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Full text of "Annotated supplement to the commander's handbook on the law of naval operations"

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. 



A NNE XES 

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 

A NNE XES 

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 L 4 Ed.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 WATERS 27 

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 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 

Belarus 2 

Bosnia-Herzegovina 

Bulgaria 

Cambodia 

Croatia 

Czech Rep. 

Czechoslovakia ' 

•i 
Denmark 

Dominican Rep. 

Fiji 1 

Finland 

9 5 
German Dem. Rep. ,D 

Haiti 

Hungary 

Israel 

Italy 2 

Jamaica 
J i 
Japan 1 

Kenya 

Latvia 

Lesotho 

Lithuania 

Madagascar 

Malawi 

Malaysia 

Malta 

Mauritius 

Mexico^ 

Netherlands 1 ' 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 States 1 

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 

Albania 1 ' 2 

Australia- 3 

Austria 

Belarus 1 ' 2 

Belgium 

Bosnia-Herzegovina 

Bulgaria 1 ' 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. 

Fiji 3 

Finland 

IOC 

German Dem. Rep. '^'^ 
Germany, Fed. Rep. '^ 
Guatemala 

Haiti 

1 9 
Hungary ' 

Indonesia 

Israel 3 

Italy 

Jamaica 

Japam 

Kenya 

Latvia 

Lesotho 

Madagascar^ 

Malawi 

Malaysia 

Mauritius 

Mexico 

Mongolia 2 

Nepal 

Netherlands 3 '" 

Nigeria 

Poland 1 ' 2 

■l 

PortugaP 

1 9 
Romania ' 

Senegal 

Sierra Leone 

Slovak Rep. ,2 

Slovenia 

Solomon Islands 

South Africa 

Spain 2 

Swaziland 

Switzerland 

Thailand 

Tonga 

Trinidad & Tobago 

Uganda 



1 9 
Ukraine ' 

1 7 
Union of Soviet Socialist Reps. '' 

United Kingdom^ 

United States 3 

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. 

Fiji 2 

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 

Netherlands 2 ' 7 

New Zealand 

Nigeria 

Norway 2 

Poland 

Portugal 

Romania 

Sierra Leone 

Slovak Rep. 

Solomon Is. 

South Africa 

Spain 1,2 

Swaziland 

Sweden 

Switzerland 

Thailand 2 

Tonga 

Trinidad & Tobago 

Uganda 

Ukraine 

Q 

Union of Soviet Socialist Reps. 
United Kingdom^ 
United States 2 
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 

Netherlands 2 

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 States 4 ^ 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 


1986 a 


Chile 




China 


1996 


Colombia 


1988 


Costa Rica 


1989 


Cote D'lvoire 




Cuba 


1983 a 


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 


1986 a 


Japan 





1996 



1985! 
1986 



1996 a 
1988 



1985 a 



1991 

1992 a 

1987 a 

1997 

1996 



1981 

1989. 

1986 



1994 a 



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 1991 a 

Pakistan 

Portugal 1986 

Romania 

Saudi Arabia 

Senegal 1989 

Somalia a 

Soviet Union (now Russia) 1984 a 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 Sound b ' 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 Riga a (USSR) 

White Sea (USSR) 

BayofCheshsk(USSR) 

Bay of Bajdaratsk (USSR) 



Bay of Penzhirisk (USSR) 

Peter the Great Bay a ' d (USSR) 

Gulf of Tonkin 3 - 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 Bay a (Australia) 

Encounter Bay (Australia) 

Lacepede Bay (Australia) 



B. Bays previously claimed as historic 



Delaware Bay D (USA) 
Chesapeake Bay (USA) 
Ocoa Bay (Dominican Republic) 
Samana Bay (Dominican Republic) 
Neyba Bay (Dominican Republic) 
Bay d'Amatique (Guatemala) 



Bay ofelArab a (Egypt) 
Sea of Azov b (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) 



Denmark ' '" 
Jordan a 
Singapore 1 
Palau 



Four nautical miles (1) 



Norway a 



Six nautical miles (3) 



Dominican Republic '" 

Greece a » e 

Turkey* 



Twelve nautical miles (122) 



Albania^ 

Algeria 3 

Antigua and Barbuda a 

Argentina 3 

Australia 3 . '** 

Bahamas 3 

Bahrain 3 

Bangladesh 

Barbados 3 

Belgium 

Belize 3 .g 

Brazil 3 

Brunei 

Bulgaria 3 ' '" 

Burma 3 



Cambodia '" 

Canada 

Cape Verde 3 '" 

Chile 3 

China 3 

Colombia 

Comoros 3 '" 

Cook Islands 3 

Costa Rica 3 »" 

Cote d'lvoire 3 '" 

Croatia 3 

Cuba 3 

Cyprus 3 ' " 

Djibouti 3 

Dominica 3 



Egypt 3 

Equatorial Guinea 3 

Estonia 
Fijia,c,d,h 

Finland 3 > D >°> d 

France 3 ' 1 

Gabon 

Gambia, The 3 

Germany 3 ' '" 

Ghana 3 

Grenada 3 

Guatemala 3 '" 

Guinea 3 

Guinea-Bissau 3 

Guyana 3 



98 Commander's Handbook on the Law of Naval Operations 



Haiti a > c > d 

Honduras 2 

Iceland 2 

India a 

Indonesia 2 '"'" 

Iran 

Iraq 2 

Ireland 2 

Israeli 

Ital y a,c,d 

Jamaica 2 - '" 

Japan 2 ' > d >j 

Kenya 2 » c »" 

Kiribati 

Korea, Norh 

Korea, South 2 '* 1 

Kuwait 2 

Latvia 

Lebanon 2 

Libya 

Lithuania 

Madagascar -" 

Malaysia 2 ' '" 

Maldives 

Malta 2 * 

Marshall Islands 2 

Mauritania 2 



TABLE Al-5 (cont'd) 

Mauri tius 2 ' '^ 

Mexico 2 ' '" 

Micronesia, Fed. States of 2 

Monaco 2 

Morocco 

Mozambique 2 

Namibia 2 

Nauru 2 

Netherlands 2 ' ^ 

New Zealand 2 '^ 

Niue 

Oman 2 

Panama 2 

Pakistan 2 

Papua New Guinea 2 '" 

Poland d 

Portugal 'd 

Qatar 

Romania 2 ' '" 

Russia 2 * '" 

Saint Kitts and Nevis 2 

Saint Lucia 2 

Saint Vincent 

and the Grenadines 2 
Samoa 2 

Sao Tome & Principe 2 '" 
Saudi Arabia 2 



Senegal 2 '" 

Seychelles 2 

Solomon Islands 2 ' '"'" 

South Africa°' d 

Spain 2 ' '" 

Sri Lanka 2 

Sudan 2 

Suriname 

Sweden 2 

Tanzania 2 

Thailand - d 

Tonga 2 ' '" 

Trinidad & Tobago 2 ' '"'" 

Tunisia 2 ' 

Tuvalu 

Ukraine 

United Arab Emirates 

United Kingdom 2 - °' d ' m 

United States '^'" 

Vanuatu" 

Venezuela '" 

Vietnam 2 

Yemen 2 

Yugoslavia, Former 2 ' '" 

Zaire 2 



Twenty nautical miles (1) 



Angola 2 



Thirty nautical miles (2) 



Nigeria 2 ' '" 



Togo 2 



Thirty-five nautical miles (1) 



Syria 



Fifty nautical miles (1) 



Cameroon 2 



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) 



Philippines a ' 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 





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 Philippines a ' 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 


41 1 


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 


1995 a 


Burma 


24 nm 


1982 


1985 a 


Cambodia 


24 nm 




1992 


China 


24 nm 


1992 




Egypt 


24 nm 






Haiti 


24 nm 


1989 


1986 a 


India 


24 nm 






Iran 


24 nm 


1994 


1995 


Korea, North 


50 nm 


1990 


1990 


Nicaragua 


25 nm 




1993 


Pakistan 


24 nm 


1997 


1986 a 


Saudi Arabia 


18 nm 






Sri Lanka 


24 nm 


1986 




Sudan 


18 nm 


1989 


1979 a 


Syria 


41 nm 


1989 


1981 a 


United Arab Emirates 


24 nm 






Venezuela 


15 nm 


1989 




Vietnam 


24 nm 


1982 a 


1982 a 


Yemen 


24 nm 


1982 a 


1979 a 


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 w ithout 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,V J.Vfl" V*.^y_*'',V^,*^y^' .V, ? ,Vj r 1 yy 



jw&VaiTwiV^v-VY.v****^** > *iWi**i**-*"-* - ' y: *° i~? ■».v.y«T^^myjs*»v»*V*V*V \ j Jft *v»'»v* **iVjY^jy«yr jjyffifccjyjs a ' , n yo o <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 




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 *Y cneues , ;- ; . 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 


1985 a 


1964 a 


a 
1979 


1987 


1987 


1982 


1996 


1982 


1982 a 


1982 




1982 


1985 a 




1986 a 


1989 


1991 


1992 a 


1986 a 


1987 




1991 




1989 




1985 


1993 a 


1983 




1989 




1982 a 


1988 


1982 


1988 



1976 
1987 2 

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 


1985 a 


St. Vincent & the 










Grenadines 


Prior permission; 1983 








Seychelles 


Prior notification; 1977 




1982 




Somalia 


Prior permission; 1972 




1982 


1979 a 


Sri Lanka 


Prior permission; 1977 




1986 


1985 a 


Sudan 


Prior permission; 1970 




1989 


1979 a 


Syria 


Prior permission; 1963 




1989 


1984 a 


United Arab Emirates 


Prior permission; 1993 






1995 


Vietnam 


Prior permission; 1980 
Limit on number; 1980 




1982 
1982 


1982 a 


Yemen 


Prior permission (PDRY); 


1967 


1982 


1982 a 




Nuclear power/materials (PDRY); 1977 


1982 






Prior notification (YAR); 


1978 


1986 


1979 a 




Nuclear power (YAR); 1982 


1986 




Yugoslavia, Former 


Prior notification; 1965 
Limit on number; 1986 




1986 a 
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 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 
Haiti 11 






X 


X 


X 






T • 12 
Jamaica 


X 


X 


X 


X 


X 


X 




Mexico 
















Netherlands 

14 
Antilles 1 ^ 




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-Investig ate": 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. 

" Overflig ht": 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 
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 ENGAGEMENT 39 

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 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 


06.03.1978 1 


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 










24.02.1984 2 


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. 1978 3 


R 




28.02. 1978 4 


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) 


16.08.1966 5 


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 


22.08.1991 6 


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 


06.10.1952 7 


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. 1959 8 


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 


31.03.1950 9 


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 


24.09.1963 10 


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 TERRITORY 22 

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. 7