take the place of conventional
(lethal) weapons and their availability does not limit a commander's inherent authority and
obligation to use all necessary means available and take all appropriate action in self-defense. Id.,
para. D4. See also paragraph 4.3.2.2 (p. 263).
2. HR, art. 22; cf. Lieber Code, art. 30. HR, art. 22, which refers to weapons and methods of
warfare, is merely an affirmation that the means of warfare are restricted by rules of conventional
(treaty) and customary international law. Although immediately directed to the conduct of land
warfare, the principle embodied in HR, art. 22 is applicable equally to the conduct of naval
warfare. Art. 22 is viewed by the United States as declarative of customary international law,
(General Counsel, Department ofDefense letter of 22 Sept. 1972, reprinted in 67 Am. J. Int'l L. 122
(1973)). HR, art. 22 is confirmed in GP I, art. 35(1). The United States supports art. 35(1) of GP I as
a statement of customary law. The Sixth Annual American Red Cross-Washington College of
Law Conference on International Humanitarian Law: A Workshop on Customary International
Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. Int'l L. &
Policy 424 (1987) (remarks of U.S. Department of State Deputy Legal Adviser Matheson). See also
paragraph 8.1, notes 1 & 2 (p. 401).
438 Commander's Handbook on the Law of Naval Operations
methods of warfare that are designed to cause superfluous injury or unnecessary
suffering is prohibited. A corollary concept is that weapons which by their
nature are incapable of being directed specifically against military objectives, and
therefore that put noncombatants at equivalent risk, are forbidden due to their
indiscriminate effect. A few weapons, such as poisoned projectiles, are
unlawful, no matter how employed. Others may be rendered unlawful by
alteration, such as by coating ammunition with a poison. Still others may be
unlawfully employed, such as by setting armed contact naval mines adrift so as to
endanger innocent as well as enemy shipping. And finally, any weapon may be
set to an unlawful purpose when it is directed against noncombatants and other
protected persons and property. (See Chapter 1 1 — Noncombatant Persons.)
Of particular interest to naval officers are law of armed conflict rules
pertaining to naval mines, land mines, torpedoes, cluster and fragmentation
weapons, delayed action devices, incendiary weapons, directed energy devices
and over-the-horizon weapons systems. Each of these weapons or systems will
be assessed in terms of its potential for causing unnecessary suffering and
superfluous injury or indiscriminate effect.
9.1.1 Unnecessary Suffering. Antipersonnel weapons are designed to kill or
disable enemy combatants and are lawful notwithstanding the death, pain, and
suffering they inflict. Weapons that are designed to cause unnecessary suffering
or superfluous injury are, however, prohibited because the degree of pain or
injury, or the certainty of death they produce is needlessly or clearly
disproportionate to the military advantage to be gained by their use. Poisoned
projectiles and small arms ammunition intended to cause superfluous injury or
unnecessary suffering fall into this category. Similarly, using materials that are
3. HR, art. 23(e), forbids belligerents "to employ arms, projectiles, or material calculated to
cause unnecessary suffering." These rules are confirmed in GP I, art. 35(2), and are viewed by the
United States as declaratory of customary international law. General Counsel letter and Matheson
remarks, preceding note.
4. This customary rule is codified in GP I, arts. 51(4)(b) and 51(5). See Green at 151-52; Fleck
at 111-14.
5. Lieber Code, arts, 16 & 70; Declaration of Brussels, art. 13(a); 1880 Oxford Manual, art.
8(a); 1913 Oxford Manual of Naval War, art. 16(1). This customary rule was codified in HR, art.
23(a), to which the United States is a party. With regard to their use in reprisal, see paragraph 6.2.3.3,
note 52 (p. 341). See also Green, What One Can Do In Conflict - Then and Now, in International
Humanitarian Law: Challenges for the Next Ten Years 269-95 (Delissens & Tanja eds., 1991).
6. Non-lethal weapons are not addressed in this edition of NWP 1-1 4M but will be included
in follow-on versions. For a discussion of non-lethal weapons see Non-Lethal Weapons: Emerging
Requirements for Security Strategy, Report Prepared by The Institute for Foreign Policy Analysis
(1996). See also note 1 (p. 437).
7. The 1899 Hague Declaration IV Respecting the Prohibition of the Use of Bullets which
Expand or Flatten Easily in the Human Body, The Hague, 29 July 1899, reprinted in
Schindler& Toman at 103 [hereinafter 1899 Hague Declaration], prohibits the use in international
(continued...)
Conventional Weapons and Weapons Systems 439
7. (...continued)
armed conflict of "bullets which expand or flatten easily in the human body, such as bullets with a
hard envelope which does not entirely cover the core or is pieced with incisions." The United
States is not a party to this treaty, but has taken the position that the United States will adhere to its
terms in conventional military operations to the extent that its application is consistent with the
object and purpose of HR, art. 23(e) (which prohibits employment of "arms, projectiles, or
material calculated to cause unnecessary suffering.") See, Army JAG Memo DAJA/IO of 16 Feb 93,
Legal Review of USSOCOM Special Operations Offensive Handgun (concluding use of
hollow-tip or similar expanding ammunition by special operations force personnel across the
spectrum of conflict is lawful); Army JAG Memo DAJA/IA of 12 Oct 90, Sniper Use of Open-Tip
Ammunition (concluding 7.62mm "open-tip" MatchKing Ammunition bullet may lawfully be
employed in peacetime or wartime missions of the Army), reprinted in The Army Lawyer, Feb 91, at
86; Army JAG Memo DAJA-IO (27- la) of 13 May 1996, Fabrique Nationale 5.7 x 28mm Weapon
System (concluding that the JAG Memo DAJA-IO (27-la) of 13 May 1996, Fabrique Nationale
5.7 x 28mm Weapon System (concluding that the Fabrique Nationale P90 and its 5.7 x 28mm SS190
projectile do not produce wounds that cause superfluous injury). In essense, the foregoing Army JAG
opinions express the view that the rule against hollow-point or expanding bullets is not to be applied
mechanically; e.g. , bullets designed with a hollow point for increased accuracy are not prohibited.
Legal analysis of small arms ammunition has also focused on increased accuracy and reduced
probability of over penetration which, aside from having obvious military advantages, also reduce
the likelihood of incidental injury to noncombatants. Finally, the Army JAG opinions conclude
that the prohibition contained in the 1899 Hague Declaration "is of minimal to no value,
inasmuch as virtually all full metal jacketed military rifle bullets employed since 1899 with pointed
ogival "spitzer" tip shape have a tendency to fragment on impact . . . leading to wounds not
dissimilar to those condemned by the 1899 Hague Declaration. . . . The true test remains whether
or not a bullet causes superfluous injury. . ."
Use of expanding ammunition by units involved in full-time operations against terrorists is not
constrained by the law of armed conflict. Navy JAG ltr of 22 January 1992, Legal Review of the
Use of Expanding Ammunition by Marine Corps Units (concluding use of 9mm hollow-point
ammunition in peacetime counterterrorist and special security missions is lawful); Army JAG
Memo DAJA-IA 1985/7026 of 23 Sep 85, Use of Expanding Ammunition by U.S. Military
Forces in Counterterrorist Incidents (concluding such use is lawful); Air Force JAG Memo HQ
USAF/JAI of 22 Aug 1997, Legal Review of Security Police Use of 9mm Expanding, Hollow
Point Bullets (PHOENIX RAVEN Program) (concluding that such use constitutes a peacetime
law enforcement function and is not unlawful).
There is no rule of conventional or customary international law that would prohibit the use of
shotguns in armed conflict. DA Pam 27-161-2 at 45, Cutshaw, Ammunition, in 1 International
Military and Defense Encyclopedia (Dupuy ed., 1993) at 127 notes that:
Shotguns are especially useful in jungle warfare, where ranges of engagement seldom
exceed 50 meters (165 ft). Indeed, they were widely used by U.S. forces in Vietnam.
Contra see Oeter, Methods and Means of Combat in Fleck at 122 who agrues that:
It is prohibited to use bullets which expand or flatten easily in the human body (e.g.,
dum-dum bullets) (Declaration Concerning Expanding Bullets of 1899). This
applies also to the use of shotguns, since shot causes similar suffering unjustified from
the military point of view. . . .
But see Parks, Joint Service Combat Shotgun Program, in The Army Lawyer (DA Pam
27-50-299), Oct. 1997, who concludes, inter alia, that:
(continued...)
440 Commander's Handbook on the Law of Naval Operations
difficult to detect or undetectable by field x-ray equipment, such as glass or clear
plastic, as the injuring mechanism in military ammunition is prohibited, since
they unnecessarily inhibit the treatment of wounds. Use of such materials as
incidental components in ammunition, e.g., as wadding or packing, is not
prohibited. Use of .50 caliber weapons against individual enemy combatants
does not constitute a violation of this proscription against unnecessary suffering
or superfluous injury.
9.1.2 Indiscriminate Effect. Weapons that are incapable of being controlled
(i.e., directed at a military target) are forbidden as being indiscriminate in their
10
effect. Drifting armed contact mines and long-range unguided missiles (such as
the German V-l and V-2 rockets of World War II) fall into this category. A
weapon is not indiscriminate simply because it may cause incidental or collateral
civilian casualties, provided such casualties are not foreseeably excessive in light of
the expected military advantage to be gained. An artillery round that is capable of
being directed with a reasonable degree of accuracy at a military target is not an
indiscriminate weapon simply because it may miss its mark or inflict collateral
damage. Conversely, uncontrolled balloon-borne bombs, such as those released
7. (...continued)
Lead-and-antimony buckshot does not "expand or flatten easily," and therefore
violates neither the 1899 Hague Delcaration nor the criteria for legality previously
articulated in opinions of the Judge Advocate General, United States Army.
The combat shotgun and its lead-and-antimony buckshot (or shot) ammunition are
consistent with the law of war obligations of the United States.
8. Protocol I (Protocol on Non-Detectable Fragments) of the 1980 Conventional Weapons
Convention (see paragraph 5.4.2 and note 36 thereto (p. 304)) provides, in its entirety, that:
It is prohibited to use any weapon the primary effect of which is to injure by
fragments which in the human body escape detection by X-rays.
See also Lieber Code, art. 16; Fenrick, New Developments in the Law Concerning the Use of
Conventional Weapons in Armed Conflict, 19 Can. Y.B. Int'lL. 229, 242 (1981); Roach, Certain
Conventional Weapons Convention: Arms Control or Humanitarian Law? 105 Mil. L. Rev. 3,
69-72 (1984); and Schmidt, The Conventional Weapons Convention: Implications for the
American Soldier, 24 A.F.L. Rev. 279, 308-12 (1984).
9. The persistent myth that .50 caliber weapons may not be lawfully employed against enemy
personnel is thought to have its origins in a Vietnam War era rule of engagment predicated upon
conserving .50 caliber ammunition. See, e.g., Smith, Rifle Expands Shooting Range of
Leathernecks, Jacksonville Daily News, Sept. 12, 1993 at p. Dl (perpetuating the erroneous
notion that .50 caliber ammuntion may not lawfully be directed against individual enemy soldiers).
10. GP I, art. 51(4)(b). See also Fleck at 118-20. Military targets are defined in paragraph 8.1.1
(p. 402). The rule stated in this sentence does not prohibit naval or land mines perse. Naval mines
and land mines are discussed in paragraphs 9.2 (p. 441) and 9.3 (p. 448), respectively.
11. See paragraph 8.1.2.1 (p. 404) for a discussion of this aspect of collateral damage. Compare
Lieber Code, art. 15.
Conventional Weapons and Weapons Systems 441
by the Japanese against the west coast of the United States and Canada in World
War II lack that capability of direction and are, therefore, unlawful.
9.2 NAVAL MINES
Naval mines have been effectively employed for area denial, coastal and
harbor defense, antisurface and antisubmarine warfare, and blockade. Naval
mines are lawful weapons, but their potential for indiscriminate effects has led to
specific regulation of their deployment and employment by the law of armed
conflict. The extensive and uncontrolled use of naval mines by both sides in
the Russo-Japanese War of 1904-5 inflicted great damage on innocent shipping
both during and long after that conflict, and led to Hague Convention No. VIII
of 1907 Relative to the Laying of Automatic Submarine Contact Mines. The
purpose of the Hague rules is to ensure, to the extent practicable, the safety of
innocent shipping. These rules require that naval mines be so constructed as to
become harmless should they break loose from their moorings or otherwise
cease to be under the affirmative control of the belligerents that laid them. The
Hague rules also require that shipowners be warned of the presence of mines as
soon as military exigencies permit.
Although the Hague provisions date from 1907, they remain the only
codified rules specifically addressing the emplacement of conventional naval
mines. Technological developments have created weapons systems obviously
not contemplated by the drafters of these rules. Nonetheless, the general
principles of law embodied in the 1907 Convention continue to serve as a guide
to lawful employment of naval mines.
12. Bothe, Partsch & Solf 305; ICRC, Commentary (GP I) 621 . The balloon-borne bombs are
described in Mikesh, Japan's World War II Balloon Bomb Attacks on North America, Smithsonian
Annals of Flight No. 9 (1973); Webber, The Silent Siege: Japanese Attacks Against North America
in World War II (1984); Prioli, The Fu-Go Project, American Heritage, April-May 1982, at
89-92. The same assertion of illegality might also be said of an aborted American plan to drop bats
armed with tiny incendiary bombs on Japan. Feist, Bats Away, American Heritage, April-May
1982, at 93-94; Lewis, Bats Out of Hell, Soldier of Fortune, Nov. 1987, at 80-81, 1 12. The legality
of these weapons does not appear to have been previously addressed. See paragraph 9.1, note 1
(p. 437).
13. See generally, Fleck 442-58; Green 168-69.
14. For a discussion of the background of Hague VIII see Fleck at 442.
15. 36 Stat. 2332; T.S. No. 541; 1 Bevans 669; DA Pam 27-161-2; Navy Supplement to
Selected International Agreements, AFP 110-20, p. 3-10. For an excellent analysis of the Hague
rules on mine warfare, see Levie, Mine Warfare at Sea 23-63 (1992). See also Clingan, Submarine
Mines in International Law, 351, in Robertson.
16. Nicaragua Military Activities Case, 1986 I.CJ. 14, 111-12, 128-29, 147-48; 25 Int'l Leg.
Mat'ls 1023, 1072, 1080-81, 1090 (paras. 213-15, 253-54, 292(7) (14-1)) (1986). See also dissenting
opinion of Judge Schwebel, paras. 234-40, 25 Int'l Leg. Mat'ls 1205-07 (1986), and NWP 27-4
(Rev. B), Mining Operations, at 1-3 to 1-6.
442 Commander's Handbook on the Law of Naval Operations
9.2.1 Current Technology. Modern naval mines are versatile and variable
weapons. They range from relatively unsophisticated and indiscriminate contact
mines to highly technical, target-selective devices with state-of-the-art homing
guidance capability. Today's mines may be armed and/or detonated by physical
contact, acoustic or magnetic signature, or sensitivity to changes in water
pressure generated by passing vessels and may be emplaced by air, surface, or
subsurface platforms. ' For purposes of this publication, naval mines are
classified as armed or controlled mines. Armed mines are either emplaced with all
safety devices withdrawn, or are armed following emplacement, so as to detonate
when pre-set parameters (if any) are satisfied. Controlled mines have no
destructive capability until affirmatively activated by some form of arming order
18
(whereupon they become armed mines).
9.2.2 Peacetime Mining. Consistent with the safety of its own citizenry, a
nation may emplace both armed and controlled mines in its own internal waters
at any time with or without notification. A nation may also mine its own
archipelagic waters and territorial sea during peacetime when deemed necessary
for national security purposes. If armed mines are emplaced in archipelagic
waters or the territorial sea, appropriate international notification of the
19
existence and location of such mines is required. Because the right of innocent
20
passage can be suspended only temporarily, armed mines must be removed or
rendered harmless as soon as the security threat that prompted their
emplacement has terminated. Armed mines may not be emplaced in
21
international straits or archipelagic sea lanes during peacetime. Emplacement
of controlled mines in a nation's own archipelagic waters or territorial sea is not
22
subject to such notification or removal requirements.
Naval mines may not be emplaced in internal waters, territorial seas, or
archipelagic waters of another nation in peacetime without that nation's
17. Hartmann, Weapons That Wait 103-05 (1991); Levie, note 15, at 97-133.
18. Joint Pub. 1-02, at 35 & 89; Hartmann, note 17, at 8 & 9. NWP 27-4 (Rev. B), note 16, at
1-3 to 1-8.
19. Corfu Channel Case (merits), 1949 I.C.J. 22, U.S. Naval War College, International Law
Documents 1948-49, at 133 (based on "general and well-recognized principles, namely:
elementary considerations of humanity, even more exacting in peace than in war; the principle of
freedom of maritime communication; and every State's obligation not to allow knowingly its
territory to be used for acts contrary to the rights of other States").
20. Suspension of innocent passage is discussed in paragraph 2.3.2.3 (p. 119).
21. Commenting on the Corfu Channel Case, Fitzmaurice states that the I.C.J, decision
authorizes the sweeping of mines unlawfully laid in an international strait if it is accomplished as
"part of and incidental to the passage." Fitzmaurice, The Law and Procedures on the International
Court ofjustice: General Principles and Substantive Law, 28 Brit. Y.B.Int'lL. (1950) 1, 30-31.
22. Controlled mines pose no hazard to navigation until they are armed. Neutral territorial seas
are discussed in paragraph 7.3.4 (p. 375).
Conventional Weapons and Weapons Systems 443
23
consent. Controlled mines may, however, be emplaced in international waters
(i.e., beyond the territorial sea) if they do not unreasonably interfere with other
lawful uses of the oceans. The determination of what constitutes an
"unreasonable interference" involves a balancing of a number of factors,
including the rationale for their emplacement (i.e., the self-defense requirements
of the emplacing nation), the extent of the area to be mined, the hazard (if any) to
other lawful ocean uses, and the duration of their emplacement. Because
controlled mines do not constitute a hazard to navigation, international notice of
their emplacement is not required.
Armed mines may not be emplaced in international waters prior to the
outbreak of armed conflict, except under the most demanding requirements of
individual or collective self-defense. Should armed mines be emplaced in
international waters under such circumstances, prior notification of their location
must be provided. A nation emplacing armed mines in international waters during
peacetime must maintain an on-scene presence in the area sufficient to ensure that
appropriate warning is provided to ships approaching the danger area. All armed
mines must be expeditiously removed or rendered harmless when the imminent
clanger that prompted their emplacement has passed.
9.2.3 Mining During Armed Conflict. Naval mines may be lawfully
employed by parties to an armed conflict subject to the following restrictions:
1 . International notification of the location of emplaced mines must be made
as soon as military exigencies permit.
23. To do so would likely be regarded as a major violation of that nation's territorial integrity.
The national and international reactions to the covert mining of the Gulf of Suez and the Red Sea
in mid- 1984, allegedly by a Libyan merchant vessel, is examined in Truver, Mines of August: An
International Whodunit, U.S. Naval Inst. Proc, May 1985, at 94; The Gulf of Suez Mining Crisis:
Terrorism at Sea, id., Aug. 1985, at 10-11.
24. Thorpe, Mine Warfare at Sea — Some Legal Aspects of the Future, 18 Ocean Dev. & Int'l
L. 255, 267 (1987). See also Clingan, paragraph 9.2, note 15 (p. 441). Self-defense is discussed in
paragraph 4.3.2 (p. 259).
25. Hague VIII, art. 3; Corfu Channel Case, 1949 I.C.J. 22. Such notice was not given in the
covert mining of the Red Sea in 1984, or in the Persian Gulf and the Gulf of Oman in 1987. In the
Nicaragua Military Activities Case, 1986 I.C.J. 46-48, 112, 147-48, 25 Int'l Leg. Mat'ls 1039-40,
1072, 1090 (paras. 76-80, 215, 292(8)) (1986), the Court decided (14-1) that the United States, "by
failing to make known the existence and location of the mines laid by it [in 1984] ... has acted in
breach of its obligations under customary international law." Judge Schwebel dissented with the
view that the mining of Nicaraguan ports was lawful in respect to Nicaragua, but unlawful in regard
to third nations because of the failure to give official public notice "about the fact that mines would
be or had been laid in specified waters." 1986 I.C.J. 378-80, 25 Int'l Leg. Mat'ls 1205-06 (paras.
234-240). Judge Jennings, while dissenting on other grounds, joined in subparagraph 292(8) of the
Court's opinion by applying the logic of the Corfu Channel judgment, in which two British
destroyers hit moored contact mines laid in Albanian waters, that the obligation to notify the
existence of mines "for the benefit of shipping in general" is an obligation
(continued...)
444 Commander's Handbook on the Law of Naval Operations
2. Mines may not be emplaced by belligerents in neutral waters
26
3. Anchored mines must become harmless as soon as they have broken their
27
moorings.
4. Unanchored mines not otherwise affixed or imbedded in the bottom must
become harmless within an hour after loss of control over them.
5. The location of minefields must be carefully recorded to ensure accurate
9Q
notification and facilitate subsequent removal and/or deactivation.
25. (...continued)
[B]ased, not on the Hague Convention of 1907, No. VIII, which is applicable in time of
war, but on certain general and well-recognized principles, namely: elementary
considerations of humanity, even more exacting in peace than in war; the principle of
freedom of maritime communication; and every State's obligation not to allow knowingly
its territory to be used for acts contrary to the rights of other States (1949 I.C.J. 22).
Judge Jennings applied this law a fortiori to the situation where a nation lays mines in another
nation's ports or port approaches and fails to notify shipping. Judge Jennings noted that "even
supposing the United States were acting in legitimate self-defence, failure to notify shipping would
still make the mine-laying unlawful." 1986 I.C.J. 536, 25 Int'l Leg. Mat'ls 1284 (1986).
The San Remo Manual, para. 83, provides that:
The laying of armed mines or the arming of pre -laid mines must be notified unless
the mines can only be detonated against vessels which are military objectives.
The commentary on para. 83 in Doswald-Beck, at 172, indicates that the decision to omit the
qualifying phrase "as soon as military exigencies permit" of Hague VIII, art. 3, was premised on the
notion that it was "not justified in the light of the general requirement imposed upon belligerents
to limit as much as possible the effect of hostilities." Notwithstanding the San Remo Manual's
modern origins, it is considered that the Hague VIII, art. 3 approach continues to represent the
more realistic possibility and probability of compliance. Hence adherence to the term "as soon as
military exigencies permit" in paragraph 9.2.3, subparagraph 1.
26. Hague XIII, arts. 1-2. This rule was not always observed by the belligerents in the Iran-Iraq
war. Ships hit mines in the national waters of Kuwait and Oman, both of whom claimed neutral
status. N.Y. Times, 20 July 1987, at A6, & 14 Aug. 1987, at A9. See also San Remo Manual, para. 86.
27. Hague VIII, art. 1(2); Hartmann, paragraph 9.2.1, note 17 (p. 442), at 8 & 84. CompareSzn
Remo Manual, para. 81. U.S. naval mines are all constructed with self-neutralizing devices. For
example, the mines laid in Haiphong Harbor in 1972 were set to neutralize within six months.
They exploded, thereby giving visible reminders of the existence of the minefield and the need for
reseeding of the minefield. On the other hand, the anchored contact mines laid by Iran in the
Tanker War (1984-88) frequently broke loose but lacking the requisite built-in mechanism to
render them harmless, continued to pose a hazard to shipping.
28. See Hague VIII, art. 1(1). Hague VIII does not include the phrase "not otherwise affixed or
imbedded in the bottom" in its art. 1(1) prescription that "unanchored automatic contact mines"
must become harmless within an hour after control over them is lost. However, mines so "affixed
or imbedded in the bottom" do not constitute a hazard to general navigation in the sense that
free-floating mines do. The San Remo Manual, para. 82, employs the term "free-floating" rather
than "unanchored" in this context to the same result. See Doswald-Beck, at 171.
29. See Hague VIII, art. 5; San Remo Manual, paras. 84 & 90. At the close of hostilities, each
nation should remove the mines it has laid. However, each nation must remove the mines in its
own waters, irrespective of the entity which laid them. The nations party to the conflict may also
make other arrangements for mine clearance.
(continued...)
Conventional Weapons and Weapons Systems 445
29. (...continued)
The Armistice of 1918 called upon Germany to indicate the location of naval mines. Art. XXIV of
the German Armistice of 11 Nov. 1918, U.S. Naval War College, International Law Documents,
1918, at 65 ("the Allies and the United States of America shall have the right to sweep up all
minefields and to destroy obstructions laid by Germany outside German territorial waters, the
positions of which are to be indicated,"); art. IV, sec. 2, of the Austro-Hungarian Armistice of 3
Nov. 1918, id., at 19; art. IV, sec. 2, of the appendix to the Austro-Hungarian Armistice, id.,
at 27-28. Art. XIII of the Hungarian Armistice of 13 Nov. 1918, id., at 33 (mines in the Danube);
arts. II and III of Turkish Armistice of 30 Oct. 1918, id., at 160. The burden of removal was,
however, only pressed upon those nations according to the geographical relationship or proximity
of their respective territories to mines or fields of mines which they had sown. Thus, Turkey was to
assist in sweeping or to remove, as might be required, all mines and other obstructions in Turkish
waters. Id. at 160. Hungary undertook to stop the passage of floating mines sown in the Danube
upstream from the Hungarian and Austrian frontier and to remove all those actually in Hungarian
waters. Id., at 33. According to art. 193 of the German peace treaty of Versailles of 28 June 1919,
Germany undertook to sweep the mines in specified areas in the easterly portion of the North Sea,
to keep those areas free from mines, and to sweep and keep free from mines such areas in the Baltic
as might ultimately be notified by the Principal Allied and Associated Powers. 3 U.S.T. 3410. U.S.
naval forces undertook successfully the removal of mines which they had laid in the North Sea. For
an illuminating account of the accomplishment of this task, see Davis, The Removal of the North
Sea Mine Barrage, 38 National Geographic, Feb. 1920, at 103.
According to the armistice treaties between France and Germany, of 22 June 1940, (art. IX, 34
Am. J. Int'l L., Official Documents, at 173, 175) and France and Italy, of 24 June 1940, (arts. XII
and XIII, id., at 178, 181) the French Government undertook not only to report to the enemy the
location of mines which it had set out, but also, if so required by the enemy, to clear away such
mines. 3 Hyde 1946-47.
After World War II, some of the Allies (United States, France, United Kingdom and U.S.S.R.)
agreed on an International Organization for the Clearance of Mines in European Waters.
Agreement on Mine Clearance in European Waters, London, 22 Nov. 1945, 3 Bevans 1322.
Other stipulations regarding assistance in mine clearance at the close ofWorld War II may be found
in the Instrument of Surrender of Italy, 29 Sep. 1943, 61 Stat. 2742, 2743-44, T.I.A.S. 1604; the
Treaty of Peace with Italy, Paris, 10 Feb. 1947, 61 Stat. 1245, 1396, T.I.A.S. 1648, 49 U.N.T.S. 3,
153, and the Declaration Regarding the Defeat of Germany and the Assumption of Supreme
Authority by the AUied Powers of 5 June 1945, 60 Stat. 1648, 1654, T.I.A.S. 1520, 68 U.N.T.S.
189, 198. On mine clearance in German waters and the North Sea, see 3 Roskill, The War at Sea,
pt. II, at 307 & 308 (1961). On mine clearance in the Pacific, seeMorison, Supplement and General
Index, 15 History of United States Naval Operations In World War II, at 13-14 (1962).
The Protocol to the Agreement on Ending the War and Restoring Peace in Viet Nam Concerning
the Removal, Permanent Deactivation, or Destruction of Mines in the Territorial Waters, Ports,
Harbors, and Waterways of the Democratic Republic of Viet Nam, 27 Jan. 1973, 24 U.S.T. 133,
T.I.A.S. 7542, required the United States to clear all mines it had so placed by rendering them
harmless through removal, permanent deactivation, or destruction. This mine clearance operation
is described in McCauley, Operation End Sweep, U.S. Naval Inst. Proc, March 1974, at 18.
The United States and Egypt, through an exchange of notes dated 13 and 25 April 1974, agreed on
an arrangement for U.S. assistance in clearing mines and unexploded ordnance from the Suez
Canal, 25 U.S.T. 1474, T.I.A.S. 7882. This agreement was amended by an exchange of notes
dated 6 July, 20 and 21 August, and 25 September 1975, 26 U.S.T. 2517, T.I.A.S. 8169. The Suez
Canal clearance operation is described in Boyd, Nimrod Spar: Clearing the Suez Canal, U.S. Naval
Inst. Proc, Feb 1976, at 18.
(continued...)
446 Commander's Handbook on the Law of Naval Operations
6. Naval mines may be employed to channelize neutral shipping, but not in a
1A
manner to deny transit passage of international straits or archipelagic sea lanes
passage of archipelagic waters by such shipping.
7. Naval mines may not be emplaced off the coasts and ports of the enemy
with the sole objective of intercepting commercial shipping, but may
otherwise be employed in the strategic blockade of enemy ports, coasts, and
waterways.
29. (...continued)
On the other hand, as a matter of self-defense, the United States, United Kingdom, Belgium, France,
Italy and the Netherlands conducted extended mine countermeasures in international and neutral
waters of the Persian Gulf (the latter with the neutral nations' consent) from July 1987 in order to
remove the interference with freedom of navigation caused by the contact mines unlawfully laid by
Iran. See notes 26 and 27 (p. 444); Friedman, World Naval Developments 1987, U.S. Naval Inst.
Proc, May 1988, at 219-20; and Friedman, Western European and NATO Navies, U.S. Naval Inst.
Proc, March 1988, at 34 & 39. Following the cessation of hostilities in the 1991 Persian Gulf War,
the U.N. Security Council demanded that "Iraq provide all information and assistance in identifying
Iraqi mines ... in Kuwait, in areas of Iraq . . . and in the adjacent waters." U.N.S.C.R. 686 (2 March
1991) S/RES/686 (1991) reported in 30 Int'l Leg. Mat'ls 568, 569 (1991).
30. See note 25 (p. 443). Transit passage is discussed in paragraph 2.3.3 (p. 121).
31. Archipelagic sea lanes passage is discussed in paragraph 2.3.4.1 (p. 127).
32. Hague VIII, art. 2. See also Ronzitti, at 143; Levie, paragraph 9.2, note 15 (p. 441), at 32-3.
France and Germany filed reservations on this article upon ratification.
33. 1909 Declaration of London Concerning the Laws of Naval Warfare, London, 26
February 1909, reprinted in Schindler & Toman at 755 [hereinafter Declaration of London], arts. 1,
4 & 5. See paragraph 7.7 (p. 390) for a detailed discussion of blockade.
At one time, a blockade established exclusively by minefields was considered illegal because
international law required that naval forces be present for the maintenance of an effective
blockade. It has also been claimed that a blockade established by mines alone violates art. 2 of
Hague VIII which prohibits the use of mines with the sole object of intercepting commercial
shipping, although historically the primary purpose of a blockade has been just that.
The international acceptance of the U.S. mine blockade of Haiphong Harbor during the Vietnam
conflict has established a legal precedent for blockades enforced by mines alone. (But see Levie,
paragraph 9.2, note 15 (p. 441) at 144-47, 156-57.) In that instance, it was argued effectively that
all signiftcant requirements of blockade were established:
- First, by virtue of its status as a belligerent in the Vietnam conflict, the United States was
empowered to employ blockade as a mode of coercion.
- The blockade was established pursuant to the authorization of the President of the
United States, an appropriate authority from the perspective of customary international law and
the only legal authority in terms of U.S. practice.
- Notice to all governments and shipping interests was assured by the President's public
announcement via a letter from the U.S. representative to the President of the U.N. Security
Council, notices to mariners, and by the U.S. -South Vietnamese undertaking to warn all vessels
approaching the mined areas.
- An interval of three daylight periods was allowed as a grace period during which all
vessels in North Vietnamese waters might exit without danger.
(continued...)
Conventional Weapons and Weapons Systems 447
8. Mining of areas of indefinite extent in international waters is prohibited.
Reasonably limited barred areas may be established by naval mines, provided
neutral shipping retains an alternate route around or through such an area with
reasonable assurance of safety.
33. (...continued)
- The blockade was strictly limited to Vietnamese-claimed territorial seas, did not extend
to preclude access to neutral ports or coasts, and did not interfere in any way with neutral shipping
on the high seas.
- Impartial application of that blockade to all States was inherent in the very nature of the
operation, because mines are passive instrumentalities generally incapable of discerning the
nationality of the targeted platform.
- The blockade did not result in starvation of the civilian population or denial of essential
foodstuffs, clothing and tonics (intended for children under 15, expectant mothers and maternity
cases) or medical and hospital stores since there were overland, air and domestic sources of supply.
- And, finally, the blockade was effective, operating to close the ports of North Vietnam
and contributing to a reduction in the flow of war materials from North Vietnam to South
Vietnam to approximately 10 percent of its prior level.
The operation was therefore conducted in a manner compatible with traditional requirements of
blockade and was permissible when judged by those criteria. Swayze, Traditional Principles of
Blockade in Recent Practice: United States Mining of Internal and Territorial Waters of North
Vietnam, 29 JAG J. 163 (1977). Compare Levie, paragraph 9.2, note 15 (p. 441) at 144-47, 153-55
who correctly notes that at the time of the mining of North Vietnamese ports in 1972, U.S.
spokesmen carefully refrained from characterizing that operation as a "blockade." The 1986 I.C.J,
opinion on the merits of the Nicaragua Miliary Activities Case did not address the legality of the
use of mines as the instrumentality for enforcement of a blockade.
It appears that classic arguments to the effect that only naval forces can satisfy the legal requirements
of blockade can be successfully refuted by recitation of the myriad resources now available to the
modern naval commander. Current warfare techniques which involve the use of radar, sonar,
aircraft, and satellite information gathering appear clearly to provide for an effective blockade
capability without the need to keep naval forces in the vicinity for the purpose of intercepting
would-be blockade runners. Moreover, modern weapons systems now generally available to
blockaded nations, including high performance aircraft, over-the-horizon missiles, and
long-range artillery, render on-scene surface enforcement difficult, if not impossible, to maintain.
The San Remo Manual does not include a requirement for an on-scene surface warship in a lawful
blockade. Para. 97 provides that:
A blockade may be enforced and maintained by a combination of legitimate methods
and means of warfare ....
The commentary on this provision in Doswald-Beck, at 178, states:
This paragraph [97] does not require the enforcement of a blockade by surface ships
only. It does, however, prohibit the enforcement solely by weapons systems, such as
mines, unless they are employed in such a manner as not to endanger legitimate
sea-going commerce.
34. The San Remo Manual, para. 80, provides:
(continued...)
448 Commander's Handbook on the Law of Naval Operations
9.3 LAND MINES
Land mines are munitions placed on, under, or near the ground or other
surface area and designed to be detonated or exploded by the passage of time; the
presence, proximity or contact of a person or vehicle; or upon command. As
with all weapons, to be lawful, land mines must be directed at military objectives.
The controlled nature of command detonated land mines provides effective
target discrimination. In the case of non-command detonated land mines,
however, there exists potential for indiscriminate injury to noncombatants.
Accordingly, special care must be taken when employing land mines to ensure
noncombatants are not indiscriminately injured. International law requires
34. (...continued)
Mines may only be used for legitimate military purposes including the denial of sea
areas to the enemy.
The commentary on that para, in Doswald-Beck (at 169) states:
The obligation to use mines for legitimate military purposes logically flows from
rules of international humanitarian law. Participants [in the San Remo Manual
drafting process] deemed reaffirmation of the rule in specific relation to naval mining
to be useful in order to establish unequivocally that indiscriminate mining practices
on the high seas are unlawful.
See also Thorpe, paragraph 9.2.3, note 24 (p. 443), at 265. In the Persian Gulf war on 21 September
1987, the Iranian naval vessel IRAN AJR was captured by U.S. forces in the act of laying mines in
the international shipping lanes without notice. Presidential letter of 24 Sep. 1987, 23 Weekly
Comp. Pres. Docs. 1066 (1987); Elliott, The Navy in 1987, U.S. Naval Inst. Proc, May 1988,
at 146-47. See also the U.S. response to Iranian mining that severely damaged USS SAMUEL B.
ROBERTS on 14 April 1988 discussed at paragraph 8.5.2, note 126 (p. 427)!
35. See Arms Project of Human Rights Watch/Physicians for Human Rights, Landmines: A
Deadly Legacy (1993).
36. The 1980 Conventional Weapons Convention (see paragraph 5.4.2 and note 36 thereto
(pp. 299 & 304) is an umbrella treaty which originally had three supporting
protocols - nondetectable fragments (Protocol I), mines and booby-traps (Protocol II), and
incendiary weapons (Protocol III). The United States became a party to the Convention, and to
Protocols I and II, on 24 September 1995. Protocol II, entitled Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices, is the first treaty to specifically
address the employment of land mines.
The law of land mine warfare and the implications of Protocol II are discussed in Fenrick,
paragraph 9.1.1, note 8 (p. 440), at 242-45; Schmidt, id., at 312-22, 329-38; Carnahan, The Law of
Land Mine Warfare: Protocol II to the United Nations Convention on Certain Conventional
Weapons, 105 Mil. L. Rev. 73 (1984); Greenspan, The Modern Law of Land Warfare, 362-63
(1959); Rogers, A Commentary on the Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices, 26 Mil. L. & L. of War Rev. 185 (1987); Green at
132-34, 186 and 337; and Levie, Prohibitions and Restrictions on the Use of Conventional
Weapons, 68 St. Johns L. Rev. 643 (1994), reprinted in Schmitt & Green at chap. XVIII.
The Law of land mine warfare is undergoing substantial evolutionary change. At the First Review
Conference on the Conventional Weapons Convention (September 1995-May 1996), Protocol II
(continued...)
Conventional Weapons and Weapons Systems 449
36. (...continued)
was substantially amended to restrict the use and transfer of mines lacking
self-destruction/self-deactivation capability. (Protocol II, as amended, is reprinted in 35 Int'l Leg.
Mat'ls 1206 (1996)).
On 7 January 1997, President Clinton transmitted Protocol II (as amended) to the Senate for its
advice and consent to ratification. Letter of Transmittal, 7 Jan. 1997, see Annex A9-1 (p. 455). The
amended Protocol accomplishes six principal purposes:
a. It expands the application of Protocol II to internal armed conflicts (art. 1(2));
b. It requires that all remotely delivered anti-personnel land mines be equipped with
self-destruction devices and backup self-deactivation devices (art. 6(3));
c. It mandates that all nonremotely delivered anti-personnel land mines not so
equipped be used only within controlled and marked perimeters (art. 5(2) (a));
d. It requires all anti-personnel land mines to contain the equivalent of 8 grams of
iron to ensure detectability (art. 4; Technical Annex, para. 2);
e. It imposes upon the party laying the mines responsibility to ensure against their
irresponsible and indiscriminate use (art. 14) and to clear, remove or destroy them
without delay upon the cessation of active hostilities, or to maintain them within a
marked and monitored area (art. 10); and
f. It provides means for more effective compliance (art. 14).
See also the article-by-article analysis of Protocol II, as amended, in the State Department Letter of
Submittal of 7 December 1996 attached to Senate Treaty Doc. 105-1; Matheson, Current
Developments, The Revision of the Mines Protocol, 91 Am. J. Int'l L. 158 (1997).
Claymore mines employed in a command-detonated mode do not fall within the proscriptions of
Protocol II, as amended. Letter of Submittal, id., at 7. Claymore mines may be employed in a
trip-wired mode provided they are located in the immediate vicinity of the military unit that
emplaced them and that the area of their emplacement is monitored to ensure effective exclusion of
civilians. Id., at 23.
The 7 January 1997 Letter of Transmittal also renewed President Clinton's commitment to seek
international acceptance of a total prohibition of anti-personnel land mines. President Clinton had
first announced his commitment to that end on 16 May 1996. (That announcement also
established a unilateral commitment to immediately suspend use of all non-self-destructing
anti-personnel land mines and to destroy existing stocks of such weapons by 1 January 2000.
Anti-personnel land mines currently in place in Korea were excepted from this policy
pronouncement.) White House Press Release, May 16, 1.996. This was followed by a resolution in
the U.N. General Assembly on 10 December 1996 urging all nations to pursue a total ban on all
anti-personnel land mines. U.N.G.A. Res. 51/45S (10 Dec. 1996).
On 17 January 1997, President Clinton announced that the United States had unilaterally
established a permanent ban on the "export and transfer of anti-personnel land mines. (White
House Press Release, Jan. 17, 1997).
On 20 January 1997, at the opening of the 1997 session of the Conference on Disarmament in
Geneva, the United States "began to work with the other [61] member nations to initiate
negotiations on a comprehensive, global agreement to ban [anti-personnel land mines]." (White
House Press Release, May 16, 1997.) On 18 August 1997, President Clinton announced that the
United States would participate in the Canadian-led effort (the so-called "Ottawa process")
outside of the Conference on Disarmament process to achieve a total ban on anti-personnel land
(continued...)
450 Commander's Handbook on the Law of Naval Operations
that, to the extent possible, belligerents record the location of all minefields in
order to facilitate their removal upon the cessation of hostilities. It is the
36. (...continued)
mines, but would propose provisions to preserve the right to continue their use in Korea and in
conjunction with the emplacement of anti-tank/anti-vehicle mines. (White House Press Release,
Aug. 18, 1997; Graham, U.S. to join Canadian-Led Talks on Land Mine Ban, With Reservations,
Wash. Post, 19 Aug. 1997 at 1/4.) U.S. efforts to amend the draft "Ottawa process" treaty were
unsuccessful. Bonner, Land Mine Treaty Takes Final Form Over U.S. Dissent, N.Y. Times, 18
Sep. 1997 at 1. Accordingly, President Clinton announced on 17 September 1997 that the U.S.
would not sign the total ban treaty. Wilson, Clinton Declines to Sign Treaty to Ban
Anti-Personnel Land Mines, Army Times, 6 Oct. 1997 at 32.
The Senior Military Leadership of the United States has cautioned that unilateral U.S. adherence
to a total abolition of all anti-personnel land mines "will unnecessarily endanger U.S. military
forces and significantly restrict the ability to conduct combat operations successfully." Letter to the
Chairman, Senate Armed Services Committee, from the Joint Chiefs/Unified Combatant
Commanders, of 14 July 1997. That letter, written in response to proposed legislation which
would permanently restrict the use of funds for new deployment of anti-personnel land mines
commencing in the year 2000, included the following observations:
We share the world's concern about the growing humanitarian problem related to
the indiscriminate and irresponsible use of a lawful weapon, non-self-destructing
APL [anti-personnel land mines]. In fact, we have banned non self-destructing
("dumb") APL, except for Korea. We support the President's APL policy which has
started us on the road to ending our reliance on any anti-personnel land mines.
Having taken a great step toward the elimination of APL, we must, at this time,
retain the use of self-destructing APL in order to minimize the risk to US soldiers and
marines in combat. However, we are ready to ban all APL when the major producers
and suppliers ban theirs or when an alternative is available.
Land mines are a "combat multiplier" for US land forces, especially since the
dramatic reduction of the force structure. Self-destructing land mines greatly
enhance the ability to shape the battlefield, protect unit flanks, and maximize the
effects of other weapons systems. Self-destructing land mines are particularly
important to the protection of early entry and light forces, which must be prepared to
fight outnumbered during the initial stages of a deployment.
We request that you critically review the new APL legislation and take appropriate
action to ensure maximum protection for our soldiers and marines who carry out
national security policy at grave personal risk. Until the United States has a capable
replacement for self-destructing APL, maximum flexibility and warfighting
capability for American combat commanders must be preserved. The lives of our
sons and daughters should be given the highest priority when deciding whether or
not to ban unilaterally the use of self-destructing APL.
37. Art. 7 and the Technical Annex of the original text of Protocol II of the Conventional
Weapons Convention required nations that are parties thereto to record the location of all
pre-planned minefields and to endeavor to ensure the recording of the location of all other
minefields. This is the practice of many States; however, it is uncertain whether this burden will
prove too onerous to be practicable for some States. See Levie, The Code of International Armed
Conflict, 146-47 (1986) in which he notes that it remains to be seen whether States will be able to
comply with the Convention's detailed recording requirements. Art. 9 and the Technical Annex
of Protocol II, as amended, continues this obligation to record the location of emplaced mines.
Conventional Weapons and Weapons Systems 451
practice of the United States to record the location of minefields in all
circumstances.
9.4 TORPEDOES
Torpedoes which do not become harmless when they have missed their mark
• 38
constitute a danger to innocent shipping and are therefore unlawful. All U.S.
Navy torpedoes are designed to sink to the bottom and become harmless upon
completion of their propulsion run.
9.5 CLUSTER AND FRAGMENTATION WEAPONS
Cluster and fragmentation weapons are projectiles, bombs, missiles,
submunitions, and grenades that are designed to fragment upon detonation,
thereby expanding the radius of their lethality and destructiveness. These
weapons are lawful when used against combatants. When used in proximity to
noncombatants or civilian objects, their employment should be carefully
monitored to ensure that collateral damage and incidental injury is not excessive
in relation to the legitimate military advantage sought.
9.6 BOOBY TRAPS AND OTHER DELAYED ACTION
DEVICES
Booby traps and other delayed action devices are not unlawful, provided they
are not designed to cause unnecessary suffering or employed in an indiscriminate
manner. Devices that are designed to simulate items likely to attract and injure
noncombatants (e.g., toys and trinkets) are prohibited. Attaching booby traps to
protected persons or objects, such as the wounded and sick, dead bodies, or
medical facilities and supplies, is similarly prohibited. Belligerents are required
38. Hague VIII, art. 1(3). See a/50 Fleck, at 458. The San Remo Manual, para. 79, provides:
It is prohibited to use torpedoes which do not sink or otherwise become harmless
when they have completed their run.
39. Submarine Torpedo Defense Manual (U), NWP 72-1 (Rev. A), vol. I, Mark 48 Torpedo,
at 2-9 (1987).
40. Compare paragraph 8.1.2.1 (p. 404). Attempts to restrict further their use have failed. See
Schmidt, paragraph 9.1.1, note 8 (p. 440), at 294 & n. 96.
41. Protocol II to the Conventional Weapons Conventions (see paragraph 9.3, note 36
(p. 448)), as its title (Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps
and Other Devices) states, also regulates booby-traps and other delayed actions devices. However,
such devices are not prohibited when directed against enemy military personnel.
42. Id. Art. 6 of the original text of Protocol II (art. 7 of the amended text) specifically prohibits
the use of such devices.
43. Fenrick, paragraph 9.1.1, note 8 (p. 440), at 245; Carnahan, paragraph 9.3, note 36
(p. 448), at 89-93; Schmidt, paragraph 9.1.1, note 8 (p. 440), at 323-29; Rogers, paragraph 9.3,
note 36 (p. 448), at 198-200; and Green 132-33.
452 Commander's Handbook on the Law of Naval Operations
to record the location of booby traps and other delayed action devices in the
same manner as land mines (see paragraph 9.3).
9.7 INCENDIARY WEAPONS
Incendiary devices, such as tracer ammunition, thermite bombs, flame
throwers, napalm, and other incendiary weapons and agents, are lawful weapons.
Where incendiary devices are the weapons of choice, they should be employed
in a manner that does not cause incidental injury or collateral damage that is
excessive in light of the military advantage anticipated by the attack.
9.8 DIRECTED ENERGY DEVICES
Directed energy devices, which include laser, high-powered microwave, and
particle beam devices, are not proscribed by the law of armed conflict. Lasers may
44. The Conventional Weapons Convention Protocol on Prohibitions or Restrictions on the
Use of Incendiary Weapons (Protocol III), reprinted in 19 Int'l Leg. Mat'ls 1534 (1980), AFP
1 10-20, at 3-182 [hereinafter Protocol III] applies to incendiary weapons the general principle,
reaffirmed in GP I, that civilians should not be subject to attack. It places severe restrictions on
attacks on military objectives located within a concentration of civilians and particularly by
prohibiting completely any attacks by aerially delivered "fire bombs," such as the thermite
bombs used in World War II, and napalm on such objectives. Green, 133-34; Parks, The
Protocol on Incendiary Weapons, 279 Int'l Rev. Red Cross 535 (1990); Levie, paragraph 9.3,
note 36 (p. 448).
Protocol III extends the traditional rule of proportionality to prohibit the use of ground-to-ground
incendiaries against any military objective unless it is clearly separated from a concentration of
civilians and all feasible precautions are taken to limit the incendiary effects to the military objective
and to minimize collateral damage. It also specifically prohibits incendiary attacks on forests or
other plant cover except when those conceal, cover or camouflage combatants or other military
objectives, or are themselves military objectives.
Incendiary weapons, as defined in art. 1 of Protocol III, do not include munitions which have
incidental incendiary effects, such as illuminants, tracers, signalling flares, etc., or munitions
designed to combine an incendiary effect with penetration, blast or fragmenting effects, such as
armor-piercing rounds, etc., which are designed for use against tanks, aircraft, etc., and are not
intended to cause burn injuries to personnel.
The United States did not ratify Protocol III in 1995 when it became party to the Conventional
Weapons Convention and Protocols I and II. See paragraph 5.4.2 and note 36 thereto (pp. 299 &
304)). However, President Clinton included a request for advice and consent of the Senate to
ratification of Protocol III (subject to a reservation) in his Transmittal Letter of 7 January 1997.
Paragraph 9.3, note 36 (p. 448) and Annex A9-1 (p. 455). The proposed reservation would allow
employment of incendiary weapons, whether air-to-ground or ground-to-ground, against military
objectives located in concentrations of civilians where it is judged that such use would cause fewer
casualties and less collateral damage than alternate weapons. (For example, incendiary weapons are the
only means which can effectively destroy "biological weapons facilities which require high heat to
eliminate bio-toxins." Resort to high explosive munitions against such targets "would risk widespread
release of dangerous contaminants with potentially disasterous consequences for the civilian
population." State Department Letter of Submittal (see paragraph 9.3, note 36 (p. 448)) at 39.
Conventional Weapons and Weapons Systems 453
be employed as a rangefinder or for target acquisition, with the possibility of
ancillary injury to enemy personnel, or directly against combatants as an
antipersonnel weapon. Their use does not violate the prohibition against the
infliction of unnecessary suffering.
45. This statement is no longer completely accurate with respect to antipersonnel weapons.
There have been various efforts over the years to prohibit the use of lasers as antipersonnel
weapons, e.g., at the 1974-1977 Diplomatic Conference in Geneva which produced GP I and II,
the 1978-1980 United Nations Conference on Certain Conventional Weapons, also in Geneva,
and by Sweden and Switzerland at the 1986 International Conference of the Red Cross. See
Robertson, paragraph 9.1, note 1 (p. 437), at 374-77. These efforts culminated in developments at
the First Review Conference on the Conventional Weapons Convention (September 1995-May
1996) which, in addition to adopting substantial changes to Protocol II (Mines, Booby-Traps, etc.)
{see paragraph 9.3, note 36 (p. 448)), also adopted a new protocol on lasers. Entitled Protocol on
Blinding Laser Weapons (Protocol IV), reprinted in 35 Int'l Leg. Mat'ls 1218 (1996) [hereinafter
Protocol IV], Protocol IV prohibits the use or transfer of laser weapons specifically designed to
cause blindness to unenhanced vision (e.g., to the naked eye or to the eye with corrective eyesight
devices). While blinding as an incidental effect of "legitimate military employment" of range
finding or target acquisition lasers is not prohibited by Protocol IV (see art. 3), parties thereto are
obligated "to take all feasible precautions" to avoid such injuries. Id., art. 2.
President Clinton transmitted Protocol IV to the Senate for its advice and consent to ratification as
part of his Transmittal Letter of 7 January 1997. See paragraph 9.3, note 36 (p. 448) and Annex
A9-1 (p. 455). See also the article-by-article analysis of Protocol IV in the State Department Letter
of Submittal of 7 December 1996 attached to Senate Treaty Doc. 105-1. For a comprehensive
discussion of Protocol IV see Army JAG Memo, DAJA-IO (27-la) of 20 December 1996, Travaux
Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in The Army
Lawyer, Jun 1997, at 33. See also Carnahan, Unnecessary Suffering, The Red Cross and Tactical
Laser Weapons, 18 Loy. L.A. Int'l & Comp. L.J. 705 (1996); Carnahan & Robertson, Current
Development: The Protocol on "Blinding Laser Weapons": A New Direction for International
Humanitarian Law, 90 Am. J. Int'l L. 484 (1996).
On 17January 1997, the Secretary ofDefense promulgated the following guidance on blinding lasers:
The Department ofDefense prohibits the use of lasers specifically designed to cause
permanent blindness and supports negotiations to prohibit the use of such weapons.
However, laser systems are absolutely vital to our modern military. Among other
things, they are currently used for detection, targeting, range-finding,
communications and target destruction. They provide a critical technological edge
to US forces and allow our forces to fight, win and survive on an increasingly lethal
battlefield. In addition, lasers provide significant humanitarian benefits. They allow
weapon systems to be increasingly discriminate, thereby reducing collateral damage
to civilian lives and property. The Department ofDefense recognizes that accidental
or incidental eye injuries may occur on the battlefield as the result of the use of lasers
not specifically designed to cause permanent blindness. Therefore, we continue to
strive, through training and doctrine, to minimize these injuries.
SECDEF Memo U00888/97, DOD Policy on Blinding Lasers, 17 Jan 1997.
46. In reviewing the legality of lasers as antipersonnel weapons, the Judge Advocate General of
the Army in 1988 noted that the most severe effects on personnel produced by lasers were
blindness, temporary and permanent, and severe skin burns. He observed that neither blindness
nor permanent disablement on the battlefield are unique to laser weapons and concluded that their
use "would not cause unnecessary suffering" when compared to other wounding mechanisms and
(continued...)
454 Commander's Handbook on the Law of Naval Operations
9.9 OVER-THE-HORIZON WEAPONS SYSTEMS
Missiles and projectiles with over-the-horizon or beyond-visual-range
capabilities are lawful, provided they are equipped with sensors, or are employed
in conjunction with external sources of targeting data, that are sufficient to
ensure effective target discrimination.
46. (...continued)
therefore "the use of antipersonnel laser weapons is lawful." Army JAG Memo on Use of Lasers as
Antipersonnel Weapons, 29 Sept. 1988, reprinted in The Army Lawyer, Nov. 1988 (DA PAM
27-50-191), at p. 3.
47. The legal standards for "effective target discrimination" are set forth in paragraph 9.1.2
(indiscriminate effect) (p. 440). Nations possessing OTH/BVR weapons are not required to use
them in lieu of unguided weapons. Parks, Submarine-Launched Cruise Missiles and International
Law: A Response, U.S. Naval Inst. Proc, Sept. 1977, at 122-23; O'Connell, The Legality of
Naval Cruise Missiles, 66 Am. J. Int'l L. 785, 793 (1972). Cf. Digby, Precision-Guided Weapons,
Adelphi Paper No. 118 (International Institute for Strategic Studies 1975); Walker,
Precision-Guided Weapons, 245 Scientific American, Aug. 1981, at 37-45; 2 O'Connell 1131.
See also Robertson, paragraph 9.1, note 1 (p. 437), at pp. 371-72.
On 17 May 1987, an Iraqi Mirage F-l attacked USS STARK (FFG-31) in the Persian Gulf
northeast of Bahrain with two Exocet missiles without first identifying the ship as a legitimate
target. Apparently through navigational error, the Iraqi pilot thought USS STARK was located
within the Iranian-declared war zone of the Persian Gulf, a zone avoided by neutral and other
protected shipping. The Iraqi pilot followed standard Iraqi policy and fired at that target believed to
be within the Iranian war zone providing the largest radar return. House Armed Services Comm.
Report on the Staff Investigation into the Iraqi Attack on the USS Stark, 14 June 1907, at 8;
Vlahos, The Stark Report, U.S. Naval Inst. Proc, May 1988, at 64-67. Iraq accepted responsibility
for the erroneous attack. 26 Int'l Leg. Mat'ls 1427-1428 (1987). See also paragraph 6.2, note 21
(p. 331).
The "Scud" missiles employed by Iraq during the 1991 Persian Gulf War were the Iraqi "Al
Hussein" variant of the Soviet SS-1 "Scud-B" SRBM (Short-Range Ballistic Missile). These
missiles, with a range of up to 650km and a 500kg warhead, rely on a simple "strapdown" inertial
guidance system. Lacking active radar terminal guidance, Scud-B has a CEP (Circular Error
Probable) of approximately 500 yds. Jane's Strategic Weapon Systems, "Iraq: Offensive Weapons"
& "USSR: Offensive Weapons," (Lennox ed., 1990); The Illustrated Directory of Modem Soviet
Weapons, at 89, (Bonds ed., 1986). Unlike the German V-l and V-2 rockets of World War II,
which lacked on-board sensors and were employed without sufficient external sources of targeting
information to ensure a reasonable level of targeting discrimination, the Scud-B is fully capable of
being employed lawfully. However, Iraq's indiscriminate Scud-B missile attacks during the 1991
Persian Gulf War, which caused unnecessary destruction of Saudi Arabian and Israeli civilian
property, were war crimes in violation of HR, art. 23(g). Title V Report, 0-623.
Conventional Weapons and Weapons Systems 455
ANNEX A9-1
105TH CONGRESS j SENATE i TREATY DOC
1st Session 105-1
PROTOCOLS TO THE 1980
CONVENTIONAL WEAPONS CONVENTION
MESSAGE
FROM
THE PRESIDENT OF THE UNITED STATES
TRANSMITTING
PROTOCOLS TO THE 1980 CONVENTION ON PROHIBITIONS OR RESTRICTIONS ON
THE USE OF CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO
BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS: THE
AMENDED PROTOCOL ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF
MINES, BOOBY-TRAPS AND OTHER DEVICES (PROTOCOL II OR THE AMENDED
MINES PROTOCOL); THE PROTOCOL ON PROHIBITIONS OR RESTRICTIONS ON
THE USE OF INCENDIARY WEAONS (PROTOCOL III OR THE INCENDIARY
WEAPONS PROTOCOL); AND THE PROTOCOL ON BLINDING LASER WEAPONS
(PROTOCOL IV)
JANUARY 7, 1997. — Protocols were read the first time and, together with the accompanying papers,
referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate
456 Commander's Handbook on the Law of Naval Operations
LETTER OF TRANSMITTAL
THE WHITE HOUSE January 7, 1997.
To the Senate of the United States:
I transmit herewith, for the advice and consent of the Senate to ratification,
the following Protocols to the 1980 Convention on Prohibitions or Restrictions
on the Use of Certain Conventional Weapons Which May Be Deemed to Be
Excessively Injurious or to Have Indiscriminate Effects: the amended Protocol
on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices (Protocol II or the amended Mines Protocol); the Protocol on
Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III or
the Incendiary Weapons Protocol); and the Protocol on Blinding Laser
Weapons (Protocol IV). Also transmitted for the information of the Senate is the
report of the Department of State with respect to these Protocols, together with
article-by-article analyses.
The most important of these Protocols is the amended Mines Protocol. It is an
essential step forward in dealing with the problem of anti-personnel landmines
(APL) and in minimizing the very severe casualties to civilians that have resulted
from their use. It is an important precursor to the total prohibition of these
weapons that the United States seeks.
Among other things, the amended Mines Protocol will do the
following: (1) expand the scope of the original Protocol to include internal
armed conflicts, where most civilian mine casualties have occurred; (2) require
that all remotely delivered anti-personnel mines be equipped with self-destruct
devices and backup self-deactivation features to ensure that they do not pose a
long-term threat to civilians; (3) require that all nonremotely delivered
anti-personnel mines that are not equipped with such devices be used only
within controlled, marked, and monitored minefields to protect the civilian
population in the area; (4) require that all anti-personnel mines be detectable
using commonly available technology to make the task of mine clearance easier
and safer; (5) require that the party laying mines assume responsibility for them
to ensure against their irresponsible and indiscriminate use; and (6) provide more
effective means for dealing with compliance problems to ensure that these
restrictions are actually observed. These objectives were all endorsed by the
Senate in its Resolution of Ratification of the Convention in March 1995.
The amended Mines Protocol was not as strong as we would have preferred.
In particular, its provisions on verification and compliance are not as rigorous as
we had proposed, and the transition periods allowed for the conversion or
Conventional Weapons and Weapons Systems 457
elimination of certain noncompliant mines are longer than we thought
necessary. We shall pursue these issues in the regular meetings that the amended
Protocol provides for review of its operation.
Nonetheless, I am convinced that this amended Protocol will, if generally
adhered to, save many lives and prevent many tragic injuries. It will, as well, help
to prepare the ground for the total prohibition of anti-personnel landmines to
which the United States is committed. In this regard, I cannot overemphasize
how seriously the United States takes the goal of eliminating APL entirely. The
carnage and devastation caused by anti-personnel landmines — the hidden killers
that murder and maim more than 25,000 people every year — must end.
On May 16, 1996, 1 launched an international effort to this end. This initiative
sets out a concrete path to a global ban on anti-personnel landmines and is one of
my top arms control priorities. At the same time, the policy recognizes that the
United States had international commitments and responsibilities that must be
taken into account in any negotiations on a total ban. As our work on this
initiative progresses, we will continue to consult with the Congress.
The second of these Protocols — the Protocol on Incendiary Weapons — is a
part of the original Convention but was not sent to the Senate for advice and
consent with the other 1980 Protocols in 1994 because of concerns about the
acceptability of the Protocol from a military point of view. Incendiary weapons
have significant potential military value, particularly with respect to flammable
military targets that cannot so readily be destroyed with conventional explosives.
At the same time, these weapons can be misused in a manner that could cause
heavy civilian casualties. In particular, the Protocol prohibits the use of
air-delivered incendiary weapons against targets located in a city, town, village,
or other concentration of civilians, a practice that caused very heavy civilian
casualties in past conflicts.
The executive branch has given very careful study to the Incendiaries
Protocol and has developed a reservation that would, in our view, make it
acceptable from a broader national security perspective. This proposed
reservation, the text of which appears in the report of the Department of State,
would reserve the right to use incendiaries against military objectives located in
concentrations of civilians where it is judged that such use would cause fewer
casualties and less collateral damage than alternative weapons.
The third of these Protocols — the new Protocol on Blinding
Lasers — prohibits the use or transfer of laser weapons specifically designed to
cause permanent blindness to unenhanced vision (that is, to the naked eye or to
the eye with corrective devices). The Protocol also requires Parties to take all
feasible precautions in the employment of other laser systems to avoid the
incidence of such blindness.
458 Commander's Handbook on the Law of Naval Operations
These blinding lasers are not needed by our military forces. They are potential
weapons of the future, and the United States is committed to preventing their
emergence and use. The United States supports the adoption of this new
Protocol.
I recommend that the Senate give its early and favorable consideration to
these Protocols and give its advice and consent to ratification, subject to the
conditions described in the accompanying report of the Department of State.
The prompt ratification of the amended Mines Protocol is particularly
important, so that the United States can continue its position of leadership in the
effort to deal with the humanitarian catastrophe of irresponsible landmine use.
WILLIAM J. CLINTON.
CHAPTER 10
Nuclear, Chemical, and Biological Weapons
10.1 INTRODUCTION
Nuclear, chemical, and biological weapons present special law of armed
conflict problems due to their potential for indiscriminate effect. This
chapter addresses legal considerations pertaining to the development, possession,
deployment and employment of these weapons.
10.2 NUCLEAR WEAPONS
10.2.1 General. There are no rules of customary or conventional international
law prohibiting nations from employing nuclear weapons in armed conflict. In
1. Singh & McWhinney, Nuclear Weapons and Contemporary International Law (1988). In
1994, the United Nations General Assembly passed U.N.G.A. Res. 49/75K (15 Dec. 1994)
requesting an advisory opinion of the I.C.J, on the question:
Is the threat or use of nuclear weapons in any circumstance permitted under
international law?
Rejecting the argument of some States, including the United States, that the I.C.J, should, in the
exercise of its discretion, decline to issue an opinion "on what is in many respects a political
matter," the Court responded to the General Assembly request with an advisory opinion stating
that:
A. There is in neither customary nor conventional international law any specific
authorization of the threat or use of nuclear weapons (unanimous vote);
B. There is in neither customary nor conventional international law any
comprehensive and universal prohibition on the threat or use of nuclear weapons as
such (11 to 3 vote);
C. A threat or use of force by means of nuclear weapons that is contrary to Article 2,
paragraph 4 of the United Nations Charter and that fails to meet all the requirements
of Article 51, is unlawful (unanimous vote);
D. A threat or use of nuclear weapons should also be compatible with requirements
of the international law applicable in armed conflicts, particularly those of the
principles and rules of international humanitarian law, as well as with specific
obligations under treaties and other undertakings which expressly deal with nuclear
weapons (unanimous vote);
E. It follows from the above-mentioned requirements that the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in
armed conflict, and in particular the principles and rules of humanitarian law;
(continued...)
460 Commander's Handbook on the Law of Naval Operations
the absence of such an express prohibition, the use of nuclear weapons against
enemy combatants and other military objectives is not unlawful. Employment of
nuclear weapons is, however, subject to the following principles: the right of the
parties to the conflict to adopt means of injuring the enemy is not unlimited; it is
prohibited to launch attacks against the civilian population as such; and
distinction must be made at all times between combatants and noncombatants to
the effect that the latter be spared as much as possible. Given their destructive
l.(... continued)
However, in view of the current state of international law, and of the elements of fact
at its disposal, the Court cannot conclude definitively whether the threat or use of
nuclear weapons would be lawful or unlawful in an extreme circumstance of
self-defense, in which the very survival of a State would be at stake (7 to 7 vote with
the President's vote breaking the tie);
F. There exists an obligation to pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and effective
international control (unanimous vote).
I.CJ. Advisory Opinion on the Legality of the Tfireat or Use of Nuclear Weapons, July 8, 1996, reprinted in
35 Int'l Leg. Mat'ls 809 (1996). For commentary on the Court's non-binding advisory opinion see
Matheson, The Opinions of the International Court ofjustice and the Use of Nuclear Weapons,
91 Am. J. Int'l L. 417 (1997); Schmitt, The International Court ofjustice and the Use of Nuclear
Weapons, 7 U.S. A. F.A.J. Leg. Studies 57 (1997), revised and scheduled for reprint in Nav. War
Coll. Rev., Spring 1998 at 91-1 16; McNeill, The International Court ofjustice Advisory Opinion
in the Nuclear Weapons Cases — a First Appraisal, 316 I.C.R.C. Rev. 103 (1997); Bekker,
International Decisions, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 91
Am. J. Int'l L. 126 (1997).
2. In its advisory opinion of the legality of the threat or use of nuclear weapons (.denote 1), the
International Court ofjustice held (Finding D) that the law of armed conflict governs use of
nuclear weapons. This was a position advocated by, inter alia, the United States. Sec generally
Written Statement of the Government of the United States of America, June 20, 1995 (Legality of
the Threat or Use of Nuclear Weapons). Accord Green, Nuclear Weapons and the Law of Armed
Conflict, 17 DenverJ. Int'l L. & Policy 1 (1988); Oeter, Methods and Means ofWarfare, in Fleck,
at 141-42. For additional background, see NWIP 10-2, para. 613 & n.8; FM 27-10, para. 35; AFP
110-31, para. 6-5; AFP 110-34, para. 6-4; ICRC, Commentary (GP I) 593-96. Cf. Reisman,
Nuclear Weapons in International Law, 4 N.Y.L. Sch. J. Int'l & Comp. L. 339, 340 (1983)
(pointing out the significant difference between what the law now is and what one believes the law
should be, and recognizing that the effective decisionmakers in the Cold War environment, the
United States and the U.S.S.R., did not act as if they believed the use of nuclear weapons was perse
illegal). Cold War era constraints on nuclear weapons are described in Bunn, U.S. Law of Nuclear
Weapons, Nav. War Coll. Rev., July-Aug. 1984, at 46-62.
The rules relevant to the use of weapons established by GP I apply to conventional weapons only
and were not intended to have any effect on and do not regulate or prohibit the use of nuclear or
other weapons of mass destruction, including chemical and biological weapons. Those questions
have been the subject of arms control and disarmament negotiations and agreement. Statements
on ratification by Belgium, Italy, and the Netherlands, and by the United Kingdom and the
United States on signature to GP I; Roach, Certain Conventional Weapons Convention: Anns
Control or Humanitarian Law? 105 Mil. L. Rev. 1, 31-34 n.83 (1984); ICRC, Commentary
(GP I) 593-94. See paragraph 5.4.2, note 34 (p. 303) regarding the U.S. decision not to seek
ratification of GP I.
Nuclear, Chemical, and Biological Weapons 461
potential, the decision to authorize employment of nuclear weapons should
emanate from the highest level of government. For the United States, that
3
authority resides solely in the President.
10.2.2 Treaty Obligations. Nuclear weapons are regulated by a number of
arms control agreements restricting their development, possession, deployment,
and use. Some of these agreements (e.g., the 1963 Nuclear Test Ban Treaty) may
not apply during time of war.
10.2.2.1 Seabed Arms Control Treaty. This multilateral convention
prohibits emplacement of nuclear weapons on the seabed and the ocean floor
beyond 12 nautical miles from the baseline from which the territorial sea is
measured. The prohibition extends to structures, launching installations, and
other facilities specifically designed for storing, testing, or using nuclear
weapons. This treaty prohibits emplacement of nuclear mines on the seabed and
ocean floor or in the subsoil thereof. It does not, however, prohibit the use of
nuclear weapons in the water column, provided they are not affixed to the
seabed (e.g., nuclear armed depth charges and torpedoes).
10.2.2.2 Outer Space Treaty. This multilateral convention prohibits the
placement in earth orbit, installation on the moon and other celestial bodies, and
stationing in outer space in any other manner, of nuclear and other weapons of
mass destruction. Suborbital missile systems are not included in this prohibition.
3. Joint Pub. 3-12, Subj: Doctrine for Joint Nuclear Operations, at para. la. For a discussion
of the U.S. view that nuclear weapons remain important for deterrence, see Slocombe, Remarks,
in National Sec. L. Rept., Vol. 19, No. 2, May 1997.
4. Such treaties permit withdrawal if the supreme interests of a nation are at stake; these
treaties include the Seabed Arms Control Treaty (art. VIII) (see paragraph 10.2.2.1 and note 5),
Outer Space Treaty (art. XIV) (see paragraph 10.2.2.2 and note 6), Treaty of Tlatelolco (art. 30.1)
and its two Protocols (see paragraph 10.2.2.4 and note 8 (p. 462)), Nuclear Test Ban Treaty (art.
IV) (see paragraph 10.2.2.5 and note 9 (p. 463)), Non-Proliferation Treaty (art. X.l) (see paragraph
10.2.2.6 and note 10 (p. 464)), and, of the bilateral nuclear arms control agreements, the ABM
Treaty (art. XV.2), the Threshold Test Ban Treaty (art. V.2), and SALT I (art. VIII. 3) (see
paragraph 10.2.2.7 and notes 14, 15 and 17, respectively (p. 465)).
5. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of
Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, Washington,
London & Moscow, 11 February 1971, 23 U.S.T. 701, T.I.A.S. 7337, reprinted in AFP 110-20, at
4-26 [hereinafter Seabed Arms Control Treaty] . There were 93 parties to the Seabed Arms Control
Treaty as of 24 June 1997. Weapons of mass destruction, other than nuclear weapons, are not defined
in this or any other arms control treaty. Baselines are described in paragraph 1.3 (p. 3).
6. Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies, Washington, London & Moscow,
27 January 1967, 18 U.S.T. 2410, T.I.A.S. 6347, reprinted in AFP 110-20, at 6-30 [hereinafter
Outer Space Treaty]. There were 98 parties to the Outer Space Treaty as of 24 June 1997. This
(continued...)
462 Commander's Handbook on the Law of Naval Operations
10.2.2.3 Antarctic Treaty. The Antarctic Treaty is a multilateral convention
designed to ensure that Antarctica, defined to include the area south of 60° South
Latitude, is used for peaceful purposes only. The treaty prohibits in Antarctica
"any measures of a military nature, such as the establishment of military bases and
fortifications, the carrying out of military maneuvers, as well as the testing of any
type of weapons." Nuclear explosions are specifically prohibited. Ships and
aircraft at points of discharging or embarking personnel or cargoes in Antarctica
are subject to international inspection. Ships operating on and under, and aircraft
operating over the high seas within the treaty area are not subject to these
prohibitions.
10.2.2.4 Treaty of Tlatelolco. This treaty is an agreement among the Latin
American countries not to introduce nuclear weapons into Latin America. The
treaty does not, however, prohibit Latin American nations from authorizing
nuclear-armed ships and aircraft of non-member nations to visit their ports and
8
airfields or to transit through their territorial sea or airspace. The treaty is not
applicable to the means of propulsion of any vessel.
Protocol I to the treaty is an agreement among non-Latin American nations
that exercise international responsibility over territory within the treaty area to
abide by the denuclearization provisions of the treaty. France, the Netherlands,
the U.K., and the U.S. are parties to Protocol I. For purposes of this treaty, U.S.
controlled territory in Latin America includes Guantanamo Bay in Cuba, the
Virgin Islands, and Puerto Rico. Consequently the U.S. cannot maintain
nuclear weapons in those areas. Protocol I nations retain, however, competence
to authorize transits and port visits by ships and aircraft of their own or other
armed forces in their Protocol I territories, irrespective of armament, cargo, or
means of propulsion.
6. (...continued)
treaty also limits the use of the moon and other celestial bodies exclusively to peaceful purposes and
expressly prohibits their use for establishing military bases, installations, or fortifications, testing
weapons of any kind, or conducting military maneuvers. See also paragraphs 2.9.1 and 2.9.2
(p. 149).
7. Antarctic Treaty, Washington, 1 December 1959, 12 U.S.T. 794, T.I.A.S. 4780, 402
U.N.T.S. 71 , reprinted in AFP 1 10-20, at 4-21 . There were 43 parties to the Antarctic Treaty on 16
July 1997 of which 26 are consultative members under article IX of the treaty. See paragraph
2.4.5.2 (p. 135) for information on peacetime operations in the Antarctic region.
8. Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco),
Mexico City, 14 February 1967, 634 U.N.T.S. 281, 22 U.S.T. 762, T.I.A.S. 7137, reprinted in AFP
110-20, at 4-9. The travaux preparatories and navigational implications of this treaty and its two
protocols are fully discussed in paragraph 2.4.6, notes 80 and 81 (p. 136). The United States is also a
signatory of, but not yet a party to, Protocols I, II and III of the 1985 South Pacific Nuclear Free
Zone Treaty, and Protocols I and II of the 1996 African Nuclear- Weapon-Free Zone Treaty. See
paragraph 2.4.6, note 82 (p. 137).
Nuclear, Chemical, and Biological Weapons 463
Protocol II is an agreement among nuclear-armed nations (China, France,
Russia, the U.K., and the U.S.) to respect the denuclearization aims of the treaty,
to not use nuclear weapons against Latin American nations party to the treaty, and
to refrain from contributing to a violation of the treaty by Latin American nations.
10.2.2.5 Nuclear Test Ban Treaty. This multilateral treaty prohibits the
testing of nuclear weapons in the atmosphere, in outer space, and
underwater. Over 100 nations are party to the treaty, including Russia, the
9. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under
Water, Moscow, 5 August 1963, 14 U.S.T. 1313, T.I.A.S. 5433, 480 U.N.T.S. 43, reprinted in AFP
1 1 0-20, at 4-3 [hereinafter Nuclear Test Ban Treaty] . There were 116 parties as of 24 June 1 997 .
The treaty also prohibits "any other nuclear explosion" in the specified areas:
The phrase "any other nuclear explosion" includes explosions for peaceful purposes.
Such explosions are prohibited by the treaty because of the difficulty of
differentiating between weapon test explosions and peaceful explosions without
additional controls.
Statement of State Department Legal Adviser to Senate Foreign Relations Comm., reprinted in 11
Whiteman 793-96.
All bodies of water, including inland waters, are included within the term "under water" (id. at
790). The treaty also prohibits nuclear explosions in any other environment if the explosion would
cause radioactive debris to be present outside the borders of the nation conducting the explosion.
Underground tests which do not cause radioactive debris to be present outside the territorial limits
of the nation in which the test is conducted are not prohibited (id. at 791).
The treaty does not impose any limitation on the use of nuclear weapons by the parties in armed
conflict (id. at 793-98).
On 12 December 1995, the U.N. General Assembly resumed its call for a comprehensive nuclear
test ban treaty that would embrace all nuclear explosive testing, including underground testing.
U.N.G.A. Res. 50/65, Dec. 1995. On 17 September 1996, the U.N. General Assembly adopted
U.N.G.A. Res. 50/245, Sep. 1997 and the text of the Comprehensive Nuclear Test Ban Treaty.
U.N. Doc. M/50/1027, reprinted in 35 Int'l Leg. Mat'ls 1439 (1996). The basic obligation of States
in the Comprehensive Nuclear Test Ban Treaty is contained in art. I:
1. Each State Party undertakes not to carry out any nuclear test explosion or any
other nuclear explosion, and to prohibit and prevent any such nuclear explosion at
any place under its jurisdiction or control.
2. Each State Party undertakes, furthermore, to refrain from causing, encouraging,
or in any way participating in the carrying out of any nuclear weapon test explosion
or any other nuclear explosion.
The Treaty also establishes an international organization to ensure compliance with its terms,
particularly the comprehensive verification procedures which it mandates. The United States and
146 other nations are signatories to the Treaty which is not yet in force. Among the nations that are
not signatories are India, Iraq, North Korea and Pakistan. On 22 September 1997, President
Clinton submitted the Comprehensive Nuclear Test Ban Treaty to the Senate for its advice and
consent to ratification.
464 Commander's Handbook on the Law of Naval Operations
U.K., and the U.S. (France and China are not parties.) Underground testing of
nuclear weapons is not included within the ban.
10.2.2.6 Non-Proliferation Treaty. This multilateral treaty obligates
nuclear-weapons-nations to refrain from transferring nuclear weapons or
nuclear weapons technology to non-nuclear-weapons-nations, and obligates
non-nuclear-weapons-nations to refrain from accepting such weapons from
nuclear- weapons-nations or from manufacturing nuclear weapons themselves.
1 0
The treaty does not apply in time of war.
10.2.2.7 Bilateral Nuclear Arms Control Agreements. The United States
and Russia (as the successor state to the U.S.S.R.) are parties to a number of
bilateral agreements designed to either restrain the growth or reduce the number
of nuclear warheads and launchers and to reduce the risk of miscalculation that
could trigger a nuclear exchange. Among these agreements are the Hotline
10. Treaty on the Nonproliferation of Nuclear Weapons, Washington, London & Moscow 1
July 1968, 21 U.S.T. 483, T.I.A.S. 6839, 729 U.N.T.S. 161, reprinted in AFP 1 10-20, at 4-5. This
treaty is designed to prevent the spread of nuclear weapons; to provide assurances, through
international safeguards that the peaceful nuclear activities of nations which have not already
developed nuclear weapons will not be diverted to making such weapons; to promote, to the
maximum extent consistent with the other purposes of the treaty, the peaceful use of nuclear
energy through full cooperation, with the potential benefits of any peaceful application of nuclear
explosive technology being made available to non-nuclear parties under appropriate international
observation; and to express the determination of the parties that the treaty should lead to further
progress in comprehensive arms control and nuclear disarmament measures.
There were 187 nations party to this treaty as of 27 June 1997, including the
nuclear-weapons-nations of China, France, Russia, the U.K. and the U.S. Only Brazil, Cuba,
Israel, India and Pakistan are non-parties; the latter three of whom either have nuclear weapons or
the technology to manufacture them. N.Y. Times, 4 May 1987, at A24. On 3 December 1993,
North Korea became the first and only nation to withdraw from the Treaty. Arms Control
Reporter, June 1997, at 602.A.11.
By its terms, the Nuclear Non-Proliferation Treaty was to remain in force at least until its 25th
anniversary, at which time "a conference shall be convened to decide whether the Treaty shall
continue in force indefinitely, or shall be extended for an additional fixed period or periods." Art.
X2. That conference, entitled the 1995 Nuclear Non-Proliferation Treaty Review and Extension
Conference, convened in New York and on 11 May 1995 formally extended the Treaty
"indefinitely". The 1995 Conference also agreed to a set of "Principles and Objectives for Nuclear
Nonproliferation and Disarmament." Arms Control Reporter, 1996 Annual Report, at chap.
VI A. For a discussion of the Treaty and calls for its indefinite extension see Epstein & Szasz,
Extention of the Nuclear Non-Proliferation Treaty: A Means of Strengthening the Treaty, 33
Va. J. Int'l L. 735 (1993). For a discussion of forceful counter-proliferation should
non-proliferation prove ineffective, see Gibson, The International Legal Ramifications of United
States Counter-Proliferation Strategy: Problems and Prospects, Newport Paper No. 1 1 , U.S. Nav.
War Coll. (1997).
Nuclear, Chemical, and Biological Weapons 465
Hi- 12
Agreements of 1 963 and 1 97 1 , the Accidents Measures Agreement of 1 97 1 ,
13
the 1 973 Agreement on Prevention of Nuclear War, the Anti-Ballistic Missile
Treaty of 1972 and its Protocol of 1974, the Threshold Test Ban Treaty of
1974, the 1976 Treaty on Peaceful Nuclear Explosions, the SALT
Agreements of 1972 and 1977 (SALT I — Interim Agreement has expired; SALT
17 18
II was never ratified), the INF Treaty of 1988, and the START treaties of
1 1 . Memorandum of Understanding between the United States of America and the Union of
Soviet Socialist Republics Regarding the Establishment of a Direct Communications Link, with
Annex, Geneva, 20 June 1963, 14 U.S.T. 825, T.I.A.S. 5362, 472 U.N.T.S. 163; Agreement
Between the United States of America and the Union of Soviet Socialist Republics on Measures to
Improve the USA-USSR Direct Communications Link, with Annex, Washington, 30 September
1971, 22 U.S.T. 1598, T.I.A.S. 7187, 806 U.N.T.S. 402; id. as amended 20 March and 29 April
1975, 26 U.S.T. 564, T.I.A.S. 8059. (In a note dated 13 January 1992, the Russian Federation
informed the United States that it ". . . continues to perform the rights and fulfill the obligations
following from the international agreements signed by the Union of the Soviet Socialist
Republics . . ." T.I.F., 1 Jan. 1994, at 258.)
12. Agreement on Measures to Reduce the Risk of Outbreak of Nuclear War Between the
United States of America and the Union of Soviet Socialist Republics, Washington, 30 September
1971, 22 U.S.T. 1590, T.I.A.S. 7186, 807 U.N.T.S. 57. On 15 September 1987, the Agreement
Between the United States of America and the Union of Soviet Socialist Republics on the
Establishment of Nuclear Risk Reduction Centers, and its two Protocols, were signed in
Washington and entered into force. Dep't St. Bull., Nov. 1987, at 34; reprinted in 27 Int'lLeg. Mat'ls
76 (1988).
13. Agreement Between the United States of America and the Union of Soviet Socialist
Republics on the Prevention of Nuclear War, Washington, 22 June 1973, 24 U.S.T. 1478,
T.I.A.S. 7654.
14. Treaty Between the United States of America and the Union of Soviet Socialist Republics
on the Limitation of Anti-Ballistic Missile Systems, Moscow, 26 May 1972, 12 U.S.T. 2435,
T.I.A.S. 7503 [hereinafter ABM Treaty]; Protocol to the Treaty Between the United States of
America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
Systems, Moscow, 3 July 1974, entered into force 24 May 1976, 27 U.S.T. 1645, T.I.A.S. 8276.
See also paragraph 2.9.3.1, note 131 (p. 153).
15. Treaty Between the United States of America and the Union of Soviet Socialist Republics
on the Limitation of Underground Nuclear Weapon Tests, Moscow, 3 July 1974. The Treaty, and
the 1990 Protocol thereto, entered into force on 11 December 1990.
16. Treaty Between the United States of America and the Union of Soviet Socialist Republics
on Underground Nuclear Explosions for Peaceful Purposes, Washington, 28 May 1976, Sen. Ex.
N, 94th Cong., 2d Sess.; Sen. Ex. Rep. 100-1 . The Treaty, and the 1990 Protocol thereto, entered
into force on 11 December 1990.
17. SALT I includes the ABM Treaty (see note 14 (p. 465)) and the Interim Agreement
Between the United States of America and the Union of Soviet Socialist Republics on Certain
Measures with respect to the Limitation of Strategic Offensive Arms with associated Protocol,
entered into force 3 October 1972, 23 U.S.T. 3462, T.I.A.S. 7504, AFP 110-20 at 4-35. The
Interim Agreement expired on 3 October 1977. However, both the United States and the Soviet
Union issued parallel statements announcing that they would continue to observe the limitations
on strategic buildups which were contained in the agreement. 77 Dep't St. Bull. 642 (1977).
SALT II is formally known as the Treaty Between the United States of America and the Union of
Soviet Socialist Republics on the Limitation of Strategic Offensive Arms, signed 18 June 1979,
submitted to the Senate for its advice and consent 22 June 1979, and withdrawn from the Senate's
(continued...)
466 Commander's Handbook on the Law of Naval Operations
1991 (START I) and 1993 (START II). The START treaties have initiated the
process of physical destruction of strategic nuclear warheads and launchers by the
U.S., Russia, Ukraine, Belarus and Kazakhstan (the latter four being recognized
19
as successor states to the U.S.S.R. for this purpose).
10.3 CHEMICAL WEAPONS
International law prohibits the use of chemical weapons in armed conflict.
10.3.1 Treaty Obligations. The 1925 Geneva Gas Protocol for the Prohibition of
the use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological
17. (...continued)
calendar in January 1980 at the request of President Carter. In 1977, the Presidents of both
countries stated they would do nothing to jeopardize the treaty so long as each abided by it. 77
Dep'tSt. Bull. 642(1977).
In 1982, the United States announced that it would not undercut the expired SALT I Interim
Agreement and the unratified SALT II Agreement as long as the Soviet Union exercised equal
restraint. 1 Public Papers of President Reagan 709 (31 May 1982); ACDA, Documents on
Disarmament, 1982, at 332. However, the United States announced in May 1986 that it would
henceforth base decisions regarding its strategic force structure on the nature and magnitude of the
threat posed by Soviet strategic forces, and not on the standards contained in the expired SALT I
Interim Agreement and the unratified SALT II Treaty. Dep't St. Bull., Aug. 1986, at 36-43.
Consistent with this policy, the United States ceased technical observance of the SALT II Treaty
on 28 November 1986.
18. The Treaty Between the United States of America and the Union of Soviet Socialist
Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (INF
Treaty), and associated documents, Washington, 8 December 1987, reprinted in 27 Int'l Leg. Mat'ls
84 (1988), entered into force 1 June 1988.
19. See Treaty Between the United States of America and the Union of Soviet Socialist
Republics on the Reduction and Limitation of Strategic Offensive Arms, 31 July 1991 (START I),
and accompanying Protocol between the United States and the Republic of Belarus, the Republic
of Kazakhstan, the Russian Federation, and Ukraine, 23 May 1992, S. Treaty Doc. 20, 102d
Cong., 1st Sess. (1991); reprinted in Dept. of State DISPATCH, Oct. 1991, Vol. 2, Supp. No. 5.
The Treaty Between the United States of America and the Russian Federation on Further
Reduction and Limitation of Strategic Offensive Arms, 3 January 1993 (START II), to which the
Senate provided its advice and consent on 26 January 1996. However, the Russian Duma has not.
Accordingly, START II is not in force. For a discussion of START I and START II see
Bunn & Rhinelander, The Arms Control Obligations of the Former Soviet Union, 33 Va. J. Int'l
L. 323 (1993).
In November 1991 Congress authorized establishment of the Cooperative Threat Reduction
Program, 22 U.S.C. 5952. Sometimes referred to as the Nunn-Lugar Program, this legislation is
design to assist the newly independent states of the former Soviet Union in the safety, security and
dismantlement of nuclear, chemical and other weapons (to include strategic nuclear delivery
vehicles). Through FY 1996, approximately $1.5 billion was authorized by Congress to fund this
effort. See Arms Control Rept., 1996 Annual Report at chap. 6.
20. Oeter, Methods and Means of Combat, in Fleck at 147-50; Levie, Nuclear, Chemical and
Biological Weapons, in Robertson at 334-41.
Nuclear, Chemical, and Biological Weapons 467
21
Methods of Warfare ("the 1925 Gas Protocol") is the principal international
agreement in force relating to the regulation of chemical weapons in armed conflict.
The far more comprehensive 1993 Convention on the Prohibition of
Development, Production, Stockpiling and Use of Chemical Weapons and on their
22
Destruction (the "1993 Chemical Weapons Convention") will enter into force
23
for those nations party to it in the near future.
10.3.1.1 The 1925 Gas Protocol. The United States is a party to the 1925 Gas
Protocol, as are all other NATO nations and all former Warsaw Pact nations.
The United States, the U.S.S.R., and most other NATO and Warsaw Pact
nations conditioned their adherence to the 1925 Gas Protocol on the
understanding that the prohibition against use of chemical weapons ceases to
be binding with respect to nations whose armed forces, or the armed forces of
their allies, fail to respect that prohibition. This, in effect, restricted the
prohibition to the "first use" of such munitions, with parties to the Protocol
25
reserving the right to employ chemical weapons for retaliatory purposes.
21. Geneva, 17 June 1925, 26 U.S.T. 571, T.I.A.S. 8061, L.N.T.S. 65, reprinted in AFP
110-20, at 4-68 and in 14 Int'l Leg. Mat'ls 49 (1975), entered into force for the United States on
10 April 1975. There were 145 parties to the 1925 Gas Protocol as of 1 September 1997. The
Protocol is discussed at paragraph 10.3.1.1 (p. 467).
22. Paris, 13 January 1993, reproduced in 32 Int'l Leg. Mat'ls 800 (1993). The 1993 Chemical
Weapons Convention is discussed in paragraph 10.3.1.2 (p. 472).
23. The 1993 Chemical Weapons Convention actually came into force on 29 April 1997. As
of 29 October 1997,102 nations had ratified or acceded to the Convention.
24. The operative provisions of the Protocol obligate the contracting nations not to use in war
"asphyxiating, poisonous or other gases, and ... all analogous liquids, materials or devices." See the
Final Declaration of the Paris Conference on the Prohibition of Chemical Weapons, 1 1 January
1989, U.N. Doc. A/44/88, 20 Jan. 1989, Annex, reprinted in 28 Int'l Leg. Mat'ls 1020 and in Arms
Control Rep. 704.B. 338.2 (1989) and discussed in Recent Developments: Arms Control;
Declaration of the Paris Chemical Weapons Conference, 30 Harv. Int'l L. J. 495 (1989). For a
discussion of the 1925 Gas Protocol seeLevie, paragraph 10.3, note 20 (p. 466); Oeter, id. at 147-50.
25. Forty-nine nations adhering to the Protocol have done so subject to reservations. For all
practical purposes the reservations, although sometimes differently worded, may all be assimilated
to the following:
(1) The Protocol is binding only as regard nations which are parties to the Protocol
itself (this reservation is somewhat superfluous, as it reiterates something which is
already stated in the Protocol's text).
(2) The Protocol ceases to be binding as regards nations whose armed forces, or the
armed forces of whose allies, fail to respect the prohibition laid down in the Protocol.
This formulation of the reservation, which restricts the prohibition to first use of chemical
weapons, was entered by the following NATO/Warsaw Pact nations: Belgium, Canada, France,
the Netherlands, Portugal, Spain, United Kingdom, United States, Bulgaria, Czechoslovakia,
Romania and U.S.S.R., and was not objected to by any nation.
(continued...)
468 Commander's Handbook on the Law of Naval Operations
The 1925 Gas Protocol does not prohibit the development, production,
testing, or stockpiling of chemical weapons, nor does it prevent equipping and
training military forces for chemical warfare. The United States considers the
Protocol to be applicable to lethal and incapacitating agents but not to riot
control agents (see paragraph 10.3.2) or herbicidal agents (see paragraph 10.3.3).
The United States considers the prohibition against first use of lethal and
incapacitating chemical weapons to be part of customary international law and,
therefore, binding on all nations whether or not they are parties to the 1925 Gas
27
Protocol. Lethal chemical agents are those asphyxiating, poisonous, or other
25. (...continued)
The United States ratified the 1925 Gas Protocol subject to the reservation that it would cease to be
binding with respect to the use in war of asphyxiating, poisonous or other gases, and of all
analogous liquids, materials, or devices, in regard to an enemy nation if such nation or any of its
allies fails to respect the prohibitions in the agreement.
26. The Federal Republic of Germany was the only nation which, upon ratification of the
Protocol, unilaterally obligated itself not to produce chemical weapons on its territory.
The United States has long been committed (e.g., by Art. IX of the 1972 Biological Weapons
Convention) to the objective of the complete, effective and verifiable prohibition of all chemical
weapons.
In 1980, discussions on the multilateral elaboration of a chemical weapons convention were begun
in the 40-nation Committee on Disarmament (CD) in Geneva, Switzerland. On 18 April 1984,
the United States tabled a comprehensive draft treaty banning entirely the possession, production,
acquisition, retention or transfer of chemical weapons. Dep'tSt. Bull., June 1984, 40-43. The CD
Draft Convention text of 27 April 1987 may be found in Arms Control Reporter 1987, at
704. D. 105-1 18. That draft became the basis of negotiations which produced the 1993 Chemical
Weapons Convention.
27. Statement by the President, Use of Poison Gas, 8 June 1943, 8 Dep't St. Bull. 507 (1943)
(use of chemical weapons has been "outlawed by the general opinion of civilized mankind");
Letter from Ass't Sec'y State Macomber to Cong. Rosenthal, 22 Dec. 1967, quoted in Bunn,
Banning Poison Gas and Germ Warfare: Should the United States Agree? 1969 Wis. L. Rev. 375,
384-85 (the rule set forth in the 1925 Gas Protocol "is now considered to form a part of customary
international law"); DA Pam. 27-161-2, at 44 (1962). Accord McDougal & Feliciano 634 and
sources cited therein at n.360; Parks, Classification of Chemical-Biological Warfare, 1 3 U. Toledo
L. Rev. 1165, 1167 (1982); Smith, International Regulation of Chemical and Biological
Weapons: "Yellow Rain" and Arms Control, 1984 U. 111. L. Rev. 1011, 1048-56; Green 37-38,
129-31.
There are different views as to the extent to which the prohibition of use of chemical weapons has
become part of customary international law. At least four positions may be advanced on this question:
(1) The 1925 Gas Protocol is not customary international law, and use of chemical
weapons is not contrary, per se, to internationally accepted customary rules. The
Protocol is a no-first-use agreement between the contracting parties.
(2) The prohibition of first use of chemical weapons as embodied in the 1925 Gas
Protocol and relevant reservations thereto has become part of the customary
international law and is, therefore, binding on all nations towards all the others,
whether parties to it or not. This is the position of the United States.
(continued...)
Nuclear, Chemical, and Biological Weapons 469
27. (...continued)
(3) Use of chemical weapons is contrary to customary international law. It is
permitted only as a belligerent reprisal.
(4) Use of chemical weapons is contrary to customary international law in all
circumstances.
Since all NATO and Warsaw Pact nations became parties to the 1925 Gas Protocol, there could
have been no legitimate first-use of chemical weapons in a NATO-Warsaw Pact confrontation.
The doctrine of reciprocity has also been advanced as a possible basis for the legitimate use of chemical
weapons. Under art. 60 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969,
1155 U.N.T.S. 331, reprinted in 8 Int'l Leg. Mat'ls 679 (1969), and in AFP 110-20, at 7-2, and the
customary international law of reciprocity, a breach of a multilateral treaty, that is a violation of a
provision essential to the accomplishment of the object of the treaty, can be invoked by the affected
parties as a ground for suspending the operation of the treaty in their relations with the violating
nation or nations. Therefore, all NATO nations, whether they ratified the Geneva Protocol with
reservations or not, could arguably have invoked the customary rule stated in the Vienna
Convention, as well as the application of the general principle of reciprocity, to justify a response
with chemical weapons if attacked with such weapons by a Warsaw Pact country. It could be argued,
however, that art. 60 of the Vienna Convention does not apply to the 1925 Gas Protocol because, as a
treaty of humanitarian character, the Protocol is not amenable to reservation (see art. 60, para. 5).
As for the limits to this chemical response, a nation which ratified the 1925 Gas Protocol with
retaliatory use reservation could take the position that, in case of violation of the treaty, it would
feel free from any obligation under the terms of the Protocol. It is important to note that, according
to the letter of the first use reservation:
- The violation may be committed either against the reserving nation or against one
of its allies. The reservation affirms the right of the reserving nation to retaliate on
behalf of its allies.
- All members of the enemy alliance are equally legitimate objects of retaliation
whichever the violating nation.
- Since the violation of the Treaty causes, for the reserving nation, the "suspension"
of the prohibition altogether, the retaliatory use of chemical weapons does not need
to be proportionate or comparable to the violation to which it replies.
The same position could be taken also by a nation which ratified the 1925 Gas Protocol without
reservations. In fact, if the violation is committed by a nation which has, or whose allies have, a
retaliatory-use reservation, the nation attacked could invoke the principle of reciprocity. Under the
principle of reciprocity, a reservation entered by a nation which modifies the provisions of a treaty in
its relations with other parties, modifies those provisions to the same extent for the other parties in
their relations with the reserving nation (see Vienna Convention on the Law of Treaties, art. 21).
On the other hand, if the view on the consolidation of the prohibition of chemical weapons into a
rule of customary international law is accepted, then this right of retaliation is no longer applicable
without limitations. According to this interpretation, since the prohibition of chemical weapons no
longer stems from the Protocol, but has become a rule of customary international law, the use of such
weapons by an enemy does not confer on a nation the right to "suspend" the prohibition altogether,
but only gives the nation the right to act in reprisal against the violating nation, in accordance with
international law. As a reprisal, such response must be proportionate to the initial violation.
As a consequence, and regardless of whether they ratified the 1925 Gas Protocol with reservations
or not, nations which consider the general prohibition of chemical weapons as being part of
(continued...)
470 Commander's Handbook on the Law of Naval Operations
gases; analogous liquids; or materials that cause immediate death. Incapacitating
agents are those producing symptoms that persist for appreciable periods of time
after exposure to the agent has terminated. ' Consistent with its first-use
27. (...continued)
customary international law, may take the position that they are only allowed to act in reprisal,
including in-kind reprisal where necessary, if attacked with chemical weapons. It is to be noted that
the right to use chemical weapons in reprisal does not stem from reservations to the 1925 Gas
Protocol, but from the law of reprisal itself. For a discussion of reprisal see paragraph 6.2.3 (p. 335).
28. Lethal and incapacitating agents are chemical agents intended for use in military operations
to kill, seriously injure, or incapacitate personnel through their physiological effects. This
definition excludes riot control agents (RCAs), chemical herbicides, and smoke and flame
materials. Chemical agents are classified according to physical state, use, persistence and
physiological effects, with the latter two being the most common in military usage.
Lethal agents are capable of producing incapacitation, serious injury, or death when used in field
concentrations. Incapacitating agents, on the other hand, produce non-permanent physiological or
mental effects, or both, rendering individuals incapable of concerted efforts in the performance of
their assigned duties while normally allowing complete recovery.
Nerve agents are lethal agents which cause paralysis by interfering with the transmission of nerve
impulses. They are organophosphorous compounds similar to many commonly used insecticides.
However, they are several orders of magnitude more toxic, minute quantities of which can kill.
Basically, the nerve agents work at the nerve/muscle interface by blocking the enzyme which
allows the muscles to relax. Consequently, the victim loses muscular control and dies of suffocation
due to inability to breathe. Death can occur within a few minutes if the dose is large enough. Nerve
agents are liquids which vaporize into the air or can be disseminated in the form of an aerosol. In
addition to working through inhalation or ingestion, the liquid and (to a minor extent) the vapors
can be absorbed through the skin. The eyes are particularly sensitive to nerve agents and very small
liquid or vapor exposures can cause pinpointing of the pupils (miosis) making it impossible to
perform tasks requiring good visual acuity. A mask, protective garment, and gloves are required for
protection, but the garment may be removed as the possibility of liquid contamination declines,
permitting greater operational efficiency.
Blood agents are chemical compounds, including the cyanide group, that affect bodily functions by
preventing the transfer of oxygen from the blood to the body cells causing rapid death. Blood
agents are highly volatile which enhances their ability to spread rapidly over a target, but requires
large concentrations of agent and gready limits their duration of effectiveness. Some of the
compounds deteriorate rapidly in storage. They are also called cyanogen agents.
Choking agents work by breaking down the interior surface of the lungs causing them to fill up with
fluids. Death can result from what has been called "dry land drowning." The most commonly
known choking agent is phosgene, which was used in World War I. Under its chemical name
(carbonyl chloride) phosgene is an industrial chemical used in the manufacture of plastics, some
drug products, and urethane foam. This class of agents, effective in trench warfare, would be of
only very limited utility in modern military operations and is generally considered to be obsolete.
Blister agents or vesicants are chemical agents which injure the eyes and lungs, and burn or blister the
skin. Both the liquid and the vapors can have this effect, making whole body protection mandatory
in a blister agent environment. The most commonly known blister agent is mustard, which was
widely used in World War I. Blister agents can be lethal if inhaled; however, the more common
result is incapacitation due to blistering of the skin. Mustard has a delayed effect; it does not cause
immediate pain, the first symptoms appear in 4-6 hours. Also, it freezes at approximately 58°F.
(continued...)
Nuclear, Chemical, and Biological Weapons 471
reservation to the 1925 Gas Protocol, the United States maintained a lethal and
incapacitating chemical weapons capability for deterrence and possible
retaliatory purposes only. National Command Authorities (NCA) approval was
required for retaliatory use of lethal or incapacitating chemical weapons by U.S.
Forces. Retaliatory use of lethal or incapacitating chemical agents was to be
terminated as soon as the enemy use of such agents that prompted the retaliation
had ceased and any tactical advantage gained by the enemy through unlawful first
use had been redressed. Upon coming into force of the 1993 Chemical Weapons
Convention, any use of chemical weapons by a party to that convention,
whether or not in retaliation against unlawful first use by another nation, will be
prohibited. (See paragraph 10.3.1.2).
28. (...continued)
However, mixing mustard with lewisite results in an agent with a lower freezing point which
produces immediate stinging of the skin.
Chemical munitions may be classified as unitary or binary. Unitary munitions are filled with the
premixed complete agent. These can be very simple in design and all consist of a container which
opens or bursts on or over the target releasing the agent. Binary munitions contain two non-lethal
substances which mix in route to the target to produce a lethal or incapacitating agent. While they
offer safety, surety, and logistical advantages over unitary munitions, binary weapons are more
complex.
Joint Pub. \ -02 passim; 50U.S.C.sec. 1521(j); Joint Pub. 3-11, Subj: Joint Doctrine for Nuclear,
Biological, and Chemical Defense; OPNAVINST P-86-1-95, Subj: Chemical, Biological, and
Radiological Defenses Handbook; FM 3-6, Subj: Field Behaviors of Nuclear, Biological, and
Chemical Agents.
For additional background on chemical warfare see St. Aubin & Williams, Soviet Chemical Warfare
Agents: Another Type of Threat, All Hands, April 1982, at 38-43; Moore, Ratification of the
Geneva Protocol on Gas and Bacteriological Warfare: A Legal and Political Analysis, 58 Va. L. Rev.
419 (1972); CBW, Chemical and Biological Warfare (Rose ed. 1968); Thomas & Thomas, Legal
Limits on the Use of Chemical and Biological Weapons (1970); Carnegie Endowment for
International Peace, The Control of Chemical and Biological Weapons (1971); Geneva Gas
Protocol of 1925, Hearings Before Sen. Comm. on Foreign Relations on Sen. Ex. J, 92d Cong., 1st
Sess. (1972); 10 Whiteman 454-79; 6 Hackworth 269-71. More recent developments on the use of
chemical weapons are described in Report of Group of Experts on the Alleged Use of Chemical
Weapons, U.N. Doc. A/37/259, 1 Dec. 1982 (Iran-Iraq war); Chemical Warfare in Southeast Asia
and Afghanistan, Report to the Congress by Secretary of State Haig, March 22, 1982, Dep't of State
Special Report No. 98; Chemical Warfare in Southeast Asia and Afghanistan: An Update, Report
from Secretary of State Shultz, November 1982, Dep't of State Special Report No. 104, reprinted in
Dep't St. Bull., Dec. 1982, at 44-53; Reports of the Missions Dispatched by the Secretary General to
Investigate Allegations of the Use of Chemical Weapons in the Conflict between the Islamic
Republic of Iran and Iraq, U.N. Docs. S/16433, 26 Mar. 1984; S/1791 1, 12 Mar. 1986; S/18852, 13
May 1987; S/19823, 25 Apr. 1988; S/20060, 20 July 1988; S/20063, 25 July 1988 (generally
confirming the use by Iraq of mustard gas in the Iran-Iraq war); Cordesman, Creating Weapons of
Mass Destruction, Armed Forces J. Int'l, Feb. 1989, at 54 (recounting development and use of
chemical weapons by Iran and Iraq); Spiers, Chemical and Biological Weapons, A Study of
Proliferation (1994).
472 Commander's Handbook on the Law of Naval Operations
10.3.1.2 The 1993 Chemical Weapons Convention. This comprehensive
Convention will, upon entry into force, prohibit the development,
production, stockpiling and use of chemical weapons, and mandate the
destruction of chemical weapons and chemical weapons production facilities for
all nations that are party to it. The Convention specifically prohibits the use of
29. See paragraph 10.3.1, note 22 (p. 467).
30. The 1993 Chemical Weapons Convention came into force on 29 April 1997.
31. Art. I of the Convention, entitled "General Obligations," provides that:
1 . Each State Party to this Convention undertakes never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical
weapons, or transfer, directly or indirectly, chemical weapons to anyone;
(b) To use chemical weapons;
(c) To engage in any military preparations to use chemical weapons;
(d) To assist, encourage or induce, in any way, anyone to engage in any
activity prohibited to a State Party under this Convention.
2. Each State Party undertakes to destroy chemical weapons it owns or possesses,
or that are located in any place under its jurisdiction or control, in accordance with
the provisions of this Convention.
3. Each State Party undertakes to destroy all chemical weapons it abandoned on the
territory of another State Party, in accordance with the provisions of this Convention.
4. Each State Party undertakes to destroy any chemical weapons production
facilities it owns or possesses, or that are located in any place under its jurisdiction
or control, in accordance with the provisions of this Convention.
5. Each State Party undertakes not to use riot control agents as a method of warfare.
The Convention's Annex on Implementation and Verification (referred to in the Convention as
the "Verification Annex") establishes detailed verification procedures providing for on-site
inspection and monitoring with on-site instruments of all locations at which chemical weapons are
stored or destroyed and of all chemical weapons production facilities.
Destruction of chemical weapons, except for "old chemical weapons" and "abandoned chemical
weapons," must begin within two years after the Convention enters into force for the party that
possesses them and must be completed not later than ten years after the Convention comes into
forces (Art. IV, para. 6). If a party to the Convention is unable to destroy its chemical weapons
within that ten year period, the deadline may be extended, but in no circumstances beyond fifteen
years after the Convention enters into force (Verification Annex, Part IV (A), para. 26). "Old
chemical weapons" are defined as those produced before 1925, or those produced between 1925
and 1946 that have deteriorated to the extent that they can no longer be used as chemical weapons
(Art. II, para. 5). "Abandoned chemical weapons" are chemical weapons, including "old chemical
weapons," abandoned by one nation after 1924 on the territory of another nation without the
consent of the latter (Art. II, para. 5) . "Old chemical weapons" are to be disposed of or destroyed as
"toxic waste" (Verification Annex, Part IV (B), para. 7). Under the regime for destruction of
"abandoned chemical weapons," the abandoning nation, upon conclusion of a mutually agreeable
program with the nation in whose territory the weapons are located, is responsible for the
destruction (Verification Annex, Part IV (B), paras. 8-18).
(continued...)
Nuclear, Chemical, and Biological Weapons 473
32
riot control agents as a "method of warfare."' " It does not, however, modify
'IT.
existing international law with respect to herbicidal agents.
The United States signed the 1993 Chemical Weapons Convention on 13
January 1993. The President transmitted the Convention to the Senate on 23
November 1993 for its advice and consent to ratification.
10.3.2 Riot Control Agents. Riot control agents are those gases, liquids and
analogous substances that are widely used by governments for civil law
enforcement purposes. Riot control agents, in all but the most unusual
circumstances, cause merely transient effects that disappear within minutes after
exposure to the agent has terminated. Tear gas and Mace are examples of riot
control agents in widespread use by law enforcement officials.
10.3.2.1 Riot Control Agents in Armed Conflict.
10.3.2.1.1 Under the 1925 Gas Protocol. The United States considers that
use of riot control agents in armed conflict was not prohibited by the 1925 Gas
Protocol. However, the United States formally renounced first use of riot
control agents in armed conflict except in defensive military modes to save lives.
Uses of riot control agents in time of armed conflict which the United States
considers not to be violative of the 1925 Gas Protocol include:
1 . Riot control situations in areas under effective U.S. military control, to include
control of rioting prisoners of war.
2. Situations in which civilians are used to mask or screen attacks and civilian
casualties can be reduced or avoided.
3. Rescue missions involving downed aircrews or escaping prisoners or war.
31. (...continued)
Destruction of a party's chemical weapons production facilities must begin within one year after
the Convention enters into force for that nation and must be completed within ten years after the
Convention enters into force (Art. V, para. 8), e.g., 29 April 2007.
For a comprehensive commentary on the Convention see Krutzsch & Trapp, A Commentary on
the Chemical Weapons Convention (1994). See also the article-by-article analysis of the
Convention in the State Department Letter of Submittal attached to the President's Letter of
Transmittal to the Senate of 23 November 1993 {see note 34 (p. 473)).
32. See paragraph 10.3.2 (p. 473).
33. See paragraph 10.3.3 (p. 476).
34. Chemical Weapons Convention, Letter of Transmittal, Senate Treaty Doc. 103-21;
reprinted in Dept. of State DISPATCH, Dec. 1993, Vol. 4, No. 49. On 24 April 1997, the Senate
adopted its Resolution of Ratification, subject to 28 "conditions." The complete text of the Senate
Resolution is reprinted in Nash, Contemporary Practice of the United States Relating to
International Law, Chemical Weapons Convention, 91 Am. J. Int'l L. 499 (1997).
474 Commander's Handbook on the Law of Naval Operations
4. Protection of military supply depots, military convoys, and other military
activities in rear echelon areas from civil disturbances, terrorist activities, or
paramilitary operations.
Such employment of riot control agents by U.S. forces in armed conflict requires
NCA approval.
10.3.2.1.2 Under the 1993 Chemical Weapons Convention. Use of riot
control agents as a "method of warfare" is prohibited by the 1993 Chemical
Weapons Convention. However, that term is not defined by the Convention.
The United States considers that this prohibition applies in international as well
as internal armed conflict but that it does not apply in normal peacekeeping
operations, law enforcement operations, humanitarian and disaster relief
operations, counter-terrorist and hostage rescue operations, and noncombatant
rescue operations conducted outside of such conflicts.
35. Exec. Order No. 1 1,850, 40 Fed. Reg. 16187, 3A C.F.R. 149-50 (1975); FM 27-10, para.
38; reprinted in AFP 110-20, at 4-69. Presidential memorandum to the Secretary of Defense, 10
January 1976, Subj: Use of Riot Control Agents to Protect or Recover Nuclear Weapons, adds to
this list security operations regarding the protection or recovery of nuclear weapons.
36. Art. I, para. 5 of the 1993 Chemical Weapons Convention provides that:
Each State Party undertakes not to use riot control agents as a method of warfare.
Art. II, para. 7 defines "Riot Control Agents" as:
Any chemical not listed in a Schedule [of toxic and precursor chemicals] which can
produce rapidly in humans sensory irritation or disabling physical effects which
disappear within a short time following termination of exposure.
Art. II, para. 2 defines "Toxic Chemicals" as:
Any chemical which through its chemical action on life processes can cause death,
temporary incapacitation or permanent harm to humans or animals ....
37. The meaning of the term "international armed conflict" is well-established in international
law. It encompasses armed conflict between sovereign States, including the armed occupation of
one State of the territory of another. The scope of "internal armed conflict" is less well-established.
Such a conflict generally involves significant fighting between the established government and
dissident armed groups. An internal armed conflict is generally not considered to include internal
disturbances and tensions that do not involve relatively protracted and sustained hostilities. Riots
and isolated and sporadic acts of violence do not constitute internal armed conflict as that term is
understood in international law. See paragraph 5.1, note 4 (p. 290).
38. President Clinton's message to the Senate of the United States of 23 June 1994. White
House Press Release, Jun. 23, 1994. That message also states that "according to the current
international understanding" the use of riot control agents against enemy combatants, or mixed
groups of enemy combatants and noncombatants, is prohibited even for humanitarian purposes,
such as the rescue of downed aircrews or in situations where the enemy utilizes noncombatants to
mask or screen attacks. But see note 39 which sets forth Condition 26 of the Senate's Resolution of
(continued...)
Nuclear, Chemical, and Biological Weapons 475
The United States also considers that it is permissible to use riot control agents
against other than combatants in areas under direct U.S. military control,
including to control rioting prisoners of war and to protect convoys from civil
disturbances, terrorists and paramilitary organizations in rear areas outside the
zone of immediate combat.
38. (...continued)
Ratification of the Convention. This Condition requires that the President take no action which
would alter or eliminate Executive Order 1 1,850. See note 35 (p. 474). See also CJCSI 3100.07A,
Subj: Nuclear, Biological, and Chemical Defense; Riot Control Agents [RCAs]; and Herbicides,
which provides in Enclosure B, para. 2b that:
The United States has renounced first use of RCAs in war except in defensive
military modes to save lives, such as:
(1) Use of riot control agents in riot control situations in areas under direct and distinct
United States military control, to include controlling rioting prisoners of war.
(2) Use of riot control agents in a situation in which civilians are used to mask or
screen attacks and civilian casualties can be reduced or avoided.
(3) Use of RCAs in rescue missions in remotely isolated areas, of downed aircrews
and passengers, and escaping prisoners.
(4) Use of riot control agents in rear echelon areas outside the zone of immediate
combat to protect convoys from civil disturbances, terrorists, and paramilitary
organizations.
(5) Security operations regarding the protection or recovery of nuclear weapons.
Para. 4.a.(l) of Enclosure B provides that only the President may authorize the "Use of RCAs
in war, including defensive military modes. However, advance authority to use RCAs in
wartime for protection or recovery of nuclear weapons has been delegated to the Secretary of
Defense."
39. See note 38. See also Senate Resolution of Ratification (paragraph 10.3.1.2, note 34
(p. 473)), which provides in Condition 26:
(26) Riot Control Agents. —
(A) Permitted Uses. — Prior to the deposit of the United States instrument of
ratification, the President shall certify to Congress that the United States is not
restricted by the Convention in its use of riot control agents, including the use
against combatants who are parties to a conflict, in any of the following cases:
(i) United States Not a Party. — The conduct of peacetime military operations
within an area of ongoing armed conflict when the United States is not a party to the
conflict (such as recent use of the United States Armed Forces in Somalia, Bosnia,
and Rwanda).
(ii) Consensual Peacekeeping. — Consensual peacekeeping operations when the
use of force is authorized by the receiving State, including operations pursuant to
Chapter VII of the United Nations Charter.
(iii) Chapter VII Peacekeeping. — Peacekeeping operations when force is authorized by
the Security Council under Chapter VII of the United Nations Charter.
(continued...)
476 Commander's Handbook on the Law of Naval Operations
10.3.2.2 Riot Control Agents in Time of Peace. Employment of riot
control agents in peacetime is not proscribed by either the 1925 Gas Protocol or
the 1993 Chemical Weapons Convention and may be authorized by the
Secretary of Defense, or in limited circumstances, by the commanders of the
combatant commands. Circumstances in which riot control agents may be
authorized for employment in peacetime include:
1 . Civil disturbances in the United States, its territories and possessions.
2. Protection and security on U.S. bases, posts, embassy grounds, and installations
overseas, including for riot control purposes.
3. Law enforcement
a. On-base and off-base in the United States, its territories and possessions;
b. On-base overseas;
c. Off-base overseas when specifically authorized by the host government.
43
4. Noncombatant evacuation operations involving U.S. or foreign nationals.
10.3.3 Herbicidal Agents. Herbicidal agents are gases, liquids, and analogous
substances that are designed to defoliate trees, bushes, or shrubs, or to kill long
39. (...continued)
(B) Implementation. — The President shall take no measure, and prescribe no rule
or regulation, which would alter or eliminate Executive Order 11,850 of April 8,
1975. [See paragraph 10.3.2.1.1, note 35 (p. 473).]
(C) Definition. — In this paragraph, the term "riot control agent" has the meaning
given the term in Article 11(7) of the Convention. [See note 36 (p. 474).]
But see Krutzsch & Trapp, paragraph 10.3.1.2, note 31 (p. 472) at 36 & 42-43. On 25 April 1997,
President Clinton certified to the Congress acceptance of the 28 Conditions, including Condition
26 on riot control agents. Cong. Rec. 105th Cong., 1st Sess., 28 Apr 1997, at H 1895.
40. Department of Defense Civil Disturbance Plan, GARDEN PLOT, 15 February 1991;
DOD Directive 3025.12, Subj: Military Assistance for Civil Disturbances; DOD Directive
3025.15, Subj: Military Assistance to Civil Authorities; DOD Directive 5525.5, Subj: DOD
Cooperation with Civilian Law Enforcement Officials; SECNAVINST 5820. 7B, Subj:
Cooperation with Civilian Law Enforcement Officials.
41. The U.S. -controlled portions of foreign installations are considered U.S. installations.
JSCP Annex F.
42. DEPSECDEF memo for Service Secretaries and Chairman, Joint Chiefs of Staff, Subj: Use
of Chemical Irritants in Military Law Enforcement, 19 June 1978.
43. Authority for use of riot control agents in peacetime situations not covered by the above
(e.g., to save lives in counterterrorist operations) should be submitted through the chain of
command for approval pursuant to CJCSI 3100. 07 A (paragraph 10.3.2.1.2, note 38 (p. 474)).
Nuclear, Chemical, and Biological Weapons 477
grasses and other vegetation that could shield the movement of enemy forces.
The United States considers that use of herbicidal agents in wartime is not
prohibited by either the 1925 Gas Protocol or the 1993 Chemical Weapons
Convention but has formally renounced the first use of herbicides in time of
armed conflict except for control of vegetation within U.S. bases and
installations or around their immediate defensive perimeters. Use of herbicidal
agents during armed conflict requires NCA approval. Use of herbicidal agents
in peacetime may be authorized by the Secretary of Defense or, in limited
circumstances, by commanders of the combatant commands.
10.4 BIOLOGICAL WEAPONS
International law prohibits all biological weapons or methods of warfare
whether directed against persons, animals, or plant life. Biological weapons
include microbial or other biological agents or toxins whatever their origin (i.e.,
natural or artificial) or methods of production.
44. See paragraph 10.3.1.1 (p. 467).
45. See paragraph 10.3.1.2 (p. 472). The Preamble to the 1993 Chemical Weapons
Convention provides:
The States Parties to this Convention,
7. Recognizing the prohibition, embodied in the pertinent agreements
and relevant principles of international law, of the use of herbicides as a
method of warfare.
Have agreed as follows:
See also Krutzsch & Trapp, paragraph 10.3.1.2, note 31 (p. 472) at 8-9. However, Art. II, para. 2
defines "Toxic Chemicals" prohibited by the Convention in terms of their adverse impact on
"humans or animals" (see note 36 (p. 474)). In their commentary on Art. II, para. 2,
Krutzsch & Trapp, id., at 30, observe that:
The definition excludes, on the other hand, toxicity against plants. Herbicides will
not be regarded as chemical weapons if used with an intent to destroy plants. That
would even apply if the (secondary) effect of such use were the killing or harming of
people, for example by toxic side effects or by denial of food supplies. On the other
hand, herbicides would be covered if they were used in order to directly kill or harm
people through their toxicity.
46. Executive Order No. 11,850 permits such use under regulations applicable to their
domestic use. See paragraph 10.3.2.1.1, note 35 (p. 474). See also CJCSI 3100.07A (note 38
(p. 474)) at End. B.
47. JSCP Annex F.
48. Green 47-48; Oeter, Methods and Means of Combat, in Fleck, at 151-52. Compare Levie,
paragraph 10.3, note 20 (p. 466) at 342-45.
49. Biological weapons are items or materiel which project, disperse, or disseminate biological
agents, including arthropod vectors. They are inherently indiscriminate and uncontrollable and are
(continued...)
478 Commander's Handbook on the Law of Naval Operations
10.4.1 Treaty Obligations. The 1925 Gas Protocol prohibits the use in armed
conflict of biological weapons. The 1972 Convention on the Prohibition of
the Development, Production and Stockpiling of Bacteriological (Biological)
and Toxin Weapons and on their Destruction (the "1972 Biological Weapons
Convention") prohibits the production, testing, and stockpiling of biological
CI
weapons. The Convention obligates nations that are a party thereto not to
develop, produce, stockpile, or acquire biological agents or toxins "of types and
in quantities that have no justification for prophylactic, protective, or other
peaceful purposes," as well as "weapons, equipment or means of delivery
designed to use such agents or toxins for hostile purposes or in armed conflict."
All such materials were to be destroyed by 26 December 1975. The United
States, Russia, and most other NATO and former Warsaw Pact nations are
parties to both the 1925 Gas Protocol and the 1972 Biological Weapons
Convention.
10.4.2 United States Policy Regarding Biological Weapons. The United
States considers the prohibition against the use of biological weapons during
armed conflict to be part of customary international law and thereby binding on
all nations whether or not they are parties to the 1925 Gas Protocol or the 1972
49. (...continued)
universally condemned. Biological warfare /biological operations is the employment of biological
agents to produce casualties in man or animals and to damage plants or materiel. Biological operations
also include defense against such employment.
Any microorganism able to cause disease in man, animals, or plants, or cause the deterioration of
materiel, is capable of being used as a biological agent. However, due to difficulty in production,
storage and dissemination, and to limited effectiveness, a large number of diseases would have little
or no military utility. Even those capable of producing significant results would have a delayed
effect due to the incubation period, and the results would be dependent on a variety of factors
including weather, target characteristics, and countermeasures. Due to their delayed effectiveness,
biological agents do not lend themselves to tactical, but rather to strategic employment to achieve a
long-term decrease in an enemy's warmaking capability. Biological agents also lend themselves to
clandestine delivery.
Biological toxins are the toxic chemical by-products of biological organisms. They can be
synthesized chemically and share many of the characteristics of chemical agents; however, they are
considered to be biologicals under the 1972 Biological Weapons Convention. Toxins have
advantages over organisms in storage, delivery, and onset of effects. Some toxins are much more
toxic than the most powerful nerve agents.
Joint Pub. 1-02 passim. See also Rose, The Coming Explosion of Silent Weapons, Nav. War Coll.
Rev., Summer 1989, at 6-29.
50. The United States has accepted this obligation without reservation. Compare the U.S. first
use reservation on chemical weapons under the 1925 Gas Protocol, paragraph 10.3.1.1, note 24
(p. 467).
51. Washington, London & Moscow, 10 April 1972, 26 U.S.T. 583; T.I.A.S. 8062; 1015
U.N.T.S. 163; reprinted in AFP 110-20, at 4-71. There were 139 parties to the 1972 Biological
Weapons Convention as of 1 January 1997. Arms Control Reporter January 1997, at 701.A.4.
Nuclear, Chemical, and Biological Weapons 479
52
Biological Weapons Convention. The United States has, therefore, formally
renounced the use of biological weapons under any circumstance. Pursuant to
its treaty obligations, the United States has destroyed all its biological and toxin
weapons and restricts its research activities to development of defensive
capabilities.
52. AFP 1 10-31, para. 6-4b, at 6-4 and sources cited at paragraph 10.3.1.1, note 27 (p. 468).
53. 5 Weekly Comp. Pres. Doc. 1659-61 (25 Nov. 1969); Dep't St. Bull. 226-27 (1970).
54. 11 Weekly Comp. Pres. Doc. 73-74 (White House Press Release, Jan. 22, 1975); 1976
Digest of U.S. Practice in International Law 732-36. U.S. research activities are devoted primarily
to the development of vaccines.
CHAPTER 11
Noncombatant Persons
11.1 INTRODUCTION
As discussed in Chapter 5, the law of armed conflict is premised largely on
the distinction to be made between combatants and noncombatants.1
Noncombatants are those individuals who do not form a part of the armed forces
and who otherwise refrain from the commission of hostile acts. Noncombatants
also include those members of the armed forces who enjoy special protected
status, such as medical personnel and chaplains, or who have been rendered
incapable of combat by wounds, sickness, shipwreck, or capture. This chapter
reviews the categories of noncombatants and outlines the general rules of the law
of armed conflict designed to protect them from direct attack.
11.2 PROTECTED STATUS
The law of armed conflict prohibits making noncombatant persons the object
of intentional attack and requires that they be safeguarded against injury not
incidental to military operations directed against military objectives. When
1. See paragraph 5.3 and note 1 1 (p. 296). See also Ipsen, Combatants and Non-Combatants,
in Fleck at 65-104.
2. In this context, "hostile acts" include those actions described in the second subparagraph of
paragraph 1 1.3 (p. 484). (For nations bound thereby, GP I, art. 51(3), addresses this rule by granting
protection to civilians "unless and for such time as they take a direct part in hostilities" without
further definition. The United States supports this principle. The Sixth Annual American Red
Cross- Washington College of Law Conference on International Humanitarian Law: A Workshop
on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva
Conventions, 2 Am. U.J. Int'l L. & Policy 426 (1987) (remarks of U.S. Department of State
Deputy Legal Adviser Matheson). (See paragraph 5.4.2, note 34 (p. 303) regarding the U.S.
decision not to seek ratification of GP I.)
3. Incidental injury to or death of civilians is discussed in paragraph 8.1.2.1 (p. 404). A useful
summary of the rules governing capture of noncombatants (as that term is used in this chapter) may
be found in de Preux, Synopsis V: Capture, 1986 Int'l Rev. Red Cross 89, and of the obligations of
neutrals regarding noncombatants in de Preux, Synopsis VIII: Conventions and Neutral Powers,
1989 id. 125.
4. Medical personnel: GWS, art. 24; GWS-Sea, art. 36; wounded and sick: GWS, art. 12(1);
shipwrecked: GWS-Sea, art. 12(1) ("shall be respected and protected in all circumstances");
prisoners of war: GPW, art. 13 (humanely treated; protected); civilians: GP I, arts. 51(2) & 57(5)
("shall not be the object of attack"); Matheson remarks, note 2, at 423; Solf, Protection of Civilians
Against the Effects of Hostilities Under Customary International Law and Under Protocol I, 1 Am.
U.J. Int'l L. & Policy 117, 130 (1986).
5. GPW, arts. 19(3) & 23; GP I, arts. 48 & 57(2)(a).
482 Commander's Handbook on the Law of Naval Operations
circumstances permit, advance warning should be given of attacks that might
endanger noncombatants in the vicinity. Such warnings are not required,
however, if mission accomplishment requires the element of surprise or the
"7
security of the attacking forces would be otherwise compromised. On the other
hand, a party to an armed conflict has an affirmative duty to remove civilians under
its control as well as the wounded, sick, shipwrecked, and prisoners of war from
o
the vicinity of targets of likely enemy attack. Deliberate use of noncombatants to
shield military obj ectives from enemy attack is prohibited. Although the principle
of proportionality underlying the concept of collateral damage and incidental
injury continues to apply in such cases, the presence of noncombatants within or
adjacent to a legitimate target does not preclude attack of it.
11.3 THE CIVILIAN POPULATION
The civilian population as such, as well as individual civilians, may
not be the object of attack or of threats or acts of intentional
6. HR, art. 26; Hague IX, art. 6; GP I, art. 57(2)(c); Matheson remarks, note 2, at 427. See also
paragraph 8.5.2 (p. 427).
7. See paragraph 8.5.2 (p. 427).
8. GWS, art. 19 and GC, art. 18 (locate hospitals away from military objectives); GC, art. 28;
GP I, arts. 58(a) & (b).
This duty requires only actions that are feasible under the circumstances. For example, civilians
accompanying an armed force, such as journalists and media representatives, civilian governmental
employees and contractor employees, obviously cannot be separated from all military targets.
Similarly, civilian crewmembers on merchant vessels, trains and civil aircraft cannot be separated
from such objects which are often legitimate military objectives. Cities often surround
transportation centers. The urban population cannot be separated from docks, warehouses,
runways and similar military objectives within these cities.
An occupying power may evacuate an area if civilian protection or military reasons demand. See
Gasser, Protection of the Civilian Population, in Fleck at 544; Green at 255-56. Transfer outside of
occupied territory must be avoided if possible. GC, art. 24, and GP I, art. 78, contain special
restrictions on evacuation of children, especially from occupied territory.
9. GC, art. 28 (enemy aliens in national territory of a belligerent and civilians in occupied
territory); GP I, art. 51(7) (own civilians); GPW, art. 23(1); GP I, art. 12(4) (medical units);
Matheson remarks, note 2 (p. 481), at 426. See also CG, art. 34, which prohibits the taking of
hostages. During the Persian Gulf War, Iraq's taking of U.S. and other hostages, including civilians
forcibly deported from Kuwait, and their placement in or around military targets as a "human
shield," in violation of GC, arts. 28 & 34, constituted grave breaches under GC, art. 147. Title V
Report at 0-607, 08; Moore, Crisis in the Gulf 86, 87 (1992).
10. Solf, Protection of Civilians, note 4 (p. 481) at 131, correctly notes:
[W]hile a civilian may not lose his protection against individualized attack while
working in a munitions plant, he assumes the risk of collateral injury when he is in the
vicinity of the munitions plant, although he continues to retain full protection while
at home.
Cf. GPW, art. 23(1); GC, art. 28; GP I, arts. 51(7) & 12(4); notes 14 & 15 and accompanying text
(p. 484). Precautions to be taken in attack are discussed in Chapter 8.
Noncombatant Persons 483
11...
terrorization. The civilian population consists of all persons not serving in
the armed forces, militia, or paramilitary forces and not otherwise taking a direct
... 1 2
part in the hostilities. Women and children are entitled to special respect and
protection. Unlike military personnel (other than those in a specially protected
status such as medical personnel and the sick and wounded) who are always
subject to attack whether on duty or in a leave capacity, civilians, as a class, are
not to be the object of attack. However, civilians that are engaged in direct
11. 1923 Draft Hague Rules of Air Warfare, art. 22; GC, art. 33; common article 3; GP I, art.
51(2); GP II, arts. 4(2)(d) & 13(2); Matheson remarks, paragraph 11.1, note 2 (p. 481), at 426;
Green 220-233. The concept of terror has been explained as follows:
Any action which carries warfare to civilians is bound to create terror in some and
perhaps all. However, what the present article prohibits is only conduct which is
intended to terrorize civilians. Otherwise legal acts which cause incidental terror to
civilians (for example, the bombing of a munitions factory the work force of which is
civilian) are not within the prohibitions of the present article.
Levie, 1 The Code of International Armed Conflict 217-18 (1986). See also CDDH/215/ Rev.l;
XV Official Records 261, at para. 51; Levie, 3 Protection of Victims of War 158 (1980); Gasser,
Prohibition of Terrorist Acts in International Humanitarian Law, 1986 Int'l Rev. Red Cross 200.
Starvation as a method of warfare is discussed in paragraph 8.1.2, note 15 (p. 404).
12. GP I, art. 50. Cf. GPW, arts. 4A(4)-(5); GC, arts. 4 & 13. Under GP I, art. 51(3), civilians
taking a direct part in hostilities lose their protection against dangers arising from military
operations, but not their status as civilians. Bothe, Partsch & Solf 301.
War correspondents accredited by the armed forces which they accompany, although
civilians, are entitled to prisoner of war status on capture. GPW, art. 4A(4). Other journalists do not
have this protected status, although nations must treat them (and accredited war correspondents)
prior to capture as civilians provided the unaccredited journalists take no action adversely affecting
their status as civilians. The United States supports the principle in GP I, art. 79, that journalists
must be protected as civilians under the same conditions. Matheson remarks, paragraph 11.1, note
2 (p. 481), at 428. (Nations bound by GP I may issue identity cards to journalists on dangerous
professional missions in areas of armed conflict, art. 79 & Annex II.) See also, Green 233. Both
accredited war correspondents and other journalists act at their own risk if they operate too close to
military units engaged in or subject to attack. Gasser, The Protection of Journalists Engaged in
Dangerous Professional Missions: Law Applicable in Periods of Armed Conflict, 1983 Int'l Rev.
Red Cross 3.
13. The special respect and protection to which women and children in the power of a party to
the conflict (friend or foe) are entitled is detailed in GWS, art. 12(4); GWS-Sea, art. 12(4); GPW,
arts. 14(2), 25(4), 29(2), 88(2,3), 97(4) & 108(2); GC, art. 27(2), 85(4), 124(3) & 97(4) (women);
andGC, arts. 14(1,2), 17, 23, 24, 38(5), 50(1-5), 51(2), 68(4), 76(5), 89(5) & 132 (children); and for
parties thereto amplified in GP I, arts. 76-78, and GP II, arts. 4-6. The United States supports the
principles in GP I, arts. 76, 77, that women and children be the object of special respect and
protection, that women be protected against rape and indecent assault, and that all feasible measures
be taken in order that children under the age of fifteen do not take direct part in hostilities.
Matheson remarks, paragraph 11.1, note 2 (p. 481), at 428. See also de Preux, Synopsis III: Special
Protection of Women and Children, 1985 Int'l Rev. Red Cross 292; Krill, The Protection of
Women in International Humanitarian Law, 1985 id. 337; Singer, The Protection of Children
During Armed Conflict Situations, 1986 id. 133; Plattner, Protection of Children in International
Humanitarian Law, 1984 id. 140.
484 Commander's Handbook on the Law of Naval Operations
support of the enemy's war-fighting or war-sustaining effort are at risk of
incidental injury from attack on such activities.
Civilians who take a direct part in hostilities by taking up arms or otherwise
trying to kill, injure, or capture enemy persons or destroy enemy property lose
their immunity and may be attacked. Similarly, civilians serving as lookouts,
guards, or intelligence agents for military forces may be attacked. Direct
participation may also include civilians serving as guards, intelligence agents, or
lookouts on behalf of millitary forces. Direct participation in hostilities must be
judged on a case-by-case basis. Combatants in the field must make an honest
determination as to whether a particular civilian is or is not subject to deliberate
attack based on the person's behavior, location and attire, and other information
17
available at the time.
11.4 THE WOUNDED, SICK, AND SHIPWRECKED
Members of the armed forces incapable of participating in combat due to
injury or illness may not be the object of attack. Moreover, parties to the
14. The "direct support" envisaged includes direct support by civilians to those actually
participating in battle or directly supporting battle action, and military work done by civilians in the
midst of an ongoing engagement. Bothe, Partsch & Solf 302-304. Civilians not in a "direct
support" role also assume the risk of incidental injury as a result of attacks against legitimate military
objectives in the immediate vicinity, e.g., "their places of work or transport." Id.
15. GC, art. 5; GP I, arts. 45 & 51(3); FM 27-10, para. 81; Matheson remarks, paragraph 11.1,
note 2 (p. 481), at 426.
16. GWS, art. 12(1); GP I, art. 41(1). See generally ', Bothe &Janssen, Issues in the Protection of
the Wounded and Sick: The Implementation of International Humanitarian Law at the National
Level, 1986 Int'l Rev. Red Cross 189; Green 207-11; Rabus, Protection of the Wounded, Sick
and Shipwrecked, in Fleck at 293-99.
17. GWS, art. 15(1); GC, art. 16; GP I, art. 33(1); Matheson remarks, paragraph 11.1, note 2
(p. 481), at 424. This requirement also extends to the dead, and includes a requirement to prevent
despoiling of the dead. GWS, art. 15(1); GC, art. 16(2); GP I, art. 34(1). The United States also
supports the new principles in GP I, arts. 32 & 34, that families have a right to know the fate of their
relatives, and that as soon as circumstances permit, arrangement be made to facilitate access to grave
sites by relatives, to protect and maintain such sites permanently, and to facilitate the return of the
remains when requested. Matheson id., at 424. Further, the United States supports the principles in
GP I, art. 74, that nations facilitate in every possible way the reunion of families dispersed as a result
of armed conflicts and encourage the work of humanitarian organizations engaged in this task, and
the principle in article 73 that persons who were considered as refugees or stateless persons before
the beginning of hostilities nonetheless be protected persons under the GC. Matheson id., at 427.
See Vecsey, Co-operation between the Central Tracing Agency of the International Committee of
the Red Cross and National Red Cross and Red Crescent Society Tracing Services, 1988 Int'l
Rev. Red Cross 257.
18. GWS, art. 12(1); GP I, art. 41(1). See generally , Bothe &Janssen, Issues in the Protection of
the Wounded and Sick: The Implementation of International Humanitarian Law at the National
Level, 1986 Int'l Rev. Red Cross 189; Green 207-11; Rabus, Protection of the Wounded, Sick
and Shipwrecked, in Fleck at 293-99.
Noncombatant Persons 485
conflict must, after each engagement and without delay, take all possible measures
to search for and collect the wounded and sick on the field of battle, protect them
19
from harm, and ensure their care. When circumstances permit, an armistice or
cease-fire should be arranged to enable the wounded and sick to be located and
20
removed to safety and medical care. Wounded and sick personnel falling into
enemy hands must be treated humanely and cared for without adverse distinction
21
along with the enemy's own casualties. Priority in order of treatment may only
22
be justified by urgent medical considerations. The physical or mental well-being
of enemy wounded and sick personnel may not be unjustifiably endangered, nor
may they be subjected to any medical procedure not called for by their condition
2"!
or inconsistent with accepted medical standards.
Similarly, shipwrecked persons, whether military or civilian, may not be the
object of attack. Shipwrecked persons include those in peril at sea or in other
waters as a result of either the sinking, grounding, or other damage to a vessel in
which they are embarked, or of the downing or distress of an aircraft. It is
immaterial whether the peril was the result of enemy action or nonmilitary causes.
Following each naval engagement at sea, the belligerents are obligated to take all
19. GWS, art. 15(1); GC, art. 16; GP I, art. 33(1); Matheson remarks, paragraph 11.1, note 2
(p. 481), at 424. This requirement also extends to the dead, and includes a requirement to prevent
despoiling of the dead. GWS, art. 15(1); GC, art. 16(2); GP I, art. 34(1). The United States also
supports the new principles in GP I, arts. 32 & 34, that families have a right to know the fate of their
relatives, and that as soon as circumstances permit, arrangement be made to facilitate access to grave
sites by relatives, to protect and maintain such sites permanendy, and to facilitate the return of the
remains when requested. Matheson id., at 424. Further, the United States supports the principles in
GP I, art. 74, that nations facilitate in every possible way the reunion of families dispersed as a result
of armed conflicts and encourage the work of humanitarian organizations engaged in this task, and
the principle in article 73 that persons who were considered as refugees or stateless persons before
the beginning of hostilities nonetheless be protected persons under the GC. Matheson id., at 427.
See Vecsey, Co-operation between the Central Tracing Agency of the International Committee of
the Red Cross and National Red Cross and Red Crescent Society Tracing Services, 1988 Int'l
Rev. Red Cross 257.
20. GWS, art. 15(2); GWS-Sea, art. 18(2); GC, art. 17; GP I, art. 33(4).
21. GWS, art. 12(1-2); GP I, art. 10(2). This protection also extends to the shipwrecked.
GWS-Sea, art. 12(2).
22. GWS, art. 12(3); GP I, arts. 10(2), 15(3); Matheson remarks, paragraph 11.1, note 2
(p. 481), at 423. This protection applies to the shipwrecked. GWS-Sea, art. 12(3).
23. GWS, art. 12, as amplified by GP I, art. 11(1); Matheson remarks, paragraph 11.1, note 2
(p. 481), at 423. This protection also applies to the shipwrecked. GWS-Sea, art. 12.
24. HR, art. 23(c); GWS-Sea, art. 12(1); GP I, art. 41(1); TrialofEck, 1 War Crimes Trials 1, 1
Reps. U.N. Comm. 1 (1945) (The Peleus Trial); The Llandovery Castle Case, 16 Am. J. Int'l L. 708
(1922); Thejean Nicolet, F.E.I.M.T. Proc. 15,095-148, Judgment 1072; Mallison 139-43. See also
San Remo Manual, para. 47(j) and paragraph 8.3, note 86 (p. 419).
25. GWS-Sea, art. 12(1); GP I, art. 8(b). The shipwrecked may display the international code
signal of distress indicated by "NC" on their liferaft. This signal means "I am in distress and require
immediate assistance." International Convention for the Safety of Life at Sea, Annex B,
Regulation 31 (N over C); Eberlin, Protective Signs 60 (1983).
26. GWS-Sea, art. 12(1).
486 Commander's Handbook on the Law of Naval Operations
possible measures, consistent with the security of their forces, to search for and
rescue the shipwrecked.
Shipwrecked persons do not include combatant personnel engaged in
amphibious, underwater, or airborne attacks who are proceeding ashore, unless
they are clearly in distress and require assistance. In the latter case they may
qualify as shipwrecked persons only if they cease all active combat activity and
the enemy has an opportunity to recognize their condition of distress.
Shipwrecked combatants falling into enemy hands become prisoners of war.
11.5 MEDICAL PERSONNEL AND CHAPLAINS
Medical personnel, including medical and dental officers, technicians and
corpsmen, nurses, and medical service personnel, have special protected status
when engaged exclusively in medical duties and may not be attacked.
27. Hague X, art. 16; GWS-Sea, art. 18(1); GP I, art. 33(1). An engagement is not finished
until the warships involved are safe from attack. Frequently, it is operationally hazardous or
infeasible for a submarine to comply with this requirement. 2 Pictet 131, citing with approval Tucker
71-73. But if military circumstances permit, it is a war crime to fail to provide for the safety of
survivors, or to take affirmative actions to prevent survival, such as shooting at life rafts. See note 24
(p. 485) and paragraph 6.2.5, subparagraph 5 and note 63 (p. 349). See also Rabus, paragraph 1 1.4
note 18 (p. 484) at 297.
28. GP I, art. 42(3).
29. GP I, art. 42(2).
30. GWS-Sea, art. 16.
31. GWS, art. 24; GWS-Sea, art. 36. Medical personnel are therein defined as:
1. Medical personnel exclusively engaged in the search for, or the collection,
transport or treatment of the wounded or sick, or in the prevention of disease, and
staff exclusively engaged in the administration of medical units and establishments;
2. Members of the armed forces specially trained for employment, should the need arise,
as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the
collection, transport or treatment of the wounded and sick, if they are carrying out these
duties at the time when they come into contact with the enemy or fall into his hands;
3. Staff of National Red Cross Societies and of other Voluntary Aid Societies, duly
recognized and authorized by their Governments, employed as in subparagraph 1
above, provided the staff of such societies are subject to military laws and regulations;
4. Medical and hospital personnel of hospital ships and their crews.
The United States supports the principle in GP I, art. 15, that civilian medical and religious
personnel be respected and protected and not be made the objects of attack. Matheson remarks,
paragraph 11.1, note 2 (p. 481), at 423. See also Rabus, paragraph 11.4, note 18 (p. 484) at 300-19;
Green 212-19.
See generally, Pictet, The Medical Profession and International Humanitarian Law, 1985 Int'l Rev.
Red Cross 191; Bothe & Janssen, Issues in the Protection of the Wounded and Sick, 1986 id.
191-99; and Mine, The Geneva Conventions and Medical Personnel in the Field, 1987 id. 180.
The protections afforded hospitals and hospital ships are discussed in paragraph 8.5. 1 .4 (p. 424) and
paragraph 8.2.3, note 62 (p. 413), respectively.
Noncombatant Persons 487
Possession of small arms for self-protection, for the protection of the wounded
and sick, and for protection from marauders and others violating the law of
32
armed conflict does not disqualify medical personnel from protected status.
Medical personnel may not use such arms against enemy forces acting in
33
conformity with the law of armed conflict. Chaplains attached to the armed
forces are entitled to respect and protection. Medical personnel and chaplains
should display the distinctive emblem of the red cross or red crescent when
3S
engaged in their respective medical and religious activities. Failure to wear the
32. GWS, art. 22(1); GP I, arts. 13(2) (a) & 65(3). Cf. GP I, art. 65(3), defining the arms civil
defense personnel may use as "light individual weapons." There was no agreement at the
Diplomatic Conference which negotiated GP I as to what that term meant, although a number of
military experts agreed with this British proposal: "The term 'light individual weapons' excludes
fragmentation grenades and similar devices, as well as weapons which cannot fully be handled or
fired by a single individual and those basically intended for non-human targets."
CDDH/406/Rev. 1, paras. 56 & 58; 13 Official Records 372; Bothe, Partsch & Solf 414-15;
ICRC, Commentary (GP I), para. 2626, at 776 ("a valuable contribution to the definition").
Rabus, paragraph 11.4, note 18 (p. 484) at 311, states that:
Medical personnel may be equipped with small-arms weapons for the protection of
the wounded, sick and shipwrecked in their charge and for their own protection ....
Small-arms are pistols, sub-machine guns and rifles.
33. 1 Pictet 203.
34. GWS, art. 24; G WS-Sea, art. 36. To be entitled to protection, chaplains, unlike medical
personnel, need not be exclusively or even partially assigned to the wounded and sick. However,
U.S. Navy Regulations, 1990, art. 1063, requires that "while assigned to a combat area during a
period of armed conflict" they be engaged exclusively in religious duties. Chaplains must abstain
from all hostile acts. Further, to be accorded immunity they must be attached to the armed forces
and not be mere volunteers. The government thus decides who is a chaplain for this purpose. The
Geneva Conventions do not otherwise attempt to define who is a chaplain; GWS-Sea, art. 36 uses
the term "religious personnel" in lieu of "chaplains". GP I, art. 8(d), speaks of chaplains by way of
example only, in expanding the units to which "religious personnel" may be attached. Chaplains
lose their special status if they commit acts harmful to the enemy outside their humanitarian
functions. Although not forbidden by international law, U.S. Navy chaplains are forbidden to
carry arms by SECNAVINST 1730.7A, Subj: Religious Ministries in the Navy, encl. 1, para. le.
Unlike the protected "staff' of medical units, enlisted religious program specialists have no such
special status since they are not chaplains. See generally, Rabus, Religious Personnel, in Fleck at
369-75.
35. GWS, arts. 39 & 40; GWS-Sea, arts. 41 & 42. Personnel exclusively engaged in medical
duties, along with personnel temporarily assigned to medical duties, may wear an arm band on the
left arm bearing a red cross or red crescent. The arm band in actual practice has not been worn with
any regularity, and the U.S. Navy Bureau of Medicine and Surgery has no regulation regarding its
wearing. Experience has shown that the "regular" arm band is not recognizable beyond 60 meters,
de Mulinen, Signalling and Identification of Medical Personnel and Material, 1972 Int'l Rev. Red
Cross 479, 483. Accordingly, GP I, Annex I, arts. 3, 4, provide that the distinctive emblem shall be as
large as appropriate under the circumstances, and worn so as to be visible from as many directions and
from as far away as possible, such as large emblems worn on the chest and back. For nations bound by
GP I, this rule effectively supersedes the narrow requirements set forth above. That rule should be
followed whenever tactically appropriate. See Cauderay, Visibility of the Distinctive Emblem on
Medical Establishments, Units, and Transports, 1990 Int'l Rev. Red Cross 295.
(continued...)
488 Commander's Handbook on the Law of Naval Operations
distinctive emblem does not, by itself, justify attacking a medical person or
chaplain, recognized as such. Medical personnel and chaplains falling into
"1*7
enemy hands do not become prisoners of war. Unless their retention by the
enemy is required to provide for the medical or religious needs of prisoners of
war, medical personnel and chaplains must be repatriated at the earliest
38
opportunity.
11.6 PARACHUTISTS
Parachutists descending from disabled aircraft may not be attacked while in
the air unless they engage in combatant acts while descending. Upon reaching
the ground, such parachutists must be provided an opportunity to surrender.
35. (...continued)
Personnel exclusively engaged in medical duties should, in time of armed conflict, carry a special
identity card (such as the Geneva Conventions Identity Card DD Form 1934) bearing the
distinctive emblem (red cross or red crescent) to establish their status in the event of capture. GWS,
art. 40 & Annex II; G WS-Sea, art. 42 & Annex. For additional guidance regarding the identity
card, see Naval Military Personnel Manual (MILPERSMAN) 4620100.
Chaplains are entitled to wear the arm band. Chaplains in time of armed conflict should carry a
special identity card bearing the red cross (such as DD Form 1934) or equivalent emblem. This
identification card is identical to that carried by medical personnel. For additional guidance see
MILPERSMAN 4620100.
36. 1 Pictet 307. See paragraph 11.9.6 (p. 499).
37. GPW, art. 33(1); GWS, art. 28(2); GWS-Sea, art. 37. See DOD Directive 1300.7, Subj:
Training and Education Measures Necessary to Support the Code of Conduct, for a discussion of
U.S. Code of Conduct implications for medical personnel and chaplains who fall into enemy
hands. This requirement of GPW, GWS and GWS-Sea that medical personnel be repatriated
immediately unless their retention is necessary in order to provide for the medical needs of
prisoners of war, does not apply to captured personnel who are specially trained for employment,
should the need arise, as hospital orderlies, auxiliary stretcher-bearers, etc., but who are not
"exclusively" so engaged. This is true even if they were engaged in such duties at the time of
capture. They are, of course, to be "respected and protected" while so engaged and are accorded
prisoner of war status upon capture. GWS, art. 25. Captured personnel not attached to the medical
service of their armed forces but who are physicians, surgeons, nurses or medical orderlies, may be
required by the enemy to "exercise their medical functions in the interests of prisoners of war."
Such personnel are, however, prisoners of war and need not be repatriated when their medical
capabilities are no longer required for the support of other prisoners. GPW, art. 32.
38. GWS, art. 28(1); GWS-Sea, art. 37; GPW, arts. 4C & 33. See ICRC Model Agreement relating
to the Retention of Medical Personnel and Chaplains, September 1955, reprinted in Levie, Documents at
668. Based upon past experience, in future conflicts retention will be the general practice.
39. GP I, arts. 42(1) & 42(2), codifying the customary rule set out in the 1923 Draft Hague
Rules of Air Warfare, art. 20; Spaight 152, 155-64; AFP 110-31, para. 4-2e; Bothe, Partsch & Solf
226; Matheson remarks, note 2 (p. 481) at 425. Firing a weapon is clearly a combatant act.
40. A downed airman, who aware of the presence of enemy armed forces, attempts to evade
capture, will probably be considered as engaging in a hostile act and, therefore, subject to attack
from the ground or from the air. However, mere movement in the direction of one's own lines
does not, by itself, constitute an act of hostilities. Airmen remaining within a disabled aircraft for a
forced landing are not within the purview of paragraph 11.6. See Green 179.
Noncombatant Persons 489
Airborne troops, special warfare infiltrators, and intelligence agents parachuting
into combat areas or behind enemy lines are not so protected and may be
attacked in the air as well as on the ground. Such personnel may not be
attacked, however, if they clearly indicate in a timely manner their intention to
surrender.
11.7 PRISONERS OF WAR43
Combatants cease to be subject to attack when they have individually laid
down their arms to surrender, when they are no longer capable of resistance, or
when the unit in which they are serving or embarked has surrendered or been
captured. However, the law of armed conflict does not precisely define when
surrender takes effect or how it may be accomplished in practical terms.
Surrender involves an offer by the surrendering party (a unit or individual
combatant) and an ability to accept on the part of the opponent. The latter may
45
not refuse an offer of surrender when communicated, but that communication
must be made at a time when it can be received and properly acted upon — an
attempt to surrender in the midst of a hard-fought battle is neither easily
communicated nor received. The issue is one of reasonableness.
Combatants that have surrendered or otherwise fallen into enemy hands are
entitled to prisoner-of-war status and, as such, must be treated humanely and
41. GP I, art. 42(3). These persons may be attacked whether or not the airplane from which
they are descending is in distress. See also Bothe, Partsch & Solf 227.
42. HR, art. 23(c); GP I, arts. 41(1) & 41(2)(b).
43. See generally Levie, Prisoners of War, and Levie, Documents. See also Green 188-206;
Fisher, Protection of Prisoners of War, in Fleck at 701-33.
44. HR, art. 23(c); GP I, art. 41. Such persons are hors de combat and must be permitted to
surrender (that is, quarter must be granted). The walking wounded leaving the battlefield also may
not be attacked.
45. It is forbidden to declare that no quarter will be given or that no prisoners will be taken.
HR, art. 23(d); GP I, art. 40. Such an order:
tends to stiffen the adversary's will to resist and is therefore counterproductive to the
achievement of the legitimate objectives of a military operation. Moreover, it incites
the adversary to adopt a similar policy thus causing the conflict to degenerate into
unrestrained savagery.
Bothe, Partsch & Solf 217. Although it is not prohibited to issue such an order as a reprisal, this
form of reprisal offers little military advantage. Bothe, Partsch & Solf 218, 221-22. Reprisals are
discussed in greater detail in paragraphs 6.2.3 to 6.2.3.3 and accompanying notes (pp. 335 to 341).
See also paragraph 11.7.1, note 58 (p. 492).
46. For an excellent discussion on surrender see Robertson, The Obligation to Accept
Surrender, Nav. War Coll. Rev., Spring 1993, at 103. See also San Remo Manual, para. 43; Title V
Report, at 0-629 to 632 (discussing the concept of surrender in the context of the Coalition's
breaching of the Iraqi defensive line and the Coalition attack on Iraqi troops retreating from
Kuwait City).
490 Commander's Handbook on the Law of Naval Operations
protected against violence, intimidation, insult, and public curiosity. When
prisoners of war are given medical treatment, no distinction among them will be
48
based on any grounds other than medical ones. (See paragraph 11.4 for further
discussion of the medical treatment to be accorded captured enemy wounded
and sick personnel.) Prisoners of war may be interrogated upon capture but are
required to disclose only their name, rank, date of birth, and military serial
49 50
number. Torture, threats, or other coercive acts are prohibited.
47. GPW, art. 13. In the U.S. armed forces, the control and care of P Ws, inhabitants of
occupied territory and civilian internees is a primary function of the U.S. Army which has issued
detailed regulations on the matter. However, this paragraph provides general guidance for Navy,
Marine Corps and Coast Guard personnel who may take custody of or control enemy personnel in
the absence of, or before turning them over to, Army personnel. For further guidance, see
SECNAVINST 3461.3, Subj: Program for Prisoners of War and Other Detainees; OPNAVINST
3120.32 (series), Subj: Standard Organization and Regulations of the U.S. Navy, para. 650.3
(POWBill); FMFRP 4-26, Subj: Enemy Prisoners of War and Civilian Internees; FM 19-4, Subj:
Military Police, Battlefield Circulation Control, Area Security, and Prisoners of War; and AR
190-8 (Ch. 1), Enemy Prisoners of War: Administration, Employment, and Compensation.
The rights and obligations of PWs are detailed in GPW. The Convention's underlying philosophy
is that PWs should not be punished merely for having engaged in armed conflict, and that their
captivity should be as humane as possible. Although difficulties have been encountered in practice,
GPW is the universally accepted standard for treatment of PWs; virtually all nations are parties to it
and it is now regarded as reflecting customary law. See also de Preux, Synopsis VII: Combatants and
Prisoner-of-War Status, 1989 Int'l Rev. Red Cross 47-50, and Dutli, Captured Child
Combatants, 1990 Int'l Rev. Red Cross 421.
For guidance on the conduct of U.S. military personnel taken prisoner by the enemy, see The
Code of Conduct at Annex All-1 (p. 11-25); DOD Directive 1300.7, Subj: Training and
Education Measures Necessary to Support the Code of Conduct; OPNAVINST 1000.24 (series),
Subj: Code of Conduct Training; and OPNAVINST C3305.1 (series), Subj: Survival, Evasion,
Resistance and Escape (SERE) Program, Doctrine and Policy Concerning.
48. GPW, art. 16.
49. GPW, art. 17(1). These items are contained on each U.S. armed forces identification card,
DD Form 2, which also serves as the Geneva Conventions Identification Card. The permissible
sanction for a PW failing to furnish basic required information is to treat that PW as the equivalent
of an E-l and not afford the PW any privileges that might be due because of military rank or status.
GPW, art. 17(2).
This rule does not prohibit a Detaining Power from interrogating a PW on subjects going far
beyond name, rank and service number. While the range of questioning is completely unlimited,
the means of questioning are limited. Levie, 1 The Code of International Armed Conflict 310. The
PW is, of course, not bound to respond beyond name, rank, etc. Indeed, the Code of Conduct,
art. V, requires that U.S. military personnel taken prisoner by the enemy evade answering further
questions to the utmost of their ability. See Annex All-1 (p. 502).
50. GPW, art. 17(4). There are a variety of practical as well as humane reasons to support this
prohibition. The truth and accuracy of information obtained through coercion, torture or threats
is always suspect. Humane treatment of PWs encourages other enemy personnel to surrender or
defect, and permits the use of fewer resources to detain PWs and obtain reliable information.
Disclosure that PWs have been tortured will almost always produce adverse public opinion in both
belligerent and neutral nations. See, Stockdale & Stockdale, In Love and War 295-325, 361-71
(1984). Moreover, maltreatment of PWs by one side may lead the other side to reciprocate.
Noncombatant Persons 491
Persons entitled to prisoner-of-war status upon capture include members of
the regular armed forces, the militia and volunteer units fighting with the regular
51
armed forces, and civilians accompanying the armed forces. Militia,
volunteers, guerrillas, and other partisans not fighting in association with the
52
regular armed forces qualify for prisoner-of-war status upon capture, provided
they are commanded by a person responsible for their conduct, are uniformed or
bear a fixed distinctive sign recognizable at a distance, carry their arms openly,
and conduct their operations in accordance with the law of armed conflict.
51. HR, art. 3; GPW, arts. 4A(1) & 4A(4). The United States supports the principle that
persons entitled to combatant status be treated as prisoners of war in accordance with GPW.
Matheson remarks, paragraph 11.1, note 2 (p. 481), at 425.
Persons who accompany the armed forces without actually being members thereof include
"civilian members of miliary aircraft crews, war correspondents, supply contractors, members of
labor units or of services responsible for the welfare of the armed forces, provided that they have
received authorization from the armed forces which they accompany, who shall provide them for
that purpose with an identity card." GPW, art. 4A(4). BUPERSINST 1750.10, Subj:
Identification Cards for Members of the Uniformed Services, Their Family Members and Other
Eligible Persons governs the issuance of identity cards for civilians accompanying the armed forces.
Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews
of civil aircraft of the parties to the conflict, who do not benefit by more favorable treatment under
any other provisions of international law, and members of regular armed forces who profess
allegiance to a government or an authority not recognized by the Detaining Power, are also
entitled to PW status upon capture. GPW, arts. 4A(5) & 4A(3).
The officers and crews of captured or destroyed enemy warships and military aircraft (including
naval auxiliaries) should be made PWs. See paragraph 8.2.2.1 (p. 408) regarding the treatment of
officers, crew and passengers of captured enemy merchant vessels and civil aircraft. See paragraph
7.10.2 (p. 398) regarding treatment of officers, crew and passengers of captured neutral merchant
vessels and civil aircraft.
Any wounded, sick or shipwrecked found on board a hospital ship or neutral merchant vessel may
be taken on board the searching warship providing they are in a fit state to be moved and the
warship can provide adequate medical facilities. If they are of enemy nationality, they become
PWs. See also paragraph 8.2.3, note 62 (p. 413). This situation may arise when a warship exercises
its right to search any hospital ship or neutral merchant vessel it meets on the high seas. (See
paragraph 7.6 (p. 387) regarding visit and search generally.)
52. Members of a levee en masse, i.e., inhabitants of a non-occupied territory who, on the
approach of the enemy, spontaneously take up arms to resist the invading forces without having
had time to form themselves into regular armed units are also entitled to PW status upon capture,
provided they carry arms openly and respect the laws and customs of war. GPW, art. 4A(6).
53. Declaration of Brussels art. 9; HR, art. 1; GPW 1929, art. 1; GPW, art. 4A(2). GP I, art.
44(3), would significantly diminish these requirements for irregulars by requiring them to carry
their arms openly only "during each military engagement and during such time as they are visible
to the enemy while engaged in a military deployment preceding the launching of an attack."
Perhaps more than any other provision, this proposed change is the most militarily objectionable to
the United States because of the increased risk to the civilian population within which such
irregulars often attempt to hide. U.S. Secretary of State Letter of Submittal, 13 December 1986, 26
Int'lLeg. Mat'ls 564; Feith, The National Interest, Fall 1985, at 43-47; Sofaer, Foreign Affairs,
(continued...)
492 Commander's Handbook on the Law of Naval Operations
Should a question arise regarding a captive's entitlement to prisoner-of-war
status, that individual should be accorded prisoner-of-war treatment until a
competent tribunal convened by the captor determines the status to which that
individual is properly entided. Individuals captured as spies or as illegal
combatants have the right to assert their claim of entitlement to prisoner-of-war
status before a judicial tribunal and to have the question adjudicated. Such
persons have a right to be fairly tried for violations of the law of armed conflict
and may not be summarily executed.
11.7.1 Trial and Punishment. Prisoners of war may not be punished for
hostile acts directed against opposing forces prior to capture, unless those acts
constituted violations of the law of armed conflict. Prisoners of war prosecuted
for war crimes committed prior to or after capture are entitled to be tried by the
same courts as try the captor's own forces and are to be accorded the same
procedural rights.58 At a minimum, these rights must include the assistance of
lawyer counsel, an interpreter, and a fellow prisoner.
53. (...continued)
Summer 1986, at 914-15; Roberts, 26 Va. J. Int'l L. 128-34; Levie, 1 The Code of International
Armed Conflict 300-01; The Sixth Annual American Red Cross- Washington College of Law
Conference on International Humanitarian Law: A Workshop on Customary International Law
and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. Int'l L. & Policy
(1987) (remarks of U.S. Department of State Legal Adviser Sofaer) at 463 & 466-67. Some nations
have ratified GP I on the understanding that this exception would apply only in occupied territory
(Belgium, Canada, Italy, New Zealand, South Korea, Spain, United Kingdom on signature) or in
wars of national liberation covered by GP I, art. 1(4) (Belgium, Canada, New Zealand, South
Korea, United Kingdom on signature), and that "deployment" means any individual or collective
movement towards a position from which an attack is to be launched (Belgium, Canada, Italy,
Netherlands, New Zealand, South Korea, Spain, United Kingdom on signature). Some of these
nations have also declared that "visible to the adversary" includes visible with the aid of any form of
surveillance, electronic or otherwise, available to keep a member of the armed forces of the
adversary under observation (New Zealand). The negotiating history on these points is analyzed in
Bothe, Partsch & Solf 251-55 and ICRC, Commentary (GP I) 529-36.
54. GPW, art. 5(2); GP I, art. 45(1); Matheson remarks, paragraph 11.1, note 2 (p. 481), at 425.
For instances of its application, see Levie, Priosners of War 55-57; Levie, Documents 694, 722,
732, 737, 757 & 771; Green 109.
55. GP I, arts. 45(3), 75(3) & 75(7); Matheson remarks, paragrph 11.1, note 2 (p. 481), at
425-26. See also the discussion on spies at paragraph 12.8 (p. 515).
56. GP I, art. 75(4). See also paragraph 12.7.1 (p. 515) (illegal combatants) and paragraph 12.8.1
(p. 516) (PWs).
57. See paragraph 6.2.5.1 (p. 350) regarding war crime trials during hostilities. See also Levie,
Criminality in the Law of War, in 1 International Criminal Law (Bassiouni ed., 1986), reprinted in
Schmitt & Green at chap. 11.
58. GPW, art. 84. Such trials may be in military or civilian courts. 3 Pictet 412; Levie,!
Documents 372.
59. GPW, art. 105, which details these and other rights, including the right to call witnesses.
Noncombatant Persons 493
Although prisoners of war may be subjected to disciplinary action for minor
offenses committed during captivity, punishment may not exceed 30 days
confinement. Prisoners of war may not be subjected to collective punishment
nor may reprisal action be taken against them.
11.7.2 Labor. Enlisted prisoners of war may be required to engage in labor
having no military character or purpose.62 Noncommissioned officers may be
required to perform only supervisory work.63 Officers may not be required to
i 64 j ~i
work.
11.7.3 Escape. Prisoners of war may not be punished for acts committed in
attempting to escape, unless they cause death or injury to someone in the process.
Disciplinary punishment may, however, be imposed upon them for the escape
attempt. Prisoners of war who make good their escape by rejoining friendly
forces or leaving enemy controlled territory, may not be subjected to such
60. GPW, arts. 89 & 90. This limitation of course applies only to "minor offenses "
61. GPW, arts. 26(6), 87(3) & 13(3).
62. GPW, art. 50; Levie, Prisoners of War 225-37. Prisoners of war may not be compelled to
remove mines or similar devices. GPW, art. 52(3); Levie, id., 238-40; Levie, 1 The Code of
International Armed Conflict 356-57.
In the Falklands/Malvinas conflict, Argentine PWs, specialized in engineering,
voluntarily took part in operations under the responsibility of British officers to mark
the outer limit of minefields. ... On visiting these prisoners, the ICRC made sure
that they were doing this marking work without compulsion. However, and
although there was no compulsion, one incident associated with the dangerous
nature of these operations did occur after which the British no longer requested the
voluntary assistance of the Argentine prisoners of war.
Junod, Protection of the Victims of Armed Conflict: Falklands-Malvinas Islands (1982):
J International Humanitarian Law and Humanitarian Action 30 (1984). See also London Times 2
(June 1982, at 1; id., 3June 1982, at 1; U.N. Docs. S/15176, 7June 1982, and S/15182, 8June 1982
(Argentine letters of complaint); U.N. Doc. S/15198, 11 June 1982 (British response)
63. GPW, art. 49(2).
64. GPW, art. 49(3). Officers may, however, volunteer to do so. "It has been found that the
physical and mental health, and morale, of prisoners of war who are not given work to occupy their
pme (which in any event passes all too slowly) steadily deteriorate. In addition they are much more
jiusceptible to being led into disruptive actions, such as mutinies, when their time is not fully
xcupied." Levie, 1 The Code of International Armed Conflict 351; Levie, The Employment of
Prisoners of War, 57 Am. J. Int'l L. 318 (1963) reprinted in Schmitt & Green at chap. 3.
65. GPW, arts. 92 & 93. Art. Ill of the Code of Conduct (Annex All-1 (p. 502)) imposes a
luty on all U.S. PWs to escape and to aid others to escape. Persons guarding PWs may use weapons
J gainst PWs escaping or attempting to escape only as an extreme measure and must always precede
jheir use by giving warning appropriate to the circumstances. GPW, art. 42. Unless he or she
injures someone in the process, a PW cannot be awarded more than the disciplinary punishment
j.oted in paragraph 11.7.1 (p. 492) for trying to escape or helping others to escape.
494 Commander's Handbook on the Law of Naval Operations
disciplinary punishment if recaptured. However, they remain subject to
punishment for causing death or injury in the course of their previous escape.
11.7.4 Temporary Detention of Prisoners of War, Civilian Internees,
and Other Detained Persons Aboard Naval Vessels. International treaty
law expressly prohibits "internment" of prisoners of war other than in premises
on land, but does not address temporary stay on board vessels. U.S. policy
permits detention of prisoners of war, civilian internees, and detained persons on
naval vessels as follows:
1 . When picked up at sea, they may be temporarily held on board as operational
needs dictate, pending a reasonable opportunity to transfer them to a shore facility
or to another vessel for evacuation to a shore facility.
2. They may be temporarily held on board naval vessels while being transported
between land facilities.
3. They may be temporarily held on board naval vessels if such detention would
appreciably improve their safety or health prospects.
Detention on board vessels must be truly temporary, limited to the minimum
period necessary to evacuate such persons from the combat zone or to avoid
significant harm such persons would face if detained on land. Use of
66. Declaration of Brussels, art. 28; GPW, art. 91.
67. GPW, art. 22(1). This provision was made explicit in GPW, probably in response to the
use of ships to intern prisoners of war during World War II. The practice had previously been
prevalent especially during the Napoleonic Wars. ICRC, 1 Report on its Activities During the
Second World War 248 (1948); Levie, Prisoners of War 121 & n.84; Levie, 1 The Code of;
International Armed Conflict 318. Cartel vessels are discussed in paragraph 8.2.3 and note 61
(pp. 412 & 413).
68. This need was acutely present at the end of the 1982 Falklands/Malvinas Conflict when
13,000 Argentine soldiers surrendered, winter was fast approaching, and the tent shelters Britain
had sent were lost in the sinking of the ATLANTIC CONVEYOR. Middlebrook, Task Force:
The Falklands War, 1982, at 247, 381, 385 (rev. ed. 1987).
69. AR 190-8, paragraph 11.7, note 47 (p. 490).
70. PWs must be evacuated, as soon as possible after capture, away from the combat zone to^
safe camps. While awaiting evacuation from a fighting zone, PWs must not be unnecessarily;
exposed to danger. Evacuation must be effected humanely and under conditions similar to those
used to evacuate the capturing force. GPW, arts. 19-20. In small unit operations such as
commando raids, long range reconnaissance patrols and airborne operations, it is frequently
impracticable to evacuate PWs promptly from the combat zone. Bothe, Partsch & Solf 224. PWs
may not be put to death even if their presence retards movement or diminishes operational
effectiveness. FM 27-10, para. 85, at 35. Rather, such PWs may be disarmed and released at some,
appropriate time taking all feasible precautions for their safety. GP I, art. 41(3). Those precautions
are only those practicable in light of the combat situation and all other circumstances prevailing at
the time. There is, of course, no requirement for the captors to render themselves ineffective in!
providing for the PWs' safety after their release.
(continued..., i
Noncombatant Persons 495
immobilized vessels for temporary detention of prisoners of war, civilian
internees, or detained persons is not authorized without NCA approval.
11.8 INTERNED PERSONS
Enemy civilians falling under the control of a belligerent may be interned if
79
security considerations make it absolutely necessary to do so. " Civilians
sentenced for offenses committed in occupied territory may also be ordered
into internment in lieu of punishment. Enemy civilians may not be interned
as hostages. Interned persons may not be removed from the occupied
territory in which they reside except as their own security or imperative
military considerations may require. All interned persons must be treated
70. (...continued)
Within the limits imposed by available resources and without endangering its own forces, the
detaining power must provide sufficient free food, clothing, shelter and medical care for PWs to
maintain good health. GPW, arts. 15 & 25-28.
Arms, military documents and military property may be confiscated. PWs must be allowed to keep
all personal property, identification, military articles issued for personal protection from the
elements, and uniforms, badges of rank and decorations. For security reasons the detaining power
may limit the amount of currency and other articles of value in each PWs possession. GPW, art.
18.
71. AR 190-8, paragraph 11.7, note 47 (p. 490).
12. They may also be assigned residence. GC, arts. 42(1) & 78. In the U.S. armed forces,
responsibility for handling internees is generally a function of the Army. See FM 19-40, Enemy
Prisoners of War and Civilian Internees; Gasser, Protection of the Civilian Population, in Fleck at
288-96.
73. GC, art. 68(1). The general penal laws and regulations of the occupying power applicable
to all citizens of the occupied territory or to all citizens of the territory of a party to the conflict
apply to individuals after their internment. An internee may be subjected to judicial punishment
only for a violation of these substantive laws. Internees may receive only disciplinary punishments
for acts which are punishable when committed solely by them, but which are not punishable when
committed by persons who are not internees. The punishments for such acts are severely curtailed;
no internee can be fined more than 50% of his pay for one month, given fatigue duties exceeding
two hours daily for one month, or imprisoned for more than one month. Such disciplinary
punishment may only be ordered by the commander of the place of internment, or by one to
whom the commander has delegated his disciplinary powers. The disciplinary sanctions allowed
against internees are the same as those against PWs. GC, arts. 117-26. See also Green 220-23.
74. GC, art. 34; 4 Pictet 229-31. Cf. The Hostages Case, U.S. v. Wilhelm List et al.,\\ TWC
1230 (1948). For a discussion of Iraqi violation of this prohibition during the Persian Gulf War see
Title V, Report at 0-607; Moore, Crisis in the Gulf 86-88 (1992). See also paragraph 11.2 and
note 8 (pp. 481 & 482).
75. GC, art. 49(2); 4 Pictet 278-83. This prohibition results from the experiences of World
War II when:
[T]here were many instances of individual and mass forcible transfers or deportations
of the inhabitants of occupied territories by the Occupying Power, frequently under
(continued...)
496 Commander's Handbook on the Law of Naval Operations
humanely and may not be subjected to reprisal action or collective
punishment.
11.9 PROTECTIVE SIGNS AND SYMBOLS
11.9.1 The Red Cross and Red Crescent. A red cross on a white field (Figure
1 1-la) is the internationally accepted symbol of protected medical and religious
persons and activities. Moslem countries utilize a red crescent on a white field for
77
the same purpose (Figure 11 -lb). A red Hon and sun on a white field, once
75. (...continued)
horrendous conditions and usually accomplished solely because the Occupying
Power wanted additional manpower for labor in other areas (perhaps in armament
factories in its home territories or, just as important, as agricultural workers), or
because it desired to make room for the movement of its own nationals into the
occupied territory.
Levie, 2 The Code of International Armed Conflict 720. GP I, art. 78, details restrictions on the
evacuation of children applicable to parties to GP I. The United States supports the principle in
article 78 that no nation arrange the evacuation of children except for temporary evacuation where
compelling reasons of the health or medical treatment of the children or, except in occupied
territory, their safety so require. Matheson remarks, paragraph 11.1, note 2 (p. 481), at 428. The
complex body of law that may be applicable in the variety of situations involving the evacuation of
children is carefully explained in ICRC, Commentary (GP I) 908-15.
Whether interned in occupied territory or in territory of a party to the conflict, an individual's
status as an internee during hostilities is subject to periodic review at least every six months in
domestic territory, and if possible, every six months in occupied territory. GC, arts. 43 & 72(2). If
occupation is terminated by the withdrawal of the occupying power before the close of hostilities,
such power may not forcibly transfer internees out of the former occupied territory. GC, art. 49(1).
Since the existence of hostilities is the main cause for internment, internment should cease when
hostilities cease. GC, art. 133(1).
76. GC, arts. 32 & 33. Professor Levie cites this extreme example of illegal imposition of
collective punishment:
The execution of 190 male residents, the deportation of the women, the dispersion
of the children, and the razing of the town of Lidice, in Czechoslovakia, on 10 June
1942, because of the assassination of the Nazi gauleiter Reinhard Heydrich ... by
Czech resistance fighters parachuted in from Great Britain.
Levie, 1 The Code of International Armed Conflict 444. See Calvocoressi & Wint, Total War 267
(1972); Asprey, War in the Shadows: The Guerrilla in History 421 (1975); and sources cited
therein.
77. HR, art. 23(f); GWS, art. 38; GWS-Sea, art. 41; GC, art. 18. The red cross on a white
ground was first adopted in the Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field, Geneva, 22 August 1864, 22 Stat. 940; 55 BFSP 43; reprinted in
Schindler & Toman 213, at art. 7, reversing the Swiss Federal colors as a compliment to
Switzerland. The strengths and weaknesses of the emblems are discussed in a series of articles
appearing in 1989 Int'l Rev. Red Cross 405-64, and Cauderay, Visibility of the Distinctive
Emblem on Medical Establishments, Units and Transports, 1990 Int'l Rev. Red Cross 295.
Noncombatant Persons 497
78
employed by Iran, is no longer used. Israel employs a red six-pointed star,
which it reserved the right to use when it ratified the 1949 Geneva Conventions
79
(Figure 11- lc). The United States has not agreed that it is a protected symbol. '
Nevertheless, all medical and religious persons or objects recognized as being so
marked are to be treated with care and protection.
11.9.2 Other Protective Symbols. Other protective symbols specially
recognized by international law include an oblique red band on a white
background to designate hospital zones and safe havens for noncombatants
(Figure 11-ld). Prisoner-of-war camps are marked by the letters "PW" or
82
"PG" (Figure 11-le); civilian internment camps with the letters "IC" (Figure
78. As from 4 July 1980. 1980 Int'l Rev. Red Cross 316-17.
79. The Israeli reservations to GWS, GWS-Sea and GC are quite similar. The reservation to
the GWS reads:
Subject to the reservation that, while respecting the inviolability of the distinctive
signs and emblems of the Convention, Israel will use the Red Shield of David as the
emblem and distinctive sign of the medical services of her armed forces.
To GWS-Sea, Israel's reservation states:
. . . Israel will use the Red Shield of David on the flags, armlets and on all equipment
(including hospital ships), employed in the medical service.
Schindler & Toman 576. The Director of the ICRC has argued that the Israeli statement
constitutes merely a unilateral declaration. Pilloud, Reservations to the Geneva Conventions of
1949, 1976 Int'l Rev. Red Cross 121-22. Israel continues to use the Red Star of David as its
protective emblem. CDDH/SR.37 Annex, 6 Official Records 78-79, Levie, 1 Protection of War
Victims 309, 4 id. 161.
The United States has rejected the Israeli reservations, as part of its rejection of all
reservations to the 1949 Geneva Conventions, while accepting treaty relations with all parties
"except as to the changes proposed by such reservations." Schindler & Toman 590. As a result, the
use of the Red Shield of David (Magen David Adorn) has to be, and has been in the Arab-Israeli
conflicts, recognized as a protective emblem by any other party to an armed conflict with Israel.
Bothe, Partsch & Solf 103; Vienna Convention on the Law of Treaties, art. 20.5. Nevertheless,
despite strenuous efforts, the Red Shield of David has not been formally recognized as a protective
symbol in the relevant treaties. Rosenne, The Red Cross, Red Crescent, Red Lion and Sun and
the Red Shield of David, 5 Israel Y.B. Human Rights 1 (1975). Multiplicity of protective emblems
does not facilitate their recognition in the heat of battle. Gasser, The Protection of Journalists
Engaged in Dangerous Professional Missions, 1983 Int'l Rev. Red Cross 10.
80. Pilloud, note 79, at 122; Levie, 2 The Code of International Armed Conflict, art. 1011.1.2,
at 651. See also paragraph 11.9.7 (p. 499).
81 . GC, art. 14 & Annex I, art. 6. A history of hospital and safety zones may be found in 4 Pictet
121-24. Hospital zones for the wounded and sick combatants are to be marked with red crosses.
GWS, art. 23 & Annex I, art. 6; 1 Pictet 422; 4 Pictet 634.
82. GPW, art. 23(4); 3 Pictet 190. PW camps are to be marked with the letters PW or PG
(prisonniers de guerre) placed so as to be clearly visible from the air in daytime. If the exact locations of
PW camps are provided as required by GPW, art. 23(3), the need for this marking may be reduced.
Levie, Prisoners of War 123-24; Levie, 2 The Code of International Armed Conflict 689. The
parties may agree on some other marking scheme. Areas other than PW camps must not bear these
markings. GPW, art. 23(4).
498 Commander's Handbook on the Law of Naval Operations
83
1 1— If) . A royal-blue diamond and royal-blue triangle on a white shield is used
to designate cultural buildings, museums, historic monuments, and other
84
cultural objects that are exempt from attack (Figure 11- lg). In the Western
Hemisphere, a red circle with triple red spheres in the circle, on a white
background (the "Roerich Pact" symbol) is used for that purpose (Figure
11-lh).85
Two protective symbols established by the 1977 Protocol I Additional to the
Geneva Conventions of 1949, to which the United States is not a party, are
described as follows for informational purposes only. Works and installations
containing forces potentially dangerous to the civilian population, such as dams,
dikes, and nuclear power plants, may be marked by three bright orange circles of
equal size on the same axis (Figure 1 1-li) . Civil defense facilities and personnel
may be identified by an equilateral blue triangle on an orange background
(Figure 11-lj).
11.9.3 The 1907 Hague Symbol. A protective symbol of special interest to
naval officers is the sign established by the 1907 Hague Convention Concerning
Bombardment by Naval Forces in Time of War (Hague IX). The 1907 Hague
symbol is used to mark sacred edifices, hospitals, historic monuments, cultural
buildings, and other structures protected from naval bombardment. The symbol
consists of a rectangular panel divided diagonally into two triangles, the upper
black, the lower white (Figure 11- Ik).
11.9.4 The 1954 Hague Convention Symbol. A more recent protective
symbol was established by the 1954 Convention for the Protection of Cultural
89 • r • •
Property in the Event of Armed Conflict. Cultural sites that are of artistic,
historical, or archaeological interest, whether religious or secular, may be
marked with the symbol to facilitate recognition. The symbol may be used alone
83. GC, art. 83(3); 4 Pictet 383-84. The letters IC are used only if military considerations
permit and are to be placed so as to be clearly visible from the air in daytime. If the exact locations of
internment camps are provided as required by GC, art. 83(2), the need for this marking may be
reduced. The parties may agree on some other marking scheme. Areas other than internment
camps must not bear these markings. GC, art. 83(3).
84. Convention for the Protection of Cultural Property in the Event of Armed Conflict, The
Hague, 14 May 1954, 249 U.N.T.S. 240, reprinted in Schindler & Toman 749, art. 16.
85. Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments,
Washington, 15 April 1935, 49 Stat. 3267; T.S. 899; 3 Bevans 254; 167 L.N.T.S. 279, art. 3.
Parties to the Roerich Pact include Brazil, Chile, Colombia, Cuba, Dominican Republic, El
Salvador, Guatemala, Mexico, the United States, and Venezuela.
86. GP I, art. 56(7). See paragraph 8.5.1.7 (p. 426).
87. GP I, art. 66(4). Civil defense personnel are discussed in paragraph 1 1 .3, note 16 (p. 484).
88. Hague IX, art. 5. Hospitals should be marked with red crosses.
89. See note 84 (p. 498).
Noncombatant Persons 499
or repeated three times in a triangular formation. It takes the form of a shield,
pointed below, consisting of a royal-blue square, one of the angles of which
forms the point of the shield, and of a royal-blue triangle above the square, the
space on either side being taken up by a white triangle (Figure 11-lg).
11.9.5 The White Flag. Customary international law recognizes the white flag
as symbolizing a request to cease-fire, negotiate, or surrender. Enemy forces
displaying a white flag should be permitted an opportunity to surrender or to
r r • • 90
communicate a request tor cease-tire or negotiation.
11.9.6 Permitted Use. Protective signs and symbols may be used only to
identify personnel, objects, and activities entided to the protected status which
91 92
they designate. Any other use is forbidden by international law.
11.9.7 Failure to Display. When objects or persons are readily recognizable as
being entitled to protected status, the lack of protective signs and symbols does
not render an otherwise protected object or person a legitimate target. Failure to
utilize internationally agreed protective signs and symbols may, however,
subject protected persons and objects to the risk of not being recognized by the
93
enemy as having protected status.
90. Lieber Code, arts. 111-14; HR, arts. 23(f) & 32; GP I, art. 38(1); FM 27-10, paras. 53, 458,
460 & 467. See paragraph 11.7 (p. 489) for a discussion of surrender.
91. GWS, art. 44(1); GWS-Sea, art. 44; Hague Cultural Property Convention, art. 17. See
paragraph 11.9.2, note 84 (p. 498); GP I, art. 66(8) (civil defense). The United States has reserved
the right of a few of its businesses to continue using the red cross commercially provided it was so
used prior to 1905. Schindler & Toman 590; 1 Pictet 387; Pilloud, paragraph 11.9.1, note 79
(p. 497) at 123.
92. HR, art. 23(f); GWS, art. 53; GP I, art. 38; implemented in 18 U.S.C. sec. 706 (1982).
There are no express limitations on the use of the "pedal sign of the Roerich Pact, the Hague 1907
sign, or for dams, dikes and nuclear power stations established by art. 56(7) of GP I. However, "the
supervision and control of the special sign [for dams, dikes, and nuclear generating stations]
depends on the more general provisions of Art. 80 and the general prohibitions against improper
use of recognized emblems of Art. 38" of GP I. Bothe, Partsch & Solf 357. They are of the view that
in some (unspecified) circumstances, "the deliberate misuse of the special sign could constitute a
grave breach" under art. 85(3)(f) of GP I. Ibid. The same rationale would apply to misuse of the
Roerich Pact and Hague 1907 signs. Improper use of protected signs and symbols constitutes
perfidy. See paragraph 12.1.2 (p. 509) for a discussion of perfidy. The protections for dams, dikes
and nuclear electrical generating stations are discussed in paragraph 8.5.1.7 and accompanying
notes (p. 426).
93. 1 Pictet 307 recognizes there are circumstances when display of the distinctive emblem
unnecessarily exposes noncombatants to risk of attack in violation of their immunity or
compromises operational integrity. In the U.S. Army, authority to direct the protective emblem
not be used for tactical or operational reasons is held by the "major tactical commander." AR
750-1, Subj: Maintenance of Supplies and Equipment: Army Materiel Maintenance Policy and
Retail Maintenance Operations (ch. 1), paras. 4-41d(6) & (7).
500 Commander's Handbook on the Law of Naval Operations
11.10 PROTECTIVE SIGNALS
Three optional methods of identifying medical units and transports have been
sated internatic
use these signals.
94
created internationally. United States hospital ships and medical aircraft do not
11.10.1 Radio Signals. For the purpose of identifying medical transports by
radio telephone, the words PAN PAN are repeated three times followed by the
word "medical" pronounced as in the French MAY-DEE-CAL. Medical
transports are identified in radio telegraph by three repetitions of the group XXX
followed by the single group YYY.
11.10.2 Visual Signals. On aircraft, the flashing blue light may be used only on
medical aircraft. Hospital ships, coastal rescue craft and medical vehicles may also use
the flashing blue light. Only by special agreement between the parties to the conflict
96
may its use be reserved exclusively to those forms of surface medical transport.
11.10.3 Electronic Identification. The identification and location of medical
ships and craft may be effected by means of appropriate standard maritime radar
transponders as established by special agreement to the parties to the conflict.
The identification and location of medical aircraft may be effected by use of the
secondary surveillance radar (SSR) specified in Annex 10 to the Chicago
Convention. The SSR mode and code is to be reserved for the exclusive use of
the medical aircraft.
94. GP I, art. 18(5-6) & Annex I, art. 5.
95. Radio Regulations (Mob 1983), art. 40, 1984 Int'l Rev. Red Cross 54-56; International
Code of Signals, H.O. Pub. 102, at 137 (rev. 1981); GP I, Annex I, art. 7; Bothe, Partsch & Solf
586-88; Levie, 2 The Code of International Armed Conflict 704-06; Eberlin, Protective Signs
12-16; ICRC, Commentary (GP I) 1216-45.
96. International Code of Signals, H.O. Pub. 102 (rev. 1981), change 136A, Notice to
Mariners 52/85, at II-2.5; GP I, Annex I, art. 6. See Bothe, Partsch & Solf 585; Levie, 2 The Code
of International Armed Conflict 703-04; Eberlin, The Identification of Medical Aircraft in Periods
of Armed Conflict, 1982 Int'l Rev. Red Cross 207-09; Eberlin, Identification of Hospital Ships
and Ships Protected by the Geneva Conventions of 12 August 1949, 1982 id. 315; Eberlin, The
Protection of Rescue Craft in Periods of Armed Conflict, 1985 id. 140; ICRC, Commentary
(GP I) 1206-1 1 . Experiments conducted during the Falklands/Malvinas war by the British found
the visibility of a flashing blue light was seven nautical miles, while normal visibility at sea was one
mile. Junod, Protection of the Victims of Armed Conflict Falkland-Malvinas Islands (1982), at 25.
Similar results are reported in Cauderay, Visibility of the Distinctive Emblem on Medical
Establishments, Units, and Transports, 1990 Int'l Rev. Red Cross 295. Its use ashore poses
difficulties caused by the extensive use by many European and Asian police, fire and emergency
vehicles of the flashing blue light.
97. Radio Regulations (Mob 1983), arts. 3219A & B; International Code of Signals, H.O.
Pub. 102 (rev. 1981), change 136A, Notice to Mariners 52/85, at II-2.5; Eberlin, Amendments to
(continued...)
Noncombatant Persons 501
11.11 IDENTIFICATION OF NEUTRAL PLATFORMS
Ships and aircraft of nations not party to an armed conflict may adopt special
signals for self-identification, location and establishing communications. Use of
these signals does not confer or imply recognition of any special rights or duties
of neutrals or belligerents, except as may otherwise be agreed between them.
97. (...continued)
the Radio Regulations Concerning Medical Means of Transport and Neutral Means of Transport,
1984 Int'l Rev. Red Cross 51; Eberlin, Underwater Acoustic Identification of Hospital Ships,
1988 Int'l Rev. Red Cross 505; GP I, Annex I, art. 8; Bothe, Partsch & Solf 589; Levie, 2 The
Code of International Armed Conflict 706-07; ICRC, Commentary (GP I) 1248-55. The SSR is
also known as IFF (identification friend or foe).
98. Resolution No. 18 (Mob 1983), World Administrative Radio Conference for Mobile
Services, Geneva 1983, reprinted in 1984 Int'l Rev. Red Cross 58; ICRC, Commentary (GP I)
1244-45. See Eberlin, Amendments to the Radio Regulations Concerning Medical Means of
Transport and Neutral Means of Transport, 1984 Int'l Rev. Red Cross 52.
502 Commander's Handbook on the Law of Naval Operations
ANNEX All-1
CODE OF CONDUCT
I
I am an American, fighting in the forces which guard my country and our way of
life. I am prepared to give my life in their defense.
II
I will never surrender of my own free will. If in command, I will never surrender
the members of my command while they still have the means to resist.
Ill
If I am captured I will continue to resist by all means available. I will make every
effort to escape and aid others to escape. I will accept neither parole nor special
favors from the enemy.
IV
If I become a prisoner of war, I will keep faith with my fellow prisoners. I will
give no information or take part in any action which might be harmful to my
comrades. If I am senior, I will take command. If not, I will obey the lawful
orders of those appointed over me and will back them up in every way.
V
When questioned, should I become a prisoner of war, I am required to give
name, rank, service number, and date of birth. I will evade answering further
questions to the utmost of my ability. I will make no oral or written statements
disloyal to my country and its allies or harmful to their cause.
VI
I will never forget that I am an American, fighting for freedom, responsible for
my actions, and dedicated to the principles which made my country free. I will
trust in God and in the United States of America.
Sources: Executive Order 12633 (Mar. 1988); Code of the U.S. Fighting
Force, American Forces Information Service, DOD (1988).
Noncombatant Persons 503
The Red Cross
Symbol of medical and
religious activities.
The Red Crescent
Symbol of medical and
religious activities.
c.
The Red Star of David
Israeli emblem for medical
and religious activities.
Israel reserved the right to use
the Red Star of David when it
ratified the 1949 Conventions.
Marking for Hospital and Safety
Zones for Civilians and Sick and
Wounded (Three Red Stripes)
(Noncombatants)
FIGURE 11-1. Protective Signs and Symbols (Sheet 1 of 3)
504 Commander's Handbook on the Law of Naval Operations
Symbols for Prisoner of War Camps
Civilian Internment Camps
Symbol for Cultural Property
Under the 1954 Hague
Convention (Blue and White)
(Also used in a group of three
to indicate special protection.)
FIGURE 11-1. Protective Signs and Symbols (Sheet 2 of 3)
Noncombatant Persons 505
Roerich Pact (Red and White)
Symbol used for historical,
artistic, education, and
cultural institutions, among
Western Hemisphere nations.
Special Symbol for Works and Installations
Containing Dangerous Forces (Three Orange Circles)
(Dams, dikes, and nuclear power stations)
J-
Symbol designating Civil
Defense Activities
(Blue triangle in an orange
square)
k.
The 1907 Hague Sign
Naval bombardment symbol
designating cultural, medical,
and religious facilities.
FIGURE 11-1. Protective Signs and Symbols (Sheet 3 of 3)
CHAPTER 12
Deception During Armed Conflict
12.1 GENERAL
The law of armed conflict permits deceiving the enemy through stratagems
and ruses of war intended to mislead him, to deter him from taking action,
or to induce him to act recklessly, provided the ruses do not violate rules of
international law applicable to armed conflict.
12.1.1 Permitted Deceptions. Stratagems and ruses of war permitted in
armed conflict include such deceptions as camouflage, deceptive lighting,
dummy ships and other armament, decoys, simulated forces, feigned attacks and
withdrawals, ambushes, false intelligence information, electronic deceptions,
and utilization of enemy codes, passwords, and countersigns.
1. Lieber Code, art. 101; HR, art. 24; GP I, art. 37(2). These rules are considered applicable
to warfare at sea. Hall, False Colors and Dummy Ships: The Use of Ruse in Naval Warfare, Nav.
War Coll. Rev., Summer 1989, at 54-55, sets out a useful flowchart for analysis of proposed
deception. See also Green 138, 139, 169 & 170.
See paragraph 5.4.2, note 34 (p. 303) regarding the U.S. decision not to seek ratification of GP I.
"Rules of international law applicable in armed conflict" has been defined as "the rules applicable
in armed conflict set forth in international agreements to which the Parties to the conflict are
Parties and the generally recognized principles and rules of international law which are applicable
to armed conflict." GP I, art. 2(b). See also paragraph 6.2.2, note 34 (p. 335), for the ICRC
definition of "international humanitarian law applicable in armed conflict."
2. NWIP 10-2, para. 640 n.41; AFP 110-34, para. 5-1; AFP 110-31, paras. 8-3b & 8-4; FM
27-10, para. 51; DA Pam 27-161-2, at 57; British Manual of Military Law, Part III, para. 312
(1958); 2 Oppenheim-Lauterpacht 428-30; GP I, art. 37(2); Green 139. See Hartcup,
Camouflage: A History of Concealment and Deception in War (1980) and Glantz, Soviet Military
Deception in the Second World War (1989). These acts are not perfidious because they do not
invite the confidence of the enemy with respect to protection under the law. GP I, art. 37(2).
Other permissible deceptions include traps; mock operations; feigned retreats or flights; surprise
attacks; simulation of quiet and inactivity; use of small units to simulate large units; use of dummy
aircraft, vehicles, airfields, weapons and mines to create a fictitious force; moving landmarks and
route markers; pretending to communicate with forces or reinforcements which do not exist;
deceptive supply movements; and allowing false messages to fall into enemy hands. See Montagu,
The Man Who Never Was (1954), for an account of a British ruse during World War II regarding
the invasion of Europe. It is permissible to attempt to frustrate target intelligence activity, for
example by the employment of ruses to conceal, deceive and confuse reconnaissance means. The
prohibition in GP I, art. 39, against the use of the adversary's "military emblems, insignia or
uniforms" refers only to concrete visual objects and not to his signals and codes. Bothe, Partsch&
(continued...)
508 Commander's Handbook on the Law of Naval Operations
2. (...continued)
Solf 214. The United States does not support the prohibition in art. 39 on the use of enemy
emblems, insignia and uniforms during military operations except in actual armed engagement.
See paragraph 12.5.3 (p. 513).
AFP 110-31, para. 8-4b, provides the following additional examples of lawful ruses:
(1) The use of aircraft decoys. Slower or older aircraft may be used as decoys to lure
hostile aircraft into combat with faster and newer aircraft held in reserve. The use of aircraft
decoys to attract ground fire in order to identify ground targets for attack by more
sophisticated aircraft is also permissible.
(2) Staging air combats. Another lawful ruse is the staging of air combat between two
properly marked friendly aircraft with the object of inducing an enemy aircraft into
entering the combat in aid of a supposed comrade.
(3) Imitation of enemy signals. No objection can be made to the use by friendly forces
of the signals or codes of an adversary. The signals or codes used by enemy aircraft or by
enemy ground installations in contact with their aircraft may properly be employed by
friendly forces to deceive or mislead an adversary. However, misuse of distress signals or
distinctive signals internationally recognized as reserved for the exclusive use of medical
aircraft would be perfidious.
(4) Use of flares and fires. The lighting of large fires away from the true target area for
the purpose of misleading enemy aircraft into believing that the large fires represent damage
from prior attacks and thus leading them to the wrong target is a lawful ruse. The target
marking flares of the enemy may also be used to mark false targets. However, it is an
unlawful ruse to fire false target flare indicators over residential areas of a city or town wljich
are not otherwise valid military objectives.
(5) Camouflage use. The use of camouflage is a lawful ruse for misleading and
deceiving enemy combatants. The camouflage of a flying aircraft must not conceal national
markings of the aircraft, and the camouflage must not take the form of the national
markings of the enemy or that of objects protected under international law.
(6) Operational ruses. The ruse of the "switched raid" is a proper method of aerial
warfare in which aircraft set a course, ostensibly for a particular target, and then, at a given
moment, alter course in order to strike another military objective instead. This method was
utilized successfully in World War II to deceive enemy fighter interceptor aircraft.
While it is common practice among nations to place national markings on both military aircraft
and vessels, it is unclear if international law requires nations to do so. The legality of the use of
unmarked military aircraft or vessels in combat is unsettled as operational requirements
occasionally dictate that markings not be used. Compare Jacobsen, A Juridical Examination of the
Israeli Attack on the U.S.S. Liberty, 36 Nav. L. Rev. 41-44 (1986) (the use of unmarked Israeli
aircraft to attack USS LIBERTY on 8 June 1967) with AFP 110-31, para. 7-4 (superfluous
marking not required, as "when no other aircraft except those belonging to a single state are
flown"). Failure to mark vessels and aircraft clearly in peacetime results in the loss of certain
privileges and immunities for such aircraft or vessels, and quite likely for the crew as well. See 1982
LOS Convention, arts. 29 & 107, and Chicago Convention, arts. 20 & 89 (reflecting customary
international law on the importance of external markings on aircraft and vessels). See also
paragraphs 2.1.1 (p. 109) and 2.2.1 (p. 114) for a discussion, respectively, of warships and military
aircraft.
(continued...)
Deception During Armed Conflict 509
12.1.2 Prohibited Deceptions. The use of unlawful deceptions is called
"perfidy." Acts of perfidy are deceptions designed to invite the confidence of the
enemy to lead him to believe that he is entided to, or is obliged to accord, protected
status under the law of armed conflict, with the intent to betray that confidence.
Feigning surrender in order to lure the enemy into a trap is an act of perfidy.
2. (...continued)
The use of deceptive measures to thwart precision guided weapons is legally permissible. Flares,
smoke and aerosol material and dissemination devices can lawfully be used as counter-measures
against visually guided, laser-guided, infrared and television-guided missiles. Chaff is a lawful
countermeasure against active radar-homing missiles. Infrared-absorbing paint and flare
technology are lawful countermeasures against infrared sensors.
It would be a legitimate ruse to use the electronic transponder aboard a combatant
aircraft to respond with the code used for identifying friendly aircraft (IFF), but it
would be perfidious to use for this purpose the electronic signal established under
annex I, Art. 8, [GP I] for the exclusive use of medical aircraft. Similarly, the use of
distress signals established under the Radio Regulations of the International
Telecommunications Union is prohibited under the second sentence of Art. 38,
para. 1 [of GP I] and might also be violative of Art. 37 [of GP I].
Bothe, Partsch & Solf 207, citing 10 Whiteman 399. The United States considers that GP I, arts. 37 and
38 reflect customary international law. Matheson, remarks, paragraph 11.1, note 2 (p. 481) at 425.
During Operation Desert Storm, Coalition Forces employed psychological operations involving
air-dropped leaflets and radio broadcasts to destroy enemy morale and to induce Iraqi troops to
surrender. Title V Report, at J-536 to 38.
Under the definition of perfidy in GP I it would be improper to disseminate false intelligence
reports intended to induce the enemy to attack civilians and civilian objects in the mistaken belief
that they are military objects. See also paragraphs 8.1.2 (p. 403) and 8.5.1.1 (p. 423). On the other
hand, it is a common practice, not prohibited by GP I, to disguise a military object to appear to be a
civilian object. See, for example, the cover and deception tactics used in World War II and
described in Fisher, The War Magician (1983); Reit, Masquerade: The Amazing Camouflage
Deceptions of World War II (1978); Brown, Bodyguard of Lies (1975) (D-Day, 1944); Holmes,
Double-Edged Secrets: U.S. Naval Intelligence Operations in the Pacific During World War II
(1979); and sources cited therein. World War I examples may be found in the sources cited in AFP
110-31, para. 8-4b n.5.
It is not perfidious to use spies and secret agents, encourage defection or insurrection among the
enemy, or encourage enemy combatants to desert, surrender or rebel. Bothe, Partsch & Solf 207.
Enemy personnel that do desert and surrender cannot be compelled to take an oath of allegiance to
the captor. Green 140-41.
Dewar, The Art of Deception in Warfare (1989) develops a modern theory of deception. Many
modern deception tactics are, of course, classified. See OPNAVINST 3070.1 (series), Subj:
Operations Security; Joint Pub 18, Subj: Operations Security; and OPNAVINST S3430.21
(series), Subj: Electronics Warfare Operations Security. See also OPNAVINST S3490.1 (series),
Subj: Military Deception.
3. This definition appears for the first time in GP I, art. 37(1); perfidy had not been previously
defined in treaty law. The United States supports the principle that "individual combatants not
kill, injure, or capture enemy personnel by resort to perfidy." Matheson, remarks, paragraph 11.1,
note 2 (p. 481) at 425. The rationale for this rule is that if protected status or protective signs,
signals, symbols, and emblems are abused they will lose their effectiveness and put protected
persons and places at additional risk.
4. 2 Oppenheim-Lauterpacht 342; San Remo Manual, para. 111.
510 Commander's Handbook on the Law of Naval Operations
12.2 MISUSE OF PROTECTIVE SIGNS, SIGNALS, AND
SYMBOLS
Misuse of protective signs, signals, and symbols (see paragraphs 11.9 and
11.10) in order to injure, kill, or capture the enemy constitutes an act of perfidy.
Such acts are prohibited because they undermine the effectiveness of protective
signs, signals, and symbols and thereby jeopardize the safety of noncombatants
and the immunity of protected structures and activities. For example, using an
ambulance or medical aircraft marked with the red cross or red crescent to carry
armed combatants, weapons, or ammunition with which to attack or elude
enemy forces is prohibited. Similarly, use of the white flag to gain a military
advantage over the enemy is unlawful.
5. This customary rule derives from HR, arts. 23(f) & 27; Hague V, art. 5; GWS-Sea, arts. 30,
34, 35, 41 & 45; GWS, arts. 21, 22, 35 & 36; GC, arts. 18, 20-22; GPW, art. 23; Roerich Pact, arts.
1&5. SeeFM 27-10, para. 55; DA Pam 27-161-2, at 53; AFP 110-31, paras. 8-3c, 8-6a(l) &8-6b;
AFP 110-34, para. 5- la; Slim, Protection of the Red Cross and Red Crescent Emblems, 1989Int'l
Rev. Red Cross 420; and Green 290-91. See also GP I, arts. 18(6) & 38, and Hague Cultural
Property Convention (paragraph 8.5.1.6, note 122 (p. 425)), arts. 17(3) & (4). The protective
signs, symbols, and emblems are illustrated in Figure 11-1 (pp. 503-505). Protective signals are
discussed in paragraph 11.10 (p. 500).
6. HR, arts. 23(f), 32 & 34; GP I, art. 37(l)(a). See also FM 27-10, paras. 52-53, 458-61 &
504; 2 Oppenheim- Lauterpacht 541; Greenspan 320-21 & 384-85. The white flag symbolizes a
request to cease fire, negotiate or surrender. HR, arts. 23(f) &32; FM 27-10, paras. £3 &458; AFP
110-34, para. 5-lb; Greenspan 320-21 & 384-85; 2 Oppenheim-Lauterpacht 541. Displaying a
white flag before attack to cause the enemy to cease firing is prohibited. As misuse of the red cross
(or red crescent) could result in attacks on the sick and wounded, misuse of the white flag might
prevent efforts to negotiate on important matters.
However, the enemy is not required to cease firing when a white flag is raised. To indicate that the
hoisting is authorized by its commander, the appearance of the flag should be accompanied or
followed promptly by a complete cessation of fire from that side. Further, the commander
authorizing the hoisting of the flag should also promptly send one or more parlementaires. FM
27-10, para. 458, atl67;AFP 110-31, para. 8-6a(2). See DA Pam 27-161-2, at 53. (Parlementaires
are designated personnel employed by military commanders of belligerent forces to pass through
enemy lines in order to negotiate or communicate openly and directly with enemy commanders.
Cf. FM 27-10, para. 459, at 167; HR 32; Levie, 1 The Code of International Armed Conflict 154;
Green 88-9.) See also paragraph 11.7 and note 43 (p. 489) regarding surrender. Application of
these principles was illustrated during the battle for Goose Green in the Falklands/Malvinas
conflict when some Argentine soldiers may have raised a white flag and others then killed three
British soldiers advancing to accept what they thought was a surrender. Higgenbotham, Case
Studies in the Law of Land Warfare II: The Campaign in the Falklands, 64 Mil. Rev., Oct. 1984, at
53 ("Whatever the case was at Goose Green, there was no requirement for the British to expose
themselves. The hoister of the white flag is the one expected to come forward, and that is what
should have been required of the Argentine soldiers in this case."); Middlebrook, Operation
Corporate: The Falklands War, 1982, at 269-70. But see Middlebrook, The Fight for the
'Malvinas' 189-90 (1989) (British officer killed when returning from an attempt to negotiate a
local surrender with Argentine forces).
(continued...)
Deception During Armed Conflict 51 1
12.3 NEUTRAL FLAGS, INSIGNIA, AND UNIFORMS
12.3.1 At Sea. Under the customary international law of naval warfare, it is
permissible for a belligerent warship to fly false colors and disguise its outward
appearance in other ways in order to deceive the enemy into believing the vessel
is of neutral nationality or is other than a warship. However, it is unlawful for a
warship to go into action without first showing her true colors. Use of neutral
flags, insignia, or uniforms during an actual armed engagement at sea is,
therefore, forbidden.
6. (...continued)
Similarly, international law prohibits pretending to surrender or requesting quarter in order to
attack an enemy because of the obligation of combatants to respect opposing combatants who are
hors de combat or have surrendered. For an account of the perfidious use of the white flag by Iraqi
forces during the Persian GulfWar see Title V Report, at 0-621 . A false broadcast to the enemy that
an armistice has been agreed upon has been widely recognized to be perfidious.
7. 2 Oppenheim-Lauterpacht 509.
The ruse which is of most practical importance in naval warfare is the use of the false
flag. It now seems to be fairly well established by the custom of the sea that a ship is
justified in wearing false colours for the purpose of deceiving the enemy, provided
that she goes into action under her true colours. The celebrated German cruiser
"Emden" made use of this strategem in 1914 when she entered the harbour of
Penang [on 28 October] under [then neutral] Japanese colours, hoisted her proper
ensign, and then torpedoed a Russian cruiser lying at anchor. It is equally permissible
for a warship to disguise her outward appearance in other ways and even to pose as a
merchant ship, provided that she hoists the naval ensign before opening fire.
Merchant vessels themselves are also at liberty to deceive enemy cruisers in this way.
Smith, The Law and Custom of the Sea 115-16 (3d ed. 1959), citing Corbett, 1 Naval Operations
350 (1920).
Sources differ as to which flag EMDEN was actually flying on entry into Penang harbor. Van der
Vat, Gentlemen of War 86-87 (1983) (the British white ensign); Lochner, The Last
Gentleman-of-War: The Raider Exploits of the Cruiser Emden 151 (1979, Lindauer transl. 1988),
which van der Vat claims is exhaustive, states EMDEN flew no flag as she entered Penang harbor.
Corbett states that the flag appeared to be the British white ensign. 2 Oppenheim-Lauterpacht 510
states that EMDEN was flying the Japanese flag. Flying the enemy flag at sea is discussed in
paragraph 12.5.1 (p. 512).
GP I, art. 39(3), explicitly states that no changes in the rules applicable to the conduct of war at sea
(as set out in the text of paragraph 12.3.1) are made by arts. 39 or 37(l)(d) of that Protocol.
Nevertheless the use of these ruses by naval forces today may be politically sensitive, since using
neutral emblems might lead a party erroneously to conclude that a neutral has given up its
neutrality (see Chapter 7) and entered the fighting on the other side. This could lead to an attack or
declaration of war on the neutral. AFP 110-34, para. 5-lc; Smith 116-18; Tucker 140-41. See
paragraph 12.7 (p. 514) regarding false claims of noncombatant status.
8. 2 Lauterpacht-Oppenheim 509; San Remo Manual, paras. 1 10 & 111; Heinegg, The Law
of Armed Conflict at Sea, in Fleck at 422.
512 Commander's Handbook on the Law of Naval Operations
12.3.2 In the Air. Use in combat of false or deceptive markings to disguise
belligerent military aircraft as being of neutral nationality is prohibited.
12.3.3 On Land. The law of armed conflict applicable to land warfare has no
rule of law analogous to that which permits belligerent warships to display
neutral colors. Belligerents engaged in armed conflict on land are not permitted
in
to use the flags, insignia, or uniforms of a neutral nation to deceive the enemy.
12.4 THE UNITED NATIONS FLAG AND EMBLEM
1 1
The flag of the United Nations and the letters "UN" may not be used in
armed conflict for any purpose without the authorization of the United
Nations.
12.5 ENEMY FLAGS, INSIGNIA, AND UNIFORMS
12.5.1 At Sea. Naval surface and subsurface forces may fly enemy colors and
display enemy markings to deceive the enemy. Warships must, however, display
their true colors prior to an actual armed engagement.
9. AFP 110-31, para. 7-4 & n.5; San Remo Manual, para. 109.
10. This customary rule is codified in GP I, art. 39(1), and applies whether in attack or to
promote the interest of a party to the conflict in the conduct of that conflict. CDDH/215/Rev.l,
para. 38; 15 Official Records 259; Bothe, Partsch & Solf, para. 2.2, at 213. "The purpose behind
this rule is to avoid escalation of armed conflict to neutral countries in the mistaken belief that the
neutral State had abandoned its neutrality." Bothe, Partsch & Solf 213. See also Oeter, Methods
and Means of Combat, in Fleck at 202; Green 138-39.
1 1 . The United Nations flag is white on light blue; the letters "UN" are its emblem.
12. GPI, art. 37(l)(d), defines as perfidy in land warfare "the feigning of protected status by the
use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to
the conflict." In addition, GP I, art. 38(2), states that "[i]t is prohibited to make use of the
distinctive emblem of the United Nations, except as authorized by that Organization." See AFP
1 10-34, para. 5- Id. The United States concurs with this statement and has extended its application
to operations at sea as a matter of U.S. policy.
13. This rule with respect to warships has precedent in the skillful disguise of German armed
raiders in World Wars I and II. Tucker 140 n.37; Muggenthaler, German Raiders ofWorld War II
(1977); Woodward, The Secret Raiders: The Story of the German Armed Merchant Raiders in
the Second World War (1955). The EMDEN added a false fourth funnel for her entry into Penang
in 1914 to make her resemble a British cruiser of the YARMOUTH class. See sources cited in
paragraph 12.3.1, note 7 (p. 511). On 27/28 March 1942, HMS CAMPBELTOWN (ex-USS
BUCHANAN), with two stacks removed and her two remaining funnels cut off at an angle to
resemble a German torpedo-boat destroyer entered St. Nazaire harbor in German-occupied
Brittany and rammed herself hard up on the outer lock of the the only dry dock large enough to
take the German battleship TIRPITZ. Hours later she was blown up with timed charges, putting
the dry dock out of the war. (The attack was facilitated by CAMPBELTOWN'S responses to
German challenges and gun fire with flashing light delaying signal using the call sign of one of the
German ships in the local flotilla, and to another with"wait," followed by the emergency signal,
(continued...)
Deception During Armed Conflict 513
12.5.2 In the Air. The use in combat of enemy markings by belligerent military
aircraft is forbidden.
12.5.3 On Land. The law of land warfare does not prohibit the use by
belligerent land forces of enemy flags, insignia, or uniforms to deceive the enemy
either before or following an armed engagement. Combatants risk severe
punishment, however, if they are captured while displaying enemy colors or
insignia or wearing enemy uniforms in combat.
Similarly, combatants caught behind enemy lines wearing the uniform of
their adversaries are not entitled to prisoner-of-war status or protection and,
historically, have been subjected to severe punishment. ' It is permissible,
however, for downed aircrews and escaping prisoners of war to use enemy
uniforms to evade capture, so long as they do not attack enemy forces, collect
13. (...continued)
"Am being fired upon by friendly forces." See paragraph 12.1.1, note 2 (p. 507).) Haines,
Destroyers at War 73-80 (1982); Calvocoressi & Wint, Total War 450 (1972); Piekalkiewick, Sea
War 1939-1945, at 206 (1987); Roskill, 2 The War at Sea 1939-1945, at 168-73 (1956).
A belligerent may prosecute as a war crime the use of its ensigns, emblems or uniforms by enemy
forces during actual military operations against it. AFP 110-31, para. 5-le. See also Heinegg,
paragraph 12.3.1, note 8 (p. 511) at 422.
14. Tucker 142 & n.43; AFP 110-31, paras. 7-4 & 8-4b(5). This rule may be explained by the
fact that an aircraft, once airborne, is generally unable to change its markings prior to actual attack
as could a warship. Additionally, the speed with which an aircraft can approach a target (in
comparison with warships) would render ineffective any attempt to display true markings at the
instant of attack.
15. HR, art. 23(f), forbids "improper use . . . of the national flag, or of the military insignia and
uniform of the enemy." "Improper use" of an enemy's flags, military insignia, national markings
and uniforms involves use in actual attacks. This clarification is necessary because disputes arose
concerning the meaning of the term "improper" during World War II. Bothe, Partsch & Solf
212-15. A reciprocal advantage is secured from observing this rule. It is clear, however, that this
article does not change or affect the law concerning whether a combatant is entided to PW status.
That question is a separate matter determined by the GPW, as well as other applicable international
law. AFP 110-31, para. 8-6c. See also DA Pam 27-161-2, at 53.
16. This is based on the necessity to maintain security and to prevent surprise by the enemy.
AFP 110-34, para. 5-le(l).
GP I, arts. 37 & 39(2), provide that even prior to combat the use of enemy flags, insignia, and
uniforms to shield, favor, protect or impede military operations is prohibited, thereby attempting
to reverse the rule derived from U.S. v. Skorzeny, 9 LRTWC 90 (1949), summarized in DA Pam
27-161-2, at 53-56, and reflected in FM 27-10, para. 54. See also 10 Whiteman 395-98.
Acceptance of this rule would prevent their use as a disguise during any military operation on or
over land preparatory to an attack and appears to be impracticable. Bothe, Partsch & Solf 214.
The United States considers this departure to be militarily unacceptable since "there are certain
adversarial forces that would use enemy uniforms in their operations in any case [and thus] it is
important from the beginning to preserve that option for the United States as well." Matheson
remarks, paragraph 11.1, note 2 (p. 481) at 425 & 435.
17. FM 27-10, paras. 75-78; DA Pam 27-161-2, at 59; AFP 110-31, para. 9-2b.
514 Commander's Handbook on the Law of Naval Operations
1 Q
military intelligence, or engage in similar military operations while so attired.
As a general rule, enemy markings should be removed from captured enemy
equipment before it is used in combat.
12.6 FEIGNING DISTRESS
It is unlawful to feign distress through the false use of internationally
20
recognized distress signals such as SOS and MAYDAY. In air warfare,
however, it is permissible to feign disablement or other distress as a means to
induce the enemy to break offan attack. Consequently, there is no obligation in
air warfare to cease attacking a belligerent military aircraft that appears to be
21
disabled. However, if one knows the enemy aircraft is disabled so as to
permanendy remove it from the conflict (e.g., major fire or structural damage)
there is an obligation to cease attacking to permit possible evacuation by crew or
22
passengers.
12.7 FALSE CLAIMS OF NONCOMBATANT STATUS
It is a violation of the law of armed conflict to kill, injure, or capture the
enemy by false indication of an intent to surrender or by feigning shipwreck,
sickness, wounds, or civilian status (but see paragraph 12.3.1). A surprise attack
18. Bothe, Partsch & Solf 214-15; AFP 110-34, para. 5-le. See also paragraph 12.7, note 24
(p. 515).
19. Unmarked or camouflaged captured material may, however, be used immediately. Using
foreign military uniforms or equipment in training to promote realism and recognition is not
prohibited by international law. Cf. Bothe, Partsch & Solf 214.
20. GP I, art. 38(1); AFP 110-34, para. 5-la; AFP 110-31, para. 8-6a(l); FM 27-10, para. 55;
and Bothe, Partsch & Solf 207 n.25; Draft Hague Radio Rules, 1923, art. 10; Greenspan 321; 10
Whiteman 399. See paragraph 11.10 (p. 500). However, a sick or wounded combatant does not
commit perfidy by calling for and receiving medical aid even though he may be intending
immediately to resume fighting.
21. AFP 110-34, para. 5-lg; AFP 110-31, para. 4-2d. Further, the practice of submarines in
releasing oil and debris to feign success of a depth charge or torpedo attack has never been
considered to be unlawful.
22. AFP 110-31, para. 4-2d. There is no duty to cease attack if the disabled aircraft is
nevertheless capable of or intent on causing destruction, as for example were the Kamikaze pilots
during the latter stages of World War II.
23. HR, art. 23(b); GP I, art. 37(1). Since civilians are not lawful objects of attack as such in
armed conflict, it follows that disguising combatants in civilian clothing in order to commit
hostilities constitutes perfidy. This is analogous to other situations where combatants attempt to
disguise their intentions behind the protections afforded by the law of armed conflict in order to
engage in hostilities. ICRC Report, Conference of Government Experts on the Reaffirmation
and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 24
May -12 June 1971, Rules Relative to Behavior of Combatants (1971); Greenspan 61;
Schwarzenberger, International Courts, The Law of Armed Conflict 110 & 114 (1968). See also
paragraph 12.2, note 6 (p. 510).
Deception During Armed Conflict 515
by a person feigning shipwreck, sickness, or wounds undermines the protected
status of those rendered incapable of combat. Similarly, attacking enemy forces
while posing as a civilian puts all civilians at hazard. Such acts of perfidy are
punishable as war crimes.
12.7.1 Illegal Combatants. It is prohibited to kill, injure or capture an
adversary by feigning civilian, non-combatant status. * If determined by a
competent tribunal of the captor nation to be illegal combatants, such persons
may be denied prisoner-of-war status and be tried and punished. It is the
policy of the United States, however, to accord illegal combatants
prisoner-of-war protection if they were carrying arms openly at the time of
27
capture.
12.8 SPIES
A spy is someone who, while in territory under enemy control or the zone of
operations of a belligerent force, seeks to obtain information while operating
under a false claim of noncombatant or friendly forces status with the intention of
28
passing that information to an opposing belligerent. Members of the armed
24. These rules have developed in recognition of the reality that the enemy will be tempted to
attack civilians and the sick and wounded and refuse offers to surrender or negotiate, if it appears
dangerous to respect these persons or offers.
Feigning death in order to escape capture is not prohibited. PWs and downed aircrews may feign
civilian status for escape and evasion, and are not lawfully subject to punishment on that account if
captured. GPW, arts. 83, 89 & 93 in particular, recognize that the wearing of civilian clothing by a
PW to escape is permissible and not a violation of the law of armed conflict. It may, however, result
in disciplinary punishment under the GPW. Bothe, Partsch & Solf 214-15; AFP 110-24, para.
5-le. PWs and downed aircrews should avoid combatant or espionage activities while so dressed
to avoid loss of PW status if captured. AFP 1 10-31 quotes FM 27-10 on the uniform requirements
of ground forces in para. 7-2; para. 7-3 provides a discussion of the policies regarding aircrews.
Of course it may be difficult to establish military identity if apprehended in civilian clothing.
Gathering information while feigning civilian status is discussed in paragraph 12.8 (p. 515).
25. Baxter, So-Called Unprivileged Belligerency: Spies, Guerrillas and Saboteurs, 28 Brit.
Y.B. Int'l L. 323 (1951); GP I, art. 44(3) & (4). See paragraph 11.7 note 53 (p. 491) for U.S.
objections to provisions of GP I, art. 44(3) which blur the distinction between combatants and
noncombatants by according combatant status to persons not recognizable as such at a distance or
who do not carry their arms openly.
26. GPW, art. 5. For discussions of the tribunals, see paragraph 6.2.5.1, note 73 (p. 6-30) and
paragraph 11.8, note 73 (p. 495), 10 Whiteman 150-95, and Green 109.
27. AR 190-8, paragraph 11.7, note 47 (p. 490) at para. 1-5. Cf. NATO STANAG 2044.
Prisoner-of-war protection is not synonymous with prisoner of war status. Illegal combatants are
not accorded prisoner of war status whether or not they were carrying arms openly at time of
capture. See also paragraph 11.7, note 53 (p. 491).
28. Lieber Code, art. 88(1); HR, art. 29; 10 U.S.C. sec. 906 (UCMJ, art. 106); 18 U.S.C. sec.
792-99.
516 Commander's Handbook on the Law of Naval Operations
forces who penetrate enemy- held territory in civilian attire or enemy uniform to
collect intelligence are spies. Conversely, personnel conducting
reconnaissance missions behind enemy lines while properly uniformed are not
spies.
Crewmembers of warships and military aircraft engaged in intelligence
collection missions in enemy waters or airspace are not spies unless the ship or
aircraft displays false civilian, neutral, or enemy marking.
12.8.1 Legal Status. Spying during armed conflict is not a violation of
international law. Captured spies are not, however, entitled to prisoner-of-war
status. " The captor nation may try and punish spies in accordance with its
national law. Should a spy succeed in eluding capture and return to friendly
territory, liability to punishment terminates. If subsequently captured during
some other military operation, the former spy cannot be tried or punished for the
earlier act of espionage.
29. HR, art. 29. See also Green 116-17, 142-43.
30. HR, art. 29; GP I, art. 46(2). GP I purports to extend those protections beyond the zone of
operations of hostile forces to any territory controlled by the enemy, and thus negates the
possibility that members of the armed forces who openly seek to gather and transmit intelligence
information in the enemy's zone of the interior, including crews of reconnaissance aircraft, may be
subject to national espionage legislation. GP I would require only that members of the armed
forces be in any customary uniform of their armed forces that clearly distinguishes the members
wearing it from nonmembers, including any distinctive sign which shows that the activity in
question had nothing clandestine about it. Bothe, Partsch & Solf 265. The United States has not
indicated its acceptance of these new provisions.
31. AFP 110-31, para. 7-4. See Jacobsen, paragraph 12.1.1, note 2 (p. 508), at 21-32 for a
discussion of intelligence gathering on the high seas.
32. HR, art. 24; GP I, arts. 39(3) & 46(1). This is a statement of customary law. Bothe,
Partsch & Solf 264-65; Green 190-91.
33. HR, art. 30; Baxter, paragraph 12.7.1, note 25 (p. 515), at 325. The United States would
grant such persons a trial that meets international standards for fairness. Matheson remarks,
paragraph 11.1, note 2 (p. 481), at 427-28, that the United States "supports] in particular the
fundamental guarantees contained in" GP I, art. 75, that entitle such persons to a trial that meets
international standards for fairness. See also paragraph 6.2.5.4, note 84 (p. 355). See AFP 110-31,
para. 9-2b, for a discussion of the UCMJ and other Federal statutes on espionage, such as 18 U.S.C.
sec. 792-99.
34. HR, art. 31; GP I, art. 46(4). These rules apply only to members of the armed forces,
including members of those resistance and guerrilla groups who qualify under the applicable
international law as members of the armed forces {see paragraph 5.3 and note 11 thereunder
(p. 296)) who gather information under false pretenses. Espionage by civilians remains covered by
HR, arts. 29 and 30, as supplemented by GC & GP I, as well as by the national law of espionage.
Bothe, Partsch & Solf 267.
INDEX
Page
No.
Page
No.
Acquiring enemy character 385
Agreement on prevention of
incidents on and over high
seas 147
Aid to domestic civil law enforcement
officials 241-242
Air:
Defense identification
zones 142
Navigation 138
Archipelagic sea lanes 1 40
International straits 139
Warfare at sea 421
Aircert 385
Aircraft:
Capture of neutral • • • 396
Enemy 407
Interception of intruding 265
Interdiction 407
Military 114
Navigational safety rules 146-147
Sunken Ill
Airspace 25
International 140
Legal divisions 25
National 138
Neutral 379
Antarctic region,
navigation and
overflight 135
Antarctic Treaty of 1959 135,462
Anticipatory self-defense 363
Approach and visit 221
Archipelagic waters 18
Innocent passage 128
Navigation and overflight • • • • 127
Neutral 378
Sea lanes 19, 127
Sea lanes passage 127
Arctic region,
navigation and
overflight
Armed conflict:
Deception during • • • •
Law of, general principles
Mining during
Assistance:
Distress
Entry
Astronauts,
rescue and return • ■ •
Asylum:
International waters ■ ; •
Surrender of refugee
seeking
Territory under:
Exclusive U.S.
jurisdiction
Foreign jurisdiction • ■
Auxiliaries
B
Baselines:
Low-water line
Maritime
Straight
Deeply indented
coastline
Fringing islands
Low-tide elevations ■ • •
Unstable coastline • •• •
Bays
Historic
Belligerent control:
In immediate area of naval
operations
Of neutral communications
at sea
Belligerent nation defined ■ ■
Belligerent personnel interned
by neutral government ■
134
507
290
443
214
120
153
217
218
217
218
112
5
3
5
5,8
5,8
7
6
7-10
11
394
394
366
399
518 Index
Page
No.
Page
No.
Biological weapons
Treaty obligations
U.S. policy regarding
Blockade
Breach and attempted breach
of
Contemporary practice
Special entry and exit
authorization
Traditional rules
Effectiveness
Establishment
Impartiality • • • •
Limitations
Notification
Bombardment, naval and air • • • •
Agreed demilitarized zones- ■ ■ ■
Civilian habitation
Dams and dikes
General rules
Hospital zones, special
Medical facilities
Neutralized zones
1907 Hague symbol
1954 Hague symbol
Religious, cultural, and charitable
buildings and
monuments
Terrorization
Undefended cities
Warning before
bombardment
Booby traps
Broadcasting, suppression of
unauthorized
c
Cables and pipelines
Capture:
Enemy merchant vessels/civilian
aircraft
Exempted enemy vessels/
aircraft
Neutral vessels and aircraft • • • •
477
478
478
390
392
393
392
390
391
390
392
392
391
422
423
423
426
423
425
424
425
498
498
425
423
423
427
451
227
24
408
412
396
Captured personnel of neutral vessels
and aircraft 398
Cartel vessels and aircraft 413
Certificate, noncontraband
carriage 385
Chaplains, protected status 486
Character, acquiring enemy • • • • 385
Charter of the United
Nations 250, 289, 368
Chemical weapons 466
Herbicidal agents 476
Riot control agents 473
Treaty obligations 466
1925 Geneva Gas
Protocol 473
1993 Chemical Weapons
Convention 474
Civil law enforcement officials, aid
to domestic 241-242
Civilian:
Habitation, destruction of • • ■ • 423
Objects, targeting 403
Persons, protected status 481
Population, protected
status 482
Cluster weapons 451
Coastal nation claims,
recognition of 2
Collateral damage 404
Combatants 296
Illegal 515
Command responsibility, law of armed
conflict and 327
Commerce, neutral 380
Communications, belligerent control of,
at sea 394
Contiguous zones 20
Navigation and overflight
of 129
Continental shelf- 23
Contraband 381
Enemy destination 383
Exemptions to 384
Convention on International Civil Aviation
(Chicago Convention) • • - • 140, 265
Index 519
Page
No.
Page
No.
Conventional weapons/weapons
systems 437
Indiscriminate effect 440
Unnecessary suffering 438
Convoy 388, 410
Cultural objects 498
Customary law 297
D
Dams and dikes 426
Deception during armed conflict • • 507
Perfidy 509
Ruses 507
Defense zones, navigation and
overflight 132
Delayed action devices 451
Demilitarized zones 423
Destruction:
Civilian habitation 423
Enemy merchant vessels and aircraft
exempt from 412
Neutral prizes 397
Diplomatic measures of
redress 254
Directed energy devices 452
Distinction, principle of • ■ • ■ 296,401,481
Distress:
Assistance 214
Entry in 120
Feigning 514
Divisions, oceans and airspace • • • 1
Drug interdiction operations ■ • • ■ 244
DOD mission 244
U.S. Coast Guard
responsibilities 244
Use of U.S. Navy ships in ■ • • • 243
Enemy:
Aircraft • • • • 407
Character, acquiring 385
Civilian aircraft 408
Destination 383
Flags, insignia, and
uniforms 512
Enemy merchant vessels 408
Capture 408
Destruction 410
Submarine interdiction 419
Enemy vessels and aircraft exempt
from destruction or
capture 412
Enemy warships 407
Capture/destruction 407
Enforcement, law of armed
conflict 329
Engagement,
rules of- Preface, 245, 263, 305
Escape 493
Espionage 516
Exclusion zones 395
Exclusive economic zones 20
Navigation and overflight
of 129
Exempt vessels and aircraft 412
Expulsion of those seeking
asylum 218
Economic measures of redress ■ • • 256
Electronic protective
identification 500
Embargo 256
Emblem, United Nations 512
Failure to display protective signs and
symbols 499
False claims of noncombatant
status 514
Fishing vessels, coastal 417
Flags:
Enemy 512
Neutral 511
United Nations 512
Flight Information Regions • • • • 141
Force majeure 116
Foreign flag vessels and persons,
protection of 230
520 Index
Page
No.
Page
No.
Fragmentation weapons 451
Freedoms, exercise and assertion of navigation
and overflight 1 43
G
Gas Protocol of 1925 467,473
Guerrillas 491
Gulfs 7
H
Hague symbol of 1907- •••••• '498
Hague symbol of 1954 498
Harbor works 13
Herbicidal agents 476
High seas 23
Navigation and overflight
of 131
Warning areas 132
Historic bays 11
Hospital ships 413
Hospital zones 425
Hot pursuit 235
Hydrographic surveys 130
I
Illegal combatants 515
Incendiary weapons 452
Incidental injury 404
Incidents at Sea Agreement
(INCSEA) 147
Indiscriminate effect 440
Individual responsibility, law of armed
conflict and 328
Innocent passage:
Archipelagic seas 128
Permitted restrictions 118
Temporary suspension 119
Territorial seas 116
Warships 119
Insignia 512
Intelligence collection 116,484,516
Interception of intruding
aircraft 265
Interdiction of enemy merchant
shipping by submarines • • • • 419
Internal waters 15
Navigation and overflight
of ■ 115
Neutral waters 374
International:
Agreements Preface, 299
Airspace 140
Narcotics traffic,
suppression 227
Rules of navigational safety • • • 146
Straits, navigation and overflight of
Waters 121
International Committee of the
^ Red Cross 334
International Court of Justice • • • • 257
International law Preface, 297
International agreements ■ • ■ Preface, 299
Practice of nations Preface, 297
U.S. Navy Regulations Preface
War crimes under 343
International status:
Auxiliaries 112
Military aircraft 114
Military contract aircraft 115
Warships 109
International straits 121
Air navigation 1 40
Not completely overlapped by
territorial seas 126
Overlapped by territorial
seas 121
Interned persons 399, 495
Internment by neutral government,
belligerent personnel 399
Intervention 260
Islands, generally 16
Artificial 16
Index 521
Page
No.
Page
No.
Judge advocates, role in the law of
armed conflict 326
Judicial measures of redress 257
Jurisdiction, territorial 217, 218
L
Labor, prisoner of war 493
Land mines 448
Lands, neutral • ••■■•••■•• 371
Lasers • 452
Law:
And war 289
Neutrality 365
Law enforcement (See Maritime law
enforcement)
Law of armed conflict:
Adherence 323, 324
Applicability Preface, 324
Command responsibility 327
Department of the Navy
policy 324
Enforcement 329
General principles 290
Individual responsibility 328
Sources 297
Lawful targeting, principles of • • • 401
Lethal and incapacitating
agents 468
London Protocol of 1936 410
Low-tide elevations 7
Low-water line 5
M
Marine scientific research 130
Maritime baselines 3
Maritime law enforcement 231
Consensual boarding 240
Constructive presence 237
Hot pursuit 235-237
Jurisdiction to enforce 234
Foreign vessels 235
Stateless vessels 239
U.S. vessels 234
Jurisdiction to proscribe 232
Nationality principle 233
Passive personality
principle 233
Protective principle 233
Territorial principle 232
Universal principle 234
Limitations on exercise of • • • 240
Posse comitatus 241
Use of DOD equipment and
facilities- • 243
Use of DOD personnel 242
Medical aircraft 413
Medical facilities 424
Medical personnel, protected
status 486
Merchant vessels, enemy 408
Military aircraft:
Contract aircraft 115
Defined 114
Status 114
Military measures 257
Military objectives, targeting • • • • 402
Military surveys 130
Militia 483
Mining:
Current technology • 442
During armed conflict 443
Peacetime 442
Misuse of protective signs, signals,
and symbols 510
N
Narcotics traffic, suppression of
international 227
National:
Airspace 25, 138
Waters 14, 115
National Command
Authorities Preface, 343
522 Index
Page
No.
Page
No.
Naval:
Forces used to repress
piracy 225
Mines 441
Presence 258
Navicert 385
Navigation:
Air 138
Archipelagic sea lanes 1 27
International straits 121
International waters 121
National airspace 138
National waters 115
Rights/freedoms, exercise and
assertion of 143
Navigational safety rules 1 46
Neutral:
Acquiring enemy character ■ ■ • 385
Airspace 379
Archipelagic waters 378
Commerce 380
Duties and rights 367, 400
Flags, insignia, and
uniforms 511
Internal water 374
Lands 371
Nation defined 366
Platforms, signals for
identification of 501
Ports and roadsteads 371
Prizes in 374
Replenishment and repair
in 373
Stay and departure 372
Prizes 374
Status 367
Straits 377
Territorial seas 375
Passage in 376
Territory 370
Neutrality:
Self-defense arrangements • • • • 370
United Nations 368
Neutralized zones 425
Noncombatant evacuation
operations
Noncombatants
Protected status
Status, false claims
Noncontraband carriage, certificate
of
Nonmilitary measures
Non-Proliferation Treaty
NOTAM/NOTMAR
Nuclear:
Arms control treaties, U.S.-
U.S.S.R.
Free zones, navigation and
overflight of
Powered vessels
Test Ban Treaty
Weapons
General rules on use of • • ■
Treaty obligations
regarding
o
Oceans, legal divisions
Offshore installation
Outer space
Activities in
Astronauts, rescue and
return of
Law of
Objects, return of
Treaty
Over-the-horizon weapons
systems
Overflight:
International waters
National waters
Rights/freedoms, exercise and
assertion of
231
296
481
514
385
254
464
132
464
136
110
463
459
459
461
1
16
26
149
153
149
154
461
454
129
115
143
Parachutists, protected status
Partisans
488
491
Index 523
Page
No.
Page
No.
Passage:
Archipelagic sea lanes ••■••• 127
Innocent 116
Transit ■ 121
Peacetime mining 442
Perfidy 510
Permitted deceptions 507
Permitted uses, protective signs/
symbols 499,503-505
Personnel of captured neutral vessels
and aircraft 398
Persons, interned 495
Belligerent, by neutral
government 399
Pipelines , • • • 24, 131
Piracy:
Defined 222
Pursuit 226
Repression of 221
Use of naval forces to
repress 225
Polar regions, navigation and
overflight of 134
Ports, neutral 371
Posse comitatus 241
Presence, doctrine of
constructive 237
Principles of lawful targeting • • • • 401
Prisoners of war:
Escape 493
Labor 493
Loss of status 514
Protected status 481
Punishment of 492
Temporary detention 494
Prizes:
Belligerent, in neutral
ports 374
Destruction of neutral 397
Prohibited deceptions • 509
Prohibition, slave transport 226
Proportionality 404
Protected status 481
Protecting power 333
Protection:
Foreign flag vessels and
person
Merchant vessels, property,
persons • •
Persons and property at sea- ■ ■ ■
U.S. nationals
Protection, U.S. flag vessels, citizens, and
property in foreign internal waters,
archipelagic waters, and
territorial seas
In foreign contiguous zones and
exclusive economic
zones
Protective signals for medical units
and transports
Electronic
Misuse of
Radio
Visual
Protective signs and symbols • • • •
Misuse
Protective symbols, other
Pursuit, hot
Q
Quarantine
Quarter
R
Radio signals, protective
Reciprocity
Recognition, coastal nation
claims
Reconnaissance
Recovery, U.S. government property
lost at sea
Red crescent
Red cross
Red Cross, International Committee
of
Reefs
Refuge, temporary
230
228
213
229
229
230
500
500
510
500
500
496
510
497
235
216
349
500
342
2
516
228
496
496
334
13
219
524 Index
Page
No.
Page
No.
Regimes of oceans and airspace
areas • 3
Regions, polar 134
Religious, cultural, charitable buildings
and monuments 425
Repression of piracy, use of naval
forces in 225
Reprisal 335
Authority to order 341
Immunity from 340
Requirements 338
Requests for asylum /refuge,
inviting 220
Rescue • • 213
Duty of masters • • • • 215
Duty of naval commanders- ■ ■ ■ 215
Responsibility regarding war crimes:
Command 327
Individual 328
Rights:
Self-defense 259
Riot control agents, use of
In armed conflict 473
In peacetime 476
River mouths 12
Rivers 12
Roadsteads 16
Neutral 371
Rules, navigational safety 146
Rules of engagement Preface
JCS Standing ROE 245, 263, 305
Ruses 507
s
Safe harbor 213
Safety zones 25
Seabed Arms Control Treaty • • • • 461
Search:
And rescue ' 486
Visit and 387
Seas, high 23
Navigation and overflight of • • • 131
Seas, territorial ■■ 15
Navigation of 116
Security zones 23
Navigation and overflight
of 132
Self-defense:
Anticipatory 263
Right of 259
Shelves, continental 23
Shipwrecked, protected status ■ • ■ 484
Sick, protected status 484
Signals:
Identification by 500
Protective 500
Signs and symbols, protective- ■ ■ ■ 496
Slave transport, prohibition 226
Sources:
International law Preface, 297
Law of armed conflict 297
Sovereign immunity 110
Space law 149
General principles 150
International agreements 151
Natural celestial bodies 151.
Related international
agreements 152
Rescue and return of
astronauts 153
Return of space objects 154
Space, outer 26
Defined 149
Spies 492,515
Straight baselines 5
Straits:
International, navigation/overflight
of 121
Neutral 377
Stratagems 507
Submarine:
Interdiction, enemy merchant
shipping 419
Warfare 419
Suffering, unnecessary 438, 440
Sunken warships Ill
Superfluous injury 438, 440
Surface warfare 407
Index 525
Page
No.
Page
No.
Enemy merchant vessels/civil
aircraft 408
Enemy warships/military
aircraft • • • ■ 407
Surrender 407, 499
T
Targeting, lawful 401
Environmental considerations ■ ■ 405
Incidental injury and
collateral damage 404
Temporary refuge 219
Territorial seas 15
Artificial islands and off-shore
installations 16
Innocent passage 116
International straits 121
Islands, rocks, and low-tide
elevations 16
Navigation of 116
Neutral 375
Roadsteads 16
Territory, neutral 370
Terrorization, prohibitions
on 423,483
Tlatelolco, Treaty of 462
Torpedoes 451
Transit passage 121
Treaty obligations:
Biological weapons 477
Chemical weapons 466
Nuclear weapons 461
Trial, prisoner of war 492
u
Unauthorized broadcasting
suppression 227
Undefended cities 423
Uniforms, use of enemy and • • • • 512
Neutral, use of 511
United Nations:
And neutrality 368
Charter 250, 289
Flag and emblem 512
United States:
Nationals protection 229
Policy regarding adherence to law of
armed conflict 324
Policy regarding biological
weapons 478
Policy regarding chemical
weapons 466
Herbicidal agents 476
Riot control agents 473, 476
Property lost at sea,
recovery 228
Unnecessary suffering 438, 440
Unstable coasdines 6
U.S.-U.S.S.R. agreement on prevention
of incidents on and over high
seas 147
Vessels:
Auxiliaries
Capture of neutral
Navigational safety rules ■ •■ ■
Warships
Violations of law of armed conflict,
duty to report
Visit and search
By military aircraft
Procedures for
Visual signals, protective
w
War, law of • • .• •
War crimes
Jurisdiction over offenses- ■ ■ ■
Trials:
Acts legal or obligatory under
national law
After hostilities
Defenses
During hostilities
Fair trial standards
112
396
146
109
325
387
389
388
500
289
343
353
357
351
355
350
354
526 Index
Page
No.
Page
No.
Military necessity 356
Sanctions 358
Superior orders 355
Under international law 343
Warfare:
Air 421
Submarine 419
Surface 407
Warning areas 132
Warning before:
Attack 482
Bombardment 427
Warning shots • • • 246
Warships:
Auxiliaries 112
Defined 109
Enemy 407
Innocent passage •* 116
International status 110
Nuclear powered 110
Right of approach and visit • • • 221
Sunken Ill
Waters:
Archipelagic 18
Internal 15
International 19
National 14
Neutral 374, 375
Weapons:
Biological 477
Chemical 466
Conventional 437
Nuclear 459
White flag 499
Women and children, special
protections 483
Wounded, sick, and shipwrecked,
protected status 484
Zones:
Air defense identification • • • • 1 42
Contiguous 20
Exclusion 395
Exclusive economic 20
Nuclear free 136
Safety 25, 503
Security 23
War 395
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