The law of naval operations

INTERNATIONAL LAW STUDIES

1991
THE LAW OF NAVAL OPERATIONS

Edited by
Horace B. Robertson, Jr.

Volume 64

NAVAL WAR COLLEGE PRESS
NEWPORT, RHODE ISLAND

Library of Congress Cataloging-in-Publication Data

The Law of naval operations / edited by Horace B. Robertson, Jr.

p. cm. — (International law studies; v. 64)

Includes index.

1. Naval law. 2. War, Maritime (International law)
I. Robertson, Horace B. II. Series.
JX1295.U4 vol.64
[JX5211]

341 s— dc20 91-30350

[341. 6'3] CIP

Dedicated to the memory of Professor L.F.E. Goldie - scholar, counselor, and
friend.

Contents v
TABLE OF CONTENTS

Page

FOREWORD vii

PREFACE ix

I. Moving International Law from Theory to Practice: The Role of Military

Manuals in Effectuating the Law of Armed Conflict 1

W. Michael Reisman and William K. Lietzau

II. International Law and Naval and Air Operations at Sea 19

Bernard H. Oxman

III. Peacetime Use of Force on the High Seas 38

Louis B. Sohn

IV. International Straits 91

Lewis M. Alexander

V. The Commander's Handbook on the Law of Naval Operations and the
Contemporary Law of the Sea 109

A. V. Lowe

VI. Neutrality 148

Mark W. Janis

VII. Maritime War Zones and Exclusion Zones 156

L.F.E. Goldie

VIII. The Law of Submarine Warfare Today 205

Jon L. Jacobson

IX. Naval Targeting: Lawful Objects of Attack 241

Sally V. Mallison and W. Thomas Mallison

X. Noncombatant Persons: A Comment to Chapter 11 of the Commander's

Handbook on the Law of Naval Operations 300

Frits Kalshoven

XL Nuclear, Chemical, and Biological Weapons 331

Howard S. Levie

vi Law of Naval Operations

XII. Submarine Mines in International Law 351

Thomas A. Clingan, Jr.

XIII. Modern Technology and the Law of Armed Conflict at Sea . . . 362
Horace B. Robertson, Jr.

APPENDIX: THE COMMANDER'S HANDBOOK ON THE LAW OF
NAVAL OPERATIONS NWP 9 (Rev. A), FMFM 1-10 385

INDEX 509

VII

FOREWORD

The International Law Studies "Blue Book" series was initiated by the
Naval War College in 1901 to publish essays, treaties and articles that
contribute to the broader understanding of international law. This, the sixty-
fourth volume of that series, coincides with a renaissance in the study of
international law within the Naval War College and the return of the "Blue
Book" series to the forefront of analysis and development of the rules of law
governing the world's oceans both in time of peace and in time of war.

As editor and contributing author to this volume, Professor Horace B.
Robertson has made a singular contribution to this tradition of legal
scholarship. The principal focus of this work is the Commander's Handbook on
the Law of Naval Operations promulgated within the Department of the Navy
for the guidance of operational commanders and supporting staff elements
of all levels of command of the Navy and Marine Corps. The thirteen
contributors to this volume are among the world's most highly respected
authorities in the field. Each has addressed a separate facet of oceans law
and all have provided an independent, and sometimes critical, assessment of
the articulations of law set forth in the Handbook. While the opinions expressed
in this volume are those of the individual authors and are not necessarily those
of the United States Navy nor the Naval War College, they collectively
provide a valuable contribution to the study and development of the rules
of law governing the conduct of nations on and over the world's oceans. On
behalf of the Secretary of the Navy, the Chief of Naval Operations and the
Commandant of the Marine Corps, I extend to Professor Robertson and the
contributing authors of this informative and provocative work our gratitude
and thanks.

Joseph C. Strasser

Rear Admiral, U.S. Navy

President, Naval War College

IX

PREFACE

It is in accord with the highest traditions of the United States Naval War
College that it should be in the forefront of the development, debate, and
exposition of international law. It is therefore appropriate that in connection
with the promulgation of The Commander's Handbook on the Law of Naval
Operations (NWP 9) by the Department of the Navy in 1987 the War College
should authorize the publication under its auspices of a volume in its "Blue
Book" series marking that event and serving to bring it to the attention of
an audience beyond the Department of the Navy.

The promulgation of The Commander's Handbook on the Law of Naval Operations
is a welcome event. Its predecessor publication, Law of Naval Warfare (NWIP
10-2), was first published in 1955, and although amended on several occasions,
was in need of updating. Further, since naval operational manuals are an
important vehicle for expressing the official views of a government as to its
official position with respect to the international norms governing the conduct
of naval forces in both time of peace and time of war, it is important that
governments publish such manuals at reasonable intervals so that their
positions may be known to other governments, international organizations,
scholars, and others with a concern for the behavior of the Navy in the
international arena. The process of obtaining intra-government agreement
on the norms promulgated also serves as a means of requiring the various
elements of the government that have a legitimate concern with naval
operations to focus on the evolving standards of the relevant international
law and agree as to how naval commanders shall be instructed in this respect.

The structure of the Commander's Handbook differs from its predecessor
manual in two major respects, namely: (1) it is divided into two parts, Part
I dealing with "The Law of Peacetime Naval Operations, " and Part II
covering the "Law of Naval Warfare." NWIP 10-2, the predecessor manual,
dealt exclusively with the law of naval warfare; and (2) it is not footnoted
and annotated but rather is written for "the operational commander," to
enable him "to understand better the commander's responsibilities under
international and domestic law [and] to execute his mission within that law."
(Handbook, Preface.)

Both of these changes are applauded. The addition of Part I, with its
extensive and up-to-date elaboration of the international law of the sea,
provides a much needed guidebook for peacetime operations for naval
commanders and their staffs. The elimination of footnotes, both those
providing sources of the rules and those elaborating or qualifying the rules,
though criticized by some, is, in my opinion, a major improvement. The
footnotes in NWIP 10-2 tended to confuse and frustrate the lay reader.

As stated in the Preface to the Handbook,

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.

For the benefit of "judge advocates and others responsible for advising
commanders on the law," there is an encyclopedic Annotated Supplement to The
Commander's Handbook on the Law of Naval Operations, prepared under the
auspices of the Judge Advocate General of the Navy and the Naval War
College, which has been distributed to appropriate Navy and Marine Corps
legal officers. It contains a section-by-section analysis of the Handbook with
full discussion of the concepts involved and the sources of the rules stated.

The present volume in the "Blue Book" series, The Law of Naval Operations,
was conceived as a vehicle for bringing broader attention to the publication
of the Handbook and stimulating a renewed debate on naval operational law
and the law of armed conflict at sea. The essays that constitute the volume
are not intended to be a comprehensive treatment of all of the subjects dealt
with in the Handbook but rather are focused on some of the more controversial
and significant areas of the law dealt with in it. In some cases they are in
the nature of a critique of the Handbook's treatment of a subject (see, for
example, Professor A. V. Lowe's chapter V, "The Commander's Handbook
on the Law of Naval Operations and the Contemporary Law of the Sea,"
and Professor Frits Kalshoven's chapter X, "Noncombatant Persons: A
Comment to Chapter 11 of the Commander's Handbook on the Law of Naval
Operations"). In others, the authors use the Handbook as a take-off point for
discussions of particular areas of naval operational law or maritime policy
(see, for example, Professor Bernard Oxman's chapter II, "International Law
and Naval and Air Operations at Sea," and Professor Louis B. Sohn's chapter
III, "Peacetime Use of Force on the High Seas").

In all cases, the authors have been free to express their own opinions,
whether such opinions are consistent with those stated in the Handbook or the
positions of the Naval War College or the Department of the Navy. Such
freedom of expression is consistent with the long-standing policy of the Naval
War College to foster open debate by its students, instructors, speakers, and
authors on governmental and naval policies. The editor and authors of this
volume are grateful to the President and staff of the Naval War College for
encouraging this policy of freedom of expression.

The Handbook has been modestly revised since its initial promulgation to
the Fleet in July, 1987 and it is the revised text, denoted "(Rev. A)" that
appears in the Appendix. Because the authors of the essays within this volume

XI

had before them the original text, the changes in the revised Handbook set
out in the Appendix have been underlined. While attachment of the original
text would have been more faithful to the commentary of the authors, it was
considered appropriate that the most up-to-date iteration of the Handbook be
appended to this volume.

I wish to thank each of the authors represented in this volume for their
contributions. I also wish to thank Professor Richard J. Grunawalt and the
other members of the Naval War College faculty and staff for their invaluable
assistance, support, and patience.

Horace B. Robertson, Jr.

Reisman and Leitzau 1

Chapter I

Moving International Law from Theory to
Practice: the Role of Military Manuals in
Effectuating the Law of Armed Conflict

by
W. Michael Reisman* and William K. Leitzau**

Military manuals and handbooks containing operational rules prescribed
by international law (hereinafter "manuals") are important to the
operation of the international legal system for two related reasons. First, they
are the indispensable modality for disseminating normative information to
those whose behavior is the target of the norms in question. Second, they
are an essential component in the international lawmaking process, often the
litmus test of whether a putative prescriptive exercise has produced effective
law. Without adequate dissemination, this putative international lawmaking
is an exercise in the elaboration of myth through lex simulata1 rather than the
installation of an effective operational code.

There is a developmental aspect to both of these properties in the sense
that if they are effectuated adequately, they contribute to the operation of
the sector of international law concerned with armed conflict. There is, as
well, a necessarily comparative aspect to inquiry about these properties in
that this area of law, even more than others, depends for its vigor on
reciprocity. Unless there is a comparable and manifest "scoring" on the
manuals (or their functional equivalents) of adversaries, the symmetry
necessary for reciprocity will be absent and the norms with which they are
concerned are unlikely to be effectively incorporated into international legal
practice.

I. Military Manuals As A Mode of Dissemination

A, The Importance of Dissemination

In small groups and micro-communities, the same persons who make law,
act on it, apply it and enforce it.2 But, as Durkheim observed, the large social
organizations characteristic of most sectors of modern life require labor and
role divisions and refined task specializations.3 As a result, it is not only
probable that entirely different persons will make law, act on it, apply it and

2 Law of Naval Operations

enforce it, but it is also likely that there will be considerable temporal and
social distance between the specialists performing each of these functions.
The phenomenon is not unique to international law. In the United States,
the Supreme Court encounters much the same problem. James Levine writes,

The conditions necessary for Supreme Court efficacy are much more stringent when
the people and institutions to be controlled are farther removed from the Court's range
of command and less threatened by the force of its sanctions. It is much easier for the
Supreme Court to curb a few cantankerous federal judges than to reallocate the
fundamental values of the society.4

"Causal distance, " as Levine styles it, can be an even greater problem in the
more complex international political system.

In large social organizations, effective lawmaking requires an additional
step: the efficient dissemination and effective internalization of authoritative
norms in those persons "in the field" as it were, whose behavior is the target
of the norm in question. The process of dissemination is a necessary component
of any communication that extends beyond the mediation of subjectivities
between two proximate persons. It can be most economically expressed in
terms of Harold D. Lasswell's classic paradigm of Who/ What/ Whom/How/
Results/Effects. Less cryptically, Lasswell's heuristic asks for pertinent
information to be organized in terms of:

Who is communicating (Communicators)

What (Content)

To whom (Target Audiences)

Through what channels (Channels)

With what results (Immediately Changed Subjectivities)

And with what longer term effects (Long Term Changed Subjectivities).5
When information is so organized, the aggregate consequences of a
communication are clarified and the factors that accounted for success or
failure may be analyzed, appraised and made the subject of policy
recommendations.

Our focal content is the law of armed conflict and related internationally
prescribed norms. Audiences may vary depending upon the type of activity
sought to be regulated. Decisions about the use of nuclear weapons, for
example, are unlikely to be made by men and women in the ranks.
Dissemination of norms regarding nuclear weapons employment should
therefore target higher military and political echelons. Comparative
examinations of manuals must take account of variables such as these.

We are concerned with identifying channels because, as is well known,
human beings mediate subjectivities on different levels and with varying
degrees of explicitness. As we will see, contrary messages about prescribed
behavior may be modulated simultaneously through different channels. We
are concerned with results, for lawmaking is not a form of communication
that is ritualistic, with its social functions fulfilled by the action of

Reisman and Leitzau 3

communication itself. It is designed to precipitate social results. To the extent
that it fails to do this, the entire exercise has failed. We are concerned with
longer term effects because prescriptive communications also shape
perspectives about the constitutive process6 and value regulations other than
those which have been manifestly targeted.

In a socially meaningful sense, then, the making of law necessarily involves
much more than the clarification and establishment of some community policy
in authoritative form. If law is to be effective, it must be transmitted and,
where necessary, translated into formulations appropriate for those operating
in the field whose behavior is the ultimate target of the principles in question.
This process, which has been variously described as promulgation,
dissemination, implementation, or publication, is a necessary step if law is
to be transformed from an exercise in theory to a matter of practice.7

Unless a large number of those who are the target of particular formulations
become familiar with and internalize the norms in question, the entire burden
of enforcement is shifted to appliers and is greatly magnified. Their resources
are limited, however, and would hardly suffice for such an enormous task.
Moreover, if the norms they are asked to apply have not been internalized
by a large part of the community, their actions appear arbitrary, retroactive
and ex post facto and undermine rather than reinforce the symbol of law.8
Though many legal systems insist that ignorantia legis haud excusat, all seem to
appreciate that the point of legislative exercises is not to punish those who
prove to be ignorant of the law. It is to get the message across beforehand
to those who are expected to adjust their behavior in accordance with the
norm.9

Dissemination can also precipitate the reciprocal consequence. Where an
international prescription has been internalized at the rank-and-file level, it
may serve to limit violations among the elites themselves. Even when
prescriptive violations appear to serve short-term special interests, elites may
find that there is rank-and-file resistance to norm repudiations. In effect, by
disseminating rules of warfare, national command authorities raise the costs
of violating those rules both in peace and war. Essentially, they are divesting
themselves of power in return for other expected gains. Policy changes must
first be communicated to the appropriate field authorities and then
disseminated to relevant actors — in some cases the individual troops. Even
if successfully communicated, the cost of deviating from a known policy is
much greater than that of simply reversing a government-to-government
statement. Neither personal demands for rectitude nor notions of chivalry
are dead among military personnel. Moreover, the effectiveness of military
units depends on leadership which exemplifies integrity.

The point merits emphasis. Dissemination not only internalizes norms
within the domestic system; it internalizes them within the members of a
warrior class who take their profession seriously. This is not to say that soldiers

4 Law of Naval Operations

can not be made to violate international law; some will predictably do so
in violation of orders. What effective dissemination does mean, however, is
that the default position is set in favor of accepted norms, and the costs of
resetting will have to be weighed.

B. Methods of Dissemination

Law, like all types of learned behavior, can be transmitted in many, not
necessarily exclusive ways: by single or repetitive communication, in manifest
or latent forms, by precept and example, by positive or negative
reinforcement, etc. Transmission can be relatively simple and single-step, for
example, publication in an official gazette, or complex and multi-step as in
a sequential opinion-formation process. Each phase may be inhabited and/
or dominated by different specialist groups which are expected to interpret,
digest and formulate the message in ways that make it comprehensible and
practicable to the level they are serving.

Each phase of the transmission process may, in turn, become a sub-power-
arena, in which politically relevant social forces bring to bear whatever bases
of power are relevant in the setting in order to secure an interpretation and
refashioning of the authorized policy that discriminates in their own favor.10
In politics, as its practitioners know, there is no end to politics and, as the
adage puts it, "nothing is finished until it's done."

Consider, by way of example, the sequence of linkages by which the
Supreme Court's ruling in Miranda11 filtered down from the Supreme Court,
through the law enforcement bureaucracy, to the policemen on the beat.
Institutional interpreters at different levels acted as mediators between the
Court, with its general policy objective, and the actual law enforcement
officers. The mediators, sensitive to contexts of application in ways in which
the Court could not have been, introduced nuanced changes as they
reformulated the Miranda doctrine into an operational code. There were many
steps in this translation, involving attorneys in the Department of Justice, in
many local police departments reflecting regional diversities, and finally
commanding officers and police officers in lower grades. Before the principles
became established, there were numerous feedback loops and challenges to
the courts, with reinterpretations of various sorts.12 Academies and private
interest groups made their power felt at many points. The media played an
important role, both in transmitting the normative content of Miranda and
its social importance, while firmly anchoring it in folklore. The point of
emphasis is that a sequence of steps of this sort is indispensable if formal
prescriptions are to be even minimally effective.

The dissemination of general normative information to the modern military
is substantially the same as dissemination to any other sub-specialized
organization. Hence one will not be surprised to discover, at the constitutive
level, authorized channels for dissemination,13 authorized symbols denoting

Reisman and Leitzau 5

normative information and its level of importance14 and, at lower and more
mundane levels, the handbooks, manuals and loose-leaf collections15 so
symptomatic of large, contemporary social organizations operating in the
fluid environments that are the quintessence of modernity.

But the dissemination of international legal information and, in particular,
that part of it now known as the "law of armed conflict" makes the military
organization distinctive. The dissemination of normative information is
ordinarily eufunctional, incorporating and reinforcing the organization's
authority. In contrast, the dissemination of the law of armed conflict in the
military is (i) premised on a distinct supra-organizational authority, that is
(ii) assumed to be competent to prescribe behavior which by definition
contributes to the operation of the larger system but, at the same time, limits
and may even undermine the particular military organization which has
incorporated it. An important element of this prescribed behavior is
reciprocity, which must sometimes be ascertained by the actors subject to
the norms. Thus, the disseminating scheme is of critical significance in this
context, for it represents the closest parallel to an "act" which can verify
national intent. Moreover, it is the only means to achieve deterrence, since
there are few opportunities for employment of "example" in which a post
hoc violation/punishment nexus can be observed. Hence dissemination of
normative information in the military setting is marked by simultaneous
contrary organizational dynamics in which some authoritative elements are
pressing for compliance while others are resisting it.16

These unique features of the law of armed conflict are important in
comparative appraisals of dissemination. Precisely because there are strong
organizational dynamics militating against norm implementation,
dissemination must be contextually and systematically analyzed, not simply
acknowledged via a perfunctory check for the presence or absence of a manual
containing certain verbal formulae. Unless information in the manuals is
accompanied by secondary guidance or metacommunications indicating the
gravity and preeminence of the information, and the transmission is embedded
in an enforcement system which is adequate and vigilant, manuals themselves
mean nothing. And unless comparable manuals are in operation and in
evidence in the different latent war communities, much of the normative
information in the manuals may not be acted upon.17

One may, then, examine the effectiveness of a military manual in terms
of content, mode of delivery, the secondary norms establishing its relative
position in the effective normative hierarchy, its system of enforcement and
reciprocity. Let us consider each of these components briefly.

(i) Content: We are not interested in the existence of a manual on
the simple-minded assumption that all manuals are the same.18 Of critical
importance is the specific content of the manual under examination in terms
of more generally prescribed international norms. It is not enough to develop

6 Law of Naval Operations

a mechanical checklist to verify that certain items are in the manual. How
they are translated into the pertinent vernacular and with what nuance and
shading are also important. Content must be examined not only in terms of
what is manifest in a particular manual, but in terms of the aggregate of orders
about action putatively regulated by the law of armed conflict. Consideration
should also be given to the relative ease with which a provision could be
perversely construed to allow for self-serving interpretations in the future.
In short, inquiry must identify the larger, functional manual and not only
the words enclosed by pasteboard covers on which the word "manual" is
emblazoned. Training publications and other instructional material regarding
tactics may, for example, implicate referenced norms. If, by way of
hypothesis, classified orders were to state that, on the occurrence of certain
contingencies, those orders come into operation and override normative
material that is found in any other communication, those orders would have
to be considered part of the manual.

(ii) Mode of Delivery or Vehicle: Normative information may be
conveyed in many forms. The advantage of a manual, especially in a
hierarchical setting, is that it is relatively precise and unchanging, allowing
for standardization and clarity in communication and ease in ascription of
responsibility. It is also relatively easy to disseminate.19 Each operative may
be given a complete manual. The test is not satisfied, however, unless the
content of the manual is in fact disseminated to the appropriate levels in
credible fashion.20 Timing here can be of moment since early indoctrination
might stimulate more resistance to a potential violation.

Equally relevant, a manual simplifies international surveillance. While one
should resist elevating form over substance, form here is of decided
importance. Written prescriptions have a permanence which makes
repudiation observable even to those not targeted by the dissemination.21
There is a greater political cost involved in violations which are inconsistent
with previous governmental statements. On the other hand, there are military
organizations or situations in which manuals may be inappropriate. Where,
for example, officers and ranks are illiterate or semi-literate, other vehicles
for dissemination must be sought.22 Likewise, dissemination should take
account of the decision-making level of the target. Each sailor, for example,
need not possess a manual explaining the juridical bay concept.

(iii) Secondary Norms: Unless a manual is identified by secondary
norms within the organization as of transcending importance, it is not worth
the paper on which it is printed. The key norms in this regard are, first, the
preeminence of international law over national law and second, that superior
orders do not constitute a defense to a violation of international law. These
secondary norms must be effective. Here again, words do not suffice. The
expectations of the effectiveness of norms are sustained and reinforced by
the availability of manifest and credible methods of implementation; norms

Reisman and Leitzau 7

erode into lex simulata if it becomes apparent that there is neither means nor
will to implement them. During combat, the more proximate authority and
control system will prevail over the more distant. Hence, from a practical
standpoint, it is important that the substantive content of the international
norm be incorporated before conflict. This will constitute effective
superordination of international over national law.23

(iv) Systems of Enforcement: There must be an environing
indigenous system of enforcement of the norms which is sufficiently manifest
and efficient to become part of the expectation pattern of those whose
behavior is the target of the norms in question. This component is closely
tied to that of secondary norms in that it is the domestic enforcement system
which gives teeth to the acknowledged preeminence of international law.24

(v) Reciprocity: The military organization must provide for an
accurate method for determining whether adversarial behavior is reciprocal
where reciprocity is an element of continuing validity.25 It is important that
there be distinctions between the inevitable single unauthorized violations
of prescribed norms, on the one hand, which should not authorize suspension
of the norms by the other party, and systematic authorized violations, which
should warrant suspension.26 Without the means for making such distinctions,
certain norms are likely to be suspended shortly after the first shot is fired.27
On the basis of the foregoing factors, comparative appraisals of the
effectiveness of military manuals may be expressed in terms of a general
quotient. More importantly, these distinct inquiries may be useful in terms
of identifying pathologies with particularity and targeting them for
appropriate remedies.

II. Military Manuals As Part Of The Process
Of Making International Law

In addition to their important function in dissemination and transmission
of international legal information, manuals are an important mode for making
international law as well as evidencing its existence.

Lawmaking, in any setting, involves the determination and communication
of normative information accompanied by authorizing symbols and credible
indications of control intention. In organized national systems, the popular
and scholarly conception of this activity has involved prescription through
legislatures and other highly institutionalized prescribing modes.

Consensual international law is essentially made in two ways: by explicit
agreement and by implicit agreement — which is usually referred to as custom.
Explicit agreement includes treaties, the classic mode, as well as many newer
methods involving explicit clarification of policy in an organized arena.
Implicit agreement includes all the modes by which authoritative policy is
informally arrived at and intercommunicated.

8 Law of Naval Operations

With regard to international law concerning the conduct of military
conflict, manuals are important in both modes. Even when norms are
prescribed in formal settings, a critical phase in their consolidation is national
incorporation. Because international law notoriously lacks its own
enforcement system, national implementation is often a critical factor in
successful international lawmaking. The content of manuals, while not
absolutely probative that particular international norms are being effected
at the national level, is a conditio sine qua non for their implementation.
Certainly, both the absence of a manual or the use of manuals whose content
does not include the relevant norms would strongly suggest that those norms
have not been adopted.28

Manuals play an even larger role in processes of implicit agreement. In
the international system, as is well known, the bulk of international
prescription is accomplished through processes which are informal and non-
institutionalized. The critical building block in these processes is national
action. It is not surprising that the U.S. Military Tribunal at Nuremburg stated
that while not in themselves a competent source of international law, "[army
regulations], as they bear upon a question of custom and practice in the
conduct of war, might have evidentiary value, particularly if the applicable
portions had been put into general practice."29 Customary law is even more
significant to the law of naval warfare since, it has been argued, attempts
to codify norms relevant to land warfare have historically enjoyed more
success than similar attempts regarding naval warfare.30

Some international norms are formed by homologous national action.
Consider The Scotia case31 in which Justice Strong ruled in favor of a British
ship which had collided with an American vessel. He found that British orders
regarding navigational lights had in fact become international law.
Homologous national action may be evidenced in manuals or their functional
equivalent.32 Given the competitive character of their enterprise, specialists
in adversary organizations will scrutinize the operational codes of their
opponents to determine whether particular international norms have been
adopted and put into effect.33 The extent to which they have will obviously
influence the willingness of others to adopt and act on them.

The chivalric code of the Middle Ages was largely generated in this fashion.
Since a vast majority of warriors, like the population at large, were illiterate,
a written manual would have been pointless. Functional manuals transmitted
authorized norms of warfare through a familiar oral tradition. Froissart
recorded a fourteenth century incident which evidences the existence of this
functional manual. Upon surrender, three French knights gave themselves to
their English captors saying, "We are yours: you have vanquished us. Act
therefore to the law of arms."34

A number of norms in the contemporary law of armed conflict may be
traced to this pattern of lawmaking. Even in antiquity rules of warfare were

Reisman and Leitzau 9

often orally disseminated to troops. Cyrus, King of Persia (559 B.C.),
Alexander the Great (333 B.C.), and Titus of Rome (70 B.C.) all insisted that
their troops observe basic humanitarian rules such as sparing civilian
populations and property and respecting religious buildings.35 Protection of
enemy wounded and prisoners of war can also be traced to earlier oral codes.36
For the latent lawmaking function no less than for the immediate operation
of the laws of armed conflict, it is important that manuals be made available
to potential adversaries.37 Ironically, however, notifying an adversary
regarding battlefield intentions may yield strategic or tactical advantages. It
will be recalled that many in the military felt and still feel that the publication
by Senator Goldwater of Rules of Engagement for part of the Vietnam theatre
undermined U.S. military efforts there.38 There is, thus, an understandable
reluctance to publicize this material. On the other hand, its suppression
decreases the probability of the norms being adopted by the adversary. It
might be useful for the International Committee of the Red Cross (ICRC)
to act as a clearinghouse for such material as a way of facilitating
implementation and reinforcement of this part of the law of armed conflict.39

III. Military Manuals In Future Constructs

Alexander Bickel described the heroes among common law judges as those
who "imagined the past and remembered the future."40 Generals are often
cautioned against fighting their last war. Likewise, those who play a role in
defining legal relationships must keep abreast of developing trends and
technological advances. The probable role of military manuals in future
conflicts is a question as perplexing as that of how the next battle will be
fought.

Many futures can be imagined; in each, the role and degree of effectiveness
of military manuals will vary. In many, however, it would seem that effective
dissemination, which is favorably measured by the criteria laid out earlier,
will have some mitigating effect on the harshness and cruelty of warfare.
Technological advances and the melange of future conflicts may be significant
factors affecting the impact of manuals on the law of warfare. Dissemination
needs must be constantly reconsidered in light of these concerns.

Burgeoning technologies can significantly increase or decrease the number
of actors necessary to perpetrate an act of violence. It is unlikely that the
role of the individual rifleman will ever become obsolescent, but an increase
in irregular warfare can vastly increase the numbers of willing and unwilling
combatants and, as it were, consumers of the law of armed combat. At the
same time, however, each technological advance can also significantly reduce
the number of individual entities who need be concerned with the full range
of the rules of warfare. As more sophisticated and efficient radars, targeting
systems, sensing devices and weapon delivery systems are developed,

10 Law of Naval Operations

battlefield decisions become more concentrated at higher echelons. This is
especially true at sea where improved combat information systems allow
centralized control of myriad weapon systems. Manuals that are to be
continuously relevant will need to focus on the type of decisions made at these
levels.

Concurrent with increased efficiency and destructiveness, modern weapon
systems tend toward increasing the physical distance and reducing the
psychological linkages between the initiator of violence and its recipient. As
victims become more remote, the effect of the principle of chivalry declines
as an influence on conduct,41 and humanitarian law receives less assistance
from other cultural restraints on human behavior. The task of constraining
warfare becomes more difficult. Prescribers must make themselves cognizant
of the effects of such latent pathologies in technology-assisted decision-
making if effective humanitarian norms are to be crafted and maintained.

A related factor affecting future combat is likely to be the development
of advanced rapid communication systems. As observed in recent U.S.
engagements,42 modern communication systems drastically reduce battlefield
decision-making, proportionately diminishing the need for field manuals,
while pushing manual requirements "upstairs."43

On the other hand, the centrality of command and control in modern
warfare will certainly make communications a preferred early target. Current
strategies must consider the likelihood that adversaries will make every
attempt to disrupt communications.44 The same prudence demanded tactically
must be observed when considering the effect of contingencies on observance
of international law. Additionally, commanders' handbooks and manuals can
serve to prepare leaders for contingencies which implicate international law.
While a decision regarding neutral shipping, for example, may indeed be made
at higher levels than that of the on-site commanding officer, prior training
and familiarity with the manual may trigger an awareness of potential
international law problems. Thus, even if the manual is not explicitly used
as a reference to resolve a problem or question, it precipitates an identification
of the issue which can be transmitted to higher echelons or used in split-second
decisions.45

The most unpredictable construct regarding international norms is the
twentieth century phenomenon of "total war." Partly a product of
technological advances, recent wars have entailed an element of totality
involving both mass participation and mass destruction. The ravages of the
First World War led nations to renounce war entirely with the Kellogg-
Briand Pact,46 but they also highlighted the negative effects of losing. While
total war may not have total winners, it can have total losers. Thus, a curious
irony ensues. The current law of armed conflict has been framed by parties
who have rejected warfare in general. Yet, when and if they do ever go to
war, their interest in winning will be compelling, to say the least.

Reisman and Leitzau 11

The potential severity of defeat in modern conflicts aggravates the
compliance problem. Indeed the advent of total warfare has spelled for several
theorists the death of jus in hello. ,47 To some, the psychopathic character of
von Clausewitz's statement, "[t]o introduce the principle of modernization
into the theory of war itself would always lead to logical absurdity," is
elevated to normality in total war scenarios.48 When loss could mean national
extinction, it is reasonable to assume that elites will reconsider past
agreements or decisions which are strategically limiting. In an absolute
conflict, a specific norm will rarely be attributed as much importance as
winning.49

While key components of jus in hello seem likely to be an early casualty
on the battlefield, effective multilateral dissemination could serve to preserve
some lasting import for rules of warfare. Elites might understandably choose
to reject customary rules during a given conflict, but their ability to do so
is severely reduced once the rules have been effectively promulgated as we
described earlier. By the time a conflict escalates to such a level that elites
might consider abandoning norms, manuals will have been used for planning
and training, and the norms they establish will have been internalized by the
military and civilian components of the community.50 The costs of attempting
to change those norms will have been raised.

All putative future legal constraints must take account of reciprocity. If
a given adversary does not demonstrate reciprocal compliance with rules of
warfare, pressure to abandon norms is likely to come from the combatants
themselves. Similarly, the perceived content of the law of armed conflict
could quickly change if one were losing a large-scale war with an adversary
which had not adopted reciprocal normative constraints. Hence the effect
of military manuals may depend not only on the nature of the conflict but
the identity and behavior of the adversary.

In these future constructs, the target of dissemination shifts "upward" to
a few relatively senior leaders. In such an environment, the utility of manuals
both in effectuating and in making law may be greatly diminished. Accepted
norms will not incorporate the stability of wide-spread dissemination, and
secondary constraints will only be effective as they operate on elites. The
effect of domestic systems of enforcement and inherent constraints will be
low and, in a total war setting, the motivation to violate norms may be high.
Assurance of reciprocity, then, must come not through promises of non-use
but through more measurable agreements, e.g. verifiable disarmament,51 or
imaginative new schemes such as programming norms into weapon targeting
systems.

The design of manuals for the total war construct is not the end of inquiry;
the terminology, "armed conflict," instead of "war" or "warfare," suggests
that a certain number of future conflicts are expected to be limited in scope
and conducted in the context of routine peaceful activities or as protracted,

12 Law of Naval Operations

low intensity belligerencies.52 Extended troop-intensive counter-insurgencies
must also be considered as well as limited reprisals and antiterrorist activities.

The resurgence of circumscribed reprisal/self-defense initiatives seen in
recent years53 provide limited opportunities for actual field reference to
manuals due to the above mentioned nature of command and control.
Similarly, specialized antiterrorist or rescue operations are likely to be
specifically and thoroughly planned so as to obviate the need for referencing
a manual of international norms. Therefore, it is all the more urgent to
incorporate a manual of appropriate norms in the formative and training
processes. Manuals will only have value in these conflicts if the norms they
contain have been internalized before the fact.

Guerrilla warfare and other forms of combat which may be extended in
time but limited in scope, could prove to be most suited for effective use
of military manuals.54 In guerilla warfare, decision-making, by necessity, must
be delegated; the proliferation of inevitable personal contacts gives rise to
the kinds of situations most appropriately addressed in manuals and other
disseminations.55 Unfortunately, this type of combat situation is not
adequately addressed by current conventions and treaties.56

In all of the constructs outlined above, the effectiveness of military manuals
depends on two conditions: (i) dissemination and internalization of the norms
prior to the fact, and (ii) reciprocity. The current focus should be on thoroughly
incorporating international norms into planning and training exercises so that
they will not be quickly jettisoned in combat. Moreover, we must "remember
the future" and consider new schemes for effectively ensuring reciprocal
observance in the evolving social organization of armed conflict.

Conclusion

Manuals are not an end in themselves. They are an instrument for achieving
an end: the prescription and application of a law of armed conflict which
tempers the harshness and cruelty of combat and confines human and material
destruction to targets of military necessity and utility.

Conflict is a social organization which requires a great deal of subjective
and objective symmetry between the antagonists if the conflict is to be
conducted in normatively authorized ways. The lower the level of subjective
and objective symmetry, the more difficult it will be to establish and make
effective norms regarding how armed conflict is to be conducted. Hence one
will find in the socio-political situation the ultimate limits for lawmaking
in this regard.

The point is of moment in any consideration of the possibilities of the
contemporary law of war. It is ironic that perspectives of how civilized
peoples are supposed to fight are relatively homogenous within alliances and,
formal documents notwithstanding, heterogeneous as between manifest and

Reisman and Leitzau 13

latent antagonists. The differences loom increasingly large in confrontations
between the West and Fundamentalist Islamic groups, for the latter draw
upon a history that has authorized and justified terror as a legitimate weapon
for an expanded notion of self-defense. Information available about the
training academies for terrorists in Iran suggest a functional manual, diverging
widely from that common in western military organizations.57 Part of the
contemporary war against terrorism is, in fact, a war of manuals, in which
coercion is being used to make adversaries fight "civilized. " The outcome
of this war is far from certain. If it is lost, future manuals will look quite
different from the one reviewed in this volume. The implications for national
values and domestic political processes could be grave.

Notes

* Wesley N. Hohfeld Professor of Jurisprudence, Yale Law School.
** B.S., U.S. Naval Academy 1983; J.D. Yale Law School 1989.

1 . Lex simulata has been defined as a legislative exercise that produces an apparently operable statutory
instrument which neither prescribers nor target ever intend to be applied. W. Michael Reisman, Folded
Lies (New York: Free Press, 1979), pp. 31-34.

2. Consider, for example, the internal workings of social organizations or "clubs," or the adoption
of procedures by the Constitutional Convention in 1787. For a discussion of law making in micro-
communities see W. Michael Reisman, "Law From the Policy Perspective" in Myres S. McDougal and
W. Michael Reisman, eds., International Law Essays: A Supplement to International Law in Contemporary Perspective
(Mineola, NY: Foundation Press, 1981), pp. 7-9.

3. Emile Durkheim, The Division of Labor in Society (G. Simpson trans.) (New York: Macmillan, 1933).

4. James P. Levine, "Methodological Concerns in Studying Supreme Court Efficiency," Law and Society
Review, v. 4, p. 583, 584 (1970).

5. See, Myres S. McDougal, et al., The Interpretation of Agreements and World Public Order (New Haven,
CT: Yale University Press, 1967), pp. xii-xvi. See Also Harold D. Lasswell, Politics: Who Gets What, When,
How (New York: Peter Smith, 1950) (earlier formulation); W. Michael Reisman, "International
Lawmaking: A Process of Communication," American Society of International Law: Proceedings, 1981, pp. 105-
13 (Harold D. Lasswell Memorial Lecture discussing Lasswell's approach to understanding lawmaking's
communicative nature).

6. This is especially true in those fields in which assessments of reciprocity must be made before
the fact. In other fields reciprocity can be measured because adherence to a norm can be observed. In
the area of armed conflict, however, true, or at least, operational intentions — the intentions that "count" —
cannot be easily observed until after the conflict has begun. Effective dissemination, coupled with the
metacommunication of a military law enforcement system (discussed below), demonstrates intention and
practice. Both serve as earnest for future agreements.

7. Dissemination is required by numerous provisions of treaties addressing the law of armed conflict
for this very reason. See e.g. article 47 of the Geneva Convention (I) for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (6 U.S.T. 3114, T.I.A.S. 3362,
75 U.N.T.S. 31); article 48 of the Geneva Convention (II) for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949 (6 U.S.T. 3217,
T.I.A.S. 3363, 75 U.N.T.S. 85); article 127 of the Geneva Convention (III) Relative to Treatment of
Prisoners of War, 12 August 1949 (6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135); article 144 of the Geneva
Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (6 U.S.T.
3516, T.I.A.S. 3365, 75 U.N.T.S. 287); article 25 of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict, 14 May 1954 (249 U.N.T.S. 240; U.S. not a party); and article
19 of the Protocol (II) Additional to the 1949 Geneva Conventions Relating to the Protection of Victims
of Non-International Armed Conflicts, 8 June 1977 (16 I.L.M. 1448; U.S. not a party).

Protocol (I) Additional to the 1949 Geneva Conventions Relating to the Protection of Victims of
International Armed Conflicts, 8 June 1977 (16 I.L.M. 1391; U.S. not a party) serves as a good example
of the emphasis placed on dissemination; article 6 (training of qualified personnel); article 82 (legal advisors

14 Law of Naval Operations

in armed forces); article 84 (rules of application); and article 87 (duty of commanders). The principal
provision regarding dissemination, article 83, states:

1. The High Contracting Parties undertake, in time of peace as in time of armed conflict, to
disseminate the Conventions and this Protocol as widely as possible in their respective countries
and, in particular, to include the study thereof in their programmes of military instruction and
to encourage the study thereof by the civilian population, so that those instruments may become
known to the armed forces and to the civilian population.

2. Any military or civilian authorities who, in time of armed conflict, assume responsibilities in
respect of the application of the Conventions and this Protocol shall be fully acquainted with the
text thereof.

Id., p. 1427.

8. Some scholars from vanquished countries have opined that norms argued at the Nuremburg and
Tokyo war crimes trials are representative of this detrimental kind of ex post facto prescription. See, e.g.,
Wilbourn E. Benton and George Grimm, eds., Nuremburg, German Views of the War Trials (Dallas, TX:
Southern Methodist University Press, 1955); William J. Bosch, Judgment on Nuremburg (Chapel Hill, NC:
University of North Carolina Press, 1970); Eugene Davidson, The Nuremburg Fallacy (New York: Macmillan,
1973); Chihiro Hosoya, et al., eds., The Tokyo War Crimes Trial (New York: Kodansha International, 1986);
Richard H. Minear, Victors' Justice: The Tokyo War Crimes Trial (Princeton, NJ: Princeton University Press,
1971). Cf Ann Tusa and John Tusa, The Nuremburg Trial (New York: Atheneum, 1984).

9. Even Nuremburg prosecutors had at their disposal evidence demonstrating that international norms
had indeed been disseminated to German officers. See, e.g., "Introduction of the Hague Convention on
Land Warfare in the German Army," Proceedings of the Investigating Committee of the German Constitutional
Assembly and the German Reichstag 1919-1928 (resolution adding the Hague Convention text to the German
Field Manual); "German Military Law and Law of War," Journal of Military Law (German), January 1944,
pp. 389-93 (synopsis of course on military law); and A. Waltzog, Kriegsgerichtsrat der Luftwaffe (1942) (German
Air Force manual).

10. Consider, for example, Senate reservations and understandings regarding various treaties or the
evolution of departmental understandings of "customary law". One example, brought to our attention
by Professor Levie, concerns chemical warfare. After signing the 1925 Geneva Protocol for the Prohibition
of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare,
the Department of the Navy decided that it was in its interest to view the normative content as
representative of custom. The Navy's action may indeed have helped the norm to become custom. See
Howard S. Levie, "Nuclear, Chemical, and Biological Weapons," infra chapter XL

A related example involves the U.S. practice of "restrictively" interpreting the use of straight baselines.
The Commander's Handbook on the Law of Naval Operations, Naval Warfare Publication 9, 1987, par. 1.3.2
[hereafter cited as Handbook]. This shaping of the general norm is a result of the transmission process.
See article 4 of the Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958 (15 U.S.T.
1606, T.I.A.S. 5639, 516 U.N.T.S. 205).

See, generally, Harold D. Lasswell, et al., Propaganda and Promotional Activities (Chicago: University of
Chicago Press, 1969). For material on the bureaucratic process see Peter M. Blau and Marshall W. Meyer,
Bureaucracy in Modern Society, 2nd ed., (New York: Random House, 1971); Michel Crozier, The Bureaucratic
Phenomenon (Chicago: University of Chicago Press, 1964); Henry Jacoby, The Bureaucratization of the World
(E. Kanes trans.) (Berkeley, CA: University of California Press, 1973); Joseph LaPalombara, ed., Bureaucracy
and Political Development, 2nd ed., (Princeton, NJ: Princeton University Press, 1967); Max Weber,
"Bureaucracy," in H. H. Gerth and C. Wright Mills, eds., From Max Weber: Essays in Sociology (New York:
Oxford University Press, 1958). Cf. Robert Presthus, The Organizational Society (New York: Alfred A. Knopf,
1962). For a specific case study see Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis
(Boston: Little Brown, 1971).

11. Miranda v. Arizona, 384 U.S. 436 (1966) (seminal case regarding custodial interrogation and the
exclusionary rule).

12. See, e.g., Adam Carlyle Breckenridge, Congress Against the Court (Lincoln, NE: University of Nebraska
Press, 1970) (detailed account of Congressional reaction to Miranda); Fred P. Graham, The Self Inflicted Wound
(New York: Macmillan, 1970), pp. 305-32 (account of reaction to Miranda); Yale Kamisar, "How to Use,
Abuse— and Fight Back with— Crime Statistics," 25 Okla. L. Rev. 239 (1972). See also Michigan v. Tucker,
417 U.S. 433 (1974) (construing Miranda not to mean that the procedures themselves are rights); State v.
Bliss, 238 A. 2d. 848 (Del. 1968) (Miranda not applicable to minor crimes and traffic offenses).

13. E.g. , Congressional endorsement of executive law regarding the discipline of the armed forces, chains
of command, delegated agencies assigned the task of writing various publications.

Reisman and Leitzau 15

14. E.g. , "Orders" as opposed to "guidelines," posters and their locations, letterheads and other trappings
of officialdom.

15. See Handbook supra note 10; Department of the Army, FM 27-10, the Law of Land Warfare (Washington:
Government Printing Office, 1956); Department of the Air Force, AFP 110-31, International Law — The
Conduct of Armed Conflict and Air Operations (Washington: Government Printing Office, 1976). Lower level
dissemination involves a wide variety of less comprehensive training and instructional publications.

16. Consider the complex situations afflicting many decisions in the Vietnam conflict. The common
use of hamlets to shield Viet Cong combatants and the effective use of snipers, for example, contributed
to tensions with respect to prescriptions against attacking undefended villages and norms regarding
proportionality of response. See Guenter Lewy, America in Vietnam (New York: Oxford University Press,
1978), pp. 230-32.

17. It is important to realize, however, that the very existence of the manual, if adequately internalized,
is of significance regardless of any adumbrations of reciprocal dissemination or compliance. Treatment
of prisoners of war, for example, is an area in which reciprocity can rarely be observed until after the
fact. Additionally, the targets of dissemination will seldom be the same actors who make comparisons
of other operational codes. Thus even without reciprocity, manuals may serve, at least temporarily, to
restrain one force in a manner which will not be reciprocated by the adversary. In a way whose significance
may vary with context, effective dissemination of unreciprocated norms could clearly disadvantage the
complying party.

18. Even historically related military organizations may construe international norms differently in their
manuals. The British equivalent to the U.S. Army's field manual on the law of war states that defectors
should not be treated as prisoners of war. (The British War Office, The Law of War on Land being Part
III of the Manual of Military Law (London: Her Majesty's Stationery Office, 1958), par. 126). U.S. policy,
derived from the same treaty provisions, is the opposite (Howard S. Levie, International Law Studies v. 59:
Prisoners of War in International Armed Conflict (Newport, RI: Naval War College Press, 1979), p. 80). For
differences between the British manual and the U.S. counterpart, see R.R. Baxter, "The Cambridge
Conference on the Revision of the Law of War", Am. Journal of Int'l Law, v. 47, p. 702 (1953).

19. Dissemination via military manuals is an encouraged means. See, International Committee of the
Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949
(Geneva: Martinus Nijhoff, 1987), p. 963 [hereinafter cited as Commentary].

20. The International Committee of the Red Cross [hereinafter ICRC] regularly attempts to define
"credible fashion" in its publications and training programs. See, e.g., ICRC, Dissemination of International
Humanitarian Law and of the Principles and Ideals of the Red Cross, XXIVth ICRC Conference (1981). The ICRC
publishes a monthly periodical on the dissemination of international humanitarian law entitled Dissemination.
It also organizes courses for teaching humanitarian law throughout the world. See "Dissemination Among
the Armed Forces", Dissemination, April 1985, p. 2.

ICRC conferences which have stressed the necessity of dissemination include: Centenary Congress, 1963,
Resolution IV; XXth International Conference of the Red Cross, 1965, Resolution XXI; XXIst
International Conference of the Red Cross, 1969, Resolution IX; XXIInd International Conference of
the Red Cross, 1973, Resolution XII; XXIIIrd International Conference of the Red Cross, 1977, Resolution
VII; XXIVth International Conference of the Red Cross, 1981, Resolution X.

A notable exception to the groups successfully targeted by the ICRC dissemination program has been
the armed forces of Warsaw Pact countries. See Independent Commission on International Humanitarian
Issues, Modern Wars: The Humanitarian Challenge (Atlantic Highlands, NJ: Zed Books, 1986), p. 174.

21. For an example of the potential long-term effects of written manuals on surveillance, see Military
and Paramilitary Activities In and Against Nicaragua (Nicar, v. U.S.), 1986 I.C.J. 14, pars. 113 and 122
(merits 27 June 1986) (Court finding that CIA supplied FDN with a 1983 manual of psychological guerrilla
warfare which advocated certain violations of international law).

Written statements can also focus critical attention on a nation if legal norms espoused in writing are
later rejected. A state may lose the benefit of not signing a specific treaty or convention if it later
promulgates regulations which comport with the norms therein.

22. The ICRC regularly participates in programs to promote the dissemination of international
humanitarian law throughout the world, often in collaboration with the Henry Dunant Institute or the
International Institute of Humanitarian Law. See supra note 20.

23. The point bears emphasis. Genuine humanitarian concerns might cause a soldier to disobey a national
legal requirement, but international law will probably be ineffective in doing the same. Indoctrination
and training of military personnel is such that few would ever consider elevating international law over
national law, especially during war. Superordination must therefore take place within the national system;
national law, with its more immediate and effective sanctioning, must be made to reflect accepted
international norms.

16 Law of Naval Operations

24. Military discipline can be said to serve the dual function of ensuring that orders are carried out
expeditiously and in accordance with the law. See AFP 110-31, supra note 15, pp. 1-5, pars. 1-3. A graphic
example of this latter function with respect to the law of armed conflict is found in article 44 of the
"Lieber Code" of 1863:

All wanton violence committed against persons in the invaded country, all destruction of property
not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking
a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited
under the penalty of death, or such other severe punishment as may seem adequate for the gravity
of the offense.

A soldier, officer or private, in the act of committing such violence, and disobeying a superior
ordering him to abstain from it, may be lawfully killed on the spot by such superior.

Secretary of War, General Orders No. 100, "Instructions for the Government of Armies of the United
States in the Field", 24 April 1863, reprinted in Richard Shelly Hartigan, Lieber's Code and the Law of War
(Chicago: Precedent Publishing, 1983), p. 54.

See also Calley v. Callaway, 519 F.2d. 184 (1975), cert. den. 425 U.S. 911. Lieutenant Calley's court martial
demonstrates one answer to the need for an enforcement scheme in the post-Nuremburg world of limited
conflicts. Several provisions in the Uniform Code of Military Justice parallel or may implicate international
humanitarian law. See, e.g., art. 90 (Assaulting or willfully disobeying superior commissioned officer);
art. 92 (Failure to obey order or regulation); art. 93 (Cruelty and maltreatment); art. 97 (Unlawful
detention); art. 99 (Misbehavior before the enemy); art. 102 (Forcing a safeguard); art. 103 (Captured
or abandoned property); art. 104 (Aiding the enemy); art. 105 (Misconduct as prisoner); art. 106 (Spies);
art. 106a (Espionage); art. 116 (Riot or breach of peace); art. 118 (Murder); art. 119 (Manslaughter); art.
120 (Rape and carnal knowledge); art. 121 (Larceny and wrongful appropriation); art. 122 (Robbery);
art. 124 (Maiming); art. 125 (Sodomy); art. 126 (Arson); art. 127 (Extortion); art. 128 (Assault); art. 129
(Burglary); art. 130 (Housebreaking); art. 134 (General article). Uniform Code of Military Justice, 10
U.S.C. sections 801-940 (1982 and Supp. IV 1986). If other states do not apply similar domestic enforcement
schemes, dissemination of content is likely to be ineffectual.

25. Policies must be determined well before conflict but may be substantially based on expectations
regarding a potential adversary's likely conduct during a future encounter. Since the midst of combat
is too late for identifying pathologies or specific norms which are destined for nullification, we can only
look to "actions" which incorporate or manifestly demonstrate intent to obey (e.g. disarmament and/
or dissemination). The centrality of expectations of reciprocity is dramatic in U.S. policy regarding
chemical weapons. See Handbook, supra note 10, par. 10.3.2.1. The failure to reject second use of such weapons
illustrates the deleterious effect on the norm caused by expected deviations.

26. It is worth noting that the Soviet Union claims to comply with Geneva Convention obligations
to disseminate norms. See I. Blishchenko and V. Grin, International Humanitarian Law and the Red Cross
(Moscow: Executive Committee of the Order of Lenin Alliance of Red Cross and Red Crescent Societies
of the USSR, 1983), p. 36. (the authors state, "[t]he members of the Soviet Armed Forces study the
provisions of international humanitarian law regularly and systematically. . . . All members of the Armed
Forces are familiarized with the texts of the Geneva Conventions. . . . The officer corps thoroughly study
the provisions of international humanitarian law." Id., p. 39. For an extensive compilation of various state
claims regarding dissemination see ICRC, Dissemination of Knowledge and Teaching of International Humanitarian
Law and of the Principles and Ideals of the Red Cross, Answers from Governments and National Societies to the I. C.R. C.
Questionnaire, XXIVth ICRC Conference, (1981) [hereinafter cited as Answers].

27. It is important to differentiate those norms which are based primarily on reciprocity and those which
are not. Where absolutist concepts animate a construction of the rules, they will justify adherence regardless
of reciprocity. Some norms will be upheld for good order and discipline or to prevent grossly uncivilized
behavior. See, Thomas Nagel, "War and Massacre" in Charles R. Beitz, et al., eds., International Ethics
(Princeton, NJ: Princeton University Press, 1985), pp. 53-74. Internalizing norms within the rank-and-
file can thus have an effect even outside of reciprocal agreement.

28. Even if a norm has been adopted, lack of a written manual greatly reduces the costs involved in
later disavowing it. Expectations therefore cannot be drawn.

29. Trials of War Criminals Before the Nuremburg Military Tribunal (Washington: Government Printing Office,
1950), v. XI, p. 1237. The effect of this dictum is unfortunately blurred since its focus was the incompetence
of regulations in authoritatively defining international law. The statement defeats a defense claim that
U.S. Army Regulations encouraged obedience even to unlawful orders.

30. See Robert W. Tucker, Naval War College International Law Studies, 1955: The Law of War and Neutrality
at Sea (Washington: Government Printing Office, 1957), p. 26.

31. The Scotia, 81 U.S. (14 Wall.) 170 (1871).

Reisman and Leitzau 17

32. Cooperative intergovernmental efforts in the development of manuals may assist in the process of
international norm formulation. See Baxter supra note 18 (discussing collaborative efforts between the
United States and Great Britain in updating army field manuals).

33. There seems to be little evidence that systematic comparisons are being made in the United States.
The ICRC has been actively monitoring disseminations however. See Answers supra note 26; and
International Institute of Humanitarian Law in San Remo, Annexe documentaire (1972) (containing extracts
from the Federal Republic of Germany Military Instruction Manual, the U.S. Field Manual, the French
Regulations on general discipline in the armies, the British Manual of Military Law, the Italian "Law
of War" and the Swiss Manual on Laws and Customs of War).

34. Kervyn de Lettenhove, ed., Oeuvres de Froissart (Brussels: 1869), tome VIII, p. 43, reprinted in M.H.
Keen, The Laws of War in the Late Middle Ages (London: Routledge and Kegan Paul, 1965), p. 1 (treatment
of early codes and the principles of chivalry).

35. Kuhn, "Responsibility for Military Conduct and Respect for International Law," Dissemination,
August 1987, p. 1. See also, William E.S. Flory, Prisoners of War (Washington: American Council on Public
Affairs, 1942), pp. 10-15 (discussing treatment of prisoners in ancient and medieval times).

36. See Flory supra note 35. See also Keen supra note 34.

37. Intergovernmental communication of manuals has been specifically encouraged by the ICRC See
Commentary, supra note 19; International Institute of Humanitarian Law supra note 33.

38. "Statement of Senator Goldwater," Congressional Record, 6 June 1976, p. S17551.

39. The ICRC has historically been extremely active in promoting dissemination of the law of armed
conflict. Indeed, the ICRC proposed a third paragraph to article 83 of the 1977 Protocol (I) to the 1949
Geneva Conventions which read: "The High Contracting Parties shall report to the depositary of the
Conventions and to the International Committee of the Red Cross at intervals of four years on the measures
they have taken in accordance with their obligations under this article." Commentary, supra note 19, p.
961, n. 15. The proposal was defeated in plenary. Id., p. 963. The ICRC has begun soliciting dissemination
reports despite the failure to obtain a provision mandating them. See Answers supra note 26.

40. Bickel was quoting Namier in an address originally delivered in the 1969 Oliver Wendell Holmes
Lecture series at Harvard Law School, reprinted in Alexander Bickel, The Supreme Court and the Idea of Progress
(New York: Harper and Row, 1970), p. 13.

41. Legal limits on belligerent conduct are often described as being delineated by three principles: 1)
military necessity (justifying the amount and kind of force necessary to achieve submission of the enemy
with minimal expenditure of human and material resources); 2) humanity (prohibiting all force not
necessary for military purposes); 3) chivalry (prohibiting resort to dishonorable means). See Adam Roberts
and Richard Guelff, eds., Documents on the Laws of War (Oxford: Clarendon Press, 1982), p. 5; Myres S.
McDougal and Florentino P. Feliciano, Law and Minimum World Public Order (New Haven, CT: Yale
University Press, 1961), pp. 521-30; Denise Bindschedler-Robert, "A Reconsideration of the Law of Armed
Conflicts," in Conference on Contemporary Problems of the Law of Armed Conflicts, Report, (New York:
Carnegie Endowment for International Peace, 1971), pp. 14-16; Morris Greenspan, The Modern Law of
Land Warfare (Berkeley, CA: University of California Press, 1959), pp. 313-16.

42. Consider, for example, recent attacks on Iranian oil platforms. Communication resources enabled
the entire action to be directed from the White House. Julie Johnson, "Before the Order for Retaliation,
a Major Effort to Woo Congress", New York Times, 19 April 1988, p. Al:4.

43. The same technological advances have also multiplied the number of situations a commander might
confront. The utility curve for any given instruction or manual must consider the downside of such
voluminous treatment.

44. See Paul Bracken, The Command and Control of Nuclear Forces (New Haven, CT: Yale University Press,
1983), pp. 219-20.

45. See Joseph Metcalf, III, "Decision Making and the Grenada Rescue Operation," in James G. March
and Roger Weissinger-Baylon, Ambiguity and Command (Marshfield, MA: Pitman Publishing, 1986), pp.
277-97 (demonstrating the continued need for relevant decision-making at various levels of the chain of
command). See also Col. William G. Eckhardt, "Command Criminal Responsibility: A Plea for a Workable
Standard," 97 Mil. L. Rev. 1 (1982) (examining the criminal responsibility of superiors for subordinate
misconduct and the need for effective legal standards of professional military conduct).

46. Renunciation of War as an Instrument of National Policy, 27 August 1928, 46 Stat. 2343, U.S.T.S.
796, 94 L.N.T.S. 57.

47. See Michael Howard, "Temperamenta Belli: Can War Be Controlled?" in Michael Howard, ed.,
Restraints on War (Oxford: Oxford University Press, 1979) (arguing that the historical success of rules
depended on the limited nature of relevant conflicts); Elaine Scarry, The Body in Pain (New York: Oxford
University Press, 1985) (criticizing total war); Flory supra note 35, p. 9 (many rules become inapplicable
in total war).

18 Law of Naval Operations

48. Carl Von Clausewitz, On War (M. Howard and P. Paret trans.) (Princeton, NJ: Princeton University
Press, 1976), p. 76. But cf. Michael Walzerjwsf and Unjust Wars (New York: Basic Books, 1977).

It may be appropriate to note that rational explanations have been suggested for the validity of many
of the laws of warfare. Absolutist concepts and natural law arguments would favor adhering to
international norms of warfare without regard to adversary compliance. See Nagel supra note 27. In some
cases utilitarian arguments justify complying with certain rules even from a unilateral perspective. See
R.B. Brandt, "Utilitarianism and the Rules of War," Philosophy and Public Affairs, Winter 1972, p. 145.
Cf. N.W. Royse, Aerial Bombardment and the International Regulation of Warfare (New York: Harold Vinal,
1928) (predicting that only ultimate utility will be able to constrain aerial bombardment). Attention here
is directed to the "problem rules" - rules which disallow a tactically prudent or strategically advantageous
course of action. In extreme situations it is these rules which are in danger of being violated, and it is
these rules which publication in manuals might help to safeguard.

49. Consider the vain attempts to control air power and submarine warfare prior to World War II,
e.g., the 1923 Hague Rules of Aerial Warfare (Department of State, Papers Relating to the Foreign Relations
of the United States, 1923 (Washington: Government Printing Office, 1938), v. I, p. 73; American Journal of
International Law (Supp.), v. 17, p. 245 (1923); id., v. 32, p. 12 (1938); the Proces- Verbal of 6 November
1936 Relating to the Rules of Submarine Warfare Set Forth in Part IV of the London Naval Treaty of
1930 (3 Bevans 298, 173 L.N.T.S. 353).

50. The import of this ramification obviously depends on the specific situation. If violating a norm
requires little additional training or is not particularly offensive to subordinate parties, the manual
limitation will be minimal.

51. Consider, for example, a chemical weapon system capable of being deployed via long-range cruise
missiles. An agreement to prohibit the use of such weapons is meaningless, even if effectively disseminated,
as long as the weapons exist in operational form and military organizations are prepared to employ them.
An elite decision to ignore the agreement would only incur international political costs, as opposed to
the more immediate concerns of reprogramming an entire military community.

52. See, James D. Atkinson and Donovan P. Yeuell, "Must We Have World War III?", U.S. Naval
Institute Proceedings, July 1956, p. 711; Morton H. Halperin, Limited War in the Nuclear Age (New York: John
Wiley and Sons, 1963).

53. E.g., U.S. punitive raids against Libya, the Grenada invasion, the Israeli preemptive attack on an
Iraqi nuclear facility, Chinese attacks on Vietnam, recent U.S. attacks on Iranian oil platforms.

54. For a didactic illustration of the effect of the Geneva Conventions on a limited conflict, see ICRC,
Protection of Victims of Armed Conflict, Falkland-Mahinas Islands (1984) (discussion of humanitarian law as it
applies to the conflict). See also Sally V. Mallison and W. Thomas Mallison, Armed Conflict in Lebanon,
1982: Humanitarian Law in a Real World Setting (Washington: American Educational Trust, 1983) (discussion
of humanitarian law applied to the invasion of Lebanon).

55. See Walter Laqueur, Guerrilla (London: Weidenfeld and Nicolson, 1976) (guerrilla warfare generally);
Walzer, supra note 48, pp. 176-96 (humanitarian law applied to guerrilla warfare).

56. See Keith Suter, An International Law of Guerrilla Warfare (New York: St. Martin's Press, 1984)
(discussing lack of progress in drafting rules for guerrilla warfare); Lewy, supra note 16, pp. 223-70
(provisions of Geneva conventions found inapplicable in many situations due to problematic tactics used
in Vietnam conflict). It is in this type of combat that the U.S. refusal to accept Protocol I to the 1949
Geneva Conventions may have the most impact, since the Protocol changes requirements for prisoner-
of-war status.

57. See Amir Taheri, The Holy Terror: Inside the World of Islamic Terrorism (Bethesda, MD: Adler and Adler,
1987). For historical background see Bernard Lewis, The Assassins: A Radical Sect in Islam (New York: Basic
Books, 1968). For contemporary application see Arsanjani, "The Impact of Islamic Fundamentalism on
International Politics and Law", American Society of International Law: Proceedings, 1988, p. 82 (forthcoming).

Oxman 19

Chapter II

International Law and
Naval and Air Operations at Sea

by
Bernard H. Oxman*

Introduction

T' he publication of The Commander's Handbook on the Law of Naval Operations
(NWP-9) is a suitable occasion for reconsidering the relationship
between international law and naval and air operations at sea in times of
peace.1

The Handbook is replete with articulations of specific rules and principles
of the law of the sea that may be of use to the naval or air commander. Its
purpose is "general guidance" and "not a comprehensive treatment of the
law."2 The rules and principles it articulates relating to navigation and
overflight are expressly based on those set forth in the 1982 United Nations
Convention on the Law of the Sea,3 "[ajlthough not signed by the United
States and not yet in formal effect."4 The Handbook could hardly be
significantly more faithful to the text of the Convention5 had the United States
ratified the text of the Convention and Congress enacted penalties for its
violation.

Still the Handbook contains interesting innovations not found in the
Convention. For example, use of the terms "national waters" and
"international waters"6 was doubtless designed to facilitate an explication
to the non-expert of the law of naval and air operations in the exclusive
economic zone.7 If the summa divisio between "national" and "international"
waters persists as such in coastal areas — a matter open to some doubt — it
might be useful for the commander to know that the classifications set forth
in the Handbook might prove controversial. Unlike the authors of the Handbook,
some coastal states would regard the exclusive economic zone as falling within
the former category and at least some commentators might regard
international straits (and comparable archipelagic sealanes) as falling within
the latter category.

Another arguable innovation is the concept of "assistance entry" into the
territorial sea.8 The concept is appropriately rooted in the ancient duty of

20 Law of Naval Operations

mariners "to assist those in danger of being lost at sea."9 Although the Law
of the Sea Convention does not expressly address the question of entry into
the territorial sea for the purpose of rescue, textual support can be found
in the newly articulated and analogous principle of the Convention that
permits stopping and anchoring while in innocent passage through the
territorial sea "for the purpose of rendering assistance to persons, ships or
aircraft in danger or distress."10 In the principle that the sovereignty of the
coastal state over the territorial sea is subject to other rules of international
law,11 and in the principle that the coastal state's rights and jurisdiction must
be exercised in a manner which would not constitute an abuse of right,12 one
can find ample basis for concluding that the coastal state's rights must be
interpreted in light of the ancient duty to rescue, and that the coastal state
is presumed to consent to bona fide efforts to rescue those in danger of being
lost at sea.

Probably in order to avoid too much confusing detail, the Handbook is also
less than complete on the question of straits overlapped by internal waters.13
Article 35(a) of the Law of the Sea Convention makes it clear that the regime
of straits applies to internal waters established by a system of straight baselines
in accordance with the Convention where the waters enclosed were not
previously considered internal (that is they would not be regarded as juridical
bays, for example). Why then, except perhaps for reasons of economy of text,
is overflight excluded from transit passage of such straits?14 Why is the
discussion of international straits essentially limited to "International Straits
Overlapped by Territorial Seas?"15

All (or at least almost all) of this is as it should be. Taken as a whole, the
Handbook should achieve its purposes admirably. This writer has expressed
his specific views on the legal rules governing naval and air operations at
sea elsewhere, and will not repeat them here.16

What the Handbook does not address, or addresses only in passing, is why
those concerned with naval and air operations at sea should be concerned
with the international law of the sea. Such an analysis is probably beyond
the scope of a handbook of the kind addressed here. But the analysis is essential
if one is to understand what one is probably reading, and why one is reading
it, when one refers to the Handbook.

The Duty to Obey International Law

From the perspective of the naval commander, a fairly simple answer can
be posed to the question, "Why worry about international law?" As the
Handbook notes,17 article 0605 of U.S. Navy Regulations, 1973, states:

Oxman 21

At all times, a commander shall observe and require his command to observe the
principles of international law. Where necessary to the fulfillment of this responsibility,
a departure from other provisions of Navy Regulations is authorized.

The Handbook also attempts an explanation of the underlying reasons for
this duty:

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. Consequently, failure to comply with
international law ordinarily involves greater political and economic costs than does
observance.18

The Handbook does not stop there however. It ventures into the complex
world of law and interest when it states, "In short, nations comply with
international law because it is in their interest to do so."19 This sentence is
not without its ambiguities. Legal restraints are of particular significance
when one perceives an interest in ignoring those restraints. What the authors
presumably mean is that the interest in observing international law ordinarily
outweighs the perceived interest in acting otherwise in a particular instance.

The brief discussion concludes with a declaration at once as terse and as
pregnant as one is likely to encounter: "Like most rules of conduct,
international law is in a continual state of development and change."20
Nothing at all is said about the role of the Handbook itself in this process.
As for the role of naval and air forces, the Handbook asserts:

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 through diplomatic channels all excessive claims of
coastal or island 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 U.S.
has accepted this responsibility as a fundamental element of its national policy.21

What the Handbook appears to be saying is that because the law may evolve
and change, it is important for the United States to influence that process,
where appropriate, using its naval and air forces to that end. More than that,
the Handbook appears to be used to resist attempts by other states to change
the law, particularly "excessive maritime [presumably coastal state] claims"
and "constraints on international navigation and overflight." The "law" that
the United States will defend is expressly identified with the rules of the Law
of the Sea Convention affecting navigation and overflight rights.

We have now moved beyond a mere duty to respect international law as
it is now or as it may evolve in the future. The law of the sea, at least that
part of it governing naval and air operations at sea, has itself become an object
of those operations. Why?

22 Law of Naval Operations

International Law and Large Navies

Large navies operate around the world. Their ships approach or enter the
territory of many states. Their operations are subject to scrutiny within their
own government and legislature, by their own press and public at least in
democratic states, and by the governments, press and people of foreign
countries, whether friendly or hostile. Alone or in combination, every one
of these groups has some actual or potential influence on the ability to define
naval missions and to carry them out. The question of whether they should
have such influence is beside the point.

Few naval missions (other than purely humanitarian assistance) are likely
to be applauded by everyone. Even a peaceful visit to a port of a friendly
country may be an implicit warning to others. The capacity to define and
carry out naval missions is maximized if one maximizes the number of people
with influence over the definition or execution of the mission who believe
that:

(1) the specific mission is desirable;

(2) navies should have the right to conduct that kind of activity in the
manner undertaken; and

(3) navies do have the right to conduct that kind of activity in the manner
undertaken.

Human nature being what it is, there is some likelihood that an individual
who falls within group 1 will also fall within group 2, and that an individual
who falls within group 2 will also fall within group 3. However, not everyone
who falls within group 1 or even 2 will necessarily fall within group 3. For
example, some people who believe that Israel's rescue of hostages in Entebbe
or even its raid on the Iraqi nuclear reactor were, if viewed in isolation,
desirable, also believe that such intrusions into the territory of a foreign state
are (and should be) of doubtful legality.

Moreover, what if a significant number of people with actual or potential
influence over the definition or execution of the mission do not believe that
the specific mission, or its mode of execution, is desirable? The objective in
that case to achieve their acquiescence is facilitated (but by no means
guaranteed) if they are persuaded either that the navy should, or that it does,
have a right to carry out the mission in the manner contemplated.22 To put
the matter differently, the political, economic or military resources that must
be expended to achieve acquiescence are minimized, and often eliminated,
if those whose acquiescence is sought believe a navy does or should have a
right to undertake the action in the manner contemplated.23

Since no government's political, economic, or military resources are
unlimited, the more costly it is to achieve acquiescence, the more limited
are a government's options to choose and execute its naval missions.

Oxman 23

Accordingly, perceptions of what the law is or should be by people with
influence over the definition or execution of the mission have a real influence
over the range of a government's naval options.

Whose Acquiescence is Important?

For purposes of this analysis, a naval or air mission might be divided into
three parts: the objective, the means, and the logistics.

We might assume, for example, that the proposition up for decision is
delivering a warning to some government or group in the eastern
Mediterranean region designed to deter violence or escalation of violence on
land or at sea. We might assume further that the means under consideration
are a substantial augmentation of naval presence in the eastern Mediterranean
Sea. Finally, we might assume that the augmentation would require the
movement of ships from the Atlantic Ocean and perhaps the Indian Ocean,
the former through the Strait of Gibraltar and the latter through the Strait
of Bab-el-Mandeb and the Suez Canal.

The classic argument for maintaining and using a large surface navy in this
manner is nicely summarized in the Handbook:

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.24

Three aspects of this statement require emphasis. First, it is normally
assumed that the naval forces will be positioned "near areas of potential
discord," that is near land, and may engage in naval maneuvers once there.25
This is true whether one wishes to influence the behavior of regular or
irregular land forces or the behavior of armed ships or boats likely to operate
mainly in coastal areas. Second, it is normally assumed that some
"positioning" in response to the specific mission is required, i.e. that the ships
will have to be moved into position from elsewhere. Third, it is assumed that
the positioning may be achieved "without political entanglement and without
the necessity of seeking littoral nation consent."

Taken together, these assumptions presuppose the acquiescence of three
different classes of foreign states. The first class comprises the state or states
near whose coast the force will be positioned. The second class consists of
the state or states off whose coast the ships will navigate en route to their
position. The third class embraces other states with global or "blue water"
navies.26

Let us assume that states in all three classes either oppose, do not wish to
support, or do not wish to appear to support the mission. The question then

24 Law of Naval Operations

becomes one of acquiescence. The various classes of states will be examined
in reverse order in this connection.

1. Other Naval Powers

Much attention is normally devoted to the third class and, in particular,
the Soviet Union. History has demonstrated that the United States and Soviet
navies and air forces, notwithstanding occasional lapses into pubescent
behavior,27 are reluctant to engage each other far from their shores (and
exercise at least relative caution even in their own waters). The reaction of
other major naval powers is therefore ordinarily a political rather than strictly
military consideration, although one must of course bear in mind that political
cost may reduce one's flexibility to undertake a mission.

Moreover, because the same rules normally apply to all, it may be assumed
that governments with large navies generally believe all states have, or should
have, the right to do what large navies generally do. In other words, much
as the Soviet Union may dislike a particular United States naval mission in
the eastern Mediterranean Sea, or the United States may dislike a particular
Soviet naval mission in the Caribbean Sea, each is likely not only to concede
(albeit privately) the legal right of the other to do what it is doing, but perhaps
even welcome (albeit silently) the augmentation of state practice in support
of the kinds of operations large navies undertake.28

From this analysis, one may draw at least the following inferences regarding
the effect of the international law of the sea on the acquiescence of other
naval powers' in operations off the coasts of third states. The naval powers
have no desire to engage each other directly. The law of the sea would appear
to be relevant to the degree of acquiescence obtained from other naval powers
in two different ways. If the naval powers disagree on what the law of the
sea rules are or should be, and that disagreement involves the question of
whether there has been an incursion on the territory or rights of a third state
by the naval power undertaking the mission, the disagreement could force
a more severely negative reaction by the other naval power either in principle
or because of political or defense commitments to the third state. Conversely,
if the naval powers agree on what the law of the sea rules are, and those
rules are observed, the perception that the power undertaking the mission
is within its rights — and that other naval powers wish to preserve the right
to do the same thing elsewhere — may increase the degree of acquiescence,
that is dampen the political opposition.

This is the first illustration of a basic point central to the relationship
between the law of the sea and naval and air operations at sea: to the extent
that the law of the sea is relevant to the question of acquiescence by a foreign
power, its relevance depends not on what the naval power undertaking the
mission believes its rights to be, or even on whether that belief is well founded

Oxman 25

in law, policy or good morals, but rather on whether the powers concerned
agree or disagree with each other on what the rules are.

2. States Off Whose Coast Ships Will Navigate En Route to Their Position

The Handbook assumes that ships will be able to navigate to their intended
position "without political entanglement and without the necessity of seeking
littoral nation consent." In this case, the reference is therefore to the
acquiescence of states off whose coasts ships will navigate en route to their
position. In this connection, the political, military, and psychological question
of what constitutes a route close to the coast of another country must be
distinguished from the strictly legal question of what rights a state may claim
and exercise in waters off its coast. For purposes of this analysis, the
acquiescence of a state "off whose coast" one must navigate is relevant if
that state has the means and the will to disrupt, or otherwise increase the
political, economic or military cost of, the mission.

A route close to land may be selected because of geographic necessity. For
example, a ship cannot enter or leave the Mediterranean Sea without
traversing a strait (or canal) at some point. Some seas are so constricted that
one is rarely far from land. A route close to land may be selected for reasons
of safety or weather. It may also be selected because it is substantially shorter
and more convenient than an alternative route. The same considerations may
apply in the case of military aircraft where consent to overfly land territory
is unavailable.29

The acquiescence of states along a selected route therefore affects the
mobility of naval forces as well as the mobility of air forces for which consent
to overfly land territory is unavailable. Such acquiescence affects naval and
air transports in the same way, whether used to move ground or amphibious
forces or to deliver material to friendly foreign forces. The number of states
potentially involved is large and difficult to predict. It depends on the location
of possible missions, the location of ships when assigned such missions, and
the routes selected.

In considering the implications of this problem, one must bear in mind that
states do not have balanced bilateral reciprocal interests in the right to
navigate off each other's coast without consent.30

One reason for the imbalance relates to geographic position. Not many
states have an overwhelming interest in navigating close to the coast of the
United States without consent, despite the enormity of the UnitecLStates
coastline. Many would perceive a far greater interest in navigating close to
England and France, Spain and Morocco, Greece and Turkey, Oman and Iran,
or Singapore, Indonesia and Malaysia.

Another reason for the imbalance relates to naval capacity, defense
strategy, and foreign policy. Very few states maintain global navies or a

26 Law of Naval Operations

defense strategy or foreign policy that entails deployment of their navies at
great distances from their own shores. While it is true that a significant
number of states rely, explicitly or implicitly, on the mobility of a global
navy for protection from another global power or ambitious regional powers,
not many are likely to attach a high priority to this interest without insistent
reminders from their naval ally. Moreover, in some regions, particularly semi-
enclosed seas, it is fashionable to believe that elimination of the right of
warships (of global navies) to navigate in the region would, by removing the
great naval powers, promote peace and stability. These views are sometimes
inspired by regional powers whose ambitions may be held in check by the
actual or potential presence of a global navy.

The significance of the imbalance means that unlike other naval powers,
states along the route taken to a mission position will not necessarily perceive
a strong interest (if any) in the proposition that navies should generally have
the right to navigate close to the coast in order to take the necessary or most
convenient route to their mission destination. Thus, to the extent one wishes
to encourage their acquiescence in the use of the route off their coast, one
must often rely more on their perception of what the law is than on their
perception of what the law should be.

The acquiescence of this particular group of states is central to any concept
of flexibility to deploy forces at sea. Prudence requires the planner to
anticipate that a naval force may provoke political resistance and retaliation,
or even armed resistance, once the force reaches its mission position
(especially when the very purpose of the mission is to deter violent behavior
by those in the region). But what if, even in peacetime, the decision-maker
must deal with such contingencies not only at the mission destination but in
connection with the movement of ships to their destination?

Several methods for promoting acquiescence are possible. One is the threat
of armed resistance or retaliation. A cost of this approach is that every naval
mission then requires the potential diversion of additional military resources
to yet another mission, namely defense of the means to reach the mission
destination. In addition, the political or economic costs of threatening friends
and the military costs of threatening adversaries may be too high.

Another method is the threat of economic retaliation. Such retaliation is
in fact more difficult than it appears. Those responsible for international trade
policy can be expected to resist interference with trade either in principle
or because the United States as well as the target state would be hurt.

Moreover, absent an extreme emergency, forceful military or economic
measures are unlikely to be used unless those individuals with substantial
influence over decisions by the government of a major naval power believe
there is a legal right to use the route in question. In other words, before one
can effectively pressure the foreign state to acquiesce, one must have
persuaded one's domestic constituency of the right to use the route. That

Oxman 27

constituency will include all relevant participants in government decision-
making (including defense and foreign ministry lawyers), members of the
legislature, informed and influential members of the public, and at least some
influential friendly foreign leaders. Therefore, even if one chooses to ignore
international law as such as the means to obtain acquiescence from the foreign
states concerned, one would probably need to use international law to
persuade the relevant domestic constituency to threaten military or economic
retaliation.

One also may purchase acquiescence. Those familiar with the full political,
military, and economic costs of some base-rights agreements could doubtless
appreciate what it would cost to buy, on a bilateral basis, acquiescence in
the right to navigate along all foreign coasts likely to lie astride the approaches
to possible mission destinations. As previously noted, very few states would
perceive a reciprocal interest in the right to operate warships (or even
merchant ships) off the United States coast. Most would wish something in
return that they would not otherwise receive; many would insist that the value
to them of what is received be comparable to the value to the United States
of the mobility of its naval forces; a goodly number would reserve an explicit
or implicit right to renegotiate terms or end the arrangement; and some would
refuse (or would be forced by political pressures to refuse) to deal at any
conceivably acceptable price.31 One must also bear in mind that purchasing
(agreeing bilaterally on the existence of) rights to navigate in one place
arguably implies that exercising such rights in similar areas elsewhere requires
agreement of the coastal state.

This analysis suggests that the international law of the sea would be a useful
tool in helping to induce the acquiescence of foreign states lying along the
route to a particular mission. A variety of tactical considerations reinforce
this conclusion.

While the number of states that perceive a direct interest in the global
mobility of warships may be small, the number that perceive an important
interest in the free movement of international trade by sea is quite large. By
linking the two in a single principle of freedom of navigation or free transit
of straits, one can substantially increase the number of governments that
believe all ships (and therefore warships) should have a right to navigate along
the coast where necessary to reach their destination.

Some governments would have difficulty gaining domestic acceptance of
the premise that all warships, or warships of a particular state, have been
accorded a right to navigate off the coast. Their capacity to act on the basis
of such a premise is enhanced if the right is not localized, but rather derives
from a global rule applicable to all similarly situated coastal states
everywhere.

This being said, we must recall the object of the exercise: inducing the
acquiescence of states lying along the routes used to reach the mission

28 Law of Naval Operations

destination despite their opposition to, or unwillingness to support, the mission
itself. This is then the second illustration of the basic point, referred to earlier,
central to the relationship between the law of the sea and air operations at
sea.

The challenge then is to affect the perceptions of others as to what the
law is (what some term their "expectations").

One way is to persuade them that the particular proffered rule of law serves
their interests. The potential for using this approach has already been
discussed.

Another way is to rely on habit. There is some tendency to associate the
factual status quo with the legal status quo. If your neighbor crosses your land
regularly, you are more likely to believe that he has a right to do so or, perhaps
more importantly, that you would be disrupting good-neighborly relations
("legitimate expectations founded on custom") if you tried to stop him. Thus,
whatever the theoretical relationship between a program of exercise of rights
and the preservation of rights under international law, foreign states as a
practical matter are more likely to acquiesce in activities off their coasts that
occur regularly and without serious impairment of their interests.

Still another way is to influence directly the foreign state's perceptions
of legitimacy, that is, to operate from a platform of principle likely to be
accepted by the foreign state in determining its own behavior. One thing is
certain: a platform of principle unilaterally enunciated by the naval power
(including its legislature and its domestic partisans) is not likely to be regarded
by foreign states as "law" necessarily binding on them.

To induce foreign acquiescence in navigation rights important to naval
mobility, we must find propositions that:

(1) are understood to allow activities important to naval mobility, and

(2) are accepted as law by the states off whose coast one must navigate.
The most commonly cited repository of such propositions is called

customary international law, fairly defined by the Handbook as 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."32 But
if this is so, have we come full circle?

The object of the exercise was to use law, rather than or in conjunction
with other means, to induce foreign acquiescence at the lowest possible cost.
Yet we are now told that this law rests on general and consistent practice
among nations. Therefore, in order to ensure our first objective, namely that
the law is understood to allow activities important to naval mobility, we will
have to discourage states everywhere in the world from engaging in practices
to the contrary. Whether we are especially interested in the actual or potential
need to use an area off the coast of a particular state, we must discourage
the emergence of new practices inconsistent with our view of what the
relevant law is and needs to be.

Oxman 29

When we object to the change in practice, the foreign state could accurately
quote the Handbook: "[L]ike most rules of conduct, international law is in a
continual state of development and change."33 The foreign state might add:
If law changes, and if customary international law is rooted in general
practice, then the only way customary law can change is if general practice
changes, and the only way general practice can change is if someone starts
the process alone.

How then do we ensure that state practice is generally consistent with the
existence of rights necessary to naval mobility? One way is by investing
political, economic, and even military resources in the endeavor. This means
that those concerned with the maintenance of an international law of the sea
that encourages acquiescence of foreign states in naval operations must
constantly persuade their colleagues in government that this is an objective
worth the investment of national resources. Their task is not an easy one.
The same people are frequently asking for money to acquire and maintain
the ships and personnel necessary to have a navy. The political or economic
costs of doing more than protesting adverse claims (practice) by a foreign
coastal state are likely to be more immediate or apparent than the abstract
erosion of a legal position.

Another possibility is to place more direct emphasis on the element of
acceptance of a legal obligation and less on practice. One example would
be a treaty setting forth the relevant rules and accepted by all. This is exactly
what was attempted in the negotiation of the United Nations Convention
on the Law of the Sea.34 But for serious disagreements on the question of
mining of seabed hard minerals in areas beyond (at times well beyond) 200
miles from any land, it appears that the Convention might have achieved very
widespread ratification, thus by definition setting forth rules regarded by
foreign states as legally binding on them. Moreover, since the Third United
Nations Conference on the Law of the Sea, a very large number of states
seem prepared to accept all or virtually all of the propositions set forth in
the Convention as an authoritative source of law binding on all.

The Handbook, the Statement of the President on United States Oceans
Policy,35 and other government statements represent an effort to use the treaty
strategy under the rubric of customary international law. They declare that
the propositions set forth in the U.N. Convention on the Law of the Sea reflect
customary international law. Where the Convention text is sufficiently
precise, legal argument is then largely confined to interpretation of the text
as if it were a treaty, with little if any attention devoted to state practice.
States that make claims or undertake activities regarded as inconsistent with
the propositions set forth in the Convention are told that their activities are
inconsistent with the Convention and therefore illegal under customary
international law.

30 Law of Naval Operations

The reason for this approach is obvious. The propositions set forth in the
Convention are generally understood to allow activities important to naval
mobility. Because the Convention was negotiated largely by a consensus
procedure over a long period of time with the participation of the entire
community of states, it enjoys substantial legitimacy as a source of rules
binding on all. Thus, from the perspective of naval mobility, there is nothing
to gain and a great deal to lose by allowing inconsistent state practice to
overtake the Convention as a source of law in any specific instance or, even
more importantly, in principle.

It is open to serious doubt whether a government that refuses to ratify the
Convention, or even to renegotiate the objectionable deep seabed mining
provisions, can succeed in the long run in persuading foreign governments
to respect as law the provisions of the Convention affecting navigation,
overflight and related naval activities. But the authors of the Handbook,
compelled to accept that risk for the present, are almost certainly correct
in concluding that treating the Convention as if it were a treaty in force for
all, including positive "enforcement" of its provisions if need be, represents
a policy regarding the law of the sea most likely to achieve the underlying
naval objective: acquiescence by others in activities important to naval
mobility at the lowest possible cost.

It is in this context that the provisions of the Handbook regarding the exercise
and assertion of navigation and overflight rights and freedoms might be
understood.36 The strategy for inducing foreign acquiescence in naval
activities seems to be one of combining habit with the textual legitimacy of
the Convention. The Convention serves a double function in this regard. First,
it is the most plausible platform of principle from which to seek to encourage
foreign acquiescence. Second, because of its international pedigree, it is the
most plausible platform of principle from which to seek domestic support
for a sometimes risky or costly program of exercise of rights and freedoms
designed to establish a pattern, or habit, of naval activity around the world
permitted by the Convention (at least as understood by the United States).

3, States Neat Whose Coast the Force Will he Positioned

Much of the analysis set forth in the previous section is relevant to the
question of positioning forces off a state "without the necessity of seeking
littoral state consent.,, The most important new element is that the objective
of deploying forces "without political entanglement" becomes a larger part
of the equation.

In principle, it is of course difficult to station a naval force off any area
of actual or potential conflict "without political entanglement." Indeed, the
very objective is "a show of force" or "a symbolic expression of support
and concern." The key to the point being made in the Handbook is that
'[ujnlike land-based forces," naval forces may be positioned near areas of
potential discord without political entanglement. The salient difference

Oxman 31

would appear to be the possibility of positioning naval forces near areas of
potential discord without introducing a military presence into the territory
of a foreign state, particularly one that is the scene, object, or source of the
discord.

This facility can be important in two opposite situations. In one situation,
the appearance of the naval force off the coast of a state may be designed
as a warning to those threatening that state or its government. If the naval
force is deemed to be located outside the coastal state and its consent is not
required for the force to be positioned in the area, then both the coastal state
and the naval power can reap the benefits of the force's presence without
necessarily implying any political or military alliance or arrangement, and
in particular without the stationing of armed forces of a major power on the
territory of the state concerned.

In another situation, the appearance of the naval force off the coast of a
state may be designed as a warning to that very state's government. If the
naval force is deemed to be located outside the coastal state and its consent
is not required for the force to be positioned in the area, then the coastal
state is in a position to react to the message as it deems best without the need
to defend its territory from intrusion, while the naval power is in a position
to send a very strong and direct message without necessarily entangling itself
in armed hostilities.

To an important degree, the positioning of the naval force in both of these
scenarios depends on the coastal state's perception of the extent of its maritime
territory and jurisdiction. In some circumstances, the political or military
consequences of entering a maritime area claimed by the coastal state may
be the same whether or not that claim is recognized by the naval power.
If the purpose of the mission is to support the government of the coastal state,
one would presumably prefer to avoid, if possible, a potentially embarrassing
dispute over an intrusion into what the coastal state regards as its territory.
If the purpose of the mission is to warn the government of the coastal state
while minimizing the risk of direct military engagement, the risk of a military
or political reaction to an intrusion into the state's claimed waters must be
considered even if the claim is not recognized by the naval power (and perhaps
others).37

This, then, is a third illustration of the basic point, referred to earlier,
central to the relationship between the law of the sea and naval and air
operations at sea.

Naval and Air Operations at Sea,
International Law and Domestic Politics

The influence of the international law of the sea on domestic politics has

32 Law of Naval Operations

two important implications for naval and air operations at sea. Both relate
to the restraints on and costs of deploying naval or air forces in furtherance
of political, military or economic objectives.

A deployment may be opposed for legal reasons by either supporters or
opponents of a mission. Legal objections may preclude a decision to deploy,
may increase the domestic political costs of the deployment, or may erode
domestic support for the mission and more generally for the maintenance of
military and naval options. The greater the doubts about the international
legality of a naval operation, the greater the difficulty one may encounter
in assembling and maintaining the necessary domestic support. A foreign
ministry will not necessarily accept a navy's view of what the law permits;
a legislature will not necessarily accept a foreign ministry's view; and an
informed public will not necessarily accept the legislature's view. In brief,
the international pedigree of the platform of principle on which a naval
mission is based must be almost, if not quite, as great for domestic reasons
as for international ones.

The maritime interests of a large naval power are by no means limited
to the preservation of its options to deploy its navy at will to different parts
of the world. Like those of most coastal states, its people would probably
want uninvited foreign navies to stay far away, control of as much of the
ocean's natural resources off the coast as possible, stronger measures to
intercept illegal immigrants and smugglers, and would probably fear an
environmental catastrophe not only from tankers and oil rigs off the coast
but perhaps from nuclear armed or powered warships or aircraft. If the
paradigm coastal state might prefer a thousand-mile territorial sea for itself
without regard to the global consequences, the paradigm maritime power,
since it is also a coastal state, would probably prefer a thousand-mile
territorial sea for itself and a three-mile territorial sea for everyone else.

Limiting the authority of coastal states over the use of the sea off their
coasts is important to global navies and, more broadly, global deployment
of armed forces; to international trade and communications; and to those
fishermen who seek their livelihood off foreign coasts rather than their own.
Most remaining ocean interests either favor increased control of the sea by
coastal nations, or are unconcerned with the issue. Accordingly, the legislators
of even great naval powers are under constant pressure to expand the coastal
state's control over the oceans in one area or another or for one purpose or
another.

This pressure presents a global navy with two problems. First, it cannot
plausibly assert rights off foreign coasts that its own government denies
foreign ships or aircraft off its own coast. Second, and more seriously,
increasing unilateral assertions of coastal state jurisdiction by the great naval
powers tends to legitimate the notion that each coastal state may unilaterally
assert control over activities off its coast to the extent such an assertion serves

Oxman 33

its interests. The fact that a global naval power may perceive an interest in
coastal state control of fishing vessels but not warships does not, from this
perspective, preclude some other state from calculating its interests in a
different way and making different kinds of unilateral claims. The whims
of a quixotic national legislature are unlikely to provide a firm foundation
for a platform of principle from which to seek global acquiescence in the
definition and exercise of legal rights.

The problem is even more severe if the global navy is attempting to
harmonize perceptions of legality around a particular articulation of the law,
in this case the U.N. Convention on the Law of the Sea. The key to this effort
is the legitimacy not merely (and in some cases not principally) of the
particular rule set forth in the Convention, but rather the legitimacy that
flows from the notion that the Convention itself is the reflection of the positive
will of the community of states. Quite apart from the controversy over deep
seabed mining, if the legislature of the naval power exercises the option to
ignore certain proscriptions of the Convention, why should other states not
ignore other proscriptions?

Given the strong competing pressures on their own government and
legislature, the promoters of a law of the sea conducive to foreign
acquiescence in global naval operations are constantly attempting to prevent
domestic laws or actions, often in response to problems of the moment, that
would undermine the navy's long-term global legal position and strategy.
Their ability to persuade their own government to respect certain rules and
restraints depends in part on what domestic decision-makers and their advisers
believe international law requires.

Whether or not one may properly characterize as wishful thinking the view
that customary international law based on the 1982 U.N. Convention on the
Law of the Sea will restrain the behavior of foreign governments as much
as a ratified Convention would, there is no basis whatever for believing that
the United States Congress, in the face of political pressures to the contrary,
is as likely to respect the restraints imposed by an unratified treaty as it is
a ratified one. Indeed, as a matter of the pure theory of customary
international law, it is likely that international custom and practice would
rather quickly conform to virtually any coastal state claim likely to be made
by the United States, precisely because the state with perhaps the greatest
interest in opposing and capacity to oppose the emergence of such custom
and practice is the one making the claim in the first place.

No international legal strategy can alone solve the domestic problem. Those
responsible for promoting a legal climate conducive to protecting the option
of present and future governments to deploy naval forces to any part of the
sea must however recognize that a strategy for ensuring domestic restraint
is at least as important as a strategy for ensuring foreign restraint. Indeed,
an excessive claim by one foreign state may well have no operational

34 Law of Naval Operations

significance and limited legal impact. On the other hand, every domestic claim
by a major naval power automatically limits the options of its navy in every
part of the world, and frequently tempts significant numbers of foreign
governments to make even more ambitious claims.

Conclusion

The willingness of foreign governments to acquiesce in naval operations
has an important bearing on the range, cost and utility of options to maintain
and deploy a navy off foreign shores. The perceptions of foreign governments
regarding the rights and obligations of states with respect to naval operations
may in turn have an important bearing on their willingness to acquiesce in
such operations. Any long-term naval strategy should therefore contain
within it a strategy for influencing the perceptions of foreign governments
regarding the content of the international law of the sea and enhancing their
willingness to respect its proscriptions voluntarily. That strategy should also
include a system for ensuring scrupulous domestic restraint along similar lines.

Any successful strategy for achieving these legal goals will entail some
political, economic, and even military costs. Those costs must be measured
against the importance of maintaining the option to deploy a navy off foreign
shores and the likelihood and costs of obtaining by other means the desired
degree of foreign acquiescence over time and in all the places it may be needed.
Moreover, the alternative costs of different strategies for achieving these legal
goals must be assessed carefully.

The Handbook is a useful part of this process. At the least it encourages
behavior from United States forces consistent with the international legal
positions and objectives of the United States. It is a reasonably accurate guide
to the perceptions of foreign governments primarily because it is based on
the U.N. Convention on the Law of the Sea. Accordingly, it is likely to remain
an accurate guide only so long as the United States and foreign governments
resist the temptation to act in ways at variance with the provisions of the
Convention limiting coastal state powers in principle, and in particular over
navigation, overflight and related naval operations.

It is not likely that many coastal states (or legal commentators) will
conclude that customary international law limits the freedom of action of
coastal states more than the Convention. Any significant change in the law
of the sea is therefore likely to be either neutral or prejudicial from the
perspective of naval operations, not favorable. The Handbook is therefore
correct in seeking to anchor the future evolution of the sea in the principles
of the Convention. It is also correct in emphasizing the importance of a
program of routine exercise of rights and freedoms not only to avoid
perceptions of acquiescence in coastal state claims but to enhance the

Oxman 35

perception that naval operations are normal and lawful. While the point is
not made, such a program is important whether or not there is a ratified
Convention. The meaning and effect of treaties may also evolve in response
to practice.

The question remains whether the objectives of a legal strategy would be
enhanced by a globally ratified Convention on the Law of the Sea. In
considering this matter, two additional questions are particularly important.
First, are governments more likely to respect the restraints on their freedom
of action set forth in a ratified Convention on the Law of the Sea? Second,
are missions for the purpose of exercising rights and freedoms protected by
the Convention, in the face of inconsistent claims or otherwise, more likely
to be supported by the Executive Branch and Congress if they are rooted
in ensuring respect for a ratified Convention?

If these questions are answered in the affirmative, then are the benefits
of a widely ratified Convention worth the costs that may be entailed in
obtaining it? Stripped of the legal and political rhetoric hurled at this issue,
it comes down to a simple question of priorities.

Notes

* Professor of Law, University of Miami School of Law.

1. It is also a suitable occasion for examining the same question with reference to armed conflict.
This writer (fortunately) was not invited to address that subject.

2. The Commander's Handbook on the Law of Naval Operations NWP-9, p. 27 (hereinafter Handbook).

3. United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Pub. Sales No. E.83.V.5
(1983), reprinted in International Legal Materials, Nov. 1982, v. 21, p. 1261 (hereinafter cited as Law of the
Sea Convention).

4. Handbook, supra note 2, par. 1.1.

5. As the United States Navy would be expected to understand it.

6. Handbook, supra note 2, pars. 1.4, 1.5, 1.8.

7. The authors of the Handbook are to be congratulated on an elegant attempt at a solution to the question
of the relationship between the exclusive economic zone and the regime of the high seas. This writer
believes that the question cannot be resolved by assigning a geographic status to the exclusive economic
zone identical to that assigned to the high seas beyond: "The question whether relevant aspects of the
economic zone regime are part of the high seas regime has been resolved by making relevant aspects
of the high seas regime part of the economic zone regime and by deleting the geographic definition of
the high seas." Bernard H. Oxman, "The Third United Nations Conference on the Law of the Sea: the
1977 New York Session," American Journal of International Law, January 1978, v. 72, p. 57 (more generally
at pp. 67-75).

It should be noted nevertheless that insofar as the authors of the Handbook are concerned with the kinds
of operations warships and military aircraft ordinarily conduct in peacetime, rather than with other
activities, they point to a conclusion not markedly different from that previously stated by this writer:

To put the matter differently, warships in principle enjoy freedom to carry out their military
missions under the regime of the high seas subject to three basic obligations: (1) the duty to refrain
from the unlawful threat or use of force; (2) the duty to have "due regard" to the rights of others
to use the sea; and (3) the duty to observe applicable obligations under other treaties or rules of
international law. The same requirements apply in the exclusive economic zone, with the addition
of an obligation to have "due regard to the rights and duties of the coastal State" in the exclusive
economic zone.

Bernard H. Oxman, "The Regime of Warships Under the United Nations Convention on the Law of
the Sea," Virginia Journal of International Law, Summer 1984, v. 24, p. 809, at pp. 837-38 (English adaptation

36 Law of Naval Operations

of an article originally published in Annuaire Francais de Droit International, v. 28, p. 811 (1982)) (hereinafter
the Regime of Warships).

8. Handbook, supra note 2, par. 2.3.2.5.

9. Id.

10. Law of the Sea Convention, supra note 3, art. 18, par. 2.

11. Id., art. 2, par. 3.

12. Id., art. 300.

13. In considering the importance of this question, one might bear in mind, for example, that the baselines
established by Oman extend well into the Strait of Hormuz, and that the question of navigation and
overflight rights in the Arctic Ocean north of Canada and the Soviet Union is not necessarily resolved
even if one were to regard as valid the internal waters claims overlapping part or all of the Northwest
Passage or Northeast Passage.

14. Handbook, supra note 2, par. 2.3.1.

15. Id., par. 2.3.3.1.

16. See Oxman, The Regime of Warships, supra note 7. Some of the matters treated in that article
are not addressed at length in the Handbook. These include the implications of the prohibition on the threat
or use of force for peacetime activities (p. 814), the duty to protect and preserve the marine environment
(p. 819), disclosure of sensitive information (p. 822), reservation of the high seas for "peaceful purposes"
(p. 829), the international seabed area (p. 832), as well as military maneuvers (p. 838), installations and
structures (p. 841), scientific research (p. 844), intelligence collection (p. 846), and residual rights in the
exclusive economic zone (p. 847).

17. Handbook, supra note 2, p. 28.

18. Id.

19. Id.

20. Id. It is possible to infer, at least with regard to the international law of the sea, that the word
"continual" conveys precisely the intended meaning.

21. Id., par. 2.6. The reference is to the following excerpt as quoted from the President's Statement
on United States Oceans Policy of March 10, 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.

President's Statement on United States Oceans Policy, Weekly Compilation of Presidential Documents, v. 19,
No. 10, p. 383 (March 14, 1983), reprinted in International Legal Materials, v. 22, p. 464 (1983) (hereinafter
cited as Presidential Statement).

22. Those contemplating the distinction between agreement with an objective and support for the
freedom to pursue that objective may recall the famous quotation attributed to Voltaire, "I disapprove
of what you say, but I will defend to the death your right to say it." John Bartlett, Familiar Quotations
(Boston: Little Brown & Co., 1980), 15th ed., p. 344.

23. The importance in this type of consideration is a universal feature of law. For example: A and B
are neighbors in a suburb. A paints the exterior of his house yellow. B does not like yellow. B may acquiesce
because B believes A has a right to choose the color of his house, or because B believes A should have
that right. B may hold to that view for a variety of reasons, including B's interest in preserving his own
right to choose the color of his own house. Note, however, that these considerations operate only in a
limited range of tolerances. Should A paint his house black, he is not only less likely to obtain the
acquiescence of his neighbors, but he may bring about an end to the principle that each home owner
in the community has an independent right to choose the color of his home.

24. Handbook, supra note 2, par. 4.3.1.

25. The Handbook specifically refers to the right to conduct naval maneuvers in this context. Id.

26. Another class that may be implicated comprises the state or states from whose ports the warships
normally operate or may need to obtain support. That class is excluded from this analysis because a port
visit requires the consent of the port state and a home-porting or logistical support arrangement may
well entail "political entanglement" with the port state.

27. It is rare that the law prohibits actions that have not occurred and are deemed unlikely to occur.
With this in mind, one may approach with dark amusement a reading of the activities prohibited by the
U.S.-U.S.S.R. Agreement on the Prevention of Incidents on or over the High Seas, May 25, 1972, 23
U.S.T. 1168, T.I.A.S. No. 7379, 852 U.N.T.S. 151, and the Protocol thereto, May 22, 1973, 24 U.S.T.
1063, T.I.A.S. No. 7624. The agreement is described in Handbook, supra note 2, para. 2.8.

Oxman 37

28. A remarkable example of how the interests of major naval powers, even those who may regard
themselves as adversaries, may converge is found in the Joint Statement of United States Secretary of
State Baker and Soviet Foreign Secretary Shevardnadze at Jackson Hole, Wyoming, on September 23,
1989. In their statement the Secretaries state:

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 interest of all States. They recognize the
need to encourage all States to harmonize their internal laws, regulations and practices with those
provisions.

They attach to their Joint Statement a "Uniform Interpretation of the Rules of International Law
Governing Innocent Passage," which, inter alia, states that "[t]he 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. ..." The Uniform Interpretation states explicitly that warships enjoy the right
of innocent passage without the requirement of prior notification nor authorization. "Joint Statement
by the United States of America and the Union of Soviet Socialist Republics," September 23, 1989, reprinted
in International Legal Materials, Nov. 1989, v. 28, p. 1444-47.

29. One assumes, for example, that United States military aircraft en route from bases in Great Britain
to a mission over Libya in 1986 would not have chosen to enter the Mediterranean Sea via the Strait
of Gibraltar had consent to overfly France or Spain been sought and granted (or inferred from existing
military agreements). "The F-lll's flew a route of about 2,800 nautical miles, and over the Strait of
Gibraltar, to avoid flying through the airspace of any other nation, [U.S. Secretary of Defense] Weinberger
said. In response to questions, he said that permission to fly over France had been sought and had been
denied." "Pentagon Details 2-Pronged Attack," The New York Times, Apr. 15, 1986, p. Al, col. 5.

Because the sovereignty of a state extends to the airspace over its territorial sea, because a state may
extend its territorial sea up to 12 nautical miles from the coast, because the Strait of Gibraltar at its
narrowest point is substantially narrower than 24 nautical miles, and because the Strait is completely
overlapped by the territorial sea claims of the coastal states in that narrow area, it is in fact not possible
"to avoid flying through the airspace of any other nation" in order to reach the airspace over the
Mediterranean Sea. At least from the perspective of encouraging foreign acquiescence, the right of a
military aircraft to transit the Strait of Gibraltar, without the need to seek and obtain the consent of
the state whose territorial sea is overflown, rests on the proposition that the right of transit passage of
straits elaborated in the Law of the Sea Convention is in this respect declaratory of customary international
law binding on that state.

30. Since we are discussing navigation off a foreign coast without the need to obtain consent, we exclude
navigation off a state whose port a ship plans to enter or has entered, because port entry itself requires
consent.

31. Considerations such as these presumably played a role in the refusal of the Malaysian government
to base its rights to use the waters of the Indonesian archipelago on a bilateral agreement rather than
on a global multilateral treaty on the international law of the sea.

32. Handbook, supra note 2, p. 28.

33. Id.

34. Law of the Sea Convention, supra note 3.

35. President's Statement, supra note 21.

36. See note 21 supra and accompanying text.

37. "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." Report of the Special Working Committee on Maritime Claims of the
American Society of International Law, Newsletter of The American Society of International Law, March-May
1988, p. 1, 6.

38 Law of Naval Operations

Chapter III
Peacetime Use of Force on the High Seas

by
Louis B. Sohn"

I: Scope of Comment

The subject discussed in this comment — peacetime use of force on the
high seas against foreign vessels — is approached rather gingerly in
Chapter 3 of The Commander's Handbook on the Law of Naval Operations. The
main thrust of the chapter is to protect United States persons and property
at sea by U.S. naval forces in peacetime against actions by pirates, terrorists
or insurgents, and against the hazards of the sea, such as storms or mechanical
failure. But the chapter deals also with such topics as transport of slaves,
international narcotics traffic and unauthorized broadcasting from
international waters; it also deals with the right of U.S. warships to approach
and visit vessels sailing on the high seas under a foreign flag if suspected of
such activities or in other special circumstances.

In the case of the transport of slaves, no direct guidance is given; if
confronted with such situation, "commanders should request guidance from
higher authority/' Similar advice is given in the case of unauthorized
broadcasting. In both cases also it is noted (in paragraph 3.8) that the vessel
may be approached, stopped and boarded, and the ship's documents examined,
in order to verify its nationality. There the advice stops, and nothing is said
about possible search and seizure. While the last sentence of paragraph 3.8
suggests that the procedure for exercising the right of approach and visit is
similar to that used in exercising the belligerent right of visit and search,
it is not clear whether this statement applies only to "stateless vessels" with
which it is linked in a separate subparagraph, or also to other suspected vessels.
It is quite obvious, on the other hand, that the belligerent and peacetime
situations are quite different, and throughout history the United States has
strongly opposed this analogy (as will be documented later in this comment).

The issue of suppression of international narcotics traffic is even more
puzzling, as that traffic is not mentioned at all in paragraph 3.8, which lists
the only situations in which approach and boarding of foreign vessels were
allowed. Reliance is placed instead on "bilateral arrangements" (paragraph
3.6), or "Congressional direction" and "consent" of the foreign flag nation,

Sohn 39

granted by a bilateral agreement or ad hoc for the particular occasion
(paragraph 3.12.4). There seems to be admission here that there is no general
rule of international law authorizing such action, especially if the action
envisaged here should extend beyond approach and visit, including even
arrest, search and seizure.

It might be useful to the commander on the spot, as well as the "higher
authority" which is supposed to provide him with guidance, to explain the
history of the two main efforts to authorize warships to visit, search, and,
if justified, seize the vessels of other nations, and the reasons for the opposition
of some major powers, including for a long time the United States and even
today France, to this "strengthening' ' of the law and of the means to enforce
it. This comment will thus discuss primarily the efforts to strengthen the
control over transport of slaves and international narcotics traffic, with only
incidental references to piracy (where international law developed detailed
rules, which are generally accepted) and to the limited and by now mostly
obsolete arrangements for stopping the smuggling of alcoholic beverages into
the United States.

Since its early days, the principle of the freedom of the high seas has been
subjected to a two-pronged attack: the efforts of some coastal states to extend
their jurisdiction far into the sea, and the assertion by some naval powers
of the right to exercise jurisdiction over the vessels of other states navigating
on the high seas. While the first attack has led to a dramatic diminution of
the area of the high seas, the second attack has led to such strong resistance
that it resulted in only minor inroads on the freedom of navigation of the
high seas. Nevertheless, in the last years of the twentieth century, after
stopping repeated attempts to subject foreign vessels on the high seas to search
and seizure in the name of abolishing the universally condemned slave trade
(which unfortunately still exists under different guises), a new danger to the
freedom of navigation on the high seas has arisen from unilateral attempts
to enforce national legislation on the high seas in an area almost as odious-
traffic in narcotic drugs. In view of this development, it seems useful to
explore the reasons for the persistence of the original opposition to such
encroachments on the freedom of the seas, to consider the applicability of
these arguments to the current situation, and to suggest some means to
overcome the difficulties.1 As this subject is still too vast, this comment is
necessarily limited to a discussion of only some of the rules of international
law which relate to the activities of naval vessels on the high seas in time
of peace, authorizing some and prohibiting others.2

II. Crusade Against Slave Trade

The essence of the great principle of the freedom of the seas is that all
nations have an equal right to the uninterrupted use of the high seas for their

40 Law of Naval Operations

navigation. From this principle flow two additional principles: that a ship
on the high seas is subject only to the jurisdiction of the state whose flag
it flies and that no state has the right to interfere in any manner with vessels
of other states navigating upon the high seas in time of peace. Even in time
of war the right to visit, search or seize a neutral vessel has important limits,
and the state exceeding these limits must pay compensation to the neutral
state for any loss or damage caused to the vessel, its owner, crew, or cargo;
even more, freedom of navigation must be observed in time of peace, and
the violator must pay compensation proportional not only to the damage and
loss, but also to the gravity of the violation.3

These rules have been recognized for at least two hundred years. For
instance, in the often quoted statement in the 1817 Le Louis case, the eminent
British Admiralty judge, Sir William Scott (later Lord Stowell), explained
these principles in the following manner:

Upon the first question, whether the right of search exists in time of peace, I have to
observe that two principles of public law are generally recognized as fundamental. One
is the perfect equality and entire independence of all distinct states. Relative magnitude
creates no distinction of right; . . . and any advantage seized upon that ground is mere
usurpation. This is the great foundation of public law, which . . . mainly concerns the
peace of mankind, both in their public and private capacities, to [be] preserve[d]
inviolate. The second is, the uninterrupted use of the unappropriated parts of the ocean
for their navigation. In places where no local authority exists, where the subjects of
all states meet upon a footing of entire equality and independence, no one state, or any
of its subjects, has a right to assume or exercise authority over the subjects of another.
I can find no authority that gives the right of interruption to the navigation of states
in amity upon the high seas, excepting that which the rights of war give to both
belligerents against neutrals. This right, incommodious as its exercise may occasionally
be to those who are subjected to it, has been fully established in the legal practice of
nations, having for its foundation the necessities of self-defence, in preventing the enemy
from being supplied with the instruments of war, and from having his means of
annoyance augmented by the advantages of maritime commerce. Against the property
of his enemy each belligerent has the extreme rights of war. Against that of neutrals,
the friends of both, each has the right of visitation and search, and of pursuing an inquiry
whether they are employed in the service of his enemy, the right being subject, in almost
all cases of an inquiry wrongfully pursued, to a compensation in costs and damages.4

A 1950 memorandum prepared by the Secretariat of the United Nations
for the International Law Commission, after examining the pretensions of
various nations to claim dominion over vast areas of the sea, concluded that
the concept of the freedom of the seas which was developed to counteract
these claims means not only that every nation has an equal right to use the
high seas, but also that ships flying the flag of one state are prohibited from
interfering with ships flying the flags of other nationalities. The memorandum
pointed out that:

Such interference, which is naturally forbidden in the mutual relations of users, is not
even tolerated in the case of warships, which might be considered to have as their general
mission to watch over the maintenance of order and security at sea. In peace-time
warships have no police powers except over private vessels flying their own flag. The

Sohn 41

general policy powers of warships on the high seas in respect of private foreign vessels
are limited to the right of approach, and do not comprise the right to check nationality
by examination of ships' papers. The only exception to this rule is in the case of grave
suspicion, and the State to which the investigating warship belongs is responsible for
any damage caused by an examination that proves to be unwarranted. A warship which
considers it necessary to interfere in this way with the navigation of a ship flying a
flag other than its own, assumes, and thereby involves the State to which it belongs
in, full responsibility for the action taken and for any possible damages.5

In his opening statement to the 1958 Conference on the Sea, Admiral
Oswald S. Colclaugh called attention to the fact that the United States "had
often had to defend itself against the infringements of the principle [of the
freedom of the seas]," and that, therefore, it "attached great importance to
it."'

A dispute arose as early as the 1790s between the United States and Great
Britain with respect to the British practice of stopping foreign vessels,
including the American ones on the high seas, and removing sailors considered
by the British to be still British subjects although they were naturalized
abroad. This British abuse of the right of visit and search was one of the reasons
for the War of 1812, and although this practice was in fact abandoned soon
thereafter, the United States continued to raise the issue for some thirty years.7
The American objections were spelled out in 1823 by John Quincy Adams,
then Secretary of State:

[T]he United States have never disputed the belligerent right of search, as recognized
and universally practiced conformably to the laws of nations. They have disputed the
right of belligerents, under colour of the right of search for contraband of war, to seize
and carry away men, at the discretion of the boarding officer, without trial and without
appeal; men, not as contraband of war or belonging to the enemy, but as subjects, real
or pretended, of the belligerent himself, and to be used by him against his enemy. It
is the fraudulent abuse of the right of search for purposes never recognized or admitted
by the laws of nations; purposes in their practical operation of the deepest oppression
and most crying injustice, that the United States have resisted and will resist, and which
warns them against assenting to the extension in time of peace, of a right which
experience has shown to be liable to such gross perversion in time of war.8

The matter was only settled by an exchange of notes made in connection
with the Webster- Ashburton Treaty in 1842.9

When in 1807 the British Parliament prohibited slave trade by British
citizens,10 the British Government embarked on a crusade to stop this trade
also by citizens of other countries. Remembering the difficulties about the
impressment of seamen, the United States — though in 1807 it also prohibited
importation of slaves into the United States11 — refused to concede to the
British Navy the right to visit and search vessels under the United States flag.
While British courts approved searches and seizures of American vessels
during the Napoleonic wars,12 Sir William Scott had to consider the seizure
in peacetime of Le Louis — mentioned above — which involved a French vessel,
condemned by the British admiralty court at Sierra Leone on the grounds
that it was equipped for carrying slaves, that it resisted the capture, and that

42 Law of Naval Operations

in the process it "piratically killed'' eight members of the crew of the British
cruiser. Sir William held that slave trade was not piracy nor a generally
accepted crime under the law of nations, and that its illegality under the laws
of both England and France was not a sufficient ground for the vessel's seizure.
He started with the premise that neither a British act of parliament, nor any
commission founded on it, can effect any right or interest of foreigners unless
they are founded upon principles and impose regulations that are consistent
with the law of nations. While a state has the "right to see that its own vessels
are duly navigated," it has no right "to visit and search all the apparent vessels
of other countries on the high seas, in order to institute an inquiry whether
they are not in truth British vessels violating British laws." He added that
a state should not make regulations which it "cannot enforce without
trespassing on the rights of others." He emphasized that

[t]o press forward to a great principle by breaking through every other great principle
that stands in the way of its establishment; to force the way to the liberation of Africa
by trampling on the independence of other states in Europe; in short, to procure an
eminent good by means that are unlawful, is as little consonant to private morality as
to public justice.

If a country should agree by convention to allow visit and search in time
of peace, it would be "for the prudence of states to regulate by that convention
the exercise of the right with all the softenings of which it is capable," and
to make sure that it would be "so constructed as not to excite just irritation."
He pointed out, finally, that France rejected a proposed treaty permitting
search on a reciprocal basis, "upon the express ground that she would not
tolerate any maritime police to be exercised on her subjects but by herself."13
After the British Government concluded treaties with Spain, Portugal and
the Netherlands allowing, on a reciprocal basis, search and seizure of vessels
and adjudication by a mixed commission, the United States rejected a similar
treaty. John Quincy Adams, then Secretary of State, claimed that in
accordance with this plan, citizens of the United States would be liable

in time of peace to have their vessels searched and with their persons seized and carried
away by the naval officer of a foreign power, subjected to the decision of a tribunal
in a foreign land, without benefit of the intervention of a jury of accusation or of a
jury of trial, by a court of judges and umpires half of whom would be foreigners and
all irresponsible to the supreme authorities of the United States.14

On another occasion, Mr. Adams made clear, however, that

although Great Britain . . . may be willing to abandon those of her subjects who defy
the laws and tarnish the character of their country by participating in this trade to the
dispensation of justice even by foreign hands, the United States are bound to remember
that the power which enables a court to try the guilty authorizes them also to pronounce
upon the fate of the innocent and the very question of guilt or innocence is that which
the protecting care of their Constitution has reserved for citizens of this Union to the
exclusive decision of their own countrymen. This principle has not been departed from
by the statute which has branded the slave trader with the name, and doomed him to
the punishment, of a pirate. The distinction between piracy by the law of nations and

Sohn 43

piracy by statute is well known and understood in Great Britain; and while the former
subjects the transgressor guilty of it to the jurisdiction of any and every country into
which he may be brought or wherein he may be taken, the latter forms a part of the
municipal criminal code of the country where it is enacted and can be tried only by
its own courts.

At that time, Mr. Adams explained also, with real passion, that the United
States had even more basic objections to the whole idea of search and seizure.
He noted that:

[T]he nature of the right of search at sea . . ., as recognized or tolerated by the usage
of nations, is a right exclusively of war, never exercised but by an outrage upon the
rights of peace. It is an act analogous to that of searching the dwelling-houses of
individuals on the land. The vessel of the navigator is his dwelling-house, and like that,
in the sentiment of every people that cherishes the blessings of personal liberty and
security, ought to be a sanctuary inviolable to the hand of power, unless upon the most
unequivocal public necessity, and under the most rigorous personal responsibility of the
intruder. Search at sea, as recognized by all maritime nations, is confined to the single
object of finding and taking contraband of war. By the law of nature, when two nations
conflict together in war, a third, remaining neutral, retains all its rights of peace and
friendly intercourse with both. Each belligerent, indeed, acquires by war the right of
preventing a third party from administering to his enemy the direct and immediate
materials of war; and, as incidental to this right, that of searching the merchant vessels
of the neutral on the high seas to find them. Even thus limited, it is an act of power
which nothing but necessity can justify, inasmuch as it cannot be exercised but by
carrying the evils of war into the abodes of peace, and by visiting the innocent with
some of the penalties of guilt. Among the modern maritime nations, an usage has crept
in, not founded upon the law of nature, never universally admitted, often successfully
resisted, and against which all have occasionally borne testimony by renouncing it in
treaties, of extending this practice of search and seizure to all the property of the enemy
in the vessel of the friend. This practice was, in its origin, evidently an abusive and
wrongful extension of the search for contraband: effected by the belligerent, because
he was armed; submitted to by the neutral, because he was defenseless; and acquiesced
in by his sovereign for the sake of preserving a remnant of peace, rather than become
himself a party to the war. Having thus, occasionally, been practiced by all as
belligerents, and submitted to by all as neutrals, it has acquired the force of an usage
which, at the occurrence of every war, the belligerent may enforce or relinquish, and
which the neutral may suffer or resist, at their respective options.

This search for and seizure of the property of an enemy in the vessel of a friend is
a relic of the barbarous warfare of barbarous ages — the cruel and, for the most part,
now exploded system of private war. As it concerns the enemy himself, it is inconsistent
with that mitigated usage of modern wars which respects the private property of
individuals on the land. As relates to the neutral, it is a violation of his natural right
to pursue, unmolested, his peaceful commercial intercourse with his friend. Invidious
as is its character in both these aspects it has other essential characteristics equally
obnoxious. It is an uncontrolled exercise of authority by a man in arms over a man
without defense — by an officer of one nation over the citizen of another — by a man
intent upon the annoyance of his enemy, responsible for the act of search to no tribunal,
and always prompted to balance the disappointment of a fruitless search by the abusive
exercise of his power, and to punish the neutral for the very clearness of his neutrality.
It has, in short, all the features of unbridled power, stimulated by hostile and unsocial
passions.

44 Law of Naval Operations

I forbear to enlarge upon the further extension of this practice by referring to injuries
which the United States experienced when neutral in a case of vital importance; because,
in digesting a plan for the attainment of an object which both nations have equally at
heart, it is desirable to avoid every topic which may excite painful sensations on either
side. I have adverted to the interest in question from necessity, it being one which could
not be lost sight of in the present discussion.

Such being the view taken on the right of search, as recognized by the law of nations
and exercised by belligerent powers, it is due to candor to state that my Government
has an insuperable objection to its extension by treaty, in any manner whatever, lest
it might lead to consequences still more injurious to the United States, and especially
in the circumstance alluded to. That the proposed extension will operate in time of
peace and derive its sanction from compact present no inducements to its adoption. On
the contrary, they form strong objections to it. Every extension of the right of search
on the principles of that right is disapproved. If the freedom of the sea is abridged by
compact for any new purpose the example may lead to other changes. And if its operation
is extended to a time of peace, as well as of war, a new system will be commenced
for the dominion of the sea, which may eventually, especially by the abuses into which
it may lead, confound all distinction of time and circumstances, of peace and of war,
and of rights applicable to each state.15

In 1824, a British-American treaty was drafted based on a proposal made
by then Secretary of State John Quincy Adams, who took into account the
fact that both countries had enacted laws declaring the slave trade to be piracy
punishable by death,16 as well as a resolution of the United States Congress
requesting the President to conduct negotiations leading to the ultimate
denunciation of the slave trade "as piracy under the law of nations, by the
consent of the civilized world."17

The 1824 Treaty declared that the right to visit and search, reciprocally
conceded, is wholly and exclusively founded on the consideration that the
two nations have by their laws made the slave trade piracy, and that each
power shall use its influence with all other civilized powers, to procure from
them the acknowledgement that the slave trade is piracy under the law of
nations. To remove United States objections to foreign adjudication the treaty
also provided that a slave trading vessel of one country captured by the naval
vessel of the other should be delivered to a port of the captured vessel's own
country for adjudication.18 The Senate circumscribed its consent to
ratification with several amendments cutting down United States obligations;
these amendments were rejected by the British Government, and the treaty
had to be abandoned.19

After this attempt to find a compromise came to naught, the situation
deteriorated. In 1839, the British Parliament enacted a law which was
primarily directed against Portuguese vessels, but also applied to vessels "not
being justly entitled to claim the protection of the flag of any state or
nation.''20 It authorized their visit to ascertain their nationality; seizing them
not only when slaves were found on board but also if they were equipped
for slave trade (e.g., carrying shackles, handcuffs, extra food and water, and
large boilers for mass cooking); bringing them for adjudication as if they were

Sohn 45

the property of British subjects; granting a bonus ("indemnity") to all persons
concerned in their capture; and protecting the captors from any suit against
them in a British court.21

When this bill was presented to the House of Lords, the Duke of
Wellington, the great British hero who defeated Napoleon in the Battle of
Waterloo, opposed the bill regardless of its laudable objective. He reminded
the lords that "the greatest judge who ever presided over an Admiralty
Court" (Lord Stowell) had laid down in the he Louis case that in peacetime
even the right of search was illegal and contrary to the law of nations, unless
that right had been conceded by treaty. If British cruisers should start stopping
and searching suspicious ships of other nations, whether a treaty existed or
not, as they had already started doing in relation to some foreign flag ships,
other nations might soon resist or retaliate, and there would be a grave danger
of universal war.22 Wellington's view prevailed, and the House of Lords
rejected the bill; it was, however, adopted on the second reading, after the
Government made sufficient changes in the bill to persuade enough lords to
accept it.23

In 1840, the British Government informed the United States that it could
not allow foreign vessels to protect themselves by a fraudulent use of the
American flag, and instructed the Admiralty to board American flag vessels
suspected of being non- American for the restricted purpose of examining their
papers and ascertaining whether they were actually entitled to display the
American flag. If these papers were in order, the vessel would have to be
immediately released; if they were not in order, it would be permissible to
search the vessel; and if it had slaves on board or was equipped for slave
trading, it would have to be detained and sent to the appropriate port for
trial. The Admiralty's orders made it clear that American vessels must be
shown every possible courtesy when boarded, but no one should be allowed
to refuse inspection, and force might be used if necessary.2*1

After the United States protested the boarding of American flag vessels,
Lord Palmerston, the British Foreign Secretary, explained that "the right
existed of ascertaining in some way or another the character of the vessel,
and that by her papers and not the colours on flag, which might be displayed,"
and that such inspection of papers "could not be regarded as amounting to
a right of search." In reply, the United States ambassador, Mr. Stevenson,
made clear that "under no circumstances could the government of the United
States consent to the exercise of the right on the part of any foreign nations,
to interrupt, board, or search their vessels on the high seas." He added that
"to admit the right of a foreign naval officer, to decide upon the genuineness
of American vessels, by boarding them . . . was in effect allowing the right
of search, and therefore utterly indefensible."25

The difference of views on the right of visit was ingeniously papered over
in the Webster-Ashburton Treaty of 1842, which dealt with a number of

46 Law of Naval Operations

important British- American disputes. It provided for sending two squadrons,
one British and one American, to West Africa to suppress, separately but
in concert and cooperation, the slave trade.26 It was understood that the main
duty of the American squadron would be to ascertain, in case of doubt, the
right of a vessel to display the American flag, and thus to avoid its visit by
a British warship.27

In order to avoid further conflict, the British Admiralty issued the
following instructions to the Navy:

The Slave Trade has been denounced by all the civilized world as repugnant to every
principle of justice and humanity. You are, however, to bear in mind, that Great Britain
claims no rights whatever with respect to foreign ships engaged in that traffic, excepting
such as the Law of Nations warrants, or as she possesses by special Treaties and
Conventions with particular states.

It is your duty to make yourself thoroughly conversant with the Treaties, Conventions,
and Laws, as well as with all the Instructions given to you relative to the Slave Trade.

You are not to visit a vessel under a Foreign flag on the High Seas on suspicion of
the Slave Trade, except in virtue of special authority under Treaty, or in case you have
reason to believe that the vessel has no right to title to claim the protection of the flag
she bears . . .

Towards every functionary, British or Foreign, with whom you may come in contact,
you will invariably maintain a respectful and courteous demeanour.

You will take special care to ensure propriety of language and demeanour on the
part of officers, seamen and marines, towards all persons (officers being held responsible
for any 'exhibition of intemperance' on the part of those under their command).28

Nevertheless, other incidents occurred, and in 1852 Secretary of State Cass
reopened the controversy by notifying the British Government that the
United States denied "the right of cruisers of any other power whatever,
for any purpose whatever, to enter their vessels by force in time of
peace. . . . No change of name can change the illegal character of the
assumption. Search, or visit, it is equally an assault upon the independence
of nations."29 When the British Government asked the law officers of the
Crown for their opinion on this subject, they responded that the United States
was right in its interpretation of international law, and that an American
vessel could be boarded by British officers only at their own risk.
Consequently, British cruisers were ordered "to respect the American flag
under any circumstances."30

President Lincoln, upon taking office, immediately authorized Secretary
of State Seward to start negotiations with the British Government on a
convention to suppress the slave trade. These negotiations terminated in April
of 1862 by the conclusions of a detailed convention, which authorized the
ships of the two navies to "visit such merchant vessels of the two nations
as may, upon reasonable grounds, be suspected of being engaged in the African

Sohn 47

Slave Trade, or having been fitted for that purpose; or of having, during the
voyage on which they are met by the said cruisers, been engaged in the
American Slave Trade, contrary to the provisions of this Treaty." The means
of the search were carefully specified in the treaty, and it was made clear
that "the only object of the search is to ascertain whether the vessel is
employed in African Slave Trade, or is fitted up for the said Trade." The
right to search was originally limited to the distance of 200 miles from the
coast of Africa, southward of the 32nd parallel of north latitude, and within
30 leagues of the coast of Cuba; later it was extended to the area within 30
leagues of Madagascar, Puerto Rico and Santo Domingo.

The two governments agreed to establish three Mixed Courts of Justice,
formed of an equal number of individuals from both countries; their seats
were to be at Sierra Leone, Cape of Good Hope and New York. Each captured
ship was to be brought before one of these courts and, if condemned, was
to be broken up (to avoid its later sale to another slave trader); the master
and crew of any condemned vessel were to be punished according to the laws
of the country to which such vessel belonged, and should ordinarily be
delivered for the execution of that punishment to the nation under whose
flag the condemned vessel was sailing; and punishment was also to be meted
to the owners of the condemned vessel and the persons interested in her
equipment or cargo unless they should be able to prove that they had no
participation in the enterprise. The enslaved Africans found on board of a
condemned vessel were to be placed at the disposal of the Government whose
cruiser had made the capture; they were to be set free immediately, the
Government to whom they had been delivered guaranteeing their liberty.
Should the Mixed Court of Justice decide, however, that the cruiser was guilty
of an arbitrary and illegal detention, the cruiser's Government would be
obligated to make good any losses suffered by the subjects or citizens of the
other country, such indemnification to be paid within one year from the
Court's decision. If one Government should complain that a navy officer of
the other country had deviated from the stipulations of the Treaty, his
government would be bound to institute an inquiry and to inflict upon the
officer, if found guilty of willful transgression, a punishment proportionate
to the transgression.31

By the end of the 1860s, the slave trade diminished greatly, and Congress
asked for the abolition of the Mixed Courts of Justice in order to cut
unnecessary expenditures.32 These courts were terminated in 1870, and their
jurisdiction was transferred to national courts competent to deal with
maritime prizes. Any American vessel captured by a British cruiser was to
be sent for adjudication to New York or Key West, whichever should be
more accessible, or was to be handed over to a United States cruiser, if one
should be available in the neighborhood of the capture; similarly, a British
vessel captured by an American cruiser was to be sent for adjudication to

48 Law of Naval Operations

the nearest or most accessible British colony, or was to be handed over to
a British cruiser, if one should be available in the neighborhood of capture.
All enslaved Africans on board either an American or British vessel were
to be handed over to the nearest British authority, to be immediately set free
and guaranteed liberty by the British Government. If some of them had to
be sent with the detained vessel as necessary witnesses, they were to be set
free as soon as their testimony should no longer be required and their liberty
was to be guaranteed.33 This ambitious treaty ended the American-British
debate about visit and search, but it had little practical effect as the slave
trade across the Atlantic came to an end at about the same time as a result
of Brazil's change of attitude and its willingness to take effective action
against importation of slaves.34

The work of the abolitionists was not yet finished. In the meantime, there
was an increase in slave traffic from East Africa across the Indian Ocean,
which led in 1888 to the renewal of the debate about the right of visit and
search between, on the one hand, Great Britain and Germany, who were
supposedly helping the Sultan of Zanzibar to blockade the coast, and, on the
other hand, France. In addition, problems arose between Great Britain and
Germany, which dealt harshly with captured vessels, their crews, and even
the liberated cargo.35

When the Brussels conference on the affairs of Africa was convened by
King Leopold II of Belgium in 1889, the British Government made sure that
the issue of terminating maritime slave traffic would be on the agenda, and
proposed a general agreement to establish a specific slave trade zone within
which the signatory powers would have the "right of supervision, jointly and
severally, whether on high seas or in territorial waters, over all sailing vessels
under any flag."36 The proposal was to be implemented by bringing the
captured slavers before mixed tribunals representing at least five of the
signatory powers; by turning the offenders over to their own national
authorities for punishment under their own laws, which would provide for
severe penalties; and by establishing international offices to exchange
information not only about the slave trade but also about ships authorized
to fly each national flag and the sentences passed on slavers.37

The French Government responded with a proposal which allowed
inspection within a more limited zone of only indigenous vessels for the sole
purpose of verifying the flag. It required, in case of doubt about a vessel's
right to fly a particular flag, that the investigation be handed over to the
flag nation. It provided for returning the vessel to the captor if it was not
entitled to fly the flag it claimed, and imposed compensation for wrongful
arrest, to be settled, in case of a dispute, by an international tribunal.38

The Russian jurist, Frederic de Martens, was given the task of preparing
a compromise solution, and his proposal became chapter III of the General
Act for the Repression of African Slave Trade, signed at Brussels on July

Sohn 49

2, 1890.39 It provided for more effective repression of the slave trade in the
maritime zone of the Indian Ocean extending from south of Madagascar to
Persia (Iran) in the north, and including the Red Sea and the Persian (Arab)
Gulf. The surveillance was to be limited to native vessels whose tonnage was
less than 500 tons. A warship of any signatory power, having reason to believe
that a vessel of such tonnage, navigating within the specified zone, was
engaged in the slave trade or was guilty of the fraudulent use of a flag, was
entitled only to examine the ship's papers; any further search or calling the
roll of the crew and passengers was only authorized when permitted by a
prior convention for suppression of the slave trade concluded by the flag state
of the vessel. Should the acts of supervision permitted by the treaty or
convention convince the naval officer in command of the cruiser that
irrefutable proofs existed of fraudulent use of the flag or participation in the
slave trade, he had to bring the arrested vessel to the nearest port of the zone
where there was a competent magistrate of the flag state of that vessel or
to turn it over to a cruiser of that vessel's nationality, if the latter consented
to take charge of it. If the investigation by the magistrate proved that the
flag was fraudulently used, the vessel would be put at the disposal of the
captor. If slaves should be found on board or any other offense connected
with the slave trade was proven, the vessel and cargo would remain
sequestered in charge of the magistrate who had conducted the investigation
until the vessel had been properly condemned and transferred to the captor,
or declared innocent and permitted to continue on its course. The slaves were
to be liberated by the local authority and either returned home or settled
on the spot. If the vessel was illegally arrested, an indemnity had to be fixed
by the magistrate in proportion to the damage suffered by the vessel being
taken out of its course. If the officer of the capturing vessel disagreed as to
the amount of the indemnity the matter had to be immediately submitted
to arbitration. The captain and the crew of the vessel condemned for an
offense were to be brought promptly before a tribunal of the nation whose
flag had been used by the accused or to a specially commissioned authority
of that nation.

The main antagonists were satisfied with the final text. The British
Government received the right to visit all likely slave-carrying vessels within
the zone, and French vessels were freed from visit and search outside the
zone.40 Nevertheless, the French Chamber of Deputies refused to accept the
provisions relating to the verification of the flag, and to preserve the treaty
France was allowed to exclude these clauses in its ratification document.41
In consequence, the apparent consensus disintegrated and a shadow was
thrown again on the right of visit and search.

By the end of the 19th century, the measures taken under the Brussels Act
contributed to the almost complete abolition of the slave trade, though it
survived under various guises in a few places throughout the 20th century.42

50 Law of Naval Operations

In revising the map of the world after the First World War, the victors decided
to get rid of the cumbersome anti-slavery provisions of the Brussels Act, and
replaced them as between the parties to one of the Saint-Germain Conventions
of 1919, by a provision which merely contained a general statement that the
parties will endeavor "to secure the complete suppression of slavery in all
its forms and of the black slave trade by land and sea."43

In 1925, the British Government proposed to the League of Nations the
adoption of a convention implementing the general provision of the 1919
convention. It suggested strong enforcement measures including a provision
that "[t]he act of conveying slaves on the high seas shall be deemed to be
an act of piracy, and the public ships of the signatory powers shall have the
same rights in relation to vessels and persons engaged in such act as over vessels
and persons engaged in piracy/' It also would have provided for a decision
by the courts and according to the laws of the country of the captor with
respect to the validity of the capture of the vessel and the liberation of slaves,
but for handing over of the persons engaged in the act of conveying slaves
on the high seas to the authorities of their own country which was to bring
them before its court.

In view of a strong opposition to these proposals, the special committee
to which this matter was referred limited the provision in Article 3, paragraph
2, of the 1926 Convention on the Suppression of Slave Trade and Slavery to
an undertaking to negotiate a convention based on an agreement concluded
in 1925 relating to international trade in arms, which, in turn, contained
enforcement provisions similar to those of the 1890 Brussels Act, including
restrictions to native vessels of limited size, special zones, the right to verify
the nationality of the suspected vessel, and the authorities entitled to decide
about the illegality of the trade.44 Article 3, paragraph 3, of the 1926
Convention also authorized the parties to it "to conclude between themselves,
without, however, derogating from the principles laid down in the preceding
paragraph, such special agreements as, by reason of their peculiar situation,
might appear suitable in order to bring about as soon as possible the complete
disappearance of the slave trade." Neither these special agreements nor the
supplementary convention envisaged in paragraph 2 of the Article have,
however, been concluded, and the British effort was sidetracked again.45

After a lapse of almost thirty years, the indomitable British diplomats tried
again, taking advantage of a 1951 report of the United Nations Ad Hoc
Committee on Slavery which complained that the then existing arrangements
for suppressing slave trade at sea were less satisfactory then those of the 1890
Brussels Act. They suggested the preparation of a convention which would
supplement the 1926 Convention by declaring slave trading on the high seas
to be a "crime similar to piracy in international law," and subjecting slave
trading to the same treatment and punishment as piracy.46 The British
Government presented such a draft convention in 1954. It contained provisions

Sohn 51

similar to those presented by it in 1925. It proposed to make slave trade
equivalent to piracy, but instead of the detailed provisions relating to capture
and legal proceedings against the vessel and the crews, it merely proposed
that the "[pjublic vessels under the control of parties to this Convention shall
have the same rights in relation to vessels engaged in [the act of conveying
slaves on the high seas or slave-raiding] as they have in relation to vessels
and persons engaged in acts of piracy."47 A Drafting Committee appointed
by the Economic and Social Council revised the British draft several times,
and prepared a more elaborate article making clear that the provisions relating
to the slave trade would apply only to specified areas of the Indian Ocean,
and added a provision authorizing warships or military aircraft to exercise
the same rights of visit, search and seizure in relation to vessels "suspected
on reasonable grounds of being engaged in the act of conveying slaves as they
have in relation to vessels so suspected of being engaged in acts of piracy."
It limited the enforcement to vessels of parties to the proposed Convention,
and a proposal to extend it to "stateless vessels" was withdrawn.48 At the
Conference held in 1956 to adopt the convention, strong opposition was
expressed to the provisions relating to visit, search, and seizure by foreign
warships. A more limited draft restricted to visit and search, and leaving
further action to the flag state, was also rejected.49 Consequently, the 1956
Convention leaves the enforcement completely in the hands of the flag state.
It requires only that states take effective measures to prevent the transport
of slaves by ships and aircraft and to "punish persons guilty of such acts or
of using a national flag for the purpose. " They must also exchange information
to ensure practical coordination of measures for combating the slave trade.
It is also provided that "[a]ny slave who takes refuge on board any vessel
of the State Party to this Convention shall ipso facto be free."50

During the 1950s, in the context of the codification of the international
law of the sea, the International Law Commission also encountered the
question of the scope of the rule relating to the right to visit and search foreign
vessels on the high seas. Its rapporteur, Professor J. P. A. Francois, in his first
report stated that the "only police measure [on the high seas] allowed in time
of peace is the right of approach, that is to say the right to ascertain the identity
and nationality of the vessel, but not the right to check nationality by
examination of ship's papers, and not, a fortiori, the right of search." After
noting the British efforts to establish "the legality, if not of boarding foreign
merchant vessels, at any rate of the verification of the flag," he pointed out
that wireless telegraphy had almost eliminated the various reasons for which
formerly vessels were induced to make material contact with each other on
the high seas.51

In his second report, Professor Francois stuck to his position with respect
to the main principle, but added three clarifications. Acts of interference may
be allowed by a treaty; boarding and further action may be justified, if "there

52 Law of Naval Operations

is a reasonable ground for suspecting that the vessel is engaged in piracy;"
and, if suspicion of piracy should "prove to be unfounded and should the
stopped vessel not have given by unjustified acts any ground for suspicion,
the vessel shall be compensated for any loss due to stoppage."52

In view of concurrent discussions in the United Nations Ad Hoc Committee
on Slavery,53 Professor Francois suggested that some special provisions on
slave trade might be included in the International Law Commission's draft.
He rejected, however, the proposal that slave trade be regarded as an act
of piracy, permitting the stoppage and search of any vessel suspected of
engaging in such a trade by any warship and taking it to a port of the captor
for trial there by national courts. He pointed out the following differences
between piracy and slave trade:

Part at least of the ground for internationalizing the crime of piracy is that the acts
occur on the high seas and that in many cases there are no relations between the pirate
and a given country. The slave trade, on the other hand, takes place between two given
countries. Since both these countries are bound to cooperate in repressing the slave trade,
internationalization — meaning that the vessel may be conducted to any port for trial
by the local courts — does not appear appropriate.

He considered also that the right of control in this case should be limited
to small vessels below a specified tonnage, and should not extend to the whole
area of the high seas but to a limited area only where slave trade is still carried
on, by analogy to the Berlin Act of 1890. M Finally, he made clear that a visit
of a suspected vessel should be restricted to an examination of its papers, that
examination of the cargo or search of the vessel is permissible only when,
and to the extent, authorized by a convention to which the vessel's flag state
is a party, that trial should be by the courts of the flag state of the captured
vessel, and that in case of illegal arrest an indemnity would have to be paid.55
During the discussion of his report by the International Law Commission,
Professor Francois pointed out that while old types of slavery were
disappearing, the concept of slavery was being widened, thus threatening that
vessels would be boarded "at all times and in all places," and increasing the
hesitancy of states to accept the right of approach. When the prohibition of
slavery and slave trade by the Universal Declaration of Human Rights56 was
invoked in order to justify the exercise of the right of approach "everywhere
in respect of vessels suspected of being engaged in the slave trade," Francois
replied that "[t]o recognize that the slave trade was prohibited was one thing,
to recognize the right of approach was another."57

The Commission decided in 1951 that in the interests of stamping out the
slave trade, the right of approach to ships engaged in the slave trade "should
be put on the same footing as in the case of piracy, and hence should be
permissible without regard to zone or tonnage."58 Consequently, Professor
Francois submitted the following proposal to the Commission concerning the
right of approach, designed to safeguard the freedom of navigation and to

Sohn 53

prohibit, except in clearly defined cases, the boarding and inspection of ships
on the high seas:

Except where acts of interference are done under powers conferred by treaty, a
warship which encounters a foreign merchant vessel at sea is not justified in boarding
her or in taking any further action unless there is reasonable ground for suspecting that
the vessel is engaged in piracy or in the slave trade. Should such suspicions prove to
be unfounded and should the stopped vessel not have given by unjustified acts any ground
for suspicion, the vessel shall be compensated for any loss due to the stoppage.59

In addition, he proposed the following separate article emphasizing the duty
to cooperate in measures for the repression of the slave trade:

All States are required to cooperate for the more effective repression of the slave
trade. They undertake to adopt efficient measures to prevent the transport of slaves
on vessels authorized to fly their colours and to prevent the unlawful use of their flag
for the purpose.

Any slave who has taken refuge on board a ship of war or a merchant vessel shall
be ipso facto set free.60

Similar provisions on slave trade were included in the rapporteur's 1954 report
and in the Commission's 1955 text. The 1954-55 texts contained also, for the
first time, more elaborate provisions on piracy.61 New difficulties did arise,
however, with respect to the right-of-approach proposal. At the 1955 session
of the Commission, Professor Scelle revived the traditional distinction
between the right to verify the flag and the right to board and search, and
pointed out that the existing situation was dangerous as the "exercise of the
right of verification could easily, and almost imperceptibly, become an act
of boarding and searching;" that it "was the thin edge of the wedge;" and
that "such possibility should be guarded against." As a remedy he suggested
that "verification should take place on board the investigating warship."62
In reply, Professor Francois explained that "the problem of the policing of
the high seas was both complex and difficult." He pointed out that:

It was generally accepted that warships had the right to demand that merchant vessels
at sea should show their flag upon request. Such a request for identification was perfectly
natural, because it was not the usual practice for merchant vessels continually to fly
their flags at sea. It was also widely recognized that, if the merchant vessel refused
to show her flag or gave an evasive reply, the warships had the right to investigate
her identity. That, again, was an essential condition for the control of piracy. . . .

Sanctions for unjustified verification had previously been provided in the form of
damages, the award of which was to be made by one of two methods. The first, and
more severe, was that whereby, if the suspicion proved to be unfounded, compensation
must be rendered for any loss due to the stoppage. The second, and less stringent,
provided for compensation to be paid if it could be shown that the vessel had been stopped
for insufficient reason. He had chosen the first of those alternatives because of the
liability to abuse in the application of the second owing to the difficulty of judging
motives.

54 Law of Naval Operations

He opposed, however, the proposal that verification should take place on
board the investigating warship, stressing "the danger in even a moderate
sea of carrying the ship papers — the loss of which would be a most serious
matter — to and from the investigating warship in a small open boat." With
some exceptions, the practice of investigation on board the merchant vessel
has been followed since 1659.63

Professor Scelle insisted, however, that the need to verify the flag goes
far beyond piracy and slave trade, is essential for the general policing of the
seas in view of the fraudulent practices in the registration of ships and the
need to determine responsibility for any damage done by merchant vessels
on the high seas by violating general rules on navigation or pollution. He
added later that "it was as important to prevent ships from sailing under false
colours as it was to suppress slavery and piracy."

This view was opposed by several members of the Commission who wanted
the right to verify a vessel's flag restricted to piracy and slave trade. The
Scelle proposal for a general right of flag verification was rejected by a vote
of 6 to 2, with 2 abstentions.64 The rapporteur accepted more easily the
suggestion that a warship should be allowed to board a foreign-flag vessel
if there was a reasonable ground to suspect that the vessel was in fact of the
same nationality as the warship. It was generally recognized also that a
warship can verify the flag of merchant vessels flying the same flag as the
warship, and can seize it and bring to a port of the flag state for punishment
if the vessel was flying the flag without authority.65

Another controversy arose with respect to the right to visit and search a
vessel when a warship has reason to suspect it of engaging, "during times
of imminent peril to the security of the State, in activities hostile to the State
of the warship."66 This proposal was supported on the basis of the general
principle of self-defense, but it was objected that this principle cannot be
applied to boarding a vessel on the high seas on mere suspicion that it was
threatening the security of a state, as such "exception to the principle of the
freedom of navigation might destroy that freedom altogether, since States
would tend to invoke the argument of legitimate defense to justify any act
of interference."67 As a result of that discussion, the Commission's comment
to the article on the right of visit explained that the Commission found it
inadvisable to provide for the right to board a vessel being suspected of
committing acts hostile to the state to which the warship belongs, at a time
of imminent danger to the security of that state, as there was a danger of
abuse because of the vagueness of terms like "imminent danger" and "hostile
acts."68

The draft of text and comments approved by the Commission in 1955 was
only slightly changed in 1956, when the Commission adopted the final report
for the Law of the Sea Conference. In this report the Commission extended
the right to visit also to the situation where there is reasonable ground for

Sohn 55

suspecting that "while flying a foreign flag or refusing to show its flag, the
vessel is, in reality, of the same nationality as the warship." The Commission
explained that in this case "it can be presumed that the vessel has committed
unlawful acts and the warship should be at liberty to verify whether its
suspicions are justified." At the same time, the Commission limited the
boarding of ships suspected of slavery to maritime zones treated as suspect
in the international conventions for the abolition of slave trade, in order to
ensure that the right of control would not be used as a pretext for exercising
the right of visit in waters where the slave trade would not normally be
expected to exist.69

At the 1958 Law of the Sea Conference, the provisions on slave trade were
strongly attacked by delegations of several African and Eastern European
states. For instance, Mr. Ben Salem (Tunisia) argued that:

No state had the right to police the high seas. No state had the right to interfere with
the ships of another State on the high seas. The provisions relating to the slave trade
and piracy were of purely historical interest. The provision regarding action based on
a suspicion that a ship was engaged in the slave trade should not be used as a pretext
for inspecting a ship when there was no warrant for such suspicion. Warships, although
they had the right to determine what flag a foreign ship was flying, did not have the
right to determine whether it had the right to fly the flag, or a fortiori, the right to visit
the ship. Unfortunately, the fears he was voicing on the subject were justified by a
number of acts of interference which had been committed recently . . . [Cjertain states
had arrogated to themselves the right to inspect and detain ships of other states on the
high seas as if they owned the high seas. Such an act was an infringement of the law
and a violation of the principle of the freedom of the seas.70

Mr. El Erian (United Arab Republic, later Egypt) considered that there
was no justification for a provision allowing warships to board ships suspected
of engaging in slave trade in certain maritime zones specified in the 1890 Act
of Brussels. While such provision had perhaps been justified in the nineteenth
century, conditions had changed since, as was recognized in the 1919, 1926,
and 1956 conventions on abolition of slavery which contained no such
provisions. Such a provision "was objectionable and a potential source of
disputes."71 Egypt proposed, therefore, the deletion of the provision presented
by the International Law Commission.72 Mr. Keilin (Soviet Union) supported
such deletion for several reasons:

In the first place, would it not be discriminatory automatically to regard certain maritime
zones as suspect in the matter of the slave trade? It was well known which countries
had warships cruising in those neighbourhoods and had interests which would be served
by the right of visit thus established. Secondly, it was inadmissible and unjustified to
presume that ships in the "suspect" zones were engaged in the slave trade; such a
suspicion would probably only be a pretext for controlling maritime trade in violation
of the principle of the freedom of the high seas. Thirdly, the sub-paragraph was in no
way necessary for effectively combating the slave trade, and it seemed that the
International Law Commission had allowed itself to be influenced by happenings in a
former age in an entirely different set of circumstances, of which the memory lay
sleeping in the dust of archives. Finally, the provision ran counter to the Supplementary
Convention on Slavery of 1956, article 3 of which laid down that the transport or

56 Law of Naval Operations

attempted transport of slaves from one country to another was a penal offence and that
persons found guilty of such offences were liable to severe penalties. The suppression
of such offences could and should be undertaken by the States of which the flag was
flown by the ships attempting to engage in the transport of slaves.73

The Egyptian amendment was defeated in the Second Committee of the
Law of the Sea Conference by 22 votes to 16, with 11 abstentions.74 One of
the abstainers was Ghana, which objected primarily to the restriction of the
right to board ships suspected of slave trade to a specific region. Its delegation
preferred a provision that would allow the boarding of "ships suspected of
slaving wherever they might be."75 The idea was revived at the time of the
final vote in the plenary meeting of the Conference, where South Africa
proposed the deletion of the reference to the maritime zones suspected of
slave trade, as a counterproposal to the proposal by the United Arab Republic
and Saudi Arabia to completely delete the provision granting the right to
board ships suspected of slave trade. The South African proposal was approved
by 32 votes to 25, with 15 abstentions, and the other proposal was withdrawn.
The right to board article was then approved by 62 votes to none with 9
abstentions.76

As a result of these developments the 1958 Convention on the High Seas,77
which — according to its preamble — is "generally declaratory of established
principles of international law," contains eight elaborate articles on piracy,
a general article concerning national measures to prevent and punish the
transport of slaves, and an article allowing boarding of foreign merchant
vessels on the high seas in three specified cases.

One of the piracy articles is the only article which provides expressly for
the seizure of the pirate vessel or aircraft, the arrest of the persons and a
decision of all issues by the court of the state of the warship that captured
the private ship or aircraft. Article 19 provides, in particular, as follows:

On the high seas, or in any other place outside the jurisdiction of any State, every State
may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of
pirates, and arrest the persons and seize the property on board. The courts of the State
which carried out the seizure may decide upon the penalties to be imposed, and may
also determine the action to be taken with regard to the ships, aircraft or property,
subject to the rights of third parties acting in good faith.

Article 13 imposes on each state the following general obligation with
respect to the maritime slave trade:

Every State shall adopt effective measures to prevent and punish the transport of slaves
in ships authorized to fly its flag, and to prevent the unlawful use of its flag for that
purpose. Any slave taking refuge on board any ship whatever its flag, shall, ipso facto,
be free.

Finally, Article 22 authorizes the following minimal rights of interference
with foreign ships on the high seas:

Sohn 57

1. Except where acts of interference derive from powers conferred by treaty, a warship
which encounters a foreign merchant ship on the high seas is not justified in boarding
her unless there is reasonable ground for suspecting:

(a) That the ship is engaged in piracy; or

(b) That the ship is engaged in the slave trade; or

(c) That, though flying a foreign flag or refusing to show its flag, the ship is, in reality,
of the same nationality as the warship.

2. In the cases provided for in sub-paragraphs (a), (b), and (c) above, the warship may
proceed to verify the ship's right to fly its flag. To this end, it may send a boat under
the command of an officer to the suspected ship. If suspicion remains after the documents
have been checked, it may proceed to a further examination on board the ship, which
must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not
committed any act justifying them, it shall be compensated for any loss or damage that
may have been sustained.

The corresponding articles of the 1982 Law of the Sea Convention78 contain
only minor changes. Article 99, now entitled "Prohibition of the transport
of slaves," and Article 105, now entitled "Seizure of private ship or aircraft,,,
repeat word for word Articles 13 and 19 of the High Seas Convention. Only
a few changes were made in Article 110 on the "Right to visit," which
corresponds to Article 22 on the High Seas Convention. In the text of Article
110, which follows, the changes and additions have been highlighted:

1. Except where acts of interference derive from powers conferred by treaty, a warship
which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity
in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable
ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction
under Article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality,
of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's
right to fly its flag. To this end, it may send a boat under the command of an officer
to the suspected ship. If suspicion remains after the documents have been checked, it
may proceed to a further examination on board the ship, which must be carried out
with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not
committed any act justifying them, it shall be compensated for any loss or damage that
may have been sustained.

4. These provisions apply mutatis mutandis to military aircraft.

58 Law of Naval Operations

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and
identifiable as being on government service.

It may be noted that the 1958 text deals only with the interference by a
warship with a "foreign merchant ship" on the high seas. It does not apply
to an encounter between two warships, or between a warship and a
government ship operated only for non-commercial purposes.79 This last point
was made more explicit in the new text, which makes it clear that a foreign
ship can be boarded in the specified limited circumstances only if it is "other
than a ship entitled to complete immunity in accordance with articles 95 and
96," namely, if it is a warship (Article 95) or a ship "owned or operated by
a State and used only on government non-commercial service."

While the "warship" that is permitted to interfere is narrowly defined in
the 1958 Convention as a ship belonging to the naval forces of a State, properly
marked as such, commanded by a duly commissioned naval officer and manned
by a crew under regular naval discipline,80 the 1982 Convention on the Law
of the Sea permits action under Article 110 to be taken also by a military
aircraft, as well as "duly authorized ships or aircraft clearly marked and
identifiable as being on government service."81 Thus, even though it might
have been doubtful whether the Coast Guard was entitled to act under the
1958 Convention, it has a clear right to take action under the 1982 Convention
provisions to the extent that they are generally accepted as rules of customary
international law.82

The 1958 and 1982 Conventions have broadened in two ways the field of
applicability of the 1890 General Act of Berlin: their provisions are applicable
to all vessels, not as previously only to vessels of less than 500 tons; and they
are applicable to all the oceans, not only to a small part of the Indian Ocean
and its subsidiary seas and gulfs.83

Finally it should be noted that originally there were only two grounds for
stopping a foreign ship, namely the existence of reasonable grounds for
suspecting that the ship is engaged in piracy or slave trade. Later, the case
was added of a ship suspected of concealing the fact that it was of the same
nationality as the warship. The 1982 Convention went two steps further,
adding ships suspected of being "without nationality," and — under strong
pressure by Western European countries — ships suspected of engaging in
unauthorized broadcasting.84 In the latter case, only warships of three
categories of countries and two specific groups of countries were allowed
to board such ships, namely, those of the flag State of the ship; the State of
registration of a high seas installation; the State of which the person engaged
in broadcasting is a national; any State where the transmissions can be
received; or any State where authorized radio communication is suffering
interference.85 While illegal broadcasting belongs clearly to a special

Sohn 59

category, it was included because of the existence of the European regional
convention on the subject.86

The question of control over stateless vessels arose several times in previous
discussions, especially after the controversial British law of 1839,87 and more
recently at the 1958 Conference on the Law of the Sea, where the subject
became complicated by the fear that a warship might be able to stop any
vessel on the high seas by claiming that the vessel is stateless because there
was no genuine link between the vessel and the flag state.88 The inclusion
of the right to board stateless vessels in the 1982 Convention was due to the
general acceptance of the proposition that it was dangerous to have ships
sailing on the high seas which were not subject to the jurisdiction of any State,
and being law unto themselves did not comply with any generally accepted
international regulations to ensure safety at sea. Consequently, the rule was
adopted that such a ship can be stopped by any warship and dealt with
according to the law of the warship's State.89 It is not clear what would happen
if the examination should show that the stopped ship has complied with all
international regulations and there was no valid reason for interfering with
its navigation. In any case, the persons on board the ship should be treated
in accordance with the internationally recognized human rights, and if they
have not been found engaged in any illegal activity, their basic "right to life,
liberty and the security of person'' should be recognized.90 Unless these
persons are also stateless, they may be entitled to the protection of the State
of their nationality regardless of the fact that they are travelling on a stateless
vessel.91 Even if they are stateless, they are entitled to basic human rights.92

An additional complication is caused by the provisions in the 1958
Convention on the High Seas and of the 1982 Law of the Sea Convention,
which establish the rule that a "ship which sails under the flags of two or
more States, using them according to convenience, may not claim any of the
nationalities in question with respect to any other State, and may be
assimilated to a ship without nationality."93 Some states have considered this
provision as a license to treat such a ship and its crew in any way they please,
forgetting their obligations under international law of human rights. In
particular, the rules about equal treatment and non-discrimination are
applicable to the persons on these ships, and regardless of the place in which
the alleged crime was committed they are entitled to be protected against
governmental violations of internationally recognized human rights.94

III. Campaign Against Illicit Traffic in Narcotic Drugs

There is another important difference between the 1958 and 1982
Conventions. While the 1958 Convention on the High Seas contained no
provision on illicit traffic in narcotic drugs, the 1958 Convention on the

60 Law of Naval Operations

Territorial Sea and the Contiguous Zone had a limited provision on the subject
in Article 19, which read as follows:

1. The criminal jurisdiction of the coastal State should not be exercised on board a
foreign ship passing through the territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on board the ship during its
passage, save only in the following cases:

(a) If the consequences of the crime extend to the coastal State; or

(b) If the crime is of a kind to disturb the peace of the country or the good order
of the territorial sea; or

(c) If the assistance of the local authorities has been requested by the captain of the
ship or by the consul of the country whose flag the ship flies; or

(d) If it is necessary for the suppression of illicit traffic in narcotic drugs.

2. The above provisions do not affect the right of the coastal State to take any steps
authorized by its laws for the purpose of an arrest or investigation on board a foreign
ship passing through the territorial sea after leaving internal waters.

3. In the cases provided for in paragraphs 1 and 2 of this article, the coastal State shall,
if the captain so requests, advise the consular authority of the flag State before taking
any steps, and shall facilitate contact between such authority and the ship's crew. In
cases of emergency this notification may be communicated while the measures are being
taken.

4. In considering whether or how an arrest should be made, the local authorities shall
pay due regard to the interests of navigation.

5. The coastal State may not take any steps on board a foreign ship passing through
the territorial sea to arrest any person or to conduct any investigation in connection
with any crime committed before the ship entered the territorial sea, if the ship,
proceeding from a foreign port, is only passing through the territorial sea without
entering internal waters.95

This convention thus authorized the coastal states to arrest any person or
to conduct any investigation on board a foreign ship passing through their
territorial sea, if it is necessary for "the suppression of illicit traffic in narcotic
drugs," subject to conditions specified in paragraphs 3 and 5, and paying "due
regard to the interests of navigation" (paragraph 4).

This provision can be traced to a more limited suggestion of the
International Law Commission, that was due to an initiative of the
Government of Israel which called to the attention of the Commission the
fact that its draft on* the regime of the territorial sea contained no mention
of the right of the coastal state to take steps to suppress illicit traffic in narcotic
drugs.96 In 1956, at the last session of the Commission devoted to the law
of the sea, Professor Francois, the Rapporteur of the Commission on the
regime of the territorial sea, was asked whether a reference on this subject
should be added in the text of the article relating to the arrest on board a
foreign vessel in the territorial sea. He replied that the paragraph allowing
coastal state action if the consequences of a criminal act extended beyond
the vessel would almost always apply to the illicit traffic in narcotic drugs.97

Sohn 61

The final report of the Commission added a sentence in the commentary to
Article 20, stating that an "arrest for the purposes of suppressing illicit traffic
in narcotic drugs may be justifiable, if the condition in sub-paragraph (a) is
fulfilled," i.e., if "the consequences of the crime extend beyond the ship."98

At the 1958 Conference on the Law of the Sea the issue was revived by
Pakistan, which proposed the addition of a sub-paragraph in Article 20, which
would allow the coastal state, in certain specified circumstances, to arrest
a person on board a foreign ship passing through the territorial sea, "[i]f it
is necessary for the suppression of illicit traffic in narcotic drugs."99

The First Committee of the Conference adopted this proposal by 33 votes
to 8, with 30 abstentions, after a short discussion.100 On the one hand, it was
argued by the representative of Turkey that this proposal dealt with an issue
of such importance that the proposal should be broadened; it should not be
limited to the territorial sea as "the question of illicit traffic in narcotic drugs
was of universal concern."101 On the other hand, some delegates thought that
this addition was not necessary, as it was covered by other subparagraphs
of Article 20, relating to the right of arrest if "the consequence of the crime
extend beyond the ship," or "the crime is of a kind to disturb the peace of
the country or the good order of the territorial sea."102 The representative
of Norway doubted whether such provision would assist in suppressing illicit
traffic in narcotic drugs, as "it was difficult to imagine cases where crimes
of the kind envisaged in the Pakistan proposal would actually have been
committed on the ship during its passage." He also noted that the proposed
text would enable the coastal state to detain and search ships on mere
suspicion, causing delays and derogating considerably from the right of
innocent passage. He suggested that a "coastal State which had good reason
to suspect that a ship passing through the territorial sea was being used for
purposes of illicit traffic in narcotic drugs would be better advised to alert
the ship's first port of call, where appropriate action could be taken.103

Article 20 of the Territorial Sea Convention with only minor drafting
changes became Article 27 of the 1982 Law of the Sea Convention. In
particular, the provision relating to narcotic drugs was changed slightly,
allowing arrest of any person on board or an investigation, if "such measures
are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances."104

Although the 1958 Convention on the High Seas contained no provision
on narcotic drugs, a basic provision on the subject was included in Article
108 of the 1982 Convention on the Law of the Sea. No complementary
provision was included, however, in Article 110 relating to the right of visit.
This is especially surprising in view of the fact that the other new 1982 version,
the one relating to unauthorized broadcasting — discussed above — is followed
up by listing that activity as one of those justifying boarding a suspected vessel.
In addition, Article 109, paragraph 4, makes clear that any one of the states

62 Law of Naval Operations

specified in that article "may, in conformity with article 110, arrest any person
or ship engaged in unauthorized broadcasting and seize the broadcasting
apparatus." There are no parallel provisions with respect to illicit traffic in
narcotic drugs.

It has to be noted, however, that during the drafting of Articles 108 and
109 suggestions were made for strengthening these provisions for the control
of illegal traffic in narcotic drugs. The United Kingdom delegation, true to
its tradition of support for the policing of the high seas, suggested in 1974
that the convention on the law of the sea should contain provisions with regard
to ships found trafficking in narcotics.105 A draft was soon presented which,
in addition to language that, with minor changes, became the text of
paragraphs 1 and 2 of Article 108 of the Convention, contained the following
proposal:

Any state which has reasonable grounds for believing that a vessel is engaged in illicit
traffic in narcotic drugs may, whatever the nationality of the vessel but provided that
its tonnage is less than 500 tons, seize the illicit cargo. The State which carried out
this seizure shall inform the State of nationality of the vessel in order that the latter
State may institute proceedings against those responsible for the illicit traffic.

This proposal was included in this form in the Second Committee's basic
compilation of proposals expressing the "main trends" at the Conference on
a particular topic, together with a suggestion that a reference to psychotropic
substances should be added in appropriate places.106 Nevertheless, when the
Chairman of the Second Committee prepared in 1975 the first "informal single
negotiating text," he included the two other paragraphs in Article 94 of his
text, but omitted the clause allowing the seizure of illegal cargo by any state,
and providing for the punishment by the flag state of the persons responsible
for the illegal traffic.107 The delegation of Peru revived the issue in 1980, when
it recommended both adding in Article 108 a provision on cooperation with
the coastal state in case of seizure of a foreign vessel in that state's exclusive
economic zone by a warship of a third state, and an addition in Article 110
of a provision allowing boarding on the high seas of vessels engaged in the
illicit traffic in narcotic drugs or psychotropic substances.108 Neither of these
proposals was incorporated in the final text.

Consequently, there is no mention of illicit traffic in narcotic drugs in
Article 110, and Article 108 provides only that:

1. All States shall co-operate in the suppression of illicit traffic in narcotic drugs and
psychotropic substances engaged in by ships on the high seas contrary to international
conventions.

2. Any State which has reasonable grounds for believing that a ship flying its flag is
engaged in illicit traffic in narcotic drugs or psychotropic substances may request the
co-operation of other States to suppress such traffic.

Three issues raised by this provision need to be emphasized. In the first
place, the obligation to "co-operate" is generally considered as a "weak"

Sohn 63

obligation, merely a promissory note, which requires implementation by more
detailed provisions, such as those relating to piracy (1982 Convention on the
Law of the Sea, Articles 101-107) or unauthorized broadcasting (Article 109,
paragraphs 2-4 and 110, paragraph 1(c)).

Second, paragraph 2 is carefully restricted. Only the flag state is entitled
to ask other states for co-operation in catching one of its ships, if it has
reasonable grounds for believing that this ship is engaged in illicit traffic in
narcotic drugs. The opposite side is not mentioned — whether another state
is entitled to ask the flag state to allow the boarding of a suspected vessel
sailing under that flag. This is a clear case of "don't call me, I'll call you,"
designed to protect the flag state against finding itself in the unpleasant
situation where it would have to permit boarding, as otherwise it would be
suspected of assisting the drug trafficker. Its right to protect its vessels against
possibly unwarranted interference is thereby destroyed for all practical
purposes. Consequently, instead of a practice of ad hoc arrangements, flag
states are likely to prefer the conclusion in advance of a basic agreement that
would spell out the permitted measures and would provide some guarantee
against possible abuses.109

Third, paragraph 1 allows only the suppression of high seas traffic in
narcotic drugs and psychotropic substances which is "contrary to
international conventions." The obligation to co-operate thus depends on the
content of several conventions relating to such drugs and substances which
have been adopted since 1912. 110 These conventions developed a system of
co-operative arrangements for the suppression on illicit traffic in narcotic
drugs and psychotropic substances through control of manufacture, and of
export and import, of such drugs and substances, exchange of information
on illicit activities, and acceptance of an obligation to punish or extradite
the offenders.

All the previous conventions on the subject were replaced in 1961 by the
Single Convention on Narcotic Drugs,111 which in turn was amended by a
1972 Protocol.112 This convention improved the system of international control
through strict limitation of manufacture, exports and imports of an increasing
list of drugs. The States Parties to the convention agreed to co-operate closely
in a co-ordinated campaign against the illicit traffic in narcotic drugs and
to assist each other in the campaign;113 they agreed also to punish adequately
the persons involved in such traffic, including those found guilty of intentional
participation in, conspiracy to commit and attempts to commit, the offenses
(listed in the convention) that were connected with such traffic.114 It should
be noted, however, that no mention was made of any special co-operation
with respect to any activities at sea, although it was known that a large
proportion of illicit traffic was using ships for smuggling the drugs. The 1972
Protocol strengthened the extradition provisions of the 1961 Convention, but
again was silent on facilitating action against vessels engaged in illicit

64 Law of Naval Operations

traffic.115 Similarly, the parallel provisions of the 1971 Convention on
Psychotropic Substances did not mention enforcement at sea.116

During the 1970s the United States mounted a comprehensive effort to stem
the increasing flood of illicit drugs into the United States, and developed a
program of interdiction on the high seas of vessels suspected of carrying
narcotics to the United States. To justify the program under international
law, the United States relied sometimes on the analogy to slavery, arguing
that persons addicted to drugs are enslaved both to a dangerous habit and
to the drug traffickers on whom they slavishly depend, willing to do anything
to obtain the drugs needed to satisfy their constant craving for narcotics.117
Although the United States was reluctant to utilize the treaty process
envisaged by the introductory phrase in Article 22 of the Convention on the
High Seas and by the parallel provision in Article 110 of the Law of the Sea
Convention, it started concluding informal arrangements with other
countries, especially Latin American ones, which established an informal
procedure for obtaining in each case a permission to board a particular vessel.
A 1980 note by the United States to the United Kingdom describes these
arrangements as follows:

Upon initially intercepting a suspicious vessel the Coast Guard seeks, without boarding
the vessel, to establish its identity and to develop other pertinent information. On the
basis of this information, the government of the claimed or displayed nationality of
registration is contacted to verify the claim or display of nationality. If this claim is
not verified or is otherwise demonstrated to be false, the United States Coast Guard
may then approach the suspected vessel and proceed against it, as if it were a United
States flag vessel, in accordance with the principles relating to stateless vessels embodied
in Articles 6 and 22 of the Geneva Convention on the High Seas. If, however, the claim
or display of nationality is verified, and absent other facts, a special arrangement must
be entered into with the flag state if the Coast Guard is to be allowed to board, search,
and, if contraband is found seize the foreign flag vessel. Only after an arrangement has
been reached does the United States Coast Guard take action with respect to the
suspected vessel, and then only in strict compliance with the arrangement.

In some cases the government concerned grants the Government of the United States
permission to board, search and, if contraband is found indicating a violation of United
States law, seize the vessel under United States law and take all further actions
concerning the vessel under United States law. Alternatively, some governments grant
the Government of the United States permission to board and search and, if contraband
is found, seize the suspected vessel and hold it for further action by the flag state. In
the latter case, the suspected vessel is normally taken to a port in the United States
where it is held for flag state authorities. The contraband is destroyed by the Government
of the United States, with only evidentiary samples being retained. The crew is either
expelled from the United States to their country or countries of nationality or prosecuted
under United States law if there is sufficient evidence of intent to smuggle the narcotics
into the United States. Due to United States constitutional restraints the Government
of the United States cannot normally enter into undertakings with the flag state to hold
the crew for flag state prosecution. Furthermore, in pursuing the alternative of holding
the vessel for flag state action, it is made clear to the flag state that once the vessel

Sohn 65

is in the United States the claims of third parties against the vessel may make it impossible
for the Government of the United States to release the vessel to the flag state.118

As the United Kingdom authorities were not willing to proceed in such
an informal manner, an agreement was negotiated by the United States with
that country, in the form of an exchange of notes,119 modelled to some extent
on the liquor smuggling treaty of 1924. 120 This agreement is a unilateral one;
it allows the United States to board on the high seas (for which the agreement
substituted the phrase "outside the limits of the territorial sea and contiguous
zone of the United States") vessels under the British flag. It does not give
the reciprocal right to the United Kingdom to board vessels under the United
States flag, perhaps because the United States Congress may be still reluctant
to allow United States citizens to be arrested on the high seas by foreign
officials and tried by foreign courts. The boarding is permitted only in two
geographically limited areas, comprising, in the first place, the Gulf of
Mexico, the Caribbean Sea, and a portion of the Atlantic Ocean West of
longitude 55 West and South of latitude 30 North (i.e., a line drawn slightly
East of the Antilles and then West to Florida), and, in the second place, an
area extending 150 miles from the Atlantic coast, North of Florida. United
States authorities are allowed to board in those areas private vessels under
British flag "in any case in which those authorities reasonably believe that
the vessel has on board a cargo of drugs for importation into the United States
in violation of the law of the United States."

The agreement relies on the generally recognized reason for boarding,
namely the right of a warship (or Coast Guard vessel) to establish the
nationality of a vessel on the high seas. The boarding party may for this
purpose "examine the ship's papers;" it may also, in this instance, "address
enquiries to those on board," and "take such other measures as are necessary
to establish the place of registration of vessel." Then comes the shift: "When
these measures suggest that an offense against the laws of the United States
relative to the importation of drugs is being committed, the Government of
the United Kingdom agrees that it will not object to the authorities of the
United States instituting a search of the vessel." While this provision is far-
reaching, it may be noted that it implies that the starting point for this
reinforced suspicion cannot be a physical search of the ship (as this is the next
step), but must be the result of findings derived from documents or statements
by the captain or the crew. Finally, if the authorities of the United States
have been led by the search to the belief that an offense against the anti-
drug laws of the United States is being committed, then they are allowed
to seize the vessel and take it into a United States port.

As all these steps are to a large extent in the discretion of the authorities
of the United States and lend themselves easily to abuse, the United Kingdom
Government reserved to itself the right to object, within 14 days of the vessel's

66 Law of Naval Operations

entry into port, to further exercise of United States* jurisdiction, and the
United States agreed that thereupon it would release the vessel without
charge. Similarly, if the United Kingdom, within 30 days of the vessel's entry
into port, objects to the prosecution of any United Kingdom national found
on board, such person has to be released by the United States. On the other
hand, in a departure from the traditional rule that the flag state is entitled,
and perhaps even obliged, to protect the members of the crew of its vessels
regardless of their nationality,121 the United Kingdom agreed that it "will
not otherwise object to the prosecution of any other person found on board
the vessel." In order to enable the United Kingdom to make these requests,
in every case of boarding of a vessel under the British flag the United States
"shall promptly inform the authorities of the United Kingdom of the action
taken and shall keep them fully informed of any subsequent development/ '

There is finally a weak provision for the settlement of disputes under this
agreement, especially those relating to any loss or injury "suffered as a result
of any action taken by the United States in contravention of these
arrangements or any improper or unreasonable action taken by the United
States pursuant thereto.,, In such a case, "representatives of the two
Governments shall meet to decide any question relating to compensation."
If they don't agree, there is no other recourse, as surprisingly there is no
arbitration treaty between the two countries despite the fact that in the past
they have found it possible to submit many claims to arbitration.

There is not a perfect model, but a good beginning. Perhaps it is even too
good, as the United States has not embarked, as it did in 1924, on a diplomatic
effort to have similar agreements with all other interested States. It is possible
that the mild restrictions of the United Kingdom agreement on possible abuse
of power by the United States authorities are found too uncomfortable; and
that these authorities prefer instead to obtain ad hoc consent for each search
and seizure,122 or even to pretend that the fact that the flag State did not
later object is equivalent to an ex post facto ratification of the seizure.123 It
is in order to avoid such abuses of the basic rules of the international law
of the sea and of the interrelated rules of international human rights law,
that the Law of the Sea Conventions require "a treaty" properly defining
the allowable searches and seizures and providing at least some minimum
guarantees that the fate of the ship and of the captain and the crew will not
be at the complete mercy of the foreign warship.124

At the same time, other countries became concerned about the growth of
illicit traffic in narcotic drugs and the need for adequate international
arrangements to deal with this issue. When the Commission on Narcotic
Drugs established in 1982 an expert group to study the functioning, adequacy
and enhancement of the 1961 Single Convention on Narcotic Drugs, Canada
used this occasion to propose to that group the preparation of an "arrangement
for law enforcement authorities to board vessels flying foreign flags."125 The

Sohn 67

group of experts noted that "bilateral arrangements had been made in certain
specified geographic areas whereby ships flying the flag of the other country
concerned could be boarded and inspected in order to apprehend drug
traffickers or to seize illicit narcotic drugs," and recommended the
preparation of a study of existing agreements, analyzing their structure and
functioning, and assessing their usefulness and advisability.126

On the basis of the experts' report, Canada, Italy, Pakistan and the United
States presented a resolution to the Commission on Narcotic Drugs suggesting
the adoption of certain modest measures "to improve international
cooperation in the maritime interdiction of illicit drug traffic."127 This
proposal was adopted by the Economic and Social Council, with slight
drafting changes; it emphasized the need for "effective steps by all States
to provide, in accordance with relevant domestic constitutional safeguards
and legislations, for prompt, positive and unmistaken identification of private
vessels registered under their flags," and recommended several steps to
achieve this goal.128. Neither the four states' proposal, nor the Council's
resolution mentioned, however, the problem of boarding foreign vessels.

Nevertheless, a report by the Secretary-General noted that the Commission
on Narcotic Drugs and the United Nations Secretariat's Division on Narcotic
Drugs have started studying the possible ramifications of the 1982 Law of
the Sea Convention, especially of Article 27 (criminal jurisdiction on board
a foreign ship in the territorial sea) and Article 108 (cooperation with respect
to illicit traffic on the high seas), as well as of the effect of provisions
broadening the jurisdiction of the coastal States by increasing the breadth
of the territorial sea and the contiguous zone and the establishment of the
exclusive economic zone and archipelagic waters. The view was expressed
that some States seem to expect that "the complex problems States face in
intercepting vessels suspected of smuggling drugs may be overcome with the
entry into force of the Convention, in particular, that drug law enforcement
agencies of States Parties would have a greater ability to take action in respect
of foreign ships in extended areas under their jurisdiction."129 It was this
approach that the United Kingdom and the United States were trying to avoid
in their 1981 agreement130 by substituting for the "high seas" a reference to
the area "outside the limits of the territorial sea and the contiguous zone,"
thus indicating indirectly that a coastal State's jurisdiction with respect to
the control of drug trafficking does not extend beyond the limits of the
contiguous zone and does not, in particular, apply to the vast extent of the
exclusive economic zone.

Another approach was tried by two (partly overlapping) groups of Latin
American countries, which proposed in 1984, respectively, that "traffic in
narcotic drugs should be considered a crime against humanity, with all the
legal consequences implicit therein," and that a "special conference should
consider declaring drug trafficking to be a crime against humanity, since it

68 Law of Naval Operations

seriously affects people's lives, health and welfare, has a negative impact on
the economic and social system and poses a danger to the stability of
democratic processes in Latin America. "131 These proposals led to the adoption
by the General Assembly of a resolution, supported by several additional
countries of the Americas, Asia and Africa, including Canada and the United
States, requesting the Commission on Narcotic Drugs to initiate the
preparation of a "draft convention against illicit traffic in narcotic drugs"
which would deal, in particular, with problems "not envisaged in existing
international instruments."132 A draft convention, prepared by Venezuela,
was annexed to the resolution; it would have condemned trafficking in
narcotic drugs or psychotropic substances as "a grave international crime
against humanity," and would have provided also for "imprescriptibility of
the crimes" and "mutual assistance in combating illicit trafficking."133 A
parallel Declaration on the Control of Drug Trafficking and Drug Abuse was
adopted by the General Assembly at the same time; it also condemned drug
trafficking, but called it only "an international criminal activity."134 The
delegate of the United Kingdom immediately objected to the application of
the concept of the crime against humanity, which had "specific connotations
in international law," and "would give rise to prolonged and unproductive
discussion."135 On the other hand, the delegate of Argentina considered that
drug trafficking was "a crime against humanity, and its declaration as such
would make way for the formulation of precise legal definitions which would
ensure that the crime was punished and that national borders were no longer
used as shields for committing it."136

At the 1985 meeting of the Commission on Narcotic Drugs, several
representatives made clear that their governments would find it impossible
to accept a convention that included drug trafficking in the definition of
crimes against humanity which had "specific historical and legal
connotations," or included the proposal to make drug traffic crimes
imprescriptible, as this proposal would "run counter to the principles of
widely accepted penal policy." Many representatives supported the inclusion
in the proposed new convention of provisions designed "to strengthen the
capacity of Governments to render mutual law enforcement and judicial
assistance;" in particular, it was emphasized that "the present opportunity
should be taken to consider the problem of drug smuggling by ship," especially
in view of "the difficulty encountered in intercepting suspect vessels on the
high seas." It was also suggested that drug trafficking on the high seas "be
given the same status as piracy, in international law."137

The Commission asked in 1985 for comments and suggestions concerning
the elements to be included in the proposed convention. Australia replied that
it might prove difficult to incorporate in the convention "the concept of
interception on the high seas of vessels involved in drug trafficking." The
United Kingdom emphasized the importance of maintaining "the principle

Sohn 69

of free right of passage for ships on the high seas." Consequently, it
proposed — together with the United States and Turkey — that any "provision
allowing the stopping and boarding of vessels on the high seas . . . would
have to make such intervention conditional upon the consent of the flag
State." Egypt and Spain called attention to the 1982 Convention of the Law
of the Sea and suggested that Article 108 of that convention could be
elaborated upon in the new convention. Egypt and the United States revived
the idea that "illicit traffic on the high seas might be assimilated to piracy
and treated as such under applicable international law." To implement that
concept, the United States proposed that the convention should provide "that
a State may request another State [for] authority to board a vessel flying the
latter's flag and seize, arrest and prosecute as appropriate when there are
reasonable grounds to believe that such vessel is engaged in drug trafficking;"
and that, upon receipt of such request, "the flag state would be required to
take action to ensure that the vessel is not engaged, or permitted to engage
further, in trafficking." Egypt, on the other hand, suggested that the new
convention should take advantage of Articles 27 (criminal jurisdiction on
board a foreign ship passing through the territorial sea) and 33 (contiguous
zone) in order to cover also cases of illicit traffic in the territorial sea and
the contiguous zone.138

Some of these comments were echoed at the next meeting of the
Commission on Narcotic Drugs. Strong opposition was expressed to the
"qualification of illicit traffic as a crime against humanity," and to
imprescriptibility of traffic offenses. On the other hand, several
representatives supported the inclusion of provisions allowing for
"appropriate intervention on the high seas in cases of illicit drug traffic,"
and of provisions encouraging "[ijmproved co-operation and bilateral and
regional agreements in this field."139 The Commission decided accordingly
to include as one of the elements in its guidelines for the drafting of the
convention the strengthening of "mutual co-operation among States in the
suppression of illicit drug trafficking on the high seas."140

In June 1986, the Division of Narcotic Drugs of the United Nations
Secretariat, with the assistance of a group of experts volunteered by several
nations (including the United States), prepared a preliminary draft on the
convention, Article 12 of which dealt with "illicit traffic by sea."141 At its
1987 session, the Commission on Narcotic Drugs had also before it another
series of comments by the governments,142 including elaborate comments by
the United States.143 The Commission was able to engage only in a general
discussion and a preliminary consideration of non-controversial articles and
of the difficult definitional article (Article 1); there was no discussion of
Article 12. 144 In the general debate, some representatives mentioned the need
to strengthen Article 12, in order to make the high seas "off limits" to drug
traffickers; others wanted to delete the provisions relating to search and

70 Law of Naval Operations

seizure of vessels, "because of the serious implications which their
implementations could have in certain areas of international trade and also
in view of their possible abuse by certain States."145

The Commission asked the Division of Narcotic Drugs to prepare a
working document, consolidating all proposals, and recommended to the
Economic and Social Council the establishment of an open-ended
intergovernmental expert group to review that document, "to reach
agreement on the articles of the convention, wherever possible, and to prepare
a revised working document, " to be reviewed by the Commission at the
beginning of 1988. 146 The Economic and Social Council approved this proposal
in May 1987, 147 and a group of 135 experts from 57 countries met promptly
in Vienna in June and July 1987, reviewed the Secretariat document,148 and
redrafted a number of articles of the draft convention, including Article 12. 149

One further development should be mentioned, which stimulated action
in this field. The International Conference on Drug Abuse and Illicit
Trafficking, held at Vienna in June 1987, approved as Target 28 for suggested
courses of action on national, regional and international levels, to establish
control over ships on the high seas and aircraft in international airspace. In
particular, the Conference suggested the following courses of action:

At the national level. Should the ministry or authority concerned have reasonable grounds
for suspecting that a vessel or aircraft registered under the laws of the State is illicitly
carrying drugs, it may request another State to assist in carrying out a search: for
example, that other State may be asked to direct its authorities to board and inspect
the vessel and, if drugs are found, to seize them and arrest persons involved in the
trafficking. In such circumstances, the State's own authorities may board or seize a vessel
or aircraft registered under its laws. Subject to the provisions of international law, the
law enforcement authorities should, to the fullest extent permitted by national law,
undertake to board and seize a vessel unlawfully carrying drugs, provided that the
authorization of the State of registry and, when applicable, of a coastal State has been
obtained. A State should endeavour to respond promptly when asked for permission
to stop, board and search a vessel under its registry for reasons of illicit drug trafficking
control. Subject to the same considerations, an aircraft may be subject to search upon
landing at a designated airport.

The appropriate ministry or authority should, after the seizure of such a vessel or aircraft,
deal promptly with illicit drugs and traffickers found thereon under the country's own
laws if the conveyance is registered under that country's laws or, if registered under
the laws of another State, pursuant to such agreement as is reached with the State of
registry without unnecessary delay.

States could authorize the appropriate agency or responsible authority to take
appropriate action in these matters. This action might include the prompt
communication of information indicating whether a particular vessel or aircraft is
registered under the laws of the requested State and also authority to empower a
requesting State to seize the suspect vessel or aircraft.

At the regional and international levels. International bodies and States could consider whether
international standards can be established for the identification, seizure and disposition
of vessels and aircraft on the surface suspected of carrying drugs illicitly, and of the

Sohn 71

drugs and traffickers found thereon. States should also make every effort to conclude
bilateral, multilateral and regional agreements to strengthen such co-operation between
States.150

At the same time, the Conference made clear that "appropriate co-operative
procedures need to be devised which do not interfere with legitimate passage
of commerce," and which comply with "existing relevant conventions."151

In settling these issues, as shown over almost two hundred years of efforts,
it did not prove easy to establish the balance between two aspects of national
sovereignty — the freedom of a state's ship to navigate the oceans without
interference by other states, and the right of other states to protect some
important interests against a possibility of interference by foreign vessels
engaged in a generally condemned activity. In the field of slavery, despite
repeated efforts by some governments, international conferences consistently
rejected any interference with foreign vessels which would go beyond the
right to approach and to ascertain a vessel's flag and registration, and all
attempts to equate slavery with piracy were unsuccessful. Once a vessel's
nationality has been ascertained, any further action had to be deferred to the
flag state.

Are coastal states entitled to go further as far as illicit traffic in narcotic
drugs is concerned? At the Third Law of the Sea Conference, only a few
years ago, the decision went in the opposite direction, and the proposals to
put drug trafficking on the same level as slavery were clearly rejected. In
other negotiations, attempts to include illicit drug traffic among "crimes
against humanity" were strongly opposed. There is clearly a hierarchy here —
piracy, slavery, drug traffic; and the measures that may be taken against a
vessel engaging in such activities diminish gradually.

In the recent negotiations on the new convention against illicit traffic in
narcotic drugs and psychotropic substances, the old arguments were often
repeated, though sometimes in new, more modern guises.

In particular as was noted previously, several proposals were made to
declare that the traffic in illicit drugs was a "crime against humanity" or
that it should be assimilated to "piracy."152 In view of the strong opposition
to these proposals by other Governments,153 the Secretariat of the United
Nations did not include this concept in its early drafts,154 and no further
mention was made of this issue. The United Kingdom was not able to achieve
this objective with respect to slavery; now, it was the United States that was
trying to achieve a similar goal with respect to the illicit drug traffic, but
the opposition of the United Kingdom and other States made it impossible.

Article 12 of the Secretariat's 1986 Draft155 became the focus of the debate
on the "illicit traffic by sea." To facilitate the comparison, the semifinal text,
referred by the Commission on Narcotic Drugs in 1988 to the Plenipotentiary
Conference, is also included here, the changes in the two texts being italicized,
together with additions or omissions.

72 Law of Naval Operations
1986 Text:

1. The Parties shall co-operate to
the fullest extent possible to suppress
the illicit traffic in controlled substances
by sea.

2. A Party which has reasonable
grounds to suspect that a vessel
registered under its laws is being used for
the illicit traffic in controlled substances
may request the assistance of other
Parties in suppressing its use for that
purpose. Parties so requested shall
render such assistance, within the
means available to them.

3. A Party which has reasonable
grounds to believe that a vessel is
engaged in illicit traffic and is on the
high seas as defined in Part VII of the
United Nations Convention on the Law
of the Sea may board, search and seize
such a vessel if:

(a) The vessel is registered under its
law; or

(b) That Party seeks and receives
permission from the Party of registry; or

(c) The vessel is not displaying a flag
or markings of registry.

4. A Party shall respond in an
expeditious manner to requests from
another Party to determine, for the
purpose of paragraph 3 of this article,
whether a vessel is registered under
its laws, and to requests for permis-
sion made pursuant to the provisions
in that paragraph. Each Party shall
designate an authority to receive and
act upon such requests. The authority
designated by each Party for this
purpose shall be notified through the
Secretary General to all other
Parties.

1988 Text:

1. The Parties shall co-operate to
the fullest extent possible to suppress
the illicit traffic by sea.

2. If a Party, which has reasonable
grounds to suspect that a vessel flying
its flag or not displaying a flag or markings
of registry is being used for the illicit
traffic, requests the assistance of other
Parties in suppressing its use for that
purpose, the Parties so requested shall
render such assistance, within the
means available to them.

3. Without prejudice to any rights
provided for under general international
law, a Party, which has reasonable
grounds for believing that a vessel that
is beyond the external limits of the
territorial sea of any State and is flying the
flag of another Party is engaged in illicit
traffic, may, if that Party has received
prior permission from the flag State,
board, search and, if evidence of illicit
traffic is discovered, seize such a vessel.

4 . For the purposes of paragraph 3 of this
article, a Party shall respond in an
expeditious manner to requests from
another Party to determine whether
a vessel is registered under its law
and to requests for permission made
pursuant to the provisions in that
paragraph. At the time of adhering to the
Convention, each Party shall designate
an authority to receive and respond
to such requests. The authority
designated by each Party for this
purpose shall be notified through the
Secretary-General to all other
Parties within one month of the
designation.

Sohn 73

5. Where evidence of illicit traffic
is found, the Party having custody of
the vessel shall take appropriate
action with respect to the vessel and
persons on board, in accordance
with:

(a) Its own judicial requirements if the
vessel is registered under its laws; or

(b) Existing bilateral treaties, where
applicable, or any agreement or
arrangement otherwise reached at the
time of seizure with the Party of registry.

6. The right to challenge the nature or
effect of the agreement or arrangement
referred to in paragraph 5 (b) of this article
shall rest exclusively with the Party of
registry.

1 . The Parties shall consider enter-
ing into bilateral and regional
agreements to carry out, or to
enhance the effectiveness of, the
provisions of this article.

5. Where evidence of illicit traffic
is found, the Party having custody of
the vessel shall take appropriate
action with respect to the vessel and
persons on board, in accordance with
treaties, where applicable, or any
prior agreement or arrangement
otherwise reached with the flag State.

6. A Party which has taken any action
contemplated in this article shall promptly
inform the flag State concerned of the
results of that action.

7. The Parties shall consider enter-
ing into bilateral and regional
agreements to carry out, or to
enhance the effectiveness of, the
provisions of this article.

No change was made in paragraph 7, and only minor changes were made
in paragraphs 1 and 4. Paragraph 2 was redrafted slightly to include some
phrases from the original paragraph 3 relating to a vessel that is not displaying
a flag or markings of registry. Paragraphs 3 and 5 were the most controversial
provisions.

As far as paragraph 3 was concerned, it was already mentioned that the
controversy over the status of the exclusive economic zone, which has plagued
the Third United Nations Conference on the Law of the Sea,156 was revived
during the preparation of the draft convention against the illicit traffic in
narcotic drugs and psychotropic substances.157 The 1986 Secretariat Draft
allowed the boarding of a suspected vessel "on the high seas as defined in
Part VII of the United Nations Convention on the Law of the Sea."158 Part
VII, entitled "High Seas" does not actually define the high seas, but in Article
86 merely states that it applies "to all parts of the sea that are not included
in the exclusive economic zone, in the territorial sea or in the internal waters
of a State, or in the archipelagic waters of an archipelagic State." At the
same time, Article 86 makes clear, however, that this provision "does not
entail any abridgement of the freedoms [of the high seas] enjoyed by all States
in the exclusive economic zone in accordance with Article 58." Article 58,
in turn, mentions expressly the freedom of navigation and the applicability

74 Law of Naval Operations

in the exclusive economic zone of Articles 88 to 115 and other pertinent rules
of international law, thus including Articles 92 (exclusive jurisdiction of the
flag State), 108 (illicit traffic in narcotic drugs), 110 (right of visit) and 111
(right of hot pursuit ceases "as soon as the ship pursued enters the territorial
sea of its own State or of a third State").159

To avoid any conflict with respect to the meaning of the "high seas" phrase,
the United States immediately proposed that the right to board a suspected
vessel should extend to the whole area "outside the territory and the
territorial sea of any State," thus including the contiguous zone and the
exclusive economic zone within the area in which boarding does not require
the consent of the coastal State. This proposal was without prejudice to the
requirement of "prior consent of the State of registry. "160 The United States
proposal was accepted by the Intergovernmental Expert Group, whose draft
authorized the boarding of a suspected vessel "beyond the external limits of
the territorial sea of any State." The group also added, at the beginning of
paragraph 3, the phrase "[wjithout prejudice to any rights provided for under
general international law."161

At the 1988 session of the Commission on Narcotic Drugs, several
representatives expressed reservations about paragraph 3. One of them
proposed redrafting the first phrase to read: "Without prejudice to any rights
conferred on the coastal State under the United Nations Convention on the
Law of the Sea ..." Another one proposed, more elaborately, to revise that
sentence as follows: "Without prejudice to the right deriving from the rules
and principles of international law, particularly in the zone contiguous to the
territorial sea." Alternately, that representative suggested a new paragraph
3 reading: "The provisions of the preceding paragraph shall not affect the
rights which the coastal State may exercise, in conformity with international
law, in the zone contiguous to its territorial sea." Other representatives
pointed out that the text adopted by the Expert Group "could imply that
third States would be given certain rights in the area between 12 and 200
miles (Exclusive Economic Zone) which were not contemplated in the
Convention on the Law of the Sea." They argued, therefore, for restoring
the original phraseology proposed by the Secretariat. In response, one
representative supported the language proposed by the Expert Group on the
ground that the International Maritime Organization, when faced with a
similar issue in drafting the Convention on the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation,162 decided also to use a phrase
referring to jurisdiction "beyond the outer limits of the territorial sea."163

Other issues were also raised. One representative, taking into account
Article 107 of the Convention on the Law of the Sea, suggested that "a search
or seizure may be effected only by a ship and/or aircraft which was clearly
marked and identifiable as being on government service and authorized to
undertake such activities."164 Another representative commented on

Sohn 75

paragraph 5, according to which, where evidence of illicit traffic is found,
"the Party having custody of the vessel shall take appropriate action.,, He
pointed out that the notion of "custody of the vessel" covered a legal situation
not contemplated by the draft convention, and proposed that the main part
of the sentence be simplified to read: "the Party which has intercepted a vessel
pursuant to paragraph 3 shall take appropriate action with respect to the vessel
and persons on board, in accordance with treaties or with any prior agreement
or arrangement reached with the flag State."165 It may be noted that this text
and the Commission's 1988 version differ here from the 1986 text by
emphasizing the need for a "prior" agreement or arrangement, thus coming
closer to Article 108 of the Convention on the Law of the Seas which allows
measures going beyond a visit to verify the ship's right to fly its flag only
"where acts of interference derive from powers conferred by a treaty." Two
steps seem to be thus required: a prior agreement (under paragraph 7)
establishing the means for obtaining permission allowing a foreign authority
to go beyond a visit and to search or seize a ship; and an actual grant of
approval for a particular action, i.e., to search the ship only, or to search
arid, if evidence of illicit traffic is found, to seize that evidence (and transmit
it to the flag State for further action), or to seize the ship and arrest the persons
engaged in illicit traffic.

Several representatives, by analogy to Articles 106 and 110, paragraph 3,
of the Convention of the Law of the Sea, proposed that a new paragraph
should be inserted in Article 12 to guarantee compensation for vessels that
were subjected to unjustified search measures, to be paid by the State that
organized the search and determined its scope. Although the flag State had
granted its approval for a search, it should not bear responsibility as its
permission was dependent on the information provided by the State requesting
a search.166

Finally, one more general comment was made. One representative stressed
that it should be stipulated in the preamble to the Convention that the
measures envisaged in the Convention "must be consistent with human rights,
respect the traditions and customs of national or regional groups and protect
the environment." He also proposed that the Convention should indicate that
"international co-operation, whether bilateral or multilateral, should develop
free of pressures of any kind."167

At the end of the debate, several representatives expressed the following
conclusions: that Article 12 provided "a workable mechanism to facilitate
international co-operation against illicit traffic on the high seas;" that it "took
into account the need not to interfere with legitimate rights of passage;" that,
by requiring "the consent of the flag State prior to intervention, [it] preserved
the important principle of flag State responsibility;" and that, in spite of the
difficulties faced by some States, the article reflected the compromise reached

76 Law of Naval Operations

by the Expert Group, which merited consolidation by the Plenipotentiary
Conference.168

Without making any changes itself, the Commission on Narcotic Drugs
decided to forward draft Article 12 to the Plenipotentiary Conference "for
appropriate consideration.,,169

On the Commission's recommendation,170 the Economic and Social Council
decided to convene a further group of experts to review the outstanding issues,
and to convene thereafter a plenipotentiary conference to complete the
negotiations and adopt the final version of the Convention.171

The United Nations Conference for the Adoption of a Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances met in Vienna
from November 25 to December 20, 1988. The final text was adopted by
consensus, without vote, on December 19, 1988, and 43 of the 106 States
participating in the Conference signed it on December 20. The signatory states
ranged from Afghanistan to Zaire, including China, the United Kingdom and
the United States; France and the Soviet Union were not, however, among
the original signatories.172 The 35 substantive articles of the Convention
impose upon the parties an obligation to take specific law enforcement
measures to improve their ability to deal more effectively with various aspects
of illicit traffic in narcotic drugs having an international dimension (Article
2).173 In the preamble to the Convention, the parties recognize that "the illicit
traffic is an international activity, the suppression of which demands urgent
attention and highest priority;" and express, in particular, their determination
"to improve international cooperation in the suppression of illicit traffic by
sea.

The final text, as revised by the May 1988 Review Group174 and the
Conference, deals with maritime interdiction in Article 17; in addition,
certain jurisdictional aspects are dealt with in Article 4(l)(b)(ii).
The final text of Article 17 reads as follows:

1. The Parties shall co-operate to the fullest extent possible to suppress illicit traffic
by sea, in conformity with the international law of the sea.

2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not
displaying a flag or marks of registry is engaged in illicit traffic may request the assistance
of other Parties in suppressing its use for that purpose. The Parties so requested shall
render such assistance within the means available to them.

3. A Party which has reasonable grounds to suspect that a vessel exercising freedom
of navigation in accordance with international law and flying the flag or displaying
marks of registry of another Party is engaged in illicit traffic may so notify the flag
State, request confirmation of registry and, if confirmed, request authorization from
the flag State to take appropriate measures in regard to that vessel.

4. In accordance with paragraph 3 or in accordance with treaties in force between them
or in accordance with any agreement or arrangement otherwise reached between those
Parties, the flag State may authorize the requesting State to, inter alia:

Sohn 77

(a) Board the vessel;

(b) Search the vessel;

(c) If evidence of involvement in illicit traffic is found, take appropriate action with
respect to the vessel, persons and cargo on board.

5. Where action is taken pursuant to this article, the Parties concerned shall take due
account of the need not to endanger the safety of life at sea, the security of the vessel
and the cargo or to prejudice the commercial and legal interests of the flag State or
any other interested State.

6. The flag State may, consistent with its obligations in paragraph 1 of this article,
subject its authorization to conditions to be mutually agreed between it and the
requesting Party, including conditions relating to responsibility.

7. For the purposes of paragraphs 3 and 4 of this article, a Party shall respond
expeditiously to a request from another Party to determine whether a vessel that is
flying its flag is entitled to do so, and to requests for authorization made pursuant to
paragraph 3. At the time of becoming a Party to this Convention, each Party shall
designate an authority or, when necessary, authorities to receive and respond to such
requests. Such designation shall be notified through the Secretary-General to all other
Parties within one month of the designation.

8. A Party which has taken action in accordance with this article shall promptly inform
the flag State concerned of the results of that action.

9. The Parties shall consider entering into bilateral or regional agreements or
arrangements to carry out, or to enhance the effectiveness of, the provisions of this
article.

10. Action pursuant to paragraph 4 of this article shall be carried out only by warships
or military aircraft, or other ships or aircraft clearly marked and identifiable as being
on government service and authorized to that effect.

11. Any action taken in accordance with this article shall take due account of the need
not to interfere with or affect the rights and obligations and the exercise of jurisdiction
of coastal States in accordance with the international law of the sea.

The next text is an amalgamation of the previous drafts, using some
language of both the 1986 Secretariat text and that of the earlier Review
Group, which the Commission on Narcotic Drugs forwarded to the
Conference,175 with certain changes and several additions. In particular, two
references were added to the "international law of the sea/' it being generally
understood, and expressly stated by the United States delegation, that these
references relate to international customary law, as reflected in the 1982
United Nations Convention on the Law of the Sea. Thus paragraph 1 follows
clearly Article 108(1) of that Convention, and paragraph 2 is based on its
Article 108(2), and, following recent practice, expands the right to request
assistance to include the case of illicit traffic by stateless vessels. It is also
necessary to note that new paragraph 11 requires that any interdiction action
"shall take due account of the need not to interfere with or affect the rights
and obligations of the coastal States in accordance with international law,"

78 Law of Naval Operations

which have been considerably broadened by the 1982 Convention. The United
States delegation made clear, however, during the negotiations that this
paragraph refers only to those situations in which a coastal state has generally
recognized rights beyond the outer limit of the territorial sea, as in the case
of hot pursuit in the exclusive economic zone and on the high seas, and the
right to take action in the contiguous zone for the limited purposes recognized
in Article 33 of the LOS Convention.

Paragraphs 3-6 expand considerably the text contained in earlier drafts and
define more clearly the respective rights of the flag state and of the state
wishing to search a foreign ship. A state having reasonable grounds to suspect
that a vessel flying the flag of another state is engaged in illicit drug traffic
may take three steps: (a) notify the flag state so that this state itself may take
the necessary action; (b) request confirmation of registry; and (c) if registry
is confirmed, request authorization from the flag state to "take appropriate
measures in regard to that vessel." It is thus made clear that, once it is
confirmed that the vessel is actually entitled to fly the flag of another state,
no action can be taken against the vessel without express authorization of
the flag state.

The authorization can be made directly "pursuant to this article" of the
1988 Convention, and in such case no additional agreement or arrangement
is required. The Convention encourages the parties, however, to enter into
bilateral or regional agreements or arrangements to carry out the provisions
of this article (paragraph 9); and the United States has already started to
conclude such agreements.176 It is not clear what is meant by "arrangements;"
it probably means exchanges of notes or other executive agreements not
requiring ratification, but does not include informal ad hoc agreements reached
by telephone at the time of a request for authorization.

Whether or not there is an agreement or arrangement, the flag state has
several choices. In the first place, it may authorize the requesting state only
to board the vessel (e.g., to ascertain the registration); or it may authorize
a search of the vessel; or, if that search finds evidence of involvement in illicit
traffic, the flag state may authorize the requesting state to "take appropriate
action with respect to the vessel, persons and cargo on board" (paragraph
4). In the second place, the flag state may, consistent with its obligation to
"cooperate to the fullest extent" (paragraph 1), "subject its authorization
to conditions to be mutually agreed" by the two states concerned. If the
requesting state is not able or willing to comply with those conditions, the
authorization can be denied. One of the conditions may be that the requesting
state should agree to be responsible for any damage caused by its action against
the vessel (paragraph 6). This may be onerous, as the Convention also provides
that in any action to be taken under this article, the requesting state must
"take due account of the need not to endanger the safety of life at sea, the
security of the vessel and the cargo." More broadly, it shall not "prejudice

Sohn 79

the commercial and legal interests of the flag State or any other interested
State'* (paragraph 5).

Paragraphs 7 and 8 reflect the prior drafts, with only minor changes.
Paragraphs 9 and 11 have already been discussed above. In accordance with
the new paragraph 10, action under this Article can be taken only by "warships
or military aircraft, or other ships or aircraft clearly marked and identifiable
as being on government service and authorized to that effect." This provision
reflects several articles of the 1982 LOS Convention.177

By thus codifying the rules on interdiction of foreign vessels, the
Conference took an important step which would bring the campaign against
illicit drugs to a point beyond that ever reached by the crusade against slave
trade. Whether this step will endanger the freedom of the high seas will
depend on the interpretation of the provisions relating to the obligation
requiring the prior consent of the flag state, not merely in a particular case,
under pressure of the circumstances, but through a properly ratified, bilateral
or multilateral agreement, containing proper safeguards against abuse.178 In
the 1920s it proved possible for the United States to conclude sixteen such
agreements in order to combat liquor traffic.179 Perhaps it may be possible
to conclude agreements similar to the one made with the United Kingdom
in 1981 ,180 which would permit the United States — in the words of paragraph
9 of Article 17 of the Convention — "to carry out, or to enhance the
effectiveness of, the provision of [that] article." Only that kind of action
would maintain the integrity of Article 110 of the Convention on the Law
of the Sea, and would protect the United States and its Navy against the
disintegration of the concept of the freedom of the high seas, on which the
security of the United States depends.181

Notes

*Woodruff Professor of International Law, School of Law, University of Georgia.

1 . As Professors McDougal and Burke have pointed out, the story of the attempts to broaden the
right to visit and search slave-trading vessels "possesses current interest as testimony of the traditional
aversion of interference by foreign warships with national vessels on the high seas." Myres S. McDougal
and William T. Burke, The Public Order of the Oceans (New Haven and London: Yale University Press,
1962), p. 881.

2. This comment will not consider such issues as the extent of a coastal state's jurisdiction in a
contiguous zone, right of hot pursuit from coastal waters into the high seas, jurisdiction over activities
on the continental shelf and in the exclusive economic zone, the protection of certain living resources
of the high seas, or the exploration of the mineral resources of the seabed area beyond the limits of national
jurisdiction. For an early collection of treaties, laws and regulations dealing with some of the issues
mentioned in this footnote, which was prepared by this author for the International Law Commission,
see United Nations Legislative Series, v. 1, Laws and Regulations on the Regime of the High Seas, U.N. Doc.
ST/LEG/SER.B/1 (1951), U.N. Publ. Sales No. 1951.V.2.

3. See the I'm Alone case, where the United States was ordered to pay $25,000 in punitive damages
for the intentional sinking by a United States Coast Guard vessel of a British ship of Canadian registry
suspected of smuggling alcoholic beverages. Report by a Joint Commission, January 5, 1935, United
Nations, Reports of International Arbitral Awards, v. 3, pp. 1609, 1617-18.

For punishment of British commanders for illegal captures of slave ships, see infra note 21. See also
the treaty of 1862, infra, note 31, Article 7, and the text preceding that note.

80 Law of Naval Operations

The Treaty of Amity and Commerce with Prussia, September 10, 1785, provided in Article XV that
even in time of war between one party and a third power, if a vessel of war of the belligerent party
should encounter the vessel of the neutral party on the high seas, it would not be permitted to approach
the neutral vessel within a cannon-shot, nor send more than two or three men in their boat on board
that vessel, to examine her sea-letters or passports (i.e., documents proving their neutral nationality);
and should the persons belonging to the war vessel "molest or injure in any manner whatever the people,
vessels, or effect of the other part," they would be "responsible in their persons and property for damages
and interest." As at that time, the United States Navy had to rely for assistance on privateers, there was
the additional provision that "all commanders of private owned vessels" must give sufficient security
for such damages "before they are commissioned." William M. Malloy, Treaties, Conventions, etc., between
the United States of America and Other Powers, 1776-1909 (Washington, D.C.: Government Printing Office,
1910), v. 2, pp. 1477, 1482.

For a spirited defense of the United States' need for privateers, see the statement of U.S. Minister at
London, Mr. James Buchanan (later President of the United States), March 24, 1854, reprinted in John
Basset Moore, A Digest of International Law (Washington D.C.: Government Printing Office, 1906), v. 7,
p. 550. In 1856, the United States Government announced its willingness to adhere to the Declaration
of Paris abolishing privateering, provided that at the same time the other powers would agree that "the
private property of subjects and citizens of a belligerent on the high seas shall be exempt from seizure
by the public armed vessels of the other belligerent, except it be contraband," thus evening the odds
between Great Britain, then the biggest naval power, and the United States, then having the biggest
merchant marine (easily changeable to privateering). See id., pp. 563-65. See also the statement by Secretary
of State Marcy, July 28, 1856, id., pp. 552-54.

4. Le Louis, 2 Dodson 210, 243-44 (High Court of Admiralty, 1817); reprinted in James Brown Scott,
ed., Cases on International Law (St. Paul: West Publishing Co., 1905), pp. 352, 356-357 (1905).

In a similar spirit, Justice Story stated that:

Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway
of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive
prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful
business without interruption; but, whatever may be that business, she is bound to pursue it in
such a manner as not to violate the rights of others. The general maxim in such cases is, sic utere
tuo, ut non alienum laedas.

The Marianna Flora, 24 U.S. (11 Wheaton) 1, 42 (1826).

5. U.N. Secretariat, Memorandum on the Regime of the High Seas, U.N. Doc. A/CN.4/32 (1950), p. 4
(prepared by Professor Gilbert Gidel).

6. [First] United Nations Conference on the Law of the Sea, Official Records, v. 4 (Second Committee:
High Seas; General Regime), U.N. Doc. A/CONF.13/40 (1958), U.N. Publ. Sales No. 58.V.4, Vol. 4,
p. 15 (hereafter cited as 1958 LOS Conference). Admiral Colclaugh emphasized that the principle of the
freedom of the seas had two vital elements: first, that the high seas were open to all nations; and second,
that certain restraints and regulations were necessary to safeguard the exercise of the freedom in the
interests of the whole international community." Id.

7. See Moore, supra note 3, pp. 987-1001; and Green H. Hackworth, Digest of International Law
(Washington, D.C.: U.S. Government Printing Office, 1941), v. 2, p. 659.

In the Trent incident in 1861, a United States warship removed Confederate commissioners from a British
mail steamer. When' they were later released to the British ambassador, Secretary of State Seward
explained that United States action was inconsistent with the principles espoused by the United States
in the impressment of seamen case. He quoted from an 1804 statement of James Monroe, then Secretary
of State in the Jefferson Administration, that leaving the decision about the future of an individual to
a naval officer rather than a tribunal would be contrary to "[rjeason, justice and humanity." Moore,
supra, note 3, v. 7, pp. 626-29. See also id., pp. 768-79.

8. Reproduced in Moore, supra note 3, v. 2. p. 998.

9. Id., at p. 999.

10. Act for the Abolition of Slave Trade, March 25, 1807, British Statutes, v. 21, 47 George HI, 1st
session, ch. 36.

11. Act to Prohibit the Importation of Slaves into any Port or Place Within the Jurisdiction of the
United States, March 2, 1807, U.S. Statutes at Large, v. 2, p. 426.

12. See The Amedie, 1 Action 240 (Lords Commissioners of Appeal, 1810), and The Fortuna, 1 Dodson
81 (High Court of Admiralty, Sir William Scott, 1811), digested in Moore, supra note 3, v. 2, pp. 914-
16. For a criticism of these cases, see William Beach Lawrence, Visitation and Search (Boston: Little, Brown

Sohn 81

and Company, 1858) p. 18 (an excellent brief for freedom of vessels from visit and search by foreign
warships).

13. Le Louis, supra note 4, pp. 240, 253-58. This decision was followed closely by Chief Justice Marshall
in The Antelope, 23 U.S. (10 Wheaton) 66, 118-23 (1825). His main conclusion was:

No principle of general law is more universally acknowledged, than the perfect equality of
nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully
impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone.
A right, then, which is vested in all, by the consent of all, can be divested only by consent; and
this trade, in which all have participated, must remain lawful to those who cannot be induced
to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations;
and this traffic remains lawful to those whose governments have not forbidden it. If it be consistent
with the law of nations, it cannot in itself be piracy. It can be made so only by statute; and the
obligation of the statute cannot transcend the legislative power of the state which may enact it.

If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say, in
this court, that the right of bringing in for adjudication, in time of peace even where the vessel
belongs to a nation which has prohibited the trade, cannot exist. The courts of no country execute
the penal laws of another; and the course of the American government, on the subject of visitation
and search, would decide any case in which that right had been exercised by an American cruiser,
on the vessel of a foreign nation, not violating our municipal laws, against the captors. It follows,
that a foreign vessel engaged in the African slave-trade, captured on the high seas, in time of peace,
by an American cruiser, and brought in for adjudication, would be restored. [Id., p. 120.]

14. Letter to British Minister at Washington, August 15, 1821, reproduced in Moore, supra note 3,
v. 2, p. 919. When John Quincy Adams was Ambassador to Great Britain, he was asked whether there
could be a worse evil than the slave trade. He replied tartly that it would be a much worse evil if the
United States Government should allow any vessel flying the Stars and Stripes to be stopped and examined
by a British cruiser, for that would be to make slaves of the whole American people. Quoted from W.
E. F. Ward, The Royal Navy and the Slavers: The Suppression of the Atlantic Slave Trade (New York: Schocken,
1970), p. 161. For a slightly different version of this statement, see Hugh G. Soulsby, The Right of Search
and the Slave Trade in Anglo-American Relations, 1814-1862 (Baltimore: Johns Hopkins Press, 1933), p. 18,
published in 51 Johns Hopkins University, Studies in Historical and Political Science (1933), No. 2, p.
18.

15. Letter from Mr. Adams to Mr. Canning, June 24, 1823, American State Papers, Foreign Relations, Second
Series, v. 5 (1858) pp. 330, 331-32. The text of the draft convention prepared by Mr. Adams may be found
in id., pp. 335-37.

16. Act to Punish the Crime of Piracy, May 15, 1820, U.S. Statutes at Large, v. 3, p. 600; Act for
a More Effectual Suppression of the African Slave Trade, March 31, 1824, British Statutes, v. 27, 5 George
IV, ch. 17, reprinted in American State Papers, supra note 15, v. 5, p. 342.

17. U.S. Congress, Resolution on Slave Trade, 1823, Annals of Congress, 17th Congress, 2d session, pp.
928, 1147-55.

18. British and Foreign State Papers, v. 12, 1824-25, p. 838, Articles V and X.

19. See Moore, supra note 3, v. 2, pp. 924-26.

20. This clause, which is the source of the modern clause authorizing the boarding of stateless vessels
(see infra, text preceding note 89), was suggested to the British Foreign Secretary, Lord Palmerston, by
Lord Minto, First Lord of Admiralty, who pointed out the practice of slave traders, when threatened
with capture, to dispense completely with flag and papers. As the jurisdiction of courts over slave trade
offenses was based either on the trader's British nationality or on a treaty with his flag state, the courts
have held that "[i]f a ship's nationality could not be established with any certainty, neither a mixed court
nor a national court had jurisdiction over it, and it could not be condemned." On the other hand, such
a ship could not claim the protection of any government, and a British law could empower British cruisers
to search and capture slave ships not entitled to the protection of any state, and to take them before British
admiralty courts. See Leslie M. Bethell, "Britain, Portugal and the Suppression of the Brazilian Slave
Trade: The Origins of Lord Palmerston 's Act of 1839," English Historical Review, v. 80 (1965), pp. 761,
777.

21. For the text of the act, see 2 & 3 Vict., ch. 73. For its discussion, see William Law Mathieson,
Great Britain and the Slave Trade, 1839-1865 (London, 1929: reprinted by Octagon Books: New York, 1967),
p. 23. Mathieson also points out that to escape the British warships, the slave ships progressed from the
French flag to the Spanish one, then to the Portuguese flag, and finally to the American one, "ending

82 Law of Naval Operations

naturally and inevitably with the only Power which had refused to concede the right of search." Id.,
p. 25.

The provision abolishing the jurisdiction of courts to award damages in cases of captures of vessels
which were not based on a treaty with the flag state was necessary as British courts considered such
captures illegal and imposed on the commanders of warships responsible for such captures the obligation
to pay heavy compensation for all damages and losses. See, e.g., the case of the Gaviao, Ward, supra note
14, pp. 84-86; and the cases cited in Soulsby, supra note 14, pp. 73-75. But see Buron v. Denman, id., pp.
186-87, discussed in Christopher Lloyd, The Navy and the Slave Trade (London: Frank Cass, 1949, reprinted
1968), pp. 97-99; Mathieson, supra, pp. 92-93 (citing Exchequer Reports, (1848), v. 2, p. 167) (decided for
Denman "because his proceedings, though contrary to the law of nations as laid down by Sir William
Scott in the [Le Louis] case, had been endorsed by the British Government").

22. See Bethell, supra note 20, pp. 778-79

23. See id., pp. 780-81. A similar crisis arose in 1845, when the 1826 Brazilian-British treaty for the
suppression of slave trade expired and Brazil notified the British Government that the British cruisers
had lost, therefore, their right to visit and search Brazilian ships. The British response was contained
in the so-called "Lord Aberdeen's Act," British Statutes, v. 35, 8-9 Vict., ch. 122, of August 8, 1845,
which relied on the provision of the 1826 treaty which condemned slave trade as piracy, and on that basis
applied to Brazil provisions similar to those enacted in 1839 against Portugal (supra, note 21), allowing
search and capture, and empowering British admiralty courts to condemn the vessels found guilty of slave
trade, etc. For the history of the 1845 Act, see Wilbur Devereux Jones, "The Origins and Passage of
Lord Aberdeen's Act," Hispanic American Historical Review, v. 42 (1962), pp. 502, 512-20.

24. Ward, supra note 14, p. 140.

25. Soulsby, supra note 14, pp. 58-59. See also id., pp. 56-57, for an earlier United States note on this
subject, and id., pp. 60-61, for an elaborate reply by Lord Palmerston. The dispute did not stop there;
for further correspondence on the subject, see id., pp. 61-72. The British Government has, however,
indemnified the United States for unjustified seizures, though sometimes after long delays, id., pp. 73-
76.

26. Treaty to settle and define the boundaries between the territories of the United States and the
possessions of Her Britannic Majesty in North America, for the final suppression of the African slave
trade, etc., August 9, 1842, Articles VIII and IX, 8 Statutes at Large 572, U.S. Treaty Series 119, 12 Bevans
82.

27. Concerning the drafting of the treaty, the acrimonious debate in Congress, and the difficulties
that arose as to its interpretation, see Soulsby, supra note 14, pp. 78-106. See also Moore, supra note 3, v.
2, pp. 930-41.

28. See Lloyd, supra note 21, p. 41.

29. Note on April 10, 1858, reprinted, in part, in Moore, supra note 3, v. 2, pp. 942-43.

30. See Mathieson, supra note 21, p. 156. See also Moore, supra note 3, v. 2, pp. 941-45; Soulsby, supra
note 14, pp. 139-66. Seizures of American flag vessels did not cease, however, and a new controversy
arose with respect to the right of a warship to compel a merchant vessel to display its flag, as some masters
of American vessels manifested a disinclination to hoist a flag when asked by a British warship. This problem
was finally solved by the issuance of instructions that captains in the merchant service should "display
their colors as promptly as possible, whenever they meet upon the ocean an armed cruiser of any nation."
See Soulsby, supra, pp. 166-72.

31. Treaty for the Suppression of African Slave Trade, April 7, 1862, as amended on February 17,
1863, U.S. Statutes at Large, v. 12, p. 1225; v. 13, p. 645; Malloy, supra note 3, v. 1, pp. 674, 687.

Annex B to the treaty (id., pp. 681-87) contained detailed Regulations for the Mixed Courts of Justice,
which provided, for instance, in Article IV that in case of a disagreement between the two judges "they
should draw by lot the name of one of the two arbitrators," who shall consult with the two judges, the
final decision being rendered by the majority of the three.

32. See W. E. B. DuBois, The Suppression of the African Slave-Trade to the United States of America, 1638-
1870 (1896, reprinted by Schoken Books: New York, 1969), pp. 287-88. This book contains also an excellent
"chronological conspectus of state, national, and international legislation," with a summary of legislative
history, and citation of sources for each item. Id., pp. 230-88.

According to Moore, supra note 3, v. 2, p. 467, no vessels were known to have been condemned in
the British-American Mixed Courts by 1868. See also Warren S. Howard, American Slavers and the Federal
Law, 1837-1862 (Berkeley and Los Angeles: University of California Press, 1963), pp. 63-64. For a report
from the United States members of the Mixed Court at Freetown, Sierra Leone, see the Message of the
President of the United States on African slave trade, July 2, 1864, 38th Congress, 1st session, Senate Exec.
Doc. No. 56, pp. 24-26 (containing recommendations, inter alia, for technical assistance in labor-saving
devices to tribes willing to abandon slavery). An analysis of the work of all the Mixed Commissions and

Sohn 83

Courts may be found in Leslie M. Bethell, "The Mixed Commissions for the Suppression of the
Transatlantic Slave Trade in the Nineteenth Century, "Journal of African History, v. 7 (1966), p. 79-93.

33. Convention for the Suppression of Slave Trade, June 3, 1870, Malloy, supra note 3, v. 1, p. 693.
Article 2 of the accompanying Instructions provided that any search authorized by the Convention "shall
be conducted with the courtesy and consideration which ought to be observed between allied and friendly
nations."

34. See Suzanne Miers, Britain and the Ending of the Slave Trade (London: Longman, 1975), p. 16, no. 40
and pp. 19-20, n. 61.

35. Id., pp. 211-21. See also Christopher Lloyd, supra note 21, pp. 187-274.

36. Miers, supra note 34, pp. 233-34, 238, 240.

37. Id., p. 241.

38. Id., pp. 241-42.

39. 27 Statutes at Large 886; U.S. Treaty Series 383; 1 Bevans 134. Chapter I dealt with measures
to be taken in the places of origin of the slave trade; chapter II with transportation of slaves by land;
chapter III on trade by sea is discussed in the preceding text; chapter IV prohibited the importation of
slaves by countries where domestic slavery still existed; chapter V provided for the establishment of an
international information office in Zanzibar (with a supplementary, more limited office in Brussels), which
was given the task to centralize all documents relating to the capture of vessels and their condemnation
or release, and all information that might lead to the discovery of persons engaged in slave trade.

40. See Miers, supra note 34, pp. 244-45.

41. Id., p. 293.

42. See, e.g., the Report of the Ad Hoc Committee on Slavery, U.N. Doc. E/1988 (1951), 13 ESCOR,
Annexes Ag. Item 21, p. 1, para. 8-19; Benjamin Whitaker, Slavery: Report to the U.N. Sub- Commission on
Prevention of Discrimination and Protection of Minorities, U.N. Doc E/CN.4/Sub. 2/1982/20/Rev. 1 (1984); U.N.
Publ. Sales No. E.84.XIV.I (1984), pp. 10-20, especially 18-20.

43. Convention on the Revision ... of the General Act ... of Brussels, St. Germain-en-Laye,
September 10, 1919, Articles 11 and 13, 49 Stat. 3027; U.S. Treaty Series 877; 2 Bevans 261. See also Miers,
supra note 34, pp. 309-14. In consequence of the 1919 Convention, the 1890 Brussels Act does not apply
any longer as between the United States, Belgium, France, Germany, Italy, Portugal and the United
Kingdom.

44. See United Nations, The Suppression of Slavery (Memorandum submitted by the Secretary-General
to the Ad Hoc Committee on Slavery of the Economic and Social Council), U.N. Doc. ST/SOA/4 (1951),
U.N. Publ. Sales No. 1951.XIV.2), pp. 12-14, 16-19, See also Joyce A. Gutteridge, "Supplementary Slavery
Convention, 1956," International Comparative Law Quarterly, v. 6, pp. 449, 454-56. For the text of the Anti-
Slavery Convention, Geneva, September 25, 1926, see 46 Stat. 2183, U.S. Treaty Series 778, 2 Bevans 607,
60 League of Nations Treaty Series 253. A protocol of December 7, 1953, transferred the functions of
the League of Nations under the 1926 Convention to the United Nations, 7 UST 479; TIAS No. 3532;
182 UNTS 57.

For the text of the Convention on the Suppression of International Trade in Arms and Ammunition
and in Implements of War, June 17, 1925, see Malloy, supra note 3, v. 4 (ed. by E. J. Trenwith, 1938),
p. 4903; Manley O. Hudson, ed., International Legislation, v. 3 (Washington, D.C.: Carnegie Endowment
for International Peace, 1931), p. 1634. The convention was ratified by the United States, but it did not
enter into force, as it did not seem to have received the necessary 14 ratifications. See Hackworth, supra
note 7, v. 2, p. 672. The relevant provisions of that convention were Articles 12, 20-24, and Annex II,
section II (Maritime Supervision).

45. See Gutteridge, supra note 44, p. 460. See, however, the exchange of notes accompanying the treaty
of friendship and mutual co-operation of February 10, 1934, between the British Government and the
Imam of Yemen, in which the Imam agreed to the prohibition of the African slave trade and commended
his governors to do their utmost to prevent it in both the country and the ports. 157 LNTS 63, 73.

46. U.N. Doc. E/1988 supra note 42, para. 27, and recommendation B.2. See also Gutteridge, supra
note 44, 460.

Slavery and slave trade have been considered by the United Nations as prohibited activities, as violations
of basic human rights. The Universal Declaration of Human Rights, adopted by the General Assembly
in 1948, provided that "[n]o one shall be held in slavery or servitude; slavery and slave trade shall be
prohibited in all these forms." General Assembly Resolution 217 A (III), December 10, 1948, Article 4,
3 GAOR, Part I, Resolutions, p. 71. An almost identical provision is contained in the International Covenant
on Civil and Political Rights, adopted by General Assembly Resolution 2200 A (XXI), December 16, 1966,
Article 8, 99 UNTS 171. (By December 31, 1987, this Covenant has been ratified or acceded to by 87
states; the United States has signed this document but has not ratified it.) For a summary of action taken
by the United Nations in the field of slavery, see Whitaker, supra note 42, pp. 27-30.

84 Law of Naval Operations

47. Letter from the Permanent Representative of the United Kingdom to the Secretary-General of
the United Nations, U.N. Doc. E/2540/Add.4 (1954); 17 ESCOR, Annexes, Ag. Item 15, p. 9, Annex
(Draft Convention), Article 2. For comments on that document, see U.N. Docs. E/AC.43/L.1 (1955) and
Adds. 1 and 2 (1956).

48. U.N. Doc. E/2824 (1956), 21 ESCOR, Annexes, Agenda Item 12, p. 1, paras. 97-139, and Annex
I (Draft Convention), Article 3; Gutteridge, supra note 44, p. 466.

49. Gutteridge, supra note 44, pp. 466-69; U.N. Secretariat, Memorandum on the Relation between
the Articles concerning the Law of the Sea Adopted by the International Law Commission and International
Agreements Dealing with the Suppression of the Slave Trade, U.N. Doc. A/CONF.13/7 (1957), paras.
17-25, reprinted in 1958 LOS Conference supra note 6, v. I, pp. 165-68.

50. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery, Geneva, September 7, 1956, Articles 3 and 4, 18 U.S.T 3201, T.I.A.S 6418,
266 U.N.T.S 3.

51. U.N. Doc. A/CN.4/17 (1950), p. 12.

52. U.N. Doc. A/CN.4/42 (1951), p. 22. Professor Francois relied on a statement by Justice Story that
a warship seizes a foreign vessel at its peril and, if unjustified, "must make full compensation. " The Marianna
Flora, supra note 4, p. 42 (1826).

53. See supra notes 42 and 46.

54. See supra text preceding note 40.

55. U.N. Doc. A/CN.4/42, supra note 52, pp. 23-29.

56. See supra note 46.

57. See Yearbook of the International Law Commission, 1951, v. 1, pp. 350-54, especially 123rd meeting,
paras. 91, 109-10, 124, 127-28, 132.

58. Report of the International Law Commission, 6 U.N. GAOR, Suppl. No. 9, U.N. Doc. A/1858
(1951) p. 16, reprinted in Yearbook, supra note 57, v. 2, pp. 139-40.

59. U.N. Doc. A/CN.4/51 (1952), p. 9.

60. Id., p. 11.

61. Francois, Sixth Report, A/CN.4/79 (1954), pp. 23-27; International Law Commission, Seventh
Session, Report, 10 GAOR, Suppl. No. 9, U.N. Doc. A/2934 (1955), pp. 6-8, reprinted in Yearbook, supra
note 57, 1955, v. 2, pp. 24-27. Francois acknowledged that the piracy articles were a condensation of a
more elaborate draft convention prepared by the Harvard Research in International Law in 1932, reprinted
in the American Journal of International Law, v. 26 (1932), Suppl., pp. 739-885. See Yearbook, supra, 1955, v.
l,p.39.

62. Yearbook, supra note 57, 1955, v. 1, p. 20.

63. Id., pp. 26-27.

64. Id., pp. 28-29, 31-33.

65. Id., pp. 29, 31.

66. Proposal by Mr. Edmonds (Commission member from the United States), id., p. 32. See also statement
by Mr. Garcia Amador, id., p. 29.

67. Id., pp. 33-34. See also id., p. 229.

68. See the Commission's 1955 report, 10 GAOR, Suppl. No. 9, U.N. Doc. A/2934 (1955), p. 8, reprinted
in Yearbook, supra note 57, 1955, v. 2, p. 27.

69. 1955 Report, supra note 68, Article 21, p. 8, reprinted in 1955 Yearbook, supra note 68, v. 2, pp.
26-27; Commission's 1956 Report, 11 GAOR, Suppl. No. 9, U.N. Doc. A/3159 (1956), Article 46, pp.
29-30, reprinted in Yearbook, supra note 57, 1956, v. 2, pp. 283-84. See also Francois Report, U.N. Doc.
A/CN.4/97 and Adds. 1 to 3 (1956), reprinted in Yearbook, supra note 57, 1956, v. 2, p. 20.

70. 1958 LOS Conference, supra note 6, v. IV, p. 21. The Tunisian delegate recalled a recent incident,
when the Yugoslav merchant vessel Slouenija was stopped on the high seas and escorted to Oman where
a part of its cargo was confiscated. See the Yugoslav complaint about this incident, id., pp. 8-9, where
the Yugoslav delegate also noted that "no state was entitled to arrogate to itself, without the consent
of the international community, any rights regarding the high seas except those laid down in rules adopted
by joint agreement."

71. Id., p. 31. For similar statements by the delegate of the Ukrainian S.S.R., see id., pp. 32 and 81-
82.

72. See id., p. 31. In support of such deletion, another delegate of the U.A.R. pointed out that proposals
similar to the one suggested in 1958 had been heavily defeated at the three recent conferences dealing
with slave trade which were mentioned by Mr. El Erian. Id., p. 80.

73. Id., pp. 82-83.

74. Id., p. 90.

75. Id., p. 83.

Sohn 85

76. 1958 LOS Conference, supra note 6, v. 2 (Plenary Meetings), U.N. Doc. A/CONF.13/38 (1958),
U.N. Publ. No. 58.V.4, Vol. 2, p. 22.

77. Convention on the High Seas, April 29, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82.

78. United Nations Convention on the Law of the Sea, December 10, 1982, reprinted in United Nations,
The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea, U.N. Publ. Sales No.
E.83.V.5. (Hereafter cited as the 1982 LOS Convention.)

79. See the discussion on this point in the Second Committee of the 1958 LOS Conference, supra note
6, v. 4, pp. 80, 90, 109, 149 (rejection of the Bulgarian proposal which would have granted immunity
also to government vessels used for commercial purposes).

80. Convention on the High Seas, supra note 77, Article 8, paragraph 2, and Article 22, paragraph
1. Only Article 21, relating to piracy, allows seizure also by "military aircraft" and "other ships or aircraft
on government service authorized to that effect." With respect to the applicability of that provision also
to Article 22, see the rather ambiguous statements by the United Kingdom in the Second Committee of
the First LOS Conference, summarized in 1958 LOS Conference, supra note 6, v. 4, pp. 108-9, and in the
Plenary, id., v. 2, p. 22.

81. See 1982 LOS Convention, supra note 78, Article 110, paras. 4 and 5, which parallel Article 107
relating to ships and aircraft which were entitled to seize a foreign ship on account of piracy. On the
one hand, it broadens its application to boarding of ships suspected of other illegal activities or flag misuse,
and, on the other hand, it narrows it from seizure to boarding only.

82. For U.S. acceptance of the navigation provisions of the 1982 Convention, see the Statement of
the President on United States Ocean Policy, Weekly Compilation of Presidential Documents, v. 19, No. 10,
pp. 383-85 (1983), reprinted in International Legal Materials, v. 22 (1983), p. 464.

83. 1958 High Seas Convention, supra note 77, Article 22; 1982 LOS Convention, supra note 78, Article
110, paragraph 1.

84. Id., Article 110, subparagraphs (l)(c) and (d).

85. Id., Article 109.

86. European Agreement for the Prevention of Broadcasts Transmitted from Stations Outside of
National Territories, January 22, 1965, 634 U.N.T.S. 239. For the proposal by a group of European countries
to add a provision relating to unauthorized broadcasting from the high seas, see U.N. Doc. A/CONF.62/
C.2/L.54 (1954), reprinted in Third United Nations Conference on the Law of the Sea, Official Records
(hereafter cited as the 1982 LOS Conference), v. 3, pp. 229-30, Article 21 ter. See also id., v. 2, p. 236,
paragraph 59, and p. 292, paragraph 2; id., v. 3, p. 134 (main trends, Provision 177); id., v. 4, p. 166 (Informal
Single Negotiating Text, Article 95 and Article 96, paragraph lc).

The delegation of Israel made a proposal to delete Article 109, paragraph 3, relating to the right of
various states to arrest and punish persons engaged in unauthorized broadcasting, to delete also Article
110, paragraph 1(c) relating to boarding of ships engaged in that activity, and to allow instead the coastal
state to exercise control over such broadcasting in the 24-mile contiguous zone. See id., v. 15, p. 20,
paragraph 34; and Doc. C.2/Informal Meeting/38 (1978), reprinted in Renate Platzoder, Third United Nations
Conference on the Law of the Sea: Documents (Dobbs Ferry, N.Y.: Oceana Publications, 1984), v. 5, p. 44.
No action was taken on this proposal as by that time the text prepared by the Second Committee became
practically immutable.

87. See the text preceding footnote 20 supra.

88. See 1958 LOS Conference, supra note 6, pp. 11-12 (para. 8).

89. A United States court in United States v. Cortes, 588 F.2d 106, 110 (5th Cir. 1979), quotes Oppenheim's
statement that it is "[i]n the interest of order on the open sea" that a stateless vessel enjoy no protection.
L. Oppenheim, International Law (7th ed. H. Lauterpacht, London: Longmans, Green & Co., 1948), v. 1,
p. 546. According to another author, statelessness "robs a ship of privileges, and deprives it of a State
to espouse its cause when it suffers injustice at the hands of another State." Robert Reinow, Test of the
Nationality of a Merchant Vessel (New York: Columbia University Press, 1937), p. 13.

In Nairn Mohan v. Attorney-General of Palestine, [1948] A.C. 351, 369-70, the Judicial Committee of the
Privy Council stated that "[n]o question of comity or breach of international law can arise if there is
no State under whose flag the vessel sails. " It added that, having no flag, a vessel cannot claim the protection
of any State, nor can "any State claim that any principle of international law was broken by her seizure."

A stateless vessel can be stopped by any warship, because, as the United States courts view the situation,
stateless vessels do not have the protection provided by a flag state. United States v. Dominguez, 604 F.2d
304, 308 (4th Cir. 1979), cert, denied, 444 U.S. 1014 (1980). "International law shelters only members
of the international community of nations from unlawful boarding and searches on the high seas." United
States v. Cortes, supra at 110.

It has to be remembered, however, that, as Mr. Francois has pointed out, a stateless vessel "should
not be treated as a pirate unless it actually commits acts of piracy." U.N. Doc. A/CN.4/17, supra notes
51, pp. 6-7.

86 Law of Naval Operations

90. The Congress of the United States has denied assistance to countries which engage in "a consistent
pattern of gross violations of internationally recognized human rights," including a "flagrant denial of
the right to life, liberty and the security of person." Foreign Assistance Act of 1961, as amended, 22 U.S.C.
2151n. Clearly, any United States legislation should be interpreted also in the spirit of these
pronouncements, thus avoiding any gross violation of internationally recognized human rights, both
substantive and procedural. See, e.g., Judge Faye, dissenting in United States v. Warren, 578 F.2d 1058, 1081-
82 n. 2 (5th Cir. 1978), cert, denied, 446 U.S. 956 (1980) ("I see no reason why a possible drug importer
on the high seas should have fewer rights when confronted by the Coast Guard than should a person
on land near the Mexican border when confronted by an officer of the Border Patrol").

It may be also noted that there is a strong connection between human rights and international security.
As President Reagan stated at Helsinki on May 27, 1988, "[t]here is no true international security without
respect for human rights," and "[sjecurity and human rights must be advanced together, or cannot truly
be secured at all." Weekly Compilation of Presidential Documents, v. 24 (1988), p. 677, at 678, 679.

It seems however, that some United States courts do not recognize any individual rights in the drug
interdiction cases beyond those guaranteed by the Fourth Amendment. Even this fundamental constitutional
guarantee is diluted on the high seas. United States v. Williams, 617 F.2d 1063, 1082-84, 1089-90 (5th Cir.
1980). But see the concurring opinion by Judge Roney, in which five other judges joined, Id., at 1093
("Williams, as a United States citizen on a foreign ship, just as on foreign soil, does have constitutional
rights against an unreasonable search and seizure by United States Government authorities").

For a more detailed discussion of the relationship between the arrest of foreign nationals on foreign
ships and the international law of human rights, see Louis B. Sohn, "International Law of the Sea and
Human Rights Issues," in Thomas A. Clingan, Jr., ed., The Law of the Sea: What Lies Ahead? (Honolulu,
Hi.: University of Hawaii, 1988), pp. 51-71.

91. See, for instance, the treaty of friendship, commerce and consular rights between the United States
and Honduras, December 7, 1927, which provides in Article I that the "nationals of each High Contracting
Party shall enjoy freedom of access to courts of justice of the other . . . for the defense of their rights,"
and "shall receive within the territories of the other . . . the most constant protection and security for
their persons and property, and shall enjoy in this respect that degree of protection that is required by
international law." 45 Statutes at Large 2618; Treaty Series No. 764, 8 Bevans 905; 87 LNTS 421. Similar
provisions may be found also in the treaty of friendship, commerce and navigation between the United
States and Liberia, August 8, 1938. 54 Statutes at Large 1739; Treaty Series No. 956; 9 Bevans 595; 201
LNTS 163. According to the treaty of friendship, commerce and navigation between the United States
and Japan, April 2, 1953, "[nationals of either Party within the territories of the other Party shall be
free from unlawful molestations of every kind, and shall receive the most constant protection and security,
in no case less than required by international law," and "shall be accorded national treatment and most-
favored-nation treatment with respect to access to the courts of justice and to administrative tribunals
and agencies within the territories of the other Party, in all degrees of jurisdiction, both in pursuit and
in defense of their rights." Articles 2 and 4, 4 UST 2063, TIAS No. 2863, 206 UNTS 143.

92. See Convention relating to the Status of Stateless Persons, September 28, 1954, 360 U.N.T.S. 130
(in force with respect to more than thirty states, but not ratified by the United States). The Convention
contains generally accepted standards on the subject. After all, stateless persons retain their status as human
beings and should be treated as such. A state should accord such persons treatment at least as favorable
as that accorded to its own nationals or to aliens generally; in the latter case the requirement of reciprocity
should be waived. See id., Articles 3, 4, 7, 16. There is even a special provision for stateless seamen. Id.,
Article 11.

93. High Seas Convention, supra, note 77, Article 6, paragraph 2, 1982 LOS Convention, supra, note
78, Article 92, paragraph 2.

94. The persons on board a ship assimilated to a stateless ship should be treated at least as well as
stateless persons (supra, note 92), or in accordance with their national status (supra, note 91).

95. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, 15 UST 1606, TIAS
No. 5639, 516 UNTS 205.

96. Yearbook of the International Law Commission, 1956, v. 2, p. 59; id., v. 1, p. 207.

97. Id.

98. 1956 Report of the Commission, supra note 69, p. 21; Yearbook of the Commission, 1956, v. 2,
p. 275.

99. U.N. Doc. A/CONF.13/C.1/L.53 (1958); reprinted in 1958 LOS Conference, supra note 6, v. Ill,
(First Committee), p. 226.

100. Id., p. 117, para. 43.

101. Id., p. 116, para. 36. This issue was also raised by the representative of Norway who pointed out
that if such a rule is going to be introduced, "it would not be natural to limit the new possibilities of
action against ships involved in the traffic [in narcotic drugs] to foreign ships in the territorial sea." Id.,

Sohn 87

p. 116, para. 40. The representative of Turkey tried again to broaden his proposal "to empower the coastal
State to exercise its criminal jurisdiction even if the offense had been committed outside the territorial
sea," but the proposal was not pressed to a vote, when the Drafting Committee opposed it. Id., p. 202,
paras. 46-49.

102. Id., p. 116, paras. 34, 39.

103. II, paras. 40-41.

104. This change was suggested early in the Conference, and was incorporated promptly in the
negotiating text, with a minor amendment. See 1982 LOS Conference, Official Records, v. 3, p. 114; Id.,
v. 4, p. 156; Id., v. 5, p. 157.

105. Id., v. 2, p. 237, para. 69.

106. Id., v. 3, p. 133, Provision 174.

107. Id., v. 4, p. 166.

108. See Platzoder, supra note 86, v. 5, pp. 66-70. The suggestion relating to an addition in Article 110
appeared earlier in 1975, in the anonymous "blue papers" of the Second Committee, suggesting changes
in the "main trends papers." See Platzoder, supra, v. 4, p. 137 (Provision 174B, para 1(c)) and 145 (same
provision, with a note that consultations with respect to this matter have not been completed).

109. This procedure was suggested by Sir William Scott in 1817 (see supra, text preceding note 13),
and was followed by Great Britain throughout the nineteenth century. See, however, the objections to
this approach by the United States, supra, text preceding notes 14 and 16.

110. See Convention Relating to the Suppression of the Abuse of Opium and other Drugs, January 23,
1912, 38 Statutes at Large 1912, Treaty Series No. 612, 1 Bevans 855; Agreement Concerning the Suppression
of the Manufacture of, International Trade in, and Use of, Prepared Opium, February 11, 1925, 51 League
of Nations Treaty Series, p. 337, Hudson, International Legislation, supra note 44, v. 3 (1931), p. 1580; Convention
on Traffic in Opium and Drugs, February 19, 1925, 81 League of Nations Treaty Series, p. 317, Hudson,
supra p. 1589; Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs,
July 13, 1931, 48 Statutes at Large 1543, U.S. Treaty Series No. 863, 139 League of Nations Treaty Series,
p. 301; Agreement Concerning the Suppression of Opium Smoking, November 27, 1931, 177 League of
Nations Treaty Series, p. 373, Hudson, supra, v. 5 (1936), p. 1149; Convention for the Suppression of the
Illicit Traffic in Dangerous Drugs, June 26, 1936, 12 U.N.T.S. 208, Hudson, supra v. 7 (1941), p. 359; Protocol
of December 11 , 1946, amending the Agreements, Conventions, and Protocols on Narcotic Drugs of January
23, 1912, February 11, 1925, February 19, 1925, July 13, 1931, November 27, 1931, June 26, 1936, 61 Statutes
at Large 2230, T.I.A.S. No. 1671, 4 Bevans 267, 12 U.N.T.S. 179; Protocol of November 19, 1948, Bringing
under International Control Drugs outside the Scope of the Convention of July 13, 1931, as amended,
2 U.S.T. 1629, T.I.A.S. No. 2308, 44 U.N.T.S. 277; Protocol for Limiting and Regulating the Cultivation
of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium, June
23, 1953, 14 U.S.T. 10, T.I.A.S. No. 5273, 456 U.N.T.S. 3.

111. Single Convention on Narcotic Drugs, March 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520
U.N.T.S. 204. For the amended text of the Convention, see 976 U.N.T.S. 105.

112. Protocol of March 25, 1972, Amending the Single Convention on Narcotic Drugs, 26 U.S.T. 1439,
T.I.A.S. No. 8118, 976 U.S.T.S. 3.

113. Single Convention on Narcotic Drugs, supra note 111, Article 35.

114. Id., Article 36.

115. Protocol Amending the Single Convention, supra note 112, Article 14.

116. See Convention on Psychotropic Substances, February 21, 1971, 32 U.S.T. 543, 564-66, T.I.A.S.
No. 9725, 1019 U.N.T.S. 175, 191-92.

117. See, e.g., the 1972 statement by John E. Ingersoll, Director of the Bureau of Narcotics and Dangerous
Drugs, U.S. Department of Commerce, who pointed out at a Congressional hearing that the international
narcotics traffic "is a production and merchandising system based on the slavish demands of addicted
individuals," whose demand is constant and whose purchasing power, "whether earned through wages
or in crime, is considerable." Protocol Amending the Single Convention on Narcotic Drugs: Hearing
before the Senate Committee on Foreign Relations, 92nd Congress, 2nd Session, p. 2 (1972).

118. U.S. Note to the British Embassy, November 21, 1980, published in Department of State, Digest
of United States Practice in International Law, 1980, pp. 484-85. (Cited hereafter as U.S. Digest). For a list
of cases upholding such arrangement with foreign governments, see id., p. 486; see also the memorandum
from the Office of the Legal Counsel of the Department of Justice to the Department of State, February
19, 1980, id., pp. 475-84.

119. Agreement to facilitate the interdiction by the United States of vessels of the United Kingdom
suspected of trafficking in drugs, November 13, 1981, TI AS 10296. It was an exchange of notes, not requiring
advice and consent of the Senate, which was probably based on the general authorization by Congress
permitting the President "to conclude agreements with other countries to facilitate control of
the . . . transportation and distribution of . . . controlled substances." 22 U.S.C. 2291(a)(2) (enacted by

88 Law of Naval Operations

the Foreign Assistance Act of 1971, sec. 109). See also the Justice Department memorandum, supra note
118, pp. 476-77, which relies on this provision and on the general international co-operation article (Article
35) of the 1961 Single Convention on Narcotic Drugs, supra notes 111 and 113.

120. Convention for the Prevention of Smuggling of Intoxicating Liquors, January 23, 1924. 43 Statutes
at Large 1761, U.S. Treaty Series No. 685, 12 Bevans 414, 27 League of Nations Treaty Series 182.

121. See Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States (Boston:
Little, Brown and Company, 1945), v. 2, pp. 1179-80.

122. According to Morris Busby, Office of Ocean Affairs, U.S. Department of State, the United States
should not take the initiative to define the means of boarding foreign vessels on the high seas, but should
continue to request permission on a case-by-case basis. Coast Guard Drug Law Enforcement: Hearings
before the Subcommittee on Coast Guard and Navigation of the House Committee on Merchant Marine
and Fisheries, 96th Congress, 1st session, p. 55 (1979).

123. The United States courts have held that the failure of the flag State to object is equivalent to
consenting to the seizure after the fact. The Court in United States v. Hensel, 699 F.2d 18, 28 (1st Cir.),
cert, denied, 461 U.S. 958 (1983), decided that "[g]iven the need for speedy action, the hostility shown by
all nations including Honduras to the international drug trade, and the fact that Honduras apparently
did not protest the seizure, Honduras may arguably be said to have ratified the search." The Court cited
United States v. Dominquez, 604 F.2d 304, 308 (4th Cir. 1979), cert, denied 444 U.S. 1014 (1980), for support
of this statement; in Dominguez, the Bahamas government consented to the search of a ship on the basis
of a registration number that proved to be wrong, but did not protest when a vessel with a different
number was searched instead.

124. See supra texts preceding and following note 78.

125. U.N. Doc. E/CN.7/1983/2/Add. 1 (1982), p. 3, para. 4(a).

126. Id., p. 12, paras. 39-40.

127. Commission on Narcotic Drugs, Report on the 30th Session, ESCOR, 1983, Suppl. No. 5 (E/1983/
15), pp. 3, 20 (para. 77).

128. U.N. Doc. E/RES/1983/4. The Economic and Social Council, inter alia, noted that "illicit drug
traffickers also engage in fraudulent practices with respect to the flag State registration of these vessels,"
and that "registry information must be readily accessible to and verifiable by law enforcement personnel
aboard the vessel and within the claimed flag State." It requested Governments "to explore methods of
strengthening international co-operation in combating illicit maritime drug trafficking, and to respond
promptly to enquiries made for law enforcement purposes by other States regarding the registry of vessels. "
Id.

129. Law of the Sea: Report of the Secretary-General, U.N. Doc. A/39/647 (1984), p. 15, para. 49.
When a later draft included the United States-United Kingdom formula applying the "illicit traffic

by sea" provision to the area "beyond the external limits of the territorial sea," one representative objected
to it, as implying that "third States had been attributed certain rights in the area between 12 and 200
miles (Exclusive Economic Zone) not contemplated in the United Nations Convention on the Law of
the Sea." He expressed preference for an earlier formula applying to ships "on the high seas as defined
in Part VII" of that Convention. Commission on Narcotic Drugs, Report of the Tenth Special Session,
ESOR, 1988, Suppl. No. 3 (E/1988/13), p. 24 para. 28.

130. See supra note 119 and the text that follows it.

131. U.N. Docs. A/39/407 (1984) and A/C.3/39/8 (1984).

132. General Assembly Resolution 39/141, December 14, 1984, 39 GAOR, Suppl. No. 51 (A/39/51),
p. 229. For the report of the Third Committee of the General Assembly on the preparation of this resolution,
see U.N. Doc. A/39/710 (1984), paras. 7-9, 16.

133. 39 GAOR, Suppl. No. 51, supra note 132, pp. 229-31, Annex, Articles 2, 6 and 9.

134. General Assembly Resolution 39/142, December 14, 1984, id., p. 231. Even more strongly, in a
later resolution on the preparation of the draft convention against illicit traffic in narcotic drugs and
psychotropic substances, the General Assembly condemned "unequivocally drug trafficking in all its illicit
forms — production, processing, marketing and consumption — as a criminal activity," and requested "all
States to pledge their political will in a concerted and universal struggle to achieve its complete and final
elimination." General Assembly Resolution 41/127, December 4, 1986, 41 GAOR, Suppl. No. 53 (A/41/
53), pp. 184, 185, para. 1.

135. U.N. Doc. A/C.3/39/SR.42 (1984), para. 37. According to an Australian delegate, drug trafficking
was not of the same nature as the crimes against humanity listed by the International Law Commission
in its draft Code of Offenses against the Peace and Security of Mankind; he considered that "[cjaution
was necessary before a new offence was branded as a crime against humanity without proper consideration
by competent legal bodies." U.N. Doc. A/C.3/39/SR.44 (1984), para. 6. A similar view was expressed
by the delegate of Nigeria, who cited in support the latest report of the International Law Commission

Sohn 89

(U.N. Doc. A/39/10 (1984) para. 45), which did not include drug trafficking among the crimes against
humanity. U.N. Doc. A/C.3/39/SR.53 (1984), para. 4.

136. U.N. Doc. A/C.3/39/SR.43) (1984), para. 23.

137. Commission on Narcotic Drugs, Report on the 31st Session, ESCOR, 1985, Suppl. No. 3 (E/1985/
23), pp. 14-16.

138. Comments and Proposals Received from Governments Concerning a Draft Convention on Illicit
Traffic in Narcotic Drugs and Psychotropic Substances: Report of the Secretary-General, U.N. Doc. E/
CN.7/1986/2 (1985), pp. 21-22.

139. Commission on Narcotic Drugs, Report on the Ninth Special Session, ESCOR, 1986, Suppl. No.
3 (E/1986/23), p. 8.

140. Id., pp. 9, 26 (para. 3(j)).

141. Preparation of a Draft Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances: Report of the Secretary-General, U.N. Doc. E/CN.7/1987/2 (June 17, 1986) (hereafter cited
as the 1986 Draft). The text of this draft, together with the United States comments on it, was reprinted
in United States Senate Caucus on International Narcotics Control, The U.N. Draft Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances: A Report on the Status of the Draft Convention, the
U.S. Negotiating Position, and Issues for the Senate, 100th Congress, 1st Session, Committee Print, Senate Print
No. 100-64 (1987) (hereafter cited as the 1987 Senate Report), pp. 22-38.

142. U.N. Secretariat, Compilation of Comments and/or Textual Changes Submitted by Governments
Concerning the Preliminary Draft Convention, U.N. Doc. E/CN.7/1987/2/ Add. 1 and Add. 2 (1987).

143. For the full text of U.S. comments (October 1986), see 1987 Senate Report, supra note 141, pp.
39-62. That report contains also an article-by-article comparison of U.S. position with the 1986 preliminary
draft, id., pp. 13-21.

144. Commission on Narcotic Drugs, Report on the 32nd Session, ESCOR, 1987, Suppl. No. 4 (E/1987/
17), pp. 14-25.

145. Id., p. 19, para. 42.

146. Id., pp. 1-2.

147. U.N. Doc. E/RES/1987/27 (1987).

148. U.N. Division of Narcotic Drugs, Working Document on the Draft Convention, U.N. Doc. DND/
DCIT/WP.l (April 6, 1987) (hereafter cited as 1987 Working Document), reprinted in Senate Report,
supra note 141, pp. 63-79.

149. Interim Report of the Open-Ended Intergovernmental Expert Group Meeting on the Preparation
of a Draft Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, U.N. Doc.
DND/DCIT/WP.12 (July 22, 1987), reprinted in Senate Report, supra note 141, pp. 80-89.

150. Report of the International Conference on Drug Abuse and Illicit Trafficking, U.N. Doc. A/
CONF.133/12, U.N. Publ. Sales No. E.87.I.18 (1987), pp. 70-71, paras. 327-31.

151. Id., p. 70, para. 326.

152. See supra, text accompanying notes 133, 136 and 138.

153. See supra note 135 and accompanying text, and text accompanying notes 137 and 139.

154. Supra notes 141 and 148.

155. Supra note 141.

156. See, e.g., American Law Institute, Restatement of the Law Third, The Foreign Relations Law of the
United States, v. 2, p. 57, 514, Comment b and p. 62. Reporters' Note 2; International Law Association,
"The Freedom of the High Seas and the Exclusive Economic Zone: The Problem of Interactions," Report
of the 61st Conference (1984), pp. 183-200; Horace B. Robertson, Jr., "Navigation in the Exclusive
Economic Zone," Virginia Journal of International Law, v. 24 (1984), p. 865, at 870-80.

157. See supra note 129 and accompanying text.

158. Supra note 141.

159. Supra note 78.

160. 1987 Senate Report, supra note 141, p. 39, at 60-62

161. Id., p. 80, at 88. According to the 1987 Report of the Secretary General on the Law of the Sea
(U.N. Doc A/42/688, pp. 13-14, para. 44), the Expert Group considered also a version of the provision
referring to the area "beyond the external limits of the territorial sea without prejudice to any rights
enjoyed by the coastal State seaward of those limits," but objections were made to this formula on the
ground that it was incompatible with the Convention on the Law of the Sea.

162. For text, see International Maritime Organization, Convention for the Suppression of Unlawful
Acts Against the Safety of Maritime Navigation, Rome, March 10, 1988, Article 4 ("The Convention
applies if the ship is navigating or is scheduled to navigate into, through or from waters beyond the outer
limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States"),
IMO Doc. SUA/CONF/15 (1988), reprinted in International Legal Materials, v. 27 (1988), p. 672, at 675.

90 Law of Naval Operations

163. For a summary of the discussion in the Commission, see Commission on Narcotic Drugs, Report
on the Tenth Special Session, ESCOR, 1988, Suppl. No. 3 (E/1988/13), p. 29, paras. 59-61.

164. Id., p. 30, para. 64.

165. Id., para. 65.

166. Id., p. 29, para. 63.

167. Id., p. 41, para. 139. The representative cited in this connection paragraphs 4 and 7 of the principles
and objectives of the Inter- American Program of Action Against the Illicit Use and Production of Narcotic
Drugs and Psychotropic Substances and Traffic Therein, adopted by the Inter-American Specialized
Conference on Traffic in Narcotic Drugs, Rio de Janeiro, April 1986.

168. Report, supra note 163, p. 30, para. 66.

169. Id., para. 67.

170. Id., Draft resolution A.I, paras. 7-9.

171. U.N. Doc. E/RES/1988/8 (1988).

172. U.N. Press Release SOC/NAR/473 (1988).

173. For text of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, see U.N. Doc. E/CONF. 82/15 (1988), reprinted in International Legal Materials,
v. 28 (1989), p. 497.

174. For the text, as revised by the Review Group, see U.N. Doc. E/CONF.82/3 (1988).

175. These two texts are reproduced in the text following note 155, supra.

176. In addition to the 1981 agreement with the United Kingdom cited in n. 119, supra, the United States
has concluded an agreement with the Bahamas in February 1989 (not yet published in TIAS).

177. See LOS Convention, Articles 29 (definition of warship), 107 (piracy), 110(5) (right of visit), 111(5)
(hot pursuit), and 224 (protection of marine environment).

178. During the July 1987 meeting of the Intergovernmental Group of Experts, it was emphasized that
"any action against ships by States other than the flag States in cases where the evidence of the illicit
traffic was not clear and manifest could lead to abuses and might undermine important legal principles."
1987 Report of the Secretary General on the Law of the Sea, U.N. Doc. A/42/688 (1987), p. 13, para.
43.

179. Supra note 120. For a list of these treaties, see Hackworth, supra note 7, v. 1, p. 679.

180. Sw/minote 119.

181. According to the 1954 Statement of Policy of the United States on the Freedom of the Seas (Foreign
Relations of the United States, 1952-1954, v. 1, p. 1721):

It is a traditional policy of the United States to support the principle of freedom of the seas. Such
freedom is essential to its national interests. The effective defense of its security, the maintenance
of its pre-eminence in commercial shipping and air transport, and the prosperity of its fishing
industry would all be hampered by any serious compromise of the principle of freedom of the
seas.

Alexander 91

Chapter IV
International Straits

by
Lewis M. Alexander*

An international strait, as noted in paragraph 2.3.3 of The Commander's
Handbook on the Law of Naval Operations (NWP 9)1 is a strait used for
international navigation 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 definition comes from articles 37 and 38 of the 1982 United Nations
Convention on the Law of the Sea,2 and includes both straits which at some
point are overlapped by the territorial seas of the bordering State or States,3
and those straits through which there is a continuous corridor of high seas
or an exclusive economic zone (EEZ).4 A strait is a natural waterway, "a
contraction of the sea between two territories, being of limited width."5
There are in the world over two hundred waterways which would appear
to satisfy the requirements of being an "international strait."6

1. The Transit Passage Regime

According to the LOS Convention, a regime of transit passage prevails with
regard both to ships and aircraft through an international strait that is
overlapped at least at its narrowest part by bordering territorial seas.7 Transit
passage, "which shall not be impeded,"8 means "the exercise ... of the
freedom of navigation and overflight solely for the purpose of continuous
and expeditious transit of the strait."9 There are a few carefully-phrased
exceptions in the Convention to the transit passage provisions, as noted below.
Passage of ships and aircraft is to take place in their "normal modes" of
transit,10 a term which the United States interprets as meaning that submarines
may transit submerged, providing that depths in the strait are sufficient to
permit such operations. This interpretation, which is reflected in paragraph
2.3.3.1 of NWP 9, is consistent with the U.S. negotiating position throughout
the Third United Nations Conference on the Law of the Sea (UNCLOS III).11

Warships and Military Aircraft in Transit Passage. Ships and aircraft,
while exercising the right of passage, "must proceed without delay through
or over the strait."12 The concept of transit passage, however, does not
preclude passage through the strait "for the purpose of entering, leaving or

92 Law of Naval Operations

returning from a State bordering the strait, subject to the conditions of entry
to that State."13

While in transit passage, ships and aircraft must avoid "any threat or use
of force against the sovereignty, territorial integrity or political independence
of the State bordering the strait,"14 and "refrain from any activities other
than those incident to their normal modes of continuous and expeditious
transit, unless rendered necessary by force majeure or by distress."15 It is United
States policy that warships, operating in their normal mode through
international straits overlapped by territorial seas, may undergo formation
steaming, and launch and recover aircraft.16 To the extent that such activities
are incidental to normal navigational practices and do not otherwise constitute
a threat directed against the bordering states, this interpretation appears
consistent with the transit passage regime.

Vessels in transit must comply with "generally accepted international
regulations, procedures and practices" for (1) safety at sea, and (2) the
prevention, reduction and control of pollution from ships.17 What these
provisions intend is that transit-passage vessels should comply with the
international conventions adopted by the International Maritime
Organization (IMO) over the past several decades, and which now are in
force.18 Although this restriction is set forth generally in paragraph 2.1.2 of
NWP 9 it would be helpful to operational commanders (to whom the Handbook
is directed) if it were explicitly included in paragraph 2.3.3.1, the paragraph
dealing with transit passage.

With regard to safety at sea, there are two basic IMO conventions. One
is the 1972 Convention on International Regulations for Preventing Collisions
at Sea.19 The Convention regulates the behavior of ships at sea in respect to
other vessels in order to prevent collisions, and it deals with such matters
as lights, sound signals and conduct under conditions of restricted visibility.
There are also provisions for the establishment of ships' routing systems.
Under IMO's direction there is now an established world-wide network of
traffic separation schemes, deep water routes, and areas to be avoided.

A second convention is the 1974 Safety of Life at Sea Convention
(SOLAS).20 It is concerned with vessel construction issues, equipment, safety
of navigation, and the carriage of dangerous goods.

The principal IMO convention relating to vessel-source pollution is the
1973 Convention for the Prevention of Pollution from Ships (MARPOL), as
amended in 1978. 21 A State bordering a strait may adopt rules and regulations
concerning vessel-source pollution, giving effect to the provisions of
MARPOL. It should be noted, however, that warships, naval auxiliaries, and
other vessels owned and operated by a State and used at the time being only
on government non-commercial service, enjoy sovereign immunity and are
exempt from the provisions of the LOS Convention regarding the protection
and preservation of the marine environment.22 But if a ship, entitled to

Alexander 93

sovereign immunity, acts in a manner which is contrary to the bordering
State's laws and regulations, the flag State of the ship "shall bear international
responsibility for any loss or damage which results to States bordering
straits."23

During transit passage, foreign warships may not carry out research or
survey activities without the prior authorization of the State bordering the
strait.24 They must also respect designated sea lanes and traffic separation
schemes, if these were established in conformity with generally accepted
international regulations.25 The latter of these restrictions is in paragraph
2.3.3.1 of NWP 9, but curiously the former is not.

Military aircraft in transit passage shall normally comply with the Rules
of the Air established by the International Civil Aviation Organization
(ICAO), "and will at all times operate with due regard for the safety of
navigation. "26 They also shall "at all times monitor the radio frequency
assigned by the competent internationally designated air traffic control
authority or the appropriate international distress radio frequency.,,27

NWP 9 articulates the view that the transit passage regime of the 1982
Convention remains viable in time of conflict. This approach to the Law of
Neutrality posits that neutral nations cannot suspend, hamper or otherwise
impede the right of transit passage of surface ships, submarines and aircraft
of belligerent States through international straits. Under this view, belligerent
forces in transit must proceed without delay, and must refrain from the threat
or use of force against the neutral nation, or from acts of hostility or other
activities not incident to their transit. The forces may not use international
straits as a place of sanctuary or a base of operations, and warships may not
exercise the belligerent right of visit and search in such waters. When in
transit, however, belligerent forces may take such defensive measures as are
consistent with their security, including the launching and recovery of
aircraft, screen formation steaming, and acoustic and electronic surveillance.28
This application of the transit passage regime to the traditional law of
neutrality seeks to preserve the balance between the rights of neutral States
to preserve the inviolability of their territorial seas and the rights of
belligerents to conduct armed conflict at sea. To what extent this approach
will be embraced by other States remains to be seen,29 although recent practice
in the Straits of Hormuz would seem to indicate acceptance of this position.

With respect to belligerent military aircraft, NWP 9 provides that the
airspace above international straits remains open at all times to transit passage.
Such passage must be continuous and expeditious, and must be undertaken
in the normal mode of flight for the respective type of aircraft. The aircraft
must refrain from any acts of hostility, but may engage in activities that are
consistent with their security and the security of accompanying surface and
subsurface forces.30 Again, state practice in the Straits of Hormuz during the
Iran-Iraq conflict seems to support this interpretation.

94 Law of Naval Operations

Rights and Duties of the Bordering State. The State bordering an
international strait may, as noted earlier, "designate sea lanes and prescribe
traffic separation schemes . . . where necessary to promote the safe passage
of ships."31 These sea lanes and traffic separation schemes must conform to
standards set by IMO. Moreover, the bordering State may, when
circumstances require, substitute other sea lanes or traffic separation schemes
for those previously designated, although prior to the actual substitution, the
bordering State must refer proposals to IMO with a view to the proposal's
adoption.32 States bordering straits "shall clearly indicate all sea lanes and
traffic separation schemes ... on charts to which due publicity shall be
given."33

A State bordering an international strait may adopt laws and regulations
relating to "the loading or unloading of any commodity, currency or person
in contravention of the customs, fiscal, immigration, or sanitary laws and
regulations" of the bordering State.34 Any bordering State's laws or
regulations relating to sea lanes and traffic separation schemes, or to the
loading or unloading of any commodity, currency, or person "shall not
discriminate in form or in fact among foreign ships or in their application
have the practical effect of denying, hampering or impairing the right of
transit passage.35

According to the LOS Convention, there are two additional duties of a
state bordering a strait. One is that it "give appropriate publicity to any
danger to navigation or overflight within or over the strait of which [it has]
knowledge."36 The second is that it should by agreement with user States
cooperate in the establishment and maintenance of "necessary navigational
and safety aids or other improvements in aid of international navigation."37
NWP 9 would benefit from inclusion of these duties in its treatment of
international straits.

Summarizing the rights and duties of warships and military aircraft passing
through straits used for international navigation between two parts of the
high seas or exclusive economic zones, it is clear from the LOS Convention
that such vessels or aircraft enjoy unimpeded transit passage in their normal
modes of continuous and expeditious transit. The vessels must respect IMO-
sanctioned sea lanes and traffic separation schemes and the aircraft shall
normally comply with ICAO safety measures and monitor assigned radio
frequencies. Warships must not carry out marine scientific research while
in transit without authorization of the bordering State, and cannot load or
unload commodities, currencies or persons in contravention of the laws and
regulations of the bordering State. While the Convention's provisions
regarding the protection and preservation of the marine environment do not
apply to vessels having sovereign immunity, if the warship, in violating the
bordering State's laws and regulations, causes loss or damage, the flag State

Alexander 95

(e.g., the United States) bears international responsibility for such loss or
damage.

What can the crew of a warship expect from the bordering State? That
its sea lanes and traffic separation schemes conform to IMO standards. That
any laws and regulations applying to warships do not negatively impact on
the right of transit passage. That the State give publicity to any danger to
navigation or overflight of which it has knowledge. That it establishes and
maintains in the strait necessary navigation and safety aids. That under no
condition does it suspend the right of transit passage to warships or military
aircraft of States at peace with the bordering State, but involved in conflict
with another State. NWP 9 accurately reflects these important principles.38

Archipelagic Sea Lanes Passage. Independent island countries possessing
certain geographical characteristics may delimit straight baselines
encompassing the archipelago, joining together the outermost islands and
drying reefs.39 Single baselines must not exceed 100 nautical miles in length,40
nor may they depart to any appreciable extent from the general configuration
of the archipelago.

Seaward of the baselines the archipelagic State may measure its territorial
sea and exclusive economic zone. Within the baselines, the waters are termed
"archipelagic waters," and have virtually the same status as territorial
waters.41 NWP 9 notes that the United States recognizes the right of
qualifying States to establish archipelagic baselines and waters.42 Traversing
the archipelagic State are archipelagic sea lanes and air routes; these corridors
join international straits located on the periphery of the enclosed State. The
sea lanes and air routes include "all normal passage routes used as routes for
international navigation or overflight through or over archipelagic waters."43
Through such sea lanes and air routes, warships and military aircraft enjoy
"the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit."44

The sea lanes and air routes are defined by a series of continuous axis lines
from the entry to the exit points of the archipelago, and ships and aircraft
in archipelagic sea lanes passage must not deviate more than 25 miles to either
side of such axis lines during passage. In cases where the width of the
waterway is less than 50 miles, transiting ships and aircraft must not navigate
closer to the coast than 10 per cent of the distance between the nearest points
on islands bordering the sea lane.45 The depiction of an archipelagic sealane
provided in Figure 2-1 of NWP 9 provides a visual illustration of this latter
concept.

As in the case of international straits, the bordering or archipelagic State
may designate sea lanes and traffic separation schemes within the archipelagic
sea lanes, conforming to IMO standards. When circumstances require, the
State may substitute other sea lanes and traffic separation schemes, after first
submitting proposals to IMO. Warships must respect sea lanes and traffic

96 Law of Naval Operations

separation schemes established in accordance with IMO procedures. Other
rights and duties of warships and military aircraft in international straits apply
mutatis mutandis to archipelagic sea lanes passage.46

NWP 9 states the position that belligerent ships or aircraft, including
submarines, surface warships, and military aircraft, retain the right of
unimpeded archipelagic sea lanes passage through, over, and under
archipelagic sea lanes. Such forces may engage in those activities that are
incident to their normal mode of continuous and expeditious passage, are
consistent with their security, and, in the case of aircraft, are consistent with
the security of accompanying surface and subsurface forces.47 Again, as with
international straits, it is not clear whether other States will agree with
superimposing the newly emerged principles of archipelagic waters on the
traditional law of neutrality.48

Although a number of island nations have declared themselves to be
"archipelagic States" and have delimited straight baselines about their
territory,49 none have formally designated archipelagic sea lanes and air
routes. In these cases, the right of archipelagic sea lanes passage may be
exercised through the inter-island routes normally used for international
navigation.50

2. The History of the Transit Passage Regime

The concept of transit passage through international straits, and of the
analogous regime through archipelagic sea lanes, is a relatively recent
phenomenon. Even in the years immediately following World War II, there
were no universal principles concerning straits passage, and no consideration
of archipelagic sea lanes even existed.

Pre-UNCLOS I. Prior to 1949 the regime of passage through international
straits overlapped by territorial seas was generally regarded as one of innocent
passage, which "requires no supporting argument or citation."51 Whether
innocent passage referred to both warships and merchant vessels was not
firmly established.52 Where the minimum breadth of the strait was greater
than the combined territorial sea breadths, a belt of high seas existed through
the water way; within such a belt the high seas freedoms of navigation and
overflight prevailed. The United States watched with considerable anxiety
the gradual extension of territorial sea claims to breadths of up to twelve
miles,53 for this in effect closed off to air and subsurface navigation a
considerable number of important straits, among them Gibraltar, Hormuz,
and Malacca.

The first international action to regulate the regime of passage through
international straits came in the 1949 Corfu Channel Case, between the United
Kingdom and Albania, which was decided by the International Court of
Justice.54 Two British destroyers were damaged by Albanian mines while

Alexander 97

passing through the Corfu Channel between the Greek island of Corfu and
the Albanian mainland, with the resultant killing of 44 British seamen. Albania
argued before the Court first, that the Corfu Channel was not an international
strait, and second, that the British warships had no right of transit through
the waterway without prior authorization by Albania.

The Court held that Corfu Channel was indeed an international strait, not
because of the volume of traffic moving through the waterway, nor of the
importance of the strait to world commerce, but because of "its geographical
situation as connecting two parts of the high seas and the fact of its being
used for international navigation."55 In other words, "it is sufficient that a
strait be a 'useful route for international maritime traffic for it to be
considered an international strait.' ,>56

With regard to the right of British warships to transit the Corfu Channel,
the Court held that in time of peace a State has the right to send its warships
through such straits without prior authorization by the coastal State, provided
such passage is innocent.

Seven months later, the International Law Commission, established within
the framework of the United Nations, began work on a codification of the
regime of the high seas and the territorial sea. One result was a draft article
on straits, which read "There must be no suspension of the innocent passage
of foreign vessels through straits normally used for international navigation
between two parts of the high seas."57 The word "normally" had been
included at the suggestion of the Soviet member and over the objections of
the United States member.

The 1958 Territorial Sea Convention. The International Law
Commission's draft was used as a basis for negotiations at the 1958 Law of
the Sea Conference (UNCLOS I), and article 16(4) of the subsequent
Convention on the Territorial Sea and the Contiguous Zone reads "There
shall be no suspension of the innocent passage of foreign ships through straits
which are used for international navigation between one part of the high seas
and another part of the high seas or the territorial sea of a foreign State."58

Three points are noteworthy in this article. First, innocent passage is non-
suspendable, although it remains up to the coastal State to determine when
passage by foreign vessels is non-innocent. Second, the word "normally" is
omitted, adding to the confusion of the meaning of the phrase "used for
international navigation." Third, there is inclusion of the term "the territorial
sea of a foreign State," an obvious reference to the Strait of Tiran, bordered
by Egypt and Saudi Arabia, which leads to the Gulf of Aqaba, at whose
northern end are small areas of the territorial waters of Israel and Jordan.
In 1958 the status of passage through the Gulf of Aqaba was a burning issue
between Israel and Egypt.59

The Convention on the Territorial Sea and the Contiguous Zone came into
force in 1964, but already there were evident deficiencies in the straits articles.

98 Law of Naval Operations

How subjective was a State's decision to declare certain types of passage as
"non-innocent'' and therefore disallowed? Were nuclear submarines, armed
with ballistic missiles, expected to travel on the surface through international
straits and show their flag — as is required for innocent passage through
territorial waters? Could the overflight of territorial seas within straits be
undertaken without the consent of the coastal State? And what did Article
23 of the Convention mean when it stated "If any warship does not comply
with the regulations of the coastal State concerning passage through the
territorial sea" it may be required to leave the area? Did this apply to the
territorial waters of international straits?

Another problem soon arose with respect to archipelagic States. Indonesia,
in 1957, purported to close off its inter-island waters by a series of straight
baselines, declaring the waters within the baselines to be internal. The United
States and other maritime powers refused to recognize this closure, but in
the early days of the Third Law of the Sea Conference (UNCLOS III) starting
in 1973, efforts were made to achieve some form of compromise with States
composed solely of one or more archipelagos.60

UNCLOS III. The United States, the Soviet Union, and other major
maritime States were determined, at UNCLOS III, to improve on the non-
suspendable innocent passage regime for international straits, but their efforts
were opposed by a number of States, among them Spain and Morocco
(bordering the Strait of Gibraltar), Southern Yemen (Bab el Mandeb), Iran
and Oman (the Strait of Hormuz) and Malaysia and Indonesia (Malacca-
Singapore Straits). The United Kingdom advanced, and both the U.S. and
the Soviets supported, the concept of transit passage, and articles 37 through
44 of the 1982 Convention spell out the details of this regime. Also article
53 defines the regime of passage in archipelagic sea lanes. These provisions
are supplemented by other Articles of the Convention relating specifically
to the rights of Government-owned vessels and aircraft (except those used
for commercial purposes) through international straits.61

The LOS Convention was adopted at Montego Bay, Jamaica, in December
1982 by a vote of 130 in favor, 4 against (including the United States), and
17 abstentions. The basic cause of the U.S. non-support was Part XI of the
Convention, dealing with the international seabed regime. Since the United
States not only voted against the final text, but has subsequently refused to
sign, and has indicated its intention not to ratify or accede to the Convention,
the question could arise, are all of the navigational rights contained in the
text, necessarily applicable to the United States? This issue might conceivably
become more acute if and when the Convention ultimately enters into force.62

The United States' position is that the non-seabed portions of the
Convention are declaratory of emerging customary international law, and
are therefore binding on all States, whether or not they are parties to the
Convention.63 Scholars may, however, debate what the bases for emerging

Alexander 99

customary international law really are, and why the United States, despite
its views on the sanctity of the non-seabed articles, chooses to interpret article
64 on highly-migratory species (e.g., tuna) in a way which appears at variance
with the text.64

3. Exceptions to the Transit Passage Regime

NWP 9 acknowledges, in a fleeting fashion,65 that some straits are governed
by the regime of non-suspendable irfhocent passage rather than transit passage.
The text would be enhanced by a broader coverage of the exceptions.

Innocent Passage Straits. Innocent passage is defined in the LOS
Convention as "passage which is not detrimental to the peace, good order,
or security of the coastal State."66 The Convention lists a series of activities
as non-conforming with innocent passage, among them any threat or use of
force against the coastal State, collecting information to the prejudice of the
coastal State's defense or security, or the carrying out of research or survey
activities.67 Innocent passage is the regime for transiting the territorial sea.
It also applies to navigation through straits which connect the high seas or
an EEZ with the territorial sea or a bordering State, or straits excluded from
the regime of transit passage by article 38(1 ).68 In the case of such straits,
the regime of innocent passage is non-suspendable by the bordering State.69

There are two potential situations in which innocent passage straits may
exist. One is where the strait leads from the high seas/EEZ directly into a
coastal State's territorial waters without later re-emerging into the high seas
or an EEZ. Such is the case, for example, with Canada's Queen Charlotte
Strait between the northern end of Vancouver Island and the mainland of
British Columbia. Relatively few of the waterways of this type are officially
named.70

A second situation is where the strait connects the high seas/EEZ with
an historic bay — whose waters are by definition internal. Such a bay would
be closed off by a straight baseline, seaward of which are territorial waters.
There are no generally-accepted criteria for establishing claims to historic
bays, and the United States, which itself has few historic claims,71 tends to
resist such claims by other States.72 But there are some straits connecting with
water bodies where the coastal State asserts strong historic claims.73

Straits Not Overlapped by Territorial Seas. According to the LOS
Convention, transit passage does not apply to a strait "if there exists through
the strait a route through the high seas or through an exclusive economic
zone of similar convenience with respect to navigational and hydrographical
characteristics."74 Through such a route, or "corridor," the high seas
freedoms of navigation and overflight would automatically exist.

If all States claimed a twelve-mile territorial sea, then all straits with least
widths of less than 24 miles would have no such corridor. But a number of

100 Law of Naval Operations

States, including Australia and Finland, have territorial seas of less than twelve
miles. This will permit a high seas/EEZ corridor through such waterways
as Bass Strait, separating Tasmania from the Australian mainland, and the
Entrance to the Gulf of Finland.75 Any international strait, greater in least
width than 24 miles, would ipso facto have a high seas/EEZ corridor passing
through it.

Three questions arise with respect to this provision. A first concerns the
meaning of "similar convenience." The navigable channel, for example,
might not coincide with the high seas/EEZ corridor. Associated with this
is the issue of the minimum width the corridor must have in order to be a
viable transit route. In The Bahamas, for example, a twelve-mile territorial
sea would leave a corridor of only a quarter of a mile width through
Providence Channel at its narrowest point. How could a foreign naval
squadron utilize such a narrow space? In order to qualify as being of "similar
convenience," the corridor should probably be two or three miles in width
at its narrowest point.76

Finally, there is the question of the status of the territorial waters adjoining
the high seas/EEZ corridor. Presumably the status is one of suspendable
innocent passage, with no right of overflight by foreign aircraft, nor of passage
submerged by foreign submarines.77

The * 'Messina Exception." There are certain specific exceptions
provided for in the Convention to the transit passage regime, even for straits
connecting two parts of the high seas or an EEZ with one another. One of
these is the "Messina exception," which was intended primarily to cover the
situation of Italy's Strait of Messina, between the mainland and the island
of Sicily. This waterway, which has a minimum width of about two miles,
was of concern to the Italian Government in the event that a potentially hostile
fleet might seek transit passage rights through the strait. In response to Italy's
fears, a provision was included in the Convention stating that a right of transit
passage is excepted "if a strait is formed by an island of a State bordering
the strait and the mainland" provided "there exists seaward of the island a
route through the high seas or through an exclusive economic zone of similar
convenience with respect to navigational and hydrographical characteris-
tics."78 Although the Convention does not so state, a right of non-suspendable
innocent passage would exist through any strait as defined by article 38(1).

There are some uncertainties regarding the article. First, as noted earlier,
what does the phrase "of similar convenience" mean? Should conditions of
fog, ice, channel depth, or travel distance associated with the alternative route
be no more adverse than with respect to the original waterway? In the case
of distance, a ship utilizing the Strait of Messina on a voyage from Marseilles
to Trieste would save approximately 60 miles from a route traveling around
the island of Sicily.

Alexander 101

Looking at straits other than Messina, article 38(1) might apply to the U.K. 's
Pentland Firth between the Scottish mainland and the Orkney Islands, to
Sweden's Kalmar Sund in the Baltic, and to Canada's Northumberland Strait
in the Gulf of St. Lawrence. But there are definitional questions. For example,
what constitutes the "mainland"? Can South Korea claim Cheju Strait as an
article 38(1) exception when the mainland is actually a series of small islands
and islets? In the western Aegean there is Keas Strait, close to Athens, which
Greece might claim as an exception, although the "mainland" here is formed
by the island of Mikronisos, about a mile off the true mainland coast.

No matter what the geographic situation might be, it would appear from
a reading of article 38(1) that a strait, in order to be excepted, should at some
point be closed off by overlapping territorial seas. Further, the alternative
route must include through it a high seas or EEZ corridor. Given the
propensity of States to alter their territorial sea claims, there exists
considerable uncertainty as to which straits of the world would qualify as
article 38(1) exceptions. United States policy is that the number of straits
excepted under this article should be kept to an absolute minimum.

Straits Regulated by International Conventions. Another exception to
the transit-passage regime is contained in article 35(c) which exempts straits
in which passage "is regulated by long-standing conventions in force
specifically relating to such straits." The obvious reference here is to the
Turkish Straits,79 which are regulated by the 1936 Montreux Convention.80
This Convention guarantees freedom of transit through the Straits for
merchant vessels of all nations at all times. But there is no corresponding
right of free overflight of the Turkish Straits. The Convention also contains
certain restrictions on the transit of warships of both non-Black Sea powers
and Black Sea powers, one of them being that the maximum aggregate
tonnage of warships of non-Black Sea powers within the Black Sea at any
one time must not exceed 45,000 tons.

Another waterway to which this article might apply is the Danish Straits
(Little Belt, Great Belt and Oresund), the subject of an 1857 Convention which
lifted the dues requirements for ships transiting the Straits.81 Since foreign
warships at that time were not subject to such dues, some recent writers have
argued that Denmark has no legal grounds for interfering with the passage
of foreign warships through the Straits. But a 1976 Danish Ordinance requires
advance notification for the passage of foreign warships through the Straits,
demands that foreign submarines operate on the surface flying their flag, and
notes that military aircraft can overfly Danish territorial waters (including
those within the Straits) only if advance permission has been obtained.82

Two other straits that might conceivably be affected by the article are
Gibraltar and Tiran. A 1904 Declaration between Great Britain and France
regarding Egypt and Morocco guaranteed freedom of navigation through the
Strait of Gibraltar, but made no mention of overflight rights.83 The

102 Law of Naval Operations

Government of Spain has on occasion held that since Gibraltar is governed
by the 1904 Declaration, freedom of overflight through the Strait does not
exist. In 1973, at the outset of fighting between Israel and Egypt, U.S. military
aircraft flying east from the Azores in order to supply Israeli forces, navigated
through the approximately two-mile wide high-seas belt at the narrowest
point in the Strait in order to avoid the three-mile territorial seas (then
recognized by the United States) of Spain and Morocco. But in the 1986 air
strikes on Libyan terrorist support infrastructure (after the United States had
acknowledged other States* rights to a twelve-mile territorial sea) U.S.
military aircraft operating from bases in Great Britain utilized the transit
passage regime, as provided for in the LOS Convention, to justify overflying
the Strait of Gibraltar.

In the case of the Strait of Tiran, the waterway, as noted earlier, connects
the high seas/EEZ of the Red Sea with the territorial waters of the two
bordering States, but also with the territorial seas of Israel and Jordan. Article
45(l)(b) of the LOS Convention provides for a regime of non-suspendable
innocent passage through straits "between a part of the high seas or an
exclusive economic zone and the territorial sea of a foreign State." Following
the independence of Israel in 1948, Egypt sought to restrict the movement
of Israeli shipping through the Strait on the grounds that it did not constitute
"innocent passage" so far as Egypt was concerned. Twice Israeli forces
occupied the Egyptian heights overlooking Tiran to ensure that the Strait
would be open to Israeli shipping. The 1979 Treaty of Peace between Egypt
and Israel provides "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."84 Does this 1979
Treaty represent a "long-standing international convention," and what is its
effect on Saudi Arabia, guarding the eastern shore of the Strait, since that
country is not a party to the Egyptian-Israeli Peace Treaty?

Internal Waters in a Strait. The transit passage regime does not apply
in any areas of internal waters within a strait, "except where the
establishment of a straight baseline . . . has the effect of enclosing as internal
waters areas which had not previously been considered as such."85 The
relatively few cases where internal waters exist within a strait are in
connection with juridical86 or historic bays, river mouths, harbor systems and
roadsteads, and with straight baseline regimes. In the Corfu Channel, for
example, a juridical bay exists along the western (Greek) shore and serves
to narrow somewhat the width of the belt through which the transit passage
regime applies. Other affected straits include the Oresund and the Strait of
Hormuz. In the case of the Oresund, Copenhagen's roadstead extends about
three miles into the main waterway, forcing the traffic lane eastward toward
Sweden.

Alexander 103

In the Strait of Hormuz, the Omani straight baseline system joins the
mainland with the offshore islands out to the Great and Little Quoin, with
the result that the traffic separation zone, landward of the Quoins, passes
within the baseline. Although to date Oman has not sought to limit in any
way passage along this sea lane, it might conceivably argue that the waters
within the baseline had previously been considered as internal, and therefore
were not subject to the transit passage regime.

Straits Connecting With the Territorial Sea of a Foreign State. A final
exception to transit passage is a convention provision which calls for non-
suspendable innocent passage in a strait "between a part of the high seas or
an exclusive economic zone and the territorial sea of a foreign State."87
Mention has already been made of the Strait of Tiran, for which this provision
was intended. The only other straits to which this provision might apply are
Head Harbour Passage, leading through Canadian waters off the Province
of New Brunswick to Passamaquoddy Bay, shared by New Brunswick and
the State of Maine; Guatemala's Entrance to the Bay d'Amatique; and two
shallow waterways in the Persian Gulf — the Bahrain-Qatar Passage leading
to Saudi Arabian waters; and the Bahrain-Saudi Arabia Passage connecting
with the waters of Qatar.

5. The Record of State Practice

NWP 9 does not address the record of State compliance with the transit
passage regime. Given the stated purpose of that publication, this is probably
unnecessary. It would be appropriate here, however, to examine what that
record has been. The principal deviations from the Convention's straits
articles have occurred in the Arctic. In 1985, the Canadian Government
delimited a series of straight baselines about its Arctic Archipelago in reaction
to the transit through the Northwest Passage of the U.S. Coast Guard vessel,
POLAR SEA.88 The Government also announced that the waters within the
baselines were henceforth to be considered internal waters, with no right of
free navigation existing through them. The legal justifications for Canada's
actions have been variously described as environmental protection, the
exercise of historic rights, the non-application of articles 37 and 38 to the
Northwest Passage, or simply the delimitation of straight baselines in
accordance with the provisions of the LOS Convention.89 The United States
protested Canada's enclosure action, but three years later concluded an
agreement with Canada which, on the one hand, provided for prior
notification by the U.S. in the event of its sending ice breakers through the
Northwest Passage, and on the other reserved the U.S. position with regard
to the Canadian assertion that the Northwest passage did not qualify as an
international strait.90 The United States was particularly concerned that if

104 Law of Naval Operations

it acquiesced in the Canadians' action, other States might also close off
bordering straits on environmental or other grounds.

The Soviet Union considers the waters of the Laptev, East Siberian, and
Chuckchi Seas, north of Siberia, as having a "special status" of their own.
In 1967, for example, the Soviets turned back two U.S. Coast Guard vessels,
the EDISTO and the EASTWIND, which were traveling eastward from the
Barents and Kara Seas, and attempting to pass through Vil'kitsky Strait into
the Laptev Sea. The Soviets never explained the rationale for their action,
but so far as is known, no foreign-flag vessels since then have travelled in
the Soviets' northern waters to the east of Vil'kitsky Strait.91

Outside of the Arctic basin, the Soviets apparently consider the Sea of
Okhotsk, off the eastern Siberian coast, as a "closed sea," not open to foreign
warships. Most of the coastline of the Sea is Soviet territory, although Japan
controls some 50 miles of the coast on the island of Hokkaido. The Soviet
position affects the passage of foreign warships through the straits of the
Kurile Islands, leading into Okhotsk. Elsewhere, China considers Hainan
Strait, connecting the South China Sea with the Gulf of Tonkin, to be an
"historic" strait, although nowhere in the LOS Convention is there provision
for an international strait to be claimed as historic.

One situation which might in time prove troublesome is Greece's policy
toward the regime of passage through the inter-island waters of the Aegean
Sea. The islands are controlled by Greece, but the waterways lead to Turkey.
Because the islands are a part of Greece — basically a mainland country — they
cannot be closed off as an archipelagic State, and Greece has maintained, first,
that not all the inter-island passages are international straits, and second, that
Greece reserves the right to designate the waterways to which the transit
passage regime applies.92 The issue of passage through non-archipelagic island
groups was never settled at UNCLOS III.

6. The Relative Importance of International Straits

There is no fixed method for determining which straits are more important
than others. One possible index is the number of transiting ships per day.
In this respect, the leading straits are: Dover, Malacca-Singapore, Kattegat
(at the northern approach to the Danish Straits), Gibraltar, Hormuz, and the
Turkish Straits. It is difficult to obtain reliable statistics on many other straits,
since no generally-available method of counting numbers of transits through
these waterways exists.

Choke Points. Straits constituting strategic choke points are of critical
economic and military importance. The term "choke point" implies that in
the case of a particular waterway there is an opportunity for a State to close
off, or at least restrict, the flow of ocean-borne traffic which is critical to
a nation or nations. Three issues would appear to be of importance with

Alexander 105

respect to choke points. First, there is no readily available alternative
waterway to use if passage through the choke point is denied or restricted.
The Strait of Hormuz is an obvious choke point in this regard; a strait, such
as Anegada Passage, connecting the Caribbean with the Atlantic, would not
be a prime choke point because of the number of alternative waterways
available.

Second, a choke point is relatively narrow, and thus capable of being
blocked — by mines, sunken ships, shore batteries, etc. Third, the waterway
is of importance to the commercial and/or military traffic of some State or
States. With respect to this last point, a distinction might be made between
"global" and "regional" choke points. Gibraltar is a global choke point, of
concern to many of the world's nations; the Turkish Straits are more regional
in nature, of particular significance to the countries bordering the Black Sea.

Various listings of choke points are periodically compiled but with most
analysts agreeing on the basic seven: the Danish Straits, Dover, Gibraltar,
Bab el Mandeb, Hormuz, Malacca-Singapore, and Lombok (or Sunda) at the
southern approaches to Indonesia. The Suez and Panama Canals are also choke
points. Other frequent candidates are the Turkish Straits, Magellan, Bering
Strait, Korea Strait, Osumi (Colnett) Strait — a major approach to the Sea
of Japan and South Korea — Formosa Strait, and Windward and Mona Passages
in the Caribbean. Some listings also include the Greenland-Iceland-UK gap,
although this is hardly a narrow international waterway.

Other Important Straits. In addition to the straits noted above, some
sixteen others would seem to be of concern to the U.S. and its allies. These
are: Anegada Passage, Balabac Strait, the Straits of Florida, Kasos and Kithira
Straits in the eastern Aegean, Luzon Strait, Makassar Strait, the Strait of
Otranto, San Bernardino Strait, Soya-kaikyo (La Perouse Strait), Surigao
Strait, Strait of Tiran, Torres Strait, Tsugaru-kaikyo, Unimak Pass, and Verde
Island Passage. This is not meant to imply that other straits are not also
significant, but perhaps these are the most strategic at this point in time.

For the United States, all straits are of potential importance, since no one
can forecast where future military operations may be necessary.93 Who, for
example, in 1940, could have predicted that within two years the U.S. would
be vitally concerned with the geography of Indispensable, Manning and
Bougainville Straits in the Solomon Islands — or, a short time later, with
Dampier, Vitiaz and Isumrud Straits off northeastern New Guinea?

Notes

* Director, Graduate Program of Marine Affairs, University of Rhode Island, Kingston, Rhode Island.

1. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, NWP 9 (Washington:
1987) (herinafter NWP 9 or Handbook).

2. United Nations Conference on the Law of the Sea, 3d, United Nations Convention on the Law of the
Sea, A/CONF. 62/122 (n.p.: 1982) (hereinafter LOS Convention).

106 Law of Naval Operations

3. In this Chapter, the term "bordering State" will be used in connection with the regime of straits,
whether or not there are one, two, or three States actually bordering a particular strait.

4. Within an exclusive economic zone, the high seas freedoms of navigation and overflight prevail.
LOS Convention, supra note 2, art. 58(1).

5. Erik Bruel, International Straits: A Treatise on International Law (1947), p. 19.

6. Lewis Alexander, Navigational Restrictions Within the New LOS Context: Geographical Implications for the
United States (Peace Dale, ILL: Offshore Consultants, 1986), p. 99.

7. LOS Convention, supra note 2, art. 38(1).

8. Id.

9. Id., art. 38(2).

10. Id., art. 39(1 )(c).

11. For an analysis of this position see Bruce A. Harlow, "Comments Concerning the 1982 Law of
the Sea Convention," Law and Contemporary Problems, Spring 1983, v. 46, pp. 130-135.

12. LOS Convention, supra note 2, art. 39(1 )(a).

13. Id., art. 38(2).

14. Id., art. 39(1 )(b).

15. Id., art. 39(1 )(c).

16. NWP 9, supra note 1, par. 2.3.3.1.

17. LOS Convention, supra note 2, art. 39(2).

18. The International Maritime Organization, headquartered in London, is a specialized agency of the
United Nations, and has, inter alia, the function of setting world-wide standards of pollution prevention,
navigation efficiency, and marine safety.

19. International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, United States Treaties and
Other International Agreements, v. 28, p. 3459, T.I.A.S. 8587.

20. Inter-Governmental Maritime Consultative Organization: International Convention for the Safety
of Life at Sea, 1974, International Legal Materials, July 1975, v. 14, p. 959.

21. International Conference on Marine Pollution: International Convention for the Prevention of
Pollution from Ships, 1973, International Legal Materials, Nov. 1983. v. 12, p. 1319.

22. LOS Convention, supra note 2, art. 236; NWP 9, supra note 1, par. 2.1.2.

23. LOS Convention, supra note 2, art. 42(5).

24. Id., art. 40.

25. Id., art. 41(3) and (7).

26. Id., art. 39(3)(a).

27. Id., art. 39(3)(b).

28. NWP 9, supra note 1, par. 7.3.5.

29. See Mark W. Janis, "Neutrality," infra Chapter VI; A V. Lowe, "The Commander's Handbook on
the Law of Naval Operations," infra chapter V.

30. NWP 9, supra note 1, par. 7.3.7.

31. LOS Convention, supra note 2, art. 41(1).

32. Id., art. 41(4).

33. Id., art. 41(6).

34. Id., art. 42(l)(d).

35. Id., art. 42(2).

36. Id., art. 44.

37. Id., art. 43(a).

38. NWP 9, supra note 1, par. 2.3.3.1.

39. An archipelagic State is one wholly constituted by islands, and to be entitled to draw straight
baselines, the area of water to the area of land within the straight baselines must be between 1 to 1 and
9 to 1. LOS Convention, supra note 2, arts. 46 and 47.

40. Id., art. 47(2). Up to 3 percent of the total number of baselines enclosing the archipelago may exceed
100 miles, up to a maximum length of 125 miles. Id.

41. The only difference between territorial and archipelagic waters is that in the latter, traditional fishing
rights of adjacent neighboring States shall continue and be respected.

42. NWP 9, supra note 1, par. 1.4.3.

43. LOS Convention, supra note 2, art. 53(4).

44. Id., art. 53(3).

45. Id., art. 53(5).

46. Id., art. 54.

47. NWP 9, supra note 1, par. 7.3.6.

48. See Janis, supra note 29.

Alexander 107

49. Among these States are Antigua and Barbuda, Cape Verde, Comoros, Fiji, Indonesia, Kiribati,
Maldives, Mauritius, Philippines, Sao Tome and Principe, Solomon Islands, Trinidad and Tobago, Tuvalu,
Vanuatu.

50. LOS Convention, supra note 2, art. 53(12).

51. Philip Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York, N.Y.: G.A. Jennings,
1927), p. 120.

52. Id.

53. In 1945, 77 percent of the world's 60 coastal States had 3-mile territorial sea claims; by 1979, this
figure had dropped to 18 percent of 131 States.

54. Hague, International Court of Justice, Corfu Channel Case ([The Hague]: The Court, 1949), v. 4.

55. Id., p. 23.

56. R.R. Baxter, The Law of International Waterways (Cambridge, Mass. Harvard University Press, 1964),
p. 9.

57. United Nations, General Assembly, International Law Commission, Report, 8th Session, A/3159 (New
York: 1956), art. 17.

58. Convention on the Territorial Sea and Contiguous Zone, April 29, 1958, United States Treaties and
Other International Agreements, v. 15, p. 1606, T.I.A.S 5639, 516 United Nations Treaty Series, v. 516, p. 205,
art. 16 (4).

59. See, e.g., Baxter, supra note 56, pp. 160 and 209.

60. For a discussion of the LOS negotiations on archipelagic States, see Patricia Rodgers, Midocean
Archipelagos and International Law (New York: Vantage Press, 1981).

61. E.g., LOS Convention, supra note 2, art. 236.

62. The LOS Convention enters into force twelve months after the sixtieth ratification or accession.
LOS Convention, supra note 2, art. 308(1). As of December 1989, 42 states had ratified the Convention.
Council on Ocean Law, Ocean Policy News, Dec. 1989, p. 1.

63. See, e.g., the remarks of Brian Hoyle, Director, Office of Oceans Law and Policy, U.S. Department
of State, in Lawrence Juda, ed., The United States Without the Law of the Sea Treaty: Opportunities and Costs
(Wakefield, R.I., Times Press, 1983), p. 65 and 70; Restatement (Third) of the Foreign Relations of the
United States, Part V, Introduction, v. 2, p. 5.

64. The United States, almost alone among coastal States, asserts that the coastal State has no jurisdiction
over highly migratory species, but requires international agreement for effective management. See
Proclamation No. 5030, 3 C.F.R. 22 (1983 Compilation), and accompanying press statement, Weekly Comp.
ofPres. Doc, v. 19, p. 384 (April 14, 1983).

65. NWP 9, supra note 1, par. 2.3.3.1.

66. LOS Convention, supra note 2, art. 19(1).

67. LOS Convention, supra note 2, art. 19(2). NWP 9 contains a listing of those activities that a warship
may not undertake while in innocent passage. NWP 9, supra note 1, par. 2.3.2.1.

68. Id., art. 45(1). Those excluded by article 38(1) are straits between the mainland and an island of
the bordering State where a route of similar convenience exists seaward of the island. See discussion of
"The Messina Exception," infra, in text following note 76.

69. Id., art. 45(2).

70. There are no named straits, for example, given to the waterways connecting the Atlantic Ocean
with Boston Harbor, Narragansett Bay, New York Bay, or the Chesapeake Bay.

71. In United States v. Louisiana, 470 U.S. 93, 105 S.Ct. 1074, 84 L.Ed.2d 73 (1985), the Supreme Court
ruled that the Mississippi Sound was an historic bay, notwithstanding the formal renunciation by the United
States in 1971 of its earlier assertion of historic bay status of those waters. All other bays claimed as historic
by the United States would now qualify as juridical bays.

72. The United States recognizes very few historic bay claims by foreign States, unless the bay could
also be closed off as a juridical bay. One claim recognized is to the Gulf of Manner off the southeast
Indian coast.

73. Canada, for example, strongly defends its historic claim to Hudson Bay, thereby affecting the regime
of Hudson Strait.

74. LOS Convention, supra note 2, art. 36.

75. Prior to President Reagan's 1989 Proclamation of a 12-mile territorial sea for the United States
(see Proc.No. 5928, 53 Fed. Reg. 777, January 9, 1989) this list would have included the Strait of Juan
de Fuca between the United States and Canada.

76. Three nautical miles is the most frequently used width for sea lanes established under IMO auspices.

77. There is no provision in the LOS Convention for any status for bordering waters other than that
of the territorial sea.

78. LOS Convention, supra note 2, art. 38(1).

79. The Turkish Straits consist of the Bosporus, Sea of Marmara, and the Dardenelles.

108 Law of Naval Operations

80. Convention Regarding the Regime of the Straits, with Annexes and Protocol, July 20, 1936, League
of Nations Treaty Series, v. 173, p. 213.

81. Treaty for the Redemption of the Sound dues between Austria, Belgium, France, Great Britain,
Hanover, the Hansa Towns, Mecklenburg-Schwerin, the Netherlands, Oldenburg, Prussia, Russia,
Sweden-Norway, and Denmark, March 14, 1857, C. Parry, Consolidated Treaty Series (Dobbs Ferry, New
York: Oceana Publications, Inc., 1969), v. 116, p. 357.

82. Gunnar Alexandersson, The Baltic Straits: International Straits of the World (Boston: Nijhoff, 1982), p.
22.

83. "Declaration Between Great Britain and France Respecting Egypt and Morocco, Together with
the Secret Articles, April 8, 1904," British and Foreign State Papers (London: His Majesty's Stationary Office,
1912), v. 101, p. 1053.

84. "Treaty of Peace Between the Arab Republic of Egypt and State of Israel, 1979," International Legal
Materials, March 1979, v. 18, p. 362.

85. LOS Convention, supra note 2, art. 35(a).

86. A juridical bay is described in article 10 of the LOS Convention as a well-marked indentation of
the coast, whose distance across at its mouth does not exceed 24 miles and whose area is at least as large
as a semi-circle whose diameter is a line drawn across its mouth. See also, supra note 1, par. 1.3.3.

87. LOS Convention, supra note 2, art. 45(1 )(b).

88. In August 1985, the U.S. Coast Guard vessel POLAR SEA, with the support and participation of
Canada, transited the Northwest Passage, from east to west. Since the U.S. Government, prior to the
voyage, refused to formally request the Canadian Government's permission for the transit, the Canadian
press categorized the voyage as an infringement on Canadian sovereignty. The New York Times, Sep. 11,
1985, sec. I, p. 9:1.

89. Article 7 of the LOS Convention provides that "[i]n localities where the coastline is deeply indented
and cut into, or if there is a fringe of islands in the immediate vicinity, a method of straight baselines
may be employed . . . [which] must not depart to any appreciable extent from the general direction of
the Coast." Critics of the Canadian action argue that the baseline system in the Arctic Archipelago does
not conform with these criteria.

90. Agreement Between the Government of the United States of America and the Government of
Canada on Arctic Cooperation, Ottawa, Jan. 11, 1988, International Legal Materials, Jan. 1989, v. 28, p. 142.
The Agreement provides that "all navigation by U.S. icebreakers within waters claimed by Canada to
be internal" will be undertaken only with the consent of the Canadian Government. Id., p. 143, para.
3. But the agreement does not affect the U.S. position that Canada's declaration that the Northwest Passage
is not an international strait is without legal foundation. Id, par. 4.

91. The September 23, 1989, joint statement of U.S. Secretary of State James Baker and Soviet Foreign
Minister Eduard Shevardnadze, issued at Jackson Hole, Wyoming, although not relating directly to straits
but rather to innocent passage, may indicate the current position of the Soviet Union toward passage
through the territorial sea generally, including such straits as Vil'kitsky. The "Uniform Interpretation
of Rules of International Law Governing Innocent Passage," which were attached to that statement,
provides, "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 notification nor authorization is required." (Emphasis supplied) (Copy in possession of Editor).

92. Statement by the Delegation of Greece to the Third United Nations Conference on the Law of
the Sea, A/CONF. 62/WS/26, Third United Nations Conference on the Law of the Sea, Off. Rec, v. 16, p.
266 (1982).

93. Richard Grunawalt, "United States Policy on International Straits," Ocean Development and
International Law, v. 18, no. 4, 1987, p. 445.

Lowe 109

Chapter V

The Commander's Handbook on the

Law of Naval Operations
and the Contemporary Law of the Sea

by
A. V. Lowe*

The Commander's Handbook on the Law of Naval Operations,1 issued by the
United States Department of the Navy in July 1987, is a model of clarity
and conciseness. Given the audience for which it was intended, it is
resoundingly successful in explaining the intricacies of the law. Its clear and
authoritative style, however, sometimes conceals the controversial nature of
some of the statements which it includes. It is the purpose of this paper to
review the Handbook, discussing the more controversial pronouncements and
setting it against the background of the contemporary, and sometimes
unsettled, Law of the Sea. The comments made are in no sense intended as
a criticism of the drafting of the Handbook as an exposition of the United States'
view of international law, which could scarcely be bettered. They merely
point out some of the difficulties which attend that view of the law, which
for the most part could not reasonably be canvassed in the Handbook itself.
The comments are not an exhaustive catalogue of the cases where the
legislation or views of third States or commentators differ from that of the
United States, but they are illustrative of the kinds of questions which might
arise from strict adherence to the account given in the Handbook.

The Handbook is divided into two parts, The Law of Peacetime Naval
Operations and the Law of Naval Warfare, which will be discussed in turn.
First, however, it is necessary to deal with certain general issues raised in
the Preface to the Handbook.

The Handbook claims disarmingly to set forth "general guidance," and not
to be "a comprehensive treatment of the law" or "a substitute for the
definitive legal guidance provided by judge advocates and others responsible
for advising commanders on the law."2 However, while there are certainly
detailed points of interpretation upon which the Handbook is not to be taken
as a definitive guide, it is plain that the Handbook is intended to represent
United States Navy thinking on the broad lines of international law, and hence
to some extent will operate as a constraint upon those who give more detailed

110 Law of Naval Operations

advice. For instance, the Preface lists only two sources of international law:
custom and treaties. There is no suggestion of recourse to resolutions of
international organizations for the determination of what international law
might be. This is unfortunate since, quite apart from the crucial importance
of such resolutions in the particular context of the legality of operations on
the deep sea-bed, resolutions adopted by bodies such as the International Civil
Aviation Organization are of great significance in the adumbration of the
law concerning other maritime zones of more immediate concern to naval
commanders.

Moreover, the definition of customary international law given in the
Preface, though according closely with classical formulations which treat
customary law as a homogeneous body of law applicable to all States, gives
no sense of the decisive importance of persistent objection and acquiescence
in State practice, which can, respectively, except States from the binding
force of emergent norms of customary international law or bind them to
acceptance of norms which command less than general acceptance in State
practice.3 Given that the United States persistently objected to territorial sea
claims in excess of three miles until its conditional acceptance of wider claims
in 1983 or so,4 and that some of the statements in the Handbook amount to
novel interpretations of the law of the sea, persistent objection and
acquiescence remain important considerations in the accurate determination
of the rules of international law applicable in any concrete dispute.

The Law of Peacetime Naval Operations

1. Legal Divisions of the Oceans and Airspace. The first chapter in this part
of the Handbook deals with the legal divisions of the oceans and airspace, and
it begins with a summary of the law concerning baselines. Two points call
for comment. First, while acknowledging the propriety of straight baselines
drawn along coastlines where it is impracticable to utilize the low-water
mark, as where the coastline is deeply indented or fringed by islands,5 the
Handbook notes that "the United States, with few exceptions, does not employ
this practice and interprets restrictively its use by others."6 It is true that
the restrictions on the use of straight baselines set out in the 1958 Territorial
Sea Convention were recently reaffirmed in the 1982 Convention, and there
was no significant support at UNCLOS III for any substantial relaxation of
those restrictions. On the other hand, State practice is clearly moving towards
a liberal interpretation of the circumstances in which straight baselines can
be used. A recent study7 sets out straight baseline claims made by 46 States,
including many (such as those made by Algeria, Burma, Colombia, Cuba,
Ecuador, France, Guinea, Iran, Italy, Kenya, Madagascar, Morocco,
Mozambique, Senegal, Spain and Vietnam) which are by no means easy to

Lowe 111

reconcile with the conventional and customary law criteria for the use of
such baselines.

It is understood that the United States has protested against some of these
claims, reserving its legal rights. There is a risk of the United States being
held to have acquiesced in the validity of other claims, although since the
acquiescence only arises from silence in circumstances which demand a protest
because they affect the actual (as opposed to the abstract) interests of a State,
this possibility is theoretical rather than real. However, there is a more
insidious danger. If the pattern of liberal use of baselines persists and spreads,
a view might emerge that it represents either an agreed interpretation of the
conventional rules or a development in the customary law, in either case
allowing such claims. This gives rise to complex questions of treaty law
concerning the ability of what may ultimately be a minority (perhaps a small
minority) of parties to hold out against an interpretation of a multilateral
treaty adopted by the other parties. This problem is compounded by the
difficult question whether the boundaries of a State, determined inter alia by
its baseline, can differ vis-a-vis different States. While it would probably
overstate the case to say that the United States is in danger of having its legal
rights eroded by this development in State practice, there is at least a cause
for concern here which should be recognized.

The second point concerns claims to historic bays, such as the Libyan claim
to the Gulf of Sirte which has occasioned difficulties in the past.8 The Handbook
states that "[t]he 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 absence of opposition,"9 if the historic claim is to be valid. This
is controversial for two reasons. First, it might be said that it is not the
acquiescence of foreign nations, but only of the United States, which need
be shown: if the United States had acquiesced in the claim, it would be bound
to accept its validity, whether or not other States had acquiesced in it.
Acquiescence by the United States is, however, unlikely. In the Gulf of Sirte,
for instance, the United States put beyond doubt its rejection of the Libyan
claims by asserting its freedom to use the disputed waters as high seas.
Secondly, the requirement of acquiescence, as opposed to the mere absence
of protest, is itself less clearly settled than the Handbook might imply. The
International Court in the Anglo-Norwegian Fisheries case suggested that the
general toleration of a notorious claim — the mere absence of protest — is
enough to render the claim valid, and controversy over the matter is alive
in academic circles.10 This point might also be argued in relation to straight
baseline systems, which are simply a means of defining those waters which
could become internal waters of a State by way of historic title even if the
original drawing of the baseline was unlawful. Here again is a possibility that
the Handbook points to in the rejection of certain maritime claims which might
be held by an international tribunal to be opposable to the United States.

112 Law of Naval Operations

The Handbook turns next to the definition of the various maritime zones
which might be claimed by States. Although these definitions are not of
central importance, the rights and duties of States within the zones being dealt
with in more detail elsewhere in the Handbook, it is worth noting that some
of the definitions are questionable. Paragraph 1.5 of the Handbook is headed
"International Waters," and covers the contiguous zone, Exclusive Economic
Zone (EEZ), high seas and security zones. The contiguous zone is stated, with
an impeccable adherence to the wording of the 1958 and 1982 Conventions,11
to be the zone within which a State may prevent and punish infringements
of its customs, fiscal, immigration and sanitary laws and regulations that occur
within its territory or territorial sea. That definition is, however, arguably
too restrictive. Many State claims to contiguous zones assert the right to
punish not only infringements committed within the territory or territorial
sea of the State, but also infringements committed within the contiguous zone
itself; in short, they claim both jurisdiction to enforce and jurisdiction to
prescribe in the contiguous zone. However, the terms of the conventional
definition adopted in the Handbook, whether construed literally or in the light
of the travaux preparatoires of article 24 of the 1958 Territorial Sea Convention,
grant only jurisdiction to enforce in the contiguous zone.12 Moreover, the
list of interests which may be protected in the contiguous zone, which is
limited to customs, fiscal, immigration and sanitary matters, sits awkwardly
with United States judicial practice. In cases such as the Taiyo Maruu and
Gonzalez,14 United States courts have taken a liberal view of the rights of
coastal States to exercise jurisdiction beyond the territorial sea in what may
loosely be termed as the contiguous zone, extending in terms of subject matter
beyond the limits laid down in the 1958 and 1982 Conventions. It has, however,
to be said that the more conservative line taken in the Handbook accords with
that taken by the Geographer of the United States Department of State.15
In particular, the refusal of the Handbook to admit the validity of contiguous
zones for security purposes16 is consistent with the views of the Geographer.17

Perhaps the most significant divergence from the wording of the
international conventions in this section of the Handbook concerns the
Exclusive Economic Zone (EEZ). While the description of these 200-mile
zones as "resource-related zones" might be regarded as a reasonable
simplification of their nature, the description of the rights of third States in
the zone is more controversial. It is stated that "in the EEZ all nations 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 which are not resource related."18 That
is not what the 1982 Convention says. Article 58 of the Convention expressly
ascribes to third States in the EEZ only

Lowe 113

[T]he freedoms referred to in article 87 [on the freedoms of the high seas] of navigation
and overflight and of the laying of submarine cables and pipelines, and other
internationally lawful uses of the seas related to these freedoms, such as those associated
with the operation of ships, aircraft and submarine cables and pipelines, and compatible
with the other provisions of this Convention.

The controversy centers upon the legality of activities such as weapons testing
and naval exercises, and the laying of submarine monitoring systems (such
as the SOSUS chains) in the EEZ, without the permission of the coastal State.
One view, advanced in the Handbook, is that all such traditional high seas
activities fall within the concept of "other internationally lawful uses of the
seas related to" the freedom of navigation and pipe- and cable-laying set out
in article 58, and that they are therefore lawful if committed in the EEZ of
a third State, even if the State objects to such activities.19 That view is not
shared by all States. For example, Brazil, Cape Verde and Uruguay have
asserted that various military activities, such as exercises involving the use
of weapons, may not be conducted within the EEZ without coastal State
consent.20 States taking this position might argue that weapons testing and
the deployment of underwater monitoring systems are neither expressly listed
in article 58 as specific "high seas" freedoms preserved in the EEZ nor
included within the category of "other internationally lawful uses of the seas
related to" the specified freedoms. Naval exercises in an area of EEZ
involving the use of guns, bombs and rockets, for example, might be said
to be essentially different from and unrelated to the freedom of navigation,
as may the sowing of unarmed mines.21 The laying of SOSUS chains which
monitor shipping movements in the area might equally be said to be distinct
from normal pipe- and cable-laying activities, where the pipes and cables are
used for transportation across the zone in question rather than for the
collection of intelligence from it. Furthermore the exclusive right, of the
coastal state, under article 60 of the 1982 Convention, to authorize and
construct installations and structures in the EEZ which may interfere with
the exercise of its rights in the zone offers an alternative basis for coastal
interference. It might be said, for instance, that a SOSUS chain which
stretches across the EEZ of a State so as to make it impossible for coastal
State naval vessels to put to sea without detection by a third State interferes
with the right of the coastal State to police and defend the waters adjacent
to its coast. Finally, the coastal State might claim that any of the foregoing
arguments are sufficient to create a doubt as to the respective scope of coastal
and third State rights, and that a proper interpretation of article 59 (not 58)
of the 1982 Convention resolves that issue "on the basis of equity and in the
light of all the relevant circumstances, taking into account the respective
importance of the interests involved to the parties as well as to the
international community as a whole."

114 Law of Naval Operations

The merits of these opposing arguments have been canvassed elsewhere,22
and that task will not be repeated here. It should be clearly stated, however,
that the views ascribed to Cape Verde have been expressed only by a tiny
minority of States, and have been plainly rejected by rather more States
(including the United States in the statement made at the signing of the Final
Act of UNCLOS III)23 and also by the overwhelming majority of
commentators. It is, of course, entirely proper that the Handbook should refrain
from raising what might reasonably be considered to be specious objections
to the United States' view. However, it is equally proper that arguments
which may yet be deployed against the United States should be noted in a
commentary on the Handbook. If these disagreements over the interpretation
of the 1982 Convention were to be resolved, that would do no more than
clear the way for the even more difficult question of the extent to which
the details of the Convention's provisions on the EEZ and other matters (and
in particular article 59) have entered into customary law. The only point being
made here is that the question of third-State rights in the EEZ is not quite
as cut and dried as might appear from the Handbook.

Briefly, the Handbook adopts the definition of the continental shelf set out
in the 1982 Convention, according to which coastal State rights over the shelf
extend, broadly speaking, to the limits of the geological continental margin
or to 200 miles from the baseline, whichever is farther.24 The provision is
significant for many States, notably in the Pacific Ocean, whose geological
shelves are much narrower than 200 miles. Some might question whether
contemporary customary law does yet follow the 1982 Convention in
automatically ascribing the seabed out to 200 miles to the coastal State, where
the continental margin does not extend out to that distance, and where the
coastal State has not claimed seabed rights out to 200 miles. However, the
Handbook, if it departs at all from customary law, concedes rights which the
U.S. might otherwise have reserved and is therefore unlikely to generate
international friction.

The final, minor, point on the definitions set out in chapter 1 of the Handbook
concerns the assertion that in the absence of treaty constraints there is a
freedom to use "international airspace (that over contiguous zones, exclusive
economic zones, the high seas, and territory not subject to the sovereignty
of any nation)."25 It may be noted that this view has been challenged by some
States. Argentina, Brazil and Uruguay are reported to have suggested that
coastal States have the right to regulate by national legislation all aeronautical
activities in their EEZ's.26 However, the drafting history of the 1982
Convention clearly supports the United States' view, and this is supported
by a recent report to the International Civil Aviation Organization which
concludes that there is no basis for the assertion that the 1982 Convention
gives coastal States jurisdiction over overflight in the EEZ.27 While this
conclusion is certainly right, the attitude of Brazil and others, mirroring

Lowe 115

similar arguments concerning military uses of the EEZ, outlined above, should
be seen as signalling that free overflight of the EEZ might not always and
in all circumstances be regarded in practice as unquestionable by all states
despite the true position in law.28

2. International Status and Navigation of Warships and Military Aircraft. The

second chapter of the Handbook raises more acute issues of law touching upon
naval operations. The definition of warships and military aircraft and the
account of their immunities follows the terms of the 1958 and 1982 conventions
on the Law of the Sea and is in general uncontroversial, although it should
be noted that naval auxiliaries, while enjoying the same immunities as
warships, are not within the definition of warships given in the Handbook or
the conventions.29 One aspect of the definition is, however, controversial. The
Handbook adopts the view taken by the major maritime States that "[njuclear
powered warships and conventionally powered warships enjoy identical
international legal status."30 That view is contested by some States. For
instance, Djibouti is reported to require no advance notification or permission
for the passage of warships through its territorial sea, but does require advance
notification for the passage of nuclear-powered ships, and Egypt requires
prior permission for the passage of nuclear-powered, but only prior notice
of the passage of conventional, warships.31 Furthermore, States are of course
entitled in exercising discretions allowed to them by international law to draw
a distinction between those warships which are powered by or carry nuclear
materials and those which do not. Perhaps the clearest example of such a
discretion concerns the admission of warships to ports and internal waters.
As the Handbook notes, in the absence of some treaty arrangement to the
contrary, warships and auxiliaries have no right of entry to the ports or
internal waters of a foreign state.32 The Treaty of Raratonga, which
implemented an agreed move by certain Pacific States towards the
establishment of a nuclear-free zone in a large area of the southern Pacific
around and to the east of Australia, provides in article 5.2 (headed "Prevention
of stationing of nuclear devices") that:

Each party in the exercise of its sovereign rights remains free to decide for itself whether
to allow visits by foreign ships and aircraft to its ports and airfields, transit of its airspace
by foreign aircraft, and navigation by foreign ships in its territorial sea or archipelagic
waters in a manner not covered by the rights of innocent passage, archipelagic sea lane
passage or transit passage of straits.33

As discussions in recent years between the governments of New Zealand and
the United States have shown, there is considerable potential for lawful
discrimination by coastal States against warships carrying nuclear materials,
at least in relation to the entry by such ships into ports and other internal
waters.34 While special provision may be made to regulate their passage,35
discrimination against ships carrying nuclear materials amounting to a denial

116 Law of Naval Operations

of passage through straits and archipelagic sea lanes does not appear to be
lawful, nor does such discrimination in relation to rights of innocent passage
simpliciter, although the scope of the right of innocent passage through the
territorial sea has been clouded by the drafting of the 1982 Convention.

Article 19 of the 1982 Law of the Sea Convention, which defines innocent
passage, is one of the most problematic provisions of that Convention from
the point of view of naval operations, although most of the problems operate
at the level of legalistic arguments against the robust good sense of the
Handbook. Article 19 opens, in its first paragraph, with the definition used
in the 1958 Territorial Sea Convention: "Passage is innocent so long as it is
not prejudicial to the peace, good order or security of the coastal State. Such
passage shall take place in conformity with this Convention and with other
rules of international law."36 The second paragraph then states that:

Passage of a foreign ship shall be considered to be prejudicial to the peace, good order
or security of the coastal State if in the territorial sea it engages in any of the following
activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political
independence of the coastal State, or in any other manner in violation of the principles
of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security
of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(j) the carrying out of research or survey activities;

(1) any other activity not having a direct bearing on
passage.

The problems of interpretation are manifold. The question whether the
list of activities incompatible with innocence in article 19(2) is illustrative
or exhaustive is clearly answered in the Handbook, which is surely correct
in regarding the list as merely illustrative.37 No answer is given to the further
question, whether the ejusdem generis principle applies to the construction of
article 19, requiring that there be some activity on a par with those listed in
article 19(2) before innocence be lost. If that construction is correct, it would
follow that the mere fact of the presence of a passing warship, not engaged

Lowe 117

in any "activity" of the sort listed in article 19(2), could not be the basis for
a finding that its passage is non-innocent. Similarly, a law stating that the
mere carriage on a merchant ship through the territorial sea of "cargo or
any appliance or apparatus the use of which or persons who may constitute
a threat against the sovereignty, territorial integrity or political independence
of the Republic, shall be deemed to be not innocent ..." could not be
lawful.38 Under the 1958 definition, which now constitutes article 19(1) of
the 1982 Convention, a coastal State could argue persuasively in some
circumstances that the very presence of a warship or carriage of such cargo
prejudiced its peace, good order or security. For instance, the mere passage
of a superpower naval squadron close to the shore during hours of darkness
at a time of substantial civil unrest or insurrection might well be perceived
by a government having a precarious hold on power, but nonetheless
recognized internationally as competent to act on behalf of the State, as
prejudicing the peace and good order of the State; the government might
accordingly determine that such passage is non-innocent.39 That government
might, furthermore, take the plausible view that the right of a coastal State
to take "the necessary steps in its territorial sea to prevent passage which
is not innocent"40 means that it is entitled to use the lowest effective level
of force available to it at the time to prevent passage, and it is conceivable
that there might be nothing available between the extremes of a radio message
and a Silkworm missile. If such a situation were to arise, and the commander
of the naval force were to rely on a different interpretation of article 19,
requiring that his warships engage in some "activity" additional to mere
passage before they lose their innocence, this doctrinal dispute could quickly
develop into an international incident.

That does not exhaust the difficulties of interpreting article 19. Among
the other difficulties which have been noted by commentators are the
problems of article 19(2)(a): would the passage of a naval force threatening
the use of force against a third State be a "threat . . . of force . . . in violation
of the principles of international law embodied in the Charter of the United
Nations," and would the passage of a naval force intended to assist a
government put down an insurrection which is regarded in the United Nations
as an attempt by the people of the country concerned to wrest the right of
self-determination from an unwilling government fall within that provision,
in either case resulting in the loss of innocence and possible political pressure
on coastal States to attempt to prevent the passage? At what point, for
instance, do monitoring coastal installations and broadcasts, soundings on the
seabed or the testing of the salinity or temperature of the water amount to
the collection of information to the prejudice of the defense or security of
the coastal State, or to research or survey activities, proscribed by paragraphs
(c) and (j)? Is the towing of a military device such as a towed sonar array,
put overboard before entry into the territorial sea and taken aboard after

118 Law of Naval Operations

leaving the territorial sea, caught by paragraph (f)? And what "activities"
are comprehended by paragraph (1)?: the movement of missiles onto launchers,
or shadowing foreign submarines, or monitoring the seabed for military
devices which might be emplaced there? Do proscribed activities
automatically deprive passage of its innocence, even if there is no actual
prejudice to the peace, good order or security of the coastal State?

Here, as elsewhere in this paper, the response may be given that there was
a clear understanding at UNCLOS III as to the interpretation which is to
be given to the terms of the 1982 Convention. This is a perfectly adequate
justification for the approach taken in the Handbook, which was not drafted
as a watertight legal document but as an operational guide. But this is not
an entirely adequate response to the problem of coping in practice with the
complex underlying legal questions which might be raised by States
determined to hold to interpretations of the law diverging from those held
by the United States.

Many of the provisions of the 1982 Convention, among them article 19,
are finding their way into national legislation.41 There is a real possibility
that the interpretation of such national laws by national agencies, inevitably
colored by the canons of interpretation applied in the relevant legal systems,
may diverge from the interpretation of the 1982 Convention. Moreover,
political considerations may induce States to interpret the words of the
Convention itself in a manner different from that contemplated during the
conference which spawned it — and if the world has learned anything from
the U.S. legal system and its most skillful practitioners, it has surely learned
that an agreement may be used ruthlessly against parties who neglect to ensure
that the agreement actually says what they wanted it to say, and says no more.
Most important, the underlying argument throughout this contribution to the
debate is that States do differ in their interpretations of the law, and
consequently the law is not always so clear and precise as to produce certainty,
either concerning the rights and duties of the United States Navy or the likely
attitudes and reactions of other States to the use of their waters by United
States forces. This lack of certainty demands a certain circumspection in the
exercise of the more controversial rights. It was, after all, the vigorous
assertion by Libya of a claim to historic waters in the Gulf of Sirte, which
most States would have regarded as wholly without legal merit, which
produced fatal armed clashes with United States forces.

There are two further points concerning innocent passage to be made. The
first concerns the statement in the Handbook that innocent passage may be
temporarily suspended in specified areas of the territorial sea when this is
essential for the protection of the security of the coastal State.42 That
statement is consistent with the provisions of the conventions,43 and with the
position taken by the United States in protesting against attempts by Libya
to close certain areas of its territorial sea permanently.44 It sits less happily

Lowe 119

with State practice, which contains several examples of laws which have
purported permanently to forbid navigation in specified areas adjacent to
military dockyards and installations.45 In practice, such claims do not appear
to have given rise to international incidents; pragmatism and prudence may
have prevailed over principle.

It may seem strange to leave until last the fundamental question, whether
warships enjoy the right of innocent passage at all. The well-known
controversy over this question has been debated at length over the years since
Elihu Root, sometime Secretary of State of the United States, addressed to
the arbitral tribunal in the North Atlantic Coast Fisheries case his much-quoted
(and subsequently, no doubt, much regretted) remark concerning the
territorial sea: "Warships may not pass without consent into this zone, because
they threaten. Merchant ships may pass and repass because they do not
threaten. "^ In essence, his argument was that because warships are inherently
threatening to the coastal State they are inherently non-innocent and outside
the scope of the right of innocent passage. Many States adopt a similar
position. Nine or so require prior notification as a condition of passage, and
a further twenty-eight or so require prior authorization, the States concerned
being drawn from all the major power blocs and regions.47 This position is
not, however, the one taken by major maritime States such as the United
States and the United Kingdom, both of which assert a right of innocent
passage for warships without prior notification or authorization. Nonetheless,
few international incidents have occurred, largely because of the practice of
giving low-level and informal notice of passage on the occasions when naval
vessels are sent into the territorial seas of States requiring notification or
authorization, which may be followed by a purported "authorization" not
sought by the passing ships: such ambiguous procedures save honor on both
sides.48 Important as the controversy is as an academic matter, in practice
the world has lived more or less happily with the contradictory interpretations
of the law now for many years, and the assertion of the right of innocent
passage for warships in the Handbook49 is unlikely to upset this modus vivendi.

One of the most critical elements in the package deal worked out at
UNCLOS III was the safeguarding of rights of passage through strategic
straits and archipelagic sea lanes in return for the acceptance of extended
coastal State territorial seas and jurisdiction over the economic resources of
the seas off their coasts. The parts of the Handbook dealing with rights to transit
such waters are therefore of particular importance.

The 1982 Convention itself establishes a right of transit passage through
international straits and a substantially identical right of archipelagic sea lanes
passage through archipelagic sea lanes, which are much broader than the rights
of innocent passage enjoyed in the territorial sea.50 Transit passage and
archipelagic sea lanes passage do not depend upon a showing of "innocence;"
they include a right of overflight, which does not exist over the territorial

120 Law of Naval Operations

sea; they appear to allow submerged passage by submarines, which is
forbidden in the case of innocent passage; and they impose strict limitations
upon the regulatory competence of the coastal State over ships exercising
the rights of passage. Here the status of the 1982 Convention is of critical
importance. Iran, for example, has stated that the right of transit passage is
"contractual," existing only for parties to the 1982 Convention, and
presumably only once the Convention enters into force.51

There is little support evident for the Iranian position, and much that can
be said against it. It is not the view taken in the Handbook or by the major
maritime States. Thus, when the United Kingdom extended its territorial sea
to twelve miles in 1987, it announced, albeit without using the term "transit
passage," that rights equivalent to those established under the conventional
transit passage regime would be accorded to ships sailing through the Straits
of Dover and certain other straits around the United Kingdom.52 Moreover,
it is arguable that rights wider than the right of innocent passage existed
through international straits under customary international law even before
the adoption of the 1982 Convention. In support of this view it has been said
that transit through and overflight of certain key straits such as Gibraltar
has long been conducted in a manner which, like transit passage itself, is more
akin to high seas freedom of navigation than to innocent passage. Furthermore,
it might be said, this earlier practice offers an explanation for the rapid
acceptance of the transit passage provisions into the Law of the Sea
Convention and, perhaps more significantly, for the inclusion in the 1979
Treaty of Peace between Egypt and Israel of a right of "unimpeded and non-
suspendable freedom of navigation and overflight" for all States through the
Straits of Tiran and Gulf of Aqaba.53

Against this view it must be said that the evidence on passage through straits
is by no means always clear. For instance, in the case of the Straits of Gibraltar,
until the 1980s the United States recognized only a three mile territorial sea
and accordingly acted on the basis that there was a high seas corridor through
the strait — an assumption which, if correct, would render the exercise of
freedoms of navigation and overflight through the strait uncontroversial, and
preclude the counting of that practice towards the establishment of a right
to exercise such freedoms through straits constituted entirely by the territorial
seas of the littoral States. It should also be noted that several littoral States
have stated that they do not recognize the right of transit passage in customary
international law. The 1971 Declaration made by Indonesia, Malaysia and
Singapore is but one among many examples.54

Moreover, there are certain technical problems with the view favoring the
wider right. It is difficult to see how States such as the United States and
United Kingdom, parties to the 1958 Territorial Sea Convention which, in
article 16(4), gives merely a non-suspendable right of innocent passage
through international straits, can claim wider rights as against other parties,

Lowe 121

such as Malaysia and Spain, which border international straits. This problem
is exacerbated by the fact that the 1958 Territorial Sea Convention contains
no provision for its termination or denunciation, and the United Kingdom
has recorded the view (in relation to a purported denunciation by Senegal
of, among others, the Territorial Sea Convention) that denunciation is not
possible.55 There is, therefore, some difficulty in explaining how the parties
to the Territorial Sea Convention can escape the restrictive rights of passage
through straits which that Convention sets out.

It might be argued that only where a treaty intends to exclude wider
customary law rights can the latter be curtailed by a restrictive treaty
provision, and that this is not the case in relation to the law on passage through
straits. But the difficulty of adducing unequivocal evidence to sustain claims
to a customary law right analogous to transit passage or freedom of navigation
through international straits which pre-dates the transit passage provisions
of the 1982 Convention must cast serious doubts upon the legal validity of
such claims. The better course is to argue that the transit passage provisions
have passed into customary law since their elaboration at UNCLOS III so
as to modify the pre-existent treaty rights under the 1958 Convention, and
to seek to establish that position on the basis of State practice, including the
assertion of such rights by the United States Navy, among others.

The most plausible explanation of this process might lie in the doctrine
of desuetude, or disuse. It is said that for desuetude to operate, four
requirements must be satisfied: 1) frequently repeated violations of the treaty,

2) which are imputable to a government and not merely to individuals, and

3) which have no reasonable explanation (other than as a violation of the
treaty), and 4) which have not been negated by the protests of the injured
party.56 It is not clear, however, that the body of action and acquiescence
is yet sufficiently persuasive to justify the conclusion that the provisions of
the 1958 Convention have been swept away. It may be unwise to seek to force
modifications of treaty rights which States appear willing to accept within
any doctrinal straitjacket. The United Kingdom at one stage rejected the
validity of archipelagic baselines claimed by Indonesia, another party to the
Territorial Sea Convention, but it would now accept the validity of such
baselines drawn in conformity with the provisions of the 1982 Convention.
This position should perhaps best be seen as illustrating either the proposition
that treaty obligations can be modified, with the agreement of the parties,
by subsequent changes in customary law, or the proposition that States can
choose to waive violations of their treaty rights. Whether this should be
described as an application of the doctrine of desuetude, or as a consensual
modification of treaty rights, or as some other form of development in the
law, is less important than the fact of the change. If rights of transit passage
are asserted often enough, and are not seriously challenged, such rights will
become established in law.

122 Law of Naval Operations

If the claim is accepted that customary law includes a right similar to the
conventional right of transit passage, further problems concerning transit
passage remain. The Handbook states that the right of transit passage obtains
in "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. "57 There is nothing wrong
with that statement, which follows the wording of article 37 of the 1982
Convention. The problem lies in determining what it means in practice, and
the Handbook offers no guidance. Differences have arisen between the United
States and other States over whether a particular strait falls within the
category of "straits used for international navigation." For example, the
United States has argued that the Northwest Passage through the Canadian
archipelago is an international strait, but Canada has contested this, arguing
that the waters in question are historic internal waters through which passage
is subject to Canadian control and regulation. It might also be argued that
the volume of traffic through the strait is so small as to disqualify it from
the category of straits used for international navigation.58 In such cases the
account of transit passage given in the Handbook is of limited value: the critical
factor is the political decision on the vigor with which the United States
wishes to press its view and assert the rights which it claims in relation to
such disputed straits.

Despite the admirable clarity of the definition of transit passage in the 1982
Convention, there are difficulties in determining its precise scope, highlighted
by the manner in which the relevant rules are presented in the Handbook. The
assertion that submarines may transit submerged59 is commonly accepted,
although this right is not spelled out in the 1982 Convention. It is an inference,
albeit a reasonable one, from article 39(1 )(c) of the 1982 Convention, which
requires passing vessels to refrain from activities other than those incident
to their "normal modes of continuous and expeditious transit" which, it is
said, can only mean that submarines may transit submerged. More
troublesome is the statement that warships may engage in "formation
steaming and the launching and recovery of aircraft."60 Formation steaming
might be acceptable as a normal precaution for the security of the vessels
concerned, but the 1982 Convention is silent on the question of launching
and recovering aircraft. The right of overflight alone does not seem sufficient
warrant for such activities, which are markedly different in nature from
overflight between points lying outside the territorial sea of the littoral States,
and the justification must be found in the nature of the right of transit passage
itself. Whatever understandings may have been reached at UNCLOS III, these
aircraft rights are not included in the Convention's actual provisions, and their
validity will turn largely upon their unopposed exercise in practice,
constituting an "agreed interpretation" of the Convention for the parties and
a rule of customary law for non-parties.

Lowe 123

It should also be noted that there is some doubt as to whether it is true
in all circumstances that transit passage may not be suspended for ships
engaged in armed conflict with a third State.61 It is certainly true that the
right of transit passage does not depend upon any criterion of innocence.
However, it is stated, in article 38(3) of the 1982 Convention, that "[a]ny
activity which is not an exercise of the right of transit passage through a
strait remains subject to the other applicable provisions of this Convention."
This raises the question, what "activities" put a vessel outside the scope of
transit passage? At one extreme, it might be argued that any activity other
than continuous and expeditious transit of the strait would have this effect.
On the other hand, the duty of vessels engaged in transit to refrain from the
threat or use of force against the littoral States is not included as an element
of the definition of the right of transit passage in article 38, but as an ancillary
duty in article 39 of the 1982 Convention, thus suggesting that there are
activities other than mere transit which, though unlawful, do not deprive the
passage of its transit character. Here again, the correct interpretation of the
law will have to be constituted by State practice.

Undoubtedly, the major naval powers will choose to see transit passage
as a right close to the high seas freedom of navigation, and will tend to argue
that whatever a vessel in transit through the strait might do while it is in
transit the right of passage cannot be denied, and any complaint of unlawful
behavior must be pursued through the normal channels for settling
international disputes. Of course, a vessel not engaged in transit but, say,
deliberately stationed at anchor in the strait (the anchoring not being
incidental to its passage) would fall outside the right of transit passage; and
because it would by definition be in the territorial sea it would fall under
the rules applicable to that zone, including the rules allowing the coastal State
to use reasonable force to prevent non-innocent passage.

The foregoing remarks on transit passage apply equally to the provisions
in the Handbook concerning the right of archipelagic sea lanes passage.62 A
further problem arises from the position taken by the Philippines, which stated
on signature of the 1982 Convention that

The provisions of the Convention on archipelagic passage through sea lanes do not nullify
or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes
and do not deprive it of authority to enact legislation to protect its sovereignty,
independence, and security.

The concept of archipelagic waters is similar to the concept of internal waters under
the Constitution of the Philippines, and removes straits connecting these waters with
the economic zone or high sea from the rights of foreign vessels to transit passage for
international navigation.63

One of the main aims of the provisions on archipelagic sea lanes passage was,
of course, to "impair" the sovereignty of the littoral State, in the sense of
limiting the right of the State to impose its laws on or restrict the movements
of passing ships, and to give such ships transit rights through the major

124 Law of Naval Operations

established international seaways crossing the archipelago substantially
identical to transit passage rights; and there is no doubt that this is precisely
what the 1982 Convention does. The Philippine position appears absurd, but
it is not entirely devoid of a certain superficial plausibility. It is true that
the 1982 Convention does not detract from the rights of any State to act in
self-defense under the provisions of article 51 of the United Nations Charter,
and there is no obvious reason why an archipelagic State party to the 1982
Convention should not enact legislation to that effect, so long as it does not
attempt to regulate passage through the sea lanes in a manner inconsistent
with the 1982 Convention provisions. That said, it is difficult to believe that
the Philippine statement was seeking merely to establish this banal
proposition. It is also true that in the section of the 1982 Convention dealing
with straits, the transit passage provisions do not extend to straits connecting
the high seas or EEZ with the territorial or internal waters of a State.
Furthermore, the transit passage regime, stricto sensu, does not apply to passages
through archipelagic waters, although the provisions on archipelagic sea lanes
passage, which are very similar to the transit passage provisions, do so apply.
But again, it is hard to believe that these rather inconsequential points
motivated the Philippine statement. It is scarcely surprising that several
governments have registered forceful objections to the Philippine statement,
characterizing it as an attempt to evade the obligation to accord rights of
archipelagic sea lanes passage to foreign ships and aircraft.64 If nothing else,
the declaration offers a fine illustration of the danger of States adopting
tortured interpretations of the 1982 Convention whenever it might suit them
to do so.

Apart from the question of Flight Information Regions and Air Defense
Identification Zones, which fall outside the scope of this paper but which
have led to serious controversy in the past,65 there are three further matters
in the second chapter of the Handbook which call for comment and which
are not dealt with elsewhere in this paper: they are the establishment of closed
areas of the high seas, and certain particular problems arising in the Arctic
and Antarctic. The high seas point can be dealt with swiftly. The Handbook
states that

Any nation may declare a temporary closure or warning area on the high seas to advise
other nations of the conduct of activities that, although lawful, are hazardous to
navigation and/or overflight. . . . Ships and aircraft of other nations are not required
to remain outside a declared closure or warning area, but are obliged to refrain from
interfering with activities therein.66

Although it has sometimes been asserted that there is a right to close off areas
of the high seas temporarily, using force to prevent the entry of foreign ships,
the statement in the Handbook, based on the freedom to use the high seas with
due regard for the interests of other high seas users, seems to this writer to

Lowe 125

be as accurate as it is succinct, and to be an admirably clear expression of
the prevailing law.

The passages concerning the Arctic and Antarctic will also appear
unobjectionable to most readers. However, the view that there is a high seas
freedom of navigation and overflight on, over, and under the waters and
icepack of the Arctic would not pass undisputed by all States.67 As was
mentioned above, Canada, for instance, has claimed certain waters in the
Canadian Arctic archipelago as historic internal waters — a claim which, if
valid, would necessarily oust the high seas freedoms in the areas concerned.
Similarly, the United States position concerning Antarctica is premised upon
its refusal to recognize any of the territorial claims on that continent: such
claims have been made by Argentina, Australia, Chile, France, New Zealand,
Norway, and the United Kingdom. In practice, however, international
cooperation over the management of Antarctica has been and continues to
be remarkably successful, and there is little danger of any serious international
difficulties arising from the non-recognition of the various claims.

3. Protection of Persons and Property at Sea. From this point onwards in the
Handbook, matters become much less clear. In most cases, where "pure" law-
of-the-sea questions become enmeshed with questions concerning the legality
of the use of force to protect persons, property or rights, one is faced with
an array of possible justifications, one shading off into another so
imperceptibly that it is often of little practical value to seek to determine
the limitations of any particular justification. This is particularly true of the
right of self-defense. It must be said at this point that the present paper does
not attempt an exhaustive analysis of this unsettled area of the law. Such a
task demands a paper in itself. With that proviso, an attempt is made in the
following paragraphs to identify the main areas of controversy.

The first such area arises in the context of piracy. The Handbook gives a
plain account of the rules on the repression of piracy, adhering for the most
part to the wording of the relevant provisions of the 1958 High Seas
Convention and the 1982 Law of the Sea Convention.68 Thus, piracy is
confined to cases 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 another ship or aircraft or
persons and property on board. Specifically excluded from this definition are
cases of mutiny and passenger hijacking, which do not constitute piracy
because they do not involve acts committed by one ship or aircraft against
another.69 The definition is a matter of international law. Individual States
may choose to enact municipal legislation describing hijackings as "piracy,"
but such acts would not constitute piracy as a matter of international law
and so would not be subject to the exceptional jurisdictional rules allowing

126 Law of Naval Operations

any State to seize pirate ships on the high seas.70 This point is considered
further below.

This scrupulous adherence to the terms of international conventions breaks
down in the provisions concerning the pursuit of pirates. The Handbook states
categorically that

Pursuit of a pirate vessel or aircraft through or over international straits overlapped
by territorial waters or through or over archipelagic sea lanes may proceed with or
without the consent of the coastal nation or nations, provided the pursuit is expeditious
and direct and the transit passage rights of others are not unreasonably constrained in
the process.71

This view is probably based on the understanding that the purpose of transit
or archipelagic sea lanes passage is irrelevant to its legality, and that only
the manner of such passage is so relevant. That interpretation may draw support
from the ruling of the International Court of Justice to similar effect in the
context of innocent passage in the Corfu Channel case.72 Nonetheless, it does
not necessarily overcome the objection that pursuit may constitute an
"activity" additional to mere passage which would, under articles 39(l)(c)
and 54 of the 1982 Convention, take the pursuing ship outside the scope of
transit or archipelagic sea lanes passage. The United States view is,
presumably, that pursuit is not another "activity" and that it does not result
in the loss of transit rights. But if that be so, it is not immediately apparent
why the same claim to a right to pursue through straits and archipelagic sea
lanes is not made in the context of hot pursuit. The part of the Handbook dealing
with that topic, however, states that the right of pursuit ceases as soon as
the ship pursued enters its own or a third State's territorial sea.73 While it
may be thought that no State could wish to object to the pursuit of pirates,
as the common enemies of mankind, some coastal States may yet be jealous
of their sovereignty. If that point is unsettled, it is perfectly plain that the
pirate vessels may not be seized in or over territorial or archipelagic waters.
Such seizure would, if committed without the consent of the coastal State
concerned, undoubtedly violate that State's sovereignty, and it is unfortunate
that the Handbook does not make this clear.

As was noted above, the definition of piracy excludes mutinies and
passenger hijackings. However, as the Handbook notes in a later section,

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, U.S. citizens (whether
embarked in U.S. or foreign vessels), and their property against unlawful violence in
international waters.74

That claim, evident in the United States' action in the Achille Lauro affair,75
puts in issue the current ambit of the right of self-defense and allied rights.
Although the right to use force in peacetime to protect national flag vessels
might be well established, the use of force to protect nationals on foreign

Lowe 127

flag ships is much more controversial.76 The Handbook notes the primary
responsibility of the coastal State in internal, archipelagic and territorial
waters for the protection of all persons and vessels lawfully within its
territory, and cautions against interference with the exercise of jurisdiction
by such coastal States.77 But even in relation to action on the high seas or
in the EEZ, it is at the very least arguable that forcible action to protect
U.S. citizens on foreign flag ships cannot lawfully be taken unless the flag
State concerned has requested or consented to such use of force, or is in
violation of its duty to take all reasonable steps to secure the safety and release
of the victims, or immediate action is required to protect human life. Indeed,
those criteria are quite properly set out in the Handbook as governing the use
of force to protect foreign flag vessels and foreign persons.78

The Handbook is, understandably, somewhat reticent on the detailed rules
concerning the use of force to protect U.S. interests. It refers to the peacetime
rules of engagement, which are "carefully constructed to ensure that the
protection of U.S. flag vessels and U.S. citizens and their property at sea
conforms with U.S. and international law and reflects national policy/'79 It
may be that those rules of engagement impose strict limitations on the
circumstances in which such protection is to be forcibly asserted. Without
sight of them, there is little more that can be said by way of a critique of
the position adopted in the Handbook.

4, Safeguarding of U.S. National Interests in the Maritime Environment. The

fourth and final chapter in the part of the Law of Peacetime Naval Operations
sets out the obligations under the United Nations Charter to use peaceful
means to settle international disputes and to refrain from the threat or use
of force against the territorial integrity or political independence of States
or in any other manner inconsistent with the purposes of the United Nations,
with the exception of the right to use force in self-defense preserved by article
51 of the Charter. It also emphasizes the requirements of necessity and
proportionality which attend the use of force in self-defense.

The scope of the right of self-defense is, of course, one of the most debated
issues in contemporary international law, and the comments offered here do
not approach an exhaustive nor even comprehensive survey of the subject.
As the debate continues, the tendency is for official formulations of the
doctrine to retreat into the Delphic wisdom of the Caroline formula, and the
Handbook is no exception to this tendency. Self-defense is dealt with in three
paragraphs.80 The first sets out the right in general terms, and cites a number
of examples of protective action "premised on the broader principle of self-
defense," among them the Cuban quarantine of 1962; the second lays claim
to a right of anticipatory self defence; and the third, in effect, says that all
the important rules are to be found outside the Handbook, in the peacetime
Rules of Engagement.

128 Law of Naval Operations

The first of these paragraphs raises the question of the kinds of action
justified under the doctrine of self-defense. The Cuban quarantine focused
attention on the difficulties of using self-defense against threats which are
neither threats of the use of armed force, nor threats of immediate and
unlawful injuries to a State. Indeed, as Abram Chayes recalls in his excellent
study of the Cuban Missile Crisis, even within the United States
administration there were considerable misgivings concerning the
applicability of the doctrine in that context, and attempts were made to rest
the justification of the action on the supposed "authorization" of the action
by the Organization of American States.81 These difficulties have been
increased by the decision of the International Court in the Nicaragua case, in
which the majority (in passages open to serious criticism) appeared to hold
that the right of self-defense exists only in the face of an armed attack, and
not acts which do not amount to an armed attack.82 It is inconceivable that
the Court which delivered the Nicaragua judgment should have held the Cuban
quarantine to be a lawful exercise of the right of self-defense. The Handbook's
assertion that the quarantine "has been widely approved as a legitimate
exercise of the inherent right of individual and collective self-defense" may
be true.83 It is also true, but not stated, that the quarantine has been widely
criticized as failing to meet the requirements for the invocation of that
doctrine, and that such criticisms have received powerful support from the
Nicaragua judgment.84

It requires but little prescience to see that, post-Nicaragua, States are likely
to place greater reliance on the right of anticipatory self-defense, consideration
of which was expressly excluded from the International Court's judgment
in that case.85 Although reputable commentators have questioned the
existence of a right of anticipatory self-defense, their views are bewildering.
One wonders what, exactly, they think defense is. Certainly, the idea that
an attack must be suffered before a right of defense arises makes no sense.
It is not the preceding attack that justifies the use of force, for that would
be an essentially punitive response. The justification lies in the use of force
to ward off a continuation of the attack, or further attacks. In that sense,
the existence of an actual attack can have only an evidential role, putting
beyond doubt the hostile intent of the aggressor. But if that intent can be
otherwise established (as it must be if anticipatory action is to be lawful, since
the right is one of anticipatory self-defense, not preemptive attack), there
seems no earthly reason why the right of self-defense cannot be invoked.
Regrettably, but for obvious reasons, the Handbook does not detail the
circumstances in which hostile intent will be presumed by the United States
Navy. Such matters are dealt with in the Rules of Engagement. There is little
point in speculating on what those rules might be. However, it may be helpful
to offer three general comments.

Lowe 129

First, the Handbook follows the Caroline formula and requires that there be
a "clear necessity that is instant, overwhelming, and leaving no reasonable
choice of means."86 The word "reasonable" is important. It is difficult to
believe that Professor O'Connell was right in suggesting that "in the exercise
of sea power one must expect to sustain an initial casualty before going into
action under the cover of self-defense."87 Such an attitude towards the
determination of hostile intent cannot in all circumstances be realistic. If, for
instance, the "initial casualty" suffered by the United Kingdom in the
Falklands conflict had been one of its aircraft carriers, it is quite possible that
the British action would have had to be aborted. If losing an initial casualty
means losing the conflict, the right of self-defense can only mean that there
is a right to use force to avert the initial casualty.

Second, the difficulty of establishing proportionality in the context of self-
defense should be noted. To return to the Falklands example, the threat
presented by the General Belgrano itself to the British fleet was limited; the
threat presented by the entire Argentinian Navy was considerable. If sinking
the General Belgrano was arguably a disproportionate response to the threat
which it alone presented, could it not be argued also that the sinking was
an economical and proportionate use of force to avert the threat presented
by the entire Argentinian Navy (which did not, indeed, further threaten the
British task force after the sinking)? Proportionality would be a beautifully
clear test, if only it were clear what has to be counted in establishing the
proportions.

A third, and related, point is that the right of anticipatory self-defense may
exist in circumstances which appear close to reprisals. For example, the attack
by the United States on an Iranian oil platform on October 19, 1987, three
days after the United States merchant ship Sea Isle City had been hit by an
Iranian missile, appears at first sight to be an act of reprisal, since the attack
on the Sea Isle City (and other vessels around the same time) was over and
done with. But here, as in other circumstances where there is a "pinprick"
pattern of repeated attacks, each relatively limited in scope, it is surely
legitimate to take action in order to avert future attacks of the same kind
if (and only if) satisfactory evidence of the likelihood of future attacks can
be adduced.88

The situation in the Gulf underlines the swiftness with which States can
move from a situation of dealing with isolated violations of their rights to
outright armed conflict. One of the most important passages in this chapter
of the Handbook is the observation that, "[i]n recent years . . . the concepts
of both 'war' and 'peace' have become blurred and no longer lend themselves
to clear definition. Consequently, it is not always possible, or even useful,
to try to draw neat distinctions between the two."89 That observation is
critical to an understanding of the significance of the second part of the

130 Law of Naval Operations

Handbook, which deals with the Law of Naval Warfare, and to that part
attention will now be turned.

The Law of Naval Warfare

5. Principles and Sources of the Law of Armed Conflict Nothing which is said
subsequently must be allowed to detract from one crucial point which goes
to the very heart of the defensibility of all of this part of the Handbook. Put
simply, it is by no means clear that the traditional Laws of War retain their
validity today. This point arises clearly in chapter five, which details the
principles and sources of the "Law of Armed Conflict." The statement of
principles, based on the use of minimum force and the distinction between
combatants and non-combatants, is unremarkable. The statement of the
sources from which those principles are distilled raises one of the most
important controversies in contemporary international law.

The customary Law of War is treated with appropriate caution:

It is frequently difficult to determine the 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 warfare
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 warfare and as 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 conventions).90

It is the reference in the last sentence to treaties and conventions which gives
rise to difficulty. The' Handbook proceeds to list the principal international
agreements "reflecting the development and codification of the law of armed
conflict.,, The list is headed by certain of the Hague Conventions of 1907,91
which exemplify the traditional Laws of War. None of those Hague
Conventions has more than about one-fifth of the States which presently
constitute the world community as parties, and many of the parties have
entered reservations to parts of those Conventions; and although there are
isolated examples of States notifying in recent years the continued
applicability of some of them,92 there must be considerable doubt as to the
extent to which the Conventions represent current law.

These doubts arise from a number of specifically legal considerations (quite
apart from the doubts created by technical developments in weaponry and
from widespread failures to comply with some of the supposed rules, such
as those in the 1936 London Submarine Protocol)93 which are familiar and
can be briefly stated. First, there is the argument that since the outlawing
of the use of force by the United Nations Charter, no state of "war" can
lawfully arise. Accordingly the criterion for the applicability of the Laws
of War cannot be met, the legality of all uses of force henceforth beingjudged
by reference to the terms of the Charter. The Handbook disposes of this

Lowe 131

argument by stating that "[wjhether or not resort to armed conflict in a
particular circumstance is prohibited by the United Nations Charter (and
therefore unlawful), the manner in which that armed conflict is conducted
continues to be regulated by the law of armed conflict."94 That proposition
might command widespread assent, but does not wholly resolve the argument.
Some of the provisions of the Hague Conventions, and rather more of the
traditional customary Law of War, cannot easily be reconciled with the
Charter. For example, article 1 of Hague Convention XI concerning the right
of capture in naval war assumes the legality of the blockade of ports. On
the other hand, the United Nations has taken the view that blockade
constitutes an act of aggression, and that no consideration of whatever nature,
whether political, economic, military or otherwise, may serve as a
justification for aggression.95 Blockade could only be justified as an act of
self-defense, but in that case the requirements of necessity and proportionality
inherent in the doctrine of self-defense create substantial problems for the
interdiction of third-State shipping by means of blockade.96 Plainly, the Laws
of War must be read in the light of the Charter, and the Charter itself requires
that it prevail in the case of any inconsistency between them.97 Only uses
of force authorized by the United Nations or kept within the confines of the
right of self-defense are lawful, and the rights and duties of States under the
traditional Laws of War must be regarded as having been modified
accordingly.98

The second consideration is that the Laws of War, as will be seen, conflict
in many particulars with the rules set out in the 1958 and 1982 conventions
on the Law of the Sea.99 This conflict arises even at the most general level.
Article 88 of the 1982 Convention reserves the high seas (and, by virtue of
article 58, the EEZ) for peaceful purposes. Article 301 of the Convention
requires States using the seas to refrain 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 principles of international law embodied in the
Charter of the United Nations. The combined effect is no more, and certainly
no less, than to tie the legality of uses of the seas to compliance with the
constraints on the use of force under the Charter. The natural inference is
that the use of force, whether or not authorized under the Laws of War,
could only be lawful under the 1982 Convention to the extent that it is
justifiable under the Charter — i.e., for practical purposes in this context,
justifiable according to the rules on self-defense, embodied in article 51 of
the Charter.

This in turn raises the question whether the 1982 (or 1958) conventions apply
in case of armed conflict. While none of the 1958 conventions on the Law
of the Sea expressly so provide, it is true that the International Law
Commission, which prepared draft articles on the subject for consideration
by the Geneva Conference, intended the articles to apply in time of peace.100

132 Law of Naval Operations

The 1982 Law of the Sea Convention is similarly silent, although here, too,
it was understood that the Conference was concerned with the peacetime
Law of the Sea. If the rules on self-defense are regarded as governing all uses
of force, no problem arises, since the right of self-defense will (almost) always,
as a matter of law, allow the use of force in violation of treaty obligations.101
But if the Law of War is regarded as still operative, there arises the
considerable problem of knowing when the peacetime conventional rules are
overridden by the Law of War. This problem might be answered for practical
purposes for the U.S. Navy by the invocation of the wartime rules of
engagement,102 but this does not dispose of the legal question: might the
wartime rules of engagement, as a matter of international law, be incorrectly
invoked?

That said, it must be admitted that the United States is not alone in referring
to the old Laws of War as still operative.103

The significance of these issues can be illustrated with a single example.
The traditional Law of War allows neutral coastal States to deny belligerents
passage through the territorial sea. The 1958 and 1982 Conventions give a
right of innocent passage, and even though that right may be suspended
temporarily for security reasons, such suspension may not discriminate in fact
or form between foreign ships.104 May a coastal State deny passage to
belligerent ships, but not to non-belligerent foreign ships? If so, at what point
does the right to override the provisions of the Law of the Sea conventions
arise, in cases where there is no express declaration of war or recognition
of belligerency? Does it make any difference if either or both (or all) of the
belligerents claim to be using force in self-defense, and does it further modify
the position if the coastal State, or States generally, or the United Nations,
or the International Court, have recognized that such claims of self-defense
are legally valid? Would the coastal State's rights to suspend passage be any
different if it sought to justify its own action under the rules of self-defense —
would that permit a discriminatory denial of passage to the belligerents alone?
There are no easy answers to such questions, and no answers at all which
do not depend in large measure upon the position which is adopted concerning
the relationship of the United Nations Charter, the Laws of War, and the
peacetime Law of the Sea.

It is, moreover, apparent that there is no settled international consensus
upon what that relationship might be. The issue is rarely addressed directly,
but divergences in States' views may be inferred from their practice. To take
one further example to contrast with the approach adopted in the Handbook,
in the recent Iran-Iraq conflict, the United Kingdom clearly tied the question
of the legality of the practice of the belligerent States in visiting and searching
neutral flag merchant ships in the Persian/Arabian Gulf to article 51 of the
United Nations Charter:

Lowe 133

[UJnder article 51 of the United Nations Charter a state such as Iran, actively engaged
in an armed conflict, is entitled in exercise of its inherent right of self defence, to stop
and search a foreign merchant ship on the high seas if there is reasonable ground for
suspecting that the ship is taking arms to the other side for use in the conflict. This
is an exceptional right: if the suspicions prove to be unfounded and if the ship has not
committed acts calculated to give rise to suspicion, then the ship's owners have a good
claim for compensation for loss caused by the delay.105

The language is permeated by the essence of self-defense: the particular ship
must be suspicious; the suspicion must be one of carrying arms; and, must
be one of carrying them to the other side. The right of action is tightly bound
by the requirements of necessity and the imminence of the threat against
which the State is defending itself.

Contrast that statement with the approach adopted in the Handbook:

Visit and search is the means by which a belligerent warship or belligerent military
aircraft may determine the true character (enemy or neutral) of merchant ships
encountered outside neutral territory, the nature (contraband or exempt "free goods")
of their cargo, the manner (innocent or hostile) of their employment, and other facts
bearing on their relation to the armed conflict.106

The whole approach is quite different, the Handbook not ruling out the
systematic, precautionary visit and search of foreign merchant ships. Indeed,
the two passages illustrate what appears to be a significant difference between
the approaches of the United States and the United Kingdom. Both in the
Falklands conflict in 1982 and in its reactions to the recent Gulf conflict, the
United Kingdom has striven to avoid any recourse to the language of the
traditional Law of War or any other suggestion that those rules are applicable,
and has sought to pin all questions of the legality of armed action to the
doctrine of self-defense under article 51 of the Charter. The Handbook, on
the other hand, freely uses the vocabulary of the Laws of War and appears
to admit a considerable role for the traditional law.107 If NATO has not yet
attempted to resolve such differences, which could crucially affect the
feasibility of joint NATO action in contexts such as the Gulf conflict, it should
attach a high priority to doing so.

The remaining comments upon this second part of the Handbook must be
understood against that background. The comments are made, for the most
part, on the assumption that the United States' perception of the role of the
Laws of War is correct, although that position is not one which commends
itself to the present author, who prefers the view that those laws must be
read in light of the constraints on the use of force imposed by the United
Nations Charter.

6. Adherence and Enforcement. Chapter six of the Handbook is concerned with
the responsibility of States and individuals to comply with the Laws of War.
The most notable provisions concern reprisal, defined as "an enforcement
measure under the law of armed conflict consisting of an act which would

134 Law of Naval Operations

otherwise be unlawful but which is justified as a response to the unlawful
acts of an enemy."108 The legal status of reprisals involving the use of force
is not wholly settled. The United Nations Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations, adopted by
the General Assembly in 1970 by consensus, provides that "States have a duty
to refrain from acts of reprisal involving the use of force."109 This is difficult
to reconcile with the traditional right of belligerents to take reprisals. Perhaps
the most satisfactory justification of armed reprisals is to be gleaned from
a statement in the Handbook itself: "[t]he sole purpose of a reprisal is to induce
the enemy to cease its illegal activity and to comply with the law of armed
conflict."110 Reprisals are, on this view, emphatically not retaliatory: on the
contrary, they are essentially defensive, being aimed at the prevention of
further actions in violation of the Laws of War against the State taking
reprisals. They may be reconciled with the Charter by regarding them as
an aspect of the doctrine of self-defense,111 and accordingly they must be
confined to the action necessary to avert a real and imminent threat, and
proportionate to the magnitude of the harm threatened. The criteria for valid
reprisals given in the Handbook are consistent with the traditional rules and
with the account given here, with one exception.112 It is said that the reprisal
must be proportional to the original violation. That may be quite different
from the proportion which it would bear to the harm threatened in the future,
against which the proportionality of defensive action should be measured.
For example, the shooting down without warning of a civil aircraft known
to be carrying key enemy politicians might occur in circumstances which
make it plain that only that aircraft and the politicians on it were regarded
as a military target. There might be no threat of repetitions of the action,
and in that case "reprisals" would not be justified under article 51 of the
Charter. In fact, since the Handbook criteria specify that reprisal action must
desist as soon as the enemy is induced to desist from its unlawful activities,
this point is probably covered. Furthermore, the Handbook notes that the
United States has historically been reluctant to resort to reprisal because of
the risk of triggering retaliatory escalation, and that the National Command
Authorities alone may authorize the taking of reprisal action.113 It may
therefore be expected that the obligation to confine action taken by way of
reprisal within the limits of proportionality and necessity will be a paramount
factor in deciding upon the permissibility of any proposed reprisal action.

7. The Law of Neutrality. The most complex questions concerning the Laws
of War at sea arise in the context of what used to be called — and is still called
by the Handbook — the Law of Neutrality. Here there is a direct confrontation
between the demands or expectations of States not involved in the conflict
that they be allowed to enjoy their peacetime rights, and on the other hand

Lowe 135

the demands or expectations of the combatants that they be allowed to engage
in operations necessary for the protection of their security and their other
rights under international law. The position is complicated from the outset
by the fact that, both under the United Nations Charter and under treaties
of collective self-defense, States may be obliged to intervene in a conflict
on behalf of one of the combatant States, and to that extent neutrality is not
an option.114 However, as experience in the recent conflict between Iran and
Iraq shows clearly, there is still an important role for the institution of
neutrality.

Chapter seven of the Handbook sets out an account of the rights and duties
of neutral States, in what is for the most part a clear and concise restatement
of the traditional rules. Thus, for instance, the "24-hour rule" in Hague
Convention XIII, requiring that belligerent vessels be given a day to leave
neutral ports at the outbreak of armed conflict, and the rule limiting the
number of warships of any belligerent allowed to be in a neutral port
simultaneously (absent special legislation by the neutral State) to three, are
repeated here.115 It was noted above that there are some doubts as to the
continuing validity of these rules, and as to their applicability in a post-
Charter world. But the remaining comments on this chapter will deal with
broader issues, in which the conflict between the Law of Neutrality and
peacetime rights and duties under the Law of the Sea is most apparent.

The problem of reconciling the traditional neutral right to close territorial
waters to belligerent warships116 with the duty to suspend innocent passage
only on a non-discriminatory basis was remarked upon above, in the comments
on chapter five of the Handbook. Other problems arise in the same context.
One of the most important of these is the uncertain relationship between acts
of passing vessels which deprive them of their innocence, and acts which
violate the neutrality of the coastal State. It is not difficult to imagine
circumstances where the "mere" passage of a belligerent warship steps onto
the borderline between mere passage and the use of neutral waters as a
sanctuary or base of operations, but without prejudicing the peace, good order
or security of the coastal State. This may be true, for instance, in cases where
the duration of passage exceeds 24 hours.117 What is the coastal State to do?
It may feel obliged to apply the peacetime rule, relying upon its rights to
suspend innocent passage, to terminate non-innocent passage and to act in
self-defense in order to safeguard its rights and interests. On this basis, it may
feel obliged to permit what it regards as innocent passage. The other
belligerent may regard a more protracted passage as a violation of coastal
neutrality, and assert a right to engage in self-help enforcement actions in
cases where the neutral State cannot or will not enforce its neutrality.118

In the absence of an authoritative determination of the point at which the
peacetime rules yield to the Laws of War and Neutrality, the dangers of
disputes arising between the "neutral" and "belligerent" States (use of the

136 Law of Naval Operations

terms begs the question) is only too apparent.119 If the Laws of War and
Neutrality are to be invoked, there is no obvious solution to this problem.
If, on the other hand, the actions of combatant and neutral States are judged
by reference to the rules of self-defense, the legal significance of the transition
from peace to war is greatly reduced, and the position somewhat more certain.
The coastal State's rights remain as stated above; but the belligerents may
not use self-help in response to every uncorrected breach of neutrality, but
only in response to those breaches which threaten some immediate injury to
themselves.

The assertion of the right to engage in self-help enforcement actions is itself
controversial.120 Certainly, the judgment of the International Court in the
Corfu Channel Case suggests that forcible self-help is unlawful in international
law.121 There is, indeed, very little evidence, outside the cases of the use of
force to protect nationals (which are better regarded as instances of the use
of force in self-defense), of the international community accepting the legality
of self-help actions.122 However, the applicability of the view to cases of the
enforcement of neutral duties might be doubted. Castren, writing in 1954,
took the same view as that taken in the Handbook. He wrote that "If ... a
neutral State has neither the desire nor the power to interfere and the situation
is serious, other belligerents may resort to self-help."123 The question only
becomes relevant where combatants violate the neutrality of another State
which in turn is unable or unwilling to prevent such violation, and is therefore
unlikely to arise commonly. But if such extreme cases do arise, it seems
probable that where military considerations demand it, States will not shrink
from taking such action in self-help, no matter how dubious its legality. It
should also be recognized that in some cases justifications for action might
be made on the broad ground of self-defense.

Similar difficulties attend the attempts to justify the traditional rules on
visit and search and blockade. Exercise of visit and search interferes with
the freedom of navigation on the high seas and innocent passage through the
territorial sea. At what stage in a conflict, and in what circumstances, do
the conventional rights of visit (which, under the 1958 and 1982 Conventions,
do not extend to visit and search for the purpose of interdicting supplies to
the enemy) give way to the traditional belligerent right of visit and search?124
As was noted above, the British view appears to be that each individual
instance of visit and search must be justified as an exercise in self-defense,
whereas the Handbook appears to contemplate systematic visit and search.
Pragmatism suggests that the difficulties of determining the nature of cargoes
carried by merchant ships should tend to support a right of systematic visit
and search, but it must be admitted that this is difficult to reconcile with
the normal navigational rights of neutral States under the 1958 and 1982
Conventions (and, of course, under customary law).

Lowe 137

Associated with the question of visit and search is the troubled question
of contraband. It is often observed that because the war effort of a country
is so inextricably rooted in its general economy, the distinction between
materials which contribute to the war effort and those which do not simply
cannot be drawn with anything approaching clarity. There has been a steady
move in this century towards the extension of the category of contraband.
To speak of contraband consisting in goods "susceptible to use in armed
conflict" hardly narrows the field significantly, as those who recall the
collection of domestic saucepans and park railings for use by the armaments
industry in World War II will attest.125 And if the list of goods the export
of which has been embargoed on security grounds under the United States
Export Administration Act is anything to go by, the list of contraband goods
will be a long one.126 The Handbook specifies medicines, clothing, shelter and
food, etc., for the civilian population and sick and wounded combatants as
exempt from capture as contraband, provided there is not serious reason to
suppose that such goods will be diverted for military purposes or will release
other goods for military use and give the enemy a definite military
advantage.127 This might compromise the notion of contraband in abstract,
since all such goods can contribute to the war effort. But the humanitarian
considerations are rightly to the fore in these cases, and these are more likely
to be secured by clear statements of the goods exempt from capture than
by attempting to formulate a coherent and comprehensive definition of
contraband.

Consideration of contraband leads naturally to a consideration of blockade.
Here again, the foremost question is whether the legality of blockade must
be referred to article 51 of the United Nations Charter, or whether there
is a more general right for combatants to use this tactic. If article 51 is the
crucial provision then the blockade must be mounted against an imminent
threat — and under the rules set out in the Nicaragua case, an imminent threat
of an armed attack. Precautionary blockades of the kind used in the Cuban
Missile Crisis are not lawful. Reference of the question to the Laws of War
raises the general issue of the persistence of those rules and of the manner
in which the expectation of the continued enjoyment of freedom of navigation
and innocent passage under the 1958 and 1982 Conventions is to be
accommodated, and the determination of the point, if any, at which those
conventions are overridden by the Laws of War. That question has taken on
an added significance in the light of the International Court's ruling in the
Nicaragua case that the mining of Nicaraguan ports by the United States
infringed third States' freedom of communication and maritime commerce.128
That said, the account of blockade given in the Handbook129 is, in terms of
the traditional Laws of War, unexceptionable. There are some debatable
points, such as the old chestnuts as to whether a blockade can lawfully be
mounted by mining alone,130 and whether the prohibition in Hague

138 Law of Naval Operations

Convention VIII on the use of naval mines "with the sole purpose of
intercepting commercial shipping" in effect prohibits the use of mines for
blockade. But such questions seem devoid of substance today.131 There can
be little doubt that mines will be used for the purposes for which they are
designed, which include the interdiction of shipping bound for enemy ports,
and that such uses are unlikely to be challenged on the basis of an alleged
incompatibility with the Laws of War — although challenges might be based
on interference with the freedom of navigation established in the (peacetime)
Law of the Sea.132

The final matter for discussion in this chapter is the section on belligerent
control of the immediate area of naval operations.133 Put briefly, the Handbook
asserts a right to establish zones around naval operations from which neutral
ships may be excluded, so long as such ships are not thereby denied access
to international straits or to neutral nations, and within which neutral ships
are subject to control by the belligerent naval commander; neutral ships not
complying with orders in the zone, or engaging in activities benefitting the
enemy (such as the carriage of contraband, or communicating military
information) are liable to capture or destruction. Such zones were established
by both sides in the Second World War, but it must be noted that they are
different in nature and justification from exclusion zones of the kind
established by the United Kingdom during the Falklands conflict. The latter
did not purport to exclude neutral shipping; rather, ships therein were
regarded as operating in support of the Argentinian occupation of the islands,
and therefore hostile and liable to attack, unless the ships had obtained the
consent of the British Government to transit the zone.134 The zones were
conceived as a means of dealing with the problem of determining the "hostile
intent" of foreign ships which would justify the British Navy in using force
in self-defense: mere presence in the zone constituted prima facie evidence of
hostile intent. The legality of any action against Argentinian or other ships
would by this view still have to be judged under article 51 of the United
Nations Charter. War zones, on the other hand, claim to draw their validity
from the Laws of War, and to the extent that action is taken in them which
goes beyond the limits of lawful self-defense under article 51, their legality
must be regarded as being at best highly controversial. The crucial provisions
are likely to be found in the Rules of Engagement which supplement the
account given in the Handbook.

8. The Law of Naval Targeting

9. Conventional Weapons and Weapons Systems

10. Nuclear, Chemical and Biological Weapons

Lowe 139

11, Noncombatant Persons

12, Deception During Armed Conflict

The remaining chapters of the Handbook raise few issues relating specifically
to the Law of the Sea, and will be dealt with briefly. Chapter eight includes
a valiant attempt to salvage some sane and humanitarian rules from the 1936
London Protocol after the savagery of submarine warfare during World War
II. However, the obligation to place the crew of a merchant ship in a place
of safety before destroying it is one which favors States with large navies
at their disposal, and despite all the honorable intentions of the drafters of
the Handbook, one is left with the suspicion that this is likely to be one of
the first provisions to disappear in the downward spiral of violation and
reprisals which has characterized all the major wars this century.
Furthermore, the exceptions which the Handbook admits, allowing attack
without warning of, inter alia, armed merchant ships,135 are likely to increase
the danger to merchantmen. The arming of merchant ships may well be seen
as a necessary and prudent step at an early stage in a conflict, especially if
(as is the case in the recent Gulf conflict) merchantmen have been subjected
to surprise attacks by light surface vessels.

Chapter nine contains some interesting remarks on naval mines. Modern
influence mines do not, of course, come within the literal wording of Hague
Convention VIII, but the Handbook applies the principles enshrined in the
Convention to them by analogy. The view that controlled mines may be freely
laid during peacetime in a State's internal, archipelagic or territorial waters,
or on the high seas or EEZ (provided that they do not unreasonably interfere
with other uses of the high seas or EEZ) without notification, because they
do not constitute a hazard to navigation, is noteworthy.136

As far as international waters are concerned, this view is controversial.
It might be argued that the sowing of controlled mines constitutes a threat
of force, to be justified under article 51 of the Charter. Certainly, it is difficult
to see the mining of international waters as anything other than a preparation
for the threat or use of force, and such preparation may itself be regarded
as an unlawful threat of force under article 2(4) of the United Nations Charter,
although there may be some difficulty in identifying the State against which
the supposed threat is made. Such mining may also conflict with the peacetime
Law of the Sea. The sowing of controlled mines in the EEZ of another State
in peacetime gives rise to the argument rehearsed above concerning the extent
of third-State rights in the EEZ; and if mining is regarded as an "unattributed"
right under the 1982 Convention, the legality of which falls for decision under
article 59, it is unlikely that a claim to a right to lay controlled mines could
be supported except in cases where self-defense provides a justification. The
laying of controlled mines on the high seas, with the proviso stated in the

140 Law of Naval Operations

Handbook, may also conflict with the Law of the Sea. If the argument
concerning the breach of article 2(4) of the Charter sketched out above is
accepted, such mining would violate article 301 of the 1982 Convention, which
requires States using the seas to comply with obligations expressed in wording
which follows the terms of article 2(4). Technically, this could be important.
It might be argued that breach of article 301 allows other States to suspend
the operation of the Convention in relation to the defaulting State.137
However, even if this argument were to be accepted, it is unlikely to give
States rights against the defaulting State which they would not otherwise
enjoy under the doctrine of self-defense, the right to prevent non-innocent
passage, and so on.138

These objections have little force in relation to the mining of a State's own
waters, since laying controlled mines may be seen as a defensive measure
which the State is entitled to take. Any such mines must not in fact constitute
a hazard. If there is any real risk of injury to shipping from a controlled mine,
once the mine is armed, notification would be necessary. Mines could,
moreover, only be sown in a manner which did not have the practical effect
of denying to foreign ships such rights of passage as they might have in the
waters in question.

Sowing armed mines is a different matter. Coastal States are certainly
entitled to mine their own waters, subject to the duty to notify their location
and not to hamper the exercise of the right of innocent passage except
temporarily and in limited areas for security reasons. Mining international
waters is a different matter. The International Court in the Nicaragua case
characterized the mining of Nicaraguan ports as an infringement of the
freedom of communications and of maritime commerce, and condemned the
failure to notify the existence of the minefields as a breach of the principles
of humanitarian law.139 It did not decide that the use of mines in peacetime
as a measure of self-defense is per se unlawful. The statement in the Handbook
that international waters may be mined before the outbreak of armed conflict
only under the most demanding requirements of individual or collective self-
defense, and subject to prior notification of the location and the anticipated
date of removal, appears justifiable. Indeed, the tone of the passage in the
Handbook is markedly more restrained than an earlier State Department paper
on the subject.140 If the threat or use of force implicit in the mining is justified
on the grounds of self-defense, prior notification is given, and the areas mined
are not so extensive or so important to third-State navigation as to amount
to an unreasonable restraint on the freedom of navigation, then the mining
of international waters should be regarded as a lawful use of the high seas.

The account of the legal limitations on mining in wartime, which follows
closely the terms of Hague Convention VIII, is not controversial.141 It will
be noted that the Handbook regards the emplacement of nuclear mines on the

Lowe 141

seabed beyond the territorial sea as prohibited by the Seabed Arms Control
Treaty.142

By the time the lawyer gets to chapter ten, which deals with weapons with
an unusual potential for causing indiscriminate and unnecessary suffering, he
or she is likely to feel that the time for legal debate is fast drawing to an
end. Experience of the wars since 1945 offers little encouragement to those
who try to preserve in war at least the basic moral and humanitarian values,
in whose name so many wars are fought. The prohibitions on the first use
of lethal chemicals, and the use of biological weapons, are soberly recited,
as is the prohibition on the targeting of civilian populations with nuclear
weapons. The latter, in particular, will warm the hearts of those who find
the targeting of enemy cities with long-range nuclear missiles morally
repugnant and legally indefensible. The legality of the use of nuclear weapons
against enemy combatants is, however, affirmed. Apart from expressing the
fervent hope that these provisions remain of academic interest, and that some
thought has been given as to ways of preserving in practice the distinction
between combatants and noncombatants in nuclear exchanges, there is little
that the lawyer can add.

Concluding Remarks

This paper has concentrated on the Law of the Sea in peacetime, because
that is still the law most commonly relevant. Before closing, the central point
made in relation to the section of the Handbook on the Law of War should
once more be emphasized. The very idea that the Laws of War, in particular
the eighty-year old Hague Conventions, remain binding is one which is open
to serious doubt. The principles which underlie those laws and conventions
no doubt remain valid, but there is much to be said for the view that there
should be but one section in this Handbook, on the Law of the Sea, and that
all questions concerning the use of armed force should be referred to the rules
on the use of force and self-defense embodied in the United Nations Charter.
The choice between these two approaches appears to be open, and the law
unclear. The final decision in practice, which will in turn yield the
authoritative answer in law as to which of the two is correct, lies in the hands
of those in the United States and elsewhere who write and implement
handbooks such as that reviewed here. Their practice will constitute the new
customary law. As a matter of policy there is much to be said for the certainty
and predictability which the detail of the Laws of War inject into armed
conflict, minimizing the risk of unwanted escalations of the use of force. But
there are problems in reconciling them with the Charter and with the
peacetime Law of the Sea, and those problems must be attended to. Peace
is fragile enough without the opening up of a body of law outside the Charter
to which States may appeal when the constraints of article 51 do not suit

142 Law of Naval Operations

them. The Handbook is an excellent starting point for the task of revising the
Laws of War to bring them in line with contemporary law and contemporary
warfare. That task is an urgent one.

Notes

* Faculty of Law, Cambridge University, United Kingdom.

1. U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations, NWP 9
(Washington: 1987) [hereinafter referred to as the Handbook], superseding U.S. Department of the Navy,
Law of Naval Warfare NWIP 10-2 (Washington: 1955).

2. Handbook, supra note 1, p. 27.

3. See further A. V. Lowe, "Do General Rules of International Law Exist?", Review of International Studies,
v. 9, pp. 207-213 (1983) and id., v. 10, pp. 183-87 (1984); Theodore Stein, "The Approach of the Different
Drummer: The Principle of the Persistent Objector in International Law," Harvard International Law Journal,
v. 26, pp. 457-82 (1985).

4. See the 1958 Convention on the Territorial Sea and Contiguous Zone, United Nations Treaty Series,
v. 561, p. 205, and the 1982 United Nations Convention on the Law of the Sea, U.N. Pub. Sales No.
E.83.V.5, article 7; cf Anglo-Norwegian Fisheries Case, [1951] I.C.J. Reports, p. 116. The Conventions may
hereafter be referred to as the Territorial Sea Convention and the 1982 Convention respectively. References
to the 1958 Conventions are to the legal regime established in the Territorial Sea Convention, the 1958
Convention on the High Seas, United Nations Treaty Series, v. 450, p. 82, and the 1958 Convention on the
Continental Shelf, United Nations Treaty Series, v. 499, p. 311.

5. Handbook, supra note 1, par. 1.3.2.

6. Handbook, supra note 1, par. 1.3.2.

7. G. Francalani, et al. (eds.), Atlas of the Straight Baseline Part I: Article 7 of the Convention of the United
Nations on the Law of the Sea (Milan, 1986).

8. See Francesco Francioni, "The Gulf of Sidra Incident (United States v. Libya) and International
Law ," Italian Yearbook of International Law , v. 5, pp. 85-109 (1980-81); and see generally "Symposium on Historic
Bays of the Mediterranean," Syracuse Journal of International Law and Commerce, v. 11, pp. 205-415 (1984).

9. Handbook, supra note 1, par. 1.3.3.1.

10. [1951] I.C.J. Reports, p. 116, at pp. 138-39. Cf. L.F.E. Goldie, "Historic Bays in International Law,"
Syracuse Journal of International Law and Commerce, v. 11, p. 211, at pp. 222-23 and passim (1984).

11. Territorial Sea Convention, supra note 4, article 24; 1982 Convention, supra note 4, article 33.

12. See A. V. Lowe, "The Development of the Concept of the Contiguous Zone," British Yearbook of
International Law, v. 52, p. 109 (1981); Sir Gerald Fitzmaurice, "Some Results of the Geneva Conference
on the Law of the Sea," International and Comparative Law Quarterly, v. 8, p. 73 (1959). Contra, S, Oda, "The
Concept of the Contiguous Zone," id., v. 11, p. 131 (1962).

13. United States v. Taiyo Maru, 395 F.Supp. 413 (M. D. Maine 1975), American Journal of International Law,
v. 70, pp. 138, 549, 554 (1976). The District Court for the District of Maine held that "[although Article
24 only affirmatively recognizes the right of a coastal State to create a contiguous zone for one of the
four enumerated purposes, nothing in the Article precludes the establishment of such a zone for other
purposes, including the enforcement of domestic Fisheries law." 395 F.Supp. at 419.

14. United States v. Gonzalez, lib F.2d 931 (11th Cir. 1985), American Journal of International Law, v. 80,
p. 653 (1986). The United States Court of Appeals for the Eleventh Circuit held that foreign nationals
on foreign ships outside the U.S. territorial sea could be prosecuted by the United States "under the
'protective principle' of international law . . . which permits a nation to assert jurisdiction over a person
whose conduct outside the nation's territory threatens the nation's security or could potentially interfere
with the operation of its governmental functions" and that "there is no fixed rule among the customs
and usages of nations which prescribes the limits of jurisdictional waters other than the rule of
reasonableness, that a nation may exercise authority upon the high seas to such an extent and to so great
a distance as is reasonable and necessary to protect itself and its citizens from injury." 776 F.2d at 938-
39 [citations omitted].

15. See U.S. Department of State, Office of the Geographer, National Maritime Claims 1958-1985
(Washington: 1985), p. 25.

16. Handbook, supra note 1, par. 1.5.4. But see note 14 supra.

17. Supra note 15. The Geographer lists the following States as claimants to security zones: Bangladesh,
Burma, Cambodia, Haiti, India, Pakistan, Sri Lanka, Vietnam and Yemen (Aden). Cf. Handbook par. 2.4.4.

18. Handbook, supra note 1, par. 1.5.2.

Lowe 143

19. See Handbook, par. 4.3.1, where it is said that, "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" in the waters beyond the territorial sea; and par. 2.4.2, where it is said that since such high
seas rights exist, "the existence of an exclusive economic zone need not, of itself, be of operational concern
to the naval commander. " See further, e.g., Horace B. Robertson, Jr., "Navigation in the Exclusive Economic
Zone," Virginia Journal of International Law, v. 24, p. 865 (1984).

20. United Nations, Office of the Special Representative of the Secretary-General for the Law of the
Sea, Law of the Sea Bulletin, No. 5 (New York: 1985), pp. 6-7, 8, 24.

21. Par. 9.2.2 of the Handbook regards the sowing of controlled mines in the EEZ as permissible so
long as this does not unreasonably interfere with the interests of other high seas users.

22. See A. V. Lowe, "Some Legal Problems Arising from the Use of the Seas for Military Purposes,"
Marine Policy, v. 10, p. 171 (1986); Barbara Kwiatkowska, "Military Uses of the EEZ — a Reply," id., v.
11, p. 249 (1987); A. V. Lowe, "Military Uses in the EEZ— a Rejoinder," id., p. 250. Since the latter
exchange, the Government of Uruguay has confirmed that my interpretation of its position set out in
the rejoinder to Dr. Kwiatkowska is correct. Letter from the Ambassador, Embassy of the Oriental
Republic of Uruguay, London, August 18, 1987. See also the materials cited supra note 19.

23. United States Statement made in exercise of the right of reply, March 8, 1983, UNCLOS III Official
Records, v. XVII, pp. 243-44. Cf, statements made by the Federal Republic of Germany and Italy. Id.,
pp. 240-41, 241-42, respectively.

24. Handbook, supra note 1, par. 1.8; 1982 Convention, supra note 4, article 76. The actual position is
rather more complicated, as article 76 and Annex II to the Final Act of UNCLOS III make clear.

25. Handbook, supra note 1, par. 1.8. Antarctica is "territory not subject to the sovereignty of any nation,"
at least in the view of the United States.

26. See the report to the Council of the International Civil Aviation Organization, United Nations
Convention on the Law of the Sea: Implications, if any, for the Application of the Chicago Convention, its Annexes
and Other International Air Law Instruments, ICAO Doc. No. C-WP/8077, October 1, 1985, pars. 10, 29. The
Report is reprinted in International Organizations and the Law of the Sea: Documentary Yearbook, v. 1, 1985
(London/Dordrecht/Boston, 1987), p. 310.

27. Report to the Council of the International Civil Aviation Organization, supra note 26, pars. 26-
33.

28. The Handbook, supra note 1, par. 2.5.2, states that "[mjilitary aircraft may engage in flight operations,
including ordnance testing and firing, surveillance and intelligence gathering" over the EEZ, a formula
which touches upon Brazilian views on both military uses of the EEZ and overflight rights, and which
might be argued to be subject to the "article 59" conflict resolution procedure under the 1982 Law of
the Sea Convention. See supra text at note 20.

29. Handbook, supra note 1, pars. 2.1, 2.2; High Seas Convention, supra note 4, articles 8, 9; 1982
Convention, supra note 4, articles 29, 32, 96.

30. Handbook, supra note 1, par. 2.1.2.1.

31. U.S. Department of State, Office of the Geographer, National Maritime Claims: 1958-1985
(Washington: 1985), p. 10. That report does not list Spain as making special provision for the passage
of nuclear-powered ships, but Spanish Act No. 25/64, April 29, 1964, article 7, stated that the passage
of nuclear-powered ships through the territorial sea was to be considered an exception to the right of
innocent passage. See translation of the Act reprinted in United Nations, United Nations Legislative Series,
U.N. Doc. ST/LEG/SER.B/16, p. 45.

32. Handbook, supra note 1, par. 2.3.1.

33. Text reprinted in International Legal Materials, v. 24, p. 1440 (1985) and United Nations, Law of the
Sea Bulletin, No. 6 (New York: 1985), p. 24. The Treaty entered into force on December 11, 1986.

34. See J. C. Woodliffe, "Ports Visits by Nuclear Armed Naval Vessels: Recent State Practice,"
International and Comparative Law Quarterly, v. 35, p. 730 (1986); Hisakazu Fujita, "The South Pacific Nuclear
Free Zone Treaty and the Anti-nuclear Policy of New Zealand," Kansai University Review of Law and Politics,
v. 8, p. 1 (1987).

35. 1982 Convention, supra note 4, articles 22, 23, 41, 42, 54.

36. For the 1958 definition, see Territorial Sea Convention, supra note 4, article 14(4).

37. Handbook, supra note 1, par. 2.3.2.1.

38. South African Maritime Traffic Act, No. 2 of 1982, section 8, as amended by the Maritime Traffic
Amendment Act, No. 5 of 1983. The automatic deprivation of innocence would be difficult to justify
under any interpretation of the law. International law requires actual, not "deemed," prejudice to the
peace, good order or security of the territorial State.

39. A good example occurred in Panama. General Noriega is reported to have "accused the United
States of escalating its aggression against Panama by sending the helicopter carrier Okinawa through the
Panama Canal. A U.S. spokesman said the ship's journey was routine, but General Noriega claimed that

144 Law of Naval Operations

U.S. military intervention was imminent." "Noriega Stands on Panama's 'dignity,' " The Independent
(London), March 31, 1988, p. 6. The status of the waters is different, but the principle is the same.

40. Territorial Sea Convention, supra note 4, article 16(1); 1982 Convention, supra note 4, article 25(1).

41. For enactments of the provisions on innocent passage, see the law of France (Decree No. 85/185,
reprinted in United Nations, Law of the Sea Bulletin, No. 6 (New York: 1985), p. 14) and Southern Yemen
(Act No. 45 of 1977 concerning the Territorial Sea, Continental Shelf and other Marine Areas, reprinted
in United Nations Legislative Series, National Legislation and Treaties Relating to the Law of the Sea, ST/LEG/
SER.B/19 (New York: 1980), p. 21). Cf, the 1984 Soviet Rules for Navigation and Sojourn of Foreign
Warships in the Territorial Waters (Territorial Sea) of the U.S.S.R. and the Internal Waters and Ports
of the U.S.S.R., reprinted in International Legal Materials, v. 24, p. 1715 (1985).

42. Handbook, supra note 1, par. 2.3.2.3.

43. Territorial Sea Convention, supra note 4, article 16(3); 1982 Convention, supra note 4, article 25(3).

44. See the Communication transmitted to the Permanent Missions of the States Members of the United
Nations at the request of the Permanent Representative of the United States to the United Nations, July
10, 1985 (Reference NV/85/11), reprinted in United Nations, Law of the Sea Bulletin, No. 6 (New York:
1985), p. 40, where it is stated: "International law does not permit a coastal State to subject an area of
its territorial sea to a permanent prohibition of navigation."

45. See, e.g., Decree of 10 October 1951 concerning the Territorial Sea and Internal Waters of the
People's Republic of Bulgaria (article 8), reprinted in United Nations Legislative Series, Laws and Regulations
on the Regime of the Territorial Sea, ST/LEG/SER.B/6 (New York: 1957), p. 80; Decree No. 39 of January
28, 1956, concerning the regulation of the regime of territorial waters of the Republic of Romania (article
5), id., p. 238. See also the Soviet Law on the State Frontier, November 24, 1982 (article 17), reprinted
in United Nations, Law of the Sea Bulletin, No. 4 (New York: 1985), p. 24; and the Soviet Rules for Navigation
and Sojourn of Foreign Warships in the Territorial Waters (Territorial Sea) of the U.S.S.R. and the Internal
Waters and Ports of the U.S.S.R., supra note 41, at p. 1717.

46. North Atlantic Coast Fisheries Arbitration, Proceedings, v. II, p. 2007.

47. The figures are taken from United States Department of State, Office of the Geographer, National
Maritime Claims: 1958-1985 (Washington: 1985), p. 10.

48. See D. P. O'Connell, The Influence of Law on Sea Power (Manchester: Manchester University Press,
1975), p. 140.

49. Handbook, supra note 1, par. 2.3.2.4.

50. 1982 Convention, supra note 4, articles 37-44, 53-54.

51. United Nations, Law of the Sea Bulletin, No. 5 (New York: 1985), p. 42.

52. House of Lords, Parliamentary Debates, v. 484, col. 382, February 5, 1987.

53. Treaty of Peace between the Arab Republic of Egypt and the State of Israel, reproduced in
International Legal Materials, v. 28, p. 362 (1979). For academic argument on the point, see e.g., W. Michael
Reisman, "The Regime of Straits and National Security: An Appraisal of International Lawmaking,"
American Journal of International Law, v. 74, p. 48; John Norton Moore, "The Regime of Straits and the Third
United Nations Conference on the Law of the Sea," id., p. 77; D. P. O'Connell, The International Law
of the Sea (Oxford: Oxford University Press, 1982), v. I, chapter 8.

54. Reproduced in Robin Churchill & Myron Nordquist, New Directions in the Law of the Sea (Dobbs
Ferry, N.Y.: Oceana Publications, 1975), v. IV, p. 330.

55. See the British letter of January 2, 1973, to the Secretary General of the United Nations, quoted
in United Nations, Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1985, U.N.
Doc. ST/LEG/SER.E/4, p. 682. The Law of the Sea Convention does provide for denunciation, on one
year's written notice (article 317). See G. M. White, "UNCLOS and the Modern Law of Treaties," in
W. E. Butler, (ed.), The Law of the Sea and International Shipping: Anglo-Soviet Post-UNCLOS Perspectives (New
York/London/Rome: Oceana Publications, 1985), p. 15, at pp. 29-31.

56. See Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), p. 518.

57. Handbook, supra note 1, par. 2.3.3.1. Note the qualifications, which follow the provisions of articles
35, 36 and 45 of the 1982 Convention, in pars. 2.3.3.1, 2.3.3.2, and 7.3.5. The qualifications are not entirely
comprehensive. Article 38(1) of the 1982 Convention excepts from the transit passage regime straits formed
by the mainland and an offshore island of a state if there is a high seas or EEZ route of similar convenience
seaward of the island, and article 35(c) preserves the validity of long-established treaty rules governing
international straits, such as those in the 1921 Convention on the Non-Fortification and Neutrality of
the Aaland Islands (League of Nations Treaty Series, v. IX, p. 212), the 1940 Finland-Soviet Union Agreement
on the Demilitarization of the Aaland Islands (United Nations Treaty Series, v. 67, p. 139), the 1857 Treaty
of Copenhagen (C. Parry, (ed.), Consolidated Treaty Series, v. 116, p. 357), and the 1881 Argentina-Chile
Boundary Treaty, id., v. 159, p. 45), in addition to the 1936 Montreux Convention on the Turkish Straits
(League of Nations Treaty Series, v. 173, p. 213) which alone is cited in the Handbook.

Lowe 1 45

58. See T. L. McDorman, "In the Wake of the Polar Sea," Marine Policy, v. 10, p. 243 (1986). Similar
problems have arisen in relation to passage through controversial straits in the Soviet Arctic. See W. E.
Butler, The Northeast Arctic Passage (Aalphen and den Rijn: Sijthoff & Nordhoff, 1978), passim.

59. Handbook, supra note 1, par. 2.3.3.1.

60. Id.

61. Id.

62. Id., par. 2.3.4.1.

63. United Nations, Law of the Sea Bulletin No. 5 (New York: 1985), p. 19.

64. See objections made to the Philippine declaration by the following: Byelorussian Soviet Socialist
Republic, reproduced in United Nations, Law of the Sea Bulletin, No. 6 (New York: 1985), p. 9;
Czechoslovakia, id., p. 10; Ukranian Soviet Socialist Republic, id., pp. 11-12; Union of Soviet Socialist
Republics, id., pp. 12-13; Bulgaria, id., No. 7 (New York: 1987), pp. 7-8.

65. See, e.g., the controversy over the Greek Flight Information Region in Institute for Political Studies,
The Status Quo in the Aegean (Athens: undated), pp. 14-15; association of Journalists, The Aegean Realities . . .
Istanbul: undated), pp. 23-26.

66. Handbook, supra note 1, par. 2.4.3.1.

67. Id., par. 2.4.5.1.

68. Id., pars. 3.4 to 3.4.3.2. Cf, High Seas Convention, supra note 4, articles 14-22; 1982 Convention,
supra note 4, articles 100-07, 110.

69. Handbook, supra note 1, par. 3.4.2.4.

70. See Patricia W. Birnie, "Piracy: Past, Present and Future," Marine Policy, v. 11, p. 163 (1987). Note,
for example, that the hijackers of the Achille Lauro were sought by the United States on charges of, inter
alia, piracy. See the critical discussion of these charges in Dr. Birnie 's paper. Id., p. 177.

71. Handbook, supra note 1, par. 3.4.3.2.

72. Corfu Channel Case, Judgment of April 9, 1949, [1949] I.C.J. Reports, p. 4.

73. Handbook, supra note 1, par. 3.9. This accords with article 23 of the High Seas Convention and
article 111 of the 1982 Law of the Sea Convention.

74. Handbook, supra note 1, par. 3.11.1.

75. See J. P. Pancracio, "L'affaire de VAchille Lauro et le Droit International," Annuaire Francaise de Droit
International, v. 31, p. 221 (1985).

76. See, e.g., Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on
Grounds of Humanity (Boston: Martinus Nijhoff Publishers, 1985); C. J. Greenwood, "International Law
and the United States Air Operation Against Libya," West Virginia Law Review, v. 89, p. 933 (1987), and
references therein.

77. Handbook, supra note 1, par. 3.11.1.1.

78. Id., par. 3.11.2. The position is rather different if the foreign flag ships are in a United States convoy.
It is arguable that an attack on any ship is an attack on the convoy itself, so justifying the use of force
in se/f-defense by the United States warships.

79. Id., par. 3.11.1.

80. Id., pars. 4.3.2. to 4.3.2.2.

81. Abram Chayes, The Cuban Missile Crisis (Oxford: Oxford University Press, 1974), pp. 15, 108-09
and passim. The present writer shares the view of Professor Henkin, annexed to the Chayes study at p.
149, that the "authorization" of the quarantine by the Organization of American States was not an adequate
legal justification for it. The justification must be found in article 51 of the United Nations Charter, if
it is to be found anywhere.

82. [1986] I.C.J. Reports, p. 12, at pp. 92-94, 109-11. See the criticisms made by Judge Schwebel, at
pp. 347-48, with which the present writer has much sympathy.

83. Handbook, supra note 1, par. 4.3.2.

84. Objections need not be based on a reading of article 51. The British Government, questioned on
its attitude to the mining of Nicaraguan ports by the United States, replied, "[W]e are committed to
the principle of freedom of navigation and deplore the mining of Nicaraguan ports." House of Commons,
Parliamentary Debates, v. 58, col. 470, April 13, 1984.

85. [1986] I.C.J. Reports, p. 12, at p. 93.

86. Handbook, supra note 1, par. 4.3.2.1.

87. D. P. O'Connell, The Influence of Law on Sea Power (Manchester: Manchester University Press, 1975),
p. 83.

88. This was the basis of British support for the action. "[I]t is our view that the action taken by
the United States on 19th October was entirely justifiable in exercise of their right of self-defence in
the face of the imminent threat of future attacks." House of Lords, Parliamentary Debates, v. 490, col. 724,
November 25, 1987. The statement would have held closer to the Caroline formula if it had referred to
"the threat of imminent attacks."

146 Law of Naval Operations

89. Handbook, supra note 1, par. 4.1.

90. Id., par. 5.4.1.

91. Hague Convention (IV) Respecting the Laws and Customs of War on Land, Consolidated Treaty
Series, v. 205, p. 227; Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land, id., p. 299; Hague Convention (VIII) Relative to the Laying of Automatic
Submarine Contact Mines, id., p. 331; Hague Convention (IX) Concerning Bombardment by Naval Forces
in Time of War, id., p. 345; Hague Convention (X) for the Adaptation to Maritime War of the Principles
of the Geneva Conventions, id., p. 360; Hague Convention (XI) Relative to Certain Restrictions with
Regard to the Exercise of the Right of Capture in Naval War, id., p. 367; and Hague Convention (XIII)
Concerning the Rights and Duties of Neutral Powers in Naval War, id., p. 395.

92. For instance, notifications of the continued application of Hague Convention VIII (on Automatic
Submarine Contact Mines) were made by Fiji in 1973 and South Africa in 1978.

93. See D.P. O'Connell, The Influence of Law on Sea Power (Manchester: Manchester University Press,
1975), pp. 44-52, 92-96.

94. Handbook, supra note 1, par. 5.1.

95. See articles 3 and 5 of the United Nations General Assembly Resolution 3314 (XXIX) on the
Definition of Aggression, General Assembly, Official Records, 29th Session, Supp. 21, reprinted in American

Journal of International Law, v. 69, p. 480 (1975). The resolution was adopted by consensus, without a vote.

96. See remarks of the International Court of Justice in the Nicaragua case. [1986] I.C.J. Reports, p.
12 at p. 112.

97. U.N. Charter, article 103.

98. For an interesting example of an argument recasting the requirements of the Hague Conventions
(Convention VIII, on Automatic Submarine Contact Mines) in the light of the Charter, see U.S. Department
of State, Use of Naval Mines in the Exercise of Self Defense (Washington: April 13, 1984).

99. The major conflicts are listed in a paper entitled, "The Impact of the Law of the Sea on Naval
Warfare," presented by the present writer to the Preliminary Round Table of Experts on International
Humanitarian Law Applicable to Armed Conflicts at Sea, San Remo, Italy, June 15-17, 1987, printed in
Syracuse Journal of International Law and Commerce, v. 14, pp. 657-87, (1988).

100. United Nations, International Law Commission, Yearbook of the International Law Commission 1956,
v. II (New York: 1957), p. 256.

101. There are exceptional cases, concerning the rules of humanitarian law, where this is not true.

102. Handbook, supra note 1, par. 5.5.

103. See Judgment of the International Court of Justice in the Nicaragua case, [1986] I.C.J. Reports, p.
12 at 112 (reference to Hague Convention VIII); and the Swedish declaration on signature of the 1982
Law of the Sea Convention, reproduced in United Nations, Law of the Sea Bulletin, No. 5 (New York:
1985), p. 22 (reference to Hague Convention XIII).

104. Territorial Sea Convention, supra note 4, article 16(3); 1982 Convention, supra note 4, article 25(3).

105. House of Commons, Parliamentary Debates (Weekly Hansard), v. 90, col. 428, January 28, 1986. The
statement was repeated verbatim in response to a further Parliamentary question in 1988. Id., v. 127, cols.
425-26, February 15, 1988.

106. Handbook, supra note 1, par. 7.6.

107. This position is by no means confined to the Handbook. See, e.g., U.S. Department of State, Special
Report No. 166, U.S. Policy in the Gulf (Washington: July 1987), passim.

108. Handbook, supra note 1, par. 6.2.3.

109. United Nations, General Assembly, Resolution 2625 (XXV).

110. Handbook, supra note 1, par. 6.2.3. An alternative explanation might be that reprisals in the context
of armed conflict belong to the body of law concerning Unfriendly Relations and Non-Cooperation among
States, and are not addressed by the Declaration.

111. See Robert W. Tucker, "Reprisals and Self-Defense: The Customary Law," American Journal of
International Law, v. 66, p. 586 (1972).

112. Handbook, supra note 1, par. 6.2.3.1.

113. Id., par. 6.2.3.3.

114. Id., par. 7.2.1,7.2.2.

115. Id., par. 7.3 2, 7.3.2.1.

116. Id., par. 7.3 4.1 to 7.3.6.

117. Id., par. 7.3 4.1.

118. Id., par. 7.3.4.

119. See Correspondence between His Majesty's Government in the United Kingdom and the Norwegian Government
respecting the German Steamer "Altmark" (London: His Majesty's Stationery Office, 1950), Cmd. 8012.

120. See, e.g., Julius Stone, Legal Controls of International Conflict (London: Stevens & Sons, Ltd., 1954),
pp. 400-01 [hereinafter referred to as "Stone"].

Lowe 1 47

121. Corfu Channel Case, supra note 72, p. 35.

122. See, e.g., the comments of Christopher J. Greenwood, "International Law and the United States'
Air Operation against Libya," West Virginia Law Review, v. 89, p. 933, at pp. 952-53 (1987).

123. Erik Castren, The Present Law of War and Neutrality (Helsinki: Suomalaisen Tiedeakatemian
Toimituksia, 1954), p. 442.

124. High Seas Convention, supra note 4, article 22; 1982 Convention, supra note 4, article 110.

125. Handbook, supra note 1, par. 7.4.1.

126. See, e.g.,]. P. Murphy and A. T. Downey, "National Security, Foreign Policy and Individual Rights:
The Quandary of U.S. Export Controls," International and Comparative Law Quarterly, v. 30, p. 791 (1981).

127. Handbook, supra note 1, par. 7.4.1.2.

128. [1986] I.C.J. Reports, p. 12 at p. 112. Curiously, the Court referred in the same place to Hague
Convention VIII as if it were still operative "in time of war," although this comment was unaccompanied
by any reasoning on the question and should be treated cautiously.

129. Handbook, supra note 1, pars. 7.7 to 7.7.5.

130. Ingrid Detter Delupis, The Law of War (Cambridge: Cambridge University Press, 1987), p. 268,
asserts that the answer is no, but the authority which she cites (Hague Convention VIII, article 8) does
not support her view.

131. Stone, supra note 120, p. 585, footnote 89, says of the latter question, "The incongruity in the
contemporary context of the Convention's attempt to prevent the use of mines off the enemy's coast
'with the sole object of intercepting commercial navigation,' is a measure of the inevitable obsolescence
in 1953 of any convention which could have been drawn up in 1907."

132. Note that the Soviet and Chinese objections to the mining of Haiphong were based on interference
with the freedom of navigation under the 1958 High Seas Convention, and not on alleged violations of
the Hague Conventions or Laws of War. D. P. O'Connell, The Influence of Law on Sea Power (Manchester:
Manchester University Press, 1975), p. 95.

133. Handbook, supra note 1, pars. 7.8, 7.8.1.

134. For the relevant declarations, see House of Commons, Parliamentary Debates, v. 21, col. 1045, April
7, 1982 (Maritime Exclusion Zone); id., v. 22, cols, 296-97, April 28, 1982 (Total Exclusion Zone); id.,
v. 27, col. 235, July 22, 1982 (Falkland Islands Protection Zone).

135. Handbook, supra note 1, pars. 8.2.2.2.

136. Id., par. 9.2.2.

137. See Vienna Convention on the Law of Treaties, article 60.

138. Article 60 of the Vienna Convention on the Law of Treaties allows unilateral suspension of a
convention only in limited cases — essentially, where a State is specially affected by the breach, or the
breach radically changes the position of all parties. Otherwise, suspension requires the unanimous
agreement of all parties.

139. [1986] I.C.J. Reports, p. 12, at p. 112.

140. U.S. Department of State, Use of Naval Mines in the Exercise of Self Defense (Washington: April 13,
1984).

141. Handbook, supra note 1, par. 9.2.3.

142. Id., par. 10.2.2.1.

148 Law of Naval Operations

Chapter VI
Neutrality

by
Mark W. Janis*

Neutrality, at least as a legal concept, existed neither in antiquity nor during
the Middle Ages.1 It may well be that some international practice hardened
into a customary law of neutrality in the 18th and 19th centuries, a
development owing much to the theory and practice of the United States,2
but the traditional legal edifice, structurally uncertain at the best of times,
was badly shaken by the contrary usages of the 20th century's two world
wars and nowadays, in terms of practice, the neutrality laws have sunk into
a condition of "chronic obsolescence."3 In terms of theory, article 2(4) of
the Charter of the United Nations makes war technically illegal,4 and, there
being neither formal "belligerents" nor "neutrals," the "rights and duties
of the old law of neutrality have terminated with the Charter."5

What, then, to make of Chapter 7 of the new Commander's Handbook on
the Law of Naval Operations: "The Law of Neutrality?"6 There are good
English-language accounts of the traditional rules of the law of neutrality
in the treatises of Oppenheim,7 Colombos,8 and O'Connell.9 A thoroughgoing
account of the history of neutrality is to be found in Jessup's impressive four
volumes.10 The Commander's Handbook means to give a brief rendition of the
traditional law.11 How might it do better? Three ideas come to mind.

First, the Commander's Handbook ought to acknowledge that modern
international theory and practice rarely deal with "belligerents" and
"neutrals" in their traditional senses. Virtually every paragraph of Chapter
7 makes reference to "belligerents" and the introductory wording that "it
has become increasingly difficult to determine with precision the point in
time when hostilities have become a 'war' and to distinguish belligerent
nations from those not participating in the conflict" only makes matters
worse.12 The point is that doctrine and practice no longer try to decide what
is formally "war" and what is formally "peace." There are simply conflicts
between nations which involve the use of force and/or economic sanctions.
These conflicts usually entangle third states more or less uninterested in the
outcome, but hopeful of remaining on friendly terms with both sides in the
dispute. These third states are what we still call "neutrals," but they are no
longer "neutrals" in the context of the traditional rules.

Janis 149

Second, Chapter 7 ought to abandon its more or less unskeptical treatment
of the traditional law of neutrality. Its approach seems to be grounded on
the commentary of observers like O'Connell and Baxter who have argued
that, in theory at least, the old law of neutrality may still come into play
if the United Nations fails to act at a time of armed conflict.13 But this is
a minority point-of-view. Most commentators agree that the technical
abolition of "war" has also technically abolished the old laws of neutrality.
Quincy Wright, for example, refutes Baxter simply and plainly: [Neutrality
in principle cannot exist."14 Kussbach writes: "It seems clear that the rules
of international law concerning neutral trading are applicable only when the
state of neutrality itself is called into being, i.e., when a state of war exists."15

Moreover, whatever the outcome of the doctrinal debate about the legal
effect of the U.N. Charter, even the most energetic proponents of the
traditional elaboration must admit that there is little in modern practice to
substantiate their theoretical preference. O'Connell himself observes
respecting blockade (a topic which, along with its related rules respecting
contraband and visit and search, absorbs most of Chapter 7's attention):
"There has been practically no experience of blockade since 1945 to test the
matter."16 More realistically, Admiral Miller, dating the demise of traditional
blockades to the uniform practice of the two world wars, has argued that
it makes little sense to cling in theory to out-moded rules when "a new look
is required at the legal framework by which the community seeks to regulate
the conflict."17 And McNulty makes good sense, not only about the rules of
blockade specifically but about the laws of neutrality in general, when he
writes about the legal and practical climate after 1945:

In point of fact, it seems ludicrous to contemplate the possibility of any meaningful
observance of the "legal" code of blockade in the current or predictable state of political
reality. It is clear that the rules of blockade came into existence solely to protect the
ordinary sea commerce of neutrals and to regulate the circumstances under which such
trade could be interrupted. The rules derive out of a 19th century legal regime — a regime
oriented toward regulating the conduct of states in war and peace. But modern
international law, of which blockade is a part, no longer seeks to regulate war but to
prevent its occurrence.18

Looking to recent events, Lauterpacht sees little modern practice of a
traditional neutral-belligerent sort. In the Vietnam and Yemen conflicts, for
example, there was no attempt "to require states not immediately involved
to adopt positions of 'neutrality'."19 And Norton, in a very helpful 1976
survey,20 concludes that "[r]ecent armed conflicts have provided little cause
to invoke the maritime rights and duties of the law of neutrality."21 Looking
at the United Nations naval blockade of North Korea in the Korean War
and the Kuomintang blockade of the Communist Chinese, he decides the first
"was only of marginal significance" because the North Korean supply routes
were overland,22 while the second was futile because the naval powers rejected
it for being ineffective.23 Norton does find three examples of visit and search:

150 Law of Naval Operations

Egypt's contraband system through the Suez Canal in the 1948 and 1956 Arab-
Israeli wars, India's and Pakistan's contraband lists in their 1965 conflict, and
France's searches of merchant ships in the Algerian War of Independence.24
But he concludes that all three visit and search cases are "anomalous" since
in France's case, "the rights were improperly invoked" and in the other two
cases "the belligerents relying upon these rights had virtually no navies and
therefore could only apply them to neutral vessels coming within the
belligerents' own waters."25

In the Iran-Iraq war there has been a case made that traditional neutral
rights and duties are still at stake. Shortly after the war began in September
1980, both Iran and Iraq declared war or "exclusion" zones.26 Iraq's only major
oil port was destroyed early in the fighting and it developed over-land pipeline
routes, but Iran continued to rely on shipping oil. Beginning in 1984, Iraq
began to strike at Iranian shipping and Iran at third country shipping,
especially shipping of Iraq's friendly neighbors; altogether between 1984 and
1987, Iraq attacked 234 ships and Iran 163 ships.27 Iran has also visited and
searched a large number of ships in the Gulf.28 Beginning in 1987, Iran mined
shipping lanes in the Gulf.29 Employing traditional law of neutrality concepts,
it has been argued that:

[T]he Persian Gulf belligerents, particularly Iran, have systematically violated the
rights of neutral shipping. Nonbelligerent merchant vessels that are engaged in neutral
commerce may not be attacked indiscriminately, as Iran has been doing.30

On the other hand, it has been pointed out that whether such shipping is
"neutral" or not depends on how you decide the question of whether a
country, such as Kuwait, whose vessels are attacked, is truly a non-belligerent
when the country is a direct financial supporter of Iraq.31 Furthermore,
looking to the United Nations Charter and to the protection of reflagged
Kuwaiti tankers by the United States, Professor Henkin has argued:

In the Gulf, some spokesman said recently, the United States remains formally neutral.
But even if the concept of neutrality can still apply in some cases, can the United States
be neutral here? No one would accuse us of being a friend of Iran, but there is a strong
case that Iraq is probably the aggressor. No one has mentioned that for some years now.
It is true that the Security Council refrained from so holding, in part because the United
States would not have permit [sic] it, or because the Russians would not permitted [sic]
it. That raises some questions, but that doesn't change the law. In the absence of a
Security Council determination that one party was the aggressor, do the laws of the
Charter not apply? In the absence of such a finding by the Security Council, are states
free to be neutral even if it is clear that one side had launched the war in violation
of the Charter?. . . .

Is Kuwait neutral, or is it, as the first speaker suggested, perhaps a co-belligerent?
Is the United States supporting Kuwait, and, if so, are we also co-belligerents? If so,
we may be not only supporting the aggressor — but if the old laws of war apply — we
also may be violating the laws of war.

I suggest we may not only have slipped into the war but, from the international
lawyer's point of view, we seem to have slipped into a particular position on international
law without much thought about it and without any thought to the long-term

Janis 151

consequences. In fact, we seem to be taking seriously the outdated laws of war, but
not the contemporary law against war. In the process we may have eroded both. At
least, it cannot be said that the law on neutrality and belligerency is what it was before
1945.32

This is not to say that rules about neutrals might no longer be useful, only
that a rendition of the traditional rules, whether they be read in full in
Oppenheim or Colombos or in brief in the Commander's Handbook, no longer
either describes practice or easily comports with theory. I agree that the object
of the neutrality exercise should remain much what Chapter 7 says it ought
to be: "to localize war, to limit the conduct of war on both land and sea,
and to lessen the impact of war on international commerce."33 But a faithful
account of antique rules is simply not a realistic way to proceed.

Take, for example, the 1962 United States quarantine of strategic arms to
Cuba. As Miller points out, "the United States could have declared war on
Cuba, established a blockade, or announced lists of contraband items; although
undoubtedly, many would have cried that the declaration of war, itself, was
violative of article 2(4) of the U.N. Charter. ',34 Rather, because "traditional
'blockade' implies and requires a state of belligerency or war, the United
States did not seek to justify the quarantine as a blockade. There was no
assertion of a state of war or belligerency."35 Instead, the United States
fashioned the quarantine as a regional security action under the Rio Treaty
and in accord with article 53 of the U.N. Charter.36 It might also have been
justified as an exercise of a country's right of self-defense pursuant to Charter
article 51. 37 In any case, the quarantine fell short of full-scale armed conflict.
Indeed, the interference was intended to help establish a level of international
conflict well below that of traditional legal "war" or the "war" more or
less technically abolished by the United Nations' Charter.

If my second proposition is right, that given the doctrinal quandaries and
practical problems besetting the "shadowy existence" of the law of
neutrality,38 the Commander's Handbook does not give that subject that "certain
measure of scepticism" which most observers feel it deserves,39 what is to
be done? Booth has suggested that since "[w]ar is rarely declared ... it is
incumbent upon military organizations ... to make officers conversant with
the background to the general rules of law governing military operations short
of war."40 My third proposition is that Chapter 7 ought to explain that
whatever we do have for rules respecting neutrality, even when they are
invoked, they fall short of being the same sort of international law that is
described in some other parts of the Commander's Handbook. Looking, for
example, at the law about "Legal Divisions of the Oceans and Airspace,"41
"International Status and Navigation of Warships and Military Aircraft,"42
and "Protection of Persons and Property at Sea,"43 one sees, in my opinion,
a much "harder" law than one observes reviewing the law of neutrality. It
is, I think, unrealistic to assume that all international law is of the same

152 Law of Naval Operations

certainty or of the same legally binding effect. To do so casts unwarranted
shadows of uncertainty and ineffectiveness on the more successful forms of
the law of nations.

It was John Austin, the English legal positivist, who wrote in 1832:

[T]hat the law obtaining between nations is not positive law: for every positive law
is set by a given sovereign to a person or persons in a state of subjection to its
author. . . . [T]he law obtaining between nations is law (improperly so called) set by
general opinion. The duties which it imposes are enforced by moral sanctions: by fear
on the part of nations, or by fear on the part of sovereigns, of provoking general hostility,
and incurring its probable evils, in case they shall violate maxims generally received
and respected.44

As early as 1836, international lawyers were having to cope with Austin's
critique of their discipline as being merely a form of morality.45 And, although
some are satisfied as to the law-like quality of international law, others are
doubtful. H.L.A. Hart, for example, in a modern reformulation of legal
positivism, argues that international law is more like primitive law than like
municipal law because international law lacks "the formal structure of ... a
legislature, courts with compulsory jurisdiction and officially organized
sanctions. . . ."46

However, neither Austin's nor Hart's nor most other general
jurisprudential characterizations of international law pay particular attention
to the diversity of international law. That is, most discussions of the problems
of the certainty and efficacy of international law assume that there is a system,
uncertain and ineffective though it may be, of international law and suppose
that there is something like a single general integrated, if not hierarchial,
international legal process. Reality is otherwise.

Various forms of international law vary along what might be called a
"structural spectrum," there being "a great variety of international legal
systems, some more structured than others."47 In some of its forms, for
example, the system regulating nuclear weapons, international law may be
so unstructured in terms of both rule-specificity and rule-enforcement as to
be, at best, a sort of Hart's so-called "primitive law."48 In some other of its
emanations, for example, the systems pertaining to the European Economic
Community and to European Human Rights Law, international law may be
so well-structured in terms of rule-specificity and rule-enforcement as to be
virtually as "hard" as any ordinary domestic law.49

Given the diversity of international legal systems, we should assume that
there will be differences in the certainty of their rules and the efficacy of
their enforcement processes. In analyzing the relationships between law and
society, Max Weber, at the turn of the century, defined "law" as "an order
system endowed with certain specific guaranties of the probability of its
empirical validity."50 Weber's necessary "guarantees" for law are more
sophisticated than Austin's necessary "sovereigns" for law. Weber wrote of

Janis 153

a "coercive apparatus, i.e., that there are one or more persons whose special
task it is to hold themselves ready to apply specially provided means of
coercion (legal coercion) for the purpose of norm enforcement. " The coercive
apparatus" may use psychological as well as physical means of coercion and
may operate directly or indirectly against the participants in the system.51
Weber's conceptual framework is, I submit, a more useful and realistic way
to understand the nature and diversity of international law than the theories
provided by Austin and Hart.

Looking back to neutrality, it is helpful to remember that "the rules of
neutrality are products of two forces pulling in opposite directions, the final
result being determined by the relative bargaining power of the parties."52
This is not a promising circumstance, either for the elaboration of certain
rules or for the efficacious enforcement of those rules. Indeed, in great wars,
whether they be the Napoleonic Wars or the World Wars, the legal system
of neutrality has been apt to collapse altogether.53

It may be that there will be periods of time, such as that between 1815
and 1914, when, because of the conditions of international politics, there will
be a sufficient consensus to generate generally accepted rules and a coercive
apparatus for a law of neutrality.54 Moreover, even in times of uncertainty
and inefficacy, there may be occasional authorities which will pronounce an
illegality under the law of neutrality.55 However, for the most part, the rules
respecting "neutrality" or what Fenwick preferred to call "non-
participation"56 will be rules tailor-made to fit particular conflicts and will
neither be norms of general specificity nor will they be enforced by a coercive
apparatus comparable to that available for "harder" forms of international
law.

Notes

* Professor of Law, University of Connecticut.

1. L.Oppenheim, International Law, 5th ed. (London: Longmans, Green, 1935), v. 2, pp. 492-493
[hereinafter cited as "Oppenheim"].

2. Philip C. Jessup, "Diversity and Uniformity in the Law of Nations," American Journal of International
Law, 1964, v. 58, pp. 344-345. James Kent, Commentaries on American Law, 2d ed. (New York: O. Halsted,
1832), v. 1, pp. 47-179.

3. Neill H. Alford, Jr., Naval War College International Law Studies 1963 Vol. 56, Modern Economic Warfare
{Law and the Naval Participant) (Newport, R.I.: Naval War College, 1967), p. 326.

4. Elihu Lauterpacht, "The Legal Irrelevance of the 'State of War,' " Proceedings of the American Society
of International Law , 1968, pp. 62-63.

5. C.G. Fenwick, "Is Neutrality Still a Term of Present Law?" American Journal of International Law,
v. 63, p. 102 (1969) [hereinafter cited as "Fenwick"].

6. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, NWP 9, 1987 (Newport:
1987), pp. 7-1 to 7-12 [hereinafter cited as Commander's Handbook].

7. Oppenheim, supra note 1, at pp. 492-738.

8. Constantine J. Colombos, The International Law of the Sea, 4th rev. ed. (London: Longmans, 1959),
pp. 562-760.

9. Daniel P. O'Connell, The International Law of the Sea, (Oxford: Clarendon Press, 1984), v. 2, pp. 1141-
1158 [hereinafter cited as "O'Connell"].

154 Law of Naval Operations

10. Philip C. Jessup and Francis Deak, Neutrality: Its History, Economics and Law: Vol. 1, The Origins (New
York: Octagon Books, 1935); W. Alison Phillips and Arthur H. Reede, Neutrality: Its History, Economics
and Law: Vol. II, The Napoleonic Period (New York: Octagon Books, 1936); Edgar Turlington, Neutrality:
Its History, Economics and Law: Vol. Ill, The World War Period (New York: Octagon Books, 1936); Philip
C. Jessup, Neutrality: Its History, Economics and Law: Vol. IV, Today and Tomorrow (New York: Octagon Books,
1936).

11. Commander's Handbook, supra note 6 at pp. 7-2 to 7-12; The doctrinal bulk of the traditional law is
enormous. The Harvard international law reference catalogue dealing with "neutral" topics runs to 73
pages. Harvard Law School Library, Catalog on International Law and Relations (Cambridge, Mass., 1966),
v. 14, pp. 8-80.

12. Commander's Handbook, supra note 6 at par. 7.1.

13. O'Connell, supra note 9, at pp. 1141-42; R.R. Baxter, "The Legal Consequences of the Unlawful
Use of Force Under the Charter," Proceedings of the American Society of International Law, 1968, p. 73.

14. Quincy Wright, Proceedings of the American Society of International Law, 1968, p. 79; and see Lauterpacht,
supra note 4, and Fenwick supra note 5.

15. Erick Kussbach, "Neutral Trading," Encyclopedia of Public International Law (Amsterdam: North-
Holland, 1982), v. 4, p. 9.

16. O'Connell, supra note 9 at p. 1154. Virtually all of O'Connell's evidence of neutrality in general
is pre-1945.

17. William O. Miller, "Belligerency and Limited War," Richard B. Lillich and John N. Moore, eds.,
Naval War College International Law Studies, Vol. 62, Readings in International Law from the Naval War College
Review 1947-1977 (Volume II of Readings) (Newport, R.I.: Naval War College, 1980), p. 168.

18. James F. McNulty, "Blockade: Evolution and Expectation," id., p. 180.

19. Lauterpacht, supra note 4 at pp. 59-60.

20. Patrick M. Norton, "Between the Ideology and the Reality: The Shadow of the Law of Neutrality,"
Harvard International Law Journal, Spring 1976, v. 17, p. 249 [hereinafter cited as "Norton"].

21. Id. at p. 302.

22. Id. at pp. 302-03.

23. Id. at pp. 303-04.

24. Id. at pp. 304-06.

25. Id. at p. 306.

26. David L. Peace, "Major Maritime Events in the Persian Gulf War," paper presented at the 82d
Annual Meeting of the American Society of International Law, April 21, 1988, p. 3.

27. Id. at pp. 4-5.

28. Id. at pp. 6-8.

29. Id. at pp. 13-16.

30. Id. at pp. 17-18.

31. McNaugher, "The Evolution of U.S. Policy in the Persian/Arabian Gulf," Council on Ocean Law
and The Law of the Sea Institute, Transcript of an Evening Panel Discussion on the Persian/ Arabian Gulf Tanker
War: International Law or International Chaos, January 26, 1988 [hereinafter cited as "Transcript"], at pp.
1,2.

32. Louis Henkin, "Commentary," Transcript, supra note 31, at 8, 9-10.

33. Commander's Handbook, supra note 6, par. 7.1.

34. Miller, supra note 17 at pp. 169-170.

35. Leonard C. Meeker, "Defensive Quarantine and the Law," American Journal of International Law, v.
57, p. 515 (1963).

36. Id. at pp. 516-524.

37. See Carl Q. Christol and Charles R. Davis, "Maritime Quarantine: The Naval Interdiction of
Offensive Weapons and Associated Material to Cuba," American Journal of International Law, v. 57, p. 525
(1963).

38. Norton, supra note 20, at p. 310.

39. Yoram Dinstein, Encyclopedia of Public International Law (Amsterdam: North-Holland, 1982), v. 4, p.
27.

40. Ken Booth, Law, Force and Diplomacy at Sea (London: George Allen & Urwin, 1985), p. 200.

41. Commander's Handbook, supra note 6 at pp. 1-1 et seq.

42. Id. at pp. 2-1 et seq.

43. Id. at pp. 3-1 et seq.

44. John Austin, The Province of Jurisprudence Determined (London: John Murray, 1832; reprinted ed.,
Birmingham, Alabama: The Legal Classics Library, 1984), p. 208.

45. Henry Wheaton, Elements of International Law with a Sketch of History of the Science (Philadelphia: Carey,
Lea & Blanchard, 1836; reprinted ed., New York: Da Capo Press, 1972), p. 47.

Janis 155

46. H.L.A. Hart, The Concept of Law (Oxford University Press, 1961), pp. 209, 226.

47. Mark W. Janis, "Do Laws Regulate Nuclear Weapons?," Istvan Pogany, ed., Nuclear Weapons and
International Law (New York: St. Martin's Press, 1987), p. 60.

48. See id. at pp. 53-54, 59-61.

49. Mark W. Janis, An Introduction to International Law (Boston: Little, Brown, 1987), pp. 229-30; Mark
W. Janis, "International Courts and the Efficacy of International Law," Connecticut Journal of International
Law, 1987, v. 2, p. 261.

50. Max Weber, Law in Economy and Society (New York: Clarion; Rheinstein & Shills trans., 1954), p.
13.

51. Id. at p. 13.

52. Nils Orvik, The Decline of Neutrality 1914-1941, with Special Reference to the United States and the Northern
Neutrals, 2d ed. (London: F. Cass, 1971), p. 13.

53. Id. at p. 16.

54. A good account is in Holland, "Neutral Duties in a Maritime War," 1905-1906 Proceedings of the
British Academy, p. 55.

55. For example, in the 1982 Falkland/Malvinas conflict, the United States Court of Appeals for the
Second Circuit found Argentina guilty of violating international law for "attacking a neutral ship in
international waters, without proper cause for suspicion or investigation." Amerada Hess Shipping Corp.
v. Argentine Republic, 830 F. 2d 421, 424 (2d Cir. 1987), reversed 109 S.Ct. 683 (1989).

56. Fenwick, supra note 5 at p. 102.

156 Law of Naval Operations

Chapter VII
Maritime War Zones & Exclusion Zones

by
L.F.E. Goldie*

Q

I. Introduction

uestions of legality apart, nations' experience of maritime war zones
or exclusion zones has demonstrated the utility of these juridical/
strategic devices for both offensive and defensive purposes.1 For example, in
World War I and in World War II both sides created prohibited war zones
for offensive reasons. On the other hand, in the Russo-Japanese War (1904-
1905), the Japanese Government created defensive war zones.2 Similarly, both
Argentina and the United Kingdom created what each belligerent claimed
to be its defensive war zones in the Falklands ("Malvinas") Islands Conflict
of 1982. 3 States declare maritime exclusion zones offensively when they seek
to interdict shipping into a target state or port in order to embargo that
country's trade, especially its trade in war materiel and food. They declare
them defensively when they seek to interdict shipping, or selected types of
shipping (for example, warships and merchant ships carrying military
supplies, or acting as auxiliary naval ships), from entering approaches to the
territory they are defending from invasion.

With regard to offensively-oriented naval exclusion zones, the Commander's
Handbook on the Law of Naval Operations (Naval Warfare Publication 9)4
correctly points out that, while the traditional rules of blockade required a
"relatively 'close-in' cordon of surface warships stationed in the immediate
vicinity of the blockaded area,"5 the contemporary development of weapons
and tactics creates a situation which cannot be reconciled with this means
of enforcement. NWP-9 continues:

The so-called long-distance blockade of both World Wars departed materially from
those traditional rules and were justified instead upon the belligerent right of reprisal
against illegal acts of warfare on the part of the enemy.6

NWP-9 also points out the difficulties, indeed, impossibilities, of an in-
shore blockade in light of modern weapon systems and platforms,
"particularly nuclear-powered submarines, supersonic aircraft, and cruise
missiles."7

Goldie 157

Without committing itself as to whether contemporary methods and
weapons for waging war at sea have brought about legal change in the context
of the offensive use of restricted or prohibited war zones, NWP-9 concludes
its discussion of this topic with the observation that:

The [United States] blockade of Haiphong and other North Vietnamese ports [was]
accomplished by the emplacement of mines, [and] was undertaken in conformity with
traditional criteria of establishment, notification, effectiveness, limitation, and
impartiality.8

While the mining of the North Vietnamese harbors may have observed
some of the traditional, maritime, siege-type, requirements of blockade,9 and
complied with Hague Convention (VIII) Relative to the Laying of Automatic
Submarine Mines10 it did not entirely meet the traditional requirements of
a close-in blockade since a blockading fleet "within visual range of the coast"11
was not constantly present outside those ports. Indeed, the system of "Market-
Time" (which related only to the coast of South Vietnam) apart, the United
States tended to rely on the air arm as well as on surface warships (under
Operation "Sea Dragon") for purposes of blockading North Vietnam.12 Also
the use of floating mines activated by such agencies as sound and vibration
was not in compliance with Hague Convention VIII.

When reviewing the resort to maritime exclusion zones as instruments for
justifying attacks against unarmed merchant ships, this paper will examine
the strategies of the proclaiming states asserting rights to establish such zones.
While both defensively and offensively used exclusion zones are instruments
for logistical strategies,13 that is, strategies directed to the denial of supplies,
reinforcements, and replacements to the enemy, these may be conducted in
terms of either "persisting" and "holding" or alternatively "raiding"
strategies.14 It will be a further thesis of this paper that to establish maritime
exclusion zones merely for the purpose of implementing raiding strategies,
whereby power is exercised not by the maintenance of control but by
indicating an intention to engage in adventitious attacks on random shipping,
is invalid. In addition, such a strategy involves a politically contradictory
posture. Since the assumptions underlying policies of establishing exclusion
zones include the need for effectiveness and persistence, the fortuitous nature
of zones enforced only by raiding strategies reveal them as being only
haphazardly enforced. Simply to enforce a zone at random times and engage
in random attacks arises from the lack of an essential ratio of power to space
and time which the sufficient mastery of the area and effective exclusion of
the enemy require. Such a result can only be achieved by a persisting strategy.
This calls for an adequate ratio of power to space and time such that control
of the area can be completely assured. In addition to the issues of the strategies
involved (that is, offensive/defensive; logistical/combat; raiding/persisting)
there are, of course, other variables that need to be borne in mind: the

158 Law of Naval Operations

reasonableness of the zone both in size and in relation to the object(s) the
proclamation(s) seek to achieve; its effectiveness in terms of contemporary
weapons technology; and proportionality both in terms of the ratio of force
to space and time and in terms of enforcement and sanctions.

This chapter will review, first, the legality or illegality of prohibited or
exclusion zones in terms of persisting and raiding strategies, that is, resort
to either or both strategies in order to deny the enemy's access to the economic
resources; and, secondly, in terms of such zones when they are resorted to
for defensive persisting strategies which reflect their use "as a moat defensive
to a house".15 In this latter mode, the commander's object is to exclude the
enemy's shipping from an ocean area on the presumption that the excluded
ships may otherwise attack the state through, or across, the proclaimed zone.
In all cases where these strategies are used, the issue of military utility, targets,
and means and methods will be treated as essential to the analysis.
Furthermore, the importance of the principle of distinction and of the
obligation to respect non-participating, neutral shipping, will be stressed. This
final criterion is variable and dependent on a number of factors such as the
geographical location of the zone proclaimed, the density and quantity of the
traffic affected, and the geographical extent of the hostilities.

In the pages that follow a considerable emphasis will be laid on the use
of maritime prohibited zones for purposes of carrying out, or attempting to
carry out, logistical strategies. But, while there are possibly more striking
examples of this (that is, logistical) use of the zones under review, it must
be stressed that the zones are used for defensive and offensive combat
strategies as well. In this latter (combat) connection they can be useful as
adjuncts, rather like the use of mine fields on land or sea by an attacking
force. Their function, in this last scenario, is that of diverting an adversary
into a "killing ground."

II. A Review of State Assertions of Maritime Exclusion
Zones in Times of War or Armed Conflict

A. The Russo-Japanese War, 1904-05

The investigator today, seeing the proliferation of exclusionary zones in
conflicts which have arisen from very divergent and disparate circumstances,
may be surprised that there was little cavil regarding what has been
denominated as the earliest declaration of such a zone. In the Russo-Japanese
War, 1904-05, Japan established maritime defense zones which Hall described
in the following terms:

Prior to the outbreak of war with Russia, the Japanese Government empowered the
Minister of Marine, or the Commander-in-Chief, ... to designate certain areas
adjacent to the islands of the Japanese Empire as "Defense sea areas." . . . On and after

Goldie 159

the outbreak of war twelve or more of such areas were notified, the boundaries of which
in some cases ran as far as ten miles from land.16

In enforcing these defensive zones by its persisting holding strategy, the
Japanese Government evinced an adequate ratio of force to both time and
space. This effectiveness enabled that country's naval forces to seize and
condemn, as prize of war, the neutral French ship Quang-Nam on the ground
of her presence within the prohibited area.17 In addition to stressing the
historical and legal importance of the Japanese Navy's persistently maintained
and effective defense zones, note should aiso be taken of the establishment,
in the Russo-Japanese War, of an early forerunner (created by the necessity
of a then contemporary technological innovation of radio) of the 1982 British
Moving Defensive Area (or "Bubble") concept18 for the protection of her
forces in the South Atlantic against both attack and intelligence-gathering.
In the earlier conflict, namely the Russo-Japanese War, the British ship
Haiman had been fitted with a DeForest wireless telegraph apparatus. She
also had a representative of the Times of London on board. Messages were
sent over this apparatus in cypher to Wei-Hai-Wei (at that time a British
possession on the Shantung Peninsula of China and located close to the sea
areas where both belligerents were conducting their naval operations). These
messages were transmitted to London over a neutral cable and thus were
available for newspaper publication.

The Haiman was visited several times by Japanese warships and once by
the Russian cruiser Bayan. She was instructed not to engage in broadcasting
naval operations. Subsequently, however, as a result of the concerns of
Admiral Alexieff, the Russian authorities in the Far East promulgated, on
April 5, 1904, an instruction to the effect that correspondents broadcasting
within the zone of operations of the Russian fleet should be treated as spies.
The severity of the sanction imposed in the promulgation was adversely
criticized in the British House of Commons. In the House there was general
agreement that the Russian Admiral and the Czar's Viceroy in the Far East
should, rather, have had recourse to the remedies for unneutral service
(confiscation of the ship, her cargo, etc.), rather than accusing and punishing
the offender for the capital crime of espionage19 even if the correspondent
had been found, contrary to the tenets of his profession, to be transmitting
information to the Japanese authorities. It should be noted, however, that
the debate only criticized the threat to resort to the extreme penalty, and
did not question the authority of both fleets to restrict news gathering and
dissemination on the high seas, despite neutrals' expectations that the
belligerents would respect their journalists' right to enjoy those freedoms.
Clearly, the belligerents' encroachments on the neutral states' privileges were
acceptable, provided they remained reasonable and balanced as between the
interests in play. On the other hand, Admiral Alexieff remained unmoved

160 Law of Naval Operations

by the neutrals' protests. Hence, the Russian position, since it threatened the
extreme sanction of death (probably by hanging),20 rather than the penalty
appropriate for non-neutral service, should be treated as failing the
reasonableness and proportionality tests.

After declaring war on Germany in April 1917, the United States issued
orders similar to the Japanese 1904 regulations. They controlled navigation
in defined areas and around named American ports. These were maintained
by an effective persistent holding and defensive strategy, despite the fact that,
at some points the distance of the circumference of an area from a given center
was as far as ten miles21 (a similar distance to that in the Japanese orders).
Regarding these orders, Hall observed that:

The Japanese and American orders were based on the principle of defense, and it appears
to be on such a principle that claims to establish war zones or areas of the high seas
from which neutrals may be excluded can be supported. The legitimacy in any given
case must be determined by circumstances.22

Hence it may be asserted that exclusionary zones created purely for
defensive purposes, and provided they are persistently maintained and
rendered effective by virtue of the ratio of power to space and time, and
carry proportionate sanctions for breach, have for some time now, come to
have been approved by the international community. This approval is testified
to by the lack of protest or resistance to both the Japanese and American
proclamations and an agreement among publicists that they fall within the
test of reasonableness.23 But today the types of exclusion zones calling for
legal analysis involve more complex methods and tactics for enforcement,
cover far larger sea areas, and are established for many more diverse ends
than was the case with these early and relatively modest and straightforward
forerunners.

B. World War I, 1914-18 and The Interwar Period

In World Wars I and II prohibited zones were set up by both sides for
the purpose of staging a ruthless and almost effective aggressive logistical
strategy.24 Their objects were to blockade the enemy to bring him to his knees
by starvation and the denial of war materiel. This is, of course, the complete
opposite of the resort to exclusion zones for defensive purposes by the Japanese
in 1904-05. As has already been pointed out, both of the blockades of World
War I were denounced as illegal by their target (enemy) states. Indeed, while
certain limited forms of maritime exclusion zones have, in recent years, been
increasingly achieving recognition as lawful, in the period of the two World
Wars and the interval between, only those maritime zones which were modest
as to purpose and strictly limited as to area (such as those established by Japan
in 1904 and the United States in 1917) were accepted as lawful. Hence the
German unrestricted submarine warfare in the North Atlantic and the Anglo-

Goldie 161

American "Starvation Blockade" were claimed to have been justified by their
executants as constituting appropriate reprisals. Indeed, it should be noted
that the accepted doctrine and practice regarding belligerent reprisals has long
been predicated on the otherwise unlawfulness of the conduct constituting
the reprisal. That conduct becomes justified only by the previous unlawfulness
of the adversary's original act. Despite its intrinsic illegality, the act of reprisal
is claimed to be justified as a sanction against that prior illegal act and becomes
legitimate as a means of putting pressure on the target state to desist from
continuing in its prior unlawful conduct.25

The maritime exclusion zones created by the belligerents started with the
stigma of unlawfulness mitigated only by the previous unlawfulness of the
adversary's conduct giving rise to the drastic response of resorting to reprisals.
Neither party, however, claimed that new weapons and tactics had given rise,
as a matter of necessity, to the emergence of a customary norm justifying
their prohibited zones. Furthermore, each side argued that the other's reprisal
(that is, maritime exclusion zone) was illegal even as a reprisal.26 In addition,
an assertion of customary international law justification would, most
probably, have been met with outrage and derision by the neutral states
(which, down to April 2, 1917, included the United States of America). But
the purpose of this chapter is to learn whether, since 1918, subjects of the
international legal order have come to recognize, as customary international
law, and aside from the very questionable arguments based on reprisals, at
least some maritime prohibited zones which are established in time of war.
Such an inquiry calls for the substantiation of criteria for establishing the
validity of certain of these tactical and strategic devices. The point of referring
to justifications predicated on reprisals was to indicate merely that neither
party, and especially the United Kingdom, was prepared to risk that its policy,
if failing the test of legality on the basis of the emergence of a customary
norm, would draw upon itself the stigma of illegal conduct based on a spurious
argument. But nowadays such arguments in terms of reprisals are, in light
of emerging customary norms, largely anachronistic.

(1) Traditional Blockade — A Time-Honored Logistical Strategy
Revisiting the older and well established rules, the investigation which
follows will begin with reviewing the legal institution of blockade as it had
evolved over some two centuries previous to World War I, and had been
defined, in the nineteenth century and early twentieth century, by treaty.
Originally, the requirement was that a blockade to be valid and opposable
to neutral shipping, had to be "close-in and, of course, persisting in terms
of the necessary ratio of force to space and time." While weapons did not
render such a blockade suicidal (as today's military arsenal clearly would),
it was, in the heyday of sail, not without considerable risks and challenges
to the blockading commanders. This is illustrated in a British naval historian's
review of the "close-in" blockade of Brest during the French Revolutionary

162 Law of Naval Operations

and Napoleonic Wars reflecting as it did both a persisting holding strategy
and a necessary ratio of force to space and time:

Brest, where the principal fleet of the French was lying, commanded by Admiral
Ganteaume is in the north-east corner of the Bay. Outside it is a rocky coast and a
wicked stretch of sea, foggy, cold and stormy. Strong tides set through the narrow sounds
inside the Isle of Ushant, and the prevailing wind, southwesterly, blows onshore with
the whole of the open Atlantic behind it to build up a sea and swell. Even the sailing
ships of modern times, such as they are, are advised to keep well offshore. Collingwood,
who commanded the blockade in the '90s, had said that this coast was more dangerous
than a battle once a week.

Yet to keep the approaches to Brest under observation, Collingwood had to be close.
Ships of the line in those days were unhandy vessels, slow to windward and slow to
go about. Embayed on a lee shore with an incoming swell, they could never be sure
of clawing off again. Caught in a calm, they were helpless against a tide that might
set them into unnavigable sounds. Yet night and day, summer and winter, Collingwood
and his captains stood off and on that shore, estimating the tidal streams and currents,
constantly solving the problems of navigation and ship-handling — and not merely in
a single ship, but in a whole fleet of them. No modern sailor would dare to explain
how they did it; the art of sailing such ships is long forgotten. Even then, the achievement
amazed the French, who looked out in every dawn and saw the sails there. There was
only a single exception. In heavy westerly gales, they ran for shelter in Plymouth Sound,
a hundred and fifty miles across the Channel — because in a westerly gale, the French
could not possibly beat out of harbour. But whenever the wind showed signs of
moderating, they Were back on station before the French could stir.27

But severe a challenge as the risks of winds, waves, tides and rocks were
in the days of sail, they challenged, to a very high degree, proficiency in
seamanship. They did not partake of the same order of inevitable
destructiveness that would be the result if ships were to engage in a "close-
in" blockade today, when modern-day airborne and submarine radar-
directed, heat-seeking missiles, or other forms of the "smart" weapons of
contemporary arsenals would doom the enterprise. The destruction wrought
on H.M.S. Sheffieldby an Exocet missile (even though the ship was not engaged
in any "close-in" blockade) during the 1982 Falklands Conflict illustrates the
vulnerability of modern warships to even rather obsolescent, cheap and easily
made post-World War II missile-type weapons. Furthermore, the sad error
of U.S.S. Vincennes in July 1988 underscores the difficulties of command that
modern weaponry can create. (Although the Vincennes was not involved in
an official blockade, she was operating in a populous and geographically
restricted area with busy air and sea lanes. The incident illustrates the
technological/moral/and social problems with which a commander in a close-
in blockade situation of today would be faced.) Finally, it is suggested that
a persisting effective blockade, reflecting an adequate ratio of force to both
space and time, can be achieved without literally complying with the

Goldie 163

nineteenth and earlier centuries' criterion for effectiveness of being "close-

»>
in.

Again, technology has changed the exercise of the right of visit and search

quite basically, as McDougal and Feliciano have pointed out regarding the

present-day difficulties:

It scarcely needs demonstration to show that the successful exercise of these procedures
at sea, in the context of modern naval and air warfare, presents the most formidable
difficulties. The warship attempting to stop, board and search a suspected enemy or
neutral vessel becomes, in the course of such an attempt, highly vulnerable to air and
submarine attack. Moreover, the size of present-day ocean carriers and the volume of
cargo carried make any inspection of the cargo that goes beyond the perfunctory
examination of shipping manifests practically impossible without modern dock
facilities.28

The authors argue, accordingly, that the practice of diverting suspected
merchantmen to designated control points that has arisen in response to the
challenge that the foregoing difficulties have posed, is reasonable and hence
valid. They argue, further, that the same rationale applies to the diversion
of suspect vessels before or without the formality of a boarding to effect the
visit and search on the high seas.29

In comparison, the 1856 Declaration of Paris authoritatively asserted that
a state, to ensure that its blockade was valid and opposable to neutral ships
captured as prizes of war for breaching the blockade, was obliged to ensure
that its blockade was "really effective."30 This obligation was repeated in
the Declaration of London, 1909,31 which, however, was never ratified by
Great Britain and never entered into force as a binding instrument for any
of the states that negotiated it. But a number of countries did evince
considerable sentiment in favor of its terms, as exemplified, for example, by
the United States' proposal in August 1914 that the belligerents comply with
it. The Entente Powers found, on analysis, however, that Germany and
Austria could import unlimited quantities of foodstuffs and other conditional
contraband through the neutral state of the Netherlands (which took the view
that the combination of her declaration of neutrality, together with the
Convention of Mannheim of 1868 regulating the navigation of the Rhine,
completely tied her hands).

On the other hand, article 34 of the Declaration would permit an enemy
of the United Kingdom to stop all exportation of food from a neutral state
to that country. Indeed, it was prior to the outbreak of the First World War
that intense public agitation in Great Britain against, inter alia, article 34, that
had created so great an opposition to that country's signature, that it resulted
in the United Kingdom Government's reversal of its position on the
Declaration and in its refusal to ratify the agreement.32

This very serious departure by Great Britain and France in their statements
of policy in August 191433 from the principles of the unratified convention

164 Law of Naval Operations

provided Imperial Germany with the basis for her claim to engage in her
"long distance blockade" by means of indiscriminate submarine warfare, and
of mining the approaches to the British Isles. The German submarine policies
were stated to be reprisals against the British and French rejection of the
1909 Declaration.34 In reality the German submarine logistical strategy, which
began with a smaller submarine fleet, in 1914, than that of the United Kingdom
(28 for Germany and 56 for Great Britain) at the outbreak of war,35 never
ceased, despite the concentration of her naval effort on submarine warfare,
to be a raiding logistical strategy carried out, even at its height of success
(March-August 191736) by random attacks that were no better than raiding
assaults and never could be effectively sustained by maintaining an adequate
ratio of force to space and time.

Contrariwise, the Entente Powers, on November 4, 1914, justified their
long distance blockade, not as a legally permitted logistical strategy, but only
on the basis of their claim to resort to belligerent reprisals — namely in
retaliation for Germany's sowing contact mines in the open sea around the
British Isles contrary to the Hague Mining Convention (Convention VIII).37
On the other hand, an alternative basis to the questionable one of belligerent
reprisals might have been supported in terms of an emerging customary rule.
The case for the Entente Powers' long distance blockade might have been
argued in terms of the geographical expansion of the blockade owing to
emerging technological exigencies coupled with a demonstration of its still
being "truly effective," just as was the "close-in" blockade of the age of
sail. Such a blockade could be shown to constitute a persisting logistical
strategy with an adequate ratio of force to space and time. Hence it was
effective within the meaning of paragraph 4 of the 1856 Paris Convention.38

(2) The Test of "Effectiveness"

Although becoming increasingly anachronistic, given changes in weapons
technology, the test of effectiveness was seen, for example, in the diplomatic
exchanges during World War I down to April 1917, as a term of art deriving
from the Paris and other Declarations and international agreements. Hence,
effectiveness was frequently represented as requiring the positioning of a
naval force on station, so that it prevented access into and egress from the
zone (port, estuary, coast, etc.) blockaded. It was out of this requirement,
in a time before radar, radio, aircraft, and submarines, that the notion
developed that the test of "effectiveness" could call for a cordon of anchored
men-of-war. But, as the experience of World War I showed, an effective
blockade could be maintained at a considerable distance from the enemy's
ports. For example, the Anglo-American mine barrier across the northern
end of the North Sea provided as effective a blockade as did the presence
of the British Grand Fleet in Scapa Flow to bottle up the German High Seas
Fleet in the Jade River.

Goldie 165

If conduct which was regarded as impermissible becomes viewed as legally
permissible, a new regime of customary international law must be shown to
have come into being; provided that the twin requirements of a constant and
"uniform usage practiced by the states in question, and that this usage is the
expression of a right . . ,"39 are satisfied. In the case of a change in the
detonations of the qualifier, "effective," such a new customary rule may well
be justified on the basis of the confrontation of the reality of the new
technology with traditional law, rendering obsolete the old rule of a close-
in stationing of the blockading fleet. New situations and new weapons,
through necessity, may be shown to have given rise to new practices that
still satisfy the requirement of effectiveness, whose connotation remains
unchanged; that is, it satisfies the requirement of being a persisting holding
logistical strategy. In these circumstances necessity reinforces the mental
element of determining the emergence of a customary rule. But, despite the
resort by both sides in World War I to systems of prohibited zones in which
neutral merchant ships would be controlled on the British and French side
by surface forces (with an ever-increasing list of contraband being used to
justify their seizure) and, on the other, by the threat of being sunk on sight,
by the end of that war there was no consensus leading to any recognition
of prohibited maritime zones as lawful. Indeed, a great negative reaction had
set in, and while the British "Starvation Blockade" was widely denounced
by publicists (and especially German scholars writing on the subject), the
German indiscriminate submarine warfare was even more widely stigmatized
for its ruthless inhumanity.

The diplomatic interventions of the United States, prior to her declaration
of war (April 2, 1917) against Germany in World War I, both in terms of
her suggestions and proposals to both belligerents, and in terms of the
diplomatic protests she lodged with both sides, are of considerable interest
in evaluating the possibility of the emergence of a customary international
norm. It is also germane to arguments that contemporary diplomacy operated
with a strong negative impact on such a possible development.

On August 6, 1914, the United States proposed to both of the belligerent
coalitions that they should adopt the Declaration of London of 1909 as it stood.
The Entente (in effect Great Britain and France)40 announced that they would
apply the Declaration, but with very serious departures from it regarding
conditional contraband. Germany, on the other hand, notified the United
States on August 22, 1914, that she was willing to apply the Declaration of
London in its entirety.41 On receipt of these replies the United States protested
vigorously against the British Order in Council of August 20, 1914. Thus,
on October 30, 1914, the August 20 Order in Council was cancelled and
replaced by a further promulgation, making important concessions to the
United States. But, on December 26, 1914, the United States made a further
vigorous protest. While these early exchanges did not relate to "long distance

166 Law of Naval Operations

blockades" as such, they were soon followed up by United States proposals
against that form of Allied control of neutral shipping suspected of trading
with the Central Powers. On December 28, 1914, the United States became
the spokesman of neutral powers and again protested against the systematic
enforcement of the diversions of neutral ships which were required by the
Entente's economic measures. The United States argued that those systematic
diversions were tantamount to a general presumption that all diverted ships
were carrying contraband, and that such a presumption was contrary to
international law.

Taking advantage of the neutrals' angry reaction to the Entente's system
of diverting neutral shipping, and the Allies' rejection of the key articles of
the Declaration of London of 1909 (for example article 34), Germany on
February 18, 1915, promulgated her first declaration of indiscriminate
submarine warfare. She claimed that this form of warfare was permissible
as a reprisal against the Entente's refusal to abide by the Declaration of London
and their systematic deviation of neutral shipping. She declared that any
hostile merchant ship encountered in British or Irish waters, including the
English Channel, would be sunk without warning. Neutral ships navigating
in those waters were stated to be at risk, on the ground that merchant ships
of the Entente had, on several occasions, hoisted neutral colors and "mistakes
could not be avoided."42

(3) The Effect of the United States Entry into World War I
In response to the German declaration of unrestricted submarine warfare
in early 1915 the United Kingdom proclaimed the Order in Council of March
11, 1915 (which was followed by the French decree of March 11, 1915).
Regarding those promulgations, Guichard tells us that:

Up to that date indeed France and England had confined their attention to contraband
alone; from 11th March 1915 they held themselves free to bring into their ports any
goods the destination, ownership, or origin of which was presumed to be hostile. In
other words all direct trade between Germany and the Powers overseas was put a stop
to.«

Originally, this Order-in-Council was applied only to sea areas east of the
15th degree east longitude and north of the 30th degree north latitude.
Subsequently this zone was extended to sea areas east of the 30th degree west
longitude. In effect, despite British and French insistence to the contrary, they
had, in effect, created a maritime prohibited zone in relation to neutral vessels
that they (the Entente Powers) believed to be trading with, or carrying goods
to and from, the Central Powers.44 Furthermore, they were able to maintain
this logistical strategy with a persisting ability to hold the area and maintain
it effectively.

In March, April, and July 1915 the United States, in effect, charged the
Entente Powers with illegally interfering with neutral commerce. On
October 21, 1915, this country protested strongly against the steps that the

Goldie 167

Entente Powers had taken to interdict neutral trade with the Central
Powers.45 On July 7, 1916, moreover, the Entente Powers, over France's
misgivings, abandoned their voluntary acceptance of the principles of the
Declaration of London. But the period of United States' protests against the
Entente Powers' blockade ended after her entry, on April 2, 1917, into World
War I. Indeed this country brought a much needed, added, strength and
guiding force to the Allies' blockade. Guichard tells us that:

The attempts made to bring unity of direction between France, Great Britain and
Italy had hitherto been unsuccessful .... Unity of direction which France had early
asked for and which had been so conspicuously lacking was forced upon the allies by
the economic policy of the United States. . . .

.... However just about the time that inter-Allied cooperation in the economic war
really became effective the blockade ceased to occupy the first place in the economic
anxieties of the Allies. The German counter-blockade . . ., [their] achieved unity of
action ... in respect of maritime transport, . . . [gave] them victory in the economic
war.46

In the period 1914-17, and prior to the United States' entry into World
War I, the Allied long distance blockade was in an evolving process. During
that period it was the subject of diplomatic protests by the United States and
other neutral countries such as the Netherlands, Denmark, Norway and
Sweden. This latter group, consisting of minor powers having Germany as
their neighbor, provided an economic protective arc around northern
Germany. Their economic significance for Germany was greatly enhanced,
as has already been noted, by the implications of the Declaration of London
of 1909,47 had the Entente Powers accepted the 1914 United States proposal
to that effect.48 While they supported the United States' position down to
April 2, 1917, the Dutch and Scandinavian neutrals negotiated with the Allies
prior to that date to ameliorate the impact of the blockade upon them in
consideration for their limiting their exports to Germany.

In reviewing the relations between the United States and the Entente
Powers retrospectively from April 2, 1917, and comparing them,
prospectively, with the United States' attitude after the German Emperor's
second order of unrestricted submarine warfare on January 19, 1917, it must
be said that the United States had a complete change of heart regarding the
matter of the Entente's policy of imposing the long-distance blockade. Just
prior to April 2, 1917, the United States' attitude toward Germany had been
exacerbated by the German proposal to Mexico and Japan that they enter
into an alliance against the United States (published on March 1, 1917). 49 With
regard to the United States' wholehearted and energetic participation in the
Allies' blockade of Germany and its reflecting a complete change of heart,
Guichard wrote, regarding earlier American attitudes, "it is of course quite

168 Law of Naval Operations

true that in August 1914 the United States had exchanged some very tart notes
with the Allies on the subject of economic war. . . .,,5°

After April 2, 1917, under the added pressure from the United States, the
neutral states' adhesion to the Entente's economic policies became a matter
of increased necessity. In addition, as a result of her economic pressures and
deprivations, and of her sense of triumph as a result of her imposition of the
Treaty of Brest-Litovsk on a prostrate Communist Russia,51 Germany
increased her demands, especially on the Netherlands. This had the result of
European neutrals becoming more accommodating to the Allied and
Associated Powers. Indeed, the famous affair of the "Dutch Convoy" in
April-June 1918 clearly illustrated the Netherlands' acceptance of the Allied
long distance blockade of Germany then in force.52 The fact of the United
States' participation in the long-distance blockade was all-important to the
Netherlands' position. Without it her capacity to resist German demands
would have been nil.

C. World War II, 1939-45

By contrast with the neutral protests, prior to April 2, 1917, against the
Entente Powers' long distance blockade in World War I, the United States
did not take a similarly adversarial position with respect to the Allied Powers'
blockade of Germany in World War II. On the other hand, both the United
States and the Soviet Union reserved their rights to claim compensation for
possible future losses due to the Allied Powers' enforcement of their blockade.

Such possible claims for compensation do not necessarily indicate
compensation for denials of the other party's rights, but only that the Allies
should pay for injuries to persons or property incidentally inflicted in the
exercise of their blockade rights. After some three months into World War
II, Great Britain and France reinstated what were, in effect, the principles
of their long-distance blockade of World War I. Thus, after waiting for
approximately three months, Great Britain promulgated her Order-in-
Council of November 27, 1939.53 Other neutrals, for example, Italy,
protested.54 After Italy entered the war on June 11, 1940, the system was
extended to her.55 While the Scandinavian countries also lodged protests early
in the war, events overcame their positions after Germany invaded and
occupied Norway and Denmark and effectively held Sweden in a
hammerlock.

Again, as in World War I, Great Britain justified her long distance blockade
as a "retaliatory system." Additionally, in World War II, Great Britain felt
her position regarding reprisals to be strengthened by the facts of Germany's
violation of the London (Submarine) Protocol of 1936, her breach of Hague
Convention VIII on minelaying, and her indiscriminate destruction of
seaborne commerce between the Allies and neutral states. After Italy's entry
into the War, Great Britain asserted the same right of reprisal against Italy

Goldie 169

as against Germany — on the ground of Italy's becoming associated with
German methods of warfare.56 It should be noted that while British and pro-
British jurists and commentators were already discussing the idea of a long
distance blockade, and were asserting that "Britain could not be expected
to fight another war without resort to"57 that form of economic warfare,
the United Kingdom did not rely on any notion that such a system had emerged
as a separate category in the customary international law of war. Instead,
she merely had recourse, once more, to her "retaliatory system. " Her caution
in this regard was, of course, largely due to her uncertainty about the attitudes
of the United States and the Soviet Union and her policy of not encouraging
those countries to challenge her system in the name of the freedom of the
high seas. This delicacy was further motivated by the sobering realization
of the strength of isolationism in the United States and the violent reversal
of Soviet foreign policy to a much more pro-German stance, as evidenced
by the fall of Litvinoff and the Molotov-Ribbentrop Non-Aggression Pact
of August 1939, the Soviet partition of Poland with Germany, and the Soviet
seizure of the Baltic States, as an outcome of Joseph Stalin's new pro-German
orientation.

In comparing the diplomatic protests served against the Entente Powers
regarding their long range blockades in World War I with those issued in
World War II, there would appear to be, quantitatively and qualitatively,
a considerable decline, on the part of the neutral states, in their resorting
to this form of resisting or rejecting the Allies' retaliatory system. This raises
the question of whether decreased reliance on strong diplomatic protests in
World War II as compared to World War I, may arguably be seen as the
beginning of an acknowledgment, albeit reluctant, of their decreasing utility
and necessity. But, again in World War II, as in World War I, the factors
leading to the emergence of a customary international law norm justifying
the long-distance blockades were camouflaged by both sides' invocations of
reprisal as justification for their actions.

D. Review of Developments Through World Wars I and II, and the Interwar
Period

To whatever extent decisions of international tribunals, or of domestic
tribunals applying international law, have credibility, the decisional law has
thrown an ambiguous light on the issue of the acceptance of such zones.

First, it should be noted that the United Nations War Crimes Commission
did not address the question of blockade by resort to aerial attacks on shipping.
Aircraft, clearly, have limitations similar to those of submarines regarding
any capability to visit, search, and seize ships. Possibly this omission could
be explained by the fact that the Allied forces engaged in this activity to
a greater extent than did the Axis Powers, largely due to their very much
greater preponderance in the air.58

170 Law of Naval Operations

But the question must be asked whether the fact of non-prosecution at
Nuremberg for the indiscriminate sinking of merchant ships by aircraft was
due simply to the fact that the United Nations had themselves engaged in
this activity in World War II, knowing it to be illegal, and the United Nations
prosecutors did not wish to have the conduct of their own military planners
stigmatized as war crimes? Or, alternatively, did they so plan their cases
because they had felt that long distance blockades had become lawful through
general practice and acceptance and, further, because such blockades could
lawfully be enforced by aircraft notwithstanding its limitations with regard
to ensuring the safety of target ships' papers, passengers, and crews?

The records of the Nuremberg proceedings regarding prosecution for the
indiscriminate sinking of merchant ships by submarines to enforce maritime
prohibited zones as war crimes are instructive. Although Admiral Doenitz
was charged before the International Military Tribunal at Nuremberg with
waging unrestricted submarine warfare contrary to the London Naval Treaty
of 193059 and the 1936 Naval Protocol60 (to which Germany had acceded),
and although evidence was shown that, on September 3, 1939, the German
U-boat arm began unrestricted submarine warfare, the Tribunal was not
prepared to hold Doenitz guilty for his conduct of that form of submarine
warfare against British armed merchant ships. In addition, after receiving
evidence of British unrestricted submarine warfare in a maritime prohibited
zone which the United Kingdom had established, namely the Skagerrak,
following a British Admiralty announcement of May 8, 1940, and after noting
Admiral Nimitz's answers to interrogatories which showed that the United
States Navy had begun unrestricted submarine warfare against the Japanese
in the Pacific Ocean immediately following the surprise attack on Pearl
Harbor on December 7, 1941, the Tribunal announced that its sentence of
Doenitz was not assessed on the ground of his "breaches of the international
law of submarine warfare."61 Thus the British diplomatic campaign, during
the inter-War period, to outlaw the type of submarine warfare62 to which
the German Empire resorted in World War I, was not revived after World
War II. It should be noted that while the British exclusionary zone in World
War II was comparatively modest, being constituted by an arm of the North
Sea, the Skagerrak,63 the United States had declared the whole of the Pacific
Ocean (one third of the Earth's surface) a prohibited zone in which Japanese
ships, both naval and mercantile, would be sunk without warning.

Finally, it should also be noted that some aggravated types of submarine
attacks on civilian shipping in both World Wars were punished as war crimes.
But these always involved conduct that was more reprehensible than merely
that act of sinking the victim ship without warning. The war crimes cases
arising from both World Wars that spring to mind illustrate the types of
aggravated circumstances giving rise to the charges. These cases are:

Goldie 171

(1) The Llandovery Castle (World War I):64 Submerged submarine U-
boat 82 sank a hospital ship which was distinctly marked as such. The hospital
ship was not carrying any military personnel other than sick and wounded
soldiers and members of the Canadian Medical Corps. After torpedoing the
hospital ship, the submarine's commander, one Patzig, ordered the U-boat
to surface and, after questioning some of the survivors, fired on the survivors
in lifeboats, massacring many of them. After the War Patzig was not found,
but two of his officers were arrested, tried and convicted of their war crimes.
The plea of superior orders was rejected because "killing defenceless people
in life-boats could be nothing else but a breach of the law;"65

(2) The Peleus (World War II): The submarine commander ordered the
massacre by machine-gun fire of the survivors who were clinging to pieces
of wreckage from the sunken merchant ship;66

(3) Trial of Karl-Heinz Moehle (World War II): As in The Peleus, the
accused had ordered the massacre of survivors of sunken ships and was
convicted for that aggravated offense; "67

(4) Trial of Helmuth von Ruchtesschell (World War II):68 The accused
was the commander of an armed German surface raider. He was charged
with committing, inter alia, the following offenses against Allied merchant
ships: (a) continuing to fire after the target ship had signalled her surrender;
(b) failure to make provision for the safety of survivors (despite having the
facilities for taking prisoners on board his ship); and (c) firing at survivors
in life rafts.69

E. The Falklands (Malvinas) Conflict, 1982

In each of two conflicts fought in the present decade, namely the Falkland
Islands Conflict (1982)70 and the Persian Gulf Tanker War (1982-1988),71 both
sides promulgated Maritime Exclusion Zones. But their various definitions
and uses have been very different. In the 1982 Falkland Islands Conflict a
number of exclusion zones (seven in all) were proclaimed. The British
declarations and the first two Argentinian zones reflected the desire of both
sides to limit the conflict to the combat forces that they had committed to
the struggle, to the Islands, and to the seas around them. The British resort
to maritime exclusion zones was to further their persisting combat strategy
of retaking and defending the Islands. Their persisting strategy was, in part,
executed by raiding combat tactics. On the other hand, the Argentinian
invocation of such zones (except her third, her May 11, 1982, proclamation
of a "South Atlantic War Zone")72 was for the purpose of reinforcing her
persisting tactics once her raiding strategy had netted her control over the
Falkland Islands. This appeared to be a corollary of the claim that each of
the parties asserted, namely that it was merely exercising its right of self-
defense, and was limiting its use of force to expelling its adversary from the

172 Law of Naval Operations

Islands, or to preventing that adversary from permanently establishing its
territorial sovereignty over them.

The first British announcement of a maritime exclusion zone (MEZ), took
effect on April 12, 1982. It established the prohibited area as being two
hundred nautical miles radius from a point approximately at the center of
the Falkland Islands. Under this promulgation only Argentine warships and
naval auxiliaries found within this zone were liable to be attacked.73 On the
following day Argentina responded by establishing a two hundred sea-mile
zone off its coast and around the "Malvinas" (Falkland) Islands. Since the
British fleet was still some distance from the Islands, the effectiveness, for
the first week or so, of the declaration of the British Maritime Exclusion
Zone had the effect, as a ruse of war, of reinforcing an unfounded Argentine
belief that the Royal Naval nuclear submarine H.M.S. Superb was on station
in the area of Puerto Belgrano and the Falklands. The fact that Superb was
at Holy Loch, Scotland, at the time may give rise to the question whether
the British "blockade" complied with the Declaration of Paris.74 On this point
Professor Levie has commented:

The British declaration was not really a blockade, as merchant ships and neutral vessels
were not barred from the exclusion zone; it only applied to enemy naval vessels. It
was, therefore, nothing more than a gratuitous warning to Argentine naval forces.75

On April 23, 1982, the United Kingdom Government informed the
Argentine Government that:

Any approach on the part of Argentine warships, including submarines, naval auxiliaries
or military aircraft, which could amount to a threat to interfere with the mission of
the British forces in the South Atlantic, will encounter the appropriate response. All
Argentine aircraft, including civil aircraft engaged in surveillance of these British forces,
will be regarded as hostile and are liable to be dealt with accordingly.76

The zone enunciated in this second declaration has been referred to
as "The Defensive Bubble." The Royal Navy, the British public and,
indeed, the world, did not have long to wait to see this proclaimed
"Defensive Bubble" put into lethal effect. On May 2, 1982, the British
submarine Conqueror torpedoed and sank the Argentine cruiser General
Belgrano some thirty miles outside the MEZ around the Falkland Islands.
As a result, the British Government experienced some criticism in
Parliament and in both the domestic and foreign press. In Parliament
the responsible Minister (Mr. Nott) responded by pointing out that:

That zone [that is, the MEZ proclaimed on April 12, 1982] is not relevant in this case.
The "General Belgrano" was attacked under the terms of our warning to the Argentines
some 10 days previously that any Argentine naval vessel or military aircraft which could
amount to a threat to interfere with the mission of British forces in the South Atlantic
would encounter the appropriate response.77

Goldie 173

On April 28, 1982 the British Government announced its Total Exclusion
Zone (TEZ),78 to take effect on April 30, 1982. While occupying the same
area as the MEZ of April 12, this zone also encompassed "any . . . aircraft,
whether military or civil which is operating in support of the illegal
occupation" of the Falkland Islands.79 It continued with the further warning
that:

Any ship and any aircraft, whether military or civil, which is found within this zone
without due authority from the Ministry of Defence in London will be regarded as
operating in support of the illegal occupation and will therefore be regarded as
hostile. . . .80

Finally, it should be noted that in all her announcements of the delimitations
of her specific zones Great Britain still continued to insist that they were
without prejudice to her general right of self-defense under Article 51 of the
United Nations Charter. This provided a further legal justification for the
sinking of the General Belgrano. Criticism of that attack may be further seen
as paradoxical considering that, at the time of the sinking, the Argentinian
forces were occupying the Islands and the British forces were forcibly
attempting to terminate that possession.

The United Kingdom's Ministry of Defense announced an important policy
statement on May 7, 1982, when it said that, because hostile forces "can cover,
undetected, particularly at night and in bad weather,"81 the distances involved
in resupplying the Argentine forces on the Falkland Islands, or take other
hostile action, "any Argentine warship or military aircraft which are found
more' than 12 miles from the Argentine coast will be regarded as hostile."82
The Soviet Union, without protesting the creation of an exclusion zone in
principle, advised the British government that it considered the latest
statement of policy unlawful, "because it 'arbitrarily proclaimed] vast
expanses of high seas closed to ships and craft of other countries.' "83 On this
Professor Levie has commented:

Of course, a blockade always denies the use of part of the high seas to other countries.
While the Soviet Union might have questioned the extent of the blockaded area as
excessive, if the blockade was effective (and there seems little doubt that it was), it
was a valid blockade under the 1856 Declaration of Paris, to which Russia was one of
the original parties.84

On the other hand, if the Soviet criticism is directed against the
proclamation on the basis of its ineffectiveness due to an insufficient ratio
of force to space, a point not answered in Professor Levie 's comment, it would
appear to be factually inaccurate. Adequate force appeared to be present
wherever needed to carry out the enforcement of the British maritime
exclusion zones for effectuating that country's logistical strategy.
Furthermore, the area was not so vast as to be unmanageable in fact, and

174 Law of Naval Operations

the proclamation appeared to have been enforced by persisting holding, rather
than raiding, tactics.

After the Argentine forces on the Falkland Islands had surrendered, Great
Britain lifted the Total Exclusion Zone (July 22, 1982), but, at the same time,
asked the Argentine Government (via the Swiss Government) not to allow
its military aircraft or warships within a zone measuring 150 sea miles radius
around the Falkland Islands. Similarly Argentina was warned not to allow
her civil aircraft and shipping within that zone without the prior agreement
of the British Government.

In response to the British MEZ on April 8, 1982, Argentina proclaimed
a similar Maritime Zone, and, on April 29, 1982, it strengthened its MEZ.
Finally it proclaimed, on May 11, 1982, a "South Atlantic War Zone." This
last declaration has been the occasion of well-known litigation. In Amerada
Hess Shipping Corp. v. Argentine Republic*5 the plaintiff corporation sued
Argentina for the loss of its very large oil tanker Hercules as a result of three
successive air strikes by Argentine aircraft using bombs and air-to-surface
missiles. At the time of the attack the Hercules was "about 600 miles off the
Argentine coast and nearly 500 miles from the Falkland Islands."86 The court
added that she was "in international waters, well outside the "exclusion
zones" declared by the warring parties."87

While that statement would have been true if it had referred to the British
zones and those declared by Argentina on April 8 and April 29, 1982, it was
of doubtful accuracy with regard to Argentina's "South Atlantic War Zone"
which that country declared on May 11, 1982. It is a valid inference, therefore,
that the court may have been prepared to recognize Argentina's first two
declarations as creating valid exclusion zones, but it was not prepared to
extend that recognition to the vaguely defined "South Atlantic War Zone."88
Indeed, this last zone, regardless of the bombing of the Hercules, fails the tests
of reasonableness, proportionality, clarity of definition, and self-defense. It
merely proclaimed the basis for a random, raiding logistical strategy. It clearly
failed to provide for an adequate ratio of power to space and time, and
amounted to little more than an excuse for conducting indiscriminate attacks
on neutral shipping, rather than formulating an effective logistical, persisting,
holding strategy which could be integrated in a sea-keeping assertion of naval
power utilized for rational ends.

F. The Persian Gulf "Tanker War" 1980-1988

Although the Iraq-Iran war began with the border clashes in June-August
1980, leading to full-scale land fighting on September 21, 1980, 89 the Persian
Gulf Tanker War, as a specific logistical strategy in an array of means and
methods for conducting hostilities in the Gulf, may be said to have begun
with the Iraqi declaration on August 12, 1982, of a prohibited war zone

Goldie 175

at the northern end of the Persian Gulf (north of 29° 03' North).90 In contrast
with the Falklands (Malvinas) Conflict, which took place in an unfrequented
and secluded part of the world, the Persian (or Arabian) Gulf is one of the
world's busiest waterways. The original (August 12, 1982) Iraqi prohibited
war zone contained the northern end of the Gulf. In reality, however, this
zone was not so much one of exclusion, supported by a persisting logistical
strategy, as the proclamation of an intention to engage, as opportunities
offered, in random air raids to inhibit Iranian shipping in the Gulf.
Subsequently, the zone's area was enlarged so as to include the key Iranian
oil installations on Kharg Island. In February 1984, this was expanded to
include a 50-mile radius around Kharg. Until early in 1984 the Iraqis
concentrated their attacks on ships navigating in the northern zone and
sailing to and from Bandar Khomeini and Bandar Manshar. But after early
1984 they concentrated their air strikes on ships sailing to and from Kharg.

The Iraqi logistical strategy was clear. Like Napoleon's Berlin and Milan
Decrees against Great Britain (which were directed against British trade and
that country's ability to wage war and subsidize her allies from her income
from that trade), the object of the raids was to deny Iran the income she
needed from oil exports in order to purchase war materiel abroad and,
generally, defray her costs of waging the war.

Iran had a similar logistical end in view, namely that of suppressing her
enemy's trade with third countries which enabled Iraq to earn the money
needed in order to defray her cost of waging the war. This prevention of
trade was executed by means of interdicting all and any navigation to and
from Iraqi ports in the Gulf. But Iraq was able to export her oil, and so defray
the costs of her belligerency, by pipelines across her western and southern
neighbors. In addition, Iran also established prohibited zones off the shores
of Iraq's backers in the war, for example, Kuwait and the United Arab
Emirates, in the hope of reducing their oil revenues and hence their
contributions to Iraq's war effort through limiting her purchasing power on
the world arms markets.

Responses to Iranian attacks launched in support of this policy included
the United States policy of reflagging Kuwaiti tankers, establishing convoys
with United States, British, French, and Italian escorts, and bringing the
issue of the unlawful interference with neutral flag shipping to the attention
of the Security Council of the United Nations. All these steps did not
prevent continued Iranian raids on neutral flag tankers. Nor, indeed, did
the Saudi Arabian proclamation of a 12-mile safety corridor which, since
it was within the territorial seas of the seven states of the Gulf Cooperation
Council, was entitled to belligerent respect, and was intended to provide
security for neutral shipping — especially the very large tankers carrying

176 Law of Naval Operations

oil from Kuwait and from other supporters of Iraq. But this raised no legal
issues regarding its validity as a maritime zone, since it merely created a
right-of-way for neutral ships in neutral states' territorial waters.

The legal issues involving the Iraqi and Iranian exclusion zones, and the
attacks on shipping therein, depended very largely on the reasons for those
promulgations. Clearly they were not promulgated, as were the Japanese
proclamations of 1904 and those of the United States of 1917, for purposes
of self-defense, nor for the furtherance of persisting or holding strategies.
They were announced for purposes of inhibiting shipping in the Gulf from
engaging in the oil export trade of each belligerent's adversaries and their
supporters by means of random attacks. They reflected offensive raiding
strategies having only adventitious impacts on possible target shipping.

Similar to the experience in World Wars I and II, especially early in
World War I when neutral shipping was attacked, the neutral states
protested and denounced the attackers. In contrast to those earlier conflicts
however, it should be noted that both Iran and Iraq made neutral ships their
main targets. Furthermore, Iran not only attacked neutral shipping which
may have been suspected of earning revenues, either directly or indirectly,
for Iraq, but also neutral ships when they were navigating between neutral
ports or even fishing in the Gulf. This, indeed, places the Iranian policy
well beyond what may possibly be seen as defensible by supporters of an
emerging customary international law permitting the establishment of
effective exclusionary zones maintained persistently by an adequate ratio
of power to space and time. Even when satisfying these criteria, such a
zone may be lawful only if it is, comparatively speaking, maintained
effectively and complies with the rule of reasonableness. It may not provide
an excuse for a raiding strategy directed randomly against any or all non-
Iranian shipping found in the Zone without regard to their nationality or
to their purpose for being in the Zone.

There is a further consideration: Although the belligerents have not been
subjected to the severe and hostile criticism that may have been expected,
or that was the experience of the belligerents in World War I, the neutral
states' muted outrage may not be due to their tacit acceptance of a new
customary rule exposing them to random, raiding attacks. Rather, their
relative silence may be attributed to the fact that the very large tanker surplus
fleet (and threat of an oil surplus as well) and the favorable conditions of
insurance in the 1980's rendered such attacks relatively less unacceptable to
the tanker fleets' owners than did such attacks during the World Wars, when
they resulted in a great scarcity both of shipping and of the cargoes those
sunken ships had carried.

Goldie 177

III. Review of Some Relevant Concepts Relating

to the Emergence of Customary

Principles of International Law

Governing the Establishment of Maritime Exclusion

Zones in the Context of the

Resort to the Use of Force

A. Custom and the Emergence of Belligerent Maritime Usages and Obligatory
Rules

Customary international law is formed from a combination of "a constant
and uniform usage practised by the States in question"91 and the essential
psychological element of opinio juris sive necessitatis.92 Because, for so long
maritime states have stressed, as fundamental to their survival, the freedom
of the high seas, belligerents' claims to enforce maritime exclusion zones must
be carefully balanced against the traditional and basal doctrine and the
interests interpreting it. Assertions that the power to create such zones has
emerged into customary international law demand rigorous criteria for
justifying their promulgation by warring states. Indeed, a case-by-case
approach is required. On the other hand, it should be observed that the
creation of such zones has arisen, in part, from the development and
deployment of new weapons, from the evolution of new tactics, and from
the emergence of economic warfare as an important, indeed essential,
weapon. Thus, they have been resorted to for the purposes of both combat
and logistical strategies.

The dual essentials of usage and the actor's belief in the right or necessity
of acting in the prescribed manner hold equal sway as criteria for determining
the emergence of a customary law doctrine or privilege.93 Furthermore, when
these are consistent with the fundamental right of self-defense, and satisfy
the rule of reasonableness, their potential interference with a neutral state's
traditional rights under the freedom of the high seas may be justified. On
the other hand, if they are implemented by raiding strategies, even if for the
purpose of self-defense and even if they may satisfy the criteria of
proportionality and the rule of reasonableness, they may not, ceteris paribus,
be justifiable. Customary international law cannot recognize a belligerent
right which is ineffective and which permits an actor to fail to lay an even
hand on those regarding whom it has the right or privilege of imposing its
regime. Thus a maritime exclusion zone which is only enforced sporadically
or randomly merely by raiding tactics should not be seen as entitled to
recognition as lawful under customary international law.

The practice of declaring maritime war zones or exclusion zones arose,
as Professor Stone has pointed out, from the necessities of the situation
confronting, not only the United Kingdom, as Stone argues, but Germany
as well. The reliance by both sides on invoking belligerent reprisals

178 Law of Naval Operations

camouflaged the "long term transformation of the traditional laws of
blockade."94 The question, however, remains, what values apply to legitimate
that transformation and what values will reject either or both claims to
validity? It is, furthermore, a thesis of this paper, that these two disparate
types of war zones are not utilized symmetrically. Indeed, while the former
is based on an effective persisting holding logistical strategy the latter is based
on a raiding logistical strategy. In contrast with positions such as those taken
by Stone or Fenrick, this paper views these unlike devices in aid of strategy
as not being entitled to be treated as alike juridically. Indiscriminate sinkings
of merchant ships by the U-boat arm as the main means of pursuing a raiding
logistical strategy cannot claim to fit under justifications which may uphold
the legality of the persisting logistical strategies reflected in the Long Distance
Blockades by, respectively, the Entente Powers (in World War I) and the
United Nations (in World War II). The two modes of waging economic war
and the strategies by which they were pursued were so different that it would
be absurd to invoke arguments and evidences justifying the latter to validate
the former.

Necessity is also reflected in the changed circumstances of modern
economic warfare. Technological change, in the form of the ever-increasing
destructiveness of modern weaponry, has created new challenges for the
international law of armed conflict. Furthermore, the strategic challenges
presented by the contemporary development of advanced nations' economic
infrastructures have called for new responses in terms of economic warfare
which, in turn, have created new challenges for the international
humanitarian law relevant to their deployment and use. When the rules of
blockade were first evolved, most European states relied quite heavily on the
coastal maritime transportation of their goods, even for domestic and internal
trade. At that time contraband and blockade control was relatively simple
because goods would pass from port to port by sea and their destination would
be revealed by their movement even if transshipments were involved. Today
most states, even such states as Iraq and Argentina, have extensive waterways
and railways for internal and international transportation. By rail Iran can
be supplied from the Soviet Union and by highways from China and Pakistan.
Writing of such an expansion of states' economic infrastructure as this factor
existed back in the time of World War II, Julius Stone wrote:

The expansion of alternative rail and inland waterway transport facilities, with which
Germany was superlatively endowed, transformed this situation. "The conditions of
modern commerce offer almost infinite opportunities for concealing the real nature of
a transaction, and every device which the ingenuity of the persons concerned or their
lawyers could suggest has been employed to give shipments intended for Germany the
appearance of genuine transactions with a neutral country."95

B. "Necessity" in the Formation of Customary International Law

While some writers96 tend to denigrate the role of "historical" or "social"

Goldie 179

"necessity" as a possible alternative, or additional, element of opinio juris, the
argument here is that changes in the technological and social infrastructure
of a social relationship operate to bring about legal change, not so much under
the rubric of opinio juris, as under that of its disjunctive97 clause sive necessitatis.
This disjunctive meaning would appear to be inherent (but to most writers
latently so) in the traditional Latin formulation.

The second step, in reviewing the relevance of the criteria for determining
the incremental effect on legal change of the technological and socio-
economic substratum, is to observe that an emerging custom may tend to
displace existing rights assured under international law. For example, the
continental shelf doctrine was criticized, in its early years, as potentially
displacing the traditional, and entrenched, freedom of the high seas — for
example, the traditional rights of trawling, dredging and anchoring anywhere
beyond states' territorial seas. Thus, Professor Humphrey Waldock, later
President of the International Court of Justice, observed, on April 5, 1950,
that: "[t]he suggested new doctrine of the continental shelf is not merely novel
but involves a reversal of existing customary [international] law."98 But this
consideration did not prevent Waldock from arguing in favor of recognizing
that now popularly accepted, but then emerging, doctrine as customary
international law.

Even more significantly, and regardless of the strategies involved (i.e.,
persisting and hence "effective", or raiding, and hence, random and thus
proportionately ineffective), the recognition of states' claims to establish
Maritime Exclusionary Zones as lawful will always necessarily be effectuated
at the expense of freedom of the high seas for all navigation including, to
the extent necessity may limit them, the rights of neutral traders. In this
regard, of course, belligerent maritime war zones, or exclusionary zones,
which are usually intended to last the duration of the conflict, are to be
distinguished from the usually more transient, maritime exclusion zones that
states establish for bombing and gunnery exercises in times of peace. They
(i.e., belligerent maritime exclusion zones) are also to be distinguished from
those maritime zones which states announce for the testing of nuclear devices
and weapons. These, with perhaps one exception, that of France99 in recent
years, have been predicated, not on an enclosure of an area of the oceans,
but on the principle of a "Warning to Mariners." This device simply notifies
aircraft and ships proposing to use the area of the dangers to them attending
the notifying state's exercise of its own freedom of the high seas. It should
be stressed, in this context, that such warnings may be brief, or may remain
in place for indefinite periods of time.100 Clearly, the task of establishing the
emergence of a customary rule permitting belligerent states to impair, if not
eliminate, the rights of neutrals to enjoy the freedom of the high seas is far
more burdensome than defending the privilege of states, in the pursuit of their
national security interests, to create temporary dangers for shipping in limited

180 Law of Naval Operations

sea areas, by testing weapons on the high seas or engaging in bombing and
gunnery practice and by issuing warnings to others of the presence of those
dangers.

C. The Legal Significance of Diplomatic Protest as an Inhibiting Factor in the
Formation of a Customary Norm

Diplomatic protest has been seen as an inhibitor of custom, and writers
have suggested that its absence can be strong evidence of acquiescence to a
change in customary international law and, hence, to the emergence of a new
norm supplanting and negating the old.101 But, as D'Amato points out, states
"do not issue notes of protest to the actions of other states that they regard
as illegal under international law," and argues that "[f]oreign offices which
did so would have little time for anything else."102 He also maintains the
interesting thesis that reliance on this procedure as a factor in the making
or the restraining of the formation of customary international law is too
narrow and more restrictive than necessary for the recognition and validation
of new rules. He points out, on the contrary, that the sources and the flow
of decisions in the process of forming a new customary norm of international
law is much more flexible and pluralistic. He states, and this writer agrees
fully with his argument, that:

This diplomacy is usually conducted verbally by ambassadors, representatives, consuls,
visiting businessmen, and so forth. The range of negotiating tactics is quite vast, including
threats to corporate assets of the other country's nationals that are located in the
complaining state, retaliation by raising tariff barriers, reduce foreign economic or
military aid to the target state or its allies or dependents, support another country's
hostility to the target state, vote against the target state in the United Nations, and
related threats or warnings.103

The fact that the United States, the major protesting state against the
creation of prohibited zones (or war zones) in both World Wars, embraced
the policy of creating them after becoming a participant in both, tends greatly
to undermine the significance of both sets of her protests. In any event, and,
in addition, following the principle that "actions speak louder than words,"104
the United States' affirmative policy regarding maritime exclusion (war)
zones after she became a belligerent should carry more weight than her
previously published protests as a neutral. It should be noted, too, that in
World War II, while neutrals such as the Netherlands and Norway regarded
the British resort to maritime exclusion zones as contrary to international
law down to May 1940, thereafter these two countries, through their
governments-in-exile, supported such zones, as did the United States after
its entry into World War II. In light of the subsequent conduct of the states
that engaged most vociferously in voicing their diplomatic protests against
the declaration of maritime exclusion zones, the conclusion may be drawn
that the diplomatic protests lodged against the declaration and enforcement

Goldie 181

of exclusion zones established by the Entente Powers in World War I as well
as the United Nations in World War II are of dubious efficacy and carry
little or no weight in restraining the emergence of a customary international
law norm legitimizing maritime exclusion zones. This is the case despite the
fact that these regimes in their various forms, encroach upon the doctrine
of freedom of the high seas and despite their effect of curtailing the traditional
rights and immunities of neutrals.

With regard to the diplomatic reaction to the British Total Exclusionary
Zone of April 30, 1982, the Soviet Union, as has been noted,105 took a critical
stance. But, because the Soviet Union was the only non-belligerent that
complained about the TEZ and, furthermore, because the British did not
attack any neutral ships within the zone, it would appear that most interested
states acquiesced in it as reasonable. Nor did the Soviet Union have any more
than a theoretical basis for its academic comment. That is, she engaged in
the relatively unusual, according to Professor D'Amato, act of protesting
without being injured and on the basis, merely, of a theoretical disagreement
with the British announcement.106 The Soviet Union had received no injury
in fact, and hence the basis for its diplomatic protest may be questionable.
Finally, because the Soviet Union's mode of characterizing the zone did not
accurately reflect the British policy of ensuring safeguards for neutrals,107 the
Soviets' protest cannot be regarded as having significantly effective validity
in restraining the emergence of customary international law norms on the
subject.

IV. Customary Law and the Usages of War:

the Substratum of Modification and The

Relevance of Military Utility

A, Relativism, Military Economy108 and the Role of Law

The Romans may have believed the maxim inter arma silent leges, but today,
unless a contest becomes "absolute"109 in the Clausewitzian sense or "total"
in the nuclear holocaust sense, there are, necessarily, areas of common interest
where the principles of humanity, reciprocity and utility have important
functions. In addition, as has already been observed, the value of military
economy,110 which provides the sound basis for planning any campaign, gives
rise to a second development, namely the mutual respect of common restraints
as a matter of common interest. In his defense of the utility of international
law, Sir Hersch Lauterpacht pointed out:

At the same time, in view of the humanitarian character of a substantial part of the
rules of war it is imperative that during the war these rules should be mutually observed
regardless of the legality of the war. For it is these rules which, on the whole, have
been generally observed in the past — for the reason perhaps that they do not seriously
interfere with the achievement of the major purpose of the war.111

182 Law of Naval Operations

Indeed, building upon Lauterpacht's thesis, it is possible to say that in all
wars, except those that Clausewitz identified as "absolute " (and considered,
in the pre-nuclear age in which he lived, to be impossible to wage112), the
interest of both or all belligerents is that rules which temper the ferocity of
waging war, and especially those that confer a benefit in terms of military
economy, should be observed. This prudential economy of force is not so much
a matter of a warrior's self-image as being sans peur et sans reproche, as of military
utility and each belligerent's self-interest in expending the minimum of force
for achieving the object of the contest and of maintaining a reserve of force
to meet further contingencies.113 Furthermore, Clausewitz accepted the fact
that the inherent "frictions,"114 "checks," and "modifications" inherent in
"the apparatus of War," and "the non-conducting medium which hinders
the complete discharge"115 of belligerent powers (energy), acted as restraints
on focusing the complete direction of energy, without any diffusion, onto
the object of the war itself. In addition, in our own day, we have come to
call, not for the "utmost use of force,"116 but "limited" applications of force
in the sense that the whole power of the state is not concentrated into an
all-consuming effort of will to which all other considerations are
subordinated. For it is highly probable (or well-nigh inevitable) that the more
intense becomes the focus of the will to win the greater will be the temptations
to flout relevant rules of international law, especially if these are perceived
as restraints on the will to victory. While soldiers and statesmen are mistaken
in perceiving the rules of international law as adding to Clausewitz 's "non-
conducting medium" acting as a restraint on the complete direction of energy,
the possibility of their doing so may render the atmosphere of all-out effort
inimical to the observation of lawful conduct.

B. Limited War: When Militarily Viable and, at the Same Time, Receptive of
Humanitarian Law

Von Clausewitz tells us that political ends may decree that a precise balance
should be struck between means and ends.117 While not resorting to the "utmost
use of force," a country waging a limited war must yet master its enemy within
the limiting frame of that type of warfare. The commander should act "to a
certain extent upon the principle of only applying so much force and aiming
at such an object in War as is just sufficient for the attainment of its political
object."118 Experience also illustrates this point. For example, Professor Levie
has pointed out that the 1982 Falkland Islands Conflict provided an example
in which the fighting was kept within bounds so that the future of the laws
of war, having the traditional effect of temperamenta belli, remained quite bright,
since in that conflict, the localization of the hostilities, which was assisted by
the proclamations of six of the seven exclusion zones, kept the war "a
gentlemen's war".119 A geographically more diffuse conduct of the hostilities
would have led to much more violent and destructive operations, indeed to those

Goldie 183

political frenzies which undermine the will to observe the laws of war in an
obsessive determination to triumph at all costs.

The thesis presented here is that, first, we should view the intensity of the
war in which the issues of legality arise as a possible variable influencing the
willingness of each of the combatants to see its own interest in abiding by the
rules of war. Thus, for example, as Professor Levie tells us, a limited war at
sea may be one in which the rules of war are observed and developed by new
conditions. But some wars, for example such wars of national liberation as the
Algerian revolt against French colonial rule, were, at least according to some
writers, limited wars, yet were redolent with inhumane excesses. Thus a
military commander present in Algeria during the uprising there that led
eventually to independence, and who had a crucial counter-insurgency role to
play, has confirmed that such wars are not, and cannot, of their nature be,
"gentlemen's wars," but ones of terrorism, widespread atrocities and genocide.
Those crimes were not (in the Algerian context) committed so much on the
part of the incumbent government, which usually had to work under the eyes
of the press, television news and the public, but rather by the insurgent groups.
Thus, that officer (the author Roger Trinquier) wrote:

In the month of September 1958, the forces of order took possession of the files of a
military tribunal of one of the regions of the F.L.N. In the canton of Michelet alone,
in the arrondissement (district) of Fort-National in Kabylie more than 2,000 inhabitants
were condemned to death and executed between November 1, 1954 and April 17, 1957. 120

In many wars, be they the "total" wars as exemplified by the two World
Wars, or certain "local wars" such as, for example, the Iran-Iraq War (1980-
1988), or wars in which terroristic insurgencies pit themselves against
incumbent regimes, the parties' adherences to the laws of war become
subordinated to their all-absorbing, indeed obsessive, struggle for survival.
But in between the two extremes of "gentlemen's" limited wars on the one
hand, and the self-imposed limitations of an incumbent regime in its fight
against terrorism on the other, there do exist, owing to a possibly prevailing
political climate between the adversaries, considerations for statesmen who
see beyond the conflict itself to the post-war settlements. When such a
prudential far-sightedness prevails, wars may be waged in truly limited modes
and are subjected by their participants to the governance of the laws and
usages of war. Of these the Sino-Japanese War of 1894-95, the Russo-Japanese
War of 1904-04 and the 1982 Falklands Conflict provide practical models.

C. Emergence of the Maritime Exclusion Zones as Customary Law: A Matter
of Contexts

(1) General Recapitulation

At the outset of this chapter the presentation was in terms of the emergence
of maritime exclusion zones in the context of the famous long distance

184 Law of Naval Operations

blockades of World Wars I and II. These were reviewed in terms of the
distinct, but frequently overlapping, criteria of defensive versus offensive
objectives and of persisting versus raiding combat or logistical strategies and
tactics. The survey of these regimes began with the Japanese defense zones
in the Russo-Japanese War of 1904-05 and the United States defense zones
which were established in April 1917 on the model of the earlier Japanese
zones. While those defense zones may be regarded as having the status of
accepted custom, the more controversial long-distance blockading, prohibited
maritime zones or logistical strategies may not yet appear to have received
unqualified, universal endorsement of legality. But, subject to the test of
proportionality and reasonableness, and especially when created for purposes
of maintaining a persisting logistical strategy supported by an adequate ratio
of force to time and space, they may appear to be moving conditionally into
the light of recognition as customary international law. Writing in 1952, Sir
Hersch Lauterpacht stated:

[MJeasures regularly and uniformly repeated in successive wars in the form of reprisals
and aiming at the economic isolation of the opposing belligerent must be regarded as
a development of the latent principle of the law of blockade, namely, that the belligerent
who possesses the effective command of the sea is entitled to deprive his opponent of
the use thereof for the purpose either of navigation by his own vessels or conveying
on neutral vessels such goods as are destined to or originate from him.121

In contradistinction from Sir Hersch Lauterpacht 's thesis, the argument in
this chapter is that, for the evolution of an even-handed, predictable system
governing exclusion zones, it is necessary for scholars to be discriminating;
otherwise a Panglossian position could evolve which merely states that the
commander of the sea may dictate, merely by virtue of his power, what the
law allows. Furthermore, the phrase "commander of the sea" is ambiguous.
In World War I Great Britain held undisputed command of the surface of
the sea. Yet this command did not command Germany's indiscriminate
submarine warfare. After the United States entered the war new
developments, as well as a far greater concentration of naval forces, narrowly
defeated that almost overwhelming threat. Thus, the issue of legality should
be tested by more discriminating criteria than upholding the strategies that
combatants may view as necessary for their belligerent successes.

Aspects from the considerations already stressed reveal that due regard
must always be had for the principles o( humanity, proportionality,
reciprocity, and utility. Humanitarian law imposes its standards, and they may
be most effective when they can be shown to combine with the principle
of military economy to moderate the ferocity of fighting's side effects and
limit the violence of war's impact upon those drawn into its vortex.

(2) Exclusion Zones as Facultative Instruments

The point has already been made that Admiral Doenitz was not found guilty
of the charges which arose from his orders to the German U-boat arm to

Goldie 185

engage in unrestricted submarine warfare contrary to the London Navy
Treaty of 1930 and the 1936 Naval Protocol. This decision was ambiguously
reached, as to principle, after the Tribunal had received evidence of British
and United States methods of waging unrestricted submarine warfare,
respectively, in the Skagerrak and the Pacific Ocean.122 A distinction should
be drawn, however, between the British maritime exclusion zone (namely
of the Skaggerak) and that proclaimed by the United States. This latter zone
consisted of the whole Pacific Ocean. The question thus becomes one of
reviewing Maritime Exclusion Zones in terms of both the strategies they
facilitate and of the values they promote.

(a) The Exclusion Zone of the Skaggerak

The Skaggerak is an arm of the North Sea on its eastern side and lies
between Denmark and Norway. It is some 150 nautical miles in length and
85 miles in width.123 By contrast with this relatively restricted area, the Pacific
Ocean covers approximately one-third of the Earth's surface. While both
declarations may be found to be legally supportable, a basic distinction should
be made between the grounds of their respective justifications. The argument
vindicating the British proclamation of the Skaggerak as a maritime exclusion
zone under emerging customary international law may be accepted, since the
strategy for enforcing the exclusion of the adversary from the zone was an
apparently successful one. It was a persisting logistical strategy enforced by
both aircraft and submarines providing an adequate ratio of force to space.
This proposition can be analyzed out into the following elements.

(i) The zone was reasonable in area, and despite German surface naval
power, the logistical strategy was persistently maintained and was made
effective through submarine and aerial warfare;

(ii) The object, while not primarily one of self-defense, was for the related
purposes of:

(a) Hampering the German utilization of Norwegian territory as a
base for attacking the British Isles and North Atlantic convoys (including,
of course, those going to Murmansk with aid for Russia);

(b) encumbering Germany's reinforcements and supplies destined for
its oppressive occupation of Norway — a victim of Nazi aggression;

(c) the target shipping had military objectives and purposes and could
not be viewed as carrying supplies which had the object of benefitting the
civilian population of Norway; and

(d) the ratio of the area to the force deployed was proportional to
the military objective in hand.

(b) The Pacific Exclusion Zone

By contrast with the Skaggerak, the Pacific Ocean, the world's largest,
has an area of 69,000,000 square miles and stretches from the Arctic Circle
to Antarctica.124 An announcement of indiscriminate sinking by submarines
in such a vast area may not, it is suggested, reasonably be regarded as the

186 Law of Naval Operations

enforcement of a maritime exclusion zone, except by a naval service many
times larger than the enormous force that the United States Navy deployed
there. It is believed, furthermore, that the adjunct of a continuing presence
of air power would have been a necessary adjunct for ensuring an effective
persisting logistical strategy. For one thing, in so vast an area a submarine
fleet of almost any size, on its own, cannot satisfy the requirement of
"effectiveness. " The sinking of ships thus becomes contingent on the presence,
coincidentally, of a target ship and targeting submarine in proximity to one
another.

Alternatively, as the case of the United States submarine service's
operations in the Pacific illustrated, these coincidences tended to concentrate,
before the liberation of the Philippines, in Philippine and Japanese home
waters. Accordingly, although the United States Navy identified the whole
Pacific as the exclusion zone, in fact the areas of actual attack tended to be
where concentrations of Japanese shipping were to be found and where the
submarines were ordered. Hence, in the zones of actual combat there was
an adequate ratio of force to space and time. But the space so treated was
far smaller than the Pacific Ocean.

Of course, strategic and intelligence issues created an advantage in leaving
the defined zone as the larger area, since the element of surprise, which
provides the submarine with its single most important asset, could be lost
if, as the war progressed, different, more limited, and more proportionate
exclusion zones were progressively announced as the Allied Forces
approached the Japanese home islands. In effect, in the smaller sea areas where
submarine tactics were effective, persisting logistical tactics maintained the
necessary effective pressure on Japanese shipping; but the raiding strategy
on which this mode of warfare was founded, by reason of the extent of the
maritime prohibited zone, did not provide effectiveness.

On the other hand, while strategic convenience and utility may call for
the announcement of the larger area, the legal rule of reasonableness does
not reinforce the strategic consideration, since it is not reasonable to expect
an effective enforcement, at all points of the Pacific Ocean, of the prohibition
to shipping indicated in the proclamation or enunciation of such a zone.
Rather, the U.S. submarines, like the German wolf-packs in the North
Atlantic, tended to resemble more the "corsair" type of traditional maritime
warfare (with the difference, of course, that the submarines were regular
naval units, not privateers) rather than the enforcement of a specific maritime
exclusion zone. On the other hand, while such an announcement as that of
Admiral Nimitz of the vast maritime exclusion zone, which in itself was
tantamount to a hunting license in the conduct of a raiding strategy, may
not have found justification under any emerging customary norm — being
more an analogy to a policy of worldwide indiscriminate submarine warfare
than to the creation of a lawful maritime exclusion zone.

Goldie 187

The United States Navy's submarine strategy may, alternatively, be
justified as a reprisal against the Japanese methods of waging war, from the
surprise attack on Pearl Harbor on December 7, 1941, to that country's
inhumane treatment of prisoners of war and of civilian internees caught under
their occupation and, hence, not participating, pro tanto, in the emergence of
a customary norm of international law. In addition, it should be noted, the
Japanese, on their part, waged an inhumane and indiscriminate, even if
relatively ineffective and militarily inept, submarine warfare on their own
part. This mode of warfare on the part of Japan clearly marked, despite its
relative ineffectiveness, the reprisals the United States Navy enforced by the
submarine arm. Thus, the surprise advantage accorded by the vastness of the
Pacific Ocean, which might be seen as negating the reasonableness of the
United States declaration under an emerging rule of customary international
law, may not be abrogated. It should instead properly be justified under the
law of belligerent reprisals rather than as participating in the emergence of
a customary norm of international law permitting states, who comply with
the necessary criteria, to establish maritime exclusion zones.

Again, the "exclusion zones" created by Iran and Iraq do not seem to have
been relevant to those countries' attacks on each other's shipping or to attacks
that they made on the shipping of third (neutral) parties. With regard to the
Falklands Conflict, in light of the above argument it is believed that the
exclusion zones established by both sides, including the "British Bubble," but
excluding the last of the Argentine proclamations, namely of the "South
Atlantic War Zone" on May 11, 1982, were valid, and testify to the emergence
of the relevant customary norm. That last Argentine proclamation was both
vague as to area, and random, and hence militarily ineffective, as to
enforcement. Accordingly, it should be found to have failed in the test of
reasonableness. Indeed, as the United States Court of Appeals for the Second
Circuit pointed out in the Amerada Hess case125 the sinking of the Hercules was
an international wrong. In reaching this conclusion, the court ignored
(correctly, it is suggested) any relevance that the Argentinian Declaration
of the "South Atlantic War Zone" might have had as a justification, had it
not resulted in a randomly chosen raiding action.

While, perhaps, the view already quoted from Professor Lauterpacht, and
reiterated by Professor Julius Stone126 may be overbroadly permissive, the
opposing thesis recently expressed by Ross Leckow that "the implementation
of war zones can be justified only in very restricted circumstances . . ."127
and his restricted condonation of resort to this device in terms of
"reasonableness"128 is not supported without a necessary spelling out of the
meaning of the word in terms of strategies and goals, and in terms of means
and methods relative to those strategies and goals.

188 Law of Naval Operations

V. Summary Conclusion

At the present time, more than in Clausewitz's day, war has taken on a
chameleon-like character. It now depends on politics both as to means and
to ends. Thus law necessarily must adjust to the variable social and ideological
substrata upon which its pursuit depends in all their protean forms.
Accordingly, while the following quotation from the late Professor Julius
Stone's magisterial work on the regulation and control of conflict situations
is seen as uttering an important insight, it should be treated as an invitation
to rethink the emerging rules, and to treat states' conduct in the area, and
the consecration of allegedly emerging rules with discriminatory reservation,
rather than the undiscriminating proposal of a new norm of customary
international law covering most, if not all, of the relevant situations. Stone
eloquently and perhaps even cogently wrote:

It is idle to seek to reduce this matter to a cri de coeur of humanity. War law, even
at its most merciful, is no expression of sheer humanity, save as adjusted to the exigencies
of military success, a truth as bitter (but no less true) about attacks on merchant ships,
as about target area saturation bombing. And it is also quite idle for Powers whose
naval supremacy in surface craft enables them to pursue the aim of annihilating the
enemy's seaborne commerce without "sink at sight" warfare, to expect that States which
cannot aspire to such supremacy will refrain from seeking to annihilate that commerce
by such naval means available to them as submarines, aircraft and mines. To refuse to
face this will save neither life nor ship in any future war; and it will also forestall the
growth of real rules for the mitigation and suffering under modern conditions.129

Stone's observation about practicalities and expectations is without doubt
correct. The experience of two World Wars tells that legal change in the
direction towards which the late Professor Stone points is becoming
crystallized. On the other hand, while the insight and direction of the
quotation reflects contemporary needs, it tells us little about testing the
distinction between acceptable and unacceptable formulations for declaring
maritime exclusion zones and resorting to submarine warfare to enforce them.

The preceding pages have sought to foreshadow and examine
discriminating tests for determining whether a maritime prohibited zone is
entitled to deference and compliance, as being lawful, or whether it should
be resisted by third parties as unlawful. It is now useful to analyze and subsume
models of the types of maritime prohibited zones that have been met in history,
including very recent history, under the heads that have been developed in
terms of goals and strategies. But before that analysis is presented, a general
point should be made: while circumstances may dictate whether or not
publicity, and the giving of a timely notice, may, or may not, be to the
strategic advantage of a belligerent (as for example it was clearly so in the
case of the British Falkland Islands proclamation that took effect on April
12, 1982130), publicity is clearly a necessary precondition for the legal validity

Goldie 189

of every exclusion zone. In this context, Fenrick has correctly argued that
the declaring state should:

[Pjublicly declare the existence, location and duration of the zone, what is excluded
from the zone, and the sanctions likely to be imposed on ships or aircraft entering the
zone without permission, and also to provide enough lead time before the zone comes
into effect to allow ships to clear the area.131

This paper will now summarize and review the arguments that have been
developed in terms of ends and means, goals, strategies and methods, and
tactics in resorting to maritime prohibited zones as instruments of waging
war.

A. Defensive Goals and Persisting Logistical Strategies

First, it is suggested that purely defensive zones of reasonably limited
extent, regarding which a timely and public notice to all affected ships and
aircraft has been given, for example those established by Japan in the Russo-
Japanese War, 1904-05 and by the United States in 1917, 132 have always been
acceptable to other maritime powers, even though they did trespass onto the
high seas as then delimited. Despite their far greater extent than those of
1904 and 1917, the British and Argentinian exclusion zones (except for that
latter country's last proclamation of such a zone which sought to constitute
the South Atlantic Ocean as a maritime prohibited zone) in the Falkland
Islands Conflict of 1982, were lawful on the same grounds.133 These may,
accordingly, be justified on the basis of the publicity of their announcement,
the specificity of their delineation, the fact that adequate time was given for
affected shipping to quit the area, and the restraint (and proportionality)
exercised in the enforcement.134 Furthermore, after the arrival of the
expeditionary force, the British zones reflected a defensive strategy
(although, necessarily, they were part of their proponent's attacking tactics),
were logistically persistent and involved an adequate ratio of force to space
and time. Hence they also satisfied the traditional, but still prevailing,
customary international law rule which requires effectiveness,135
proportionality, reasonableness and, so far as the United Kingdom was
concerned, appropriateness for advancing that country's lawful purpose,
namely compliance of both sides with United Nations Security Council
Resolution 502.136

At this point it may be noted in passing that "Operation Market Time,"
which was enforced by the United States Navy during the Vietnamese War
was legally valid since it was a law-enforcement operation limited to a
distance of twelve miles from the low water mark of South Vietnam (it did
not extend north beyond the DMZ) and so within the domestic competence
of South Vietnam, which legislated to empower the activity. Since that
operation was conducted entirely within the territorial sea and contiguous

190 Law of Naval Operations

zone of South Vietnam, it does not come within the perspective of the present
paper.137 Similarly, the blockade of Haiphong and other North Vietnamese
ports was justified in the Naval Commander's Handbook as being "in conformity
with traditional criteria . . .,"138 and should not be regarded as falling within
the emerging concept of maritime prohibited zones, but rather of the
traditional notions of blockade.

B. Defensive Goals Expressed in Raiding Logistical Strategies and Tactics

The establishment of unacceptable and hence invalid maritime defensive
zones for the purpose of warning an enemy that shipping could be attacked
without further warning, but which cannot be consistently sustained, was
exemplified by all three of the Argentinian proclamations. Apart from
Security Council Resolution 502, 139 which declared Argentine presence in the
Falkland Islands (Malvinas) to be unlawful, the first two Argentine
proclamations may be viewed as lawful in terms of jus in hello in
contradistinction to any reference to arguments in terms of jus ad helium. But
that country's third legally indeterminate and ineffective proclamation of
May 11, 1982, failed to comply with any criteria of validity.140 On the other
hand, it appeared that none of the three could be sustained by a persisting
logistical strategy, so that, on the basis of effectiveness in terms of an adequate
ratio of force to space and time, they all become questionable as only being
sustained by raiding tactics. These tactics, and the strategy from which they
were derived, are no more than the exploitation of the forces' nuisance value.
While causing loss of life and supplies, they were too sporadic to affect the
adversary's will, or the outcome of the contest. The criticism, in earlier
paragraphs, of the United States' establishment of the Pacific Ocean as a
maritime zone from which Japanese shipping was purported to be excluded
during World War II, reflects the non-validating combination of the criteria
of defensive goals expressed through logistical raiding strategies and tactics.

C. Aggressive Goals and Persisting Strategies

In the Indo-Pakistan War the Indian Navy established an exclusion or
blockade zone outside the Pakistani port of Karachi. No specific zone was
proclaimed, but any shipping, regardless of flag, was targetted on the high
seas. India had a sufficient ratio of power to space to maintain its attacks
on neutral shipping both within and without the zone of blockade. That is,
while the purpose was aggressive, Indian power was sufficient to maintain
a persisting and effective control of the zone affected as well as sea areas
beyond it. The reasons that this persisting exercise of power did not become
the target of angry repercussions in the rest of the world have been ascribed
to the following factors:

(i) The conflict itself was "short-lived — about a week;"141

Goldie 191

(ii) Because of the shortness of the time of the blockade, Professor
Daniel O'Connell believed that there was little time for reaction. He observed
that, *[h]ad the naval blockade been prolonged and strictly enforced,
however, the situation might have become very different, especially if the
important tanker traffic through the Straits of Hormuz had been
incommoded; ' '142

(iii) Most of the shipowners who did suffer loss recovered through their
insurance brokers under war risk clauses. In O'Connell 's phrase, they
"shrugged their shoulders" at the destruction that the Indian Navy inflicted.
O'Connell did, however, also mention the case of the sinking of a Spanish
ship. This ship's case "was taken up by the Spanish Government, which
demanded compensation from the Indian Government."143 He added: "This
was refused."144

Although, from the lawyers' point of view, the issues raised by this conflict
may have been left in an indeterminate and unresolved condition, their
incompleteness provides an important invitation to resolve the facts left
dangling in this way under international law. The Indian experience shows
how the maintenance of an aggressive, persisting logistical strategy
necessarily must be classified as illegal, despite its effectiveness, since the
aggressive use of force against neutral shipping not concerned in the war is
contrary to the basic principles of international law and the principles and
purpose of the United Nations.

D. Offensive (Aggressive) Goals Supported by a Raiding Strategy

Although in both World Wars Germany proclaimed prohibited zones in
which her submarines would sink merchant shipping, including neutral
shipping on sight and without warning, the system was not one of maintaining
a prohibited zone as such, but of creating hunting licenses for submarines.
The zones were not predicated on the defensive requirements of the German
homeland. Thus, they may be contrasted with the actions of Japan in 1904145
and the United States in 1917146. In addition, they were carried out in
fulfillment of a raiding strategy which depended on raiding tactics.147 At no
time was there any attempt to hold a sea area by means even of persisting
tactics, let alone of an effective and persisting strategy. The idea of
establishing and validating a prohibited zone simply by means of a raiding
strategy implemented by the surprise excursions of submarines on sink-on-
sight hunting missions constitutes a complete contradiction of the notion of
maintaining, effectively, a prohibited maritime zone.

While the sea areas proclaimed as prohibited to their adversaries (such as
those by Germany in both World Wars and the United States in World War
II) may not qualify as lawful maritime exclusion zones they may, possibly,
be justified under some alternative rubric. For example, the United States
zone might well have been upheld, at the time of its proclamation, as a reprisal

192 Law of Naval Operations

for previous illegal acts or policies by the Japanese naval and military forces.
Such zones, however by their very nature, cannot be classified as complying
with the requirements of self-defense, proportionality, reasonableness, and
effectiveness. Nor can they be seen as providing validating persistent logistical
strategies through effective and comprehensive enforcement throughout the
zones proclaimed. Hence, they may not be viewed as legitimated by any
emerging rule of customary international law dependent on effectiveness and
reasonableness.

An argument pointing, possibly, in favor of the validity of the German
North Atlantic maritime exclusion zone and the United States zone of the
Pacific may be founded on other, narrower, grounds, namely that the ships
attacked were part of the enemy's war effort and were naval auxiliaries, not
true merchant ships. This would leave as impermissible, however, attacks on
neutral shipping. It would, further, lead to characterizing aggravated and
unnecessary attacks on survivors in lifeboats, on lifeboats, or clinging to
wreckage or other flotation gear as war crimes for which there would be
neither excuse nor defense.148 But this issue relates only to the limits imposed
by humanity and necessity on the specific acts which a state or a commander
undertakes when implementing a raiding strategy and faces the consequences
of his immediate resort to raiding tactics. He runs a high risk of being
stigmatized for engaging in the impermissible conduct that his actions may
well entail. Such inhumane conduct as that attributed, for example, to Karl-
Heinz Moehle,149 and testified to in The Peleus Case150 remain impermissible
under the Nuremburg Principles and decisions.

E. Persisting Moveable Defense Maritime Zones Effectuated by Persisting Tactics

Reference has already been made to the defense "Bubble" established by
the United Kingdom on April 23, 1982. 151 O'Connell has pointed out that prior
to that war operational zones consisting of a moveable circle centering on
a naval or amphibious task force, "have the benefit of the precedent of the
Spanish Civil War".152 This reference relates to the very interesting and
largely forgotten Nyon Arrangements.153 Such a "moveable war zone" will
assuredly have a wide application in the future. When shown to be consistent
with such criteria as reasonableness, self-defense, and proportionality
between means and ends, these zones are within what may be legally
permissible. Professor O'Connell wrote in support of them "that they would
not have the characteristics of the war zones condemned at Nuremberg."
He warned, however, that "[t]his is not to eliminate legal doubts about the
matter, but rather to indicate that the law appears to be sufficiently malleable
to give naval staffs a certain freedom of manoeuvre in their planning."154

F. Conclusion

This chapter has sought to relate the question of the possibly emerging

Goldie 193

legality, under international law, of certain types of maritime prohibited
zones as instruments of war strategy. They have been seen, largely, but not
entirely, as involved with logistical strategies, although these zones may also
of course, be used to redirect shipping at the belligerent's strategic and tactical
battle convenience, provide an early warning defensive system, and limit the
area of belligerent activities in any specific contest. It is, of course, true that
the goals of the interdiction of supplies to an enemy, the redirection of
shipping, the establishment of defensive zones and the limitation of the area
of a contest, are all lawful goals. The means and methods, including the
strategies and tactics that provide the modalities of achieving these goals, may
not necessarily or inevitably be justifiable. Lawfulness will, of course, depend
on their specific characteristics and objectives. Also, some goals for which
maritime exclusion zones may be deployed, for example, waging an
aggressive war or for facilitating an act of aggressive and surprise attack on
an unsuspecting victim, or indiscriminately operating against neutral shipping
and failing to observe the principle of distinction, are clearly unlawful and
are to be avoided by states proposing to establish such zones.

With regard to lawfulness of the means and methods employed in furthering
lawful ends, the attempt has been made to review the various strategies and
tactics as they tend to be employed to facilitate the belligerent's goals. While
some of those may be tainted with the unlawfulness of the ends for which
they are used, others are, and should remain, unlawful per se on the grounds
of their being tainted by their inherent wrongfulness. Their means alone are
fatal to their legality. Examples of such tainting elements include their
unreasonableness, their want of specificity of definition in space and time
(including their failure to allow adequate time for neutral shipping to quit
the proclaimed area), their ineffectiveness, and their lack of proportionality
to the ends sought. Others may be invalidated by acts of specific inhumanity
involved in their enforcement. They are also unlawful if they are simply used
as means of giving further effectiveness to raiding strategies.

This paper's purpose in coupling strategies and tactics involved with their
goals was to examine the possibility of consecrating some maritime prohibited
zones, especially those that scrupulously observe the principle of distinction
and respect the rights of neutral shipping and commercial activities, as
becoming increasingly acceptable and hence lawful by distinguishing them
from those that remain unlawful. This was done in terms of viewing the
strategies and the tactics to which the belligerent power resorted for the
purpose of implementing the zone as part of its overall maritime war strategy
and as part of his obligation to respect the rights, privileges and immunities
of third parties. That is, the relevant strategies and tactics employed were
examined in terms of determining the lawfulness not only of ends, but also
of means and methods. This study has reviewed the interfusion of means and
ends, and the manner in which they inseparably color, condition, and

194 Law of Naval Operations

characterize one another. Finally, a basic theme of this paper has been the
review of those criteria for appraising the emerging legality of at least those
maritime prohibited zones which show effectiveness, persistence, the
principle of distinction, respect for neutral rights, humanity, and
proportionality.

Notes

* Professor of Law (Emeritus), Director, International Legal Studies Program, Syracuse University
College of Law. Stockton Chair, Naval War College, 1970-71. This chapter has been written in connection
with the ongoing project on "The International Humanitarian Law Applicable to Armed Conflict at Sea"
and in part satisfaction of grants for the above project from the Ford Foundation and the United States
Institute for Peace. The supplemental support of the Center for Interdisciplinary Studies of the Syracuse
University College of Law is also gratefully acknowledged. The opinions, findings and conclusions
expressed in this publication are those of the author and do not necessarily reflect the views of the United
States Institute for Peace or those of the Ford Foundation.

1. Sir Hersch Lauterpacht has defined maritime exclusion zones (or "war zones") as follows:

[A] war zone in maritime operations may be said to comprise an area of water which a belligerent
attempts to control, and within which it denies to foreign shipping generally the same measure
of protection which the latter might elsewhere claim.

L. Oppenheim, International Law: A Treatise, H. Lauterpacht 7th ed. (London: Longmans Green & Co., 1952),
v. 2, p. 681, note 1 [hereinafter cited as Lauterpacht 's Oppenheim]. See also, to similar effect, Julius Stone,
Legal Controls of International Conflict (New York: Rinehart & Co., Inc., 1954), p. 572 [hereinafter cited
as Stone, Legal Controls]. Under certain circumstances, a maritime exclusion zone reflects a different method
of waging war from that of conducting a traditional blockade. Such a zone may have merely the defensive
object of keeping shipping, which might otherwise constitute a threat, away from an area, for example,
of military operations. On the other hand, such zones may also be used for the purpose of denying an
adversary access to resources, economic advantages of many kinds, and war materiel. In both cases, the
object of the exclusion is logistical but may reflect a convergence of three distinct concepts: self-defense,
blockade, and combat "killing grounds" (this last being a tactical rather than a legal concept). For a
discussion of the various strategies involved, see, infra note 116 and accompanying text

2. William Edward Hall, A Treatise on International Law , Pearce Higgins 8th ed. (London: Oxford Univ.
Press, 1924) [hereinafter cited as Hall]. See also C.J.B. Hurst and F.E. Bray, eds., Russian and Japanese Prize
Cases (Buffalo, N.Y.: William S. Hein Co., 1972), v. 2, pp. 343-53 [The "Quang Nam"] [hereinafter cited
as Hurst and Bray]; T.J. Lawrence, War and Neutrality in the Far East, 2d ed. (London: Macmillan and Co.,
1904), pp. 83-91. See also, infra § II A.

3. See infra § II E.

4. U.S. Navy Department, The Commander's Handbook on the Law of Naval Operations, NWP 9
(Washington: U.S. Govt. Print. Off, 1987) [hereinafter Commander's Handbook or NWP 9].

5. Id., par. 7.7.5.

6. Id.

7. Id.

8. Id.

9. See infra notes 30-34, and the reference therein to the Declaration of Paris of 1856 and the Declaration
of London of 1909. The text accompanying those notes discusses the treaty requirement of "effectiveness"
for the purpose of establishing the validity of a blockade. For the practice of the United States with regard
to the effectiveness requirement, and as reflected in the Civil War (or "War of Rebellion") 1861-65,
See Dahlgren, Maritime International Law, Cowley ed., 1877, passim, and especially 25-61. The late Daniel
P. O'Connell teaches us that the traditional concept (effectiveness) of the blockade required that it be
"visible" and continued with the observation that it "required presence of the blockading force within
visual range of the coast, although temporary withdrawal for reasons of stress of weather was not regarded
as raising of the blockade." D.P. O'Connell, The International Law of the Sea, 2d ed. (Oxford: Clarendon
Press, 1984), v. 2, p. 1150 [hereinafter cited as O'Connell, Law of the Sea]. Indeed some writers on the
traditional concept of blockade, drawing an analogy with besieging a city, argued that the blockading
ships should be at anchor. See, e.g., Stone, Legal Controls, supra note 1, p. 508.

Goldie 195

It [i.e., the traditional concept of blockade] presupposed that anchored ships could, with safety
to themselves, maintain close physical surveillance of the blockaded ports. It also presupposed that
a blockading vessel's sight and reach was limited by the human eye and the telescope and flag
signal.

See also Lauterpacht's Oppenheim, supra note 1, v. 2, p. 779, where the author wrote:

According to one opinion, the definition of an effective blockade pronounced by the First Armed
Neutrality of 1780 is valid, and blockade is effective only when the approach to the coast is barred
by a chain of men-of-war, anchored on the spot, and so near to one another that the line cannot
be passed without obvious danger to the passing vessel. This corresponds to the practice followed
before the First World War by France, (footnotes omitted)

It should be noted that this is not the only view. See ibid., pp. 779-80, where we find a further statement
regarding the second thesis concerning the requirement that the blockade must be effective: "According
to this opinion, there need be no chain of anchored men-of-war to expose to a cross fire any vessels
attempting to break the blockade; a real danger of capture suffices. ..."

10. "Convention Relative to the Laying of Automatic Submarine Contact Mines," October 18, 1907,
T.S. 54, Statutes at Large, v. 36, p. 2332, reprinted in American Journal of International Law (Supp.), v. 2,
p. 138 (1908). See especially, articles 2 and 3. It should be noted that in Lauterpacht's Oppenheim, supra note
1, v. 2, p. 781, we find article 2 to be stigmatized as "very unsatisfactory."

11. See quotation from O'Connell, supra note 9.

12. For a brief description of "Market Time" and "Sea Dragon," see infra text accompanying notes
137 and 138.

13. See Archer Jones, The Art of War in the Western World (1987), pp. 57-59 [hereinafter cited as Archer
Jones], especially at p. 58, where the author illustrated the term (from the Persian response to Alexander
the Great's campaign in Anatolia 334-333 B.C.) as follows:

Instead of assaulting the enemy's (i.e., Alexander's) army to defeat a Greek advance, Mardonius,
the shrewd Persian Commander, had used his superb cavalry to raid the Greek army's supply bases
to compel a retreat from its strong position at Plataea.

As the rest of this chapter will testify, Professor Archer Jones's analysis and classification of the means
and methods of waging war have been seminal to this writer's perception of the social and planning realities
underlying the laws of war. It should be added that, following Professor Jones, this writer has also used
the terms "strategy" and "tactics" in the traditional sense. See id., at p. 1, where the author stated:

An analytical approach to military operations permits one to divide the topic according to the
three major components of the art of war: tactics, logistics, and strategy. Tactics should deal with
combat and with the weapons, methods, and maneuvers on the battlefield. Logistics concerns
providing the men themselves and the support of military operations, including the movement of
armies and navies and the supply of weapons, food, clothing, and shelter for the soldiers and sailors.
Strategy integrates tactics and logistics to determine the military objectives and the means of
carrying them out. Naval warfare lends itself best to a separate treatment.

14. Professor Archer Jones, id., at p. 55, also defines his seminal distinction between "raiding" and
"persisting" strategies. He writes:

Whereas the former [i.e., the "raiding strategy"] used a temporary presence in hostile territory,
a persisting offensive strategy envisioned a longer, even permanent, occupation of the territory
of the adversary or his allies. A persisting defensive strategy sought to prevent such an occupation.
On both the defensive, and the offensive, the persisting strategy envisioned the possibility of conflict
between the principal hostile forces; raiders, on the other hand, often could attain their objective
without significant military conflict and frequently sought to do so.

It also should be pointed out that Professor Archer Jones distinguished offensive and defensive tactics,
so that a force, following an offensive or raiding strategy might occupy a strong position and then follow
defensive tactics. Of course, he also envisioned the opposite — a defensive strategy enforced by offensive
tactics. But, in this chapter the use of defensive tactics for the purpose of putting raiders in a defensive
posture will be treated as engaging in offensive conduct.

15. William Shakespeare, The Tragedy of King Richard II, act II, scene 1, line 48.

16. Hall, supra note 2, p. 642.

196 Law of Naval Operations

17. Hurst & Bray, supra note 2, v. 2, pp. 343-53.

18. This concept was explained in a letter of April 23, 1982, from the Permanent Representative of
the United Kingdom to the President of the United Nations Security Council (S/14997), which stated,
inter alia, that:

In this connection, Her Majesty's Government now wishes to make clear that any approach on
the part of Argentine warships, including submarines, naval auxiliaries, or military aircraft which
could amount to a threat to interfere with the mission of the British forces in the South Atlantic,
will encounter the appropriate response. All Argentine aircraft including civil aircraft engaged
in surveillnace of these British forces will be regarded as hostile and are liable to be dealt with
accordingly.

Quoted in Geoffrey Marston, ed., "United Kingdom Materials on International Law 1982," British Yearbook
of International Law , v. 53, p. 337 at pp. 540-41 (1981) [hereinafter cited as Marston].

19. See Lawrence, supra note 2, pp. 83-93.

20. Id., pp. 86-87.

21. These United States orders were reproduced in American Journal of International Law (Supp.), v. 12,
pp. 13-22 (1918). See Hall, supra note 2, p. 642.

22. Hall, supra note 2, p. 642. See also Judgments of Lord Sumner in The Stigstad, 3 B & C. P.C. 347,
353, and Ertel Bieber and Co. v. Rio Tinto Co., Ltd., [1918] A.C. 260, 287. Hall, supra, note 2, p. 643, at note
2, also refers to the early U.S. Naval War College Blue Book as approving of the Japanese orders. See
infra note 23 and accompanying text.

23. Referring with approval to the Quang Nam case (which, of course, was prior to the Japanese orders),
the influential Naval War College Blue Book offered the following solution to a problem based on the
Japanese orders:

The master appeals to the commander of a cruiser of the United States to escort him through
this area [i.e., a maritime exclusion zone similar to those proclaimed by Japan in 1904]. The voyage
would not bring the vessels within 5 miles of the coast of State X [i.e., the belligerent proclaiming
the zone in question].

What should the commander do?

SOLUTION

The commander should decline to escort the merchant vessel though the strategic area.

He should advise the master of the merchant vessel to keep clear of the strategic area.

Naval War College, International Law Situations with Solutions and Notes (Washington: U.S. Govt. Print. Off.,
1912), pp. 114, 129.

24. Archer Jones, supra note 13, points out, at p. 488, that:

In former wars British blockades had hurt France's economy somewhat but had never had the
effect that the [1914-18] blockade had on Germany, of reducing food consumption and handicapping
industry because it had diminished or shut off the supply of such critical supplies as oil or copper.
Never, too, had France's raiding strategy of attacking English ships come as near seriously menacing
the British economy and ability to carry on the struggle as had the German submarine campaign
against the allies. The navy's logistical strategy had acquired a new and perhaps decisive power
in the industrial age.

25. Lauterpacht's Oppenheim, supra note 1, v. 2, pp. 561-62, characterized reprisals in the following terms:

Whereas reprisals in time of peace are injurious acts committed for the purpose of compelling
a State to consent to a satisfactory settlement of a difference created by an international
delinquency, reprisals in time of war occur when one belligerent retaliates upon another, by means
of otherwise illegitimate acts of warfare, in order to compel him . . . and members of his forces
to abandon illegitimate acts of warfare. . . . They have often been used as a convenient cloak for
violations of International Law.

26. For the British and Allied position in this regard, see Lauterpacht's Oppenheim, supra note 1, v. 2,
pp. 791-97, and Stone, Legal Controls, supra note 1, pp. 504-07, 508-10. More generally, for the British and

Goldie 197

German positions on their blockades as being justified by belligerent reprisals, see Robert W. Tucker,
The Law of War and Neutrality at Sea (Naval War College International Law Studies, v. XLX) (Washington:
U.S. Govt. Print. Off., 1957), p. 301 [hereinafter cited as Tucker]. See also, Clive Parry et al., eds.,
Encyclopaedic Dictionary of International Law (New York: Oceana Publications, Inc., 1986), p. 337; Basdevant,
Dictionnaire de la Terminologie du Droit International, (1960), pp. 529-30.

27. Howarth, Sovereignty of the Seas (1974), pp. 283-84.

28. Myres S. McDougal and Florentino P. Feliciano, Law and Minimum Public Order: The Legal Regulation
of International Coercion (New Haven: Yale Univ. Press, 1961), pp. 488-489 [hereinafter cited as McDougal
& Feliciano].

29. Id.

30. See "Declaration Respecting Maritime Law," April 16, 1856, Martens, Nouveau Recueil General, v.
15, p. 791, art. 4 [hereinafter cited as Declaration of Paris of 1856]. Art. 4 of the Declaration provides:

Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient
really to prevent access to the coast of the enemy.

31. Naval Conference of London, "Declaration Concerning the Law of Naval War," Feb. 26, 1909,
Proceedings of the International Naval Conference, held in London, December 1908-February 1909 (London: H.M.
Stationery Office, 1909), Cd. 4555, pp. 381-93; reprinted in Dietrich Schindler & Jiri Toman, The Law
of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 3d ed. (Dordrecht, The
Netherlands: Martinus Nijhoff Publishers, 1988), p. 845 [hereinafter cited as Declaration of London of
1909]. Note that the qualifier "really" in the Declaration of Paris of 1856 was repeated in article 2 of
the Declaration of London of 1909.

32. See Guichard, The Naval Blockade 1914-1918 (Turbet transl. 1930), pp. 16-18 [hereinafter cited as
Guichard].

33. See infra note 40 and the accompanying text.

34. See also supra notes 25 and 26 and the accompanying texts.

35. See Archer Jones, supra note 12, at p. 499. On realizing the utility of the submarine as a raider
carrying out a devastating logistical strategy, Germany began building an impressive submarine fleet as
fast as possible. She was not, however, able, by developing an adequate ratio of power to the vast spaces
of the Atlantic Ocean, to develop a persisting strategy. Her submarines were only able to fulfill raiding
strategy and so, despite German calculations, enough food, materiel, equipment, and American troops
were able to cross the Atlantic to ensure her defeat.

36. Id., Table 8.3, p. 468.

37. "Convention Relative to the Laying of Automatic Submarine Contact Mines," supra note 10, arts.
2-3.

38. See supra note 30.

39. Columbian-Peruvian Asylum Case, Judgment of November 20th, 1950, I. C. J. Reports 1950, p.
266, at p. 276.

40. Great Britain: Order-in-Council of August 20, 1914; France: Proclamation of August 23, 1914.

41. See supra text accompanying note 32 for the outline of the facts showing, that it was in Germany's
interest that the Declaration would govern the maritime commerce of both sides.

42. Guichard, supra note 32, at pp. 40-41.

43. Id., p. 42.

44. Guichard, supra note 32, argues that the term "blockade of the Central Empires" was a misnomer,
since the Entente Powers, who "had a very proper respect for the Declaration of Paris of 1856" which
"prohibits the confiscation of enemy goods sailing under a neutral flag," merely seized and either
sequestrated or returned to their owners such goods and did not confiscate them. Id., pp. 42-43. It may
be noted, however, that Guichard also refers to "the blockade" and thereafter uses the word to describe
the Entente's policy. Id., p. 62.

45. See supra note 31 and texts accompanying notes 31-34; See also, Guichard, supra note 32, at pp. 13-
19.

46. Id., pp. 108-10. See also William S. Sims, Victory at Sea (1921), passim.

47. See, supra note 31 and accompanying text. See also, supra text accompanying notes 32-34 and Guichard,
supra note 32, at pp. 13-19.

48. For a history of the negotiations of this affair, see Guichard, supra note 32, at pp. 196-202. Guichard
there records the increasing cordiality of relations in the last months of World War I, including acceptance
of the claims of the Allied and Associated Powers with regard to the long distance blockade.

49. See Guichard, supra note 32, at p. 97. For a history of this disastrously conceived piece of
Hohenzollern diplomatic adventurism, see Barbara W. Tuchman, The Zimmerman Telegram (1958), passim,
and especially chapters 11 and 12, entitled "The Telegram in Washington," and "Obliged to Believe It."

198 Law of Naval Operations

Tuchman believed that this latter activity on the part of Imperial Germany had a far stronger influence
on the United States' entry into World War I than Germany's policy of unrestricted submarine warfare.
50. Guichard, supra note 32, at p. 96.

50. Id., pp. 97-98.

51. March 3, 1918. Ratifications exchanged March 29, 1918. Denounced by the Russian Government,
November 13, 1918. Abrogated by Articles 116 and 292 of the Treaty of Versailles, June 28, 1919, Martens,
Nouveau Recueil, v. 9:1, 3 ieme Serie 323, British and Foreign State Papers, v. 112, p. 1 (1919).

52. See Guichard, supra note 32, at pp. 97-98.

53. "Order in Council Framing Reprisals for Restricting Further the Commerce of Germany," Stat.
R. & O., 1939 No. 1709. Stone calls this " a very moderate measure." Stone, Legal Controls, supra note
1, p. 504. Writers and commentators have also expressed surprise at the three-month delay. See, for
example, id., p. 504, note 1, and the authors cited therein. Regulation of neutral trade with the enemy,
however, became stricter under the Order-in-Council of June 11, 1940. "Order in Council Applying the
Order in Council of November 27, 1939, to Italy," Stat. R & O, 1940 No. 979.

54. For the Italian protest and the United Kingdom's reply, see Cmd 6191 (1940) at pp. 2-7.

55. See "Order in Council Applying the Order in Council of November 27, 1939, to Italy," supra note
53.

56. The similar claims by the United Kingdom, and later the United Nations, of a right of reprisal
because they associated themselves with Germany's methods of warfare at sea, were subsequently made
against Finland, Hungary, and Rumania. See Stone, Legal Controls, supra note 1, p. 504.

57. Id.

58. United Nations, History of the United Nations War Crimes Commission (1948), p. 492.

59. "Treaty for the Limitation and Reduction of Naval Armament," April 22, 1930, U.S. Statutes at
Large, v. 46, p. 2858, reprinted in Schindler & Toman, supra note 31, p. 881.

60. "Proces- Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of
London of April 22, 1930," Nov. 6, 1936, American Journal of International Law (Supp.), v. 31, p. 137 (1937),
reprinted in Schindler & Toman, supra note 31, p. 883.

61. Trial of the Major War Criminals Before the International Military Tribunal (Nuremberg, Germany:
International Military Tribunal, 1948), v. 22, pp. 556-61.

62. The case of the British auxiliary cruiser Baralong in 1916 illustrates the public outrage of that country
at Germany's indiscriminate submarine warfare. See, [1916] British Parliamentary Papers, Misc. No. 1
[Cd. 8144], reprinted in American Journal of International Law (Supp.), v. 10, pp. 79-86 (1916). Catching the
officers and crew of a German U-boat in the act of sinking a British merchant ship, the captain of the
Baralong ordered their summary execution on the spot. On the German Government's demand that the
British Government prosecute the latter 's commander and her ship's company for murder and punish them
according to the law of war, the British Government, without admitting the facts, justified the executions
as retaliation against the ruthlessness of Germany's U-boat policy of unrestricted sinking of merchant
ships. On the other side of the coin, see the German condemnation of the British policy of arming
merchantmen and instructing them, as a last resort, to ram U-boats, even if signalled to stop and submit
to visitation. This escalation of outrage culminated in Germany's conviction and execution, in July 1916,
of Captain Fryatt, the commander of the merchant ship Brussels for having attempted, in March 1915,
to ram the German submarine U-33. See Lauterpacht's Oppenheim, supra note 1, v. 2, p. 468, where Germany's
act was stigmatized as "nothing else than a judicial murder." See also James Brown Scott, "The Execution
of Captain Fryatt," American Journal of International Law, v. 10, p. 865 (1916). In his article, Scott, a leading
American international lawyer and Editor of the Journal at a time when the United States was still a neutral,
stated categorically:

Ramming is an effective method of defense against a submarine and the fact that a submarine is
a frail thing and cannot stand this kind of warfare is its misfortune, not the merchantman's fault. . . .

Id., p. 877. Scott concluded his Editorial Comment with the following statement:

If the views above expressed are correct that there is nothing in the law nor in the practice
of nations which prevents a belligerent merchant vessel from defending itself from attack and
capture, the execution of Captain Fryatt appears to have been without warrant in international
law and illegal, whatever it may have been according to the municipal ordinances of Germany.

Id. See also "The Brussels: Captain Fryatt 's Case," Pitt Cobbett, Leading Cases in International Law, Walker
5th ed. (1937), v. 2, p. 131 [hereinafter Pitt Cobbett]. The author commented:

Goldie 199

Germany seems to have been the first nation to question either the right of active self-defense
or the legitimacy of defensively armed merchant ships. Practice appears to have been wholly against
her contentions. With regard to war on land, however, different considerations apply.

Id., p. 132. This last distinction was made because the German Government justified Captain Fryatt's
execution on the ground that he was a franc tireur, that is, a civilian non-member of any fighting force
who, without orders, snipes from behind cover at his unsuspecting enemy. Pitt Cobbett pointed out that
the justification of making the franc tireur liable to "the severest treatment" has solid military reasons.
"The essence of the franc tireur is not his commission of hostilities, but the element of treachery — he
is a civilian one moment, a soldier the next. Having, as a peaceful civilian, watched the enemy soldiers
pass, he then snipes at them from his cottage window." Pitt Cobbett finally contrasted the franc tireur
with Captain Fryatt by pointing out that the franc tireur is under no form of discipline; there is no official
superior to whom appeal can be made should he fail to observe the usages of war. Captain Fryatt, on
the other hand, "though not a member of the armed forces of the Crown, was the head of a disciplined
body of men, and was . . . acting under the advice of the British Admiralty." Id. In fact, it should be
pointed out that Germany, perhaps not incorrectly, had, in both World Wars, insisted on treating the
British Merchant Marine as a naval auxiliary service, since those ships travelled in convoys under armed
escorts, were defensively armed and, whether travelling in convoy or not, or defensively armed or not,
were required by the British Admiralty to take active measures of self-defense if attacked, to radio the
position of any German U-boat seen by them, and to give the position of any observed underwater attack.
If Germany argued this characterization of British merchant ships as naval auxiliaries in order to approbate
their attacks on merchant ships, they should not have reprobated it in order to execute Captain Fryatt,
whom they punished for being a civilian sniper, not a uniformed member of the auxiliary service.

63. For a comment on both the limited size of the area and the German maritime activity (invasion
and occupation of Norway), see Lauterpacht's Oppenheim, supra note 1, v. 2, p. 493, note 1.

64. This was one of the notorious "Leipzig War Crimes Trials" held in Germany in 1921. See American
Journal of International Law (Supp.), v. 16, p. 708 (1922). See also Pitt Cobbett, supra note 62, v. 2, pp. 156,

158.

65. American Journal of International Law (Supp.), supra note 64, p. 722. This case should be contrasted
with the Dover Castle case, id., p. 704. The Dover Castle was also one of the Leipzig War Crimes cases.
The vessel was a British hospital ship. She was clearly marked as such and was carrying no military
personnel, munitions, or stores other than sick and wounded soldiers, members of the medical corps, and
necessary supplies connected with that service. The accused commander of the submarine, Karl Neumann,
was acquitted because the Dover Castle was sunk "in obedience to a service order of his highest superiors."
Id., p. 708. It should be noted that his latter case was distinguished from the Llandovery Castle also on the
ground that the commander did not, as did Patzig, order the massacre of the survivors in lifeboats, or
those on, or clinging to, rafts and wreckage, and in the water. See Lauterpacht's Oppenheim, supra note 1,
v. 2, p. 569. On the German Government's and High Command's policy, and order, of sinking hospital
ships on sight, see id., pp. 504-06, note 1. See also the British refusal to recognize the immunity of German
seaplane ambulances in the English channel rescuing German airmen. Id. pp. 506-07.

66. The defenses of the "Laconia Order" (superior order commanding the killing of survivors of
torpedoed ships) and of necessity were rejected. See Law Report of Trials of War Criminals (London: British
Military Court, 1945), v. 1, p. 1 [hereinafter cited as War Crimes Reports].

67. War Crimes Reports, supra note 66, v. 9, p. 75. This case also involved the "Laconia Order."

68. Id., v. 9, p. 82.

69. See Tucker, supra note 26, p. 72, note 55, where the author writes:

According to S. W. Roskill, with the one exception noted above [i.e., Helmuth von
Ruchtesschell], the captains of German armed merchant raiders "generally behaved with reasonable
humanity towards the crews of intercepted ships, tried to avoid causing unnecessary loss of life
and treated their prisoners tolerably." (footnote omitted)

70. Clearly the conflict between Argentina and the United Kingdom was a limited war, as to the
participants, the area, and the weapons employed. For a quite detailed discussion of the seven zones
proclaimed by both sides, for their characterization as "unusual," and for the comment that "[t]he rationale
for these is difficult to determine," see William J. Fenrick, "The Exclusion Zone Device in the Law of
Naval Warfare," Canadian Yearbook of International Law, v. 24, p. 92, at p. 107 (1987) [hereinafter cited
as Fenrick]. This writer believes that, at least in part, the proclamation of these zones (except for the
ill-advised last one proclaimed by Argentina, which was implicated in the unnecessary bombing of the
tanker Hercules, see, Amerada Hess Shipping Corp v. Argentine Republic, 830 F. 2d 421 (2d Cir. 1987), reversed
109 S. Ct. 683 (1989) ), helped to restrict the conflict to the disputed territory and localize the conflict.
This writer agrees completely with Professor Howard S. Levie's comment in his contribution, "The

200 Law of Naval Operations

Falklands Crisis and the Law of War," in Alberto R. Coll and Anthony C. Arend, eds. The Falklands War:
Lessons for Strategy, Diplomacy and International Law (Boston: George Allen & Unwin, 1985), p. 64 at p. 76
[hereinafter cited as Levie], where he listed the reasons why, in his opinion, the laws of war were able
to exert their restraining influence:

First, this was a limited war, fought for limited ends with limited means. . . . The adversaries
restricted their operations to the disputed territory, and refrained from military actions against
the enemy's homeland; had it been conducted otherwise, the war would have been much more
violent and destructive. . . .

71. The date 1982, shown in the text as that of the commencement of the Persian Gulf Tanker War,
is predicated on the Iraqi attack on Kharg Island on April 29, 1982, and the Iraqi announcement of a
Maritime Exclusion Zone in the Gulf on August 12, 1982. The Iran-Iraq War in general, although limited
as to participants, and as to area (but note the so-called "War of the Cities"), was not limited as to weapons
(note the substantiated resort to gas warfare by Iraq, the latest example of which at the time of writing
was reported in "Gas Explosion in United Nations," The Economist, August 6, 1988, p. 31). One can be
thankful that neither side had, apparently, nuclear devices. Unlike the Falklands Conflict, the Iran-Iraq
war did not evidence restraints as to means and methods of warfare, nor in the treatment of prisoners.

72. See infra note 85 and accompanying text.

73. Marston, supra note 18, at p. 539.

74. See supra note 30 and the accompanying text.

75. Levie, supra note 70, p. 65.

76. Marston, supra note 18, pp. 540-41. See also the text accompanying note 18.

77. Marston, supra note 18, p. 549. See Levie, supra, note 70, p. 65. A further example of the British
enforcement of "the Defensive Bubble" was the sinking of the Argentine "fishing vessel," the Narwal.
She was shadowing the British forces and was "a spy ship with an Argentine Navy Lieutenant Commander
on board sending back information about the [British] fleet's movements." Christopher Dobson et al.,
The Falklands Conflict (Falmouth, Cornwall: Coronet Books, 1982), p. 104. See also, Levie, supra note 70,
p. 67 [hereinafter cited as Dobson et al.].

78. Marston, supra note 18, p. 542. See also for a discussion of the British MEZ of April 30, 1982, in
light of the Doenitz Judgment, supra note 61, and the U.S. Navy Department's Law of Naval Warfare (NWIP
10-2) (Washington: U.S. Govt. Print. Off., 1955, as amended) [hereinafter cited as NWIP 10-2], in Fenrick,
supra note 70.

79. Marston, supra note 18, p. 542.

80. Id., p. 549. For enforcement of this zone, see letter dated May 1, 1982, addressed to the President
of the Security Council from the Permanent Representative of the United Kingdom to the United Nations.
Dobson et al., supra note 77, p. 546.

81. Marston, supra note 18, p. 549.

82. Id.

83. Levie, supra note 70, p. 66.

84. Id.

85. Supra note 70. The reversal of the Court of Appeals for the Second Circuit's judgment was on
the ground that the Court of Appeals had erred in assuming jurisdiction over a foreign sovereign with
regard to a claim that was not within the exceptions of the Foreign Sovereign Immunities Act of 1976.
28 U.S. Code § § 1330, 1332, 1391, 1441, and 1602, et seq., especially § § 1604 and 1605. The Supreme
Court also reversed the court below on the grounds: (1) That the United States' and Argentina's ratification
of the Convention on the High Seas, Geneva, April 29, 1958, United States Treaties and Other International
Agreements, T.I.A.S. No. 5200, v. 13, p. 2312, does not provide domestic United States courts with an
independent basis of jurisdiction; and (2) the Alien Tort Statute of 1789, U.S. Code, Title 28, § 1750,
does not provide an independent basis of jurisdiction. The Foreign Sovereign Immunities Act of 1976
provides the sole basis of jurisdiction in such cases.

86. Amerada Hess, supra note 70, p. 423.

87. Id.-

88. It should be noted that the United States sought to protect the neutrality of the Hercules, and the
Government emphasized her neutral status to the Argentine Government. The court stated that:

On May 23, 1982, Hercules embarked from the Virgin Islands, without cargo but fully fueled, headed
for Alaska. On June 3, in an effort to protect United States interest ships, the United States Maritime
Administration telexed to both the United Kingdom and Argentina a list of United States flag
vessels and United States interest Liberian tankers (like Hercules) to ensure that these neutral vessels
would not be attacked. The list included Hercules.

Goldie 201

Id. See also the court's comment that "it is beyond controversy that attacking a neutral ship in international
waters, without cause for suspicion or investigation, violates international law." Id., p. 424.

89. See Keesing's Contemporary Archives, Aug. 7, 1981, v. 27, p. 31006 [hereinafter cited as Keesing's].

90. It should be pointed out that damaging attacks by both sides on their opponent's oil installations
began as early as September and October 1980. Id., pp. 31015-16. See also id., June 4, 1982, v. 28, p. 31517.
For an outline of the events concerning the exclusion zones in the Persian Gulf Tanker War, see Fenrick,
supra note 70, pp. 116-22; Ross Leckow, "The Iran-Iraq Conflict in the Gulf: The Law of War Zones,"
International and Comparative Law Quarterly, v. 37, p. 629 (1988) [hereinafter cited as Leckow].

91. Asylum Case (Colombia v. Peru), [1950] I. C. J., p. 266, at p. 276.

92. The Court added the requisite psychological element by saying "and . . . this usage is the expression
of a right appertaining to the state granting asylum and a duty incumbent on the territorial state." Id.
See also Charles De Visscher, Theory and Reality in International Law, P.E. Corbett trans. (Princeton, N.J.:
Princeton Univ. Press, 1957), pp. 148-49 [hereinafter cited as De Visscher], where the former World Court
Judge wrote:

From the assimilation of custom to tacit convention, which in our judgment is quite fictitious,
must be distinguished the requirement of opinio juris sive necessitatis, regarded here as reflecting the
attitude of power in relation to a given practice. In its judgment of November 20, 1950, in the
case of the right of asylum (Colombia- Peru) — a judgment which fixes its jurisprudence on this
subject — the International Court of Justice clearly asserted the necessity of this psychological
element of custom, (footnotes omitted)

93. See the quotation from De Visscher, supra note 92, and note 27 on that page in which the author
discusses the definition in the Asylum Case. See also Statute of the International Court of Justice, art. 38,
par. 1(b), which "recognizes the existence of a custom only if the practice which is its content has been
'accepted as law.'" De Visscher, supra note 92, at p. 441. Again, in the North Sea Continental Shelf Cases
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] I.C.J. , at
p. 44, the Court reinforced its thesis in the Asylum Case with the statement that:

Not only must the acts concerned amount to a settled practice, but they must also be such, or
carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory
by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of
the subjective element, is implicit in the very notion of the opinio juris sive necessitatis.

94. Stone, Legal Controls, supra note 1, p. 508.

95. Id., at pp. 508-09. Stone took his quotation from Statement of the Measure Adopted to Intercept the Seaborne
Commerce of Germany, Misc. No. 2, 1916, Cmd. 8145, p. 4.

96. See, e.g., Anthony A. D'Amato, The Concept of Custom in International Law (Ithaca, N.Y.: Cornell
Univ. Press, 1971), p. 72, where he writes: "Kopelmanas, following the old theories of Puchta and Savigny,
suggests that 'social necessity' is the basis of opinio juris." (Footnotes omitted)

97. Thus D. P. Simpson, Cassell's New Latin Dictionary (New York: Funk & Wagnalls Co., 1960), p.
778, tells us the use of sive "in an alternative conditional clause, whether . . . or . . ., sive (or seu) . . . sive
(or seu) )." See also id., p. 558, for its use in a disjunctive sense.

98. C.H.M. Waldock, "The Legal Basis of Claims to the Continental Shelf," Grotius Society Transactions,
v. 36, p. 115, at p. 143 (1951). See also H. Lauterpacht, "Sovereignty over Submarines Areas," British Yearbook
of International Law, v. 27, p. 376, at pp. 393-420 [hereinafter cited as Lauterpacht, Submarine Areas]; Gilbert
Gidel, "The Continental Shelf" (L.F.E. Goldie trans.), Annual Law Review (Univ. of West Australia), v.
3, p. 87, at pp. 102-103 (1954-56); L.F.E. Goldie, "Some Comments on Gidel's Views," id., p. 108, at 115-
21; L.F.E. Goldie, "Australia's Continental Shelf: Legislation & Proclamations, " International and Comparative
Law Quarterly, v. 3, p. 535, at pp. 557-59 (1954). But see "Report of the International Law Commission
to the General Assembly Covering the Work of its Eighth Session, 23 April-4 July 1956," U.N. Doc.
A/3159, [1956] Yearbook of the International Law Commission, v. 2, p. 253, at pp. 295-99. Note especially
commentary (8) on draft article 68. Id., p. 298.

99. D. P. O'Connell, Influence of Law on Sea Power (1975), p. 165 [hereinafter cited as O'Connell, Sea
Power]:

When France was threatened by a plague of protesting yachts (which largely failed to materialize)
the theoretical problem was deliberately made actual. Eventually, in 1973, France's notice to
mariners went beyond declaring a zone dangereuse and for the first time in the history of nuclear
testing amounted to a temporary appropriation of an area of the high seas from which all shipping
could be excluded. One yacht was, in fact, boarded; but to hustle away H.M.N.Z.S. Taranaki or

202 Law of Naval Operations

Canterbury was another matter. The outcome was a maritime pavane, executed with some grace
and disparity, in which New Zealand made her point and France continued her testing.

Had the International Court of Justice at the Hague found that the enclosure of the seas for
the purpose of French nuclear testing was illegal, this might have ended speculation upon the legality
of naval operational zones; if it had found that the enclosure was not illegal, it would have put
a premium upon it. (footnotes omitted)

100. Myres S. McDougal and Norbert A. Schlei, "The Hydrogen Bomb Tests in Perspective: Lawful
Measures for Security," in Myres S. McDougal et al., Studies in World Public Order (New Haven, Conn.:
Yale Univ. Press, 1960), pp. 763, 766-68, 802-07, and note 172, where, at the last citation, the authors
point out that:

The United States has established well over 400 such areas [that is, areas designated in "warnings
to mariners" or similar notes of dangers to navigation either indefinitely or at certain times], ranging
in size from less than a square mile to the vast area surrounding the Bikini and Eniwetok atolls,
and in duration from a period of a few hours to many years. Other naval powers, including the
United Kingdom, Canada, Australia, and the Soviet Union, have engaged in the same practice
for similar purposes. Ordinarily, no claim is made to enforce warning areas by means of formal
sanctions, and the normal responsibility for taking reasonable measures at the scene to avoid
accidents is considered to rest with the authorities using the area for dangerous operations. Some
danger areas are, however, announced in terms which make clear that the authorities using them
are expected to enforce observance.

In rare instances, criminal penalties are provided for unauthorized intrusions. In the Defence
(Special Undertakings) Act of 1952, the Commonwealth of Australia created a prohibited area
of more than 6,000 square miles, most of it high seas, surrounding one of the Monte Bello Islands
in Western Australia, where atomic tests have been conducted by the United Kingdom, (authors'
emphasis; footnotes omitted)

See also O'Connell, Sea Power, supra note 99, and the reference to the more recent French policy of creating
sanctions for breaches of its prohibitions against vessels intruding into its South Pacific nuclear testing
area.

101. See, e.g., Lauterpacht, Submarine Areas, supra note 98, pp. 393-98; J.D. MacGibbon, "Some
Observations on the Part of Protests in International Law," British Year Book of International Law, v. 30,
p. 293.

102. D'Amato, supra note 96, p. 99.

103. Id.

104. Id.

105. See supra text accompanying note 83.

106. See D'Amato, supra note 103, and quotation therefrom in accompanying text.

107. See supra, notes 84 and 85 and accompanying text.

108. The phrase "Military Economy" describes one of the "principles of war" (meaning, not legal rules
but the prudential guides to waging a successful war) as prescribing that the commander should use enough
force for the purpose of achieving his objective. It proscribes the alternative of squandering resources.
Commanders, however, generally prefer to err on the side of "too much" rather than "too little, too
late." Von Clausewitz writes, regarding this principle:

In this manner, he who undertakes War is brought back again into the middle course, in which
he acts to a certain extent upon the principle of applying so much force and aiming at such an
object in War as is just sufficient for the attainment of its political object.

Karl von Clausewitz, On War, Graham transl., 1908 Anatol Rapoport ed. (London: Penguin Classics, 1968),
p. 375 [hereinafter cited as Clausewitz]. See also id. at p. 423, note 59, where the editor, Dr. Anatol Rapoport
observes:

Here Clausewitz admits a rational basis for a limited war. Still, in his view, the limitation of military
objectives depends entirely on the political objectives, that is, war effort is to be commensurate
with what is demanded from the enemy and what can be achieved.

See also Archer Jones, supra note 13, at pp. 630-34 and 670-75.

Goldie 203

109. Clausewitz always saw "absolute war" as being subject to "three modifying factors;" but he defined
it for heuristic purposes as embodied in a contest that can "spring up quite suddenly and spread to the
full in a moment" and consist of a "single absolute blow wreaking irreparable harm upon the enemy,"
that is, a harm in absolute terms "from which he may never recover." Such a blow is not "a passing
evil." See Clausewitz, supra note 108, pp. 367-71. See also L.F.E. Goldie, "Book Review," Southern California
Law Review, v. 36, p. 636, note 34 (1963). This review discussed, and at times compared, two annotated
translations of General V.D. Sokolovskii, Soviet Military Strategy, Dinerstein et al. trans., Rand Corporation
Research Study (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1963), and V.D. Sokolovskii, Military Strategy,
Richard Gar thoff trans. (New York: Frederick A. Prager, Inc., 1963). It should be noted that the accurate
translation of the book's title from the Russian original is "Military Strategy."

110. See supra quotation accompanying note 108, and especially the reference to "military economy" at
that place.

111. Lauterpacht's Oppenheim, supra note 1, v. 2, p. 218 (emphasis supplied).

112. The "three limiting factors" Clausewitz described in "real," as distinct from "philosophical," war
were: (1) The "non-conducting medium which hinders the complete discharge" of the will to wage war.
This includes "the number of interests, forces and circumstances of various kinds . . . which are affected
by the War through the infinite ramification of which logical consequences cannot be carried out . . . ;"
(2) "The natural inertia and friction" of the parts that go into making of a "real war" as distinct from
Clausewitz 's "philosophical war;" and (3) The "vagueness and hesitation (or timidity) of the human mind. "
Clausewitz, supra note 108, pp. 368-69. Note also Clausewitz *s comment, "Activity in war is movement
in a resistant medium." Id., p. 165.

113. Lauterpacht's Oppenheim, supra note 1, v. 2, pp. 226-36; Stone, supra note 1, Discourse 18, "Ideological
and Technological Factors in the Evolution of the Law of War," pp. 335-41.

114. Clausewitz, supra note 108, at 267-70.

115. Id.

116. Id., pp. 102-03. Here Clausewitz defines his thesis of the "utmost use of force" with the conclusion
that, "We therefore repeat our proposition, that War is an act of violence pushed to its utmost bounds;
as one side dictates the law to the other, there arises a sort of reciprocal action."

117. Id.

118. Id.

119. Levie, supra note 70, p. 76. See also Clausewitz, supra note 108, p. 403, where that famous author
gives us the following interesting metaphor:

Thus policy makes out of the all-overpowering element of War a mere instrument, changes the
tremendous battle-sword, which should be lifted with both hands and the whole power of the
body to strike one and for all, into a light handy weapon, which is even sometimes nothing more
than a rapier to exchange thrusts and feints and parries.

120. Roger Trinquier, Modern Warfare, Daniel Lee trans. 1964, (first published in French in 1961), pp.
19-20 and passim. Indeed Trinquier quoted Clausewitz 's stigmatization of "self-imposed restrictions" as
equally applying in guerilla warfare where Clausewitz 's maxim "to introduce into the philosophy itself
a principle of moderation would be an absurdity" also applies. Id., p. 22.

121. Lauterpacht's Oppenheim, supra note 1, v. 2, pp. 796-97. See also S. W. D. Rowson, "British Prize
Law, 1939-1944," Law Quarterly Review, v. 61, p. 49 at p. 57 (1945), where the author states:

In this war, except in the case of Germany, reprisals were instituted immediately war was declared,
and in effect it was the outbreak of the war that was the breach of international law which gave
His Majesty the right to initiate reprisals. One cannot help feeling that the time has come to remove
any notion that such measures, by being termed reprisals, are extraordinary. Rather should it be
made clear to the world in time of peace that in the event of this country being involved in war,
the whole system of economic warfare as in force in this war will be reintroduced. It is now clear
to all that neutrals cannot carry on during a major war without any interference whatsoever, and
it is suggested that the certainty that these measures would be adopted if occasion required would
be a valuable addition to the sanctions behind any new international order. In this connection it
is interesting to recall that in both the last and the present wars the neutral nations who were
most vociferous in their complaints of the British exercise of belligerent rights at sea have ultimately
become allied to Great Britain and shared in the advantages of her system of waging economic
warfare.

122. See supra § II. D.

123. James Mitchell, ed., The Random House Encyclopedia (New York: Random House, 1977), p. 2576.

124. Id., p. 2463.

204 Law of Naval Operations

125. Supra, note 70. See also, text accompanying notes 85-87.

126. See supra note 121 and accompanying text. See also, Stone, Legal Controls, supra note 1, at p. 510,
and quotation from Stone accompanying note 129, infra.

127. Leckow, supra note 90, at pp. 635-36.

128. Id., p. 635.

129. Stone, supra note 1, pp. 606-07 (footnote omitted).

130. See supra text accompanying note 73.

131. Fenrick, supra note 70, p. 124.

132. See supra text accompanying notes 21-23.

133. See supra quotation in text accompanying note 75. See also Levie, supra note 70, at p. 65, where
he also wrote of this early proclamation, "However, this was a perfectly valid and successful piece of
'disinformation' by the British;" and more generally, the permissible use of misinformation as a ruse de
Guerre. O'Connell, Law oj the Sea, supra note 9, v. 2, p. 1140.

134. See Leckow, supra note 90, p. 634, where he demonstrated that the British forces satisfied the
proportionality requirement. He wrote:

Ships regarded as hostile were subject to attack without warning. In order to claim the status
of "non-hostile", vessels required the authorisation of the Ministry of Defence in London. Adopting
a very balanced approach, Britain sought to apply the measures primarily against craft engaging
in military operations. Argentinian merchant ships were permitted to enter the zone with British
approval. Refining the procedures of the two world wars, Britain precisely defined the limits of
the area and provided ample notification to all parties. Further, Britain was careful to observe
proportionality, the system being enforced with a minimum of violence. Thus, British forces
avoided any conflict with neutral ships. Even unauthorised Argentinian merchant craft were merely
compelled to leave the area with no incidents of direct attack occurring, (footnotes omitted)

135. See supra notes 18, 76-80, 125 and accompanying texts.

136. United Nations, Security Council, Resolution 502, April 3, 1982, reprinted in International Legal
Materials, May 1982, v. 51, p. 679.

137. See O'Connell, Law of the Sea, supra note 9, pp. 1097-98. See also O'Connell, Sea Power, supra note
99, at pp. 76-77.

138. Commander's Handbook, supra note 4, par. 7.7.5. See also text accompanying note 8 supra.

139. Supra note 136.

140. See supra text accompanying notes 85-88.

141. O'Connell, Law of the Sea, supra note 9, v. 2, p. 1099.

142. Id.

143. Id.

144. Id. In commenting on the situation, O'Connell also states:

The naval operations conducted by India against the port of Karachi and in the Gulf of Bengal
took no account of international law, which was, indeed deliberately put to one side by the Indian
naval staff.

145. See supra text accompanying notes 16-18.

146. See supra text accompanying notes 21-23.

147. See supra text accompanying notes 35-36.

148. See supra notes 64-69 and accompanying text.

149. See supra text accompanying note 67.

150. See supra text accompanying note 66.

151. See supra text accompanying note 76.

152. O'Connell, Sea Power, supra note 99, p. 168.

153. "The Nyon Agreement," Sept. 14, 1937, League of Nations Treaty Series, v. 181, p. 137, reprinted in
American Journal of International Law (Supp.), v. 31, p. 183 (1937); and "Agreement Supplementary to the
Nyon Agreement," Sept. 14, 1937, League of Nations Treaty Series, v. 181, p. 151, reprinted in American Journal
of International Law (Supp.), v. 31, p. 183 (1937). For a history and commentary on the Nyon Agreements,
see, L.F.E. Goldie, "Commentary [on the 1937 Nyon Agreements]," in N. Ronzitti, The Law of Naval
Warfare: A Collection of Agreements and Documents with Commentaries (Dordrecht/Boston/London: Martinus
Nijhoff Publishers, 1988), p. 489.

154. O'Connell, Sea Power, supra note 116, p. 168.

Jacobson 205

Chapter VIM
The Law of Submarine Warfare Today

by
Jon L. Jacobson*

Introduction

The roles of military submarines have evolved throughout the twentieth
century. In wartime, these roles have included coastal defense,
harassment of enemy fleets, and, especially in World War II, hunting and
destroying the seaborne commerce that supported the enemy's war efforts.
Today, two principal roles for U.S. submarines, at least in any future war
with the Soviet Union, are probably as anti-submarine weapons (attack
submarines) and as strategic weapons platforms (ballistic missile submarines).
Other missions, however, could include coastal defense, attacks on the
enemy's surface fleet, projection of force ashore, and commerce warfare.1

The laws of war have never been comfortable with the submarine's unique
combination of stealth and vulnerability. As will be explained below, it is
this peculiar mix of strength and weakness that can be blamed as the root
cause of the legal dilemma, particularly as it relates to the submarine's role
as a commerce raider. The legal responses to this twentieth-century weapons
platform have ranged from early proposals for its abolition to justification
of its use under the rules of reprisal to tolerance of it as an effective war
machine with characteristics that regrettably require some adjustments in the
traditional laws of war.

The U.S. Navy's new Commander's Handbook on the Law of Naval Operations
(NWP 9) includes references to the laws of naval warfare that specifically
address the submarine weapons system and also rules that apply, or can apply,
to submarines and their roles in wartime. The ultimate purpose of this chapter
is to analyze these direct and some of the indirect references to the law of
submarine warfare. Before that discussion, however, the chapter will first
briefly review the history of both the submarine as a weapons system and
earlier approaches to the legal dilemma presented by the submarine and its
wartime uses. Next, today's submarines and their wartime roles will be
described. This will be followed by a discussion of the present state of the
law of submarine warfare. Finally, the chapter will point out and analyze
the submarine references in the Commander's Handbook.

206 Law of Naval Operations

History2

The submarine is a war machine of the twentieth century. Although
documented uses of submersible devices against the enemy in wartime
occurred as early as the American Revolutionary War, and in fact the
submarine's legality was considered at the 1899 Hague Peace Conference,
deployment of submarines as a significant part of a nation's naval forces began
only in the early years of the present century. Certainly the international
law issues that form the core of the current chapter achieved real significance
only with the conduct of naval warfare during the First World War.

The main advantage of a submarine over a surface warship is, of course,
its underwater capability. Militarily, this translates into the ability to hide
from the enemy and the ability to approach a target from its hidden position
to carry out surprise attacks. The disadvantages of the submarine can be
viewed as the price it must pay for the principal advantage of stealth, and
these disadvantages, especially for earlier submarines, have been considerable.
Submarines used by the belligerents in both world wars were small and
cramped. They were slow when running submerged on batteries, which they
could not do for long periods of time without coming to the surface to
recharge, and were not all that fast when running on the surface under diesel
power. Moreover, unlike heavily armed surface warships, the submarines of
the world wars were vulnerable on the surface to attacks, even from lightly
armed merchant vessels, and to rammings. While these submarines were
armed with deck guns and were also capable of laying mines, their principal
weapon was the self-propelled torpedo.

At the start of the First World War, submarines were assigned the roles
of coastal defense against enemy warships and harassment of enemy warship
fleets. Partly because of their disadvantages — low escape speeds, limited
submerged times, vulnerability to attack on the surface — they were soon
assigned the task of interdicting the seaborne commerce traffic that supported
the enemy's war effort. This role of commerce raider then became the main
wartime assignment for German submarines in World War I and the
submarines of most of the belligerents in World War II. As we shall see,
it is the anti-commerce role that has created the largest set of legal
controversies concerning the military uses of submarines.

Since the Second World War, the evolution of the military submarine has
proceeded in giant strides. With new developments have come new projected
wartime roles and reconsideration of some of the earlier roles. The harnessing
of nuclear energy, for propulsion and for weapons, has probably affected the
nature and role assignments of the submarine more than any other preexisting
war machine. Nuclear powered submarines are relieved of the necessity to
surface or come to shallow snorkel depth to recharge batteries and can
consequently remain in submerged hiding for extremely long time periods

Jacobson 207

and underwater transits. And, because the undersea remains an excellent place
of concealment despite improved anti-submarine-warfare (ASW) devices and
techniques, modern nuclear powered submarines have proved effective in
their postwar deterrent role as roving submerged platforms for nuclear-armed
ballistic missiles.

Other new developments in the design and construction of submarines have
provided them with greater underwater speed, enough speed to match that
of most surface warships (although this comparison probably says as much
or more about the development of surface fleets as it does about submarine
advances). Weaponry for submarines has also expanded in variety and range.
While presumably only strategic missile submarines (SSBNs) are armed with
ballistic missiles for their special deterrent role, the other principal category
of submarines, attack submarines (SSNs, if nuclear powered, almost
exclusively the case in the U.S. Navy today; SSs, if diesel-electric powered)
have had their weapons array and targeting systems enhanced in recent years.
Torpedoes have been greatly improved, of course, but modern attack
submarines are now capable of launching a variety of anti-ship, anti-
submarine, and land-target missiles, including cruise missiles, with
conventional or nuclear warheads. Moreover, most of these weapons can be
launched at much greater distances from the targets — even over the horizon —
than was true for submarine weapons during the world wars. Today's
submarines are also capable of sophisticated mine-laying.

Because of these advances, today's fighting submarines are in many respects
as different from those that fought in World War I as those early submarines
were different from the surface naval vessels that preceded and coexisted with
them. But it is this earlier distinction that caused the initial legal controversy,
a dispute that continues to this day. Indeed, the entire twentieth-century
history of the submarine as a major implement of naval warfare has occurred
in the face of attempts to apply to submarines laws of war that were essentially
devised to regulate the use of latter-nineteenth-century surface warships, and
in particular the interaction of these surface vessels with merchant shipping
of the same time period. It is not surprising that some legal friction has
resulted.

Arising out of the closely related principles of military necessity and
humanity, the relevant laws of war were, and are, designed to protect
noncombatant crews and passengers aboard merchant ships where
circumstances make these vessels legitimate objects for destruction by a
belligerent in wartime. The 1908 Declaration of London stated the rule that
a neutral merchant vessel (assuming it was otherwise lawful to sink it) could
be sunk by a belligerent ship only after the warship had provided for the safety
of the passengers and crew.3 This might be accomplished by taking the
protected persons on board the warship or another vessel and later
transporting them to an appropriate port or, where geography and sea

208 Law of Naval Operations

conditions were favorable, placing the passengers and crew members in the
merchant ship's lifeboats with some good assurance that they could safely
reach a nearby shore. Although this rule said nothing about enemy merchant
ships, other rules of naval warfare of course generally allowed the sinking
of an enemy warship in non-neutral waters without warning or removal of
combatant crew members.4

The First World War provided the test for compliance with these rules
by submarines. As noted above, the main advantage of the submarine is its
capability for surprise attack from its underwater hiding place. Because of
its slow underwater speed, its limited submerged time, and its vulnerability
on the surface, however, the World War I submarine was usually not much
of a match for the warships of the enemy's surface fleet. Surface warships
were too fast for a submarine running submerged, and the most important
targets — battleships — were very difficult to sink. Even if a submarine was
successful in striking a legitimate warship target, other ships in the enemy
fleet were likely to detect and chase down the submarine and attack it with
depth charges or force it to the surface, where its destruction or capture was
virtually assured. Isolated, older second-line warships and, then, merchant
ships thus became the preferred targets for submarines.

In accordance with the traditional rules reflected at least in part by the
London Declaration of 1909, 5 a merchant vessel that was found to be in some
way supporting the enemy's war effort — for example by carrying a cargo
of contraband arms to the enemy — and which could not safely be escorted
to port for adjudication as a prize of war, could be sunk after the safety of
the passengers and crew had been provided for. The rules allowed a belligerent
warship to stop a suspect merchant ship and conduct a visit and search to
determine its involvement in the enemy war effort and then, if circumstances
warranted, either capture it as a prize or take the noncombatants off board
and sink it.6 This scenario was, of course, somewhat unrealistic if the warship
was a submarine. Surfacing to conduct visit and search procedures not only
sacrificed the submarine's main advantage of surprise attack but also made
it vulnerable to ramming even by an unarmed merchant vessel. Furthermore,
surface escort of the merchant to port for prize adjudication was obviously
dangerous for the submarine and generally interfered with its military
mission, while the alternative of sinking was made impracticable by the
inability of the already cramped submarine to provide space for the merchant
ship's crew and any passengers, and, where another suitable vessel was not
available to take these persons to port, weather and geography did not often
combine to allow them to be left safely in the ship's lifeboats.

Despite these difficulties, Germany directed its submarines to comply with
the traditional prize rules during the early part of the First World War, and
in fact German commanders made efforts to comply. However, by January,
1917, the difficulties already noted had combined with other circumstances

Jacobson 209

to cause Germany to rescind its earlier directive and institute unrestricted
submarine warfare, including the sinking without warning of neutral
merchant ships, in a self-declared war zone. These "other circumstances"
included a British directive to its merchant ships to disguise themselves as
neutrals and to ram submarines. Britain also apparently armed its merchant
ships and ordered them to open fire on German submarines. Thus, Germany
attempted to justify its decision to wage unrestricted submarine warfare in
its war zone on the ground that it was carrying out a reprisal against these
British violations of the traditional laws of naval warfare.7

Whatever the merits of this German justification (and it probably had some
technical merit),8 German U-boat attacks on merchant vessels without prior
warning or provision for the safety of crew and passengers led not only to
United States entry into the First World War but also to widely felt
consternation over the submarine as a military weapon, consternation that
continued beyond the conclusion of the war. The naval warfare experience
of the war led to renewed proposals for the submarine's abolition in the
postwar period. To some — especially the British, joined at times by the United
States — the submarine had proved itself a horrifying offensive weapon,
generally ineffective except when used against merchant shipping in violation
of the humanitarian principles that rightly formed the core of the international
laws of war, a use for which pronounced tendencies developed, and therefore
an instrumentality of war that must be outlawed.9 While not condoning
German behavior during the war, others contended that the submarine had
demonstrated its efficiency as a defensive weapon even when confined to
"honorable warfare" and should consequently be restricted but not
abolished.10 In the naval conferences that followed World War I, the
abolitionists failed to achieve their goal, but the submarine, along with other
naval warships, was eventually the subject of limitation and restriction. Thus,
article 22 of the 1930 London Naval Treaty,11 reaffirmed in the London
Protocol of 1936, 12 states:

The following are accepted as established rules of International Law:

(1) In their action with regard to merchant ships, submarines must conform to the rules
of international law to which surface vessels are subject.

(2) In particular, except in the case of persistent refusal to stop on being duly summoned,
or of active resistance to visit or search, a warship, whether surface vessel or submarine,
may not sink or render incapable of navigation a merchant vessel without having first
placed passengers, crew and ship's papers in a place of safety. For this purpose the ship's
boats are not regarded as a place of safety unless the safety of the passengers and crew
is assured, in the existing sea and weather conditions, by the proximity of land, or the
presence of another vessel which is in a position to take them on board.

The 1936 Protocol maintains this provision in effect. The United States
remains a party to the Protocol, as do the Soviet Union and over 40 other

210 Law of Naval Operations

states,13 despite the article's seeming inconsistency with the practices of
belligerents, including the United States, in the Second World War.

At the beginning of World War II, Germany again attempted to abide by
the submarine warfare rules, as then and now set forth in the London Protocol.
Again, however, this attempt was thwarted by the arming of British merchant
vessels and the practice of convoying merchant ships under the protection
of surface warships and aircraft, and the order from the British government
to its merchant ships directing them to fire on or ram submarines on the
surface. Moreover, Britain ordered its merchant vessels to provide
intelligence on the positions of any sighted submarines. In many other respects,
it can be said that the British government, by these directives and by otherwise
exercising effective wartime control over the British merchant fleet, largely
incorporated all of its merchant ships into its war-fighting efforts. Under these
circumstances, it became possible to argue that these vessels were no longer
"merchant vessels" or "merchant ships" as those terms were used in the
Protocol to describe the ships entitled to the protections there set forth.14 In
response to the British practices, Germany soon directed its U-boats to wage
unrestricted warfare in broadening ocean zones. As in the case of Germany's
First War practices, some analysts have suggested that this Second War
response was a legitimate reprisal.15

As World War II continued, other belligerents also adopted unrestricted
submarine warfare methods against enemy merchant ships (though most also
achieved greater success in pitting their submarines against enemy warships
than was true for the belligerents in the First World War).16 The most
prominent example is that of the United States, which ordered unrestricted
submarine attacks against all Japanese shipping in the Pacific at the very
beginning of its involvement in the war.17 United States submarines in fact
waged unrestricted war against the Japanese, including the sinking of
merchant ships without warning, throughout the war. Justifications for the
U.S. departure from the traditional law of naval warfare in this respect remain
unclear. The U.S seemingly justified these attacks not on the ground of reprisal
but on the fact that Japanese merchant ships were usually armed, provided
intelligence to the Japanese military, and were otherwise integrated into
Japan's war efforts and therefore were not entitled to the protections afforded
to the "merchant ships" of the 1936 Protocol. The fact remains, however,
that unrestricted submarine warfare was ordered by the U.S. against Japan
throughout the Pacific Ocean within hours after the 7 December 1941
bombing of Pearl Harbor, before the U.S. could know whether Japan would
enlist its merchant fleet in the war effort. The initial order was fairly clearly
given in response to and in retaliation for the surprise Japanese attack on Pearl
Harbor and therefore carries more than a little implication of reprisal as its
justification.18

Jacobson 211

Germany's submarine warfare practices in the Second World War were
the subject of the principal adjudication of the legal rules under discussion:
the trial of Admiral Karl Doenitz by the International Military Tribunal at
Nuremberg. Admiral Doenitz commanded Germany's submarine forces and
later in the war became commander of all German naval forces. He was
charged at Nuremberg with "waging unrestricted submarine warfare
contrary to the Naval Protocol of 1936. "19 Doenitz 's counsel argued in his
behalf that German U-boat attacks on British merchantmen were justified
by the facts that these ships were armed or convoyed, provided intelligence
to the British military, and in other ways contributed to the British and Allied
war efforts.20 While this argument can perhaps be characterized as one based
on the law of reprisal, it more clearly rests on the notion that merchant vessels
actively participating in the enemy's conduct of warfare are thereby removed
from the protections afforded to true merchantmen by the laws of naval
warfare as, in this case, embodied in the Protocol. The Nuremberg Tribunal
did indeed accept Admiral Doenitz 's defense to the extent that it refused to
find that he was guilty of Protocol violations in authorizing unrestricted
submarine attacks against British merchant ships that were armed.21 In this
respect, the Tribunal's judgment might be interpreted to mean that enemy
merchant vessels and their passengers and crews are legitimate targets of
destruction, without warning and without provision for the safety of the
people on board, if these vessels have become meaningfully integrated into
the enemy's warfighting capabilities. Critics of this broad a reading of the
Tribunal's judgment can protest that the result too heavily discounts the
humanity side of the balance that the laws of war attempt to strike between
military necessity and humanity. A more accurate analysis of the Tribunal's
ruling would perhaps emphasize the immediate threat to a submarine's safety
posed by the arming of enemy merchant ships or other real and imminent
threats to the submarine's safety that would result from the attempt to abide
by the Protocol's provisions. Cargo and passenger carriers that were armed
with weapons and the intent to engage an enemy submarine might be properly
viewed as combatant vessels and thus subject to surprise attack. On the other
hand, the mere fact that an enemy merchant vessel was assisting the enemy's
war effort in other ways would not necessarily provide justification for the
destruction of the vessel without warning if compliance with the protocol
would not expose the submarine to serious risk of harm.

The International Military Tribunal did find Doenitz guilty of violating
the London Protocol by declaring submarine operational areas within which
German U-boats could attack neutral merchant ships without prior warning.22
Professor Mallison has criticized the Tribunal for failing to distinguish
between those neutral vessels that were helping the Allied cause and
consequently, in Mallison 's view, were legal targets and those that were
genuinely engaged in innocent international commerce and therefore

212 Law of Naval Operations

protected from attack.23 In any case, the Tribunal was careful to note that
it was not imposing punishment for this particular violation in its sentencing
of Admiral Doenitz because the British and the Americans had declared and
enforced similar operational zones with like risks to neutral shipping.24 Some
military analysts have suggested that the Tribunal^ judgment thereby
recognized the legitimacy of unrestricted submarine warfare against
merchant shipping and therefore that the London Protocol was no longer,
or never had been, binding.25 This analysis is clearly erroneous. The Tribunal
without question ruled that Doenitz had violated the Protocol. Because of
the Allied practices, however, his sentence was "not assessed on the ground
of his breaches of the international law of submarine warfare," including among
these "breaches" unrestricted submarine warfare against neutral shipping.26
The clear implication is not that the Tribunal had found some sort of
customary practice changing the rules of the Protocol but that all parties had
violated these rules. The partial clemency granted Doenitz was due to its
application of a version of the "unclean hands" doctrine and not to any
recognition of the lawfulness of unrestricted commerce warfare.

The Tribunal also found Admiral Doenitz guilty of ordering his submarine
commanders to refuse to rescue survivors of their sunken targets unless "their
statements would be of importance for your boat."27 Accepted rules of naval
warfare plainly imposed on warship commanders the duty to use considerable
efforts to search for and rescue survivors (including combatants),28 and
Doenitz was found guilty of violating these rules.29 It has been pointed out
that the admiral's order was in response to an unwarranted and probably
illegal air attack on German submarines attempting to carry out their duty
to rescue survivors of a torpedoed troopship.30 It is, however, questionable
whether the law of reprisal would justify such an anti-humanitarian measure.

The Tribunal refused, on the ground of insufficient evidence, to find that
Admiral Doenitz was guilty of the more serious crimes of ordering German
commanders to kill survivors of U-boat attacks.31 Helpless survivors and other
shipwrecked persons, even if enemy military crews, are not lawful objects
of attack, since they are not or are no longer combatants.32

The rescue issue is complicated again by the fact that submarines of the
world wars did not have adequate space for taking on board rescued persons.
Further, submarines surfacing for rescue operations in World War II were
vulnerable to air attack. The International Military Tribunal at Nuremberg,
in fact, received evidence that the U.S. directed its submarines in the Pacific
during that war to attempt survivor rescue only if this did not endanger the
submarines or interfere with their military missions.33 And, because of the
limited space in the submarines, U.S. rescue efforts often consisted only of
supplying survivors with rubber rafts or provisions.34

What can be said of the state of the law of submarine warfare as it emerged
from the experiences of the two world wars? First, it can be said that the

Jacobson 213

submarine was a lawful weapon of war and was to be treated by the laws
of naval warfare generally like any other warship. Thus, in wartime it could
attack an enemy warship without warning and despite the stealth element
that was part of the early abolitionist reactions against this undersea weapon.
On the other hand, targets that were immune from attack by any means —
hospital ships and coastal fishing vessels, for example — were also illegal
targets for submarines. Survivors and shipwrecked persons could not be killed.

The rules concerning merchant ship targets were, as already shown, more
complicated and became considerably more so as a result of the world wars.
This was true for all warships but especially for submarines because of their
unique characteristics. Developments and perceptions that came about
particularly during the Second World War added to the list of complexities
that the nature of the submarine had already created. The distinction between
merchant ships and combatants, a relatively easy one in the nineteenth
century, became confused in the big wars of the twentieth century, both
because belligerent governments armed their merchant fleets and took other
steps to integrate them into the overall warfighting effort, and because of
the new perception that entire societies, and not just their military forces,
were at war. Related to this perception was the notion that a broader range
of civilians were necessarily, even appropriately, exposed to the weapons of
war, which probably led to a dilution of the strength of the previously felt
horror at the maiming and killing of non-military crews and passengers of
targetable merchant ships. The distinction between belligerent and neutral
merchant vessels also became difficult to draw because of practices that
developed during the world wars. Warships and belligerent merchant ships
would disguise themselves as neutrals, and supposed neutrals in fact
participated in various ways in the war efforts of the belligerent states.35 In
addition, World War II brought the real threat of air attack to add to the
vulnerability of surfaced submarines.

These practices and complications placed considerable stress on the
nineteenth-century-based rules reflected in the 1936 London Protocol and
undoubtedly induced some significant qualifications, if not outright changes,
of those rules. The major law-of-war issues raised by submarine warfare
against merchant ships were, and are, three: (1) Is a merchant ship a lawful
target for sinking? (2) If so, what, if any, provisions must be made for the
safety of crew and any passengers? (3) Is the submarine that sinks a merchant
ship required to rescue survivors? Note the dilemma posed for submarines
by each of these questions: (1) Visit and search to determine targetability
deprives the submarine of its stealth advantage and renders it vulnerable to
attack, and determination of the legitimacy of the target by other means is
often difficult or impossible. (2) Surface vulnerability and lack of space for
passengers make it dangerous and nonfeasible for submarines to provide for

214 Law of Naval Operations

the safety of persons on board merchant vessels or (3) to effect rescue of
survivors.

As a result of the experiences of the two world wars, including the
subsequent trial of Admiral Doenitz, the post- World War II law of submarine
warfare against merchant ships might be summarized as follows:

As a sort of benchmark rule, it can be noted again that submarines, like
other warships, could attack enemy warships without warning. The successful
attacker, surface or submarine, was then required to search for and provide
as best as it could for the safety of survivors, although the practice of the
belligerents in World War II, especially those of the United States in the
Pacific, indicates for reasons already noted that submarines might not have
been held to as stringent a standard for survivor rescue as surface warships.

Enemy merchant ships that were armed and ordered to fight back or attack
submarines or that were convoyed under the protection of enemy warships
or aircraft were arguably not true merchants and thus could be sunk without
warning and without first providing for the safety of crew and passengers.
But rescue of survivors was required if rescue was consistent with the safety
of the submarine and its military mission.

Unarmed enemy merchant ships not under convoy protection posed a trickier
targeting situation for submarines. Because the practice of the belligerents
in World War II was, apparently, consistently to arm or convoy, a post-war
rule might be lacking because of insufficient evidence upon which to base
a rule determination. The traditional rule suggests that unprotected enemy
merchant ships in wartime could be captured by a belligerent warship without
the necessity of visit and search and escorted to port for adjudication as a
prize. The warship could probably sink the merchant vessel if the steps
required for prize adjudication would seriously endanger the warship or
interfere with its military mission — but only after the safety of the merchant's
crew and passengers had been provided for.

Following World War II, the notion of capture of enemy merchant vessels
for prize adjudication seemed almost quaint and old-fashioned, especially for
submarine warships. Enemy merchantmen were apparently presumed,
because of the usual practice, to be armed or protected by enemy warships
or aircraft and thus almost automatically subject to destruction or
disablement. And belligerents tended to view, with some justification, all
enemy merchant ships, whether or not armed or convoyed, as part of the
enemy's total war effort, supporting at least the war-focused economy of the
enemy nation. In addition, capture and escort to port was often infeasible,
or judged infeasible, in the conduct of naval warfare in the world wars, again
in particular for submarines. It might therefore be said that the law of naval
warfare then allowed submarines to sink even unarmed and unprotected
enemy merchant ships without much consideration in many situations for the
alternative course of capture. The more difficult question concerns the duty,

Jacobson 215

if any, to provide for the safety of the civilian crews and any passengers.
The International Military Tribunal gave strong indication in the Doenitz
judgment that the London Protocol's rules in this regard must be observed.
If the submarine commander found himself unable to provide for the safety
of the persons on board a merchant ship, said the Tribunal, then he "should
allow it to pass harmless before his periscope."36

It should be remembered that the 1936 London Protocol itself sets forth
two situations authorizing the destruction or incapacitation of a merchant
vessel (enemy or neutral) without the necessity of first removing passengers
and crew: "[I]n the case of persistent refusal to stop on being duly summoned,
or of active resistance to visit or search."37 The language of the Protocol,
however, makes it clear that these are narrow exceptions; note the words
"persistent," "duly," and "active."

Even if circumstances allowed a submarine commander to sink an enemy
ship without warning — for example, where it was armed for attack on
submarines — post-war rules still undoubtedly required that the submarine
make every feasible effort to rescue survivors.

The post-war rules regarding neutral merchant vessels engaged in international
trade and not in any way assisting the enemy war effort made them immune
from attack by belligerent warships, surface or submarine. Neutral ships
suspected of carrying contraband or otherwise helping the enemy, however,
were subject to visit and search by belligerent warships. If the suspicions
turned out, upon visit and search, to have been well founded, the warship
could capture the neutral vessel as a prize of war according to traditional
rules of naval warfare. Again, however, belligerent state practices in the two
world wars blurred the lines not only between combatants and merchants
but also between neutrals and enemies, and traditional capture and prize
procedures fell somewhat out of fashion.38 As a consequence, it might be said
that neutral merchant ships, at least where there was evidence, by visit and
search or otherwise, that they were assisting the enemy's war efforts were
in general treated like enemy merchant ships. Again, the 1936 Protocol makes
no distinction between enemy and neutral merchant ships in authorizing the
destruction or incapacitation of merchant ships in cases of "persistent" refusal
to stop when "duly" summoned or of "active" resistance to visit or search.

The most disturbing practice of belligerents in the world wars that affected
neutral shipping was the declaration of war zones or operational areas within
which, they warned, even neutral vessels were subject to destruction, without
visit and search or warning. Remember that the International Military
Tribunal condemned Admiral Doenitz for ordering this practice but refused
to impose a sentence specifically for it because of similar practices by other
belligerents in the Second War. This seeming contradiction has made it
somewhat difficult to assess the state of the post-war law concerning the
validity of using war zones as a means of rendering neutral (and enemy)

216 Law of Naval Operations

merchant shipping vulnerable to unwarned attack by submarines.39 If a zone
was given wide publicity and its size and location would not seriously interfere
with innocent merchant shipping, would it be consistent with the
humanitarian aspects of the laws of war to allow submarine commanders to
presume that merchantmen of any flag found within the zone are legitimate
targets for attack?40 The Tribunal's judgment, read carefully, would say no,
while the practice of the belligerents in World War II would seem to say
yes. Certainly the efficiency of the submarine as a commerce raider would
be hampered by the Tribunal's answer, since compliance with the Tribunal's
strict reading of the 1936 Protocol would require the submarine commander
to choose between subjecting his boat to considerable risk and allowing a
possible, but not proved, instrument of the enemy's war effort to escape. Yet,
when stated this way, the issue seems better resolved by the Tribunal's
approach. Almost by definition, noncombatants should be entitled to greater
freedom from risk of harm than are combatants, and the Tribunal's judgment
seems to affirm this choice.

Submarines as Weapons Platforms Today41

Submarine and submarine-related developments in the 45 years since the
end of World War II have extended the list of wartime roles for underwater
weapons systems. The technological evolution has resulted in two principal
categories of U.S. submarines: attack submarines, the more-or-less direct
descendant of the world war submarines; and the ballistic missile submarine,
a creature of the post-war nuclear age.

Increased submerged speeds, combined with the underwater staying power
granted by nuclear propulsion, have made the attack submarine (SSN) a
warship much more capable of operating effectively against enemy fleets.
Its expanded array of weapons, complemented by long-range targeting
systems, have added to this capability by allowing the submarine to launch
sub-horizon or over-the-horizon attacks on surface ships, other submarines,
and land targets. It can, in fact, send sea-launched cruise missiles (SLCMs),
with conventional or nuclear warheads, far inland to strike selected targets.
And their speed, underwater duration, increased diving depth, and silenced
running have rendered today's submarines less vulnerable than their world
war counterparts to destruction by enemy warships in spite of advances in
ASW capabilities. In sum, most of the reasons that the submarines of the world
wars were relatively ineffective weapons against most targets other than
merchant ships no longer exist or are disappearing. It should be noted,
however, that the new relative invulnerability is basically due to better
abilities to escape and hide underwater. A surfaced submarine is still no match
for a surface warship — and, for that matter, probably not much of a match
for an armed merchant ship — because the modern submarine's weapons are

Jacobson 217

apparently designed almost exclusively for underwater launching. There is
indeed no indication that the advances in submarine technology and design
assume any important combat role for a submarine on the surface. There is
no suggestion, for example, that the experiences of the two world wars have
led to submarine designs that add onboard accommodations for crews and
passengers of targeted merchant ships or deck-mounted weapons that will
give the submarine an adequate sense of security against attack while it carries
out survivor rescue operations on the surface.

The other principal category of U.S. submarines, the ballistic missile
submarine (SSBN), was of course nonexistent in the world wars. The main
role of SSBNs is, in reality, a peacetime role: that of deterring nuclear attack
on the United States or its allies by assuring devastating retaliatory nuclear
ballistic missile attack. Nuclear powered submarines, roving undersea over
broad ocean areas, are excellent platforms for this role because it is effectively
impossible for a potential enemy to detect and destroy them, or enough of
them, as part of a first strike. The Soviet Union also deploys ballistic missile
submarines.

Although this deterrence role can continue from peacetime into wartime,
a presumable wartime role of a nuclear ballistic missile submarine is actually
to launch its nuclear-warhead missiles against enemy military targets —
principally land-based launch sites for the enemy's strategic nuclear
weapons — and against population centers in the enemy's homeland. While
the target accuracy of submarine-launched ballistic missiles is improving, it
probably does not yet match the accuracy of strategic missiles launched from
land.

Added together, the basic naval warfare roles of both major categories of
modern underwater weapons — attack submarines and ballistic missile
submarines — currently number six, according to a recent study: (1) coast
defense; (2) attrition attacks on enemy naval forces; (3) commerce warfare;
(4) projection of power ashore; (5) engagement of enemy fleets; and (6) assured
destruction (SSBNs).42 According to the author of the study, the last three
roles came to fruition only in the 1960s, "after a long period of relative
equilibrium in submarine technology that lasted well into World War II."43
The author also asserts that submarine developments in the near future will
probably include "a decline in the capacity to wage commerce warfare" but
increased capabilities against other warships, surface and submarine, and other
military targets.44

In the war most contemplated by U.S. military strategists, one against the
Soviet Union, the main assignment for U.S. attack submarines, at least in
the early stages, will probably be to attempt quickly to destroy Soviet ballistic
missile submarines and also Soviet attack submarines that threaten our own
SSBNs and other naval forces.45 If such a war were not terminated early by
strategic nuclear exchange but were to continue with conventional weapons

218 Law of Naval Operations

and possibly tactical or intermediate-range nuclear weapons, other roles for
U.S attack submarines would be likely to emerge. These would certainly
include coastal defense, projection of force ashore against military targets,
and operations against the enemy's surface fleet.46 The submarine role that
presented the most troublesome legal issues in the two world wars — that of
commerce raider — will probably not be nearly as significant in the future,
at least in the contemplated war with the Soviet Union.47 For one thing,
NATO forces will probably be much more dependent on merchant shipping
than the opposing forces, which suggests the possibility that Soviet attack
submarines could be assigned a major anti-commerce role in such a protracted
war.48 For a complex of other reasons, however, submarines will be much
less effective as commerce warfare weapons in the foreseeable future.49 To
the extent that submarines of either side are given missions to attack merchant
shipping, the experience of World War II can lead us to expect that
merchantmen targets will be armed and convoyed and otherwise protected
by highly sophisticated ASW technology and techniques, including aircraft
and attack submarines of the protecting forces.

As the 1982 United Kingdom- Argentina war for the Falklands has
demonstrated, exclusion zones or war zones are a likely part of any future
war, perhaps especially a limited war.50 The prominent practice by the world
war belligerents of declaring war zones suggests that these will also be a
component of any future global war — at least a protracted world-wide war
fought with conventional weapons. Although the purposes of declaring such
zones in wartime can be several, an apparently intended effect of the zones
for the warships, including submarines, of the declaring belligerent party is
to shift or ease the burden of proof under the rules of engagement. In the
absence of the zone, or outside it, the warship commander bears the heavy
burden of establishing the legitimacy of his contemplated target, while the
terms of the zone declaration usually purport to allow him to more readily
presume targetability. As already noted, the Nuremberg Tribunal refused to
condone the practice of declaring a war zone insofar as its effect was to relieve
the burden of complying with the laws of naval warfare protecting neutral
shipping. The Falklands War showed, however, that a war zone may also
have as its purpose, or one of its purposes, the shifting of the burden of
identifying a proper target and showing imminently hostile intent of another
state's warship or aircraft.51 Thus the controversial sinking of the Argentine
cruiser, the General Belgrano, by a U.K. submarine outside the British-declared
exclusion zone52 was not necessarily illegal, though the submarine
commander's burden of showing hostile intent was the normally heavy one.
Whether the declaration of a war zone is a lawful means of shifting the burden
remains an open question. Still, it can be assumed that future belligerents will
engage in the zone-declaring practice and that the terms of the zones will
affect the engagement decisions of their submarine commanders.

Jacobson 219
The Current State of the Law of Submarine Warfare

It has been said that the laws of warfare attempt to achieve proper balance
between military necessity and humanity.53 This approach generally translates
into, inter alia, rules designed to protect noncombatants — civilians, prisoners
of war, survivors of attacks on ships, and so on — and restrictions against
excessive force and inhumane weapons. Difficult legal questions surround
decisions on whether or to what extent it is permissible to inflict civilian
casualties in attacks on military targets. It is perhaps ironic that the humanity
side of the military necessity /humanity formula was considerably degraded
in the very war that gave rise to the still-current and widespread declaration
of support for individual human rights and freedoms.54 In World War II,
civilian populations in enemy cities became legitimate targets for aerial
bombardment, at least in reprisal or as "incidental" casualties of targeting
military installations. And, as we have seen, noncombatant crews and
passengers of merchant ships, even neutral ships, became acceptable victims
of submarines' torpedoes. The habit of justifying the killing and maiming of
civilians in wartime, for example, by reason of the circumstance that they
happened to be in the vicinity of almost any military target has, to some
extent, continued from World War II to present times, even in limited wars
where the objective is not national survival. The idea that entire societies
participate in the militaristic schemes of their political and military leaders,
another Second World War notion, has also undoubtedly made it possible
for today's military planners to contemplate the intended destruction of an
enemy's population centers. To some, apparently, almost any characterization
of military necessity rationalizes the disregard or discounting of any humanity
considerations. This is an unfortunate twentieth-century trend. It is
understandable that military commanders will in general prefer a broader
rather than narrower range of legitimacy for their actions and the easing of
the tremendous burden that often comes with engagement decisions where
humanitarian and military considerations intermingle. Decision dilemmas are,
however, the essence of command, and military officers necessarily bear the
brunt of these terrible dilemmas of their national governments.

The government of the United States has, especially in the years since the
Second World War, consistently placed itself in the forefront of those
governments promoting humanitarian values and the rights and freedoms of
individuals everywhere. Most governments of the international community
subscribe to these values (by words if somewhat haphazardly by deeds),55 and
these are essentially the same values that account for the humanity side of
the laws of war formulations. Can it be said, therefore, that the international
community, led by the U.S and others, has implicitly indicated that
humanitarian factors are now entitled to renewed weight in the military
decision process despite the degradation of these factors in the world wars?

220 Law of Naval Operations

Or have the modern warfighting conditions and perceptions that developed
during those wars continued to affect military decisions that might put
civilians at risk?

These are questions that raise important matters, the full analysis of which
is beyond the scope of this chapter but which are nevertheless central to the
discussion of at least some of the issues in this part of the chapter: the present
state of the law of submarine warfare. All belligerents in World War II
justified in some manner surprise submarine attacks on merchant ships without
the necessity of providing for the safety of crews and passengers who were
not formally part of the armed forces of an enemy. To what extent these
practices are justified under current law will be one of the questions discussed
in the following paragraphs. Other issues will include the legality of
submarines as such, other targets of submarines and their modern weapons,
the lawfulness of their weaponry itself, and the effects of declaring operational
areas or exclusion zones. This section will then set forth a brief note on
submerged navigation under current law. It will also refer, where
appropriate, to three distinctions that the previous discussions have alluded
to: between belligerent and neutral vessels; between combatant and merchant
ships; and between general (but conventionally fought) wars and limited wars.

Are submarines legal? This question, one that concerned delegations to
conferences on the laws of war earlier in the century, can now be answered.
Like other warships, submarines are legal weapons but, like other warships,
are subject to some restrictions.56 The best evidence for their legality is the
Nuremberg Tribunal's judgment in the case of Admiral Doenitz where the
Tribunal necessarily assumed the basic legality of submarines, while
condemning certain uses of them in wartime.57

Targeting other warships. As a basic proposition, enemy warships found
outside neutral waters are legitimate targets for a belligerent warship,
including a submarine, and can lawfully be attacked by the latter without
either warning or precautions for the safety of the combatant crew members.58
It is not among the purposes of this chapter to examine the problems for this
rule caused by the practice in recent decades of entering into hostilities
without formal declarations of war, declarations that formerly assisted
considerably the process of deciding who is the "enemy." Once that decision
has been made, by whatever process, "warships" ought to mean those clearly
designated as such by their weaponry, their operation by uniformed members
of an enemy's armed forces, and their required markings.

The conduct of warfare in the post- World War II years, however, has
called into question even the basic proposition, thus defined. There has not
been a global war, with national survival as an objective, since the Second
World War. Limited war has been the recent warfighting experience. This
has usually meant limited in objective or geographical scope or both.59 For
example, the belligerents in the war for the Falklands expressly and implicitly

Jacobson 221

limited both the objectives and the geographical scope of their conflict. Each
state seemed to concede that an attack on one of the other's warships outside
the zone of conflict was not permissible in the absence of factors giving rise
to the right of self defense, such as an initial attack or other indication of
imminent hostile intent on the part of the enemy's warship. Moreover, the
negative international community reaction to the sinking of the General
Belgrano, an Argentine warship, outside the United Kingdom's self-declared
exclusion zone seemingly supported this legal effect of limiting hostilities.60
This reaction can probably be attributed in part not only to the geographical
limitation inherent in the nature of the war, as well as in the U.K.'s
declaration, but in the perception of disproportion between the U.K.'s
military objective — the retaking of the islands — and the loss to Argentina —
368 lives.61 It is also possible that the negative reaction is attributable in part
to the fact that the Belgrano was sunk in a stealthy surprise attack by a
submarine rather than in open combat with a U.K. surface ship.

The practices of belligerent states in the limited wars of this half-century
provide indications, therefore, that enemy warships are not always and
everywhere lawful targets for a belligerent's surface warships or its
submarines. Formulators of rules of engagement for limited hostilities should
give consideration to restrictions arising from geographical scope and
proportionality to the military objective or objectives. The practices of
belligerents in a war fought on a global scale and with national survival among
the objectives are not necessarily appropriate precedents for the laws of naval
warfare in a limited war.

Only in such a global war, therefore, might it be said without qualification
that enemy warships in non-neutral waters are open, unrestricted targets for
submarines (or other belligerent warships). But where circumstances allow
submarine attack on an enemy warship, the submarine commander can pursue
his attack without warning and without first providing for the safety of the
target's crew. For example, shortly after the commencement of a war
between the United States and the Soviet Union (something fortunately not
likely at the present stage of U.S.-U.S.S.R. relations and, it is hoped,
something that will never occur), American submarines will be able lawfully
to carry out their presumed ASW and anti-surface-fleet roles through surprise
attacks.

But what of survivors of submarine attacks on enemy warships? The
implication (somewhat confused) of the judgment of the International
Military Tribunal in the Doenitz case would require submarine commanders
to make substantial efforts to search for and rescue the survivors of the ships
they have sunk, at least if such efforts would not expose rescuing submariners
to undue danger. Even in World War II it was risky and often impracticable
for submarines (as contrasted to larger and more heavily armed surface ships)
to effect rescue of survivors, although evidence presented to the Tribunal

222 Law of Naval Operations

indicated that some efforts were made. Presumably, over-the-horizon
targeting today makes it both less practicable and more dangerous for
submarines to attempt to rescue survivors of their attacks: the sinking is more
likely to occur at some distance from the position of the attacking submarine
and the surfaced submarine engaged in rescue would itself be vulnerable to
surprise (even if unlawful) attack. Another consideration should be an
assessment of the enemy's capabilities to effect rescue of its own people.

The best that can be said for the current rule on the obligation to rescue
survivors is that such an obligation still exists, with new circumstances
qualifying — and, especially in the case of submarines, probably effectively
reducing — the extent of the duty. In situations where it is feasible and not
unreasonably dangerous to rescue, either by taking survivors on board the
submarine or other vessel or by supplying them with life rafts and provisions
(in accordance with U.S. precedent in the Pacific in World War II), the
current law of submarine warfare probably requires that these steps be taken.

Targeting merchant ships. This, of course, presented the major legal issue
concerning the use of submarines in the two world wars. As stated above,
the law of submarine warfare after the Second World War remained based
on the London Protocol of 1936, but with some practical qualifications
attributable to nontraditional practices of the belligerents in their conduct
of that war. These practices, it will be recalled, resulted in the blurring of
distinctions between merchant ships and warships, between neutral merchant
ships and enemy merchant ships, and, in general, between combatants and
noncombatants. It must be noted, though, that these practices were in large
measure a consequence of the correct perception by each belligerent state
that it was engaged in a global-scale war and fighting for its national survival.
Thus all segments of a belligerent's society were in some manner engaged
in the fighting, including its merchant fleet and, where it could enlist or
intimidate them, the merchant fleets of technically neutral states. While we
can expect the same to be true for the belligerents in any future general war
of similar or greater magnitude, it will not necessarily be true for the wars
of lesser scale that have constituted the belligerency experiences since the
Second World War.

What, then, can be said for the current state of the law of submarine
warfare regarding the targeting of merchant vessels? In general, submarines
are undoubtedly subject to the same rules as surface warships in this regard.
The practices of World War II suggest that in a war on a global scale with
national survival of the belligerents at stake, it is permissible for belligerent
warships to capture or, where capture is not feasible, to sink enemy merchant
vessels on the assumption, in such a war, that these vessels are part of the
enemy's warfighting efforts. This is probably the rule for general war today
(assuming it would proceed for a time without resort to strategic nuclear
weapons). It is by no means clear, however, that this is the rule for today's

Jacobson 223

popular limited wars. Outside the area of any legitimate blockade or legal
exclusion area, visit and search should be the rule for unarmed and
unconvoyed enemy merchant ships. If visit and search discloses that an enemy
merchant vessel is then and there supporting the enemy's conduct of the
limited war, it is subject to capture or, where appropriate, sinking or
incapacitation. As a basic proposition, a neutral merchant ship must, according
to the International Military Tribunal, be visited and searched to determine
its susceptibility to capture or sinking even in a general war and even in a
declared war zone. This should certainly be the rule for neutral shipping in
a limited war. (Whether the declaration of an exclusion zone or other war
zone affects the operation of this rule is an issue addressed below.)

In any case, because of the risk that perceived mistreatment of neutral
vessels might lead neutral states to enter the conflict on the other side,
belligerents can probably be expected to treat neutrals with better regard
than that accorded to enemy merchant ships.

The status of merchant crews and passengers is of course the critical
consideration. It should be recalled that the London Protocol of 1936 is
technically still in force for nearly 50 States, including the United States and
the Soviet Union. These States are thus arguably bound by the terms of the
Protocol to provide for the safety of the crew and any passengers of a merchant
ship (enemy or neutral) prior to its destruction or incapacitation unless the
merchant either persistently refuses to stop after being duly summoned or
actively resists visit or search. Both the Doenitz judgment and the practices
of belligerents in World War II, however, stand for the proposition that the
enemy's armed or convoyed merchant ships are lawful targets of surprise
submarine attacks without the necessity of visit and search or provision for
the safety of the crew and passengers. This is probably still the case under
the current law of submarine warfare, at least in a general (but conventional)
war, because such merchantmen are effectively part of the enemy's
warfighting force. In a limited war with limited objectives, on the other hand,
humanitarian principles and proportionality should require a determination
by the submarine commander that even an armed or convoyed merchant ship
found outside the war's geographical area is, then and there, actively and
significantly a part of the enemy's pursuit of that war as a prerequisite to
the merchant's destruction without warning.

Publicists who have previously analyzed the rules of submarine warfare
have frequently noted the "unreality" of a requirement that submarines, as
contrasted to surface warships, provide for the safety of merchant ship crews
and passengers under virtually any circumstances.62 There is no question but
that submarines, even today's relatively larger ones, have little space for
taking these people on board and remain vulnerable while on the surface in
an attempt to comply with the obligation. To this suggestion that submarines
should therefore be exempt from the rule, the International Military Tribunal

224 Law of Naval Operations

provided a response in the Doenitz judgment: Comply or allow the merchant
vessel to pass unharmed. The humanitarian principles that prompted this
response should be no less applicable today, particularly in the case of a limited
war.

The comparatively restricted capability of submarines for protecting the
crews and passengers of merchant ship targets also affects their responsibility
to search for and rescue the survivors of their attacks on merchant ships.
Nevertheless, the duty to rescue survivors, one of the clearest obligations in
the rules of naval warfare, undoubtedly applies to an even greater degree
for merchant ship survivors, and submarine commanders should be expected
to do everything in their power to comply with this responsibility.

Any submarine commander reading the above complex of rules,
qualifications and exceptions will probably raise a legitimate and crucial
question. He might well ask what he should or can do in case of doubt. What
if, for example, he cannot determine whether an enemy merchant ship is
armed or not? How can he tell whether a convoyed merchant ship is actively
and significantly contributing to the enemy's conduct of the limited war
between the belligerents, and what does he do if he suspects it is but cannot
know for sure? It is common for law to provide presumptions for doubtful
cases. In this case, especially for commanders of the United States military,
the presumption should be clear. Any state that strongly defends and promotes
humanitarian values, as does the U.S., should nearly always erase such doubts
in favor of the humanity side of the military necessity/humanity formula for
laws of war. The apparent fact that the presumption often went the other
way, even for the U.S., in the last world war does not necessarily mean that
it should do likewise in a future limited war or, for that matter, a conventional
general war. (Besides, a rule giving broad protection for merchant ships
against unwarned submarine attack is in the greater interest of the United
States in a future war with the Soviet Union since, as already noted, the
potential merchant targets will most often be assisting NATO forces.) Where
belligerents perceive that their national survival is at stake, however, their
practices will undoubtedly vary from the letter of many rules of warfare,
including those under consideration.

The question concerning presumptions in cases of doubt raises another issue
related to the targetability of merchant ships, especially neutral ships, and
the responsibility for the safety of their crews and passengers. This issue is
the validity of self-declared war zones or exclusion zones, a topic that will
now be addressed prior to proceeding to consideration of other potential
targets of submarine weapons.

Exclusion zones. Despite the International Military Tribunal's
condemnation of Admiral Doenitz 's declaration of unrestricted submarine
warfare in operational areas or war zones, it seems clear that such zones were
in World War II and continue to be established components of warfighting

Jacobson 225

practices at sea. One analyst has proposed revisions of the 1936 London
Protocol that would include the following provision on exclusion zones:

Within clearly announced and defined war zones, limited by a line extending 200 miles
outside the coastline of a belligerent state, 200 miles outside the coastline of an area
where land hostilities are in progress, or 200 miles outside the coastline of any territory
occupied by a belligerent state, all vessels, belligerent or neutral, excepting marked
hospital ships and coastal fishing vessels, are subject to sinking upon sight.

... If a declared war zone blocks ingress to and egress from neutral territory, the
belligerent declaring the zone must, upon request, provide a means of safe passage
through the war zone for neutral vessels calling at and leaving the blocked neutral
territory.63

While it is true that an effect of declaring such a war zone or exclusion zone
might very well be to warn neutral shipping away from dangerous sea areas,
this is certainly not the principal reason for the zone. A clear purpose of such
a zone, perhaps its main purpose, is to relieve the burden on warship
commanders in a hot war area to take the difficult and often dangerous steps
otherwise required to determine the legitimacy of firing on vessels of doubtful
status.64 The current popularity of exclusion zones is evidenced by their use
by both sides in the Iran-Iraq war in the Persian Gulf65 and by the United
Kingdom in the 1982 war for the Falkland Islands. The U.K.'s use of exclusion
zones in the latter war is especially relevant to the present discussion because
it may be the only limited war since World War II in which the submarine
has played a significant role.66 However, in that case, the declaration of an
exclusion zone in at least one respect operated against the interests of the
declaring belligerent state by giving the impression (falsely) that no attacks
would be carried out by the British outside the zone, thereby contributing
to the negative reaction to the torpedoing of the General Belgrano just beyond
the zone's outer limits.

Nevertheless, exclusion zones are indeed popular and, moreover, are
apparently part of U.S. naval war plans.67 If they are legal, they are especially
valuable for submarine commanders, who have the greatest difficulty in
determining targetability without sacrificing their advantage of stealth and
subjecting themselves to the dangers of the sea's surface. Are exclusion zones
legal? This unfortunately remains an unanswered question. Their popularity
suggests that precedent is building in their favor. Yet it should be recalled
that one of the principal purposes of declaring an exclusion zone is, in law
of war terms, to shift the presumption in favor of military necessity and away
from humanitarian considerations — at least to the extent that shifting the
presumption in doubtful cases more often places civilian crews and passengers
at risk of death and injury in exchange for lessening the risk to warship crews.
No state that places real value in the recognition of humanitarian principles
should lightly promote or easily accept a significant shift in this direction.

226 Law of Naval Operations

Exclusion zones, if they continue to be used by belligerents, should either
be limited (usually in limited war situations) in placement and scale so as not
greatly to inconvenience genuinely neutral shipping or include reasonable
provision for safe passage for neutral vessels. As the war in the Persian Gulf
clearly demonstrated, it is not in the interest of the United States or other
seafaring nations to tolerate the use by belligerents of exclusion zones or other
practices that unduly interfere with freedom of the seas for neutral traffic
or to abide the seriously heightened risk of harm to noncombatants that can
accompany the enforcement of these claimed war zones.

Other targets of submarines. There is no suggestion in current trends that
hospital ships, clearly marked as such and not otherwise in violation of the
relevant rules for hospital status, have lost any of their traditional immunity
from attack by belligerent warships, including submarines.68 Coastal fishing
vessels that are unarmed and not otherwise assisting an enemy's war effort
are probably still similarly immune.69

As noted above, the expanded roles for today's more capable and versatile
submarine weapons systems include attacks against objectives on land. In
general, the lawfulness of strikes against land targets is the same whether
the attacks are launched from surface warships, land-based weapons systems,
aircraft, or submarines. Consequently, the legality of projection of force
ashore by submarines will not be discussed in detail in the present chapter.
If the land target is a legitimate one, a submarine bombardment will, in the
main, be as lawful as any other attack — and, of course, the converse is true.
Particular weapons in the modern submarine's arsenal and the targeting
systems employed in their use, however, have been the subject of some
concern and discussion, often whether the target is at sea or on land. These
weapons problems are analyzed in the next section.

Submarine weaponry. The laws of war include rules designed to prohibit
the employment of weapons in such a manner as to cause excessive suffering
or disproportionate risk of harm to noncombatants. Thus self-propelled
torpedoes, the principal weapons of submarines in the two world wars, must
disarm if they miss their targets,70 and the rules concerning the laying of
stationary mines forbid their use in areas or manners that unduly endanger
commercial shipping.71 Like other platforms that use these weapons,
submarines must comply with the laws of war that govern them.

The legality of the tactical use of sea launched cruise missiles in naval
warfare, especially those launched from submerged submarines, has been the
subject of some debate. Challengers to the legality of these weapons have
emphasized the risks posed to merchant ships, both neutral and protected
belligerent vessels, by imperfect target identification and acquisition
systems.72 As one of those urging the outlawing of submarine launched cruise
missiles asserted in 1977:

Jacobson 227

The primary clanger is that the missiles will fix on a ship other than the intended target.
The threat is increased when the missile is subjected to electronic countermeasures
(ECM) and other diversionary tactics employed by the target. A similar increase in threat
level arises primarily from inherent design shortcomings, which at present are thought
to be great.73

The same writer suggested that underwater launching, using sonar detection,
would heighten the chance for error.74 Basically, the argument against the
legality of the weapon focused on the disproportionality of the risk of harm
to noncombatants, particularly in crowded sea lanes, compared to the military
necessity of striking at the intended combatant target. A response to this
position, also in 1977, contended that the proportionality of the risk to
noncombatants could be controlled by rules of engagement cautioning against
the use of submarine launched cruise missiles where the risk was too great.75
This is probably an appropriate approach. Moreover, the problem should
decrease in significance with (presumed) increase in the accuracy and
dependability of the targeting systems.

It is beyond the scope of this chapter to discuss the lawfulness of nuclear
weapons as such, as that topic is the subject of a separate chapter in the present
volume as well as much intense discussion elsewhere.76 Ballistic missile
submarines provide, of course, one important type of launch platform for
strategic nuclear weapons, and attack submarines are capable of launching
nuclear strikes against targets at sea or on land. It can be said generally that
if the use or threatened use of nuclear weapons is illegal, it is illegal for
submarines to launch them or to threaten to launch them. If, on the other
hand, they are legal — even though, as in the case of other weapons, their
use is restricted — then submarines can use them — within the bounds of the
restrictions.

Claims of illegality of nuclear weapons rely on the proposition that they
are either intended for use against noncombatant civilian populations or that
their awesome destructive power, combined with their radiation effects,
means that their use, even against military objectives, necessarily entails
disproportionate harm to noncombatants and excessive human suffering.
These claims can be met in part by improvements in the accuracy of targeting
systems that would minimize the risk to civilians where the target is a military
objective. To the extent that subsea launches of nuclear missiles rely on
targeting systems that are less accurate than those of air- or land-based
platforms, the asserted legality problem is a larger one for submarines than
for other platforms. The indications are that the accuracy of submarine
systems is improving. If so, the legality issue may be essentially the same for
all launch systems. Of course, the question of whether it is lawful to target
civilian population centers as a deterrent measure or actually to launch strikes
intentionally at these targets in wartime is the same for submarines as it is
for land or air systems.

228 Law of Naval Operations

A Note on Submerged Navigation. On the high seas and within exclusive
economic zones (EEZs), submerged navigation is a freedom of the high seas.77
Although traditional law of the sea rules require submarines to navigate on
the surface and show their flags as part of their innocent passage
responsibilities in foreign coastal state territorial seas,78 the United States takes
the position that customary law of the sea allows submerged transit through
straits used for international navigation, such as the Strait of Gibraltar, even
if these straits are blanketed by up-to-twelve-mile territorial seas. Consistent
with this position, the U.S. contends that the straits transit passage provisions
of the 1982 United Nations Convention on the Law of the Sea — a treaty the
U.S. has so far rejected in no uncertain terms because of its deep seabed mining
rules — are merely reflections or articulations of custom.79 Most nations
probably disagree, asserting that the straits passage provisions of the 1982
Convention are not reflective of custom but are treaty law exceptions to the
general rule of surface passage, negotiated by the U.S. in the Third World
U.N. Conference on the Law of the Sea in exchange for, among other things,
the deep seabed mining regime that the U.S. now finds unacceptable.80 And
because treaties bind and benefit only the parties to them, say these States,
the U.S. will not have the right of submerged straits transit unless it becomes
a party to the 1982 treaty. These States have a good case.

This controversy could be significant for U.S. submarines in wartime.
While submerged passage or transit through the territorial seas of belligerents
is no doubt lawful in wartime, submarines will be required to obey the general
law of the sea restrictions in territorial seas of neutrals. Whatever the true
state of the law on this subject, it would certainly be wise for the United
States in any wartime situation, especially a limited war, to take the wishes
of significant neutral States into consideration and consult with them before
transiting their territorial seas in submerged modes.

The concept of "archipelagic waters," recognized as such for the first time
in the 1982 Convention,81 presents a somewhat more complex, but at the same
time less controversial, issue. The treaty in general allows States composed
completely of archipelagoes (island groups), such as Indonesia and the
Philippines, to enclose their islands and the waters between them by a series
of straight baselines, but also provides for these States to establish sea lanes
through their thus-created archipelagic waters for international traffic,
including submerged passage by submarines.82 The United States, though
rejecting the 1982 treaty, expresses a willingness to recognize the
establishment of archipelagic waters in accordance with the treaty's rules.83
Again, in wartime the issue would arise only with respect to the rights of
neutral archipelagic States. In fact, current law of the sea, in the absence
of the 1982 treaty (which is as yet not in force for any State), probably does
not recognize the concept of archipelagic waters at all and would thus allow

Jacobson 229

submerged passage in any high seas areas between the islands of an
archipelagic State.

The New Commander's Handbook on
the Law of Naval Operations

The new Handbook (NWP 9)84 appears to be a basically sound, readable
guide for naval commanders. The discussion of the Handbook in the present
chapter will be limited to the topics addressed in the preceding section of
the chapter on the current state of the law of submarine warfare and will
be treated in the same order. The purpose of the discussion is, of course, to
assess the handbook's consistency or lack of consistency with the suggested
current state of the law.

Are submarines legal? The Handbook does not mention this question and
properly so. It is today a non-issue. Submarines as such are now clearly lawful
weapons of war and the Handbook, by the implication of its omission,
recognizes this conclusion.

Targeting other warships. The Handbook states that '[ejnemy
warships . . . , including naval and military auxiliaries, are subject to attack,
destruction, or capture anywhere beyond neutral territory."85 It goes on to
state that "[submarines may employ their conventional weapons systems to
attack, capture, or destroy enemy surface targets wherever located beyond
neutral territory, " and that "[ejnemy warships and naval auxiliaries may be
attacked and destroyed without warning. "86 It was suggested above, however,
that the allowance reflected in the latter quotation, if taken literally, might
not be consistent with the present law of limited war. Even enemy warships,
if not directly supporting the enemy's fighting of a limited war and if found
outside the area of hot water, especially a war with limited objectives, might
not be lawful objects of unrestricted attack in the absence of grounds for self
defense. Certainly, the rule stated in the Handbook is appropriate for the global
wars of this century, but not all of those rules would necessarily be appropriate
or applicable to wars limited in geographical scope and in objectives falling
short of a fight for national survival. It is by no means clear, for example,
that the international community would have viewed it as lawful for an
Argentine submarine to have attacked without direct provocation a British
warship on a routine mission thousands of miles from the Falklands during
the course of the limited war over possession of those islands. Perceptions
of military necessity and proportionality in limited war may demand restraints
on the use of force not called for in a world war.

The Handbook clearly states the obligation of our naval forces to search
for and rescue the survivors of their attacks on enemy warships, in accordance
with U.S. duties under the 1949 Geneva Convention (II) for the Amelioration
of the Condition of Wounded, Sick, and Shipwrecked Members of Armed

230 Law of Naval Operations

Forces at Sea.87 This obligation is to be carried out "consistent with the
security of their forces,"88 a phrase that could be interpreted to have special
meaning for submarine commanders, since their boats are particularly
vulnerable while attempting to effect rescue on the surface. Consistent with
this suggestion, the Handbook proposes the following qualification of the
obligation for submarines:

To the extent that military exigencies permit, submarines are also required to search
for and collect the shipwrecked, wounded, and sick following an engagement. If such
humanitarian efforts would subject the submarine to undue additional hazard or prevent
it from accomplishing its military mission, the location of possible survivors should be
passed at the first opportunity to a surface ship, aircraft, or shore facility capable of
rendering assistance.89

The only troublesome aspect of this interpretation is its lack of a direction
to assess the proportionality of the importance of the "military exigency"
or the "military mission" that will, according to the statement, authorize
the departure from the general humanitarian rule of rescue. Clearly, not all
military missions are so necessary or imperative that they cannot be eliminated
or postponed in order to carry out the important humanitarian duty to rescue
survivors. It would be better if the Handbook tied its special regard for
submarines more closely to the safety of the submarine and its crew under
the circumstances rather than the continuance of its military mission.

Of course, the Handbook strongly admonishes commanders against the
killing, wounding or mistreating of survivors and the shipwrecked, treating
them as noncombatants,90 and in fact correctly reminds its readers that these
are major war crimes.91

Targeting merchant vessels. This has been the principal issue in the law
of submarine warfare. Whether it is today a major issue, in light of the
expanded wartime roles for U.S. submarines, is in question. By most
assessments, it will remain a significant issue for Soviet submarines.92

In general, the authors of the Commander's Handbook have done an excellent
job of restating the complex and often confusing state of the law on this
difficult topic. Contrary to the view of some publicists, but consistent with
the approach of this chapter, the Handbook considers the 1936 London Protocol
as continuing to bind the parties to it, including the U.S., but suggests that
the conduct of the Second World War (and unspecified practices following
that war) have led to some modifications of the Protocol in its application
to submarine warfare today.

According to the Handbook, "[t]he conventional rules of naval warfare
pertaining to submarine operations against enemy merchant shipping
constitute one of the least developed areas of the law of armed conflict."93
Unfortunately, the Handbook itself contributes a bit of confusion to this already
perplexing subject. In addressing the issue of targeting enemy merchant ships,
it purports to excuse submarines from the constraints imposed on belligerent

Jacobson 231

surface warships because of "impracticality,"94 but does not make clear what
exactly are the constraints that submarines are excused from. By comparing
the book's designated section on submarine warfare with other provisions on
surface warfare, one is led to assume that submarines are not required to make
the efforts required of surface warships to determine enemy character or to
capture enemy merchantmen as prizes, but this assumption is by no means
obvious. The modifications to the London Protocol that the Handbook discovers
in the "customary practice of belligerents during and following World War
II" seem to be just about the same for surface warships as for submarines.95
For submarines, the book states that the general rule, based on the Protocol,
imposes on submarines the duty to provide for the safety of an enemy merchant
ship's passengers, crew and papers prior to destruction. The Protocol and the
asserted subsequent practice, however, are said to provide four exceptions
to this general rule.

The first exception occurs where the enemy merchant ship "refuses to stop
when summoned to do so or otherwise resists capture."96 The Protocol itself
would require for its similar exception "persistent refusal to stop upon being
duly summoned" or "active resistance to visit or search."97 It is unclear why
the authors of the Handbook would omit the emphasized qualifiers, except
perhaps in the interest of saving space. The modifying adjectives and adverb,
though themselves not capable of precise definition, are important for their
communication of the narrowness of the exception and should not be omitted.
As it stands, the Handbook's statement of the exception seems to authorize
destruction of a merchant ship without providing for the safety of its crew
and passengers in circumstances, not unlikely to occur in wartime, where an
initial warning, perhaps a confusing unorthodox order, from a submarine is
met at first by an instinctive, half-hearted resistance. There appears to be
no reason in post-1936 practice to lessen the stringency of this exception to
the general rule of saving the civilian crews and passengers.

The second exception to this general rule set forth by the Handbook occurs
when an enemy merchant ship "is sailing under armed convoy or is itself
armed."98 The practice of the World War II belligerents and the International
Military Tribunal's judgment in the Doenitz case do indicate that this is indeed
now an exception to the Protocol's general rule regarding the safety of
passengers and crew and would further allow surprise attack on enemy
merchant vessels so convoyed or armed — at least in a general war. Limited
warfare may require limitations of location and proportionality in favor of
the humanitarian principles supporting the general rule. It should be noted
again that, even where it applies, this "exception" is not necessarily a real
exception. It could just as well be a legitimate interpretation of the literal
words of the London Protocol: an enemy merchant ship armed or convoyed
against submarines might be considered for this context an enemy warship
and no longer a "merchant ship" protected by the terms of the Protocol.

232 Law of Naval Operations

The Handbook's third exception to the Protocol's general rule occurs when
the enemy merchant ship "is assisting in any way the enemy's military
intelligence system or is acting in any capacity as a naval auxiliary to the
enemy's armed forces."99 At first glance, this exception might appear to be
simply a corollary of or variation on the second exception regarding armed
or convoyed enemy merchantmen. But there is, or can often be, an important
distinction between the two. A merchant ship armed against submarines is
not only part of the enemy's fighting force but actively intends to fight
submarines and, because of the submarine's vulnerability on the surface, is
capable of successfully doing so. Such a merchantman is purposely prepared
to prevent the submarine from carrying out the responsibilities that the
Protocol otherwise requires. On the other hand, an enemy merchant ship that
is "in any way" assisting the enemy's intelligence (as contrasted to, for
example, calling in an air or over-the-horizon attack on the submarine) does
not necessarily pose a threat of imminent harm to a surfaced submarine. The
important humanitarian concerns reflected in the Protocol should not be
sacrificed in order to avoid minor risks to the submarine, even if it can be
established that the merchant is or has been providing intelligence in some
manner not immediately threatening the safety of the submarine. And, again,
this should be especially true in a limited war with limited objectives, in which
proportionality considerations should allow greater relative weight for the
humanity side of the balance between military necessity and humanity.

Finally, the Handbook would allow deviation from the Protocol's general
rule where

[t]he enemy has integrated its merchant shipping into its war-fighting/war-sustaining
effort and compliance with this rule would, under the circumstances of the specific
encounter, subject the submarine to imminent danger or would otherwise preclude
mission accomplishment.100

There is much to be said for the proposition that the practices of World War
II belligerents provide substantial precedent for this exception, particularly
for any future general war, the sort of war in which a belligerent does
integrate all assets within its control into its war efforts. In this sense, the
rule exception implicitly recognizes a pertinent and valuable distinction
between general war and limited war. Again, however, the last clause
concerning preclusion of mission should perhaps be modified by requiring a
proportionality consideration.

Despite the World War II claims threatening unwarned attacks on neutral
shipping in broad war zones, the Handbook's rules are generally protective
of neutral merchant ships. Neutrals that have not taken on enemy character —
in which case they are to be treated either as enemy warships or enemy
merchant ships, depending on the nature of their support for the enemy — 101
can be captured as prizes, but only after visit and search to establish their
susceptibility to capture. Moreover, captured neutral vessels can be sunk only

Jacobson 233

after every reasonable effort has been made to avoid their destruction and
only after the capturing officer is "entirely satisfied that the prize can neither
be sent into a belligerent port . . . nor, in his opinion, properly released."102
In any case where destruction of a neutral ship is ordered, the capturing officer
must provide for the safety of the ship's passengers and crew.103 The Handbook's
discussion of treatment of neutral ships makes no distinction between the
obligations owed by surface warships and those owed by submarines. It could
be said, therefore, that in some respects the Handbook provides more protection
for neutral shipping — in a general war, at any rate — than the current law
of submarine warfare provides.

The Handbook's statement of the law of naval warfare on the rescue of
survivors of attack, discussed above, applies equally to survivors of attacks
on merchant ships and attacks on enemy warships. Although a reasonable
argument can be made for requiring even greater efforts .in the case of
merchant ship survivors, this is probably an accurate statement of the current
rule.

Exclusion zones. As noted, the lawfulness of unilaterally declared war
zones or exclusion zones or areas of operation is debatable. Such zones were
used in both world wars in part to claim justification for surprise submarine
attacks on merchant shipping, including neutral shipping, found within the
zones. The Nuremberg Tribunal clearly ruled that such zones did not provide
the right of a belligerent, even in the all-out war with which it was concerned,
to wage unrestricted submarine warfare against neutral merchant ships.
Perhaps in partial consequence, the Handbook takes a careful approach to the
subject. In its discussion of the law of blockade, the Handbook notes attempts
by belligerents in both world wars to assert "so-called long-distance
blockades" that were not in conformity with the law of naval warfare
allowing close-in blockade but which were justified, says the Handbook, upon
the right of reprisal. Whatever the asserted justification (and, as pointed out
above, reprisal was not the only one), these "blockades" supposedly often
authorized unannounced submarine attacks on neutral shipping in the declared
areas. While the Handbook correctly describes the difficulty, especially in
current times and in a general war, to impose an effective close-in blockade,
it nevertheless does not endorse the legitimacy of the extended blockades of
the world wars.104

Yet the Handbook does assert the validity of zones or operational areas
'[w]ithin the immediate area or vicinity of naval operations" where a
belligerent may impose "special restrictions" on neutral traffic, including
prohibition from entering the areas.105 The belligerent cannot, however,
"purport to deny access to neutral nations, or to close an international strait
to neutral shipping, pursuant to this authority unless another route of similar
convenience remains open to neutral traffic."106 Although the Handbook rules
state that a neutral merchant ship is liable to capture for, among other

234 Law of Naval Operations

activities, violating the regulations established by the belligerent for such a
zone, it is, apparently, not liable to sinking without warning unless it fails
to conform to the belligerent's instructions concerning communications, in
which case it "may thereby assume enemy character and risk being fired upon
or captured."107 It is by no means clear that these asserted rules, though
admirable in their restraint, are consistent with the current law of naval
warfare. To the extent that such areas of operation would ever purport to
authorize the sinking of neutral merchant ships without warning, they would
run up against the judgment of the International Military Tribunal in the
Doenitz case.

Because we can expect that exclusion zones or zones of operation will
continue to be asserted, in particular in limited wars, perhaps it would be
worth the effort to attempt to provide by treaty a set of negotiated rules
that balance the perceived needs for protection of belligerent forces in the
modern age of long-distance targeting, the interests of neutral shipping, and
the humanitarian principles that led the Nuremberg Tribunal to condemn
unrestricted naval warfare zones.

Other targets of submarines. The Handbook's rules on enemy vessels that
are immune or exempt from targeting are the same for surface warships and
submarines and therefore receive no detailed discussion here. The Handbook
does make it clear that enemy hospital ships complying with the appropriate
rules on marking and behavior are not lawful targets for surface warships
or submarines. Other enemy vessels immune from attack, according to the
Handbook, include coastal fishing vessels and small coastal traders. Civilian
passenger vessels are said to be subject to capture but exempt from
destruction.108

The Handbook's treatment of the law of conventional-weapon naval
bombardment of land targets again makes no distinction between surface ships
and submarines (or, for that matter, aircraft).109 In general, the stated rules
set forth the particular prohibitions on targeting civilian populations,
inflicting unnecessary suffering, and wanton destruction of property. There
is no suggestion that these rules present special issues for submarines.

Submarine weaponry. The Handbook also makes no distinction between
surface ships and submarines in discussing the law of mine-laying. It basically
sets forth the rules derived from the Hague Convention (VIII) of 1907, n0 to
which the U.S. remains a party. In order to comply with the rule that
torpedoes disarm after missing their intended targets, the Handbook states that
"[a]ll U.S. Navy torpedoes are designed to sink to the bottom and become
harmless upon completion of their propulsion run."111 It would seem that the
duration of the propulsion runs of the array of modern torpedo weapons would
be an important consideration for promulgating rules of engagement for
submarines.

Jacobson 235

The Handbook contains only one sentence that might be deemed a specific
response to the above-noted debate on the lawfulness of submarine-launched
cruise missiles. It states in full:

Missiles and projectiles dependent upon over-the-horizon or beyond-visual-range
guidance systems are lawful, provided they are equipped with sensors, or are employed
in conjunction with external sources of targeting data, that are sufficient to ensure
effective target discrimination.112

This sentence, however, purports to be an extension of the general obligation
of belligerents, recognized in the Handbook, to avoid weapons that are
indiscriminate in their effect. But a weapon is not indiscriminate "simply
because it may cause incidental or collateral civilian casualties, provided such
casualties are not foreseeably excessive in light of the military advantage
expected to be gained."113 This is apparently another reference to the military
necessity/humanity formula and perhaps deserves a little more explanation,
including the concept of proportionality and doubt-erasing presumptions.
Otherwise, the discussion is probably an accurate restatement of the general
rules on conventional weapons and weapons systems.

Nuclear weapons present quite another problem, one which the Handbook,
like the author of this chapter, largely avoids. It does, however, state a
position, unlike the author. It states that "[t]here are no rules of customary
or conventional international law prohibiting nations from employing nuclear
weapons in armed conflict."114 Thus, the Handbook concludes that the use of
nuclear weapons "against enemy combatants and other military objectives"
is legal. But launch of attacks against civilian populations "as such" is not
lawful.115 Because United States submarines are among our most important
launching platforms for nuclear weapons, this issue is one of importance to
the law of submarine warfare. It is to be expected that a U.S. Navy guidebook
on the law of naval warfare would take the position that these awesome
weapons, so significant in the very definition of our defensive forces if not
our nation itself, are legal weapons of war. But, of course, the question is
far more complex and confused than the Handbook suggests.116 The full analysis
of the question is, however, beyond the scope of the present chapter.

Submerged passage. On this, another controversial issue, the Handbook
again takes the expected position: submerged transit through neutral
territorial seas that form all or part of a strait used for international navigation
is permitted in accordance with the customary rules articulated in the 1982
Convention on the Law of the Sea.117 As noted above, this is not necessarily
the rule; instead, the general innocent passage requirement that a submarine
surface and show its flag in neutral territorial seas could well be the current
law.

Regarding archipelagic sealanes passage, the Handbook restates the U.S.
position that it is willing to recognize the right of archipelagic states to
establish archipelagic waters, provided they do so in accordance with the

236 Law of Naval Operations

provisions of the 1982 treaty, which, in the U.S. view, allow submerged
passage, even in wartime, through designated sea lanes.118 This position does
not seem to be inconsistent with international law.

Conclusion

Naval command in modern wartime unquestionably carries a terrible
burden of responsibility — to superior officers, to those commanded, to the
ship, to the mission, to the nation, and to those innocent persons who somehow
might come within the broad zones of danger posed by today's weapons
systems. Many rules guide the commander's decisions as he attempts to cope
with his tremendous burden. Not all of these rules are called "law," but even
those that are so designated are recognized because they are in the national
or military interest or both. The nature of the submarine as a weapons system
makes the submarine commander's wartime task of attempting to comply with
the traditional law of naval warfare an especially difficult one. As this chapter
has tried to explain, the submarine's nature and the experiences of the two
world wars have led to some modifications of the traditional law, particularly
regarding the submarine's role as commerce raider.

The U.S. Navy's new Commander's Handbook on the Law of Naval Operations
presents an impressive exposition of the law of naval warfare as it relates
to submarines. It is concise, readable, and, for the most part, an accurate
reflection of the current law. The few specific comments and criticisms set
forth in this chapter are not, in light of the overall scope of the book's
treatment of the topic, highly significant. Two larger matters, however,
remain bothersome, though they each go beyond the submarine topic.

First, the Handbook seldom refers to any clear distinction between rules that
apply in total wars, such as World War II, and today's more likely armed
confrontation, a war that is limited in geographical scale or objectives or both.
The distinction is particularly critical for the issues that surround the conduct
of submarine warfare. Warfighting conduct that might be expected, even
appropriate (perhaps even lawful), during a global conflagration in which
warring nations struggle for their very existence does not necessarily provide
precedent for the conduct of limited war, as recent events probably confirm.
Some aspects of the traditional laws of naval warfare that seemed so outmoded
or obsolete in the context of World War II — for example, the provisions
of the 1936 London Protocol — might make sense again in the context of
limited war.

The second problem is one that naval commanders, including especially
submarine commanders, must anticipate: what to do in cases of doubtful
targetability. Where the hard choice is between military necessity and
humanity, which side wins? Where lies the presumed answer? The rules that
attempt to balance military necessity and humanity are many and complex.

Jacobson 237

It is obviously one thing to state them or even know them in all their
exception- and qualification-festooned glory; it is undoubtedly quite another
actually to attempt to apply them in instant decision under the stress of
imminent hostile engagement. As suggested in earlier discussion, anticipation
of the dilemma calls for a presumption or set of presumptions designed to
guide decision in doubtful cases, and the Handbook could benefit from the
inclusion of a section on this problem.

Notes

*Professor of Law and Director, Ocean and Coastal Law Center, University of Oregon School of Law.
The author served as Charles H. Stockton Chair of International Law at the Naval War College during
1982-83. He would like to express his appreciation to David Baugh, a 1988 graduate of the University
of Oregon Law School, and to Christine P. Hayes, a second-year student at the University of Oregon
Law School, for their assistance in the research for this chapter. The author also gratefully acknowledges
financial support for this assistance from the Sea Grant Program in Oregon, a part of the National Sea
Grant Program of the National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
The views expressed in this chapter are, however, solely those of the author.

1. Karl Lautenschlager, "The Submarine in Naval Warfare, 1901-2001." International Security, Winter
1986-87 (v. 11, no. 3), pp. 94-140.

2. Sources for the general historical and technical background contained in this section include Jane s
Fighting Ships 1987-88 (London: Jane's Publishing Company, Ltd., 1988), pp. 696-718; Norman Friedman,
Submarine Design and Development (Annapolis: Naval Institute Press, 1984); W.T. Mallison, Jr., "Studies in
the Law of Naval Warfare: Submarines in General and Limited War," International Law Studies 1966
(Washington: U.S. Govt. Print. Off., 1968), v. 58; Lautenschlager, supra note 1; Horace B. Robertson,
Jr., "Submarine Warfare, "JAG Journal, November 1956, pp. 3-9; Jane Gilliland, "Submarines and Targets:
Suggestions for New Codified Rules of Submarine Warfare," Georgetown Law Journal, v. 73, pp. 975-
1005 (1985).

3. See Mallison, supra note 2, pp. 104-05; Gilliland, supra note 2, pp. 976-77.

4. Mallison, supra note 2, p. 106.

5. Naval Conference of London, "Declaration (II) Concerning the Law of Naval War," reprinted
in Dietrich Schindler & Jiri Toman, ed., The Laws of Armed Conflicts: A Collection of Conventions, Resolutions
and Other Documents, 3rd ed. (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988), ch. IV., pp.
852-53 (hereinafter Schindler & Toman). The Declaration was not ratified by any of the ten signatories,
but the rules contained in it were recognized by several of the belligerents in World War I.

6. Mallison, supra note 2, pp. 103-05; Gilliland, supra note 2, pp. 976-77.

7. Mallison, supra note 2, pp. 62-74; Gilliland, supra note 2, pp. 984-85.

8. See Mallison, supra note 2, pp. 65-69.

9. Id., pp. 31-51; Gilliland, supra note 2, pp. 976-77.

10. Mallison, supra note 2, p. 38.

11. U.S. Laws, Statutes, etc., "Treaty for the Limitation and Reduction of Naval Armaments," art.
22, U.S. Statutes at Large, 71st Congress (Washington: U.S. Govt. Print. Off., 1931), v. 46, pt. 2, pp. 2881-
2882; reprinted in Schindler & Toman, supra note 5, pp. 881-82.

12. See "Process-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty
of London of April 22, 1930," American Journal of International Law, Supp., Official Docs., v. 31, pp. 137-39
(1937), reprinted in Schindler & Toman, supra note 5, pp. 74-75; Mallison, supra note 2, pp. 79-80.

13. U.S. Dept. of State, Treaties in Force: A List of Treaties and Other International Agreements of the United
States in Force on January 1, 1989 (Washington: U.S. Govt. Print. Off., 1989), p. 365.

14. Mallison, supra note 2, pp. 80, 117-21; Gilliland, supra note 2, p. 984; Charles J. Weiss, "Problems
of Submarine Warfare Under International Law," Intramural Law Review of New York University, v. 22,
1967, pp. 136, 137-138.

15. Mallison, supra note 2, p. 78; Gilliland, supra note 2, p. 985.

16. Lautenschlager, supra note 1, p. 107.

17. According to Professor Mallison, "On December 7, 1941 the United States Chief of Naval
Operations sent a secret message to the Commander in Chief, U.S. Pacific Fleet which stated: "EXECUTE
AGAINST JAPAN UNRESTRICTED AIR AND SUBMARINE WARFARE." Mallison, supra note 2,
p. 87.

238 Law of Naval Operations

18. See International Military Tribunal, "Testimony of Fleet Admiral Nimitz, U.S. Navy, 11 May 1946,
Regarding Naval Warfare in the Pacific from 7 December 1941, Including the Principles Governing the
Rescue of Survivors of Sunk Enemy Ships (Exhibit Doenitz-100)," Trial of the Major War Criminals Before
the International Military Tribunal (Nuremberg: International Military Tribunal, 1949), v. 40, pp. 108-111
(hereinafter cited as International Military Tribunal).

19. II, v. 1, p. 311.

20. Id., v. 18, pp. 312-23.

21. Id., v. 1, p. 312.

22. Id., pp. 312-13.

23. Mallison, supra note 2, p. 81.

24. International Military Tribunal, supra note 18, v. 1, p. 313. It has been suggested, however, that
in fact the risk to neutral vessels as a result of the U.S. declaration of unrestricted submarine warfare
in the Pacific was not as great because of the relative scarcity of neutral shipping in the Pacific zones
during World War II. Robertson, supra note 2, p. 8.

25. W. Hays Parks, "Submarine-Launched Cruise Missile and International Law: A Response," U.S.
Naval Institute Proceedings, September 1977, p. 120; Alex A. Kerr, "International Law and the Future of
Submarine Warfare," U.S. Naval Institute Proceedings, October 1955, p. 1107.

26. International Military Tribunal, supra note 18, v. 1, p. 313.

27. This was the infamous "Laconia Order." Mallison, supra note 2, p. 137.

28. International Military Tribunal, supra note 18, v. 1, p. 313. The source of the rule on rescue of
survivors is the "Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of the Armed Forces at Sea, United States Treaties and Other International Agreements,
T.I.A.S. No. 3363 (Washington: U.S. Dept. of State, 1955), v. 6, pt. 3, pp. 3217-3693.

29. The Tribunal's judgment is confusing on this point. In its short discussion of the charge that Doenitz,
by the "Laconia Order," forbade submarine commanders from complying with the international law duty
to rescue survivors of sunken ships, the Tribunal ends up again referring to the 1936 Protocol's provisions
on the "rescue" of merchant ship crews and passengers prior to sinking, clearly a separate issue.
International Military Tribunal, supra note 18, v. 1, p. 313.

30. Mallison, supra note 2, pp. 84-86, 137-38.

31. International Military Tribunal, supra note 18, v. 1, p. 313.

32. Mallison, supra note 2, pp. 139-43.

33. Nimitz Testimony, International Military Tribunal, supra note 18, p. 110.

34. Id.

35. Robert W. Tucker, "The Law of War and Neutrality at Sea," International Law Studies 1955
(Washington: U.S. Govt. Print. Off., 1957), v. 50, pp. 181-195.

36. International Military Tribunal, supra note 18, v. 1, p. 313.

37. The Protocol is quoted in the text accompanying note 12, above.

38. Tucker, supra note 35, pp. iv-v; Mallison, supra note 2, pp. 129-32.

39. See Gilliland, supra note 2, p. 989.

40. See Weiss, supra note 14, p. 149; Gilliland, supra note 2, p. 1002.

41. General sources for this section include Jane 's Fighting Ships, supra note 2, pp. 696-718; Friedman,
supra note 2; Mallison, supra note 2; Lautenschlager, supra note 1; Gilliland, supra note 2; Jon Boyes and
W.J. Ruhe, "The Role of U.S. Submarines," The Submarine Review , October 1987, pp. 15-23; Admiral Ronald
Hayes, USN, "CINCPAC's Submarine Views," The Submarine Review, January 1987, pp. 44-48.

42. Lautenschlager, supra note 1, p. 95.

43. Id.

44. Id.

45. Boyes and Ruhe, supra note 41, pp. 15-16.

46. Id., pp. 19-23; Lautenschlager, supra note 1, p. 95.

47. Lautenschlager, supra note 1, pp. 134-38.

48. Id., p. 134; Robertson, supra note 2, pp. 8-9.

49. For a presentation and analysis of these reasons, see Lautenschlager, supra note 1, pp. 134-38.

50. See Samuel L. Morison, "Falklands (Malvinas) Campaign: A Chronology," U.S. Naval Institute
Proceedings, June 1983, pp. 119-24.

51. Gilliland quotes from remarks made by Captain Louis Chelton, former Chief Naval Judge Advocate
of the Royal Navy (U.K.), in confirming that British exclusion zones in the Falklands War were designed
to allow Royal Navy commanders "to engage a militarily important target without undue hesitation,
or the need for the sort of position [sic; positive?] identification criteria, the obtaining of which could
have hazarded unduly the ship's safety." Gilliland, supra note 2, p. 1003, note 182.

52. Morison, supra note 50, p. 121.

53. E.g., Mallison, supra note 2, p. 16; Gilliland, supra note 2, p. 979.

Jacobson 239

54. The United Nations Charter (1945), the Universal Declaration of Human Rights (1948), and at
least 16 subsequent human rights treaties, to most of which a majority of the world's states are parties,
attest to this. See the list set forth in Louis Henkin et al., International Law: Cases and Materials, 2nd ed.
(St. Paul: West Publishing Co., 1987), pp. 991-92.

55. See II, pp. 991-992.

56. Mallison, supra note 2, pp. 29-53.

57. International Military Tribunal, supra note 18, v. 1, pp. 311-13.

58. Mallison, supra note 2, p. 106.

59. The contrast is, of course, to the two great wars of this century, each fought on a global scale,
with national survival an objective of the belligerents. In a global war on our ocean planet, true neutral
shipping is both less likely to exist and, where it does exist, more understandably subject to belligerent
restriction and risk of harm. In a war fought for national survival, belligerents are more likely to commit
and justify actions that cause injury and death to civilian populations of their enemies. Clearly, a limited
war can be one of limited geography, but in which national survival of the belligerents is at stake; the
Iran-Iraq War is a current example. This chapter makes no special effort to attempt to draw distinctions
between types of limited wars as grounds for differing rules of submarine warfare. Perhaps such distinctions
are appropriate. The main purpose of this chapter in contrasting general wars and limited wars is to suggest
that conduct during the World Wars, which were both global and fought for national survival, is not
necessarily a precedential basis for formulation of warfare rules for today's limited wars regardless of
the nature of the limitation.

60. The New York Times reported the reaction as one of "shock and dismay." William Borders,
"Falklands Casualties Bring Dismay in Europe," The New York Times, 5 May 1982, p. Al: 4-6. See also
Gilliland, supra note 2, p. 994, note 130.

61. Morison, supra note 50, p. 121.

62. E.g., Weiss, supra note 14, pp. 148-49; Gilliland, supra note 2, pp. 978-79.

63. Weiss, supra note 14, pp. 148-49. Gilliland, supra note 2, discusses Weiss' proposal at pp. 996-1005.

64. See Gilliland, supra note 2, p. 1003, note 182.

65. See Thomas M. Daly, "The Enduring Gulf War," U.S. Naval Institute Proceedings, May 1985, pp.
148-61.

66. See Mallison, supra note 2, pp. 52-53.

67. The United States has claimed exclusion zones during the Korean War and during the Cuban Missile
Crisis. Gilliland, supra note 2, p. 992; John W. Robertson, "Blockade to Quarantine in International Law,"
JAG Journal, June 1963, v. 17, p. 87.

68. Mallison, supra note 2, pp. 124-25. Hospital ship markings are designated in the 1949 "Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the
Armed Forces at Sea," United States Treaties and Other International Agreements (U.S. Govt. Print. Off., 1955),
v. 6, p. 3217, T.I.A.S. No. 3363, reprinted in Schindler & Toman, supra note 5, p. 401.

69. Mallison, supra note 2, pp. 126-28. The leading case supporting the immunity of coastal fishing
vessels from capture or destruction remains The Paquete Habana, 175 U.S. 677 (1900).

70. This rule is found in the 1907 "Convention Relative to the Laying of Automatic Submarine Contact
Mines (Hague VIII)," Oct. 18, 1907, art. 1, par. 3, U.S. Statutes at Large, v. 36, p. 2332, reprinted in
Schindler & Toman, supra note 5, p. 803.

71. See Howard S. Levie, "Mine Warfare and International Law," Richard B. Lillich and John Norton
Moore, eds., Readings in International Law from the Naval War College Review 1947-1977, v. II (International
Law Studies v. 62, Newport, R.I.: Naval War College Press, 1980), pp. 271-79.

72. D.P. O'Connell, "The Legality of Naval Cruise Missiles," American Journal of International Law, v.
66, p. 785 (1972); Scott C. Truver, "The Legal Status of Submarine-Launched Cruise Missiles," U.S. Naval
Institute Proceedings, August 1977, pp. 82-84.

73. Truver, supra note 72, p. 83.

74. Id.

75. Parks, supra note 25, pp. 120-22.

76. See Howard S. Levie, "Nuclear, Chemical, and Biological Weapons," infra, Chapter 11. See also,
e.g., Istvan Pogany, ed., Nuclear Weapons and International Law (New York: St. Martin's Press, 1987); Arthur
Selwyn Miller and Martin Feinrider, eds., Nuclear Weapons and the Law (Westport, Conn.: Greenwood
Press, 1984); Ian Brownlie, "Some Legal Aspects of the Use of Nuclear Weapons," International &
Comparative Law Quarterly, v. 14, p. 437 (1965).

77. See the 1958 Geneva "Convention on the High Seas," United States Treaties and Other International
Agreements, T.I.A.S. No. 5200 (Washington: U.S. Dept. of State, 1962), v. 13, pt. 2, p. 2312, art. 2. The
current customary law concerning freedom of navigation within exclusive economic zones is probably
reflected in the United Nations Conference on the Law of the Sea, 3d, United Nations Convention on the

240 Law of Naval Operations

Law of the Sea, A/CONF. 62/122 (n.p.: 1982), art. 58. This treaty was adopted in 1982 but is not yet in
force.

78. See "Convention on the High Seas," supra note 77, art. 6.

79. See e.g., "Discussion," John M. Van Dyke, ed., Consensus and Confrontation: The United States and
the Law of the Sea Convention (Honolulu: Law of the Sea Institute, 1985), pp. 292-311; Jon L. Jacobson,
"Law of the Sea— What Now?" Naval War College Review, March -April 1984, p. 96. The 1982 treaty's
provisions on straits transit are found in United Nations Convention on the Law of the Sea, supra note 77, arts.
37-44.

80. See sources cited in the preceding note.

81. United Nations Convention on the Law of the Sea, supra note 77, arts. 46-54.

82. Id., arts. 47, 53-54.

83. See "Discussion," supra note 79, p. 293.

84. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, NWP 9 (Washington:
1987).

85. Id., par. 8.2.1.

86. Id., par. 8.3.

87. Id., pars. 5.4.2 and 11.6.

88. Id., par. 11.6.

89. Id., par. 8.3.

90. Id., pars. 5.4.2, 6.2.3.2, 11.6.

91. Id., par. 6.2.5.

92. See, e.g., Gilliland, supra note 2, p. 987, note 77 and sources there cited.

93. NWP 9, supra note 84, par. 8.3.1.

94. Id.

95. Compare id., par. 8.3.2 with par. 8.2.3.

96. Id., par. 8.3.1. By contrast, the Handbook, in paragraph 8.2.2.2, states that the comparable exception
occurs for surface warships when the merchant vessel is "[ajctively resisting visit and search or capture,"
or "[rjefusing to stop upon being summoned to do so." It is probable that the differences in wording
result because the Handbook's authors were in each case attempting merely to restate the Protocol's rules
in a general way and that, therefore, the differences are not in themselves significant. It might be preferable
to quote the Protocol's words verbatim.

97. The Protocol is quoted in the text accompanying note 12 supra.

98. NWP 9, supra note 84, par. 8.3.1.

99. Id.

100. Id.

101. Id., par. 7.5.

102. Id., par. 7.9.1.

103. Id.

104. Id., par. 7.7.5.

105. Id., par. 7.8.

106. Id.

107. Id., par. 7.8.1.

108. Id., par. 8.2.3.

109. Id., par. 8.5.

110. "Convention Relative to the Laying of Automatic Submarine Contact Mines," supra note 70.

111. NWP 9,' supra note 84, par. 9.3.

112. Id., par. 9.7.

113. Id., par. 9.1.2.

114. Id., par. 10.2.1.

115. Id.

116. See Pogany, supra note 76; Miller and Feinrider, supra note 76; Brownlie, supra note 76.

117. NWP 9, supra note 84, par. 7.3.5.

118. Id., pars. 1.4.3, 7.3.6. The Handbook does recognize that "[t]he balance of neutral and belligerent
rights and duties with respect to neutral waters is, however, at its most unsettled in the context of
archipelagic waters." Id., par. 7.3.6.

**

S.V. Mallison and W.T. Mallison 241

Chapter IX

Naval Targeting:
Lawful Objects of Attack

by
Sally V. Mallison* and W. Thomas Mallison

I. Naval Operations and Law

International law comprises both customary and treaty components.1
Customary law is based upon the incident-by-incident and case-by-case
development through practical experience and an implicit acceptance by a
preponderance of governments. Treaty law is the express agreement of states
on particular subjects. International law is made and developed by
governments in order to protect governmental interests, and among these
interests is the efficient and lawful use of armed forces. Since the time of
The Prize Cases,2 decided by the U.S. Supreme Court during the Civil War,
the law of armed conflict has applied to any situation where international
armed conflict exists factually. Consequently, it is not necessary that there
be a declaration of war or a so-called technical "state of war" to make the
law applicable. This is codified in a common provision which appears in each
of the four Geneva Conventions for the Protection of War Victims (1949)
which states that the Conventions shall apply "to all cases of declared war
or of any other armed conflict" between the state parties "even if the state
of war is not recognized by one of them."3

The binding force of international law is stated directly in Navy
Regulations:

At all times a commander shall observe, and require his command to observe, the
principles of international law. Where necessary to fulfillment of this responsibility,
a departure from other provisions of Navy Regulations is authorized.4

The Chief of Naval Operations has the responsibility to ensure that the
obligations of the Navy under the law of armed conflict are observed and
enforced. Alleged violations of the law of armed conflict are to be promptly
reported and thoroughly investigated. Corrective action is to be taken whenever
required.5 At the present time officers of the Judge Advocate General's Corps
provide legal advice concerning Navy responsibilities under international law
including the law of armed conflict. In the early history of the Navy, when

242 Law of Naval Operations

such legal advice was not provided, naval officers were held to a high standard
of compliance with law, both international and domestic. An example is
provided by Little v. Barreme,6 a unanimous decision of the U.S. Supreme Court
written by Chief Justice John Marshall. In the limited naval war with France,
the Congress provided by statute for the capture of vessels meeting certain
criteria engaged in commerce with France. The President issued instructions
to the Navy to capture particular vessels including, as found by the Supreme
Court, vessels not covered by the statute. Captain Little, USN, captured The
Flying Fish in compliance with the instructions of the President and sent it in
for adjudication in the prize court which determined that the capture was not
authorized by the statute. The owners of the vessel incurred damages of $8,504.00
as a result of the unlawful capture and detention and they sued Captain Little
personally for this amount. The Supreme Court, while expressing sympathy
for Captain Little, who had acted in good faith, held that he was personally
liable for the damages caused by the unlawful act. The breadth of the holding
in this case is accurately summarized in the headnote which appears in the official
U.S. Supreme Court Reports:

The commander of a ship of war of the United States, in obeying his instructions from
the President of the United States, acts at his peril: if those instructions are not strictly
warranted by law, he is answerable in damages to any person injured by their execution.

At the time that judgment was entered against Captain Little, he was
required by statute to obey the orders of his superiors without any
qualification concerning the lawful or unlawful character of the order.7 At
the present time officers of the armed services are only required to obey
"lawful" orders as prescribed by article 92 of the Uniform Code of Military
Justice, entitled "Failure to obey order or regulation." This article provides:

Any person subject to this chapter who —

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces,
which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties; shall be punished as a court-martial may
direct.8

The law of naval targeting is based upon three fundamental principles
which are stated in the U.S. Navy's Commander's Handbook on the Law of Naval
Operations:

1. The right of belligerents to adopt means of injuring the enemy is not unlimited.

2. It is prohibited to launch attacks against the civilian population as such.

3. Distinctions must be made between combatants and non-combatants, to the effect
that non-combatants be spared as much as possible.9

Because the law of armed conflict (LOAC) is an eminently practical law
which takes into account military efficiency, these basic legal principles are
consistent with the military principles of objective, mass, and economy of
force. The law requires that only militarily significant objectives be attacked,

S.V. Mallison and W.T. Mallison 243

but it permits the use of sufficient mass to destroy those objectives. Economy

of force requires that no more effort should be directed against a military

objective than is necessary to accomplish it. In addition, the law of naval

targeting provides that all reasonable precautions must be taken to ensure

that only military objectives are targeted and that non-combatants and civilian

objects are spared as much as possible from the effects of armed conflict.

The most important treaties which are applicable to naval targeting and

lawful objects of attack or capture are the following:

Declaration of Paris Concerning Maritime Law (1856)10

Hague Convention (IV) Respecting the Laws and Customs of War on

Land (1907)11

Hague Convention (VI) Relating to the Status of Enemy Merchant Ships

at the Outbreak of Hostilities (1907)12

Hague Convention (VII) Relating to the Conversion of Merchant Ships

into War-Ships (1907)13

Hague Convention (VIII) Relative to the Laying of Automatic

Submarine Contact Mines (1907)14

Hague Convention (IX) Concerning Bombardment by Naval Forces in

TimeofWar(1907)15

Hague Convention (X) for the Adaptation to Maritime Warfare of the

Principles of the Geneva Convention (1907)16

Hague Convention (XI) Relative to Certain Restrictions with Regard

to the Exercise of the Right of Capture in Naval War (1907)17

Process-Verbal Relating to the Rules of Submarine Warfare (London,

1936)18

Geneva Convention (II) for the Amelioration of the Condition of the

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
(1949)19

The listed treaties to which the United States is a state party remain in
effect and are a part of the supreme law of the land under Article VI of the
Constitution. The others, Hague Conventions VI and VII and the Declaration
of Paris, are important also because they contain some binding principles of
the customary law of naval warfare. In spite of the title of Hague Convention
IV, concerning land warfare, it states basic principles equally applicable to
naval targeting. For example, it prohibits the employment of "arms,
projectiles, or material calculated to cause unnecessary suffering."20 Because
of changes in the technology of naval warfare, some of the treaties are less
applicable to contemporary naval targeting than when they were written.

II. The Law Prior to the World Wars

In the historic era when privateering and piracy were widespread,
merchant ships were armed for defensive purposes. After the substantial

244 Law of Naval Operations

abandonment of privateering and the near elimination of piracy, it became
unusual for a merchant ship to be armed. Following the development of
armored warships in the U.S. Civil War, such ships became further specialized
in offensive and defensive capabilities and were consequently very different
from merchant ships. The military weakness of the merchant ship entitled
it to special protection and the customary principle that it could not be
lawfully attacked without warning was adopted.21 The procedures of visit
and search by warships were used in naval warfare to enable boarding officers
to determine the existence of probable grounds for capture and adjudication
in prize. The intrinsic value of merchant ships made their capture rather than
their destruction advantageous to the capturing state. The determination of
whether or not a capture was lawful under the then criteria of international
law was made by prize courts. These courts were domestic courts which
applied the widely agreed upon international law criteria.22 The effective
enforcement method which ensured a high degree of uniformity in the
decisions of diverse national courts was mutuality and reciprocity. The judges
of each national prize court recognized that the standards it applied to enemy
merchant ships and neutral ships charged with violating the law would be
the same standards which foreign prize courts would apply to its merchant
ships.23 Elaborate rules concerning enemy and neutral ships and the cargoes
they carried were developed in the customary law. The Declaration of Paris
(1856),24 the first multilateral treaty on the law of naval warfare covered
privateering and blockades as well as the basic rules of naval economic
warfare. It provided:

1. Privateering is, and remains, abolished;

2. The neutral flag covers enemy's goods, with the exception of contraband of war;

3. Neutral goods, with the exception of contraband of war, are not liable to capture
under enemy's flag;

4. Blockades, in order to be binding, must be effective: that is to say, maintained by
a force sufficient really to prevent access to the coast of the enemy.

The original state parties to the Declaration of Paris were the major European
naval powers of the time and Turkey.25 The United States was not a party
and regarded the prohibition of privateering as opposed to the interest of the
minor naval powers including itself.26 At the beginning of the Civil War the
United States attempted to become an adherent to the Declaration because
of the threat presented by the Confederate privateers, but the Declaration
was closed and it was too late for further accessions. Article 1 of the
Declaration of Paris has long been technologically obsolete, whereas article
4 has been universally accepted as customary law. Articles 2 and 3 no longer
address contemporary realities and they have been swept away by the
comprehensive economic warfare practices of each of the major belligerents
in the two World Wars.

S.V. Mallison and W.T. Mallison 245

III. The Development of the Law of
Naval Targeting During the World Wars

A. Beginning of Submarine Warfare: World War I. In 1914 the potential of
the submarine warship as an efficient combatant unit, and in particular its
ability to conduct economic warfare against enemy merchant ships, was not
understood. It was assumed that submarines, like surface warships, would
follow the time-honored procedures of visit and search.27 Great Britain, as
the predominant surface naval power, instituted the long-distance blockade
and the use of the navicert system with the objective that merchant ships
including neutral ones would not be able to assist the enemy war effort.
During the First World War the traditional doctrine that enemy merchant
ships may not be the object of direct attack was eroded because of the
integration of such merchant ships into the naval forces of the enemy. In
addition, the integration of some neutral ships into the war effort of the enemy
required that a distinction be made between them and neutral ships
participating in genuine inter-neutral trade. Those neutral ships which were
participating in the Allied naval war effort were functionally no different
from participating belligerent merchant ships and, therefore, contrary to the
traditional doctrine, would appear logically to be lawful objects of attack.

The arming of British merchant ships, even though it was stated to be for
"defensive purposes" only, made it impractical for submarines to use the
traditional visit and search techniques. In the nineteenth century merchant
ships were privately owned and their voyages and cargoes were privately
controlled. During the World Wars private ownership existed nominally, but
the effective control was in the governments and it was exercised with the
single objective of advancing the war effort.28 A further consideration which
made visit and search impossible was the employment of the British Q-ships,
which appeared to be innocent merchantmen but were actually heavily armed
warships employed to lure submarines to the surface and destroy them.29 In
addition, the adoption of the convoy system by Great Britain and the United
States in 1917 integrated merchant ships into belligerent naval operations with
the result that they became functional warships.30

Enemy warships remained lawful objects of attack without warning in the
World Wars as they have always been historically. Because of the functional
equivalency of participating merchant ships with warships, it would appear
to be logically required that they also be lawful objects of attack without
warning. This view was advanced by Germany as the preeminent submarine
naval power. In the German view the proclamation of large submarine
operational areas in the Atlantic Ocean where "unrestricted submarine
warfare" was conducted provided adequate notice to neutrals to keep their
merchant ships out of the proscribed area.31 In a functional sense, Germany
was conducting the same comprehensive methods of economic warfare which

246 Law of Naval Operations

were utilized by the Allied naval powers except that the German technique
was enforced by submarines rather than by surface warships. There is no
reason to believe that gunfire by surface warships, the ultimate sanction of
the long-distance blockade, was more humanitarian than torpedoes fired by
submarines.

The views just summarized, however logical, were decisively rejected by
Great Britain and the United Stated which claimed that the traditional
procedures of visit and search were still required of submarines.32 The only
possible exception, in the view of the Allied naval powers, would be armed
enemy merchant ships sailing in convoys escorted by warships. International
conferences between the World Wars provided the opportunity for them to
advance their claims in international law.

B. Legal Developments Between the World Wars. During the Washington
Naval Conference (1921-1922) Great Britain proposed the abolition of the
submarine and Lord Lee made clear at the outset that in doing so "the British
Empire had no unworthy or selfish motives."33 He continued in reference
to the submarine:

It was a weapon of murder and piracy, involving the drowning of noncombatants. It
had been used to sink passenger ships, cargo ships, and even hospital ships. Technically
the submarine was so constructed that it could not be utilized to rescue even women
and children from sinking ships and that was why he hoped that the conference would
not give it a new lease of life.34

The French, Italian, Japanese, and United States delegations joined with the
British in deploring the claimed inhumane and illegal use of submarines by
Germany in the World War but favored their retention.35 Secretary of State
Charles Evans Hughes, the chairman of the conference, read into the record
the full report on submarines which was prepared by the Advisory Committee
of the United States delegation. It contained the following:

The United States would never desire its Navy to undertake unlimited submarine
warfare. In fact, the spirit of fair play of the people would bring about the downfall
of the administration which attempted to sanction its use.36

Senator Elihu Root, a former secretary of state, proposed, in Article I of
the draft treaty concerning submarines, certain rules of naval warfare, which
were stated to be "an established part of international law." These rules
required visit and search of merchant vessels by submarines as well as by
surface warships. Article I further provided:

Belligerent submarines are not under any circumstances exempt from the universal rules
above stated; and if a submarine cannot capture a merchant vessel in conformity with
these rules the existing law of nations requires it to desist from attack and from capture
and to permit the merchant vessel to proceed unmolested.37

Article III stated the necessity for enforcement of the above rules and provided
that:

S.V. Mallison and W.T. Mallison 247

any person in the service of any Power who shall violate any of these rules, whether
or not such person is under orders of a government superior, shall be deemed to have
violated the laws of war and shall be liable to trial and punishment as if for an act of
piracy. . . .M

The quoted provisions never became effective in spite of the support of the
other participants in the Washington Conference because initially France, and
then the others, refused to ratify the draft treaty.

Article 22 of the London Naval Treaty of 193039 contained rules applicable
to both surface and submarine warships. This 1930 treaty was terminated in
1936 except for article 22 which was continued in effect as the Proces-Verhal
Relating to the Rules of Submarine Warfare (1936) "without limitation of
time.', It provides:

The following are accepted as established rules of International Law:

(1) In their action with regard to merchant ships, submarines must conform to the rules
of International Law to which surface vessels are subject.

(2) In particular, except in the case of persistent refusal to stop on being duly summoned,
or of active resistance to visit or search, a warship, whether surface vessel or submarine,
may not sink or render incapable of navigation a merchant vessel without having first
placed passengers, crew and ship's papers in a place of safety. For this purpose the ship's
boats are not regarded as a place of safety unless the safety of the passengers and crew
is assured, in the existing sea and weather conditions, by the proximity of land, or the
presence of another vessel which is in a position to take them on board.40

The interpretation and application of these binding rules of law were left
to the Second World War and its aftermath. The principal ambiguities
concerning naval targeting which appear in the text are the meanings of the
terms "merchant ships," and "a merchant vessel/'

C. Continuation of Submarine Warfare: World War II. Writing at the
beginning of the Second World War, Professor H. A. Smith pointed out the
dramatic difference between trading practices at the time of the Declaration
of Paris in 1856 and those in 1939:

If we are again confronted with the facts for which the Declaration laid down the law,
then that law must be applied to those facts. That is to say, if we can discover a genuine
enemy private merchant carrying on his own trade in his own way for his own profit,
then we must admit that his non-contraband goods carried in neutral ships are immune
from capture at sea. Under the conditions of the modern socialistic world, such a person
is not easily to be found. . . . Today he has become a disciplined individual mobilized
in the vast military organization of the totalitarian State.41

At the beginning of the Second World War, the naval belligerents on both
sides continued the practices which had been started in the First World War
and made every effort to improve upon them. Great Britain had such complete
control of the surface of the oceans that it was able to force neutral merchant
shipping to participate in the Allied war effort. Ms. Behrens, writing in the

248 Law of Naval Operations

official British history of the Merchant Navy, described the intensification
of the system in 1940:

In the summer of 1940, the ship warrant scheme was launched, both to further the
purposes of economic warfare and in order to force neutral ships into British service
or into trades elsewhere that were held to be essential. No ship, it was ordained . . . was
to be allowed any facilities in any port of the British Commonwealth unless the British
had furnished her with a warrant.42

During the Second World War the United States, first as a neutral and
then as a belligerent, cooperated fully with the British methods.43 As a matter
of theory neutral states did not have to cooperate with the Allied naval
powers, but they realized that failure to cooperate would result in the
application of much more stringent economic warfare measures against them.
The result of this integration of neutral merchant ships into the Allied war
effort is that they became lawful objects of attack like similarly employed
belligerent merchant ships.44 Only those few neutral merchant ships engaged
in genuine inter-neutral trade were immune from attack.

The British Defense of Merchant Shipping Handbook (1938) was distributed to
the masters of the Merchant Navy ships in 1938. On the subject of "conditions
under which fire may be opened" the Handbook stated that if the enemy adopts
a policy of sinking merchant ships without warning

it will then be permissible to open fire on an enemy surface vessel, submarine or aircraft,
even before she has attacked or demanded surrender, if to do so will tend to prevent
her gaining a favourable position for attacking.45

Subsequent instructions stated that the enemy had adopted such a policy of
sinking without warning.

At the outset of the Second World War, the German Navy incorporated
the Proces-Verbal Relating to the Rules of Submarine Warfare, also known as
the Protocol of 1936, into the German Prize Code which was distributed to
submarine commanders.46 By October 17, 1939 Germany issued the order to
attack all enemy merchant ships without warning.47 Thus, early in the conflict,
merchant ships and submarines of the opposing belligerents were attacking
one another without warning. Germany followed its operational area
declarations of the First World War by providing that vast areas of the North
Atlantic Ocean were a submarine operational zone in which Germany could
assume no responsibility for either damage to ships or injury to personnel.48

On December 7, 1941, immediately following the attack on Pearl Harbor,
the U.S. Chief of Naval Operations sent a secret message to the Commander-
in-Chief, Pacific Fleet which stated:

EXECUTE AGAINST JAPAN UNRESTRICTED AIR AND SUBMARINE
WARFARE.49

Even though the "unrestricted" warfare was directed against Japan, it could
nevertheless present a possible danger to neutral shipping in the vast Pacific

S.V. Mallison and W.T. Mallison 249

Ocean areas. Because the message was secret, it could not have provided
notification to neutral states. However, the almost complete absence of
neutral shipping in the Pacific made this problem more theoretical than real.
The only shipping which Japan treated as neutral consisted of Russian ships
sailing across the North Pacific between Siberian ports and Canadian and
United States ports in the Pacific Northwest. While the Soviet Union was
a belligerent in the European War, it remained technically neutral in the
Pacific War until a few days before the Japanese surrender.

Throughout the Pacific War, the merchant ships of both the United States
and Japan were fully integrated into the naval war effort. As a practical
matter, such ships were indistinguishable from formally commissioned naval
auxiliary warships,50 and such merchant ships, like warships, were lawfully
subject to attack without warning. The United States reversed its prior
position and, along with Japan, and the other naval belligerents in the Pacific
War, it recognized that such merchant ships were functional warships and
were subject to the same rules of international law.

There are inconsistent analyses concerning the interpretation of the
Protocol of 1936 as applied to the events of the Second World War. Professor
Robert Tucker, writing in a Naval War College "Blue Book," has stated
concerning the Atlantic War:

Despite this reaffirmation of the traditional law in the 1936 London Protocol, the record
of belligerent measures with respect to enemy merchant vessels during World War II
fell far below the standards set in the preceding conflict. In the Atlantic Germany
resorted to unrestricted submarine and aerial warfare against British merchant vessels
almost from the very start of hostilities. . . .51

In the final stages of the conflict, the measures taken by Great Britain against enemy
shipping wherever encountered were only barely distinguishable from a policy of
unrestricted submarine warfare.52

Professor Tucker has also commented on the legal situation in the Pacific
War:

In the Pacific War no attempt was made by either of the major naval belligerents to
observe the obligations laid down by the 1936 London Protocol. Immediately upon the
outbreak of war the United States initiated a policy of unrestricted aerial and submarine
warfare against Japanese merchant vessels, and consistently pursued this policy
throughout the course of hostilities. Japan, in turn, furnished no evidence of a willingness
to abide by the provisions of the Protocol. . . ,53

Another "Blue Book" contains a different analysis of this subject:

Professor Tucker has apparently assumed that the Protocol is designed to protect
merchant vessels which are participating in the naval war effort. This does not take
adequate account of the close relationship between the performance of combatant
functions and the ensuing liability to attack without warning. In addition, it is
inconsistent with the legislative history concerning the interpretation of "merchant
vessel" as used in the Protocol.54

The ambiguity concerning the terms "merchant ships" and "a merchant
vessel" used in article 22 of the London Naval Treaty of 1930 and in the

250 Law of Naval Operations

identically worded Protocol of 1936 is considerably clarified by the Report
of the Committee of Jurists of April 3, 1930 written by the lawyers who
drafted the text.

The Committee wish to place it on record that the expression "merchant vessel," where
it is employed in the Declaration, is not to be understood as including a merchant vessel
which is at the moment participating in hostilities in such a manner as to cause her
to lose her right to the immunities of a merchant vessel.55

This stated criterion is more realistic than a test which attempts to
distinguish between armed and unarmed merchant vessels. It is probably more
important for the efficient conduct of anti-submarine warfare in particular
contexts to have merchant ships make radio reports of submarine contacts
than to have such ships armed. In addition, the great unarmed British
passenger liners Queen Mary and Queen Elizabeth each had the capability of
transporting an entire infantry division and its equipment at a high sustained
speed without naval escort and consequently provided a significant
contribution to the Allied naval war effort. Because of their effective
participation, it cannot be doubted that they were lawful objects of attack.

Although the 1936 Protocol is sometimes referred to as the "Submarine
Protocol," its second paragraph refers to "a warship, whether surface vessel
or submarine." Consequently, the identical legal regime concerning attacks
on merchant ships applies to both surface and submarine warships. Gunfire
from surface warships is the ultimate sanction of the long-distance blockade
employed by the Allied naval powers in both world wars. A surface warship
may lawfully attack a belligerent or neutral vessel which is attempting to
breach the blockade or resist visit and search.

One of the factors considered in treaty interpretation is the working
interpretation given to the treaty by the state-parties.56 The original state-
parties to the 1936 Protocol included the great naval powers of the time: Great
Britain, United States, Japan, France, and Italy.57 Germany became a state-
party shortly thereafter.58 The working interpretation given to the Protocol
by all six of these state-parties which were naval belligerents in the Second
World War was that belligerent and neutral merchant ships participating in
the naval war effort were not entitled "to the immunities of a merchant
vessel" to use the wording employed by the Committee of Jurists who drafted
the text. Therefore, the Protocol of 1936 is accurately interpreted as applying
only to merchant ships which were not part of the war effort of the naval
belligerents. In the Second World War there were but few merchant ships
entitled to this protection. This legal situation is not a drastic departure from
the traditional law which was applied prior to the World Wars. In that pre-
existing law the immunity of a merchant ship was also conditioned upon its
not participating in any way in the naval hostilities. The long-established
principle of customary law that a unit or ship may not exercise belligerent
functions without simultaneously becoming a lawful object of attack remains

S.V. Mallison and W.T. Mallison 251

valid. There is no evidence to show that the Protocol of 1936 was designed
to change this.

A conclusion written several years ago appears to be equally applicable
now:

In summary, the juridical criteria to determine whether or not a merchant vessel is
participating in the war or hostilities in a way which results in losing "the immunities
of a merchant vessel" should be determined by the fact of such participation and not
by the particular method of participation.59

The most important category of ships immune from attack is hospital ships.
Customary law was first codified in the 1899 Hague Convention (III) for the
Adaptation to Maritime Warfare of the Principles of the Geneva Convention
of 22 August 1864,60 which adapted the principles of the law of land warfare
for the protection of wounded in armies in the field, to the maritime
environment. Hague Convention (X) (1907)61 revised and enlarged the 1899
Hague Convention. It was applicable in both world wars. The first Geneva
Convention (1864)62 for the protection of war victims comprised only ten
articles and was limited to the protection of wounded personnel of armies
in the field and to attending hospital and ambulance personnel.63 The 1907
Hague Convention prescribed the legal regime for hospital ships in more detail
than did the Hague Convention of 1899, specifying the external distinctive
markings of hospital ships and requiring such ships to provide medical
assistance to the wounded, sick, and shipwrecked personnel of the belligerents
without distinction of nationality. Military interests were protected by the
requirement that hospital ships must not be used for any military purpose.
As a general rule, the immunity of hospital ships was respected in both World
Wars with the exception of an incident in the First World War in which
a German submarine sank a British hospital ship.64

Cartel ships are also immunized from attack. The term "cartel"
traditionally referred to an agreement between enemy belligerents
concerning the exchange of prisoners of war. It is now used to refer to any
non-hostile interaction of the belligerents governed by special agreement. In
1945 the Japanese merchant ship Awa Mam undertook a voyage for a
prescribed purpose and upon a specified route agreed to by the United States
and Japan.65 The principal purpose was to carry relief supplies furnished by
the United States to United States and Allied nationals held in Japanese
custody upon the Asian mainland. On the return voyage to Japan, the ship
was sunk without warning by a U.S. submarine. The commanding officer
of the submarine, who had not seen the message immunizing the vessel, was
subsequently relieved of his command and convicted by court martial of
negligence in carrying out orders.66 In the ensuing diplomatic interchange,
the United States apologized and offered to provide Japan with a vessel of
similar size and characteristics to replace the Awa Mam.61

252 Law of Naval Operations

The U.S. Supreme Court held in The Paquete Habana,6* a decision arising
from the Spanish-American War, that coastal fishing boats were not liable
to capture and condemnation in prize. The ruling in this case is codified in
Hague Convention No. XI (1907),69 which provides that vessels "used
exclusively for fishing along the coast or small boats employed in local trade
are exempt from capture." The Convention further provides that they cease
to be exempt whenever they take part in hostilities.

IV. The Application of the Law of Naval Targeting to War Crimes;
and Post Second World War Humanitarian Law Treaties

A. War Crimes Trials

1 . The Trial of Admiral Doenitz

The only war crimes trials conducted by international tribunals were those
before the International Military Tribunal at Nuremberg and the
International Military Tribunal for the Far East at Tokyo. The International
Military Tribunal at Nuremberg conducted the trial of the principal leaders
of the former German Government who were accused of war crimes or crimes
against humanity. The case in which the Tribunal directly addressed the law
of naval warfare was that of Admiral Doenitz, who initially commanded the
German submarine force and was subsequently commander-in-chief of the
navy. Admiral Doenitz was charged with planning aggressive war (count
one), conducting aggressive war (count two), and with war crimes (count
three) by "waging unrestricted submarine warfare contrary to the Naval
Protocol of 1936. "70 Sir Hartley Shawcross, the chief British prosecutor, stated
to the Tribunal:

Nor need we take time to examine the astonishing proposition that the sinking of neutral
shipping was legalized by the process of making a paper order excluding such neutral
ships not from some definite war zone over which Germany exercised control but from
vast areas of the seas.71

The judgment of the Tribunal, after stating that it "is not prepared to hold
Doenitz guilty for his conduct of submarine warfare against British armed
merchant ships," continued:

However, the proclamation of operational zones and the sinking of neutral merchant
vessels which enter those zones presents a different question. This practice was employed
in the war of 1914-1918 by Germany and adopted in retaliation by Great Britain. The
Washington Conference of 1922, the London Naval Agreement of 1930, and the Protocol
of 1936 were entered into with full knowledge that such zones had been employed in
the First World War. Yet the Protocol made no exception for operational zones. The
order of Doenitz to sink neutral ships without warning when found within these zones
was, therefore, in the opinion of the Tribunal, a violation of the Protocol.72

The unreasonable and unworkable result of the holding here is that the
Tribunal accepts the legality of German operational or exclusion zones as
applied to belligerent merchant vessels but regards the same zones as unlawful

S.V. Mallison and W.T. Mallison 253

when applied to neutral merchant vessels. In doing this, the Tribunal ignored
the fact that in the Second World War many neutral merchant vessels were
sailing in the same convoys with belligerent merchant vessels and the two
were functionally indistinguishable from one another.

The term "neutral merchant vessels" used by the Tribunal is more precise
than the wording concerning merchant vessels in the Protocol, but it remains
ambiguous and comprises at least two distinct categories: those engaged in
genuine inter-neutral trade which does not contribute to the economic
warfare resources of a belligerent, and those neutral vessels which through
acquiescence or coercion, participate in the naval war effort of a belligerent.
The factual reality was that there were no immune neutral vessels in the
Atlantic Ocean proscribed areas. The Tribunal's invocation of the
normatively ambiguous term, "neutral merchant vessels," enabled it to avoid
facing the facts concerning the integration of neutral shipping into the Allied
naval war effort. The Tribunal applied the Protocol to Admiral Doenitz as
if it were a criminal statute. He was found innocent on count one (planning
aggressive war), guilty on count two (conducting aggressive war), and guilty
on count three (war crimes). However, the ten year sentence imposed upon
Doenitz was claimed not to be based upon count three because the United
States also conducted "unrestricted submarine warfare" in the Pacific.73 The
result of this is that the sentence was based only on count two, according
to the Tribunal, which involved nothing more than Doenitz carrying out his
regularly assigned duties as a line officer.

The principal criticism concerning the Doenitz Case, however, is properly
directed at Sir Hartley Shawcross and the other British prosecution lawyers.
They either knew, or should have known, in the exercise of at least minimum
standards of professional responsibility, the factual reality of the integration
of almost all neutral shipping into the Allied naval war effort.74 As it was,
they permitted the Tribunal to make a determination of guilt based on an
erroneous factual assumption even though the Tribunal stated that the
sentence was not based on this count.

2. Other War Crimes Trials

The war crimes trials other than the major trials at Nuremberg and Tokyo
took place before national military tribunals which applied the international
law of armed conflict. Captain Roskill, the official British historian of the
naval war 1939-1945, has written:

It is fair to mention there that, with one conspicuous exception, the captains of the
German disguised raiders conducted their operations, which were a perfectly legitimate
form of warfare, with due regard to international law.75

The exception referred to by Captain Roskill was the commander of a surface
raider charged in the Trial of Von Ruchteschelt76 before a British military tribunal
with failure to give quarter during an attack on a British merchant ship. The

254 Law of Naval Operations

facts involved a daylight attack against the ship in which its wireless aerial
was destroyed with the raider's first salvo. The raider maintained heavy fire
and signaled that the ship attacked was not to use its radio. The case report
states: "The captain of the Davisian stopped his engines, hoisted an answering
pennant and acknowledged the signal." The raider's gunfire continued,
however, for another fifteen minutes and wounded several crew members
while they were trying to abandon ship. Captain Von Ruchteschell was
convicted on the apparent basis that the ship attacked had given an
unequivocal indication of surrender. After this manifestation of surrender,
the Davisian was no longer a lawful object of attack.

In addition to the trial of Admiral Doenitz before the International Miliary
Tribunal at Nuremberg, there were two other cases involving the "Laconia
order" which was issued by Admiral Doenitz on September 17, 1942 while
he was serving as commander of the German submarine force. This order
provided:

(1) No attempt of any kind must be made at rescuing members of ships sunk, and this
includes picking up persons in the water and putting them in life boats, righting capsized
lifeboats and handing over food and water. Rescue runs counter to the rudimentary
demands of warfare for the destruction of enemy ships and crews.

(2) Orders for bringing in captains and chief engineers still apply.

(3) Rescue the shipwrecked only if their statements would be of importance for your
boat.

(4) Be harsh, having in mind that the enemy has no regard for women and children
in his bombing attacks on German cities.77

The Laconia order immediately followed Admiral Doenitz' attempt to
establish a rescue zone of immunity during the period September 12-16, 1942,
Captain Roskill has described the facts:

In September 1942, a group of [four] U-boats and a "milch cow" (as the Germans called
their supply submarines) arrived south of the equator, and there on the 12th U.156 sank
the homeward-bound troop ship Laconia, which had 1,800 Italian prisoners on board.
On learning from survivors what he had done, Hartenstein, the U-boat's captain, sent
a series of messages en clair calling for help in the rescue work and promising immunity
to ships sent to the scene, provided that he himself was not attacked.78

Admiral Doenitz ordered other U-boats to the rescue and the Vichy French
Government was asked to send help from Dakar. The U-boats then took the
principal role in the rescue operations which included towing lifeboats toward
the African coast. This, of course, diverted the submarines from their regular
wartime missions. Captain Roskill 's account continues:

All went well until the next afternoon [September 16] when an American Army aircraft
from the newly established base on Ascension Island arrived, flew around the surfaced
U-boats for about an hour, and then attacked U.156 with bombs. It is as impossible
to justify that act as it is difficult to explain why it was committed.79

S.V. Mallison and W.T. Mallison 255

In 1960 the Historical Division of the U.S. Air Force stated concerning this
incident:

A summary of operations from Ascension Island states that on the morning of 16
September 1942, a B-24 of the U.S. Army Air Forces sighted a submarine at 5 degrees
South, 11 degrees 40 minutes West. The sub, which was towing two lifeboats and was
in the process of picking up two more, was displaying a white flag with a red cross.
The sub did not show any national flag when challenged by the B-24. The plane left
the scene and contacted Ascension. Since no friendly subs were known to be in the area,
the plane was instructed to attack.80

The person who issued the order to attack and the aircraft commander who
carried it out are both prima facie guilty of a war crime. The conduct of the
aircraft commander appears to be entirely inexcusable since he must have
observed the rescue operation. During the time that they are engaged in such
an operation, enemy submarines are no longer lawful objects of attack. The
fact that the U.S. Army Air Forces took no action to investigate this incident
and that no trials took place under the then-effective domestic military code,
the Articles of War, is a serious reflection on the entire chain of military
command. The attempt by Doenitz and Hartenstein to establish a rescue zone
of immunity would have been effective if it had not been for the bombing.
As it was, many of the personnel of the Laconia, including Italian prisoners
of war and British civilian passengers, were rescued in an attempt which
exemplifies the highest humanitarian traditions. The rescue attempt was
entirely consistent with the central objective of the law of armed conflict
to avoid unnecessary destruction of human values. Admiral Doenitz was
charged with violating the rescue provisions of the Protocol of 1936 by issuing
the order. There is, unfortunately, no evidence that the International Military
Tribunal gave appropriate consideration to the rescue zone of immunity as
the indispensable context in which the Laconia order was issued. The Tribunal
did not find him guilty on this charge but it stated that the ambiguous terms
of the order deserved the "strongest censure."81

The second case, the Trial of Moehle82 before a British military tribunal,
involved a German U-boat flotilla commander who was charged with a war
crime in reading the Laconia order to captains of U-boats in his flotilla and
of resolving the ambiguity in the order by providing examples in which the
killing of survivors was approved. In convicting the defendant, the Tribunal
accepted the contention of the prosecution that the examples used amounted
to an order to kill.

Although the third case, the Trial of Eck ("The Peleus Trial")83 is widely
regarded as an implementation of the Laconia order, it is significant that the
defense in it did not invoke the order as a superior order which mandated
the killing of survivors. In this case, also before a British military tribunal,
the captain, two officers, and a rating of the German submarine U-852 were
charged with:

256 Law of Naval Operations

Committing a war crime in that you in the Atlantic Ocean on the night of 13-14th March
1944, when Captain and members of the crew of Unterseeboot 852 which had sunk the
steamship Peleus in violation of the laws and usages of war were concerned in the killing
of members of the crew of the said steamship, Allied nationals, by firing and throwing
grenades at them.84

The prosecution resolved the ambiguity in the charge by stating that the
defendants were not accused of sinking a merchant ship without warning,
but of killing its survivors. The Peleus was of Greek registration and under
charter to the British Ministry of War Transport. Following the sinking, the
accused spent approximately five hours attacking the survivors and the
floating wreckage with machine gun fire and hand grenades. All of the
survivors except three were either killed or subsequently died of wounds.
The three were rescued about a month later and recounted the grim events.
The evidence indicated that the captain, Eck, ordered the shooting and that
the others carried out his orders. The principal defense claim was that the
actions were necessary to eliminate all traces of the sinking. An experienced
U-boat commander, who was called on behalf of the defense, testified that
the approved method of evading Allied anti-submarine attack following a
sinking was to leave the scene at high speed. All of the accused were found
guilty and Eck and the other two officers were condemned to death.85

The Judgment of the International Military Tribunal for the Far East states:

Inhumane, illegal warfare at sea was waged by the Japanese Navy in 1943 and 1944.
Survivors of passengers and crews of torpedoed ships were murdered.86

The commander of the Japanese First Submarine Force at Truk issued an order
on March 20, 1943 which is translated and quoted by the Far East Tribunal:

All submarines shall act together in order to concentrate their attacks against enemy
convoys and shall totally destroy them. Do not stop with the sinking of enemy ships
and cargoes; at the same time, you will carry out the complete destruction of the crews
of the enemy's ships; if possible, seize part of the crew and endeavor to secure information
about the enemy.87

Several examples of the carrying out of this flagrantly unlawful order are
referred to in the judgment of the Tribunal.88 One which is described in detail
involved the sinking of the United States flag Liberty-type merchant ship Jean
Nicolet, which had an armament manned by a U.S. Navy armed guard, and
the brutal murder of most of the survivors of the sinking.89 The Tribunal
stated, inter alia, that the ship's boats were smashed by gunfire and that some
of the crew members, with their hands tied behind their backs, had to run
a gauntlet on the deck of the submarine before being forced into the water.
The remainder of the crew were left on the deck of the submarine when
it submerged. Twenty-two crew members who survived these grim events
were rescued the next day and provided the testimony upon which the
Tribunal's findings of fact were based.

S.V. Mallison and W.T. Mallison 257

Although aircraft attacked merchant vessels engaged in a belligerent's war
effort during the Second World War, no trials took place involving such
attacks. If such trials had taken place, they should have been conducted under
the same legal criteria which would be properly applied in the trials
concerning surface and submarine warfare.

B. Events Following the Battle of the Bismarck Sea

Unfortunately, it was not only Germans and Japanese who murdered
survivors of ships they had attacked and sunk. In March 1943 the Japanese
attempted to move about 7,000 soldiers by ship from Rabaul, New Britain
where their military situation was increasingly precarious, to reinforce the
Japanese Army in Lae, New Guinea.90 This involved the transit of the
Bismarck Sea by a convoy of eight transports escorted by eight destroyers.

The U.S. Army Air Forces in the Pacific had had a poor record for
accurately targeting small islands, much less targeting moving ships, up to
this time. The new commander of the Fifth Air Force under General Douglas
MacArthur, the Commander-in-Chief Southwest Pacific, was Lieutenant
General George C. Kenney, who changed the situation by having his medium
bombers practice low-level attacks so that this capacity was added to the
existing capability of heavy bombers in high-level bombing. The result was
apparent in the Battle of the Bismarck Sea where the B-25 bombers sank
every transport in the convoy (except one sunk by high-level heavy bombers)
and half of the destroyers. Once the ships were sunk, the U.S. Armed Forces
followed practices, much criticized when the offenders were German or
Japanese, of killing as many of the helpless survivors in the water as possible.
Professor Samuel Eliot Morrison, the official historian of the U.S. Navy
during the Second World War, provides the following account:

Meanwhile planes and PTs went about the sickening business of killing survivors in
boats, rafts or wreckage. Fighters mercilessly strafed anything on the surface. On 5
March the two PTs which had sunk Oigawa Maru put out to rescue a downed pilot
and came on an enemy submarine receiving survivors from three large landing craft.
Torpedoes missed as the U-boat crash-dived. The PTs turned their guns on, and hurled
depth charges at the three boats — which, with over a hundred men on board, sunk.
It was a grisly task, but a military necessity since Japanese soldiers do not surrender
and, within swimming distance of shore, they could not be allowed to land and join
the Lae garrison.

Japanese submarines and destroyers saved 2,734 men from the convoy, but over 3,000
were missing.91

It is difficult to accept Professor Morrison's facile statement that Japanese
soldiers do not surrender and his conclusion that a legitimate military necessity
was involved. Some members of the Japanese Armed Forces, including the
highly motivated Kamikaze pilots who participated in the Philippine and
Okinawa operations, did surrender. It is not credible that Japanese soldiers
without weapons who, it is assumed, could have made it to the New Guinea

258 Law of Naval Operations

shore would have become a military asset to the Japanese Army there. The
greater probability concerning a then-unknown future is that they would have
become an additional burden upon the supply and medical resources of that
army.92 Another historian, Professor Ronald H. Spector, has provided a
substantially similar factual account of the events following the Battle of the
Bismarck Sea but has indicated some skepticism concerning the claim of
military necessity.93

If the same legal standards applied to Germans and Japanese who killed
helpless survivors are followed in evaluating the actions of the U.S. Army
Air Forces and the U.S. Navy following the Battle of the Bismarck Sea, there
is no way they can be described as other than flagrant violations of customary
and treaty law. It is a serious reflection on the entire chain of command that
there was no investigation and no charges were brought against those who
issued the orders. Justice Robert H.Jackson, the chief United States prosecutor
before the International Military Tribunal at Nuremberg, stated the basic
legal principle in 1945:

If certain acts in violation of treaties are crimes, they are crimes whether the United
States does them or whether Germany does them, and we are not prepared to lay down
a rule of criminal conduct against others which we would not be willing to have invoked
against us.94

Hague Convention X for the Adaptation to Maritime Warfare of the
Principles o{ the Geneva Convention (1907), a treaty of the United States,
provides in relevant part:

After each engagement, the two belligerents, so far as military interests permit, shall take
steps to look for the shipwrecked, sick and wounded, and to protect them, as well as the dead,
against pillage and ill-treatment.95

The limitation in the treaty concerning "military interests" refers to
legitimate military interests which are recognized as including only lawful
objects of attack and therefore prohibits attacks on helpless survivors.

C. Geneva Convention II for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked members of Armed Forces at Sea (1949)

The four 1949 Geneva Conventions for the protection of war victims96 were
written in the shadow of the Second World War and were designed to prevent
repetition of some practices associated with that conflict. Geneva Convention
II sets forth more detail than Hague Convention X (1907) and in article 18
(1) provides:

After each engagement, Parties to the conflict shall without delay take all possible
measures to search for and collect the shipwrecked, wounded and sick, to protect them
against pillage and ill-treatment, to ensure their adequate care, and to search for the
dead and prevent their being despoiled.

The significance of this provision is that in addition to making "the
shipwrecked, wounded and sick" unlawful objects of attack, it imposes

S.V. MalNson and W.T. Mallison 259

affirmative duties in terms of their protection and care on a non-
discriminatory basis. Articles 22-35 provide more effective immunization
from attack for hospital ships while prohibiting their use "for any military
purpose" or for any acts "harmful to the enemy." Such ships may not possess
or use secret communication codes and must be appropriately marked and
notified to the enemy belligerent so as to facilitate their identification as
hospital ships. Articles 36-40 provide enhanced protection for medical
personnel and for medical transports including aircraft.

D, Geneva Protocol I Concerning International Armed Conflicts (1977)

The Geneva Diplomatic Conference on Humanitarian Law, which met for
a period of several weeks in each of the four years from 1974 to 1977, produced
Protocol I concerning international armed conflicts and Protocol II
concerning internal armed conflicts. These Protocols deal with both the
methods of armed conflict (known traditionally as "the Hague Law") and
the protection of war victims (known traditionally as "the Geneva Law").
The Protocols are designed to supplement the Geneva Conventions of 1949
by adding provisions which have become necessary as a result of more recent
developments in the methods of armed conflict.

Protocol I Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts97 deals
with both the methods of armed conflict and the protection of war victims
in land combat situations, including those involving aircraft, as well as lawful
objects of attack. Protocol I is a treaty in force with 86 state-parties currently,
including several middle level military powers and allies of the United States.98
This constitutes more than half of the states in the world community and
accords the Protocol a significant status as law through the agreement of
states. In addition, many of the provisions of the Protocol are codifications
of customary law.99 The two major military powers which are state parties
are the Peoples Republic of China and the Soviet Union. The position of the
Reagan Administration was that Protocol I, which the United States has
signed, will not be submitted to the ratification process.100

Articles 48-67 of the Protocol comprise a section which provides certain
protections for the civilian population from the effects of hostilities including
attack by aerial bombardment. Article 49(3) refers specifically to "sea
warfare" and provides:

The provisions of this Section apply to any land, air or sea warfare which may affect
the civilian population, individual civilians or civilian objects on land. They further apply
to all attacks from the sea or from the air against objectives on land but do not otherwise
affect the rules of international law applicable in armed conflict at sea or in the air.

Other provisions specify methods and objects of attack which are unlawful.
Article 51(4) prohibits indiscriminate attacks and describes them as attacks

260 Law of Naval Operations

"of a nature to strike military objectives and civilians or civilian objects
without distinction." Article 51(5) provides in full:

Among others, the following types of attacks are to be considered as indiscriminate:

(a) an attack by bombardment by any methods or means which treats as a single
military objective a number of clearly separated and distinct military objectives located
in a city, town, village or other area containing a similar concentration of civilians or
civilian objects; and

(b) an attack which 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.101

Sub-section (b) above is a codification of long-standing customary law.
Article 51(6) provides in comprehensive terms that attacks "against the
civilian population or civilians by way of reprisals are prohibited,"
supplementing the prohibition on reprisals against protected civilian persons
in Geneva Convention IV for the Protection of Civilian Persons in Time of
War.102 Article 54(1) of the Protocol states: "Starvation of civilians as a
method of warfare is prohibited." This appears to prohibit the comprehensive
economic blockades imposed by the major Allied naval powers in both World
Wars because one of the principal effects of such blockades was the starvation
of civilians. A question of fact arises as to what extent particular segments
of the civilian population are incorporated into the war effort.

Articles 21-31 concern medical transportation. Article 22 provides a more
comprehensive protection for hospital ships and coastal rescue craft than that
provided in Geneva Convention II. For example, this article extends the
protections of Convention II beyond hospital ships provided by a party to
the conflict to also include hospital ships provided by a neutral or other state
which is not a party to the conflict or by an impartial international
humanitarian organization. The most obvious example of the latter category
is the International Committee of the Red Cross. Article 23 provides
protection to medical ships and craft whether they are located "at sea or in
other waters," thereby covering territorial waters and internal waters such
as ports, lakes and rivers.

V. The Application of the Law of Targeting to
Selected Situations Since 1945

A. The Korean Armed Conflict

The naval aspects of the Korean conflict were characterized by the
overwhelming superiority of the United Nations naval forces.103 The
operational command at sea was exercised by the Commander of the U.S.
Seventh Fleet and comprised ships and aircraft of the United States Navy,
British Commonwealth navies, and several allied navies. The exercise of

S.V. Mallison and W.T. Mallison 261

complete control of the seas made it possible to conduct a close-in naval
blockade of the Korean coasts which was similar to the blockades in use in
the nineteenth century. The North Korean government had no significant
naval forces and there was no evidence of successful attempts to breach the
blockade. Operational plans provided for the use of visit and search of any
enemy or neutral vessels which were encountered. The intercepted vessels
consisted largely of North Korea deep-sea fishing vessels equipped with radio
transmitters and receivers. There was evidence that a number of these vessels
were employed to obtain intelligence concerning the location and disposition
of warships under the United Nations Command. These vessels were captured
and where appropriate, their crews were made prisoners of war. None of
them was entitled to status as immunized objects under the holding in The
Paquete Habanam concerning the immunity of small coastal fishing boats which
were not involved in the enemy armed conflict effort.

Fish was a main staple of the Korean diet, particularly for coastal villages,
in both the north and the south. It was decided, nevertheless, that fish would
be declared contraband and that the elimination of even coastal fishing would
add to the enemy logistic problems and provide an inducement to turn civilians
against the North Korean regime. Leaflets in the Korean language with the
following text were made available to as many North Korean fishermen as
could be reached in September 1950:

The Communists brought this terrible war down upon you. You cannot fish from your
boats until the Communists are killed or thrown out. The United Nations Forces are
human and do not desire to harm innocent victims of the war, but if you try to fish
again before the Communists are completely defeated, you must suffer the consequences.
A legal blockade has been declared and is enforced by United Nations Forces.105

When fishing was attempted thereafter, coastal boats were confiscated, and
in some instances destroyed, and the fishermen were returned to the beach.
No evidence was produced which indicated that North Korean military forces
suffered significant logistical harm as the result of the ban on fishing. In
contrast, there is evidence that North Korean fishing villages were reduced
to starvation. Apparently, some of the fishermen were so desperate that they
were reduced to attempting to spear fish in shallow water.106 There is no doubt
that this ban constituted a violation of the customary law immunizing coastal
fishing boats enunciated in The Paquete Habana and codified in Hague
Convention XI Relative to Certain Restrictions with Regard to the Exercise
of the Right of Capture in Naval War (1907). 107

Shore bombardment and aerial bombing in support of United States and
allied land forces were conducted in the same way that the U.S. Pacific Fleet
operated during the Second World War.108 In any area where civilian persons
and objects were present, every effort was made to confine the bombardment
to military targets. An example concerning the bombardment at Inchon prior
to and during the famous amphibious landing behind enemy lines which

262 Law of Naval Operations

changed the course of the conflict was provided by the orders of Commander,
Seventh Fleet:

Vice Admiral Struble's orders to the bombardment forces clearly specified that there
should be no promiscuous firing at the city itself or at civilian installations. To achieve
this, the entire objective area had been divided [in target area maps] into 60 sub-areas.
Known military targets had been previously assigned, and those which offered the
greatest potential hazard to our landing forces were circled in red. It had been agreed
that any ship could fire into a red circle area with or without a "spot" [by observer
aircraft]. In the uncircled areas, however, firing was permitted only if definite targets
were found and an air spot was available. This differentiation between types of areas
was adopted to reduce destruction of non-military targets to a minimum, to save the
city of Inchon for occupation forces, and to avoid injury to civilian personnel.109

There is substantial evidence that this same systematic distinction between
civilians and civilian objects and military personnel and objects was made
when the bombardment objectives were located in North Korea in proximity
to civilians there. The result was that shore bombardment was conducted in
substantial compliance with Hague Convention IX Concerning Bombard-
ment by Naval Forces (1907). 110

B. The Cuban Missile Crisis: Self-Defense and Targeting

The issue of the lawfulness of naval targeting is usually considered apart
from the issue of self-defense or aggression in situations of ongoing armed
conflict. Where there is no ongoing armed conflict, it is necessary to comply
with the international law of self-defense in order to provide authority for
the use of naval targeting. There are three indispensable requirements to
justify in law military measures involving naval targeting which are based
upon a claim of self-defense.111 They are: (1) A good faith attempt to use
peaceful procedures; (2) actual necessity (as opposed to a sham or pretense)
in the context of either an existing armed aggression or a threat of armed
aggression against the defending state which is both credible and imminent;
and (3) proportionality in responding defensive measures. The elements of
these requirements, which were developed over a long period of time in
customary international law, are now codified in the United Nations Charter,
a treaty of the United States.

Article 2(3) of the Charter provides:

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(4) provides:

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.

The complementary article 51 provides in relevant part:

S.V. Mallison and W.T. Mallison 263

Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs. . . .

The "inherent right," which is the customary law, requires both actual
necessity for and proportionality in responding defensive measures. The
English language text of article 51 is neither well-drafted nor consistent with
the negotiating history at the San Francisco Conference which reveals that
reasonable and necessary anticipatory self-defense was retained and that self-
defense is not limited only to the situation of an "armed attack. " The wording
cannot be read as if it stated: "if, and only if, an armed attack occurs." The
more carefully drafted and equally authentic French text of article 51 uses
the term "aggression armee" which includes, but is not limited to, armed
attack, and this is consistent with the negotiating history. The view of
Committee I at San Francisco that article 2(4) does not impair the customary
law of self-defense is set forth in the words of its rapporteur, "The use of
arms in legitimate self-defense remains admitted and unimpaired."112 The
words "inherent right" in the English text refer to the preexisting customary
law and, therefore, include anticipatory self-defense. Because the doctrines
concerning anticipatory self-defense may be even more subject to abuse than
the doctrines concerning an existing armed aggression, the three criteria are
applied with greater stringency where anticipatory self-defense is claimed.113

A preeminent example of the application of these principles is the famous
Caroline incident of 1837 which involved a river steamer of that name employed
by U.S. nationals to aid the rebels in the then civil war in Canada.114 The
British Government (then the sovereign in Canada) had attempted
unsuccessfully to have the U.S. Government prevent assistance to the rebels.
Thereafter, Canadian troops came into United States territory and destroyed
the Caroline to prevent its imminent further use. The British Government
claimed reasonable and necessary anticipatory self-defense. The diplomatic
exchange is best known for Secretary of State Webster's formulation of the
requirements of self-defense as involving a "necessity of that self-defense
[which] is instant, overwhelming, and leaving no choice of means, and no
moment for deliberation."115 This statement is too restrictive since 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. The most
important of Mr. Webster's words carefully specified the requirements of
proportionality as follows:

[N]othing unreasonable or excessive [is permitted], since the act justified by the necessity
of self-defense, must be limited by that necessity and kept clearly within it.116

The legal significance of the Caroline incident is that it illustrates compliance
with the three requirements of international law. The British attempted to
use peaceful procedures, were confronted with an imminent danger of attack,

264 Law of Naval Operations

and employed coercion in response which was strictly proportional, and the
incident was resolved on this basis.

On October 16, 1962 President Kennedy received the "first preliminary
hard information" showing the establishment of missile bases with an
offensive targeting capability in Cuba.117 Aerial surveillance of Cuba was
increased and conclusive photographic evidence of the inter-continental
capability of the emplacements was obtained in the next few days. On October
18, 1962, Soviet Foreign Minister Gromyko visited the President and assured
him that Soviet assistance to Cuba "pursued solely the purpose of contributing
to the defense capabilities of Cuba."

President Kennedy and his advisers met in a group that subsequently became
known as the "Executive Committee." A wide range of responses, from so-
called "pin-point bombing" and invasion to doing nothing, was considered.
Because there was no Soviet armed attack, lesser military responses were
considered with full realization that if they were ineffective, more coercive
uses of military power including naval targeting would be employed.

In the decade of the 1950s, much emphasis was placed upon plans involving
"massive retaliation" with nuclear weapons or, as it was put informally, "a
bigger bang for a buck." In contrast, some naval officers and civilians at the
Naval War College in Newport and in the Navy Department in Washington
continued to manifest an interest in limited uses of naval power. Among them
was Rear Admiral Robert D. Powers, USN, who in 1958 wrote an influential
article in the Naval Institute Proceedings entitled "Blockade: For Winning
Without Killing."118 The article emphasized the potential uses in the nuclear
age of a limited naval blockade with characteristics quite different from the
comprehensive economic blockades conducted successfully by the Allied
powers in two World Wars. In October 1962, when Admiral Powers was
serving as the Deputy Judge Advocate General of the Navy, he wrote the
initial draft o{ a proposal for a limited naval blockade of Cuba to interdict
further missiles and components and to remove the existing ones. Following
consultations with Rear Admiral Mott, the Navy JAG, Admiral Anderson,
the Chief of Naval Operations, and General Maxwell Taylor, the Chairman
of the Joint Chiefs of Staff, some changes were made in the draft and General
Taylor took it to the "Executive Committee" where it was considered along
with other recommendations in formulating the President's proclamation of
October 23 entitled "Interdiction of the Delivery of Offensive Weapons to
Cuba."119 In the text, as in the title, the term "blockade" was avoided so
that there could be no confusion between the limited measures taken and the
comprehensive economic blockades of the World Wars. The effectuation of
the quarantine-interdiction, nevertheless, involved a limited naval blockade
with offensive missiles having nuclear capability and inter-continental range
classified as "prohibited material" which was functionally equivalent to
contraband.

S.V. Mallison and W.T. Mallison 265

The President announced the measures to be taken in a radio and television
address on October 22 which, in substance, made a claim of necessary and
reasonable anticipatory national self-defense. On October 23 the prevailing
opinion in the United Nations Security Council, which was initially skeptical
about the factual claims made by the United States, changed drastically with
the circulation by Ambassador Stevenson of copies of the aerial photographs
showing the clandestinely established missile launching sites in Cuba. Also
on October 23 the Organ of Consultation of the Organization of American
States made the claim of anticipatory collective self-defense. Beginning on
October 24, the ships carrying further offensive weapons to Cuba turned back
rather than encounter the blockading naval forces. What had appeared at
times to be a potential nuclear confrontation between the United States and
the Soviet Union was resolved by the Kennedy-Kruschev Agreement which
resulted in the removal of the existing missile emplacements.120

The United States' responding measures in the Cuban Missile Crisis met
each of the legal requirements for anticipatory self-defense. In view of the
misleading statements made to the President by Soviet Foreign Minister
Gromyko, it was deemed that the requirement of attempted peaceful
procedures had been met and that it was futile to attempt further
communications on the subject at that time. The drastic change in the nuclear
balance of forces which would have resulted from the emplacement of Soviet
missiles with nuclear capability in Cuba constituted the most serious kind of
imminent danger to the United States and the Western Hemisphere. The
character of the danger required that action be taken before the missiles were
armed and operational. If delay had taken place until the missiles could be
fired or used as the basis for "nuclear blackmail," it would have been too
late. For these reasons, the requirement of an actual and imminent danger
was met. The limited naval blockade amounted to the least possible use of
military force in response and easily met the requirement of proportionality.

The operational planning for the limited naval blockade of Cuba included
consideration of the lawful objects of naval targeting and the methods which
should be employed against them. If the ships carrying further offensive
weapons had not turned back on October 24, the contingency plans would
have been acted on and the traditional procedures applicable to ships
attempting to breach a blockade would have been used. The penultimate
paragraph of the Presidential Proclamation provided:

Any vessel or craft which may be proceeding toward Cuba may be intercepted and
may be directed to identify itself, its cargo, equipment and stores, and its ports of call,
to stop, to lie to, to submit to visit and search, or to proceed as directed. Any vessel
or craft which fails or refuses to respond to or comply with directions shall be subject
to being taken into custody.121

The ultimate sanction was reserved for ships which refused to submit to
visit and search or attempted to run the blockade. Such ships would have

266 Law of Naval Operations

become lawful objects of attack and after failure to respond to warning could
be sunk by naval gunfire. The final paragraph of the Presidential Proclamation
stated:

In carrying out this order, force shall not be used except in case of failure or refusal
to comply with directions, or with regulations or directives of the Secretary of Defense
issued hereunder, after reasonable efforts have been made to communicate them to the
vessel or craft, or in case of self-defense. In any case, force shall be used only to the
extent necessary.122

The Cuban Missile Crisis, in addition to providing a modern model of the
criteria for lawful anticipatory national and collective self-defense, illustrates
the flexibility of naval force in achieving national objectives without the
destruction of human or material values through its presence at the blockade
line and without employing the full range of coercive measures which it
possesses. The compliance with the international law criteria of self-defense
provided legal authority for the use of the blockade and the necessary measures
of naval coercion to enforce it.

C. The Attack on the 17.5.5. Liberty

The 1967 attack on the Liberty has been summarized as follows:

At 1403 on Thursday, 8 June 1967 the U.S. electronics intelligence ship Liberty (AGTR
5) was steaming at a leisurely five knots, 14 miles offshore from the Egyptian town
of El Arish on the Mediterranean coast of Sinai, when she was attacked by Israeli fighter-
bombers. The attack continued for seven minutes, leaving eight of the ship's crew dead
or dying, more than 100 wounded, and the ship riddled and burning.

Fourteen minutes later, the Liberty was attacked by three Israeli torpedo boats which
raked the ship with gunfire — killing another four men — and then launched torpedoes.
One torpedo hit a communications compartment, multiplying the Liberty's dead to a
total of 34. Within 30 minutes of the torpedo attack, two helicopters carrying armed
troops appeared alongside, and two jet fighters loitered in the sky astern as if poised
for strikes. As suddenly as it had started, everything stopped. Israel said it was a
"mistake."123

It should be added that the attacks took place on a sunny day in international
waters following a long period of Israeli aerial surveillance of the vessel.124
The Liberty's flag at the mainmast was clearly visible and its white hull
identification markings as well as its physical appearance made it very
different from any Egyptian warship or Egyptian flag merchant ship.
Following the torpedo attack, life rafts were dropped over the side of the
ship, secured by a heavy line so that they would be available readily in case
the order to abandon ship had to be given. The torpedo boats attacked the
life rafts with gunfire, sinking two and cutting the line on the third. The
Israeli torpedo boats then sped away taking the third life raft with them.

There are two inescapable conclusions which follow from the facts involved
in the attack. First, the facts show that the attack was deliberate. The
Government of Israel offered a number of unpersuasive excuses for the attack
including that the ship was mistaken for the Egyptian naval coastal transport

S.V. Mallison and W.T. Mallison 267

El Quseir which was a ship half the size of the Liberty and of distinctly different
appearance. The six hours of close-in aerial surveillance of the ship prior to
the initial aerial attack combined with the ideal visual conditions rule out
the possibility of a mistake.125

The second necessary conclusion is that the law applicable to objects of
attack was violated. The Liberty was a neutral ship sailing in international
waters and it was apparent that it was not participating directly or indirectly
in any belligerent state's naval war effort. As such, it was a ship lawfully
immune from attack. In addition, the life rafts would have been illegal objects
of attack in any circumstances. The attack on the life rafts, which was the
last attack when the Liberty was afire and listing heavily, was a violation of
the Geneva Convention II for the Amelioration of the Condition of Wounded,
Sick, and Shipwrecked Members of Armed Forces at Sea of 1949. 126 Whatever
the Israeli motivation for the attack may have been, the conclusion of its
illegality remains.127

D. The Vietnam Armed Conflict

One of the problems confronted by the government of the Republic of
Vietnam (South Vietnam) in the course of the ongoing hostilities in 1965 was
the infiltration by small craft of enemy weapons and supplies through its
territorial and contiguous waters. Operation Market Time, a cooperative
endeavor of the U.S. Navy and the South Vietnam Navy, was designed to
provide surveillance and inspection to prevent such infiltration in the three-
mile territorial sea and in a nine-mile contiguous zone.128 The time-honored
procedures of visit and search were employed. Gunfire from naval vessels
was the ultimate sanction, but it was not employed unless visit and search
was resisted.129 Because the operation was conducted within territorial waters
where sovereign authority existed and within a reasonable contiguous zone,
there was no conflict with international law. The measures employed were
an aspect of the overall South Vietnamese claim to self-defense and the only
objects of attack were lawful since they were limited to craft participating
in the enemy war effort and resisting visit and search.

By 1972 most of the United States Army and Marine Corps forces had been
withdrawn from Vietnam. In late March and early April of that year, the
Democratic Republic of Vietnam (North Vietnam) launched a major attack
across the "Demilitarized Zone" into South Vietnam. The U.S. Government
responded with air attacks and a mining campaign directed against the port
of Haiphong and other North Vietnamese ports.130 The great majority of
weapons and other military supplies imported by North Vietnam arrived by
sea, and about 40 cargo ships called at these ports each month. President Nixon
announced the mining May 8, 1972. Thereafter, it was announced that the
ports, including internal and territorial waters, would be mined commencing
at 0900 Saigon time on May 9 and that the mines were set to activate

268 Law of Naval Operations

automatically at 1800 hours Saigon time on May 11. This was done to permit
vessels then in North Vietnamese ports ample time to depart before the mines
were activated. The mines were laid by aircraft from U.S. Navy carriers and
the interdiction resulted in no foreign merchant ships being sunk. Even though
the United States did not use the blockade terminology, the mining campaign
complied with the historic criteria for a close-in blockade. The announcement
of the mining was widely publicized so that neutrals were informed in
advance. It was limited to North Vietnam and did not block access to neutral
ports. The blockade appears to have been effective and easily met the criteria
of the Declaration of Paris that a blockade "must be effective, that is to say
maintained by a force sufficient really to prevent access to the coast of the
enemy."131 In addition, the mines were passive weapons and no ship was made
an object of attack unless it activated the mines by entering or leaving one
of the North Vietnamese ports. In comparison with the aerial bombing
campaign where military objects were attacked with the possibility of
ancillary civilian destruction,132 the mining was a very restrained response
to the North Vietnamese attack.133 For all of these reasons, the mining
complied with both the historic and contemporary criteria of international
law concerning objects of attack.

The available evidence indicates that the U.S. Navy conducted shore
bombardment of military objectives under the same limitations which were
observed during the Korean conflict.134 The bombardment was sometimes
conducted in support of United States and South Vietnamese ground force
operations. The objects of attack were lawful for the same reasons that the
objects of attack were lawful in the shore bombardments during the Korean
conflict.135

E. The Falklands/Malvinas Armed Conflict

Following the Argentinian invasion and conquest of the Falklands/Malvinas
Islands in early April 1982 (which was accomplished without bloodshed due
to the Argentine avoidance of civilian casualties), Great Britain sent a naval
task force to regain the islands.136 The task force was comprised of two small
aircraft carriers with V/STOL (vertical short take off and landing) aircraft,
five nuclear-powered attack submarines, eight guided missile destroyers,
fifteen general purpose frigates, and a number of smaller combatant vessels
including minesweepers and landing craft. The task force also contained
several Royal Fleet Auxiliaries and a number of requisitioned commercial
vessels including the liners Canberra and Queen Elizabeth II, used as troop
transports, and the liner Uganda, used as a hospital ship. The entire task force,
except for the Uganda which was not made an object of attack by Argentina,137
consisted of vessels which were lawful objects of attack. Argentine Air Force
and Navy aircraft inflicted substantial damage on ships o( the task force and
sank the destroyers Sheffield and Coventry, the frigates Antelope and Ardent, and

S.V. Mallison and W.T. Mallison 269

the landing craft Sir Galahad.13* An aircraft-launched missile, apparently
intended for one of the British aircraft carriers, sank the merchant ship Atlantic
Conveyor which had participated in the naval war effort by carrying a cargo
of helicopters and other military equipment.

On May 1 the nuclear submarine HMS Conqueror shadowed an Argentine
Navy task force consisting of the large light cruiser General Belgrano139 and
two destroyers equipped with Exocet anti-ship missiles. The task force was
operating south of a British exclusion zone of April 12 which covered a circle
from the center of the islands with a 200 mile radius. On May 2 the Conqueror
received permission from the British Cabinet to attack and it sank the Belgrano
with two torpedoes, causing the death of more than 300 members of the
crew.140 There can be no doubt but that this was the sinking of a lawful object
of attack. The British maritime exclusion zone was, however, interpreted
by some as not extending to objects of attack outside of the zone.141 The
apparent outcome was a British naval victory followed by a substantial
political defeat in world public opinion. After the sinking of the Belgrano,
Argentine surface combatants remained within the Argentine territorial and
internal waters.

On June 6 the U.S. Maritime Administration informed both Great Britain
and Argentina of a list of United States flag vessels and United States interest
vessels (owned by U.S. nationals but flying a foreign flag of convenience)
traversing the South Atlantic to ensure that these neutral vessels would not
be attacked. The U.S. interest Liberian flag tanker Hercules was sailing from
the East Coast of the United States to Alaska via Cape Horn.142 On June 8,
when it was approximately 600 nautical miles off the Argentine coast and
500 miles from the Falkland Islands, it was attacked by Argentine aircraft
in three different strikes using bombs and air-to-surface rockets. It proceeded
to Rio de Janeiro harbor and, following a survey by Brazilian Navy authorities
who determined that the damage was extensive and that unexploded bombs
could not be removed safely, it was taken out to deep water and sunk. As
a neutral vessel not participating in the British naval effort, the Hercules was
clearly not a lawful object of attack. Following the refusal of the Government
of Argentina to pay compensation, the owner brought an unsuccessful suit
against that country under the Federal Alien Tort Act in the United States.143

F. The Iran-Iraq Armed Conflict

The Iranian war effort was supported financially almost entirely by the
export of its oil.144 The "Tanker War" of 1980-1988 was carried on by Iraq
exclusively through air attacks, and the targets of the substantial majority
of Iraqi attacks were tankers transporting Iranian oil. Both Iran and Iraq
proclaimed exclusion zones in which shipping was subject to attack.
Approximately one half of the Iraqi attacks were within the Iraqi prescribed
exclusion zones, and the other half were within the Iranian exclusion zone.145

270 Law of Naval Operations

The available information indicates that most of the Iraqi attacks were not
preceded by visual identification of the target. Apparently Iraqi Air Force
planes targeted radar location of ships on the assumption that such
identification of targets within one of the exclusion zones must be a tanker
carrying Iranian oil or a tanker in ballast which was scheduled to take on
Iranian oil. Because of the location of the targets in the exclusion zones and
the usual absence of immune vessels from such zones, the Iraqi attacks cannot
be appraised as indiscriminate even though carried out without visual
identification.

The lack of visual identification was a cause of the Iraqi accidental attack
on the guided-missile frigate U.S.S. Stark (FFG-31) on May 17, 1987, in
international waters outside of any of the exclusion zones.146 The air-to-
surface missiles struck the ship, killing 37 crew members and wounding a
substantial number of others. Published reports indicate that the Stark
personnel and equipment were not ready to defend the ship even though the
attacking aircraft was identified before the missiles were fired. Efficient
damage control procedures prevented the Stark from sinking. It is apparent
that the Stark, as a neutral warship in international waters, was not a lawful
object of attack and the Iraqi Government apologized, assumed full
responsibility, and agreed to pay damages.

The analysis of the lawfulness of the Iraqi air attacks is clearly applicable
to the targeting of Iranian flag tankers. In addition, a general rule is that
neutral ships acquire the character of an enemy merchant vessel when they
are participating directly or indirectly in the enemy war effort.147
Consequently, neutral flag tankers involved in the export of Iranian oil were
equally lawful objects of attack by the Iraqi Air Force. Iran could not lawfully
immunize its export of oil from attack by simply placing it on neutral ships.

Early in the war, Iranian air attacks knocked out Iraqi oil terminals in the
Gulf and effectively prevented access to Iraqi ports. Thereafter, Iraq exported
its oil overland by pipeline and received some of its war sustaining material
through Kuwaiti and Saudi ports.148 The six neutral states which comprised
the Gulf Cooperation Council were increasingly concerned about the Iranian
attacks on neutral shipping. In partial response to this concern, the United
Nations Security Council adopted Resolution 552 on June 1 , 1984. It reaffirmed
"the right of free passage in international waters and sea lanes for shipping
en route to and from all ports and installations of the littoral States that are
not parties to the hostilities," condemned the Iranian attacks on "commercial
ships en route to and from the ports of Kuwait and Saudi Arabia," demanded
that such attacks "cease forthwith," and that there "be no interference with
ships en route to and from States that are not parties to the hostilities." This
amounts to a clear statement of the right of neutral shipping to be free from
attack in international waters. The Security Council took this position even
though the facts showed that both Kuwait and Saudi Arabia were providing

S.V. MalNson and W.T. Mallison 271

significant assistance to the Iraqi war effort by the overland transport of
supplies and in other ways. The Council apparently was convinced that, on
balance, the Gulf Cooperation Council states and their shipping retained
neutral status. This decision seems to have been influenced by the fact that
the neutral ships of the Gulf Cooperation Council states, including the
Kuwaiti reflagged tankers, were not engaged in assisting the Iraqi war effort
by carrying Iraqi oil. It should be added that Resolution 552 does not condemn
the Iraqi attacks.

Iran's air and surface attacks on shipping typically followed visual
identification. The selected targets were indiscriminate in that they included
unlawful attacks on ships engaged in genuine inter-neutral trade. Some of
the targets selected were ships carrying Iraqi war-sustaining material to
Kuwaiti or Saudi ports for overland transport to Iraq. While the attacks
caused damage to ships and personnel, they did not usually bring about sinkings
because of the lack of efficient anti-ship missiles.149 Although Iran had
sufficient surface combatant ships to conduct visit and search, there is no
evidence that it did so on a regular basis. Consequently, the contraband or
immune character of particular cargoes was usually unknown to Iranian
attackers. Iran claimed that its actions were in reprisal to the Iraqi attacks,
but since these Iraqi attacks were lawful, there is no basis for the claim. The
indiscriminate Iranian attacks must be appraised as unlawful.

Iran also laid moored mines, many of which broke their cables, in the
international waters of the Gulf. Unlike the mining of North Vietnamese
ports, where the location of the mines in territorial and internal waters and
the notice to neutral shipping resulted in no damage to neutral ships, the
Iranian mining was not announced and was apparently directed at neutral
shipping.150 This unlawful activity was substantially curtailed following the
United States helicopter attack and capture of the Iranian minelayer Iran Ajr
on September 21, 1987. 151 The minelaying was taking place about 50 miles
northeast of Bahrain in an area used by ships before moving to oil-loading
terminals.

The U.S. Middle East Force which had previously consisted of only three
to five ships was substantially augmented during 1987. 152 In early 1987 the
Government of Kuwait was increasingly concerned about Iranian attacks on
tankers transporting Kuwaiti oil and it approached both the Soviet Union
and the United States for assistance. Kuwait chartered three Soviet-flag long-
hull tankers.153 In May of the same year the Kuwaiti and United States
Governments agreed that the United States would reflag eleven Kuwaiti
tankers consistent with recognized international legal procedures.154 The plans
and procedures for U.S. Navy escort of these neutral tankers were agreed
upon by the Middle East Force and the Kuwaiti Oil Tanker Company. In
the initial convoy of reflagged tankers in July 1987, the lead tanker, the 401,382
ton Bridgeton struck a mine.155 It successfully completed the voyage at reduced

272 Law of Naval Operations

speed, although it was subsequently out of use for several months while the
damage was repaired. Since the hull of the Bridgeton was substantially thicker
than the hulls of the escorting warships, its master recommended that the
escorts fall in astern of his ship, which they did.156 The Bridgeton as a neutral
tanker not participating in the war effort of either belligerent, was an
unlawful object of attack.

A number of small Iranian combatant vessels became lawful objects of
attack by approaching the neutral vessels convoyed by the U.S. Navy in a
hostile manner and were driven off or sunk by U.S. Navy vessels or
helicopters. Meanwhile, because of the danger to other neutral shipping,
including attacks by small Iranian combatant vessels using machine guns and
rocket-propelled grenades, the British, French, Italian, Dutch and Belgian
navies sent a number of small combatant vessels, including minesweepers, to
the Gulf and escorted neutral vessels under their flags.157

On October 16, 1987, the U.S.-reflagged former Kuwaiti tanker Sea Isle
City located about ten miles off Mina al-Ahmadi was hit and damaged by
a Silkworm missile fired by Iran from Fao Peninsula with the result of damage
to the ship and injuries to personnel.158 Three days later the U.S. Navy shelled
and blew up an Iranian oil platform east of Bahrain and destroyed the
electronic equipment on a nearby platform. Prior to the shelling, the United
States gave notice of the impending action so that personnel would have the
opportunity to evacuate the platforms, and it was believed that they did so.
This attack on what was considered a lawful target was a limited and
proportionate response to the attack on the Sea Island City. It should be added
that there were no further attacks using Silkworm missiles on U.S. flagged
vessels.

G. The April 1986 Attack on Libya: Self-Defense and Targeting

Authors' note:

This section was written based on the best information the authors were able to obtain
from the available unclassified sources. They have been reliably informed that there
is also classified material which contributed to the decisions made and actions taken
in the planning and carrying out of this attack. Neither of the authors has access to
such information and such access would not be consistent with their independent
professional work. The present analysis emphasizes the law applicable to targeting.

The Reagan Administration claimed that the attacks on Benghazi and
Tripoli on April 15, 1986 (April 14, Washington, D.C. time), were justified
on the basis of self-defense. It is therefore necessary to apply the international
law of self-defense (as in the analysis of the Cuban Missile Crisis) and other
possible legal grounds for the attack to the events. The law of targeting will
then be applied to determine the compliance with its requirements by the
U.S. Navy and Air Force in the attack. The factual background which will
be examined initially is essential to an understanding of the law.

S.V. Mallison and W.T. Mallison 273

1. The Factual Background

Attacks took place at the El Al Israel airline counters in the Rome and
Vienna airports on December 27, 1985, resulting in 19 civilian casualties
including five United States nationals, and among them, Natasha Simpson,
an 11 year old girl.159 President Reagan commented on those grim events in
the opening statement at his press conference on January 7, 1986:

It's clear that the responsibility for these latest attacks lies squarely with the terrorist
known as Abu Nidal and his organization. . . . But these murderers could not carry
out their crimes without the sanctuary and support provided by regimes such as Col.
Qadhafi's in Libya. Qadhafi's longstanding involvement in terrorism is well-
documented, and there's irrefutable evidence of his role in these attacks. . . . By
providing material support to terrorist groups which attack U.S. citizens, Libya has
engaged in armed aggression against the United States under established principles of
international law, just as if he [sic] had used its own armed forces.160

In response to a question at the press conference, the President stated, inter
alia, "I can assure you that we have the evidence. . . . Abu Nidal has more
or less moved his headquarters there into Libya."161 The President issued an
Executive Order on the same day, which stated:

I, RONALD REAGAN, President of the United States of America, find that the policies
and actions of the Government of Libya constitute an unusual and extraordinary threat
to the national security and foreign policy of the United States and hereby declare a
national emergency to deal with that threat. . . .162

Secretary of State Schultz' address to the National Defense University on
January 15, 1986, considered recent episodes of terrorism under the title,
"Low-Intensity Warfare: The Challenge of Ambiguity."163 He recommended
military responses to such "warfare" conducted against the United States
while pointing out, "The law requires that such actions be necessary and
proportionate. "164 Apparently the Libyan connection with the airport murders
was that some of the perpetrators carried passports which had belonged to
Tunisians who had worked in Libya.165 This information is equivocal and
consequently may or may not indicate Libyan support for these terrorist
actions. Professor Richard E. Rubenstein, in his study of contemporary
terrorism, states:

In fact, no evidence demonstrating Libyan complicity in these attacks was ever produced.
Calling this episode of terrorism "war" was primarily a frustrated response, signifying
acceptance of the principle of collective responsibility: if we cannot find and punish
the perpetrators, we will punish their suppliers and sympathizers. . . . Militarily, it
reflects the questionable premise that drying up the terrorists' external sources of supply
will terminate their activities. Morally, it is intended to justify retaliation in which
innocent civilians get hurt. And politically, it ends the search for indigenous social causes
of terrorism, preferring to view local violence as a product of policies formulated in
some foreign capital.166

While it is very important to search for, identify and attempt to ameliorate
or correct the "indigenous social causes of terrorism," the role of the suppliers
of terrorism should not be overlooked. On February 8, 1988, The Washington

274 Law of Naval Operations

Post reported an interview with Qaddafi by Katherine Graham, chairman of
The Washington Post Company, and correspondents of the Post and Newsweek
under the headline, "Gadhafi: Terrorism is Response to U.S. Policies."167 The
article stated, inter alia:

Asked about Libyan involvement in supplying weapons to groups that carry out
terrorist actions, Gadhafi did not directly deny such involvement but appeared to defend
it on the grounds that it balanced U.S. intervention elsewhere:

"Why is Reagan involved with the contras in Nicaragua, with UNITA in Angola,
with Afghanistan? This is the same question. Let's all agree that everyone concern
himself only with things in his own borders."168

It is also significant that the political causes of terrorism in the Middle East
include the United States Government's comprehensive military and
economic support for the State of Israel.169

The Gulf of Sidra is bounded by Libyan territory except for an opening
to the Mediterranean on the north which is approximately ten times the width
of the opening permitted for a "juridical bay" (24 nautical miles or less) under
the jurisdiction of the adjoining state.170 The Government of Libya has,
nevertheless, claimed that the Gulf of Sidra is a part of its internal waters,
and its principal domestic airline traverses the northern part of the Gulf
between the two largest Libyan cities, Benghazi and Tripoli. Freedom of the
seas in the Gulf of Sidra outside of the 12 mile limit has been successfully
maintained for many years by diplomatic protest171 and by task forces of small
combatant vessels of the British, French and U.S. Navies. In contrast, from
late January until late March 1986, a 30 ship task force of the U.S. Sixth Fleet
conducted surface and aerial operations in and adjacent to the Gulf of Sidra.
From March 23 until March 26 three carrier battle groups, the Coral Sea, the
Saratoga, and the America, operated in the same area, sinking Libyan missile
boats and downing Libyan fighter aircraft which were claimed to approach
with "hostile intent."172 The Reagan Administration claimed publicly that
this was a routine maintenance of the right of freedom of navigation, but
accounts in the media stated that it was privately conceded to include a
possible provocation. For example, Messrs. Hoffman and Cannon, writing
in The Washington Post on March 25, 1986 stated:

Although the White House claimed yesterday that the purpose of the naval exercise
was solely to demonstrate freedom of navigation in an international waterway, officials
said privately that the exercise was planned with a realization that it might provoke
a military confrontation with Qaddafi and a chance to underscore Reagan's
determination to deal firmly with international terrorism.173

Previously the exercise of freedom of navigation in this area had not been
provocative because it was maintained by small naval task forces. Such an
exercise can become provocative, however, by using a larger force than that
which is routine and necessary.

S.V. Mallison and W.T. Mallison 275

The bombing of the La Belle discotheque in West Berlin which followed
on April 5, 1986, caused the immediate deaths of a U.S. Army enlisted man
and a young Turkish woman and injury to many others including U.S. military
personnel. On the evening of April 14, the White House issued a statement
that "In light of this reprehensible act of violence and clear evidence that
Libya is planning future attacks, the United States has chosen to exercise its
right of self-defense."174 In an address to the nation on the same evening,
President Reagan stated:

This monstrous brutality is but the latest act in Colonel Qadhafi's reign of terror. The
evidence is now conclusive that the terrorist bombing of La Belle discotheque was
planned and executed under the direct orders of the Libyan regime. . . . Our evidence
is direct; it is precise; it is irrefutable. We have solid evidence about other attacks Qadhafi
has planned against the U.S. installations and diplomats and even American
tourists. . . . Self-defense is not only our right, it is our duty. . . . We Americans are
slow to anger. We always seek peaceful avenues before resorting to the use of force —
and we did.175

Seymour M. Hersh, an investigative reporter for the New York Times, wrote
in February 1987:

There was widespread concern and anger inside the National Security Agency over the
Administration's handling of the Libyan messages intercepted immediately after the
April 5 terrorist bombing of a West Berlin discotheque. The White House's reliance
on these messages as "irrefutable" evidence that Libya was behind that bombing was
immediately challenged by some allies, most notably West Germany. Some NSA experts
now express similar doubts because the normal intelligence channels for translating and
interpreting such messages were purposely bypassed. As of this month, the NSA's North
African specialists had still not been shown these intercepts.176

As an example of doubts expressed in Western Europe, the German source,
Der Spiegel, published an article in April 1986 entitled "A Complexity of
Findings — Secret Service Dispute Over Libyan Radio Messages." The article
stated that the "U.S. National Security Agency" and its German equivalent
had reached opposite conclusions as to the meaning of the radio intercepts.
One of its conclusions stated:

Radio messages of such clarity which document a direct responsibility of the Libyan
revolutionary leader Col. Muammar el Ghaddafi for the Berlin bombing were never
recorded.177

Mr. Hersh, in the article quoted above, also stated:

William J. Casey, then Director of Central Intelligence, personally served as the
intelligence officer for a secret task force on Libya set up in mid-1981, and he provided
intelligence that could not be confirmed by his subordinates. Some task force members
suspected that much of Casey's information, linking Qaddafi to alleged "hit teams" that
were said to be targeting President Reagan and other senior White House aides, was
fabricated by him.178

In early 1986 a report, entitled Libya Under Qadhafi: A Pattern of Aggression
and covering alleged Libyan terrorism through the December 1985 attacks

276 Law of Naval Operations

at the Rome and Vienna airports, set forth the State Department's
understanding of the facts:

The main targets of direct Libyan terrorist activities have been expatriate Libyan
dissidents and leading officials of moderate Arab and African governments.179

The report also states that these attacks have taken place in many countries
and that Libya has planned anti-exile attacks in the United States, but only
one example is provided.180 There is a "Chronology of Libyan Support for
Terrorism 1980-85"181 in the report which lists a total of 58 incidents, but only
eight were alleged to involve direct action by Libya and of these none were
stated to be directed against United States nationals. Two of the others
referred to Libyan armed forces actions against Chad and one referred to
the August 1981 incident in which two Libyan SU-22s were shot down by
U.S. Navy aircraft. Some of the incidents appear to be based upon hearsay
evidence which would not be admissible in a law court, although some are
consistent with possible Libyan support for terrorism. A more recent State
Department report issued in 1989182 accuses Libya of "Reaching for
Respectability"183 and of conducting a "Drive for Influence,"184 but neither
is in violation of international law and both are activities of most national
states. The report contains a "Chronology of Libyan Support for Terrorism,
1 986-1 988"185 with many of the incidents reported stated to be "believed" or
"suspected." Like the earlier report, this one contains some statements which
are consistent with possible Libyan support for terrorism.

In summary, the State Department reports fail to produce factual evidence
of direct Libyan terrorism against United States nationals, and the information
provided concerning Libyan support for terrorism is equivocal. Consequently,
the Reagan Administration's claims against the Libyan Government are not
substantiated by the State Department's reports.

The Vice President's Report on combating terrorism issued in early 1986
refers to "the uncovering of a pro-Qaddafi conspiracy to carry out three
assassinations and to bomb strategic locations in the United States"186 by the
Federal Bureau of Investigation in 1985. The Report contains no details on
this subject and the only other reference to Libya reports that Qaddafi stated
that Libyans will attack "American citizens in their own streets."187 If this
were to happen, it would be within domestic jurisdiction and police power.
Concerning international responses to terrorism, the Report states, inter alia:

Political or economic sanctions directed against sponsoring states offer the least direct
danger to lives and property and are more likely than military force to gain international
support.188

The United States has used such economic sanctions against Libya and has
applied the International Emergency Economic Powers Act.189

On April 14, 1986 the twelve ministers of foreign affairs of the European
community issued an announcement at The Hague which stated, inter alia:

S.V. Mallison and W.T. Mallison 277

The Twelve have decided to act according to the following lines regarding Libya and,
where necessary, regarding other states clearly implicated in supporting terrorism:

— restrictions on the freedom of movement of diplomatic and consular personnel;

— reduction of the staff of diplomatic and consular missions;

— stricter visa requirements and procedures.190

The announcement added that no arms or other military equipment will be
exported to Libya and that further measures will be considered as necessary.
The Western Economic Summit meeting in Tokyo, May 4-6, 1986 issued
"Declarations and statements by the seven Heads of State of Government
and the representatives of the European Communities."191 Concerning
international terrorism, it was stated, inter alia:

We specify the following as measures open to any government concerned to deny to
international terrorists the opportunity and the means to carry out their aims, and to
identify and deter those who perpetrate such terrorism. We have decided to apply these
measures within the framework of international law and in our own jurisdictions in
respect of any state which is clearly involved in sponsoring or supporting international
terrorism, and in particular of Libya, until such time as the state concerned abandons
its complicity in, or support for, such terrorism.192

The "measures" included refusal to export arms, strict limits on the size of
diplomatic missions, denial of entry to suspected persons including diplomatic
personnel, improved extradition procedures, stricter immigration and visa
requirements, and close bilateral and multilateral cooperation.

A negotiating history of the Tokyo Summit which appeared in the New
York Times193 stated that the specific mention of Libya was a last minute change
inserted by the Summit leaders after the final draft declaration was presented
to them. The European position was reported to be that terrorism could only
be combatted effectively by understanding that it arose from legitimate
political grievances but, nevertheless, the final text included the declaration
that "terrorism has no justification."194 An informal working paper stated
to have been prepared by staff members of the United States delegation
conceded that one thing which might well motivate other countries to fight
terrorism "is the need to do something so that the crazy Americans won't
take matters into their own hands again."195

Whatever the motivations, it is clear that the European community's
official position is that state supported terrorism exists and that Libya is one
offender. Nothing in the community's position, however, provides support
for military as opposed to economic and diplomatic sanctions. The New York
Times reported that President Reagan stated on April 21, 1986, that President
Mitterrand of France privately suggested that the United States make an all-
out military attack against Libya.196 This is not consistent with the French
President's public position denying overflight rights for the aircraft flying
from the United Kingdom to Libya. Apparently the Reagan Administration

278 Law of Naval Operations

did plan a comprehensive military attack upon Libya to be effectuated in
cooperation with Egypt. An article in The Washington Post of April 2, 1986,
by Bob Woodward stated, under the headline "U.S. Unable to Persuade Egypt
to Back Plan for Joint Anti-Qaddafi Move":

Eight months of secret U.S. efforts to win Egyptian approval for a U.S. -Egyptian
military operation designed to overthrow Libyan leader Muammar Qaddafi appear to
have foundered following public disclosure and rejection of the plan by Cairo, informed
sources said yesterday.197

2. Application of the International Law Requirements for Self-
Defense

The same three basic requirements considered in the analysis of the Cuban
Missile Crisis are applicable.198 They are: the use of peaceful procedures if
possible; actual necessity for defense of the national state against an existing
armed aggression or an imminent one; and proportionality in responding
defensive measures.

The media reported on the Libyan attempts to use peaceful procedures and
the United States reaction. For example, two weeks before the U.S. bombing
attacks, David H. Ottaway reported on the Libyan attempts to open
diplomatic discussions with the U.S. Government:

In advance of Vice President Bush's trip to Saudi Arabia, Libyan leader Muammar
Qaddafi sent two emissaries to Riyadh in an apparent attempt once again to open a
dialogue with Washington in the wake of the U.S. -Libyan confrontation last week in
the Gulf of Sidra.

Administration officials said they had no intention of responding to Qaddafi 's latest
overture through the Saudis. They added that they have also rebuffed half a dozen other
attempts by Libya to make contact with the United States through various European
and Arab channels following the December 27 terrorist attacks on the Rome and Vienna
airports. . . .

The would-be European and Arab mediators, including King Fahd himself, were
firmly told in January that the administration was not interested either in "a direct or
indirect dialogue" with Qaddafi, according to the sources.199

The Ottaway article also reports:

The administration has also told various would-be mediators that it is not interested
in striking any "deal" with Qaddafi whereby the Libyan leader would promise to end
terrorist attacks against U.S. interests in return for improved relations with the United
States, the official said. . . .

In addition to King Fahd, Qaddafi also tried in January to enlist the support of the
leaders of Greece, Austria, Malta, Italy and Morocco to open a dialogue with
Washington.200

Unfortunately, it is necessary to conclude from the events summarized that
the Reagan Administration failed to take advantage of the several
opportunities presented to it for peaceful resolution of the controversy in spite
of President Reagan's statement to the contrary.201 Consequently, the United

S.V. MalMson and W.T. Mallison 279

States Government failed to comply with the first requirement to justify a
claim of self-defense.

The second requirement of the law of self-defense is that there be an
existing armed aggression against the United States or an imminent one which
is reasonably anticipated in the near future.202 The entire law of national self-
defense has been developed to protect a national state from armed aggression
or an imminent threat of such aggression to its most basic values including
its continued national existence and independence. Other legal doctrines,
including the recognized right of a state to take limited measures to protect
its nationals abroad, have been developed to deal with lesser injuries.203 The
Japanese attack on Pearl Harbor provides an example of a then-existing armed
aggression against the United States. An example of a reasonably anticipated
imminent armed aggression is the threat to the United States from the
clandestine attempted emplacement of Soviet inter-continental missiles with
nuclear capability in Cuba.

Both of these examples involved action by major military powers which
was directed at the United States as a national entity. In contrast, the claims
of President Reagan set forth above204 refer to injury or threatened injury
from a state which has a trivial military capacity in comparison with that
of the United States and only concern alleged past and future attacks on
individual U.S. citizens rather than the United States as a whole. If a basis
for the claim of self-defense can be the probability of future Libyan terrorism,
then one is forced to consider possible future acts which are much harder
to ascertain than the alleged unclear past events. In evaluating past events,
even if it were assumed that Libya was responsible for the bombing at the
La Belle discotheque, the attack on Benghazi and Tripoli several days later
could not be self-defense to that bombing as an imminent threat.205

The determination of whether or not Libyan actions constituted a
meaningful threat to the United States should also consider the role of other
states in activities termed "terrorism." George C. Wilson and Fred Hiatt,
writing on March 26, 1986, stated that:

U.S. intelligence showed that Iran and Syria probably were more involved in the recent
acts of terrorism, but those countries were not the visible symbols of evil that Qaddafi
presented. A demonstration of U.S. resolve was necessary and Libya was singled out.206

The persistence of such reports was reflected in an interview with Secretary
of State Shultz. Lesley Stahl interviewed the Secretary on CBS-TV's "Face
the Nation" on January 12, 1986:

Q. There are reports now that investigators in Europe believe that the terrorists who
perpetrated the bombing in Rome and Vienna did not come from training camps in
Libya, but came from camps in the Syrian-controlled Bekaa Valley, and then came
through Syria into Europe. Are there second thoughts within our government about
just exactly how much Libya is to blame for this latest terrorist act?207

280 Law of Naval Operations

Secretary Shultz replied, in part, "No. Libya is clearly supporting terrorism
in general." In the balance of a long answer he did not mention Syria. The
questioner persisted:

Q. Now, what about Syrian involvement? Just how much is that government

responsible?

A. Syria's picture is a rather different one. I would remind you that Syria has long

been on our terrorist list, but Syria's behavior toward all of these things is rather different

from Libya's.

Q. In what sense? How is it different?

A. In their public attitudes, and because we are working with Syria on a number of

fronts in a constructive way.208

In Secretary Shultz' news conference on January 9, 1986, he was asked a
question about the Iranian role:

Q. Why the narrow focus on Libya when our own intelligence community has singled
out Iran, for example, as a country that trains terrorists, a country that has taken
American lives over the past several years in places like Lebanon? Why the lashing out
on this one subject and not tackling the others?

A. Libya is a country that has been, is, and no doubt will continue to be involved in
terrorist activities. . . . Insofar as Iran is concerned, we are as concerned anywhere
about terrorist activities. We are talking about Libya in this instance. We have very
little trade with Iran. . . ,209

Secretary Shultz did not state that the "little trade" he referred to was
principally the Reagan Administration's then secret weapons shipments to
Iran.210 The supply of weapons to Iran, of course, made it unrealistic to treat
that country as Libya was being treated. There were also compelling reasons
to treat Syria differently. During the Israeli armed attack on the Palestine
Liberation Organization and Lebanon in 1982, Israel attacked and destroyed
a large part of the Syrian Air Force and the Syrian air defense system.
Thereafter, the Soviet Union reinforced its ties with Syria and rebuilt the
air defense system.211 The result was that in 1986 Syria possessed a much more
significant defense system than it did in 1982 and an attack on Syria would
be much more costly to the attacker than would an attack on Libya. In addition
to other reasons, Libya was apparently selected for its military weakness
which made it a less credible threat to the United States than either Iran or
Syria.

While it is not unlawful to select a weak target in order to minimize
casualties to one's own forces, the matter must also be evaluated in terms
of the proportionality of probable ancillary civilian casualties. It is impossible
to support the finding of President Reagan in his Executive Order of January
7, 1986, that the Government of Libya constitutes "an unusual and
extraordinary threat to the national security and foreign policy of the United
States."212 There was simply no threat to the national security, and if there
were a threat to foreign policy, it would not justify responding military
measures. Because of these considerations, it is impossible to conclude that

S.V. Mallison and W.T. Mallison 281

the United States complied with the legal requirement of an existing or
imminently anticipated armed aggression against it.

The third essential element of a valid claim of national self-defense is
proportionality in responding measures. Because of the failure to use available
peaceful procedures and the absence of actual necessity, it would be
unnecessary to consider the issue of proportionality. Even if the first two
requirements for self-defense had been met, there is considerable doubt that
the intense use of military coercion in a responding bombing attack could
be appraised as proportional. One reason for this doubt is that following the
bombing attacks it became clear that the United States had killed and injured
many more Libyans (both civilian and military personnel with no indication
that any of the victims were involved in any acts of terrorism) than the number
of Americans that Libya was accused of either killing or providing support
for their killing.

U.S. Navy Regulations, which are routinely treated as law in many contexts
including court martial proceedings, are issued by the Secretary of the Navy
following the approval of the President.213 Article 0915 entitled "Use of Force
Against Another State" provides in relevant part:

The right of self-defense must be exercised only as a last resort, and then only to the
extent which is absolutely necessary to accomplish the end required.

Force must never be used with a view to inflicting punishment for acts already
committed.214

In summary, it is very difficult to find legal support for the Reagan
Administration's claim that the bombing attack is justified as self-defense.
3. Application of the International Law of Reprisal

It is sometimes suggested that the law of self-defense is inadequate to
provide protection against contemporary acts and threats of terrorism and
that the law concerning reprisals is more relevant.215 The traditional law on
the subject has three requirements for an act of reprisal to be justified: (1)
a response to a violation of international law; (2) an unsatisfied demand for
termination of the violation; and (3) a proportion between the original
violation and the act of the reprisal.216 There is some evidence that there may
have been a violation of international law by Libyan support for terrorism,
and apparently the Reagan Administration carried out the bombing on the
basis that the original violation had not been terminated, although they did
not at any time claim that the raids were reprisals. The most serious difficulty
with application of the law of reprisal is the third requirement of
proportionality.

The Geneva Convention for the Protection of Civilian Persons (1949)217
prohibits reprisals against protected civilian persons. In addition, the well-
established customary law prohibits attacks upon civilians. It is clear that the
United States bombing attacks were not directed at civilians as such.

282 Law of Naval Operations

Nevertheless, it must have been apparent that the selection of claimed military
targets in such close proximity to civilian residences and the French Embassy
presented the gravest danger to civilians. The results of the bombing in civilian
casualties raise substantial doubt as to whether the requirement of
proportionality for reprisals was met.

4. Application of the Law of Targeting

The failure of the claim of self-defense and the serious doubts concerning
justification as reprisal mean that there is no clear legal authority for attacking
Libyan objectives. It is essential, nevertheless, to examine the bombing attacks
under the criteria of the law of targeting.

The operational plan for the bombing of Libya was termed El Dorado
Canyon. Because of the denial of over-flight rights by European countries,
except Great Britain, the Air Force F-lll aircraft from Lakenheath Air Base
in England flew around the west coast of the Iberian Peninsula, entering the
Mediterranean at the Strait of Gibraltar, and after repeated refuelings,
attacked targets in Tripoli. The Navy aircraft from the carriers attacked
targets in Benghazi.

There were five targets specified for the bombing attack: (1) Benina air
field at Benghazi where some Libyan military aircraft were on the ground;
(2) Benghazi Barracks — the site of Qaddafi's alternate headquarters and
command post; (3) Tripoli International Airport where some Libyan military
transport aircraft were on the ground; (4) Sidi Bilal military facility in
Tripoli — claimed to be a terrorist training school (Libya claimed that it is
a school for naval cadets); and (5) Azziziyah compound in Tripoli — Qaddafi's
main headquarters and his family's home.218 Following interviews over a
period of three months with more than 70 of the officials planning the attack,
Seymour Hersh concludes that Col. Qaddafi was the primary target.219
Qaddafi was not hit, but Hersh reports concerning his family:

All eight of Qaddafi's children, as well as his wife, Safiya, were hospitalized, suffering
from shock and various injuries. His 15-month-old adopted daughter, Hanna, died several
hours after the raid.220

President Reagan's executive order number 12,333, section 2.11, entitled
"Prohibition on Assassination" states that "No person employed by or acting
on behalf of the United States Government shall engage in, or conspire to
engage in, assassination."221 Referring to this order in the context of the
Libyan attacks, and particularly the bombing of the Qaddafi family living
quarters, one commentator stated:

If the raid was in fact a veiled execution attempt, it would pit the Reagan Administration
against a specific presidential order and substantial legal precedent. In 1976, after public
discontent over the revelations of CIA assassination attempts in Chile, Guatemala and
Iran, President Ford issued an Executive Order forbidding the Government from
authorizing the assassination of world leaders. Both Presidents Carter and Reagan have
reaffirmed that ban.222

S.V. Mallison and W.T. Mallison 283

Aviation Week & Space Technology reported under the headline, "U.S.
Demonstrates Advanced Weapons Technology in Libya," that a senior
military official stated shortly after the attack:

"Understandably, after the all-Navy action in Libya last month, the Air Force wanted
a piece of the action." The official added, "The fact that the Defense Dept. budget
is under consideration — and here was an opportunity to show how well the money is
being spent on aircraft and weapons — was not overlooked by both services as a side
benefit to the mission. Another reason to include the F-llls in the operation was that
it showed the support of Great Britain for our antiterrorist activities."223

At his joint press conference with Secretary Shultz the evening of April
14, 1986, Secretary of Defense Weinberger said in his introductory comment:

We used a combination of 500-pound and 2,000-pound laser-guided weapons and
precision-guided delayed gravity bombs. All of the Navy planes have returned without
casualty. All of the F-llls with one exception, have been accounted for and are
returning. . . . The attack was carried out precisely as planned, and it was, as the
President said, evidence of very great skill, both navigational as well as the organization
of the attack which was a difficult one from the professional point of view and done
with great effectiveness. . . P*

During the ensuing question period, the following took place:

Q. There was also a report that you hit part of the French Embassy in Libya. Do you

know anything about that report?

A. Secretary Weinberger. That would be, I think, virtually impossible.225

David Blundy and Andrew Lycett, have reported on both the rules of
engagement and the civilian casualties.226

The rules of engagement for Operation Eldorado Canyon had been strictly
formulated, or so it was claimed in the official U.S. explanation to the British Cabinet:
the planes should strike only targets that could be precisely defined and shown to be
related to terrorist and military activity. The weapons officer in each plane had to have
a 'double lock-on' before he could release his bombs, which meant that he had to fix
the target, not only with his forward looking infra-red night sight, but also with his
Pave Track radar. Any plane which failed to achieve this was under orders to leave
the target area and jettison its bombs over the sea. . . .

At least a dozen bombs and missiles fell in the area of Bin Ashur a [suburb of Tripoli],
making craters ten feet deep, knocking out the front of an apartment building and scoring
direct hits on private villas. The house next to the French embassy was destroyed and
the embassy itself severely damaged. One bomb or missile landed in the center of a
park and children's playground. A child's foot was sticking out of the rubble of one
building. The body of an old man was fixed in a crouch as if he had been getting out
of bed when the bombs hit. Another old man lay on a stretcher outside his villa, killed
by falling rubble. It was a gruesome sight.227

In another account, David C. Martin and John Walcott report similar civilian
damage and conclude that: "Measured by the bomb-damage assessment, the
raid was less than impressive."228 The newspapers reported various
inaccuracies in the bombing. For example, Edward Schumacher, reported in
the New York Times:

284 Law of Naval Operations

More than a dozen bombs and missiles from the American air raids early Tuesday appear
to have missed an air base and hit two farms about two miles away according to evidence
seen by reporters on visits to the farms today.229

Unfortunately, aerial bombardment even with the most advanced technology
remains a very blunt instrument. Operational planners of "surgical strikes,"
employing "pin-point accuracy," and "precision delivered munitions,"
should recognize that results consistent with such plans are seldom manifested
in an actual bombardment.

Even though there was no prior armed conflict between the United States
and Libya, the armed attack brought into effect the law of armed conflict.
Ever since the Prize Cases,230 decided by the U.S. Supreme Court during the
Civil War, the law of armed conflict has been applicable to the fact of an
international armed conflict including episodes of hostilities without requiring
a so-called technical state of war. Therefore, Hague Convention (IX)
Concerning Bombardment by Naval Forces in Time of War (1907),231 is
applicable to the bombing of Tripoli and Benghazi. It prohibits bombing of
undefended locations, and military targets in Tripoli and Benghazi were
defended even though the Libyan defenses were weak in comparison with
the military technology and the weight of the ordnance employed against
them. Article 6 of the Convention provides:

If the military situation permits, the commander o( the attacking naval force, before
commencing the bombardment, must do his utmost to warn the authorities.

In the bombardment of the Iranian oil platforms in the Persian Gulf,
considered previously,232 prior notice was given so that the personnel would
evacuate the platform. In the attacks on Tripoli and Benghazi a probable
objective was to kill Libyan personnel alleged to be involved in terrorist
training activities and so no warning was given. In view of the ambiguous
language concerning "[i]f the military situation permits," it is not clear that
Hague Convention IX required a warning. The unfortunate result, however,
in addition to the killing of Libyan military personnel who possibly had no
connection with terrorism, was the killing o( a substantial number of
civilians.233

The Navy Commander's Handbook on the Law of Naval Operations ("NWP 9")
under the heading "Incidental Injury and Collateral Damage" provides the
legal criteria of the well-established customary international law:

It is not unlawful to cause incidental injury or death to civilians, or collateral damage
to civilian objects, during an attack upon a legitimate military objective. Incidental
injury or collateral damage should not, however, be excessive in light of the military
advantage anticipated by the attack. Naval commanders must take all practicable
precautions, taking into account military and humanitarian considerations, to keep
civilian casualties and damage to the absolute minimum consistent with mission
accomplishment and the security of the force.234

S.V. MalNson and W.T. Mallison 285

This legal standard is easier to apply in an on-going international conflict
than it is to the attacks on Tripoli and Benghazi. The first difficulty here
is to determine whether the military objectives which were targeted
constituted "a legitimate military objective." It is also difficult to identify
the lawful "military advantage" which was anticipated by this attack.
Consequently, it is impossible to relate incidental "injury or collateral
damage" to civilian persons or objects to such a "military advantage." Rather
than seeking military advantage in the attack, the stated objective of the
Reagan Administration was to deter claimed Libyan terrorism against U.S.
citizens and the hard fact remained that no such direct terrorism was credibly
proven to exist either before or after the bombing attack.235

A State Department "Fact Sheet" entitled Libya's Qaddafi Continues Support
for Terrorism contains charges against Libya for the years 1986-1988. 236 It states
Qaddafi conducts terrorism against Libyan dissidents237 and that Libya's
foreign policy and diplomatic objectives are inconsistent with those of the
United States.238 It includes a "Chronology of Libyan Support for Terrorism
1986-1988," which details thirty incidents in which "Libyan involvement"
was often stated to be "suspected" but without a single incident involving
a direct Libyan attack on U.S. citizens, although several attacks conducted
by others against U.S. citizens or interests are stated to be supported by Libya
but without any evidence.239 Of the thirty incidents, four are listed as involving
"Americans." Concerning the bombing at the La Belle discotheque, the "Fact
Sheet" states: "The U.S. Government announced it had direct evidence of
Libyan complicity in the attack."240 There can be no question but that this
was "announced," but the evidence of complicity is, on the most favorable
view, equivocal. Of course, it is possible that there was secret evidence which
cannot be considered in this analysis.241

In summary, even if there had been clear legal authority to bomb Benghazi
and Tripoli, and full acknowledgment is accorded to the tactical effort to
engage only in "precision bombing," the results achieved in the killing of
civilians probably violate the law. The existence of ancillary civilian casualties
which occur as a result of the lawful targeting of military objectives is not
unlawful. The key issue concerns proportionality. On the basis of the
information about the attacks on Benghazi and Tripoli, it is not possible to
conclude with assurance that the customary law standard of avoiding
excessive, that is, disproportionate, injury or death to civilians was met by
the targeting.242

Authors' Postscript Concerning Subsequent Possible Evidence of
Libyan Involvement in the Bombing of LaBelle Discotheque

Since the completion of the text on this subject there have been some
references in the media to possible Libyan involvement in the bombing. Most

286 Law of Naval Operations

of the reports indicate that some agents of the former East German secret
police, "Stasi", state the existence of a Libyan connection. Among the
examples are accounts in Time magazine of July 23, 1990 ("World Notes"
at p. 54, cols. 1-2), the Washington Post of June 21, 1990 (p. A27, cols. 4-5
cont. at p. A30, col. 1) and the New York Times of July 15, 1990 (p. 6, cols.
1-6) and July 28, 1990 (p. A4, cols. 4-5).

Two facts must be established to provide legal justification for the military
response by the Reagan Administration. The first is unequivocal evidence of
significant Libyan involvement. The second is equally unequivocal evidence
of knowledge of this before the decision to respond militarily was made. Since
most of the reports emanate from the former Stasi, this would require that
the Reagan Administration was privy to Stasi sources.

In the event that both were to be established, significant major issues
concerning the law of self-defense and of targeting would remain.

VI. The Basic Principles of the Law of Naval Targeting

It is now practicable to set forth the contemporary rules of law concerning
naval targeting based upon the development of the customary law in the
World Wars and subsequently and upon the treaty law including the London
Protocol (1936) and Geneva Convention II for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea (1949). Because the law applies equally to surface and submarine
warships and military aircraft, a single set of basic rules may be formulated.
The Commander's Handbook on the Law of Naval Operations (NWP 9) adopts a
different approach by setting forth separate targeting rules for "Surface
Warfare,"243 "Submarine Warfare"244 and "Air Warfare at Sea."245 Although
the rules are substantially similar, the separate treatment is apparently
designed to indicate that different weapons platforms operate in distinct
tactical environments.

The general principles of the law of armed conflict are, of course, applicable
to naval targeting. In addition to the basic principles of military necessity
and humanity conceived as a single principle of avoiding unnecessary
destruction of human and material values,246 and the Martens Clause247 which
specifies that when the situation is not covered by an existing rule the parties
to the conflict remain bound by the customary international law and the usages
established by the community of states, the following are applicable:

1. The right of belligerents to adopt means of injuring the enemy is not
unlimited.

2. It is prohibited to direct attacks against the civilian population as such.

3. The basic distinction between combatants and non-combatants must be
made.248

S.V. Mallison and W.T. Mallison 287

A. Enemy Warships and Military Aircraft

Enemy warships and military aircraft (including naval and military
auxiliaries) may lawfully be the objects of attack, destruction, or capture
anywhere outside of neutral territory. Since such warships and aircraft are
valuable military assets, their capture is always desirable if tactically possible.
It is unlawful to refuse quarter to an enemy attempting to surrender in good
faith.249 When an enemy warship has clearly indicated the intention to
surrender by hauling down its flag or hoisting a white flag, or by stopping
engines, or by responding to the attacker's directions, or by taking to lifeboats,
or in any other manner, the attack must be stopped. In many tactical situations
a submarine indicates surrender by coming to the surface. Manifestation of
surrender by an aircraft is especially difficult. However, if a good faith offer
to surrender is made, it must be accepted. One such manifestation would be
a willingness to land the aircraft in the territory of the attacker. It is not
necessary to formally adjudicate the transfer of title of a captured enemy
warship or military aircraft since such ownership vests immediately in the
captor's government by the act of capture.250

B. Enemy Merchant Vessels and Civilian Aircraft and Neutral Merchant Vessels
and Civilian Aircraft which are Participating in the Enemy Armed Conflict Effort

Such merchant vessels and civilian aircraft are valuable assets and should
be captured if possible whenever they are located outside of neutral territory.
The use of visit and search is not required if identification of status can be
made by electronic or other means. If the military situation following a
capture prevents the sending or taking in of such a vessel or aircraft for
adjudication, it may be destroyed after adequate measures are taken for the
safety of crew and passengers.251 All documents and papers relating to the
captured vessels or aircraft should be safeguarded and each case of destruction
should be reported promptly to higher command.252 If capture is militarily
impracticable, the vessel or aircraft may be attacked and destroyed if it falls
under one of the following categories:253

1. Refusing to stop or follow directions upon being ordered to do so;

2. Actively resisting visit and search or capture;

3. Sailing under convoy of enemy warships or enemy military aircraft;

4. If incorporated into or assisting the intelligence system of the enemy
armed forces;

5. If acting as a naval or military auxiliary to the enemy armed forces;

6. If participating in the enemy war effort.254

C. Certain Enemy and Neutral Merchant Vessels and Civil Aircraft Which are
Immune from Attack

The characterization of particular merchant vessels and civil aircraft as

288 Law of Naval Operations

"enemy" does not, without more, make them lawful objects of attack. Neutral
merchant vessels and civil aircraft comprise two distinct categories: those
participating in and those not participating in the enemy war effort.255 The
following categories of vessels and aircraft are immune from attack:

1. Enemy merchant vessels and civil aircraft which are not participating
directly in the enemy armed conflict effort;

Example: Such a vessel or aircraft which is away from the main area of combat
operations in a location where visit and search, electronic or other identification, or
orders to land may be employed.

2. Neutral merchant vessels and civil aircraft which are not participating
in the enemy armed conflict effort;

Example: A neutral merchant ship or civil aircraft engaged in genuine inter-neutral
trade or the transportation of civilian passengers.

3. Vessels and aircraft designated for and engaged in the exchange of
prisoners (cartel vessels);

4. Vessels and aircraft guaranteed safe conduct by agreement of the parties
to the conflict;

5. Properly designated and marked hospital ships, medical transports, and
medical aircraft;

6. Vessels and civil aircraft engaged in philanthropic or non-military
scientific missions;

7. Small coastal fishing boats and small boats engaged in local coastal trade.
Such boats are subject to reasonable order of the naval commander in control
of the area as, for example, an order to depart from the immediate area of
combat operations.256

D. Naval Bombardment

"Bombardment" is used here to refer to naval bombardment by surface
or submarine warships or by naval or military aircraft of enemy targets on
land. All contemporary methods of bombardment including gunfire, rockets,
missiles, and bombs are included. Prior to the World Wars, bombardment
of shore objects by naval gunfire was an incident of many armed conflicts.
It was employed again in both World Wars, and from 1939 to 1945 naval
gunfire was used as the spearhead of Allied amphibious operations. The basic
rules of naval targeting considered above are also applicable here.257

The United States is a party to Hague Convention (IX) Concerning
Bombardment by Naval Forces in Time of War (1907).258 Its article 1(1)
provides: "The bombardment by naval forces of undefended ports, towns,
villages, dwellings, or buildings is forbidden." Article 2 states that military
objectives, even in undefended locations, are not immunized from naval
bombardment. Although aviation was in a primitive stage of development

S.V. Mallison and W.T. Mallison 289

in 1907, this Hague Convention applies comprehensively to bombardment and
therefore includes aerial bombardment. Of course, the customary law rule
of proportionality, that incidental civilian casualties and damage must be
limited to that which is proportional to the military advantage to be expected
from the attack, is applicable to naval bombardment as it is to all armed
conflict. Consequently, the deliberate or wanton destruction of areas of
concentrated civilian habitation is prohibited.

The parties to a conflict may immunize particular demilitarized zones by
specific agreement. Medical personnel and facilities are always immunized
unless they are used in violation of law for military purposes. It is also well
established customary law that buildings devoted to religious, cultural and
charitable purposes are not lawful objects of attack.259 The following rules
are based upon customary law and the established practices of the community
of states, portions of which have been codified in treaties:

1. Bombardment for the purpose of terrorizing the civilian population is
prohibited.

2. The wanton or deliberate destruction of areas of civilian habitation
including cities, towns, villages, dwellings or buildings is prohibited.

3. A demilitarized zone agreed to by the parties to the conflict is exempt
from bombardment.

4. Medical facilities including medical establishments and units, medical
vehicles, equipment and stores may not be made the objects of bombardment.
The distinctive medical emblem, either a red cross, a red crescent or the red
lion and sun, should be clearly displayed in order to facilitate immunity. Any
object identified otherwise as a medical facility is also immune from
bombardment even if it is not marked with the protective symbol.

5. Hospital zones established by agreement of the parties to the conflict
are immune.

6. All religious, cultural or charitable facilities or buildings are not lawful
objects of bombardment.260 The distinctive emblem to protect such facilities
or buildings is a rectangle divided diagonally into two triangular halves with
the upper portion black and the lower portion white.261 Any object identified
otherwise as such a facility is also immune from bombardment even if it is
not marked with the protective symbol.

7. It is prohibited to bomb installations which if destroyed would release
forces harmful to the civilian population if the probable harm to civilians
would be excessive in relation to the military advantage to be achieved by
bombardment. Such installations include nuclear and other power plants as
well as dams, dikes, and similar objects.262

8. Whenever the military situation permits, commanders are obligated to
make every effort to warn the civilian population located in proximity to
a military objective which is the target of bombardment. Warnings should

290 Law of Naval Operations

be specific, if possible, but a general warning is permissible if a more specific
one would jeopardize the mission of the bombarding force.263

E. Enforcement of the Law

The law of targeting illustrates the practicality of the law of armed conflict,
promoting military efficiency by designating military personnel and objects
as lawful targets while minimizing unnecessary destruction of human and
material values through prohibiting attacks on civilian persons and objects.
The basic principles of the law of naval targeting have remained constant
while being applied to changing technology including the development of
submarines, aircraft and nuclear weapons. These principles apply to
contemporary over-the-horizon weapons systems which must be employed
so as to protect civilian persons and objects from disproportionate ancillary
casualties and damage. A thoughtful naval historian has recently concluded
that future armed conflict at sea will be conducted almost exclusively under
water by diverse types of submarine warships.264

It is sometimes suggested that a law of armed conflict of ideal doctrinal
content would emphasize the principle of humanity over considerations of
military necessity. Such a law would break down in actual practice and would
be much less effective in protecting human and material values than the
existing law which takes account of the full range of legitimate military
interests. A basic sanction of the law of armed conflict is the common self-
interest of the participants that more is to be gained by adhering to the law
than by violating it. There is also an important element of reciprocity and
mutuality in observance.265 The alternative to enforcement of the law is not
only the unnecessary destruction of human and material values in armed
conflict, but a chaotic international system which requires the entire world
community to live under the threat of impending nuclear disaster.

The United States has, throughout its history with few exceptions, been
a leader in the development and enforcement of international law including
the law of armed conflict. Because military necessity has been taken into
account in formulating the legal rules such claimed necessity cannot be
invoked as a device to repeal or modify them. It is not possible to ascertain
a military advantage, much less a military necessity, in four of the examples
considered in this study: the bombing of a submarine engaged in rescue
operations, the killings following the Battle of the Bismarck Sea, the
prohibition of North Korean coastal fishing, and the April 1986 bombing of
Libya.

In spite of these instances, the United States Government, and the Navy,
as well as the other Armed Services, continue to emphasize the importance
of the entire law of armed conflict and the key enforcement role of line
officers. The mandatory instructions requiring observance of the law, the
manuals explaining the law, including the legally accurate and militarily

S.V. Mallison and W.T. Mallison 291

practical Commander's Handbook on the Law of Naval Operations,266 and the
reliance on officers of the Judge Advocate General's Corps who are specialists
in international law all facilitate the line officer's role.

Notes

* Research Associate International and Comparative Law Program, George Washington University

** Lieutenant, USNR (Ret.) (Active duty 1942-1946); Emeritus Professor of Law, George Washington

University; Charles H. Stockton Professor of Law, Naval War College 1960-1961 and 1974-1975.

The authors express appreciation to alumni of the George Washington University Law School, including

military lawyers on active duty, who provided constructive criticisms of a preliminary draft of this study.

The authors alone are responsible for its contents and analyses.

1. The widely accepted sources of international law are set forth in art. 38 of the Statute of the
International Court of Justice. They also include "general principles," "judicial decisions" and the writings
of the "most highly qualified" scholars.

2. 67 U.S. 635 (1862). The Court held that President Lincoln's blockade of Confederate ports applied
to the reality of existing naval conflict and was valid without a declaration of war. .

3. Common art. 2 of each of the Conventions: Convention I for the Amelioration of the Condition
of Wounded and Sick in Armed Forces in the Field, 12 August 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362;
Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked members of
Armed Forces at Sea, 12 August 1949, 6 U.S.T. 3217, T.I.A.S. 3363; Convention III Relative to the
Treatment of Prisoners of War, 12 August 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364; Convention IV Relative
to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365.
These Conventions will hereinafter be referred to as the 1949 Geneva Conventions.

4. Art 0605, U.S. Navy Regulations (1973).

5. See U.S. Department of Defense, Department of Defense Law of War Program, DOD Directive
5100.77 (Washington: 10 July 1979); U.S. Department of the Navy, Law of Armed Conflict Program to
Ensure Compliance by the Naval Establishment, SECNAVINST 3300.1 A (Washington: 2 May 1980); U.S.
Office of Naval Operations, Law of Armed Conflict Program to Ensure Compliance by U.S. Navy and
Naval Reserve, OPNAVINST 3300.52 (Washington: 18 March 1983); Headquarters, U.S. Marine Corps,
Marine Corps Law of War Program, MCO 3300.3 (Washington: 2 August 1984). The Army and Air Force
have analogous instructions.

6. 6 U.S. (2 Cranch) 170 (1804). Justice Clark relied on this case in his concurring opinion in Youngstown
Sheet and Tube Co. v. Sawyer, 343 U.S. 579 at 660 (1952).

7. Act for the Government of the Navy, ch. 24, 1 Stat. 709, 711 (1799).

8. 10 U.S.C. 892 (1983).

9. The Commander's Handbook on the Law of Naval Operations (NWP 9), para. 8.1 (hereinafter Commander's
Handbook or NWP 9).

10. Schindler & Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other
Documents, 3rd ed. (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988), p. 787 (hereinafter
Schindler & Toman).

11. 36 Stat. 2277 (1909); Schindler & Toman, supra note 10, p. 63.

12. Schindler & Toman, supra note 10, p. 791.

13. Id., p. 797.

14. 36 Stat. 2332 (1909); Schindler & Toman, supra note 10, p. 803.

15. 36 Stat. 2351 (1909); Schindler & Toman, supra note 10, p. 811.

16. 36 Stat. 2371 (1909); Schindler & Toman, supra note 10, p. 313. Based on the Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (1906), Schindler
& Toman, supra note 10, p. 301 .

17. 36 Stat. 2396 (1909); Schindler & Toman, supra note 10, p. 819.

18. The "Proces- Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty
of London of April 22, 1930" (known informally as the "Protocol of 1936") contains the identical rules
set forth in the London Naval Treaty Part IV (art. 22). Art. 23 of the London Navy Treaty provided,
"Part IV shall remain in force without limit of time." The rest of the Treaty expired on Dec. 31, 1936.
In the Proces- Verbal the parties to the London Naval Treaty invited other states to agree to Part IV
(art. 22). There are 49 state-parties including France, Germany, Italy, Japan, Soviet Union, United
Kingdom, and the United States. Schindler & Toman, supra note 10, p. 883.

The London Naval Treaty Part IV (art. 22) is in 46 Stat. 2858 at 2881-82 (1931).

19. Supra note 3.

292 Law of Naval Operations

20. Hague Convention IV, supra note 11, Annexed Regulations, art. 23(e).

21. The historic law of naval warfare is considered in C. John Colombos, The International Law of the
Sea, passim, 66th rev. ed. (New York: David McKay Co., 1967).

22. L. Oppenheim, International Law: Vol. II, Disputes, War and Neutrality 7th ed., Lauterpacht ed., (New
York: Longmons Green, 1952), pp. 869-79.

23. See generally C. John Colombos, A Treatise on the Law of Prize 3rd ed. (New York: David McKay
Co., 1949).

24. Schindler & Toman, supra note 10.

25. Several minor naval powers acceded to the Declaration, id. at pp. 789-80.

26. W. Thomas Mallison, Jr., Studies in the Law of Naval Warfare: Submarines in General and Limited Wars,
U.S. Naval War College: International Law Studies-1966 (Washington: U.S. Govt. Print. Off., 1968), p. 133.

27. The textual paragraph is based upon id. at pp. 106-13.

28. See the text accompanying infra note 41.

29. See Gordon Campbell, My Mystery Ships (Garden City, N.Y.: Doubleday, Doran & Co., 1929);
R. W. Smith, "The Q-Ship— Cause and Effect," U.S. Naval Institute Proceedings, May 1953, v. 79, p. 533.

30. The role of Admiral W. S. Sims in obtaining adoption of the convoy system is described in Elting
E. Morison, Admiral Sims and the Modem American Navy (Cambridge: The Riverside Press, 1942), pp. 337-
63.

31. Germany based its claim on reprisals rather than on legal right. Mallison, supra note 26 at pp. 61-
74.

32. Id. at pp. 109-11.

33. Naval War College International Law Documents: Conference on the Limitation of Armament-1921
(Washington: U.S. Govt. Print. Off., 1923), p. 49.

34. Id. at p. 53.

35. Id., passim.

36. Id. at pp. 58,61.

37. Id. at pp. 115-16.

38. Id. at p. 116.

39. Treaty for the Reduction and Limitation of Naval Armaments, 46 Stat. 2858 at 2881-82 (1930);
Schindler & Toman, supra note 10 at p. 881.

40. Schindler & Toman, supra note 10 at 883. An analysis of article 22 following its adoption appears
in "London Naval Treaty, Article 22, and Submarines," Naval War College, International Law Situation —
1930 (Washington: U.S. Govt. Print. Off., 1931), pp. 1-65.

41. "The Declaration of Paris in Modern War," Law Quarterly Review, April 1959, v. 55, p. 237 at
p. 249.

42. C. B. A. Behrens, Merchant Shipping and the Demands of War (London: H. M. Stationery Office and
Longmans Green, 1955), p. 96.

43. See S. W. Roskill, "Capros not Convoy: Counter-Attack and Destroy!" U.S. Naval Institute
Proceedings, October 1956, p. 1042. CAPROS= Counter Attack Protection and Routing of Shipping.

44. On the liability of armed merchant ships to attack, see Edwin Borchard, "Armed Merchantmen,"
American Journal of International Law, January 1940, v. 34, p. 110.

45. Portions of the Handbook are reprinted in Proceedings of the International Military Tribunal at Nuremberg
v. 40, p. 88 at p. 89 (42 vols., 1947-1949) (cited hereinafter as IMT).

46. See the text accompanying note 40. Article 74 of the Prize Code, which reproduces the 1936 Protocol,
appears in Green Hackworth, Digest of International Law, (Washington: U.S. Govt. Print. Off., 1944) v.
7, ch. 23, p. 248.

47. This was stated by Fleet Judge Advocate Kranzbuhler in his argument in behalf of Admiral Doenitz,
IMT, supra note 45, v. 18, pp. 312, 323.

48. Mallison, supra note 26 at pp. 75-84.

49. The text of the message is taken from a photographic copy of the original which was declassified
on December 2, 1960.

50. Mallison, supra note 26, at pp. 121-22.

51. Robert W. Tucker, The Law of War and Neutrality at Sea, Naval War College, International Law Studies-
1955 (Washington: U.S. Govt. Print. Off., 1957), p. 64.

52. Id. at p. 66.

53. Id.

54. Mallison, supra note 26 at p. 121.

55. Report of the Committee of Jurists, Proceedings of the London Naval Conference of 1930 and Supplementary
Documents, State Department Conference Series No. 6 (Washington: U.S. Govt. Print. Off, 1931), Appx. 2,
p. 189.

S.V. MalMson and W.T. Mallison 293

56. See Harvard Research in International Law, "Draft Convention on the Law of Treaties," American
Journal of International Law (Supplement), October 1935, v. 29, p. 653, 937; McDougal, Lasswell & Miller,

The Interpretation of Agreements and World Public Order, passim (New Haven: Yale Univ. Press, 1967).

57. Schindler & Toman, supra note 10, at p. 884.

58. Id. at p. 885.

59. Mallison, supra note 26, at p. 120.

60. Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention, July 29, 1899, 32 Stat. 1827 (1903), Schindler & Toman, supra note 10, p. 289.

61. Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention, October 18, 1907, 36 Stat. 2371 (1909), Schindler & Toman, supra note 10, p. 313.

62. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, August
22, 1864, 22 Stat. 940 (1888), Schindler & Toman, supra note 10, p. 279.

63. Henri Dunant, a Swiss business man, was the principal founder of the International Committee
of the Red Cross and urged the adoption of the 1864 Convention as the result of his seeing the tragic
condition of the wounded soldiers following the Battle of Solferino in Italy. He was the author of A
Memoir of Solferino (original French text 1862; American Red Cross English transl. 1939) which, along with
the code of the law of land warfare prepared by Professor Francis Lieber of Columbia College and entitled
Instructions for the Government of Armies of the United States in the Field, promulgated as General Order No.
100 by President Lincoln on 24 April 1863 (Schindler & Toman, supra note 10 at p. 3), had a great influence
in the development of the international humanitarian law of armed conflict.

64. "Judgment in Case of Lieutenants Dithmur and Boldt," reprinted in American Journal of International
Law, October 1922, v. 16, pp. 708-724.

65. See R. G. Voge, "Too Much Accuracy," U.S. Naval Institute Proceedings, March 1950, v. 76. p. 257.

66. Id.

67. The diplomatic interchange and other documentation is in "Sinking of the 'Awa Maru,'" Naval
War College International Law Documents 1944-45, (Washington: U.S. Govt. Print. Off., 1946), pp. 126-
38.

68. 175 U.S. 677 (1900).

69. Supra note 17.

70. IMT, supra note 45, v. 1, p. 311. In the case of Admiral Raeder, who was also charged with war
crimes in connection with Germany's submarine campaign, the Tribunal made "the same finding on Raeder
on this charge [war crimes — count three] as it did as to Doenitz. . . ." Id., v. 1, p. 315 at p. 317.

71. Id., v. 19, p. 469.

72. Id., v. 1, pp. 312-13.

73. The draft treaty on submarines produced by the Washington Naval Conference (1921-1922)
contained a provision for criminal trials for its violation, but it was not ratified. See the text accompanying
supra note 38.

74. Behrens, supra note 42 and accompanying text.

75. S. W. Roskill, White Ensign: The British Navy at War 1939-1945 (Annapolis: U.S. Naval Institute,
1960), p. 97.

76. "Case No. 55: Trial of Helmuth Van Ruchteschell," Reports of Trials of War Criminals (London: H.
M. Stationery Office, 1949), v. 9, p. 82 (hereinafter Trials of War Criminals).

77. Text of Order is in "Case No. 54: Trial of Moehle," Trials of War Criminals, supra note 76, v. 9,
p. 75.

78. Roskill, supra note 75 at p. 224.

79. Id., at pp. 224-25.

80. Excerpt of letter from Historical Division, U.S. Air Force to Mr. David D. Lewis (April 12, 1960).
The excerpted letter appears as an enclosure to letter from Director, Research Studies Institute, Air
University, Maxwell Air Force Base to President, Naval War College (April 19, 1961).

81. IMT, supra note 45, v. 1, p. 313.

82. Trials of War Criminals, supra note 76, v. 9, p. 75.

83. Id., v. 1, p. 1; also reported in David Maxwell Fyfe, general ed., War Crimes Trials, v. 1, John
Cameron, ed., Trial of Heinz Eck et al. (The Peleus Trial) (London/Edinburgh/Glasgow: William Hodge
& Co., Ltd., 1948), which contains the entire record of proceedings in the trial.

84. Trials of War Criminals, supra note 76, v. 1, p. 2.

85. Id., at p. 13.

86. Judgment and Proceedings of the International Military Tribunal for the Far East (April 29, 1946-
April 16, 1948 with sequential numbering of typewritten pages and separate volume for each day of the
trial). Hereinafter FEIMT Judg. or FEIMT Proc. The textual quotation is from FEIMT Judg. at page
1,072.

87. FEIMT Judg., supra note 86 at p. 1073.

294 Law of Naval Operations

88. Id., at pp. 1,073-74.

89. The textual account of the sinking is based upon FEIMT Proc, pp. 15,095-148 and FEIMT Judg.,
pp. 1,074-75.

90. The factual account in the text is based upon Samuel Eliot Morison, History of the United States
Naval Operations in World War II, v. 6 (Breaking the Bismarck Barrier) (Boston: Little, Brown & Co., 1950),
pp. 62 et seq., and Ronald H. Spector, Eagle Against the Sun: The American War with Japan (New York:
Free Press, 1985), pp. 226-28. Professor Spector served as the Director of Naval History, Department
of the Navy, 1986-1989.

91. Morison, supra note 90, p. 62.

92. Professor Spector has reported the actual event: "by spring [1943] about 40 percent of Japanese
front-line troops in New Guinea were suffering from disease or malnutrition." Spector, supra note 90,
p. 228.

93. Id.

94. Report of Justice Robert H. Jackson, U.S. Representative to the International Conference on
Military Trials, Document XLIV, Minutes of Conference session of July 23, 1945 International Conference
on Military Trials, London (Washington: U.S. Govt. Print. Off., 1949), p. 330.

95. Supra note 16, art. 16(1).

96. 1949 Geneva Conventions, supra note 3.

97. Schindler & Toman, supra note 10 at p. 621. Protocol II is in id. at p. 689.

98. Information provided by the International Committee of the Red Cross concerning ratifications
and accessions to the Additional Protocols of 8 June 1977, as of 8 August 1989. The I.C.R.C. Press Release
of 8 August 1989 stated that the Soviet Union ratified both Protocols without reservations or statements
of interpretation on 4 August 1989.

99. The U.S. Joint Chiefs of Staff unclassified memorandum of 18 March 1986 contains a listing of
many Protocol I articles which they consider are now, or are becoming, customary law.

100. One of the arguments supporting the position of the Reagan Administration is Douglas J. Feith,
"Law in the Service of Terror — The Strange Case of Additional Protocol I," The National Interest, v. 1,
p. 36 (1985). It is answered decisively by the late COL Waldemar A. Solf, JAGC, U.S. Army [a senior
member of the U.S. Delegation to the Geneva Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed Conflicts] in "A Response to
Douglas J. Feith 's Law in the Service of Terror — The Strange Case of the Additional Protocol,' " Akron
Law Review, Fall 1986, v. 20, p. 261.

101. Schindler & Toman, supra note 10, p. 651.

102. Schindler & Toman, supra note 10, p. 495. Art. 33(3) provides: "Reprisals against protected persons
and their property are prohibited."

103. The textual account of the Korean conflict is based upon Cagle & Manson, The Sea War in Korea
(Annapolis: U.S. Naval Institute, 1957), passim.

104. Supra note 68.

105. Cagle & Manson, supra note 103, pp. 296-97.

106. Id., p. 357.

107. Supra note 17.

108. The old battleships were the spearhead of the amphibious assaults and they used target area mapping
combined with careful aerial observation (typically in slow OS2U seaplanes which were sitting ducks
for Japanese fighter aircraft) in order to distinguish military targets from civilian persons and objects.
See the reference to the accurate character of their targeting in Spector, supra note 90, p. 303. The new
high speed battleships which joined the fleets immediately prior to and during World War II typically
provided anti-aircraft protection to the fast carrier task forces.

109. Cagle & Manson, supra note 103, p. 97.

110. Supra note 15.

111. A more comprehensive analysis of the international law of self-defense is in W. Thomas Mallison
& Sally V. Mallison, Armed Conflict in Lebanon, 1982: Humanitarian Law in a Real World Setting, Chap. 2 entitled
"Aggression and Self-Defense in the World Legal Order," 2nd rev. ed. (Washington: American
Educational Trust, 1985).

112. Report of Rapporteur of Committee 1/1 to Commission I, U.N. Conference on International
Organization, Dept. of State Conference Series No. 83 (Washington: U.S. Govt. Print. Off, 1946), p. 498.

113. Supra note 111 at p. 16. The doctrine of anticipatory self-defense is examined in the Judgment,
1 IMT 205-09, and in Marjorie Whiteman, Digest of International Law (Washington: U.S. Govt. Print. Off,
1971), v. 12, pp. 47-51.

114. John Bassett Moore, Digest of International Law (Washington: U.S. Govt. Print. Off, 1906), v. 2,
pp. 409-14.

S.V. Mallison and W.T. Mallison 295

115. Mr. Webster to Mr. Fox, April 24, 1841, British & Foreign State Papers (1840-1841), v. 29, p. 1129
at p. 1138.

116. Id.

117. The textual account of the facts, as well as the legal analysis, is based upon W. Thomas Mallison,
"Limited Naval Blockade or Quarantine-Interdiction: National and Collective Defense Claims Valid
Under International Law," George Washington L. Rev., December 1962, v. 31, pp. 335-98 (reprinted as a
booklet).

See Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (Boston: Little Brown Co.,
1971).

118. Robert D. Powers, Jr., "Blockade: For Winning Without Killing," U.S. Naval Institute Proceedings,
August 1958, p. 61.

119. Proclamation No. 3504, 3 C.F.R. 232 (1959-1963), reprintedin 50 U.S.C.A. Appendix 1 at 15. Theodore
Sorensen (Special Counsel to the President) also wrote a blockade draft. Allison, supra note 117 at p. 208.

120. "United States and Soviet Union Agree on Formula for Ending Cuban Crisis: Exchange of
Messages," Dept. of State Bulletin, Nov. 12, 1962, v. 47, pp. 741-46.

121. Proclamation No. 3504, supra note 119.

122. Id.

123. R. K. Smith, "The Violation of the 'Liberty,'" U.S. Naval Institute Proceedings, June 1978, p. 65.

124. The textual account is based upon: James M. Ennes, Assault on the Liberty, 5th ed., (New York:
Random House 1979), passim, and especially chapters 6 and 7. [LCDR Ennes, USN (Ret.) served in the
Liberty at the time of that attack]; Stephen Green, Taking Sides: American's Secret Relations with a Militant
Israel (New York: Morrow & Co., 1984), ch. 9, "Remember the Liberty ..." [This source points out
at page 230 that Israeli forces almost succeeded in jamming all of the Liberty's radio circuits.]; and record
of Proceedings [U.S. Navy] Court of Inquiry to inquire into the circumstances surrounding the armed
attack on USS LIBERTY (AGTR-5) on 8 June 1967 [This source states some of the same facts, in less
detail, as those set forth in LCDR Ennes' book].

125. The very limited response of the U.S. Government to the attack is set forth in Ennes, supra note
124, chap. 9 entitled "Cover-up." Chap. 10 concerns the Navy Court of Inquiry. Commander, U.S. Sixth
Fleet launched aircraft to protect the Liberty but they were immediately recalled by order of Secretary
of Defense McNamara. Id., Appendix D at pp. 237-38.

The Israeli response may be contrasted with the unequivocal Japanese acceptance of responsibility in
the sinking in the Yangtze River of the gunboat U.S.S. Panay by Japanese aircraft. See the diplomatic
correspondence in "The Case of the U.S.S. 'Panay,' December 12, 1937," Naval War College, International
Law Situations-1938 (Washington: U.S. Govt. Print. Off., 1940) pp. 129-50.

126. Supra note 3. Jacobson, "A Juridical Examination of Israeli Attack of the U.S.S. Liberty," Naval
Law Review, Winter 1986, v. 36, p. 1, is an authoritative and comprehensive legal analysis of the attack.

127. The probable motive is that the communications messages arising from Israel's armed attack on
Syria, following the attacks on Egypt and Jordan, could have been monitored and recorded by Liberty
if its electronic listening equipment had not been destroyed. See Jacobson, id., at pp. 16-17.

128. "Vietnam Decree on Sea Surveillance, of 27 April 1965," International Legal Materials, May 1965,
v. 4, no. 3, p. 461.

129. The textual account is based upon R. L. Schreadley, "The Naval War in Vietnam, 1950-1970,"
U.S. Naval Institute Proceedings, May 1971, p. 188.

130. See Ulrik Luckow, "Victory Over Ignorance and Fear: The U.S. Minelaying Attack on North
Vietnam, "Naval War College Review, Jan-Feb 1982, p. 17. See also W. Thomas Mallison and Sally V. Mallison,
"A Survey of the International Law of Blockade," U.S. Naval Institute Proceedings, February 1976, p. 44,
at pp. 50-51.

131. Declaration Respecting Maritime Law, Paris, April 16, 1856, Schindler & Toman, supra note 10,
p. 787.

132. See Air War Study Group of Cornell University, The Air War in Indochina, rev. ed. (Boston: Beacon
Press, 1971), passim.

133. It may be contrasted with the use of mines against Japan in the Second World War. See Johnson
& Kratcher, Mines Against Japan (U.S. Naval Ordnance Laboratory, 1973), passim.

134. The U.S. Navy gunfire operation against North Vietnamese land targets and vessels was termed
Operation Sea Dragon. See generally Schreadley, "The Naval War in Vietnam, 1950-1970," U.S. Naval
Institute Proceedings, May 1971, p. 188.

135. See the text accompanying supra notes 108-110.

136. The textual account is based upon Robert L. Scheina, "The Malvinas Campaign," U.S. Naval Institute
Proceedings, May 1983, p. 98, and John Nott [British Minister of Defense at the time of the conflict], "The
Falklands Campaign," id. at p. 118.

296 Law of Naval Operations

Security Council resolution 502 (3 April 1982) called for a cessation of hostilities and Argentine
withdrawal from the islands to reestablish the prior status quo.

137. The Argentine Antarctic supply ship Bahia Paraiso was converted into a hospital ship and was not
made an object of attack. Scheina, supra note 136 at p. 98.

138. Nott, supra note 136 at p. 130.

139. Ex-U.S.S. Phoenix (CL-46).

140. Nott, supra note 136 at p. 121.

141. See Scheina, supra note 136 at p. 106; Fenrick, "The Exclusion Zone Device in the Law of Naval
Warfare," Canadian Yearbook of International Law-1986, v. 24, p. 91, contains a careful analysis of exclusion
zones in the Falklands/Malvinas conflict at pp. 109-16.

142. The facts summarized in the text are based on the opinion of the U.S. Supreme Court in Argentine
Republic v. Amerada Hess Shipping Corp., 109 S. Ct. 683 (1989).

143. The decision of the U.S. Supreme Court, id., employed a broad interpretation of the Foreign
Sovereign Immunities Act, 28 U.S. Code 1330 et seq., which resulted in the Argentine Republic having
sovereign immunity from this suit and the holding that the Alien Tort Statute, 28 U.S. Code 1350 (a statute
of the First Congress enacted in 1789), did not apply.

144. The facts set forth in the textual section are based on Ronald O'Rourke, "The Tanker War,"
U.S. Naval Institute Proceedings, May 1988, p. 30; and Raphael Danziger, "The Persian Gulf Tanker War,"
id., May 1985, p. 160.

145. Address by CAPT J. A. Roach, JAGC, USN, "Missiles on Target: The Law of Targeting and the
Tanker War" (20 April 1988), to be published in the 1988 Proceedings of the American Society of International
Law. Fenrick, supra note 141 at pp. 116-22 analyzes the exclusion zones in this conflict.

146. The specific facts concerning this attack are based upon Michael Vlahos, "The Attack on the Stark,"
U.S. Naval Institute Proceedings, May 1988, p. 64.

147. Mallison, supra note 26 at pp. 129-32.

148. The facts in the textual paragraph are based on Danziger, supra note 144 at pp. 163-64.

149. Id. at p. 165.

150. See the text accompanying supra note 130.

151. O'Rourke, supra note 144 at pp. 32-33.

152. Wesley L. McDonald, "The Convoy Mission," U.S. Naval Institute Proceedings, May 1988, p. 36.

153. Id. at p. 37.

154. Id.

155. Interview with Captain Seitz, the Master of the Bridgeton, "SS Bridgeton: The First Convoy," U.S.
Naval Institute Proceedings, May 1988, p. 52.

156. Id.

157. McDonald, supra note 152 at p. 43.

158. The facts in the textual paragraph are based on O'Rourke, supra note 144 at pp. 32-33.

159. "Libyan Sanctions," Dept. of State Bulletin, March 1986, v. 86, no. 2108, p. 36.

160. Id.

161. Id. at p. 12.

162. Executive Order No. 12543, 3 C.F.R. 181, reprinted in 50 U.S.C.A. 1701 and Dept. of State Bulletin,
March 1986, p. 37.

163. Dept. of State Bulletin, March 1986, v. 86, no. 2108, p. 15.

164. Id. at p. 17.

165. "Libya Under Qadhafi: A Pattern of Aggression," Dept. of State Special Report No. 138, January
1986, p. 4.

166. Richard E. Rubenstein, Alchemists of Revolution: Terrorism in the Modem World 36 (New York: Basic
Books, 1987). Contrast the political method in Benjamin Netanyahu, ed., Terrorism: How the West Can
Win (New York: Farrar, Straus & Giroux, 1986).

167. The Washington Post, April 8, 1988 p. Al:3-6.

168. Id. The New York Times, Oct. 26, 1989, p. A8:l, reported that Qaddafi conceded past acts of terrorism.

169. Concerning the consistent violations by Israel of the Geneva Convention for the Protection of
Civilian Persons (a treaty of both Israel and the United States) in its military occupations of Lebanese,
Palestinian and Syrian territories, see inter alia, W. Thomas Mallison & Sally V. Mallison, the Palestine Problem
in International Law and World Order (London: Longmans, 1986), chaps. 6 and 7.

170. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, art. 7(4)(5), 15 U.S.T.
1606, T.I.A.S. No. 5639.

171. See, e.g., [1974] Digest of U.S. Practice in International Law, p. 293 (1975).

172. See, inter alia, George C. Wilson, "U.S. Planes Retaliate for Libyan Attack: Missile Site, Two Patrol
Boats Fired on in Gulf of Sidra Incident," The Washington Post, March 25, 1986, pp. 1 A:l-5, 13A:l-3; Bernard

S.V. Mallison and W.T. Mallison 297

Weinraub, "2 More Libyan Vessels Sunk and Base Hit Again, U.S. Says, Vowing to Keep up Patrols,"
New York Times, March 26, 1986, pp. Al:4-6, A8:l-4.

173. David Hoffman and Lou Cannon, "Terrorism Provided Catalyst," The Washington Post, p. A12:l.

174. "U.S. Exercises Right of Self-Defense Against Libyan Terrorism, Dept. of State Bulletin, June 1986,
v. 88, p. 1.

175. Id. at pp. 1-2. Ambassador Walters, the Permanent Representative of the United States, substantially
repeated President Reagan's position in the U.N. Security Council on April 15, 1986, S/PV.2674, at pp.
13-19.

176. Seymour M. Hersh, "Target Qaddafi," New York Times Magazine, Feb. 22, 1987, p. 17 at p. 19.

177. Translation of Der Spiegel, April 21, 1986, p. 17.

178. Hersh, supra note 176. Following the April 1986 attack on Libya, subsequent reports in the media
referred to the "disinformation" campaign. See, e.g., Bob Woodward, "Gadafi Target of Secret U.S.
Deception Plan: Elaborate Campaign Included Disinformation That Appeared as Fact in American Media,"
The Washington Post, Oct. 2, 1986, pp. Al:l-5, A12:l-5, A13:l-2. Admiral William J. Crowe, Jr., Chairman
of the Joint Chiefs of Staff, expressed concern about the disinformation. Id. See also Leslie Gelb,
"Administration is Accused of Deceiving Press on Libya," New York Times, Oct. 3, 1986, pp. Al-1, A6:l.

179. Supra note 165 at p. 1.

180. Id.

181. Id. at pp. 5-8.

182. U.S. Department of State, Fact Sheet: Libya's Qadhafi Continues Support for Terrorism, January 1989.

183. Id. at p. 6.

184. Id. at p. 7.

185. Id at pp. 12-19.

186. Public Report of the Vice President's Task Force on Combatting Terrorism, February 1986, p. 5.

187. Id. at p. 6.

188. Id. at p. 14.

189. 50 U.S. Code 1701-1706 (1981, with 1986 Supp.). The Libyan Sanctions Regulations are in 51 Fed.
Reg. 1,354 (1986) as amended by 51 id. 22,802 (1986) codified in 31 C.F.R. 550.207.

190. European Community News, No. 14/1986, April 14, 1986, (distributed by European Community
Information Service, Washington, D.C.).

191. Bulletin of the European Communities Commission, vol. 19, no. 5, pp. 106-110 (1986).

192. Id. at p. 109.

193. R. W. Apple, Jr., "Reagan Wins the Day as Libya is Denounced," New York Times, May 6, 1986,
p. A12:l-4.

194. Id.

195. Id.

196. Bernard Weinraub, "U.S. Says Allies Asked for More in Libya Attack," New York Times, April
22, 1986, pp. Al:7, A8:l-3.

197. The Washington Post, April 2, 1986, pp. Al:6, A17:l-4.

198. See the text accompanying supra notes 111-113.

199. David H. Ottaway, "Qaddafi Overtures Rejected by U.S., The Washington Post, April 2, 1986, pp.
Al:5, A17:5-6.

200. Id.

201. See the President's statement in the text accompanying supra note 175.

202. See the text accompanying supra notes 114-116.

203. Marjorie Whiteman, Digest of International Law (Washington: U.S. Govt. Print. Off., 1971), v. 12,
chap. 36, pp. 187-204; L. Oppenheim, International Law, Vol. I, Peace, 8th ed., H. Lauterpacht, ed. (New
York: David McKay, 1955), pp. 687-90.

204. See the text accompanying supra note 175.

205. Contrast the imminence of attack in the Caroline incident in the text accompanying supra notes
114-116.

206. The Washington Post, March 26, 1986, pp. Al:5, A22:l.

207. Leslie Stahl, Interview of Secretary Shultz, Dept. of State Bulletin, March 1986, p. 20.

208. Id. at pp. 20-21.

209. Id. at p. 23.

210. "Part III: The Arms Sales to Iran," Report of the Congressional Committees Investigating the
Iran-Contra Affair, H. R. Rep. No. 433, S. Rep. No. 216, 100th Cong., 1st Sess. (1987), pp. 157-234.

211. See Cordesman, "The Middle East and the Cost of the Politics of Force," Middle East Journal, Winter
1986, v. 40, pp. 13-15.

212. See the text accompanying supra note 162.

213. 10 U.S. Code 6011 (1989).

298 Law of Naval Operations

214. U.S. Navy Regulations, art. 0915 (2) and (3) (1973).

215. See, e.g., Guy B. Roberts, "Self-Help in Combatting State-Sponsored Terrorism: Self-Defense and
Peacetime Reprisals," Case Western Reserve Journal of International Law, Spring 1987, v. 19, p. 243; and Jeffrey
A. McCredie, "The April 14, 1986 Bombing of Libya: Act of Self-Defense or Reprisal?" Id., p. 215. Both
articles appear in a symposium concerning the April 1986 bombing of Libya, id., pp. 121-293. The symposium
also contains an incisive article by Professor Rex J. Zedalis concerning the basic values involved in the
doctrines of anticipatory self-defense entitled, "Preliminary Thoughts on Some Unresolved Questions
Involving the Law of Anticipatory Self-Defense," id. at p. 129.

216. Naulilaa Incident Arbitration, Portuguese-German Arbitral Tribunal, 1928, Rec. des decis, des trib.
arb. mixtes, v. 8, p. 409, reprinted in William W. Bishop, Jr., International Law: Cases and Materials (Boston:
Little, Brown & Co., 1971), 3rd ed., p. 903.

217. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, supra note 3, art.
33.

218. This factual account is derived from "U.S. Demonstrates Advanced Weapons Technology in
Libya," Aviation Week & Space Technology, April 21, 1986, pp. 19-20; Russell Watson, "Reagan's Raiders,"
Newsweek, April 28, 1986, pp. 26-27; George L. Church, "Hitting the Source," Time, April 28, 1986, p.
17.

219. Hersh, supra note 176 at pp. 17-19.

220. Id. at p. 22.

221. 46 C.F.R. 59952 (Dec. 4, 1981).

222. Time, supra note 218 at p. 20.

223. Aviation Week, supra note 218 at p. 19.

224. "Joint Press Conference with Secretary Schultz and Secretary Weinberger," Dept. of State Bulletin,
June 1986, pp. 3-4.

225. Id. at p. 4.

226. Qaddafi and the Libyan Revolution (Boston: Little, Brown & Co., 1986).

227. L/atpp. 10-11.

228. Best Laid Plans: The Inside Story of America 's War Against Terrorism (New York: Harper & Row, 1988),
pp. 310-11.

229. "U.S. Bombs, Missing Target, Struck Farms Near Base," New York Times, April 20, 1986, p. A12:5,
6. See, e.g., "A Raid that Went Awry," U.S. News and World Report, June 20, 1988, p. 36.

230. 67 U.S. 635 (1862).

231. Supra note 15. The Convention will be considered in detail in Section VI D infra.

232. See the text accompanying supra note 158.

233. The Libyan Government stated that there were 37 deaths and 93 wounded in civilian neighborhoods.
Martin & Walcott, supra note 228 at p. 310. Western newspaper and book sources which have been referred
to above indicate a substantial number of civilian casualties. Because of the military character of the targets
set forth in the text accompanying supra note 218, it is presumed that there were a substantial, but unknown,
number of military casualties as well who may or may not have been involved in terrorist support.

234. NWP 9, para. 8.1.2.1. A similar formulation of the customary law is in Geneva Protocol I. art.
51(5)(b), in the text accompanying supra note 101.

235. Concerning the allegations of attacks against U.S. citizens prior to the U.S. attack, see the text
accompanying notes 160-162 and 179-181, supra, which refers to direct attacks upon Libyan dissidents and
alleged support for other terrorism.

See Warriner, "The Unilateral Use of Coercion Under International Law: A Legal Analysis of the
United States Raid on Libya on April 14, 1986," Naval Law Review, v. 37, p. 49 (1988), which concludes
that the attack was lawful. A defect in the analysis is the ready acceptance that "intelligence reports
indicated that it [the attack on La Belle discotheque] was planned and executed on the direct orders of
the Libyan regime." Id, at p. 82. The article deems it "doubtful" that Libya "posed a threat to the security
or political independence of the United States." Id. at p. 92.

236. Office of the Secretary of State, Ambassador-at-Large for Counter-Terrorism (Jan. 1989).

237. Id, at p. 5.

238. Id. at pp. 6-9.

239. Id. at pp. 12-19.

240. Id. at p. 19.

241. Admiral Stansfield Turner, USN (Ret.), has provided examples of excessive secrecy resulting in
over-classification in Secrecy and Democracy: The CIA in Transition (Boston: Houghton Mifflin, 1985), passim.

242. Concerning issues of constitutional and statutory law relating to the April, 1986 attack on Libya,
see War Powers, Libya, and State-Sponsored Terrorism, Hearings before the Sub-Committee on Arms Control,
International Security and Science of the House of Representatives Committee on Foreign Affairs. 99th
Cong., 2nd Sess. (April 29, May 1 and 15, 1986).

S.V. MalMson and W.T. Mallison 299

243. Par. 8.2.

244. Par. 8.3.

245. Par. 8.4.

246. Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order: The Legal
Regulation of International Coercion (New Haven: Yale Univ. Press, 1961), p. 530.

247. The Martens Clause is named after the chief Russian delegate at the 1899 and 1907 Hague
Conferences who inserted the clause into the Preambles of Hague Convention (II) with Respect to the
Laws and Customs of War on Land (1899) and Hague Convention (IV) Respecting the Laws and Customs
of War on Land (1907).

Geneva Convention (II) Concerning Armed Forces at Sea, supra note 3, incorporates the Martens Clause
in art. 62(4). It states that even in the event that a state-party terminates its adherence to the Convention
(this cannot be done in time of armed conflict or military occupation and until the release and repatriation
of persons protected by the Convention has been accomplished), "It [the termination] shall in no way
impair the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the
principles of the law of nations, as they result from the usages established among civilized peoples, from
the laws of humanity and the dictates of the public conscience."

248. The basic principles considered in the present Section VI are well stated in NWP 9, chapter 8,
entitled "The Law of Naval Targeting."

249. The rules concerning surrender in the text are based upon the customary law and its codification
in various treaties including those concerning naval warfare.

250. Oppenheim, supra note 22, at p. 475.

251. Id., at pp. 487-88. See NWP 9, supra note 9, par. 8.2.2.2.

252. Oppenheim, supra note 22, at p. 488.

253. The traditional law concerning visit, search and capture is described in supra note 26 at pp. 99-
100.

254. The categories in the text are similar to those in the predecessor to NWP 9, Law of Naval Warfare,
NWIP 10-2, sec. 503 (1955) and in The Commander's Handbook on the Law of Naval Operations, NWP 9, par.
8.2.2.2 (1987).

255. See the text accompanying supra notes 72-74.

256. Compare the consideration of immune vessels and aircraft in Oppenheim, supra note 22 at pp. 476-
81.

257. See the text at supra note 246.

258. Supra note 15.

259. See Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,
May 14, 1954, U.N. Treaty Series, v. 249, pp. 240, Schindler & Toman, supra note 10, p. 745, which codifies
some of the customary law.

260. See id., art. 5(1).

261. See NWP 9, par. 8.5.1.6.

262. See Geneva Protocol I, supra note 97, art. 56.

263. Hague IX, supra note 15, art. 6.

264. John Keegan, The Price of Admiralty: The Evolution of Naval Warfare (New York: Viking, 1988), pp.
266-75.

265. See Mallison, supra note 26, at pp. 19-22.

266. See also Air Force Pamphlet 110-31, International Law — The Conduct of the Armed Conflict and Air
Operations (1976) and Department of the Army Field Manual 27-10, The Law of Land Warfare (1956) (This
manual is being updated and revised).

300 Law of Naval Operations

Chapter X
Noncombatant Persons

A Comment to Chapter 1 1 of the Commander's Handbook
on the Law of Naval Operations

by
Frits Kalshoven*

Introduction

In the history of the development of the law of armed conflict, the year
1987 stood out in more than one respect. It was the 10th anniversary of
the adoption, on 8 June 1977, of two Protocols Additional to the Geneva
Conventions of 12 August 1949, one (Protocol I) relating to the protection
of victims of international armed conflicts and the other (Protocol II) relating
to the protection of victims of non-international armed conflicts.1 The
Netherlands ratified both Protocols, thus joining the growing number of states
parties to these instruments.2 President Reagan announced his decision to
submit only Protocol II for Senatorial advice and consent.3 Last but not least,
all U.S. naval commanders received as Naval Warfare Publication 9, 1987,
a brand-new Commander's Handbook on the Law of Naval Operations.

Among the many recent publications about the state of and developments
in the law of armed conflict, the Handbook is of special interest because, as
an official U.S. publication following so shortly the President's
announcement, it may be expected to reflect the views of the present U.S.
administration on the state of the law. This is not merely a matter of academic
interest; the law of armed conflict relies for its continued existence and further
development as much on custom as on the conclusion of treaties, and the part
of the Handbook relating to the law of armed conflict may be taken to represent
United States opinio juris in this regard.

As we shall see, the 'Views of the present U.S. administration" are a
mixture of rules in treaties to which the United States is a party, rules of
international customary law, and those new rules in Protocol I which the
present U.S. administration has chosen to consider as positive developments.
Obviously, the United States is not legally bound to apply any rule of the
last-mentioned category. Conversely, its unilateral espousal of such new rules
cannot effectuate a legal obligation upon its potential adversaries, whether

Kalshoven 301

parties to Protocol I or otherwise, to respect these rules in their relations
with the United States.

The focus in the present comment is on Chapter 11 of the Handbook, with
its deceptively simple title "Noncombatant Persons." Like the rest of the
Handbook, Chapter 11 earns high marks for brevity; it is, in effect, a great
deal shorter than the relevant provisions of treaties in force taken together.
This exercise in abbreviation carried a double risk: for one thing, the drafters
may have left out subject matter that might be regarded as of vital importance
to U.S. naval commanders; for another thing, the necessary condensation of
often complex treaty language into simpler, ostensibly clearer phrases may
at times have resulted in what an outsider might consider an inadmissible loss
of legal precision. The question needs to be examined as to what extent the
drafters have succeeded in avoiding these risks.

Section II of this essay takes a first look at the term "noncombatant persons"
as used in the Handbook; it introduces the applicable treaties and goes into
the question of what appears to be the scope of application of Chapter 11.
In sections III and IV, the various categories of "noncombatant persons" pass
in review, in the same order as they appear in the Handbook: the civilian
population in general in section III; other categories of persons in section IV.
Focal points are: conditions for recognition and protection as a
"noncombatant person," factors entailing loss of protection, and the
treatment of the persons in question. Also in section IV, some attention is
devoted to protective signs and symbols, the use of distinctive signals and
means and methods of identification in general. A brief concluding section
rounds off these comments.

II. "Noncombatant Persons"4

The Term "Noncombatant"

Although the term used in the title of Chapter 11 of the Handbook may
appear simple enough, surely a "noncombatant" does not represent a simple
notion at all. The term is used to indicate a broad range of people with very
different characteristics. This is apparent from the introductory paragraph
11.1 of the chapter, which states in part:

Noncombatants are those individuals who do not form a part of the armed forces and
who otherwise refrain from the commission of hostile acts. Noncombatants also include
those members of the armed forces who enjoy special protected status, such as medical
personnel and chaplains, or who have been rendered incapable of combat by wounds,
sickness, shipwreck, or capture.

When a lawyer is told that something "is" this but "also includes"
something else, alarm-bells start ringing in his mind: are the notions thus
brought together under one heading really similar in all relevant respects?
His alertness grows when he notices that an earlier chapter of the Handbook

302 Law of Naval Operations

(Chapter 5, to which paragraph 11.1 refers) uses much more cautious
language. Paragraph 5.3, on Combatants and Noncombatants, begins by
stating, in much the same words as those used in paragraph 11.1, that: "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." It then explains that, "[i]n this context,
noncombatants and, generally, the civilian population are synonymous.*'
Paragraph 11.3 adds that, "[t]he civilian population consists of all persons not
serving in the armed forces, militia, or paramilitary forces and not otherwise
taking a direct part in the hostilities.,,

After this elucidation of what is offered as the primary meaning of the
term, paragraph 5.3 informs the reader that "noncombatants" may also have
entirely different connotations:

The term noncombatants may, however, also embrace certain categories of persons who,
although attached to or accompanying the armed forces, enjoy special protected status,
such as medical officers, corpsmen, chaplains, and war correspondents. The term is also
applied to armed forces personnel who are unable to engage in combat because of
wounds, sickness, shipwreck, or capture.

Treaties Relating to "Noncombatant Persons"

Without entering for the moment into the details of the various statements
in paragraphs 5.3, 11.1 and 11.3, it appears useful to identify at the outset
the treaties especially relevant to the present inquiry. It is surely a trite
observation that, unfortunately, the law of armed conflict does not provide
just one set of rules governing the position of all "noncombatants" as "people
not involved in the fighting," in the sense as used in the Handbook. Indeed,
with one exception, the treaties in force do not use the term at all.5

The majority of the treaties concerned belong to what is commonly known
as the "law of Geneva," that is, the long list of conventions starting, modestly
enough, with the ten articles of the Geneva Convention for the Amelioration
of the Condition of the Wounded in Armies in the Field, of 22 August 1864,6
which over the course of time came to provide for the protection of an ever-
widening circle of war victims. The Convention on the wounded and sick
soldiers in the field of 1864 was followed by the wounded, sick and
shipwrecked at sea in 1899;7 prisoners of war in 1929;8 and last but not least,
civilians, mainly though not exclusively those in enemy or enemy-occupied
territory, in 1949. 9

While the "law of Geneva" knew this regular, step-by-step development,
another part of the law of armed conflict, governing conduct during hostilities
and commonly referred to as the "law of The Hague," was codified in a rather
distant past, by the Hague Peace Conferences of 1899 and 1907. 10 After this
feat the "law of The Hague" was for a long while left alone (and to customary
development). Major parts of this body of Hague law eventually came to be
included in the "reaffirmation and development of international humanitarian

Kalshoven 303

law applicable in armed conflicts" of the 1970s that resulted in the adoption,
in 1977, of the two Additional Protocols referred to above.

For purposes of the present comment the following treaties are of particular
significance:

- the four Geneva Conventions of 1949 for the protection of war victims,
viz., the First Convention (wounded and sick on land); the Second Convention
(wounded, sick and shipwrecked at sea); the Third Convention (prisoners of
war); and the Fourth Convention (civilians);

- the Hague Regulations on land warfare, of 1899/1907, together with the
Hague Convention (IX) on naval bombardment; and

- the Additional Protocols of 1977.

Examination of the relations between the various types of "noncombatant
persons" listed in the Handbook and the categories of persons specified in the
relevant treaties will be the main purpose of the next sections.

Scope of Application of Chapter 11

A preliminary point is the scope of application of Chapter 11 (and
presumably, of the entire Part II of the Handbook, on the "Law of Naval
Warfare"), both as regards time and place.

Part II of the Handbook refers throughout to "armed conflict," without any
attempt at definition. In the law of armed conflict, the term encompasses
both international and internal armed conflicts. Since 1949, Art. 3, common
to the four Geneva Conventions, makes separate provision for the latter type
of armed conflict. In 1977, Art. 3 was supplemented by Protocol II. While
the conduct of hostilities in an internal armed conflict need not be very
different from the same sort of activities in an international one, the law
differs significantly. One such difference is that the law relating to internal
armed conflicts, whether in its 1949 or 1977 versions, does not recognize a
separate category of "combatants," as those persons who, in contradistinction
to the rest of the population, "have the right to participate directly in
hostilities."11

Chapter 11 and Part II in general do not differentiate between the two
types of armed conflict and appear to have been written with an eye to
international armed conflicts in particular. Yet, the U.S. Navy may become
involved in an internal armed conflict in two different situations: when the
United States itself becomes the scene of such a conflict, or when it steps
into an internal conflict elsewhere. The first case is probably so purely
hypothetical that provision need not be made for it in a Commander's Handbook
on the Law of Naval Operations. On the other hand, in United States practice,
active involvement in other nations' conflicts is not a rare occurrence at all.

Outside intervention in an internal armed conflict habitually gives rise to
interesting legal questions: when does this or the other part of the law of
armed conflict apply, and to whom? Does it matter whether the intervention

304 Law of Naval Operations

is on the side of the incumbent authorities or on the other side? Refreshingly,
the Handbook leaves all these more or less pedantic questions for what they
are and confines itself to one maximum solution: when the U.S. Navy is
involved in a shooting war, it shall apply the rules governing international
armed conflict. One can only be gratified with such an outright choice for
the rules providing greatest protection to "noncombatant persons" and other
war victims.12

Another matter is the territorial scope of application. Part II being
concerned with "Naval Warfare," one might think of the sea as the natural
theatre of naval operations. Yet, a perusal of the text leaves little doubt that
it is designed to be applied on a far broader basis and, in effect, on land and
in the air as much as at sea. A case in point is Chapter 11, which gives a
good deal of attention to the protection of the civilian population against the
effects of hostilities, as well as to the situation of persons parachuting from
disabled aircraft and who may or may not land in territory controlled by
their own forces. Conversely, the whole of Part II pays surprisingly little
attention to hospital ships.

One may perceive in this wide scope of application of Part II, and of
Chapter 11 in particular, a recognition that "naval operations" include those
of the naval air arm, amphibious forces and the marines, and that these do
quite often extend to land. It remains to be seen whether the chapter has
not thereby come to include details that might be regarded as superfluous,
and to neglect issues that could be vital.

III. The Civilian Population

General Protection against Effects of Hostilities

As related in the previous section, paragraphs 5.3, 11.1 and 11.3 of the
Handbook introduce the civilian population as the "noncombatant persons"
of choice. The phrase "civilian population," as defined in paragraph 11.3,
represents the broad mass of all those who, although themselves in no way
directly involved in the fighting, are likely to be adversely affected by it.
These people stand in need of "general protection against the effects of
hostilities," no matter when and where these evil effects occur.

In the traditional dichotomy between the "law of The Hague" and the
"law of Geneva," general protection of the civilian population belongs to
the former. Yet, the treaties adopted by the Hague Peace Conferences of
1899 and 1907 deal with the subject in a rather stepmotherly fashion. They
provide two sets of rules, one of which deals summarily with certain military
operations likely to affect the civilian population (notably, bombardments and
sieges).13 The other set of rules defines the legal character and effects of
belligerent occupation and goes into the relations between the occupying
power and the authorities and inhabitants of occupied territory.14

Kalshoven 305

A striking feature of the old rules on sieges and bombardments is their
silence on the plight of the civilians themselves as human beings exposed to
the effects of such warlike activities. This wall of silence surrounding the
civilian population as potential victims of hostilities suffered a first, modest,
breach in 1949 with the adoption of the Fourth Convention Relative to the
"Protection of Civilian Persons in Time of War." For present purposes, it
may suffice to refer to Part II, General Protection of Populations Against
Certain Consequences of War, that serves to provide some protection, in
particular, to certain specially vulnerable categories of civilians. The
"consequences" in question may arise as much from the conduct of war on
land as from activities at sea as, for example, naval blockade.15

While "general protection of the civilian population against the effects of
hostilities" long remained a neglected and, hence, somewhat indeterminate
notion in the past, its contours became more sharply defined after World War
II. The first occasion was the XXth International Conference of the Red
Cross, held in 1965 in Vienna. It adopted a resolution which "solemnly
declares" four "general principles of the Law of War." Of relevance here
are the twin principles "that it is prohibited to launch attacks against the
civilian populations as such," and "that distinction must be made at all times
between persons taking part in the hostilities and members of the civilian
population to the effect that the latter be spared as much as possible."16

The United Nations General Assembly subsequently affirmed three of the
four principles, including the two principles on protection of the civilian
population, by a unanimously adopted resolution of 19 December 1968. 17 As
this commentator wrote earlier:

Although the General Assembly of the United Nations does not possess any formal
legislative powers in matters of international law, the unanimous reaffirmation of the
principles in question as valid norms of international law can certainly be regarded as
an authoritative statement of the law. From this moment it has become very difficult
for a Member of the United Nations to deny the validity of the principles spelt out
in the Resolution, and of the principle of distinction in particular.18

As the drafting history of the 1977 Additional Protocols shows, no "Member
of the United Nations" nor, for that matter, any other state has ventured
to deny the validity of the principles. On the contrary, Protocol I enshrines
them. Moreover, the Protocol expands them into a set of detailed rules.19

The Handbook reiterates the three principles of December 1968 in paragraph
8.1, Principles of Lawful Targeting, of Chapter 8, The Law of Naval
Targeting. In order to examine what it has to say in detail about the protection
of the civilian population, it is necessary to pay somewhat closer attention
to the two principles concerned, beginning with the principle prohibiting
attacks on the civilian population.

306 Law of Naval Operations

Civilian Population Not the Object of Attack

Clearly, this prohibition is not, on principle, subject to any considerations
of policy, opportunity, or whatever. The only conceivable exception might
perhaps lie in acts of reprisal against the enemy civilian population, a form
of action that customary international law cannot with certainty be stated
to forbid. Protocol I aims to seal this gap by categorically prohibiting reprisals
against civilians, civilian objects in general (Arts. 51, 52) and a long list of
specially protected civilian objects in particular (Arts. 53-56). These
prohibitions are the outcome of difficult negotiations at the Diplomatic
Conference of 1974-1977, and they have since remained the subject of sharp
criticism from some quarters.

None of the states becoming party to Protocol I has made an express
reservation to the provisions at issue. Close to a formal reservation comes
the "understanding* ' of Italy, to the effect that it shall react to grave and
systematic violations of Arts. 51 and 52 by all permissible means under
international law, with a view to preventing further violations. Fortunately,
this poorly masked threat of reprisal is preceded by a formal acceptance of
the competence of the International Fact-Finding Commission, to be
established in accordance with Art. 90, to "enquire into any facts alleged to
be a grave breach as defined in the Conventions and this Protocol or other
serious violation of the Conventions or of this Protocol.,,2°

It is a matter of some considerable regret that the Handbook states bluntly,
in subparagraph 6.2.3 (Reprisal) of Section 6.2 (Enforcement of the Law of
Armed Conflict), that "[r]eprisals may be taken against enemy armed forces;
enemy civilians, other than those in occupied territory; and enemy property." It is
not at all certain that this statement is in conformity with customary
international law. While the prohibition of such acts cannot be stated with
certainty either, the most that can be said is that the law is in a state of
indecision. In these circumstances, the blunt affirmation in a brand-new
military manual of a major military power of an unquestioned right of reprisal
against the civilian population represents a most unwelcome contribution to
the "development of international humanitarian law applicable in armed
conflicts."

An additional point of criticism is that the list in paragraph 6.2 of the
"various means available to belligerents under international law for inducing
the observance of legitimate warfare" does not include recourse to an outside
fact-finding mechanism. Evidently, as the United States is not presently
becoming a party to Protocol I, it is not in a position to accept the competence
of the Art. 90 Commission. Yet, the road to ad hoc neutral enquiry is always
open, and the Handbook should make the point explicit. Instead, it simply lists
as the first available means of law enforcement: "Publicize the facts with
a view toward influencing world public opinion against the offending nation. "
This may be quite a useful means against the offender once the facts have

Kalshoven 307

been established, but this is precisely where the shoe pinches. Giving publicity
to non-established facts is no more than making allegations.

After this short excursion into the field of reprisals, as a possible exception
to the principle that the civilian population shall not be the object of attack,
we return to the main principle. Application of the principle may in practice
be thwarted by the practical difficulty of determining civilian status. As will
be seen hereafter, Art. 50 (1) of Protocol I prescribes that whenever there
is "doubt whether a person is a civilian, that person shall be considered to
be a civilian.' '

While this rule, if faithfully applied, may largely solve the problem with
respect to individuals, another matter altogether is the character of "the
civilian population" as a group of persons. Will, for instance, the inhabitants
of a town or village continue to enjoy immunity from attack when they have
some few soldiers quartered among them? And what of a refugee camp where
a good number of the inhabitants are found to be combatants, fully equipped
as such?

In an attempt to resolve this issue, Art. 50 (3) of Protocol I provides that:
"The presence within the civilian population of individuals who do not come
within the definition of civilians does not deprive the population of its civilian
character." This may be the correct solution when, in such a mixed situation,
civilians constitute the overwhelming majority. But what if the balance
between civilians and combatants is less evidently in their favor? From a
military point of view, the immunity of some few civilians cannot forever
shield an important military objective from attack.

Protocol I tackles this dilemma in more than one way. First, Art. 51 (7)
issues a stern warning against misusing the civilian population to "render
certain points or areas immune from military operations."21 The point is
reinforced by the obligation of belligerent parties to protect civilians under
their control by taking "precautions against the effects of attacks." Art. 58
(which bears this caption) requires, as self-evident measures, that each party
shall take, "to the maximum extent feasible," the removal of civilians from
the vicinity of military objectives, and, the other way round, military
objectives from civilians.22

Obviously, there can be no firm guarantee that this will be done. What,
therefore, if one side disregards the prohibitions set forth in Art. 51 (7), so
that the other side cannot carry out an attack on a military objective without
at the same time seeming to perpetrate an "attack on the civilian population?"
To this pressing question, Art. 51 (8) gives a rather evasive reply. The crux
of the matter is that "the parties" are reminded of their "obligation to take
the precautionary measures provided for in Article 57. "23

Civilian Population to Be Spared As Much As Possible

This brings us to the other fundamental principle at stake, viz., the

308 Law of Naval Operations

obligation of belligerent parties, in carrying out military operations, to spare
the civilian population as much as possible. Art. 57 (1) states the principle:
"In the conduct of military operations, constant care shall be taken to spare
the civilian population, civilians and civilian objects." Art. 57 (2) to (4)
demonstrates clearly that the protection offered by this principle is, in contrast
with the first principle, essentially relative in nature, as situations may arise
where civilians simply cannot be spared.24

The order of preference in Art. 57 is, however, clear: first, try to avoid
any incidental loss or collateral damage; if this is impossible, then at least
try to minimize it; and in the last resort, refrain from pressing an attack that
would cause excessive, that is, disproportionate damage to the civilian
population.

These are no mean requirements to put to the military. Yet, they do not
appear to be beyond the capacities of a well-trained, well-disciplined armed
force, and they doubtless represent the right attitude of mind for any self-
respecting soldier. They are even entirely commendable from the point of
view of economical use of military means. At the same time, translation of
the juridical phraseology of the Protocol into practical, easily understandable
terms is of course necessary.

The Handbook on General Protection

In the Handbook the detailed rules on protection of the civilian population
are spread over several sections. Confining ourselves for the moment to
Chapter 11, the relevant paragraphs are 11.2 and 11.3. Paragraph 11.2,
Protected Status, purports to deal with general aspects of the protection of
all "noncombatant persons." Whether this is correct for all categories shall
be examined infra. Applied to civilians, the rules it contains fairly accurately
reflect some main aspects of the law as codified in Protocol I. It mentions
the requirement of advance warning, adding that: "Such warnings are not
required, however, if mission accomplishment, including the security of
attacking forces, is premised on the element of surprise." It places on record
the "affirmative duty" of "a party to an armed conflict that has control over
civilians ... to remove them from the vicinity of targets of likely enemy
attack and to otherwise separate military activities and facilities from areas
of [civilian] concentration." It affirms that: "Deliberate use of [civilians] to
shield military objectives from enemy attack is prohibited." And it concludes
that: "The presence of [civilians] within or adjacent to a legitimate target
does not, however, preclude its attack."

Although all this may appear acceptable enough, it is far from giving the
full story. In effect, the opening sentence of paragraph 11.2 sets the wrong
tone, in that it provides:

Kalshoven 309

The law of armed conflict prohibits making noncombatant persons the object of
intentional attack and requires that they be safeguarded against injury not incidental
to military operations directed against combatant forces and other military objectives.

While this is a correct statement as far as it goes, the point is that it does
not go far enough. Lacking is the recognition that civilians must be
"safeguarded," first and foremost, against injury that is "incidental to military
operations directed against combatant forces and other military objectives."
Paragraph 11.2, in short, does not take up, or even refer to, the problem of
incidental loss and collateral damage, let alone recognize proportionality as
the ultimate standard of justifiable injury to civilians.

For this, the reader must look elsewhere in the Handbook, notably in
paragraph 8.1.2.1, Incidental Injury and Collateral Damage, of Chapter 8,
The Law of Naval Targeting. Here, the naval commander is urged to "take
all practicable precautions, taking into account military and humanitarian
considerations, to keep civilian casualties and damage to the absolute
minimum consistent with mission accomplishment and the security of the
force," and he is required to "determine whether incidental injuries and
collateral damage would be excessive, on the basis of an honest and reasonable
estimate of the facts available to him." The commander is moreover required
to "decide, in light of all the facts known or reasonably available to him,
including the need to conserve resources and complete the mission
successfully, whether to adopt an alternative method of attack, if reasonably
available, to reduce civilian casualties and damage."

This represents a clear attempt to summarize the law relating to protection
of the civilian population. The text is open to the criticism that it lays too
heavy an accent on "mission accomplishment." This undefined concept, that
has no place in positive international law, may all too easily be misused as
an excuse for otherwise unjustifiable acts of war affecting the civilian
population.

This being said, the inclusion of the paragraph in a part of the law that
came to be clarified only with the adoption of Protocol I, is warmly
welcomed. The same goes for paragraph 8.1.2, Civilian Objects, specifying
certain limitations on the right to attack objects of special importance to the
civilian population. The present commentator merely wishes to add that he
would have preferred to see both paragraphs repeated in Chapter 11; after
all, the distinction between "naval targeting" and "noncombatant persons"
is not rigidly maintained elsewhere either.

Returning once again to Chapter 11, paragraph 11.3 states:

Unlike military personnel . . . civilians are immune from attack unless they are acting
in direct support of the enemy's war-fighting or war-sustaining effort. Civilians
providing command, administrative, or logistic support to military operations are subject
to attack while so engaged. Similarly, civilian employees of naval shipyards, merchant
seamen in ships carrying military cargoes, and laborers engaged in the construction of
military fortifications, may be attack [sic] while so employed.

310 Law of Naval Operations

This statement too, is open to criticism. First, it creates the erroneous
impression that in given situations, civilians may be deliberately chosen as
the target of attack even though they are not taking a direct part in hostilities.
A more accurate statement would be that in such situations, civilians are more
than normally exposed to the risks of war because they happen to be in, on,
under, or near an object that is open to attack as a military objective.25 In
such situations, the applicable principle is that they "must be spared as much
as possible" — not that they provide fair game.

Over and above this fundamental criticism, the above phrases suffer from
an apparent tendency to construe the law — and thereby to influence
practice — in a sense that goes to the detriment of the civilian population. One
can accept use of the phrase, activities "in direct support of the enemy's war-
fighting effort." To add "war-sustaining effort" is going too far, however,
as this might easily be interpreted to encompass virtually every activity in
the enemy country.

"Civilians" and "Civilian Population"

In the above, the notions of "civilian" and "civilian population" were taken
for granted. Internationally accepted definitions for each of these notions
were introduced in Protocol I. According to Art. 50 (2), "[t]he civilian
population comprises all persons who are civilians." A civilian is, according
to Art. 50 (1), "any person who does not belong to one of the categories of
persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention
and in Article 43 of this Protocol." This definition-by-reference may be
reduced to the statement that the civilian population comprises all those
persons who are not members of the armed forces. (The latter notion is taken
here in a broad sense, including armed groups such as militias, volunteer corps
and organized resistance movements that, although not forming part of the
regular armed forces, respect certain specificied conditions, with
recognizability as a most essential one among them).26

The second sentence of Art. 50 (1) emphasizes that: "In case of doubt
whether a person is a civilian, that person shall be considered to be a civilian. "
It is a matter of some regret that this important provision is not reflected
in the Handbook. Not that the rule represents any great innovation in the law
of armed conflict; surely, it could hardly be otherwise. Yet to remind military
commanders of this necessary premise in their contacts with unknown persons
remains extremely useful.

Up to a point, the definition in Art. 50 (2) is accurately reflected in the
text of paragraph 11.3 (as quoted in section II infra). The most obvious
deviation resides in the qualifying phrase "and not otherwise taking a direct
part in hostilities." Paragraph 11.3, sub para. 2, is even more explicit:

Kalshoven 311

Civilians who take a direct part in hostilities by taking up arms or otherwise trying
to kill, injure, or capture enemy persons or destroy enemy property lose their immunity
and may be attacked. Similarly, civilians serving as lookouts, guards, or intelligence
agents for military forces may be attacked.

Similar language is not found in Art. 50. On the other hand, Art. 51 (3)
provides that: "Civilians shall enjoy the protection afforded by this Section,
unless and for such time as they take a direct part in hostilities.' '

This sentence differs in more than one respect from the language in
paragraph 11.3 of the Handbook. First, while the latter text carries the
suggestion of a permanent loss of status and protection, Art. 51 (3) makes
abundantly clear that the loss of protection is dependent on, and does not
outlast, the activities at issue. In other words, the law is that a civilian who
participated directly in hostilities but who has terminated his participation,
is once again fully entitled to protection as a civilian and, hence, immune
from attack (although he is liable to be punished for his hostile acts).

To be in accordance with the rule in Protocol I, the loss of immunity in
paragraph 11.3 should not be understood as a permanent loss of status but,
rather, as a temporary suspension of protection. The Handbook could be clearer
on this score.

Another notable aspect is the terms by which paragraph 11.3 sets out to
make the abstract notion of "direct participation in hostilities " more tangible.
That "taking up arms or otherwise trying to kill, injure, or capture enemy
persons" are listed under this heading may seem acceptable enough. Yet, the
"enemy persons" may themselves be engaged in an unlawful act against
civilian life or property, thereby justifying an act in self-defense on the part
of the threatened civilians. Does the Handbook simply assume that U.S. naval
personnel will not engage in such evil ways? A stern warning against any
such conduct justifying forceful counter-measures on the part of the victims
might be in order.

The next specific act mentioned in paragraph 11.3, "trying to destroy
enemy property," is altogether too broad and vague to justify, in all cases,
loss of protection as a civilian. It is just about as easy to think of instances
where this consequence is justified, as of other ones where this is certainly
not the case. The phrase should either be specified or deleted.

Is it correct to assert, as paragraph 11.3 does, that "civilians serving as
lookouts, guards, or intelligence agents for military forces may be attacked"?
This is yet another example of a statement that is simply too sweeping to
guarantee that civilians shall not be attacked without just cause.

The present commentator regrets the apparent tendency in Chapter 11 to
construe "direct participation in hostilities" in such wide terms. It is, of
course, acknowledged that the concept is notoriously difficult to construe,
and that the task of doing so falls to the competent national authorities. As
the late Professor Waldemar A. Solf wrote, "As the interpretation of these

312 Law of Naval Operations

terms may affect matters of life or death, it is indeed regrettable that the
ambiguities are left for resolution to the practice of States in future
conflicts."27

A good starting point for a narrower construction might be in the following
quotation: ' 'Direct' participation means acts of war which by their nature
or purpose are likely to cause actual harm to the personnel and equipment
of the enemy armed forces."28

Levee en masse

Reference should be made here to the levee en masse as a special case
warranting attacks on civilians. Ever since the Hague Regulations on land
warfare, 1899, the law has recognized that: "Inhabitants of a nonoccupied
territory, who on the approach of the enemy spontaneously take up arms to
resist the invading forces, without having had time to form themselves into
regular armed units" are not liable to punishment for their warlike acts and,
when captured, are entitled to prisoner-of-war status, "provided they carry
arms openly and respect the laws and customs of war."29

The difference between participants in a levee en masse and the civilians of
Art. 51 (3) lies not so much in the treatment they will get while engaged
in active hostilities. They are all equally open to attack. However, when they
fall into enemy hands while so engaged, members of the former category are
not liable to be punished for their warlike acts and are entitled to prisoner-
of-war status, whereas persons of the latter type are not entitled to either
prerogative. Again, when the enemy gets hold of persons of either category
only after they returned to normal "civilian" life, he must leave the
participants in the levee en masse untouched but may still put the other
individuals on trial.

In view of the apparent broad scope of application of the Handbook, and
keeping in mind the possibility of U.S. forces taking part, for example, in
an amphibious operation that the inhabitants of the territory concerned may
be expected to regard as an invasion, the levee en masse should not remain
unnoticed.

Protection under the Fourth Convention

As noted earlier in this chapter, a separate Convention for the protection
of civilians saw the light in 1949. Part II of this Fourth Convention deals,
as its title indicates, with the "general protection of populations against
certain consequences of war." The consequences envisaged here are not,
however, the effects of hostilities on the civilian population in general but,
rather, the risks threatening certain especially vulnerable categories of
civilians, such as wounded, sick and aged persons, children under fifteen,
expectant mothers, and mothers of children under seven. The risks in question

Kalshoven 313

may arise as much from the conduct of war on land as from activities at sea
as, for example, naval blockade.

In this respect, reference may be made once again to Art. 23. 30 This Article
outlaws the infliction of a total blockade in complete disregard of the fate
of the civilian population. In the Handbook, subparagraph 7.7.3, Special Entry
and Exit Authorization, of paragraph 7.7, Blockade, briefly refers to this
matter, stating that "neutral vessels and aircraft engaged in the carriage of
qualifying relief supplies for the civilian population and the sick and wounded
should be authorized to pass through the blockade cordon."

Another fleeting reference to a subject dealt with in Part II of the Fourth
Convention is found in subparagraph 6.2.2, The International Committee of
the Red Cross (ICRC). It mentions the task assigned to the ICRC under the
Geneva Conventions, inter alia, of "offering its 'good offices' to facilitate
establishment of hospitals and safety zones." This reflects the possibility,
recognized in Art. 14, for parties to a conflict to establish hospital and safety
zones, so organized as to protect especially vulnerable categories of people
from the effects of war.

Part III of the Fourth Convention, entitled "Status and Treatment of
Protected Persons," provides for the protection of those civilians who are
considered "protected persons" under Art. 4.31 The protection of this Part
extends to persons who find themselves, for whatever reason, in enemy
territory or in territory under enemy occupation. For either situation, Part
III contains elaborate sets of rules. One section deals at length with the
treatment of internees, laying down rules that closely resemble those
applicable to prisoners of war.

While the Handbook does not pay express attention to belligerent
occupation, Chapter 11 does contain a paragraph 11.9 on Interned Persons.
Rigorously condensing the vast mass of treaty provisions to a few clear lines,
it succeeds remarkably well in bringing out the essence of the "humane
treatment" due such "protected persons."

Civilians Under Special Protection

The law of armed conflict singles out for special protection certain specified
categories of civilians, either because they are regarded as especially
vulnerable or on account of the functions they perform. The Handbook also,
in various chapters, pays occasional attention to the situation of these persons.
As the rules relating to the protection of these diverse categories of civilians
are closely linked to those on the status and protection of members of the
armed forces who qualify for special protection, they are dealt with in the
next section.

314 Law of Naval Operations

IV. Other "Noncombatant Persons"

Medical Personnel and Chaplains

After the civilian population, paragraph 11.1 lists "medical personnel and
chaplains" as a first category of "members of the armed forces who enjoy
special protected status." Paragraph 11.5 enlarges upon the point: "Medical
and dental officers, technicians and corpsmen, nurses, and medical service
personnel, have special protected status when engaged exclusively in medical
duties and may not be attacked." As regards chaplains, the Section specifies
that in order to "enjoy protected status equivalent to that of medical
personnel," they must be "engaged in ministering to the armed forces."

While paragraph 11.5 provides an undivided list of the medical personnel
who all qualify for the same protected status, the treaties in force recognize
certain distinctions. For present purposes, importance attaches to the
distinction between permanent and temporary personnel. Art. 24 of the First
Convention defines the position of the permanent military medical staff and
chaplains, as follows:

Medical personnel exclusively engaged in the search for, or the collection, transport
or treatment of the wounded or sick, or in the prevention of disease, staff exclusively
engaged in the administration of medical units and establishments, as well as chaplains
attached to the armed forces, shall be respected and protected in all circumstances.

As regards the situation at sea, Arts. 22 and 36 of the Second Convention
provide similar protection for "the religious, medical and hospital personnel"
of military hospital ships.

The above persons are, so to speak, "noncombatants" by profession. They
are, by virtue of their function, permanently precluded from taking an active
part in hostilities. There can be little doubt that the term "noncombatants"
in Art. 3 of the Hague Regulations ("The armed forces of the belligerent
parties may consist of combatants and noncombatants") refers to the medical
personnel and chaplains of the armed forces in the first place.

Almost but not entirely on a par with these prototypical "noncombatants"
are the temporary paramedical personnel. Art. 25 of the First Convention
provides that:

Members of the armed forces specially trained for employment, should the need arise,
as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the
collection, transport or treatment of the wounded and sick shall likewise be respected
and protected if they are carrying out these duties at the time when they come into
contact with the enemy or fall into his hands.

While a strong preference for non-violent behavior or even a sense of
vocation may have prompted these "members of the armed forces" to apply
for such special training, they enjoy noncombatant status only on a temporary
basis, when they are actually employed in one or other of the above functions.

Kalshoven 315

At other moments they may be occupied in a normal combatant capacity,
and may then act as such with impunity.

Comparing the above treaty provisions with paragraphs 11.1 and 11.5 of
the Handbook, it appears that the Handbook unacceptably oversimplifies
matters. Mention of the permanent and temporary medical personnel in one
breath leaves the reader with the false impression that like the auxiliary
personnel, members of the permanent medical staff depend for their protected
status on "being engaged exclusively in medical duties," a misunderstanding
that could and should be avoided.

The ground-rule for the treatment of (permanent or temporary) medical
personnel and chaplains is already given in the above treaty texts: they must
be "respected and protected." It follows that they shall not be the object
of attack. An obvious precondition is that they are recognized in their quality
as medical personnel or chaplains. As to this, a surgeon who performs an
operation in a military field hospital without wearing the "armlet bearing
the distinctive emblem" prescribed by Art. 40 of the First Convention, will
not lightly be mistaken for someone who is "taking a direct part in hostilities. "
On the other hand, uniformed auxiliary medical personnel searching for
wounded in the field run a serious risk of being mistaken for unprotected
combatants if they fail to wear the "white armlet bearing in its centre the
distinctive sign in miniature" as prescribed in Art. 41 of the First Convention.
Subparagraph 11.10.6 correctly reflects this point.

The Conventions do not state in so many words that permanent military
medical personnel and chaplains, and the temporary personnel while engaged
in a paramedical function, shall themselves refrain from taking an active part
in hostilities. Yet this is an evident condition for effective immunity from
attack. A chaplain who, arms in hand, leads an attack (as seems to have
happened in Viet Nam) cannot (and probably does not) expect to be respected
as a "noncombatant." On the contrary, his active participation in hostilities
constitutes an unlawful act of war and, hence, a war crime.

Medical or paramedical personnel who perpetrate a similar act under the
cover of the red cross or red crescent may, under the terms of Art. 85 (3)
(f) of Protocol I, be guilty of an act of perfidy amounting to a grave breach
of the Protocol. This point is stated in paragraph 12.2 (Misuse of Protective
Signs, Signals and Symbols) of Chapter 12 (Deception During Armed
Conflict) of the Handbook. The paragraph explains that acts of the above type
"undermine the effectiveness of protective signs, signals, and symbols and
thereby jeopardize the safety of noncombatants and the immunity of protected
structures and activities."

Another matter altogether is that medical personnel may be armed and
"use the arms in their own defence, or in that of the wounded and sick in
their charge" (Art. 22, First Convention). Paragraph 11.5 correctly specifies
that the arms must be "small arms." It adds that the arms may also serve

316 Law of Naval Operations

"for protection from marauders and others violating the law of armed
conflict." One senses here a typical reflection of the asserted constitutional
right of all Americans to carry a weapon in self-defense. While "protection
from marauders" seems all right, the present commentator has some difficulty
with the added category of "others violating the law of armed conflict." His
fear would be that such a vague phrase might easily lead to confusion.

Upon capture, permanent military medical personnel and chaplains "shall
be retained only in so far as the state of health, the spiritual need and the
number of prisoners of war require;" thus retained, they shall not themselves
be deemed prisoners of war (Art. 28 of the First Convention). Those who
are not retained "shall be returned to the Party to the conflict to whom they
belong, as soon as a road is open for their return and military requirements
permit" (Art. 30). Temporary personnel, on the other hand, "shall be
prisoners of war, but shall be employed on their medical duties in so far as
the need arises" (Art. 29).

As against all this, paragraph 11.5 simply states that: "Medical personnel
and chaplains falling into enemy hands do not become prisoners of war." And
the next sentence draws the equally sweeping conclusion that, "[ujnless their
retention by the enemy is required to provide for the medical or religious
needs of prisoners of war," they all "must be repatriated at the earliest
opportunity."

Not specifically mentioned in the Handbook, but falling in the same class
and under the same protections as the permanent military medical personnel,
are their civilian colleagues on the staff of duly recognized Red Cross, Red
Crescent or other voluntary aid societies (Art. 26 of the First Convention),
the religious, medical and hospital personnel of other than military hospital
ships (Arts. 24 and 36 of the Second Convention), and, according to Art. 20
of the Fourth Convention "persons regularly and solely engaged in the
operation and administration of civilian hospitals, including the personnel
engaged in the search for, removal and transporting of and caring for wounded
and sick civilians, the infirm and maternity cases." As for the Red Cross and
other civilian personnel, they "may not be detained" and "shall have
permission to return to their country, or if this is not possible, to the territory
of the Party to the conflict in whose service they were, as soon as a route
for their return is open and military considerations permit" (Art. 32 of the
First Convention).

Combatants in Various Situations of Distress

0( a different character altogether are the next class of "noncombatant
persons" listed in paragraphs 5.3 and 11.1: members of the armed forces "who
have been rendered incapable of combat by wounds, sickness, shipwreck, or
capture." Such persons differ from medical personnel and chaplains in that
they find themselves in a noncombatant position, not as a matter of vocation,

Kalshoven 317

profession or preference but by accident, or indeed by a stroke of bad luck.
They are first and foremost combatants and, as such, are not precluded in
principle from taking up arms against the enemy. A wounded soldier is fully
entitled to open fire on an adversary, provided he does not do so while feigning
to be incapacitated by his wounds. Even when taken prisoner, a soldier retains
his capacity and status as a combatant; thus, he may escape with impunity,
and his national legislation may even oblige him to attempt to do this.

Paragraph 11.4, The Wounded and Sick, states the principle that
'[mjembers of the armed forces incapable of participating in combat due to
injury or illness may not be the subject of attack." Paragraph 11.8, Prisoners
of War, adds the equally important principle that when they are given medical
treatment, "no distinction among them will be based on any grounds other
than medical ones."

Paragraph 11.6, The Shipwrecked, extends similar protection to all

'[sjhipwrecked persons, whether military or civilian." Persons belonging to

the category of the shipwrecked "include those in peril at sea or in other

waters as a result of either the sinking, grounding, or other damage to a vessel

in which they are embarked, or of the downing or distress of an aircraft."

Obviously, the above comments about "noncombatants against their will"
do not apply to the civilians among the shipwrecked. That they are placed
on the same footing as the military shipwrecked is easily understood in the
light of the situation at sea, where shipwreck means the same extreme danger
for everyone and where rescue without discrimination has become more or
less the natural thing to do.

Equally self-evident, although phrased in such complicated "legal" terms
as to be open to interpretation in practice, are the exceptions made in the
second subparagraph of paragraph 11.6:

Shipwrecked persons do not include combatant personnel engaged in amphibious,
underwater, or airborne attacks who are proceeding ashore, unless they are clearly in
distress and require assistance. In the latter case they qualify as shipwrecked persons
only if they cease all active combat activity and the enemy has an opportunity to
recognize their condition of distress.

The first sentence of paragraph 11.8, Prisoners of War, contemplates
situations of distress combatants may find themselves in just moments before
they are taken prisoner:

Combatants cease to be subject to attack when they have individually laid down their
arms to surrender, when they are no longer capable of resistance, or when the unit
in which they are serving or embarked has surrendered or been captured.

This language corresponds in the main with the provision in Art. 41 (1)
of Protocol I, that '[a] person who is recognized or who, in the
circumstances, should be recognized to be hors de combat shall not be made
the object of attack." One missing element is, of course, the affirmative duty
of the adversary to recognize the person in question as being hors de combat.

318 Law of Naval Operations

For the rest, the specific situations where paragraph 11.8 considers a
combatant to be hots de combat do not markedly differ from those set forth
in Art. 41 (2) of Protocol I.32

A situation comparable to that of the combatant hors de combat is dealt with
in paragraph 11.7, Parachutists. It provides in part:

Parachutists descending from disabled aircraft may not be attacked while in the air and,
unless they land in territory controlled by their own forces or engage in combatant
acts while descending, must be provided an opportunity to surrender upon reaching the
ground.

This is a more or less faithful reflection of the rules laid down in Art. 42
(1) and (2) of Protocol I. The inclusion of this provision in paragraph 11.7
may be taken as a sign that the United States regards the position of these
persons as being governed by customary law.33

Section 11.7 deviates from the language of Art. 42, notably, in the reference
to the performance of "combatant acts while descending." At the Diplomatic
Conference of 1974-1977, in the course of the debate on the draft Article,
some urged that a clause to that effect be included, whereas others asserted
that it would be an empty phrase as performance of such acts in the course
of a descent by parachute was impossible. In the end, a Philippine amendment
to add "unless he commits a hostile act during such descent" failed to obtain
the required two-thirds majority.34

While Art. 42 (3) provides, by way of exception, that "Airborne troops
are not protected by this Article," paragraph 11.7 also excludes from
protection "special warfare infiltrators and intelligence agents." This sounds
reasonable enough. Yet it may not be easy in practice to ascertain that a person
who is parachuting from an airplane that may or may not be in distress actually
belongs to one of these sinister categories.

Prisoners of War

As provided in paragraph 11.8, Prisoners of War, "combatants that have
surrendered or otherwise fallen into enemy hands are entitled to prisoner-
of-war status." Subparagraph 2 defines the persons entitled in principle to
such status. They "include members of the regular armed forces, the militia
and volunteer units fighting with the regular armed forces, and civilians
accompanying the armed forces." While the Handbook poses no further
conditions for members of the regular armed forces, subparagraph 2 specifies
in a second sentence:

Militia, volunteers, guerrillas, and other partisans not fighting in association with the
regular armed forces qualify for prisoner-of-war status upon capture, provided they
are commanded by a person responsible for their conduct, are uniformed or bear a fixed
distinctive sign recognizable at a distance, carry their arms openly and conduct their
operations in accordance with the law of armed conflict.

Kalshoven 319

This sentence provides a slightly simplified version of the traditional law,
while at the same time supplementing it with embellishments and explanatory
elements of its own. In doing so, it largely relies on the treaties to which
the United States is a party. For the rest, it appears to borrow elements from
Protocol I or, indeed, from its drafting history.

The applicable pre-Protocol treaty law is found mainly in Art. 13 common
to the First and Second Geneva Conventions and in Art. 4 of the Third
Convention. As far as relevant here, these Articles list in identical terms, first,
the members of regular armed forces, including "members of militias or
volunteer corps forming part of such armed forces," and secondly:

Members of other militias and members of other volunteer corps, including those of
organized resistance movements, belonging to a Party to the conflict and operating in
or outside their own territory, even if this territory is occupied, provided that such
militias or volunteer corps, including such organized resistance movements, fulfil the
following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of

war.

Like the quoted phrase in paragraph 11.8, these Articles distinguish between
the regular armed forces and other armed groups, and specify a number of
conditions the latter groups have to meet in order to qualify for prisoner-
of-war status. The main difference is in the definition of the not-so-regular
armed groups, with the treaty provisions specifically mentioning resistance
movements, as a species of the genus "other volunteer corps." That resistance
movements were mentioned at all was a great victory in 1949, after the failure
of the Hague Peace Conferences of 1899 and 1907 to resolve the problem of
armed resistance in occupied territory in a satisfactory manner.

At the same time, it was but half a victory, because the 1949 text maintained
the four conditions as adopted in 1907 (including the element that the
distinctive sign had to be "fixed" — a rather unfortunate German addition
of that year to the text established in 1899). Even in 1949 it was a well-known
fact that resistance movements are rarely able to meet all four conditions.
It also became clear that even regular armed forces very often rely on cover
and camouflage rather than, as in the days of yore, on the splendor and
brilliance of their uniforms and arms. On the other hand, irregular fighters
were often treated in practice as combatants and prisoners of war, even if
they had not met all four conditions all the time.

These facts eventually led to the adoption of Art. 43 (1) of Protocol I,
providing a completely new definition of "armed forces." The new text does

320 Law of Naval Operations

away with the distinction between "regular" and "irregular" armed forces,
as also with the list of stringent conditions of 1907. Instead, it requires
organization, responsible command, and discipline.35 The obligation of
combatants "engaged in an attack or in a military operation preparatory to
an attack" to "distinguish themselves from the civilian population" is laid
down in Art. 44 (3), leaving open how they will discharge this obligation.36
One obvious means remains the uniform. As specified in para. 7, Art. 44 "is
not intended to change" the practice of regular armed forces with respect
to the wearing of the uniform - no matter what that practice may be.

The definition of "armed forces" in Art. 43 (1) doubtless constitutes new
law, and the United States is therefore legally entitled to disregard it. At
the same time, one cannot but feel a sense of regret at this posture, which
contradicts not only the stand taken by its delegation at the Diplomatic
Conference of 1974-1977 but, perhaps even more strikingly, its own practice
in the Vietnam War, a practice that served as an example to the rest of the
world and was a source of inspiration for the negotiators at the Conference.
In particular, after all that has happened, it is difficult to accept as serious
propositions that a distinction should still be maintained between regular and
other armed forces and that the latter would be required at all times to "be
uniformed or bear a fixed distinctive sign recognizable at a distance" and
"carry their arms openly."

Given the rather retrograde posture of the Handbook on the matter of
qualification as prisoners of war, the reference in paragraph 11.8 to
"guerrillas" and "partisans" is all the more surprising. Such catchwords may
have been used in the debate preceding the adoption of Art. 43 (1) of Protocol
I, but they were no more included in the text than other comparable, equally
undefined terms, if only because they are as open to subjective interpretation
as, for example, the word "terrorist."37

The third and last subparagraph of paragraph 11.8 provides, in accordance
with the rule in Art. 5 of the Fourth Convention, that in case of doubt, a
captive is entitled to "prisoner-of-war treatment until a competent tribunal
convened by the captor determines the status to which that individual is
properly entitled."

While the "competent tribunal" is expected to determine a person's
entitlement to prisoner-of-war status, it will usually have to do so on the
basis of a finding concerning that person's combatant status. In this respect,
subparagraph 12.7.1, Illegal Combatants, is of interest. It provides that
"Persons who take part in combat operations without distinguishing
themselves clearly from the civilian population during battle are illegal
combatants and are subject to punishment upon capture." Then, referring
to the above rule on determination of status, it asserts that if a competent
tribunal finds them to be "illegal combatants," they "may be denied prisoner-
of-war status and be tried and punished for falsely claiming noncombatant

Kalshoven 321

status during combat." This is followed by the somewhat reassuring
conclusion that: "It is the policy of the United States, however, to accord
illegal combatants prisoner-of-war status if they were carrying their arms
openly at the time of capture."

All of this can hardly go without a few words in comment. While the
closing part of the first sentence is doubtless correct, the assertion that such
persons are "illegal combatants" is, to say the least, highly controversial. As
the modern law stands, a person either is a member of the armed forces and,
hence, a "combatant," or he does not belong to an armed force and, hence,
is a "civilian." For this, it is immaterial whether the person in question, while
engaged in combat activities, has distinguished himself from the civilian
population. If he failed to do so, he is liable to be punished. In other words,
the better view is that a category of "illegal combatants" simply does not
exist.

As regards the general rule of distinction, the "new law" of Art. 44 (3)
and (4) of Protocol I admits one exception. It concerns the armed combatant
who finds himself in a situation where, "owing to the nature of the hostilities"
he cannot properly distinguish himself from the civilian population while
"engaged in an attack or in a military operation preparatory to an attack."
If this man then fails to meet even the minimum requirement of carrying
his arms openly, (a) during a military engagement and (b) "during such time
as he is visible to the adversary while he is engaged in a military deployment
preceding the launching of an attack in which he is to participate," he forfeits
"his right to be a prisoner of war, but he shall, nevertheless, be given
protections equivalent in all respects to those accorded to prisoners of war
by the Third Convention and by this Protocol."

This exception to the principle of distinction is among the points most
strongly objected to by the United States.38 To some extent, the quoted phrases
of subparagraph 12.7.1 reflect these objections, in that they disqualify as
"illegal combatants" all those who take part in combat operations without
proper distinction. At the same time, one senses a reluctant (or audacious?)
attempt to meet the "new law" half-way in the closing sentence, where it
is declared to be U.S. policy to accord prisoner-of-war status (not merely
treatment) even to persons who have been found to be "illegal combatants"
- this on the condition that they were carrying arms openly at the time of
capture, rather than during the periods of activity and visibility indicated
above. This is surprising, because the moment of capture may occur days after
the aforesaid combat activities. Perhaps the sentence is intended to mean
exactly the same as the rule in Art. 44 (4), the assumption being that capture
will take place in the course of the combat activities.

As for the treatment of prisoners of war, it may suffice to note that while
this is dealt with in minute detail in the Fourth Convention, the Handbook
obviously does not repeat all of this. Paragraph 11.8 states the principle that

322 Law of Naval Operations

they "must be treated humanely and protected against violence, intimidation,
insult, and public curiosity," as well as the main rules on interrogation,
including the prohibition of "[tjorture, threats, or other coercive acts/' After
some basic facts about "trial and punishment," "labor," and "escape"
(subparagraphs 11.8.1 to 11.8.3), subparagraph 11.8.4 lays down some sensible
rules for the "Temporary Detention of Prisoners of War, Civilian Internees,
and Other Detained Persons Aboard Naval Vessels." None of this needs
special comment.

War Correspondents and Other Persons Accompanying the Armed Forces

While section III of this essay dealt with civilians as members of very broad
categories (the entire civilian population, or large segments, such as
inhabitants of occupied territory), a totally different approach consists in
singling out specified classes of civilians for special protection. A case in point
is the war correspondent, mentioned in paragraph 5.3 of the Handbook. He
belongs, in the terms of Art. 4 A (4) of the Third Convention, to the "[pjersons
who accompany the armed forces without actually being members thereof."
As distinct from the information officer (who is a member of the armed
forces), the war correspondent, although officially accredited with the armed
forces, is a civilian and must in principle be treated as such. Yet his work
exposes him to the risk of falling into enemy hands.

Accordingly, it was provided in Art. 13 of the Hague Regulations that in
case this happened and if the enemy considered it "expedient to detain" war
correspondents they were then "entitled to be treated as prisoners of war,
provided they [were] in possession of a certificate from the military
authorities of the army which they were accompanying." Art. 81 of the 1929
Prisoners-of-War Convention used more or less the same language. The most
important innovation was that the requirement of a certificate had been
replaced by a requirement of authorization from the same military authorities.
Art. 4 A (4) of the present Third Convention differs from the 1929 text in
this one respect that the text no longer refers to the expediency of detaining
the persons in question. This does not, however, materially affect the
situation; they are and remain civilians and the enemy will still be fully entitled
to let them go if he so prefers.

The rule of Art. 4 A (4) applies not only to war correspondents but likewise
to all "[pjersons who accompany the armed forces without actually being
members thereof." The Article gives as further examples: "civilian members
of military aircraft crews, . . . supply contractors, members of labour units
or of services responsible for the welfare of the armed forces." As with the
war correspondents, a condition for prisoner-of-war status of all these groups
is "that they have received authorization from the armed forces which they
accompany, who shall provide them for that purpose with an identity card
similar to the annexed model." And once again, they all are and remain

Kalshoven 323

civilians, even though the enemy might think fit to detain them temporarily
or, if he so prefers, for the duration of the armed conflict.

In the Handbook, the second subparagraph of paragraph 11.8 refers in passing
to the general category of "civilians accompanying the armed forces."

Journalists on Dangerous Missions

In recent years, a great deal of attention has been given to the risks run
by journalists who report on an ongoing armed conflict without being
accredited as war correspondents with the armed forces of one of the parties.
The result is Art. 79 of Protocol I, on "measures of protection for journalists."
The Article aims to provide a modicum of protection to journalists who are
"engaged in dangerous professional missions in areas of armed conflict."
Obviously, such journalists often put their lives at risk in their news-gathering
activities. So long as they roam freely through an area of actual combat, the
law can do little more than remind the belligerent Parties, as Art. 79 does,
that they are civilians and thus are entitled to "general protection" (the
Article states erroneously that they "shall be considered as" civilians).39

While, as explained above, the officially accredited war correspondent who
is captured and detained by the enemy is entitled to treatment as a prisoner
of war despite his status as a civilian, this rule does not apply to other
journalists. Art. 79 of Protocol I does not modify the situation; it merely makes
clear that even in this eventuality, the "journalist engaged in a dangerous
professional mission in an area of armed conflict" is and should be treated
as a civilian.

The "journalists on dangerous missions" have not found a place in the
Handbook.

Crew Members of Merchant Marine and Civil Aircraft

By virtue of Art. 4 A (5) of the Third Convention, and for similar reasons
as war correspondents, the "[mjembers of crews, including masters, pilots
and apprentices, of the merchant marine and the crews of civil aircraft"
qualify as prisoners of war when detained by the enemy. This rule, although
not mentioned in Chapter 11, is duly reflected in Chapter 8, Naval Targeting,
notably in subparagraph 8.2.2.1.

Protective Signs and Symbols and Other Means of Identification

Paragraph 11.10, Protective Signs and Symbols, sums up the main rules on
use of protective means of identification. With respect to the use Israel makes
of the Red Star of David, instead of the red cross or red crescent as the two
internationally accepted and commonly used symbols, subparagraph 11.10.1
states that the United States "has not agreed that it is a protective symbol."
While this is indubitably correct, perhaps even more important is that the
other 160-odd states of the world equally, and quite emphatically, refuse to

324 Law of Naval Operations

include it amongst the recognized protective symbols. A U.S. agreement to
recognize the Red Star of David as such could not alter this fact and, with
that, the state of the law.

The paragraph provides a remarkably complete list of protective symbols.
It includes, "for informational purposes only," two symbols established by
Protocol I: one for the protection of dams, dikes and nuclear power plants,
and the other protecting civil defense facilities and personnel. Curiously, it
also mentions, as "of special interest to naval officers," the sign established
by Hague Convention IX of 1907 and, according to the letter of Art. 5,
designed to be used by the inhabitants of towns, etc. open to naval
bombardment, to "indicate" "sacred edifices, buildings used for artistic,
scientific or charitable purposes, historic monuments, hospitals, and places
where the sick or wounded are collected." The "visible signs" prescribed
in Art. 5 and consisting of "large, stiff rectangular panels divided into two
colored triangular portions, the upper portion black, the lower portion
white," can hardly be regarded as well-known. They may even be said to
have fallen into desuetude.40

In striking contrast to express reference to these obsolete signs is the total
silence on the rules concerning the distinctive marking of hospital ships. In
effect, the only reference to these ships is in paragraph 8.2.3, where they are
listed among the "enemy vessels and aircraft exempt from capture or
destruction." This is all the more astounding as hospital ships are a common
feature of naval warfare and as, both during and after the Diplomatic
Conference of 1974-1977, much has been said and done about the improved
identification of such vessels, also by other than visual means.

V. Conclusions

A good part of the commentary in the preceding sections deals with civilians
and the civilian population, notably on land. This is a consequence not of
a predilection on the part of the present commentator but, rather, of the
organization and contents of Chapter 11, that puts these people in a frontline
position - in more than one respect. It should be stated straightaway that,
even though much of a commendable nature was found in the relevant parts
of Chapter 11, its overall impression as regards the protection of the civilian
population was not entirely satisfactory.

The most important point is perhaps a question of "turn of mind. " Civilians
are not just "noncombatant persons;" they constitute a human society and,
in the event of an international armed conflict, the enemy society. It is first
and foremost in their societal existence that they must be respected and
protected. It is a trite observation that in the practice of contemporary armed
conflicts, members of the civilian population are far more likely to fall victim

Kalshoven 325

to unjustifiable acts of war than to justifiable ones. Military manuals should
serve to curb this tendency rather than encourage it.

More specifically, the present commentator ventures to suggest that the
paragraphs dealing with the distinction between civilians and combatants and
the fate of civilians taking a direct part in hostilities be rephrased and brought
more in line with the humanitarian spirit of the modern law of war. The
principle that the civilian population be spared as much as possible, now
hidden in a corner of Chapter 8, should be given a more prominent place,
preferably in Chapter 11.

Always in the context of protection of the civilian population, the express
claim of a right of reprisal is deeply regretted.

It was stated at the outset of section II of this essay that the term
"noncombatant" as used in the Handbook does not represent a simple notion
at all. The discussion in sections III and IV may have made clear that the
phrase is not just deceptively simple; it can hardly be regarded as adequate
to cover the great variety of persons who at a given moment, and for one
reason or another, are not actively engaged in the conduct of military
operations. They range from the "innocent civilian" whose only hope is to
remain unaffected by the hostilities, through the journalist who out of
professional curiosity seeks out the danger areas, the military doctor who by
profession and probably out of idealism will often have to confront the same
types of danger, the wounded soldier who for the time being is incapacitated
by his wounds, to the fighter pilot who has abandoned his disabled aircraft
and parachutes to his own territory where he may hope soon to resume his
combatant handiwork.

This being the case, the question arises whether the treatment of all these
widely different categories of persons in one chapter is really justified. The
present commentator entertains serious doubts in this respect.

Perhaps the point where these doubts become most poignant is with regard
to paragraph 11.2, purporting to lay down a series of general principles
applicable to all "noncombatant persons" without exception. Without going
once again into the details of law relating to specified categories of persons,
it may simply be stated here that unmodified application of the generalities
of paragraph 11.2 to all of these categories may result in serious encroachments
of the law.

There remains the question of the scope of Chapter 11, and of Part II of
the Handbook in general. As set forth in the second section of the present
comments, Part II is apparently designed for global application, on land, at
sea, and in the air. This raises the tremendous difficulty of condensing into
fairly brief paragraphs a great mass of legal provisions of varying age. While
one may admire in principle the manner in which the authors of the Handbook
have performed this task, some surprising features remain to be noted.

326 Law of Naval Operations

To this commentator, the most surprising aspect is the scant attention given
in Part II to hospital ships. In our day and age, one would hardly expect an
express reference to Art. 28 of the Second Convention, providing that
'[sjhould fighting occur on board a warship, the sick-bays shall be respected
and spared as far as possible.,, In contrast, the hospital ship is an extremely
useful and important element in present-day naval operations, and it deserved
a more prominent place in the Handbook.

In more general terms, a somewhat more extensive treatment of the rules
relating to the wounded, sick, and shipwrecked would appear no exaggerated
luxury in a "Commander's Handbook on the Law of Naval Operations.,, As
the text stands, and with all due respect for the remarkable achievement it
represents, it suffers from a certain imbalance between the commendable
attention given to civilians and other "noncombatant persons" on land, and
a decidedly less extensive and intensive attention to specific problems of
protection of "noncombatant persons" at sea.

Notes

* Professor of International Humanitarian Law in the University of Leiden (Netherlands).

1 . Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian
Law Applicable in Armed Conflicts, Geneva 1974-1977, (Bern: Federal Political Department, 1978) v. I, part
1, p. 12. [hereafter cited as Official Records].

2. On 26 June 1987, the Government of the Netherlands deposited its instruments of ratification of
the two Protocols, with annexed declarations of understanding and a declaration accepting the competence
of the International Fact-Finding Commission provided for by Art. 90 of Protocol I, thus becoming the
68th State Party to Protocol I and the 62nd to Protocol II, and the 10th State to make the declaration
under Art. 90 of Protocol I; see Revue intemationale de las Croix-Rouge, 1987, p. 444 (English ed. no. 259,
1987, p. 425).

3. Letter of Transmittal from President Ronald Reagan, PROTOCOL II ADDITIONAL TO THE
1949 GENEVA CONVENTIONS AND RELATING TO THE PROTECTION OF VICTIMS OF
NONINTERNATIONAL ARMED CONFLICTS, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III
(1987), reprinted in American Journal of International Law, October 1987, p. 910; see also Hans-Peter Gasser,
"An Appeal for Ratification by the United States", American Journal of International Law, October 1987,
p. 912.

4. Hereafter, in addition to the official sources, the reader is directed to a compilation of international
agreements by Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts, (Alphen aan den Rijn, The
Netherlands: Sijthoff and Nordhoff, 1981) [hereafter cited as Schindler and Toman].

5. The exception is Article 3 of the Regulations on land warfare annexed to the Hague Convention
(IV) of 18 October 1907; see infra note 10.

6. The Geneva Convention of 22 August 1864 on the relief of the wounded in the field (1 Bevans
7) was superseded by the Geneva Convention of 6 July 1906 (35 Stat. 1885), which was replaced by the
Geneva Convention of 27 July 1929 (47 Stat. 2074) and this, in turn, by the Geneva Convention (I) of
12 August 1949 (6 UST 3114) [hereafter cited as Geneva I]; Schindler and Toman, supra note 4 at pp.
213, 233, 257, 305.

7. The Hague Convention (III) of 29 July 1899 adapting the Geneva Convention of 1864 to maritime
warfare (32 Stat. 1827) was replaced by the Hague Convention (X) of 18 October 1907 (36 Stat. 2371)
which, in turn, was replaced by the Geneva Convention (II) of 12 August 1949 (6 UST 3217) [hereafter
cited as Geneva II]; Schindler and Toman, supra note 4 at pp. 221, 245, 333.

8. The Geneva Convention of 27 July 1929 on the treatment of prisoners of war (47 Stat. 2021) was
replaced by the Geneva Convention (III) of 12 August 1949 (6 UST 3316) [hereafter cited as Geneva III];
Schindler and Toman, supra note 4 at pp. 271, 355.

9. The Geneva Convention (IV) of 12 August 1949 on protecting civilians (6 UST 3516) has not been
replaced [hereafter cited as Geneva IV]; Schindler and Toman, supra note 4 at p. 427.

Kalshoven 327

10. The Hague Convention (II) of 29 July 1899, with annexed Regulations on land warfare (32 Stat.
1803) was replaced as between contracting Powers by the Hague Convention (IV) of 18 October 1907,
with annexed Regulations (36 Stat. 2277) [hereafter cited as Hague IV Regulations]; Schindler and Toman,
supra note 4 at p. 57.

The Second Hague Peace Conference (1907) produced a series of conventions relating to matters
of naval warfare: Convention VI - the status of enemy merchant vessels at the outbreak of hostilities;
Convention VII - the conversion of merchant vessels into warships; Convention IX - bombardment by
naval forces of land targets (36 Stat. 2351) [hereafter cited as Hague IX]; Convention XI - restrictions
on exercising the right of capture (36 Stat. 2396). Schindler and Toman, supra note 4 at pp. 703, 709, 723,
731.

11. The quoted phrase is in Art. 43, paragraph 2 of Protocol I. Official Records, supra note 1 at p. 143;
Schindler and Toman, supra note 4 at p. 577.

12. For a modern, thoroughly researched discussion of the question of the law applicable in mixed
conflicts, see M. Hess, Die Anwendbarkeit des humanitaren Volkerrechts, insbesondere in gemischten Konflikten
(Zurich, 1985).

13. Rules of this type are found in Articles 25-27 of the Hague IV Regulations: prohibiting the "attack
or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended;"
recognizing a duty of the "officer in command of an attacking force . . . before commencing a
bombardment, except in cases of assault, [to] do all in his power to warn the authorities;" and also a
duty to take "all necessary steps . . . to spare, as far as possible, buildings dedicated to religion, art, science,
or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected,
provided they are not being used at the time for military purposes. " 36 Stat. 2302-03; Schindler and Toman,
supra note 4 at p. 77-78.

With respect to naval bombardments, Article 2 of Hague IX lists targets that, although located
within undefended ports, towns, villages, dwellings, or buildings, are excluded from the general prohibition
and may be bombarded as military objectives: "military works, military or naval establishments, depots
of arms or war materiel, workshops or plant which could be utilized for the needs of the hostile fleet or
army, and the ships of war in the harbour." 36 Stat. 2363; Schindler and Toman supra note 4 at p. 724.

14. Rules of this type are found in Section III of the Hague IV Regulations (Military Authority over
the Territory of the Hostile State). 36 Stat. 2306; Schindler and Toman, supra note 4 at p. 82.

15. Of special importance is Art. 23 of Geneva IV. It provides for "the free passage of all consignments
of medical and hospital stores and objects necessary for religious worship intended only for civilians"
of the adversary, as well as of "all consignments of essential foodstuffs, clothing and tonics intended for
children under fifteen, expectant mothers and maternity cases." 6 UST 3532-34; Schindler and Toman,
supra, note 4 at 440-41. See infra text under the subsection entitled "Protection under the Fourth
Convention."

16. The full text of Resolution XXVIII, protecting civilians from indiscriminate warfare, appears in
Schindler and Toman, supra note 4 at 195. In relevant part the resolution states that "indiscriminate warfare
constitutes a danger to the civilian population and the future civilization," and

solemnly declares that all Governments and other authorities responsible for action in armed
conflicts should conform at least to the following principles:

- that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;

- that it is prohibited to launch attacks against the civilian populations as such;

- that distinction must be made at all times between persons taking part in the hostilities and
members of the civilian population to the effect that the latter be spared as much as possible;

- that the general principles of the Law of War apply to nuclear and similar weapons.

17. United Nations, General Assembly, Official Records: Resolutions Adopted by the General Assembly During
its Twenty-Third Session, 24 September- 21 December 1968. Resolution 2444, A/7218 (New York: 1969) pp.
50-51.

18. Frits Kalshoven, The Law of Warfare, A Summary of its Recent History and Trends in Development (Leiden:
Sijthoff, 1973), p. 44.

19. Article 48 of Protocol I lays down the basic rule: "In order to ensure respect for and protection
of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between
the civilian population and combatants and between civilian objects and military objectives and accordingly
shall direct their operations only against military objectives." Official Records, supra note 1 at 146; Schindler
and Toman, supra note 4 at p. 580. Articles 51 and 52 provide detailed rules elaborating the prohibition
to attack the civilian population or civilian objects.

Subsection (1) of Art. 57 states the second principle: "In the conduct of military operations, constant
care shall be taken to spare the civilian population, civilians and civilian objects." Official Records, supra

328 Law of Naval Operations

note 1 at p. 150; Schindler and Toman, supra note 4 at 584-85. Subsections (2)-(5) elaborate this principle
into a set of detailed provisions.

Protocol II, on the one hand, reaffirms in Art. 13 the principle of general protection and the
prohibition against making the civilian population the object of attack. On the other hand, it provides
no definition of military objectives (and contains only one reference to this concept (in Art. 15 on the
protection of works and installations containing dangerous forces)). Nor does it expressly refer to the
principle of distinction.

20. Revue intemationale de la Croix-Rouge, 1986, p. 115 (English ed. no. 251, 1986, p. 114). On the matter
of wartime reprisals in general see Frits Kalshoven, Belligerent Reprisals (Leyden: Sijthoff, 1971). On the
negotiations in the Diplomatic Conference of 1974-1977, an article by the same author "Reprisals in the
CDDH" in Robert J. Akkerman et. al., eds., Declarations on Principles, A Quest for Universal Peace (Leyden:
Sijthoff, 1977) pp. 195-216; see also Stanislaw E. Nahlik, "Belligerent Reprisals as Seen in the Light of
the Diplomatic Conference on Humanitarian Law, Geneva 1974-1977", Law and Contemporary Problems,
no. 2, 1978, p. 36.

21. Article 51 (7) provides that:

The presence or movements of the civilian population or individual civilians shall not be used to
render certain points or areas immune from military operations, in particular in attempts to shield
military objectives from attacks or to shield, favour or impede military operations. The Parties
to the conflict shall not direct the movement of the civilian population or individual civilians in
order to attempt to shield military objectives from attacks or to shield military operations. [Official
Records, supra note 1 at p. 147; Schindler and Toman, supra note 4 at pp. 581-82.]

22. The following measures are listed:

(a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian
population, individual civilians and civilian objects under their control from the vicinity of military
objectives;

(b) avoid locating military objectives within or near densely populated areas;

(c) take the other necessary precautions to protect the civilian population, individual civilians and
civilian objects under their control against the dangers resulting from military operations. [Official
Records, supra note 1 at p. 151: Schindler and Toman, supra note 4 at p. 585.]

23. Article 51 (8) reads: "Any violation of these prohibitions shall not release the Parties to the conflict
from their legal obligations with respect to the civilian population and civilians, including the obligation
to take the precautionary measures provided for in Article 57." Official Records, supra note 1 at p. 147;
Schindler and Toman, supra note 4 at p. 582.

24. Article 57 (2) (a) provides that those who plan or decide upon an attack shall:

(ii) take all feasible precautions in the choice of means and methods of attack with a view to
avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and
damage to civilian objects;

(iii) refrain from deciding to launch any attack which 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. [Official
Records, supra note 1 at p. 150; Schindler and Toman, supra note 4 at pp. 584-85.]

25. As the late Professor Waldemar Solf wrote in Michael Bothe et. al., New Rules for Victims of Armed
Conflicts, Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague:
Martinus Nijhoff, 1982), p. 303:

[Civilians providing only indirect support to the armed forces, such as workers in the defense
plants or those engaged in distribution or storage of military supplies in rear areas, do not pose
an immediate threat to the adversary and therefore would not be subject to deliberate individual
attack. It is obvious, however, that they assume the risk of incidental injury as a result of attacks
against their places of work or transport.

26. Subparagraphs (1) and (2) of Article 4(A) appear infra in Section IV on "other 'noncombatant
persons;'" see infra in subsection entitled, "Prisoners of War." Subparagraphs (3) and (6) read as follows:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the
following categories, who have fallen into the power of the enemy:

Kalshoven 329

(3) Members of regular armed forces who profess allegiance to a government or an authority not
recognized by the Detaining Power.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take
up arms to resist the invading forces, without having had time to form themselves into regular
armed units, provided they carry arms openly and respect the laws and customs of war.

Geneva III, 6 UST 3320-22; Schindler and Toman, supra note 4 at p. 362-63. Article 43 of Protocol I reads
as follows:

1. The armed forces of a Party to a conflict consist of 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.

2. Members of the armed forces of a Party to the conflict (other than medical personnel and
chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have
the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency
into its armed forces it shall so notify the other Parties to the conflict. [Official Records, supra note
1 at p. 143; Schindler and Toman, supra note 4 at 577.]

27 M. Bothe et. al., supra note 25 at p. 302.

28. International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to
the Geneva Conventions of 12 August 1949, (Geneva: Martinus Nijhoff, 1987), p. 619.

29. The quoted text is from Art. 4(A) 6 of Geneva III. See supra note 26. This does not materially differ
from the earlier text of Art. 2 of the Hague IV Regulations. 36 Stat. 2296; Schindler and Toman, supra
note 4, at p. 69.

30. See supra note 15.

31. Protected persons are "those who, at a given moment and in any manner whatsoever, find themselves,
in case of a conflict or occupation in the hands of a Party to the conflict or Occupying Power of which
they are not nationals," but excludes, among others, persons who are protected under Geneva I, II and
III. 6 UST 3520; Schindler and Toman, supra note 4 at pp. 434-35.

32. Article 41(2) provides that a person is hors de combat if:

(a) he is in the power of an adverse Party;

(b) he clearly expresses an intention to surrender; or

(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and
therefore is incapable of defending himself; provided that in any of these cases he abstains from
any hostile act and does not attempt to escape. [Official Records, supra note 1 at p. 142; Schindler
and Toman, supra note 4 at p. 576.]

33. While no treaty prior to Protocol I provides for the protection of persons descending from disabled
aircraft, a rule to this effect was included in Art. 20 of the Rules of Air Warfare, drafted by a commission
of jurists at The Hague, December 1922 - February 1923, that convened at the instigation of the
Washington Conference of 1922 on the Limitation of Armaments. See Schindler and Toman, supra note
4 at p. 147 for text.

34. The amendment (CDDH/413), when put to the vote in the plenary meeting of 25 May 1977, obtained
29 votes in favour, 27 votes against and 34 abstentions. Official Records, supra note 1, v. VI, p. 93 at 106.

35. The text of Art. 43(1) reads as follows:

The armed forces of a Party to a conflict consist of 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. [Official Records, supra
note 1 at p. 143; Schindler and Toman, supra note 4 at p. 577.]

36. Article 44(3) is among the most hotly contested provisions of Protocol I. See infra text accompanying
note 38.

37. Given the express reference in Section 11.8 to "guerrillas" and "partisans," one would not have
been surprised equally to find a reference to President Reagan's preferred "freedom fighters," better known
as the contras.

330 Law of Naval Operations

38. See supra note 36.

39. With respect to the status and protection of journalists see International Committee of the Red
Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva:
Martinus Nijhoff, 1987), pp. 917-24.

40. In Article 1012.1 of The Code of International Armed Conflict (New York: Oceana, 1986), v. 2, p. 652,
H.S. Levie mentions the signs of the 1907 Hague (IX) Convention, but leaves no doubt that they are for
all practical purposes obsolete.

Levie 331

Chapter XI

Nuclear, Chemical, and
Biological Weapons

by
Howard S. Levie*

Introduction

Chapter 10 of The Commander's Handbook on the Law of Naval Operations1
is concerned with nuclear, chemical, and biological weapons. While
the extent that the use of these weapons, other than nuclear, will impinge
on naval warfare (except in connection with naval surface and naval air
bombardment of land objectives, riverine operations, etc.) is probably fairly
limited, the draftsmen of the Handbook have deemed it appropriate to include
a full chapter on these subjects - and rightly so. In addition to discussing the
evolution and present status of the applicable rules of the international law
of war with respect to each of those categories of weapons, this commentary
will discuss the extent to which those rules affect naval warfare qua naval
warfare and the extent to which they affect the operations of naval units
against objectives on land.

Nuclear Weapons

When the first atom bomb exploded over Hiroshima on August 6, 1945, it
began a new (and perilous) era for the planet Earth. It also began a controversy
which has yet to be resolved to the satisfaction of a great many people.

Not unexpectedly, sometime after the facts with respect to the nature of
the atom bomb and the extent of the casualties and damage inflicted at
Hiroshima and Nagasaki became generally known, an issue was raised as to
the legality or illegality of the use of the atom bomb - and, subsequently,
the same issue was, of course, raised as to the use of its far more powerful
and devastating successors. In the discussion which follows it must be borne
in mind that while there are a number of conventions placing various types
of restrictions on nuclear weapons,2 there is no convention which specifically
outlaws their use.3 In light of the complete failure of all of the practically
endless efforts undertaken since 1945 to accomplish this result, to argue that

332 Law of Naval Operations

the use of such weapons is prohibited by inference derived from the provisions
of international agreements dating from 1868, from 1899, or from 1907,
appears to be the equivalent of tilting at windmills. In view of the foregoing
this writer concurs with the statement contained in the Handbook to the effect
that, "There are no rules of customary or conventional international law
prohibiting nations from employing nuclear weapons in armed conflict/ '4
Nevertheless, a brief analysis of the arguments pro and con appears to be
warranted.

The 1868 St. Petersburg Declaration Renouncing the Use, in Time of War,
of Explosive Projectiles Under 400 Grammes Weight5 contained a number
of humanitarian preambular clauses:

That the only legitimate object which States should endeavour to accomplish during
war is to weaken the military forces of the enemy;

That for this purpose it is sufficient to disable the greatest possible number of men;

That this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable;

That the employment of such arms would, therefore be contrary to the laws of
humanity.

During the course of the drafting of what became the 1899 Hague Convention
(II) With Respect to the Laws and Customs of War on Land6 and its annexed
Regulations, several provisions were included which have often been cited as
affecting the subject under discussion. These provisions were:

Art. 22. The right of belligerents to adopt means of injuring the enemy are not
unlimited.

Art. 23. In addition to the prohibitions provided by special Conventions, it is especially
forbidden:

(a) To employ poison or poisoned weapons; . . .

(e) To employ arms, projectiles, or material of a nature to cause superfluous
injury; . . .

The cognate provisions of the 1907 Hague Convention (IV) Respecting the
Laws and Customs of War on Land and its annexed Regulations are essentially
identical with those quoted above.7

Realizing, however, that these and the other provisions that were to be
included in the Regulations could not possibly cover all of the contingencies
that might arise during the course of a war, the Russian representative at
the 1899 Peace Conference, Martens, a noted international lawyer, proposed,
and the Conference agreed, that a paragraph be included in the preamble
which would read:

Levie 333

Until a more complete code of the laws of war is issued, the High Contracting Parties
think it right to declare that in cases not included in the Regulations adopted by them,
populations and belligerents remain under the protection and empire of the principles
of international law, as they result from the usages established between civilized nations,
from the laws of humanity, and the requirements of the public conscience.8

Assuming that these preambular provisions are law-making in nature, a
number of questions arise. Did the use of the atomic bombs in 1945 weaken
the military forces of the enemy? Did it uselessly aggravate the sufferings
of disabled men, or render their death inevitable? Did it exceed the limits
which a belligerent may adopt as a means of injuring the enemy? Did it
constitute the use of "poison"? Did it represent the employment of a weapon
"calculated to cause unnecessary suffering "? Did it constitute a failure to give
the populations and belligerents "the protection and empire of the principles
of international law, as they result from the usages established between
civilized nations, from the laws of humanity, and the requirements of the
public conscience" to which they were entitled? And, most important, if one
or more of these questions is answered in the affirmative, does the particular
principle apply if the alternative would have resulted in a million American
military casualties and an even greater number of Japanese casualties, military
and civilian? In other words, was the principle of proportionality applicable?9
While all of those questions have been posed here with respect to Hiroshima
and Nagasaki, they will likewise have to be asked - and answered - before
any future use of nuclear weapons.

Literally hundreds of books and articles have been written on both sides
of the questions posed and it is doubtful that any proponent of either side
of the argument has been successful in convincing anyone who disagrees with
his position that it is correct and that the other person's position is incorrect.
The present writer does not propose to draw himself into that quagmire.
Suffice it to say that nuclear weapons are with us and at the present time
there does not appear to be any possibility that they will disappear, at least
in the foreseeable future. Under those circumstances we can only hope that
neither side will make the mistake of using them and thus bring an end to
civilization, and to life itself, on this planet.

There is, of course, an area of nuclear warfare in which navies would play
an important role. A preemptive first strike by one side might possibly
eliminate much of the other side's land-based nuclear deterrent force - but
it could not reach the deployed naval-based force, the submarines of which
are the ever-mobile carriers of nuclear ballistic missiles. Thus, this potential
naval retaliatory force, maintained by both parties involved in the eyeball-
to-eyeball confrontation which has more or less existed since shortly after
the end of World War II, is a major factor in the policy of deterrence.
Moreover, the strength and speed of these nuclear-powered and nuclear-
armed submarines are reputedly such that there are experts who believe that

334 Law of Naval Operations

they can only be destroyed by nuclear weapons, such as nuclear-armed depth
charges or nuclear-armed torpedoes. If such is the case, the use of these latter
nuclear weapons becomes almost inevitable as during a period of active
hostilities, whether we call it war or armed conflict, no nation and no navy
is going to permit enemy nuclear-powered submarines armed with nuclear
ballistic missiles to roam the seas unchallenged.

One problem which arises is whether successful conventional-weapons
attacks on nuclear-powered and nuclear-armed submarines (and surface
vessels) would adversely affect the waters of the oceans and the air of the
atmosphere. While the United States has lost two nuclear submarines with
no such adverse effects, this is far from conclusive as the two crews would
probably have shut down the nuclear reactors and any nuclear weapons aboard
the submarines would not have been armed; accordingly, the amount of
radioactivity released by each of those vessels would have been minimal. How
much environmental damage would be caused by the sinking of a nuclear-
armed and nuclear-powered submarine with its reactor in operation appears
to be a relative unknown. Moreover, should a war reach the nuclear stage,
it is a virtual certainty that any naval engagement would include the use of
nuclear weapons against the opposing enemy fleets. When this occurs the
extent of the contamination of the oceans and of the atmosphere is incalculable
as nuclear explosions would be taking place both in the atmosphere and in
the water and nuclear-powered ships would be sunk with their reactors in
operation.10 Of course, should a war reach the nuclear stage, such matters
would be a small, and comparatively unimportant, part of the overall picture.

The ballistic missiles carried by nuclear-powered submarines, referred to
above, would, of course, if used, be directed against objectives on land. It
is doubtful, but not inconceivable, that in a nuclear war a naval bombardment
of objectives on land might include nuclear-armed shells and missiles.
However, should a war reach that stage, the results of any such bombardment
would be miniscule compared to the results that could be expected from land-
based nuclear ballistic missiles, from the nuclear ballistic missiles released
from below the surface of the seas, and from the nuclear weapons dropped
from the air.

It is probably necessary to conclude that if and when an armed conflict
approaches the nuclear stage, law will play a very small role in determining
the actions of the belligerents.

Chemical Weapons

Chemical warfare agents have been defined as "chemical substances,
whether gaseous, liquid, or solid, which might be employed because of their
direct toxic effects on man, animals and plants."11

Levie 335

The earliest formal international attempt to prohibit the use of chemicals
in warfare occurred at the 1899 Hague Peace Conference which drafted and
adopted a Declaration stating, "The Contracting Parties agree to abstain from
the use of projectiles the sole object of which is the diffusion of asphyxiating
or deleterious gases."12 This Declaration was of unlimited duration. All of
the major European Powers, including France, Germany, Russia, and the
United Kingdom, signed and ratified it. The United States neither signed nor
ratified it.

The 1899 Declaration was in force during World War I. Despite this,
Germany used gas against the Russians in Poland in January 1915. The gas
was delivered by artillery shells but, because of the sub-zero weather, had
little effect and the incident passed almost unnoticed.13 The first major, and
well-documented, use of gas occurred in France, on April 22, 1915, when the
Germans opened containers of compressed chlorine, permitting a favoring
wind to blow the gas towards the Allied Ypres salient.14 The success of the
operation far exceeded expectations15 and before the war was brought to an
end more than three years later many other chemical weapons were being
used by both sides and were being delivered by artillery, mortars, projectors,
etc.16 The Treaty of Versailles, which legally terminated World War I as
between Germany and the Allies, contained the following provision:

Article 171

The use of asphyxiating, poisonous or other gases and all analogous liquids, materials
or devices being prohibited, their manufacture and importation are strictly forbidden
in Germany.

The same applies to materials specially intended for the manufacture, storage and
use of the said products or devices.17

The 1922 Washington Conference on the Limitation of Armaments,
consisting of representatives of France, Italy, Japan, the United Kingdom,
and the United States, drafted a treaty which was primarily concerned with
submarine warfare but which included the following provisions:

Art. 5. The use in war of asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices, having been justly condemned by the general opinion of
the civilized world and a prohibition of such use having been declared in treaties to
which a majority of the civilized Powers are parties,

The signatory Powers, to the end that this prohibition shall be universally accepted
as a part of international law binding alike the conscience and practice of nations, declare
their assent to such prohibition, agree to be bound thereby as between themselves and
invite all other civilized nations to adhere thereto.18

To become effective this treaty required the ratification of all of the
participants in the Conference. France refused to ratify it because of
objections to some of the provisions with respect to submarine warfare.

336 Law of Naval Operations

Accordingly, the treaty never entered into force. However, three years later
another conference, this one concerned with international trade in weapons
and ammunition, drafted the 1925 Geneva Protocol for the Prohibition of the
Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare.19 While much of its wording was taken almost verbatim
from the prior draftings, its importance warrants the setting forth of its
operative provisions in their entirety:

Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous
liquids, materials or devices, has been justly condemned by the general opinion of the
civilized world; and

Whereas the prohibition of such use has been declared in Treaties to which the
majority of Powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as a part of International
Law, binding alike the conscience and the practice of nations;

Declare:

That the High Contracting Parties, so far as they are not already Parties to Treaties
prohibiting such use, accept this prohibition, agree to extend this prohibition to the
use of bacteriological methods of warfare and agree to be bound as between themselves
according to the terms of this declaration.

Strange to relate, while the United States had ratified the Washington Treaty,
with its provision prohibiting the use of poisonous gases, just two years earlier,
and was the chief proponent of the 1925 Geneva Protocol, it did not ratify
the latter until 50 years later, in 1975!

Many of the states which have ratified the 1925 Geneva Protocol have
done so with a so-called "first use" reservation. Typical of those reservations
is that of the United Kingdom: "The said Protocol shall cease to be binding
on His Britannic Majesty toward any Power at enmity with him whose armed
forces, or the armed forces of whose allies, fail to respect the prohibitions
laid down in the Protocol. ',2° It does not appear that this "first use"
reservation has ever been invoked despite the not-infrequent use of the
prohibited gases. For example, Italy, a party to the Protocol (as was
Ethiopia), admittedly used poison gas in its 1935-1936 war with Ethiopia.
Japan, although a party to the 1899 Declaration, did not ratify the Protocol
until after World War II. On June 5, 1942, President Roosevelt warned the
Japanese against the use of poisonous gas.21 While at that time Japan denied
using such gas in China,22 it has never officially denied such use since the
end of the war. Egypt, a Party to the 1925 Protocol (as was the Yemen Arab
Republic), is alleged to have used gas in the civil war in Yemen. Iraq, also
a party to the Protocol (as is Iran), has been accused of using gas in its recent
war with Iran.23 In none of these cases is there evidence of retaliation in

Levie 337

kind, probably because the victim of the gas attack was not in possession
of a stock of chemical weapons.

During World War II Hitler on occasion considered the use of chemical
weapons against England. However, he apparently realized, or his military
advisers were able to convince him, that Germany's opponents were well able
to reply in kind and that, in the long run, the use of such weapons would
be self-defeating to Germany.24 On June 5, 1943, President Roosevelt warned
Germany that the use of chemical weapons by any Axis country against any
one of the United Nations would result in "swift retaliation in kind,"
specifying that the targets would be "munition centers, seaports, and other
military objectives throughout the whole extent of the territory of such Axis
country."25 With the possible exception of Japanese use in China, chemical
weapons were not used by any belligerent during World War II.26

The General Assembly of the United Nations has adopted a number of
resolutions on the subject of chemical warfare.27 A resolution adopted in 1968,
among other things, requested the Secretary-General to prepare, with the
assistance of experts, a report on chemical and bacteriological (biological)
weapons.28 This report, which was submitted to the General Assembly in 1969,
found that "because of the scale and intensity of the potential effects of their
use, they are considered as weapons of mass destruction.,,29 The report
contained the following statement:

The general conclusion of the report can thus be summed up in a few lines. Were
these weapons ever to be used on a large scale in war, no one could predict how enduring
the effects would be, and how they would affect the structure of society and the
environment in which we live.30

Upon the receipt of that report the General Assembly adopted a resolution
to the effect that the 1925 Geneva Protocol "embodies the generally
recognized rules of international law prohibiting the use in international
armed conflict of all biological and chemical methods of warfare."31 Of
course, this merely represented the political judgment of those nations which
voted in favor of the resolution.

The need to maintain a supply of chemical weapons for use in retaliation
against a violator of the provisions of the 1925 Geneva Protocol, or any other
"first user," has created the longtime problem of finding a safe method for
the disposition of overage gas, with leaky containers adding to the difficulties
of the possessor. One technical advance in this field, the so-called "binary"
gases, will considerably alleviate this problem. These gases consist of two
non-toxic chemicals which only become toxic when mixed, an action which
is accomplished while, for example, an artillery shell is in flight. A
representative of the Chemical Corps of the United States Army listed the
advantages of binary weapons as including "improved safety during

338 Law of Naval Operations

production, transportation and storage; no requirement for high-cost toxic
production facilities; and simplified low-cost demilitarization procedures."32

A number of problems have arisen with respect to the interpretation of
the 1925 Geneva Protocol. One such problem is whether it includes within
its prohibitions the use of smoke, sometimes a major weapon in naval warfare,
and the use of riot control agents, such as lachrymatories, or tear gas. The
argument against the use of smoke, that it at least temporarily incapacitates
due to a type of asphyxia, is weak and is not very frequently advanced.
Originally the British interpreted the provisions of the 1925 Geneva Protocol
as covering lachrymatories.33 However, deeming it an essential weapon for
use in Northern Ireland, in 1970 the British Government took the position
that "CS and other such gases" were not prohibited by the 1925 Geneva
Protocol.34 Practically all governments use lachrymatories domestically for
the suppression of such events as riots and other civil disturbances.
Nevertheless, the propriety of their use in armed conflict remains a matter
of dispute.

A further problem of interpretation is whether the Protocol includes within
its prohibitions the use of herbicides. This problem arose during World War
II when the question was raised as to whether it would be in accordance with
international law to use "crop-destroying chemicals" on the gardens being
grown by Japanese units located on by-passed islands of the Pacific. Although
the Judge Advocate General of the Army found no legal impediment to such
action,35 no action was taken, probably because it would have been a waste
of resources. During the hostilities in Vietnam herbicides were used
extensively, both for crop destruction and as a defoliant.36 When the issue
was raised in the Senate during the consideration by that body of the 1925
Geneva Protocol, the General Counsel of the Department of Defense arrived
at the same conclusion the Army had reached in 1945. 37 Nevertheless, as will
be noted below, the United States has renounced the first use of herbicides
except for certain extremely limited purposes.38

Another such problem of interpretation is whether incendiary weapons are
within the prohibitions of the Protocol. The United States has long taken
the position that there is no rule of international law prohibiting the use of
incendiary weapons.39 At a conference of experts convened in 1969 by the
International Committee of the Red Cross, some of the experts were of the
opinion that the use of incendiary weapons, and particularly napalm, was
prohibited by the 1925 Geneva Protocol because, by burning the oxygen, it
"causes a sort of asphyxia." Others took the position that incendiary weapons
were not prohibited but were subject to "discriminating" use. The ICRC
concluded that "more extensive studies should be made of the consequences
of incendiary weapons in order to reach a clear legal solution as to their
employment."40 The U.N. Report with respect to chemical and

Levie 339

bacteriological (biological) weapons, published that same year, contains the
following relevant statement:

We also recognize that there is a dividing line between chemical agents of warfare,
in the sense in which we use the terms, and incendiary substances, such as napalm and
smoke, which exercise their effects through fire, temporary deprivation of air or reduced
visibility. We regard the latter as weapons which are better classified with high
explosives than with the substances with which we are concerned. They are therefore
not dealt with further in this report.41

Studies were subsequently made by a group of experts appointed by the
Secretary-General of the United Nations, by the Stockholm Peace Research
Institute (SIPRI), and by the ICRC itself in 1973, in 1974, and in 1976; and
probably by other organizations and institutions. The U.N. experts found it
appropriate "to bring to the attention of the General Assembly the necessity
of working out measures for the prohibition of the use, production,
development and stockpiling of napalm and other incendiary weapons"42 —
a clear indication of their understanding that there was no such prohibition
then extant. The author of the SIPRI report stated that "there was never
any positive indication that the intention of the [1925] Geneva Protocol was
to prohibit incendiaries.,,43 The ICRC studies were inconclusive.44 Finally,
the subject was discussed by the Ad Hoc Committee on Conventional Weapons
of the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts45 and the
Diplomatic Conference adopted a resolution in which it recommended the
convening of a conference to draft agreements on certain conventional
weapons.46 Such a conference was held in 1980 and resulted in, among others,
a Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons.47
This Protocol does not prohibit the use of incendiaries; it merely places certain
restrictions on the manner in which they may be used. The sum total to be
derived from the foregoing survey is, of course, that incendiary weapons do
not come within the purview of the prohibitions of the 1925 Geneva Protocol
or, for that matter, of any other international agreement on the law of war.

The 1980 Protocol provides that it is prohibited "to make the civilian
population, individual civilians or civilian objects the object of attack by
incendiary weapons." (Of course, the law of war generally prohibits such
attacks by any weapon!) Such a prohibition, and the accompanying restrictions
on the use of air-delivered and other types of incendiary weapons intended
to implement that prohibition, would obviously have no effect on naval
engagements at sea. However, they would be applicable with respect to naval
bombardments of land targets, either by warships or by aircraft, and with
respect to the use of incendiaries by marines ashore.

Now let us see where the United States stands generally on the question
of chemical warfare. It has already been mentioned that the United States
did not ratify the 1899 Declaration and that the 1925 Geneva Protocol was

340 Law of Naval Operations

not ratified by it until 1975. During that 50-year interim period the position
of the United States with respect to chemical warfare was well summed up
in the predecessor to the Handbook, which contained the following statement:

The United States is not a party to any treaty now in force that prohibits or restricts
the use in warfare of poisonous or asphyxiating gases or of bacteriological weapons.
Although the use of such weapons frequently has been condemned by states, including
the United States, it remains doubtful that, in the absence of a specific restriction established by
treaty a state legally is prohibited at present from resorting to their use. However, it is clear that
the use of poisonous gas or bacteriological weapons may be considered justified against
an enemy who first resorts to the use of these weapons. [Footnotes omitted}48

The United States has almost uniformly taken the position that there is no
customary law prohibiting the use of these weapons.49 During the hostilities
in Vietnam the United States used two controversial types of chemical
weapons - tear gas and herbicides.50 Tear gas was originally used for
humanitarian purposes51 but its utility as a non-lethal gas quickly became
apparent and it was widely used for a number of purposes.52 This created
considerable discussion both in the United States and elsewhere in the world
with the result that on November 25, 1969, President Nixon issued a statement
in which he said that he was resubmitting the 1925 Geneva Protocol to the
Senate for its advice and consent to ratification and that the United States
"Reaffirms its oft-repeated renunciation of the first use of lethal chemical
weapons" and "Extends this renunciation to the first use of incapacitating
chemicals.'*53

After extensive hearings and further commitments by the Executive
Branch, the Senate gave its advice and consent to the ratification of the 1925
Geneva Protocol54 and President Ford ratified it on January 22, 1975. The
ratification was deposited, and the Protocol became binding on the United
States, on April 10, 1975. On April 8, 1975, President Ford signed Executive
Order 11,850 which provides:

The United States renounces, as a matter of national policy, first use of herbicides
in war except use, under regulations applicable to their domestic use, for control of
vegetation within U.S. bases and installations or around their immediate defensive
perimeters, and first use of riot control agents in war except in defensive military modes
to save lives such as:

(a) Use of riot control agents in riot control situations in areas under direct and distinct
U.S. military control, to include controlling rioting prisoners of war.

(b) Use of riot control agents in situations in which civilians are used to mask or
screen attacks and civilian casualties can be reduced or avoided.

(c) Use of riot control agents in rescue missions in remotely isolated areas, of downed
aircrews and passengers, and escaping prisoners.

Levie 341

(d) Use of riot control agents in rear echelon areas outside the zone of immediate
combat to protect convoys from civil disturbances, terrorists and paramilitary
organizations.55

Fortunately, since the issuance of that Executive Order, the United States
has not been involved in any armed conflict which would make its application
appropriate. However, the Handbook, issued in 1987, further illuminates the
United States position with respect to the use of chemical weapons. It will
be recalled that its predecessor, The Law of Naval Warfare, stated that it would
be difficult to hold that use of such weapons was prohibited by customary
international law.56 In a complete turnabout, the Handbook says:

The United States considers the prohibition against first use of lethal and
incapacitating chemical weapons to be part of customary international law and,
therefore, binding on all nations whether or not they are parties to the 1925 Gas
Protocol.57

It will be interesting to record the reactions to this position of states which
are still not parties to the 1925 Protocol and which have not committed
themselves in the General Assembly of the United Nations.58

As we shall see, there is in existence a Convention which supplements the
1925 Geneva Protocol by prohibiting the development, production, and
stockpiling of biological agents and their delivery weapons.59 Although
separate proposals made in 1962 by both the Soviet Union and the United
States included similar provisions with respect to chemical weapons,60 both
the United Kingdom and the United States later insisted on separating
chemical weapons from the others. As a result, despite fairly continuous
efforts, the only restriction on chemical weapons at the present time is the
1925 Geneva Protocol which prohibits use only.

In 1984 then Vice President Bush went to Geneva to attend a meeting of
the Conference on Disarmament (CD) and to table a United States proposal
which sought to accomplish for chemical weapons what had already been
accomplished for biological weapons.61 It has since been under consideration
in the CD, which subsequently drafted and studied a 1987 revision.62 In January
1989 a conference hosted by the French Government in Paris adopted a
resolution calling for reaffirmation of the 1925 Geneva Protocol and stressed
"the necessity of concluding, at an early date, a convention on the prohibition
of the development, production, stockpiling and use of all chemical weapons
and on their destruction. "63 In July 1989 the United States and the Soviet Union
reached agreement on the key remaining issues64 and currently (December
1989) the CD is working on a May 1989 version65 with changes made up to
15 October 1989.66 In view of the insistence of the United States on
"any where-any time" inspections, it is of interest to know that the Soviet
Union has agreed to permit "surprise inspections' ' and that it is now the
United States which has a problem in this respect in view of the Fourth

342 Law of Naval Operations

Amendment to the Constitution, prohibiting "unreasonable searches and
seizures."67

The wheels of diplomacy grind slowly (witness the years of discussion of
the 1982 U.N. Law of the Sea Convention and of the 1977 Protocols68), so
there is still the possibility that in the not-too-distant future there will be
agreement on a Convention which will prohibit the development, production,
and stockpiling of chemical agents and their delivery systems, as well as
providing for the destruction of all such chemical agents now in the arsenals
of parties to such a Convention.69

Bacteriological (Biological) Weapons

Bacteriological (biological)70 weapons have been defined as "living
organisms, whatever their nature, or infective material derived from them,
which are intended to cause disease or death in man, animals or plants, and
which depend for their effects on their ability to multiply in the person, animal
or plant attacked."71 International restrictions on the use of biological
weapons present far fewer legal problems than do those on the use of chemical
weapons. In fact, the legal situation is so clear that the major problem is,
once again, that of ensuring compliance.

It will be recalled that by the declaration contained in the 1925 Geneva
Protocol the Parties agreed "to extend the prohibition [against the use of
poisonous gas] to the use of bacteriological methods of warfare. "72 The League
of Nations Disarmament Conference discussed the matter and attempted,
albeit unsuccessfully, to draft a treaty which would have prohibited the
production and stockpiling of both chemical and biological weapons. During
World War II considerable scientific research was done on biological
weapons. However, no such weapons were used by either side, with one
possible exception. The Soviet Union has long contended that during World
War II the Japanese had a unit called "Bacteriological Detachment 731"
located at Harbin in China and that this unit had conducted bacteriological
experiments on several thousand Chinese, Koreans, Russians, and, perhaps,
Americans. When the war ended, many of the senior officers of this unit were
taken into Soviet custody and in December 1949 twelve of them were tried
by a Soviet court at Khabarovsk, were found guilty of engaging in
bacteriological warfare, and received sentences of confinement in a labor
correction camp for terms varying from two to twenty-five years.73 In 1982
the Japanese Government acknowledged that such a unit had existed during
the war.74 Assuming that the Soviet charges are correct, it would appear that
the activities of the Japanese unit never passed the experimental stage, that
it never reached the stage of actual use of biologicals against enemy military
forces as a weapon of war.

Levie 343

In 1962 the Soviet Union tabled at the meeting of the Eighteen Nation
Disarmament Committee (ENDC) a proposal for general and complete
disarmament which included the following provision: "The prohibition, and
destruction of all stockpiles, and the cessation of the production of all kinds
of weapons of mass destruction, including atomic, hydrogen, chemical,
biological and radiological weapons."75

A few weeks later the United States submitted its counterproposal with
a provision which called for "Elimination of all stockpiles of nuclear,
chemical, bacteriological, and other weapons of mass destruction and
cessation of the production of such weapons."76

In view of the close similarity of the two proposals, it would seem that
agreement with respect at least to chemical and biological weapons could
have been quickly attained.77 However, such was not the case. There were
those who took the position that chemical and biological weapons should not
be joined in the same treaty as there was experience with chemical weapons,
but none with biologicals. While the relevance of this argument is far from
clear, it was sufficient to delay the affirmative action which might otherwise
have been taken. Finally, in 1969 the United Kingdom submitted a proposal
which called for a complete ban on "microbial or other biological agents,"
but made no mention of chemical weapons.78 When, in 1971, the United States
and the Soviet Union tabled identical drafts79 relating to biologicals only, the
result was a foregone conclusion. Using that draft as a working document
the Conference of the Committee on Disarmament (CCD, which had
replaced ENDC) produced a Convention on the Prohibition of the
Development, Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction.80 Its most important provision
states:

Article 1

Each State Party to this Convention undertakes never in any circumstances to develop,
produce, stockpile, or otherwise acquire or retain:

(1) Microbial or other biological agents, or toxins whatever their origin or method
of production, of types and in quantities that have no justification for prophylactic,
protective or other peaceful purposes;

(2) Weapons, equipment or means of delivery designed to use such agents or toxins
for hostile purposes or in armed conflict.

It also contains provisions requiring each State Party to destroy all of the
items specified in Article 1 within nine months of the Convention coming
into force (presumably, for the State concerned); and an undertaking not to
transfer to any recipient, or to encourage the manufacture of, any of the
prohibited items.

344 Law of Naval Operations

It is thus evident that States Parties to the 1925 Geneva Protocol and to
the 1972 Bacteriological Convention are prohibited from developing,
manufacturing, stockpiling, acquiring, retaining, or using biological weapons. In view
of the coverage of the Convention, nations have not made "first use"
reservations. The two international agreements were intended to, and should,
eliminate biologicals from the arsenals of all such Parties and should mean
that in any future war, large or small, limited or unlimited, conventional or
unconventional, biologicals would not be a factor. Unfortunately, events have
already demonstrated that these expectations will not be met.

A catastrophe occurred in Sverdlovsk in the Soviet Union in 1980 in which
more than 1 ,000 people died as a result of what appears to have been anthrax
poisoning, although Soviet officials claimed that the deaths had been caused
by meat contaminated by hoof-and-mouth disease.81 In addition, the United
States has contended that the Soviet Union, either directly or through
surrogates, has used biological (as well as chemical) weapons in Southeast
Asia and in Afghanistan.82 If, as is generally believed, the Sverdlovsk incident
involved anthrax, and if, as the United States contends, biologicals have been
used by the Vietnamese in Kampuchea and Laos and by the Soviet Union
in Afghanistan, then the Soviet Union is manufacturing and using biologicals,
contrary to the provisions of the two agreements to which it is a party.
Unfortunately, the 1925 Geneva Protocol contains no provision for
verification and the only provision for verification contained in the 1972
Convention is a meaningless one providing for resort to the Security Council.

The predecessor to the Handbook, published at a time when the United States
was not a party to the 1925 Geneva Protocol and when the 1972 Bacteriological
Convention had not yet been drafted, stated:

The United States is not a party to any treaty now in force that prohibits or restricts
the use in warfare . . . of bacteriological weapons. Although the use of such weapons
frequently has been condemned by states, including the United States, it remains doubtful
that, in the absence of a specific restriction established by treaty, a state legally is
prohibited at present from resorting to their use. [Footnotes omitted.]83

This was probably a fair statement of the United States position until
November 25, 1969, when President Nixon, on behalf of the United States,
renounced the use of biological weapons by this country.84 Three months later
he included toxins in this renunciation.85 Then this country became a party
to the 1972 Bacteriological Convention and in 1975 it finally ratified the 1925
Geneva Protocol with its ban on the use of biologicals. Once again, however,
it appears that the Handbook may be going too far when it asserts:

The United States considers the prohibition against the use of biological weapons
during armed conflict to be part of customary international law and thereby binding
on all nations whether or not they are parties to the 1925 Gas Protocol or the 1972
Biological Weapons Convention.86

Levie 345

Can it be that while at a particular point in time a principle may not
necessarily be a binding rule of customary international law, it becomes such
as soon as the United States ratifies a treaty containing that principle?
Certainly, the United States did not consider itself bound by any rule of
customary international law prohibiting the use of biologicals when it issued
its military manuals in 1955 and 1956; nor did it consider itself so bound at
any time thereafter, even when (and until) President Nixon made his 1969
and 1970 statements unilaterally renouncing the use of biologicals and toxins.
Would the 50 or more nations which are not parties to the 1925 Geneva
Protocol and the 50 or more nations which are not parties to the 1972
Bacteriological Convention agree with the quoted statement? Or is this
statement, and the similar one with respect to chemical weapons quoted
above, inserted in order to convince non-parties that they might just as well
ratify the agreements as they are bound by them in any event?

In view of the mobility of naval forces, it has always been considered
unlikely, but not impossible, that naval vessels at sea will have to meet the
problem of defending themselves against an attack using biological (or
chemical) weapons. Should such an attack occur, for example by guided
missiles which succeed in penetrating the vessel^ defenses and dispense the
lethal item, the attack would have a devastating effect because air-intake
systems would quickly disseminate it throughout the interior of the vessel,
or because concurrent high-explosive ordnance would have pierced the shell
of the ship. Items such as masks, special clothing, etc., available for the
protection of the individual members of the crew, would greatly impede the
functioning of the crew, even if there was time to don them. In addition,
naval vessels, naval guns and naval aircraft might well be among the weapons
systems used for the delivery of biologicals against land targets, should
biologicals ever be used in wartime. Thus, in a field trial, a ship sailing 16
kilometers offshore travelled a distance of 260 kilometers parallel to the
coastline discharging a harmless powder. The resulting aerosol covered an
area of over 75,000 square kilometers. Had the material disseminated been
a biological "depending on the organism and its degree of hardiness, areas
from 5,000 to 20,000 square kilometers could have been effectively attacked,
infecting a high proportion of unprotected people in the area."87

Conclusions

There is no law in force, conventional or customary, which prohibits the
use of nuclear weapons. However, there can be no winners, but only losers,
no victors, but only vanquished, in the event of a nuclear war. Whether or
not a war in which nuclear powers are involved becomes a nuclear war will
depend upon the wisdom and leadership of the political leaders of those powers
and upon the extent to which the desire to win the war outweighs a reluctance

346 Law of Naval Operations

to bring disaster not only upon the enemy, but also upon their own people
and upon the peoples of neutral nations.

Chemical and biological weapons, like nuclear weapons, are weapons of
mass destruction. Once released they are beyond the control of the user and,
like nuclear weapons, their effects can come back to haunt the user. The use
of certain chemicals can have widespread, long-lasting, and severe
consequences for the environment and for the populations. This is even more
true with respect to the use of many biologicals. The use of either of these
types of weapons is prohibited by an international agreement to which more
than two-thirds of the nations of the world community are parties. The very
existence of biological weapons is prohibited by an international agreement
with a similar amount of participation. Hopefully, there will, in due course,
be an identical prohibition with respect to chemical weapons.

In view of the tremendous lethal and destructive capabilities of nuclear,
chemical, and biological weapons one might almost regret our inability to
turn the clock back to the nineteenth century, when nuclear, chemical, and
biological weapons, as we now know them, were not even a gleam in a
scientist's eyes.

Notes

* Professor of Law (Emeritus), St. Louis University Law School.

1. The Commander's Handbook on the Law of Naval Operations, Naval Warfare Publication 9 (NWP 9)
(1987) [hereinafter cited as Handbook]. It replaces the Law of Naval Warfare, Naval Warfare Information
Publication 10-2 (NWIP 10-2) (1955).

2. See, e.g., Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under
Water, August 5, 1963, United States Treaties and Other International Agreements [hereinafter U.S.T.], v. 14,
p. 1313, T.I.A.S. No. 5433, United Nations Treaty Series [hereinafter U.N.T.S.], v. 480, p. 43, reprinted in
International Legal Materials [hereinafter I.L.M.], v. 2., p. 883 (1963); Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial
Bodies, Jan. 27, 1967, U.S.T., v. 18, p. 2410, T.I.A.S. No. 6347, U.N.T.S., v. 610, p. 205, I.L.M., v. 6,
p. 386 (1967); Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons
of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, Feb. 11, 1971, U.S.T.,
v. 23, p. 701, T.I.A.S. No. 7337, I.L.M., v. 10, p. 145 (1971). The Handbook, par. 10.2., lists six multilateral
treaties and a number of bilateral treaties on the subject.

3. Resolutions of the General Assembly of the United Nations, such as Res. 1653 and Res. 2936 (United
Nations, General Assembly, Official Records: Resolutions adopted by the General Assembly during its Sixteenth Session
19 September 1961 - 23 February 1962, Resolution 1653, A/5100 (New York: 1962), p. 4 and id., Twenty-
Seventh Session 19 September - 19 December 1972, Res. 2936, A/8730 (New York: 1973), p. 5) are nothing
more than pious, and sometimes self-serving, declarations having no legal significance.

4. Handbook, par. 10.2.1. In Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World
Public Order (New Haven: Yale University Press, 1961), p. 659, the authors state, "The continuing attempts,
however, by various governments and groups to 'outlaw' nuclear weapons tend to sustain the impression
that such weapons are regarded as permissible pending the achievement of agreement to the contrary."

5. American Journal of International Law (Supp.) [hereinafter A.J.I. L. (Supp.)], v. 1, p. 95 (1907); Dietrich
Schindler and Jiri Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other
Documents, 3rd ed. (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988), p. 101 [hereinafter cited
as Schindler & Toman]. The United States is not a party to this Declaration and apparently does not
consider that it has become customary international law. In the U.S. Army's FM 27-10, The Law of Land
Warfare (Washington: U.S. Govt. Print. Off., 1956), par. 34, there is a list of various illegal weapons.

Levie 347

Those covered by this Declaration are not included in that list. Nevertheless it would be difficult to quarrel
with the quoted preambular provisions.

6. U.S. Statutes at Large, v. 32, p. 1803, reprinted in A.J.I.L. (Supp.), v. 1, p. 129 (1907).

7. U.S. Statutes at Large, v. 36, p. 2277, reprinted in A.J.I.L. (Supp.), v. 2, p. 90 (1908). Unfortunately,
when the Department of State made its official translation from French to English in 1907, the translators
did not refer back to the 1899 translation, with the result that there are some small but unimportant
differences in wording between the two English versions.

8. See supra notes 6 and 7. When preparing the working document for the Diplomatic Conference which
was to meet in 1974 in an attempt to bring the 1907 Hague Convention (IV) and the 1949 Geneva
Conventions up to date, the International Committee of the Red Cross [hereinafter referred to as ICRC]
included a version of the Martens clause in the preamble. Official Records of the Diplomatic Conference on
the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Bern: Federal
Political Department, 1978), v.l, part III, p. 3 [hereinafter Official Records]. The Diplomatic Conference
moved this provision to a more prominent place, as Article 1(2) of the 1977 Protocol Additional to the
Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed
Conflicts (Protocol I). Official Records, v. 1, part I, p. 126, reprinted in I.L.M., v. 6, p. 13% (1977), and
Schindler & Toman, supra note 5, p. 621 at p. 628 [hereinafter cited as Protocol I].

9. There were an estimated 80,000 casualties at Hiroshima and 65,000 at Nagasaki. The potential
casualties referred to in the penultimate question were the estimates of what would occur in the event
of armed landings on the home islands of Japan. These estimates appear, among other places, in Henry
L. Stimson, "The Decision to Use the Atomic Bomb," Bulletin of Atomic Scientists, v. 3, no. 2, p. 40 (1947),
and in Winston S. Churchill, The Second World War, v. VI, Triumph and Tragedy (Boston: Houghton Miflin,
1953), p. 638, where he estimates one million American dead and one-half million British dead.

10. Such an engagement would, of course, be fought in an area isolated from the civilian population
and civilian objects — but the reactor accident at Chernobyl, in the Ukraine, in April 1986 demonstrated
the distance which radioactivity can travel. It was detected in the Scandinavian countries a few days after
it had occurred (Serge Schmemann, "Soviet Announces Nuclear Accident at Electric Plant," New York
Times, April 29, 1986, p. Al:6) and was subsequently detected as far west as the United Kingdom (Francis
X. Clines, "Chernobyl Cloud Keeps Welsh Lamb Off Table," id., July 3, 1986, p. Al:2). In addition, one
recent newspaper article states that "many studies indicate the radiation released by a nuclear anti-aircraft
missile would disable the radar gear on which the U.S. surface navy increasingly relies, and the shock
waves sent through the sea from a nuclear antisubmarine rocket could disable any U.S. subs in the area."
Boston Globe, Dec. 18, 1989, p.3:8.

1 1 . United Nations, Chemical and Bacteriological (Biological) Weapons and the Effects of Their Possible Use: Report
of the Secretary-General, A/7575/Rev. 1 (New York: 1969), par. 19 [hereinafter cited as U.N. Report]. There
are many types of poisonous and asphyxiating gases (choking, blister, nerve, blood, etc.) and many different
such gases within each type (chlorine and phosgene are both choking gases; mustard and lewisite are both
blister gases). Nerve gases were developed by Germany before World War II but, happily, were never
used. Since then even more effective nerve gases have been developed.

12. A.J.I.L. (Supp.), v. 1, p. 157 (1907); Schindler & Toman, supra note 5, p. 105.

13. S.L.A. Marshall, World War I (New York: American Heritage, 1971), p. 157.

14. Id., pp. 163-66. Actually, the reason for the rather unusual method of delivery was that the amount
of gas that could be delivered by the available types of artillery shells was so small that they could only
be used for very limited objectives. The effect of gas as an offensive weapon was probably not fully
appreciated because of the lack of results three months earlier in Poland.

15. It has sometimes been argued that the German action at Ypres did not violate the 1899 Declaration
because no projectiles were used. The Commission on the Responsibility of the Authors of the War and
on Enforcement of Penalties established by the Diplomatic Conference, which was drafting the Treaty
of Versailles, refused to accept this thesis and listed the use of poison gas as one of the war crimes committed
by Germany during the course of the war. See A.J.I.L. (Supp.), v. 14, p. 115 (1920).

16. According to the U.N. Report, supra note 11, par. 3, during World War I "gas casualties numbered
about 1,300,000, of which about 100,000 were fatal."

17. A.J.I.L. (Supp.), v. 13, p. 151 at p. 230 (1919).

18. Treaty Relating to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, A.J.I.L.
(Supp.), v. 16, p. 59 (1922); Schindler & Toman, supra note 5, p. 877 at p. 878.

19. U.S.T., v. 26, p. 571, T.I.A.S. No. 8061, League of Nations Treaty Series [hereinafter L.N.T.S.], v.
94, p. 65, Schindler & Toman, supra note 5, p. 115.

20. L.N.T.S., v. 94, p. 69; Schindler & Toman, supra note 5, p. 126. As of January 1, 1989, there were
135 parties to the 1925 Geneva Protocol, of which 50 had made reservations, many of the "first use"
variety. U.S. Department of State, Treaties in Force -January 1, 1989, pp. 311-12.

348 Law of Naval Operations

21. "Warning to Japan Regarding the Use of Poisonous Gases," Department of State Bulletin, June 6, 1942,
v. 6, p. 506.

22. "Tokyo Denies Using Gas," New York Times, June 9, 1942, p. 2:3.

23. A list of the "Instances and Allegations of CBW, 1914-1970" will be found in Stockholm International
Peace Research Institute, The Problem of Chemical and Biological Warfare, v. 1, The Rise of CB Weapons
(Stockholm: Stockholm International Peace Research Institute, 1971), pp. 125-230.

24. In a conference with a number of American officials and military officers in October 1941 concerning
a possible German landing in England, Churchill said, "The enemy may use gas, but if so it will be to
his own disadvantage, since we have arranged for immediate retaliation and would have admirable
concentrated targets in any lodgments he might make on the coast. Gas warfare would also be carried
home to his own country." Winston S. Churchill, The Second World War, v. Ill, The Grand Alliance (Boston:
Houghton Miflin, 1950), p. 425. See also Marjorie M. Whiteman, Digest of International Law (Washington:
U.S. Govt. Print. Off., 1968), v. 10, pp. 464-65.

25. "Use of Poison Gas," Department of State Bulletin, June 12, 1943, v. 8, p. 507.

26. Lynwood B. Lennon, "Defense Planning for Chemical Warfare," in Matthew Meselson, ed., Chemical
Weapons and Chemical Arms Control (New York: Carnegie Endowment for International Peace, 1978), p.
1; Barton J. Bernstein, "Why We Didn't Use Poison Gas in World War II," American Heritage, August-
September 1985, p. 40.

27. E.g., United Nations, General Assembly, Official Records: Resolutions adopted by the General Assembly
during its Twenty-First Session 20 September - 20 December 1966, Res. 2162 B, A/6316 (New York: 1967), pp.
10-11.

28. United Nations, General Assembly, Official Records: Resolutions adopted by the General Assembly during
its Twenty-Third Session 24 September - 21 December 1968, Res. 2454 A, A/7218 (New York: 1969), p. 11.

29. U.N. Report, supra note 11, par. 369.

30. 7</.,par. 375.

31. United Nations, General Assembly, Official Records: Resolutions adopted by the General Assembly during
its Twenty-Fourth Session 16 September - 11 December 1969, Res. 2603 A, A/7630 (New York: 1970), p. 16.
The vote was 80-3-36 with the United States casting one of the three negative votes. United Nations
Office of Public Information, 1969 Yearbook of the United Nations (New York: 1970), p. 30.

32. U.S. Congress, House, Committee on Foreign Affairs, Subcommittee on National Security Policy
and Scientific Developments, U.S. Chemical Warfare Policy, Hearings, 93rd Cong., 2nd Sess. (Washington:
U.S. Govt. Print. Off., 1974), p. 29.

33. Memorandum on Chemical Warfare Presented to the Preparatory Commission for the Disarmament Conference
by the Delegation of the United Kingdom, Cmd. 4, no. 3747 (1930).

34. Anthony Lewis, "Britain Asserts CS Gas is not Banned," New York Times, Feb. 3, 1970, p. 3:6. "CS"
was the tear gas originally used by the United States in Vietnam. It has been the standard tear gas used
by police throughout the world. Presumably the term "other such gases" as used by the British refers
to CS-1 and CS-2, the later versions of CS.

35. Judge Advocate General Myron C. Cramer to the Secretary of War, SPJGW 1945/164, March 1945,
"Memorandum concerning Destruction of Crops by Chemicals," I.L.M., v. 10, p. 1304 (1971). It should
be borne in mind that at the time this memorandum was written, the United States was not a party to
the 1925 Geneva Protocol.

36. Howard S. Levie, "Weapons of War," in Peter D. Trooboff, ed., Law and Responsibility in Warfare:
The Vietnam Experience (Chapel Hill, N.C.: University of North Carolina Press, 1975), p. 153 at p. 158
[hereinafter cited as Trooboff].

37. Letters from the General Counsel, Department of Defense, to the Chairman, Senate Committee
on Foreign Relations, April 5, 1971, reprinted in I.L.M., v. 10, pp. 1300 and 1303 (1971).

38. See Executive Order 11,850, infra note 55 and accompanying text.

39. The predecessor to the Handbook, supra note 1, stated, "Weapons of chemical types which are at times
asphyxiating in nature, such as white phosphorus, smoke, and flame throwers, may be employed." The Law
of Naval Warfare (NWIP 10-2), par. 612a (emphasis added), reprinted in the appendix to Robert W. Tucker,
Naval War College International Law Studies, 1955: The Law of War and Neutrality at Sea (Washington: U.S.
Govt. Print. Off., 1957), p. 410. To the same effect, see the U.S. Army's Field Manual, The Law of Land
Warfare, FM 27-10 (1956), par. 36.

40. ICRC, Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflict: Report to the
XXIst International Conference of the Red Cross (Geneva: 1969), pp. 61-62.

41. U.N. Report, supra note 11, par. 19.

42. United Nations, Department of Political and Security Council Affairs, Napalm and Other Incendiary
Weapons and All Aspects of their Possible Use: Report of the Secretary-General, A/8303/Rev.l (New York: 1973),
par. 193. See also United Nations Secretariat, Respect for Human Rights in Armed Conflicts: Existing Rules of

Levie 349

International Law Concerning the Prohibition or Restriction of Use of Specific Weapons, A/9215 (New York: 1973),
v. 1, pars. 20-21 and 59-86.

43. Stockholm International Peace Research Institute, Incendiary Weapons (Cambridge, Mass.:
Massachusetts Institute of Technology Press, 1975), p. 24.

44. ICRC, Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects: Report on the Work
of Experts (Geneva: 1973), pars. 182-223; Conference of Government Experts on the Use of Certain Conventional
Weapons: Lucerne, 1974 (Geneva: 1975), pars. 43-117; Conference of Government Experts on the Use of Certain
Conventional Weapons: Lugano, 1976 (Geneva: 1976), pars. 9-12 and 104-112.

45. Official Records, supra note 8, v. 16, passim.

46. Id., v. 1, part II, p. 52.

47. United Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May
Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects: Final Report of the Conference to the General
Assembly, A/CONF.95/15 (1980), Annex I, Appendix D, Protocol on Prohibitions or Restrictions on the
Use of Incendiary Weapons (Protocol III), Schindler & Toman, supra note 5, p. 190. The United States
has, as yet, taken no steps towards the ratification of the Convention to which this Protocol is attached.

48. The Law of Naval Warfare (NWIP 10-2), supra note 39, par. 612b (emphasis added). The footnote
to that statement is even more definite, stating, "[I]t is difficult to hold that the use of these [chemical]
weapons is prohibited to all states according to customary international law."

49. "Almost" because of such occasional statements like that contained in the 1945 Memorandum of
the Judge Advocate General of the Army, supra note 35, to the effect that, "An exhaustive study of the
source materials, however, warrants the conclusion that a customary rule of international law has
developed by which poisonous gases and those causing unnecessary suffering are prohibited."

50. "Controversial" because, as we have seen, there is no general agreement as to whether
lachrymatories and herbicides are included within the prohibitions of the 1925 Geneva Protocol.

51. Stewart Blumenfeld and Matthew Meselson, "The Military Value and Political Implications of the
Use of Riot Control Agents in Warfare," in Carnegie Endowment for International Peace, The Control
of Chemical and Biological Weapons (New York: 1971), pp. 64, 67-68.

52. Howard S. Levie, "Weapons of Warfare," in Trooboff, supra note 36, p. 154. During the conflict
in Vietnam the North Vietnamese took the position that all chemical warfare, including both tear gas
and herbicides, was prohibited by international law. Nguyen Khac Vien, ed., Chemical Warfare, Vietnamese
Studies No. 29 (Hanoi: 1971), passim. They appear to have departed from this position in recent years,
at least insofar as it applies to their own use of both chemical weapons and toxins. U.S. Department
of State, Chemical Warfare in Southeast Asia and Afghanistan: Report to the Congress from Secretary of State Alexander
M. Haig,Jr., Special Report No. 98, March 22, 1982; U.S. Department of State, Chemical Warfare in Southeast
Asia and Afghanistan: An Update: Report from Secretary of State George P. Shultz, Special Report No. 104,
November 1982.

53. "Statement by President Nixon," Department of State Bulletin, Dec. 15, 1969, v. 61, p. 541. A correction
to this statement containing omitted paragraph appears at Department of State Bulletin, March 2, 1970, v.
62, p. 272, reprinted in A.J.I.L., v. 64, p. 386 (1970).

54. For a brief summary of the legislative history of this action, see "Introduction," in Trooboff, supra
note 36, pp. 242-43, note 37. The U.S. ratification included the typical "first use" reservation.

55. Gerald R. Ford, Executive Order 11,850, "Renunciation of Certain Uses in War of Chemical
Herbicides and Riot control Agents," Federal Register, April 8, 1975, p. 16,187, reprinted in I.L.M., v. 14,
p. 794 (1975).

56. See supra note 48 and accompanying text.

57. Handbook, supra note 1, par. 10.3.2.1.

58. It will be recalled that U.N. Resolution 2603 A, supra note 31, was adopted with three votes against
(including the United States) and 36 abstentions.

59. See infra note 80.

60. See infra text accompanying notes 75 and 76.

61. "Bush, in Geneva, Offers Chemical Arms Ban," New York Times, Apr. 19, 1984, p. A13:l; "U.S.
Proposes Banning Chemical Weapons," Department of State Bulletin, June 1984, v. 84, p. 40.

62. Draft of April 27, 1987, 1987 Arms Control Reporter 704. D.105.

63. 1989 Arms Control Reporter, 704.B.338.2.

64. Robert Pear, "U.S. and Moscow Settle Key Issues on Chemical Arms: Agree on Ban in 10 Years,
but Constitutional Questions Are Raised by Accord on Surprise Inspections," New York Times, July 18,
1989, p. Al:6. This sudden agreement may well have been prompted by the public reaction to the
construction by a West German chemical concern at Rabta, Libya, of a plant capable of manufacturing
large quantities of mustard gas. 1989 Arms Control Reporter, 705. B. 339-354. 2.

65. "Outline of the Rolling Text and Principal Remaining Issues — 1 May 1989," 1989 Arms Control
Reporter, 704.D.131-137.

350 Law of Naval Operations

66. "Changes of the Rolling Text and Principal Remaining Issues — 15 October 1989," id., 704.3.139-
144.

67. Pear, "U.S. and Moscow Settle Key Issues on Chemical Arms," supra note 64. For a discussion of
the constitutional problem, see, Dennis S. Aronowitz, Legal Aspects of Arms Control Verification in the United
States (Dobbs Ferry: Oceana Publications, 1965), pp. 104-14.

68. United Nations Convention on the Law of the Sea (New York: United Nations, 1983), Sales No.
E.83.V.5. The negotiation of this Convention took from 1973 to 1982; Protocols Additional to the Geneva
Conventions of 12 August 1949 and Relating to the Protection of Victims of Armed Conflicts, I.L.S.,
v. 16, p. 1391 (1977), Schindler & Toman, supra note 5, pp. 621 and 689. The negotiation of these Protocols
took from 1974 to 1977, preceded by several years of preliminary negotiations.

69. In September 1989 an International Government-Industry Conference Against Chemical Weapons,
consisting of representatives of more than 65 Governments and of the world's major chemical
manufacturers, meeting in Canberra, Australia, endorsed a chemical warfare convention and sought ways
to assist in bringing the Geneva negotiations to a successful conclusion. Department of State, GIST,
November 1989. On September 23, 1989, at Jackson Hole, Wyoming, the Soviet Union and the United
States signed an Agreement Regarding a Bilateral Verification Experiment and Data Exchange Related to Prohibition
of Chemical Weapons, reprinted in I.L.S., v. 28, p. 1438.

70. For the sake of brevity, the broader term "biological" is hereinafter used alone. It is intended to
include toxins.

71. U.N. Report, supra note 11, par. 17.

72. See supra text accompanying note 19.

73. Materials on the Trial of Former Servicemen of the Japanese Army Charged with Manufacturing and Employing
Bacteriological Weapons (Moscow: Foreign Languages Publishing House, 1950).

74. Henry Scott Stokes, "Japan Looks at Grisly Side of its Past," New York Times, July 13, 1982, p.
A3:l. See also John W. Powell, "Japan's Biological Weapons, 1930-1945," Bulletin of Atomic Scientists, Oct.
1981, v. 37, pp. 44-52; "Japan's Biological Weapons, 1930-1945: An Update," Bulletin of Atomic Scientists,
Oct. 1982, v. 38, p. 62. The Germans may well have engaged in similar experimentation or employment
during World War II, but, if so, the usage was not for military purposes, their victims being German
or Jewish civilians.

75. United States Arms Control and Disarmament Agency, Documents on Disarmament (Washington: U.S.
Govt. Print. Off., 1962), p. 104 [hereinafter cited as Documents on Disarmament].

76. Id., p. 279.

77. One might question the seriousness of the two proposals as far as they related to nuclear weapons.

78. Documents on Disarmament, supra note 75, pp. 324-25 (1969).

79. Documents on Disarmament, supra note 75, pp. 456-57 (1971).

80. U.S.T., v. 26, p. 583, T.I.A.S. No. 8062, reprinted in I.L.M., v. 11, p. 310 (1972). This Convention
was opened for signature in Washington, London and Moscow on April 10, 1972. As of January 1, 1989,
110 states had either ratified or acceded to it, including all of the major powers. U.S. Department of
State, Treaties in Force - January 1, 1989 (Washington: U.S. Govt. Print. Off., 1989), pp. 284-85.

81. Bernard Gwertzman, "Soviet Mishap Tied to Germ-War Plant," New York Times, March 19, 1980,
p. Al:6; Bernard Gwertzman, "Soviet Lays Outbreak of Illness to Bad Meat not Germ- War Plant," id.,
March 21, 1980, p. Al:l; "Soviet Now Mentioning Foot and Mouth Disease," id., March 27, 1980, p. All:l.

82. See Department of State Special Reports, supra note 52.

83. The Law of Naval Warfare, supra note 39, par. 612B. The Army's The Law of Land Warfare, supra note
39, par. 38, is to the same effect.

84. Statement of President Nixon, "Chemical and Biological Defense Policies and Programs,"
November 25, 1969, Weekly Compilation of Presidential Documents, December 1 , 1969, Department of State Bulletin,
December 15, 1969, v. 61, p. 541. (A correction to this statement containing omitted paragraphs appears
at id., March 2, 1970, v. 62, p. 272.)

85. White House Press Release, "U.S. Renounces Use of Toxins as a Method of Warfare," February
14, 1970, Department of State Bulletin, March 2, 1970, v. 62, p. 226.

86. Handbook, supra note 1, par. 10.4.2.

87. U.N. Report, supra note 11, pars. 39-41. Chemical weapons used in the same way would have to
be disseminated in much greater quantities and, even so, would cover a considerably smaller area. However,
the result would still be devastating and would establish beyond doubt that they are, indeed, weapons
of mass destruction.

Clingan 351

Chapter XII
Submarine Mines In International Law

by
Thomas A. Clingan, Jr.*

The extensive and organized use of explosive submarine mines is primarily
a creature of the twentieth century, although more primitive devices date
back to far earlier times. During the Russo-Japanese war of 1904-1905, the
establishment of a Russian minefield outside Port Arthur generated much
criticism.1 It was this outcry that led to the negotiation of the Hague
Convention (VIII) of 1907 Relative to the Laying of Automatic Submarine
Mines.2 Since that time, both the pattern of usage of submarine mines, and
the technology involved, have changed, and these changes have raised issues
concerning the state of international law on this subject. The question is
whether evolution in mine warfare technology requires modification of
traditional rules of international law, and, if so, what changes are required?

There has always been an internal tension inherent in the law of mine
warfare. Two important underlying principles are at stake. On the one hand,
the doctrine of the freedom of navigation is one of the hoariest and most
fundamental in the law of the sea. On the other, the long-recognized principle
of self-defense has great force. The international law of mine warfare brings
into play an attempt, under varying circumstances, to balance these
fundamental norms. In seeking to strike an appropriate balance, many
different factors and elements must be taken into consideration. In various
situations, certain elements, such as the existence of a state of war, the nature
of the interests of the mining state, the location of the proposed mining, and
the type or category of mine involved, among others, play a role.

The Commander's Handbook on the Law of Naval Warfare (NWP 9)3 initiates
its discussion of naval mines with the following statement: "The general
principles of law embodied in the 1907 Convention continue to serve as a
guide to lawful employment of naval mines.,,4 In examining this statement,
one must first note that the Hague Convention deals with the use of mines
by belligerents, which traditionally meant in time of war. In order to accept
the Hague Convention as a guide to the employment of mines, it is necessary
first to do away with the argument that since the Charter of the United
Nations has "done away" with aggressive warfare as a legal concept, there
no longer exist such corollary concepts as "belligerency'* and "neutrality."

352 Law of Naval Operations

If one were to accept this neat theory, then the Convention, being contrary
to the spirit of the Charter, could not be a legal basis for the employment
of submarine mines. Advocates of this position have argued that reference
must be made, to support the Convention's rules, to humanitarian law5 or
to reliance upon the right of self-defense authorized by the Charter.6

To my mind, the argument is specious and could bring about undesirable
consequences. To argue that war no longer exists flies in the face of reality.
Armed conflict continues, though not on the scale of the two World Wars.
One would have to be blind to the facts, indeed, to claim that the Charter
has in fact eliminated war in the sense of the use of armed force, or to paper
over the issue by calling war by a different name.

It must also be recognized that not permitting the rules of war for regulating
conduct in "in-between" situations such as conflict involving a limited use
of force would, in most cases, result either in formal declarations of war before
such concepts as blockade or limitations on mine warfare could be called into
play, or the acceptance of unregulated violence. This idea is inconsistent with
the entire theory of the humanitarian law of armed conflict, whose principles
are applicable irrespective of whether a formal state of war exists or the
"rightness" or "wrongness" of the parties to the conflict.7 This is clearly not
a desirable outcome. Thus, Thorpe8 has noted that a consequence of this
position is that no assistance can be derived from these older rules at times
when operational commanders most need that assistance. He says, "It is very
important to remember that the actual practice of states, if generally accepted
or even tolerated, is a most potent force in shaping the law, and in the twilight
area between the traditional concept of peace and war it is clearly sensible
to draw assistance where one can from the traditional law of war, and this,
I suggest, states have done."9 This is compelling reasoning.

Thorpe gives some examples of the state practice to which he refers. These
examples demonstrate that in certain special situations, particularly those that
involve some aspects of national security, the international community has
not objected to interferences with the use of the high seas.

Thorpe's first example is the case of the West Breeze. This ship, a British
merchantman, was stopped on the high seas en route to Casablanca by a French
warship. The French believed she carried arms and contraband for Algerian
rebels. When stopped and searched, she was within a 32-mile security zone
that the French had established off the Algerian coast. After being searched,
with no contraband discovered, the vessel was permitted to proceed on its
way.10 Thorpe's second example, more familiar to us all, was the interdiction
of offensive weapons destined for Cuba in 1962. n

Each of the examples illustrates an interference with the freedom of the
high seas, and in both instances the objective was the protection of the security
of the state carrying out an act which otherwise would be in violation of
international law.12 In the Algerian situation, it is clear that the boarding and

Clingan 353

searching of the British vessel in peacetime would have been contrary to
international law. The right of a warship to visit and search is a right confined,
on the high seas, to belligerents. In the Cuban interdiction, normally referred
to as "quarantine/' the activities undertaken by the U.S. Navy resembled,
but were not identical to, a blockade. The right of blockade, like the right
of visit, is a right of a belligerent. In this regard, they both are similar to
the right to lay mines. That the activity was conducted in a limited way is
suggestive of application of the laws of war. Thorpe's point, therefore, is
that state practice continues to support the application of the laws of war,
and thus it is legitimate to say that the Hague Convention remains a valid
set of guidelines with respect to the employment of mines, unless it can be
shown that these rules do not adequately serve the newer technologies that
have been developed.

There is no doubt that the Hague rules were developed to be utilized in
time of war.13 These rules do not render the use of naval mines illegal. Rather,
they provide for certain restrictions for the purpose of protecting neutral
shipping. While regarding mining as legal in proper circumstances, one must
be mindful of the provisions of other relevant conventions. For example,
Additional Protocol 1 to the Geneva Conventions of 12 August 1949 Relating
to the Protection of Victims of International Armed Conflicts prohibits
weapons "of a nature to cause superfluous injury or unnecessary suffering."14
Given that this Protocol comes some 70 years after the Hague Convention,
and taking account of the state practice and attitudes of maritime states in
the interim, it can hardly be argued that the Protocol was aimed at mines.
The Hague rules themselves were designed to limit the effect of mines on
neutral shipping. Likewise, the similar language used in Hague Convention
No. IV of 1907 Respecting the Laws and Customs of War on Land15 should
not be viewed as limiting the Hague rules regarding mines. As was argued
above, state practice seems to support the principle that the rules have certain
applicability in conditions short of formal war, such as periods of high
tensions, where the need to protect neutral shipping is just as strong as in
wartime. Accordingly, I shall examine first what the rules provide for in
wartime, and then move to questions of restrictions during peacetime and
periods of high tension or undeclared hostilities, such as the Vietnam conflict.
It will be necessary, in each case, to address the question of the impact of
new technologies, today and in the future, on the application of rules
structured to deal with mines as they were known at the time the Convention
was negotiated.

To begin with, the Hague rules do not by their terms differentiate between
various zones of the oceans, except that article 2 proscribes the laying of
"automatic contact mines off the coast and ports of the enemy, with the sole
object of intercepting commercial shipping."16 Obviously, the qualification
contained in that phrase creates a yawning loophole in the prohibition, since

354 Law of Naval Operations

it could easily be circumvented by arguing that the mines were laid for another
purpose, e.g., a legitimate blockade. Thus, belligerents have the right to lay
mines in their own territorial seas and internal waters, and in many instances
in those of the enemy. While the Convention does not expressly refer to the
high seas, and thus mines may also be sown there, a reasonable inference is
that such laying should not be done indiscriminately and should be restricted
to reasonably limited areas. Article 3 requires "every possible precaution"
to protect peaceful shipping and, when the minefield is no longer under
surveillance, notification of the danger zones as soon as military exigencies
permit.17 Neutral powers are permitted to mine their own waters18 and, by
implication, belligerents may not do so because such mining would be a
violation of the neutral's sovereignty. The Convention applies to anchored
automatic contact mines, and also to unanchored contact mines, which are
prohibited except when constructed to become harmless one hour at most
after control is lost over them.19 Anchored mines must also become harmless
if they should break their moorings.20

How should these rules be interpreted with respect to more modern devices
not envisaged at the time they were adopted? The principles they embody
give us some guidance.

As previously noted, the Hague rules were not designed to prohibit mines
as a weapon, but rather to place limitations upon their use that relate to
maintaining control over them to protect neutral shipping. This is implicit
in rules requiring anchored mines to neutralize themselves should they break
loose from their moorings, rules prohibiting unanchored mines that do not
neutralize within an hour, rules requiring belligerents to do their utmost to
remove mines at the cessation of hostilities,21 and rules regarding notice. Thus
it can be inferred that new, high technology mines should be acceptable if
they satisfy the same objectives. New weapons that are under an acceptable
level of control by the party laying them, or which do not threaten neutral
surface shipping, would seem to be acceptable. One such weapon referred
to by Thorpe is the continental-shelf mine. He notes that this mine will be
a "short tethered rocket-propelled warhead" that is designed to be remotely
activated by acoustic link telemetry.22 Given the degree of control over this
device, it is likely that its use would not create the kind of hazards which
the Hague rules were conceived to prevent. Since these mines would likely
be deployed beyond the territorial sea, however, the proscriptions requiring
localization and notice would seem to be applicable.

But should one speculate that it is possible that these rocket-propelled
devices could be deployed with nuclear capability, then I believe the
conclusion should be otherwise. This prospect raises the question whether
such devices would be prohibited by the Treaty on the Prohibition of the
Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction
on the Seabed and the Ocean Floor and Subsoil Thereof.23 While it could

Clingan 355

be argued that tethered mines are not "emplaced" on the ocean floor, that
argument is transparently thin. A nuclear-tipped continental-shelf mine
clearly violates the spirit if not the letter of that treaty. Nor does it help
the issue much to argue that since these rockets might be directed only at
belligerent submarines, and thus pose little if any risk to surface shipping,
they are not precluded. By the better logic, keeping in mind the probable
reaction of neutrals to the emplacement of such weapons, the Hague rules
seem to exclude them from use. Other conceivable new technologies could
be examined along similar lines.

Are the same rules applicable in peacetime? In examining this question,
it is necessary to distinguish between time of unquestioned peace, that is, the
complete lack of hostilities in the area, and time of peace in which there are
nonetheless existing hostilities. This is the situation that obtains in an
"undeclared war" where the rules of belligerency and neutrality do not apply,
at least in the formal sense. Some insight can be gained in this latter category
by examining the Corfu Channel Case24 decided by the International Court of
Justice in 1949. It can be recalled that the major issue in that case was whether
states in time of peace have a right to send their warships through straits
used for international navigation between two parts of the high seas without
the previous authorization of a coastal state, provided that the passage is
innocent. The court held in the affirmative. But a second issue arose as a
result of the fact that at one point two British destroyers struck mines in
the Albanian portion of the channel causing considerable damage and loss
of life. The Court agreed with the British contention that Albania was
responsible. It held that this responsibility rested on the basis of elementary
principles of humanity, and the principle that every state has an obligation
not knowingly to permit acts in its territory contrary to the rights of other
states. The holding, therefore, recognized a customary international law right
to mine one's own territorial sea, but also a duty to notify of the presence
and location of those mines.

Rules concerning the peaceful uses of the oceans are governed by treaty
law. Both the Geneva Conventions of 195825 and the 1982 U.N. Convention
on the Law of the Sea26 address such questions. Although the 1982 treaty is
not yet in force,27 there are relevant provisions representing at least emerging
rules of customary international law prior to the Convention's entry into
force.

What are the implications of its provisions with respect to the question
of peacetime mining of the territorial sea? Article 17 accords the right of
innocent passage to all vessels navigating in the territorial sea.28 Article 24
proscribes the coastal state from hampering that right. Initially, then, one
might argue that emplacement of mines in the territorial sea by the coastal
State would hamper the right of innocent passage. However, article 25 makes
* it clear that the coastal State may suspend that right for reasons of security,

356 Law of Naval Operations

at least temporarily, in specified areas of its territorial sea. It would thus seem
that mines could be laid in such areas or other areas in which there might
be no substantial vessel traffic. Article 24(2) places an obligation on the coastal
state to give appropriate publicity to any danger to navigation. Furthermore,
article 22 permits a coastal state, for safety of navigation, to restrict passage
of foreign vessels to certain specified sea lanes or traffic separation schemes.
Reading these together, it would appear that a coastal state in peacetime could
mine its territorial sea, provided that the notice required by article 24 is given.
Limiting passage to safe areas and times would hardly be considered
"hampering* ' the general right of innocent passage in such circumstances,
because that term means actions of a coastal state that would discriminate
among foreign ships, or restrict vessels in the territorial sea that would
virtually deprive them of their legal right to innocent passage. It does not
proscribe reasonable regulation.

Article 38 of the treaty, in what some believe to be new law, provides
for the right of transit passage for vessels passing through straits used for
international navigation. This right, unlike innocent passage, is not
suspendable. Like innocent passage, however, littoral states must give
publicity to known dangers.29 Because these passageways are sometimes only
a mile or less wide, and because they often are vital waterways for
international trade and military use, it is more than likely that any attempt
to mine them would meet with instant protests from major maritime nations.
I would conclude, therefore, that mining of international straits in peacetime
would not be acceptable under customary rules. The same would hold true
for routes designated as archipelagic sea lanes, subject to archipelagic sea lanes
passage.30

It would seem difficult, in general, to justify the laying of mines on the
high seas, beyond national jurisdiction, absent some strong showing that
would engage a coastal state's traditional right to defend itself. In peacetime,
a claim of self-defense justifying such a strong measure would be difficult
to demonstrate. Again, laying of high seas mines would most likely be viewed
by maritime states as an unreasonable interference with the freedom of
navigation on the high seas guaranteed by article 87. The navigation rights
contained in that article are incorporated into the exclusive economic zone
rules by a cross-reference in article 58, while the rights of the coastal State
in that zone are limited by article 56 to those that are essentially economic
in nature. Thus the rules in the EEZ should be the same, as regards peacetime
minelaying, as for the high seas beyond. This conclusion is reinforced by
article 88, also applicable in the EEZ, which specifies that the high seas are
reserved for peaceful purposes.31 Finally, attention should be called to article
300, that calls upon all state parties to the Convention to exercise their rights,
freedoms, and jurisdiction in a manner that would not amount to an abuse
of rights. It would seem that mining other than in restricted areas of the

Clingan 357

territorial sea in peacetime would raise that issue.32 Arguably, however, the
emplacement of such weapons as the continental-shelf mine, previously
referred to, in the high seas or the EEZ might be distinguished on the grounds
that they are controlled and inert until activated, thus posing no threat to
surface shipping. Technically, these devices are not mines at all while inert,
and thus their emplacement in peacetime would not be proscribed, nor would
notice of that emplacement be required. Such emplacement arguably could
be justified on the ground referred to by Myers McDougal as a "preparation
for self-defense."33

Returning once again to the special "peacetime" situation where tensions
or even hostilities not amounting to a formal war exist in an area, the question
is whether a different set of rules do or ought to apply.34 The most recent
and classic example of this situation was the Viet Nam "war." During that
conflict the United States mined Haiphong Harbor. Thorpe calls this "the
most interesting [mining] case since 1945. "35 Mining of the harbor was first
considered in 1968, but was rejected on the grounds that there was in fact
no great military need to cut off military supplies flowing from the Soviet
Union to North Viet Nam. At the time, the Director of the International
Law Division, U.S. Navy Office of the Judge Advocate General, said: "If
a legal state of war existed between the United States and North Vietnam
we could immediately blockade the port of Hai-phong as a belligerent right
of warfare. Without a state of war such a blockade would be of doubtful
legality. A similar analysis could be made with respect to mining harbors,
contraband, neutrality, and the right of visit and search on the high seas."36
Note that this statement seems to rest on the traditional notions of war and
peace. But by 1972, conditions had changed considerably. A major North
Vietnamese offensive had been mounted and it was now necessary for purposes
of military defense to stem the flow of Soviet weapons to the south. Thorpe
describes the situation as follows:

The solution to the tactical problems of the mining had to allow the objectives to be
achieved without unnecessary risk to international shipping. If Hague Convention No.
VIII applied to unmoored influence mines and if instant notification was required, the
mine-laying aircraft in subsequent waves would be at risk. In fact the decision was taken
to lay in the internal waters and territorial seas of North Vietnam inactive mines that
would become active after a period of 3 days, and give warning to all shipping once
the aircraft had all returned. Of the 36 ships in harbor at Hai-Phong at the time of
the announcement over one-quarter were under way within 3 hr. No ships were lost,
the traffic to and from Hai-Phong was effectively disrupted and, of course, the
departures from Vietnam and the release of prisoners of war followed shortly thereafter.
The mining was justified and reported in accordance with Article 51 of the UN Charter
by the U.S.A. as an exercise of the right of self-defense in view of the attack against
South Vietnam and the need to protect the 60,000 remaining U.S. Troops.37

What was the reaction of the international community? Very little. In a
letter from the representative of the U.S.S.R. to the President of the Security
Council, the Soviets protested the mining, saying that the U.S. action was

358 Law of Naval Operations

a violation of the freedom of the high seas (even though the mines were in
internal waters and the territorial sea), and rejected the U.S. claim of self-
defense. The letter stated "that no aggression has been committed against
the United States. On the contrary, the United States itself is acting as an
aggressor in Viet-Nam."38 A similar letter was submitted by the People's
Republic of China.39 Neither protest made any mention whatsoever of the
Hague Convention or the customary law of mine warfare.

Reference again should be made to the analogous use of the belligerent
right of blockade. As previously noted, the Cuban quarantine was not a
traditional blockade because it did not fulfill the formal requirements. Nor
was there a state of war in existence between the United States and Cuba.
That event represents a modified rule of blockade responsive to and justified
by the needs of the situation at the time. The justification was on the ground
of collective self-defense under the Rio Pact of 1947. The widespread support
among members of the Organization of American States supplied the
necessary opinio juris. One commentator noted that "the Cuban situation
illustrates that where the circumstances are right, a state will insist, even in
a peacetime situation, to what was traditionally known as a belligerent right.
The question today really is not a purely legal one, and it never really was."40
Dean Acheson went further in a comment to the American Society of
International Law, when he said: "I must conclude that the propriety of the
Cuban quarantine is not a legal issue. . . . No law can destroy the state creating
the law. The survival of states is not a matter of law."41 To me, however,
basing the quarantine on raw power, and not the law, is a most dangerous
proposition.

The foregoing examples indicate a growing state practice embodying some
of the rules regarding the law of war in a situation short of war. These
examples are buttressed by the ruling of the International Court of Justice
in the Nicaragua Case.42 In that case, the Court found that on a date late
in 1983 or early 1984, the President of the United States authorized a United
States government agency to lay mines in Nicaraguan ports; that in early 1984,
mines were laid in or close to the ports of El Bluff, Corinto and Puerto
Sandino, either in Nicaraguan internal waters or in its territorial sea or both,
by persons in the pay of that agency. It found that at no time did the United
States issue any public warning to international shipping of the existence and
location of the mines. It found further that personal and material injury was
caused by the explosion of the mines. The Court decided that by laying these
mines, the United States acted in breach of its obligations under customary
international law not to use force against another state, not to intervene in
its affairs, not to violate its sovereignty, and not to interrupt peaceful maritime
commerce. While the holding does not deal with the law of mine warfare
as discussed here, a plea of self-defense was rejected. Clearly, even under
the Hague rules, such mining cannot be defended.

Clingan 359

Before concluding this commentary, some attention should be devoted to
the operations that have recently taken place in the Persian Gulf. The author
is not privy to any facts not appearing in the public media, so the underlying
assumption is that they are fairly reported, which may indeed not be the case.
The reflagging by the U.S. of eleven Kuwaiti tankers brought about a number
of responses from Iran, including the indiscriminate laying of mines in various
areas of the Persian Gulf. Assuming that some, if not most, of these areas
lie outside of anyone's territorial sea, did Iran have the right to lay these mines
under the rules that we have examined? First of all, the activities under
examination took place during a limited conflict. This introduces more vividly
the element of self-defense. But the question is whether Iran's targeting of
shipping owned by a neighboring, but only arguably neutral, state under the
flag of a noncombatant can be supported by the concept of self-defense. The
answer depends upon how one views that traditional international right.
Professor Jack Grunawalt of the Naval War College views self-defense as
broader than traditional approaches would have us believe. It is his contention
that the experiences of the two World Wars demonstrate that much of the
law of neutrality has been ignored, and that in time of war, one of the weapons
utilized was the all-out attack on the movement of goods to and from a
belligerent, whether carried in neutral hulls or not. The objective was to
destroy the enemy's economic capacity to maintain the war. If one perceives
the destruction of Iraqi oil (or that of its supporters) in the same light, the
argument can be made on Iran's behalf in the Persian Gulf. In reference to
the Persian Gulf, Professor Grunawalt has said: "I would suggest to you that
the law ought to recognize that neutral shipping that sustains a belligerent's
war fighting capability may be subject to interdiction by whatever platforms
and weapons system are available to the other side to accomplish that purpose.
I would also suggest that the modern law of neutrality, as reflected in the
customary practice of nations in this century, does in fact support that
result."43 Given the prior analysis of the mining of Haiphong harbor by the
United States, it would appear that his argument has a basis in practice, and,
if properly carried out, is acceptable to most maritime powers. I must confess
that, while I am drawn to the logic of the argument, I am deeply concerned
that if carried to extremes it could destroy the very concept of neutrality
and in large part the freedom of the seas. No ship, no cargo would be safe
in an area of conflict. But even if the premise is accepted, the differences
between the existing situation and that in Viet Nam are notable in the manner
in which the mining was carried out. As we have previously noted, mining
beyond the limits of national jurisdiction can be supported where there is
a legitimate national security objective. Even then, the rules regarding
localization and notification must be followed, as they were in Haiphong.
Thus the indiscriminate, non-notified mining by Iran cannot be found to be

360 Law of Naval Operations

within the rules. Whether the U.S. response in attacking and sinking the mine-
laying vessel is within the bounds of reasonable response is a separate issue.

In conclusion, a good argument can be made that the Hague Convention
rules continue to be viable in this age of new technology, that they provide
reasonable rules of conduct, and that these rules seem to be recognized and
followed. Thus the rules remain good guidelines for the operational
commander, and the Handbook under discussion correctly sets them forth for
the purpose.

Notes

* Professor of Law, University of Miami

1. H.A. Smith, The Law and Custom of the Sea, 3d ed. (London: Stevens & Sons Limited, 1959), p. 119.

2. Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines, Oct. 18, 1907,
U.S. Statutes at Large, v. 36, p. 2332, Treaty Series No. 541 [hereinafter Hague VIII].

3. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, NWP 9 (Washington:
1987) [hereinafter the Commander's Handbook].

4. Id., par. 9.2.

5. Humanitarian principles have been used to require notification of mining apart from the Hague
Convention. In the Corfu Channel Case, the Court referred to the obligation on Albania to notify of the
existence of mines, saying, "Such obligations are based not on the Hague Convention No. VIII of 1907
which is applicable in time of war but to certain general and well-recognized principles, namely elementary
considerations of humanity, even more exacting in peace than in war, the principle of the freedom of
maritime communications and every state's obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other states." Hague, International Court of Justice, Corfu Channel Case
([The Hague]: The Court, 1949), v. 4.

6. Article 51 of the United Nations Charter provides: "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." Professor Janis, in commenting, notes that "concommitant with Article 51 's right
to self-defense is Article 2(4) 's prohibition against 'the threat or use of force against the territorial integrity
or political independence of any state.'" Mark W. Janis, An Introduction to International Law (Boston: Little
Brown, 1988), p. 124; see also, Janis, "Neutrality," Chapter VI herein.

7. See, for example, common Article 2 of the four 1949 Geneva Conventions. Convention (I) for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949,
United States Treaties and Other International Agreements [hereinafter U.S.T.] v. 6, p. 3114, T.I.A.S. No. 3362;
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, Aug. 12, 1949, U.S.T., v. 6, p. 3217, T.I.A.S. No. 3363; Convention (III) Relative
to the Treatment of Prisoners of War, August 12, 1949, U.S.T., v. 6, p. 3316, T.I.A.S. No. 3364; Convention
(IV) Relative to the Protection of Civilian Persons in Time of War, U.S.T., v. 6, p. 3516, T.I.A.S. No.
3365. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflict (Protocol I), June 8, 1977, art. 1, Official Records
of the Diplomatic Conference on the Reaffirmation and Development of Humanitarian Law Applicable in Armed Conflicts,
Geneva (1974-1977), v. 1, p. 115, reproduced in Dietrich Shindler & J. Toman (eds.), The Laws of Armed
Conflict: A Collection of Conventions, Resolutions and Other Documents, 3rd ed. (Dordrecht, Netherlands:
Martinus Nijhoff Publishers, 1988), p. 621 (hereinafter Additional Protocol I).

8. A.G.Y. Thorpe, "Mine Warfare at Sea - Some Legal Aspects for the Future," Ocean Development
and International Law, v. 18, p. 255 at p. 256 (1987).

9. Id., p. 257.

10. See, Anna Van Zwanenberg, "Interference with Ships on the High Seas," International and Comparative
Law Quarterly, v. 10, p. 785 at p. 791 (1961).

11. For details, see, Marjorie M. Whiteman, Digest of International Law (Washington: U.S. Govt. Print.
Off. 1963), v. 4, pp. 523-24.

12. Article 22 of the Geneva Convention of the High Seas prohibits boarding a foreign merchant ship
on the high seas unless there is reasonable ground for suspecting that the ship is engaged in piracy or
the slave trade, or is of the same nationality as the boarding ship though showing a different flag.
Convention on the High Seas, April 29, 1958, U.S.T. v. 13, p. 2312, T.I.A.S. No. 5200.

Clingan 361

13. The Hague Convention applies to belligerents. Article 7 states that "The provisions of the present
Convention do not apply except between contracting powers, and then only if all the belligerents are
parties to the Convention." Hague VIII, supra note 2.

14. Additional Protocol I, supra note 7, art. 35, para. 2.

15. Convention (IV) Respecting Laws and Customs of War on Land, Regulations Annex, Oct. 18, 1907,
art. 23(e), U.S. Statutes at Large, v. 36, p. 2227, Malloy, v. 2, p. 2269.

16. Hague VIII, supra note 2, art. 2.

17. Id., art. 3, second paragraph.

18. Id., art. 4.

19. Id., art. 1 (1).

20. Id., art. 1 (2).

21. Id., art. 5.

22. He elaborates: "Modern technology allows for the possibility of interrogating the weapon remotely
to ascertain its state of arming. If the weapon breaks loose, it will become sterilized. The mine will have
sensors that could have discriminatory devices built in. The remote arming devices have a high reliability
factor that transforms the mine into a highly discriminatory weapon, and, if designated as an antisubmarine
warfare weapon, will pose no dangers to nonbelligerent surface shipping." Thorpe, supra note 8, pp. 263-
264.

23. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass
Destruction on the Seabed and the Ocean Floor in the Subsoil Thereof, Feb. 11, 1971, U.S.T. v. 23, p.
701, T.I.A.S. No. 7337.

24. Hague, International Court of Justice, Corfu Channel Case ([The Hague]: The Court, 1949), v. 4.

25. Primarily, the Convention on the High Seas, April 29, 1958, U.S.T. v. 13, p. 2312, T.I.A.S. No.
5200.

26. United Nations Conference on the Law of the Sea, 3d, United Nations Convention on the Law
of the Sea, A/CONF: 62/122 (n.p.: 1982) [hereinafter LOS Convention].

27. At the time of writing, 42 ratifications of the needed 60 have been filed. It should not be overlooked,
however, that some of the provisions of the treaty represent rules of customary international law and
thus may have binding force on that ground.

28. This right is defined in article 19 of the LOS Convention, supra note 26, as passage which is not
prejudicial to the peace, good order, or security of the coastal State. The article specifies a number of
activities which could bring the innocence of a vessel's passage into question.

29. LOS Convention, supra note 26, art. 44.

30. See LOS Convention, supra note 26, Part IV.

31. This expression is a term of art, which does not preclude all military activities.

32. Article 301, LOS Convention, supra note 26, requires states to refrain from any threat or use of
force in any manner incompatible with international law. It would seem that mining might engage this
provision, as well, except in legitimate cases of self-defense.

33. Editorial Comment, Myres McDougal, "The Hydrogen Bomb Tests and the International Law of
the Sea," American Journal of International Law, v. 49, p. 356 at p. 361 (1955).

34. See, generally, William O. Miller, "Belligerency and Limited War," in Richard B. Lillich and John

Norton Moore, eds., U.S. Naval War College International Law Studies, Volume 62, The Use of Force, Human

Rights and General International Legal Issues (Newport, Rhode Island: Naval War College Press, 1980), v.

62, p. 164. Miller stresses the problems relating to classifying activities in strict categories of "war" and
t< »»

peace.

35. Thorpe, supra note 8, p. 269.

36. Geoffrey E. Carlisle, "The Interrelationship of International Law and U.S. Naval Operations in
Southeast Asia," JAG Journal, v. 22, p. 8 at pp. 11-12 (1967).

37. Thorpe, supra note 8, p. 270.

38. Letter dated 11 May 1972, Doc. S/10643. United Nations, Security Council, Official Records: Security
Council, 27th Year, Special Supplement No. 1 (New York: 1972), p. 55.

39. Letter dated 12 May 1972, Doc. S/10644, id., pp. 55-56.

40. William O. Miller, "Law of Naval Warfare," in Lillich & Moore, supra note 34, p. 263 at p. 269.

41. Quoted in Miller, supra note 34, pp. 170-171.

42. The judgment in the case of "Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States of America)" can be found in: Hague, International Court of Justice Yearbook
1985-1986 ([The Hague]: The Court, 1987), pp. 142-160.

43. Richard Grunawalt, "The Rights of Neutrals and Belligerents," Council on Ocean Law and The
Law of the Sea Institute, Transcript of an Evening Panel Discussion on the Persian/Arabian Gulf Tanker War:
International Law or International Chaos, January 26, 1988.

362 Law of Naval Operations

Chapter XIII

Modern Technology and the Law
of Armed Conflict at Sea

by
Horace B. Robertson, Jr.*

Most of the existing written legal rules for the conduct of armed conflict
at sea were adopted before the development of oil propulsion for
warships, radar, electric torpedoes, naval aircraft, aircraft carriers, nuclear-
propulsion submarines and many other modern naval platforms and systems.
These systems and weapons have been in naval inventories for decades. A
comprehensive discussion of how these elements of modern technology
interact with the law of armed conflict at sea would necessarily involve an
analysis of each of these developments and its impact on the relevant norms
of the law of armed conflict. It is not the purpose of this chapter, however,
to examine each of these in detail. The weapons systems and naval platforms
that found their way into naval inventories prior to and during World War
II have found an uneasy peace with the traditional rules. It is rather the purpose
of this chapter to review the norms for the conduct of armed conflict at sea
as they may affect and be affected by technological development, and to
examine briefly how current norms may impact on some of the more exotic
systems that have become a part of naval inventories within recent decades
or are under development and likely to become part of them in the near future.
The occasion for this review is the recent publication of The Commander's
Handbook on the Law of Naval Operations (NWP 9),1 the U.S. Navy's official
manual on operational law, including the law of naval warfare. As such, the
Handbook represents the official position of the United States with respect
to the legality of the deployment and employment of weapons in armed
conflicts at sea. The principal provisions of the Handbook relevant to this issue
are found in Chapter 8, "The Law of Naval Targeting," Chapter 9,
"Conventional Weapons and Weapons Systems," Chapter 10, "Nuclear,
Chemical and Biological Weapons," and Chapter 11, "Noncombatant
Persons." Several aspects of these subjects are addressed in detail in other
chapters of this book — naval targeting in Chapter IX by Sally V. and W.
Thomas Mallison, nuclear, chemical and biological weapons by Howard S.
Levie in Chapter XI, and noncombatant persons by Frits Kalshoven in Chapter

Robertson 363

X. Jon L. Jacobson addresses the particular problem of submarine compliance
with the law of armed conflict in Chapter VIII, and Thomas Clingan addresses
mine warfare in Chapter XII. It is not the purpose of this chapter to repeat
what is said in those chapters but rather to attempt to synthesize the impact
that internationally accepted rules have on the acquisition, retention, or
employment of weapons using exotic or innovative technology. In order to
do so I shall first determine the content of the applicable rules. I shall then
proceed to analyze specific weapons and weapons systems in light of these
rules.

History and Content of the Rules

The basic norm of the humanitarian law of armed conflict is that the right
of parties to adopt means and methods of warfare is not unlimited. This norm
is included in several international instruments2 and, additionally, has been
generally recognized as having attained binding force as customary
international law.3

Flowing from this basic norm are a number of more specific rules setting
forth the limits which are generally applicable to the means and methods of
armed conflict. Like the basic norm, they are a part of customary international
law and in most cases have also been included in one or more international
instruments. Although stated somewhat differently from instrument to
instrument, they include the following principles:

- The distinction between combatants and non-combatants must be recognized.4

- Non-combatants may not be made the object of direct attack.5

- The methods or means of attack of a combatant (or legitimate military target) may
not have indiscriminate effect.6

- As a necessary corollary to the preceding principle, weapons which by their nature
are incapable of being directed specifically against military targets and therefore put
combatants and non-combatants at equal risk are forbidden because of their
indiscriminate effect.7

- Even where an attack is directed specifically at a legitimate military target, if the
incidental effect on non-combatants is disproportional to the value of the military target,
then the attack may not be made.8

- The methods and means of attack may not be such as to cause superfluous injury
or unnecessary suffering.9

- A combatant may not kill or wound an enemy who has surrendered, laid down
his arms or no longer has a means of defense.10

- The methods and means may not include treachery or perfidy.11

Some would include in this list the employment "of methods or means of
warfare which are intended, or may be expected, to cause widespread, long-
term and severe damage to the natural environment."12 This principle made
its first appearance in humanitarian law in Additional Protocol I in 1977, and
can hardly be said at this time to represent customary international law. The

364 Law of Naval Operations

Government of the United States does not recognize this prohibition as part
of customary international law.13

Section 8.1 of Chapter 8 of the Handbook states these general principles in
slightly different terms, as follows:

1 . The right of belligerents to adopt means of injuring the enemy is not unlimited.

2. It is prohibited to launch attacks against the civilian population as such.

3. Distinctions must be made between combatants and noncombatants, to the effect
that noncombatants be spared as much as possible.14

The Handbook then admonishes:

These legal principles governing targeting generally parallel the military principles of
object, mass, and economy of force. The law requires that only objectives of military
importance be attacked but permits the use of sufficient mass to destroy those objectives.
At the same time, unnecessary (and wasteful) collateral destruction must be avoided
to the extent possible and, consistent with mission accomplishment and the security of
the force, unnecessary human suffering prevented. The law of naval targeting, therefore,
requires that all reasonable precautions must be taken to ensure that only military
objectives are targeted so that civilians and civilian objects are spared as much as possible
the ravages of war.15

During the period of the last century and a quarter there has been a series
of attempts in the international arena to translate these general norms into
specific prohibitions against the development or employment of particular
weapon systems that advancing technology has brought into the armaments
of the armed forces of many nations. These efforts have met with only limited
success.

The first attempt was in the St. Petersburg Declaration of 1868, 16 which
contained a prohibition on the use, in time of war, of any projectile of less
than 400 grams which "is either explosive or charged with fulminating or
inflammable substances."17 In other words, only artillery shells, not small
caliber bullets, which presumably would only be directed against humans,
may contain an explosive or incendiary charge. The possibility of future
prohibitions was contemplated.18

This initiative was followed up in 1899 at the Hague by three Declarations,
the first prohibiting the use of bullets that expand or flatten on piercing the
human body ("dum-dum" bullets).19 The second prohibited the discharge of
projectiles and explosives from balloons.20 The third prohibited projectiles
the sole object of which is the diffusion of asphyxiating or deleterious gases.21
The first of these implemented the general norm against weapons that caused
superfluous injury or unnecessary suffering. The second implemented the
general principle against weapons having an indiscriminate effect, and the
third was under the umbrella of both of these general principles.

The Hague Conference of 1907 dealt explicitly with several aspects of naval
warfare. The conventions adopted at the conference included one governing
the conduct of naval bombardment.22 A second, dealing with contact mines,23

Robertson 365

required, inter alia, that unanchored contact mines should automatically disarm
themselves within one hour of the time the person launching the mine ceases
to control them and that anchored contact mines should become harmless
when they have broken loose from their moorings.24 Included within the
contact-mine Convention was a requirement that torpedoes should be
rendered harmless when they have missed their target.25 These restrictions
were acceptable to the conferees because they were obviously in the interest
of the powers that had the technology to develop such weapons since free-
floating mines and torpedoes were just as much a hazard to friendly forces
as enemy. Also the technology to implement these prohibitions was in hand.
The technologically advanced nations were, however, unwilling to
renounce the benefits of technology which might be of benefit to them. As
stated by Antonio Cassese, "Whenever it has turned out that a means of
destruction was really effective, states have refrained from outlawing it."26
He echoes a statement by the United States representative at the 1899 Peace
Conference, who said:

The general spirit of the proposals that have received the favorable support of the
subcommission is a spirit of tolerance with regard to methods tending to increase the
efficacy of means of making war and a spirit of restriction with regard to methods which,
without being necessary from the standpoint of efficiency, have seemed needlessly
cruel. . . .

[I]t is the efficacy that we have wished to safeguard, even at the risk of increasing
suffering, were that indispensable.27

This remains the prevailing attitude among technologically advanced states
and has been reflected in their negotiating positions in more recent
conferences.

In the period between World Wars I and II, diplomatic attempts to prohibit
or restrict specific weapons were limited to two weapons or methods of
warfare — poison gas and the submarine28 — not surprisingly means and
methods of warfare employed first and most effectively by the defeated
powers. The 1925 Protocol for the Prohibition of the Use of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of Warfare29
prohibits the use of asphyxiating, poisonous or other gases and extends that
prohibition to the use of bacteriological methods of warfare. The Protocol
has received wide acceptance, currently being in effect for 135 states.30

The force of these prohibitions is somewhat weakened by the large number
of reservations which declare that the Protocol shall cease to be binding on
the reserving state as to enemy states whose armed forces or allies fail to
respect the prohibition.31 The United States is among those reserving.32 In
light of the combined effect of the large number of parties and the large
number of reservations, it is generally accepted that this Protocol bars only
the "first use" of poisonous gas or bacteriological weapons.33

366 Law of Naval Operations

The efforts to deal with the legality of employment of submarines in naval
warfare are the subject of a separate chapter in this volume and will not be
dealt with in this essay.34

The post- World War II efforts to put limitations on the use of certain
weapons have to a large extent been conducted within the context of
disarmament, which is beyond the scope of this essay, but one of them resulted
in a convention prohibiting bacteriological weapons. That is the 1972
Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their
Destruction.35 Drafted by the Committee on Disarmament, this convention,
going beyond the prohibitions of use included in the 1925 Geneva Protocol,
obligates each State Party:

[NJever in any circumstances to develop, produce, stockpile or otherwise acquire or
retain:

1. microbial or other biological agents or toxins whatever their origins or method of
production of types and in quantities that have no justification for prophylactic,
protective or other peaceful purposes;

2. weapons, equipment or means of delivery designed to use such agents or toxins for
hostile purposes or in armed conflict.36

Parties are also required to destroy or divert to peaceful purposes any stocks
they may already have and may not transfer such agents to any recipient or
"assist, encourage, or induce any state, group of states, or international
organization" to manufacture or acquire them.37

The Committee on Disarmament's initial approach was to include chemical
weapons in the prohibition, but this proved impossible.38

The Convention entered into force in 1975 and has been rapidly and widely
accepted. As of January 1, 1989, it had 110 parties.39

The most significant recent demonstration of the reluctance of states to
commit to specific bans was in the Geneva Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law
Applicable in Armed Conflicts, convened under the sponsorship of the
Government of Switzerland, which met in annual sessions from 1974 through
1977. At that conference, although one of the standing committees was
charged with examining proposals for restrictions on specific weapons, and
the ICRC attempted to assist the process by convening conferences of experts
in 1974 and 1976, no specific bans emerged. Subsequently, a United States
spokesman stated:

[T]here was a considerable measure of agreement on a detailed set of regulations to
govern the recording of [land] minefields, the use of [land] mines in populated areas,
and the prohibition of certain types of especially inhumane booby trap devices.

Useful work was also done on the subject of napalm and other incendiary weapons.
However, it was clear at the end of the conference that large gaps still remained between
those who wanted to prohibit incendiaries generally, and those (including the major

Robertson 367

Western military powers) who were prepared to accept substantial restrictions on the
use of flame weapons in populated areas but were not prepared to give up battlefield
uses of the weapons.40

The conference did, however, take two actions that might be considered
useful with respect to specific bans. The first was the adoption of an article
of additional Protocol I mandating a system of national legal reviews of new
weapons systems before they are produced or acquired.41 The second was the
adoption of a resolution calling on the United Nations to convene a follow-
up conference on the prohibition or restriction of certain conventional
weapons by 1979.42

The requirement for the system of national legal review is found in article
36 of Additional Protocol I, which provides:

In the study, development, acquisition or adoption of a new weapon, means or method
of warfare, a High Contracting Party is under an obligation to determine whether its
employment would, in some or all circumstances, be prohibited by this Protocol or any
other rule of international law applicable to the High Contracting Party.

Several important points should be noted about article 36. First, the article
applies only to "new" weapons. It may, however, also apply to a "new use"
(method) of an old system. Second, the state party's determination that a new
weapon, means or method of warfare is prohibited would not mean that the
state is prohibited from acquiring or possessing the weapon. A nation may,
for example, stockpile weapons it determines to be prohibited for use as an
instrument of reprisal (provided, of course, that weapon is not absolutely
prohibited by some absolute rule against acquisition or retention (e.g.,
biological weapons)). Third, the state is to examine whether a weapon would
be prohibited either because it is inherently unlawful in any form of
employment (e.g. , indiscriminate effect) or only in "some" circumstances. The
conferees recognized that any weapon could be misused in a way that is illegal.
The purpose of the national evaluation is to analyze the weapon in terms of
its "normal or expected use."43 Fourth, the applicable standards for review
are the terms of Additional Protocol I itself (primarily article 35) or "any
other rule of international law applicable to the High Contracting Party."
This presumably includes the customary rules of the law of armed conflict
as well as treaties. And finally, the determination of legality velnon is a national
determination. It does not establish a standard that must be applied by other
states; there is no requirement that it be published.44

Article 36 might be regarded as a bridge between the general prescriptive
norms established by Article 35 and the enforcement of prohibitions or
restrictions on specific weapons or methods of warfare. Some states wished
to establish an international body with authority to monitor and draw up lists
of weapons or methods of use that fell within the proscription of article 35.45

368 Law of Naval Operations

Other states felt that this would put the Conference into the field of
disarmament, a subject beyond its competence.46

The article as adopted is a compromise between these two points of view.
It was an international application of procedures already in place in several
states, and for that reason it could command wide support from Western
military powers. Under Department of Defense Instruction 5500.15 the
United States, for example, had established a program in 1974 that stated a
policy that:

All actions of the Department of Defense with respect to the acquisition and
procurement of weapons, and their intended use in armed conflict, shall be consistent
with the obligations assumed by the United States Government under all applicable
treaties, with customary international law, and, in particular, with the laws of war.47

The Instruction placed responsibility on each Military Department to
ensure that the Judge Advocate General of the Department would review
all weapons intended to meet a military requirement to determine whether
they were consistent with the above-quoted criteria. This review was to be
conducted "prior to the award of an initial contract for production" and "at
such subsequent stages in acquisition or procurement as the Judge Advocate
General concerned determines it is appropriate."48 The Judge Advocates
General are required to maintain permanent files of opinions issued by them.49
Each of the military departments has implemented this Instruction by internal
regulations detailing how and when these reviews shall be conducted.50

As to the second outcome of the 1977 Conference dealing with specific
bans (the Resolution calling for the United Nations to convene a follow-up
conference), the United Nations responded by convening two sessions of a
Preparatory Conference in 1978 and 1979 and a United Nations Diplomatic
Conference on Prohibitions or Restrictions of Use of Certain Conventional
Weapons Which May Be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects, which met in 1979 and 1980. The latter produced a
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.51 The operative portions of the convention
are contained in three Protocols, the first prohibiting use "of any weapon
the primary effect of which is to injure by any fragments which in the human
body can escape detection by x-rays."52 The second contains prohibitions and
restrictions on the use of land mines, booby traps and other devices.53 The
third deals with incendiary weapons.54 It does not prohibit the use of
incendiary weapons such as napalm against military objectives, but it prohibits
making "the civilian population as such, individual civilians or civilian objects
the object of attack by incendiary weapons."55 It also prohibits making a
military objective within a concentration of civilians the object of attack by
air-delivered incendiary weapons; and prohibits such attacks by non-air-

Robertson 369

delivered weapons except when the objective is clearly separated from the
non-military objects and "all feasible precautions" are taken to limit the
incidental harm to civilians and civilian objects.56

The Conference, although unable to agree on a protocol on the subject
of small calibre weapons, adopted a resolution calling for further research
on the wounding effects of small calibre weapon systems and urging
governments "to exercise the utmost care in the development of small-calibre
weapons systems, so as to avoid an unnecessary escalation of the injurious
effects of such systems. "57

The Convention entered into force in 1983, but the United States has not
become a party to it. In a statement made at signature, the United States
made a Declaration which included the following statement:

As indicated in the negotiating record of the 1980 Conference, the prohibitions and
restrictions contained in the Convention and its Protocols are of course new contractual
rules (with the exception of certain provisions which restate existing international law)
which will only bind States upon their ratification of, or accession to, the Convention
and their consent to be bound by the Protocols in question.58

The second Protocol, dealing only with methods of land warfare, is beyond
the scope of this essay. The first Protocol, of course, is a specific ban of a
particular weapon, and, if applicable, would bar employment of such a
weapon by a combatant. It is interesting to note that despite the U.S.
declaration that the prohibitions and restrictions of the Protocols are
contractual and bind states only upon their becoming parties to them, the
Handbook takes the position that "using materials that are difficult to detect
or are undetectable by field x-ray equipment, such as glass or clear plastic,
as the injuring mechanism in military ammunition is prohibited, since they
unnecessarily inhibit the treatment of wounds/'59 The Annotation60 does not
cite the 1980 Protocol I as authority for this proposition, and since it is included
in a paragraph entitled "Unnecessary Suffering/ ' it must be presumed that
the authors of the Commander's Handbook considered the use of such materials
as contrary to the general principle against inflicting unnecessary suffering.

Some commentators have been critical that the conferences held in the
decade of the 70's did not make more progress in establishing prohibitions
on specific weapons, means or methods of warfare. Antonio Cassese, for
example, has said that confining the prohibitions to general principles has
two major disadvantages: first, "they are couched in very vague terms" and
second, "[t]heir application is left to the belligerents concerned."61 As a result,
he says, a belligerent who believes his enemy is using an illegal means, can
only resort to reprisals or a threat of prosecution of those responsible as war
criminals.62 Echoing the comments at and after the Hague Conferences, he
concludes that the ultimate question then comes down to one of power. He
says:

370 Law of Naval Operations

[WJhether this kind of reaction can produce any real effect actually depends on how
strong the belligerent resorting to it is. Ultimately, therefore, the implementation of
the general principles on weapons turns on the military strength of the belligerent; strong
States can dodge the bans without fear. The only "sanction" against them is to resort
to world public opinion.63

But Cassese also recognizes the inadequacies of specific bans. The principal
one he points out is that prohibitions always lag behind new weapon
development. Thus, a technologically advanced nation can always develop
a new weapon, perhaps equally or more cruel, to replace one that is
specifically banned.64 "As a result," he says, "the gap between technologically
developed States and less advanced countries could be widened. . . ,"65

What can we then conclude from this review of authority as to the
limitations that will apply to a state, particularly a technologically advanced
state such as the United States, when it makes a decision as to the acquisition
or employment of a naval weapon that its technology is capable of producing
or in evaluating the legality of one produced or used by an adversary?

Of the general principles listed earlier, it is to be noted that most of them
apply to the manner of employment of weapons — that is, targeting, which
is dealt with in another chapter of this book.66 Only three would prohibit
use of the weapon itself, irrespective of how it is used. These three are:

- a weapon may not have indiscriminate effect;67

- a weapon may not be such as to cause superfluous injury or unnecessary suffering;68
and

- a weapon may not be one that could only be used in a treacherous or perfidious
mode.69

Specific bans are applicable in a few cases:

- unanchored automatic contact mines must be designed so as to be rendered harmless
one hour after they are no longer under control;70

- anchored contact mines must be designed so as to become harmless when they break
away from their moorings;71

- torpedoes must be designed to become harmless when they have missed their mark;72

- a state may not resort to "first use" of poisonous gas;73

- bacteriological weapons, or their means of delivery, cannot be developed, produced,
stockpiled or otherwise acquired or retained.74

- a state 'may not use any weapon the primary effect of which is to injure by fragments
which in the human body can escape detection by x-rays.75

Having reviewed both the general and specific limitations that may apply
when new technology is converted into weapons, we can now proceed to
analyze the effect these limitations may have on the acquisition, retention
or employment of specific weapons systems that have recently come into
national armament stocks or that are under development. In conducting this
analysis, I shall single out a few weapon systems that have, in the minds of
some, raised questions of their legality without attempting to be
comprehensive. In addition, I shall use as primary exemplars American

Robertson 371

systems. I shall also, where appropriate, see how these weapons are treated
in the Commander's Handbook on the Law of Naval Operations (NWP 9) and express
at least a tentative opinion as to whether NWP 9's position on the issue is
justified. As a predicate for the latter task, I might reiterate what I stated
in the Preface to this volume.76

NWP 9 is what it states itself to be — a "commander's" handbook, meant
for the guidance of operational commanders and their staffs to assist them
to conform their operations — peacetime as well as wartime — to the dictates
of international law. It is therefore written in terms understandable to the
lay person. Some might say it paints the picture too much in black and white,
not recognizing the delicate shadings that reflect the actual state of the law
that are so dear to the hearts of international-law scholars. It contains no
footnotes for the benefit of scholars who may wish to know the source of
the "rule" stated. But, as pointed out in its Preface, it is not a "substitute
for the definitive legal guidance provided by judge advocates and others
responsible for advising commanders on the law."77

For the benefit of these "judge advocates and others" who will provide
fuller guidance, there is an encyclopedic "Annotated Supplement"78 to NWP
9, prepared under the auspices of the Naval War College and the Judge
Advocate General of the Navy for distribution to judge advocates having
responsibility for advice to operational commanders. The Annotated Supplement
gives a section-by-section analysis of NWP 9 with full discussion of the
concepts involved and the sources of the rules stated. It will be an invaluable
resource to persons who will provide advice to commanders at all levels of
command as well as to scholars engaged in research.

Specific Weapons Systems79

Over-the-Horizon Weapons Systems. One of the most significant weapon-
system developments in the post- World War II era is the over-the-horizon
projectile. There are many variations of such systems which are now
operational or in development in the United States and other navies.
Typically, in the marine environment, such weapon systems consist of a
turbofan- or turbojet-propelled cruise missile armed with either a nuclear
or high-explosive warhead and the associated shipboard or aircraft
installations for launching and initial guidance. The missile may be launched
from aircraft, or when equipped with a rocket booster motor, from surface
ships and submarines. It may follow a preprogrammed cruise flight path or
may be controlled during flight from the launching platform or pre-positioned
guidance vessel or aircraft. Its terminal guidance may be heat-seeking, active
radar homing, television monitoring, or some other system.

The two most prominent guided-missile systems currently in the United
States Navy's inventory are the Tomahawk Sea-Launched Cruise Missile and

372 Law of Naval Operations

the Harpoon Surface-to-Surface Missile. The former of these is a long-range
(over 450 kilometer) turbofan-propelled cruise missile designed for submarine
or surface ship launching against ships or land targets. The latter is a shorter
range (over 90 kilometer) turbojet-propelled cruise missile designed primarily
for attacks on surface ships. For land-target attacks the Tomahawk uses an
inertial guidance system with advanced terrain contour matching (TERCOM)
for course corrections and target acquisition. For attacks on ships, both the
Tomahawk and Harpoon use inertial guidance to the vicinity of the target
where active radar is switched on to detect and lock on the target.

In his 1972 article, "The Legality of Cruise Missiles,"80 D. P. O'Connell
observed that:

[T]he specific questions that should be posed [as to the legality of naval cruise missiles]
are whether the existing rules of international law respecting discrimination between
military and civilian targets can be observed in practice . . ., and whether the immunity
of neutral shipping from attack can be respected.81

The questions remain the same today. The questions suggest, and correctly
so, that the weapon itself is not per se illegal, but rather that the legality of
its use depends on the particular circumstances prevailing at the time of the
intended employment. Where the conflict is being conducted in an area where
there is small likelihood that anything but legitimate targets will be present,
the use of long-range surface-to-surface or air-to-surface missiles would be
entirely legitimate. But as the recent experience in the Persian-Arabian Gulf
war between Iran and Iraq has shown, the risk ot error in identification of
targets is high when the naval conflict takes place in an area in which neutral
warships and shipping are intermingled in close proximity with the naval
forces and merchant shipping of the contending powers. In all long-range
systems of which I am aware, the initial guidance system only takes the missile
to the general vicinity of the target, at which point the terminal guidance
system takes over, picks out the target and self-guides the missile to it, usually
through an infrared homing device or active radar acquisition and tracking.
In either event, the missile's ability to discriminate between legitimate and
illegitimate targets that may be in the area is limited. The legality of using
such long-range weapons would depend on a balancing of the risk of harm
to non-legitimate targets with the importance of the legitimate target to the
accomplishment of the military mission.82

The Commander's Handbook recognizes these limitations. With respect
to over-the-horizon weapons, it provides:

Missiles and projectiles dependent upon over-the-horizon or beyond-visual-range
guidance systems are lawful, provided they are equipped with sensors, or are employed
in conjunction with external sources of targeting data, that are sufficient to ensure
effective target discrimination.83

Robertson 373

CAPTOR Mine. Although mine warfare is the subject of a separate chapter
herein,84 it is appropriate to consider the CAPTOR mine briefly in this chapter
as well, since it is a technologically sophisticated weapon system which has
made its appearance in the last decade or so.

CAPTOR is an American antisubmarine weapon consisting of an
encapsulated Mark 46 torpedo, which is anchored to the ocean floor in the
same manner as a naval mine, and can be laid by either submarines or aircraft.
When its acoustic detection system determines that an enemy submarine is
within range, it launches the torpedo, which homes on the target.

CAPTOR thus has some of the characteristics of a mine and some of a
torpedo. It would thus be subject to any specific restrictions applicable to
torpedoes or mines, as well as any more general restrictions.

As we have seen, the only specific limitation on mines and torpedoes are
those contained in Hague VIII.85 Since, however, Hague VIII deals only with
"automatic contact mines,,, its specific prohibitions and restrictions are
inapplicable to CAPTOR. Its provision with respect to torpedoes is limited
to a prohibition against use of "torpedoes which do not become harmless when
they have missed their mark."86 This latter provision poses no problem to
the legality of CAPTOR, since all United States-designed torpedoes are
designed to sink to the bottom and become harmless when they have
completed their propulsion run.87

With respect to the general prohibitions, the only one that could possibly
be applicable is that prohibiting a weapon which may have indiscriminate
effect. Although once laid, the CAPTOR mine is not within the control of
the party that has planted it, its design incorporates features that prevent it
from having indiscriminate effect. Its sensors permit it to recognize the
"signatures" of enemy submarines, thus preventing it from being activated
by an unintended target vessel. Once launched, the torpedo itself is "gated"
to prevent it from straying outside pre-set depth parameters and becoming
a danger to surface shipping that may be in the area. CAPTOR thus does
not appear to fall within the prohibition against weapons having
indiscriminate effect.

Although the Commander's Handbook does not single out CAPTOR for
specific comment in its sections on naval mines88 and torpedoes,89 its discussion
of the limitations and prohibitions on the employment of mines appears to
comply with the prohibitions discussed. The Handbook acknowledges that
'[technological developments have created weapons systems obviously not
contemplated by the drafters of [the 1907 Hague] rules."90 It then adds,
"Nonetheless, the general principles of law embodied in the 1907 Hague
Convention continue to serve as a guide to lawful employment of naval
mines."91

374 Law of Naval Operations

Directed Energy Devices. Of all the weapons systems brought forth by modern
technology, the most exotic are those using directed energy devices. While
evoking images of "Buck Rogers in the 25th Century" and "Star Wars," the
fact is that some of these devices are already incorporated into a number of
current weapon systems, primarily for such functions as range-finding, target-
designating or target-illuminating. But the energy stream they emit may also
directly disable enemy materiel or injure or kill enemy personnel. Because
they are particularly effective in space, where their energy is not scattered
or attenuated by the atmosphere or pollutants, they will comprise essential
components of the United States' Strategic Defense Initiative. The United
States Department of Defense has reported that the Soviet Union is
developing high-energy lasers for strategic air defense, space-based anti-
satellite missions, and possibly for anti-ballistic-missile defense.92

"Directed energy" is a generic term embracing three technologies: lasers,
high-powered microwave devices, and particle beams. All have in common
the production and emission of a stream or beam of concentrated electro-
magnetic energy or atomic or sub-atomic particles.

Lasers emit a focused, very narrow beam of energy. In their low-energy
versions, they may be used for range-finding, target-designating or target
illuminating for a variety of weapon systems or to dazzle or distract an
approaching watercraft or aircraft by creating a flash of light when the beam
strikes the windscreen of the craft. The effect is much like that of attempting
to drive an automobile directly into a rising or setting sun. Even a low-energy
laser can cause retinal damage and temporary or permanent visual impairment
to a person who is looking directly at the emitter, since the eye focuses the
beam on a small spot on the retina. The harm is aggravated and the range
of harm is extended if the person is using binoculars. In their high-energy
versions, lasers can physically damage enemy materiel by the rapid buildup
of intense heat on the target. They can jam or cause permanent damage to
optical, electro-optical, or infrared systems.

Microwave devices propagate much like light beams but are absorbed and
reflected differently. They can pass through glass, plastic and fabric with little
or no energy loss and can guide on metallic objects such as wires. These devices
can jam or cause permanent damage to materiel components either by
disrupting electric or electromagnetic circuits or causing physical damage by
rapid heat buildup.

Particle beam devices differ from lasers and microwave devices in that they
actually transmit matter rather than energy. The absorption of the matter
by the target creates intense heating, which can cause meltdown or
destruction of components. Impact with the target may also create secondary
emissions ot gamma and x-rays. These devices do not appear to have much
capability for current tactical application because they require an extremely
high power accelerator and power source, which cannot be made

Robertson 375

transportable. They will probably find application in anti-ballistic-missile and
anti-satellite systems, a discussion of which is beyond the scope of this paper.
Most of the discussion on the legality of directed energy devices has
centered on lasers. At the 1974-77 Diplomatic Conference on Humanitarian
Law, several nations attempted to bring the matter forward, but were
unsuccessful. Again, at the follow-on U.N. Conference on Certain
Conventional Weapons in Geneva in 1978, the subject was raised but not dealt
with. At the XXV International Conference of the Red Cross in 1986, Sweden
and Switzerland offered a resolution condemning the blinding effect of laser
weapons, but it did not gain much support and was not adopted by the
Conference. The most recent attempt of Sweden to raise the issue is
summarized by the Judge Advocate General of the Army as follows:

In April 1988 Sweden again endeavored to raise the issue, though in substantially
modified form. It acknowledged the legality of the use of lasers to produce flash effects
to combatants; accepted the lawfulness of the use of lasers for rangefinding, target
acquisition, and similar military purposes; and also accepted the legality of blinding of
enemy combatants incidental to the use of a laser for the above-cited purposes. Sweden's
most recent effort proposed to prohibit use of lasers as antipersonnel weapons per se.
This proposal, offered first on an informal basis to delegates to the United Nations
Committee on Disarmament in Geneva on 18 April 1988, and subsequently to the United
Nations Special Session on Disarmament III in New York in June, 1988, met with no
success in either instance.93

Pursuant to Department of Defense Instruction 5500.1 5, w the Judge
Advocate General (JAG) of the Army reviewed the legality of the use of lasers
as antipersonnel weapons. In a memorandum of law, concurred in by the Judge
Advocates General of the other military departments,95 the JAG concluded
that "the use of lasers as antipersonnel weapons would not cause unnecessary
suffering nor otherwise constitute a violation of the international legal
obligations of the United States. Accordingly, the use of a laser as an
antipersonnel weapon is lawful." The rationale for the conclusion was that
blinding was "no stranger to the battlefield," since it already occurred from
multiple causes; "potential laser injuries can be minimized with the utilization
of appropriate protective equipment and defensive actions;" although lasers
may cause permanent blindness, many injuries caused by admittedly lawful
weapons also result in permanent disabling effects; the prohibition against
employment of "arms, projectiles, or material calculated to cause unnecessary
suffering" (Hague IV, art. 23 (e)) must be balanced against "the necessity
for destructive power adequate to meet a variety of threats at a variety of
ranges and in a variety of circumstances;" and finally, that prohibiting direct
laser attacks on enemy combatant personnel would lead to the anomaly "that
a soldier legally could be blinded ancillary to the lawful use of a laser
rangefinder or target acquisition lasers but could not be attacked
individually."96

376 Law of Naval Operations

Lasers and other directed energy devices must be examined for their legality
on the basis of the same criteria we have used in looking at the other weapons
systems discussed earlier.97 Of those criteria, only two appear to have possible
applicability. These are that a weapon may not have indiscriminate effect,
and a weapon may not be such as to cause superfluous injury or unnecessary
suffering.

As to the first of these — indiscriminate effect — it would appear that
directed energy devices have a higher order of discrimination than almost
any other weapon, current or projected, in military arsenals. The streams
of energy are highly focused and narrow; they travel at or near the speed
of light and thus "hit" the target essentially at the same time they are
launched, eliminating the problem of "leading" the target to obtain a hit;
and since they travel in a straight line, they are essentially limited to line
of sight, drastically reducing the danger to objects or persons not being
targeted.

The Army JAG memorandum of law focused on the second criterion —
superfluous injury or unnecessary suffering. The most severe effects on
personnel produced by lasers are blindness, temporary or permanent, and,
at high powers, severe skin burns. As to the former of these, the Army
memorandum states:

The human eye is particularly susceptible to laser light in the visible and near infrared
portions of the electromagnetic spectrum because of the focussing properties of the
human cornea and lens. Laser light incident on the cornea ... is focussed to a very
small retinal spot increasing the energy per unit area on the retina by a factor of 100,000
times. At these levels the high concentration of light is sufficient to produce irreversible
damage by a mechanism known as photocoagulation. At these high levels of laser
irradiation the effects on the human eye may be the appearance of a large retinal burn
with accompanying hemorrhage into the portion of the eye behind the lens. As the
incident laser energy is reduced, the hemorrhage is no longer a factor and the size of
the retinal burn diminishes. As the laser exposure level falls below the threshold for
retinal burn, the effect is one of bright light exposure producing a dazzle or glare
phenomenon. In general the factors of importance in laser-induced trauma of the eye
follow those of exposure to any intense light source, including the sun.98

The Army memorandum concludes that neither blindness nor permanent
disablement on the battlefield are unique to laser weapons. The mere fact
that a particular weapon causes one form of disablement rather than another
is no justification for concluding that one is legal while the other is not.
Further, according to the Army memorandum:

Proposals to conclude that the use of a laser to intentionally blind would result in
unnecessary suffering would lead to a contradiction in the law in that a soldier legally
could be blinded ancillary to the lawful use of a laser rangefinder or target acquisition
lasers against materiel targets, but could not be attacked individually."

This final argument seems somewhat specious to me. The principle of
distinction underlies many of the norms of the humanitarian law of armed

Robertson 377

conflict. The most notable, of course, is the prohibition against making direct
attacks on civilians and civilian objects while permitting injury or damage
to civilian and civilian objects as an inevitable incident of attacks on legitimate
military objectives. I see no anomaly in allowing incidental eye damage from
use of laser range-finding or target acquisition while prohibiting lasers for
the sole purpose of permanently blinding enemy combatants. It may be
difficult to police the distinction made, but there is no theoretical basis for
not making such a distinction.

The Army JAG memorandum only mentions skin burns in passing, pointing
out that, "Incendiary weapons have been in use by most nations throughout
the history of war." The memorandum also rightly points out that attempts
to enjoin their use against military personnel foundered at the 1978-80 United
Nations Conference on Certain Conventional Weapons. In this respect, the
Army memorandum is undoubtedly correct, and there is no reason to believe
that burns caused by lasers or other directed-energy weapons are any more
horrible than burns caused by napalm bombs, flame-throwers or other
incendiary weapons.

The Commander's Handbook does not specifically address directed energy
devices or weapons. It does include a paragraph on incendiary weapons,
stating that they are lawful provided they are employed "in a manner that
minimizes uncontrolled or indiscriminate effects on the civilian population
consistent with mission accomplishment and force security.,,10°

Depleted Uranium Ammunition. Depleted uranium is the metal that remains
after the fissile, highly radioactive uranium has been removed to make nuclear
weapons. Its high atomic weight and its extreme hardness make it the ideal
material for a number of commercial applications, such as machine tool boring
bars, gyroscope rotors and oil well drill collars as well as counterweights in
military and commercial aircraft and keel ballast for high performance sailing
yachts. Its great mass also makes it an ideal material for projectiles intended
to destroy or disable the target by physical impact. The Navy's Phalanx close-
in weapon system, which is designed for last-ditch defense against attacking
high speed aircraft or guided missiles, uses a five-barrel Gatling gun firing
several thousand 20mm depleted uranium projectiles per minute. The U.S.
Air Force also uses a 30mm version as its main anti-tank weapon for its A-
10 aircraft.

The question of whether the use of such projectiles breaches any norm of
the law of armed conflict depends on whether they are "poisoned weapons,"
prohibited by article 23 of the Hague (IV) Regulations for land warfare101
and by the customary law of warfare at sea.102

Depleted uranium can hardly be considered as poison, however. The
radioactivity it emits is said to be less than one-seventh that of the luminous
dial of a wristwatch. An Air Force source states that a man could hold a 30mm

378 Law of Naval Operations

round of depleted uranium ammunition for four and one-half hours per day
forever and not exceed the permissible radiation dose. Further, its chemical
toxicity is less than lead, which is a commonly used component of ballistic
projectiles.

Conclusion

This admittedly selective review of some of the weapons systems brought
forth under advancing technology has shown that none of the weapons
reviewed can be said to be unlawful per se, although, like all other weapons
systems, they can be employed in such a way as to make their use unlawful.
Furthermore, if current technological trends continue, weapons will become
more discriminating, although more highly destructive. The Commander's
Handbook, although not dealing with each of these systems explicitly, sets forth
principles that are adequate to provide guidance to commanders employing
such weapons so that they may avoid using them in an unlawful manner. In
addition, the legal review processes established by the Secretary of Defense
and implemented by each of the Military Departments provide a mechanism
for continuing oversight of the development, deployment, and employment
of new, technologically advanced systems to ensure that the legal restraints
on their development and use are considered by appropriate officials.

Notes

* Professor of Law (Emeritus), Duke University School of Law; Rear Admiral, Judge Advocate General's
Corps, U.S. Navy (Ret.).

1. The Commander's Handbook on the Law of Naval Warfare (NWP 9) (1987) (hereinafter The Commander's
Handbook or Handbook).

2. See, e.g., Institute of International Law, The Laws of Land Warfare, Manual Published by the Institute
of International Law (Oxford Manual), September 9, 1880, art. 4, Annuaire de I'Institut de Droit International,
v. 5, p. 156 (1880), D. Schindler & J. Toman, The Laws of Armed Conflict: A Collection of Conventions, Resolutions
and Other Documents, 3rd ed. (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988), p. 35 (hereinafter
Schindler & Toman); Hague Convention (II) with Respect to the Laws and Customs of War on Land,
July 29, 1899, Annexed Regulations, art. 22, United States Statutes at Large, v. 32, p. 1803 (hereinafter Hague
II); Hague Convention (IV) Respecting the Laws and Customs of War on Land, October 18, 1907, Annexed
Regulations, art. 22, United States Statutes at Large, v. 36, p. 2227 (hereinafter Hague IV); Protocol Additional
to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts (Protocol I), June 8, 1977, art. 35, para. 1, Official Records of the Diplomatic Conference on
the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-
1977), v. I, p. 115 (hereinafter Additional Protocol I), Schindler & Toman, pp. 621, 644.

3. Cassese, "Means of Warfare: The Present and the Emerging Law," Revue Beige de Droit Internationale,
v. 12, p. 143 at p. 144 (1976); International Committee of the Red Cross (Y. Sandoz et al., eds.), Commentary
on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff
Publishers, 1987), p. 390 (hereinafter Commentary); General Counsel, U.S. Department of Defense Letter
of September 22, 1972, excerpts reprinted in American Journal of International Law, v. 67, p. 122 (1973)
(hereinafter General Counsel, DOD, letter).

4. According to the ICRC's Commentary on Additional Protocol I, "The entire system established
in The Hague in 1899 and 1907 and in Geneva from 1864 to 1977 is founded on this rule of customary
law." Commentary, supra note 3, p. 598 (footnotes omitted). The rule is specifically codified in article 48
of the Additional Protocol as follows:

Robertson 379

In order to ensure respect for and protection of the civilian population and civilian objects, the
Parties to the conflict shall at all times distinguish between the civilian population and combatants
and between civilian objects and military objectives and accordingly shall direct their operations
only against military objectives.
See also General Counsel, DOD, letter, supra note 3, p. 123; Commentary, supra note 3, p. 615.

5. This principle was codified for the first time in Additional Protocol I, supra note 2, art. 51, para.
2; see also art. 57, para. 1. Although the United States has not become a party to Protocol I and has expressed
its intention not to do so, the United States regards many of its provisions as codifications of binding
customary law. See Remarks of Michael J. Matheson, Deputy Legal Adviser, Department of State, "The
United States Position on the Relation of Customary International Law to the 1977 Protocols Additional
to the 1949 Geneva Conventions," American University Journal of International Law and Policy, v. 2, no. 2 (Fall
1987), pp. 419-436. Mr. Matheson, in his remarks, indicated that one way the United States may indicate
its agreement that a particular provision of Protocol I has attained the status of customary international
law is by inclusion of the principle in a military manual. Id., p. 421. It should therefore be noted that
the Handbook prohibits launching "attacks against the civilian population as such." Commander's Handbook,
supra note 1, para. 8.1.

In an unclassified memorandum to the Deputy Assistant Secretary of Defense for Negotiations Policy,
the United States Joint Chiefs of Staff forwarded a list of the articles of Additional Protocol I that should
be "Recognized or Supported as Customary International Law." This list included, inter alia, articles 32-
34 (basic principles), art. 45 (persons who have taken part in hostilities), art. 51, para. 2, and art. 52, paras.
1 and 2, except for the reference to reprisals, and art. 57, paras. 1, 2 (c), 4, and 5 (civilians). JCS memorandum
MJCS-49-86, of March 18, 1986, subj: "1977 Protocols Additional to the Geneva Conventions: Customary
International Law Implications" (copy in files of author).

6. This rule of customary law is codified in article 51 para. 4 (c) of Additional Protocol I, supra note
2.

7. Although accepted as a principle of customary international law, see General Counsel, DOD, letter,
supra note 3, it is codified in a treaty for the first time as article 51, paragraph 4, of Additional Protocol
I, supra note 2.

8. This principle is now codified in Additional Protocol I, supra note 2, art. 51, para. 5 (b).

9. Hague II, supra note 2, art. 23 (e); Hague IV, supra note 2, art. 23 (e); Additional Protocol I, supra
note 2, art. 35, para. 2. Although Hague II and Hague IV apply explicitly only to war on land, the general
principles included in those Conventions are generally regarded as a part of the customary law of the
sea, and, of course, "to the extent that naval hostilities may involve the use of weapons whose principal
employment is in land warfare, it is clear that the rules applicable to land forces are equally applicable
to naval forces." Robert W. Tucker, International Law Studies: The Law of War and Neutrality at Sea
(Washington: U.S. Govt. Print. Off., 1957), p. 50 and note 12.

10. Hague II, supra note 2, art. 23 (c); Hague IV, supra note 2, art 23 (c); Additional Protocol I, supra
note 2, art. 41. See also common article 3 of the four 1949 Geneva Conventions, which lays down minimum
conditions of humanitarian conduct in cases of armed conflict "not of an international character." The
texts of these Conventions are published in numerous publications. For ready reference only the U.S.
Treaty Series and Schindler & Toman are listed. Convention (I) for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, United States Treaties and Other
International Agreements (hereinafter cited as U.S.T.) v. 6, pp. 3114-3216, T.I.A.S. 3362, Schindler & Toman,
supra note 2, pp. 373-399 (hereinafter 1949 Geneva Convention I); Convention (II) for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, U.S.T. , v. 6,
pp. 3217-3315, T.I.A.S. 3363, Schindler & Toman, supra note 2, pp. 401-422 (hereinafter 1949 Geneva
Convention II); Convention (HI) Relative to the Treatment of Prisoners of War, U.S.T. v. 6, pp. 3316-
3515, T.I.A.S. 3364, Schindler & Toman supra note 2, pp. 423-493 (hereinafter 1949 Geneva Convention
III); Convention (IV) Relative to the Protection of Civilian Persons in Time of War, U.S.T., v. 6, pp.
3516-3695, T.I.A.S. 3365, Schindler & Toman, supra note 2, pp. 495-562 (hereinafter 1949 Geneva
Convention IV).

11. Hague II, supra note 2, art. 23 (b) and (f); Hague IV, supra note 2, art. 23 (b) and (f); Additional
Protocol I, supra note 2, art. 37.

12. This prohibition is found in article 35, para. 3, of Additional Protocol I, supra note 2.

13. Remarks of Michael J. Matheson, supra note 5, at p. 424. Mr. Matheson stated that the provision
"is too broad and ambiguous and is not a part of customary law." Id.

14. Commander's Handbook, supra note 1, para. 8.1.

15. Id.

16. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes
Weight. St. Petersburg, December 11, 1868. American Journal of International Law (Supp.), v. 1, pp. 95-96
(1907), Schindler & Toman, supra note 2, pp. 101-103.

380 Law of Naval Operations

17. Id.

18. Id.

19. Declaration (IV, 3) Concerning Expanding Bullets. The Hague, July 29, 1899, James B. Scott, ed.,
The Hague Conventions and Declarations of 1899 and 1907, 3rd ed. (3rd ed., Carnegie Endowment for
International Peace, 1918), pp. 227-28 (hereinafter, Scott, Hague Conventions), Schindler & Toman, supra
note 2, pp. 109-10.

20. Declaration (IV, 1) to Prohibit, for the Term of Five Years, the Launching of Projectiles and
Explosives from Balloons, and Other New Methods of Similar Nature. The Hague. July 29, 1899. Scott,
Hague Conventions, supra note 19, pp. 220-23, Schindler & Toman, supra note 2, pp. 201-05. A similar
Declaration (but with the time limit extended "for a period extending to the close of the Third Peace
Conference") was adopted at the 1907 Hague Conference. The latter, Declaration (XIV) Prohibiting the
Discharge of Projectiles and Explosives from Balloons, but not the former, was ratified by the United
States. United States Statutes at Large, v. 36, pp. 2439-43, Schindler & Toman, supra note 2, pp. 201-06. All
three of the Declarations, like the Conventions themselves, were only binding if all parties to the conflict
were contracting parties. This constituted a substantial drawback to their effectiveness unless the principles
adopted constituted customary international law.

21. Declaration (IV, 2) Concerning Asphyxiating Gases, The Hague, July 29, 1899. Scott, Hague
Conventions, supra note 19, pp. 225-26, Schindler & Toman, supra note 2, pp. 105-07.

22. Convention (IX) Concerning Bombardment by Naval Forces in Time of War. The Hague. October
18, 1907. United States Statutes at Large, v. 36, pp. 2351-70, Schindler & Toman, supra note 2, pp. 811-17.

23. Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines, The Hague,
October 18, 1907. United States Statutes at Large, v. 36, pp. 2332-50, Schindler & Toman, supra note 2, pp.
803-09.

24. Id., art. 1, pars. 1 and 2.

25. Id., art. 1, para. 3.

26. Cassese, supra note 3, at p. 149.

27. Statement of the representative of the United States, Third Subcommission, James B. Scott, ed.,
The 1899 Hague Peace Conference, Proceedings of the Hague Peace Conferences, Conference of 1899 (Translation
of Official Text) (New Edition) (The Hague: Martinus Nijhoff, 1920), p. 354, quoted by Cassese, supra
note 3, at p. 149.

28. Outside the field of disarmament, the other attempt at regulation of the means or methods of warfare
during this inter-war period was directed to air warfare. The Hague Rules of Air Warfare, drafted by
a Commission of Jurists in 1922-23 did not attempt to prohibit or restrict specific weapons but rather
confined themselves to reiteration of the general principles reflected in other instruments or in customary
international law. The only reference to specific weapons is in article 18, which provides that, "The use
of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited." (Emphasis added.)
It adds that this provision "applies equally to states which are parties to the Declaration of St. Petersburg,
1868, and to those which are not." Presumably this would free a state to use explosive projectiles of less
than 400 grams in its combat aircraft attacking human targets on the ground, a retrogression from the
humanitarian rule of the St. Petersburg Declaration.

The Hague Rules of Air Warfare were never incorporated into a legally binding international instrument
but are regarded "as an authoritative attempt to clarify and formulate rules of law governing the use
of aircraft in war." Schindler & Toman, supra note 2, at p. 207, quoting L. Oppenheim, H. Lauterpacht,
ed., International Law: A Treatise, 7th ed. (London: Longmans. Green & Co., 1952), p. 519. The Hague Rules
may be found in a number of sources, including American journal of International Law (Supp.), v. 17, pp. 245-
260 (1923), and Schindler & Toman, supra note 2, at pp. 207-17.

29. Geneva, June 17, 1925, U.S.T., v. 26, pp. 571-82, T.I.A.S. 8061, Schindler & Toman, supra note
2, pp. 115-27.

30. See list of parties in U.S. Dept. of State Publication 9433, Treaties in Force: A List of Treaties and
Other International Agreements of the United States in Force on January 1, 1989, p. 311-12 (U.S. Govt. Print. Off,
Washington, 1989) (hereinafter Treaties in Force).

31. See Schindler & Toman, supra note 2, pp. 121-27 for a tabulation of reservations by states.

32. See U.S.T., v. 26, p. 571, T.I.A.S. 8061.

33. The Commander's Handbook, supra note 1, para. 10.3.1.

34. See Jon L. Jacobson, "The Law of Submarine Warfare Today," supra Chapter VIII herein.

35. April 10, 1972, U.S. T, v. 26, pp. 583-665, Schindler & Toman, supra note 2, pp. 137-157.

36. Id., art. I.

37. Id., art. III.

38. See Schindler & Toman, supra note 2, p. 137.

39. See Treaties in Force, supra note 30, pp. 284-85.

Robertson 381

40. Statement of Michael J. Matheson, Assistant Legal Adviser for Political-Military Affairs, U.S.
Department of State, April 27, 1978, in a panel, "Should Weapons of Dubious Legality Be Developed,"
Proceedings of the 72d Annual Meeting of the American Society of International Law, p. 26 at p. 28 (1978).

41. Additional Protocol I, supra note 2, art. 36.

42. Resolution 22 (IV), Follow-up Regarding Prohibition or Restriction of Use of Certain Conventional
Weapons, annexed to the Final Act of the Conference, Official Records of the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-
1977), v. 1, pp. 51-52; Schindler & Toman, supra note 2, p. 605 at pp. 729-30.

43. See Commentary, supra note 3, at p. 424. quoting the Report of Committee III on this article. See
also M. Bothe et al., New Rules for Victims of Armed Conflicts (The Hague: Martinus Nijhoff Publishers,
1982), p. 200 (hereinafter Bothe et al.).

44. Commentary, supra note 3, p. 424.

45. Id., p. 422; Bothe et al., supra note 43 at p. 200.

46. Id.

47. U.S. Department of Defense Instruction 5500.15, Oct. 16, 1974, Review of Legality of Weapons Under
International Law, p. 1.

48. Id., p. 2.

49. Id.

50. Army: Army Regulation 27-53, Jan. 1, 1979; Navy: Secretary of the Navy Instruction 5711.8A,
Jan. 29, 1988 (superseding previous Instruction 5711.8); Air Force: AF Regulation 110-29, Sep. 10, 1981.

51. Geneva, Oct. 10, 1980. Final Report of the Conference to the General Assembly, A/CONF.95/
15, October 27, 1980, Annex I, Final Act of the Conference (hereinafter Final Report); reprinted in
American Society of International Law, International Legal Materials, v. 19, pp. 1524-35 (1980) (hereinafter
ILM), and Schindler & Toman, supra note 2, pp. 177-96.

52. Protocol on Non-Detectable Fragments (Protocol I), Final Report, supra note 51, Annex I, Appendix
B, p. 9, ILM supra note 51, at p. 1529, Schindler & Toman, supra note 2, at p. 185.

53. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices
(Protocol II), Final Report, supra note 51, Annex I, Appendix C, pp. 10-15, ILM, supra note 51, at pp.
1529-34, Schindler & Toman, supra note 2, at p. 185-89.

54. Protocol on Prohibitions or Restriction on the Use of Incendiary Weapons (Protocol III). Final
Report, supra note 51, Annex I, Appendix D, pp. 16-17, ILM, supra note 51, at pp. 1534-35, Schindler
& Toman supra note 2, at pp. 190-192.

55. The Protocol defines "military objective, . . . so far as objects are concerned" as "any object which
by its nature, location, purpose or use makes an effective contribution to military action and whose total
or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite
military advantage." Protocol III, art. 1, para. 3. Final Report, supra note 51, Annex I, Appendix D, p.
16 ILM, supra note 51, p. 1534, Schindler & Toman, supra note 2, p. 190.

56. Protocol III, article 2. The prohibition against using air-delivered weapons against military targets
in concentrations of civilians is based on the assumption that such weapons are less accurate than weapons
delivered by other systems. One wonders, however, whether this assumption holds true in all cases with
the development of so-called "smart bombs," which can be guided with great precision to their targets.

57. Final Act of the United Nations Conference on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate
Effects, Appendix E, Resolution on Small-Calibre Weapon Systems, Geneva, October 10, 1980. Final
Report, supra note 51, at p. 18, ILM, supra note 51, at p. 1536, Schindler & Toman, supra note 2, at pp.
197-98.

58. Schindler & Toman, supra note 2, p. 196.

59. Commander's Handbook, supra note 1, para. 9.1.1.

60. U.S. Department of the Navy, Office of the Judge Advocate General, Annotated Supplement to The
Commander's Handbook on the Law of Naval Operations (Washington: 1989) (hereinafter Annotated Supplement).
para. 9.1.1. This Annotated Supplement has been drafted for the guidance of Judge Advocates and others
who might be required to provide detailed guidance on the interpretation and application of the rules
set forth in the Handbook.

61. Cassese, supra note 3, at p. 147.

62. Id. One may wonder what action might be possible in any event.

63. Id.

64. Id., p. 152. A good example of this is the Hague (VIII) restriction on "contact" mines. Technology
has made the contact mine obsolete. Most modern mines are detonated by magnetic influence or other
forms of non-contact influence. See discussion of "Captor" infra.

65. Id.

382 Law of Naval Operations

66. See Sally V. Mallison & W. Thomas Mallison, "Naval Targeting: Lawful Objects of Attack," infra
chapter IX.

67. See supra note 6 and accompanying text.

68. See supra note 9 and accompanying text.

69. See supra note 11 and accompanying text.

70. See supra notes 23-25 and accompanying text.

71. Id.

72. See supra note 25 and accompanying text.

73. See supra notes 28-33 and accompanying text.

74. See supra notes 36-37 and accompanying text.

75. See supra note 52 and accompanying text.

76. Preface, supra p. viii.

77. "Preface," Commander's Handbook, supra note 1, p. 27.

78. See Annotated Supplement, supra note 60.

79. The descriptions of weapons and weapons systems found in the following sections have been taken
from several unclassified sources, including Norman Polmar, The Ships and Aircraft of the U.S. Navy,
14th ed. (Annapolis, Md.: Naval Institute Press, 1987), Jane's Weapon Systems 1988-89 (Coulsdon, Surrey,
U.K.: Jane's Information Group, 1988) and Office of Information, U.S. Navy, Navy Fact File, 8th ed.
(NAVSO P-3002), an official publication of the U.S. Department of the Navy. No attempt will be made
to identify the specific source of each description.

80. D. P. O'Connell, "The Legality of Cruise Missiles," American Journal of International Law, v. 66, pp.
785-794 (1972).

81. Id., at p. 785.

82. The Iraqi Government has accepted responsibility for its attack on USS STARK (FFG-31) on May
17, 1987, by two Exocet missiles fired by a Mirage F-l aircraft. It has agreed to pay compensation to
the United States for the damage to the ship and deaths and injuries to its crew. See U.S. Department
of State statement of March 28, 1989, Department of State Bulletin, May 1989, v. 89, no. 2146, p. 67.
The case was apparently not one of the missile being unable to discriminate between targets; rather it
appears to have been a targeting error, perhaps caused by a navigation error by the pilot causing him
to believe that STARK was within the declared Iranian war zone. See Staff of House of Representatives
Committee on Armed Services, 100th Cong., 1st sess., Report on the Staff Investigation into the Iraqi
Attack on the USS STARK, p. 10 (Comm. Print 1987). In the tanker war in the Persian-Arabian Gulf,
it is generally conceded that the attacking units usually hit the targets at which they were aiming. The
relevant question in that circumstance was generally, therefore, not whether the weapon could not
discriminate, but rather whether the targets (tankers) were legitimate targets.

83. The Commander's Handbook, supra note 1, para. 9.7. Indiscriminate effect is defined in paragraph
9.1.2. of the Handbook.

84. See supra chapter 12.

85. Hague VIII, supra note 23.

86. Id., art. 1 (3).

87. The Commander's Handbook, supra note 1, para. 9.3.

88. Commander's Handbook, supra note 1, para. 9.2.

89. Id., para. 9.3.

90. Id., para. 9.2.

91. Id.

92. U.S. Department of Defense, Soviet Military Power: An Assessment of the Threat 1988, p. 59.

93. Judge Advocate General of the U.S. Army, Memorandum of Law, "Use of Lasers as Antipersonnel
Weapons," September 29, 1988, reprinted in The Army Lawyer, November 1988 (DA PAM 27-50-191),
p. 3.

94. Supra note 47.

95. Army JAG memorandum, supra note 93. The Army JAG's memorandum also refers to previous
opinions of the Judge Advocates General of the Navy and Army concluding that "injury to combatants
secondary or ancillary to the use of a laser for rangefinding, target acquisition, or other antimateriel
purposes is lawful, and the blindness per se could not be a basis for concluding that a laser violates the
law of war prohibition against weapons that may cause unnecessary suffering" (citing Navy JAG 5710
Ser. 103/572, dated September 4, 1984 (Confidential) and Army JAG DAJA-I A 1984/0116, dated December
24, 1984 (Secret)). The memorandum also refers to opinions by the Navy and Air Force JAGs that "the
use of lasers to produce flash effects (the temporary induction of a visual impairment) to combatants would
not violate the law of war obligations of the United States" (citing Air Force JAG JACI, dated November
21, 1985 (Secret) and Navy JAG 5800 Ser 103/5356, dated February 19, 1986 (Secret)). It has been reported

Robertson 383

that the Navy used lasers to produce flash effects to warn away approaching surface and aircraft in the
Persian Gulf during the Iran-Iraq war.

96. Id., p. 4.

97. See supra notes 65-73 and accompanying text.

98. Army JAG memorandum, supra note 93.

99. Id.

100. Commander's Handbook, supra note 1, para. 9.6.

101. Regulations Respecting the Laws and Customs of War on Land, annexed to Convention (IV)
Respecting the Laws and Customs of War on Land, October 18, 1907, United States Statutes at Large, v.
36, pp. 2227-2309, reprinted in Schindler & Toman, supra note 2, pp. 63-98 at 82.

102. See Robert W. Tucker, International Law Studies: The Law of War and Neutrality at Sea (Washington:
U.S. Govt. Print. Off., 1957), p. 50, no. 12. The Commander's Handbook states in paragraph 9.1.1., under
the heading, "Unnecessary Suffering," that, "Poisoned projectiles . . . fall into this category [i.e., causing
unnecessary suffering], because there is little military advantage to be gained by ensuring the death of
wounded personnel through poisoning. ..."

385

APPENDIX

The Commander's Handbook

on the Law

of Naval Operations

NWP 9 (Rev. A)
FMFM 1-10

387

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.

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 II applies to the conduct of U.S. naval forces during armed

388 Law of Naval Operations

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 U.S. is a
nonparticipant in hostilities involving other nations.

RULES OF ENGAGEMENT (ROE)

The Joint Chiefs of Staff and the commanders of the unified and specified
commands have the authority to exercise the right of national self-defense
and declare forces hostile. Incident to this authority, the commanders of the
unified and specified commands may issue directives, e.g., rules of
engagement, that delineate the circumstances and limitations under which
the forces under their command will initiate and/or continue engagement
with other forces encountered. These directives are definitive within the
commander's area of responsibility. 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. Consequently, 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.

389

International Agreements. An international agreement is a commitment
entered into by two or more nations which reflects their intention to be bound
by its terms in their relations with one another. International agreements,
whether bilateral treaties, executive agreements, or multilateral conventions,
bind only those nations that are a 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 nonparties alike.

U.S. Navy Regulations. U.S. Navy Regulations, 1973, require U.S. naval
commanders to observe international law. Article 0605, Observance of
International Law, states:

At all times, a commander shall observe and require his command to observe the
prinicples of international law. Where necessary to fulfillment of this responsibility,
a departure from other provisions of Navy Regulations is authorized.

ORDERING DATA

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to CNO (OP-953) ). Order a new publication or change, as appropriate, by
submitting Form DD 1348 to NAVPUBFORMCEN Philadelphia in
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NAVSUP Publication 2002.

RECOMMENDED CHANGES

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using the accompanying format for routine changes.

Submit recommendations to:

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390 Law of Naval Operations

URGENT CHANGE RECOMMENDATIONS

When items for changes are considered to be urgent (as defined in NWP
0 and including matters of safety), this information shall be sent by priority
message (see accompanying sample message format) to NAVY JAG, with
information copies to CNO (OP-616B), Naval Safety Center (if appropriate),
Navy Tactical Support Activity, and all other commands concerned, clearly
explaining the proposed change. Information addresses should comment as
appropriate. See NWP 0.

CHANGE SYMBOLS

Revised text is indicated by a black vertical line in either margin of the
page, like the one printed next to this paragraph. The change symbol shows
where there has been a change. The change might be material added or
information restated. A change symbol in the margin by the chapter number
and title indicates a new or completely revised chapter.

[Editor's note: We have omitted change symbols in this appendix. Instead,
as noted in the Preface to this volume, we have underlined the changes. In
many cases, the only changes which occurred betweeen the original NWP
9 and this revised edition have been the italicization of certain words for
emphasis. In such cases we have underlined the italicized words.]

USE OF ITALICS

Italics are used for emphasis within the text.

391

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

Chapter 4 — Safeguarding of U.S. National Interests in the Maritime
Environment

392 Law of Naval Operations

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 been
divided into national and international airspace. In recent years, new concepts
have evolved, such as the exclusive economic zone and archipelagic waters,
which 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). Although not signed by the United States and not yet in formal
effect, the provisions of the 1982 LOS Convention relating to navigation and
overflight codified existing law and practice and are considered by the United
States to reflect customary international law.

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 — 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 [1982 LOS] 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."

393

The legal classifications ("regimes") of ocean and airspace areas directly
affect naval operations by determining the degree of control that a coastal
or island 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 or island
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 and island
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 necessary to comprehend how baselines are drawn.

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 coast as marked
on that nation's official large-scale charts.

1.3.2 Straight Baselines. Where it would be impracticable to use the low-
water line, as where the coastline is deeply indented or where there is a fringe
of islands along the coast in its immediate vicinity, the coastal or island nation
may instead 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 enclose must be closely linked to the land domain. A coastal
or island nation which uses straight baselines must either clearly indicate them
on its charts or publish a list of 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 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 or island nation.

1.3.2.2 Low-Tide Elevations. A low-tide elevation is a naturally formed
land area surrounded by water that remains above water at low tide but is
submerged at high tide. Straight baselines may generally not be drawn to

394 Law of Naval Operations

or from a low-tide elevation unless a lighthouse or similar installation, which
is permanently above sea level, has been erected thereon.

1.3.3 Bays and Gulfs. There is a complex formula for determining the
baseline 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 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 of islands, the diameter of the test semicircle is the sum
of the lines across the 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 sense.

1.3.3.1 Historic Bays. So-called historic bays are not determined by the
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 absence of opposition.

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.

1.3.5 Reefs. The low-water line of a reef may be used as the baseline for
islands 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 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 directly adjacent to the coast
to provide anchorage and shelter.

395
1.4 NATIONAL WATERS

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
and island 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.

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, ships and aircraft may not enter or overfly internal waters without
the permission of the coastal or island nation.

1.4.2 Territorial Seas. The territorial sea is a belt of ocean which is
measured seaward from the baseline of the coastal or island 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.

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

396 Law of Naval Operations

partly beyond the limits of the territorial sea, are included within the
territorial sea. Roadsteads included within the territorial sea must be clearly
marked on charts by the coastal or island 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 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 and that the U.S. is accorded navigation and overflight rights
and freedoms under international law in the enclosed archipelagic and
adjacent waters.

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

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.

1.5.1 Contiguous Zones. A contiguous zone is an area extending seaward
from the territorial sea in which the coastal or island 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 (but not for so-called security purposes - see 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 in breadth provided the coastal or

397

island nation recognizes U.S. rights in the zone consistent with the provisions
of the 1982 LOS Convention.

1.5.2 Exclusive Economic Zones. Exclusive economic zones (EEZs) are
resource-related zones adjacent to the coast and extending beyond the
territorial sea. As the name suggests, its central purpose is economic. The
U.S. recognizes the sovereign rights of a coastal or island nation to prescribe
and enforce its laws in the exclusive economic zone, extending up to 200
nautical miles from the baselines used to measure the territorial sea, for the
purposes of exploration, exploitation, management, and conservation of the
natural resources of the waters, seabed, and subsoil of the zone, as well as
for the production of energy from the water, currents, and winds. The coastal
or island 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 (primarily
implementation of international vessel-source pollution control standards).
However, in the EEZ all nations 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. The United States established a 200-
nautical mile exclusive economic zone by Presidential Proclamation on 10
March 1983.

1.5.3 High Seas. The high seas include all parts of the ocean seaward of
the exclusive economic zone. When a coastal or island nation has not
proclaimed an exclusive 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 on various operational activities, or
complete exclusion. International law does not recognize the right of coastal
nations to establish zones in peacetime that would restrict the exercise of
non-resource-related high seas freedoms beyond the territorial sea.
Accordingly, the U.S. does not recognize the peacetime validity of any
claimed security or military zone seaward of the territorial sea which purports
to restrict or regulate 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.)

398 Law of Naval Operations

1.6 CONTINENTAL SHELVES

The juridical continental shelf of a coastal or island 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 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 or island 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 pipelines on the
continental shelf.

1.7 SAFETY ZONES

Coastal and island 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 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 they 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

399

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.

400 Law of Naval Operations

BASELINE /i

a. DEEPLY INDENTED COASTLINE

b. FRINGING ISLANDS

Figure 1-1. Straight Baselines

401

ONLY INDENTATION b. MEETS THE
SEMICIRCLE TEST AND QUALIFIES
AS A BAY.

Figure 1-2. The Semicircle Test

402 Law of Naval Operations

BAY WITH ISLANDS MEETS SEMICIRCLE TEST

I

23 NM

SEMICIRCLE WITH DIAMETER

/

\ EQUAL TO TOTAL OF DISTANCES /

BETWEEN ISLANDS

Figure 1-3. Bay With Islands

403

BASELINE WHERE BAY NARROWS TO 24 NM

yuti

iy*

':+&$\

'&$*■$&

.Vs.":;- ■■'•.'

.1 •:'•."•••»».

.■■."•>...'•••■

;.{■>:

!«'»•/?. J.

■M

:".y.frv

Figure 1-4. Bay With Mouth Exceeding 24 Nautical Miles

404 Law of Naval Operations

Figure 1-5. Territorial Sea of Islands and Low-Tide Elevations

405

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" are also "warships" under international
law.

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 waters
immediately. Moreover, warships are immune from arrest and search,
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 aboard.

2.1.2.1 Nuclear Powered Warships. Nuclear powered warships and
conventionally powered warships enjoy identical international legal status.

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

406 Law of Naval Operations

accident or enemy action (unless the warship or aircraft was captured before
it 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.
waters, similarly respected by salvors, are honored.

2.1.2.3 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, 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 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 specific voyage or voyages. The U.S. claims full rights of sovereign
immunity for all USNS, APF, NRDF and RRF vessels. As a matter of policy,
however, the U.S. claims only freedom from arrest and taxation for those
MSC Force time and voyage charters not included in the APF.

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 and
archipelagic sea lanes passage, state aircraft may not fly over or land on the
territory (including the territorial sea) of another nation without
authorization by special agreement or otherwise. Host nation officials may

407

not board the aircraft without the consent of the aircraft commander. Should
the aircraft commander fail to certify compliance with host nation customs,
immigration or quarantine requirements, the aircraft may be directed to leave
the territory and national airspace of that nation immediately.

2.2.2.1 Military Contract Aircraft. Civilian owned and operated aircraft,
the full capacity of which has been contracted by the Military Airlift
Command (MAC) 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 they too enjoy sovereign immunity from foreign search and
inspection. As a matter of policy, however, the United States normally does
not designate MAC-charter as "state aircraft."

2.3 NAVIGATION IN AND OVERFLIGHT OF NATIONAL
WATERS

2.3.1 Internal Waters. As discussed in the preceding chapter, coastal and
island 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.

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 waters or high seas. In the latter event, international
law provides that the right of innocent passage (see paragraph 2.3.2.1) or that
of transit passage in an international strait (see paragraph 2.3.3.1) may be
exercised by all nations in those waters.

2.3.2 The Territorial Sea

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

408 Law of Naval Operations

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 distress. Passage is innocent so long as
it is not prejudicial to the peace, good order, or security of the coastal or
island nation. Among the military activities considered to be prejudicial to
peace, good order, and security, 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 or island nation

2. Any exercise or practice with weapons of any kind

3. The launching, landing, or taking on board of any aircraft or any military device

4. Intelligence collection activities detrimental to the security of that coastal or
island nation

5. The carrying out of research or survey activities.

The coastal or island nation may take affirmative actions in its territorial
sea to prevent passage that is not innocent, including, where necessary, the
use of force. Foreign ships, including warships, exercising the right of innocent
passage are required to comply with the laws and regulations enacted by the
coastal or island nation in conformity with established principles of
international law and, in particular, with such laws and regulations relating
to the safety of navigation. Innocent passage does not include a right of
overflight.

2.3.2.2 Permitted Restrictions. For purposes such as resource
conservation, environmental protection, and navigational safety, a coastal or
island 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 or island nation may, where
navigational safety dictates, require foreign ships exercising the right of
innocent passage to utilize designated sea lanes and traffic separation schemes.

2.3.2.3 Temporary Suspension of Innocent Passage. A coastal or island
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.

409

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 flag when passing through foreign territorial seas.
If a warship does not comply with coastal or island nation regulations that
conform to established principles of international law and disregards a request
for compliance which is made to it, the coastal or island nation may require
the warship immediately to leave the territorial sea.

2.3.2.5 Assistance Entry. All ship and aircraft commanders have an
obligation to assist those in danger of being lost at sea. 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 or
island 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 territorial sea or airspace to conduct a search.

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. Under international law, the ships and aircraft of all nations, including
warships and military aircraft, enjoy the right of unimpeded transit passage
through such straits. 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 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 suspended by the
coastal or island nation for any purpose during peacetime. This principle of
international law also applies to transiting ships (including warships) of

410 Law of Naval Operations

nations at peace with the bordering coastal or island nation but involved in
armed conflict with another nation.

Coastal or island 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 competent international
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 or island 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 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 lane passage
while transiting through, under, or over the waters of archipelagos and
adjacent territorial seas via designated archipelagic sea lanes. Archipelagic
sea lanes include all routes normally used for international navigation and
overflight, whether or not designated by the archipelagic nation. Each sea
lane is defined by a continuous line from the point of entry into the archipelago
to the point of exit. Ships and aircraft engaged in archipelagic sea lanes passage
are required to remain within 25 nautical miles to either side of the axis line
and must approach no closer to the coastline than 10 percent of the distance
between the nearest islands. See Figure 2-1. 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 and expeditious transit

411

through archipelagic waters, in the normal modes of operation, 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 cannot be impeded,
or suspended by the archipelagic nation for any reason.

2.3.4.2 Innocent Passage. Outside of archipelagic sea lanes, all surface
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 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 nondiscriminatory manner. There is no
right of overflight through airspace over archipelagic waters outside of
archipelagic sea lanes.

2.4 NAVIGATION IN AND OVERFLIGHT OF INTER-
NATIONAL WATERS

2.4.1 The Contiguous Zone. 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 or island 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 The Exclusive Economic Zone. The coastal or island 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 or
island nation may also exercise in the zone jurisdiction over the establishment

412 Law of Naval Operations

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. Accordingly, the
coastal or island 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.

2.4.3 The 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 or island 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 for the safe conduct and operation of other ships and aircraft.

2.4.3.1 Closure or Warning Areas. Any nation may declare a temporary
closure or warning area on the high seas 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 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 (NOT AM). Ships and aircraft of other nations are not required
to remain outside a declared closure or warning area, but are obliged to refrain
from interfering with activities therein. Consequently, U.S. ships and aircraft
may operate in a closure area declared by a foreign nation, collect intelligence
and observe the activities involved, subject to the requirement of due regard
for the rights of the declaring nation to use the high seas for such lawful
purposes, as may the ships and aircraft of other nations in a U.S. declared
closure area.

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 foreign warships and military aircraft beyond its territorial sea. Although
several coastal nations, including North Korea and Vietnam, have asserted

413

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 or collective
self-defense against an imminent threat of armed attack or an actual attack
directed at that nation or at the regional defense organization of which it
is a member. 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 its territory.
Historically, the establishment of such areas extending beyond the territorial
sea has been restricted to periods of war or of 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
or island nation may lawfully exercise over them, beyond laying down the
general requirement of reasonableness in relation to the needs of national
security and defense.

2.4.5 Polar Regions

2.4.5.1 Arctic Region. The U.S. considers that the waters, icepack, 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, including Canada
and the U.S.S.R., 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
Arctic region beyond the lawfully claimed territorial sea.

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 any portion of the Antarctic area.

2.4.5.2.1 The Antarctic Treaty of 1959. The U.S. is a party to the
multinational 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

414 Law of Naval Operations

territorial sovereignty, the 1959 accord provides that no activity in the area
undertaken while the treaty is in 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 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 to visits to the continent. In addition, the
treaty prohibits nuclear explosions and disposal of nuclear wastes anywhere
south of 60° South Latitude. The treaty does not, however, affect in any way
the high seas freedoms of navigation 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
Treaty, to which the United States is a party, acknowledges the right of groups
of nations to conclude regional treaties establishing nuclear free 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 international
law. The 1967 Treaty for the Prohibition of Nuclear Weapons 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
U.S. ratification of its two protocols. This in no way affects the exercise by
the U.S. of navigational rights and freedoms within waters covered by the
Treaty of Tlatelolco.

2.5. AIR NAVIGATION

2.5.1 National Airspace. Under international law, every nation has
complete and exclusive sovereignty over its national airspace, that is, the
airspace above its territory, its internal waters, its territorial sea, and, in the
case of an archipelagic nation, its archipelagic waters. There is no customary
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 surface ships. 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),

415

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.

2.5.1.1 International Straits Which Connect EEZ/High Seas to EEZ/
High Seas and are Overlapped by Territorial Seas. All aircraft, including
military aircraft, enjoy the right of unimpeded transit passage through the
airspace above international straits overlapped by territorial waters. 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 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 be suspended in peacetime for any
reason. (See paragraph 2.5.2 for a discussion of permitted activities over
international straits wot completely overlapped by territorial seas.)

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 high seas, the exclusive economic zone, and territories
not subject to national sovereignty (e.g., Antarctica). All international
airspace is open to the aircraft of all nations. Accordingly, aircraft, including
military aircraft, are free to operate in international airspace without
interference from coastal or island 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

416 Law of Naval Operations

all nations). That multilateral treaty, commonly referred to as the "Chicago
Convention," applies to civil aircraft. It does nrt apply to military aircraft
or to MAC-charter aircraft designated as "state aircraft" (see paragraph
2.2.2.1), 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 and techniques and to "promote safety
of flight in international air 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" or "operational" prerogative of military aircraft. (For
additional information see DOD Dir. 4540.1 and OPNAVINST 3770.4.)

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.

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 require the filing of flight plans and periodic position
reports. Some nations, however, purport to require all aircraft penetrating
an ADIZ to comply with ADIZ procedures, whether or not they intend to
enter national airspace. The U.S. does not recognize the right of a coastal
or island nation to apply its ADIZ procedures to foreign aircraft in such
circumstances. Accordingly, U.S. military aircraft not intending to enter
national airspace need not identify themselves or otherwise comply with

417

ADIZ procedures established 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.

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 through diplomatic channels all excessive claims of coastal or island
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 responsibility as a fundamental element of
its national policy.

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 or island
nation has established different rules, in that nation's territorial sea,
archipelagic waters, and internal waters as well. Article 1120, U.S. Navy
Regulations, 1973, directs that all persons in the naval service responsible for

418 Law of Naval Operations

the operation of naval ships and craft "shall diligently observe" the 1972
COLREGS.

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. Navy vessels
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 provide the basis for other foreign action.

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 line
established by U.S. law for that purpose. (See U.S. Coast Guard publication
CG 169, 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
line 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 Manual. 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.

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 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
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

419

waters and international airspace, including that of the exclusive economic
zone and the contiguous zone.

Principal provisions of the INC SEA 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 operations and intentions.

4. Ships of one party will not simulate attacks by aiming guns, missile launchers,
torpedo tubes, or other weapons at the ships 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.

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 INC SEA agreement was amended in a 1973 protocol to extend certain
provisions of the agreement to include nonmilitary ships. Specifically, 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
representatives of the two parties to review its implementation.

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

420 Law of Naval Operations

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 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 space nations to do so as well.

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.

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.

4. Each user of outer space must show due regard for the rights of others.

5. No nuclear or other weapons of mass destruction may be stationed in outer space.

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.

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

421

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
ratified multilateral agreements: the 1967 Outer Space Treaty; the 1968
Rescue and Return of Astronauts Agreement; the Liability Treaty of 1972;
and the Space Objects Registration Treaty of 1975. A fifth, the 1979 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 is any interference with the surveillance satellites both nations use
to monitor ABM Treaty compliance.

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
techniques in several environments, including outer space.

The 1982 International Telecommunication Convention and the 1979 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

422 Law of Naval Operations

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 rescue assistance if a high seas or other international area landing
is involved. Rescued personnel are to be safely and promptly returned.

Nations also have an obligation to inform the Secretary-General of the
United Nations if they discover outer 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 incurred 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.

423

50 NM ARCHIPELAGIC SEA LANE

p^C

DISTANCE BETWEEN ISLANDS A AND B IS 40 NM; SHIPS AND AIR-
CRAFT MUST APPROACH NO CLOSER THAN 4 NM TO EITHER
ISLAND (10 PERCENT OF DISTANCE BETWEEN ISLANDS).

Figure 2-1. Archipelagic Sea Lanes

424 Law of Naval Operations

Chapter 3

Protection of Persons and
Property at Sea

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, regulatory 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 peacetime 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.

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 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.

425

3.2.1 Assistance to Persons, Ships, and Aircraft in Distress. Both the
1958 Geneva Convention on the High Seas and the 1982 UN Convention on
the Law of the Sea (1982 LOS Convention) provide 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
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 which it will call. (See
paragraph 2.3.2.5 for a discussion of "Assistance Entry.")

3.2.1.1 Duty of Naval Commanders. Article 0925, U.S. Navy
Regulations, 1973, 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.

3.2.1.2 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.

3.2.2 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 well-founded apprehension of loss of 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.

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.

426 Law of Naval Operations

3.2.3 Quarantine. Article 0763, U.S. Navy Regulations, 1973, requires that
the commanding officer or aircraft commander of a ship or aircraft comply
with quarantine regulations and restrictions. While not required under any
circumstances to permit inspection of his vessel or aircraft, commanding
officers 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 necessity and security.

3.3 ASYLUM

International law recognizes the right of a nation to grant asylum to foreign
nationals already present within or seeking admission to its territory. The
U.S. defines "asylum" as:

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.

3.3.1 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
(including the U.S. territorial sea, the Commonwealth of Puerto Rico,
territories under U.S. administration, and U.S. possessions) will be received
on board any naval aircraft or vessel or any Navy or Marine Corps 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 0940, U.S. Navy
Regulations, 1973, and SECNAVINST 5710.22 for specific guidance.)

3.3.2 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 be located, they have often been
looked to as places of asylum. The U.S., however, considers that asylum is

427

generally the prerogative of the government of the territory in which the
warship is located.

However, if exceptional circumstances exist involving imminent danger
to the life or safety of the person, temporary refuge may be provided. (See
paragraph 3.3.4.)

3.3.3 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 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 danger 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.

3.3.4 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 0940, U.S. Navy Regulations,
1973, and SECNAVINST 5710.22.)

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 or aircraft 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.

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.

3.3.4.1 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

428 Law of Naval Operations

authority. (See Article 0940, U.S. Navy Regulations, 1973, and
SECNAVINST 5710.22.)

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.

3.3.5 Inviting Requests for Asylum or Refuge. Personnel of the
Department of the Navy shall neither directly nor indirectly invite persons
to seek asylum or temporary refuge.

3.3.6 Protection of U.S. Citizens. The limitations on asylum and
temporary refuge are not applicable to U.S. citizens. U.S. citizens are entitled
to protection from persecution or danger to life or safety in all circumstances.
See the peacetime rules of engagement for applicable guidance.

3.4 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:

[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.

3.4.1 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 offenses 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.

3.4.2 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

429

against another ship or aircraft or persons and property on board.
(Depredation is the act of plundering, robbing or pillaging.)

3.4.2.1 Location. In international law piracy is a crime that can only be
committed in or over international waters, including the high seas, exclusive
economic zone, the contiguous zone, in international airspace, and in other
places at sea beyond the territorial jurisdiction of any nation. The same acts
committed in the 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 nation.

3.4.2.2 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 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.

3.4.2.3 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.

3.4.2.4 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 convert the ship, aircraft or cargo to their own use, that act
is not piracy. If, however, the ship or aircraft is thereafter used to commit
acts of piracy, it becomes a pirate ship or pirate aircraft and those on board
voluntarily participating in such acts become pirates.

3.4.3 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.

3.4.3.1 Seizure of Pirate Vessels and Aircraft. When a pirate vessel or
aircraft is encountered in or over U.S. or international waters it may be seized
and detained by any U.S. Navy warship or aircraft. 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

430 Law of Naval Operations

pirate vessel or aircraft, since every nation has jurisdiction under international
law over any act of piracy.

3.4.3.2 Pursuit into Foreign Territorial Sea, 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. 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 waters or through or over archipelagic sea lanes
may proceed with or without the consent of the coastal nation or nations,
provided the pursuit is expeditious and direct and the transit passage rights
of others are not unreasonably constrained in the process.

3.5 PROHIBITION OF THE TRANSPORT OF SLAVES

International law strictly 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.
Commanders should request guidance from higher authority if confronted
with this situation.

3.6 SUPPRESSION OF INTERNATIONAL NARCOTICS
TRAFFIC

The 1982 LOS Convention provides that all nations shall cooperate in the
suppression of the illicit traffic in narcotic drugs and psychotropic substances
by ships in international waters. The 1982 Convention also provides that any
nation which has reasonable grounds for believing that a ship flying its flag
is engaged in such traffic may request the cooperation of other nations in
effecting its seizure. Foreign flag vessels are regularly seized by U.S. Coast

431

Guard ships pursuant to such bilateral arrangements. (See paragraph 3.12.5
regarding utilization of U.S. Navy assets in the support of U.S. drug-
interdiction efforts.)

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 offshore 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 WARSHIP'S 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 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.

2. Engaged in the slave trade.

3. Engaged in unauthorized broadcasting.

4. Without nationality.

5. Though flying a foreign flag, or refusing to show its flag, the vessel is, in reality,
of the same nationality as the warship.

Vessels without nationality (also referred to as "stateless vessels,,) are
vessels not entitled to fly the flag of any nation and vessels falsely assuming
a nationality. Because these vessels are not entitled to the protection of any
nation, they are subject to the jurisdiction of all nations. The procedure for
exercising the right of approach and visit is similar to that used in exercising
the belligerent right of visit and search described in paragraph 7.6.1. See
Article 630.23 of OPNAVINST 3120.32B for further guidance.

3.9 HOT PURSUIT

The hot pursuit of a foreign ship may be undertaken as a law enforcement
action when the coastal or island nation has reason to believe that the ship

432 Law of Naval Operations

has violated the laws and regulations of that nation. 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 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 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 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 or island nation applicable to the exclusive economic zone or the
continental shelf, including such safety zones.

3.9.1 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 crafts 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 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.

3.9.2 Hot Pursuit by Aircraft. Where hot pursuit is effected by aircraft:

1. The provisions of paragraphs 3.9 and 3.9.1 apply.

2. The aircraft giving the order to stop must itself actively pursue the ship until a ship
or another aircraft of the coastal or island nation, summoned by the aircraft, arrives
to take over the pursuit, unless the aircraft itself is able to arrest the ship. 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 may be commenced alone or in conjunction
with other aircraft or ships. Pursuit must continue without interruption.

3.10 RECOVERY OF U.S. 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,

433

sunken vessels, practice torpedoes, test missiles, and target drones are among
the types of U.S. Navy 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 applicable
operation order (e.g., CINCPACFLT OPORD 201, CINCLANTFLT
OPORD 2000).

3.11 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 self-defense and protection of nationals
provide the authority for U.S. naval forces to protect both U.S. and foreign
flag vessels, aircraft, property and persons from violent and unlawful acts
of others. Consult the JCS Peacetime Rules of Engagement for U.S. Forces
or applicable theater CINC ROE for detailed guidance.

3.11.1 Protection of U.S. Flag Vessels, Aircraft, U.S. Citizens 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. citizens (whether embarked in U.S. or
foreign flag vessels), and their property against unlawful violence in and over
international waters. Peacetime 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 carefully constructed to ensure that
the protection of U.S. flag vessels and U.S. citizens and their property at
sea conforms with U.S. and international law and reflects national policy.

3.11.1.1 Foreign Internal Waters , Archipelagic Waters , and Territorial
Seas. Unlawful acts of violence directed against U.S. flag vessels and aircraft
and U.S. citizens within and over the internal waters, archipelagic waters,
or territorial seas of a foreign nation present special considerations. The
coastal or island nation is primarily responsible for the protection of all vessels,
aircraft and persons lawfully within and over 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

434 Law of Naval Operations

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 and its citizens. Because the coastal or island
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 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.

3.11.1.2 Foreign Contiguous Zones and Exclusive Economic Zones.

The primary responsibility of coastal or island 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 or island 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, and in its exclusive economic zone to enforce its resource-
related rules and regulations. When the coastal or island nation is acting
lawfully in the valid exercise of such jurisdiction, or is in hot pursuit (see
discussion in paragraph 3.9) 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. naval commanders should consult applicable
peacetime rules of engagement for specific guidance.

3.11.2 Protection of Foreign Flag Vessels, 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 persons 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, the considerations of paragraphs 3.11.1.1 and 3.11.1.2 would also apply.

3.12 AID TO DOMESTIC CIVIL LAW ENFORCEMENT
OFFICIALS

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

435

peace and arresting felons — or otherwise to execute domestic law, is
prohibited by the Posse Comitatus Act, title 18 U.S. 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. (See SECNAVINST 5820.7 (series).)

Although the posse comitatus concept 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
facilities, platforms, and equipment to assist Federal authorities in the
interdiction at sea of narcotics and other controlled substances.

3.12.1 Providing Information to Law Enforcement Agencies. It is

ordinarily permissible to provide Federal, State or local law enforcement
officials with information acquired during the course of military operations
that may be relevant to a violation of any law within the jurisdiction of those
officials. However, such operations may not be undertaken with the purpose
of acquiring such information for law enforcement officials, unless specifically
authorized by applicable law or regulation.

3.12.2 Use of Military Equipment and Facilities. Consistent with mission
requirements, available equipment (including shipboard or aircraft systems),
base facilities, and research facilities may be made available upon request to
Federal, State, or local law enforcement authorities subject to approval of
higher authority.

3.12.3 Use of DOD Personnel. The use of U.S. Army or U.S. Air Force
personnel for purposes of providing direct assistance to law enforcement
authorities is generally prohibited. Absent a waiver from the Secretary of
the Navy or other approval authority, that prohibition is applicable to the
U.S. Navy and U.S. Marine Corps personnel as well.

3.12.4 DOD Mission in Drug Interdiction. The National Defense
Authorization Act of 1989 assigned DOD as single lead agency responsible
for coordinating all detection and monitoring of aerial and maritime transit
of illegal drugs into the United States. It also directed DOD to integrate U.S.
command, control, communications and intelligence (C3I) assets dedicated
to drug interdiction into an effective communications network.

436 Law of Naval Operations

3.12.5 Use of U.S. Navy Ships in Support of Drug-Interdiction
Operations. Consistent with Congressional direction, U.S. Navy ships
operating in waters designated by the Secretary of Defense (in consultation
with the Attorney General) as a drug-interdiction area are required to have
embarked a Coast Guard officer who is trained in law enforcement and who
has power to arrest, search, and seize property or persons suspected of
violations of U.S. law. In consonance with the right of the flag state under
international law to exercise jurisdiction over vessels flying its flag, a U.S.
Navy ship with an appropriately authorized Coast Guard officer on board
may approach and stop, anywhere in international waters or in U.S. national
waters, any U.S. flag vessel which, on reasonable grounds, is believed to be
engaged in the illicit traffic of narcotics or psychotropic substances. In such
circumstances, any resultant search, seizure or arrest will be accomplished
by the embarked Coast Guard officer.

Foreign flag vessels encountered by U.S. Navy ships in the U.S. territorial
sea or contiguous zone (see paragraph 1.5.1) under circumstances indicating
that the vessel may be engaged in the illicit traffic of narcotics or psychotropic
substances may be similarly approached and stopped, and boarded by the
embarked Coast Guard officer. In international waters, foreign flag vessels
may be boarded and, if warranted, seized for drug-interdiction purposes only
under one or more of the following circumstances: with flag state consent;
in hot pursuit originating in the U.S. territorial sea or contiguous zone; or
if the vessel" is the mother ship of one or more craft operating in the U.S.
territorial sea or contiguous zone. In addition, a vessel in international waters
may be boarded with the consent of the master, but seizure may only occur
under one of the foregoing circumstances. Foreign flag nation consent may
consist of a bilateral agreement covering all such encounters or may be granted
by that nation for the particular occasion. In all drug interdiction cases
involving seizure of a foreign flag vessel beyond 12 nautical miles from the
U.S. coast, concurrence must be obtained through the Department of State.

437

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, is not directive, and does not supersede
guidance issued by the commanders of the unified and specified commands, within the
scope of their authority, and in particular any guidance they may issue that delineate 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, or even useful, 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 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:

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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.

Article 39 of the Charter looks to the Security Council to enforce this
prohibition by providing:

The Security Council shall determine the existence of any threat to the peace, breach of the peace,
or act of transgression and shall . . . decide what measures shall be taken . . . to maintain or restore
international peace and security.

Article 51 of the Charter provides, however, 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. . . .

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 at sea 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 interests. Diplomatic measures include all those political policy 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 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
involves a threat to or breach of the peace, 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 in the maritime
environment, or having their origin elsewhere but impacting on U.S. uses
of the seas, are normally addressed and resolved through diplomatic channels
and do not involve resort to the threat or use of force.

4.2.2 Economic. Nations often utilize economic measures to influence the
actions of others. The granting or withholding of "most favored nation" status

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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
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, and
suspension of "most favored nation" status and the assertion of other economic
sanctions.

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.

In 1946, the U.S. formally accepted compulsory jurisdiction of the Court,
in relation to any other nation that had accepted the same obligation, for
all disputes involving interpretation of a treaty, a question of international
law, or the breach of an international obligation. In doing so, however, the
U.S. reserved the right to refuse to accept the jurisdiction of the International
Court in any matter that is "essentially within the domestic jurisdiction of
the United States as determined by the United States." On 7 October 1985,
the United States announced the termination of its acceptance of compulsory
jurisdiction effective 7 April 1986. Of the 157 nations that are parties to the
International Court of Justice by virtue of their membership in the United
Nations, only 45 accept compulsory jurisdiction of the Court. All but six of
those 45 nations have reservations similar to that which had been asserted
by the U.S.

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4.3 MILITARY MEASURES

The mission of all U.S. military forces is to deter aggression and, should
deterrence fail, to engage and defeat the aggressor in armed conflict so as
to restore international peace and security. In order to deter aggression, 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 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 modulated 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 (i.e., beyond the territorial sea or archipelagic waters),
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, 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 protect U.S. flag shipping.

4.3.2 The Right of Self-Defense. The Charter of the United Nations
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 Peacetime 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:

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1 . Necessity — The requirement that a use of force be in response to a hostile act
or 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 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., intervention, embargo, maritime quarantine). To the extent that such
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 United Nations Charter.

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 there is a
clear necessity that is instant, overwhelming, and leaving no reasonable choice
of peaceful means.

4.3.2.2 JCS Peacetime Rules of Engagement (ROE). The JCS Peacetime
Rules of Engagement for U.S. Forces are the primary means by which
competent military authority in peacetime authorizes commanders to take
those actions necessary for the self-defense of the forces they command, the
self-defense of the nation and its citizens, and the protection of national assets
worldwide. Although they do not, and cannot cover all possible situations
that may be encountered by the naval commander at sea, the JCS Peacetime
ROE provide definitive guidance for U.S. military commanders for the use

442 Law of Naval Operations

of armed force in self-defense commensurate with international law and U.S.
national security objectives. A principal tenet of those ROE is the
responsibility of the commander to take all necessary and appropriate action
for his unit's self-defense. Subject to that overriding responsibility, the full
range of options are reserved to the National Command Authorities to
determine the response that will be made to hostile acts and demonstrations
of hostile intent. As noted in the preceding paragraphs of this chapter, those
options may involve nonmilitary as well as military measures.

4.4 INTERCEPTION OF INTRUDING AIRCRAFT

All nations have complete and exclusive sovereignty over their national
airspace, i.e., the airspace above their land territory, internal waters,
archipelagic waters (if any), and territorial seas (see paragraph 1.8). With
the exception of transit overflight of international straits and archipelagic
sea lanes (see paragraphs 2.3.3 and 2.3.4.1), 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 1944 Convention
on International Civil Aviation (the "Chicago Convention").

Customary international law provides that a foreign aircraft entering
national airspace without permission due to distress (e.g., air hijacking) 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:

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 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.

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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 military aircraft that stray into national
airspace through navigational error or that are in distress.

444 Law of Naval Operations

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 Naval Targeting

Chapter 9 — Conventional Weapons and Weapons Systems

Chapter 10 — Nuclear, Chemical, and Biological Weapons

Chapter 11 — Noncombatant Persons

Chapter 12 — Deception During Armed Conflict

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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 resort to war except as an
enforcement action taken by or on behalf of the United Nations (as in the
Korean conflict) or as a measure of individual or collective self-defense. It
is important to distinguish between resort to war, or armed conflict, and the
conduct of armed conflict. Whether or not resort to armed conflict in a
particular circumstance is prohibited by the United Nations Charter (and
therefore unlawful), the manner in which that armed 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
through minimum standards of protection to be accorded to "combatants"
and to "noncombatants." To that end, the law of armed conflict provides
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.

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.

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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.

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 single individual can be simultaneously a combatant
and a noncombatant.

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 attached to or accompanying the armed forces, enjoy special
protected status, such as medical officers, corpsmen, chaplains, and civilian
war correspondents. The term is also applied to armed forces personnel who
are unable to engage in 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 the object of attack.

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.

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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 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 warfare 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 warfare 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 conventions.)

5.4.2 International Agreements. International agreements, whether
denominated as treaties or conventions, 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 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 nonparty 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 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, Hague
Cultural Property Convention, Biological Weapons Convention and the
Conventional Weapons Convention are concerned, primarily, with
controlling the means and methods of warfare. The most significant of these

448 Law of Naval Operations

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)

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 Time
of War (Hague IX)

5. 1907 Hague Convention Relative to Certain Restrictions with Regard to the
Exercise of the Right of Capture in Naval War (Hague XI)

6. 1907 Hague Convention Concerning the Rights and Duties of Neutral 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 Treaty)

9. 1949 Geneva Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field*

10. 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded,
Sick, and Shipwrecked Members of Armed Forces at Sea

11. 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War

12. 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in
Time of War*

13. 1954 Hague Cultural Property Convention

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 Conflicts (Additional Protocol I)*

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)*

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.

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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 signatory and party to all of the foregoing conventions and protocols,
except it has not ratified and, therefore, is not a state party to, numbers 13
and 15 to 17. The United States has decided not to ratify Additional Protocol
I.

5.5 RULES OF ENGAGEMENT

U.S. rules of engagement are the means by which the National Command
Authorities (NCA) and the U.S. military chain of command authorize
subordinate commanders to employ military force. Rules of engagement
delineate the circumstances and limitations under which U.S. naval, ground,
and air forces will initiate and/or continue combat engagement with enemy
forces. At the national level, wartime rules of engagement are promulgated
by the NCA, through the Joint Chiefs of Staff, to unified and specified
commanders to guide them in the employment of their forces toward the
achievement of broad national objectives. At the tactical level, wartime rules
of engagement are task-oriented and frequently mission-oriented. At all
levels, U.S. wartime rules of engagement are influenced by, and are consistent
with, the law of armed conflict. The law of armed conflict provides the
general legal framework within which U.S. rules of engagement during
hostilities are formulated. Because rules of engagement also reflect
operational, political, and diplomatic factors, they often restrict combat
operations far more than do the requirements of international law.

5.5.1 Peacetime and Wartime Rules of Engagement Distinguished.

Chapter 4 addresses the JCS Peacetime Rules of Engagement for U.S. Forces
and notes that they provide the authority for and limitations on actions taken
in self-defense during peacetime and periods short of prolonged armed
conflict, for the defense of U.S forces, the self-defense of the nation and its
citizens, and the protection of U.S. national assets worldwide. Wartime rules
of engagement, on the other hand, 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.

450 Law of Naval Operations

Chapter 6
Adherence and Enforcement

6.1 ADHERENCE TO THE LAW OF ARMED CONFLICT

Nations 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 the best
interest of belligerents 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 by the belligerents. 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 of warfare is no longer regarded by
belligerents as valid.

6.1.1 Adherence by the United States. Pursuant to the Constitution of the
United States, 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 and the
common law are fundamental elements of U.S. national law. The law of
armed conflict is, therefore, binding upon the United States, its citizens, and
its armed forces. (See DOD Dir. 5100.77.)

6.1.2 Department of the Navy Policy. SECNAVINST 3300.1 A 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 0605, U.S. Navy Regulations, 1973, provides that:

At all times a commander shall observe, and require his command to observe, the principles of
international law. Where necessary to fulfillment of 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:

451

1. The obligations of the United States under the law of armed conflict are observed
and enforced by the U.S. Navy and Marine Corps in the conduct of military operations
and related activities in armed conflict, regardless of how such conflicts are
characterized.

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.

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 judge advocates have appropriate clearances and access
to information to enable them to carry out that responsibility (see CNO
Washington DC message 111021Z Oct 85 and MCO 3300.3).

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 already have occurred.

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. 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 of an order protect a
subordinate from the consequences of violation of the law of armed conflict.

452 Law of Naval Operations

6.2 ENFORCEMENT OF THE LAW OF ARMED CONFLICT

Various means are available to belligerents under international law for
inducing the observance of legitimate warfare. In the event of a clearly
established violation of the law of armed conflict, the aggrieved nation may:

1 . Publicize the facts with a view toward influencing world public opinion against
the offending nation

2. Protest to the offending nation and demand that those responsible be punished
and/or that compensation be paid

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

4. Execute a reprisal action

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
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 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 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

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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 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:

1 . Reprisal must be ordered by the highest authority of the belligerent 's government.

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 his 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.

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.

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

4. Hospitals and medical facilities, personnel, and equipment, including hospital
ships, medical aircraft, and medical vehicles.

6.2.3.3 Authority to Order Reprisals. The National Command
Authorities (NCA) alone may authorize the taking of a reprisal action by
U.S. forces. Although reprisal is lawful when the foregoing requirements are
met, there is always the risk that it will trigger retaliatory escalation (counter-

454 Law of Naval Operations

reprisals) by the enemy. The United States has historically been reluctant to
resort to reprisal for just this reason.

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 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
Conventions. The decision to consider the United States released from a
particular obligation following a major violation by the enemy will ordinarily
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
designated as war crimes. Acts constituting war crimes may be committed
by the armed forces of a belligerent or by individuals belonging to the civilian
population. Belligerents have the obligation under international law to punish
their own nationals, whether members of the armed forces or civilians, 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.

The following acts are representative war crimes:

1. Offenses against prisoners of war, including killing without just cause; torture
or inhuman treatment; unhealthy, dangerous, or otherwise prohibited labor;
infringement of religious rights; and denial of fair trial for offenses

2. Offenses against civilian inhabitants of occupied territory, including killing
without just cause, torture or inhuman 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., denial of the clemency of not killing a defeated enemy)
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

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

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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

10. Employing forbidden arms or ammunition

11. Misuse, abuse, or firing on flags of truce or on the Red Cross device, and similar
protective emblems, signs, and signals

12. Treacherous request for quarter (i.e., feigning surrender in order to gain a
military advantage).

456 Law of Naval Operations

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 seeking to avoid direct
involvement 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 advent of international efforts to abolish "war," coupled with the
proliferation of collective security arrangements and the extension of the
spectrum of warfare to include insurgencies and counterinsurgencies, armed
conflict is now seldom accompanied by formal declarations of war.
Consequently, it has become increasingly difficult to determine with precision
the point in time when hostilities have become a "war" and to distinguish
belligerent nations from those not participating in the conflict.
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, 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.

7.2 NEUTRAL STATUS

Customary international law contemplates that in the absence of an
international commitment to the contrary, all nations have the option to

457

refrain from participation in an armed conflict by declaring or otherwise
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
the former and its right to insist upon the latter.

Neutral status, once established, remains in effect unless and until the
neutral nation abandons its neutral stance and enters into the conflict or is
itself the subject of attack by a belligerent.

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, the Security Council is empowered to take enforcement
action on behalf of all member nations, involving or not involving the use
of force, in order to maintain or restore international peace. When called
upon by the Security Council to do so, the member nations are obligated to
provide assistance to the United Nations 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 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
with the impartiality necessary to a valid assertion of neutrality. Should the
Security Council determine not to institute an enforcement action, or is unable
to do so due to the imposition of a veto by one or more of its permanent
members, each United Nations member remains free to assert neutral status.

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 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. This inherent right of self-defense may be implemented
individually or through 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 is to transform the right of the parties to assist one of their number

458 Law of Naval Operations

under attack into a duty to do so. This duty may assume a variety of forms
ranging from economic assistance to the commitment of armed forces.

7.3 NEUTRAL TERRITORY

As a general rule of international law, all acts of hostility in neutral
territory, 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 resort to acts of hostility
in neutral territory against enemy forces, including warships and military
aircraft, making unlawful use of that territory. Belligerents are also
authorized to act in self-defense when attacked or threatened with attack
while in neutral territory or when attacked or threatened from neutral
territory.

7.3.1 Neutral Lands. Belligerents are forbidden to move troops or war
materials and supplies across neutral land territory. Neutral nations may be
required to mobilize sufficient armed forces to ensure fulfillment of their
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
vessels located in neutral ports or roadsteads at the outbreak of armed conflict.
Thereafter, belligerent vessels may visit only those neutral ports and
roadsteads that the neutral nation may choose to open to them for that
purpose. Belligerent vessels, including warships, retain a right of entry in
distress whether caused by force majeure or damage resulting from enemy
action.

459

7.3.2.1 Limitations on Stay and Departure. In the absence of special
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 vessels
devoted exclusively to humanitarian, religious, or nonmilitary scientific
purposes. (Vessels engaged in the collection of scientific data of potential
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 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 entitled 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.

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 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 to 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. They 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 seaworthiness and to insist that they be accomplished
with the least possible delay.

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 circumstances are overcome or cease to prevail. It is
the duty of the neutral nation to release a prize, together with its officers

460 Law of Naval Operations

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. 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 acts of hostility in neutral territorial waters 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 will not enforce their inviolability.

7.3.4.1 Mere Passage. A neutral nation may, on a nondiscriminatory basis,
close its territorial waters, except in international straits, to belligerent
vessels. 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 vessels, including warships
and prizes, through its territorial waters. To qualify, such passage must be
innocent in nature and, in the absence of special laws or regulations of the
neutral nation to the contrary, must not exceed 24 hours in duration. While
in neutral territorial waters, 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 waters to
belligerent submarines, a neutral nation may elect to allow mere passage of
submarines, either surfaced or submerged. Neutral nations customarily
authorize passage through their territorial sea of ships carrying the wounded,
sick, and shipwrecked, whether or not those waters are otherwise closed to
belligerent vessels.

7.3.4.2 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 territorial waters 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

461

lawfully extend the breadth of claimed territorial waters to 12 nautical miles.
Because of provisions concerning seabed mining (Part XI) the U.S. has not
signed the Convention; nonetheless the U.S. is committed to recognizing the
rights of nations in the waters off their coasts, as reflected in the Convention.
The U.S. claims a 12-nautical mile territorial sea and recognizes the right
of all coastal and island 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 waters
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 with the law
of neutrality.

7.3.5 Neutral 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, 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 a base of
operations, and belligerent warships may not exercise the belligerent right
of visit 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 type of warships which may use the Straits, both in times
of peace and during armed conflict.)

462 Law of Naval Operations

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 and the U.S. and other nations are accorded their full
rights under international law, including the law of armed conflict, in those
waters. The balance of neutral and belligerent rights and duties with respect
to neutral waters is, however, at its most unsettled in the context of
archipelagic waters.

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. Visit and search is not authorized in neutral
archipelagic 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 mere passage of belligerent ships but it is
not obliged to 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 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. Belligerent military aircraft are forbidden to enter neutral
airspace with the following exceptions:

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.

463

2. Unarmed military aircraft may enter neutral airspace under such conditions and
circumstances as the neutral nation may wish to impose impartially on the belligerents.
Should such unarmed aircraft penetrate neutral airspace without permission, or
otherwise fail to abide by the entry conditions imposed upon them by the neutral nations,
they may be interned together with their crews.

3. Medical aircraft may 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.

4. Belligerent aircraft in evident distress are 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 may require such aircraft to land, may intern both aircraft
and crew, or may impose nondiscriminatory conditions upon their stay or release.

7.3.7.1 Neutral Duties In Neutral Airspace. Neutral nations have an
affirmative duty to prevent violation of neutral airspace by belligerent
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 aircraft, belligerent forces of the
other side may undertake such self-help enforcement measures as the
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,
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 sustain the belligerent's
war-fighting 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
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 that protects neutral commerce from
unreasonable interference on the one hand and the right of belligerents to
interdict the flow of war materials to the enemy on the other.

464 Law of Naval Operations

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 has 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 were goods equally
susceptible to either peaceful or warlike purposes, such as foodstuffs,
construction materials, and fuel. Belligerents often declared contraband lists
at 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 varied according to the circumstances
of the conflict.

The practice of belligerents in World War II has cast doubt on the
relevance, if not the validity, of the traditional distinction between absolute
and conditional contraband. Because of the involvement of 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 considered goods as absolute contraband which in earlier
conflicts were considered to be conditional contraband.

7.4.1.1 Enemy Destination. To the extent that the distinction between
absolute and conditional contraband has continuing relevance, it is with
respect to the rules pertaining to the presumption of ultimate enemy
destination. Goods consisting of absolute contraband 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 absolute contraband is direct, involves transshipment, or requires overland
transport. When absolute 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.

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 absolute contraband render
the offending cargo liable to seizure by a belligerent from the time the neutral

465

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," i.e., goods not susceptible for use in armed conflict.

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.

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
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

466 Law of Naval Operations

belligerent have no effect on the visit and search rights of a belligerent of
the opposing side.

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 neutral flag, or that an aircraft bears neutral markings, does not
necessarily establish neutral character. Any vessel or aircraft, other than a
warship or military aircraft, owned or controlled by a belligerent possesses
enemy character, regardless of whether it is operating under a neutral flag
or bears neutral markings. Vessels and aircraft acquiring enemy character
may be treated by an opposing belligerent as if they are enemy vessels and
aircraft. (Paragraphs 8.2.1 and 8.2.2 set forth the actions that may be taken
against enemy vessels and aircraft.)

7.5.1 Acquiring the Character of an Enemy Warship or Military
Aircraft. Neutral vessels and aircraft, other than warships and military
aircraft, acquire enemy character and may be treated by a belligerent as
enemy warships and military aircraft when engaged in the following acts:

1. Taking a direct part in the hostilities on the side of the enemy

2. Acting in any capacity as a naval or military auxiliary to the enemy's armed forces.

(Paragraph 8.2.1 describes the actions that may be taken against enemy
warships and military aircraft.)

7.5.2 Acquiring the Character of an Enemy Merchant Vessel or
Aircraft. Neutral vessels and aircraft, other than warships and military
aircraft, acquire enemy character and may be treated by a belligerent as
enemy merchant vessels or aircraft when engaged in the following acts:

1. Operating directly under enemy control, orders, charter, employment, or direction

2. Resisting an attempt to establish identity, including visit and search.

(Paragraph 8.2.2 describes the actions that may be taken against enemy
merchant ships and civilian aircraft.)

7.6 VISIT AND SEARCH

Visit and search is the means by which a belligerent warship or belligerent
military aircraft may determine the true character (enemy or neutral) of
merchant ships encountered outside neutral territory, the nature (contraband
or exempt "free goods") of their cargo, the manner (innocent or hostile) of

467

their employment, and other facts bearing on their relation to the armed
conflict. Warships are not subject to visit and search. The prohibition against
visit and search in neutral territory extends to international straits overlapped
by neutral territorial seas and archipelagic sea lanes. Neutral vessels engaged
in government noncommercial service may not be subjected to visit and
search. Neutral merchant vessels under convoy of neutral warships of the same
nationality are also exempt from visit and search, although the convoy
commander may be required to provide in writing to the commanding officer
of an intercepting belligerent warship information as to the character of the
vessels and of their cargoes which could otherwise be obtained by visit and
search. Should it be determined by the convoy commander that a vessel under
his charge possesses enemy character or carries contraband cargo, he is obliged
to withdraw his protection of the offending vessel, making it liable to visit
and search, and possible capture, by the belligerent warship.

7.6.1 Procedure for Visit and Search. In the absence of specific rules of
engagement or other special instructions issued by the operational chain of command
during a period of armed conflict, the following procedure should be carried
out by U.S. Navy warships exercising the belligerent right of visit and search:

1. Visit and search should be exercised with all possible tact and consideration.

2. Before summoning a vessel to lie to, the warship should hoist its national flag. The
summons is made by firing a blank charge, by international flag signal (SN or SQ),
or by other recognized means. The summoned vessel, if a neutral merchant ship, is bound
to stop, lie to, display her colors, and not resist. (If the summoned vessel is an enemy
ship, it is not so bound and may legally resist, even by force, but thereby assumes all
risk of resulting damage or destruction.)

3. If the summoned vessel takes flight, she may be pursued and brought to by forcible
measures if necessary.

4. When a summoned vessel has been brought to, the warship should send a boat with
an officer to conduct the visit and search. If practicable, a second officer should
accompany the officer charged with the examination. The officer(s) and boat crew may
be armed at the discretion of the commanding officer.

5. If visit and search at sea is deemed hazardous or impracticable, the neutral vessel
may be escorted by the summoning of another U.S. Navy warship or by a U.S. military
aircraft to the nearest place (outside neutral territory) where the visit and search may
be conveniently and safely conducted. The neutral vessel is not obliged to lower her
flag (she has not been captured) but must proceed according to the orders of the escorting
warship or aircraft.

6. The boarding officer should first examine the ship's papers to ascertain her character,
ports of departure and destination, nature of cargo, manner of employment, and other
facts deemed pertinent. Papers to be examined will ordinarily include a certificate of
national registry, crew list, passenger list, logbook, bill of health clearances, charter
party (if chartered), invoices or manifests of cargo, bills of lading, and on occasion,

468 Law of Naval Operations

a consular declaration or other certificate of noncontraband carriage certifying the
innocence of the cargo.

7. Regularity of papers and evidence of innocence of cargo, employment, or destination
furnished by them are not necessarily conclusive, and, should doubt exist, the ship's
company may be questioned and the ship and cargo searched.

8. Unless military security prohibits, the boarding officer will record the facts
concerning the visit and search in the logbook of the visited ship, including the date
and position of the interception. The entry should be authenticated by the signature
and rank of the boarding officer, but neither the name of the visiting warship nor the
identity of her commanding officer should be disclosed.

7.6.2 Visit and Search by Military Aircraft. Although there is a right of
visit and search by military aircraft, there is no established international
practice as to how that right is to be exercised. Ordinarily, visit and search
of a vessel by an aircraft is accomplished by directing and escorting the vessel
to the vicinity of a belligerent warship, which will carry out the visit and
search, or to a belligerent port. Visit and search of an aircraft by an aircraft
may be accomplished by directing the aircraft to proceed under escort to the
nearest convenient belligerent landing area.

7.7 BLOCKADE

7.7.1 General. Blockade is a belligerent operation to prevent vessels and/
or aircraft of all nations, enemy as well as neutral, from entering or exiting
specified ports, airfields, or coastal areas belonging to, occupied by, or under
the control of an enemy nation. A belligerent's purpose in establishing a
blockade is to deny the enemy the use of enemy and neutral vessels or aircraft
to transport personnel and goods to or from enemy territory. Unlike the
belligerent right of visit and search, which is designed to interdict the flow
of contraband goods into enemy territory and which may be exercised
anywhere outside of neutral territory, the belligerent right of blockade is
intended to prevent vessels and aircraft from crossing an established and
publicized cordon separating the enemy from international waters and/or
airspace.

7.7.2 Traditional Rules. In order to be valid under the traditional rules
of international law, a blockade must conform to the following criteria.

7.7.2.1 Establishment. A blockade must be established by the government
of the belligerent nation. This is usually accomplished by a declaration of
the belligerent government or by the commander of the blockading force
acting on behalf of his government. The declaration should include, as a
minimum, the date the blockade is to begin, its geographic limits, and the

469

grace period granted neutral vessels and aircraft to leave the area to be
blockaded.

7.7.2.2 Notification. It is customary for the belligerent nation establishing
the blockade to notify all affected nations of its imposition. Because
knowledge of the existence of a blockade is an essential element of the offenses
of breach and attempted breach of blockade (see 7.7.4), neutral vessels and
aircraft are always entitled to notification. The commander of the blockading
forces will usually also notify local authorities in the blockaded area. The
form of the notification is not material so long as it is effective.

7.7.2.3 Effectiveness. In order to be valid, a blockade must be effective.
To be effective, it must be maintained by a surface, air, or subsurface force
or other mechanism that is sufficient to render ingress or egress of the
blockaded area dangerous. The requirement of effectiveness does not preclude
temporary absence of the blockading force, if such absence is due to stress
of weather or to some other reason connected with the blockade (e.g., pursuit
of a blockade runner). Nor does effectiveness require that every possible
avenue of approach to the blockaded area be covered.

7.7.2.4 Impartiality. A blockade must be applied impartially to the vessels
and aircraft of all nations. Discrimination by the blockading belligerent in
favor of or against the vessels and aircraft of particular nations, including
those of its own or those of an Allied nation, renders the blockade legally
invalid.

7.7.2.5 Limitations. A blockade must not bar access to or departure from
neutral ports and coasts. Neutral nations retain the right to engage in neutral
commerce that does not involve trade or communications originating in or
destined for the blockaded area.

7.7.3 Special Entry and Exit Authorization. Although neutral warships
and military aircraft enjoy no positive right of access to blockaded areas, the
belligerent imposing the blockade may authorize their entry and exit. Such
special authorization may be made subject to such conditions as the blockading
force considers to be necessary and expedient. Neutral vessels and aircraft
in evident distress should be authorized entry into a blockaded area, and
subsequently authorized to depart, under conditions prescribed by the
commander of the blockading force. Similarly, neutral vessels and aircraft
engaged in the carriage of qualifying relief supplies for the civilian population
and the sick and wounded should be authorized to pass through the blockade
cordon.

470 Law of Naval Operations

7.7.4 Breach and Attempted Breach of Blockade. Breach of blockade is
the passage of a vessel or aircraft through a blockade without special entry
or exit authorization from the blockading belligerent. Knowledge of the
existence of the blockade is essential to the offenses of breach of blockade
and attempted breach of blockade. Knowledge may be presumed once a
blockade has been declared and appropriate notification provided to affected
governments. Attempted breach of blockade occurs from the time a vessel
or aircraft leaves a port or airfield with the intention of evading the blockade.
It is immaterial that the vessel or aircraft is at the time of interception bound
for neutral territory, if its ultimate destination is the blockaded area. There
is a presumption of attempted breach of blockade where vessels or aircraft
are bound for a neutral port or airfield serving as a point of transit to the
blockaded area. Capture of such vessels is discussed in paragraph 7.9.

7.7.5 Contemporary Practice. The traditional rules of blockade, as set out
above, are for the most part customary in nature, having derived their
definitive form through the practice of maritime powers during the nineteenth
century. The rules reflect a balance between the right of a belligerent
possessing effective command of the sea to close enemy ports and coastlines
to international commerce, and the right of neutral nations to carry out
neutral commerce with the least possible interference from belligerent forces.
The law of blockade is, therefore, premised on a system of controls designed
to effect only a limited interference with neutral trade. This was traditionally
accomplished by a relatively "close-in" cordon of surface warships stationed
in the immediate vicinity of the blockaded area.

The increasing emphasis in modern warfare on seeking to isolate completely
the enemy from outside assistance and resources by targeting enemy merchant
vessels as well as warships, and on interdicting all neutral commerce with
the enemy, is not furthered substantially by blockades established in strict
conformity with the traditional rules. In World Wars I and II, belligerents
of both sides resorted to methods which, although frequently referred to as
measures of blockade, cannot be reconciled with the traditional concept of
the close-in blockade. The so-called long-distance blockade of both World
Wars departed materially from those traditional rules and were justified
instead upon the belligerent right of reprisal against illegal acts of warfare
on the part of the enemy. Moreover, recent developments in weapons systems
and platforms, particularly nuclear-powered submarines, supersonic aircraft,
and cruise missiles, have rendered the in-shore blockade exceedingly difficult,
if not impossible, to maintain during anything other than a local or limited
armed conflict.

471

Notwithstanding this trend in belligerent practices (during general war)
away from the establishment of blockades that conform to the traditional
rules, blockade continues to be a useful means to regulate the competing
interests of belligerents and neutrals in more limited armed conflict. The
experience of the United States during the Vietnam Conflict provides a case
in point. The blockade of Haiphong and other North Vietnamese ports,
accomplished by the emplacement of mines, was undertaken in conformity
with traditional criteria of establishment, notification, effectiveness,
limitation, and impartiality.

7.8 BELLIGERENT CONTROL OF THE IMMEDIATE AREA OF
NAVAL OPERATIONS

Within the immediate area or vicinity of naval operations, a belligerent
may establish special restrictions upon the activities of neutral vessels and
aircraft and may prohibit altogether such vessels and aircraft from entering
the area. The immediate area or vicinity of naval operations is that area within
which hostilities are taking place or belligerent forces are actually operating.
A belligerent may not, however, purport to deny access to neutral nations,
or to close an international strait to neutral shipping, pursuant to this authority
unless another route of similar convenience remains open to neutral traffic.

7.8.1 Belligerent Control of Neutral Communications at Sea. The

commanding officer of a belligerent warship may exercise control over the
communication of any neutral merchant vessel or civil aircraft whose presence
in the immediate area of naval operations might otherwise endanger or
jeopardize those operations. A neutral merchant ship or civil aircraft within
that area that fails to conform to a belligerent's directions concerning
communications may thereby assume enemy character and risk being fired
upon or captured. Legitimate distress communications should be permitted
to the extent that the success of the operation is not prejudiced thereby. Any
transmission to an opposing belligerent of information concerning military
operations or military forces is inconsistent with the neutral duties of
abstention and impartiality and renders the neutral vessel or aircraft liable
to capture or destruction.

7.9 CAPTURE OF NEUTRAL VESSELS AND AIRCRAFT

Neutral merchant vessels and civil aircraft are liable to capture by
belligerent warships and military aircraft if engaged in any of the following
activities:

1. Avoiding an attempt to establish identity

472 Law of Naval Operations

2. Resisting visit and search

3. Carrying contraband

4. Breaking or attempting to break blockade

5. Presenting irregular or fraudulent papers; lacking necessary papers; or destroying,
defacing, or concealing papers

6. Violating regulations established by a belligerent within the immediate area of naval
operations

7. Carrying personnel in the military or public service of the enemy

8. Communicating information in the interest of the enemy.

Captured vessels and aircraft are sent to a port or airfield under belligerent
jurisdiction as prize for adjudication by a prize court. Ordinarily, a belligerent
warship will place a prize master and prize crew on board a captured vessel
for this purpose. Should that be impracticable, the prize may be escorted into
port by a belligerent warship or military aircraft. In the latter circumstances,
the prize must obey the instructions of its escort or risk forcible measures.
(Article 630.23 of OPNAVINST 3120.32B, Standard Organization and
Regulations of the U.S. Navy, sets forth the duties and responsibilities of
commanding officers and prize masters concerning captured vessels.)

Neutral vessels or aircraft attempting to resist proper capture lay
themselves open to forcible measures by belligerent warships and military
aircraft and assume all risk of resulting damage.

7.9.1 Destruction of Neutral Prizes. Every reasonable effort should be
made to avoid destruction of captured neutral vessels and aircraft. A capturing
officer, therefore, should not order such destruction without being entirely
satisfied that the prize can neither be sent into a belligerent port or airfield
nor, in his opinion, properly be released. Should it become necessary that
the prize be destroyed, the capturing officer must provide for the safety of
the passengers and crew. In that event, all documents and papers relating to
the prize should be saved. If practicable the personal effects of passengers
should also be safeguarded.

7.9.2 Personnel of Captured Neutral Vessels and Aircraft. The officers
and crews of captured neutral merchant vessels and civil aircraft who are
nationals of a neutral nation do not become prisoners of war and must be
repatriated as soon as circumstances reasonably permit. This rule applies
equally to the officers and crews of neutral vessels and aircraft which have
assumed the character of enemy merchant vessels or aircraft by operating

473

under enemy control or resisting visit and search. If, however, the neutral
vessels or aircraft had taken a direct part in the hostilities on the side of the
enemy or had served in any way as a naval or military auxiliary for the enemy,
it thereby assumed the character of an enemy warship or military aircraft
and, upon capture, its officers and crew may be interned as prisoners of war.

Enemy nationals found on board neutral merchant vessels and civil aircraft
as passengers who are actually embodied in the military forces of the enemy,
who are en route to serve in the enemy's armed forces, who are employed
in the public service of the enemy, or who may be engaged in or suspected
of service in the interests of the enemy may be made prisoners of war. All
such enemy nationals may be removed from the neutral vessel or aircraft
whether or not there is reason for its capture as a neutral prize. Enemy
nationals not falling within any of these categories are not subject to capture
or detention.

7.10 BELLIGERENT PERSONNEL INTERNED BY A NEUTRAL
GOVERNMENT

International law recognizes that neutral territory, being outside the region
of war, offers a place of asylum to members of belligerent forces and as a
general rule requires the neutral government concerned to prevent the return
of such persons to their own forces. The neutral nation must accord equal
treatment to the personnel of all the belligerent forces.

With respect to aircrews of belligerent aircraft that land in neutral
territory, whether intentionally or inadvertently, the neutral nation should
usually intern them.

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Chapter 8
The Law of Naval Targeting

8.1 PRINCIPLES OF LAWFUL TARGETING

The law of naval targeting is premised upon the three fundamental
principles of the law of armed conflict:

1. The right of belligerents to adopt means of injuring the enemy is not unlimited.

2. It is prohibited to launch attacks against the civilian population as such.

3. Distinctions must be made between combatants and noncombatants, to the effect
that noncombatants be spared as much as possible.

These legal principles governing targeting generally parallel the military
principles of objective, mass and economy of force. The law requires that
only objectives of military importance be attacked but permits the use of
sufficient mass to destroy those objectives. At the same time, unnecessary
(and wasteful) collateral destruction must be avoided to the extent possible
and, consistent with mission accomplishment and the security of the force,
unnecessary human suffering prevented. The law of naval targeting,
therefore, requires that all reasonable precautions must be taken to ensure
that only military objectives are targeted so that civilians and civilian objects
are spared as much as possible from the ravages of war.

8.1.1 Military Objective. Only combatants and other military objectives
may be attacked. Military objectives are those objects which, by their nature,
location, purpose, or use, effectively contribute to the enemy's war-fighting
or war-sustaining capability and whose total or partial destruction, capture,
or neutralization would constitute a definite military advantage to the
attacker under the circumstances at the time of the attack. Military advantage
may involve a variety of considerations including the security of the attacking
force.

Proper targets for naval attack include such military objectives as enemy
warships and military aircraft, naval and military auxiliaries, naval and
military bases ashore, warship construction and repair facilities, military
depots and warehouses, POL storage areas, docks, port facilities, harbors,

475

bridges, airfields, military vehicles, armor, artillery, ammunition stores, troop
concentrations and embarkation points, lines of communication and other
objects used to conduct or support military operations. Proper naval targets
also include geographic targets, such as a mountain pass, and buildings and
facilities that provide administrative and personnel support for military and
naval operations such as barracks, communications and command and control
facilities, headquarters buildings, mess halls, and training areas.

Proper economic targets for naval attack include enemy lines of
communication used for military purposes, rail yards, bridges, rolling stock,
barges, lighters, industrial installations producing war-fighting products, and
power generation plants. Economic targets of the enemy that indirectly but
effectively support and sustain the enemy's war-fighting capability may also
be attacked.

8.1.2 Civilian Objects. Civilian objects may not be made the object of
attack. Civilian objects consist of all civilian property and activities other
than those used to support or sustain the enemy's war-fighting capability.
Attacks on installations such as dikes and dams are prohibited if their breach
or destruction would result in the loss of civilian lives disproportionate to
the military advantage to be gained. (See also paragraph 8.5.1.7.) Similarly,
the intentional destruction of food, crops, livestock, drinking water, and other
objects indispensable to the survival of the civilian population, for the specific
purpose of denying the civilian population of their use, is prohibited.

8.1.2.1 Incidental Injury and Collateral Damage. It is not unlawful to
cause incidental injury or death to civilians, or collateral damage to civilian
objects, during an attack upon a legitimate military objective. Incidental
injury or collateral damage should not, however, be excessive in light of the
military advantage anticipated by the attack. Naval commanders must take
all practicable precautions, taking into account military and humanitarian
considerations, to keep civilian casualties and damage to the absolute
minimum consistent with mission accomplishment and the security of the
force. In each instance, the commander must determine whether incidental
injuries and collateral damage would be excessive, on the basis of an honest
and reasonable estimate of the facts available to him. Similarly, the
commander must decide, in light of all the facts known or reasonably available
to him, including the need to conserve resources and complete the mission
successfully, whether to adopt an alternative method of attack, if reasonably
available, to reduce civilian casualties and damage.

476 Law of Naval Operations
8.2 SURFACE WARFARE

As a general rule, surface warships may employ their conventional weapons
systems to attack, capture, or destroy enemy surface, subsurface, and air
targets at sea wherever located beyond neutral territory. (Special
circumstances in which enemy warships and military aircraft may be attacked
in neutral territory are discussed in Chapter 7 The Law of Neutrality.) The
law of armed conflict pertaining to surface warfare is concerned primarily
with the protection of noncombatants through rules establishing lawful
targets of attack. For that purpose, all enemy vessels and aircraft fall into
one of three general classes, i.e., warships and military aircraft, merchant
vessels and civilian aircraft, and exempt vessels and aircraft.

8.2.1 Enemy Warships and Military Aircraft. Enemy warships and
military aircraft, including naval and military auxiliaries, are subject to
attack, destruction, or capture anywhere beyond neutral territory. It is
forbidden, however, to refuse quarter to any enemy who has surrendered in
good faith. Once an enemy warship has clearly indicated a readiness to
surrender by hauling down her flag, by hoisting a white flag, by surfacing
(in the case of submarines), by stopping engines and responding to the
attacker's signals, or by taking to lifeboats, the attack must be discontinued.
Disabled enemy aircraft in air combat are frequently pursued to destruction
because of the impossibility of verifying their true status and inability to
enforce surrender. Although disabled, the aircraft may or may not have lost
its means of combat. Moreover, it still may represent a valuable military asset.
Accordingly, surrender in air combat is not generally offered. However, if
surrender is offered in good faith so that circumstances do not preclude
enforcement, it must be respected. Officers and crews of captured or
destroyed enemy warships and military aircraft should be made prisoners of
war. (See Chapter 11, Noncombatant Persons.) As far as military exigencies
permit, after each engagement all possible measures should be taken without
delay to search for and collect the^shipwrecked, wounded, and sick and to
recover the dead.

Prize procedure is not used for captured enemy warships and naval
auxiliaries because their ownership vests immediately in the captor's
government by the fact of capture.

8.2.2 Enemy Merchant Vessels and Civilian Aircraft

8.2.2.1 Capture. Enemy merchant vessels and civil aircraft may be captured
at sea wherever located beyond neutral territory. Prior exercise of visit and
search is not required, provided positive determination of enemy status can

477

be made by other means. When military circumstances preclude sending or
taking in such vessel or aircraft for adjudication as an enemy prize, it may
be destroyed after all possible measures are taken to provide for the safety
of passengers and crew. Documents and papers relating to the prize should
be safeguarded and, if practicable, the personal effects of passengers should
be saved. Every case of destruction of a captured enemy prize should be
reported promptly to higher command.

Officers and crews of captured enemy merchant ships and civilian aircraft
may be made prisoners of war. Other enemy nationals on board such captured
ships and aircraft as private passengers are subject to the discipline of the
captor. Nationals of a neutral nation on board captured enemy merchant
vessels and civilian aircraft are not made prisoners of war unless they have
participated in acts of hostility or resistance against the captor.

8.2.2.2 Destruction. Prior to World War II, both customary and
conventional international law prohibited the destruction of enemy merchant
vessels by surface warships unless the safety of passengers and crew was first
assured. This requirement did not apply, however, if the merchant vessel
engaged in active resistance to capture or refused to stop when ordered to
do so. Specifically, the London Protocol of 1936, to which almost all of the
belligerents of World War II expressly acceded, provides in part that:

In particular, except in the case of persistent refusal to stop on being duly summoned, or of active
resistance to visit or search, a warship, whether surface vessel or submarine, may not sink or render
incapable of navigation a merchant vessel without having first placed passengers, crew and ship 's
papers in a place of safety. For this purpose the ship 's boats are not regarded as a place of safety
unless the safety of the passengers and crew is assured, in the existing sea and weather conditions,
by the proximity of land, or the presence of another vessel which is in a position to taken them on
board.

During World War II, the practice of attacking and sinking enemy
merchant vessels by surface warships, submarines, and military aircraft
without prior warning and without first providing for the safety of passengers
and crew was widespread on both sides. Rationale for these apparent
departures from the agreed rules of the 1936 London Protocol varied. Initially,
such acts were justified as reprisals against illegal acts of the enemy. As the
war progressed, however, merchant vessels were regularly armed and
convoyed, participated in intelligence collection, and were otherwise
incorporated directly or indirectly into the enemy's war-fighting/ war-
sustaining effort. Consequently, enemy merchant vessels were widely
regarded as legitimate military targets subject to destruction on sight.

Although the rules of the 1936 London Protocol continue to apply to surface
warships, they must be interpreted in light of current technology, including

478 Law of Naval Operations

satellite communications, over-the-horizon weapons, and antiship missile
systems, as well as the customary practice of belligerents that evolved during
and following World War II. Accordingly, enemy merchant vessels may be
attacked and destroyed by surface warships, either with or without prior
warning, in any of the following circumstances:

1 . Actively resisting visit and search or capture

2. Refusing to stop upon being duly summoned to do so

3. Sailing under convoy of enemy warships or enemy military aircraft

4. If armed

5. If incorporated into, or assisting in any way, the intelligence system of the enemy's
armed forces

6. If acting in any capacity as a naval or military auxiliary to an enemy's armed
forces

7. If integrated into the enemy's war-fighting/war-sustaining effort and compliance
with the rules of the 1936 London Protocol would, under the circumstances of the specific
encounter, subject the surface warship to imminent danger or would otherwise preclude
mission accomplishment.

Rules relating to surrendering and to the search for and collection of the
shipwrecked, wounded, and sick and the recovery of the dead, set forth in
paragraph 8.2.1, apply also to enemy merchant vessels and civilian aircraft
that may become subject to attack and destruction.

8.2.3 Enemy Vessels and Aircraft Exempt from Destruction or
Capture. Certain classes of enemy vessels and aircraft are exempt under the
law of naval warfare from capture or destruction provided they are innocently
employed in their exempt category. These specially protected vessels and
aircraft must not take part in the hostilities, must not hamper the movement
of combatants, must submit to identification and inspection procedures, and
may be ordered out of harm's way. These specifically exempt vessels and
aircraft include:

1. Vessels and aircraft designated for and engaged in the exchange of prisoners
(cartel vessels).

2. Properly designated and marked hospital ships, medical transports, and known
medical aircraft.

3. Vessels charged with religious, non-military scientific, or philanthropic missions.
(Vessels engaged in the collection of scientific data of potential military application are
not exempt.)

4. Vessels and aircraft guaranteed safe conduct by prior arrangement between the
belligerents.

479

5. Small coastal (not deep-sea) fishing vessels and small boats engaged in local coastal
trade. Such vessels and boats are subject to the regulations of a belligerent naval
commander operating in the area.

6. Civilian passenger vessels at sea and civil airliners in flight are subject to capture
but are exempt from destruction. Although enemy lines of communication are generally
legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil
airliners in flight, are exempt from destruction unless at the time of the encounter they
are being utilized by the enemy for a military purpose (e.g., transporting troops or
military cargo) or refuse to respond to the directions of the intercepting warship or
military aircraft. Such passenger vessels in port and airliners on the ground are not
protected from destruction.

If an enemy vessel or aircraft assists the enemy's military effort in any manner,
it may be captured or destroyed. Refusal to provide immediate identification
upon demand is ordinarily sufficient legal justification for capture or
destruction. All nations have a legal obligation not to take advantage of the
harmless character of exempt vessels and aircraft in order to use them for
military purposes while preserving their innocent appearance. For example,
the utilization by North Vietnam of innocent appearing small coastal fishing
boats as logistic craft in support of military operations during the Vietnam
Conflict was in violation of this obligation.

8.3 SUBMARINE WARFARE

The law of armed conflict imposes essentially the same rules on submarines
as apply to surface warships. Submarines may employ their conventional
weapons systems to attack, capture, or destroy enemy surface or subsurface
targets wherever located beyond neutral territory. Enemy warships and naval
auxiliaries may be attacked and destroyed without warning. Rules applicable
to surface warships regarding enemy ships that have surrendered in good faith,
or that have indicated clearly their intention to do so, apply as well to
submarines. To the extent that military exigencies permit, submarines are
also required to search for and collect the shipwrecked, wounded, and sick,
following an engagement. If such humanitarian efforts would subject the
submarine to undue additional hazard or prevent it from accomplishing its
military mission, the location of possible survivors should be passed at the
first opportunity to a surface ship, aircraft, or shore facility capable of
rendering assistance.

8.3.1 Interdiction of Enemy Merchant Shipping by Submarines. The

conventional rules of naval warfare pertaining to submarine operations
against enemy merchant shipping constitute one of the least developed areas
of the law of armed conflict. Although the submarine's effectiveness as a
weapons system is dependent upon its capability to remain submerged (and

480 Law of Naval Operations

thereby undetected) and despite its vulnerability when surfaced, the London
Protocol of 1936 (paragraph 8.2.2.2) makes no distinction between submarines
and surface warships with respect to the interdiction of enemy merchant
shipping. The London Protocol specifies that except in case of persistent
refusal to stop when ordered to do so, or in the event of active resistance
to capture, a warship "whether surface vessel or submarine" may not destroy
an enemy merchant vessel "without having first placed passengers, crew and
ship's papers in a place of safety." The impracticality of imposing upon
submarines the same targeting constraints as burden surface warships is
reflected in the practice of belligerents of both sides during World War II
when submarines regularly attacked and destroyed without warning enemy
merchant shipping. As in the case of such attacks by surface warships, this
practice was justified either as reprisal in response to unlawful acts of the
enemy or as a necessary consequence of the arming of merchant vessels, of
convoying, and of the general integration of merchant shipping into the
enemy's war-fighting/ war-sustaining effort.

The United States considers that the London Protocol of 1936, coupled with
the customary practice of belligerents during and following World War II,
imposes upon submarines the responsibility to provide for the safety of
passengers, crew, and ship's papers before destruction of an enemy merchant
vessel unless:

1 . The enemy merchant vessel refuses to stop when summoned to do so or otherwise
resists capture.

2. The enemy merchant vessel is sailing under armed convoy or is itself armed.

3. The enemy merchant vessel is assisting in any way the enemy's military
intelligence system or is acting in any capacity as a naval auxiliary to the enemy's armed
forces.

4. The enemy has integrated its merchant shipping into its war-fighting/war-
sustaining effort and compliance with this rule would, under the circumstances of the
specific encounter, subject the submarine to imminent danger or would otherwise
preclude mission accomplishment.

8.3.2 Enemy Vessels Exempt From Submarine Interdiction. Rules of
naval warfare regarding enemy vessels that are exempt from capture and/
or destruction by surface warships apply as well to submarines. (See paragraph
8.2.3.)

8.4 AIR WARFARE AT SEA

Military aircraft may employ conventional weapons to attack and destroy
warships and military aircraft, including naval and military auxiliaries,
anywhere at sea beyond neutral territory. Enemy merchant vessels and civil

481

aircraft may be attacked and destroyed by military aircraft only under the
following circumstances:

1 . When refusing to comply with directions from the intercepting aircraft

2. When assisting in any way the enemy's military intelligence system or acting
in any capacity as auxiliaries to the enemy's armed forces

3. When sailing under convoy of enemy warships, escorted by enemy military
aircraft, or armed

4. When otherwise integrated into the enemy's war-fighting or war-sustaining
effort.

To the extent that military exigencies permit, military aircraft are required
to search for the shipwrecked, wounded, and sick following an engagement
at sea. The location of possible survivors should be passed at the first
opportunity to a surface vessel, aircraft, or shore facility capable of rendering
assistance.

Historically, instances of surrender of enemy vessels to aircraft are rare.
If, however, an enemy has surrendered in good faith, under circumstances
that do not preclude enforcement of the surrender, or has clearly indicated
an intention to do so, the enemy must not be attacked.

8.4.1 Enemy Vessels and Aircraft Exempt From Aircraft Interdiction.

Rules of naval warfare regarding enemy vessels and aircraft that are exempt
from capture and/or destruction by surface warships apply as well to military
aircraft. (See paragraph 8.2.3.)

8.5 BOMBARDMENT

For purposes of this publication, the term "bombardment" refers to naval
and air bombardment of enemy targets on land with conventional weapons,
including naval guns, rockets and missiles, and air-delivered ordnance.
Bombardment by land forces is not included in this text. Engagement of
targets at sea is discussed in paragraphs 8.2 to 8.4.

8.5.1 General Rules. The United States is a party to Hague Convention
No. IX (1907) Respecting Bombardment by Naval Forces in Time of War.
That convention establishes the general rules of naval bombardment of land
targets. These rules have been further developed by customary practice in
World Wars I and II, Vietnam, and the Falklands. Underlying these rules
are the broad principles of the law of armed conflict that belligerents are
forbidden to make noncombatants the target of direct attack, that superfluous
injury and unnecessary suffering are to be avoided, and that wanton

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destruction of property is prohibited. To give effect to these humanitarian
concepts, the following general rules governing bombardment must be
observed.

8.5.1.1 Destruction of Civilian Habitation. The wanton or deliberate
destruction of areas of concentrated civilian habitation, including cities,
towns, and villages, is prohibited. A military objective within a city, town,
or village may, however, be bombarded if required for the submission of the
enemy with the minimum expenditure of time, life, and physical resources.

8.5.1.2 Terrorization. Bombardment for the sole purpose of terrorizing
the civilian population is prohibited.

8.5.1.3 Undefended Cities or Agreed Demilitarized Zones. Belligerents
are forbidden to bombard a city or town that is undefended and that is open
to immediate entry by their own or allied forces. A city or town behind enemy
lines is, by definition, neither undefended nor open and military targets therein
may be destroyed by bombardment. An agreed demilitarized zone is also
exempt from bombardment.

8.5.1.4 Medical Facilities. Medical establishments and units (both mobile
and fixed), medical vehicles, and medical equipment and stores may not be
deliberately bombarded. Belligerents are required to ensure that such medical
facilities are, as far as possible, situated in such a manner that attacks against
military targets in the vicinity do not imperil their safety. If medical facilities
are used for military purposes inconsistent with their humanitarian mission,
and if appropriate warnings that continuation of such use will result in loss
of protected status are unheeded, the facilities become subject to attack. The
distinctive medical emblem, a red cross or red crescent, should be clearly
displayed on medical establishments and units in order to identify them as
entitled to protected status. Any object recognized as being a medical facility
may not be attacked whether or not marked with a protective symbol.

8.5.1.5 Special Hospital Zones and Neutralized Zones. When
established by agreement between the belligerents, hospital zones and
neutralized zones are immune from bombardment in accordance with the
terms of the agreement concerned.

8.5.1.6 Religious, Cultural, and Charitable Buildings and Monuments.

Buildings devoted to religion, the arts, or charitable purposes; historic
monuments; and other religious, cultural, or charitable facilities should not
be bombarded, provided they are not used for military purposes. It is the
responsibility of the local inhabitants to ensure that such buildings and

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monuments are clearly marked with the distinctive emblem of such sites —
a rectangle divided diagonally into two triangular halves, the upper portion
black and the lower white. (See paragraph 11.10.)

8.5.1.7 Dams and Dikes. Dams, dikes, levees, and other installations, which
if breached or destroyed would release flood waters or other forces dangerous
to the civilian population, should not be bombarded if the potential for harm
to noncombatants would be excessive in relation to the military advantage
to be gained by bombardment. Conversely, installations containing such
dangerous forces that are used by belligerents to shield or support military
activities are not so protected.

8.5.2 Warning Before Bombardment. Where the military situation
permits, commanders should make every reasonable effort to warn the civilian
population located in close proximity to a military objective targeted for
bombardment. Warnings may be general rather than specific warnings lest
the bombarding force or the success of its mission be placed in jeopardy.

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Chapter 9

Conventional Weapons and
Weapons Systems

9.1 INTRODUCTION

This chapter addresses the legal considerations pertaining to the use of
conventional weapons and weapons systems. It is a fundamental tenet of the
law of armed conflict that the right of nations engaged in armed conflict to
choose methods or means of warfare is not unlimited. This rule of law is
expressed in the concept that the employment of weapons, material, and
methods of warfare that are designed to cause superfluous injury or
unnecessary suffering is prohibited. A corollary concept is that weapons which
by their nature are incapable of being directed specifically against military
objects, and therefore that put noncombatants at equivalent risk, are forbidden
due to their indiscriminate effect. A few weapons, such as poisoned
projectiles, are unlawful, no matter how employed. Others may be rendered
unlawful by alteration, such as by coating ammunition with a poison. Still
others may be unlawfully employed, such as setting armed contact naval mines
adrift so as to endanger innocent as well as enemy shipping. And finally, any
weapon may be set to an unlawful purpose when it is directed against
noncombatants and other protected persons and property.

Of particular interest to naval officers are law of armed conflict rules
pertaining to naval mines, torpedoes, cluster and fragmentation weapons,
incendiary weapons, and over-the-horizon and beyond-visual-range weapons
systems. Each of these weapons or systems will be assessed in terms of their
potential for causing unnecessary suffering and superfluous injury or
indiscriminate effect.

9.1.1 Unnecessary Suffering. Antipersonnel weapons are designed to kill
or disable enemy combatants and are lawful notwithstanding the death, pain,
and suffering they inflict. Weapons that are designed to cause unnecessary
suffering or superfluous injury are, however, prohibited because the degree
of pain or injury, or the certainty of death, they produce is needlessly or clearly
disproportionate to the military advantage to be gained by their use. Poisoned

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projectiles and dum-dum bullets fall into this category, because there is little
military advantage to be gained by ensuring the death of wounded personnel
through poisoning or the expanding effect of soft-nosed or unjacketed lead
ammunition. Similarly, using materials that are difficult to detect or
undetectable by field x-ray equipment, such as glass or clear plastic, as the
injuring mechanism in military ammunition is prohibited, since they
unnecessarily inhibit the treatment of wounds. Use of such materials as
incidental components in ammunition, e.g., as wadding or packing, is not
prohibited.

9.1.2 Indiscriminate Effect. Weapons that are incapable of being
controlled so as to be directed against a military target are forbidden as being
indiscriminate in their effect. Drifting armed contact mines and long-range
unguided missiles (such as the German V-l and V-2 rockets of World War
II) fall into this category. A weapon is not indiscriminate simply because it
may cause incidental or collateral civilian casualties, provided such casualties
are not foreseeably excessive in light of the expected military advantage to
be gained. An artillery round that is capable of being directed with a
reasonable degree of accuracy at a military target is not an indiscriminate
weapon simply because it may miss its mark or inflict collateral damage.
Conversely, uncontrolled balloonborne bombs, such as those released by the
Japanese against the west coast of the United States and Canada in World
War II lack that capability of direction and are, therefore, unlawful.

9.2 NAVAL MINES

Naval mines have been effectively employed for area denial, coastal and
harbor defense, antisurface and antisubmarine warfare, and blockade. Naval
mines are lawful weapons, but their potential for indiscriminate effects has
led to specific regulation of their deployment and employment by the law
of armed conflict. The extensive and uncontrolled use of naval mines by both
sides in the Russo-Japanese War of 1904-5 inflicted great damage on innocent
shipping both during and long after that conflict, and led to Hague Convention
No. VIII of 1907 Relative to the Laying of Automatic Submarine Contact
Mines. The purpose of the Hague rules was to ensure to the extent practicable
the safety of peaceful shipping by requiring that naval mines be so constructed
as to become harmless should they break loose from their moorings or
otherwise cease to be under the affirmative control of the belligerents that
laid them. The Hague rules also require that shipowners be warned of the
presence of mines as soon as military exigencies permit.

Although the Hague provisions date from 1907, they remain the only
codified rules specifically addressing the emplacement of conventional naval

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mines. Technological developments have created weapons systems obviously
not contemplated by the drafters of these rules. Nonetheless, the general
principles of law embodied in the 1907 Convention continue to serve as a
guide to lawful employment of naval mines.

9.2.1 Current Technology. Modern naval mines are versatile and variable
weapons. They range from relatively unsophisticated and indiscriminate
contact mines to highly technical, target-selective devices with state-of-the-
art homing guidance capability. Today's mines may be armed and/or
detonated by physical contact, acoustic or magnetic signature, or sensitivity
to changes in water pressure generated by passing vessels and may be emplaced
by air, surface, or subsurface platforms. For purposes of this publication, naval
mines are classified as armed or controlled mines. Armed mines are either
emplaced with all safety devices withdrawn, or are armed following
emplacement, so as to detonate when preset parameters (if any) are satisfied.
Controlled mines have no destructive capability until affirmatively activated
by some form of controlled arming order (whereupon they become armed
mines).

9.2.2 Peacetime Mining. Consistent with the safety of its own citizenry,
a nation may emplace both armed and controlled mines in its own internal
waters at any time with or without notification. A nation may also mine its
own archipelagic waters and territorial sea during peacetime when deemed
necessary for national security purposes. If armed mines are emplaced in
archipelagic waters or the territorial sea, appropriate international
notification of the existence and location of such mines is required. Because
the right of innocent passage can be suspended only temporarily, armed mines
must be removed or rendered harmless as soon as the security threat that
prompted their emplacement has terminated. Emplacement of controlled
mines in a nation's own archipelagic waters or territorial sea is not subject
to such notification or removal requirements.

Naval mines may not be emplaced in the internal, territorial, or
archipelagic waters of another nation in peacetime without that nation's
consent. Controlled mines, however, may be emplaced in international waters
beyond the territorial sea subject only to the requirement that they do not
unreasonably interfere with other lawful uses of the oceans. The
determination of what constitutes an "unreasonable interference" involves
a balancing of a number of factors including the rationale for their
emplacement (i.e., the self-defense requirements of the emplacing nation),
the extent of the area to be mined, the hazard (if any) to other lawful ocean
uses, and the duration of their emplacement. Because controlled mines do

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not constitute a hazard to navigation, international notice of their
emplacement is not required.

Armed mines may not be emplaced in international waters prior to the
outbreak of armed conflict, except under the most demanding requirements
of individual or collective self-defense. Should armed mines be emplaced in
international waters under such circumstances, prior notification of their
location must be provided and the anticipated date of their complete removal
must be clearly stated. The nation emplacing armed mines in international
waters during peacetime also assumes responsibility to maintain on-scene
presence in the area sufficient to ensure that appropriate warning is provided
to ships approaching the danger area. All armed mines must be expeditiously
removed or rendered harmless when the imminent danger that prompted their
emplacement has passed.

9.2.3 Mining During Armed Conflict. Naval mines may be lawfully
employed by parties to an armed conflict subject to the following restrictions:

1. International notification of the location of emplaced armed mines must be made as
soon as military exigencies permit.

2. Mines may not be emplaced by belligerents in neutral waters.

3. Anchored mines must become harmless as soon as they have broken their moorings.

4. Unanchored mines not otherwise affixed or imbedded in the bottom must become
harmless within an hour after loss of control over them.

5. The location of minefields must be carefully recorded to ensure accurate notification
and to facilitate subsequent removal and/or deactivation.

6. Naval mines may be employed to channelize neutral shipping, but not in a manner
to impede the transit passage of international straits or archipelagic sea lanes passage
of archipelagic waters by such shipping.

7. Naval mines may not be emplaced off the coasts and ports of the enemy with the
sole objective of intercepting commercial shipping, but may otherwise be employed in
the strategic blockade of enemy ports, coasts, and waterways.

8. Mining of areas of indefinite extent in international waters is prohibited. Reasonably
limited barred areas may be established by naval mines, provided neutral shipping retains
an alternate route around or through such an area with reasonable assurance of safety.

9.3 TORPEDOES

Torpedoes which do not become harmless when they have missed their
mark constitute a danger to innocent shipping and are therefore unlawful.
All U.S. Navy torpedoes are designed to sink to the bottom and become
harmless upon completion of their propulsion run.

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9.4 CLUSTER AND FRAGMENTATION WEAPONS

Cluster and fragmentation weapons are projectiles, bombs, missiles, and
grenades that are designed to fragment prior to or upon detonation, thereby
expanding the radius of their lethality and destructiveness. These weapons
are lawful when used against combatants. When used in proximity to
noncombatants or civilian objects, their employment should be carefully
monitored to ensure that collateral civilian casualties or damage are not
excessive in relation to the legitimate military advantage sought.

9.5 DELAYED ACTION DEVICES

Booby traps and other delayed action devices are not unlawful, provided
they are not designed or employed to cause unnecessary suffering. Devices
that are designed to simulate items likely to attract and injure noncombatants
(e.g., toys and trinkets) are prohibited. Attaching booby traps to protected
persons or objects, such as the wounded and sick, dead bodies, or medical
facilities and supplies, is similarly prohibited.

9.6 INCENDIARY WEAPONS

Incendiary devices, such as tracer ammunition, thermite bombs, flame
throwers, napalm, and other incendiary weapons and agents, are lawful
weapons. Where incendiary devices are the weapons of choice, they should
be employed in a manner that minimizes uncontrolled or indiscriminate effects
on the civilian population consistent with mission accomplishment and force
security.

9.7 OVER-THE-HORIZON WEAPONS SYSTEMS

Missiles and projectiles dependent upon over-the-horizon or beyond-
visual-range guidance systems are lawful, provided they are equipped with
sensors, or are employed in conjunction with external sources of targeting
data, that are sufficient to ensure effective target discrimination.

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Chapter 10

Nuclear, Chemical, and
Biological Weapons

10.1 INTRODUCTION

Nuclear, chemical, and biological weapons present special law-of-armed-
conflict problems due to their potential for indiscriminate effects and
unnecessary suffering. This chapter addresses legal considerations pertaining
to the development, possession, deployment and employment of these
weapons.

10.2 NUCLEAR WEAPONS

10.2.1 General. There are no rules of customary or conventional
international law prohibiting nations from employing nuclear weapons in
armed conflict. In the absence of such an express prohibition, the use of
nuclear weapons against enemy combatants and other military objectives is
not unlawful. Employment of nuclear weapons is, however, subject to the
following principles: the right of the parties to the conflict to adopt means
of injuring the enemy is not unlimited; it is prohibited to launch attacks against
the civilian population as such; and the distinction must be made at all times
between persons taking part in the hostilities and members of the civilian
population to the effect that the latter be spared as much as possible. The
decision to authorize employment of nuclear weapons must emanate from
the highest level of government. For the United States, that authority resides
solely in the President.

10.2.2 Treaty Obligations. Nuclear weapons are regulated by a number
of arms control agreements restricting their development, deployment, and
use. Some of these agreements (e.g., the 1963 Nuclear Test Ban Treaty) may
not apply during time of war.

10.2.2.1 Seabed Arms Control Treaty. This multilateral convention
prohibits emplacement of nuclear weapons on the seabed and the ocean floor
beyond a 12-nautical mile coastal zone measured from the baseline of the

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territorial sea. The prohibition extends to structures, launching installations,
and other facilities specifically designed for storing, testing, or using nuclear
weapons. This treaty prohibits emplacement of nuclear mines on the seabed
and ocean floor or in the subsoil thereof. It does not, however, prohibit the
use of nuclear weapons in the water column that are not so affixed to the
seabed (e.g., nuclear armed depth charges and torpedoes).

10.2.2.2 Outer Space Treaty. This multilateral convention prohibits the
placement, installation, or stationing of nuclear weapons or other weapons
of mass destruction in earth orbit, on the moon or other celestial bodies, or
in outer space. Suborbital missile systems are not included in this prohibition.

10.2.2.3 Antarctic Treaty. The Antarctic Treaty is a multilateral
convention designed to ensure that Antarctica, defined to include the area
south of 60° South Latitude, is used for peaceful purposes only. The treaty
prohibits in Antarctica "any measures of a military nature, such as the
establishment of military bases and fortifications, the carrying out of military
maneuvers, as well as the testing of any type of weapons." Nuclear explosions
are specifically prohibited. Ships and aircraft at points of discharging
personnel or cargoes in Antarctica are subject to international inspection.
Ships and aircraft operating on and over the high seas within the treaty area
are not subject to these prohibitions.

10.2.2.4 Treaty of Tlatelolco. This treaty is an agreement among the Latin
American countries not to introduce nuclear weapons into Latin America.
The treaty does not, however, prohibit Latin American nations from
authorizing nuclear armed ships and aircraft of nonmember nations to visit
their ports and airfields or to transit through their territorial seas or airspace.
The treaty is not applicable to the power system of any vessel.

Protocol I to the treaty is an agreement among non-Latin American nations
that exercise international responsibility over territory within the treaty area
to abide by the denuclearization provisions of the treaty. The Netherlands,
the U.K., and the U.S. are parties to Protocol I. U.S. territory within the
Latin America treaty area includes Guantanamo Bay in Cuba, the Virgin
Islands, and Puerto Rico. Consequently the U.S. cannot maintain nuclear
weapons in those areas. Protocol I nations retain, however, competence to
authorize transits and port visits by ships and aircraft of their own or other
armed forces in their Protocol I territories, irrespective of armament or cargo.

Protocol II is an agreement among nuclear-armed nations (China, France,
the U.S.S.R., the U.K., and the U.S.) to respect the denuclearization aims
of the treaty, to not use nuclear weapons against Latin American nationc party

491

to the treaty, and to refrain from contributing to a violation of the treaty
by the Latin American nations.

10.2.2.5 Nuclear Test Ban Treaty. This multilateral treaty prohibits the
testing of nuclear weapons in the atmosphere, in outer space, and underwater.
Over 100 nations are party to the treaty, including the U.S.S.R., the U.K.,
and the U.S. (France and China are not parties.) Underground testing of
nuclear weapons is not included within the ban.

10.2.2.6 Non-Proliferation Treaty. This multilateral treaty obligates
nuclear-weapons-nations to refrain from transferring nuclear weapons or
nuclear weapons technology to non-nuclear-weapons nations, and obligates
non-nuclear-weapons nations to refrain from accepting such weapons from
nuclear-weapons-nations or from manufacturing nuclear weapons
themselves. The treaty does not apply in time of war.

10.2.2.7 Bilateral Nuclear Arms Control Agreements. The United States
and the U.S.S.R. have concluded a number of bilateral agreements designed
to restrain the growth of nuclear warheads and launchers and to reduce the
risk of miscalculation that could trigger a nuclear exchange. Among these
agreements are the Hotline Agreements of 1963 and 1971, the Accidents
Measures Agreement of 1971, the 1973 Agreement on Prevention of Nuclear
War, the Anti-Ballistic Missile Treaty of 1972 and its Protocol of 1974, the
Threshold Test Ban Treaty of 1974, the 1976 Treaty on Peaceful Nuclear
Explosions, the SALT Agreements of 1972 and 1977 (SALT I — Interim
Agreement has expired; SALT II was never ratified), and the INF Treaty
of 1988.

10.3 CHEMICAL WEAPONS

Both customary and conventional international law prohibit the "first use"
of lethal chemical weapons in armed conflict.

10.3.1 Treaty Obligations. The United States is a party to the 1925 Geneva
Gas Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous
or Other Gases, and of Bacteriological Methods of Warfare ("the 1925 Gas
Protocol"). All other NATO nations and all Warsaw Pact nations are also
parties. The United States, the U.S.S.R., and most other NATO and Warsaw
Pact nations conditioned their adherence to the 1925 Gas Protocol on the
understanding that the prohibition against use of chemical weapons ceases
to be binding with respect to nations whose armed forces, or the armed forces
of their allies, fail to respect that prohibition. This, in effect, restricts the

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prohibition to the "first use" of such munitions, with parties to the Protocol
reserving the right to employ chemical weapons for retaliatory purposes.

The 1925 Gas Protocol does not prohibit the development, production,
testing, or stockpiling of chemical weapons, nor does it prevent equipping
and training military forces for chemical warfare.

10.3.2 United States Policy Regarding Chemical Weapons. The United
States categorizes chemical weapons under three headings of lethal and
incapacitating agents, riot control agents, and herbicidal agents. United States
policy with respect to these three categories is summarized in the following
paragraphs.

10.3.2.1 Lethal and Incapacitating Agents. The United States considers
the prohibition against first use of lethal and incapacitating chemical weapons
to be part of customary international law and, therefore, binding on all nations
whether or not they are parties to the 1925 Gas Protocol. Lethal chemical
agents are those asphyxiating, poisonous, or other gases; analogous liquids;
or materials that cause immediate death. Incapacitating agents are those
producing symptoms that persist for appreciable periods of time after
exposure to the agent has terminated. Because the 1925 Gas Protocol
effectively prohibits only first use of such weapons, the United States
maintains a lethal and incapacitating chemical weapons capability for
deterrence and possible retaliatory purposes only. National Command
Authorities (NCA) approval is required for retaliatory use of lethal or
incapacitating chemical weapons by U.S. Forces. Retaliatory use of lethal or
incapacitating chemical agents must be terminated as soon as the enemy use
of such agents that prompted the retaliation has ceased and any tactical
advantage gained by the enemy through unlawful first use has been redressed.

10.3.2.2 Riot Control Agents. Riot control agents are those gases, liquids,
and analogous substances that are widely used by governments for civil law
enforcement purposes. Riot control agents, in all but the most unusual
circumstances, cause merely transient effects that disappear within minutes
after exposure to the agent has terminated. Tear gas and Mace are examples
of riot control agents in widespread use by law enforcement officials. The
United States considers that use of riot control agents in wartime is not
prohibited by the 1925 Gas Protocol. However, the United States has formally
renounced first use of riot control agents in armed conflict except in defensive
military modes to save lives. Examples of authorized use of riot control agents
in time of armed conflict include:

493

1. Riot control situations in areas under effective U.S. military control, to include
control of rioting prisoners of war

2. Rescue missions involving downed aircrews or escaping prisoners of war

3. Protection of military supply depots, military convoys, and other military
activities in rear echelon areas from civil disturbances, terrorist activities, or
paramilitary operations.

Use of riot control agents by U.S. forces in armed conflict requires NCA
approval.

Employment of riot control agents in peacetime may be authorized by the
Secretary of Defense, or in limited circumstances, by the commanders of the
unified and specified commands. Examples of authorized use of riot control
agents in peacetime include:

1. Civil disturbances and other law enforcement activities in the United States, its
territories and possessions

2. On U.S. bases, posts, embassy grounds, and installations overseas for protection
and security purposes, including riot control

3. Offbase overseas for law enforcement purposes specifically authorized by the host
government

4. Humanitarian evacuation operations involving U.S. or foreign nationals.

10.3.2.3 Herbicidal Agents. Herbicidal agents are gases, liquids, and
analogous substances that are designed to defoliate trees, bushes, or shrubs,
or to kill long grasses and other vegetation that could shield the movement
of enemy forces. The United States considers that use of herbicidal agents
in wartime is not prohibited by the 1925 Gas Protocol, but has formally
renounced the first use of herbicides in time of armed conflict except for
control of vegetation within U.S. bases and installations or around their
immediate defensive perimeters. Use of herbicidal agents during armed
conflict requires NCA approval. Use of herbicidal agents in peacetime may
be authorized by the Secretary of Defense or, in limited circumstances, by
the commanders of the unified and specified commands.

10.4 BIOLOGICAL WEAPONS

International law prohibits all biological weapons or methods of warfare
whether directed against persons, animals, or plant life. Biological weapons
include microbial or other biological agents or toxins whatever their origin
(i.e., natural or artificial) or methods of production.

494 Law of Naval Operations

10.4.1 Treaty Obligations. The 1925 Gas Protocol prohibits the use in
armed conflict of biological weapons. The 1972 Convention on the Prohibition
of the Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on their Destruction (the "1972
Biological Weapons Convention") prohibits the production, testing, and
stockpiling of biological weapons. Weapons Convention obligates nations that
are a party thereto not to develop, produce, stockpile, or acquire biological
agents or toxins "of types and in quantities that have no justification for
prophylactic, protective, or other peaceful purposes," as well as "weapons,
equipment or means of delivery designed to use such agents or toxins for
hostile purposes or in armed conflict." All such material were to be destroyed
by 26 December 1975. The United States, the U.S.S.R., and most other NATO
and Warsaw Pact nations are parties to both the 1925 Gas Protocol and the
1972 Biological Weapons Convention.

10.4.2 United States Policy Regarding Biological Weapons. The United
States considers the prohibition against the use of biological weapons during
armed conflict to be part of customary international law and thereby binding
on all nations whether or not they are parties to the 1925 Gas Protocol or
the 1972 Biological Weapons Convention. The United States has, therefore,
formally renounced the use of biological weapons under any circumstances.
Pursuant to its treaty obligations, the United States has destroyed all its
biological and toxin weapons and restricts its research activities to
development of defensive capabilities.

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Chapter 11
Noncombatant Persons

11.1 INTRODUCTION

As discussed in Chapter 5, the law of armed conflict is premised largely
on the distinction to be made between combatants and noncombatants.
Noncombatants are those individuals who do not form a part of the armed
forces and who otherwise refrain from the commission of hostile acts.
Noncombatants also include those members of the armed forces who enjoy
special protected status, such as medical personnel and chaplains, or who have
been rendered incapable of combat by wounds, sickness, shipwreck, or
capture. This chapter reviews the categories of noncombatants and outlines
the general rules of the law of armed conflict designed to protect them from
direct attack.

11.2 PROTECTED STATUS

The law of armed conflict prohibits making noncombatant persons the
object of intentional attack and requires that they be safeguarded against
injury not incidental to military operations directed, against combatant forces
and other military objectives. When circumstances permit, advance warning
should be given of attacks that might endanger noncombatants in the vicinity.
Such warnings are not required, however, if mission accomplishment,
including the security of attacking forces, is premised on the element of
surprise. On the other hand, a party to an armed conflict that has control
over civilians and other noncombatants has an affirmative duty to remove
them from the vicinity of targets of likely enemy attack and to otherwise
separate military activities and facilities from areas of noncombatant
concentration. Deliberate use of noncombatants to shield military objectives
from enemy attack is prohibited. The presence of noncombatants within or
adjacent to a legitimate target does not, however, preclude its attack.

11.3 THE CIVILIAN POPULATION

The civilian population as such, as well as individual civilians, may not
be the object of attack or of threats or acts of intentional terrorization. The

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civilian population consists of all persons not serving in the armed forces,
militia, or paramilitary forces and not otherwise taking a direct part in the
hostilities. Women and children are entitled to special respect and protection.
Unlike military personnel (other than those in a specially protected status
such as medical personnel and the sick and wounded) who are always subject
to attack whether on duty or in a leave capacity, civilians are immune from
attack unless they are acting in direct support of the enemy's war-fighting
or war-sustaining effort. Civilians providing command, administrative, or
logistic support to military operations are subject to attack while so engaged.
Similarly, civilian employees of naval shipyards, merchant seamen in ships
carrying military cargoes, and laborers engaged in the construction of military
fortifications, may be attacked while so employed.

Civilians who take a direct part in hostilities by taking up arms or otherwise
trying to kill, injure, or capture enemy persons or destroy enemy property
lose their immunity and may be attacked. Similarly, civilians serving as
lookouts, guards, or intelligence agents for military forces may be attacked.

11.4 THE WOUNDED AND SICK

Members of the armed forces incapable of participating in combat due to
injury or illness may not be the subject of attack. Moreover, parties to any
armed engagement must, without delay, take all possible measures to search
for and collect the wounded and sick on the field of battle, protect them from
harm, and ensure their care. When circumstances permit, an armistice or
cease-fire should be arranged to enable the wounded and sick to be located
and removed to safety and medical care. Wounded and sick personnel falling
into enemy hands must be treated humanely and cared for without adverse
distinction along with the enemy's own casualties. Priority in order of
treatment may only be justified by urgent medical considerations. The
physical or mental well-being of enemy wounded and sick personnel may not
be unjustifiably endangered, nor may they be subjected to any medical
procedure not called for by their condition or inconsistent with accepted
medical standards.

11.5 MEDICAL PERSONNEL AND CHAPLAINS

Medical personnel, including medical and dental officers, technicians and
corpsmen, nurses, and medical service personnel, have special protected status
when engaged exclusively in medical duties and may not be attacked.
Possession of small arms for self-protection, for the protection of the wounded
and sick, and for protection from marauders and others violating the law of
armed conflict does not disqualify medical personnel from protected status.

497

Medical personnel may not use such arms against enemy forces acting in
conformity with the law of armed conflict. Chaplains engaged in ministering
to the armed forces enjoy protected status equivalent to that of medical
personnel. Medical personnel and chaplains should display the distinctive
emblem of the Red Cross or Red Crescent when engaged in their respective
medical and religious activities. Failure to wear the distinctive emblem does
not, by itself, justify attacking a medical person or chaplain, recognized as
such. Medical personnel and chaplains falling into enemy hands do not become
prisoners of war. Unless their retention by the enemy is required to provide
for the medical or religious needs of prisoners of war, medical personnel and
chaplains must be repatriated at the earliest opportunity.

11.6 THE SHIPWRECKED

Shipwrecked persons, whether military or civilian, may not be attacked.
Shipwrecked persons include those in peril at sea or in other waters as a result
of either the sinking, grounding, or other damage to a vessel in which they
are embarked, or of the downing or distress of an aircraft. It is immaterial
whether the peril was the result of enemy action or nonmilitary causes.
Following each naval engagement at sea, the belligerents are obligated to take
all possible measures, consistent with the security of their forces, to search
for and rescue the shipwrecked.

Shipwrecked persons do not include combatant personnel engaged in
amphibious, underwater, or airborne attacks who are proceeding ashore,
unless they are clearly in distress and require assistance. In the latter case
they may qualify as shipwrecked persons only if they cease all active combat
activity and the enemy has an opportunity to recognize their condition of
distress. Shipwrecked combatants falling into enemy hands become prisoners
of war.

11.7 PARACHUTISTS

Parachutists descending from disabled aircraft may not be attacked while
in the air and, unless they land in territory controlled by their own forces
or engage in combatant acts while descending, must be provided an
opportunity to surrender upon reaching the ground. Airborne troops, special
warfare infiltrators, and intelligence agents parachuting into combat areas
or behind enemy lines are not so protected and may be attacked in the air
as well as on the ground. Such personnel may not be attacked, however, if
they clearly indicate their intention to surrender.

498 Law of Naval Operations
11.8 PRISONERS OF WAR

Combatants cease to be subject to attack when they have individually laid
down their arms to surrender, when they are no longer capable of resistance,
or when the unit in which they are serving or embarked has surrendered or
been captured. Combatants that have surrendered or otherwise fallen into
enemy hands are entitled to prisoner-of-war status and, as such, must be
treated humanely and protected against violence, intimidation, insult, and
public curiosity. When prisoners of war are given medical treatment, no
distinction among them will be based on any grounds other than medical ones.
(See paragraph 11.4 for further discussion of the medical treatment to be
accorded captured enemy wounded and sick personnel.) Prisoners of war may
be interrogated upon capture but are only required to disclose their name,
rank, date of birth, and military serial number. Torture, threats, or other
coercive acts are prohibited.

Persons entitled to prisoner-of-war status upon capture include members
of the regular armed forces, the militia and volunteer units fighting with the
regular armed forces, and civilians accompanying the armed forces. Militia,
volunteers, guerrillas, and other partisans not fighting in association with the
regular armed forces qualify for prisoner-of-war status upon capture,
provided they are commanded by a person responsible for their conduct, are
uniformed or bear a fixed distinctive sign recognizable at a distance, carry
their arms openly, and conduct their operations in accordance with the law
of armed conflict.

Should a question arise regarding a captive's entitlement to prisoner-of-
war status, that individual should be accorded prisoner-of-war treatment until
a competent tribunal convened by the captor determines the status to which
that individual is properly entitled. Individuals captured as spies or as illegal
combatants have the right to assert their entitlement to prisoner-of-war status
before a judicial tribunal and to have the question adjudicated. Such persons
have a right to be fairly tried for violations of the law of armed conflict and
may not be summarily executed.

11.8.1 Trial and Punishment. Prisoners of war may not be punished for
hostile acts directed against opposing forces prior to capture, unless those acts
constituted violations of the law of armed conflict. Prisoners of war
prosecuted for war crimes committed prior to or after capture are entitled
to be tried by the same courts as try the captor's own forces and are to be
accorded the same procedural rights. At a minimum, these rights must include
the assistance of lawyer counsel, an interpreter, and a fellow prisoner.

499

Although prisoners of war may be subjected to disciplinary action for minor
offenses committed during captivity, punishment may not exceed 30 days
confinement. Prisoners of war may not be subjected to collective punishment
nor may reprisal action be taken against them.

11.8.2 Labor. Enlisted prisoners of war may be required to engage in labor
having no military character or purpose. Noncommissioned officers may only
be required to perform supervisory work. Officers may not be required to
work.

11.8.3 Escape. Prisoners of war may not be punished for attempting to
escape, unless they cause death or injury to someone in the process. Prisoners
of war who make good their escape by rejoining friendly forces or leaving
enemy controlled territory, may not be punished if recaptured for offenses
committed during their previous escape.

11.8.4 Temporary Detention of Prisoners of War, Civilian Internees,
and Other Detained Persons Aboard Naval Vessels. International treaty
law expressly prohibits "internment" of prisoners of war other than in
premises on land, but does not address temporary stay on board vessels. U.S.
policy, however, permits detention of prisoners of war, civilian internees,
and detained persons (PW/CI/DET) on naval vessels as follows:

1. PW/CI/DET picked up at sea may be temporarily held on board as operational
needs dictate, pending a reasonable opportunity to transfer them to a shore facility or
to another vessel for evacuation to a shore facility.

2. PW/CI/DET may be temporarily held on board naval vessels while being
transported between land facilities.

3. PW/CI/DET may be temporarily held on board naval vessels if such detention
would appreciably improve their safety or health prospects.

Detention on board vessels must be truly temporary, limited to the minimum
period necessary to evacuate such persons from the combat zone or to avoid
significant harm such persons would face if detained on land. Use of
immobilized vessels for temporary detention of prisoners of war, civilian
internees, or detained persons is not authorized without NCA approval.

11.9 INTERNED PERSONS

Enemy civilians falling under the control of a belligerent may be interned
if security considerations make it absolutely necessary to do so. Civilians
sentenced for offenses committed in occupied territory may also be ordered
into internment in lieu of punishment. Enemy civilians may not be interned
as hostages. Interned persons may not be removed from the occupied territory

500 Law of Naval Operations

in which they reside unless their own security or imperative military reason
demands. All interned persons must be treated humanely and may not be
subjected to collective punishment nor reprisal action.

11.10 PROTECTIVE SIGNS AND SYMBOLS

11.10.1 The Red Cross and Red Crescent. A red cross on a white field
(Figure 11 -la) is the internationally accepted symbol of protected medical
and religious persons and activities. Moslem countries utilize a red crescent
on a white field for the same purpose (Figure 11-lb). A red lion and sun on
a white field, once employed by Iran, is no longer used. Israel employs the
Red Star of David, which it reserved the right to use when it ratified the
1949 Geneva Conventions (Figure 11-lc). The United States has not agreed
that it is a protected symbol. Nevertheless, all medical and religious persons
or objects recognized as being so marked are to be treated with care and
protection.

11.10.2 Other Protective Symbols. Other protective symbols specially
recognized by international law include an oblique red band on a white
background to designate hospital zones and safe havens for noncombatants
(Figure 11-ld). Prisoner-of-war camps are marked by the letters "PW" or
"PG" (Figure 11-le); civilian internment camps with the letters "IC" (Figure
11— If). A royal-blue diamond and royal-blue triangle on a white shield is used
to designate cultural buildings, museums, historic monuments, and other
cultural objects that are exempt from attack (Figure 11-lg). In the Western
Hemisphere, a red circle with triple red spheres in the circle, on a white
background (the "Roerich Pact" symbol) is used for that purpose (Figure 11-

ih).

Two protective symbols established by the 1977 Protocols Additional to
the Geneva Conventions of 1949, to which the United States is not a party,
are described as follows for informational purposes only. Works and
installations containing forces potentially dangerous to the civilian
population, such as dams, dikes, and nuclear power plants, may be marked
by three bright orange circles of equal size on the same axis (Figure 11-li).
Civil defense facilities and personnel may be identified by an equilateral blue
triangle on an orange background (Figure 11-lj).

11.10.3 The 1907 Hague Symbol. A protective symbol of special interest
to naval officers is the sign established by the 1907 Hague Convention
Concerning Bombardment by Naval Forces in Time of War (Hague IX). The
1907 Hague symbol is used to mark sacred edifices, hospitals, historic
monuments, cultural buildings, and other structures protected from naval

501

bombardment. The symbol consists of a rectangular panel divided diagonally
into two triangles, the upper black, the lower white (Figure 11-lk).

11.10.4 The White Flag. Customary international law recognizes the white
flag as symbolizing a request to cease-fire, negotiate, or surrender. Enemy
forces displaying a white flag should be permitted an opportunity to surrender
or to communicate a request for cease-fire or negotiation.

11.10.5 Permitted Use. Protective signs and symbols may be used only to
identify personnel, objects, and activities entitled to the protected status
which they designate. Any other use is forbidden by international law.

11.10.6 Failure to Display. When objects or persons are readily
recognizable as being entitled to protected status, the lack of protective signs
and symbols does not render an otherwise protected object or person a
legitimate target. Failure to utilize internationally agreed protective signs and
symbols may, however, subject protected persons and objects to the risk of
not being recognized by the enemy as having protected status.

502 Law of Naval Operations

The Red Cross

Symbol of medical and religious activities.

The Red Crescent

Symbol of medical and religious activities.

The Red Star of David

Israeli emblem for medical and religious activities.
Israel reserved the right to use the Red Star of
David when it ratified the 1949 Conventions.

Marking for Hospital and Safety Zones for Civilians
and Sick and Wounded (Three Red Stripes)

(Noncombatants)

Figure 11-1. Protective Signs and Symbols (Sheet 1 of 3)

503

Symbols for Prisoner of War Camps

f.

Civilian Internment Camps

Symbol for Cultural Property Under the 1954
Hague Convention (Blue and White)

(Also used in a group of three to indicate special
protection.)

Figure ll-l. Protective Signs and Symbols (Sheet 2 of 3)

504 Law of Naval Operations

Roerlch Pact (Red and White)

Symbol used for historical, artistic, education, and
cultural institutions, among Western Hemisphere
natiom

Special Symbol for Works and Installations Containing Dangerous Forces
(Three Orange Circles)

(Oams, dikes, and nuclear power stations)

lw

Symbol designating Civil Defense Activities
(Blue triangle in an orange square)

The 1907 Hague Sign

Naval bombardment symbol designating cultural,
medical, and religious facilities.

Figure 11-1. Protective Signs and Symbols (Sheet 3 of 3)

505

Chapter 12
Deception During Armed Conflict

12.1 GENERAL

« The law of armed conflict permits deceiving the enemy through stratagems
and ruses of war intended to mislead him, to deter him from taking action,
or to induce him to act recklessly, provided the ruses do not violate rules
of international law applicable to armed conflict.

12.1.1 Permitted Deceptions. Stratagems and ruses of war permitted in
armed conflict include such deceptions as camouflage, deceptive lighting,
dummy ships and other armament, decoys, simulated forces, feigned attacks
and withdrawals, ambushes, false intelligence information, electronic
deceptions, and utilization of enemy codes, passwords and countersigns.

12.1.2 Prohibited Deceptions. The use of unlawful deceptions is called
"perfidy." Acts of perfidy are deceptions designed to invite the confidence
of the enemy to lead him to believe that he is entitled to, or is obliged to
accord, protected status under the law of armed conflict, with the intent to
betray that confidence. Feigning surrender in order to lure the enemy into
a trap, is an act of perfidy.

12.2 MISUSE OF PROTECTIVE SIGNS, SIGNALS, AND
SYMBOLS

Misuse of protective signs, signals, and symbols in order to injure, kill, or
capture the enemy constitutes an act of perfidy. Such acts are prohibited
because they undermine the effectiveness of protective signs, signals, and
symbols and thereby jeopardize the safety of noncombatants and the immunity
of protected structures and activities. For example, using an ambulance or
medical aircraft marked with the red cross or red crescent to carry armed
combatants, weapons, or ammunition with which to attack or elude enemy
forces is prohibited. Similarly, use of the white flag to gain a military
advantage over the enemy is unlawful.

506 Law of Naval Operations

12.3 NEUTRAL FLAGS, INSIGNIA, AND UNIFORMS

12.3.1 At Sea. Under the customary international law of naval warfare,
it is permissible for a belligerent warship to fly false colors and disguise its
outward appearance in other ways in order to deceive the enemy into
believing the vessel is of neutral nationality or is other than a warship.
However, it is unlawful for a warship to go into action without first showing
her true colors. Use of neutral flags, insignia, or uniforms during an actual
armed engagement at sea is, therefore, forbidden.

12.3.2 In the Air. Use of false or deceptive markings to disguise belligerent
military aircraft as being of neutral nationality is prohibited.

12.3.3 On Land. The law of armed conflict applicable to land warfare has
no rule of law analogous to that which permits belligerent warships to display
neutral colors. Belligerents engaged in armed conflict on land are not
permitted to use the flags, insignia, or uniforms of a neutral nation to deceive
the enemy.

12.4 THE UNITED NATIONS FLAG AND EMBLEM

The flag of the United Nations and the letters "UN" may not be used in
armed conflict for any purpose without the authorization of the United
Nations.

12.5 ENEMY FLAGS, INSIGNIA, AND UNIFORMS

12.5.1 At Sea. Naval surface and subsurface forces may fly enemy colors
and display enemy markings to deceive the enemy. Warships must, however,
display their true colors prior to an actual armed engagement.

12.5.2 In the Air. The use in combat of enemy markings by belligerent
military aircraft is forbidden.

12.5.3 On Land. The law of land warfare does not prohibit the use by
belligerent land forces of enemy flags, insignia, or uniforms to deceive the
enemy either before or following an armed engagement. Combatants risk loss
of entitlement to prisoner-of-war status, however, if they are captured while
displaying enemy colors or insignia or wearing enemy uniforms in combat.

Similarly, combatants caught behind enemy lines wearing the uniform of
their adversaries are not entitled to prisoner-of-war status or protection and,
historically, have been subjected to severe punishment. It is permissible,

507

however, for downed aircrews and escaping prisoners of war to use enemy
uniforms to evade capture, so long as they do not attack enemy forces, gather
military intelligence, or engage in similar military operations while so attired.
As a general rule, enemy markings should be removed from captured enemy
equipment before it is used in combat.

12.6 FEIGNING DISTRESS

It is unlawful to feign distress through the false use of internationally
recognized distress signals such as SOS and MAYDAY. In air warfare,
however, it is permissible to feign disablement or other distress as a means
to induce the enemy to break off an attack. Consequently, there is no
obligation in air warfare to cease attacking a belligerent military aircraft that
appears to be disabled. However, if one knows the enemy aircraft is disabled
such as to permanently remove it from the conflict (e.g., major fire or
structural damage) there is an obligation to cease attacking to permit possible
evacuation by crew or passengers.

12.7 FALSE CLAIMS OF NONCOMBATANT STATUS

It is a violation of the law of armed conflict to kill, injure, or capture the
enemy by false indication of an intent to surrender or by feigning shipwreck,
sickness, wounds, or civilian status (but see paragraph 12.3.1). A surprise
attack by a person feigning shipwreck, sickness, or wounds undermines the
protected status of those rendered incapable of combat. Similarly, attacking
enemy forces while posing as a civilian puts all civilians at hazard. Such acts
of perfidy are punishable as war crimes.

12.7.1 Illegal Combatants. Persons who take part in combat operations
without distinguishing themselves clearly from the civilian population are
illegal combatants and are subject to punishment upon capture. If determined
by a competent tribunal of the captor nation to be illegal combatants, such
persons may be denied prisoner-of-war status and be tried and punished for
falsely claiming noncombatant status during combat. It is the policy of the
United States, however, to accord illegal combatants prisoner-of-war status
if they were carrying arms openly at the time of capture.

12.8 SPIES

A spy is someone who, while in territory under enemy control, seeks to
obtain information while operating under a false claim of noncombatant or
friendly forces status with the intention of passing that information to an
opposing belligerent. Members of the armed forces who penetrate enemy-

508 Law of Naval Operations

held territory in civilian attire or enemy uniform to collect intelligence are
spies. Conversely, personnel conducting reconnaissance missions behind
enemy lines while properly uniformed are not spies. Crew-members of
warships and military aircraft engaged in intelligence collection missions in
enemy waters or airspace are not spies unless the ship or aircraft displays
false civilian, neutral, or enemy marking.

12.8.1 Legal Status. Spying during armed conflict is not a violation of
international law. Captured spies are not, however, entitled to prisoner of
war status. The captor nation may try and punish spies in accordance with
its national law. Should a spy succeed in eluding capture and return to friendly
territory, liability to punishment terminates. If subsequently captured during
some other military operation, the former spy cannot be tried or punished
for the earlier act of espionage.

Index 509

INDEX

Note: The "(H)" following a page number in this index refers to the "Commander's Handbook on the
Law of Naval Operations."

Abstention, duty of, 457(H)

Abu Nidal, 273

Achille Lauro affair, 126

Adams, John Quincy, 41-44

Additional Protocol I (1977), 363, 367

Aegean Sea, 104

Aggression. See Armed aggression; Armed conflict

Aircerts, 465-466(H)

Aircraft

acquiring character of enemy, 466(H)

belligerent military, 462-463(H)

capture of civilian, 476-477(H)

capture of neutral, 471-473(H)

crew members of civil, 323

destruction of civilian, 477-478(H)

in distress, 415(H), 425(H)

enemy, 476(H)

exemption from capture and destruction, 478-479(H)

exemption from interdiction, 481(H)

hot pursuit by, 432(H)

interception of intruding, 442-443(H)

navigational rules for, 418(H)

navigational safety for, 417-418(H)

neutral, 471 -473(H)

personnel of captured neutral, 472-473(H)

pirate, 429-430(H)

protecting foreign, 434(H)

protection of U.S., 433(H)

rights of transit, 122

targeting civilian, 287, 288

See also Military aircraft
Air Defense Identification Zones, 416-417(H)
Air missions. See Naval missions
Air navigation, 414-417(H)
Airspace

international, 415(H)

legal divisions of, 114-115

national, 414-415(H)

national or international, 398(H)

neutral, 462-463(H)

pursuit of piracy into, 430(H)

See also Flight Information Regions; International airspace
Air warfare at sea, 480-481 (H)

Amerada Hess Shipping Corp. v Argentine Republic, 174, 187
Ammunition

depleted uranium, 377-378

510 Index

prohibition regarding, 369
Anchored mines, 354, 355
Anglo-Norwegian Fisheries case, 111
Antarctic region

freedom in, 413(H)

transit passage and, 125
Antarctic Treaty of 1959, 413-414(H), 490(H)
Anticipatory self-defense, 128-129, 441(H)

Cuban Missile Crisis and, 263, 265-266
Archipelagic sea lanes, 356, 396(H)

air navigation and, 415(H)

definition of, 41 0-41 1(H)

example of, 423(H)

passage through, 119

regime of passage in, 95-96, 98, 123-125, 410-411(H)
Archipelagic waters, 235-236, 396(H), 410-41 1(H)

concept of, 228-229

mining, 486(H)

neutral, 462(H)

protection in, 433-434(H)

pursuit of piracy in, 430(H)
Arctic Archipelago, 103
Arctic, transit passage and, 125
Arctic region, 413(H)
Armed aggression

and law of self-defense, 278-281
Armed conflict

deception during, 315, 505-508(H)

exclusion zones in, 158-176

Geneva Protocol I and, 259-260

history of rules for, 363-371

internal vs international, 303-304

journalists in areas of, 323

mining during, 487(H)

refraining from participation in, 457(H)

sources of law of, 446-449(H)

specific weapons for, 371-378

See also International armed conflict; Law of armed conflict; Law of neutrality; Neutrality; specific
armed conflicts
Armed forces

civilians accompanying, 322-323

a definition of, 319-320
Armed mines, 487(H)
Assassination, prohibition of, 282
Assistance entry, 19-20, 409(H)
Astronauts, rescue and return of, 421-422(H)
Asylum

to belligerent forces, 473(H)

granting, 426-427(H)

inviting request for, 428(H)
Atom bomb

legality of, 331,333
Attack

lawful objects of, 287, 288

targets for naval, 474-475(H)

Index 511

Attack submarines, 207, 216

Auxiliaries

definition of, 406(H)

in internal waters, 407(H)

Awa Maru, 251

B

Bacteriological (biological) weapons, 342-345, 493-494(H)

countries having used, 344

definition of, 342

prohibiting, 346, 366

treaty obligations and, 494(H)
Bacteriological Convention (1972), 344
Bahamas

Providence Channel in, 100
Bahrain-Qatar Passage, 103
Bahrain-Saudi Arabia Passage, 103
Ballistic missile submarines (SSBN), 216, 217

nuclear weapons and, 227

See also Nuclear ballistic missiles; weapons platforms
Baselines

archipelagic, 103, 396(H)

maritime, 393(H)

straight, 102, 110-111, 400(H)
Battle of the Bismarck Sea

killing survivors after, 257-258
Bays

definition of, 394(H), 401(H)

historic, 394(H)

with islands, 402(H)

with mouth exceeding 24 nautical miles, 403(H)
Belligerent forces

and control of neutral communications at sea, 471(H)

in archipelagic waters, 462(H)

asylum to, 473(H)

in neutral straits, 461(H)

and neutral territory, 458(H)

in transit, 93
Belligerent military aircraft

and neutral airspace, 462-463(H)
Belligerent nations

commerce with, 463(H)
Belligerent personnel interned by a neutral nation, 473(H)
Belligerent reprisal, 177-178

accepted doctrine and practice, 161

law of, 187

World War I and, 164, 166

See also Reprisals
Belligerents

definition of, 456(H)

vs neutrals, 148

See also Visit and search
Belligerent ships

reprisal rights of, 134

512 Index

right to passage of, 132, 133

and sea lane passage, 96

See also Belligerent warships
Belligerent vessels

and mere passage, 460(H)

and neutral ports, 458(H), 459(H)
Belligerent warships

customary practice of, 231

and merchant ships, 214

passage in neutral waters, 135, 136

visit and search by, 208
Berlin Act of 1890, 52
Binary gases, 337-338
Biological weapons, 342-345, 493-494(H)

prohibition of, 346

treaty obligations and, 494(H)
Biological Weapons Convention (1972), 494(H)
Blockade, 468-471(H)

breach of, 470(H)

and civilian populations, 313

close in, 156-157, 161-163, 268, 470(H)

contemporary practice of, 470-471 (H)

Cuban quarantine and, 358

as customary law, 183-184

effectiveness of, 164-166, 469(H)

establishing, 468-469(H)

history of, 161-169

Kuomintang, 149

legality of, 137

limited naval, 264-265

long distance, 167-168, 178, 233

measures of, 470(H)

mines and, 138

right of, 353

rules of, 149, 178

traditional, 161-162

and United Nations Charter, 131

and World War I, 160-161, 163-168

and World War II, 168-169

See also Exclusion zones
Blockade starvation, 165
Bomb, atom, 331, 333
Bombardment

of buildings, monuments and cultural centers, 482-483(H)

of Libya, 282-285

rules for, 481-483(H)

warning before, 483(H)
Bridgeton, 271-272

British-American Treaty (1824), 44
British Government

and search and seizure, 44, 45-46, 50
British Moving Defensive Area ("Bubble") concept (1982), 159
Broadcasting, unauthorized, 62-63, 431(H)

Brussels Act. See General Act for the Repression of African Slave Trade
Brussels conference (1889), 48

Index 513

Buildings and monuments, bombing, 482-483(H)

CAPTOR Mine, 373
Capture

of enemy merchant vessels and civil aircraft, 476-477(H)

exemption of vessels from, 478-479(H)

legal justification for, 479(H)

of neutral vessels and aircraft, 471-473(H)
Captured ships and neutral ports, 459-460(H)
Captured spies, 508(H)
Caroline formula, 127, 129
Caroline incident (1837), 263-264
Celestial bodies, natural definition of, 420-421 (H)
Chaplains

as noncombatants, 496-497(H)

protected status of, 314-316
Charter of the United Nations. See United Nations Charter
Chayes, Abram, 128
Chemical warfare

U.S. positions on, 339-342
Chemical weapons, 334-342, 491-493(H)

countries having used, 336-337

prohibition of, 335-336

treaty obligations and, 491-492(H)
Chicago Convention, 416(H), 442-443(H)
Chivalry, code of, 8-9
Choke points, 104-105
Cities

bombarding undefended, 482(H)
Citizens

protecting foreign, 434(H)

protecting U.S., 428(H), 433(H)
Civil defense facilities, symbol for, 500(H)
Civilian aircraft, 287, 288, 476-477(H)
Civilian casualties

in Libyan attack, 283-284

limitation of, 289

weapons and, 485(H)
Civilian habitation

bombardment of, 482(H)
Civilian internment camps

protective symbols for, 500(H)
Civilian objects

naval targeting and, 475(H)
Civilian populations

4th Geneva Convention and, 312-313

definition of, 310-312

levee en masse and, 312

as noncombatants, 495-496(H)

prohibition of attacks on, 260, 306-307

protecting, 304-305, 308-310

sparing, 307-308

targeting centers of, 227

514 Index

under special protection, 313-320
Civilians

attacks on, 219-220

definition of, 310

incidental injury to, 475(H)

vs combatants, 325

warranted attack on, 312
Civil law enforcement officials, aid to domestic, 434-435(H)
Civil War, U.S., 244

Close-in blockade. See Blockade, close-in
Closure area, declaring, 412(H)
Cluster weapons, 488(H)
Coastal nation claims, 392-393(H)
Coastlines

low-water line along, 393(H)

unstable, 393(H)
Collateral damage, 308, 309, 475(H)
Collisions at sea, 92
Combatant hors de combat, 317-318
Combatants

definition of, 446(H)

in distress, 316-318

illegal, 320-321, 507(H)

wounded and sick, 317

See also Belligerents; Belligerent forces
Commander's Handbook on the Law of Naval Operations (NWP 9)

and 1936 London Protocol, 231-232

annotated supplement to, 371

and archipelagic waters, 95, 96

article 0605 of U.S. Navy Regulations, 1973, 20-21

and assistance entry, 19-20

changes recommended in, 389(H), 390(H)

chapter 11 of, 300, 301, 303-304

critiquing preface of, 109-110

deviation from straits articles of, 103-104

and directed energy devices, 377

and innocent passage, 99

and international law, 20-21

and international straits, 20

law of armed conflict and, 130-133

and law of naval targeting, 242-243

law of naval warfare and, 130-141

law of neutrality and, 134-138

law of peacetime naval operations in, 110-130

and Law of the Sea Convention, 19-20

and national vs international waters, 19

and navigation of warships and military aircraft, 115-125

and neutrality, 135, 148-149, 151-152

on biological weapons, 344-345

on blockade, 156-157

on Interned Persons, 313

on legality of civilian injury, 284-285

on limited vs global wars, 236

on naval mines, 351

on neutral ships, 232-233

Index 515

on over-the-horizon weapons, 372

on prisoners of war, 318-322

on protecting civilians, 305, 308-312

on reprisals against civilians, 306-307

on rescuing survivors, 229-230

on submarine targets, 234

on submarine warfare, 229-236

on submarine weapons, 234-235

on targeting merchant ships, 230-233

on targeting warships, 229-230

on war correspondents, 322-323

and peacetime use of force, 38-39

and protected status of medical personnel, 315

protection of persons, and property at sea, 125-127

publication of, 300

and role of naval and air forces, 21

submitting changes to, 389(H)

targeting rules and, 286

and transit passage, 92, 93

transit passage in, 122
Command responsibility and law of armed conflict, 451(H)
Commerce warfare weapons, 218
Commission on Narcotic Drugs, 66-71, 74

Conference of the Committee on Disarmament (CCD) and biological weapons, 343-344
Conference on the Law of the Sea. See Law of the Sea Conference (1958)
Contiguous zones, 396-397(H), 411(H), 434(H)
Continental shelf, 398(H)

doctrine on, 179
Continental-shelf mine, 354, 355
Contraband

absolute vs conditional, 464(H), 465(H)

and armed conflict, 137

enemy destination of, 464-465(H)

exemptions to, 465(H)

in recent conflicts, 150

See also Noncontraband carriage
Controlled mines, 139-141, 486-487(H)

Convention for the Prevention of Pollution from Ships (1973) (MARPOL), 92
Convention on International Civil Aviation (1944), 415-416(H)
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, 368-369
Convention on Psychotropic Substances (1971), 64
Convention on the High Seas (1958), 56, 59, 61-62, 125
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological

(Biological) and Toxin Weapons and on their Destruction (1972), 366
Convention on the Suppression of Slave Trade and Slavery (1926), 50-51

Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 74
Convention on the Territorial Sea and the Contiguous Zone (1958), 59-60
Convention Relating to the Status of Refugees (1951), 427(H)
Coral Sea, 274

Corfu Channel case (1949), 96-97, 126, 136, 355
Cruise missile

legality of, 372

sea launched (SLCMs), 216, 226-227, 235

turbojet-propelled, 371-372

516 Index

Cuban missile crisis, 262-266
Cuban quarantine, 128, 151, 353, 358
Customary international law
and armed conflict, 447(H)
and chemical weapons, 340, 341
Commander's Handbook and, 20-21
criteria for determining, 177-178
definition of, 388(H)
diplomatic protest and, 180-181
establishing, 165

maritime exclusion zones as, 176, 183-187
military utility and, 181-182
natural environment and, 363-364
necessity in forming, 178-180
nuclear weapons and, 489(H)
and rules of bombardment, 289-290
rules of war and, 181-182
submarine warfare and, 187
and submerged navigation, 228

Dams and dikes, bombing, 483(H)

Danish Straits, 101, 105

Deceptions, permitted and prohibited, 505(H)

Declaration of London, 163, 164, 165, 166, 167, 207-208

Declaration of Paris (1856), 163-164

and merchant ships, 247

and naval warfare, 243, 244
Defense of Merchant Shipping Handbook (1938), 248
Defense zones

declared, 412-413(H)

maritime, 158-160
Defensive zones

invalid, 190

justification of, 189-190
Delayed action devices, 488(H)
Demilitarized zones, 289, 482(H)
Department of Defense (DOD)

and drug interdiction, 435(H)

using personnel of, 435(H)
Department of Defense Instruction 5500.15, 368, 375
Department of Navy

and law of armed conflict, 450-451 (H)
Depleted uranium ammunition, 377-378
Diplomatic Conference of 1974-1977, 306, 320, 324

Diplomatic Conference on Humanitarian Law and Directed Energy Devices (1974-77), 375
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law

Applicable in Armed Conflicts, 339
Diplomatic protest

and customary law, 180-181

Gulf of Sidra and, 274
Diplomatic measures, 438(H)
Directed Energy Devices, 374-377
Distress signals, false use of, 507(H)

Index 517

Doctrine of desuetude, 121

Doenitz, Admiral Karl, 211-212, 214, 215, 224, 231, 252-253, 254-255

Dover Strait, 104, 105

Drug interdiction

DOD mission in, 435(H)

Navy ships and, 436(H)
Drugs, narcotic

campaign against illicit traffic in, 59-79

U.S. -British agreement regarding, 65-66

U.S. efforts to control, 64-65

Economic measures

to protect national interests, 438-439(H)
Economic targets for naval attack, 475(H)
Economic warfare, modern, 178
EEZ. See Exclusive economic zone

Eighteen Nation Disarmament Committee (ENDC), 343
Elevations, low-tide, 393-395(H), 404(H)
Emblems to protect buildings, 483(H)
Enemy aircraft, classes of, 476(H)
Enemy character, acquiring, 466(H)
Enemy destination of contraband, 464-465(H)
Enemy flags, insignia, and uniforms, 506-507(H)
Enemy merchant vessels

capture of, 476-477(H)

destruction of, 477-478(H)

and exemption from capture/destruction, 478-479(H)

interdiction by submarine, 479-480(H)
Enemy nationals on neutral merchant vessels, 473(H)
Enemy vessels, 476(H)

classes of, 476(H)

exempt from aircraft interdiction, 481(H)

exempt from submarine interdiction, 480(H)
Enemy warships

acquiring character of, 466(H)

outside neutral waters, 220-221
Energy devices, directed, 374-377
Entente Powers in World War I, 164-167, 178, 181
Environment, damage to, 363-364
Exclusion zones, 172

aircraft and, 173

Commander's Handbook on, 233-234

created by the belligerents, 161

for defensive purposes, 158-161

as facultative instruments, 184-187

in Falkland conflict, 171-174

in Indo Pakistan War, 190-191

in Iran-Iraq conflict, 174-176, 269-270

justification for, 192

legality of, 225

maritime, 172

Pacific Ocean as, 185-187, 192

and Russo-Japanese War, 158-160

518 Index

of Skaggerak, 185
strategy for enforcing, 185, 186
submarines and, 224-226
total, 173, 174, 181
in World War I, 184
in World War II, 185-187
Exclusive economic zone (EEZ), 91, 99, 100
controlled mines in, 139
definition of, 397(H), 411-412(H)
legality of activities in, 113-114
protection in, 434(H)
rules in, 356, 357

Falklands (Malvinas) Conflict, 129, 162, 171-174, 182, 220-221, 268-269

customary law and, 187

defensive zones and, 189, 190

exclusion zones and, 138, 171-174

and war zones, 218
Fishing boats, 252, 261
Flags

ceasefire and, 501(H)

enemy and neutral, 506-507(H)
Flag vessels

protecting foreign, 434(H)

protection of U.S., 433(H)
Flight information regions, 416(H)
Fragmentation weapons, 488(H)
Freedom of the high seas, 179

interference with, 352-353

navigation and, 395(H), 396(H)

Gases, binary, 337-338

Gas Protocol (1925), 337-342, 447(H), 448(H), 491-492(H)

Gas weapons, German use of, 335

General Act for the Repression of African Slave Trade (1890), 48-50

Geneva Convention I for the Amelioration of the Condition of the Wounded in Armies in the Field (1864),

251,302
Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked members

of Armed Forces at Sea (1949), 229-230, 258-259, 286

Israeli violation of, 266-267
Geneva Convention III for the Protection of War Victims (1949), 241
Geneva Convention IV for the Protection of Civilian Persons (1949), 281-282, 312-313
Geneva Conventions

of 1949, 303

list of, 448(H)

medical personnel and, 314, 315

on prisoners of war, 319

protecting powers and, 452(H)

Protocol of, 300, 340-341, 353
Geneva Conventions (1949), 454(H)
Geneva Diplomatic Conference on Humanitarian Law, 259-260

Index 519

Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian

Law Applicable in Armed Conflicts, 366
Geneva Protocol, U.S. ratification of, 340-341
Geneva Protocol (1925)

and incendiary weapons, 339

interpretative problems with, 338

verification and, 344
Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and

Bacteriological Methods of Warfare (1925), 336, 337
Geneva Protocol I Concerning International Armed Conflicts (1977), 259-260
German submarine warfare

in World War I, 208-209

in World War II, 210-211
Gibraltar, 104, 105
Guerrillas, 318, 320
Guided missile systems, 371-372
Gulf Cooperation Council, 270-271
Gulf of Aqaba, 102
Gulf of Sidra (or Sirte), 111, 118, 274
Gulfs, definition of, 394(H)

H

Hague Convention (1899), 251, 332-333

Hague Convention (IV) (1907), 332

Hague Convention (IX) Concerning Bombardment by Naval Forces in Time of War (1907), 288-289, 303,

324, 364, 481(H)
Hague Conventions

binding nature of, 141

list of, 448(H)

mining rules and, 354-360

and naval mines, 351-352, 353

See also Specific Hague Conventions
Hague Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines (1904), 164, 351,

373, 485-486(H)

breach of, 168

on blockades, 157

on use of naval mines, 138, 139
Hague Convention (X) (1907), 130, 131, 251, 258
Hague Convention (XI) (1907), 252, 261
Hague Convention (XIII), 458(H)
Hague Peace Conference (1899), 365

and chemical weapons, 335

and submarines, 206
Hague Peace Conferences, 304, 319
Hague Regulations

medical personnel and, 314

on land warfare, 303, 312

on prisoners of war, 322
Hague Symbol (1907), 500-501(H)

Handbooks. See Commander's Handbook on the Law of Naval Operations (NWP 9); Military manuals
Harbor works, 394(H)
Harpoon Surface-to-Surface Missile, 372
Herbicidal agents, 338, 340, 493(H)
Hercules tanker, 174, 187, 269

520 Index

High seas

closed areas of, 124-125

definition of, 387(H)

freedom of, 39-59, 179, 352-353, 395(H), 396(H)

freedom on, 412(H)

principles of, 40
High Seas Convention (1958), 56, 59, 61-62, 125
Hijackings, 125, 126
Historic bays, 111.394(H)
Hospital ships, 234, 251

immunity of, 226

marking of, 324, 326

protected status of, 314

protecting, 260
Hospital zones

bombardment of, 482(H)

protective symbols for, 500(H)
Hot pursuit, 431-432(H)
Humanitarian factors

and military decisions, 219-220

and weapons, 332-333
Humanitarian law, 184

and armed conflict, 363-364, 366
Humanitarian law, rules of. See Geneva Conventions
Humanitarian organizations, international, 452(H)
Humanitarian values

and recent wars, 139-141

and submarine warfare, 224

See also Geneva Protocol I, II; War crimes trials

ICRC. See International Committee of the Red Cross (ICRC)

Illegal combatants, 320-321, 507(H)

Immunity, loss of, 311

IMO. See International Maritime Organization

Impartiality, duty of, 457(H)

Incapacitating agents, 492(H)

Incendiary weapons, 488(H)

legality of, 377

prohibitions on, 368-369

use of, 338, 339
Incidental injury, 475(H)
Incidental loss, 308, 309
"Incidents at Sea" agreement, 418-419(H)
Indo-Pakistan War, 190-191
Inland rules, U.S., 418(H)
Innocent passage, 96, 97-98, 99, 355, 356

and 1982 Law of Sea Convention, 116-119

definition of, 407-408(H)

difficulties interpreting, 116-119

in distress, 425(H)

regime of, 410(H)

restrictions on, 408(H)

temporary suspension of, 118-119

Index 521

through archipelagic waters, 411(H)

warships and, 409(H)
Insignia, use of neutral, 506(H)
Internal waters, 407(H)

definition of, 395(H)

neutral, 460(H)

protection in, 433-434(H)
International Agreements

definition of, 389(H)

and law of armed conflict, 447-449(H)

list of, 448(H)

on outer space activities, 421(H)
International airspace, 415(H)

air defense identification zones and, 416-417(H)

freedom to use, 114-115
International Civil Aviation Organization (ICAO), 93, 416(H)
International Committee of the Red Cross (ICRC), 9, 313, 452-453(H)
International Conference of the Red Cross (1965, 1986), 305, 375
International Conference on Drug Abuse and Illicit Trafficking (1987), 70-71
International Court in the Anglo-Norwegian Fisheries case, 111
International Court of Justice, 439(H)
International Emergency Economic Powers Act, 276
International law

and acquiescence of naval powers, 24

and authority of coastal states, 32

and British-American conflict, 41-46

compliance with, 241-242

customary, 28

definition of, 388(H)

and domestic politics, 31-34

and general practice, 29

and global navy, 32-34

and large navies, 22

on submarine mines, 351-360

and peacetime use of force, 38-39

and perceptions of others, 28

and relationship to naval and air operations, 19-20

and rules of neutrality, 151-153

and submarine warfare, 209

and United Nations Convention on the Law of the Sea (1982), 19-20

war crimes and, 454-455(H)

See also Customary international law
International Law Commission, 40, 51, 60-61, 97
International Maritime Organization, 92-93, 94, 95
International Military Tribunal at Nuremberg.

See Nuremberg Tribunal
International Military Tribunal at Tokyo, 252, 256
"International Rules of the Road", 417-418(H)
International status

for military aircraft, 406-407(H)

of warships, 405(H)
International straits, 20, 91-105

choke points in, 104-105

definition of, 104-105

foreign states and, 103

522 Index

importance of, 104-105

innocent passage in, 96, 97-98

internal waters in, 102-103

neutrality in, 93

not completely overlapped by territorial seas, 410(H)

overlapped by territorial seas, 409-410(H)

regulation of, 101-103

state practices and, 103-104

states bordering, 94-95

transit passage regimes for, 91-105
International waters, 396-397(H)

asylum in, 426(H)

free passage in, 270-271

mining of, 139-140

navigation in and overflight of, 411-414(H)
Interned Persons, 313
Inviolability, right of, 457(H)
Iran-Iraq War, 269-272

customary law and, 187

mining and, 359-360

prohibited war zone and, 174-176

visit and search in, 150-151
Island nations. See Archipelagic waters
Islands

artificial, 395(H)

territorial sea of, 404(H)

Japan

bacteriological warfare and, 342

chemical weapons and, 336, 337

in World War II, 210, 248-249, 251

submarine warfare and, 186-187

See also Russo-Japanese War, 1904-05
JCS Peacetime Rules of Engagement (ROE), 441-442(H)
Journalists , 323

Judge Advocate General's Corps, 241, 291
Judge advocates, Navy and Marine Corps, 451(H)
Judicial measures to protect national interests, 439(H)

K

Kellogg-Briand Pact, 10

Kennedy, President John F., 264-265, 266

Korean armed conflict, 260-262

naval blockade in, 149
Kuomintang blockade, 149

La Bell discotheque, bombing of, 275, 279, 285-286
Lachrymatories, 338
Laconia order, 254-255
Lands, neutral, 458(H)
See also Neutral territory

Index 523

Lasers, 374-377

Latin America, 490-491 (H)

Law

enforcing domestic civil, 434-435(H)

and prohibited zones, 188-189

war and, 445(H)
Law, international. See International law
Law enforcement agencies, 435(H)
Lawful object of attack, 268, 269
Law of armed conflict, 2-4, 362-378

adherence to, 450-451 (H)

as an ideal, 290

applicability of, 241

and chivalric code, 8-9

Commander's Handbook and, 130-133

command responsibility and, 451(H)

enforcement of the, 452-455(H)

general principles of, 445-446(H)

humanitarian basis, 363

importance of dissemination of, 1-4

individual responsibility and, 451(H)

and law of naval targeting, 474(H)

and Libyan attack, 284

methods of dissemination of, 4-7

and oral tradition, 8-9

principles and sources of, 130-133, 242-243

reciprocity under, 5, 454(H)

technological advances and, 9-12

The Scotia case and, 8

and U.S. Military Tribunal at Nuremberg, 8

See also Law of naval targeting; Reprisals
Law of belligerent reprisals, 187

See also Belligerent reprisals
Law of blockade, 470(H)
Law of mine warfare, 351
Law of naval targeting, 474-483(H)

aircraft and, 287, 288

air warfare and, 480-481 (H)

attack on Libya and, 272-276

attack on U.S.S. Liberty and, 266-267

basic principles of, 242-243

bombardment and, 481 -483(H)

civilians and, 475(H)

and Cuban missile crisis, 262-266

enemy warships and, 287

enforcing, 290-291

Falklands conflict, 268-269

humanitarian treaties and, 258-260

incidental injury and collateral damage, 475(H)

Iran-Iraq conflict and, 269-272

Korean conflict and, 260-262

military objectives and, 474-475(H)

principles of, 286-291, 474(H)

prior to world wars, 243-244

submarine bombardment and, 288-290

524 Index

submarine warfare and, 479-480(H)

surface warfare and, 476-479(H)

treaties applicable to, 243

Vietnam conflict and, 267-268

war crimes and, 252-258

in World War I, 245-246

in World War II, 247-252
Law of Naval Warfare

armed conflict and, 130-133, 139-141

Commander's Handbook on, 130-141

neutrality and, 134-138
Law of Neutrality, 134-138, 456-473(H)

acquiring enemy character and, 466(H)

airspace and, 462-463(H)

asylum and, 473(H)

belligerent control of neutral communications, 471(H)

blockade and, 468-471(H)

capture of neutral vessels and, 471-473(H)

ignoring, 359

neutral commerce and, 463-466(H)

and self-defense, 457-458(H)

territory and, 458-463(H)

transit passage and, 93

U.N. Charter and, 457(H)

visit and search under, 466-468(H)
Law of Peacetime Naval Operations, 110-130

legal divisions of oceans and airspace in, 110-115

navigation of warships and aircraft and, 115-125

protection of persons and property at sea, 125-127

U.S. national interests and, 127-130
Law of Reprisal, application of international, 281-282
Law of submarine warfare, 214-216
Law of targeting, application of, 282
"Law of The Hague", 302
Law of the Sea Conference, 19-20, 71, 73, 78

differing interpretations of, 117-118

mining of the sea and, 355-357

and nonapplicability of transit passage, 99-100

and non-archipelagic islands, 104

and states bordering straits, 94

and transit passage, 119-120

transit passage provisions in, 121-123

transit passage regime, 119-125
Law of the Sea Conference (1958), 55, 56, 61, 97
Law of the Sea Conference (1982), 29-30, 57-59, 69, 91, 392 (H)

and aircraft passage rights, 122

and archipelagic sea lanes, 123-124

and armed conflict, 131, 132

article 35(a), 20

and duty to rescue, 20

and extension of territorial waters, 460-461 (H)

innocent passage and, 116-119

on narcotics traffic, 430 (H)

on slave traffic, 430 (H)

on unauthorized broadcasting, 431 (H)

Index 525

and rights of transit passage, 461 (H)

and seabed mining, 461(H)

and submarine transit, 122

transit passage and, 228

and warships, 405 (H)
Law of the Sea Convention. See Law of the Sea Conference
Laws of war, 130

and armed conflict, 131, 132, 133

binding nature of, 141

blockade and, 137

compliance with, 133-134

observing, 182-183

revising, 142

and submarines, 207, 213-214

and submarine weaponry, 226-227
Le Louis case (1817), 40, 41
Levee en masse, 312
Libya

1986 attack on, 272-286

law of reprisal and, 281-282

and law of targeting, 282-285

questioning U.S. attack on, 275-276

self-defense and, 278-281

and terrorism, 285
Limited war, 220-221

neutral shipping in, 223

submarine targets in, 229
Little v. Barreme case, 242
Llandovery Castle (World War I), 171
Logistical strategies, 189-194

blockades as, 160-164

war zones and, 178
London Convention on Safety of Life at Sea (1974), 425(H)
London Naval Treaty of 1930, 209, 247, 249
London Protocol of 1936, 139, 209-210, 213, 215, 222, 223, 231-232

and destruction of enemy merchant vessels, 477-478(H)

merchants ships and, 249, 250, 251

on submarines, 480(H)

violation of, 211, 212
Long-distance blockade, 470(H)
LOS Convention. See Law of the Sea Conference
Low-tide elevations, 393-395(H), 404(H)

M

Malacca-Singapore Strait, 104, 105

Malvinas armed conflict. See Falklands conflict

Manuals. See Military manuals

Maritime baselines, 393-394(H)

Maritime exclusion zones (MEZ)

belligerent, 179

customary law and, 183-187

declaring, 177-178

justification of, 157-158

sporadically enforced, 177

526 Index

See also Exclusion zones
Maritime prohibited zones

defensive goals and, 189-190

legality of, 188-189, 193-194

persisting logistical strategies and, 190-191
Maritime quarantine, 441(H)

MARPOL. See Convention for the Prevention of Pollution from Ships (1973, 1978)
Martens Clause, 286
Masters, duty of, 425(H)
Measures of blockade, 470(H)
Medical facilities, bombarding, 482(H)
Medical personnel

arms use by, 315-316

as noncombatants, 496-497(H)

protected status of, 314-316
Merchant Marine, 323
Merchant ships

armed and unarmed, 214

attacking, 129, 139

laws of war and, 207-208

pre-Civil War, 243-244

safety of crew on, 223-224

search of, 150

sinking in World War II, 170

submarine attacks on, 209, 213-216, 220, 222-226

in World War I, 246-247

in World War II, 210, 211, 248-253

See also Visit and search
Merchant vessels

acquiring character of enemy, 466(H)

capture of enemy, 476-477(H)

destruction of enemy, 477-478(H)

enemy or neutral, 287, 288

exemption from capture/destruction of, 478-479(H)

personnel of captured neutral, 472-473(H)

post World War II rules on neutral, 215

targeting, 230-233, 287, 288

visit and search of neutral, 463(H)
"Mere passage", 460(H)
Messina Exception, 100-101
MEZ. See Exclusion zones
Microwave devices, 374

See also Directed Energy Devices
Military aircraft

acquiring character of enemy, 466(H)

and air warfare at sea, 480-481 (H)

attacking enemy, 476(H)

belligerent, 462-463(H)

bombardment by, 288-290

defined, 406(H)

international status of, 406-407(H)

status of, 406-407(H)

sunken, 405-406(H)

targeting, 287, 288

in transit passage, 91-93

Index 527

visit and search by, 468(H)
Military Airlift Command (MAC), 407(H)
Military contract aircraft, 407(H)
Military equipment and facilities, use of, 435(H)
Military manuals

and channels of dissemination, 2-3

and disseminating normative information, 1-7

effectiveness of, 5-7, 12

and internalization of norms, 3-4

and international lawmaking process, 1, 7-9

and law of armed conflict, 2

methods of dissemination for, 4-7

multilateral dissemination of, 11

and process of dissemination, 2-4

role in future conflicts of, 9-12

target communities of, 3
Military measures to protect national interests, 440-442(H)
Military necessity and civilian casualties, 219-220
Military objectives, 474(H)
Military Sealift Command (MSC), 406(H)
Militias, 319

Minelaying, 271,355-357
Mines

CAPTOR, 373

continental shelf, 354, 355

controlled, 139-146, 486-487(H)

and Hague Convention rules, 351-353

merchant shipping and, 353-354

nuclear, 140-141

rules regarding, 364-365

sound and vibration activated, 157

submarines and, 234, 351-360

use of, 138, 141

in World War I, 164

See also Naval mines; Submarine mines
Mining

in Iran-Iraq conflict, 359-360

peacetime, 486-487(H)

seabed, 461(H)

in Vietnam conflict, 267-268
Missile

turbojet-propelled cruise, 371-372

See also Ballistic missile submarines; Cruise missiles; Guided missile systems
Missions, air. See Naval missions
Missions, naval. See Naval missions
Mixed Courts of Justice, 47-48
Moehle, trial of Karl-Heinz, 171
Montreux Convention of 1936, 101, 461(H)
Monuments, bombing historic, 482-483(H)
Mutiny and piracy, 429(H)

N

Napalm, use of, 338, 339(H)

Narcotics traffic, suppression of international, 430-431(H)

528 Index

See also Drugs, narcotic
National airspace, 414-415(H)
National interests, 437-443(H)

military measures to protect, 440-442(H)

nonmilitary measures to protect, 438-439(H)
National rules, 418(H)
National waters, 395-396(H)

navigation in and overflight of, 407-41 1(H)

See also Internal waters; International waters
Nations, practice of, 388(H)
Naval attack, proper targets for, 474-475(H)
Naval auxiliaries, 115
Naval blockade, 264-265

See also Blockade
Naval bombardment, 288-290

rules regarding, 289-291

See also Hague Conference of 1907
Naval commanders, duty of, 425(H)
Naval mines, 138-141, 351, 485-487(H)

current technology in, 486(H)

during armed conflict, 487(H)

in peacetime, 486-487(H)

See also Mines
Naval missions

and different classes of foreign states, 23

domestic legal objections to, 32

influence and acquiescence for, 22-31

and methods for promoting acquiescence, 26-31

and nearby foreign states' coasts, 30-31

and other naval powers, 24-25

and routes along foreign states' coasts, 25-30

as show of force or expression of support, 25, 31
Naval operations

exclusion zones around, 138

and law, 241-243

law of peacetime, 110-130

responsibilities of chief of, 241, 248

vicinity of belligerents in, 471(H)

See also Naval missions
Naval power, limited uses of, 264
Naval targeting, 474-475(H)

lawfulness of, 262

See also Law of naval targeting
Naval warfare

law of, 130-141

treating survivors in, 212
Naval Warfare Publication 9 (NWP-9). See Commander's Handbook on the Law of Naval

Operations (NWP-9)
Navicerts, 465-466(H)
Navigation

air, 414-417(H)

rights and freedoms regarding, 417(H)

of warships and military aircraft, 115-125

See also Air navigation
Navigational safety, rules for, 417-418(H)

Index 529

Neutral aircraft, 471-473(H)
Neutral airspace, 462-463(H)
Neutral archipelagic waters, 462(H)
Neutral commerce, 463-466(H)
Neutral communications, 471(H)
Neutral flags, 506(H)
Neutrality

legality of, 148

object of, 151

rules of, 151-153

technical abolition of, 149

under Charter of United Nations, 457(H)

See also Law of Neutrality
Neutralized zones, bombardment of, 482(H)
Neutral lands, 458(H)

Neutral merchant ships, visit and search of, 215
Neutral nations

and international straits, 93

as protecting power, 452(H)
Neutral prizes, destruction of, 472(H)
Neutrals, 179, 456(H)
Neutral ships

interdiction of, 359

in Iran-Iraq War, 175-176

in limited wars, 223

seizure of, 159

torpedo attack on, 266-267

unlawful attack on, 269, 270

in World War II, 248-252
Neutral status, 456-458(H)
Neutral straits, 461(H)
Neutral territory, 458-463(H)
Neutral vessels, capture of, 471-473(H)
Neutral warship, unlawful attack on, 270
Nicaragua case, 128, 137, 358
Noncombatant persons, 300-326, 495-501 (H)

categories of, 304-324

definition of, 301-302, 446(H)

distressed combatants as, 316-318

journalists on dangerous mission as, 323

medical personnel and chaplains as, 314-316

merchant marine and aircraft crews as, 323

prisoners of war as, 318-322

protected status of, 495(H)

protective signs and symbols for, 323-324, 500-501 (H)

treaties relating to, 302-303

war correspondents as, 322-323

See also specific categories of noncombatants
Noncombatant status, false claims of, 507(H)
Noncontraband carriage, certificate of, 465-466(H)
Non-Proliferation Treaty, 491(H)
Northwest Passage, 103-104, 122
Nuclear-armed submarines, 334
Nuclear arms control agreements, bilateral, 491(H)
Nuclear ballistic missiles, 333, 334

530 Index

See also Ballistic missile submarines
Nuclear-free zones, 115, 414(H)
Nuclear mines, emplacement of, 140-141
Nuclear powered submarines, 206-207, 217
Nuclear powered warships, 115-116, 405(H)
Nuclear Test Ban Treaty, 491(H)
Nuclear weapons, 331-334

arguments regarding use of, 332-334

legal use of, 141, 227

naval use of, 333-334

nonprohibition of, 345-346

treaty obligations and, 489-491 (H)
Nuclear Weapons Non-Proliferation Treaty (1968), 414(H)
Nuremberg Tribunal, 170, 211-212, 223-224, 231-234, 252-257

and Admiral Doenitz, 220, 221

on war zones, 218

and survivor rescue, 215-216
NWP-9. See Commander's Handbook on the Law of Naval Operations (NWP 9)
Nyon Arrangements, 192

Ocean claims, 393(H)
Oceans, 110-114

legal divisions of, 110-114

See also International waters; National waters
Oceans Policy statement, U.S., 417(H)
Off-shore installations, 395(H)
Operation Market Time, 267
Order-in-Council of November 27, 1939, 168
Outer space

agreements regarding activities in, 421(H)

definition of, 398-399(H), 419-420(H)

law of, 420(H)

military activities in, 419-422(H)

return of objects from, 422(H)
Outer Space Treaty, 490(H)
Overflight, 411(H), 417(H)
Over-the-horizon weapons systems, 371-372, 488(H)

Pacific Exclusion Zone, 185-187, 192

Pacific War, 249

Paquete Habanna case, 252, 261

Parachutists, 318, 497(H)

Paramedical personnel, temporary, 314-315

Particle beam devices, 374-375

Passage. See Innocent passage; Mere passage; Transit passage

Passenger hijacking and piracy, 429(H)

Passenger liners, 250

Peacetime and wartime rules of engagement, 449(H)

See also Law of Peacetime Naval Operations
Peleus, 171,255-256
Peleus Case, 192

Index 531

Perfidy, acts of, 505(H)

Persian Gulf "Tanker War" (1980-1988), 174-176

Personnel, internment of belligerent, 473(H)

Personnel of captured neutral vessels and aircraft, 472-473(H)

Persons in distress, assistance to, 425(H)

Phalanx close-in weapon system, 377

Piracy, 125-127

definition of, 428-429(H)

location of, 429(H)

repression of, 428-430(H)
Pirate vessel, pursuit of, 430(H)
Poisoned projectiles, 484-485(H)
Poison gas, 365

See also Chemical weapons; Gas Protocols
Polar regions, 413-414(H)

See also Antarctic region; Arctic region
Ports, neutral, 458-460(H)
Posse comitatus, 434(H), 435(H)

Prisoner-of-war camps, protective symbols for, 500(H)
Prisoners of war, 317-322, 477(H)

definition of, 498(H)

treatment of, 498-499(H)
Prize Cases, 284
Prize crew, 472(H)
Prize master, 472(H)

Prize procedure for captured enemy warships, 476(H)
Prizes

capture enemy prize, 477(H)

destruction of neutral, 472(H)

and neutral ports, 459-460(H)
Prohibited war zone

in Iran-Iraq war, 174-176
Prohibited zones

law and, 188-189

raiding strategies in, 191-192

and reprisals, 191-192

submarine warfare in, 170

in World War I, 160-161, 165

in World War II, 160-161, 170

See also Exclusion zones; War zones
Protected status, 308

of noncombatants, 485(H)
Protecting power, provision of, 452(H)
Protection

of foreign flag vessels, aircraft and persons, 434(H)

of persons and property at sea, 125-127

of U.S. flag vessels, aircraft, citizens and property, 433(H)
Protective signs and symbols, 315, 323-324, 500-501(H)

examples of, 502-504(H)

misuse of, 505(H)
Protocol I

breach of, 315

and definition of armed forces, 319-320

and definition of civilians, 310-311

of Geneva Conventions, 300, 301, 306, 307

532 Index

and measures of protection for journalists, 323

and prisoner of war status, 321

protective signs and symbols in, 324
Protocol of 1936. See London Protocol (1936)
Protocol on Narcotic Drugs (1972), 63-64
Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (1980), 339

Qadhafi, Colonel Muammar, 273, 274, 275, 276, 278, 282
Quarantine, 426(H)

maritime, 441(H)

and self-defense, 128

of U.S. strategic arms, 151

See also Cuban quarantine

Raiding strategy, 191-192

Reagan, President Ronald, 278-281, 282, 300

Libyan attack and, 278-282, 300
Red Crescent, 316, 497(H), 500(H)
Red Cross, 316, 497(H), 500(H)

See also International Committee of the Red Cross (ICRC); International Conference of the Red
Cross
Red Star of David, 323-324, 500(H)
Reefs, 394(H)
Refuge, 427-428(H)
Refugees, 427(H)
Reprisals

against civilians, 306-307

authority to order, 453-454(H)

belligerent, 161

definition of, 133

illegality of, 161

international law of, 281-282

prohibited zones and, 191-192

status of, 134

submarine warfare as, 166

as U.S. submarine strategy, 187

in World War II, 210

See also Belligerent reprisals
Rescue, 214-216, 221-224, 229-230, 424-426(H)
Resistance movements, 319

Responsibility and law of armed conflict, 451(H)
Riot control agents, 492-493(H)
Rio Treaty, 151
River mouths, 394(H)
Roadsteads, 395-396(H), 458(H), 459(H)
Rocks, 395(H)

"Roerich Pact" symbol, 500(H)
Rules for navigational safety, 417-418(H)
Rules of Engagement, 9, 127, 128, 138, 388(H), 449(H)
Russo-Japanese War (1904-05), 158-160, 189, 351, 485(H)

Index 533

Safe harbor, 425(H)

Safety of Life at Sea Convention (1973) (SOLAS), 92

Safety zones, 398(H)

Saint-Germain Conventions of 1919, 50

St. Petersburg Declaration (1868), 332, 364

Sea, protection at, 424-436(H)

See also International waters; National waters; Territorial seas; High seas
Seabed Arms Control Treaty, 141, 489-490(H)
Sea Island City, 272
Sea lanes, 235-236, 415(H)

See also Archipelagic sea lanes
Sea launched cruise missiles (SLCMs), 216, 226-227
Sea of Okhotsk, 104
Search and seizure, 45-46, 50, 75

and British-American Treaty (1824), 44

right of, 38-39

See also Visit and search
Security zones, 397(H), 412-413(H)
Self-defense, 127-129

attack on Libya as, 275

blockades and, 131

collective, 358

doctrine of, 133

in Falklands conflict, 171

law of neutrality and, 457-458(H)

Libyan attack and, 278-281

mine laying as preparation for, 357

naval mines in, 140

naval targeting in, 262-263

right of, 440-441 (H)

use of force in, 132, 133

See also Anticipatory self-defense
Self-defense arrangements, regional and collective, 457-458(H)
Self-help enforcement actions, 136
Ships

assisting distressed, 425(H)

captured, 459-460(H)

cartel, 251

See also Hospital ships; Merchant ships; Warships
Shipwrecked persons, 317, 497(H)
Signs and symbols, protective, 500-501(H)
Single Convention on Narcotic Drugs (1961), 63-64
Slaves, prohibiting transport of, 430(H)
Slave trade

and British-American cooperation, 46-48

Convention on Suppression of (1926), 50-51

crusade against, 39-59

as declared piracy, 44

and freedom of high seas, 39-59
SOSUS chains, 113
Soviet Union

and biological weapons, 342-344

as naval power, 24

534 Index

and total exclusionary zones, 181
Space. See Outer space
Spies, 507-508(H)

Stockholm Peace Research Institute (SIPRI) report on incendiary weapons, 339
Straight baselines, 393(H), 400(H)
Straits

choke points in, 104-105

definition of, 91

innocent passage in, 99

international conventions and, 101-102

leading, 104

neutral, 461(H)

and territorial seas, 99-100, 103

transit passage in, 120-125, 356

See also International straits
Submarine mines in international law, 351-360
Submarines

attack, 207, 216

ballistic missile, 216, 217, 227

categories of, 216

disadvantages of, 206, 208

and enemy merchant vessels, 480(H)

illegal targets of, 213

land targets of, 226

and law of naval warfare, 213

legality of, 220, 229

and merchant ships, 223-224, 231

modern, 216-218

monitoring systems and, 113

nuclear-armed, 334

nuclear powered, 206-207, 217

proposed abolition of, 246

rescue operations of, 212

rescuing survivors by, 229-230

roles of, 205, 206

and safety of passengers of, 480(H)

strait transit passage and, 228

strategic missile (SSBN) and, 207

targets of, 234

warfare roles of, 217-218

weapons in, 371-372
Submarine warfare, 205-237, 479-480(H)

against merchant ships, 214-216

conference on, 335-336

current law and, 219-229

enemy warships in, 220, 221

history of, 206-216

and humanitarian values, 224

illegality of unrestricted, 233

law regarding, 222-224

and laws of war, 213-214

rules of, 247-252

since World War II, 216-218

survivor rescue in, 221-222

targeting merchant ships, 222-226

Index 535

targeting merchant vessels in, 230-233

unrestricted, 185-187, 209, 210, 211, 212, 252-253

as war crimes, 170-171

weaponry of, 226-227, 234-235

in World War I, 165, 166, 208-209, 246-247

in World War I and II, 170-171

in World War II, 210-214, 247-252
Submarine warships, bombardment by, 288-290
Suffering, unnecessary, 369, 370, 376, 484-485(H)
Surface warfare, 476-480(H)
Surrender of enemy vessels to aircraft, 481(H)
Surrender of refugees, 427(H), 428(H)
Survivor rescue, 214-216, 221-222, 224, 229-230
Survivors, 212, 229-230, 257-258

See also Civilian casualties; War crimes trials

"Tanker War" of 1980-1988. See Iran-Iraq war
Targeting. See Law of naval targeting
Territorial sea claims, objection to, 110
Territorial Sea Convention (1958), 87-98

contiguous zones and, 111

on innocent passage, 116, 117

rights of transit passage and, 120-121

straight baselines and, 110
Territorial sea of islands, 404(H)
Territorial seas

12-nautical mile, 460-461(H)

of a foreign state, 103

definition of, 395(H)

extended, 392(H)

innocent passage in, 407-408(H)

international straits overlapped by, 409-410(H)

mining, 486(H)

neutral, 460(H)

protection in, 433-434(H)

pursuit of piracy in, 430(H)

straits connecting with, 103

straits not overlapped by, 99-100

temporary suspension of, 408(H)
Territories

neutral, 458-463(H)

under foreign jurisdiction, 426-427(H)
Terrorism, 273-277, 285
Terrorization via bombardment, 482(H)
Torpedoes

disarming, 234

legality of, 487(H)

rules regarding, 365

See also CAPTOR mine
Total Exclusion Zone (TEZ). See Exclusion zones
Transit passage

defined, 409(H)

interpreting the law on, 123

536 Index

law of neutrality and, 93

legal regime of, 409(H)

rights of, 119-125, 356, 461(H)

in straits, 122
Transit passage regimes, 91-105

archipelagic sea lanes and, 95-96, 123-125, 410-41 1(H)

exceptions to, 99-103

history of, 96-99

innocent passage and, 96, 97-98, 99

state compliance with, 103-104

Territorial Sea Convention and, 97-98

UNCLOS III and, 98-99

warships and military aircraft in, 91-93
Treaties

Declaration of Paris Concerning Martime Law (1856), 243

Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (1949), 243

Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907), 243

Hague Convention (IX) Concerning Bombardment by Naval Forces in Time of War (1907),
243

Hague Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines
(1907), 243

Hague Convention (VII) Relating to the Conversion of Merchant Ships into War-Ships
(1907), 243

Hague Convention (VI) Relating to the Status of Enemy Merchant Ships at the Outbreak
of Hostilities (1907), 243

Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the
Geneva Convention (1907), 243

Hague Convention (XI) Relative to Certain Restrictions with Regard to the Exercise of
the Right of Capture in Naval War (1907), 243

Proces-Verbal Relating to the Rules of Submarine Warfare (London, 1936), 243
Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco) (1967),

414(H), 490-491(H)
Treaty of Raratonga, 115
Treaty of Versailles, 335
Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of

Mass Destruction on the Seabed and the Ocean Floor and Subsoil Thereof, 354
Trial of Eck, 255-256
Trial of Moehle, 255
Trial of Von Ruchteschell, 253-254

U

UNCLOS I, III. See Law of the Sea Conference

Uniform Code of Military Justice, 242

Uniforms, use of neutral, 506(H)

United Nations Ad Hoc Committee on Slavery, 50-51

United Nations Charter

Cuban quarantine and, 151

and International Court of Justice, 439(H)

and law of armed conflict, 131, 132

and law of self-defense, 262-263

and neutrality, 148, 149, 150, 457(H)

prohibition against use of force, 437-438(H)

and right of self-defense, 440-441(H)

Index 537

and unlawful threat of force, 139

and war vs armed conflict, 445(H)
United Nations Conference for the Adoption of a Convention Against Illicit Traffic in Narcotic

Drugs and Psychotropic Substances (1988), 76
United Nations Conference on Certain Conventional Weapons, 368, 375, 377
United Nations Convention on the Law of the Sea.

See Law of the Sea Conference
United Nations Security Council, 190, 270-272, 502(H)
United Nations War Crimes Commission, 169-170
United States

and 1982 U.N. Convention, 98-99, 228

and chemical warfare, 339-342

and government property lost at sea, 432-433(H)

inland rules, 418(H)

and killing survivors, 257-258

and law of armed conflict, 450(H)

protecting citizens of, 428(H)

provocative attack on Libya by, 274-275

submarine warfare in World War II, 210

and war zones, 180-181
United States Coast Guard vessels, 405(H)
United States flag and emblem, use of, 506(H)
United States Oceans Policy statement, 417(H)
United States Policy Regarding Biological Weapons, 494(H)
United States Policy Regarding Chemical Weapons, 492(H)
United States' Strategic Defense Initiative, 374
Universal Declaration of Human Rights, 52
U.S.S. Liberty, attack on, 266-267
U.S.S. Stark, 270
U.S.S. Vincennes, 162

Vessels

and exemption from capture, 478-479(H)

flag, 433(H), 434(H)

navigational safety rules, 417-418(H)

neutral, 471-473(H)

pirate, 429-430(H)

without nationality, 431(H)
Vietnam, 338, 340
Vietnam conflict, 267-268

blockade during, 157, 471(H)

defensive zones and, 189-190

mining in, 357-358

neutrality and, 149
Visit and search

by belligerent warships, 208, 215

and British reciprocal treaties, 42

and General Act for the Repression of African Slave Trade, 48-49

in limited war, 223

by military aircraft, 468(H)

in neutral archipelagic waters, 462(H)

of neutral merchant vessels, 463(H)

procedure for, 467-468(H)

538 Index

right of, 136, 137, 163, 353

under Law of Neutrality, 466-468(H)

in Vietnam conflict, 267

See also Search and seizure
Volunteer corps, 319
Von Clausewitz, Karl, II, 181, 182

W

War

gentlemen's, 182, 183

and the law, 445(H)

limited, 182-183

technical illegality of, 148, 149

See also Law of armed conflict; specific wars
War correspondents, 322-323
War crimes

definition of, 454(H)

example of, 315

and prisoners of war, 498(H)

submarine warfare and, 170-171

trials, 252-257

U.N. Commission on, 169-170

under international law, 454-455(H)
Warfare

air, 480-481 (H)

forms of, 11-12

law of naval, 130-141

limitation on means of, 484(H)

and rapid communications systems, 10

and technical advances, 9-12

total, 10-11
Warning areas, declaring, 412(H)
Warships

and Black Sea, 101

controversial definition of, 115

definition of, 220, 405(H)

enemy, 287, 476(H)

and innocent passage, 116, 117, 119, 409(H)

in internal waters, 407(H)

international status of, 405(H)

neutral, 270

in neutral ports, 459(H)

nuclear powered, 115-116

right of approach and visit, 431(H)

and sea lane passage, 95-96

status of, 405(H)

submarine, 288-290

sunken, 405-406(H)

targeting other, 229

visit and search by, 244, 467(H)

See also Visit and search
War zones, 138

declaration of, 218

and logistical strategy, 178

Index 539

moveable, 192

and neutral merchant ships, 215-216

U.S. policy and, 180-181

See also Exclusion zones; Prohibited zones
Washington Conference on the Limitation of Armaments and Chemical Weapons (1922), 335
Washington Naval Conference (1921-1922), 246-247
Waters. See High seas; International waters; National waters; Seas
Weapons

antipersonnel, 484(H)

antisubmarine, 373

binary, 337-338

chemical, 334-342

indiscriminate, 485(H)

lasers as, 375

nuclear, 331-334

prohibited, 484-485(H)

small calibre, 369

See also Nuclear weapons
Weapons bans, loopholes in, 369-370
Weapons testing, 113
Weapon systems, 484-488(H)

constraints of modern, 10

high technology, 488(H)

naval mines as, 485-487(H)

over-the-horizon, 371-372, 488(H)

prohibiting development and use of, 364-370

torpedos, 487(H)

unlawful, 484(H)

unnecessary suffering and, 484-485(H)

See also Specific weapons
Webster-Ashburton Treaty of 1842, 41, 45-46
White flag as cease-fire symbol, 501(H)
World War I

command of the sea in, 184

and prohibited zones, 165

submarines in, 206

and submarine warfare, 208-209, 246-247

United States entry into, 166-168
World War II

belligerents' practice in, 232

blockade during, 168-169

chemical weapons and, 337

and destruction of enemy merchant vessels, 477-478(H)

exclusion zones in, 185-187

passenger liners and, 250

submarines in, 206

submarine warfare in, 210-214, 222-224, 247-252
Wounded and sick, as noncombatants, 496(H)
Wounded combatants, 316-317

Yemen conflict, 149

540 Index

Zone definitions

contiguous, 396-397(H)

exclusive economic, 397(H)

security, 397(H)
Zones

air defense identification, 416-417(H)

demilitarized, 289, 482(H)

exclusion, 157-161

hospital, 482(H)

neutralized, 482(H)

nuclear free, 414(H)

prohibited war, 174-176

safety, 398(H)

security, 397(H), 412-413(H)