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Full text of "Targeting enemy merchant shipping"

INTERNATIONAL LAW STUDIES 

1993 
TARGETING ENEMY MERCHANT SHIPPING 



Edited by 
Richard J. Grunawalt 

Volume 65 



NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



Library of Congress Cataloging-in-Publication Data 

Targeting enemy merchant shipping / Richard J. Grunawalt. 

p. cm. — (International law studies; v. 65) 

Includes index. 

1. War, Maritime (International law) — Congresses. 2. Naval 
law — Congresses. 3. Naval tactics — Congresses. 4. United States. 
Navy — Congresses. I. Grunawalt, Richard J. II. Series. 
JX1295.U4 vol.65 
[JX5203] 
341 s— dc20 

[341. 6'3] 93-13402 

CIP 



Contents 
TABLE OF CONTENTS 



Page 

FOREWORD 

PREFACE 

Chapter One 

Targeting Enemy Merchant Shipping: 

An Overview of Law and Practice 2 

L. F. E. Goldie 

Chapter Two 

Submarine Warfare: 

With Emphasis on the 1936 London Protocol 28 

Howard S. Levie 

Comments 72 

A. V. Lowe 

Comments 78 

Dieter Fleck 

Chapter Three 

The Naval Practices of Belligerents in World War II: 

Legal Criteria and Development 87 

Sally V. Mallison and W. Thomas Mallison 

Comments 104 

M. W.Janis 

Comments 110 

W.J. Fenrick 

Chapter Four 

State Practice Following World War II: 1945-1990 121 

George K. Walker 

Comments 223 

L. C. Green 



Targeting Enemy Merchant Shipping 

Page 

Chapter Five 

Targeting Realities: Platforms, Weapons Systems, 

and Capabilities 231 

James Service 

Comments 242 

J. H Doyle Jr 

Chapter Six 

Strategic Imperatives: Economic Warfare at Sea 250 

Hugh F. Lynch 

Comments 264 

Harry Almond 

Chapter Seven 

U. S. Policy on Targeting Enemy Merchant Shipping: 

Bridging the Gap Between Conventional Law 

and State Practice 338 

H. B. Robertson Jr 

Comments 356 

Frits Kalshoven 

Comments 364 

J. Ashley Roach 

Index . 367 



Contents 
FOREWORD 

The International Law Studies "Blue Book** series was initiated by the Naval 
War College in 1901 to publish essays, treatises and articles that contribute to 
the broader understanding of international law. Work on this, the sixty-fifth 
volume of that series, began in the midst of a decade of turmoil in the Persian 
Gulf. During that time, the targeting of merchant shipping by both Iran and Iraq 
raised anew questions about the rules regarding targeting of merchant shipping 
and current viability of those rules in the international community. 

This volume consists of papers written for and presented at a recent Naval 
War College-sponsored Symposium on the Law of Naval Warfare: Targeting 
Enemy Merchant Shipping. The papers collected in this volume are the work 
of seventeen of the world's most highly respected authorities in the field. The 
principal papers analyze different aspects of the targeting issue, while the 
commentaries provide critical analyses of those complex and topically important 
assessments and conclusions. The result is a thorough and well-balanced discus- 
sion of targeting issues regarding enemy merchant shipping. While the opinions 
expressed in this volume are those of the individual authors and 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 law of naval 
warfare. On behalf of the Secretary of the Navy, the Chief of Naval Operations 
and Commandant of the Marine Corps, I extend to the editor, Professor R.J. 
Grunawalt, 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 

In February 1990, the Naval War College, with the generous support of the 
Naval War College Foundation, hosted a symposium on the Law of Naval 
Warfare. The 3-day symposium addressed the legality of targeting enemy 
merchant shipping during armed conflict and the subsidiary issue of whether the 
1936 London Protocol continues to have efficacy as an international commit- 
ment for those States party to it. The symposium brought together legal scholars, 
government officials and operational commanders from the United States, the 
United Kingdom, Canada, the Netherlands and Germany in a scholarly but 
free-wheeling examination of this contentious problem. The product of that 
examination, in the form of the principal papers and supporting written 
commentaries delivered during the symposium, has been preserved and is 
presented here as Volume 65 in the 'Blue Book' series. 

The first day of the symposium, with Professor John Norton Moore serving 
as moderator, provided an overview of law and practice pertaining to targeting 
enemy merchant vessels followed by an in-depth analysis of the origins and 
purposes of the 1936 London Protocol. The actual practice of belligerents during 
World War II, and the Nuremberg response thereto, completed the first day's 
work. The second day of the symposium, moderated by Professor Michael 
Reisman, began with a review of state practice since the end of World War II, 
followed by a review of targeting realities in the modern context from the special 
vantage point of the operational commander, and by an analysis of the strategic 
imperatives of economic warfare at sea into the 21st Century. The third and 
final day of the symposium, under the direction of moderator Dr. Robert Wood, 
examined current U.S. policy on targeting enemy merchant shipping from the 
perspective of conventional law and state practice. 

The central focus throughout the symposium was the following prescription 
of the 1936 London Protocol: 

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 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 belligerents of World War II initially sought to conduct commerce 
raiding in a manner consistent with the Protocol. As the war progressed and 
merchant vessels were regularly armed and convoyed, participated in intelligence 



collection, and were otherwise incorporated directly or indirectly into the 
enemy's war effort, they were widely regarded as legitimate military targets 
subject to destruction on sight. By war's end, little, if any, attempt was made by 
the belligerents of either side to comply with the Protocol. However, the 1936 
London Protocol remains "on the books," not having been rescinded nor 
formally repudiated. It is in this context that the ongoing debate is framed. Is 
the Protocol still viable? Are enemy merchant platforms "civilian objects" and 
therefore immune from attack? Or do they constitute an integral part of the 
enemy's lines of communication, supply and support, subject to destruction 
without warning as lawful objects of attack? 

Professor L.F.E. Goldie's opening presentation proved to be representative 
of the extraordinary scholarship that was to characterize the substantive work of 
the symposium. As the principal paper of Chapter I, Professor Goldie's analysis 
provides an 'overview' of law and practice respecting the targeting of enemy 
merchant shipping. Noting that total economic warfare at sea, fought with 
modern weapons platforms such as the nuclear-powered attack submarine and 
supersonic strike aircraft, renders long-cherished principles of humanitarian 
armed conflict effectively, if not legally, obsolete, Professor Goldie argues that 
in more limited conflict there remains a place for the concept of distinction in 
targeting and for "fellowship of the sea" during naval warfare as exemplified by 
Lord Nelson at Trafalger. 

Session Two of the symposium, and Chapter II of this volume, address the 
law of submarine warfare with emphasis on the influence of the London Protocol 
of 1936 on the targeting of merchant shipping by submarines during World War 
II. Professor Howard S. Levie, the author of the principal paper of Chapter II, 
provides a concise analysis of the evolution of the submarine into a highly 
effective instrument of modern warfare, and of the attempts of the international 
community to define its proper role under the law. Professor Levie traces this 
development through World War I, describes the failed attempts by Great 
Britain following that conflict to outlaw the submarine as a commerce raider, 
and analyzes the antecedents to, and substance of, the 1936 London Protocol. 
He then examines the practices of the belligerents during World War II, the 
findings of the International Military Tribunal at Nuremberg, and contemporary 
views of the maritime powers, particularly the United States, as expressed in 
modern military manuals. Professor Levie's conclusions as to the continued 
efficacy of the mandate of the London Protocol, that enemy merchant shipping 
may not be destroyed unless the safety of passengers, crew and ship's papers are 
first assured, set the framework for the learned - and spirited - debate of the 
symposium participants. 

Formal comments on Professor Levie's paper were delivered during the 
Second Session by Professors A.V. Lowe and Dieter Fleck. Professor Lowe's 
assessment of the development of the 1936 London Protocol provides a British 



XI 

perspective of that process. His insightful observation that arms limitation 
agreements, such as the London Protocol, have peacetime implications for 
procurement, the development of strategy and tactics, and training that may 
overshadow their impact on the rules of the game, gives pause for thought in 
the contemporary context. The jettisoning by belligerents of both sides during 
World War II of the requirements of the London Protocol in the face of the 
reality of total warfare at sea, demonstrates Professor Lowe's further observation 
that no arms limitation agreement should be expected to survive the historic 
context in which it was negotiated. 

Professor Fleck's commentary provides a German perspective of the nature 
and continuing efficacy of the London Protocol. Professor Fleck argues that the 
Protocol was not intended to apply in circumstances where compliance would 
place an attacking warship, surface or submarine, in immediate peril. Conse- 
quently, state practice during World War II did not, in his view, constitute a 
wholesale departure from its prescriptions. Professor Fleck argues, therefore, that 
the protection of civilians and civilian objects articulated in the London Protocol 
continues to accord with contemporary rules of humanitarian warfare at sea. 

Chapter III comprises the principal paper and commentaries presented during 
the Third Session of the symposium. In the principal paper, the authors, Professor 
W.T. and Sally V. Mallison, examine the practices of the belligerents at sea 
during World War II and analyze the legal criteria applicable at the onset of that 
conflict, as well as the development of those criteria as the war progressed. The 
Mallisons trace the origins of the London Protocol of 1936 and, in doing so, 
contend that a contextual interpretation of its provisions makes it clear that the 
Protocol's protections were not intended to extend to merchant vessels par- 
ticipating in the enemy's warfighting or war sustaining effort. Given the 
'normatively ambiguous' nature of the prescriptions of the London Protocol, 
the Mallisons argue that the practice of the belligerents of World War II cannot 
be said to have departed from its mandates as significantly as has generally been 
suggested. 

Professor Mark Janis, while applauding the 'mission' of the Mallisons' analysis, 
argues in his commentary that their "restrictive interpretation of merchant 
shipping" is in error. Professor Janis contends that if it is true, as the Mallisons 
suggest, that in modern warfare virtually all enemy merchant shipping "par- 
ticipates" in the enemy's war-effort, the Protocol is robbed of its substance, a 
conclusion he is not willing to accept. Professor Janis states that he is of the view 
that the Protocol is in the nature of "soft" international law that was widely 
disregarded during World War II because it could not be effectively applied. 

Commander W.J. Fenrick's commentary concludes that the analysis of the 
London Protocol provided in the Mallisons' paper is 'quite persuasive.' Com- 
mander Fenrick, a serving Canadian officer, argues that if "the law of naval 
warfare is to have an impact on the conduct of warfare, there should be a crude 



XII 

congruence between law and practice so that it is marginal, extreme conduct 
which is condemned, not activities which are routine operations of war." 

The Fourth Session of the symposium addressed state practice regarding 
targeting enemy merchant shipping since World War II. Professor George 
Walker's principal paper provides a comprehensive analysis of the practice of 
belligerents during the Korean conflict, the Chinese civil war, the Arab-Israeli 
conflicts, the India-Pakistan wars, the Vietnam War, the Falklands/Malvinas 
War, and the Iran-Iraq Tanker War. In addition, Professor Walker examines the 
evolution of treaty law during the period as well as the development of military 
manuals among the nations possessing significant naval capability. For U.S. 
readers, his commentary on U.S. Naval Warfare Publication (NWP) 9, The 
Commander's Handbook on the Law of Naval Operations, is particularly useful. 
Professor Walker concludes his presentation with an illuminating discussion of 
the on-going sponsorship by the International Institute of Humanitarian Law of 
a series of conferences at which international participants are examining naval 
warfare issues including those pertaining to the targeting of enemy merchant 
shipping. 

Professor L.C. Green's commentary on Professor Walker's principal paper 
completes Chapter IV of this volume. Professor Green, inter alia, cautions that 
applying rules of law developed for "one dimension of activity" - e.g., land 
warfare - to another - e.g., naval warfare - ought to be undertaken with great 
circumspection. Accordingly, drawing analogues for targeting enemy merchant 
shipping from rules designed for specific application on land - e.g., Protocol I 
Additional to the Geneva Conventions of 1949 - or at sea during time of peace 
- e.g., the 1982 United Nations Convention on the Law of the Sea -, Professor 
Green argues, are best avoided unless they are so general as to have obvious 
application irrespective of the area or the circumstances in question. 

Chapter V provides an analysis of the military realities of naval targeting in 
the modem era from the perspective of the operational commander. VADM 
James Service, USN (Ret.) provides the principal paper entitled "Targeting 
Realities: Platforms, Weapons Systems and Capabilities." Noting that targeting 
enemy merchant shipping will remain a major objective of warfare at sea for the 
foreseeable future, VADM Service argues that the London Protocol of 1936, if 
literally interpreted, "would unacceptably put at risk all of my forces, decrease 
the probability of success for my assigned mission and unnecessarily prolong the 
conflict." VADM J. M. Doyle, Jr., USN (Ret.) contributed to Session Five of 
the symposium with a commentary on and expansion of VADM Service's 
assessment of the impact of technological advancements on the targeting 
equation. VADM Doyle stresses the importance of target discrimination in 
modem warfare at sea, particularly with the advent and proliferation of over- 
the-horizon weapon systems. Noting that in limited warfare national rules of 
engagement will likely constrain the operational commander more than will the 



XIII 

law of armed conflict, VADM Doyle argues that the law itself must be sufficiently 
flexible to permit targeting of enemy merchant shipping if and when the need 
arises. To that end, "reassessment or fresh interpretation of the London Protocol 
of 1936" may be required. 

Session Six of the symposium examined the strategic imperatives of economic 
warfare at sea. Professor Hugh Lynch provides the principal paper for Chapter 
VI of this volume in which he explores that theme in the context of a global 
conventional war between superpowers and in the more likely scenario of 
limited conflict between nations other than superpowers. Addressing his subject 
from the perspective of a military strategist and "practitioner of the operational 
art at sea," Professor Lynch maintains that the foremost challenge to international 
law respecting economic warfare in the maritime environment is "keeping 
abreast of technological change." 

Professor Harry Almond provides a comprehensive commentary on Professor 
Lynch's paper. Professor Almond postulates that economic warfare, as a concept, 
must be functional if it is to be useful. He argues that "whether perceived as a 
strategy by policy . . . makers . . . or by . . . naval forces acting in the operational 
dimension of hostilities, economic warfare is judged under legal standards of 
reasonableness and effectiveness." Professor Almond agrees that technological 
change drives change in tactics, which in turn determines how economic warfare 
is actually conducted in the crucible of armed conflict at sea. These precedents 
will, over time, lead to continuing change and refinement in the law. Nonethe- 
less, he reminds us that economic warfare at sea is but a subset of economic 
warfare in general. Strategies adopted to strangle an opponent's capability to 
sustain his warfighting effort will dictate not only the intensity but the duration 
of the conflict. Economic warfare at sea will continue to evolve as that calculus 
changes to accommodate emerging technology and adjustments of community 
norms or "tolerances." Professor Almond concludes that the precepts of law 
regulating economic war in the maritime dimension will necessarily, and 
properly, remain "emerging" law. 

The Seventh and concluding session of the symposium focused on current 
United States policy respecting the targeting of enemy merchant shipping. 
Professor H.B. Robertson's principal paper for this topic assessed the success of 
that policy in terms of its utility as an acceptable bridge between conventional 
law, as articulated in the London Protocol of 1936 and state practice during, and 
subsequent to, ,World War II. Professor Robertson's paper, together with 
commentaries of Professor Fritz Kalshoven and Captain Ashley Roach thereon, 
comprise Chapter VII of this volume. 

Professor Robertson's analysis of U.S. policy in this arena is premised on his 
scholarly review of 77ie Commander's Handbook on the Law of Naval Operations. 
Noting that the Handbook seeks to "walk a fine line between the conventional 
law as set forth in the 1936 Protocol and the actual practice of states that occurred 



XIV 

in World War II and subsequent conflicts," Professor Robertson concludes that 
the U.S. policy of acceptance of the continued viability of the Protocol, while 
at the same time holding it to be inapplicable in most circumstances, is justified. 

Professor Frits Kalshoven, representing a Dutch view on the targeting of 
enemy merchant shipping, applauds the 1987 publication of the Handbook as a 
"welcome event." He takes exception, however, to the statement therein that 
an enemy merchant ship which contributes to the enemy's war effort constitutes 
a legitimate military objective. Fearing that criterion is too "permissive," he 
would limit use of the concept of contribution to the war effort as a separate 
ground for attack to circumstances where it is shown that the enemy state 
exercises complete and effective control over a platform being used to transport 
"items essential to the war effort." While generally accepting the U.S. view that 
the security of the attacking force and mission accomplishment are valid 
considerations in determining whether an enemy merchant platform may be 
attacked without first providing for the safety of passengers and crew, Professor 
Kalshoven warns that such concerns must be balanced with humanitarian values 
else they degenerate into a "license to kill." 

Captain Ashley Roach, in his commentary on Professor Robertson's paper, 
maintains that civilian objects, which by definition are immune from intentional 
attack, lose that immunity and become legitimate military objectives when "by 
their nature, location, purpose or use they effectively contribute to the enemy's 
war-fighting or war-sustaining capability and when their total or partial destruc- 
tion . . . would constitute a definite military advantage to an attacker." He then 
argues that the circumstances listed in the Handbook as to when enemy merchant 
shipping may be attacked without warning are consistent with those criteria. 
Accordingly, he finds U.S. policy on this issue, as expressed in the Handbook, to 
be a "reasonable and realistic balance." With respect to the question of the 
London Protocol's construed viability, Captain Roach argues that it "has not 
lapsed into desuetude, but must be understood to be not applicable across the 
board as some would have it." 

The spirited debate over the current state of the Law of Naval Warfare 
respecting the targetability of enemy merchant shipping generated in the course 
of the symposium, as reflected in the principal papers and commentaries 
reproduced in this volume, provide the serious reader, whether international 
lawyer, governmental official or operational commander, with a solid intellectual 
framework upon which to address this issue. 

I would like to add my voice to that of the President of the Naval War College 
in thanking the authors for their contributions to this volume and to the 
advancement of the study of the Law of Naval Warfare. I would also like to 
recognize the contribution of all of the participants of the symposium - legal 
scholars, military strategists, operational commanders and policy makers - for 



XV 



their role in ensuring the success of the symposium from whence the papers 
reproduced here were derived. 



Richard J. Grunawalt 

Director, Oceans Law and Policy Department 

Center for Naval Warfare Studies 

Naval War College 



Chapter I 

Targeting Enemy Merchant Shipping 
An Overview of Law and Practice 



A paper by 
L.F.E. Goldie * 



Targeting Enemy Merchant Shipping 2 



Targeting Enemy Merchant 

Shipping: 

An Overview of Law & Practice 



I. Introduction 



The title of this paper is, perhaps, very ambitious, but its object is to review 
the impact of two inventions, centuries in gestation, which were brought 
to birth through the inventive genius of Americans — Orville and Wilbur Wright 
and their aircraft and John Phillip Holland and his submersible torpedo boat. (A 
necessary adjunct to the latter was the earlier invention of the "Whitehead 
torpedo.") There seems to be an almost fatal irony in noting that Holland 
developed his boat, the principles of which remained controlling in building 
such submersibles until the end of World War II, as a member of the Irish Fenian 
Brotherhood. His object: the humiliation of the British Navy through maritime, 
clandestine guerrilla attacks. His goal was almost achieved in World War I by 
boats built upon his principles but navigated, not by the Fenian Brotherhood, 
but in open and declared warfare by Britain's foremost naval rival, the Imperial 
German Navy. 

In World War II a more refined German version, still designed on Holland's 
basic principles, posed such a great threat that Winston Churchill claimed: 

The only thing that ever really frightened me during the war was the U-Boat 
peril ... I was even more anxious about this battle than I had been about the 
glorious air fight called the Battle of Britain. 

In World War II both the United States and the United Kingdom employed 
submarines to challenge their enemies' surface supremacy in areas where they 
were not able at the time to resort to the power of their surface units. 

To the end of World War II, however, the vessels utilized in submarine 
warfare were still submersible torpedo boats rather than true submarines. This 
situation was not to last as, even before the end of World War II, the German 
Navy was experimenting with the hydrogen peroxide fueled "Walther boat." 
This vessel was of a revolutionary design, which provided fresh air for the crew 
by means of the Dutch-designed "snorkel" and dispensed altogether with the 
need for an oxygen breathing engine of the older "Holland"-style boats. The 
Holland boats were obliged to motor on the surface in order to gain the speed 
necessary to take up tactical fighting positions as well as to charge their batteries 



3 Goldie 

which stored the energy that drove the electric motors essential for submerged 
navigation. By contrast, the Walther boat could travel submerged indefinitely, 
and did not require the power plant duality of the traditional Holland boats. 
Fortunately for the Allies, this style vessel was not operational during World War 
II. Presently, with the advent of nuclear powered boats, the age of the true 
submarine has come into being. Such a warship can cruise submerged con- 
tinuously; it is capable of travelling at very high speeds under water and does not 
need to surface to fight or to launch its missiles. 

In World War II, the air services also presented their challenge to surface 
naval power and proved, after the Battle of Midway at the latest, to be surface 
warfare's master. Debate now rages as to whether the air or the submarine 
services will ultimately prove to hold the final keys to admiralty. Because of their 
physical limitations, neither a maritime warplane nor a raiding submarine, can 
comply with the values Nelson expressed in his prayer before the Battle of 
Trafalgar: ". . . may humanity after victory be the predominant feature in the 
British fleet." Should a contest for mastery of the oceans come about under 
contemporary conditions, it would be awesome in its magnitude, and in its dire 
power would test men's hardihood and fortitude, their planning and their fighting 
skills. The imminent and horrifying means of destruction may also challenge their 
humanity. These animadversions, while taking our imaginations beyond the limit 
of this paper, help to set a larger frame and one, moreover, within which the present 
topic must need be fitted. In addition, these criticisms do point to a widening 
possibility that fighting men will become increasingly compelled to accept what 
Admiral Doenitz characterized as a "code of hardness" which forswore "every 
principle of the sea's fellowship — mutual help in the face of nature, instant 
assistance to the shipwrecked, magnanimity in victory and fair play at all times." 

Linked, as part of a more-embracing value system with the ethics of the "seas' 
fellowship," is the time honored legal notion, in both maritime and land warfare, of 
the principle of distinction. Traditionally, war on land distinguished between 
civilians and military personnel and between private and public property. At sea, the 
merchant ships of a belligerent were always subject to lawful capture; neutral trading 
vessels, unless carrying contraband, were, however, treated as immune. The 
extension of the concept of contraband in World War I and the system of economic 
warfare as waged by the United Kingdom and her Allies in both World Wars on 
the one side, and, on the other, the indiscriminate raiding strategy of submarine 
warfare by Germany, effectively ended that traditional protection of belligerent or 
neutral merchant ships, and with it, the principle of distinction in maritime warfare. 

II. The Seas' Fellowship" 

Historians relating the Battle of Trafalgar tell of the storm that struck the 
damaged ships of the victors and vanquished alike. They also record the valiant 



Targeting Enemy Merchant Shipping 4 

efforts of the victors to save the prize crews, at great risk to themselves and their 
prisoners after they had been ordered to abandon their captured ships. The 
"fellowship of the sea" was also reflected in the capture of enemy private and 
merchant ships, which, if they submitted to visit and search by a warship, would 
not be attacked. Furthermore, crews and passengers were, by their capture, 
placed under the protection of their captors or, at least, had so far as conditions 
made it possible, the expectation that their safety would be assured. 

These values were observed, in the main, in both World Wars by the German 
surface commerce raiders. An example of the "seas fellowship" was set by Count 
von Luckner in his Seeadler in World War I. There were, with some unfortunate 
exceptions, similar examples in World War II: the famous Altmark incident arose 
from a British naval rescue of 300 British merchant navy officers and seamen 
who had been taken prisoner by the German pocket battleship Graf Spee while 
the latter ship was engaging in commerce raiding in the South Atlantic. The 
incident became notorious by reason of the fact that the Norwegian authorities, 
aware that the Altmark was a naval auxiliary ship, still permitted her to navigate 
through approximately 400 miles of Norwegian territorial waters while refusing 
a British request to examine her to ascertain whether she was carrying British 
seamen who had been taken prisoner. Upon Norway's refusal, the British 
destroyer Cossack entered her territorial sea and rescued the British captives. 
The relevance of the Altmark incident to this paper is that it illustrates that 
German naval authorities acknowledged the authority of, and complied with, 
the traditional humanitarian obligations of protecting enemy lives, apart from 

Q 

the necessary infliction of battle casualties (including collateral injuries and 
deaths) in sea warfare. In general, one may say that in both World Wars, German 
surface raiders did adhere to the traditional values held among seamen. While 
the Trial ofHelmuth von RuchteschelF shows that one German commander of an 
armed surface raider failed to live up to those norms of behavior, it also 
distinguishes aberrant conduct on the part of one officer and his crew from the 
traditional values observed by most sea warriors. 

The surface raiders of the two World Wars were also able to follow the 
traditional values of seamen because their ships permitted them to do so. They 
had adequate space for accommodating captured crew members, could rendez- 
vous with auxiliary vessels for transhipment and eventual incarceration, and they 
carried armament which enabled them to engage in fighting. (For example, the 
disguised German armed raider Kormoran sank, by recourse to a perhaps obsolete 
ruse of war, the Australian cruiser Sydney in November 1941). So long as naval 
warfare remained two-dimensional, its conduct was largely, if not entirely, 
consistent with the traditional values. This was so despite the development of 
turbine-driven warships with "ship-killing" armaments. In writing of the 
aftermath of the Battle of Heligoland Bight on August 28, 1914, Keegan pointed 
out that: 



5 Goldie 

"There was time for Keyes [the British Commander] to come alongside one of 
the foundering victims, Mainz, and for an echo of Trafalgar to sound across the 
waters separating them." 

III. Three Dimensional Warfare at Sea 

The new, twentieth century development of three dimensional naval warfare 
has resulted from the increasing use of aircraft and submarines. To the end of 
World War II, the fragile hulls of the submarines exposed them to almost 
inevitable destruction by ramming, should they offer to fight on the surface. 
Their light surface fighting armaments meant they would be outgunned by 
armed merchant ships, and their cramped quarters dictated that they could carry 
very few, if any, prisoners. Hence their very design and structure militated against 
their observing the traditional norms of the sea. 

While it might be argued that rigid airships and zeppelins might develop a 
capability for observing the traditional humanitarian values of the sea, the future 
did not lie with them but with heavier-than-air craft. Like submarines, these 
latter aircraft did not have the structural ability to take and secure prisoners and 
rescue wounded seamen. 

These still-developing vessels and aircraft, operating in the depths of the seas 
and in the air, illustrate how war in three dimensions now challenges the present 
body of law, predicated as it is on two dimensional contests. It is necessary, 
therefore, to examine the new strategies and tactics in light of the present law, 
so far as that can be made relevant, and to determine if still applicable principles 
can be extrapolated from the past. 

IV. A Retrospective 

A. The Anti-Submarine Diplomatic Campaign, 1922-36, 

The German use of indiscriminate submarine warfare against Allied and 
neutral shipping in World I had threatened the survival of the United Kingdom 
as well as the effectiveness of the intervention of the United States. Therefore, 
the victorious Entente and Associated Powers, led by Great Britain, engaged in 
the inter- war period in a diplomatic campaign to outlaw the use of submarines 
as commerce raiders. The Allies "had been severely shaken by the 'First Battle 
of the Atlantic,' appalled by its cost and severely stressed by the effort needed to 
fight it." Accordingly, by Article 191 of the Treaty of Versailles, Germany was 
prohibited from engaging in "[t]he construction or acquisition of any submarine, 
even for commercial purposes . . .". 

Shortly thereafter, at the Washington Naval Conference of 1921, Great 
Britain failed to obtain agreement on limiting the total tonnage of the parties' 
submarine fleets and of the tonnage of the individual boats of which those fleets 



Targeting Enemy Merchant Shipping 6 

were comprised. While Article 3 of the Treaty resulting from that Con- 
ference sought to establish the principle that an officer under the orders of a 
responsible state who engages in such activities "shall be liable to trial and 
punishment as if for an act of piracy,*' this provision did not enter into force, 
and the attempt to stigmatize such an officer as a pirate (rather than merely a war 
criminal) was subsequently abandoned. On the other hand, principles such as 
those reflected in Article 1 of the Washington Treaty which provided that 
submarines were not exempt from the rules applicable to surface warships, were 
written into Part IV (Article 22) of the subsequent London Naval Treaty of 
1930. This latter treaty, too, had some problems with acceptance (it was not 
ratified by France and Italy). France, in particular, argued for a distinction 
between the submarine as a legitimate weapon and its inhuman use. She argued 
that a belligerent using the weapon in a reprehensible manner should be 
condemned, rather than the weapon itself. 

Prior to the London Naval Conference of 1935, which was called to frame 
a treaty to replace that of 1930, Great Britain sought the ratification of Part IV 
(Article 22) of the 1930 Treaty. That provision was as follows: 

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 a surface 
vessel or submarine, may not sink or render incapable of navigation a merchant 
vessel without having first placed passengers, crews 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 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 High Contracting Parties invite all other Powers to express their assent to the 
above rules. 

France and Italy deposited their instruments of ratification of Part IV on 
November 6, 1936. Subsequently, because of a problem arising from the 
non-renewal of the London Naval Treaty a number of states adhered to the 
London Protocol of 1936. In addition to the original signatories, Afghanistan, 
Albania, Belgium, Bulgaria, Finland, Germany, Greece, Guatemala, Haiti, 
Nepal, Panama, Peru, Saudi Arabia, Sweden and the Soviet Union adhered to 
this Protocol. 

The upshot of all the diplomatic activity was that the parties could be deemed 
to have recognized that the belligerent rights of submarines attacking merchant 



7 Goldie 

vessels, despite their obvious limitations and vulnerabilities, should be no greater 
than those traditionally exercised by surface warships. Their obligations called 
for respect for the safety of non-combatants, prohibited the unnecessary destruc- 
tion of private property, and, further, characterized violations of these rules as 
constituting gross breaches of the rules of international law. On the other hand, 
the proponents of the stigmatization of submarine personnel engaging in the 
indiscriminate sinking, without warning, of merchant ships as pirates jure gentium 
abandoned their arguments in that regard. It should also be noted that aircraft, 
although subject to physical limitations analogous to submarines, were not 
mentioned. To this writer such a lacuna reflects the former Allied Powers' (and 
especially Great Britain's) phobia against the use of submarines as commerce 
raiders. This stemmed from the traumatic experience of Britain in World War 
I when the submarine proved to be the only weapon which threatened her with 
disaster. The fact that disaster was narrowly evaded did little to mitigate the 
trauma and the insecurity resulting therefrom. 

B. The Challenge in the Mediterranean, 1937. 
(1) The Problem 

In the Spanish Civil War, both sides (including Franco's German and Italian 
"sympathizers") sought to employ naval power on the high seas against merchant 
shipping supplying their opponents. The insurgent Franco forces had not been 
recognized as belligerents. Hence, the conflict was not an international war in 
which the contestants enjoyed belligerent rights. Non-participating states there- 
fore took the position that any action by either the government's or the 
insurgents' war vessels in interfering with foreign shipping on the high seas was 
illegal. Accordingly, foreign powers were entitled to use force to protect their 
merchant ships from restraints imposed by the combatants' warships. 

During 1937 newspapers carried reports of the sinking without warning of a 
number of merchant ships of various flags by bombing from aircraft or by 
torpedoes from unidentified submerged submarines. These depredations took 
place in the Mediterranean area and were widely believed to be connected with 
the Spanish civil war. As Professor Finch in an article written at approximately 
that time stated: 

A number of merchant ships of various nationalities have been bombed by 
aeroplanes or attacked by submarines of doubtful identity. All the attacks were 
said to have been without warning and regardless of the fate of the passengers and 
crews, but fortunately there appears to have been but slight loss of life. Whatever 
the identity of the attackers, they were evidently acting in the interest of 
the Spanish insurgent forces. The attacks were obviously of great strategic 
importance in cutting the flow of supplies from Soviet Russia to the Spanish 
Government. . . . England also became aroused over the danger to her "life line" 
through the Mediterranean Sea and demanded protective measures. 



Targeting Enemy Merchant Shipping 8 

These attacks revived demands for the outlawing of this kind of warfare. The 
British Government, in particular, wished to have agreement that officers 
engaging in such hostilities, even when acting under the orders of their 
governments, should be deemed to be pirates. Other states were satisfied with 
the view that the conduct of such operations constituted grave breaches of the 
rules of war and that officers engaging in such tactics, should be tried and 
punished for their acts. 

(2) The Nyon Arrangements 

As a result of the submarine and aircraft attacks in the Mediterranean, several 
European states called for an international conference to deal with the problem. 
The Conference convened on September 9, 1937, at Nyon, France, and within 
five days signed an agreement, known as the Nyon Arrangement. 

In its preamble, the Nyon Arrangement recited that submarine attacks on 
merchant vessels "not belonging to either of the conflicting Spanish parties" had 
occurred and, citing Part IV of the Treaty of London, it added thereto by 
asserting the hitherto unsuccessful British formula that such attacks "should justly 
be treated as acts of piracy." The arrangement obligated the participating states 
to instruct their naval forces to counter-attack and destroy any submarine which 
had attacked a merchant vessel "contrary to the rules of international law referred 
to" in Part IV of the London Treaty of 1930. This instruction was extended, 
in the next article, "to any submarine encountered in the vicinity of a position 
where a ship not belonging to either of the conflicting Spanish parties has 
recently been attacked in violation of the rules referred to in the preceding 
paragraph."' In addition, the Nyon Arrangement created an International Naval 
Patrol to supplement the efforts of individual Mediterranean states. Later, as a 
result of further submarine attacks on merchant shipping, the limiting require- 
ment in provision III was dispensed with and the governments concerned 
(United Kingdom, France and Italy) announced that they would sink "any 
submarine found submerged" in the zones of the Mediterranean placed under 
the signatories' respective control. 

(3) The Geneva Agreement Supplementary to the Nyon Arrangement of 
September 17, 1937 

Despite the diplomatic emphasis on submarines as commerce raiders, sub- 
marines did not provide the only means of attacking merchant ships on the high 
seas in the Spanish Civil War. Shore based aircraft also attacked shipping in the 
Mediterranean. Accordingly, after the conclusion of the Nyon Arrangement, 
ten of the states represented at the Conference convened at Geneva and adopted 

-irv 

an "Agreement Supplementary to the Nyon Agreement"' for the purpose of 
protecting merchant ships against surface and air attack. 

The September 17 Geneva agreement was made an "integral part" of the 
Nyon Arrangement. But there are important differences between the provisions 
relating to submarines and those covering aircraft and surface vessels. While the 



9 Goldie 

Nyon Arrangement provided that submarines seen, or believed to have been 
guilty of, torpedoing merchant ships without warning should be attacked and 
"if possible destroyed," with regard to aircraft, the protecting ships were called 
upon to "open fire" only against planes actually seen to have attacked merchant 
ships. Should patrolling ships actually see surface warships attacking non- 
Spanish merchant ships, those patrol ships should only "intervene to resist" 
further attack. As Padelford points out: 

Patrol vessels were given no mandate by the Supplementary Agreement to 
counter-attack aircraft or surface vessels with a view to their complete destruction. 
No provision was made for the capture of any offending craft or their personnel. 

Padelford's contrast between the different situations permitting action by the 
patrol vessels, and the sanctions that they might lawfully apply to the three 
distinct means of commerce destruction, highlights the concern about sub- 
marines and the British drive to treat their captains and crews as pirates. This 
special hostility to submarines, appeared to blind the parties to the potential of 
aircraft for wreaking havoc on the oceans without also having the capability of 
assuring the safety of their victims. 

The Nyon and Geneva Agreements reflect, in this writer's view, the high 
watermark of the British inter- War campaign to have an international agreement 
that stigmatized indiscriminate submarine warfare as "piracy." This apogee was 
soon left behind in the evolution of submarine weapons, strategies and tactics 
that evolved to answer the belligerents' needs in World War II. 

V. World War II and the Nuremberg International Military Tribunal 



To whatever extent decisions of international tribunals, or of domestic 
tribunals applying international law, have credibility, the decisional law regard- 
ing the German indiscriminate submarine campaign after World War II has 
thrown an ambiguous light on the issue of the acceptance, in practice, of the 
1936 London Protocol. 

A. An Issue of Discrimination? 

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, as has already been indicated, have limitations similar to submarines 
regarding their capability to visit, search and seize ships, and ensure the safety of 
their crews. Possibly this omission could be explained by the fact that the United 
Nations forces themselves engaged in this activity to a greater extent than did 
the Axis Powers. Knowing it to be illegal, the United Nations prosecutors may 
not have wished to have the conduct of their own military planners stigmatized 



Targeting Enemy Merchant Shipping 1 

as war crimes. Or, alternatively, they may have planned their cases that way 
because they felt that long distance blockades had become lawful through general 
practice and acceptance and, further, because such blockades could lawfully be 
enforced by aircraft, limited though they were in ensuring the safety of target 
ships' passengers, papers, and crews. 

B. Judging Submarine Warfare at Nuremberg 

The records of the war crimes tribunals regarding prosecutions for indis- 
criminate sinking of merchant ships by submarines are instructive. The inter- 
War diplomatic campaigns to stigmatize unrestricted submarine warfare as piracy 
were not resumed. That particular cause seemed as extinct now as the dinosaurs. 
Although Admirals Doenitz and Raeder were charged before the International 
Military Tribunal at Nuremberg with waging unrestricted submarine warfare 
contrary to the London Naval Treaty of 1930 and the 1936 Naval Protocol (to 
which Hitler's Germany had acceded), and although charges were brought that 
on or about September 3, 1939, the German U-boat arm began unrestricted 
submarine warfare, the Tribunal was not prepared to find Doenitz guilty for his 
conduct of that form of submarine warfare against British armed merchant ships. 
Perhaps this reluctance arose after the Tribunal received evidence of unrestricted 
submarine warfare in a maritime prohibited zone which the United Kingdom 
had established in the Skagerrak on May 8, 1940, and Admiral Nimitz's answers 
to interrogatories which established that the United States Navy had engaged in 
unrestricted submarine warfare against the Japanese in the Pacific Ocean from 
the surprise attack on Pearl Harbor until the Japanese surrender in Tokyo Bay. 
The Tribunal announced that the sentencing of Doenitz was not assessed on the 
ground of his "breaches of the international law of submarine warfare." 

On the other hand, it should be noted that some brutal 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 the act of 
sinking the victim ship without warning and without giving its crew an 
opportunity to seek relative safety. The war crimes cases arising from both World 
Wars that stand out illustrate the minority situations in which the accused 
resorted to intensified inhumanity. These included: 

1 . The Llandovery Castle (World War I) . In this case the submerged 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 torpedoeing the hospital 
ship the submarine's commander, Patzig, ordered the U-boat to surface and, 
after questioning some of the survivors, fired on them 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. Their pleas of following 



11 Goldie 

superior orders were rejected since "killing defenseless people in life -boats could 
be nothing else than a breach of the law". 

2. The Peleus (World War II). A submarine commander ordered the massacre 
by machine-gun fire of the survivors who were clinging to pieces of wreckage 
from the sunken merchant ship. 

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. 

4. Trial of Helmuth von Ruchteschell (World War II) : The accused was the 
commander of an armed German surface raider. He was charged with commit- 
ting, 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. 

In all the above cases the officers charged were guilty of conduct that involved 
gratuitous and deliberate acts of brutality which went beyond just the sinking of 
the victims' ships without warning and, without more, leaving their crews to 
whatever fate the sea might have in store for them. Although some of the accused 
were called upon to answer before the IMT, their offenses are inherently 
distinguishable from those for which Admirals Doenitz and Raeder went 
unpunished in that they involved gratuitous cruelty not even justifiable in terms 
of collateral damage. 

VI. A "Dip into the Future" 44 

In his book, The Price of Admiralty, John Keegan provides masterly descriptions 
of the Battle of Midway 4 and the Battle of the Atlantic of World War II. 46 After 
a carefully reasoned comparison of air power and the effectiveness of the true 
submarine, namely the nuclear powered boat (which he designates as "the 

A~7 

ultimate capital ship" ) he determined, in his luminous chapter entitled "Con- 
elusion: An Empty Ocean," that: 

In a future war the oceans might appear empty again, swept clear both of merchant 
traffic and of the navies which have sought so long to protect it against predators. 
Yet the oceans' emptiness will be illusory, for in their deeps new navies of 
submarine warships, great and small, will be exacting from each other the price 
of admiralty. 

Insightful as these closing sentences are, one may have a sense that they are 
predicated on a notion of the use of force at sea which has escalated into total, 
indeed totalitarian, war. It assumes a desperate diversion of national resources 
involving the total effort of a wealthy, highly developed country into complex 
submarine fighting and logistical systems. Imagine, for example, the magnitude 



Targeting Enemy Merchant Shipping 1 2 

and the cost of supplying, in times of war, such countries as Britain or Japan by 
a submarine merchant service whose convoys, would have to be protected by 
further investments in armed submarine escorts of many sizes deploying a 
diversity of weapons systems. A similar investment might well be necessary to 
provide logistical support for United States combat forces serving in battle, for 
example, in Europe, Australia and Oceania, South America or on some part of 
the Asian mainland. 

This other glimpse of the future is surely predicated upon a world embroiled 
in a type of total war whose ruthlessness would render the maritime contests in 
World War II relatively temperate by comparison. Service in the depths of the 
ocean, whether mercantile or combat, would leave no place at all for "the sea's 
fellowship." Every vessel could become an inescapable coffin for all who sailed 
in her. 

Short of such a desperate sacrifice of human and economic resources, limited 
three dimensional wars may well be fought on the- : SUrface of the seas, in the 
deeps and in the air — with ancillary activities in outer space. Perhaps one may 
argue that, because of the challenges of such a total war as John Keegan envisions, 
whatever resort to force may occur may well be self-limiting or limited by a 
refusal to commit additional resources, or finally limited from outside by 
international groups or alliances acting in the enlightened self-interest of the 
generality of mankind. 

Be that as it may, in the quite recent past, several wars involving fighting at 
sea, namely the India-Pakistan War (1971), the Falklands (Malvinas) Conflict 
(1982) and the Persian Gulf Tanker War (1982-88) illustrate that limitations do 
occur. In the India-Pakistan conflict there was very little interest from the point 
of view of maritime warfare law except for the short-lived blockade (or rather 
proclamation of a blockade) of Pakistani ports which O'Connell viewed as "so 
aberrant in its purposes and enforcement as to offer scant lessons."' As 
O'Connell points out, there was "no investment of Pakistan ports, nor even 
visitation on the high seas, but neutral ships were attacked en route to Pakistan." 

A. The Falklands (Malvinas) Conflict, 1982 

In two of the conflicts mentioned above, namely the Falkland Islands Conflict 
(1982) 54 and the Persian Gulf Tanker War (1982-1988), 55 the contests were 
limited as to space, and to some extent, weapons. But the limitations worked 
out in very different ways. In the 1982 Falkland Islands (Malvinas) Conflict a 
number of exclusion zones were proclaimed (seven in all). These seemed, in 
general, to be guided by a felt need on the part of both parties to the war to 
establish an arena, or a ring, inside of which, apart from the need of the British 
fleet to protect itself as it approached the battle zone, the struggle was largely 
contained. The British declarations and the first two Argentinean zones reflected 
the desire of both sides to limit the conflict to the Islands and to the seas around 



13 Goldie 

them. The British resort to maritime exclusion zones was to further their strategy 
of retaking and defending the Islands. Their strategy was, in part, executed by 
raiding combat tactics conducted within the various exclusion zones. On the 
other hand, the Argentinean invocation of such zones (except her third, her May 
11, 1982, proclamation of a "South Atlantic War Zone**) was for the purpose 
of reinforcing her persisting holding tactics once her raiding strategy had netted 
her control over the disputed islands. This appeared to be a corollary to the claim 
that each of the parties asserted that it was merely exercising its right of 
self-defense, and was limiting its use of force to expelling its adversary from the 
islands it claimed, or to prevent that adversary from permanently establishing a 
possessory authority over them. 

The British first announced a Maritime Exclusion Zone (MEZ), on April 9, 
1982, to take effect on April 12, 1982. The prohibited zone was the area enclosed 
by a two-hundred-nautical-mile radius drawn 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. On the 
following day Argentina responded by establishing a two hundred mile zone off 
its coast and around the "Malvinas" (Falkland) Islands. Since the approaching 
British fleet was still some distance from the Islands, 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 HMS 
Superb was on station in the area of Puerto Belgrano and the Falklands. The fact 
that HMS Superb was at Holy Loch, Scotland, at the time may give rise to the 
question whether the British "blockade" complied with the Declaration of 

CO 

Paris. 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 vessels. 

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 engaging in surveillance of 
these British forces will be regarded as hostile and are liable to be dealt with 
accordingly. 

In essence, this declaration created a moving "Defensive Bubble" around the 
British forces deploying to the South Atlantic. 



Targeting Enemy Merchant Shipping 1 4 

On April 28, 1982 the British Government announced its Total Exclusion 
Zone (TEZ), to take effect on April 30, 1982. 61 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 by Argentine forces]." 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 form the Ministry of Defence in London will be 
regarded as operating in support of the illegal occupation and will therefore be 
regarded as hostile . . . 

When on May 2 the British submarine Conqueror torpedoed and sank the 
Argentine cruiser General Belgrano some 30 miles outside the April 12 and 28 
zone, the British Government experienced criticism for apparently violating its 
own self-imposed geographical limits to the conflict, it justified the attack on 
basis of the April 23 ("Defensive Bubble") declaration rather than the MEZ and 
TEZ declarations. As stated by Minister of Defense Nott in Parliament: 

That zone [i.e., the TEZ proclaimed on April 28, 1982] was not relevant in this 
case. The General Belgrano was attacked under the terms of our warning to the 
Argentines some ten 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. 

Finally, it should be noted that in all her announcements of the delimitations 
of her specific zones, Great Britain still continued to insist that it was without 
prejudice to her general right of self-defense under Article 51 of the United 
Nations Charter. Criticism of the Belgrano attack may be further seen as 
paradoxical since at the time of the sinking, the Argentine forces were occupying 
the Islands and the British forces were forcibly attempting to terminate that 
possession. 

The United Kingdom's Ministry of Defense announced on May 7, 1982, that 
because hostile forces "can cover undetected, particularly at night and in bad 
weather," the distances involved in resupplying the Argentine forces on the 
Falkland Islands, or taking other hostile action, any "Argentine warship or aircraft 
found more than twelve miles from the Argentine coast" will be treated as 
hostile. The Soviet Union, without protesting against 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 the high seas closed to ships and craft of other countries.'" On this 
Professor Levie has commented: 



15 Goldie 

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. 

An analogous criticism of this Soviet protest is that there was an adequate 
ratio of force to space and time for the purpose of carrying out the enforcement 
of the British maritime exclusion zones. Furthermore, the proclamation ap- 
peared to have been enforced by persistent holding, rather than raiding, 
tactics — a further consideration in its favor. Finally, in the sense that this 
proclamation, like its predecessors, was seeking to limit the area of hostilities, it 
exhibited a wise resort to economy of force as well as a desire not to unleash the 
horrors of war in an indiscriminate manner. 

After the Argentine forces on the Falkland Islands had surrendered, Great 
Britain lifted the Total Exclusion Zone on 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 United States domestic 
litigation. In Amerada Hess Shipping Corp. v. Argentine Republic 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. 
The United States Second Circuit Court of Appeals noted that she was: 

[I]n international waters, well outside the "exclusion zones" declared by the 

71 

warring parties. 

While this 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." Indeed, this 
last zone, regardless of the bombing of the Hercules, fails the tests of 



Targeting Enemy Merchant Shipping 1 6 

reasonableness, proportionality, clarity of definition and self-defense. 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. This last proclamation, and the unhappy event 
following from it, did nothing to assist Argentina in her attempt to establish 
possession of the islands she claimed. By extending the scope of the contest to 
include an unoffending neutral merchant ship that clearly could not have been 
carrying war supplies to the British forces, and by expanding the area of her war 
zone, Argentina could have risked the possibility (improbable as it was under 
the concrete circumstances of the situation) of escalation, both as to parties and 
area. 

B. The Persian Gulf "Tanker War" 1982-1988— A Contrast 

The Iraq-Iran war began with the border clashes in June-August 1980, leading 
to full scale land fighting on September 21, 1980. The Persian Gulf Tanker 
War may be said to have begun with the Iraqi declaration on August 12, 1982 
of a prohibited war zone at the northern end of the Persian Gulf (north of 29° 

*7 A 

03* North). In contrast with the Falklands (Malvinas) Conflict, which took 
place in an unfrequented and secluded part of the world, the Persian (or Arabian) 
Gulf War was fought in one of the world's busiest waterways. The original Iraqi 
prohibited war zone essentially 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 in random air 
raids having the object of inhibiting Iranian shipping in the Gulf. Subsequently, 
the zone's perimeters were enlarged to include the key Iranian oil installations 
on Kharg Island. In February 1984, the zone was expanded to include the area 
within 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 income she 
needed from oil exports in order to purchase war material 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 had enabled Iraq and other Gulf 
countries that were subsidizing Iraq's war effort to earn the money needed to 
defray Iraq's cost of waging the war. Unlike Napoleon's policy, which sought 



17 Goldie 

an unlimited geographical scope (and was limited only by his lack of sea power) 
this prevention of trade was executed by seeking to interdict 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 to the foregoing, Iran also established prohibited zones off the 
shores of Iraq's supporters in the war. For example, this was done to Kuwait and 
the United Arab Emirates in the hope of reducing their oil revenues and hence 
their contributions to Iraq's war effort. Responses to Iranian attacks launched in 
support of this policy included the United States policy of reflagging of Kuwait's 
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 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 oil from Kuwait and 
from other supporters of Iraq. Be that as it may, the parties' motives for resorting 
to proclaiming their prohibited or war zones were not for the purpose of setting 
geographical limits to the fighting. Rather, their zones were used offensively, 
and the only limits imposed on the geographical extent of the fighting were the 
physical limitations of the parties' weapons and platforms. Neither party set any 
limits as to the states whose flags they were likely to attack. 

C. A Brief Reprise and Review 

The thesis of the present paper includes an argument that the starkness of 
modern three dimensional maritime contention may, except in the most 
desperate circumstances where escalation may prove especially difficult to 
control, impose limits to the contest. While the contestants themselves may see 
their self-interest in limiting fighting both geographically and as to parties, 
neutrals will have an even stronger motive to "keep the ring." One device that 
has been used in order to set geographical limits to a contest is the use, by the 
contestants themselves, of war or exclusion zones. This, it is suggested, is a novel 
employment of an old and familiar, if controversial, device. The Falklands, 
(Malvinas) Conflict provides a recent example. By contrast, the Persian Gulf 
Tanker War does not give any evidence of a similar exercise of self-restraint, by 
either party. The restraints that did exist, such as they were, were imposed by 
the economic limitations of the parties, and by the relatively limited range of 
weapons and means and methods of fighting at their disposal. 



Targeting Enemy Merchant Shipping 1 8 
VII. "Starvation Blockade" 

The long distance blockades against Germany and her allies in both World 
Wars have been stigmatized by a number of writers as "starvation blockades" by 
reason of the inclusion of fuels, forage and foodstuffs in the categories of 
conditional contraband and the shift of many consumer goods from conditional 
to absolute contraband such that the distinction between the two forms became 
eroded. Indeed, as a result of that erosion and as the list of contraband goods 
has so dramatically been extended, the principle of distinction has ceased to have 
utility. As Professor Tucker tells us: 

[Occasionally the argument has been pressed that a belligerent in endeavoring to 
seize all goods destined to an enemy state, including goods intended for consump- 
tion by the civilian population, thereby violates the principle requiring a distinc- 
tion to be drawn between the treatment of combatants and non-combatants. 

Professor Tucker does not agree with this charge. His response distinguishes 
between direct attacks against civilians and situations where civilians, in cases of 
blockade, may collaterally suffer from the effects of war along with the com- 
batants. ' Of course, the case of neutrals is quite distinct. Added to the 
uncertainty of the law in principle is the difficulty comprised in the indeter- 
minacy of the criterion of "ultimate enemy destination." This problem was 
finessed by the British by means of their "rationing" of neutrals and their 
"navicert" systems, and by "blacklisting" merchants who traded with Germany 
and the European Axis Powers generally in World War II. The net effect of 
this form of economic warfare was, in World War I, to leave a relatively meager 
supply of foodstuffs and raw materials for the internal consumption of the 
populations of the states that neighbored Germany. Without such restrictions, 
those neighbors could have served as transit points to meet all of Germany's 
needs. This neutral commerce, moreover, would quite clearly have been 
conducted at very favorable prices. It was such reasons as these that induced the 
Entente Powers to refuse to ratify the Declaration of London of 1909, despite 
their original inclination to favor it. They found, on analysis, that Germany and 
Austria could receive foodstuffs by transhipment through the neutral state of the 
Netherlands via the Rhine River, since the Netherlands Government took the 
position that her declaration of neutrality and her participation in the Conven- 
tion of Mannheim regulating the navigation of the Rhine prevented her from 
stopping such trade. The advantages to the neutral states of the navicert system 
and the policy of "rationing" was the avoidance of losses through delays at the 
belligerents' contraband control centers. 

The Central Powers In World War I and the Axis Powers in World War II 
also sought to bring England to her knees by the logistical strategy of unrestricted 
submarine warfare. This strategy was unsuccessful because to be effective it 



19 Goldie 

required a holding strategy — a capability of holding the "chokepoints" in which 
the interdiction of ships and cargoes would be completely successful. 

The two World Wars were total or "totalitarian" wars. They came to involve 
almost all the Powers and all, or almost all, of their populations and resources so 
that each of them strained every resource to ensure victory. As the contest 
increased in intensity, resort was made to additional and more ruthless means 
and methods of fighting as the conflict escalated. Hence the starvation blockades 
by both sides were justified by each as reprisals for wrongdoing by their adversary. 
But an analysis that placed reliance on reprisals, per se, as the rationale for the 
escalation in the "hardness" displayed by each side, overlooks the stark realities 
of those wars. For each side, the war was, in a very real sense, "to the death," 
and because more and more of each nation's resources were sucked into the 
fight, the escalation became a function of each side's desperation. Reprisals were 
merely a justification for both sides' next step into the abyss of totalitarian war. 
They were simply legal masks for improving the image of the party resorting to 
them and for denigrating his opponent. But these escalations were almost 
independent of moral and legal considerations, despite the commitment of one 
side to the restoration of international legality and morality as a "war aim." 

Article 54, paragraph 1, of Protocol I, provides: "[starvation of civilians as a 
method of warfare is prohibited." In his comments on this article Dr. Elmar 
Rauch states that the "arguments put forth by Prime Minister Churchill in the 
British Parliament would be no longer tenable." This writer doubts whether 
Dr. Rauch's position is tenable, given the modalities and conditional phrases and 
implications in the remaining four paragraphs of article 54. To pursue such an 
analysis is, however, beyond the scope of this paper. Rather the thought here 
offered is that, in the event of totalitarian war involving the greater part of this 
planet, modes of fighting will escalate so that the "hardness" advocated by 
Admiral Doenitz will prevail. The justification of such an escalation may well 
be, for both sides, appeals to reprisals as responses to their adversaries' alleged 
previous illegal conduct. In such a situation, John Keegan's version of a silent, 
and lethal underwater contest could become a reality. The sightlessness of such 
a form of battle would leave civilian populations ashore at the mercy of whatever 
supplies the underwater barge-trains of cargo carriers could bring past an enemy's 
interdiction forces. 

In fighting on a more limited scale, however, or where enforcement measures 
may be resorted to under Chapter VII of the United Nations Charter, it would 
appear unlikely that anything approaching the type of starvation blockade that 
both sides resorted to in World Wars I and II, and was envisaged in paragraph 
I of Protocol I's Article 54, would eventuate. 

With regard to resort to submarine warfare in such conflicts, Professor 
Mallison, for example, has observed that "although submarines are dejure entitled 
to combatant status, they are not extensively employed in limited war." On 



Targeting Enemy Merchant Shipping 20 
the other hand the British bluff, with regard to the nuclear submarine Superb 

87 

and that country's effective use of H.M.S. Conqueror, in the Falklands (Mal- 
vinas) Conflict should not be overlooked. But, it should be pointed out, that 
country did not use her submarine service for raiding logistical activities, let alone 
"indiscriminate sinking on sight" policies. 

VIII. Conclusion 

The foregoing brief and impressionistic review has, perhaps too pessimisti- 
cally, seen in the means and methods that are available today an increasing stress 
on the "killing" of ships, aircraft and underwater vessels, rather than on "man 
killing" — leaving the weapons and platforms damaged but not totally 
destroyed. With the increase of "ship killing" capabilities, the possibilities, as 
well as the opportunities, of rescue tend to become diminished to a vanishing 
point. Thus Doenitz's "code of hardness" has become technologically inevitable. 
But the enormous investment in fighting wars with the technological monsters 
that increasingly eliminate the human equation may leave situations where states 
resorting to the use of force may prudentially hold back from escalating their 
contest until it reaches such a level of inhumanity. 

In limited contests the traditional norms of rescue, respect for hospital, 
medical and cartel ships, coastal fishing and marketing boats and vessels guaran- 
teed safe conduct, can and may well survive. But it should be pointed out that 
limited contests at sea can be of two kinds: where the parties voluntarily limit 
their goals; and where the means, methods and resources of the combatants are 
limited. In the former situation, as, for example, in the case of the Falklands 
(Malvinas) Conflict, the rules of war were punctiliously observed. Professor 
Levie stressed this point when he characterized that contest as a "gentlemen's 

on 

war." In such wars, "starvation blockades" do not provide useful weapons and, 
as in the Falklands (Malvinas) Conflict, tend not to be resorted to. Yet, in wars 
where the contestants are limited only by their resources, they most probably 
would only be governed by feasibility, the probability of success, and fear of 
reciprocity. Indeed, while minor contests may give rise to "gentlemanly" 
fighting, or, alternatively, escalate into violent and bloody confrontations, it is 
highly probable that in totalitarian wars waged at the cutting edge of human 
beings' technological capabilities, Keegan's comment that "... the suspicion 
grows that battle has already abolished itself," may well turn out to be true. 



21 Goldie 

Notes 

*Professor of Law (Emeritus), Director, International Legal Studies Program, Syracuse University College of 
Law. Former Charles H. Stockton Professor of International Law, U.S. Naval War College, Newport, R.I. 
This paper is written as part of a larger research project which this writer is undertaking on "The International 
Humanitarian Law Applicable to Armed Conflict at Sea." This project has received generous support from 
the United States Institute for Peace and The Ford Foundation. 

Editor's Note: Unfortunately Professor Goldie died before this paper was published. Final editing for publication 
was completed by the staff of the Naval War College. 

1. 2 Winston S. Churchill, The Second World War: Their Finest Hour 598 (1949). 

2. Alfred Thayer Mahan, The Life of Nelson: The Embodiment of the Sea Power of Great Britain 729 
(2nded., 1899). 

3. John Keegan, The Price of Admiralty: The Evolution of Naval Warfare 265 (1988) [hereinafter 
Keegan, Admiralty]. 

4. Keegan, Admiralty, supra note 3, at 91-92; David Howarth, Trafalgar: The Nelson Touch 228-232 
(1968). 

5. Cartel ships, hospital ships and vessels engaged in coastal trading and fishing were exempted so long 
as they took no part in the hostilities. See Julius Stone, Legal Controls of International Conflict 585-87 (1954), 
[hereinafter Stone, Legal Controls], and the many authorities there cited. See also Myres S. McDougal and 
Florentino P. Feliciano, Law and Minimum World Public Order 592-96 (1961), [hereinafter McDougal and 
Feliciano]. Note should be taken of the latter authors' appraisal of the erosion of the exemptions of coastal 
fishing and trading boats in light of modern warfare, id. at 594-95. Also to be noted are those authors' doubts 
of the continued utility in Hague Convention XI of ships engaged in "religious scientific or philanthropic 
missions," id. at pp. 595-596. See also 1913 Oxford Manual of Naval War, arts. 17-18, 31-48, 55-63, and 86 
[hereinafter 1913 Oxford Manual], reprinted in The Law of Armed Conflict 857-75 (Dietrich Schindler & Jiri 
Toman eds., 1988) [hereinafter Schindler and Toman]. 

6. See, e.g., 1913 Oxford Manual, supra note 5, arts. 55-63, 70-73 and 84. See also, generally, the authorities 
cited in supra note 5. 

7. See Claude H.M. Waldock, The Release of the Altmark's Prisoners, 24 Brit. Y. B. Int'l L. 216; Stone, 
Legal Controls, supra note 5, at 394-95 and the authorities cited therein; and Branson MacChesney, 51 Naval 
War College International Law Studies, International Law Situations and Documents 1956, at 5-48 (1957). 

8. The qualifier "necessary" here needs explanation. Thus, for example, O'Connell points out that "many 
acts would be illegal even if required for the submission of the enemy with the greatest economy of time, life 
and physical resources." He cites with approval the PELEUS case, 1 Law Reports of Trials of War Criminals 
v. 1-21 (1947) [hereinafter War Crimes Reports], as a case where "[a] British Military Court rejected such a 
plea [i.e., necessity] in the case of the killing of the survivors of a sunken merchant vessel by the captain of a 
German U-boat." 2 Daniel P. O'Connell, The International Law of the Sea 1 106 (Ivan A. Shearer ed., 1984) 
[hereinafter 2 O'Connell, Law of the Sea]. 

9. 9 War Crimes Reports, supra note 8, at 82-90. 

10. 1 Stephen W. Roskill, The War at Sea: 1939-1945, at 548 (1954); Robert W. Tucker, The Law of 
War and Neutrality at Sea, 50 International Law Studies 140 at n. 37 (1957). For a commentary on the legality 
of this incident in terms of ruses de guerre, see Joachim Von Gosseln, The Sinking of the Sydney, 79 U.S. Naval 
Inst. Proc. 251 (March 1953). 

11. Keegan, Admiralty, supra note 3, at 113. See also Keegan's further quotation, supra, note 3, at 1 13-14. 

12. Id. at 220. See also, for a history of the British diplomatic campaign to outlaw submarines, and the 
counterarguments to it that were presented by Britain's former allies in World War I, especially France and 
Italy, W. Thomas Mallison, Jr. Studies in the Law of Naval Warfare: Submarines in General and Limited Wars, 58 
U.S. Naval War College International Law Studies 1966, at 34-50 [hereinafter Mallison]. 

13. Treaty of Peace Between the Principal Allied and Associated Powers, of the One Part, and Germany, 
of the Other Part, signed at Versailles, June 28, 1919, 25 Consol. T.S. 188 at 276. 

14. Thereafter, under the London Naval Treaty of 1936, submarines were limited in size to 2,000 tons 
or less and, as to their armament (apart from torpedoes), they were limited to guns of 5.1 inches; see Mallison, 
supra note 12, at 47. 

15. Treaty Relating to the Use of Submarines and Noxious Gases in Warfare, reprinted in 16 Am. J. Int'l 
Law 57-60 (Supp.) (1922). 



Targeting Enemy Merchant Shipping 22 

16. Treaty For the Limitation and Reduction of Naval Armaments (Part IV, Article 22, Relating to 
Submarine Warfare), reprinted in 25 Am. J. Int'l Law 78 (Supp.) (1931). 

17. Id. 

18. The Treaty provided, in article 23, that "Part IV shall remain in force without limit of time," but the 
Treaty's lapse created perceived political insecurities with regard to the continued honoring of Part IV by states 
whose maritime interests might be better served by unrestricted submarine warfare than by the international 
legal protections accorded by Part IV to large and vulnerable merchant marines. 

19. The United States, Great Britain and the British Dominions, France, Italy and Japan confirmed their 
adhesion to Part IV and expressed the hope that the rules it contained should be accepted by as great a number 
of adherents as possible. 

20. Proces- Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of 
London of 22 April 1930, reprinted in 31 Am. J. Int'l Law 137 (Supp.) (1937). 

21. See the reports cited in George A. Finch, Editorial Comment: Piracy in the Mediterranean, 31 Am. J. Int'l 
Law 659-65 (1937) [hereinafter Finch], See also 2 Green Haywood Hackworth, Digest of International Law 
692 (1941). 

22. Finch, supra note 21, at 659. 

23. This British characterization of such officers as pirates indicates a revival of World War I attitudes that 
were reflected, for example, in the case of the Baralong, British Parliamentary Papers, Misc No. 1 (1916) [Cd 
8144], reprinted in 10 Am. J. Int'l Law 79-86 (Supp.) (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. The German Government demanded 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 that the facts justified the executions as retaliation against the ruthlessness of 
Germany's U-boat policy of unrestricted sinking of merchant ships, took no further action against the Baralong' s 
company. 

24. "The Nyon Arrangement," (also known as the "The Nyon Agreement"), reprinted in 31 Am. J. Int'l 
Law 179 (Supp.) (1937) [hereinafter The Nyon Arrangement]. 

25. Supra note 16, and accompanying text. 

26. The Nyon Arrangement, supra note 24, provisions I— II. See also Norman J. Padelford, International 
Law and Diplomacy in the Spanish Civil Strife 42 (1939) [hereinafter cited as Padelford]. 

27. The Nyon Arrangement, supra note 24, provision III. 

28. The Nyon Arrangement, supra note 24, provision IV. 

29. Padelford, supra note 26, at 49. 

30. Agreement Supplementary to the Nyon Agreement, done at Geneva, Sept. 17, 1937, reprinted in 31 
Am. J. Int'l Law 183 (Supp.) (1937). The preambular language of this Agreement indicates the parties' intention. 
It read as follows: 

Whereas under the arrangement signed at Nyon on 14 September 1937, whereby certain collective 
measures were agreed upon relating to piratical acts by submarines in the Mediterranean, the 
participating Powers reserved the possibility of taking further collective measures; and 

Whereas it is now considered expedient that such measures should be taken against similar acts by 
surface vessels and aircraft . . . 

31. Id. provision I. 

32. Id. provision III. 

33. Id. 

34. Padelford, supra note 26, at p. 35. 

35. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, reprinted in 
Am. J. Int'l Law 257, 258 (Supp.) (1937). 

36. These charges did not go uncontested. See, e.g., Argument of Kranzbueler (Counsel for defendant 
Doenitz) ofjuly 15, 1946 in Trial of the Major War Criminals Before the International Military Tribunal 315 
[hereinafter Trial of the Major War Criminals], referring to "the great struggle which took place between the 
U-boats, on the one hand, and the armed merchant vessels ... on the other hand, as equal military opponents." 
The date of September 3, 1939, was chosen as not only being that of the first day of World War II, but, more 
significantly perhaps, that of the sinking of the British passenger liner Athenia. The U-boat commander (Lemp 
of U-30) claimed that he mistook the ship for a trooper. She was, in fact, loaded with civilians, including 316 
Americans returning home. At the time of the sinking, indeed, the German Navy had promulgated orders 
against sinking without warning and half the U-boats on patrol at that time were withdrawn and U-30's log 
was "doctored to disguise the incident." Keegan, Admiralty, supra note 3, at 226. 

37. 22 Trial of the Major War Criminals, supra note 36, at 559. 



23 Goldie 

38. This was one of the notorious "Leipzig War Crimes Trials" held in Germany in 1921. See 16 Am. J. 
Int'l Law 708 (1922). 

39. Id. at 722. This case should be contrasted with the Dover Castle, id. at 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. at 708. It should be noted that this latter case was distinguished from the Uandonery 
Castle also on the ground that the commander did not, as did Patzig, the commander of U-boat 82, order the 
massacre of the survivors in lifeboats, or those on, or in the water and clinging to rafts and wreckage. See also 
2 Lassa Oppenheim, International Law - A Treatise, 569 (H. Lauterpacht ed., 7th ed. 1952). On the German 
Government's and High Command's policy, and orders, of sinking hospital ships on sight, see id. at 504-506 
n. 2. See also the British refusal to recognize the immunity of German seaplane ambulances in the English 
Channel rescuing German airmen. Id. at 506-507. 

40. The defenses of the "Laconia Order" (superior order commanding the killing of survivors of torpedoed 
ships) and of necessity were rejected. See War Crimes Reports, supra note 8, at 1-21. 

41. 9 War Crimes Reports, supra note 8, at 75-82. This case also involved the "Laconia Order." 

42. 9 War Crimes Reports, supra note 8, at 82-90. 

43. See Tucker, supra note 10, at 72 n. 56. Tucker writes regarding the accused, Helmuth von 
Ruchteschell: 

According to S. W. Roskill, with the one exception noted above [i.e., Helmuth von Ruchteschell], 
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) 

44. From Tennyson's "Locksley Hall" line 119: 

For I dipped into the future, far as human eye 

could see 
Saw the vision of the world, and all the wonder 

that would be; 
Saw the heavens fill with commerce, argosies of 

magic sails, 

Heard the heavens fill with shouting, and there 

raised a ghastly dew 
From the nations' airy navies grappling in the 

central blue. 

Alfred Lord Tennyson, Locksley Hall, The Works of Alfred Lord Tennyson, 98, 101 (Complete ed. 1894). 
See also Keegan, Admiralty, supra note 3, at 157. 

45. Keegan, Admiralty, supra note 3, at 157-211. 

46. Id. at 213-265. 

47. Id. at 274. 

48. Id. at 266-75. 

49. Id. at 275. 

50. The term "totalitarian war" is taken from Herbert A. Smith, The Crisis in the Law of Nations 75 
(1947), where he wrote: 

We must accept the fact that under modem conditions all wars, great and small alike, have become 
totalitarian, in the sense that every belligerent state will in the future find it necessary to mobilize its 
entire population and all its material resources for its war effort. If that is so, the distinctions so carefully 
drawn by the earlier law, in themselves entirely reasonable in their own day, have now become obsolete 
and the law must reconcile itself to this fact . 

While the concept of "totalitarian war" is, indeed, very useful, this writer dissents from Professor Smith's 
sweeping pessimism. A number of "small" wars have occurred in the recent past in which the belligerents 
have not found it necessary to mobilize their entire populations and all their material resources for their war 



Targeting Enemy Merchant Shipping 24 

efforts. Two examples that spring to mind are the Falklands (Malvinas) Conflict of 1982 and the Indo-Pakistan 
Conflict of 1971. 

51. In envisioning the land battles of the future, John Keegan writes: 

Impersonality, coercion, deliberate cruelty, all deployed on a rising scale, make the fitness of modern 
man to sustain the stress of battle increasingly doubtful. 

John Keegan, The Face of Batde 325 (1976) [hereinafter Keegan, The Face of Battle]. 

52. 2 O'Connell, Law of the Sea, supra note 8, at 1154. 

53. Id. at 1 154-55. See also Daniel P. O'Connell, The Influence of Law on Seapower 129-130, 160 (1975). 

54. 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 exclusion 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 W. J. Fenrick, The Exclusion Zone Device in the Law of Naval Warfare, 24 
Can. Y.B. Int'l L. 91, 109 (1987) [hereinafter Fenrick]. This writer believes that, at least in part, the 
proclamation of these zones (except for the ill-advised last one to be 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), rev'd sub. nom, Argentina Republic v. Amerada Hess Shipping 
Corp., 488 US. 428 (1989) — helped to restrict the conflict to the disputed territory and localize the fighting. 
This writer agrees completely with Professor Howard Levie's comment in his contribution The Falklands Crisis 
and the Laws of War, which is contained in The Falklands War: Lessons for Strategy, Diplomacy and 
International Law 64, 76 (A. Coll & A. Arend eds., 1985) [hereinafter 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 and 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. . . . 

55. 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. Unlike The Falklands (Malvinas) Conflict, the Iran-Iraq war, 
although limited as to participants and area of conflict, did not evidence restraints as to means and methods of 
warfare, nor in the treatment of prisoners. 

56. See infra notes 70-72 and accompanying text. 

57. United Kingdom Materials on International Law - 1982, 53 Brit. Y.B. Int'l L., 337, 539 (G. Marston ed., 
1983) [hereinafter Marston]. 

58. See Art. 4, Declaration Respecting Maritime Law, done at Paris, April 16, 1856, reprinted in Schindler 
and Toman, supra note 5 at 787-88. 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. 

59. Levie, supra note 54, at 65. 

60. Marston, supra note 57, at 540-41 who quoted from a letter of April 24, 1982 from the Permanent 
Representative of the United Kingdom to the President of the United Nations Security Council (S/ 14997). 

61. Id. at 542. See also, Fenrick, supra note 54, at 113. 

62. Marston, supra note 57, at 542. 

63. Id. 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, see id. 
at 546. 

64. Id. at 549. See also Levie, supra note 54, at 66. A further example of the British enforcement of the 
"Defensive Bubble" was the sinking of the Argentine fishing vessel 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, The Falklands Conflict 104 (1982), 104. See also 
Levie, supra note 54, at 67. 

65. Marston, supra note 57, at 549. 

66. Id. 

67. Quoted in Levie, supra note 54, at 66. 

68. Id. 



25 Goldie 

69. 830 F.2d 421 (2d Cir. 1987), rev'd sub. nom. Argentina Republic v. Amerada Hess Shipping Corp., 109 S. 
Ct. 683 (1989). This reversal was on the ground that the Foreign Sovereign Immunities Act of 1976, 28 
U.S.C. §§ 1330, 1332, 1391, 1441, 1602 et. seq. provides the sole basis of jurisdiction in such cases and, that 
under that Act, Argentina was immune from suit in the United States. 

70. 830F.2d421,423. 

71. Id. 

72. 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 25, 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) that would be traversing the South 
Atlantic, to ensure that these neutral vessels would not be attacked. The list included Hercules. 

See also the Second Circuit's comment that "it is beyond controversy that attacking a neutral ship in 
international waters, without proper cause for suspicion or investigation, violates international law." Id. at 424. 

73. See 27 Keesing's Contemporary Archives 31006 (Aug. 7, 1981) [hereinafter Keesing's]. 

74. 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. See Keesing's supra note 73, at 31015-31016 and 28 Keesing's supra 
note 73, at 31517 (June 4, 1982). For an outline of the events concerning the exclusion zones in the Persian 
Gulf Tanker War, see Fenrick, supra note 54, at 116-22; and Ross Leckow, The Iran-Iraq Conflict in the Gulf: 
The Law of War Zones, 37 Int'l & Comp. L. Q. 629 (1988). 

75. See, for an insightful discussion of the implications of Napoleon's Berlin Decree of November 21, 
1806, 1 Alfred Thayer Mahan, Sea Power in its Relation to the War of 1812, at 141-150, 169-173 (1905), 
(Note especially the treatment of the U.S. merchant ship Horizon by the French authorities and Mahan's 
comment that "[t]he geographical sweep intended to be given to the [Berlin] edict was manifested by the 
action of state after state, whither arms had extended Napoleon's influence.") 

76. Thus, Stone, in Legal Controls, points out, with approval, that in the Jurko-Topic, 1 LI. P.C. 89, 91 
(1941), the British Crown was arguing that "in relation to a totalitarian enemy, the line between absolute and 
conditional contraband was in any case undistinguishable." Stone, Legal Controls, supra note 5, at 482. See 
also id. note 27 for citations to numerous authorities supporting this position. See also The Commander's 
Handbook on the Law of Naval Warfare (NWP9) (Rev.A) (FMFM 1-10) 1989 para. 7.4.1 which states, inter 
alia, that: 

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 ... As a result, belligerents 
considered goods as absolute contraband which in earlier conflicts were considered to be conditional 
contraband. 

See also Tucker, supra note 10, at 269 n. 10, where he points out that "by 1915 Germany had declared 
that almost every port in the British Isles was either a 'fortified place' or a base for serving the armed forces." 
He further points out that this action abandoned "the distinction between absolute and conditional 
contraband ..." Id. 

77. Tucker, supra note 10, at p. 278. 

78. Professor Tucker points out that the principle of distinction could apply where a "reasonably clear 
distinction can even be drawn between the combatant and the civilian enemy population." Id. at 278 n. 37. 
A major argument of Professor Tucker's book is that the impact of total (or totalitarian) war has effectively 
obliterated the possibility of making this distinction in the factual, evidentiary, sense as well as in the legal 
sense. 

79. On "navicerts" and the "rationing" of neutrals, see, e.g., G. G. Fitzmaurice, Some Aspects of Modem 
Contraband Control and the Law of Prize, 82 Brit. Y.B. Int'l L. 73, 89 (1945); Neill H. Alfordjr., Modem Economic 
Warfare (Law and the Naval Participant), 56 International Law Studies 363-415 (1967); Stone, Legal Controls, 
supra note 5, at 505-07; McDougal & Feliciano, supra note 5, at 509-19; 2 O'Connell, Law of the Sea, supra 
note 8, at 1147-48. Professor O'Connell's definition at 1148 should be noted: 

A navicert is in the nature of a commercial passport, assuring cargoes free passage through 
contraband control, and so avoiding interferences with neutral ships, or at least avoiding delay in 
investigation of neutral cargoes. A guarantee had to be deposited that goods so covered would not 
directly or indirectly reach enemy territory. 



Targeting Enemy Merchant Shipping 26 

80. On "blacklisting" see McDougal & Feliciano, supra note 5, at 518-19. See also id. for the practice of 
"preemption" and other, less lawful, forms of economic warfare. 

81. Declaration Concerning the Laws of Naval Warfare, done at London, Feb. 26, 1909, reprinted in 
Sc handler and Toman, supra note 5, 843-56. 

82. For a thorough analysis of this issue, see Louis Guichard, The Naval Blockade: 1914 - 1918, at 16-18 
(C. R. Turner trans, ed., 1930). 

83. Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of the 
Victims of International Armed Conflicts (Protocol I), signed Dec. 12, 1977, entered into force Dec. 7, 1978, 
reprinted in Schindler and Toman, supra note 5, at 621-88. 

84. Elmar Rauch, The Protocol Additional to the Geneva Convention for the Protection of Victims of 
International Armed Conflicts and the United Nations Convention on the Law of the Sea: Repercussions on 
the Law of Naval Warfare 93 (1984) [hereinafter Rauch]. 

The "argument" referred to was Churchill's statement in the House of Commons on Aug. 20, 
1940. He stated: 

There have been many proposals founded in the highest motives that food should be 
allowed to pass the blockade for the relief of these populations [i.e., the populations of the 
occupied territories]. I regret that we must refuse these requests. Many of these valuable foods 
are essential to the manufacture of vital war materials. Fats are used to make explosives. Potatoes 
make the alcohol for motor spirit. The plastic materials now so largely used in the construction 
of aircraft are made of milk. If the Germans use these commodities to help them bomb our 
women and children rather than to feed the populations who produce them, we may be sure 
imported foods would go the same way, directly or indirectly, or be employed to relieve the 
enemy of the responsibilities he has so wantonly assumed. 

Quoted in Rauch, id. at 89-90. 

85. Mallison, supra note 12, at 53. 

86. See supra note 58 and accompanying text. 

87. With regard to the legal issues involved in the sinking of the Argentinean heavy cruiser General Belgrano 
by H.M.S. Conqueror, see supra notes 63-64. 

88. These categories of the effects of weapons and tactics as man-killing" and "ship-killing" are based on 
Keegan, Admiralty, supra note 3, at 89, 211, 260-65. In effect, in the process, weapons ships (and those that 
sail in them) are destroyed. "Man killing" on the other hand, indicates the possibility of the survival of a ship 
despite numerous human casualties sustained on board. In the latter situation it is more probable that survivors 
can and will be rescued. 

89. Levie, supra note 54, at 76. 

90. For the meaning, and the future vitality, of "low intensity conflict" see L. F. E. Goldie, Low Intensity 
Conflict at Sea, 14 Syracuse J. Int'l L. & Com. 597 (1989). See also the valuable comments made thereon, id. 
at 639-56. 

91. Keegan, The Face of Battle, supra note 51, at 336. 



Chapter II 

Submarine Warfare: With Emphasis on the 
1 936 London Protocol 



A paper by 
Howard S. Levie * 

Comments by 

A. V. Lowe 

D. Fleck 



Targeting Enemy Merchant Shipping 28 

Submarine Warfare: With Emphasis on the 
1 936 London Protocol 



Parti 
Early History of the Submarine 



Although the idea of a submersible boat dates back at least to the early 
seventeenth century, and a number of efforts to perfect such a vessel had 
occurred over the subsequent years, it was not until the latter part of the 
eighteenth century that realistic attempts began to be made in this respect. 
During the American Revolution David Bushnell devised a one-man submer- 
sible known as the American Turtle. Its several attacks against British warships 
were, for one reason or another, all unsuccessful. Then in 1797 Robert Fulton, 
who had been demonstrating his version of the submersible to the French Navy, 
submitted a proposal to the French Directory for the construction and the use 
by his "Nautulus Company" of a submarine against the ships of the British Navy. 
Paragraph Six of that proposal stated: 

And whereas fire Ships or other unusual means of destroying Navies are Con- 
sidered Contrary to the Laws of war, and persons taken in such enterprises are 
liable to Suffer death, it will be an object of Safety if the Directory give the 
Nautulus Company Commissions Specifying that all persons taken in the Nautulus 
or Submarine Expedition Shall be treated as Prisoners of War, And in Case of 
Violence being offered the Government will Retaliate on the British Prisoners in 
a four fold degree. 

It can thus be seen that even in its earliest form, and even when it was to be 
directed solely against warships, the submarine was a controversial weapon. 
Fulton was unable to sell his idea to the French Government. Subsequently, he 
was equally unsuccessful in selling it to the British. 

From the very beginning of the idea of a vessel that would travel under the 
water instead of on the water, it was accepted that if it could be successfully 
developed it would be an asset to small nations, nations which could not afford 
large standing navies. It was assumed that, because of its anticipated short range, 
it would be used primarily for coastal defense. It is, therefore, not surprising to 
find that during the American Civil War the Confederacy developed and built 
this type of vessel to be used against the blockading warships of the Union Navy. 
It was called a David and altogether the Confederate Navy probably constructed 
more than a dozen of them. It was not truly a submersible, because, being 



29 Levie 

propelled by a steam engine, it had to have a constant source of air. Accordingly, 
it moved with its deck awash and an open hatch — not exactly a recommended 
method for safe navigation, and one which resulted in a number of sinkings 
during its trials, with the loss of most of the members of the crews. However, 
on October 5, 1863, one of these boats attacked and damaged the U. S. S. New 
Ironsides. The Confederates also built a true submersible, called the Hurtley, 
propelled by eight members of the crew turning a crankshaft which ran down 
the center for most of the length of the vessel and which was connected to a 
propeller. Its claim to fame is that on February 17, 1864 it sank the U.S.S. 
Housatonic - and itself! It may be said that the David and the Hunley ushered in 
the era of the submarine in warfare — even though at this point the Confederate 
Navy appeared to lose interest in submersibles. 

In the quarter century which followed, numerous other inventions were 
being developed, and tested, in various countries, particularly in France, a 
country which had early exhibited great interest in such a weapon, even though 
it had rejected Fulton's proposal. The first really successful submersible, the 
forerunner of the submarine of today, was built by John P. Holland, an 
Irish-American who, after he had constructed several models, succeeded in 
selling the latest version of the Holland to the United States Navy in 1900, the 
first that it had acquired. At that same period both the United States Navy and 
the Royal Navy placed orders with Holland for the construction and delivery 
of additional submarines; while a number of continental nations were placing 
similar orders with Holland and other inventors. Even Admiral von Tirpitz, head 
of the German Navy, was eventually convinced that the submarine was no longer 
solely a weapon of coastal defense. 

The 1899 Hague Peace Conference 

When, on December 30, 1898, the Ministry of Foreign Affairs of Imperial 
Russia issued its proposed agenda for the 1899 Hague Peace Conference, one 
item thereof stated: 

4. Prohibition of the use in naval battles of submarine or diving torpedo-boats or 
of other engines of destruction of the same nature; 

When the matter was discussed in the Second Subcommission of the First 
Commission of the Conference on May 31, 1899, the German representative 
indicated that "if all the other governments agreed not to adopt vessels of this 
kind, Germany would join in this understanding"; and the Italian and Japanese 
delegates concurred in that statement; the United States delegate indicated that 
his Government "wishes to preserve full liberty ... to use submarine torpedo 
boats or not"; the delegate of Austria-Hungary gave his personal opinion that 



Targeting Enemy Merchant Shipping 30 

"this new invention . . . may be used for the defense of ports and roadsteads and 
render very important services"; the French delegate stated that "the submarine 
torpedo [boat] has an eminently defensive purpose, and that the right to use it 
should therefore not be taken from a country"; the British delegate thought that 
"his country would consent to the prohibition in question if all the great Powers 
were agreed on this point. It would concern itself little as to what decision the 
smaller countries reached"; the Dutch delegate and the delegate of Sweden and 
Norway believed that "the submarine torpedo [boat] is a weapon of the weak, 
and does not think its use can be prohibited." 

In his report the Rapporteur of the Subcommission said 

After an exchange of personal views on the question of submarine torpedo boats 
which enabled several delegates ... to formulate very clear and precise ideas 
regarding the future of this weapon, it is shown that, according to the declarations 
made by a majority of the delegates, a prohibition of the boats in question must 
be considered as very unlikely, at least for the time being. 

His prognostication was confirmed when a vote on the proposal to ban the 

submarine was taken in the First Commission and resulted in five votes (Belgium, 

Bulgaria, Greece, Persia, and Siam) for the prohibition with reservations; five 

votes (Germany, Great Britain, Italy, Japan, and Rumania) for the prohibition 

on condition of unanimity; and nine votes (Austria-Hungary, Denmark, France, 

Netherlands, Portugal, Spain, Sweden and Norway, Turkey, and the United 

States) in the negative. Russia, Serbia, and Switzerland abstained. That ended 

all efforts to ban the submarine at the 1899 Hague Peace Conference. It should 

be borne in mind that at this point in time most naval experts still considered 

that the submarine was a weapon to be used for coastal defense, particularly by 

1 % 
the smaller and weaker nations which did not have strong navies. Little or no 

consideration was given to the fact that the submarine might be valuable as a 
commerce destroyer and on the high seas. Moreover, having failed to ban the 
submarine, inexplicably, no attempt was made to obtain even minimum restric- 
tions on its operations. 

The 1907 Hague Peace Conference 

During the period between the Hague Peace Conferences of 1899 and 1907, 
the major international event in the military area was the Russo-Japanese War 
(1904-1905). No submarines participated in this conflict but, as one author has 
pointed out, even a few Russian short-range submarines could have done 
enough damage to the Japanese to have caused the latter to lift the blockade of 
Port Arthur and even a few of the longer-ranged ones could have effectively 
impeded the landing of Japanese troops in Korea. At that time, however, 



31 Levie 

neither Japan nor Russia had any submarines in their navies. That situation would 

soon change. 

The Russian agenda for the 1907 Second Hague Peace Conference called for 

the "framing of a convention relative to the laws and customs of maritime 

warfare," but contained no specific mention of the submarine. When the 

Fourth Commission of that Conference met for the first time on June 24, 1907, 

its President, de Martens of Russia, said: "We must now do for naval warfare 

what the Second Commission of the last Peace Conference did for land 

1 ft 
warfare." While the Conference did draft a number of conventions with 

respect to war at sea, some good and some not so good, the possibility of drafting 

rules with respect to the use of submarines was not even a subject of discussion. 

Although there is a tendency on the part of writers to refer to the inability of 

both of those Hague Peace Conferences to reach agreement on restrictions on 

the use of submarines, the present author could find only one passing reference 

to the subject in the proceedings of the 1907 Conference. During the lengthy 

discussion of the United States proposal to exempt all private property from 

JO 

capture or seizure at sea the Belgian delegate said: 

A torpedo-boat or a submarine can annihilate in a few moments a magnificent 
vessel representing an enormous outlay and a thousand lives. In 1899 Russia 
proposed that the employment of such engines of destruction be given up, just as 
the poisoning of arms and of springs had been prohibited, and most of the Powers 
seemed ready to adhere to the proposal provided it were accepted unanimously. 
But unfortunately I do not now see any indication among us of such an idea. 

No further mention of submarines could be found. It will, however, be 
appropriate to point out that Article 3 of the 1907 Hague Convention No. VI 
provided that if an enemy merchant ship were to be destroyed "provision must 

be made for the safety of the persons on board as well as the security of the ship's 

"21 
papers. 

1 909 Declaration of London 



Article I of this Declaration stated that "the rules contained in the following 
Chapters correspond in substance with the generally recognized principles of 

'JO 

international law." As the Declaration was intended to be all-inclusive insofar 
as restrictions on maritime trade during the course of a war were concerned and 
as it contained no special rules with respect to submarines, it must be assumed 
that there were at that time still no such rules. That being the case, submarines 
would be bound by the general rules applicable to all warships. Customary 
international law prescribed that, while a warship could be attacked without 
warning, a merchant vessel was a noncombatant which could only be attacked 
after warning and which could only be sunk under exceptional circumstances 



Targeting Enemy Merchant Shipping 32 

and then only after the safety of the passengers and crew had been assured. 
Although the then Lieutenant Rickover wrote in 1935 that "[i]n its official 
correspondence with the United States the German government appears not to 
have questioned the American contention that the rules of international law 
governing surface men-of-war applied also to the submarine,"' during World 
War I Germany actually did take issue with this conclusion. She contended that 
she had chosen to use "a new weapon, the use of which had not yet been 
regulated by international law and, in doing so, could not and did not violate 
any existing rules but only took into account the peculiarity of this new weapon, 
the submarine boat." Contrariwise, Lauterpacht took the position that "[t]he 
novelty of a weapon does not itself carry with it a legitimate claim to a change 
in the existing rules of war."' Strange to relate, in a message of July 18, 1916 
to the British Ambassador in Washington the British Foreign Office said: "The 
first point to be established is that international law ought not to transfer without 
modification to submarines, rules and regulations which work fairly well as 
regards surface vessels." 

It was during the immediate pre-World War I period that Great Britain made 
a decision which was to have far-reaching consequences with respect to the use 
of the submarine as a commerce destroyer and the disregarding of the require- 
ments of warning and of assuring the safety of the passengers and crew. On 
March 26, 1913 Winston Churchill, then First Lord of the Admiralty, an- 
nounced in Parliament the intention of the British Government to arm its 
merchantmen, at the same time asserting that the armaments would be strictly 
defensive and would not change the status of these vessels as noncombatant 
merchant ships, to be distinguished from converted armed merchant cruisers. 
As we shall see, this decision had serious consequences in both World Wars, one 
being the so-called "unrestricted submarine warfare" and the subsequent con- 
troversy as to whether the provisions of the 1936 London Submarine Protocol 
are still binding law. 

Part II 
World War I (1914-1918) 

In World War I the inadequacy of the law of naval warfare with respect to 
the protection of merchant vessels proved to be a matter of prime importance 
for both belligerents and neutrals. It may well be said that while the American 
Civil War was the beginning of the era of the submarine, it only received full 
recognition as a dangerous — and controversial — naval weapon system during 
World War I. 

On August 6, 1914, just a few days after the outbreak of World War I, 
Secretary of State Bryan sent a circular message to the belligerents asking each 
if it would be "willing to agree that the laws of naval warfare as laid down by 



33 Levie 

the Declaration of London of 1909 shall be applicable during the present conflict 
in Europe." Most of the belligerents, including Germany, indicated that they 
would comply with the rules set forth in that Declaration, subject to reciprocity. 
However, Great Britain's decision to adopt these rules was made "subject to 
certain modifications and additions which they adjudge indispensable to the 
efficient conduct of their naval operations."' As a result of the British position, 
the United States withdrew its suggestion. Primary among these British 
"modifications and additions" was a vast increase in the list of contraband items. 
Historically, an enemy merchant ship was a noncombatant which could be 
stopped, visited, and searched in order to examine her papers and to determine 
whether she was carrying contraband, and captured if found to be carrying 
contraband, but which could not be attacked, nor destroyed, except under 
specific and limited circumstances — and then only after the safety of the persons 
aboard had been assured. The lifeboats were not considered to be a place of 
safety unless the weather was moderate and land was within a reasonable distance, 
or another vessel was available which could take the crew and passengers of the 
doomed vessel aboard. For some months after the outbreak of World War I 
German submarines were used almost exclusively in the capacity of warship 
against warship. The few merchantmen which were sunk by German sub- 
marines during this period had suffered their fate in strict accordance with the 
customary law of naval warfare applicable to the sinking of merchant vessels by 
surface warships — they had been stopped by a warning shot, visited and 
searched, found to have contraband aboard, and the safety of passengers and 
crews had been assured before they were sunk. ~ That procedure was not to 
continue. 

On November 3, 1914 the British gave notice that "the whole of the North 
Sea must be considered a military area." 5 The British sea blockade of Germany 
was so effective that the German Navy urged the need to counter it by a 
declaration of a war zone around the British Isles within which all ships would 
be sunk. The Foreign Office opposed such a procedure because of its anticipated 
effect on neutrals and the German Chancellor, Bethmann Hollweg, at first 
agreed with the Foreign Office. However, early in 1915 the German Govern- 
ment determined that it had no alternative but to use the submarine to stop the 

■7-1 

flow of food and essential munitions to the British Isles and on February 4, 
1915 the German Admiralty issued a Proclamation declaring the waters around 
Great Britain and Ireland, including the entire English Channel, to be a "war 
zone" in which, after February 18, 1915, all enemy merchant ships would be 
destroyed without assuring the safety of the passengers and crews — in other 
words, they would be sunk without warning. The Proclamation added that, 
because, on January 31, 1915, the British Admiralty had ordered British 
merchant vessels to fly neutral flags, even neutral merchant vessels would be at 
risk in the announced zone. A lengthy "Memorial", issued at the same time, 



Targeting Enemy Merchant Shipping 34 

justified the German action as retaliation for British disregard of the provisions 
of the 1909 Declaration of London and of the 1856 Declaration of Paris and 
the British declaration of the North Sea between Scotland and Norway as being 
"comprised within the seat of war" combined with neutral acceptance of these 
British violations. It was thus that first arose a problem which continues to 
plague the Governments and navies of the world and students of the law of 
maritime warfare to this day — the question of the legality of war zones, under 
any of the various names which have been given to such areas of the high seas 
by belligerents. 

The German Proclamation caused considerable consternation in the United 
States. Robert Lansing, then Counselor of the Department of State, prepared a 
reply to the German proclamation which he himself referred to as "sharp. " It 
described the German intention as "a wanton act unparalleled in naval war- 
fare." However, after he had read the accompanying "Memorial" he relented 
considerably. Nevertheless, the United States protest may still be described as 
"strong." The United States also protested to Great Britain the use of the 
American flag by British merchant ships. As neither of these protests ac- 
complished its purpose, the United States proposed that each side should, among 
other things, agree: 

That neither will use submarines to attack merchant vessels of any nationality 
except to enforce the right of visit and search. 

That each will require their respective merchant vessels not to use neutral flags 
for the purpose of disguise or ruse de guerre. 

Germany accepted this proposal with conditions. Great Britain rejected it on 
the ground that the German Proclamation of February 4, 1915 was, "in effect, 
a claim to torpedo at sight"; and that submarines did not, and could not, comply 
with the well-established rules of maritime warfare, such as bringing merchant 
ships before prize courts, sinking them only when extraordinary circumstances 
existed, distinguishing between neutral and enemy ships, assuring the safety of 
crews, etc. Of course, the British position disregarded the fact that by accepting 
the proposed agreement Germany would have, in effect, consented to give up 
any claimed right to "torpedo at sight" with all of its corollaries. 

This began a campaign of submarines as commerce destroyers, a campaign 
that extended from February 1915 to September 1915, during which period 
strong protests were made to the German Government by the Government of 
the United States over attacks upon and the sinking of American merchant vessels 
and of other merchant vessels on which American citizens were traveling. The 
matter reached a peak with the sinking of the Lusitania on May 7, 1915 as a 
result of which over 100 American citizens were lost. The U.S. protest included 
the following statement: 



35 Levie 

The Government of the United States, therefore, desires to call the attention of 
the Imperial German Government with the utmost earnestness to the fact that the 
objection to their present method of attack against the trade of their enemies 
lies in the practical impossibility of employing submarines in the destruction 
of commerce without disregarding those rules of fairness, reason, justice, 
and humanity which all modern opinion regards as imperative. It is practically 
impossible for the officers of a submarine to visit a merchantman at sea and examine 
her papers and cargo. It is practically impossible for them to make a prize of 
her; and, if they cannot put a prize crew on board of her, they cannot sink her 
without leaving her crew and all on board of her to the mercy of the sea in her 
small boats. 

After another strong protest by the United States when the Arabic was sunk on 
August 19, 1915, with American citizens aboard, German submarines were 
ordered not to attack passenger ships without a warning and an opportunity for 
the passengers and crew to be taken to a place of safety. As this required the 
submarine to come to the surface, an extremely dangerous procedure in a 
confined area, all German submarines were soon recalled from the English 
Channel. One anonymous author believes that this seven-month period 
(February - September 1915) "saw the submarine come of age as the first modern 
weapon to make war a universal scourge, rather than a professional duel between 
rival armies and fleets." 

Thus, within the first year of World War I the use of the submarine had 
generated issues with respect to the arming of merchantmen, the use of false 
colors, the establishment of "war zones", the sinking of merchantmen without 
warning, and the failure to assure the safety of the passengers and crews. All of 
those issues continue to exist; only the latter two were addressed by the 1936 
London Submarine Protocol. The problem of the status of merchantmen 
under convoy did not arise until much later in the war. 

Disputes with respect to submarine warfare continued to arise and finally, on 
April 18, 1916, the United States warned Germany that if the latter intended to 
continue "to prosecute relentless and indiscriminate warfare against vessels of 
commerce without regard to what the United States must consider the sacred 
and indisputable rules of international law and the universally recognized dictates 
of humanity," it would have no choice but to sever diplomatic relations. The 
German reply, dated May 4, 1916, notified the United States Government that 
the following instructions had been issued to German naval forces: 

In accordance with the general principles of visit and search and destruction of 
merchant vessels recognized by international law, such vessels, both within and 
without the area declared as [a] naval war zone, shall not be sunk without warning 
and without saving human lives, unless these ships attempt to escape or offer 
resistance. 



Targeting Enemy Merchant Shipping 36 

The following months were comparatively free of incidents but, understandably, 
the success of the U-boats was considerably reduced. Ultimately, the German 
Government decided that its only possibility of winning the war, which had 
reached a stalemate on land, was to embark on a program of unrestricted 
submarine warfare and an announcement of such a policy was suddenly made 
on January 31, 1917, to take effect the following day. On February 3, 1917, 
the United States severed diplomatic relations with Germany; on March 12, 
1917, the United States announced its intention to arm its merchantmen; on 
April 2, 1917, in a speech to Congress requesting a declaration of war against 
Germany, President Wilson stated: "The intimation [of the German Govern- 
ment] is conveyed that the armed guards which we have placed on our merchant 
ships will be treated as beyond the pale of the law and subject to be dealt with 
as pirates would be"; and on April 6, 1917, the United States declared war on 
Germany. 

Because of the magnitude of the problem created by the arming of mer- 
chantmen during World War I, it is, perhaps, advisable to deal with it at some 
length at this point. It is a problem which was and is important to neutrals as 
well as belligerents inasmuch as Article 12 of the 1907 Hague Convention No. 
XIII, provides that, in general, a warship may only remain in neutral waters 
for twenty-four hours. If armed merchantmen are warships, then this rule applies 
to them and if they remain in neutral waters beyond the twenty-four-hour 
period, they are, under Article 24 of the same Convention, subject to intern- 
ment. If they were held to fall within the ambit of those provisions, their utility 
as cargo carriers would be completely nullified as none could accomplish 
unloading and reloading within that time frame. Germany demanded that the 
United States (and other neutrals) apply the provisions of this Convention to 
British armed merchantmen. The United States declined to do so. It appears 
that The Netherlands was the only country that so interpreted and applied the 
cited provisions of the Hague Convention. One author has taken the position 
that "neutrals are not justified in treating an armed merchant vessel as an innocent 
peaceful carrier. By so doing they risk their neutrality." A major work argues 
that neutral states "employed the convenient but elusive and tenuous distinction 
between 'offensive' and 'defensive' armament" because of their desire to avoid 
the need to apply the provisions of the 1907 Hague Convention No. XIII to 
armed belligerent merchantmen. 

sty 

The provisions of the 1907 Hague Convention No. VII require, among 
other things, that merchant vessels converted into warships must be placed under 
the direct authority of the State and must have a commander who is "in the 
Service of the State and duly commissioned by the competent authorities" and a 
crew which is subject to military discipline. When the British ordered the arming 
of all of their merchant vessels, many of the captains and other officers of these 
vessels held commissions in the Royal Navy Reserves and many of the vessels 



37 Levle 

were subsequently furnished with Royal Navy gun crews. Nevertheless, the 
British Government contended that these vessels were armed solely for defensive 
purposes and that, therefore these facts did not make them armed auxiliary 
cruisers. The British were probably correct in contending that the status of the 
officers and men did not bring the vessel within the provisions of this Hague 
Convention. The vessels were not State vessels and the crews, other than the 
gunners, were not subject to military discipline. However, whether the fact that 
they were armed removed them from the category of vessels entitled to the 
protections of customary international law is an altogether different question. 

It is often believed that the original decision of the British Government to 
arm its merchant ships was reached as a measure of protection against submarines. 
This is not so. In March 1913, when Churchill made his announcement in the 
House of Commons, the British were not concerned with submarines, they 
were concerned with converted merchant auxiliary cruisers. Thus he said: 

There is now good reason to believe that a considerable number of foreign 
merchant steamers may be rapidly converted into armed ships by the mounting 
of guns. . . . Our food-carrying liners and vessels carrying raw material following 
these trade routes would in certain contingencies meet foreign vessels armed and 
equipped in the manner described. If the British ships had no armament, they 
would be at the mercy of any foreign liner carrying one effective gun and a few 
rounds of ammunition. . . . Hostile cruisers, wherever they are found, will be 
covered and met by British ships of war, but the proper reply to an armed 
merchantman is another merchantman armed in its own defence. 

Again, a year later, on March 17, 1914, he said: 

The House will expect me to say a few words on the arming of merchant ships. 
Much misconception has arisen on this subject. . . . Forty ships have been armed 
with two 4.7 guns apiece, and by the end of 1914-1915 seventy ships will have 
been so armed. They are armed solely for defensive purposes. The guns are 
mounted in the stern and can only fire on a pursuer. Vessels so armed have nothing 
in common with merchant vessels taken over by the Admiralty and converted 
into commissioned auxiliary cruisers, nor are these vessels privateers or commerce 
destroyers in any sense. They are exclusively ships which carry food to this 
country. They are not allowed to fight any ship of war. . . . They are, however, 
thoroughly capable of self-defence against an enemy's armed merchantmen. 

During the years that it was a neutral in World War I, the position of the 
United States with respect to armed merchantmen was so ambivalent as to leave 
much to be desired. However, as it was one of the main players with respect to 
the problem, it will be of interest to analyze the permutations and combinations 
which were encountered in the negotiations on this subject and the decisions 
which were made and unmade. 



Targeting Enemy Merchant Shipping 38 

Within a few days after the beginning of the war the British Charge d'Affaires 
in Washington called the attention of the Secretary of State to the fact that "a 
certain number" of British merchant vessels were armed "solely for the purpose 
of defence." Two weeks later, the British Ambassador advised the Secretary 
of State that he had been directed to give the United States: 

the fullest assurances that British merchant vessels will never be used for purposes 
of attack, that they are merely peaceful traders armed only for purposes of defence, 
that they will never fire unless first fired upon, and that they will never under any 
circumstances attack any vessel. 

Despite these assurances, it does not appear that the armed merchantmen used 
their guns solely for defense, nor that the British Government expected them 
to do so. Thus, confidential instructions to masters of armed merchant vessels 
stated: 

If a submarine is obviously pursuing a ship by day and it is evident to the master 
that she has hostile intentions, the ship pursued should open fire in self-defence, 
notwithstanding the submarines [sic] may not have committed a definite hostile 
act, such as firing a gun or torpedo. 

Any submarine approaching a merchant vessel may be treated as hostile. 
Moreover, when they became available, merchant ships were supplied with 

70 

depth charges, definitely an offensive weapon. 

In justification of the practice of arming merchant ships, and in support of 
their contention that this did not remove them from a noncombatant status, the 
British frequently referred to the long history of armed merchant ships, pointing 
out that this had been ordered by Royal Proclamation as early as the seventeenth 
century and that this right had been recognized by Prize Courts during the 

71 

Napoleonic Wars. They omitted to mention that this procedure had been 
directed against pirates and privateers and that there were no longer pirates on 
the well-traveled trade routes which the British ships were traversing and that 
privateering had been prohibited by the 1856 Declaration of Paris. 

Lauterpacht, while a strong supporter of the right of a belligerent to arm its 
merchant ships for defensive purposes, added the following caveat: ~ 

At the same time it is clear that the arming of merchant vessels raises problems of 
substantial difficulty. In the first place, it is not easy to draw a line of distinction 
between offensive and defensive acts. Secondly, the encouragement of even 
defensive hostilities on the part of private vessels is fraught with danger inasmuch 
as it threatens to undermine the abolition of privateering by the Declaration of 
Paris of 1856 [and the distinction?] between commissioned and non-commis- 
sioned vessels. Thirdly, the fact that a merchantman is armed and that she is entitled 
to resist actual or anticipated attack makes it impossible for enemy submarines to 



39 Levie 

exercise their right of visit and capture in accordance with International Law 
without running the risk of destruction by the superior armament of the merchant- 
vessel or being rammed by her. 

On September 19, 1914 the Department of State issued a memorandum, 
prepared by Robert Lansing, entitled "The Status of Armed Merchant Vessels," 
which provided that, while a merchant vessel might carry armament and 
ammunition for defensive purposes without becoming a warship, the presence of such 
items aboard would create a presumption that they were for offensive purposes, 
a presumption that could be overcome by showing that the vessel carried its 
armament for defensive purposes only. The memorandum then proceeded to list 
a number of "indications" that the armament would not be used offensively, 
including such items as the size and number of the guns, their location on the 
vessel, the status of the officers and crew, etc. With one amendment which 
provided that the presence of any gun on a merchantman, no matter what its size, 
would create the presumption of offensive use, this memorandum laid down 
the policy followed by the United States during 1914 and 1915. 

On January 7, 1916 Lansing, now the Secretary of State, sent a memorandum 
to President Wilson in which he pointed out the potential danger to submarines 
of even a small caliber gun on an armed merchantman; that if submarines were 
to be required to give warning to merchant vessels, the latter should not be 
armed; and that armed merchantmen should, therefore, be treated as not 
possessing the immunities of private commercial vessels. President Wilson 
concurred with these conclusions and, on January 18, 1916, Lansing circulated 
an informal letter to the belligerents in which he set forth the general rules of 
international law and humanity understood to be applicable to noncombatant 
merchant vessels during a war. He called attention to the manner in which the 
submarine had changed maritime operations and the dangers it faced when 
compelled to stop and search an armed merchant vessel on the high seas. He 
then said: 

Moreover, pirates and sea rovers have been swept from the main trade channels 
of the seas, and privateering has been abolished. Consequently, the placing of guns 
on merchantmen at the present day of submarine warfare can be explained only 
on the ground of a purpose to render a merchantman superior in force to 
submarines and to prevent warning and visit and search by them. An armament, 
therefore, on a merchant vessel would seem to have the character of an offensive 
armament. 

It would, therefore, appear to be a reasonable and reciprocally just arrangement 
if it could be agreed by the opposing belligerents that submarines should be caused 
to adhere strictly to the rules of international law in the matter of stopping and 
searching merchant vessels, determining their belligerent nationality, and remov- 
ing the crews and passengers to places of safety before sinking the vessels as prizes 
of war, and that merchant vessels of belligerent nationality should be prohibited 



Targeting Enemy Merchant Shipping 40 

and prevented from carrying any armament whatsoever. 

I should add that my Government is impressed with the reasonableness of the 
argument that a merchant vessel carrying an armament of any sort, in view of the 
character of submarine warfare and the defensive weakness of undersea craft, 
should be held to be an auxiliary cruiser and so treated by a neutral as well as by 
a belligerent Government, and is seriously considering instructing its officials 
accordingly. 

If the paragraph last quoted was intended to put pressure on Great Britain to 
agree to the basic suggestion, as it undoubtedly was, it did not accomplish its 
purpose. While the British Government's adamant opposition to the proposal of the 
United States had probably previously been conveyed orally, it was not until 
March 23, 1916 that the British Ambassador delivered to the Secretary of State 
a memorandum from the British Government setting forth in some detail, not always 
relevant, the reasons why that Government believed the proposal to be pro-Ger- 
man, why it could not rely on a "non-guaranteed German promise", and why 
it could not, therefore, accept the proposal made some two months earlier. It also 
presented its reasons why it did not consider that the action mentioned in the 
last paragraph of the American note would be in accordance with international 
law. The Germans also rejected the proposal, asserting that it was pro-British. 

The British ^won both battles: they continued to arm their merchantmen; and 
these armed merchantmen continued to be treated by the United States as 
ordinary merchant vessels "armed for defense only." On March 25, 1916, just 
two days after the date of the British memorandum, the Department of State 
issued a new "Memorandum on the Status of Armed Merchant Vessels" which 
was even more lenient on the subject than the 1914 memorandum had been. 
Two pertinent paragraphs provided: 

The status of an armed merchant vessel as a warship in neutral waters may be 
determined, in the absence of documentary proof or conclusive evidence of 
previous aggressive conduct, by presumption derived from all the circumstances 
of the case. 

Merchantmen of belligerent nationality, armed only for the purposes of protection 
against the enemy, are entitled to enter and leave neutral ports without hindrance 
in the course of legitimate trade. 

In passing, it is worthy of note with respect to this problem that when, in 
1928, the members of the then Pan American Union drafted a convention on 
the subject of maritime neutrality, Article 12(3) provided that the rules relating 
to warships would apply to armed merchantmen. The United States ratified the 
Convention with a reservation to that provision. 



41 Levle 

In conclusion, it might be said that "defensively armed merchant vessels" 
were properly so-called in that, unlike auxiliary merchant cruisers, they did not 
go searching for enemy vessels; they were not properly so-called in that they 
usually opened fire immediately upon sighting a U-boat, before it had taken any 
offensive action other than to make its appearance. It should be obvious that the 
present author agrees with the following statement: 

The criteria [for determining whether a merchant vessel is participating in the 
hostilities] should certainly include, inter alia, any armed merchant vessel and no 
consideration should be given to the purported distinction between "defensive" 
and "offensive" armament. 

As we shall see, this same problem arose during the course of World War II. 

Part III 

The Intra-War Period (1919-1939) 

The Versailles Treaty 

In the course of drafting a suggested basic document for the proposed League 
of Nations, to be submitted to the Peace Conference which met at the end of 
World War I, President Woodrow Wilson sought comments from David H. 
Miller, the Legal Adviser of the American Delegation to the Conference. In his 
comments on Wilson's Second Draft, Miller suggested the inclusion of the 
following provision: 

The Contracting Parties agree never to make use of armed submarines in naval 
operations, and further agree that they will hereafter build no submarines armed 
or capable of being armed and further agree that all submarines now in existence 
or under construction shall be dismantled and rendered incapable of being armed 
or shall be destroyed. 

Wilson did not adopt this suggestion and while Article 191 of the Treaty of 
Versailles which ended World War I as between Germany and the Allies, 
specifically prohibited "[t]he construction or acquisition of any submarine, even 
for commercial purposes" by Germany, the Covenant of the League of Nations 
contained no provision on the subject. As events proved, this provision of the 
Treaty, like many of the other provisions thereof, was of little value. 

The 1 921 -1 922 Washington Conference 

In 1921 a Conference on the Limitation of Armament met in Washington. The 
conferees represented the five major victorious Powers in World War I: France, 
Great Britain (and the Commonwealth countries), Italy, Japan, and the United 



Targeting Enemy Merchant Shipping 42 

States. When the discussion with respect to submarines began, the British 
Delegation took the position that "what was required was not merely restrictions 

87 

on submarines, but their total and final abolition." The French delegation was, 
as it had been in the past, particularly opposed to the banning of the submarine 

OQ 

as an accepted naval weapons system, its delegate saying: 

The French Government believes that every method of warfare may or may not 
be employed in conformity with the laws of war, and that the inhuman and 
barbarous use made of the submarine by a belligerent in the late war is a reason 
for condemning that belligerent, but not for condemning the submarine. 

It quickly became obvious that the British proposal would not receive the 
necessary support. As one commentator on the 1922 Diplomatic Conference 
stated: "The British seem to hold that the submarine is an offensive weapon, 
while the others consider that it is a defensive weapon." Elihu Root, one of 
the delegates of the United States and a former Secretary of State, then submitted 
several proposed resolutions to the Conference. These resolutions may be 
considered to have been the genesis of the 1922, 1930, and 1936 codifications 
of the rules relating to submarine warfare. Resolution I was said to be a statement 
of existing law, while Resolution II was said to constitute a change in the existing 
law. An examination of the Root Resolutions, as minimally modified by the 
Conference, will enable us to determine what the rules of submarine warfare 
were then considered to be and what the representatives of the nations present 
considered that they should be, it being an accepted fact that the submarine was 
here to stay. 

Root's Resolution I became Articles I and 2 of the treaty then in process 
of being drafted, with only one major change: the logical addition of a second 
condition under which a merchant vessel might be attacked (when it refused 
"to submit to visit and search after warning, or to proceed as directed after seizure"). 
As adopted and included in the Treaty which was ultimately drafted, these 
articles stated: 

Art. 1. The Signatory Powers declare that among the rules adopted by civilized 
nations for the protection of the lives of neutrals and noncombatants at sea in time 
of war, the following are to be deemed an established part of international law; 

(1) A merchant vessel must be ordered to submit to visit and search to 
determine its character before it can be seized. 

A merchant vessel must not be attacked unless it refuses to submit to visit 
and search after warning, or to proceed as directed after seizure. 

A merchant vessel must not be destroyed unless the crew and passengers 
have been first placed in safety. 



43 Levie 

(2) Belligerent submarines are not under any circumstances exempt from 
the universal rules above stated; and if a submarine can not capture a vessel 
in conformity with these rules the existing law of nations requires it to desist 
from attack and from seizure and to permit the merchant vessel to proceed 
unmolested. 

Art. 2. The Signatory Powers invite all other civilized Powers to express their 
assent to the foregoing statement of established law so that there may be a clear 
public understanding throughout the world of the standards of conduct by which 
the public opinion of the world is to pass judgment upon future belligerents. 

The provisions of Article 1 have since been accepted as binding rules of the law 
of war at sea by reiteration in substance in international agreements subsequently 
drafted. It will become apparent that they formed the basis for the provisions of 
Part IV of the 1930 London Naval Treaty and for those of its offspring, the 
1936 London Submarine Protocol. 

There can be no question but that the provisions of Root's Resolution II 
represented a major addition to the restrictions on the use of submarines in war 
at sea. It condemned the submarine for what a belligerent had done in World 
War I. It was adopted as Article 4 of the Treaty with only minor amendments 
which did not affect its substantive content. It read: 

Art. 4. The Signatory Powers recognize the practical impossibility of using 
submarines as commerce destroyers without violating, as they were violated in 
the recent war of 1914-1918, the requirements universally accepted by civilized 
nations for the protection of the lives of neutrals and noncombatants, and to the 
end that the prohibition of the use of submarines as commerce destroyers shall be 
universally accepted as a part of the law of nations, they now accept that 
prohibition as henceforth binding as between themselves and they invite all other 
nations to adhere thereto. 

This Article, outlawing the use of submarines against merchant vessels, even if 
they complied with the provisions of Article 1 , did not survive as a rule of the 
law of war. Had it done so, it would, as Root had indicated, have supplanted 
the rules set forth in Article 1 , rules which codified then existing law. 

Root's Resolution III was adopted as Article 3 of the Treaty with only one 
major change. That change was the substitution of the words "rules declared by 
them with respect to attacks upon and the seizure and destruction of merchant 
ships" for the words "rules declared by them with respect to the prohibition of 
the use of submarines in time of war." Under either reading, the provisions cover 
violations of both Articles 1 and 4 of the Treaty. As Article 3 it now read: 

Art. 3. The Signatory Powers, desiring to insure the enforcement of the humane 
rules of existing law declared by them with respect to attacks upon and the seizure 
and destruction of merchant ships, further declare that any person in the service 



Targeting Enemy Merchant Shipping 44 

of any Power who shall violate any of those rules, whether or not such person is 
under orders of a governmental 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 and 
may be brought to trial before the civil or military authorities of any Power within 
the jurisdiction of which he may be found. 

During the discussion of this Resolution the Japanese delegate asked for an 
explanation of the meaning of the phrase "punishment as if for an act of piracy." 
The ambiguity of the phrase was demonstrated by the fact that the Chairman, 
Secretary of State Hughes, said that he assumed that it meant that a violation 
should be treated as an act of piracy. Root was quick to indicate that it merely 
meant that there would be universal jurisdiction, as in the case of piracy. 
Inasmuch as the provision already specifically so provided, there was, in reality, 
no need for the reference to piracy which merely caused confusion and antipathy. 

Like Article 4, Article 3 has not survived as a separate rule of the law of war. 
However, like any other violation of the law of war, violations of the provisions 
of the customary or conventional law of submarine warfare constitute universal 
war crimes and the violator may still "be brought to trial before the civil or 
military authorities of any Power within the jurisdiction of which he may be 
found" — depending, of course, on the domestic law of that Power. In fact, as 
we shall see, after World War II two German Admirals, Doenitz and Raeder, 
were charged with and tried for having allegedly ordered illegal submarine 
warfare. 

In its final form this 1922 Washington Treaty (which also contained a 
provision banning the use of noxious gases) included in its Article VI a provision 
which stated that it would "take effect on the deposit of all the ratifications." 
Inasmuch as France failed to ratify it, the Treaty never took effect. Perhaps this 
was just as well. Admiral William V. Pratt, of the United States Navy, is quoted 
as having written, a few days after the Conference ended, that the treaty was not 
practical and that it would not work. 

This Diplomatic Conference created a Commission of Jurists with the task 
of determining the adequacy of certain rules of international law with respect to 
the law of war. The Commission produced two sets of rules, one on wireless 
telegraphy in time of war and one on aerial warfare. Article 6, paragraph 1, of 
the former stated: 

The wireless transmission, by an enemy or neutral vessel or aircraft while being 
on or above the high seas, of any military information intended for a belligerent's 
immediate use, shall be considered a hostile act exposing the vessel or aircraft to 
be fired at; 

As the Diplomatic Conference had adjourned sine die before the Commission 
completed its work, neither set of rules ever received codified international 



45 Levie 

status. However, they undoubtedly represented the customary international law 
on the subjects and are worthy of and have received considerable attention, 
despite their informal status. 

Article 1, paragraph 1 of the Inter- American Convention on Maritime 
Neutrality sets forth in considerable detail the rules with respect to the rights of 
belligerent warships towards merchant vessels, including a provision that a ship may 
not be rendered unnavigable before the crew and passengers have been placed 
in safety. Paragraph 2 makes these rules applicable to submarines with the specific 
proviso that "[i]f the submarine cannot capture the ship while observing these 
rules, it shall not have the right to continue to attack or to destroy the ship." 

The 1 930 London Naval Conference 

On January 21, 1930 another Conference on the Limitation of Armament 
convened, this time in London. It was officially known as the London Naval 
Conference of 1930. The participating Powers were the same as those which 
had been represented in Washington eight years earlier. At the very first Plenary 
Meeting at which the subject of submarines was discussed the British once again 
proposed the abolition of the submarine, this time with the full support of the 
United States; and once again this proposal received the support of all of the 
Commonwealth countries, but the opposition of France, Italy, and Japan. 
The United States had submitted a proposed resolution calling for the appoint- 
ment of a committee to consider (1) the abolition of the submarine; and 
(2) regulation of the use of the submarine "through subjecting it to the rules of 
war governing the use of surface craft." France had submitted a proposed 
resolution "forbidding submarines to act towards merchant ships otherwise than 
in strict conformity with the rules, either present or future, to be observed by 
surface warships." These resolutions were referred to a Committee of Experts 

1 08 

and a Committee of Jurists. The latter produced a Declaration which was 
approved unanimously by the First Committee and which was approved without 
discussion by the Plenary Meeting. As incorporated into the Treaty, it 
read: 

Article 22 

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 



Targeting Enemy Merchant Shipping 46 

surface vessel or submarine, may not sink or render incapable of navigation 
a merchant vessel without having first placed the 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 aboard. 

These rules were, in general, a rephrasing and amplification of the rules which 
had been included in Article 1 of the 1 922 Washington Treaty. It is important 
to note that while, pursuant to Article 23, the other provisions of the Treaty 
ceased to be effective on December 31, 1936, Article 22 was "to remain in force 
without limitation of time." Despite the fact that there was a provision for 
accession to Part IV of the Treaty by other Powers, no non-Conference Power 
ever acceded, perhaps because France and Italy did not ratify these provisions 
until 1936. 

In addition to drafting the Declaration which became Article 22 of the Treaty, 
the Committee of Jurists made a statement which bears repeating. It said: 

The Committee wishes to place it on record that the expression merchant vessels 
where it is employed in the declaration, is not to be understood as including a 
merchant vessel which is at the moment participating in the hostilities in such a 
manner as to cause her to lose her right to the immunities of a merchant vessel. 

This would certainly include the merchant vessel which, when a submarine 
surfaces in its vicinity, immediately opens fire or radios that it has sighted a 
submarine, giving its longitude and latitude. 

The 1935-1936 London Naval Conference 

In 1935 another Diplomatic Conference convened in London to draft a new 
treaty limiting naval armament prior to the expiration of the 1930 London Naval 
Treaty. The 1936 London Submarine Protocol is frequently associated with 
the 1935-1936 London Naval Conference and with the Treaty for the Limitation 
of Naval Armament that was drafted at that Conference. Its relationship to 
that Conference and Treaty is rather tenuous. At the opening session of the 
Conference Stanley Baldwin, the Prime Minister of Great Britain, said: 

There is one further point that I should like to mention, because it appears to me 
very encouraging for our future deliberations. If it proves impossible to obtain 
agreement for the abolition of submarines, it is of vital importance to reach an 
agreement which will prevent their misuse. Part IV of the London Naval Treaty 
laid down rules for the treatment of merchant ships by submarines in time of war. 
These rules are already in force between the United States, Japan and the members 
of the British Commonwealth of Nations. But I am glad to be able to announce, 
as a result of the preliminary talks with representatives of other nations, that, once 



47 Levle 

these rules have been incorporated in an instrument which will be distinct from 
the London Naval Treaty, the French and Italian Governments who were unable 
to ratify the London Treaty as a whole will be in a position definitely to accept 
such an instrument. We hope that this will be the signal for the acceptance of 
these rules by all the maritime Powers of the world and that, by this means, 
unrestricted submarine warfare may in the future be averted. 

However, at the Fifteenth Meeting of the First Committee, held on March 13, 
1936, the French delegate found it necessary to state: 

I am surprised not to see on the Agenda a subject on which we appeared all to be 
agreed at the opening meeting of the Conference and which our First Committee 
has not yet examined, namely, the embodiment in the Acts which our Conference 
is to draw up of the rules of Part IV of the London Naval Treaty [of 1 930] , 
concerning the use of submarines against merchant vessels. 

The British representative pointed out that the two treaties were quite separate 
(the Japanese had left the Conference and would not sign the Naval Treaty but 
would sign the Submarine Protocol) and that as another text had to be prepared 
they could only hope that the two could be signed at the same time. As a 
matter of fact they were not, the Treaty being signed on March 25, 1936 and 
the Protocol more than seven months later, on November 6, 1936. On the latter 
date it (the Protocol) was signed by the five nations which had participated in 
the drafting of both the 1930 and the 1936 London Naval Treaties: France, Great 
Britain (and the Commonwealth Nations), Italy, Japan, and the United States. 
Other nations were invited to accede to the Protocol and approximately 37 
others had done so before World War II erupted, including all of the European 
belligerents in that war except Rumania. Japan was a Party, but China was not. 
Germany had acceded on November 23, 1936. 

The Nyon Agreements 

The Spanish Civil War which began in 1936 was the first such conflict since 
the American Civil War in which submarines played a part. Because of their 
method of operation, which included attacks on and the sinking of merchant 
ships which did not belong to either side in the conflict, a number of concerned 
nations met at Nyon, Switzerland, in 1937 and drafted the Nyon Agreement. 

1 21 

This agreement provided: 

II. Any submarine which attacks such a ship [one not belonging to either 
side in the conflict] in a manner contrary to the rules referred to in the 
International Treaty for the Limitation and Reduction of Naval Armaments 
signed in London on April 22, 1930 and confirmed in the Protocol signed 
in London on November 6, 1936, shall be counter-attacked and, if possible, 
destroyed. 



Targeting Enemy Merchant Shipping 48 

In effect, the Parties to this Agreement were demanding that the contestants in 
a civil war comply with the provisions of the 1936 London Submarine 

1 00 

Protocol. (A Supplementary Agreement, signed three days later, made the 
original agreement applicable to surface vessels and aircraft.) Nine European and 
Mediterranean States were Parties to these agreements. (Understandably, this 
did not include Germany and Italy, both of which were actively supporting the 
Franco insurgents who probably controlled all of the submarines involved.) 
Shortly thereafter, on 5 October 1937, the Council of the League of Nations 
adopted a Resolution which stated: 

(7) Notes that attacks have taken place in violation of the most elemen- 
tary dictates of humanity underlying the established rules of international 
law which are affirmed, so far as war time is concerned, in Part IV of the 
Treaty of London of April 22, 1930, rules which have been formally 
accepted by the great majority of Governments. 

(8) Declares that all attacks of this kind against any merchant vessels are 
repugnant to the conscience of the civilised nations which now find 
expression through the Council. 

It is strange that the League's Council referred to the 1930 Treaty, which had 
only a few ratifications, and not to the 1936 Protocol, which, by this time, had 
more than twenty-five ratifications and accessions. 

Part IV 
World War II and Its Aftermath (1939-1947) 

As in the case of World War I, the British Admiralty had prepared for another 
conflict by ensuring that many of its merchant ships had been built with 
reinforced areas for the mounting of guns and by storing guns to be used for 

1 O A 

arming those ships. Moreover, the 1938 British Defense of Merchant Shipping 
Handbook included the following provisions: 

As soon as the Master of a merchant ship realises that a ship or aircraft in sight is 
an enemy, it is his first and most important duty to report the nature and position 
of the enemy by wireless telegraph. Such a report promptly made may be the 
means of saving not only the ship herself but many others;. . . 

Conditions under which fire may be opened: 

(a) Against enemy acting in accordance with International Law.- As the 
armament is solely for the purpose of self-defence, it must only be used 
against an enemy who is clearly attempting to capture or sink the merchant 
ship. On the outbreak of war it should be assumed that the enemy will act 
in accordance with International Law, and fire should therefore not be 



49 Levie 

opened until he has made it plain that he intends to attempt capture. Once 
it is clear that resistance will be necessary if capture is to be averted, fire 
should be opened immediately. 

(b) Against enemy acting in defiance oflnternational Law.- If, as the war 
progresses, it unfortunately becomes clear that, in defiance oflnternational 
Law, the enemy has adopted a policy of attacking 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 prevent her gaining a favorable position for attacking. 

According to a British history of World War II "between the outbreak of the 
war and November 4 [1939], thirty-two British and three Allied ships had been 
sunk illegally . . . ; as many as thirty-three neutral ships had been attacked and 
at least sixteen sunk in circumstances which led to the conclusion that the sinking 
had been illegal." 

In his Memoirs, Admiral Doenitz, the Commander of the U-boat arm of the 
German Navy for a large part of the war, later the Commander-in-Chief of the 
German Navy, and, ultimately, Hitler's successor, asserts that these Instructions 
were "a contravention of the Submarine Agreement." He also indicates his belief 

1 97 

that the convoy system was contrary to the same Agreement. Neither arming 
merchant ships, nor ordering them to send by radio what can only be described 
as intelligence information, nor sailing them in convoy under the protection of 
warships, were acts contrary to the provisions of the 1936 London Submarine 
Protocol — but any of those acts removed the particular merchant ship involved 

1 9R 

from the limited category of ships protected by that Agreement. 

On November 27, 1939 the British Government issued an Order in Council 
Restricting Further the Commerce of Germany which was intended, among other 
things, to eliminate all German exports. In response to neutral complaints of 

1 V) 

violation of the 1856 Declaration of Paris, the British Government said in notes to 
the Dutch and Italian Governments that "the main basis of their actions is admittedly 
the right of retaliation the essence of which is a departure from the ordinary rules 
as reprisal for illegal action by the enemy." This was, of course, an admission 
by the British that the Order in Council did, in fact, violate the 1856 Declaration 
of Paris and a claim that it was, nevertheless, legal because by definition a reprisal 
contemplates an illegal action by the party undertaking reprisal action. 

On May 8, 1940, Churchill, once again First Lord of the Admiralty, stated 
to the House of Commons that the Royal Navy had been instructed that in the 
Skagerrak (a narrow arm of the North Sea between Denmark and Norway 
leading into the Kattegat and the Baltic Sea) "all German ships by day and all 
ships by night were to be sunk as opportunity served." This action was 
frequently referred to by the Germans as a basis for their subsequent actions. 
Although the International Military Tribunal found Doenitz guilty of violating 



Targeting Enemy Merchant Shipping 50 

the 1936 London Submarine Protocol by establishing operational zones, it listed 
Churchill 's order as one ground for not assessing punishment against Doenitz 
on the basis of German submarine 'warfare. 

On August 28, 1939, a few days before the outbreak of World War II, 
Germany had issued its Prize Ordinance which included some of the 
protections provided by the 1936 London Submarine Protocol. A week later, 
on September 3, 1939, Hitler issued Fuehrer's Directive No. 2, which provided 
that offensive actions by the German Navy against Great Britain were permissible 
but that "warfare against merchant shipping is for the time being to be conducted 
according to the prize regulations, also by submarines." Fuehrer's Directive 

-1 ID 

No. 4, September 25, 1939, extended this directive to include the French. 

The minutes of a conference between Hitler and Admiral Raeder, Chief of 
the Naval Staff, held on September 23, 1939, reveal the following decisions: 

2. The intensification of anti-submarine measures by aircraft and armed 
merchant vessels will apparently make it impossible to search British 
merchantmen in the future. The Fuehrer approved the proposal that action 
should be taken without previous warning against enemy merchant ships 
definitely identified as such (with the exception of unmistakable passenger 
steamers), since it may be assumed that they are armed. 

3. The expression 'submarine warfare' is to be replaced by the expression 
'war against merchant shipping.' The notorious expression 'unrestricted 
submarine warfare' is to be avoided. Instead of this, the proclamation of the 
'siege of England' is under consideration; such a military system would free 
us from having to observe any restrictions whatsoever on account of 
objections based on International Law. 

Fuehrer's Directive No. 5, September 30, 1939, implemented these decisions. 
It provided: 

The war against merchant shipping is, on the whole, to be fought according to 
prize law, with the following exceptions: 

(1) Merchantmen and troopships recognized beyond doubt as hostile 
may be attacked without warning. 

(2) The same applies to ships sailing without lights in the waters around 
the British Isles. 

(3) Armed force is to be employed against merchantmen which use their 
radio transmitters when stopped. 

(4) As before, no attacks are to be made upon passenger vessels or large 
steamships as appear to be carrying passengers in large numbers as well as 
goods. 



51 Levie 

Even assuming that "hostile" merely meant "enemy," the first part of the first 
exception (merchantmen, not armed merchantmen) was a violation of the 
Protocol; the second part of that exception (troopships) was valid; the second 
exception was probably justified; the third was undoubtedly justified; and 
the fourth was intended to avoid incidents such as that of the Lusitania in World 
War I and of the Athenia in World War II. 143 

During World War II Germany contended that its use of the submarine as a 
commerce destroyer was a legal reprisal because of such British violations of the 
law of naval warfare as arming merchant vessels, ordering them to radio reports 
of submarine sightings, ordering them to navigate without lights at night, 
ordering them to ram submarines, violations of the rules pertaining to blockades, 
etc. Thus, in his Memoirs, Doenitz wrote: 

In the same way Naval High Command reacted only with extreme caution and 
step by step to the British measures which I have just described and which 
constituted a breach of the London Submarine Agreement. Slowly and one by 
one the restrictions on the conduct of U-boat operations were removed in a series 
of orders from Naval High Command — beginning with permission to fire upon 
vessels which used their wireless, which sailed without lights and which carried 
guns, followed (as a result of the instructions to ram given to British ships) by 
permission to attack all vessels identified as hostile and ending with a declaration 
of sea areas that would be regarded as operational zones. . . . 

It is, then, an established fact that from the very outset the German Naval High 
Command painstakingly adhered to the provisions of international law contained 
in the London agreements and that it was only step by step, in response to breaches 
of these provisions by the enemy, that we allowed ourselves more and more 
latitude, until finally, we reached the stage, as it was inevitable that we would, 
where the London agreement was abandoned completely and for good. 

Actually, there was no need for Germany to place its actions on a reprisal 
basis. The British modus operandi constituted their merchant vessels naval 
auxiliaries, subject to the same treatment as warships - that of being attacked 
without warning immediately upon being sighted. As one author has stated the 
provisions of the 1936 London Submarine Protocol did not extend, and were 
not intended to extend, to the "warshiplike merchantmen" of the British 
merchant marine. Many publicists are of the opinion that these, and other, 
British procedures changed the status of armed British merchantmen from 
noncombatants to combatants, that it integrated them into the British naval 
forces, and that the provisions of the 1936 London Submarine Protocol were, 
therefore, no longer applicable to them. The Commander's Handbook on the 
Law of Naval Operations, issued by the United States Navy in 1987, states: 

During World War II the practice of attacking and sinking enemy merchant vessels 
by surface warships, submarines, and military aircraft without prior warning and 



Targeting Enemy Merchant Shipping 52 

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 ships 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. 

Shortly after the beginning of World War II the United States Congress 
enacted a Neutrality Act which, among other things, authorized the President 
to place restrictions "on the use of the ports and territorial waters of the United 
States by the submarines or armed merchantmen of a foreign state." It also made 
it unlawful for foreign vessels to fly the American flag (a rather difficult provision 
to enforce) and authorized the President to designate "combat areas" within 
which American flag vessels were forbidden to proceed. A Presidential 
Proclamation issued immediately thereafter placed such restrictions on the use 
of American ports and territorial waters on submarines, but not on armed 
merchantmen! Unlike the situation during World War I, the entrance into 
the ports of the United States by armed British merchantmen from the early days 
of World War II did not seem to cause the Administration any concern and was 
completely uncontrolled. From the very beginning of the war these vessels were 
treated as peaceable cargo ships and Borchard's strong protest appears to have 
occasioned little comment and no change of policy. " This must be considered 
as one of the many indications of official American political policy favoring the 
British, rather than as a thoughtful interpretation of the applicable law. 

In accordance with the authority granted by the Neutrality Act, President 
Roosevelt also issued a Proclamation designating a "combat area" within which 
American flag vessels were forbidden to navigate. Germany availed itself of 
this combat zone and declared its zone, within which all vessels would be sunk 
without warning, to coincide with the American zone. During his cross-ex- 
amination by Sir David Maxwell-Fyfe, the British prosecutor, before the 
International Military Tribunal, Doenitz testified: 

I have already said that the neutrals had been warned not to cross the combat 
zones. If they entered the combat zones, they had to run the risk of suffering 
damage, or else stay away. That is what war is. For instance, no consideration 
would be shown on land either to a neutral truck convoy bringing ammunition 
or supplies to the enemy. It would be fired on in exactly the same way as an enemy 
transport. It is, therefore, quite admissible to turn the seas around the enemy's 
country into a combat area. That is the position as I know it in international law, 
although I am only a soldier. 

Sir David Maxwell-Fyfe: I see. 



53 Levie 

Donitz: Strict neutrality would require the avoidance of combat areas. Whoever 
enters a combat area must take the consequences. 

During this cross-examination Doenitz was also asked "if you sank a neutral ship 
which had come into that [declared operational] zone, you considered that you 
were absolved from any of your duties under the London Agreement to look 
after the safety of the crews?" To this, he replied: "In operational areas I am 

obliged to take care of the survivors after an engagement, if the military situation 

.. ,,155 
permits. 

In finding Doenitz guilty of violating the 1936 London Submarine Protocol 
by virtue of the German establishment of "operational zones,'* the International 
Military Tribunal stated that the conferees in Washington in 1922, in London 
in 1930, and in London again in 1936, had had full knowledge of the fact that 
"operational zones" (or "war zones," or "exclusion zones," or "combat zones," 
under whatever name one may give to them), had been declared by both sides 
during World War I, "[y]et the protocol made no exception" for them. " It is 
of interest to note that there was no mention whatsoever of such zones during 
the discussions that accompanied the drafting of the provisions of the 1 922 
Washington Treaty, nor of those of the 1930 London Naval Treaty which 
became the 1936 London Submarine Protocol; and that there were no discus- 
sions whatsoever involved in the drafting of the Protocol itself. Would it not be 
just as logical to interpret all this as indicating that there was no intention on the 
part of the draftsmen of those agreements to legislate with respect to this problem, 
which went far beyond submarine warfare in the scope of its application, that 
there was no desire or authority on their part to establish rules in an area which 
did not relate exclusively to submarine warfare? Moreover, while the Tribunal 
found Doenitz not guilty of waging unrestricted submarine warfare on what 
amounted to a tu quoque defense, it failed to find him not guilty of the use of 
operational zones on that same basis despite undisputed evidence that the British 
practice in this respect was identical with, and had preceded, that of the 
Germans. ~ There is one aspect of submarine warfare which appears to warrant 
mention even though there can be no question as to the criminal liability of any 
person engaged in it: the murder of the shipwrecked crews and passengers of 
ships which have been sunk. This problem arose during World War II because 
of an incident involving the Laconia, a British ship which was sunk in September 
1942 by a German submarine which then discovered that a large number of 
Italian prisoners of war had been among those on board. The submarine took 
in tow several lifeboats (as it happened, the occupants of the lifeboats included 
a substantial number of members of the British crew), with a large Red Cross 
displayed, and sent a message, in English in the clear, asking for assistance in the 
rescue efforts, promising to take no aggressive action against any vessel coming 
to render assistance as long as none was taken against his U-boat. Unfortunately, 



Targeting Enemy Merchant Shipping 54 

the only response was by an American bomber which attacked and damaged the 
U-boat, causing it to cast the lifeboats adrift and to submerge. When this was 
reported to Doenitz he issued the so-called "Laconia Order" which 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 lifeboats, 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 back 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. 

At Nuremberg the British prosecutor contended that this was an order to destroy 
any survivors of the ships sunk by German submarines, contending that this had 
long been German submarine policy. Evidence was adduced of a conversation 
between Hitler and Oshima, the Japanese Ambassador to Germany, which the 
International Military Tribunal for the Far East reported as follows: 

OSHIMA had a conference with Hitler on January 3, 1942. Hitler explained his 
policy of submarine warfare, which he was conducting against Allied shipping, 
and said that although the United States might build ships very quickly, her chief 
problem would be the personnel shortage since the training of seafaring personnel 
took a long time. Hitler explained that he had given orders for his submarines to 
surface after torpedoing merchant ships and to shoot up the lifeboats, so that the 
word would get around that most seamen were lost in torpedoings and the United 
States would have difficulty in recruiting new crews. OSHIMA, in replying to 
Hitler, approved this statement of policy and stated that the Japanese would follow 
this method of waging submarine warfare. 



Concerning this matter the International Military Tribunal said 



162 



It is also asserted that the German U-boat arm not only did not carry out the 
warning and rescue provisions of the protocol but that Doenitz deliberately 
ordered the killing of the survivors of shipwrecked vessels, whether enemy or 
neutral. The prosecution has introduced much evidence surrounding two orders 
of Doenitz, war order No. 154, issued in 1939, and the so-called "Laconia" order 
of 1942. The defense argues that these orders and the evidence supporting them 
do not show such a policy and introduced much evidence to the contrary. The 
Tribunal is of the opinion that the evidence does not establish with the certainty 
required that Doenitz deliberately ordered the killing of shipwrecked survivors. 
The orders were undoubtedly ambiguous, and deserve the strongest censure. 



55 Levie 

The evidence further shows that the rescue provisions [of the 1936 Protocol] were 
not carried out and that the defendant ordered that they should not be carried 
out. The argument of the defense is that the security of the submarine is, as the 
first rule of the sea, paramount to rescue and that the development of aircraft made 
rescue impossible. This may be so, but the protocol is explicit. If the commander 
cannot rescue, then under its terms he cannot sink a merchant vessel and should 
allow it to pass harmless before his periscope. These orders, then, prove Doentiz 
is guilty of a violation of the protocol. 

To summarize, in passing upon the charges of illegal submarine warfare made 
against German Admiral Doenitz, the International Military Tribunal discussed 
and reached decisions on four aspects of the question: 1) waging unrestricted 
submarine warfare (not guilty); 2) the proclamation of operational zones and 
the sinking of neutral merchant ships therein (guilty); 3) ordering that the 
shipwrecked be killed (not guilty); and 4) failure to rescue the shipwrecked 
(guilty). However, because of the evidence of a number of British and American 
practices, no sentence was assessed against Doenitz for the foregoing offenses of 
which he was found guilty. 

What were the reasons for the failure to comply with the rules of customary 
international law with respect to submarine warfare during the course of World 
War I and for the failure to comply with those rules, as codified in the 1936 
London Submarine Protocol, during the course of World War II? One student 
of the problem has answered that question as follows: 

The non-observance of the rules of the Protocol could be explained with the help 
of military considerations: impossibility for the aircraft to act in conformity with 
the rules, impossibility for the German surface warships to penetrate into and 
effectively control the waters surrounding the British Isles, and, as far as submarines 
were concerned, the unacceptable risk involved in the procedure of surfacing, 
ascertaining the character of the ship and cargo, ordering the ship to be abandoned 
and waiting until the order was carried out and those on board as well as the papers 
and mail were safe in the ship's boats, in an area where the superior enemy forces, 
warned with the aid of technical devices like radio and radar or by air reconnais- 
sance, could arrive on the scene in very little time. 

PartV 
Post-World War II (1 948 - to date) 

As the footnotes will have indicated, there has been much discussion of the 
question of restrictions on submarine warfare and the continued viability of the 
1936 London Submarine Protocol since the end of World War II and the 
completion of the trial before the International Military Tribunal. However, 
unfortunately, there has been no attempt on the part of the international 
community to clarify a very confused situation, something that should be 
avoided at all costs in the law of war. The only "official" action which has been 



Targeting Enemy Merchant Shipping 56 

taken in this respect during the past forty or more years is the issuance by the 
U.S. Navy of its Commander's Handbook on the Law of Naval Operations. That 
volume contains the following: 

Although the rules of the 1936 London Protocol continue to apply to surface 
warships, they must be interpreted in light of current technology, including 
satellite communications, over-the-horizon weapons, and antiship missile systems, 
as well as the customary practice of belligerents that evolved during and following 
World War II. Accordingly, enemy merchant vessels may be attacked and 
destroyed by surface warships, either with or without prior warning, in any of the 
following circumstances: 

1 . Actively resisting visit and search or capture 

2. Refusing to stop upon being 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. 

In an earlier volume, entitled Law of Naval Warfare, sub-paragraph 4, above, had 
included the additional words "and there is reason to believe that such armament 
has been used, or is intended for use, offensively against an enemy." In 
explanation of the deletion of those words, a proposed Annotated Supplement 
to the Handbook, which is unofficial and which is still in draft form, states: 

In light of modern weapons it is impossible to determine, if it ever was possible, 
whether the armament on merchant ships is to be used offensively against an 
enemy or merely defensively. It is unrealistic to expect enemy forces to be able 
to make that determination. Accordingly, this rule has been modified in this text 
from that previously appearing in NWIP 10-2, para. 503b(3).4. 

In the 1987 volume we find a number of references to submarines and to 
submarine warfare. Having stated that "[t]he law of armed conflict imposes 
essentially the same rules on submarines as apply to surface warships (a paraphrase 



57 Levie 

of the first paragraph of the 1936 London Submarine Protocol), the Handbook 

169 
goes on to say: 

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 thereby undetected) and despite its vul- 
nerability when surfaced, the London Protocol of 1936 makes no distinction 
between submarines and surface warships with respect to the interdiction of enemy 
merchant shipping. The London Protocol specifies that except in the case of 
persistent refusal to stop when ordered to do so, or in the event of active resistance 
to capture, a warship, "whether surface or submarine" may not destroy an enemy 
merchant vessel "without having first placed passengers, crew, and ship's papers 
in a place of safety." The impracticality of imposing upon submarines the same 
targeting constraints as burden surface warships is reflected in the practice of 
belligerents of both sides during World War II when submarines regularly attacked 
and destroyed without warning enemy merchant shipping. As in the case of such 
attacks by surface warships, this practice was justified either as a reprisal in response 
to unlawful acts of the enemy or as a necessary consequence of the arming of 
merchant vessels, of convoying, and of the general integration of merchant 
shipping into the enemy's war-fighting/war-sustaining effort. 

The United States considers that the London Protocol of 1936, coupled with 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 warfighting 
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. 

In a learned discussion of this problem which arrives at conclusions closely 
resembling those reached by the draftsmen of the Handbook, one author states: 

Besides the two circumstances mentioned in Article 22 (2) of the London Naval 
Treaty of 1930 — persistent refusal to stop on being summoned and active 



Targeting Enemy Merchant Shipping 58 

resistance to visit and search — there are other situations in which international 
law may allow the attack and destruction of merchant vessels. They include: 

i) sailing under convoy of enemy warships or enemy military aircraft. 

ii) if armed, and there is reason to believe that such armament has been 
used, or is intended for use offensively against an enemy. 

iii) if incorporated into, or assisting in any way, the intelligence system 
of an enemy's armed forces. 

iv) if acting in any capacity as a naval or military auxiliary to an enemy's 
armed forces. 

He immediately points out that "[m]any British writers question the validity of 
some of these situations." 



Conclusions 

Can it be said that, after the experiences of two World Wars, the mandates 
of the 1936 London Submarine Protocol, codifying customary international law, 
are still a valid and binding part of the law of war at sea? The International 
Military Tribunal, sitting after the conclusion of those two conflagrations, left 
no doubt that in its opinion the provisions of the Protocol had been, during 
World War II, and still were, after that conflict, very much alive and binding. 
A majority of the writers who have studied the problem are of a similar 

171 

opinion. Although it is unquestionably true that a rule of international law 
may be changed by evidence of a substantial change in the practice of States, the 
failure of one belligerent in World War I to comply with the applicable rules of 
customary international law, following which it was severely chastised for its 
action and the rules were codified, and the failure of three belligerents in World 
War II (Germany, Japan, and the United States), even though they may have 
been major maritime Powers, to comply with the provisions of the Protocol 
does not forever erase them from the rule book. During World War I all of the 
Entente Powers and the United States, both as a neutral and as a Power associated 
with the Entente Powers, insisted that the rules with respect to submarine 
warfare, which were then a part of customary international law and are now set 
forth in the 1936 London Submarine Protocol, were valid and binding rules. 
During the interim between the wars a large number of the nations of the world, 
including in many cases those which later did not comply therewith, accepted 
these rules in conventional form in 1922, in 1930, in 1936, and in 1937. The 
failure of Germany, Japan, and the United States to comply with those rules 
during World War II did not result in their nullification. It must also be borne 



59 Levie 

in mind that in both World Wars Germany contended that her failure to comply 
with the customary or conventional law of submarine warfare was an act of 
reprisal, i.e., an admittedly illegal act. The same argument may, perhaps, be made 
for the United States inasmuch as a Japanese submarine had already sunk an 
American merchantman without warning when the message ordering un- 
restricted submarine warfare by the United States Navy, concerning which 
Admiral Nimitz testified, was sent. (No evidence could be found that Japan 
claimed that her unrestricted submarine warfare was an act of reprisal.) 
Which brings the present author to the following conclusions: 

1 . While, during World War II, the provisions of the 1936 London Submarine 
Protocol were largely not applied, this was frequently excused by the particular 
belligerent, not on the basis that they were no longer a part of the law of war at 
sea, but on the basis of reprisals against illegal actions on the part of the enemy 
(arming of merchant vessels with guns and depth charges, sailing them in 
warship-escorted convoys, ordering the immediate reporting by radio of sub- 
marine sightings, ordering merchant vessels to ram submarines, illegal mining, 
illegal expansion of the list of contraband, illegal blockades, declarations of war 
zones, etc.), in itself a recognition of the continuing validity of those provisions; 

2. The 1936 London Submarine Protocol continues to be a valid and 
subsisting part of the law of war at sea; 

3. If the establishment of zones (operations zones, war zones, exclusion zones, 
combat zones, etc.) is determined to be a legal method of making war at sea, the 
application of the rules of the 1936 London Submarine Protocol will be largely, 
but not entirely, nullified, at least in the zones so declared. 

4. It is highly probable that in any World War III belligerents will again find 
reasons why the 1936 London Submarine Protocol should not be applied; 

5. In any future armed conflict of lesser extent than a World War III the 
pressure of neutral Powers may be sufficiently strong to cause the belligerents 
to comply with the provisions of the 1936 London Submarine Protocol. 

One cannot do better than to conclude a study of the submarine with a portion 
of the final conclusion reached by a noted expert in a book recently published: 

The era of the submarine as the predominant weapon of power at sea must 
therefore be recognised as having begun. . . . Five hundred years ago, before the 
sailing-ship pioneers ventured into great waters, the oceans were an empty place, 
the only area of the world's surface in which men did not deploy military force 
against each other. In a future war the oceans might appear empty again, swept 
clear both of merchant traffic and of the navies which have sought so long to 
protect it against predators. Yet the oceans' emptiness will be illusory, for in their 
deeps new navies of submarine warships, great and small, will be exacting from 
each other the price of admiralty. 



Targeting Enemy Merchant Shipping 60 
Notes 

♦Professor Emeritus of Law, Saint Louis University Law School; Former Charles H. Stockton Professor 
of International Law, U.S. Naval War College, Newport, R.I. 

1. Frederick Wagner, Submarine Fighter of the American Revolution: The Story of David Bushnell 
56-74 (1963). 

2. Quoted in Cynthia O. Philip, Robert Fulton: A Biography 74 (1985). The author states: "He realized 
that the submarine would be considered an illegal weapon and that if he or any of his crew were taken prisoner 
by the British they would be executed as common criminals. The objection to submarine warfare . . . was 
that the submarine would attack with unscrupulous stealth." Id. at 75. 

3. Admiral Earl St. Vincent, the British First Sea Lord in 1804, is reputed to have said of Fulton's 
submarine: 

Don't look at it, and don't touch it. If we take it up, other nations will; and it will be the greatest 
blow at our supremacy on the sea that can be imagined. 

R. H. Gibson, The German Submarine War, 1914-1918, (1931). 

4. The Union Navy made one attempt to construct a submersible to be used against the Confederate 
iron-clad Merrimac. This boat, the Alligator, was eventually lost, not through enemy action, without ever having 
been submerged. Bernard Brodie, Sea Power in the Machine Age 272 (1969). 

5. One author says that New Ironsides "did not even need a major dockyard repair job." Edwin P. Hoyt, 
Submarines at War: The History of the American Silent Service 11 (1983); another author says that she was 
"out of action for a year." Alex Roland, Underwater Warfare in the Age of Sail 162 (1978). 

6. Edwin P. Hoyt, supra note 5, at 10-13. The lessening of the interest of the Confederate Navy in 
submersibles may have been due to the difficulty of recruiting crews for what appeared to be suicide missions. 
However, it cannot be said that Confederate underwater activities (which included mines, another pioneering 
method) ceased. See Roland, supra note 5, at 162, where the following statistics are set forth: 

By the end of the war the toll from Confederate underwater warfare was impressive. Damage was 
found to have been sustained by forty-three Union vessels, twenty-nine of which were sunk. This was 
more damage than was effected by the rest of the Confederate Navy. 

It is to be noted that all actions of the Confederate submersibles were directed against Union warships. For a 
fairly detailed history of the "David" and the "Hunley", see Milton F. Perry, Infernal Machines: The Story of 
Confederate Submarine and Mine Warfare 63-108 (1965). 

7. Hoyt, supra note 5, at 15. 

8. Edwyn A. Gray, The Killing Time, The U-Boat War, 1914-1918, at 17 (1972). 

9. The Reports to The Hague Conferences of 1899 and 1907, at 2, 3 (James B. Scott ed., 1917). 

10. The Proceedings of the Hague Peace Conference: The Conference of 1899, at 367-368 (James B. 
Scott ed., 1920). 

11. Id. at 296. 

12. Id. at 299. 

13. As late as 1935 the then Lieutenant Rickover wrote: "The submarine is the weapon par excellence 
of the weak naval power." Hyman G. Rickover, International Law and the Submarine. 61 U.S. Nav. Inst. Proc. 
1213, 1224 (September 1935). 

14. A 1917 Grotius Society Committee pointed out that until World War I "the employment [of 
submarines] as commerce destroyers was not seriously considered." Report of a Committee of the Grotius 
Society, The Legal Status of Submarines, 14 Trans. Grot. Soc. 155 (1929) [hereinafter Grotius Committee 
Report]. A later author said: "Perhaps the major flaw in the naval thinking of the years preceding World War 
I was the apparent lack of appreciation of the economic facet of naval warfare." William H. Barnes, Submarine 
Warfare and International Law. 2 World Polity 121, 132 (1960). The effectiveness of the British blockade of 
Germany early in World War I was undoubtedly a major reason for the decision of Germany to retaliate in 
the only way open to it, by the employment of the submarine as a commerce destroyer. Gray, supra note 8, 
at 38. 

15. Bernard Brodie, supra note 4, at 287. 

16. In 1901 France had 6 submarines, Italy 2, the United States 1, and Great Britain none; while in 1907 
France had 49, Great Britain 39, Russia 13, the United States 10, Italy 7, Japan 5, and Germany 2. Barnes, 



61 Levie 

supra note 14, at 121, 127-128. By 1914 Great Britain had 76 (with 20 under construction), France had 70 
(23), the United States had 29 (21), Germany had 27 (12), Russia had 25 (18), and Italy had 18 (2). Id., at 131. 

17. The Proceedings of the Hague Peace Conferences: The Conference of 1907, at 1 (James B. Scott 
ed., 3 vols. "1 M , i.e. 1921) [hereinafter Scott, Proceedings]. 

18. 3 id. at 741. That Commission had drafted the 1899 Hague Convention No. II with Respect to the 
Laws and Customs of War on Land and its attached Regulations, signed at The Hague, 29 July 1899, 32 Stat. 
1803; 1 Am. J. Int'l. L. (Supp. 1907) 129; The Laws of Armed Conflicts 63 pietrich Schindler and^ri Toman, 
eds., 3d ed., 1988) [hereinafter Schindler/Toman]. This Convention was readopted with only a few minor 
changes as the 1907 Hague Convention No. IV, signed at The Hague, 18 October 1907, 36 Stat. 2227; 2 Am. 
J. Int'l. L. (Supp. 1908) 90; Schindler/Toman, supra., and still constitutes a major portion of the conventional law of 
war on land. 

19. See, for example, Pietro Verri, Commentary on the 1913 Oxford Manual on Naval Warfare, The Law 
of Naval Warfare 329, 331 (N. Ronzitti ed., 1988). 

20. 3 Scott, Proceedings, supra note 17, at 792-793. 

21. 1907 Hague Convention No. VI Relating to the Status of Enemy Merchant Ships at the Outbreak 
of Hostilities, signed at the Hague, 19 October 1907, 2 Am. J. Int'l. L. (Supp. 1908) 127; Schindler/Toman, 
supra note 18, at 791. The United States is not a Party to this Convention. 

22. 1909 London Declaration Concerning the Laws of Naval Warfare, signed at London, 26 February 
1909, 3 Am. J. Int'l. L. 179, 186 (Supp. 1909); Schindler/Toman, supra note 18, at 843. After an adverse vote 
in the British House of Lords, this Declaration received no ratifications and never became effective. One 
author has written 

For belligerents [in World War I] the Declaration of London proved a remarkably flexible weapon, 
the more so because it was unratified. Since the London Conference had maintained the fiction that 
it was not writing new law, but declaring law, it was easy to use the declaration. Since it was unratified 
it was simple to announce interpretations by proclamation, or ignore it. 

Calvin D. Davis, The United States and the Second Hague Conference 343 (1975). 

23. The 1913 Oxford Manual on the Law of Naval Warfare Governing The Relations Between Belligerents, 
Resolutions of the Institute of International Law 174 (James B. Scott ed., 1913); Schindler/Toman, supra note 
18, at 857), while perhaps even more extensive in its coverage than the 1909 Declaration of London, supra 
note 22, likewise contained no mention of the submarine. 

24. It is worthy of note that the provision in this regard contained in Article 50 of the 1909 Declaration 
of London, supra note 22, applied only to neutral merchant vessels and that there are no comparable provisions 
relating to enemy merchant vessels. Perhaps this was because of the provision of the 1907 Hague Convention 
No. VI. See supra text accompanying note 21. 

25. Hyman G. Rickover, supra note 13, at 1217. 

26. For. Rel. 198, 199 (Supp. 1916); 10 Am. J. Int'l. L. 178, 179 (Spec. Supp. 1916). 

27. 2 Lassa Oppenheim, International Law., A Treatise 469 (Hersch Lauterpacht ed., 7th ed. 1952) 
[hereinafter Lauterpacht's Oppenheim]. Another British writer concluded that "the introduction of the 
submarine does not call for the making of new laws for naval warfare, but demands the rigid application of 
those hitherto accepted." A. Pearce Higgins, Submarine Warfare, 1 Brit. Y.B. Int'l L. 149, 164 (1920-1921). 
However, an expert in the field of the law of war has written: 

So in our own times, Professor Lauterpacht and the late Professor Oppenheim, Dr. Colombos and 
the late Professor Higgins and other Anglo-American publicists have regarded air and submarine craft 
as interlopers in naval warfare, which must play the game according to surface rules, or not at all, with 
no ground of complaint if the rules forbid their effective use. It is not believed that this is an adequate 
approach either for understanding the present state of international practice, or for moulding future 
practice. 

Julius Stone, Legal Controls of International Conflict 603-604 (2d imp., 1959). 

28. For. Rel. 768, 769 (Supp. 1916). 

29. 50 Pari. Deb., H.C. (5th serv.) 1750 (1913). The 1907 Hague Convention No. VII Relating to the 
Conversion of Merchant Ships into War-Ships 2 Am. J. Int'l. L. 133 (Supp. 1908); Schindler/Toman, supra 
note 19, at 797; 100 B.F.S.P.377 had covered some, but not all, of the problems connected with such 
conversions, which created warships sometimes referred to as "armed merchant cruisers" and sometimes as 
"auxiliary cruisers." In particular, it had not solved the problem as to where such conversions could be 
accomplished. 

30. For. Rel. 216 (Supp. 1914); 9 Am. J. Int'l. L. 1 (Spec. Supp. 1915). 

31. For. Rel. 216-220 (Supp. 1914); 9 Am. J. Int'l. L. 1-6 (Spec. Supp. 1915). 



Targeting Enemy Merchant Shipping 62 

32. For. Rel. 257-258 (Supp. 1914); 9 Am. J. Intl. L. 7-8 (Spec. Supp. 1915). 

33. Although food and clothing remained on the conditional contraband list, as Lauterpacht pointed out, 
this was "a distinction without a difference" as, contrary to the provisions of the 1909 Declaration of London, 
supra note 22, British prize courts applied the doctrine of continuous voyage to items of conditional contraband. 
Hersh Lauterpacht, The Problem of the Revision of the Laws of War, 29 Brit. Y.B. Int'l L. 360, 375 (1952). 
Concerning problems with respect to contraband during World War 1 , see H. Reason Pyke, The Law of 
Contraband of War 178-190 (1915). 

34. On 5 September 1914, the British light cruiser Pathfinder became the first victim of a submarine's 
torpedo in World War I. As some indication of the naivete of the time with respect to submarines, on 22 
September 1914 a German submarine sank another British cruiser, the Aboukir — and then sank two more 
such cruisers, the Hogue and the Cressy, which engaged in rescuing the crew of the first one, in complete 
disregard of the possible presence of the submarine. R.H. Gibson, supra note 3, at 6-7. 

35. On 20 October 1914 a German U-boat sank the Glitra, a small merchant vessel, the first such to be 
sunk during World War I. This was accomplished in the manner prescribed for surface vessels and occasioned 
no outcry. Brodie, supra note 4, at 302. 

36. For. Rel. 463, 464 (Supp. 1914); 11 Am. J. Int'l. L. 14, 15 (Spec. Supp. 1917). 

37. Daniel P. O'Connell, International Law and Contemporary Naval Operations, 44 Brit. Y.B. Int'l L. 19, 
46 (1970). 

38. For. Rel. 94 (Supp. 1915); 9 Am. J. Int'l. L. 83-84 (Spec. Supp. 1915). 

39. Declaration Respecting Maritime Law, signed at Paris, 16 April 1856, 1 Am. J. Int'l. L. 89 (Supp. 
1907); 115 Perry C.T.S. 1 (1969); Schindler/Toman, supra note 18, at 787. One of the provisions of this 
Declaration, which the British were allegedly disregarding, stated: "The neutral flag covers enemy's goods, 
with the exception of contraband of war." Of course, the British would have denied any violation of the 
Declaration as they had included practically every conceivable item on their revised lists of contraband! For 
variously stated reasons, the United States is not a Party to this Declaration but can probably be said to recognize 
the applicability of its provisions. 

40. For. Rel. 96-98 (Supp. 1915); 9 Am. J. Int'l. L. 84-85 (Spec. Supp. 1915). A memorandum to 
German U-boat commanders issued at the same time said: < s ~ 

The first consideration is the safety of the U-boat. Rising to the surface to examine a ship must be 
avoided for the boat's safety, because, apart from the danger of a possible surprise attack by enemy 
ships, there is no guarantee that one is not dealing with an enemy ship even if it bears the distinguishing 
marks of a neutral. ... Its destruction will therefore be justified unless other attendant circumstances 
indicate its neutrality. 

Bernard Brodie, supra note 4, at 304. 

41. While, for a complete overview of the problem of submarine warfare against merchantmen, it will 
be necessary to refer to the use of "operational zones," the question of their legality is beyond the scope of 
this article. The reader interested in this subject is referred to the definitive discussion thereof in Maritime War 
Zones and Exclusion Zones by L.F.E. Goldie, 64 International Law Studies 156 (1991). See also W.J. Fenrick, 
The Exclusion Zone Device in the Law of Naval Warfare, 1986 Can. Y.B. Int'l L. 91 .At this point it will suffice 
to say that "[t]he German operational area may be justified as a legitimate reprisal to the British one." William 
T. Mallison, Jr., Submarines in General and Limited Wars, Studies in the Law of Naval Warfare (1966). 

42. 5 Ray S. Baker, Woodrow Wilson, Life and Letters 247, 250-251 (1935) [hereinafter Baker]. 

43. For. Rel. 98-100 (Supp. 1915); 9 Am. J. Int'l. L. 86-88 (Spec. Supp. 1915). The United States note 
said, in part: 

To declare or exercise a right to attack any vessel entering a prescribed area without first certainly 
determining its belligerent nationality and the contraband character of the cargo would be an act so 
unprecedented in naval warfare that this Government is reluctant to believe that the Imperial 
Government of Germany contemplates it as possible. The suspicion that enemy ships are using neutral 
flags improperly can create no presumption that all ships traversing a prescribed area are subject to the 
same suspicion. It is to determine exacdy such questions that this Government understands the right 
of visit and search to have been recognized. 

44. For. Rel. 100-101 (Supp. 1915); 9 Am. J. Int'l. L. 88-89 (Spec. Supp. 1915). 

45. For. Rel. 119-120 (Supp. 1915); 9 Am. J. Int'l. L. 97-98 (Spec. Supp. 1915) 

46. For. Rel. 127-128 (Supp. 1915); 9 Am. J. Int'l. L. 99, 101, 106 (Spec. Supp. 1915). 

47. For. Rel. 393 (Supp. 1915); 9 Am. J. Int'l. L. 129, 131 (Spec. Supp. 1915). It will be noted that this 
protest repeated many of the arguments which had been advanced by the British in rejecting the proposal 
made by the United States. 



63 Levie 

48. For. Rel. 530-531 (Supp. 1915); 10 Am. J. Intl. L. 166 (Spec. Supp. 1916). One author construes 
this decision as 

a significant admission by Germany that the right of unarmed belligerent merchantmen were 
recognized by international law, and that the duty with respect to warning and the saving of human 
life was as applicable to the submarine as to the surface warship. 

Horace B. Robertson, Jr., Submarine Warfare, JAG. J. 3 (November 1956). 

49. Submarines 14 (1983). 

50. Proces- Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of 
London of 22 April 1930, signed at London, November 6, 1936, 3 Treaties and Other International Agreements 
of the United States of America, 1776-1949, at 298 (Charles I. Bevans ed.) [hereinafter Bevans]; 31 Am. J. 
Int'l L. 137 (Supp. 1937); 173 L.N.T.S. 353; 140 B.F.S.P. 300; Schindler/Toman, supra note 18, at 883. 
Although it is officially a "Proces- Verbal" it is generally referred to as a "Protocol." 

51. For. Rel. 232-234 (Supp. 1916); 10 Am. J. Int'l. L. 185, 190 (Spec. Supp. 1916). 

52. For. Rel. 257, 259 (Supp. 1916); 10 Am. J. Int'l. L. 195, 198 (Spec. Supp. 1916). 

53. For. Rel. 100 (Supp. I, 1917); 11 Am. J. Int'l. L. 332, 333 (Spec. Supp. 1917). One well-regarded 
expert in this field concluded that "in international law Germany had a good case. She failed to exploit it 
effectively in neutral eyes and eventually roused the neutrals to anger." O'Connell, supra note 37, at 48. 

54. For. Rel. 106 (Supp. I, 1917); 11 Am. J. Int'l. L. 335-337 (Spec. Supp. 1917). 

55. For. Rel. 171 (Supp. I, 1917); 11 Am. J. Int'l. L. 344-345 (Spec. Supp. 1917). The "Armed Ship 
Bill" passed the House by a lopsided margin but was successfully filibustered in the Senate. President Wilson 
then decided to exercise his authority as Commander-in-Chief to direct the Navy to furnish American 
merchantmen with guns and gun crews. Robert Lansing, War Memoirs of Robert Lansing 224-225 (1970 
ed.). 

56. For. Rel. 195, 197 (Supp. I, 1917); 11 Am. J. Int'l. L. 350, 352 (Spec. Supp. 1917). 

57. 1907 Hague Convention No. XIII Concerning the Rights and Duties of Neutral Powers in Naval 
War, signed at The Hague. October 18, 1907, 36 Stat. 2415; T.S. 545; 2 Am. J. Int'l. L. 202 (Supp. 1908); 
100 B.F.S.P. 448; Schindler/Toman, supra note 18, at 951. 

58. For. Rel. 613 (Supp. 1914); 9 Am. J. Int'l. L. 238-239 (Spec. Supp. 1915). 

59. The Dutch reply to a British protest, stated: 

The observation of a strict neutrality obliges them to place in the category of vessels assimilated to 
belligerent warships those merchant vessels of the belligerent parties that are provided with an armament 
and that consequently would be capable of committing acts of war. 

Brit. Pari. Papers, Misc., No. 14 (1917) Cd 8690, quoted in International Law Situations, 1930, at 14. 

60. Edwin Borchard, Armed Merchantmen. 34 Am. J. Int'l. L. 107, 111 (1940). 

61. Myres S. McDougal & Florentino Feliciano, Law and Minimum World Public Order 565 n. 117 
(1962). The authors also point out that: 

The construction of this "right to resist" urged by the same writers and by the British Government 
was singularly liberal. Attack was said to include the attempt to capture, and the attempt to capture 
included the attempt to exercise visit and search. In net effect, an armed merchantman was, under this 
view, entitled to start firing upon being sighted and approached by an enemy force. 

62. See supra note 29. 

63. See supra text accompanying note 29. 

64. 50 Pari. Deb., H.C. 1750 (5th ser. 1913). It will be noted that Churchill spoke of a British "armed 
merchantman" meeting a foreign "armed merchantman." Actually, he was undoubtedly referring to a foreign 
"armed merchant cruiser." Moreover, he continued to fail to make this verbal distinction. On June 11, 1913, 
during a question period, he was asked: "Is it not a fact that these ships are armed for defence only and not 
for attack?" to which he replied: "Surely these ships will be quite valueless for the purpose of attacking armed 
vessels of any kind. What they are serviceable for is to defend themselves against the attack of another vessel 
of their own standing." 53 id. at 1599 (1913). (The question was undoubtedly "planted"!) 

65. 59 id. at 1925 (1914). The extent of this operation is indicated by the fact that by the end of the war 
4,139 merchant ships had been armed. Bernard Brodie, supra note 4, at 319. During World War I Germany 
had no "armed merchantmen" although it did have some "commissioned auxiliary cruisers"; and the guns to 
which Churchill referred were very much used against "ships of war" inasmuch as they were used against 
submarines. In a memorandum of October 13, 1914, the German Government stated that the purpose of the 
armament on the merchantmen was for armed resistance against German cruisers and that "[s]uch resistance 



Targeting Enemy Merchant Shipping 64 

is contrary to international law because a merchant vessel is not permitted to defend itself against a war vessel." 
(The issue of the right of such armed vessels to remain in neutral ports more than twenty-four hours was also 
raised.) For. Rel. 613 (Supp. 1914); 9 Am. J. Int'l. L. 321 (Spec. Supp. 1916). 

66. For. Rel. 598 (Supp. 1914); 9 Am. J. Int'l. L. 223 (Spec. Supp. 1915). The British Privy Council 
has held that "it must be recollected that defence is not confined to taking to one's heels or even returning a 
blow, but, in the jargon of strategy, may consist in an offensive-defensive, or in plain words in hitting first." 
International Law Situations, 1930, at 6, 8. And as one author stated: "[I]f a surprise shell which sent down a 
submarine and its crew had been fired in self-defence, the pity is that the drowning men would be unable to 
detect its difference from an offensive shell." Kenkichi Mori, The Submarine in War 86 (1931) [hereinafter 
Mori]. 

67. For. Rel. 604 (Supp. 1914); 9 Am. J. Int'l. L. 230 (Spec. Supp. 1915). In view of the provisions of 
the 1907 Hague Convention No. XIII, supra note 57, the British Ambassador also stated that "His Majesty's 
Government hold the view that it is not in accordance with neutrality and international law to detain in neutral 
ports merchant ships armed with purely defensive armaments." For. Rel. 606 (Supp. 1914); 9 Am. J. Int'l. L. 
231 (Spec. Supp. 1915). 

68. For. Rel. 196 (Supp. 1916); 10 Am. J. Int'l. L. 332 (Spec. Supp. 1916). 

69. 10 Am. J. Int'l. L. 339, 340 (Spec. Supp. 1916). On a number of occasions the United States called 
attention to the use of guns on merchant ships for offensive purposes. See, e.g., For. Rel. 849-850 (Supp. 
1915). 

70. The same procedure was followed in World War II. 13 International Military Tribunal, Trial of 
Major War Criminals 258 (1947) [hereinafter T.M.W.C.]. 

71. For. Rel. 607, 608 (Supp. 1914); 9 Am. J. Int'l. L. 232 (Spec. Supp. 1915). 

72. See supra note 39. 

73. Lauterpacht's Oppenheim, supra note 27, at 469. Elsewhere he states that: "An overwhelming weight 
of authority recognized that their defensive armament in no way altered the legal status of these vessels." Id. 
at 468. While this is probably true as to most British writers on the subject, it is probably not true in general. 
See, e.g., infra note 74, and the Borchard article cited supra in note 60. 

74. For. Rel. 611-612 (Supp. 1914); 9 Am. J. Int'l. L. 234-235 (Spec. Supp. 1915). Secretary of State 
Bryan disagreed with this memorandum and in a letter to President Wilson he argued that "the character of 
the vessel is determined, not by whether she resists or not, but by whether she is armed or not . . . the fact 
that she is armed raises the presumption that she will use her arms." Baker, supra note 42, at 354. John Basse tt 
Moore, one of the deans of international law in the United States, said of Secretary Bryan's position that "it 
was obviously founded in law and common sense." John B. Moore, Fifty Years of International Law, 50 Harv. 
L. Rev. 395, 439 (1937). 

75. For. Rel. 749 (Supp. 1916). 

76. Robert Lansing, supra note 55, at 100-101. 

77. For. Rel. 146-148 (Supp. 1916); 10 Am. J. Int'l. L. 310, 312-313 (Spec. Supp. 1916). Of the problem 
created by permitting merchant vessels to be armed and yet considering them to be noncombatants, while 
requiring the submarine to comply with the law applicable to surface warships, one expert in the law of 
submarine warfare has written: 

It soon became apparent [in World War I] that even a British armed merchant ship sailing alone 
presented a very real military danger to German submarines which attempted to comply with traditional 
law. The predictable result of the new situation was that consideration of military necessity, as well as 
simply self-preservation, led to the submarine remaining submerged and making torpedo attacks 
without warning. 

William T. Mallison, Jr., supra note 41, at 107. A similar conclusion was reached by a number of other students 
of the problem. See, e.g., the Grotius Committee Report, supra note 14, at 155; Hyman G. Rickover, supra 
note 13, at 1223: Alex A. Kerr, International Law and the Future Of Submarine Warfare, 81 U.S. Nav. Inst. Proc. 
1105, 1109 (October 1955). 

78. For. Rel. 21 1 (Supp. 1916); 10 Am. J. Int'l. L. 336 (Spec. Supp. 1916). The other Allied Governments 
answered in the same vein. 

79. In his Memoirs, Lansing, although strongly pro-British, said: 

Briefly, the British Government wished international law enforced when they believed that it 
worked to the advantage of Great Britain and wished the law modified when the change would benefit 
Great Britain. 



65 Levie 

Robert Lansing, supra note 55, at 111. The German response was a memorandum of 10 February 1916 in 
which it was stated that armed merchantmen were not entitled to the status of peaceable vessels of commerce 
and that German naval vessels were receiving orders "to treat such vessels as belligerents." For. Rel. 163-165 
(Supp. 1916); 10 Am. J. Intl. L. 314-318 (Spec. Supp. 1916). 

80. For. Rel. 244-248 (Supp. 1916); 10 Am. J. Int'l. L. 367, 369-370 (Spec. Supp. 1916). The vacillation 
of the United States on this matter and its ultimate improper decision was pointed out with vigor by Borchard 
when the same problem arose in the early years of World War II. He termed the March 1916 memorandum 
a "humiliating retreat." Edwin Borchard, supra note 60, at 107. But see Mori, supra note 66, at 86-87. Another 
expert in the field asserted that it "represented a return to a pro-Allied policy in the guise of a return to 
traditional law." William T. Mallison, Jr., supra note 41, at 111. 

81. Inter- American Convention on Maritime Neutrality, signed at Havana, February 20, 1928, 47 Stat. 
1989; T.S. 845; 2 Bevans, supra note 50, at 721. (There are only eight Parties to this Convention, all of the 
major Latin-American nations having failed to ratify it.) Article 2 of the Harvard Research in International 
Law, Rights and Duties of Neutral States in Naval and Aerial War, 33 Am. J. Int'l. L. 167, 224 (Spec. Supp. 1939) 
provides that belligerent merchant vessels "shall, if armed for defense or offense, be assimilated to warships." 
See also Articles 28 and 55 of that document. However, Article 3(2) of the Scandinavian Declaration Regarding 
Similar Rules of Neutrality, signed at Stockholm, May 27, 1938, 188 L.N.T.S. 295, 32 Am. J. Int'l. L. 141 
(Supp. 1938) states: 

2. Access to [Danish] ports or to [Danish] territorial waters is likewise prohibited to armed merchant 
ships of the belligerents if the armament is destined to ends other than their own defense. 

82. William T. Mallison, Jr., supra note 41, at 120. 

83. It will have been noted that no mention has been made of the famous "Q-ships." These were warships 
disguised as unarmed merchant ships and were undoubtedly another reason why Germany elected to 
discontinue the practice of having a submarine surface and warn during the course of World War I. Id. at 67. 

84. 2 David H. Miller, The Drafting of the Covenant 65, 74 (1928). 

85. Treaty of Peace between the Allied and Associated Powers, of the One Part, and Germany, of the 
Other Part, signed at Versailles, June 28, 1919, 2 Bevans, supra note 50, at 43, 127; 112 B.F.S.P. 1, 94; 225 
Perry C.T.S. 188, 276. (The United States did not ratify this Treaty because of the Senate's objections to the 
Convenant of the League of Nations which was a part thereof. However, Article 191 (in Part V) was carried 
over into the Treaty Between the United States and Germany for the Establishment of Friendly Relations, 
signed at Berlin, August 25, 1921, 42 Stat. 1939; T.S. 658; 114 B.F.S.P. 828.) 

86. Within a few years of Versailles the German Navy was able to arrange to retain its expertise in the 
submarine field through the use of Dutch and Spanish connections. Erich Raeder, My Life 138-139 (1960); 
Francis L. Carsten, The Reichwehr and Politics 1918-1933, at 242-244 (1966); John Keegan, The Price of 
Admiralty 221 (1989). 

87. Conference on the Limitation of Armament, Washington, November 12, 1921 - February 6, 1922, 
at 467 (1922) [hereinafter 1922 Washington Conference]. 

88. Id. at 486. 

89. Yamato Ichihashi, The Washington Conference and After A Historical Survey 81 (1928). World 
War I had already demonstrated the correctness of the British position and World War II confirmed it. 

90. 1922 Washington Conference, supra note 87, at 610. 

91. Id. at 596. 

92. During the course of the discussion, the Italian representative stated that his delegation understood 
the term "merchant vessel" to refer to unarmed merchant vessels. Id. at 688. He adhered to this definition 
despite remonstrances from the British delegate. Id. at 690, 692. The Soviet text International Law 438 (F.I. 
Kozhevnikov ed., n.d.) indicates that the 1936 Protocol applies only to "unarmed merchantmen." 

93. Treaty between the United States of America, the British Empire, France, Italy and Japan Relating 
to the Use of Submarines and Noxious Gases in Warfare, signed at Washington, February 6, 1922, supra note 
87, at 1605; 16 Am. J. Int'l. L. 57 (Supp. 1922); Schindler/Toman, supra note 18, at 789. It must be emphasized 
that this Treaty never became effective. It required the unanimous acceptance of the drafting States and France 
refused to ratify it. Nevertheless, both the 1930 London Naval Treaty, infra note 94, and the 1936 London 
Naval Treaty, infra note 116, refer to the 1922 Washington Treaty as though it were an effective international 
agreement. 

94. Limitation and Reduction of Naval Armament (London Naval Treaty) signed at London, April 22, 
1930, 46 Stat. 2858; T.S. 830; 2 Bevans, supra note 50, at 1055; 112 L.N.T.S. 65; 132 B.F.S.P. 603. 

95. See supra note 50. 

96. 1922 Washington Conference, supra note 87, at 596. 

97. Id. 



Targeting Enemy Merchant Shipping 66 

98. Id. at 728. He added: "The peculiarity about piracy was that, though the act was done on the high 
seas and not under the jurisdiction of any particular country, nevertheless it could be punished by any country." 
Unfortunately, he had previously stated that the Conference was "competent to declare that those who violated 
the laws of war were guilty of acts of piracy." Id. at 720. Most commentators seem to have reached the 
conclusion that Hughes did. See, e.g., Herbert A. Smith, The Law and Custom of the Sea 93 n.3 (3rd ed., 
1959) where the statement is made that "[t]he Washington text was objectionable by reason of provision that 
submarine officers who broke the rule should be treated as pirates." See also infra note 121. 

99. One author calls attention to this by asserting that "the stipulation [in Article VI] dispels any 
misapprehension that the instrument would be obligatory as between the nations which have ratified it." 
Kenkichi Mori, supra note 66, at 118. But see supra note 93. In Mallison, supra note 41 at 43, the conclusion 
is reached that "the submarine came out of the Washington Conference with undiminished status as a lawful 
combatant." 

100. Lawrence H. Douglas, The Submarine and the Washington Conference of 1921, 26 Nav. War Coll. 
Rev., 86, 92 (March-April 1974); reprinted in 62 International Law Studies 479, 488 (Richard B. Lillich & 
John N. Moore, eds., 1980). 

101. 1922 Washington Conference, supra note 87, at 814, 816; 2 Bevans, supra note 50, at 346. 

102. Rules Concerning the Control of Wireless Telegraphy in Time of War, 32 Am. J. Int'l. L. 2 (Supp. 
1938); General Collection of the Laws and Customs ofWar 819, 821 (M. Deltenre ed., 1943). In his testimony 
before the International Military Tribunal after World War II, German Admiral Doenitz pointed out that 
reference to this provision was contained in a footnote to the German Prize Ordinance. 13 T.M.W.C., supra 
note 70, at 361. (Actually, it was in Article 39 (iii) of the Ordinance.) 

103. In O'Connell, supra note 37, at 19, the author apparently takes the position that using a ship's radio 
to announce the appearance of a submarine and giving its location does not affect the ship's status as he calls 
the decision to sink vessels which follow that procedure a "dilution of Germany's standards" of submarine 
warfare. 

104. See supra note 81. 

105. The International Military Tribunal paraphrased this provision by stating that "[i]f the commander 
cannot rescue, then under its [the 1936 Protocol's] terms he cannot sink a merchant vessel and should allow 
it to pass harmless before his periscope". 1 T.M.W.C., supra note 70, at 313; Nazi Conspiracy and Aggression: 
Opinion and Judgement 140 (1947) [hereinafter Nazi Conspiracy]. 

106. Documents of the London Naval Conference, 1930, at 187-202 (1930) [hereinafter 1930 London 
Conference]. 

107. Id. at 411. 

108. Id. at 444. 

109. Id. at 238. 

110. See supra note 94. 

111. In a criticism of these provisions (as reaffd in the 1936 London Submarine Protocol), one author has 
written: 

[T]he Protocol was much like an elegant carpet thrown over a littered and soiled passage, for it 
attempted reform with one sweeping gesture, while what was called for was a thorough airing and 
meticulous renovation of the laws governing submarine conduct. In essence the London Protocol was 
the product of an idealistic era which trusted in glib moralizing to right past wrongs and prevent future 
digressions. 

Barnes supra note 14, at 189. However, another author takes the position that while the 1922 Washington 
Conference was influenced by the "spirit of Versailles," in the 1930 agreement "the tone of moral disapproval 
is wanting." Hyman G. Rickover, supra note 13, at 1220 and 1221. 

112. See supra text accompanying note 93. 

113. 1930 London Conference, supra note 106, at 443. Both the 1922 and the 1930 provisions have been 
properly criticized because "they attempt a regulation of submarine warfare without at the same time 
considering the question of the armed merchantman; yet the two problems are intimately connected." 
Rickover, supra note 13, at 1221. 

114. See supra text accompanying note 102. 

115. See supra note 50. 

116. Treaty on the Limitation of Armament (Second London Naval Treaty), signed at London, March 25, 
1936, 50 Stat. 1363; T.S. 919; 3 Bevans, supra note 50, at 257; 140 B.F.S.P. 243. 

117. Documents of the London Naval Conference 1935, at 54 (1936) [hereinafter 1935 London 
Conference]. Prime Minister Baldwin's statement was confirmed by the French representative in his opening 
address. Id. at 63. 

118. Id. at 741-742 and 104. 



67 Levie 

119. Id. at 742-743. For a discussion in depth of the background of the 1935 London Naval Conference, 
and its inevitable failure, see Stephen E. Pelz, Race to Pearl Harbor (1974). 

120. 140 B.F.S.P. 300, 302. It is believed that Hitler did this as a political gesture and against the advice 
of his naval advisers. It is, perhaps, appropriate to note that when World War II began the United Kingdom 
and France both took the position that these rules applied to aircraft as well as to surface warships and 
submarines. 1 For. Rel. 547-48 (1939). 

121. The Nyon Agreement, signed at Nyon, Switzerland, Sept 14, 1937, 181 L.N.T.S. 137; 33 Am. J. 
Int'l. L. 550 (Supp. 1939); Schindler/Toman, supra note 18, at 887. The Preamble stated that the submarine 
attacks were "contrary to the most elementary dictates of humanity, which should be jusdy treated as acts of 
piracy." Thus, although the 1922 Washington Treaty, supra note 93, had never become effective, its provisions 
continued to be noted — and misinterpreted. 

122. Antonio Cassese, The Spanish Civil War and the Development of Customary Law Concerning Internal 
Armed Conflicts, Current Problems of International Law 287, 295-96 (A. Cassese ed., 1975). 

123. League of Nations, Official Journal, December 1937, at 945-46; 33 Am. J. Int'l. L. 551 (Supp. 1939). 

124. Bernard Brodie, supra note 4, at 341 . He also states that by the spring of 1939 over 9,000 officers of 
the British merchant marine had received instruction in gunnery and in convoy tactics. The statistics in 1 
Stephen W. Roskill, The War at Sea, 1939-1945, at 22 (1954) [hereinafter Roskill] disclose that by the end 
of 1940 some 3,400 ships had been fitted with low-angle guns for protection against submarines and some 
20,000 members of the Royal Navy had been trained to use these "defensive" armaments, as well as a large 
number of the members of the merchant crews. 

125. 40 T.M.W.C., supra note 70, at 88-89. The British moved to the implementation of paragraph (b) 
on 13 June, 1940. Id. at 90. It will be observed that the Handbook assumed that a merchant vessel had a right 
to use its arms to resist visit and search and capture by an enemy warship — an action that Churchill had once 
said a merchant vessel had no rights to take. See supra text accompanying note 65. 

126. 1 William M. Medlicott, The Economic Blockade 113 (1952). On the other hand, it is reported 
that until late in 1943 the primary objectives of British submarines were the enemy's surface warships. 1 Roskill, 
supra note 124, at 334. However, restrictions on attacks by British submarines on enemy merchant shipping 
were relaxed in Norwegian waters in 1940, id. at 172, and were removed in the Mediterranean on February 5, 
1941, id. at 439. 

127. Karl Doenitz, Memoirs: Ten Years and Twenty Days 35 (1959). For a discussion of the Battle of 
the Atlantic and of the convoy system, see Keegan, supra note 86, at 213-65. 

128. See infra text accompanying note 149, concerning the convoying of neutral merchant ships. See Frits 
Kalshoven, Belligerent Reprisals 139 (1971) where the following appears: 

On the other hand, neutral merchant vessels on their way to or from Great Britain in this period 
gradually took to sailing under the protection of the British navy and air force. Attacks on such escorted 
vessels could not be considered unlawful; by the voluntary acceptance of direct armed protection of 
one of the belligerents, the vessels in question assumed the character of legitimate objectives for the 
armed attacks of the other belligerent. 

A fortiori, the same rule would apply to belligerent merchant vessels in convoy. Concerning neutral merchant 
vessels in a convoy escorted by neutral warships, see Articles 61 and 62 of the 1909 Declaration of London, 
supra note 22, which sets forth the customary rule in this respect. See also Article 64a, Harvard Research, supra 
note 81, at 653 and Kyriakides v. Germany, 8 Recueil des Decisions des Tribuneaux Arbitraux Mixtes 349, 
summarized in the Harvard Research at 679. In S.S. Hall, Submarine Warfare, 5 Trans. Grot. Soc. 82, 89 (1920), 
the author, a Rear Admiral in the Royal Navy, stated that merchantmen in convoys "appear to lose their 
non-combatant standing" and that "from the day we [the British] adopted the convoy system the German 
submarine campaign became legitimate." 

129. Order in Council Restricting Further the Commerce of Germany, November 27, 1939, Stat. R. & 
O. 1939, no. 1709. For a full discussion of the contents of this Order and its effect, see Frits Kalshoven, supra 
note 128, at 118-19. For the reaction of the United States, see the U.S. note British Blockade of German Exports, 
1 Dep't St. Bull. 651 (No. 24, December 9, 1939). 

130. See supra note 39. 

131. Cmd. 6191, 1940, at 5 (as quoted in Kalshoven, supra note 128, at 143). The preamble of the Order 
in Council asserted violations by Germany of, among others, the 1936 London Submarine Protocol, supra 
note 50. One expert in this field points out that at this stage German exports were Government controlled 
and that probably the provision of the 1856 Declaration of Paris, supra note 39, did not apply "to the public 
interests of the enemy State." Kalshoven, supra note 128, at 143. (A typographical error substituting "to" for 
"not" in the original text was corrected by letter from the author, May 25, 1989.) 

132. Kalshoven, supra note 128, at 33. 



Targeting Enemy Merchant Shipping 68 

133. 360 Pari. Deb., H.C., 5th Ser., col. 1351. (There has been considerable discussion as to whether 
Churchill (and the International Military Tribunal) said, and meant, "night" or "sight". See, e.g., 10 Digest of 
International Law 663-64 (M. Whiteman ed., 1968). The Parliamentary reporter recorded it as "night" which, 
in the context of the sentence, is much more logical than "sight": otherwise the sentence would read "all 
German ships by day and all ships by sight"). 

1 34. "This order went far beyond anything contained in German orders, since it meant that in these waters 
from then onward neutral ships sailing with full lights would also be sunk by British submarines." Doenitz, 
supra note 127, at 59. (Emphasis in original.) 

135. 1 T.M.W.C, supra note 70, at 313; Nazi Conspiracy, supra note 105, at 140. 

136. German Prize Ordinance, August 28, 1939, at 149 B.F.S.P. 663. After providing that ships in convoy 
had no protection (Article 32), that forcible resistance could be overcome by force (Article 36), and that the 
use of the wireless constituted assistance to the enemy (Article 39), the Ordinance stated, in Article 74: 

(1) The destruction of vessels in accordance with articles 72 (enemy) and 73 (neutral) is only 
permissible if the passengers, the crew and the ship's papers are placed in safety before destruction. 

(2) The ship's boats are not deemed to be a place of safety unless under the prevailing conditions 
of the sea and weather the safety of the passengers and the crew is assured by the proximity of land or 
by the presence of another vessel which is capable of taking them on board. 

48 The contents of this article correspond to the London Rules of Submarine Warfare 
(printed in the annex). (Note in original.) 

The German Navy had proposed a "prohibited area" which would, in effect have been a "free fire" zone 
but this proposal was apparently rejected at that time. 7 Documents on German Foreign Policy, 1918-1945, 
at 546, Series D (1956). 

137. 7 Fuehrer's Directive No. 2, Documents on German Foreign Policy, 1918-1945, at 548, Series D 
(1956). 

138. Fuehrer's Directive No. 4, Fuehrer's Directives for the Conduct of the War 53, 54 (1947). A British 
historian aserts that these decisions "were not issued in any altruistic spirit but in the hope that after Poland 
had been crushed, Britain and France — and especially the latter 1 — would make peace. As soon as it was realised 
that this hope was vain, removal of the restrictions on the methods of waging war at sea started." 1 Roskill, 
supra note 124, at 103. He is undoubtedly correct. 

139. 1 Fuehrer Conferences on Matters Dealing with the German Navy 9 (1947). 

140. 8 Fuehrer's Directive No. 5, Documents on German Foreign Policy, 1918-1945, at 176, 177, Series 
D (1954). Fuehrer's Directive No. 7, October 18, 1939, id. at 316, authorized the Navy to "attack enemy 
passenger ships which are in a convoy or sailing without lights." 

141. In his cross-examination before the International Military Tribunal, Doenitz stated: 

If a merchant ship sails without lights, it must run the risk of being taken for a warship, because at 
night it is not possible to distinguish between a merchant ship and a warship. At the time the order 
was issued, it concerned an operational area in which blacked-out troop transports were traveling from 
England to France. 

13 T.M.W.C., supra note 70, at 357. 

142. See supra notes 102 and 103. See also Doenitz's testimony before the International Military Tribunal, 
13 T.M.W.C, supra note 70, at 253. 

143. The Athenia, a passenger vessel, had been torpedoed without warning by a German U-boat on 
September 4, 1939. The Germans denied that its sinking had resulted from the action of a German U-boat 
and accused Churchill of having ordered a British submarine to sink the vessel in order to stir up feeling against 
Germany. When German officials learned that the Athenia had, indeed, been the victim of a German torpedo 
they continued to deny this and it was not until after the war had ended that the truth was learned 1 T.M.W.C, 
supra note 70, at 316; Nazi Conspiracy, supra note 105, at 143. 

144. In 2 George Schwarzenberger, International Law as Applied by International Courts and Tribunals 
433 (1968), the following apt statement appears: 

It is always possible to maintain legal continuity on this issue [warfare at sea] by explaining the 
departures from the traditional law by way of reprisals and counter-reprisals. At least in the relations 
between the belligerents, this type of argument can claim a modicum of formal validity. In substance, 
however, reasoning on these lines merely hides a breakdown of the law and the resumption by 
belligerents at sea of an almost complete freedom of action. 



69 Levie 

145. Karl Doenitz, supra note 127, at 58-59. The International Military Tribunal had found more or less 
to the same effect. 1 T.M.W.C., supra note 70, at 311-12; Nazi Conspiracy, supra note 105, at 138-139. 
Compare the enumeration of events leading to unrestricted warfare by Germany during World War II which 
appears in 1 Roskill, supra note 124, at 103-104. 

146. In Mallison, supra note 41, at 66-67, the author takes the position that "the actual British blockade 
methods [such as including food on the list of contraband] also provided adequate justification for the submarine 
operational zones as a legitimate reprisal." 

147. Frits Kalshoven, supra note 128, at 128. In his testimony before the International Military Tribunal 
Doenitz said: 

It is a matter of course that if a ship has a gun on board she will use it. It would have been a 
one-sided obligation if the submarine, in a suicidal way, were then to wait until the other ship fired 
the first shot. That is a reciprocal agreement, and one cannot in any circumstances expect the submarine 
to wait until it gets hit first. And as I have said before, in practice the steamers used their guns as soon 
as they came within range. 

13 T.M.W.C, supra note 70, at 360. 

148. See, e.g., Edwin I. Nwogugu, Submarine Warfare, The Law of Naval Warfare 358-59 (N. Ronzitti 
ed., 1988) [hereinafter Nwogugu]. See also Robert W. Tucker, 50 International Law Studies 68 (1957). There 
does not appear to have been any dispute that merchant vessels, armed or unarmed, sailing in a convoy under 
the protection of warships, were beyond the ambit of the Protocol, even though the British did attempt to 
entice neutral ships into their convoys by claiming that such action "affords neutral merchant vessels greater 
protection and does not signify a breach of neutrality" and the Germans disagreed. 8 Documents on German 
Foreign Policy, 1918-1945, at 319-20, Series D (1954). 

149. U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations 
(NWP 9), 1987, para. 8.2.2.2. [hereinafter Commander's Handbook]. 

150. Joint Resolution to Preserve the Neutrality and Peace of the United States etc., November 4, 1939, 
54 Stat. 4; 34 Am. J. Intl. L. 44, 51 (Supp. 1940). 

151. Presidential Proclamation of November 4, 1939, Use of Ports or Territorial Waters of the United States 
by Submarines of Foreign Belligerent States, 54 Stat. 2672 (1939); 1 Dep't St. Bull. 456 (No. 19, November 4, 
1939); International Law Situations 1939, at 48 (Paul S. Wild ed., 1940). 

152. Edwin Borchard, supra note 60, at 107. He pointed out that these ships were far more powerful than 
their World War I predecessors as they carried four six-inch guns, mounted fore and aft. See supra text 
accompaning note 65. 

153. Presidential Proclamation of November 4, 1939, Definition of Combat Areas, 54 Stat. 2673 (1939); 1 
Dep't St. Bull. 454-55 (No. 19, November 4, 1939); 1939 International Law Situations, supra note 151, at 
146. Germany urged other neutrals to designate a similar zone. 

154. 13 T.M.W.C, supra note 70, at 365. One author goes even further, asserting that: "There is no 
logical difference between the merchant ship on the one hand and the railroad train or the factory on the 
other." Alex A. Kerr, supra note 77, at 1 108. 

155. 13 T.M.W.C, supra note 70, at 367. Later answers indicated that he was referring to the provisions 
of Article 16 of the 1907 Hague Convention No. X for the Adaptation to Maritime Warfare of the Principles 
of the Geneva Convention, signed at The Hague, October 18, 1907, 36 Stat. 2371; 2 Am. J. Int'l. L. 153 
(Supp. 1908); Schindler/Toman, supra note 18, at 313. 

156. 1 T.M.W.C. supra note 70, at 312-13; Nazi Conspiracy, supra note 105, at 139. 

157. Another argument criticizing the Tribunal's logic on this matter will be found in Mallison, supra 
note 41, at 80, where the author points out: 

There is no indication that the Tribunal gave careful consideration to the alternative interpretation 
that the Protocol was inapplicable in operational areas since there was no international agreement on 
this subject. Such an interpretation was advanced by Kranzbuhler [Doenitz's defense attorney] and it 
is at the very least as plausible as the interpretation selected by the Tribunal. It is more plausible if the 
operational area is evaluated as too important to be dealt with by implication. 

The authors of two post-war studies of submarine warfare both recommend the affirmative legalization of 
"war zones" or "operational zones." Alex A. Kerr, supra note 77, at 1 109; and Barnes, supra note 14, at 197-98. 

158. See, e.g., the testimony of Admiral Gerhard Wagner, 13 T.M.W.C. supra note 70, at 453. See also 
supra the text accompanying note 36. 

159. 13 T.M.W.C. supra note 70, at 281-95; James McMillan, Five Men at Nuremberg 181-85 (1985). 

160. 35 T.M.W.C. supra note 70, at 270. 



Targeting Enemy Merchant Shipping 70 

161. Judgment of the International Military Tribunal for the Far East, November 4-12, 1948, at 1072-73 
(mimeo, n.d.) [hereinafter Judgment]; 1 The Tokyo Judgment 412 (B.V.A. Roling & C.F. Ruter ed., 1977) 
[hereinafter The Tokyo Judgement] definitely implemented by the Japanese. Judgment, 1073-74; The Tokyo 
Judgment, supra. 

162. 1 T.M.W.C., supra note 70, at 313; Nazi Conspiracy, supra note 105, at 139-40. Concerning the 
Laconia order, one analysis states: 

The ambiguity of the order apparendy was considered to stem from an uncertainty as to whether 
its intent was only to forbid submarine commanders from making any attempt to rescue survivors or 
was intended to enjoin them deliberately to kill survivors. The International Military Tribunal seemed 
to have been of the opinion that if the former interpretation was intended the order was a lawful one. 
But even this opinion is doubtful, since the rule in question allows only for circumstances of operational 
necessity. The most favorable interpretation of the Laconia Order was that it laid down a policy of no 
rescue, not solely — or perhaps not even primarily — for reasons of operational necessity, but because 
rescue was deemed to run "counter to the rudimentary demands of war for the destruction of enemy 
ships and crews." On this basis alone the unlawful character of the order would seem to be readily 
apparent. 

Tucker, supra note 148, at 73. 

163. One commentator construes this portion of the opinion as indicating that the Tribunal had found 
that "the British merchant marine was no longer entitled to be considered as non-combatant. It had become 
an auxiliary to the British naval forces." Horace B. Robertson, Jr., supra note 48, at 6-7. 

164. 1 T.M.W.C., supra note 70, at 311-13; Nazi Conspiracy, supra note 105, at 138-40. The Tribunal 
made the same findings on these charges with respect to German Grand Admiral Raeder. 1 T.M.W.C. 317; 
Nazi Conspiracy 143. 

165. Frits Kalshoven, supra note 128, at 139-40. 

166. Commander's Handbook, supra note 149, at para. 8.2.2.2. Relevant quotations from this volume 
will also be found in the text accompanying notes 149, supra, and 168, infra. Earlier the U.S. Navy had issued 
Law of Naval Warfare (NWIP 10-2) (1955) [hereinafter Law of Naval Warfare]. Strange to relate, there is no 
mention of the submarine in that volume. The word "submarine" does not even appear in its Index! 

167. A Soviet volume entitled The International Law of the Sea recendy published in English in Moscow 
(LP. Blishchenko, gen., 1988) states, at 229: 

The arming of merchant ships in contravention of the VII Hague Convention on the transformation 
of merchant ships into naval vessels, especially accompanied by a request of civilian status for armed 
ships, eliminates the difference between military and civilian objects. In this case such ships cannot be 
regarded either as noncombatants or as legitimate combatants, and therefore cannot be protected under 
international law. 

It is of interest to note that Russia never ratified the 1907 Hague Convention No. VII and that the Soviet 
Union is not a Party thereto. 

168. Law of Naval Warfare, supra note 166, at para. 503b(3). 

169. Commander's Handbook, supra note 149, at para. 8.3.1. 

170. Edwin I. Nwogugu, supra note 148, at 355-56. 

171. Of the publicists whose works have been reviewed who express an opinion on the subject, the 
following take the position that the 1936 London Submarine Protocol is still binding law: Eric Castren, The 
Present Law of War and Neutrality 289 (1954); C. John Colombos, The International Law of the Sea 388 
(3d ed., 1954); Gerald I.A.D. Draper, Rules Governing the Conduct of Hostilities — the Laws of War and Their 
Enforcement, 18 Nav. War Coll. Rev. 22, 30 (November 1965), reprinted in 62 International Law Studies 247 
(Richard B. Lillich &John Norton Moore eds., 1980); William T. Mallison.Jr., supra note 41, at 118-1221; 
Edwin I. Nwogugu, supra note 148, at 359-60; Daniel P. O'Connell, supra note 37, at 52; Horace B. Robertson, 
Jr., Submarine Warfare, in JAG J. 7 (November 1956); Herbert A. Smith, The Law and Custom of the Sea 198 
(3rd ed., 1959); and Robert W. Tucker, supra note 148, at 352. The United States Navy's position, as expressed 
in Commander's Handbook supra note 149, at para. 8.3.1 is to the same effect. See supra text accompanying 
note 169. The publicists taking the position that the 1936 London Submarine Protocol is no longer an effective 
part of the law of maritime warfare include Barnes, Submarine Warfare and International Law, 2 World Polity 
121, 187 (1960); Kerr, supra note 77, at 1110; William O. Miller, The Law of Naval Warfare, 24 Nav. War 
Coll. Rev. 35 (February 1972), reprinted in 61 International Law Studies 263 (Richard B. Lillich &John Norton 
Moore eds., 1980); W. Hays Parks, Conventional Aerial Bombing and the Law of War, 108 U.S. Nav. Inst. Proc. 
98, 106 (May 1982); and Julius Stone, Legal Controls of International Conflict 428 (2nd. imp., 1959). As 
quoted in O'Connell, supra note 37, at 51, the 1966 Manual of International Maritime Law of the Soviet 



71 Levie 

Navy states that submarine warfare is regulated by the Protocol, among other treaties, and then says that all of 
these rules are obsolete. 

172. Robert W. Tucker, supra note 1 48, at 66. In answer to interrogatories prepared by Doenitz's defense 
counsel, Admiral Chester Nimitz, Commander-inChief of the United States Pacific Fleet at the time of the 
attack on Pearl Harbor on December 7, 1941, stated that on that date he had received a message ordering 
unrestricted submarine warfare. 40 T.M.W.C., supra note 70, at 108-11. This could, of course, also be 
attributed to the nature of the attack on Pearl Harbor. 

173. Japanese merchant ships acted very much the same as British merchant ships, being armed, reporting 
submarine sightings, attempting to ram, etc. William T. Mallison, Jr., supra note 41, at 89-90. This would 
have justified unrestricted submarine warfare in the Pacific by the United States. However, it would not be a 
justification for such action from the very first day of the war. Another author justifies the action of the United 
States on the basis that the Japanese merchant marine was integrated into the Japanese Navy (armed, sent radio 
sightings, etc.), that there was no danger to neutrals (there were no neutral vessels in the Pacific), and that 
there were no neutrals in the declared operational zones. Horace B. Robertson, Jr., supra note 48, at 8. 

174. John Keegan, supra note 86, at 274-75. The final chapter of this book (266-75) contains a succinct 
discussion of the tremendous technical evolution which the submarine has undergone since the end of World 
War II. 



Targeting Enemy Merchant Shipping 72 

Comments on Howard S. Levie's Paper: 

Submarine Warfare: With Emphasis on the 

1 936 London Protocol 



By 
A. V. Lowe * 



Comments on the Conduct of Submarine Warfare 1 920-1 936 

The story of the negotiations on submarine warfare during the inter- War 
years is an instructive one and I would like to single out some of the points which 
contain lessons for us now. I will try to confine myself to the subject of this 
session, and not to stray into the subject of the next, on the practice of the 
belligerents in World War Two. 

First, I would like to say something about the circumstances of the negotia- 
tions from the British viewpoint. Howard Levie notes that Britain proposed the 
total abolition of submarines at the 1921 Washington Conference and the 1930 
London Conference. The context in which Britain made those proposals is 
interesting, for behind them lay a considerable ambivalence in the British 
position. The most distinguished historian of British naval history during this 
period has concluded that Britain never entertained any serious expectation of 
abolition being accepted. 

It is true that there was a widespread view that submarines were an unaccep- 
table means of waging war. Admiral Wilson had described them, before the First 
World War, as "unfair, underhand, and damned un-British"; and it is known 
that King George V put strong pressure on the British Prime Minister Ramsay 
MacDonald, just before the 1930 London Conference, to secure the abolition 
of what he called "this terrible weapon". But the British Navy was less 
convinced. The Admiralty's reply to the King was that the Royal Navy would 
gladly give up submarines in conjunction with all the other nations of the world, 
but that the French would not agree to give them up. 

That might appear to be simple prudence in the face of the impending 
negotiations. But it seems that the Royal Navy did not entirely share the view 
expressed by U.S. Admiral William V. Pratt in 1930, when he said that the 
importance of submarines would diminish and that they could be controlled by 
good air work; although it is true that the Navy believed that the development 
of Asdic had reduced the submarine threat very considerably. In 1929 the British 
Admiral Sir John Fisher had conducted a review of Britain's naval needs. He 
had in mind primarily the possibility of a future threat from Japan, then the 
largest naval power after the United States, and envisaged the creation of a major 



73 Lowe 

naval base in Singapore to counter the local supremacy with which Japan had 
been left in the Far East after the 1922 Conference. Fisher concluded that 
Britain's war needs would include 60 large submarines for overseas patrol and 
fleet work. The Cabinet Fighting Services Committee recommended in January 
1930 that 3 new submarines should be laid down in the following year. But the 
Treasury sought budget cuts, and also argued that it was inappropriate to include 
new submarines in the procurement programme when Britain was arguing for 
their abolition at the impending naval conference. The Treasury cut all the 
submarines from the plans; but in the light of the French attitude at the 1930 
Conference, and in the face of opposition within the Government to the defense 
cuts, it was ultimately decided to restore the submarine. Britain built 3 sub- 
marines each year between 1930 and 1935, then 8 in 1936 and 7 in 1937. This 
compares with a total of 19 built during the 1920's. 

It was, perhaps, just as well that Britain did not entirely hold back on 
submarine procurement during the years when it was seeking abolition and 
announcing its willingness to scrap its entire submarine fleet if others would 
follow suit. Although Germany, in common with Austria, Hungary, Bulgaria 
and Turkey, was bound by the Treaty of Versailles not to construct any 
submarines even for commercial purposes, it subsequently came to light that 
throughout the 1920's and 1930's German plans for the construction of modern 
submarines were being kept up to date at a secret office in the Hague. 

In the autumn of 1933 Hitler made known that, in the words of Anthony 
Eden (then in the British Foreign Office), besides seeking "a certain eastward 
expansion in eastern Europe he also wanted some submarines". He secured 
British agreement to this in the Anglo-German Naval Agreement of 1935, on 
condition that Germany would not build a navy of more than 35% of the strength 
of the British fleet or more than 45% of the British submarine strength - an offer 
which Britain thought too good to refuse. 

Under the agreement, however, Germany was to retain the right to build up 
to 100% of the British submarine tonnage "in the event of a situation arising 
which, in their opinion (i.e., Germany's opinion) makes it necessary for 
Germany to avail herself of her right." In fact, Germany had already been 
building submarines secretly in segments, ready for assembly, at various secret 
bases. (Germany was not alone in this practice: the US secretly shipped 
submarines in sections to Canada at a stage in the First World War when the 
US was neutral and Canada belligerent). 

As Howard Levie has noted, the successive failures of attempts to ban the 
submarine were followed by attempts to constrain the manner in which they 
might be used. This familiar shift in policy was, I think, one of the saddest and 
most bewildering episodes in arms limitation. Article 4 of the 1922 Washington 
Treaty strikes me as a statement of real pathos. It is difficult now to imagine how 
hard-bitten men who had seen the horrors of World War I could agree to a 



Targeting Enemy Merchant Shipping 74 

clause saying that "The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without, violating . . . the require- 
ments universally accepted by civilized nations", and then go on to pledge 
themselves not to use submarines as commerce destroyers. It seems Utopian to 
agree to forego the very role for which submarines had shown themselves best 
suited - it should be recalled that while not a single life was lost to submarine 
attack among the troops transported during World War I (excepting those on 
hospital ships), 20,000 civilian lives and 12 million tons of shipping were lost 
through attacks on merchants ships which threatened to bring Britain to its knees 
before the United States intervened in the War - and it is hard to see how the 
drafters of the Washington Treaty could have expected that act of self-denial to 
be adhered to in later conflicts. 

What are the lessons of this episode? It is tempting to conclude that arms 
abolition or limitation agreements can never withstand situations where the 
survival of the State appears to depend upon their violation. Indeed, there is 
something to be said for this view. But it is, perhaps, too crude. The first lesson 
I derive from these events is that arms limitation agreements exercise their 
primary influence in time of peace, not war. This may be a commonplace, but 
I think that the truth is an important one. 

It is evident that British thinking throughout the 1920's was powerfully 
influenced by the existence of the bans included in the peace treaties which 
folio wed World War I, on the construction of submarines by Germany. The 
paper agreement was too insubstantial to prevent Germany building submarines, 
but influential enough to blinker British perceptions of the kind of naval threat 
which the Royal Navy might have to meet. In that decade, naval thinking was, 
quite simply, not directed towards what turned out to be the first major threat 
faced by the Navy. It was not until 1934 that the British Chiefs of Staff came to 
consider Germany to be both a greater and a more immediate threat than Japan, 
and not until 1939 that Britain adopted a "two fleet" policy, preparing inde- 
pendent fleets in Europe and the Far East to meet the German and Japanese 
threats of that time. 

The peculiar magic of the treaty wrought other constraints. I have noted the 
manner in which the Treasury, keen as ever to make economies, used British 
proposals for the abolition of submarines as an argument for not building them. 
The logic of the Treasury argument is impeccable. Fortunately, British procure- 
ment policy did not follow logical lines. 

The abjuration of certain uses of the submarine made it politically impossible 
to train naval personnel in the inter- war years in the task of attacking merchant 
ships, and I suspect that little training was given in the defense of merchant ships 
against submarine attacks. Training for proscribed activities seemed unnecessary 
and improper, and as a result when World War II broke out the wartime role 
of submarines bore little relation to their peacetime tactical training. 



75 Lowe 

Furthermore, the effects upon morale in the submarine service of fifteen years 
of attempts to secure its abolition and of repeated assertions of the inhumanity 
of the submarine should not be underestimated. Stephen Roskill, the leading 
historian of British naval policy in this period, has observed that submarine 
officers in this period conducted themselves too much in the spirit and guise of 
a "private navy'* whose arcane mysteries were not for communication to 
outsiders - a problem exacerbated by the small number of submarine specialists 
on the Naval Staff proper and the failure to integrate their weapons into the 
fleet's strategy and tactics as a whole. 

In all these ways, the Treaty negotiations and agreements exercised a powerful 
influence on the Navy's preparedness for submarine warfare. But as we know, 
they exercised little influence on the actual use of submarines during World War 
II. 

Perhaps a more cautious inference is therefore legitimate: that arms 
negotiators should have their eyes set as much, if not more, on the peacetime 
implications of their work as on the effect which their agreements might have 
on the conduct of hostilities. Perhaps, too, we should deduce that no arms 
limitation agreement should be expected to survive the historical context in 
which it was negotiated. The world in 1935 was a rather different place from 
the world in 1920 or 1922; and in retrospect it was a clear mistake for the British 
at the time of Fisher's 1929 review and of the 1935 Anglo-German Naval 
Agreement to have their eyes set on the Treaty of Versailles and the Washington 
Treaty, rather than on the likely course of the events unfolding in Europe in the 
1930's. 

The world has changed much more since that time. Two developments seem 
to me to be of particular importance. The first is the drafting of the UN Charter. 
As you know, the Charter builds on the prohibition on the waging of aggressive 
war set out in the Kellog-Briand Pact and forbids the unilateral threat or use of 
force in international relations except in self defense. 

Although the point may seem rather abstract, I believe that this has a significant 
effect upon thinking. Since all unilateral uses of force under the Charter appear 
to require justification in terms of self defense, it seems to me to be that much 
harder to draw lines between legitimate and illegitimate weapons and between 
lawful and unlawful tactics. Since all force is now claimed to be force used in 
self defense, there is an apparent inbuilt moral bias in favour of the use of force 
and the purposes for which it is used. When war was permitted, it made sense 
to ask if the war was right or wrong. It is harder to ask if it is right to use force 
in self defense. This inevitably influences attempts to prohibit the use of force 
in general, and of particular weapons, such as submarines, and tactics. 

There is a further aspect of this problem, deriving less from the Charter itself 
than from the significance which we attach to it. It is no secret that during the 
recent Gulf war, as during the 1982 Falklands conflict, Britain regarded not only 



Targeting Enemy Merchant Shipping 76 

the rights of the combatants, but also the right of the Royal Navy to use force 
as being limited by article 51 of the U.N. Charter. The United States took a 
markedly different view, apparently regarding the conflict as falling for analysis 
within the traditional categories of belligerent and neutral rights and duties. On 
the latter view, for instance, belligerent rights of visit and search are significantly 
wider than on the view that each instance of visit and search must be justified 
under article 51.1 suspect that this lack of accord over the nature of the conflict 
was one factor which made it difficult to agree to joint rules for all the western 
fleets operating in the Gulf. It would similarly impede attempts to agree upon 
rules for the operation of submarines. 

The second development is that submarines are no longer a homogeneous 
class, if indeed they ever were. The roles of attack submarines and submarines 
carrying the nuclear deterrent are very different, as are the threats which each 
presents. The kind of action which might be justifiable by foreign naval or 
merchant ships in defense against the threat which one type of submarine is 
perceived to present is by no means necessarily the same as the kind of action 
which might be justified against the other. I hope that we will be able to pick 
up these points later on. 

But let me return to the specific question of the pre-War attempts to regulate 
the use of submarines. The difficulty of the submarine was not unique. The 
submarine was designed as a weapon system which could not be used optimally 
without violating pre-existent rules of law. The same is true of nuclear weapons. 
And, I might add, the development of weapons such as the stealth bomber seems 
to me to erode the practicality of persisting with the established rules on self 
defense: I wonder how much sense it makes to adhere to the view that self 
defense exists only in the face of an imminent attack at the same time that we 
seek to develop weapons systems which minimize or eliminate all warning of 
an attack. But it is plain that the submarine was not itself the entire problem. 
What caused the difficulty was the mismatch between one of its prime natural 
targets - the merchant ship - and the inevitable operational constraints of the 
submarine itself. Submarines are good at sinking merchant ships. Often they 
cannot take survivors on board. Often, they cannot function effectively as 
weapons systems without violating the traditional laws of war. 

Perhaps we should have approached that problem in the 1920's not by looking 
at the submarine, but by concentrating harder upon the merchant ship. Some 
attention was given to the problem of arming merchant ships; but States were 
reluctant to see them armed, and would doubtless have rejected any legal 
presumption that they were armed and therefore hostile. That view has some 
force as long as there are merchant ships which have occasion to exercise their 
freedom of the seas without making a contribution to the war effort of the 
belligerent in doing so. It makes sense while there is a clear distinction between 



77 Lowe 

contraband and non-contraband goods. And it makes sense in circumstances 
where the distinction between combatants and non-combatants is clear. 

If it had been accepted that merchant ships were legitimate targets, more 
attention might have been paid to the question of how they could best be 
defended. That would, of course, have had implications for the design and 
construction both of merchant ships and warships, and for the kind of tactical 
training in which the Navy engaged. 

The question I am raising can be put simply. Does it make sense to distinguish 
between enemy warships and enemy merchant ships in the context of all-out 
conflict, such as occurred in World War II and, more recently, in the Gulf war? 
Are not both integral parts of the war effort? Are not both legitimate targets? 
And if so, are the lives of civilian crews to be given a greater degree of protection 
than is afforded to civilians living near the targets of aerial bombardment? 

I express no opinion on the morality of this view, although I believe that to 
be a crucial question to which the closest consideration must be given. I seek 
only to draw attention to what strikes me as an inconsistency in the reasoning 
which seeks to distinguish between the two cases. 

Finally, let me make two points. The first is that the comments I have made 
already are directed primarily at situations of all-out war. The position in more 
limited hostilities - and particularly in hostilities more limited in duration, where 
continuity of supplies may be relatively less important - may well be very 
different. 

The last, and related point, is that I agree with all Howard Levie's conclusions, 
including the conclusion that the operation of exclusion zones may render the 
limitations on the actions of submarines irrelevant or inoperable. In the context 
of all-out conflict I agree for the reasons which I have stated. In more limited 
conflicts the reasoning is rather different. 

Briefly, I think that with modern weapons systems the difficulties of deter- 
mining hostility on the part of vessels encountered by warships (whether they 
be other warships or merchant ships which might use limited armaments or 
ramming to damage or destroy a submarine) are practically insuperable. Zones 
of reasonable extent in which hostile intent is presumed on the part of all ships 
transiting without notice or permission seem the best device we have come up 
with so far for meeting this problem. If such zones operate, in conjunction with 
a system of permits for transit of the zone on particular routes at particular times 
and for particular ships, as an extension of the old navicert system, then many 
of the problems concerning limitations on the operation of submarines are 
overcome, or at least rendered irrelevant. 

*Faculty of Law, Cambridge University, United Kingdom. 



Targeting Enemy Merchant Shipping 78 

Comments on Howard S. Levie's Paper: 

Submarine Warfare: With Emphasis on the 

1 936 London Protocol 



By 

Dieter Fleck * 



The 1 936 London Protocol in Today's Perspective 

Professor Levie's study offers an impressive historical review of a develop- 
ment that finally has led to the present state of complex arguments, controversial 
opinions and uncertain results. I agree with his statement that for the conduct 
of submarine operations such important issues as the arming of merchantmen 
and their sailing under military convoy, the use of false colors, the establishment 
of "war zones,'* the sinking of merchantmen without warning, and failure to 
assure the safety of passengers and crews are relevant. While it is certainly true 
that only the latter two issues were expressly addressed in the 1936 London 
Protocol, a present-day interpretation of this instrument must be based on a 
wider spectrum of aspects relevant in this context. 

Let me try to formulate a European opinion on the question as to what extent 
the 1936 London Protocol is still valid today. This includes the question of which 
existing rules should be reaffirmed or further developed in international coopera- 
tion. I do not attempt to give definite answers since the topic has rightly been 
described as one of the least developed areas of the law of armed conflict. I 
consider it a pioneer achievement that this subject has been taken up in the NWP 
9 - the first time in a modern military manual - and I believe that the comments 
and, indeed, also dissenting opinions should be discussed in detail to strengthen 
international cooperation. 

I. Actions Against Enemy Merchantmen 

A systematic evaluation of existing rules for "action with regard to merchant 
ships", to use the language of the 1936 London Protocol, has to start with a 
definition. What do we mean by "merchant ships"? What are the conditions 
under which such ships would loose their status as civilian objects protected 
under international law? Merchant ships may only be attacked if they comply 
with the definition of a military objective, i.e. if by their nature, location, purpose 
or use such ships make an effective contribution to military action and their total 
or partial destruction, capture or neutralization, in the circumstances ruling at 
the time, offers a definite military advantage. 



79 Fleck 

The key problem posed by this definition is how to define an "effective 
contribution to military action" and how such a contribution can be concluded 
from the nature, location, purpose or use of the particular object. It has correctly 
been argued that "no basis will be found until the whole matter is conscientiously 
viewed in the context of the full emergence of the economic arm of warfare, 
with the annihilation of enemy maritime commerce as a major naval objective. " 
But legal criteria to be developed for this purpose can hardly be different in land, 
sea, and air warfare: The standards are uniform, even if their implementation 
poses specific problems in the different theatres. 

A list of activities liable to render enemy merchant vessels military objectives 
was recently discussed in detail at the Bochum Round Table of Experts, 
convened by the International Institute of Humanitarian Law (San Remo) under 
its 1988 Madrid plan of action. The results go far beyond a simple reference to 
ships that are armed or are sailing under enemy military convoy. Also, certain 
qualifications were formulated that could deserve consideration by all who 
implement or interpret existing national bright line rules. The Bochum Round 
Table has defined eight categories in which enemy merchant vessels are to be 
considered as military objectives: 

(1) engaging in acts of war on behalf of the enemy, e.g. laying mines, 
minesweeping, cutting undersea cables and pipelines, visiting neutral 
merchant ships for the purpose of search, or attacking other merchant ships; 

(2) acting as auxiliaries to the enemy's armed forces; e.g. troop carrying or 
replenishing warships; 

(3) being incorporated into, or assisting the enemy's intelligence system; 

(4) sailing under convoy of enemy warships or military aircraft; 

(5) refusing an order to stop or actively resisting visit, search or capture; 

(6) being armed to an extent that they could inflict considerable damage 
on a warship (this excludes small arms for the defense of personnel, e.g. 
against pirates, and purely deflective systems); 

(7) being engaged in the enemy's war-fighting effort, e.g. carrying military 
materials; or 

(8) being engaged in any other activity bringing them within the definition 
of a military objective. 

In some aspects these categories are more specific than the NWP 9. The latter 
is phrased in general terms as far as military objectives are concerned. It uses a 
very similar list of categories to define the circumstances under which enemy 
merchant vessels may be attacked and destroyed by surface warships. The authors 
suggest that these categories were modifications of the 1936 London Protocol 
"in light of current technology, including satellite communications, over-the- 
horizon weapons, and antiship missile systems, as well as the customary practice 



Targeting Enemy Merchant Shipping 80 

of belligerents that evolved during and following World War II. Is such complex 
argumentation necessary? The London Protocol did not establish rules for surface 
warships but reaffirmed the applicability of existing rules to submarine warfare. 
Such rules did not and do not include a special protection for military objectives. 
Merchant ships which fall under one of the eight categories described earlier are 
military objectives and cannot, therefore, be expected to be safe against attacks. 
Indeed, the London Protocol could not extend to "warshiplike merchant- 
ment". The prohibition of the effective use of submarines against such ships 
was not part of the London Protocol. Attacks must, however, be confined to 
military objectives and they must comply with the principles of proportionality 
and necessity. 

As far as submarine warfare is concerned, NWP 9 states that the London 
Protocol, coupled 'with the customary practice of belligerents, imposes upon 
submarines the responsibility to provide for the safety of passengers, crew, and 
ship's papers before destroying 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-fight- 
ing/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. 

But should attacks on certain merchant ships be made dependent upon a 
decision that the enemy has integrated its merchant shipping in general under 
its war-fighting or war-sustaining effort? Should such attacks on the other hand 
be considered lawful in all situations where they may be deemed necessary for 
mission accomplishment? A thorough assessment shows that the definition of 
military objectives in the specific situation offers the best possible criterion for 
drawing the line between legal and illegal attacks at sea. Mission accomplishment 
in my opinion is too vague a notion to allow for clear legal qualifications. 

The implementation of the described categories of military objectives is still 
difficult enough in practice. Identification of arms may pose problems, even if 
we no longer insist on the impossible investigation of whether a certain 
armament has been used, or is intended for use, offensively against an enemy. 
Merchant ships involved in armed conflicts since 1945 have wisely avoided 
armament. Effective contribution to military action is a legal term of art which 



81 Fleck 

requires policy decisions to be taken in practice. Such decisions are dependent 
upon the threat imposed and the military advantage anticipated. Armed forces 
which adhere to the principle of damage limitation will be rather restrictive in 
this respect. In all circumstances the rule of proportionality requires responsible 
commanders to abstain from attack when seizure or capture are possible by other 
means. 

II. Actions Against Merchant Vessels of Non-Belligerents 

A slightly different approach for action with regard to vessels of non-bel- 
ligerents should be considered in this context. It was discussed at the Bochum 
Round Table that such vessels may not be attacked unless: 

(1) after prior warning, they intentionally and clearly refuse to stop after 
being summoned to do so; 

(2) after prior warning, they intentionally and clearly resist visit, search or 
capture; 

(3) they engage in acts of war on behalf of the enemy; 

(4) they act as auxiliaries to the enemy's armed forces; 

(5) they are incorporated into, or assist, the enemy's intelligence system; 

(6) they sail under convoy of enemy warships or military aircraft; or 

(7) they make an effective contribution to military action (e.g. carrying 
military materials) and it is not feasible for the attacking forces to first place 
passengers and crew in a place of safety. Unless the circumstances do not 
permit they are to be given a warning, so that they can reroute or take 
other precautions. 

Quite obviously, the decision to attack a merchant vessel flying the flag of a 
non-belligerent state could not be based on the simple fact of it being armed. 
Action against such ships is based on the principle of law enforcement, enforce- 
ment of control, rather than self-defense. This requires additional considerations 
in balancing the rule of proportionality. It is for this reason that prior warning 
is felt essential in case a non-belligerent merchant vessel which refuses to stop 
or resists visit, search or capture should be made the object of attack. 

III. Special Situation in War Zones 

Particular considerations are required for merchantmen sailing in a zone of 
restriction. The establishment of danger zones is widely accepted as being within 
reasonable limits of the freedom of the high seas. The proclamation of exclusion 
zones, however, which implies a sink-on-sight policy, remains controversial. 
The purpose of such exclusion zones should be directed to assist in identifying 



Targeting Enemy Merchant Shipping 82 

hostile targets and putting up a defense against hostile acts rather than to campaign 
against the enemy's war economy. All restrictions have to be limited with severe 
requirements accordingly, so that the size, location and duration of a maritime 
exclusion zone reflect the principles of proportionality and necessity. 

But I have difficulties in sharing Professor Levie's assumption that the 
application of the 1936 London Protocol would largely, though not entirely, be 
nullified if the establishment of maritime exclusion zones were determined a 
legal method of naval warfare. If exclusion zones were established in accordance 
with the principles I have described, the zone regime may be implemented by 
submarines as well as surface 'warships. 

IV. False Flags 

Legal experts are relatively silent on the use of deceptions by merchant ships. 
But feigning civilian or neutral status may not only serve the purpose of fulfilling 
a specific military mission but also that of simply escaping attack. Merchant ships 
have, indeed, often used false flags for better protection. While this is prohibited 
under the terms of various national laws, international law is not clear in this 
respect. There is not only the question of whether or not such feigning is 
prohibited, but also, and even more important, the question exists of possible 
consequences for the relations between merchant vessels and warships at sea. 
The transfer of enemy vessels to a neutral flag is void under the conditions set 
up in Articles 55 and 56 of the 1909 London Declaration. Enemy merchant ships 
resorting to such practice are in any event subject to lawful capture by belligerent 
warships. 

Using false flags may no longer be a desirable practice in naval warfare. At 
least the feigning of signals and flags for long distance identification, however, 
requires a distinct solution. 

V. Prior Warning 

The question of prior warning is one element of the rule of proportionality 
in the exercise of self-defense. Article 57 (2c) of Protocol I Additional to the 
Geneva Conventions reaffirms an existing rule which is applicable also in naval 
warfare. It provides that "effective advance warning shall be given of attacks 
which may affect the civilian population, unless circumstances do not permit." 
Flexibility in the implementation of this rule remains essential: the offensive use 
of weapons can create a danger for enemy submarines. In that case the latter are 

entitled to launch appropriate preemptive strikes, including sinking without 

17 

warning. 



83 Fleck 

VI. Safety for Passengers and Crew 

The 1936 London Protocol reaffirmed that merchant ships, "except in the 
case of persistent refusal to stop on being duly summoned, or of active resistance 
to visit or search," may not be sunk or rendered incapable of navigation without 
the safety of the passengers, crew and ship's papers having first been ensured. 
This clearly describes a situation where there is time for consideration and 
appropriate action to arrange for safety. The merchant ship must not persistently 
refuse to stop and must not actively resist a visit or search if such protection is 
to be claimed. Submarines engaged in such situations are by definition well in 
a position to arrange for the safety of passengers and crew since there is no 
immediate threat from the latter that excludes such action. 

On the other hand the London Protocol does not address the question of 
rescuing personnel after the sinking of a ship. The search for and rescue of 
survivors after each naval engagement is a legal requirement which stems from 
the prohibition of unnecessary suffering. Article 18 of the Second Geneva 
Convention of 1949 provides that 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-treat- 
ment, to ensure their adequate care, and to search for the dead and prevent their 
being despoiled." As Pictet put it in his commentary, the obligation to act 
without delay is strict; but only measures within the possibilities of the parties 
are to be taken, for one cannot lay down an absolute rule that the commander 
of a warship must engage in rescue operations if, by so doing he would expose 
his vessel to attack. In this regard Protocol I Additional to the Geneva Conven- 
tions has added important clarifications to existing conventional law: shipwreck- 
ed persons shall continue to be considered shipwrecked during their rescue, 
"provided that they continue to refrain from any act of hostility." Protection 
and care are to be rendered "to the fullest extent practicable." 

Conclusion 

Is it true to say that the 1936 London Protocol is of legal relevance only in a 
situation where the submarine can act with minimal risk on the surface, a 
situation which is hardly ever likely to occur? A careful evaluation of history 
and text of this instrument certainly supports the conclusion that it has only 
reaffirmed rules for situations where minimal risk for submarines was involved. 
The rules so interpreted have not been derogated by subsequent state practice 
and are still worth maintaining. A continuous reaffirmation of these rules is of 
political and practical importance. 

While I support Professor Levie's general statement that the 1936 London 
Protocol continues to be valid, I believe one should not draw too quick a 



Targeting Enemy Merchant Shipping 84 

conclusion by arguing that compliance 'with its rules can be expected in limited 
conflicts only. If this argument held true there would still remain the problem 
of how to define the difference between general and limited armed conflicts, for 
though even recent wars may have been limited in terms of participation, theatre, 
and weapons employed, they have not necessarily been limited from the point 
of view of the belligerents. The remaining task in my opinion is, therefore, 
not only to maintain and properly implement the 1936 London Protocol in all 
types of armed conflict, but also to supplement its provisions with rules that 
would guarantee both sufficient self-defense against attacks and cooperative 
action by the belligerents for the humanitarian protection of civilians and civilian 
objects. 

Notes 

^Director, International Legal Affairs, Federal Ministry of Defense, Bonn. The views expressed in this paper 
are those of the author and do not necessarily reflect either the policy or the opinion of the German 
Government. 

1. Howard S. Levie, Submarine Warfare: With Emphasis on the 1936 London Protocol. 

2. Id. at 12. 

3. U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations (NWP 
9) (1987), at para. 8.3.1. [hereinafter Commander's Handbook]. 

4. This definition of military objectives may be considered customary law. It is applicable also in armed 
conflicts at sea though reaffirmation of this rule by Art. 52 (2) of Protocol I Additional to the Geneva 
Conventions is confined "to any land, air or sea warfare which may affect the civilian population, individual 
civilians or civilian objects on land" as well as to "attacks from the sea or from the air against objectives on 
land." Cf. Art. 49 (3). 

5. Julius Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes and 
War-Law 606 (1954). 

6. See Wolff Heintschel von Heinegg (Ed.), the Military Objective and the Principle of distinction in 
the Law of Naval Warfare, Report, Commentaries and Proceedings of the Round-Table of Experts on 
International Humanitariam Law Applicable to Armed Conflicts at Sea, Ruhr-Universitat Bochum November 
10-14, 1989, Bochumer Schriften zur Friedenssicherung und zum Humanitaren Volkerrecht, Band 7, 1991. 

7. 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 (NWP 9) (Rev. A) (1989), at para. 8.1.1 [hereinafter 
Annotated Supplement]. 

8. Id. at para. 8.2.2.2. 

9. Frits Kalshoven, Belligerent Reprisals 128 (1971). 

10. William T. Mallison, Jr., Studies in the Law of Naval Warfare: Submarines in General and Limited 
Wars 119 (1968) [hereinafter Mallison]. 

1 1 . U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations (NWP 
9) (Rev. A), FMFM 1-10 (1989), at para. 8.3.1. 

12. Art. 503 (b) (3) (4) of the 1955 Law of Naval Warfare; Robert W. Tucker, 50 International Law 
Studies (1957), which established this requirement, has been very convincingly criticized already by Mallison, 
supra note 10, at 120-22. 

13. W. J. Fenrick, The Exclusion Zone Device in the Law of Naval Warfare, 24 Can. Y.B. Int'l L. 91-126 
(1986). 

14. Dieter Fleck, Ruses of War and Prohibition of Perfidy, Revue de Droit Pinal Militaire et de Droit de la 
Guerre, 269, 292-95 (1974). 

15. Commander's Handbook, supra note 3, at para. 7.9. 

16. Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 
Protocols Additional to the Geneva Conventions of 1949, at 367-68 (1982). 

17. Karl Zemanek, Submarine Warfare, 4 Encyclopedia of Public International Law 233-35 (R. Bernhardt 
ed., 1982). 



85 Fleck 

18. Louise Doswald-Beck, The International Law of Naval Armed Conflicts: The Need for Reform, 7 It. Y. B. 
Int'l L. 251, 257 (1986-1987). 

19. 2 The Geneva Conventions of 12 August 1949, Commentary 130-31 (J. Pictet ed., 1960). 

20. Article 8 lit. b. 

21. Article 10 para. 2. 

22. Daniel P. O'Connell, The Influence of Law on Sea Power 78 (1975). 

23. Edwin I. Nwogugu, Commentary on the 1922 Washington Treaty, the 1930 London Treaty (Part IV), and 
the 1936 London Protocol, The Law of Naval Warfare: A Collection of Agreements and Documents with 
Commentaries 353, 364 (N. Ronzitti ed., 1988). 

24. Louise Doswald-Beck, supra note 18, at 271. 



Chapter 



The Naval Practices of Belligerents in 

World War II: 
Legal Criteria and Developments 



A paper by 

Sally V. Mallison * 

and 

W. Thomas Mallison ** 

Comments by 

Mark W. Janis 

William J. Fenrick 



Mallison 87 

The Naval Practices of Belligerents in World 

War II: 
Legal Criteria and Developments 

There was a continuity manifested between naval practices during the First 
World War and the second one. The continuity may appear to be 
surprising because the period 1914-1918 was governed almost exclusively by 
customary law, while the period 1939-1945 was also governed by treaty law. 
Before considering the naval practices of belligerents in World War II, it is 
essential to examine the international law concerning such practices, including 
naval targeting, which was developed between the World Wars. The subsequent 
war crimes trials further developed the law applicable to those practices. 

I. A Summary of Naval Practices in the First World War 

Enemy warships remained lawful objects of attack without warning during 
the period 1914-1918 as they have always been historically up to the present 
time. Because of the functional equivalency with warships of those merchant 
ships which participated in the naval war effort of a belligerent by, inter alia, 
sailing in naval convoys or operating under orders to attack submarines, 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. From the German perspective, the proclamation of large sub- 
marine 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 areas. In a functional sense, Germany was 
conducting a similar comprehensive method of economic warfare to the 
"long-distance blockade" conducted 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 States which claimed that the traditional procedures 
of visit and search were still required of submarines. International conferences 
between the World Wars provided the opportunity for them to advance their 
claims in international law. 



88 Targeting Enemy Merchant Shipping 

II. 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 it clear at the outset 
that in doing so "the British Empire had no unworthy or selfish motives." He 
continued in reference to the submarine: 

It was a weapon of murder and piracy, involving the drowning of non-combatants. 
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. That was why he hoped that the 
conference would not give it a new lease of life. 

The French, Italian, Japanese, and United States delegations joined with the 
British in deploring the claimed inhumane and illegal use of submarines by 
Germany but favored their retention. 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. 

During the drafting of the proposed submarine treaty, Senator Schanzer, the 
head of the Italian delegation, thought that it would "be useful to give a clear 
definition of merchant craft." } Senator Elihu Root, a distinguished former 
Secretary of State of the United States and a senior member of the U.S. 
delegation, responded: 

Throughout all the long history of international law no term had been better 
understood than the term "a merchant ship." It could not be made clearer by the 
addition of definitions which would only serve to weaken and confuse it. 

No clarification was provided and the ambiguity remained. 

Senator Root 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 provided 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. 



Mallison 89 

Article III stated the necessity for enforcement of the above rules and provided 
that: 

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 governmental 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. 

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. 

Another attempt to draft rules concerning naval targeting was made in 1930. 
Article 22 of the London Naval Treaty of that year specified the law applicable 
to both surface and submarine warships. This treaty was terminated in 1936 
except for Article 22 which was continued in effect "without limitation of time" 
as the Proces- Verbal Relating to the Rules of Submarine Warfare (1936). 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. 

The interpretation and application of these binding rules of law was left to the 
belligerent practices of the Second World War and its juridical aftermath 
including the war crimes trials "and the teachings of the most highly qualified" 
scholars and publicists, to use the wording of the Statute of the International 
Court of Justice. 

III. Continuation of Naval Practices in the Second World War 

Writing at the beginning of the Second World War, Professor H. A. Smith, 
a frequent lecturer at the Royal Naval College, Greenwich, pointed out the 
dramatic differences between trading practices at the time of the Declaration of 



90 Targeting Enemy Merchant Shipping 

Paris (the first multilateral convention on the law of naval warfare) 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 mobilised in the vast military organization of the 
totalitarian state. 

At the start 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 ships to 
participate in the Allied war effort. Ms. Behrens, writing in the 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. 

Throughout the Second World War the United States, first as a neutral and 
then as a belligerent, cooperated fully with the British methods. 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. 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 in 1938. On the subject of "conditions under 
which fire may be opened," it 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. 



Mallison 91 

Subsequent instructions stated that the enemy had adopted the 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. By October 17, 1939, Germany issued the order to 

or* 
attack all enemy merchant ships without warning. Thus, early in the conflict 

submarines and merchant ships incorporated in the naval war effort were 

attacking one another without warning. Germany declared 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. 

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 UN- 
RESTRICTED AIR AND SUBMARINE WARFARE." 22 Even though the 
"unrestricted" warfare was directed against Japan, it could nevertheless present 
a possible danger to neutral shipping in the vast Pacific 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 significant shipping which the 
Japanese 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, as in the Atlantic War, the merchant ships of 
the naval belligerents and participating neutral merchant ships were fully 
integrated into the naval war efforts. As a practical matter, such ships were 
indistinguishable from formally commissioned naval auxiliary warships, and, 
like warships, were lawfully subject to attack without warning. The United States 
reversed its prior position advanced in the First World War and, along with 
Japan and the other naval belligerents, recognized that such merchant ships were 
functional warships and were subject to the same rules of international law. The 
United States has also reversed its position in domestic law by the enactment of 
legislation which results in according to U.S. merchant mariners who served in 
active theaters of war the benefits of veterans' status. 

IV. Post World War II War Crimes Trials 

A. 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 



92 Targeting Enemy Merchant Shipping 

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 
important case in which the Tribunal directly addressed the law of naval warfare 
was that of Admidral 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."' 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. 

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 
kowledge 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. 

The failure to mention operational zones in the Protocol of 1 936 could, of 
course, be equally consistent with the conclusion of their lawfulness. The 
unreasonable and unworkable result of the holding 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 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 naval 
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 



Mallison 93 

or coercion, participate in the naval war effort of a belligerent. The factual reality 
was that there were no immune neutral merchant vessels in the Atlantic Ocean 
proscribed areas. The Tribunal's invocation of the broad term, "neutral mer- 
chant 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 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 stated to not be based upon count three because the 
United States also conducted "unrestricted submarine warfare" in the Pacific. 
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. As it was, they permitted the Tribunal to make a determina- 
tion of guilt based on an erroneous factual assumption even though the Tribunal 
stated that the sentence was not based on Doenitz carrying out unrestricted 
submarine warfare. 

In the Doenitz case the Tribunal also referred to the "Laconia order" and this 
portion of the case is considered in the ensuing subsection because the order is 
more directly involved in other cases. 

B. 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. In addition to the trial of Admiral Doenitz, two other cases 
were stated to involve the "Laconia order" issued by him on September 17, 1942 
while he was serving as the commander of the German submarine force. This 
order provided in English translation: 

(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 life boats 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. 



94 Targeting Enemy Merchant Shipping 

(4) Be harsh, having in mind that the enemy has no regard for women and children 
in his bombing attacks on German cities. 

The Laconia order immediately followed Admiral Doenitz' attempt to estab- 
lish 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. 

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. 

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 US 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. 

The officer who issued the order to attack and the aircraft commander who 
carried it out were each prima facie guilty of a war crime. The conduct of the 
aircraft commander is entirely inexcusable since he must have observed the 
rescue operation. During the time that they are engaged in such an operation, 
enemy ships 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 



Mallison 95 

and Hartenstein to establish a rescue zone of immunity would have been effective 
had it not been for the bombing. As it was, many of the personnel of the Laconia, 
including Italian prisoners of war and British military dependents, 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. In addition to the 
destruction involved in frustrating the rescue attempt, the action of the U.S. 
Army Air Forces resulted in the issuance of the Laconia order and the ensuing 
uncounted deaths of Allied seamen. 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 ap- 
propriate consideration to the rescue zone of immunity as indispensable context 
for the Laconia order. The Tribunal did not find him guilty on this charge, but 
it stated that the ambiguous terms of the order deserve the strongest censure. 

The second case, the Trial of Moehle 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") is widely 
regarded as an implementation of the Laconia order, it is significant that the 
defense did not invoke it 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: 

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 tiring and throwing grenades at them. 

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 defendants 
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 



96 Targeting Enemy Merchant Shipping 

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. 

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. 

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. 

Several examples of the carrying out of this flagrantly unlawful order are referred 
to in the judgment of the Tribunal. 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. 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 was 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. 

In summary, the Moehle case involved an order to kill survivors and the Eck 
case involved the killing of survivors. The judgment and proceedings of the 
International Military Tribunal for the Far East set forth facts which 
demonstrated both the order to kill survivors and the execution of that order. 

During the Second World War, aircraft attacked merchant vessels engaged 
in a belligerent's war effort. No trials took place involving aircraft 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. 

Captain Roskill, the official British Historian of the Naval War 1939-1945, 
has written: 



Mallison 97 

It is fair to mention here 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. 

The exception referred to by Captain Roskill was the commander of a surface 
raider charged in the Trial of Von Ruchteschelf before a British military tribunal 
with failure to give quarter during an attack on a British merchant ship. The 
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 penant 
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. 

V. The Killings Following the Battle of the Bismark Sea 

Unfortunately, it is not possible to state that only Germans and Japanese 
murdered survivors of ships which had been attacked and sunk. In March, 1943 
the Japanese attempted to move about seven thousand soldiers by ship from 
Rabaul, New Britain where their military situation was increasingly precarious, 
to reinforce the Japanese Army in Lae, New Guinea. This involved the transit 
of the Bismark 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 Mac Arthur, 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 Bismark Sea where the B-25 and other medium 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 Morison, 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. 



98 Targeting Enemy Merchant Shipping 

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 I-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 



45 



3,000 were missing. 

It is difficult to accept Professor Morison's facile statement that Japanese 
soldiers do not surrender and his conclusion that a legitimate military necessity 
was involved. Even if such a military necessity had existed, it would not change 
the substantive provision of the law of armed conflict which prohibits the killing 
of survivors because considerations of military necessity, along with those of 
humanity, have been taken into account in writing the law. Some members of 
the Japanese armed forces, including the highly motivated Kamikaze pilots who 
participated in the Phillipine and Okinawa operations, did surrender. It is not 
credible that Japanese soldiers who, it is assumed, could have made it to the New 
Guinea 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. Another historian, Professor Ronald H. Spector, has provided a 
substantially similar factual account of the events following the Battle of the 
Bismark Sea but has indicated skepticism concerning the claim of military 
necessity. 

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 Bismark Sea, there is no way they can 
be described as other than in flagrant violation of customary and treaty law. It is 
a serious reflection on the entire chain of command that there was no investiga- 
tion and no charges were brought against those who issued the orders and carried 
them out. Justice Robert H.Jackson, the chief United States prosecutor before 
the International Military Tribunal at Nuremberg, set forth 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. 

Hague Convention X for the Adaptation to Maritime Warfare of the 
Principles of the Geneva Convention (1907), a treaty of the United States, is 



Mallison 99 

applicable to the events following the Battle of the Bismark Sea and 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. 

The limitation in the treaty concerning "military interests" refers to legitimate 
military interests which are recognized as including lawful objects of attack and 
therefore prohibiting attacks on survivors. 

VI. The Protocol of 1936 in Context 

The principal juridical basis on which the factual events of naval armed 
conflict have been appraised is the Proces- Verbal Relating to the Rules of 
Submarine Warfare, also known as the Protocol of 1936. There are inconsis- 
tent analyses concerning its interpretation and application 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. . . . 

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. 

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 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 .... 

His interpretation of the Protocol provides adequate illustration of the fallacies 
of the so-called "plain meaning" interpretation of a "normatively ambiguous" legal 
text. "Normatively ambiguous" refers to a legal term which purports to establish 
a norm or category but is in fact so unclear that it requires interpretation in 
relevant context rather than according to "plain meaning". The "plain meaning" 
method involves these three sequential fallacies: (1) the "plain meaning" exists; 



1 00 Targeting Enemy Merchant Shipping 

(2) it is ascertainable; and (3) it controls interpretation without regard to relevant 
contextual factors. Professor Tucker has apparently interpreted "merchant ships" 
and "a merchant vessel** as stated in the 1936 Protocol as referring by "plain 
meaning** to all such ships without regard to the integration of these ships into 
the naval war effort. The result of the so-called "plain meaning'* interpretation 
here is to actually change the text so that the term "all merchant ships'* is inserted 
in lieu of "merchant ships.** If insertions are to be made in the text, it would be 
more in keeping with the purposes of the Protocol to insert "genuine merchant 
ships** or "merchant ships not participating in the armed conflict.** 

Professor Myres McDougal has emphasized the importance of contextual 
interpretation and set forth its major features. Applying this methodology to 
the Protocol, it is necessary to consider the following: the pre-existing customary 
law; the intention, if any, to change it; the preparatory work including statements 
of the drafters; the final text; the working interpretation given to the text by the 
state-parties; and the principle of effectiveness. 

The long-established customary law applicable to land, sea and air warfare is 
that the exercise of belligerent functions always carries with it susceptibility to 
being attacked. Application of this common-sense principle results in merchant 
ships which perform belligerent functions being liable to the same treatment as 
warships. This was established long before the World Wars in the era of sailing 
ships. There is no indication in the records of the working papers leading to 
Article 22 of the London Naval Treaty of 1930 and in the reaffirmation of that 
agreement in the Proces- Verbal of 1936 of any intention to change the customary 
law. The most significant statement recorded in the preparatory work is 
contained in 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. 

This stated criteria is significant in that it demonstrates a clear purpose to make 
a distinction between merchant ships based upon participation in the armed 
conflict. 

It is now crystal-clear that the terms "merchant vessel*' or "merchant ships" 
does not include all such ships. None of the state-parties to the treaty have 
suggested any dissent from the criteria of the Committee of Jurists. Consequently, 
the normatively ambiguous references to merchant ships which appear in the final 
text are clarified by the undisputed statement of the drafters of the treaty. It is 
highly significant in providing accurate interpretation that the naval belligerents, 
the Germans and Japanese on one side and Great Britain and the United States 
on the other, gave identical working interpretations to the treaty in spite of their 



Mallison 101 

highly divergent interpretations of most other major issues. The working 
interpretation of the state-parties is of great importance, and this is particularly 
true where it produces complete uniformity in interpreting the treaty. 

Finally, the cardinal interpretative principle of effectiveness must be con- 
sidered. This requires that any treaty must be given a practical meaning so that 
it is succeptible of application in the real world. In the present situation, this 
means that the agreement must be effective in actual naval armed conflict. It is 
by applying its protections to only merchant vessels which are not participating 
in the armed conflict that it is given a practical meaning. The contrary 
interpretation based upon a supposed "plain meaning" would result in the treaty 
becoming a nullity rather than effectuating its purpose of providing humanitarian 
protections. A conclusion written several years ago is 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. 

Hospital ships, cartel ships, coastal fishing boats and small boats engaged in 
coastal trade are also immunized under international law from attack. 

As reflected in the decisions of the war crimes trials which have been 
examined, the central humanitarian purpose of the law is to protect human 
values. Although it is clear under the Protocol of 1936 that merchant ships 
participating in the naval armed conflict may be sunk without warning, an 
absolute standard of immunity from attack for the survivors of sunken ships is 
required by international law. The ships that were sunk in the Battle of the 
Bismark Sea were combatant warships (destroyers) and auxiliary warships 
(transports) and the identical protection for survivors is applicable. 

One of the post-World War II treaties, Geneva Convention II for the 
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members 
of Armed Forces at Sea (1949) specifies affirmative protections for survivors 
of armed forces at sea including merchant marine seamen and the crews of civil 
aircraft of the parties to the conflict. 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 and to ensure their adequate care, and to 
search for the dead and prevent their being despoiled. 

The significance of this provision is that it imposes affirmative duties in terms of 
the protection of "shipwrecked, wounded and sick" and their care on a 
non-discriminatory basis. Thus the post World War II treaty law enhances the 



1 02 Targeting Enemy Merchant Shipping 

legal standards of the customary law and treaty law developed by the post World 
War II war crimes trials. 

Notes 

♦Research Associate, International and Comparative Law Program, George Washington University. 

**Emeritus Professor of Law, George Washington University. Twice the former Charles H. Stockton 
Professor of International Law, U.S. Naval War College, Newport, R.I. 

1. For a more comprehensive analysis of belligerent naval practices during World War I, see William T. 
Mallison, Jr., Studies in the Law of Naval Warfare: Submarines in General and Limited Wars, passim (1966) 
[hereinafter Mallison]. 

2. International Law Documents: Conference on the Limitation of Armaments 49 (1921). 

3. Id. at 53. 

4. Id. passim. 

5. Id. at 61. 

6. Id. at 122. 

7. Id. at 124. 

8. Id. at 116. 

9. Id. 

10. 46 Stat. 2858, 2881-82 (1930); Dietrich Schindler Si Jiri Toman, The Laws of Armed Conflict: A 
Collection of Conventions, Resolutions and Other Documents 793 (1981) [hereinafter Schindler & Toman]. 

11. Schindler & Toman, id. at 795-96. 

12. Id. 

13. Art. 38 (l)(d). 

14. Schindler & Toman, supra note 10, at 699-700. 

15. The Declaration of Paris in Modem War, 55 L.O.Rev. 237, 249 (1939). 

16. Merchant Shipping and the Demands of War, History of the Second World War 96 (1955). 

17. See Steven W. Roskill, Capros not Convoy: Counter-Attack and Destroy!, 82 U.S. Nav. Inst. Proc. 1047 
(October 1956). CAPROS = Counter- Attack Protection and Routing of Shipping. 

18. Portions of the Handbook are reprinted in 40 Proceedings of the International Military Tribunal at 
Nuremberg 88-89 (1947-1949) [hereinafter IMT], 

19. See note 12 and accompanying text. Art. 74 of the German Prize Code, which reproduces the 1936 
Protocol, appears in 7 Hackworth, Digest of International Law 248 (1944). 

20. This was stated by Fleet Judge Advocate Kranzbuhler in his argument in behalf of Admiral Doenitz, 
18 IMT 312, 323. 

21. Mallison, Supra note 1, at 75-84. 

22. The text is taken from a photographic copy of the original which was declassified on December 2, 
1960. 

23. Mallison, Supra note 1, at 121-22. 

24. The G.I. Bill Improvement Act of 1977, Pub. L. No. 95-202, 91 Stat. 1433 (1977). Tide 38 of the 
U.S. Code entitled Veterans Benefits is amended in scattered sections by the 1977 statute. See Charles Dana 
Gibson (the attorney who successfully advanced the claims of U.S. merchant mariners), Merchantman? Or 
Ship of War (1986). 

25. 1 IMT 311. 

26. 19 IMT 469. 

27. 1 IMT 312-13. 

28. Merchant Shipping and the Demands of War, supra note 16 and accompanying text. 

29. The text of the order is in Trial of Moehle, 9 Reps. U.N.Comm. 75 (1946). 

30. Trial of Moehle, Supra note 29 at 224. 

31. Id. at 224-25. 

32. Excerpt of letter from Historical Divison, 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). 

33. 1 IMT 313. 

34. 9 Reps. U.N. Comm. 75 (1946). 



Mallison 103 

35. 1 Reps. U.N. Comm. 1 (1945); also reported in the entire volume one of War Crimes Trials 
(Maxwell-Fyfe ed., 1948) which contains the entire record of proceedings of the trial. 

36. id. at 2 (1945). 

37. id. at 13. 

38. 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 FEIMTJudg. at 1,072. 

39. FEIMTJudg., supra note 38, at 1,073. 

40. Id. at 1,073-74. 

41. The textual account is based upon FEIMT Proc. 15,095 148 and FEIMTJudg. 1,074-75, supra note 
38. 

42. Steven W. Roskill, White Ensign: The British Navy at War 1939-1945, at 97 (1960). 

43. 9 U.N. War Crimes Comm., Reports of Trials of War Criminals 82 (1947) [hereinafter Reps. 
U.N.Comm.]. 

44. The factual account is based upon 6 Samuel Eliot Morison, History of the United States Naval 
Operations in World War II 62 et seq. (1950) (This volume is sub-titled Breaking the Bismark Barrier) 
[hereinafter Morison], and upon Ronald H. Spector, Eagle Against the Sun 226-28 (1985) [hereinafter 
Spector]. Professor Spector served as the Director of Naval History, Dept. of the Navy, 1986-1989. 

45. Morison, supra note 44, at 62. 

46. 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 44, at 228. 

47. Id. 

48. Report of Justice Robert H. Hackson, U.S. Representative to the International Spector, Conference 
on Military Trials, Document XLIV, Minutes of Conference session of July 23, 1945, 330 (1945). 

49. 36 Stat. 2371 (1909). 

50. Id. at art. 16(1). 

51. Schindler & Toman, supra note 10. 

52. Robert W. Tucker, The Law of War and Neutrality at Sea, 1955 Naval War College International Law 
Studies 64 (1957). 

53. Id. at 66. 

54. Id. 

55. Mynes S. McDougal & Associates, Studies in World Public Order 723-32, and passim (1960). See James 
W. Gamer, Harvard Research Draft on Treaties, 29 Am. J. Int'l L. Supp. 947 (1935) and Myres S. McDougal, 
Harold D. Lasswell & James C. Miller, The Interpretation of Agreements in World Public Order, passim 
(1967). 

56. Proceedings of the London Naval Conference of 1930 and Supplementary Documents 189 (1931). 

57. See id. passim; see also International Law Situations 1-65 (1930) and particularly the section entitled 
Classes of ships at 41-44. 

58. Mallison, supra note 1, at 120. 

59. Mallison, supra note 1, at 124-25. 

60. Id. at 126. 

61. Id. at 126-28. 

62. 6 U.S.T. 3217; Schindler & Toman, supra note 10, at 333. 

63. Id. at art. 13(5). 



1 04 Targeting Enemy Merchant Shipping 

Comments on Sally V. and W. Thomas MallisorYs Paper: 

The Naval Practices of Belligerents in World War II: 

Legal Criteria and Developments 

by 
M. W.Janis* 

The London Protocol and the Judgment at Nuremberg: 
A Commentary on Mallison 

It is with some trepidation that I venture to comment on Sally and Tom 
Mallison's "The Naval Practices of Belligerents in World War II: Legal Criteria 
and Developments." I have known Sally and Tom since the early 1970's when 
I was a very junior naval officer on study leave here at the Naval War College 
from my teaching post at the Naval Postgraduate School in Monterey. I have 
the greatest respect for their fine book, Studies in the Law of Naval Warfare: 
Submarines in General and Limited War, which is one of the volumes in the 
distinguished "Blue Book" series published by the Naval War College. That 
book and today's paper by the Mallisons raise some of the same fundamental 
questions, questions at the very heart of the relationship between international 
law and military activities. 

In the essay on "Neutrality" that I wrote for Admiral Robertson for his 
Commentary on The Commander's Handbook on the Law of Naval Operations , I 
discuss my belief that international law is not a single system of legal rules and 
legal procedure, but really constitutes many such systems: some "harder" and 
some "softer." In that essay I argue that it is a mistake to think about the laws 
of neutrality as a form of hard law, rather "the rules respecting neutrality . . . 
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." In general, it is, I 
think, unrealistic to assume that all international law is of the same certainty or 
of the same legally binding effect. 

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. 



Janis 1 05 

As early as 1836, Henry Wheaton, the American author of the first English 
language textbook on international law, was already having to cope with Austin's 
critique of international law as being merely a form of morality. Although some 
are satisfied as to the law-like quality of international law, others are doubtful. 
The English legal philosopher, H.L.A. Hart, for example, in a modern refor- 
mulation 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." 

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 hierarchical, international legal 
process. Reality is otherwise. 

Different sorts 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." 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 kind of Hart's 
so-called "primitive law". In some other of its manifestations, for example, the 
systems of European Economic Law Community and of 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. 

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." " Weber's necessary "guarantees" for law are more sophisticated than 

Austin's necessary "sovereigns" for law. Weber wrote of 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 

1 "\ 
against the participants in the system." 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. 

In general, I feel that the law relating to naval attacks on merchant shipping 

in World War II was, at best, a sort of very "soft" international law. As a focus 



1 06 Targeting Enemy Merchant Shipping 

for my comments on the Mallisons' paper, let me mostly discuss their treatment 
of the Nuremberg Tribunal. Let me begin by noting an oversight in their original 
paper, i.e., the assertion that "there was only one case before the Tribunal directly 
involving law of naval warfare, i.e., the individual case of Admiral Doenitz. In 
reality, the Tribunal judged not only Karl Doenitz for violations of the laws of 
naval warfare, but also, on like charges, Admiral Eric Raeder, the commander 
of the German Navy between 1928 and 1943. The charges and the findings 

17 

of the Court were not dissimilar between the two. 

The trial of the two German admirals raised in a specific context two 
jurisprudential questions that had and still have broad public appeal. The first is 
how definite were and are the rules of international law relating to submarine 
attacks on merchant shipping? The second is how should such rules have been 
and be enforced? At the time of their trial, Doenitz and Raeder received 
considerable support in Western public opinion for their position that the crimes 
of which they were accused were neither properly defined nor were they 
properly prosecuted. Airey Neave, the brilliant English lawyer who followed a 
distinguished war service with service on the British legal team at Nuremberg 
and who, so many years later, was tragically assassinated while trying to sort out 
the troubles in Northern Ireland, wrote in his insightful account of Nuremberg 
how he believed that it was the sympathy of Western public opinion that saved 
Doenitz and Raeder from the gallows to which the German generals, Keitel and 

1 R 

Jodl, were condemned. Even as late as 1976, two Americans edited a book 
filled with more than one hundred testimonials, mostly by Western military 
officers, protesting the Nuremberg trial of Doenitz. Neave himself, knowing 
both the men and their war records in great detail, surmised that "[a]llied naval 
officers, accustomed to the traditions of their service, may not have known the 
true Karl Doenitz. . . . They did not see him as a political admiral but that is 
what he was." 

The Mallisons are critical of the Nuremberg judgment, too, especially with 
the way in which the Court defined the term "merchant vessels" in the applicable 
international convention, the 1936 London Protocol. In the context of their 
critique of the interpretation of the London Protocol, the Mallisons are especially 
critical of Robert W. Tucker's analysis of the Protocol in another of the fine 
Blue Books, The Law of War and Neutrality at Sea. The Mallisons feel that 
Tucker was wrong when he wrote that belligerents in the Pacific War did not 
"observe the obligations laid down by the 1936 London Protocol." The 
Mallisons argue that Tucker committed a "plain meaning" fallacy and that 
Tucker should have understood that the text of the Protocol was "normatively 
ambiguous." Although I am sympathetic with what I would perceive to be 
the Mallison's "bottom line," I must say that I think they are wrong and Tucker 
right about whether or not the Protocol was violated. 



Janis 1 07 

As I see it, the Mallisons' "bottom line" is the "worthy goal of preserving some 

validity for an international law norm even when the efficacy of that norm has 

been called into serious question by considerable contrary state practice. As an 

international lawyer, I applaud their mission. Furthermore, I understand its 

relevance given the relationship between the 1936 Protocol and the 1939-1945 

War. I think that the Mallisons err, however, in attempting to save the norm 

about submariners , duty to merchant vessels by their restrictive definition of 

"merchant ships." The principal proof in their argument is a paragraph from 

the Report of the Committee of Jurists of April 3, 1930, a paragraph that I think 

oft 
is circular and unhelpful if it means what the Mallisons use it to say. If 

"participating in hostilities in such a manner as to cause her to lose her right to 

the immunities of a merchant vessel" leaves out merchant ships participating in 

the armed struggle and if in practice virtually every possible merchant ship is a 

participant in the armed struggle, then the Protocol is saved from the challenge 

of inefficacy only by being robbed of its substance. 

Theirs is an argument and a result propounded as long ago as March 5, 1946, 

by the able counsel for Admiral Doenitz, the German naval lawyer, Otto 

Kranzbuehler. In the proceedings before the Nuremberg Court, Kranzbuehler 

submitted, and submitted successfully, that he should be permitted to put 

interrogatories to Admiral Nimitz about U.S. submarine operations in the 

Pacific: 

I in no way wish to prove or even to maintain that the American Admiralty in its 
U-boat warfare against Japan broke international law. On the contrary, I am of 
the opinion that it acted strictly in accordance with international law. . . . 

My point is that, because of the order to merchant vessels to offer resistance, the 
London Agreement is no longer applicable to such merchant men; further, that 
it was not applicable in declared operational zones in which a general warning 
had been given to all vessels, thus making an individual warning unnecessary 
before the attack. 

While I understand the nature of the Mallisons* argument about limiting the 
definitional reach of the term "merchant shipping," I cannot myself see why the 
argument is necessary or even particularly useful. What is wrong with saying, as 
Tucker did, that the London Protocol of 1936 established rules and that the 
belligerents in World War II violated those rules? From my perspective this is 
the statement that is honestly reflective of the realities of the "soft" international 
law then regulating activities like submarine attacks on merchant shipping. And 
what is wrong with deciding, as the Nuremberg judges did, that Doenitz and 
Raeder were guilty of violating the 1936 London Protocol, but then choosing 
not to punish them for it. 



1 08 Targeting Enemy Merchant Shipping 

The judgment distinguished between attacks on British merchant vessels and 

29 

those on neutrals. The judges rejected the notion about operational zones 
saying that "the Protocol made no exception" for them. Though this is a 
holding that the Mallisons call "unreasonable and unworkable,"* it seems to 
me to be consistent with the Protocol. Frankly, I see none of the ambiguity that 
the Mallisons see. To me it is simply a case of "soft" international law, an 
aspirational law that has trouble being effectively applied. 

I, too, am much more sympathetic than the Mallisons with the sentence of 
the Court. The Mallisons seem to imply that they feel that, despite its protesta- 
tions, the Court did take Doenitz' submarine activities into account when it 
sentenced him to ten years of prison. Looking at the sentences for others, 
including Raeder, the Doenitz sentence does not seem to me to be extreme. I 
think it likely that the submarine program did not finally weigh against Doenitz. 

Furthermore, the reasons why the Court did not punish Doenitz for his 
violations of the 1936 London Protocol make sense, especially in light of the 
strategy adopted by Doenitz's lawyer. Kranzbuehler, after all, had argued that 
U.S. Pacific submarine operations were so similar to German Atlantic operations 
that neither the U.S. nor Germany were violating international law. The answer 
preferred by the Court was that the London Protocol was violated but that the 
violation was not reason enough to punish the Admiral. 

Notes 

♦Professor of Law, University of Connecticut School of Law. 

1 . Sally V. Mallison & William T. Mallison, The Naval Practices, of Belligerents in World War II: Legal Criteria 
and Developments [hereinafter The Paper]. 

2. William T. Mallison, Studies in the Law of Naval Warfare: Submarines in General and Limited Wars, 
58 U.S. Naval War College International Law Studies 1966 (1968). 

3. U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations 
(NWP 9) 1987. 

4. Mark W. Janis, Neutrality, The Law of Naval Operations, at 148 (Horace B. Robertson, Jr. ed., 1991). 

5. Id. at 153. 

6. J. Austin, The Province ofjurisprudence Determined 208 (1st ed. 1832). 

7. Henry Wheaton, Elements of International Law with a Sketch of History of the Science 47 (1st ed. 
1836). 

8. H.L.A. Hart, The Concept of Law 209, 226 (1961). 

9. Janis, Do Laws Regulate Nuclear Weapons?, Nuclear Weapons and International Law 53, 60 (1987). 
10. Id. at 53-54, 59-61. 

II. Mark W. Janis, An Introduction to International Law 229-230 (1988); Janis, International Courts and 
the Efficacy of International Law, 2 Conn. J. Int'l. L. 261 (1987). 

12. Max Weber, Law in Economy and Society 13 (Max Rheinstein & Edward Shills trans., 1954). 

13. Id. at 13. 

14. The Paper, supra note 1, at 92. 

15. The Nuremberg Trial, 6 F.R.D. 69, 167-70 (1946) [hereinafter The Judgment]. 

16. Id. at 170-72. 

17. Id. at 171-72. 

18. Airey Neave, On Trial at Nuremberg 200-213 (1978) [hereinafter cited as Neave]. 

19. Harold K. Thompson, Jr., & Henry Strutz, Doenitz at Nuremberg: A Reappraisal: War Crimes and 
the Military Professional (1976). 



Janis 109 

20. Neave, supra note 18, at 200. 

21. The Paper, supra note 1, at 96-98. 

22. Robert W. Tucker, The Law of War and Neutrality at Sea, 50 International Law Studies 1955, at 66 
(1957). 

23. The Paper, supra note 1 , at 99. 

24. Id. at 99-100. 

25. Id. at 99-102. 

26. Id. at 100. 

27. Trial of the Major War Criminals Before the International Military Tribunal, 8 Proceedings 549 (14 
November 1945 - 1 October 1946)(1947). 

28. The Judgment, supra note 15, at 169, 171-72. 

29. Id. at 168-169. 

30. Id. at 169. 

31. The Paper, supra note 1, at 92. 

32. Id. at 93. 



110 Targeting Enemy Merchant Shipping 

Comments on Sally V. and W. Thomas Mallison's Paper: 

The Naval Practices of Belligerents in World War II: 

Legal Criteria and Developments 

by 
W. J. Fenrick * 

Some Reflections on History and Law 

One of the primary purposes of the law of armed conflict is to minimize net 
human suffering. The law must be both relevant and usable. A body of law which 
sets irrelevant or impossible standards may allow lawyers and diplomats to 
indulge in mutual self congratulation but it will be of little use to those very 
practical men, the commanders of naval forces engaged in combat. It is not 
essential that international law, to be valid, should always be compatible with 
state practice. If, however, the law of naval warfare is to have an impact on the 
conduct of warfare, there should be a crude congruence between law and 
practice so that it is marginal, extreme conduct which is condemned, not 
activities which are routine operations of war. 

In this area of law, history compels agreement with the remarks of Julius 
Stone: 

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 enable 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 
of suffering under modern conditions. 

Up until the Second World War, it appears to have been in fashion for 
international lawyers to write books reviewing state practice and compliance 
with international law in particular conflicts. For example, an American profes- 
sor, Amos Hershey , published The International Law and Diplomacy of the Russo 
Japanese War in 1906, and James Wilford Garner, another American professor, 
published his two volume study, International Law and the World War in 1920. 
Such books appear to have gone out of fashion since the Second World War. J. 
M. Spaight, a British civil servant, published the third edition of his Air Power 



Fenrick 111 

and War Rights in 1947 and this book provides a usable, albeit not comprehensive, 
survey of state practice in air warfare. The apparent demise of the genre is 
unfortunate as the authors of these books at least identified the legal issues 
although their legal reasoning was often somewhat partisan. 

One, but hopefully not the only, indicator of the relevance of law to state 
practice in naval warfare during the Second World War is the body of work 
published by naval historians. The practice of law requires lawyers to develop 
reasonably thick skins. This is fortunate because the references of naval historians to 
the law of naval warfare and to the 1936 London Protocol in particular are less than 
flattering. Theodore Roscoe, for example, in his semi-official 1949 book, United 
States Submarine Operations in World War II, indicates that all United States Navy 
submarines were supplied with a small volume entitled "Instructions for the 
Navy of the United States Governing Maritime and Aerial Warfare" which 
required compliance with the London Protocol. After Pearl Harbor, however, 
submarines were ordered to wage unrestricted warfare as a reprisal. Roscoe goes 
on to say: 

In any event, realistic chinking demanded recognition of the fact that a nation's 
economic forces and its fighting forces bear the inseparable relationship of Siamese 
twins. Any reduction of a nation's economic resources weakens its war potential. 
Sever the commercial arteries of a maritime nation and its industrial heart must 
fail, while the war effort expires with it. Therefore, it was not reprisal so much as 
military imperative that caused Washington to reverse its opinion on the already 
abrogated naval laws. 

Webster defines a merchant vessel as "a ship employed in commerce." There were 
to be no merchant ships in the Pacific for the duration of the war - cargo carriers 
were merchantmen by genesis only. The U.S. Navy was to consider all Japanese 
shipping as engaged in prosecution of the war effort - either carrying men, 
munitions, and equipment to areas under attack or occupation, or freighting home 
the plundered raw materials from conquered territory. 

Armed or not, these merchantmen were in effect combatant ships. "Transports," 
"freighters," "tankers" were hollow titles for auxiliaries of war, and it was the 
realistic duty of the submarine forces to reduce these ships to hulls as hollow as 
their titles. The polite little law book went overboard. Converted by a directive 
into commerce raiders, American submarines in the Pacific went to war to sink 
everything that floated under a Japanese flag. 

Roscoe's somewhat cavalier approach to the law of armed conflict is more 
common among naval historians than most lawyers would like to think. 
Historians do, however, on occasion raise issues which international lawyers 
must advert to if they wish to assess the law in something other than a legal 
vacuum. Professor Talbott's thoughtful study, Weapons Development, War Plan- 
ning and Policy: the US Navy and the Submarine, 1917-41, argues that the United 



1 1 2 Targeting Enemy Merchant Shipping 

States Navy had in fact made the decision to wage unrestricted submarine 
warfare in the Pacific if war occurred some time before the attack on Pearl 
Harbor. In his view, technology drove policy. The actual decision of the United 
States to wage unrestricted submarine warfare after Pearl Harbor was less 
significant than: 

the decision to build a long-range submarine, the resolution of the technical 
problems that such a project raised, and the decision to pursue a strategy of 
economic warfare. The history of submarine development also affirms that when 
the responsible authorities find in their hands a weapon that promises to make the 
waging of war more efficient, they will use it. 

Perhaps the impressionistic observations of the late D. P. O'Connell concerning 
the role of law in naval warfare, albeit somewhat modest, are as accurate as 
any: 

The only prediction that can be made with assurance is that the lower the level 
of conflict, the more localized the situation and the more restricted the objectives, 
the more predominant will be the element of law in the governing of naval 
conduct; and that the law will assume a diminished role - as it did in the Second 
World War - when the conflict becomes global, when the neutrals have been 
mostly drawn into it or their sympathies engaged, and when an element of 
desperation has entered into operational planning. 

It would appear that no nation had a monopoly on atrocities during the 
Second World War although, depending on national perspectives, some 
atrocities might be referred to as regrettable incidents. In addition to the 
somewhat questionable "Laconia incident" and the Battle of the Bismark Sea 
killings referred to by Professor Mallison, there is some indication that the crew 
of the US submarine Wahoo massacred thousands of survivors of a Japanese troop 
transport in early 1943 and the Wahoo's commanding officer, who reported the 
incident, was decorated for it. Although the German and Japanese appear to have 
provided all of the accused in naval war crimes trials, there is also some indication 
that on a few occasions the British deliberately attacked the shipwrecked, 
particularly during unsuccessful efforts to defend against the German invasion of 
Crete. These occasional tragic incidents notwithstanding, there has been no 
suggestion that attacks on the shipwrecked should be legally permissible. 

There is also little doubt that those belligerents with the capability and 
requirement to do so engaged in substantially similar anti-commerce campaigns 
with both submarines and aircraft. As the Mallison paper has indicated, the 
belligerents applied essentially similar operational definitions of the term "mer- 
chant ship" as used in the London Protocol. The legitimacy of that operational 
definition was appraised, perhaps inadequately, by the International Military 
Tribunal at Nuremberg. It is suggested that, in some respects, the analysis of the 



Fenrick 1 1 3 

London Protocol and of the legitimacy of state practice by Admiral Doenitz's 
lawyer, Flottenrichter Otto Kranzbuhler, is superior to the analysis in the IMT 
judgment itself. 

Concerning belligerent vessels, Kranzbuhler focused on the ambiguity of the 
concept "merchant ship" and the uncertainty connected with the words "active 
resistance" in the London Protocol. Bearing in mind that ships sailing in enemy 
convoy are usually deemed to be engaged in "active resistance," he argued that 
all armed merchantmen should also be deemed to be engaged in active resistance 
as arming served the same purpose as a naval escort and as it was not possible to 
distinguish between defensive and offensive weapons. 

And this very same common sense demands also that the armed merchantman be 
held just as guilty of forcible resistance as the convoyed ship. Let us take an extreme 
instance in order to make the matter quite clear. An unarmed merchant ship of 
20,000 tons and a speed of 20 knots, which is convoyed by a trawler with, let us 
say, 2 guns and a speed of 15 knots, may be sunk without warning, because it has 
placed itself under the protection of the trawler and thereby made itself guilty of 
active resistance. If, however, this same merchant ship does not have the 
protection of the trawler and instead the 2 guns, or even 4 or 6 of them, are placed 
on its decks, thus enabling it to use its full speed, should it in this case not be 
deemed just as guilty of offering active resistance as before? Such a deduction really 
seems to me against all common sense. In the opinion of the Prosecution the 
submarine would first have to give the merchant ship, which is far superior to it 
in fighting power, the order to stop and then wait until the merchant ship fires its 
first broadside at the submarine. Only then would it have the right to use its own 
weapons. Since, however a single artillery hit is nearly always fatal to a submarine 
but as a rule does very little harm to a merchant ship, the result would be the 
almost certain destruction of the submarine. 

He goes on to argue: 

However, another factor of greater general importance, and also of greater danger 
to the submarines, was the order to report every enemy ship in sight, giving its 
type and location. This report was destined, so said the order, to facilitate taking 
advantage of an opportunity which might never recur, to destroy the enemy by 
naval or air forces. This is an unequivocal utilization of all merchant vessels for 
military intelligence service with intent directly to injure the enemy. If one 
considers the fact that according to the hospital ship agreement even the immunity 
of hospital ships ceases if they relay military information of this type, then one 
need have no doubts about the consequences of such behavior on the part of a 
commercial vessel. Any craft putting out to sea with the order and intention of 
using every opportunity that occurs to send military reports about the enemy to 
its own naval and air forces is taking part in hostilities during the entire course of 
its voyage and, according to the aforementioned report of 1930 of the committee 
of jurists, has no right to be considered a merchant vessel. Any different conception 
would not do justice to the immediate danger which a wireless report involves 



114 Targeting Enemy Merchant Shipping 

for the vessel reported and which subjects it often within a few minutes, to attack 
by enemy aircraft. 

Concerning enemy merchant vessels, he concludes: 

All of the Admiralty's directives, taken together, show that British merchant 
vessels, from the very first day of the war, closely cooperated with the British navy 
in combating the enemy's naval forces. They were part of the military com- 
munications network of the British naval and air forces and their armament of 
guns and depth charges, the practical training in manipulation of the weapons, 
and the orders relative to their use, were actions taken by the British Navy. 

We consider it out of the question that a merchant fleet in this manner destined 
and utilized for combat should count among the vessels entitled to the protection 
of the London Protocol against sinking without warning. On the basis of this 
conception and in connection with the arming of all enemy merchant vessels, 
which was rapidly being completed, an order was issued on 17 October, 1939 to 
attack all enemy merchant ships without warning. 

The IMT did, of course, accept Kranzbuhler's argument concerning bel- 
ligerent merchant vessels and, although it held Doenitz not guilty for his conduct 
of submarine warfare against "British armed merchant ships," considered in 
context, the judgment actually exonerated Doenitz from responsibility for 
attacks on all belligerent merchant vessels because of the general belligerent 
practice of incorporating all such vessels into the war effort. 

Kranzbuhler's arguments were less successful where neutral vessels were 
concerned. His first argument was that all vessels, including neutral vessels, which 
sailed blacked-out in the "war area," an undefined term, were subject to attack. 

Examining the question of blacked-out vessels from the legal standpoint, 
Vanselow, the well-known expert on the law governing naval warfare, makes 
the following remark: 

In war a blacked-out vessel must in case of doubt be considered as an enemy 
warship. A neutral as well as an enemy merchant vessel navigating without light 
voluntarily renounces during the hours of darkness all claim to immunity from 
attack without being stopped. 

I furthermore refer to Churchill's declaration, made in the House of Commons, 
on 8 May 1940, concerning the action of British submarines in the Jutland area. 
Since the beginning of April they had orders to attack all German vessels without 
warning during the daytime, and all vessels, and thus all neutrals, as well, at night. 
This amounts to recognition of the legal standpoint as presented. It even goes 
beyond the German order, insofar as neutral merchant vessels navigating with all 
lights on were sunk without warning in these waters. In view of the clear legal 
aspect it would hardly have been necessary to give an express warning to neutral 



Fenrick 115 

shipping against suspicious or hostile conduct. Nevertheless, the Naval Operations 
Staff saw to it that this was done. 

The second danger to neutral shipping was what Kranzbuhler referred to as 
"zones of operations" and what have since been referred to as "exclusion zones." 
He argued that the fact that such zones were not referred to in the London 
Protocol did not mean they were not permissible. Such zones constituted a 
normal part of state practice and it was open to the tribunal to find that they 
were legally permissible subject to certain criteria of reasonableness. Technology 
compelled changes in the 19th century law. 

It is a well-known fact that operational areas were originally proclaimed in the 
first World War. The first declaration of this kind came from the British 
Government on 2 November 1914, and designated the entire area of the North 
Sea as a military area. This declaration was intended as a reprisal against alleged 
German violations of international law. Since this justification naturally was not 
recognized, the Imperial Government replied on 4 February 1915 by designating 
the waters around England as a military area. On both sides certain extensions 
were made subsequently. I do not wish to go into the individual formulations of 
these declarations and into the judicial legal deductions which were made from 
their wording for or against the admissibility of these declarations. Whether these 
areas are designated as military area, barred zone, operational area, or danger zone, 
the point always remained that the naval forces in the area determined had 
permission to destroy any ship encountered there. After the World War the 
general conviction of naval officers and experts on international law alike was that 
the operational area would be maintained as a means of naval warfare. A 
development, typical for the rules of naval warfare, was confirmed here, namely, 
that the modern technique of war forcibly leads to the use of war methods which 
at first are introduced in the guise of reprisals, but which gradually come to be 
employed without such a justification and recognized as legitimate. 

The technical reasons for such a development are obvious: [t]he improvement of 
mines made it possible to render large sea areas dangerous. But if it was admissible 
to destroy by mines every ship sailing, despite warning, in a designated sea area, 
one could see no reason why other means of naval warfare should not be used in 
this area in the same way. Besides, the traditional institution of the blockade 
directly off enemy ports and coasts by mines, submarines, and aircraft was made 
practically impossible, so that the sea powers had to look for new ways to bar the 
approach to enemy coasts. Consequently it was these necessities which were the 
compelling factors in bringing about the recognition of the operational area. 

It is true that there was by no means a uniform interpretation concerning the 
particular prerequisites under which the declaration of such areas would be 
considered admissible, just as there was none with regard to the designation which 
the belligerent power must choose. The conferences of 1922 and 1930 did not 
change anything either in that respect, as can be seen, for instance, from the efforts 
made after 1930, especially by American politicians and experts in international 
law, for a solution of this question. 



116 Targeting Enemy Merchant Shipping 

Unfortunately, there is no time at my disposal to discuss these questions in detail 
and therefore it must suffice for the purposes of the defense to state that during 
the conferences in Washington in 1922 and in London in 1930 the operational 
area was an arrangement or system known to all powers concerned, which 
operated in a way determined by both sides in the first World War: that is, that 
all ships encountered in it would be subject to immediate destruction. If the 
operational area were to have been abolished in the aforementioned conferences, 
especially in the treaty of 1930, an accord should have been reached on this 
question, if not in the text of the agreement than at least in the negotiations. The 
minutes show nothing of the kind. The relationship between operational area and 
the London Agreement remained unsettled. 

As is well known, the IMT did not accept Kranzbuhler's arguments concern- 
ing operational or exclusion zones and found Doenitz's orders to sink neutral 
ships without warning in these zones a violation of the Protocol. It then went 
on to announce that no sentence would be assessed on the ground of his breaches 
of the Protocol because of similar practices by the Allied Powers, the only 
known successful use of the tu quoque plea in a war crimes trial. The IMT's 
condemnation of exclusion zones notwithstanding, such zones have been used 
in a number of recent conflicts. 

Assessing the impact of the IMT judgment on the scope and applicability of 
the London Protocol is not a simple task. Professor O'Connell has attempted to 
"cut the Gordian knot" by arguing: 

The truth is that the requirements of the London Protocol are to be observed only 
in the situation where the submarine can act with minimal risk on the surface. 
Since that situation is now an ideal hardly ever in practice to be realized, one is 
compelled to draw from the Doenitz trial the conclusion that submarine opera- 
tions in time of war are today governed by no legal text, and that no more than 
lipservice is being paid in naval documents to the London Protocol. 

There is some basis for arguing that the London Protocol was drafted in favor 
of surface naval powers, particularly Great Britain, as a fall back position after 
efforts to outlaw the employment of submarines in a commerce destruction role 
had failed and as an attempt to neutralize the effectiveness of the submarine in 
such a role. The Protocol, if it is given a literal interpretation, is virtually 
unworkable in a general war between naval powers where one side has a 
substantial preponderance in surface naval strength because it does not confer 
substantially equal benefits to both sides. The practical effectiveness of the law 
of war in a particular conflict is conditional upon, among other factors, a crude 
reciprocity and rough equivalence of benefits. 

The key to a workable interpretation of the London Protocol lies in 
determining the proper meaning of the undefined term "merchant vessel'* in 
that document. In a general war, the true merchant vessel is rarely to be found 
because the belligerent states normally assume such a degree of control over their 



Fenrick 1 1 7 

own vessels and neutral vessels engaged in trading with them as to convert them 
into de facto naval auxiliaries. As de facto naval auxiliaries they should be subject 
to the same treatment as dejure naval auxiliaries, that is, they may be sunk on sight 
outside of neutral waters. Even in a general war, however, there may be genuine 
neutral traffic which is entitled to proceed unmolested. For example, in World 
War II, before the USSR declared war on Japan in 1945, there was a significant 
neutral merchant traffic to and from the Pacific coast of the USSR which passed 
through the US declared Pacific War Zone and was not molested by U.S. Navy 
submarines. In a war more limited than that of World War II, for example Korea 
or the Falklands, many merchant vessels, even those of the contending parties, 
will be engaged in normal trade quite unconnected with the war effort. 
Such merchant vessels are clearly not de facto naval auxiliaries. As such they 
are entitled to all of the benefits of the London Protocol. In other words, this 
writer finds the analysis of the London Protocol in the Mallison paper quite 
persuasive. 

Considered in conjunction, the London Protocol, the state practice of the 
Second World War, and the Nuremberg response indicate that cargo carrying 
vessels may, under the law of naval warfare, constitute legitimate military 
objectives in some circumstances when they are not sailing under convoy or 
actively resisting visit and search. An interpretation of the London Protocol 
which suggested that all cargo carrying vessels are merchant vessels and therefore 
exempt from attack would appear to be unduly simplistic. The problem is, 
however, where do we go from there? Do we assume that World War II was 
sui generis? Do we assume that cargo carrying vessels do not constitute legitimate 
military objectives unless they are operated under a system which meets all of 
the Nuremberg indicia? The system approach is one we in Canada have been 
thinking about for our Canadian Forces Law of Armed Conflict Manual. Our 
current draft indicates that enemy merchant vessels may be attacked and 
destroyed if they are incorporated into the belligerent war effort. A decision 
concerning whether or not enemy merchant vessels may be generally deemed 
to be incorporated into the belligerent war effort will be made at the governmen- 
tal level. Indicators that all enemy merchant shipping is incorporated into the 
belligerent war effort include: 

a) state control over merchant shipping to ensure that only items essential to the 
war effort are imported or exported; 

b) general use of convoys; 

c) general integration of merchant vessels into intelligence networks by, for 
example, requiring reports of sighting of all enemy vessels or aircraft; 

d) standing instructions to resist submarines by ramming; and 



118 Targeting Enemy Merchant Shipping 

e) arming of merchant vessels. 

This approach is probably broad enough to encompass the main categories 
of enemy merchant ships attacked during the unrestricted submarine warfare 
campaigns of the two World Wars. It should be noted that the approach in our 
Draft Manual may be too restrictive, however, as it does not include neutral 
merchant ships incorporated in the belligerent war effort as military objectives. 
One might suggest that the unconvoyed neutral tankers which transported the 
oil essential to the Iranian war economy and were attacked by Iraq constituted 
legitimate military objectives. Is there a valid legal reason for distinguishing 
between neutral and enemy merchant ships on the basis of flag alone when they 
are functionally indistinguishable? 

As every naval lawyer knows, it is extremely difficult to provide accurate, 
simple bright line legal rules concerning the targeting of merchant shipping. 
Although the task is difficult, we still have a professional obligation to provide 
as accurate an assessment of the law as we are capable of, and to make that 
assessment as clear as possible for our clients. We must also ensure that we do 
not merely indulge in a creative labeling approach whereby "our side has 
merchant vessels which are exempt from attack while theirs has naval auxiliaries 
which we can sink on sight." The task of developing a usable word picture to 
describe when the merchant ship becomes a legitimate military objective has 
merely been begun. We in Canada have tended to use the expression "incor- 
poration into the belligerent war effort." The Mallison paper uses expressions 
such as "performing belligerent functions" or "participation in the armed 
conflict." NWP 9 uses expressions such as "acting in any capacity as a naval or 
military auxiliary" and "integrated into the war-fighting/war sustaining effort." 
The Bochum Conference on the Military Objective in the Law of Naval Warfare 
used the expression "making an effective contribution to military effort." All of 
these expressions are useful starting points. It is essential, however, that we now 
begin to fill in the details of our word picture. 

Notes 

♦Commander W. J. Fenrick, Canadian Forces, Director of Law/Operations and Training, Department of 
National Defense, Ottawa. The views expressed herein are those of the writer and do not necessarily reflect 
either the policy or the opinion of the Canadian government. 

1. Julius Stone, Legal Controls of International Conflict 606-7 (1954). 

2. Theodore Roscoe, United States Submarine Operations in World War II 19 (1949). 

3. J. E. Talbott, Weapons Development, War Planning and Policy: The US Navy and the Submarine May-June 
1984, 37 N.W.C.R. 53, 68. 

4. Daniel P. O'Connell, The Influence of Law on Sea Power 3 (Manchester, 1975). 

5. M. Maurer & L.J. Paszek, Origin of the Laconia Order, R.U.S.I. Journal 338-44 (November 1964). 

6. 1 Clay Blair, Silent Victory 352-60 (1975). 

7. S. O'Dwyer-Russell, Was Royal Navy VC Submariner A War Criminal, The Sunday Telegraph, Feb. 
5, 1989, at 1; A. De Zayas, The Wehrmacht War Crimes Bureau 1939-45, at 245-68 (1989). 



Fenrick 119 

8. 18 Trial of the Major War Criminals Before the International Military Tribunal Nuremberg, 14 
November 1945 - 1 October 1946, at 319 (1948) [hereinafter IMT]. 

9. Id. at 323. 

10. U. at 323. 

11. Id. at 327. 

12. Id. at 329-30 

13. Id. at 557-60 

14. W.J. Fenrick, The Exclusion Zone Device in the Law of Naval Warfare, 24 Can. Y. B. Int'l. L. 91-126 
(1986). 

15. Daniel P. O'Connell, International Law and Contemporary Naval Operations, 1970 44 Brit. Y. B. Int'l. 
L. 52. 



Chapter IV 

State Practice Following 
World War II, 1945-1990 



A paper by 
George K. Walker * 

Comments by 
L. C. Green 



Walker 121 



State Practice Following 
World War II, 1945-1990 



I. Introduction 

At least ten armed conflicts at sea since World War II have involved targeting 
issues concerning enemy merchant shipping and neutral vessels that have 
acquired enemy character: the Korean conflict of 1950-53 and naval actions 
connected with the civil war in China, 1949-58; the Arab-Israeli conflicts of 
1948-57, 1967, 1973 and 1982; the India-Pakistan wars of 1965 and 1971; the 
Vietnam War, with principal U.S. forces involvement between 1962 and 1973; 
the Falklands/Malvinas War of 1982; and, most importantly, the Iran-Iraq 
Tanker War of 1980-88. There was no global war similar to the experiences of 
World Wars I and II; in all cases the arenas of attack were relatively localized. 
However, to some participants the conflict was total, e.g. , the Tanker War as to 
the belligerents, Iran and Iraq; to neutral bystanders, involved to a greater or 
lesser degree (e.g. the United States in the Tanker War), the conflict was only a 
regional, second or third level affair. 

Although these conflicts overlapped each other in point of beginning and 

duration, they may be analyzed conveniently in the sequence listed above. This 

chapter will also attempt to interweave other major sources of state practice - 

1 . o 

e.g., treaties, in some cases like UNCLOS, not yet in force - that may have 

impact on this area, albeit tangentially, in the future. It might be noted that other 

sources of state practice or custom, the theme of this chapter, may be found in 

[Diplomatic correspondence, policy statements, press releases, the opinions of 
official legal advisers, official manuals on legal questions, e.g. manuals of military 
law, executive decisions and practices, orders to naval forces, etc., comments by 
governments on drafts produced by the International Law Commission; state 
legislation, international and national judicial decisions, recitals in treaties and 
other international instruments, a pattern of treaties in the same form, and 
resolutions relating to legal questions in the United Nations General Assembly. 
Obviously the value of these sources varies and such depends on the circumstan- 
ces. 

Most modern military manuals, e.g., NWP 9A> contain a "disclaimer clause," 
which says that although the publications cannot be considered as binding on 
courts, "their contents may possess evidentiary value in matters relating to U.S. 
custom and practice.** And besides customary and treaty sources, there may be 
general principles of law, authoritative treatises, other research of competent 
scholars, court decisions, or perhaps resolutions of international organizations, 



1 22 Targeting Enemy Merchant Shipping 

that may impact the law-defining process. Some of these sources, e.g., actions 
of international organizations, may appear for the first time in the time frame of 
this analysis, 1945-90, while others have been sources, perhaps subsidiary to 
custom, treaties and general principles, for a long time. 

The general format of this chapter is analysis, on a general time line when the 
conflict occurred, grouping adversaries where successive conflicts have occurred, 
e.g., Korea, 1950-53, and naval activity connected with the Chinese civil war, 
followed by the 1948-1957, 1967, 1973, and 1982 Arab-Israeli conflicts, etc. 
Within each conflict, or set of conflicts, state practice will be analyzed first. This 
will be followed by other primary sources developed during the time frame, e.g., 
treaties binding on the parties, and then by other developments in international 
law - e.g., treaties that would apply to future wars at sea, treaties not related to 
armed conflict but whose principles may be arguably applicable in the future, 
and the research results of major commentators. While this has made for a longer 
chapter, it is hoped (and submitted) that the comprehensive approach may be 
more useful than examination of state practice in isolation from other sources. 

This chapter is limited to its topic. Full analysis of issues involving the results 
of attacks on truly neutral merchant shipping, which are strictly prohibited; 

Q 

attacks on enemy warships or naval auxiliaries, which are permitted; attacks on 
warships of neutrals, which are prohibited; and attacks on certain protected 
vessels, e.g., hospital ships, which are prohibited; are not always given full 
analysis. For example, specific humanitarian law rules that flow from such attacks 
may be discussed only tangentially, e.g., the particular rules for notification of 
casualties. The same is true for claims concerning accidental attacks in peacetime, 
or sea-air warfare, such as the Airbus incident during the Tanker War. The 
chapter confines itself to high seas situations. 

II. State Practice and Other Sources of International 
Law Since World War II 

The postwar era began with ratification of the U.N. Charter, whose articles 
51 and 52 recognize the inherent right of individual and collective self-defense, 
and the right to establish regional arrangements or agencies to deal with matters 
relating to the maintenance of international peace and security as appropriate for 
regional action. Article 2(4) of the Charter declares that all U.N. members shall 
refrain from the threat, or use, of force against the territorial integrity or political 
independence of any state. Article 2(3) states the correlative principle that U.N. 
members must settle international disputes by peaceful means so that "interna- 
tional peace and security, and justice, are not endangered." There is, of course, 
an inherent tension between the principles of Articles 2(3) and 2(4) and Articles 
51 and 52, in that the use of force in self-defense, perhaps through an Article 52 
agency, will almost invariably involve the territorial integrity or political 



Walker 123 

independence of a state to which the defensive response is directed. Settlement 
by peaceful means is the polar opposite to the threat or use of force permitted 
under the principles of self-defense. However, Article 2(3) 's peaceful means 
provision is qualified by the paramountcy of international peace and security, and 
the order of listing of Purposes of the United Nations, as well as the content of 
subsequent Charter provisions, supports the view that the maintenance of peace 
and security is "the primary purpose of the Organization and takes priority over 
other purposes." Since the "inherent right of self-defense" is preserved under 
article 51 in the absence of action by the Security Council, and is a correlative 
of actions the Council might take, the right of self-defense is part of the 
corrective mechanisms (albeit through self-help) the Charter contemplates. 

Besides the preservation of the right of self-defense, the Charter also provides, 
in Chapter VI, for pacific settlement of disputes, including investigations, 
recommendations and decisions by the Security Council of disputes "likely" to 
endanger the maintenance of international peace and security. The Charter 
also gives the Security Council, in Chapter VII, authority to act to deal with 
threats to the peace, breaches of the peace, or acts of aggression. Nonforce actions 
that the Council may direct include "complete or partial interruption of 
economic relations and of . . . sea, air and other means of communications "under 
Article 41. Article 42 gives the Council the option of deciding on force, 
including "demonstration, blockade, and other operations by air, sea, or land 
forces of Members. ..." (Chapter VII also includes Article 51, with its statement 
of the inherent right of individual and collective self-defense. ) Although the 
principal institution for implementing Council action, the Military Staff Com- 
mittee, withered during the Cold War, U.N. Members remain liable to obey 
the Council's "decisions," which have been issued only rarely because of that 
Cold War. Thus one of the primary foci for enforcement of states' rights under 
international law for 1945-90 has been self-help, through claims of self-defense, 
anticipatory self-defense, nonforce reprisal and retorsion. 

Self-defense has two elements, necessity and proportionality, and for U.S. 

practice includes the right of anticipatory self-defense, perhaps on a global scale, 

involving use of armed force where there is a clear necessity that is "instant, 

overwhelming, and leaving no reasonable choice of peaceful means." The basic 

self-defense principles, tersely articulated in the Charter in 1945 and developed 

through state practice since then, might come into play at the beginning of any 

armed conflict where enemy merchant ships are at sea or are being convoyed 

by enemy warships, or situations might develop during armed conflict involving 

neutral vessels. Two views have developed as to the scope of self-defense after 

ratification of the Charter. The U.S. position has been that a parallel customary 

1 ft 
right of self-defense exists alongside Article 51, while others have argued that 

the Charter comprehends the scope of the right, i.e., that the right to self-defense 

occurs only when there is an armed attack. And, as will be seen, the peacetime 



124 Targeting Enemy Merchant Shipping 

law of the sea declares that merchant ships have the nationality of the state whose 
flag they fly, so long as there is a "genuine and effective link" between the flag 
state and the vessel. Thus a violation of Charter Article 2(4) might be claimed 
if there is an unwarranted attack on a neutral merchant ship as much as if a 
battleship bombarded a neutral coast or an army invaded neutral territory. 
Self-defense, whether anticipatory or in response to an attack, can be asserted in 
several contexts, e.g., unit self-defense, where a particular ship, aircraft or group 
of units (e.g., a carrier battlegroup) responds to use, or threat of use, of force; 
national self-defense, where other forces, citizens or territory are involved. 

Those who would deny validity to the U.S. position would also say that there 
is therefore no right of anticipatory self-defense, although Professor Dinstein has 
taken an interesting middle view in suggesting a right of "interceptive" self- 
defense, i.e., that an attack "occurs" when one party "embarks upon an 
irreversible course of action, thereby crossing the Rubicon."' This is close to 
the U.S. position of anticipatory self-defense, which in the U.S. view is 
permitted when "there is a clear necessity that is instant, overwhelming and 
leaving no reasonable choice of peaceful means,"' as stated above. 

Beyond the case of self-defense for a single state, the Charter, Article 51, 
affirms the right of collective self-defense. The result has been formation of 
bilateral and multilateral treaties, which, when duly published, communicate the 
existence of a critical defense zone (CDZ), perhaps of half a continent. For the 
now-defunct USSR, this had been Eastern Europe. The Western Europe 
counterpart has been NATO, with its carefully-delineated boundaries that do 
not include all the national territories of its partners as applicable for a required 
collective response. The existence of a formal treaty arrangement may not be 
necessary to signal a CDZ, but it frequently is, as in the case of NATO. 

There is a similar division of authority on the use of armed force reprisals after 
1945 in situations not involving armed conflict. Reprisals are proportional 
responses, illegal as a matter of international law, to a prior act illegal under 
international law by another nation. Most authorities say that reprisals involv- 
ing use of force cannot be asserted as a matter of self-defense; a few have taken 
a contrary position. NWP 9 A appears to take no position on the issue, but its 
analysis of wartime reprisals and the severe limitations that international law and 
U.S. policy would place on such reprisals would tend to the view that U.S. 
policy opposes forcible reprisals in peacetime. Reprisals of a non-force nature, 
e.g. , economic sanctions directed at a nation violating international law, are valid 
in the Charter era. Retorsions - unfriendly but legal responses to other nations' 

actions, e.g. conscious refusal of a warship to respond to a dipped ensign of 

•it 

another nation's merchantmen - also remain valid responses. 

The problem has been compounded by the recognition that there has been 
no bright-line division between peace and war, and that therefore a static set 



Walker 125 

of rules, some to be applied during wartime and others applicable during peace, 
is not a useful concept for many situations. 

For the particular issue of this book - attacks on merchant ships - there is 
another set of issues, springing from the nature of commercial ventures at sea 
for most of this century. Flags of convenience, now euphemized as open registry, 
have called into question the nationality of the merchantman, whose connection 
with the flag state may be nominal. The ship may be crewed by nationals of 
several states, while its officers may have allegiance to another nation. The vessel 
may be owned by a corporation whose stockholders are not nationals of the flag 
state. The insurance coverage may be spread among still other states* nationals. 
The cargo may be consigned to one person, or it may be beneficially owned by 
many, and the same may be said of cargo insurers. The ship may be chartered 
to another national, and there may be subcharterers as well, each with their own 
insurance coverage. Today nonbulk cargo is frequently lifted by sealed con- 
tainers, perhaps loaded and sealed by the consigner, for which the bill of lading 
may recite that the container is "said to contain'* certain items, with a resulting 
problem for a visiting officer searching for contraband. Even though the USSR 
with its system of state ownership is collapsing, many nations operate commercial 
shipping companies, for which the defense of sovereign immunity may or may 
not be available, depending on the cargo. Although the rule of the 1909 
London Declaration that warships may rely on the flag the merchantman flies 
for visit and search purposes, the existence of other interests, and behind them 
the states whose nationals are interested, cannot be dismissed as a factor in the 
problem. Given the "intermediate" status of most armed conflict situations today 
- somewhere on the continuum between peace and total war - the problem 
is likely to be more difficult, and claims more frequent, than in a World War 
II-style scenario. 

These preliminary remarks are generally directed at the beginning of hostilities 
in the Charter era, i.e., after 1945, but they might also apply if a neutral merchant 
vessel is perceived to be on unneutral service or if a neutral power becomes 
involved in the conflict after initial commencement of hostilities. 

From the problems of jus ad bello to problems of jus in bello in recent armed 
conflict situations we now turn. 

A. Korea: 1950-53, and the Civil War in China, 1949-58 

Immediately after the invasion of the Republic of Korea (ROK) in late June 
1950, the U.N. Security Council authorized the United States to respond to the 
attack and called upon all nations to assist in that effort. The Soviet Union was 
not present when the Council vote was taken and hence did not veto these 
resolutions. 

As part of this response, the United States, on July 4, 1950, informed the 
U.N. Secretary-General "that, in support of the resolution approved by the 



1 26 Targeting Enemy Merchant Shipping 

Security Council relative to the attack upon the Republic of Korea [ROK] 
involving forces from North Korea, ... a naval blockade of the entire Korean 
coast" had been ordered by the President of the United States. Notice of the 
blockade had been broadcast on July 4; its 39° 35'N and 41° 51'N limits "were 
established to keep all sea forces well clear of both Russian and Chinese 
territory," thus allowing access to territory of nonbelligerents. Both the USSR 
and the People's Republic of China (PRC) protested the blockade and refused 
to acknowledge its existence or legality although both observed it. All warships 
except North Korean vessels were allowed to enter North Korean ports; all other 
ships were barred. Although blockading forces were meager at first, the blockade 
was soon set and became effective along 500 miles of the Korean peninsula. After 
initial attempts to break the blockade, there was no active surface or submarine 
and little air opposition. Mines laid by North Korea with Soviet assistance were 
employed, however. 

The blockade of Korea had several important ramifications for international 
law. First, it was part of the first major peacekeeping operation authorized by 
the Security Council under the Charter. Second, the Council authorization for 
U.S. leadership in the defense of Korea began the practice of the "agency 
principle" used in subsequent operations directed by the Council - e.g., 
Rhodesia - or recommended by the General Assembly. Third, practice under 
the blockade conformed to previously-established principles of the law of 
blockade and thereby reinforced them. 

U.N. naval forces also evacuated diplomatic personnel and U.S. civilians 
aboard U.S. warships after the initial North Korean attack in 1950; some 
dependents were evacuated by commercial shipping. Substantial numbers of 
Koreans who wanted to leave North Korean-occupied South Korea or North 
Korea were also evacuated by these ships when U.N. land forces later rolled 
north or were pushed south. The evacuations were well-advertised in the 
media, although there were no formal agreements between U.N. forces and 
North Korea, as customary law would dictate. Adversaries to these operations 
did not attack the evacuation ships, but if they had, there would have been 
possible violations of the rules against attacking cartel vessels or ships performing 
humanitarian missions. The use of media announcements in lieu of agreements 
was an extension of the traditional rule requiring prior agreements between 

CO 

belligerents. As such, the U.N. procedure was the beginning of incipient 
custom as to the procedure. 

Local convoy operations began soon after hostilities; no trans-Pacific 
convoying was employed. Vessels escorted included at least 40 Japanese- 
owned freighters under the control of Shipping Control Administration, Japan 
(SCAJAP); U.S. Army transports and cargo ships, and Military Sea Transporta- 
tion Service (MSTS) vessels under command of the Chief of Naval Operations 
of the U.S. Navy. SCAJAP was part of the U.S. administrative structure for the 



Walker 127 

occupation of Japan. MSTS vessels included commissioned naval vessels (desig- 
nated U.S.S. like warships but primarily cargo carriers in nature), U.S. civil 
service-manned ships (designated U.S.N.S.), and a tanker fleet under time 
charter to MSTS from private companies. As in the case of ships involved with 
evacuations, there were no attacks on the convoys, which shuttled warfighting 
and war-sustaining personnel and goods from Japan and elsewhere to the Korean 
peninsula. Attacks on these convoys, whether the ships were under SCAJAP, 
U.S. Army, or MSTS control, would have been justified as military convoys for 
the warfighting/ war-sustaining effort. Since some of the same merchantmen 
may have been employed for law-protected voyages (e.g., cartels or evacuations), 
and at other times in carriage of warfighting or war-sustaining efforts, the 
dilemma of the 1907 Hague Convention (VII) on conversion of merchant ships 

CO 

to warships is apparent and illustrates the Convention's possible supersession 
in practice. (The United States is not a party to Hague VII.) 

U.N. forces took the position that since fish was an important source of food 
for North Korea, including its armed forces, destruction of all fishing boats, 
inshore and offshore, was strategically necessary. Commander Fenrick has 
stated that 

the an ti -fishing campaign appears to have been an extension beyond previous 
practice. It must, however, be conceded that . . . contraband lists in World War 
II specified food as conditional contraband. . . . Although all the naval weapons 
were used, neither nuclear weapons nor submarines in the commerce destruction 
role were used during the conflict. 

Although a naval blockade of the PRC was considered after the Chinese 
intervention in the Korean peninsula land campaign, those plan "folders stayed 
on the shelf." Throughout the conflict, "In the northern Sea of Japan the . . . 
Soviet Far Eastern Fleet maneuvered, undisturbed and undisturbing." Later in 
the war, on September 27, 1952, U.N. Commander (and U.S. General) Mark 
W. Clark proclaimed a Sea Defense Zone (SDZ), "for . . . preventing attacks 
on the Korean Coast; securing the [U.N.] Command sea lanes of communica- 
tions and preventing the introduction of contraband or entry of enemy agents 
into [the] Republic of Korea. Paralleling the "Peace Line" proclaimed by ROK 
President Syngman Rhee earlier in 1952 to claim continental shelf and exclusive 
fishing rights for South Korea, the Clark Line was rescinded August 25, 1953 
as part of the armistice negotiations. Although Professor O'Connell has asserted 
that the SDZ "was operationally successful because in the circumstances the law 
could be overlooked," his position, taken in 1975, was not correct in 1952 
when the Clark Line was proclaimed, or today. As analyzed in the contexts of 
the 1982 Falklands/Malvinas war and the 1980-88 Tanker War, Parts II.F and 
II. G, such war zones are legal so long as they are limited in time and geographic 
scope proportional to the conflict. As sources for those conflicts illustrate, such 



1 28 Targeting Enemy Merchant Shipping 

zones have a history of state practice going back to at least the Russo-Japanese 
War of 1904-05. And to the extent that the Clark Line area coincided with 
the Security Council decisions authorizing defense of Korea, the SDZ was legal 
for that reason as well. The geographic coincidence of the Rhee Line, which 
ran up to 200 miles off the ROK coasts and was primarily aimed at excluding 
fishermen from Japan, then emerging from postwar occupation, illustrates a 
problem common to the postwar world of relatively limited naval warfare and 
the seaward extensions of claims of national sovereignty, such as the exclusive 
economic zone (EEZ), or the continental shelf. While it might be perfectly 
valid for a state to reasonably regulate fishing and other economic activity 50 
miles off its coast, as North Korea has purported to do recently, that nation's 
geographically coincident 50-mile defense exclusion zone clearly is not propor- 
tional, in duration or area, relative to whatever threat(s) North Korea might 
perceive, and thus is illegal under international law. 

The Korean conflict also saw the genesis of another source of law for naval 
warfare. When the USSR returned to the Security Council and its vetoes 
throttled further Council action on the war, the General Assembly passed the 
"Uniting for Peace" Resolution (UFP) with the backing of the United States. 
UFP in effect construed the Assembly's largely non-binding authority under the 
U.N. Charter to include recommendations to U.N. Members for further 
prosecution of the war. UFP was the legal vehicle for later Assembly-approved 
peacekeeping operations, most of which did not involve U.S. forces, and few 
of which involved naval units. The UFP process has been employed in 
situations outside the arena of armed conflict, often to the chagrin of the United 
States. In theory at least, UFP remains as a possible source of claims to the control 
of naval warfare. Two important products of the UFP process include the 1970 
General Assembly Resolution 2625, declaring principles of friendly relations and 
cooperation among states, and the 1974 Resolution 3314, defining aggression, 
both adopted by consensus. 

(1) The Civil War in China 

During the same time, the U.S. Seventh Fleet had begun the Taiwan Straits 
Patrol to prevent the PRC from invading Taiwan or the Republic of China 
from invading the mainland as a corollary to the Korean conflict, rejecting 
USSR claims that this was an act of aggression and a blockade of Taiwan. In 
1953 the United States changed the Patrol to a defensive shield for Taiwan 
because of PRC entry into the Korean War. Although no formal mutual 
defense treaty with Taiwan was ratified until 1954, the United States had 

R1 

retained its posture as a World War II ally of Nationalist China before then. 
Thus U.S. naval forces could legitimately protect Taiwan's territorial integrity 
under a self-defense theory as long as Taiwan acquiesced in this form of limiting 
an ally's freedom of movement. 



Walker 129 

In 1949, the United Kingdom and the United States had protested the 
Republic of China's declared blockade of the China coast. Several U.S. and 
U.K. merchantmen were seized. The practice as to the United States stopped 
with advent of the Korean War and President Truman's statement directed 
toward the Taiwan government. Seizures of Soviet bloc vessels by Taiwan 
government ships occurred in 1953-54, for which the United States disclaimed 
responsibility, and U.K. ships also were molested up through 1953, for which 
Great Britain protested and declared that U.K. warships had been instructed "to 
afford protection to British ships on their lawful occasions on the high seas." 
From 1950 through 1953, there were 90 incidents of Nationalist Chinese 
interference with international shipping destined for PRC ports. Two thirds of 
these incidents involved U.K. -flag vessels. These ships were detained in 
Taiwanese ports and their cargoes confiscated. Nevertheless, James Cable has 
rated the Nationalists' operation "not very successful" from the standpoint of 
gunboat diplomacy. At the same time, PRC warships were successfully 
employing gunboat diplomacy against Japanese fishing vessels; 158 were seized 
between 1950 and 1954 "before Japanese fishermen agreed to respect Chinese 
prohibited zones." South Korea employed the same practice from 1953 
through 1955. The 1958 PRC attack on the Quemoy and Matsu Islands close 
to the China mainland but held by the Taiwan government, prompted a U.S. 
response of 60 warships. "Smaller ships began escorting Nationalist convoys to 
the offshore islands. The PRC response was the issuance of a declaration 
extending China's territorial waters from 3 to 12 nautical miles, which applied 
to the coastal islands . . . and all other islands claimed as Chinese territory." 
The United States, as a matter of policy, did not send its convoying warships 
into Quemoy/Matsu territorial waters, but it did not thus imply recognition of 
PRC claims to territorial seas around the islands. During the 1950s PRC PT 
boats developed the tactic of concealing themselves in PRC fishing fleets and 
darting out of this cover to attack Nationalist ships. Both the U.S. tactic of 
convoying and the PRC use of fishing fleets to camouflage speedboats were later 
employed in the Tanker War. 

The United States could convoy Nationalist vessels to the offshore islands, 
and the convoys, if they carried goods that did not contribute to the Nationalist 
warfighting/war-sustaining effort, enjoyed legal immunity from attack. Even if 
vessels did carry goods to support the Nationalists' efforts to respond to a civil 
war, the United States could legitimately convoy them. Until 1979, the United 
States recognized Taiwan as the legitimate government of all China and had a 
self-defense arrangement with Nationalist China dating from World War II. 
Thus the United States, as a matter of self-defense, could have defended its 
escorting ships and any convoyed vessels from attack. 

Small coastal fishing boats engaged in their trade are exempt from capture or 
attack. However, if the boats aided and abetted the speedboats by concealing 



1 30 Targeting Enemy Merchant Shipping 

them or otherwise assisting in their belligerent acts, the fishing craft lost their 
immunity. This issue was apparently never tested insofar as U.S. naval vessels 
were concerned, but several Nationalist vessels were hit, and there was response 
in kind. 

(2) Other Trends 

Writing just after the close of the Korean War, Professor Tucker confirmed 
the traditional rule that small coastal fishing and trade vessels, so long as they did 
not participate in the war effort, were exempt from capture and destruction, 
as did NWIP 10-2, 96 the predecessor to NWP 9 A. They followed the view of 
Oppenheim's current treatise, published in 1952. All authorities agreed that 
coastal steamers or relatively large, deep-draft vessels were not within the 
exception. 

Professors Oppenheim and Tucker, tracing the shift from the mid-eighteenth 
century, when the rule was that private enemy merchant ships might be 
captured, through the early twentieth century debate over capture, to the rule 
following World War II and the early Fifties, concluded that such vessels could 
not be captured, attacked and destroyed, with these exceptions: 

(1) A ship refused to stop when summoned to do so; 

(2) A ship actively resisted visit and search; 

(3) A ship sailed under convoy of military ships and/or aircraft; 

(4) A ship was armed with offensive weapons, and such have been used, were 
intended for use, against an enemy; 

(5) A ship was incorporated into or assisted the enemy's armed forces intelligence 
system; or 

(6) A ship acted as a naval or military auxiliary to enemy armed forces. 

The merchantman's passengers, crew and papers were to be placed in safety if 
circumstances permitted, and the attacking ship was required to look for 
survivors and to protect them and the dead against ill treatment if the ship were 
sunk. If a merchantman desired to surrender, the attacking vessel could not refuse 

QQ 

quarter. NWIP 10-2 approved exclusion zones, stating that "[w]ithin the 
immediate vicinity of his forces, a belligerent commanding officer may exercise 
control over the communications of any neutral vessel . . . whose presence might 
otherwise endanger the safety of his operations," and that "a belligerent may 
establish special restrictions . . . upon the activities of neutral vessels . . . and may 
prohibit altogether such vessels . . . from entering the area. Neutral vessels . . . 
[failing] to comply . . . expose themselves to the risk of being fired upon." 



Walker 131 

Professor Tucker, in whose Naval War College analysis appears the first edition 
ofNWIP 10-2, says that war zones directed against enemy merchantmen not 
integrated into the war effort, or presumably otherwise not exempted (as being 
unarmed), would not justify a shoot-on-sight policy. Tucker agreed with 
NWIP 10-2 that practice allowed controlling neutral vessel movements, and that 
merchantmen carrying contraband were subject to seizure. Oppenheim stated 
that war zone declarations warning neutrals of entry only at their peril were 
illegal. However, "[a]s between the belligerents only, provided that the zone is 
enforced by the use of means . . . which comply with the laws of maritime 
warfare, . . . there can be no doubt of the lawfulness of the practice. " 

Although negotiated during the Korean War, the four Geneva Conventions 
of 1949 did not come into effect for the United States until 1952. They are now 
generally effective worldwide. The Convention for the Amelioration of the 
Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at 
Sea (GWSEA) is, in a sense, a misnomer, for its provisions apply, inter alia, to 
persons wounded, sick or shipwrecked who are "[m] embers of crews, including 
masters, pilots and apprentices, of the merchant marine . . . of the Parties to the 
conflict, who do not benefit by more favorable treatment under any other 
provisions of international law." An inference could be made that the 
negotiators would not have included all merchant seamen, including those 
aboard enemy merchant vessels, if they did not feel that all such ships were subject 
to attack under some circumstances, which had became the norm during World 
War II. GWSEA also exempts small coastal rescue craft from attack. 

The last phrase of article 13(5) of GWSEA - "who do not benefit by more 
favorable treatment under any other provisions of international law" - invites 
attention to the growing body of human rights norms, typically encased in treaty 
format, but perhaps applicable today as general practice of states. The first of 
these was the Genocide Convention, and there has been a veritable torrent 
of them since, some regional and some worldwide in application. To be sure, 
many human rights conventions contain "escape clauses" that render them 
largely inoperative during times of national emergency, e.g. , armed conflict, 
but a future international tribunal might declare them articulative of a general 
customary standard, as the World Court did in the Nicaragua Case, perhaps 
ignoring the escape clause limitation. In general, future wars at sea may be largely 
free of these constraints, owing to the targeting of ships, not people, but it would 
seem that a national command authority ordering a war of genocidal extermina- 
tion at sea, or an individual commander that directs execution of a rescued crew 
with genocidal intent, would be as guilty of violating human rights norms as of 
violating the law of armed conflict. Existence of this body of human rights law 
at least creates the expectation that claims of such violations will be made in 
future armed conflicts at sea. 



1 32 Targeting Enemy Merchant Shipping 

The 1954 Hague Cultural Property Convention may also impact armed 
conflict at sea. The United States is not party to this convention, although about 
80 nations are. Although the primary purpose of the Convention was protection 
of sites and immoveable and moveable property on land as a response to the 
Nazis' looting of Europe during World War II, there are implications for 
naval warfare. If a belligerent that is party to the Convention decides to transport 
cultural property, that state must apply to the Commissioner General for Cultural 
Property appointed under the Convention, who consults with the Protecting 
Powers for each belligerent on measures for specifically protected transport and 
who appoints inspectors to determine that only cultural property is being shipped 
in accordance with approved measures. Parties to the Convention pledge to 
"refrain from any act of hostilities, directed against transport under special 
protection." The ship must display a special emblem, a pentagonal blue and 
white shield. In "urgent cases," particularly at the start of armed conflict, a 
belligerent may "As far as possible notify] . . . Parties," but the pentagonal shield 
may not be displayed unless other belligerents expressly grant immunity. Other 
belligerents must "take, so far as possible, the necessary precautions to avoid acts 
of hostility directed against [the transporting ship if it displays] the distinctive 
emblem." If either method is employed, the property and the carrying ship 
are immune from seizure, placing in prize, or capture. In effect, unless there 
is advance consent for emergency transfer, there would be a high risk of attack, 
even if there is a shield displayed or other notice given. The dilemma for the 
naval commander would be a decision whether the transporting vessel was 
employing a perfidious ruse or whether it was in fact carrying only cultural 
property. In any event, the Convention guarantees the right of visit and search 

1 1 Q 

of ships operating under both kinds of transport. The Convention also 
generally excepts from its operation cases of "imperative" "military necessity" 
for such time as that necessity continues. Immunity may also be withdrawn 
by a belligerent if its opponent violates the requirement that the cultural property 
not be employed for military purposes, e.g., transporting valuable cultural 
property to pledge it for purchase of war material. If a Commissioner has been 
appointed, he or she must be notified of either kind of withdrawal from 
immunity. 

As in the case of the human rights conventions, nonratifying nations may find, 
after the fact, that the Convention articulates customary law norms, particular- 
ly if the state is party to a similar regional agreement such as the Roerich Pact, 
which covers the same ground for certain Western Hemisphere nations, includ- 
ing the United States. At the least, there can be expectations of claims of 
violations of international law from Convention parties. The Convention applies 
among parties bound by it, even though a co-belligerent is not bound by it. A 
co-belligerent may declare its acceptance of the Convention for the conflict, 



Walker 133 

and all are then bound so long as the nonparty co-belligerent adheres to the 
Convention's terms. 

B. Arab-Israeli Conflicts: 1948-57, 1967, 1973, 1982 

On May 15, 1948, toward the opening of the first conflict, Egypt instituted 
shipping inspections at Alexandria, Port Said and Suez, the latter two being entry 
ports for the Suez Canal. A May 1 8 proclamation provided that "munitions or 
merchandise of any kind destined directly or indirectly to the institutions or 
persons residing in Palestine" might be confiscated in accordance with interna- 
tional law. (Israel had been proclaimed a state that day.) On May 29 the U.N. 
Security Council called upon all governments to refrain from introducing 
fighting personnel, or importing or exporting war material into or to the area 
during a ceasefire. A June 3 notice applied the May 18 proclamation to Israeli 

1 97 

exports. On July 8 Egypt established a prize court. Egypt further decreed 
search and seizure procedures, and published a contraband list, "including arms 
and armaments, chemicals, fuels, armed forces automobiles, and bullion," on 
February 6, 1950. On November 28, 1953, the list was expanded to include 
foodstuffs and "other commodities likely to strengthen the war potential" of 
Israel. The decree applied to vessels in Egyptian territorial waters or the Canal. 

On November 14, 1948 Egypt detained the U.S. -flag S.S. Flying Trader on 
grounds that it was transporting war materials. Trader's cargo included 4000 bags 
of rice, an ingot of tin and 38 "trucks." The rice was released; the fate of the tin 

1 9Q 

is unknown. The Egyptian prize court later said the "trucks" were "in fact 
guns, etc. [, i.e.] . . . armored cars each capable of carrying a dozen soldiers." 
Trader had received the vehicles in Bombay; they were part of a consignment 
of 50 originally sent on Trader's sister ship, S.S. Flying Arrow, from the United 
States to Tel Aviv. Twelve vehicles were offloaded at Tel Aviv before the war 
began, but more could not be discharged because of attacks in this port. Arrow 
then proceeded to Bombay, India, where the 38 vehicles were transshipped to 
Trader, which sailed for New York via Genoa, Italy, a port allegedly "a principal 
base for contraband traffic destined for" Israel. Genoa was on the Egyptian 
blacklist of ports. Trader was stopped at Port Said. Two bills of lading for the 
vehicles were offered to the court, the original "to order" and a copy naming 
an individual. The vehicles were condemned as lawful prize. Perhaps equally 
important was the prize court's ruling that the seizure was legal despite con- 
clusion of a General Armistice Agreement between Egypt and Israel before the 
seizure. Although this aspect of the holding has been criticized, " the Trader 
case is illustrative of the potential for legal approval of claims to commit "warlike" 
acts while there is a technical "peace." 

The United States protested Egypt's oil tanker regulations requiring a ship to 
certify it was heading for a neutral port and to obtain an Egyptian certificate that 
the cargo was for local consumption in a neutral port in late 1950. The Egyptian 



134 Targeting Enemy Merchant Shipping 

regulations also provided that if a tanker did not comply, it would be denied 
facilities. The protest "stated that these regulations would work undue hardship 
on normal shipping operations" and reserved the right to protest on legal 
grounds. Egypt responded by blacklisting vessels whose manifests showed they 
had carried to Israel "any material considered contraband by . . . Egypt." 

The United Kingdom, on the other hand, had "compromised the position" 
of straits passage (through the Straits of Tiran) to the Israeli port of Eilat 
by agreeing to contraband search at Adabiya or Suez, a "concession to belligeren- 
cy ... to prevent hostilities from spilling over on to the high seas, but the British 
agreement carried with it the implication of a recognition that Egypt had 
belligerent rights, and it claimed no reservation as to rights of passage through 
the straits." Although Egypt claimed the United States and Denmark had also 
acquiesced in such searches, the record is less than clear but would indicate 
that the United States protested some, if not all, of the Egyptian procedures, and 
that probably Denmark did too. ~ Indeed, after an Egyptian corvette stopped, 
plundered and damaged a U.K. merchantman on July 1, 1951 in the Gulf of 
Aqaba as part of the attempted blockade of Israel, and British protests and Security 
Council discussion were unavailing, a British destroyer flotilla was sent to the 
Red Sea "to prevent further incidents of this kind." On July 26, Egypt and 
Britain reached agreement on future procedures for U.K. ships. From late 1951 
to March 1 952 British warships - usually two cruisers - were employed to keep 
the Canal open when Egyptian labor was withdrawn and clearance was denied 
U.K. vessels. The cruisers provided a protected labor force to keep the Canal 
open until Egypt resumed operations. 

After the Egyptian-Israeli Mixed Armistice Commission reported its belief 
that it did not have the right to ask Egypt to stop interfering with goods passage 
through the Canal, the U.N. Security Council passed a resolution on 
September 1, 1951, finding that Egypt's interference with neutral shipping's 
passage was "an abuse of the right of visit, search and seizure" that could not be 
justified on the basis of self-defense and was a violation of freedom of the seas. 
The Council called upon Egypt to end the restrictions. The resolution went 
unsupported, and the result was more seizures and protests. A second 
Council resolution was vetoed by the USSR in 1954. Professor O'Connell 
has inquired whether the 1951 resolution applied to the Gulf of Aqaba. After 
Egypt nationalized the Canal, Israel's 1956 attack on Egypt, a ceasefire and 
establishment of the U.N. Emergency Force, the Canal was reopened under 
management of the Suez Canal Users' Association with right of passage guaran- 
teed. From February - April 1957, U.S. destroyers had patrolled the Straits 
of Tiran to successfully prevent Egyptian interference with U.S. merchantmen 
bound for Israel. Other U.S. naval vessels evacuated U.S. citizens and "friendly 
nationals," on a space-available basis, from Haifa and Alexandria. 



Walker 135 

Dr. von Heinegg has summarized the decisions of the Egyptian prize courts 
from 1949 through the Fifties: 

. . . [T]he Egyptian prize court in its jurisdiction very often referred to the decisions 
of prize courts of the two World Wars. Whereas in a number of cases neutral 
cargo was released, the principle that a neutral flag covers enemy cargo was 
acknowledged only if the neutral did not cooperate with the enemy. Enemy 
destination was assumed in conformity with, e.g., British prize jurisdiction of the 
two World Wars, black lists playing an important role. All goods labelled "Produce 
of Israel" were considered to be of enemy character. The notion of contraband 
was interpreted extensively comprising, e.g., tea, coffee, onions, [and] spices. 

The judgments of the Egyptian prize court bore a strong resemblance to the prize 
jurisdiction of the two World Wars. It is, however, remarkable that all ships and 
goods affected had been captured in Egyptian ports. Partly the goods had been 
unloaded before the outbreak of hostilities in 1948. In the . . . Inge Toft the court 
expressly indicated that Egypt did not exercise its rights on the high seas but 
restricted itself to territorial waters and ports. Even though the Security Council 
in September 1951 [had] characterized the Egyptian practice as an "abuse of the 
exercise of the right of visit, search and seizure Egypt more or less regularly 
maintained it until the conclusion of the peace treaty of 1979. 

In 1949 an armistice to the first round of fighting had been declared, and it was 
in response to this that the Security Council in Resolution 95 had declared that 
Egypt had indulged in "an abuse of the right of visit, search and capture;" Egypt 
considered the armistice ended due to Israeli "aggressions," including a high seas 
attack on Karim, an Arab vessel. The important point is that the precedent of 
seizing ships during an armistice was deemed legal by Egypt, although 
denounced by the Security Council, when there was an alleged breach of the 
armistice. The Council had made no "decision" requiring U.N. Members to 
assist in ending the seizures, as it had during the Korean conflict. The second 
point is that Inge Toft does not indicate that Egypt felt compelled, as a matter of 
international law, to limit its seizures to its territorial waters: 

. . . The United Arab Republic does not exercise her rights of belligerency on 
the high seas, but limits herself to exercising them within the confines of her 
territory, ports and territorial waters. Article 10 of the [Constantinople] Conven- 
tion of October 29, 1888 [governing use of the Suez Canal], gives Egypt the right 
to take all necessary measures for the maintenance of public order in time of peace 
and for her defence in time of war. It is natural that the requirements of such 
protection are left entirely to the United Arab Republic, just as are the require- 
ments of legitimate self-defence. The policy of the economic boycott of Israel has 
been part of the public order of the United Arab Republic since 1948. To 
renounce this policy would be to compromise this public order in all the Arab 
and Islamic States. 



1 36 Targeting Enemy Merchant Shipping 

The case should not be read as lending support to the questionable view that 
belligerent naval operations, which may include seizure of merchantmen, can 
be conducted only near the belligerents' coasts. 

Although Israel attempted to characterize the seizures as a blockade, and 
therefore violative of the 1888 Constantinople Convention's prohibition of such 
in the Canal, the Egyptian actions were not, technically, that form of interdic- 
tion. During the Security Council debate on the seizure, Egypt asserted in 1951 

that they had been relatively few in number and were essential if the nation were 

i ^^ 
to "survive." This seems to be a vague reformulation of a claim of the right 

of anticipatory self-defense - i.e. seizure of war material before it could be used 

against Egypt - qualified by the principles of necessity and proportionality that 

Egypt had asserted in earlier Security Council debates. J In any event, the 

Council condemned such actions in its September 1, 1951 resolution. 

In the 1967 Six Day War, Egyptian submarines sank two innocent Greek 

freighters in the Mediterranean Sea, one off Alexandria and the other further 

west in the Mediterranean. A sidebar aspect of this war was a U.K. statement 

that it would join with other nations to assure right of passage through the Straits 

of Tiran. A British carrier group and the U.S. Sixth Fleet were concentrated in 

the Eastern Mediterranean, but **[t]his threat of purposeful force . . . was not 

pursued and . . . did more harm than good to British and American interests." 

The U.S.S. Liberty, which was monitoring Israeli transmissions during the 

Egyptian phase of the war, was damaged in an attack by Israeli PT boats, for 

which compensation was paid to the United States by Israel for loss of life and 

injuries among the crew and for damage to Liberty, without admission of fault. 

Liberty was configured like a merchant cargo ship but flew the U.S. ensign, was 

painted haze grey like all U.S. warships in the Mediterranean Sea, and had 

traditional pendant numbers on the bow and stern. Israel had declared a very 

imprecise exclusion zone, warning all ships to keep away from "the coasts of 

Israel during darkness." As to what coasts were meant (e.g., conquered territory 

also?) was less than clear. There was also an informal, private warning to the 

United States. As Commander Jacobsen has analyzed it, the public exclusion 

zone as a matter of law failed because of vagueness; in any event, the attack 

occurred in daylight (2 p.m.). The second, privately- warned zone was not 

legitimate either because it was not publicly announced in such a manner that 

Liberty would have been aware of the risk. Although Liberty was a warship, 

if she had been a merchantman, the same result would have obtained as to the 

legality of the attack so long as the ship was not engaged in work that assisted a 

belligerent, e.g., gathering intelligence. The attack on the Liberty might be 

contrasted with the sinking of the Israeli destroyer Eilat, a warship of one of the 

belligerents, during a resumption of hostilities in October 1967. During the next 

month, the U.N. Security Council adopted Resolution 242 which "/4^irm[ed] 

further . . . the necessity for guaranteeing freedom of navigation through 



Walker 137 

international waterways in the area," which undoubtedly meant the Suez 
Canal but may have included the Gulf of Aqaba. 

During the 1973 Yom Kippur War, international shipping was warned about 
entering the region of conflict, which first comprised Egyptian and Israeli 
territorial waters, but later further parts of the sea plus Egyptian, Libyan and 
Syrian ports. In October 1973 the Syrian navy captured and diverted a Greek 
liner, Romantica, but released her the next day after the Italian ambassador 
intervened. No further such incidents occurred, perhaps because of international 
protests, although Egypt regularly stopped, visited and searched neutral mer- 
chantmen. Third states' reactions varied: African nations unilaterally suspended 
or terminated diplomatic relations with Israel; Arab nations boycotted oil exports 
to Israel and the United States; Great Britain embargoed arms, largely affecting 
Israel; except for Portugal, other West European nations refused to allow use of 
their territories for supply or assistance to any belligerent, thereby cutting down 
the black-list potential of the 1948-57 war. Arab navies adopted the tactic of 
taking shelter beside merchant ships in their harbors after firing missiles at Israeli 
warships. Egypt declared a blockade in the Red Sea and attacked but missed an 
Israeli-bound tanker. In the Gulf of Suez, Egypt acted to blockade the Abu 
Rudiers-Eilat route used by Israeli-chartered tankers carrying oil from the 
Israeli-occupied Sinar fields to Eilat. In response to Egypt's blockade of the Straits 
of Bab el Mandeb, Israel counter-blockaded the area. The rationale of Egypt 
in the Bab el Mandeb operation was obscure: 

blockade was maintained in the Straits of Bab el Mandeb. Whether this was 
conducted by units of the Egyptian navy or not was apparently deliberately 
obscured, perhaps because the Egyptian government had not made up its mind 
whether the appropriate concept was that of distant blockade of Israel as an enemy 
with whom Egypt was at war; or the exercise of belligerent rights in the territorial 
seas of an allied State engaged in a collective self-defence operation; or the right 
of a coastal State (in this case Southern Yemen) to close its territorial seas to 
enemy-destined traffic, even though the territorial seas lie within straits. Egypt's 
only official announcement on the subject referred to the 'legitimate right of the 
Republic of South Yemen', which also by decree unilaterally asserted sovereignty 
over the seaway. South Yemen, with only two ex-Russian submarine chasers, 
two minesweepers and a total naval complement of 200 men, was in no position 
to prevent the passage of ships in the face of any resistance, and it seems that units 
of the Egyptian navy did, in fact, fire warning shells, visit and search foreign ships 
and warn off those bound for Israel. 

When the destroyer U. S. S. Charles Francis Adams intercepted the radio message 
of the S.S. La Salle, a U.S. -flag merchantman, that she was being fired on in the 
Straits, Adams' sailing was delayed by French authorities until such time as La 
Salle had turned back to Massawa, Ethiopia. A U.S. Seventh Fleet task force 
entered the Indian Ocean from the Pacific, and was believed to have orders to 



138 Targeting Enemy Merchant Shipping 

protect American neutral traffic in the Straits. This ended the blockade, at least 
insofar as U.S. -flag shipping was concerned. The naval war had no decisive 
influence on the final outcome of the conflict. The 1979 Egypt-Israel peace 
treaty, ending the 1973 war, provided that Israeli ships, and cargoes coming to 
or from Israel, enjoyed free passage rights through the Suez Canal and its 
approaches on the basis of the Constantinople Convention, which had 
internationalized the Canal. Israeli nationals, vessels and cargoes, as well as 
persons, vessels and cargoes going to or from Israel, would be given non-dis- 
criminatory treatment in use of the Canal. Egypt and Israel declared the Straits 
of Tiran and the Gulf of Aqaba "open to all nations for unimpeded and 
non-suspendable freedom of navigation and overflight.'* They also agreed to 
respect the other's right to these rights in the Straits and the Gulf. A protocol 
recognized the rights of vessels of the parties to innocent passage through the 
other's territorial waters "in accordance with the rules of international law." 
During the 1982 campaign in Lebanon, Israel imposed a naval blockade on 

the Lebanese coast to prevent weapons from reaching the Palestine Liberation 

1 ftft 
Organization, then based in Lebanon. Any ships or boats running guns to the 

PLO were subject to interdiction, capture and condemnation or destruction 

under the traditional rules of blockade. Weapons have always been considered 

absolute contraband. 

(1) Trends in the Arab-Israeli Conflicts 

The 1948, 1973 and 1982 conflicts saw the declaration of traditional close-in 
blockades, with the typical problems of visit, search and capture. The eventual 
result of the 1979 Egypt-Israel peace treaty was recognition of Israel's right to 
use the Suez Canal, internationalized by the 1888 Constantinople Convention, 
a further limitation on the opportunity to visit, search and capture mer- 
chantmen. 

Various high seas attacks by Egypt on neutral freighters were clearly illegal 

1 T7 

under international law, as was the Israeli attack on the Liberty, a U.S. Navy 
warship marked as such. The high seas attacks by Egypt on neutral mer- 
chantmen was an ominous portent of things to come in the Tanker War. 

(2) Other Trends 

During these conflicts the four 1958 law of the sea treaties were negotiated 
and have come into force. All save the 1958 Fisheries and Conservation 
Convention have been accepted as restatements of customary law. 

The 1958 High Seas Convention in particular has provisions that relate to 
this study. It declares that the high seas are "open to all nations, [and] no State 
may validly purport to subject any part of them to its sovereignty. Freedom of 
the high seas is exercised under [the Convention] and by the other rules of 
international law," e.g., the law of armed conflict. Thus as between belligerents, 
the convention would be modified by the law of naval warfare. However, 
non-belligerents can claim rights under the Convention, except insofar as the 



Walker 139 

law of war affects them, e.g., exclusion zones. The Convention does state the 
rights of freedom of navigation and freedom of fishing, but these and others 
"recognized by the general principles of international law," must be exercised 
by states "with reasonable regard to the interests of other States in their exercise 
of the freedom of the high seas." The Territorial Sea Convention provided 
for a contiguous zone as part of the high seas to allow littoral states to police 
such an area for, e.g., smugglers, but the negotiators did not include any 

177 
provisions for shoreside security zones. 

All states have the right to sail ships under their flag, to fix conditions for 

granting nationality to ships, for registering ships, and for flying the flag. 

However, "there must exist a genuine link between the State and the ship," e.g. 

effective jurisdiction and control of the flag state in administrative, technical and 

social matters over ships flying its flag. The latter provision responded to the 

flag of convenience phenomenon. Warships and vessels owned or operated 

by a state and "used only on non-commercial service" have complete immunity 

1 80 

except for the flag state. States must prevent oil pollution or the release of 

181 _ 

radioactive waste from ships. The 1958 Fisheries and Conservation Conven- 
tion reaffirms the above-stated right to fish on the high seas, but adds that states 
must adopt or cooperate in adopting conservation measures for the seas' living 

1 8? 

resources. The influential Restatement (Second), Foreign Relations Law of the 

1 8"^ 

United States adopted the genuine link theory in 1964; it did not address 

1 84 

directly the sovereignty and navigation issues. Professor Wolfrum has inter- 
preted the 1960 decision of the International Court of Justice concerning the 
membership of the Inter-Governmental Maritime Consultative Organization 
(IMCO, now IMO, the International Maritime Organization) to imply that only 
registration, and not the "genuine link" postscript to Article 5 of the High Seas 

1 8*> 

Convention, governed for nationality of vessels. He concludes that "the right 
of each State to establish its own conditions for the grant of its flag is not limited 
by international law. Consequently, no State may challenge or refuse to 
recognize the registration of ships by another State. Moreover, no State has the 
right to look behind a ship's flag." 

Prominent treatise writers of the time generally approved the traditional rules 
applicable to enemy merchant ships. Professor McDougal and Florentino 
Feliciano in 1961 summarized the exceptions for protected vessels such as 
hospital ships and small coastal fishing boats, but that "in the practice of both 
sides in [World War II], merchantmen were in fact regarded as regular com- 
batants and subjected to sinking at sight." Although one later commentator 
has said McDougal and Feliciano equate the law of war zones with the law of 

1 88 

blockade - as applied to neutrals - it is reasonably clear that McDougal and 
Feliciano would approve war zone treatment for enemy merchant ships, the 
object of this study. Therefore, the legitimacy of attack on enemy merchantmen 
- subject to the usual protection and exclusions - would apply to war zone 



1 40 Targeting Enemy Merchant Shipping 

situations too. McDougal and Feliciano also preserve the distinction between 
neutrals carrying contraband, which in their view would be subject to capture 
and condemnation of the goods. There was apparently no analysis of the 
problem of war-sustaining cargo aboard neutral vessels. 

C. John Colombos came to the same conclusions in 1967, noting 11 
exceptions, among them protected vessels such as hospital ships, or small coastal 
fishing or trading boats when not used for military operations, stating that enemy 
character must be determined by the flag flown. Destruction of the enemy 
merchant ship required that all on board be placed in safety and that the ship's 
papers be removed and preserved. Since it was difficult under modern warfare 
conditions to accomplish this, "destruction must be treated as an exceptional 
measure." Colombos acknowledged, however, that NWIP 10-2 and World War 
II practice by France, Great Britain, Italy and the United States permitted 
destruction in case of military necessity when the merchantman could not be 
captured and sent or escorted in for adjudication. Capture was seen as the normal 
modality for neutrals carrying contraband; there is no clear statement concerning 
attack and destruction of a contraband carrier, but if the merchantman was 
integrated into the war effort, World War II practice and NWIP 10-2 would 
permit destruction. The capturing officer had the duty of taking all possible 
measures to provide for the safety of passengers, crew and ship's papers. 
Colombos also seemed to approve a measure of control over the high seas by 

1 Q% 

belligerents for their own protection, provided they could control the area. 

In 1968, Professor Mallison traced the history of the law of naval warfare on 
capture or destruction of enemy merchant vessels and approved the NWIP 10-2 
list, but added: 

The provisions of this article are accurate as far as they go but are inadequate in 
covering this one particular situation. During the past general wars enemy cargo 
ships were attacked without warning even if they did not participate otherwise in 
the enemy war effort. They were attacked without warning because they were 
cargo vessels carrying cargoes of military importance. There is, unfortunately, no 
reason to believe that such cargo ships which comply rigorously with the 
requirements of Article 503(b)(3) wiU be immune from attack without warning 
in future general wars. This article, however, could provide specific grounds for 
claims and counterclaims based upon charges of illegality. If this occurs, the next 
steps could involve the invocation of reprisals and counter-reprisals so that a future 
general war could be conducted, thereafter, without regard to this article of the 
Law of Naval Warfare. 

Professor Mallison also recognized the traditional list of vessels immune from 
capture or attack - e.g., hospital ships and coastal fishing or trading boats. 
Although primarily concerned with attacks on neutrals in war zones, he declared 
that attacks on enemy merchantmen in declared war zones was and would be 
legal, subject to the usual exceptions, e.g., hospital ships, etc. The rule on neutral 



Walker 141 

ships integrated into the enemy war effort was that they should be treated like 
enemy merchant ships. 

Writing in 1962, Professor McDougal and his associates noted that the law 
of naval warfare, conditioned by the norms of the U.N. Charter, was an 
exception to the general principles of freedom of navigation of the seas. They 

. 1 QR 

severely criticized the genuine link theory of the 1958 High Seas Convention. 

C. Other Merchant Ship Interdictions and Diversions, 1956-66 

From 1956 through 1966, other incidents involving merchant ship interdic- 
tion occurred without conflict erupting on the high seas, although there was 
sometimes parallel fighting on land. 

(1) The Civil War in Algeria 

During the civil war in Algeria, the French navy sought to visit and search 
ships that were suspected of running war materials to the rebels in Algeria. France 
declared a 20 to 50 kilometer (11-28 mile) customs zone off Algeria for small 
craft. High seas interceptions occurred off Algeria but also 45 miles off 
Casablanca, in the Atlantic Ocean, and in the English Channel, far from the high 
seas adjacent to Algeria. In 1956, 4775 vessels were visited; 1330 were searched; 
192 were re-routed, i.e., diverted; and 1 was arrested. Diversion was ordered if 
weather made boarding impossible, if the cargo's nature was such that a thorough 
at-sea search could not be conducted, or if cargo was arms, ammunition and 
explosives. Ships flying flags of a dozen nations were involved, and the flag states 
protested vigorously. France justified her actions on self-defense grounds. 
Although a large-scale operation, the French interdiction program did not 
seriously affect freedom of navigation, since those few ships whose cargoes were 
seized were clearly engaged in smuggling arms to Algeria. Compensation was 
paid for some vessels wrongfully detained. Although some arms were im- 
ported directly from the seas off the Algerian coast, others were brought in 
overland through Morocco, Tunisia or Libya. In some instances arms were sent 
to a third state, e.g., Egypt or Libya, and then transported through another 
country, e.g., Tunisia, and across the Algerian border. In some cases, states 
friendly to the rebels were buying vessels, vesting nominal ownership in 
third-country nationals, for the traffic. In other cases, bogus shipping documents 
were used. Some arms were smuggled in by fishermen. 

(2) The Iceland-United Kingdom Cod War 

In 1958-59 British warships escorted and protected British trawlers fishing in 
waters claimed as territorial sea by Iceland. Great Britain eventually withdrew 
from the "Cod War," and the issue was resolved by diplomacy. 

(3) The Cuban Quarantine 

In 1962 the United States, acting in concert with other Western Hemisphere 
states under the Inter- American Treaty of Reciprocal Assistance (Rio Treaty), 
imposed a maritime quarantine against Soviet introduction of missiles, components 



142 Targeting Enemy Merchant Shipping 

and delivery systems, into Cuba. The action was claimed to be proper under 
Article 52 of the U.N. Charter, which allows interim security arrangements such 
as the Rio Treaty. The quarantine was undoubtedly legal under Article 52 of 
the Charter. The U.S. presidential proclamation establishing the quarantine, 
besides citing the Rio Treaty-based resolution, also relied on a U.S. Congres- 
sional resolution that recognized the threat. The U.S. proclamation was specific 
as to the type of cargoes to be halted, e.g., missiles, bombs, bomber aircraft, 
warheads, and support equipment, "and any other classes of material hereafter 
designated by the Secretary of Defense [to] effectuate" the proclamation. The 
proclamation exempted other cargoes, e.g., foodstuffs and petroleum, and 
declared neutral rights would be respected. No blockade was declared, and the 
proclamation limited use of force to situations where directions under the 
quarantine were disobeyed if reasonable efforts had been made to communicate 
directions to an interdicted vessel, "or in case of self-defense." (The Rio Treaty 
authorized "partial or complete interruption of economic relations or of . . . sea 
. . . communications; and use of armed force[,]" among other measures, thus 
paralleling the language of Articles 41 and 42 of the Charter.) Some commen- 
tators have seen the quarantine as a self-defense measure, pure and simple. 
Self-defense as a proper rationale for the quarantine after the Nicaragua Case has 
been questioned, although the possible limited precedential value of that case 
should be noted. Moreover, to the extent that action was taken under Article 
52 of the Charter, as noted by the United States and others, the Nicaragua Case, 
which dealt with the parallel customary right of self-defense alongside Article 
51, the case carries even less weight. Moreover, no one would question the right 
of individual and collective self-defense, e.g., under customary law or Article 51 
of the Charter, if a warship maintaining the quarantine had been attacked by, 
e.g., a Soviet warship, while enforcing the quarantine or in other circumstances, 
e.g., in the Pacific Ocean. 

(4) The Rhodesian Interdiction Operation 

In 1965-66, as part of the transition of governance from Southern Rhodesia 
to independent Zimbabwe, the U.N. Security Council passed a series of 
resolutions denouncing the white Rhodesian government as illegal, and calling 
upon all states to refrain from assisting the white minority regime and to institute 
an oil embargo, and upon the United Kingdom in particular to enforce such 
an embargo. H.M.S. Berwick, on patrol off Beira, a Mozambican port 
employed for offloading oil bound for Rhodesia, stopped and visited S.S.Joanna, 
an inbound Greek tanker, which refused to divert from Beira. Because the 
operative Council resolution spoke only in terms of embargo and not blockade 
or similar measures, Berwick had to let Joanna enter Beira. A later resolution 
specifically authorized such action, and the next blockade-runner, Manuela, was 
diverted after boarding. Oil companies and tanker owners began to supply lists 
of innocent tankers manifested for Beira, and except for one French tanker 



Walker 143 

(Artois) not on the list but in fact innocent, the system worked well. "[Outsiders 
as possible blockade-runners . . . did not reappear." When France protested 
H.M.S. Minerva's signalling "Stop or I will fire," and then shooting one round 
across Artois' bow, the U.K. response was that Minerva was acting in accordance 
with Council Resolution 221. The Council also passed a series of decisions 
under Chapter VII of the Charter beginning in 1966 "which imposed" 
economic and other sanctions on Rhodesia; those were not terminated until 

910 

1979 when Zimbabwe majority rule was assured. 

(5) The Trends 

The seaward aspects of the Algerian civil war developed the concept of 
diversion of merchantmen to other ports, away from their destinations in 
rebel-held parts of Algeria, rather than the traditional visit, search and capture 
procedure. The customs zone idea was not new and roughly parallelled the 
exclusion zones under World War II and earlier practice. The high seas 
interdictions far from Algeria, justified by France on self-defense grounds, came 
close to the line of an international law violation, if they did not cross over into 

91 1 

illegality. Under today's standards of proportionality, and in view of contem- 
porary protests, such actions were probably illegal, given the localized nature of 
the conflict. 

The U.K. Cod War convoying continued the trend of legitimating peacetime 
convoying of a nation's own vessels to protect them against assaults by others, a 
theme that had been restated during the civil war in China and later during the 
Tanker War of 1980-88. 212 

The 1962 Cuban Crisis started another trend for maritime naval operations, 
use of a quarantine under Article 52 of the Charter, rather than employment of 
the more traditional declaration of blockade, which carries with it a connota- 

91 % 

tion of war. In reality, the Cuban quarantine continued the practice of the 
Algerian civil war of a proportional exclusion zone, but in an international 
confrontation situation as distinguished from the internal conflict circumstances 
of civil war. 

The Rhodesian transition was the second example of use of the agency 
principle to effect control of merchant ship traffic by the U.N. Security Council, 

1 A 

the first being Korea. Employment of diversion instead of traditional visit, 
search and capture followed the Algerian civil war model, but this time in the 
context of a U.N. -approved action. 

D. India-Pakistan: 1965, 1911 

During the first of these wars, Pakistan seized 50 Indian cargoes on neutral 
ships and adjudicated them before a prize court. The cargoes consisted mainly 
of tea, with some manifests of coal and general cargo; the High Court of Dacca 
held that because the tea was "produce of Indian soil," grown by Indian 

91^ 

companies, it was lawful prize. Pakistan had previously published lists of 



144 Targeting Enemy Merchant Shipping 

absolute and conditional contraband; India responded with a list of absolute 
contraband. India asserted that because a formal state of war did not exist, 
Pakistan could not constitute a prize court. Pakistan responded that the maritime 
measures were a lawful exercise of the right of self-defense under the U.N. 

21 (\ 

Charter. India's ultimate response to the initial Pakistani seizure was im- 
poundment of three Pakistani ships in Indian waters and ordering offloading 
contraband before proceeding to Pakistan as "reprisals." When Pakistan con- 
tinued to offload cargoes in neutral bottoms bound for India, India informed 
foreign shipping companies that no India-bound cargoes should be shipped in 
Pakistani-flag vessels and that neutral-flag vessels bound for either nation should 
stop first at an Indian port, despite a cease-fire in effect. If the cargo was not 
contraband, it would not be seized. Thirty-eight vessels complied; 16 did not. 
After the end of contraband control by both belligerents, they first agreed to 
permit U.S. aid vessels to land their cargoes. Eventually both states heeded the 
International Federation of Insurance's request for release of neutral vessels. 
Late in 1966, the U.N. General Assembly belatedly called upon the belligerents 
to observe the rules of warfare. Under the traditional view of Charter law, 
the resolution was nonbinding, although it was some evidence of the interna- 
tional community's views. 

In the 1971 war, India successfully isolated East Pakistan (later Bangladesh) 
by "contraband control and blockade." After dark, neutral vessels were not 
allowed to approach the Pakistani coast closer than 75 miles. Besides ensuring 
safety of Indian vessels at sea through naval control and protection of shipping, 
the Indian Navy sought to capture or destroy Pakistani merchant vessels. More 
than 115 neutral ships were inspected, and India diverted neutral ships to Calcutta 
if they carried cargo of military significance, after India discovered that vessels' 
markings and names of many ships had been changed. Three Pakistani mer- 

220 

chantmen were captured. A Liberian-registered ship and a Spanish vessel were 
also sunk; Professor O'Connell has asserted that "[t]he naval operations con- 
ducted by India against . . . Karachi and on the Bay of Bengal took no account 
of international law, which was . . . deliberately put to one side by the Indian 
naval staff." In these operations, two merchantmen were destroyed by surface- 
to-surface missiles from Indian patrol boats while the ships were at anchor in the 
Karachi roadstead, i.e., in territorial waters. The neutral in-bound Venus Chal- 
lenger was hit and sunk by a missile 26.5 miles off Karachi and was lost with all 
hands; a Pakistani destroyer 20 miles off Karachi also went down to a Styx missile 
attack that night; the cause was probably "[c]apricious behavior of the missiles 

OO 1 

and malfunction or inadequate operation of the guidance systems." Venus 
Challenger's destruction on the high seas was a classic case of indiscriminate use 
of weapons. Significantly, a week later, but apparently before the Pakistanis 
discovered her wreck, the Bengal Chamber of Commerce published its 40-mile 
dusk-to-dawn warning. Professor O'Connell was correct with respect to the 



Walker 145 

Venus Challenger, the Pakistani destroyer was fair game, however. On the other 
hand, the economic warfare aspects of the conflicts - visit, search, seizure, 
diversion, capture contraband and prize procedures - proceeded along traditional 
lines and thereby reinforced the traditional norms. The war was over in two 
weeks, thus ending the potential for a more significant trend in state practice 
on the issues. 

E. Vietnam: 1962-73 225 

During the Vietnam conflict, North Vietnam employed small coastal fishing 
vessels as logistic craft to support its military operations in violation of the 
obligation to use these vessels, normally exempt from capture or destruction, for 

997 

fishing only. The patrol areas developed for Operation Market Time, original- 
ly part of a 12-mile defensive sea area, eventually extended to over 30 miles 

99R 

off the South Vietnamese coast. The U.S. Joint Chiefs of Staff considered 
a blockade of North Vietnam in 1965 but took Commander-in-Chief, 
Pacific's advice against such because it would indicate the United States was 

990 

performing a belligerent act. At the same time that the United States and 
South Vietnam (RVN) were intercepting southbound North Vietnamese 
supply boats, South Vietnamese were operating a Junk Force that was not part 
of its navy, also to prevent the very kinds of craft attempting to filter from the 
north. They performed other military tasks as well. In 1965 the Junk Force 

Oil 

was integrated into the RVN Navy. The patrols did not interfere with local 
fishing and trading boats, even though Vietnam was not party to Hague 
Convention XI. 

The United States used Military Sealift Command ships, U.S. -flag charters, 
and occasionally foreign-flag vessels to deliver war materials. Several of these 
ships were attacked, and two were sunk, due to attacks by the Viet Cong while 
the ships were in South Vietnamese internal waters, i.e., during river transit. 
There seems to have been no discrimination between vessels carrying war 
material and civilian-oriented cargoes, e.g., cement. The United States did 
give antisubmarine protection to valuable cargoes, e.g., troop carriers. As it 
had done during the Korean War, the U.S. Navy evacuated refugees - over 
300,000 of them, mostly civilians - from North to South Vietnam, and 721 
French wounded, including prisoners of war, were taken aboard the hospital 
ship U.S.S. Haven, bound for Morocco and France. Soviet-flag vessels 
carrying war supplies to North Vietnam initially were not interdicted. In 1 972 
a mine quarantine program in North Vietnamese territorial waters sought to seal 
off North Vietnamese ports; its antecedent had been an attempted quarantine 
by South Vietnam of Communist seaborne supplies coming to the Viet Cong 
through the Gulf of Siam and the Mekong Delta. A RVN destroyer did 
succeed in sinking a North Vietnamese trawler, believed to be carrying ammuni- 
tion, in 1972, however. 



146 Targeting Enemy Merchant Shipping 

(1) Analysis of Trends 

Although the small-boat interdiction and the mine campaign have been 
justified, there is no evidence of North Vietnam's justification of its antiship 
interdiction campaign. If an interdicting ship's wake overturned a junk, a 
GWSEA issue of the duty to stop and pick up survivors would have arisen, 
according to Professor O'Connell. The civilian evacuations followed the same 
pattern as those of the Korean conflict, with at least media announcement of the 
process, and were justified under international law as a de facto cartel operation. 

OA.A. 

The hospital ship was also protected from attack, even though the United 
States was not in an international armed conflict at the time. 

(2) Other Incidents of the Era 

Two incidents involving naval force and merchant-type vessels occurred after 
the United States withdrew from Vietnam. 

On January 20-21, 1974, the PRC loaded 11 "warships" with 660 am- 
phibious assault troops and took the disputed Paracel Islands in the South China 
Sea, fending off South Vietnamese naval gunfire with a superior naval force. 
Press reports indicated that the first PRC convoy, which was driven off by 
Vietnam, had been "fishermen" who had raised a PRC flag. 

The second was the Mayaguez incident, May 12-15, 1975. Cambodian naval 
forces fired on and seized S.S. Mayaguez, a U.S. -flag unarmed merchantman in 
the Gulf of Thailand, 7-8 miles off an island claimed by Cambodia and Thailand 
but 60 miles off the coast of the mainland. Cambodia claimed Mayaguez was on 
a spy mission in her territorial waters. The United States asserted that the vessel 
was on a regular run between Hong Kong and Thailand and in the usual shipping 
lanes. The United States issued a Notice to Mariners, warning of the danger and 
intimating other incidents. U.S. Marine and Navy units cooperated to rescue 
the 40-member U.S. -national crew and the ship from Koh Tang Island, 15 miles 
off Cambodia. After receiving small arms fire from Cambodian patrol boats and 
attempting to block Mayaguez* movement toward the mainland, U.S. carrier- 
based aircraft had fired on and sunk three boats and damaged others. Because of 
the "profoundly negative" attitude of Communist states toward the ICJ, no 
possibility was seen for Cambodia's submission to the World Court, and that 
avenue of redress was not followed. 

The convoy of "fishermen" aboard fishing craft was, of course, yet another 
example of misuse of a protected class of commercial ships. When these vessels 
were employed for the attack on the Paracels, they lost their protected status and 
could be treated like any warship. South Vietnam was legally justified in its 
attack. Moreover, one might question whether the vessels in question were local 
coastal craft, as contemplated by Hague Convention XI, since the Paracels are 
over 100 miles off the Asian mainland. 

The Cambodian seizure of Mayaguez also violated international law. The 
Cambodians had full opportunity to search for espionage evidence after they 



Walker 147 

boarded, and no report of such has been found. It is true that ships may use 
transit passage to the high seas in sea lanes that are in territorial waters, but the 
passage must be innocent in nature. Passage is innocent so long as it is not 
prejudicial to the peace, good order or security of the coastal state, and such 
nations may take steps to prevent passage which is not innocent, which may 
include temporary suspension if such is essential for the protection of the coastal 
state's security. In other respects, coastal states cannot hamper innocent pas- 
sage. There was no showing of any danger to the security of Cambodia, nor 
was this a temporary suspension; it was an outright seizure. If the Cambodian 
action occurred outside territorial waters, in the contiguous zone as part of the 
high seas, there was no justification for stopping Mayaguez. It was appropriate, 
as a matter of international law, for the United States to respond proportionally 
to defend Mayaguez and to recover the crew and the ship. The incident illustrates 
the interplay of peacetime principles of maritime operations, today articulated 
in UNCLOS in addition to other treaties and customary law, and the law of 
armed conflict, i.e., the principles of self-defense. 

(3) Other Trends 

Treaty regimes concluded during or following the Vietnam conflict have 
affected the law of naval warfare tangentially. 

The 1971 Seabed Treaty's prohibitions on planting or placing nuclear 
weapons or other weapons of mass destruction on the ocean floor in effect 
declares that enemy merchant ships may not be attacked by devices of that type, 

rye 4 

in that if the placement is illegal, then use would also be illegal. Similarly, the 
1972 Bacteriological Convention's prohibition on development, production, 
stockpiling, acquiring or maintaining bacteriological agents or toxins impli- 
cates their nonuse against enemy merchant ships. The 1972 Convention does 
not derogate from the 1925 Geneva Gas Protocol; in effect, it "perfects the 
prohibition on the use of biological and toxin weapons begun in the 1925 
Protocol." Probably the 1972 Convention does not articulate customary law, 
but the 1925 Protocol does. " '[TJhere appears to be no role for biological 
ship-to-ship weapons" at present, but the analysis has been included for the 
sake of trends in future naval weapons development and the law to accompany 
it. 

The 1977 Environmental Modification Convention parties have pledged 
"not to engage in military or any other hostile use of environmental modification 
techniques having widespread, long-lasting or severe effects as the means of 
destruction, damage or injury to any other State Party." The range of the 

OCT 

Convention includes the whole Earth. The Convention does not directly deal 
with the problem of an attack on a merchant vessel, being concerned, with 
techniques that change the environment, but it would seem that a method of 
attack whose ultimate environmental effect might be construed as the impact 
desired, rather than the initial result on the object, would be within the scope 



1 48 Targeting Enemy Merchant Shipping 

of the Convention. A torpedo attack on a tanker, which results in a large oil 
spill, the intent being to destroy the tanker, would not be denounced by the 
Convention. On the other hand, if the intent of the attack was to cause the spill 
so that enemy naval vessels' injection scoops, steam plant condensers or intakes 
to desalinization plants would become fouled, thereby causing engineering plant 
casualties and loss of movement capability, such action would be within the 
Convention if "widespread, long-lasting or severe" environmental effects also 
ensued. 

Negotiated with the law of land warfare, land-based air war and naval 
bombardment of land in mind, the 1977 Protocol I to the 1949 Geneva 
Conventions explicitly declares as much in Article 49(3). Nevertheless, the 
Protocol has strong overtones for objects of attack and methods and means of 
warfare that may influence the law of naval warfare. Some provisions explicitly 
refer to rules for naval warfare. The Protocol is not in force for the United States. 

Protocol I, Article 52, declares that civilian objects, which are all objects that 
are not military objectives as defined in the Protocol, shall not be the object of 
attack or reprisal; attacks must be limited strictly to "military objectives. . . . 
"[M]ilitary objectives are limited to those objects which by their nature, location, 
purpose or use make an effective contribution to military action and whose total 
or partial destruction, capture or neutralization, in the circumstance ruling at the 
time, offers a definite military advantage." If there is doubt as to whether an 
object, normally thought of as civilian - e.g., "a place of worship, a house or 
other dwelling or a school" - is being used to effectively contribute to military 
action, the presumption is that it is not so used, according to Article 52. 

This provision deserves close scrutiny. Its examples of places of worship, 
houses and schools demonstrate that it is clearly directed toward land warfare. 
However, there are maritime counterparts (e.g., passenger liners or cruise ships, 
houseboats, school ships or university research vessels). Is the phrase, "under the 
circumstances ruling at the time," appropriate for naval operations, given poor 
visibility and other identification conditions at sea, perhaps poor communica- 
tions conditions among belligerents, and the present differences as to what is 
contraband? Should the presumption for civilian use in Article 52 be the same, 
or the reverse, perhaps coupled with a list of prohibited objects for which the 
presumption is as stated in Article 52 (e.g., hospital ships, other protected vessels, 
and passenger liners or cruise ships), and further demarcations through exclusion 
or war zones? 

Protocol I, Article 53 prohibits attacks on cultural objects, their use as part of 
the military effort, or the object of reprisals, without prejudice to the 1954 Hague 
Cultural Property Convention. For reasons noted in the Introduction, this 
aspect of the Protocol as customary law may have carryover effect for naval 
warfare, in that the Protocol reinforces other wartime treaty or customary 

264 

norms. 



Walker 149 

Starvation of civilians as a warfare method is prohibited by Article 54(1). The 
remainder of the article would be largely inapplicable to sea warfare, except for 
the prohibition on attacks, destruction, removal or rendering useless of foodstuffs 
"indispensable to the survival of the civilian population," regardless of motive. 
The foregoing prohibition is inapplicable if foodstuffs are solely for armed forces 
use or in direct support of military action. In no event can such actions leave 
the civil population without adequate food or water, such as to cause its starvation 
or forced movement. This aspect of Article 54 has obvious overtones for naval 
warfare in the context of what is and what is not contraband, and the issue of 
relief ships in general. 

Echoing the 1977 Environmental Modification Convention, ' Article 55(1) 
of Protocol I declares: 

Care shall be taken in warfare to protect the natural environment against 
widespread, long-term and severe damage. This protection includes a prohibition 
of the use of methods or means of warfare which are intended or may be expected 
to cause such damage to the natural environment and thereby to prejudice the 
health or survival of the population. 

The same analysis for the Convention would appear to fit the Protocol. Article 
56, denouncing attacks on dams, dikes or nuclear electric generating stations 
whose destruction would unleash "dangerous forces," is similar in theme but 
would seem to have little or no relevance to war at sea, unless a future treaty 
would denounce similar attacks on nuclear-powered merchant vessels or other 
bulk cargo ships whose burthen when released due to attack would unleash 
"dangerous forces." There are few if any nuclear-powered nonmilitary vessels 
in service today, even if one counts certain icebreakers as such, but liquid natural 
gas tankers might fall into this category. Article 56 also provides that parties to 
a conflict must try to avoid locating military objectives near works or installations 
that could loose dangerous forces. While this would seem to have no relevance 
for naval warfare, a parallel might be belligerents* sending ships with dangerous- 
force potential to sea; they would be required to be kept away from legitimate 
military objectives, e.g., a rnilitary convoy, if a Protocol I analogue came into 
effect. 

The Protocol's precautionary measures chapter includes a specific provision 
for naval warfare: 

In the conduct of military operations at sea . . . , each Party to the conflict shall, 
in conformity with its rights and duties under the rules of international law 
applicable in armed conflict, take all reasonable precautions to avoid losses, of 
civilian lives and damage to civilian objects. 

Article 57 also has general precautions to be observed for other attacks: 



1 50 Targeting Enemy Merchant Shipping 

(a) Those who plan or decide upon an attack shall: 

(i) do everything feasible to verify that the objectives to be attacked are 
neither civilians nor civilian objects and are not subject to special protection 
but are military objectives within the meaning of paragraph 2 of Article 52 
and that it is not prohibited by the provisions of this Protocol to attack them; 

(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; 

(b) [A]n attack shall be cancelled or suspended if it becomes apparent that the 
objective is not a military one or is subject to special protection or that the attack 
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; 

(c) [E]ffective advance warning shall be given of attacks which may affect the 
civilian population, unless circumstances do not permit. 

Last, the Article provides that if a choice is possible between several military 
objectives for a similar military advantage, the commander must choose the 
objective that should cause the least danger to civilian lives and objects. 
Articles 57(2)(a)(iii) and 57(2)(b), together with Article 51(5)(b), thus represent 

971 

the first attempt at codification of the principle of proportionality, i.e., that 

the means of attack must not be such that incidental loss of civilian life, civilian 

injuries, or damage to civilian property, or a combination, cannot be excessive 

relative to the military advantage sought to be gained. 

Article 58 adds that belligerents must try to remove civilians or civilian objects 

from the vicinity of military objectives, avoid locating military objectives within 

or near densely populated areas, and take precautions to protect civil populations, 

individual civilians and civilian objects under their control against dangers of 

979 
military operations. " While all but the first-quoted clause of Articles 57 and 

58 apply to land warfare, certain implications may be seen to flow from the other 

provisions for war at sea. One obvious parallel is the principle for planning, 

deciding, cancelling and suspending attacks. The warning rule, if applied to naval 

warfare, would seem to contradict the customary rule of no warning for attack 

on enemy merchant ships if such ship is armed, is in an armed convoy, assists 

the enemy's intelligence system, acts as a naval auxiliary, or is integrated into the 

enemy's war-figh ting/ war-sustaining effort and the warning would subject an 



Walker 151 

attacking warship to imminent danger. (The customary rule requires - in the 
absence of these factors - that the enemy ship's passengers, crew and papers be 
placed in a position of safety before attack, but all this is subsumed under 
"warning.") The Article 57(c) principle would be congruent with naval 
warfare norms if the "circumstances do not permit" exception clause would 
apply to situations where the merchantman is armed, etc., on the theory that 
such situations would subject the attacker to imminent danger. "Circumstances 
do not permit" might easily include submarine attacks because of the nature of 
the modern submarine and its vulnerability on the surface. The same would also 
apply to aircraft attacking an armed enemy merchantman. 

The Article 58 requirement of removing civilians and civilian objects, if 
removal be equated with placing in safety, would appear to be at variance with 
the customary norm. Protocol principles for choosing the military objective least 
damaging to civilian interests and for taking other necessary precautions to 
protect the civil population, etc., invite parallels for naval warfare. Article 58's 
requirement for locating military objectives away from densely-populated areas, 
if applied to naval warfare, would raise problems for siting naval bases in forward 
areas. There are relatively few decent natural harbors, etc., today that do not 
already have a port city nearby. 

The Protocol also bans indiscriminate attacks, which are: 

(a) those which are not directed at a specific military objective; 

(b) those which employ a method or means of combat which cannot be directed 
at a specific military objective; or 

(c) those which employ a method or means of combat the effects of which cannot 
be limited as required by this Protocol; and consequently, in each such case, are 
of a nature to strike military objectives and civilians or civilian objects without 
distinction. 

The Protocol gives two examples of indiscriminate attacks: (1) use of a large 
weapon that destroys several separate discrete military targets at once when there 
are intervening civilian areas or civilian objects; (2) an attack that can be expected 
to cause excessive loss of civilians or civilian objects in relation to the "concrete 
and direct military advantage anticipated."' Naval warfare analogies might be 
cruise missiles employed in a scenario where neutral merchant ships close aboard 
a target might be hit instead of the target (it being assumed no warnings to the 
merchantmen were given), or use of shipkilling weapons directed against a 
fleeing vessel suspected of violating protected status (e.g., a passenger ship 
suspected of carrying troops) when under the circumstances a partially disabling 
shot would serve to stop the errant vessel. In other words, as the Basic Rules of 
the Protocol put it, parties do not have unlimited choice of methods or means 



1 52 Targeting Enemy Merchant Shipping 

of warfare; weapons, projectiles and materials and methods of warfare that cause 
superfluous injury or unnecessary suffering are prohibited. 

Four years after signature of Protocol I, the 1981 Conventional Weapons 
Convention was signed, with three protocols elaborating upon prohibited 
weaponry. It too is not in force for the United States. 

Protocol I of the Convention denounces use of weapons whose primary effect 
is bodily injury by fragments undetectable by x-rays. Although usually 
applicable to land warfare, the Protocol would deny use of such antipersonnel 
weapons in attacks on enemy merchant ships. 

Protocol III defines incendiary weapons or munitions as devices whose 
primary purpose is to burn persons or objects. Munitions with incidental 
incendiary effects, such as white phosphorus illumination shells, or munitions 
combined with penetration, blast or fragmentation effects, such as armor-pierc- 
ing shells, where the incendiary effect is not specifically designed to cause burn 
injuries, are excluded from the prohibition. Protocol III forbids incendiary 
attacks on the civilian population, civilians or civilian objects; or on a military 
objective within a concentration of civilians, if airborne weapon delivery is 
contemplated. If other than airborne delivery is contemplated, incendiary attacks 
may be used if there is clear separation between the military objective and civilian 

07ft 

concentrations and precautions are taken to minimize collateral damage. 
Protocol III should have little impact on war at sea, because incendiary weapons 
as defined in Protocol III are seldom used at sea; a rare example is the napalm 
attack on the U.S.S. Liberty. Protocol III would not have applied to the assault 

97Q 

on the Liberty, which was a U.S. warship with only service people aboard. 
However, the Protocol would apply to attacks on merchantmen crewed by 
civilians if they are not part of the war effort. Protocol III is concerned with the 
effect of incendiary weapons on civilians and civilian objects, and unless enemy 
merchant ships could be classified as civilian objects, Protocol III would not 
apply to the vessel. Unless the prohibitions against incendiary attack when the 
military objective (the ship) is surrounded by civilians could be construed to 
include the military objective surrounding civilians (the usual relationship of 
crew aboard a vessel), Protocol III would not apply to the merchant crew, if it 
be assumed that they would be classified as civilians, which is unlikely. 

Protocol II of the Conventional Weapons Convention covers mine warfare 
and booby-traps but is limited to land warfare. Several provisions might be 
cited for analogous treatment for naval warfare, however. The Protocol bans 
indiscriminate use of mines; mines in civilian-concentrated areas unless close to 
a military objective or warnings are given civilians; remotely delivered mines 
unless used in a military objective area or an area with military objectives and 
locations are recorded or a neutralizing device is used, and advance warning 
is given civilians "unless circumstances do not permit" such. Belligerents 
must record minefield locations. If a U.N. peacekeeping force is employed, 



Walker 153 

belligerents must, if requested by the U.N. commander, remove or render 
harmless all mines, protect the force from effects of mines, and supply informa- 
tion on minefields. If a U.N. fact-finding mission is involved, belligerents must 
protect the mission from mines or supply minefield information if protection is 
not feasible. The same analysis with respect to indiscriminate use and civilian 
concentrations and incendiary weapons applies to Protocol II. The provisions 
governing remotely-delivered mines would have impact on enemy merchant 
ships; they could only be used in a military objective area or an area with military 
objectives, e.g., enemy merchantmen, e.g., a war zone or exclusion zone, and 
then only if locations are recorded or neutralizing devices are used, and if civilians 
(e.g. , neutral merchant ships) are warned. Given the relatively temporary nature 
of zones and the availability of neutralizing devices - as much to protect one's 
own forces from accidents - adaptation of Protocol II's principles to maritime 
warfare would seem to pose few problems. 

F. Falklands/Malvinas: 1982 

The legality of the British attack on the fishing trawler Narwal during this 
conflict has been noted by NWP 9 A. Narwal had an Argentine naval officer 
aboard and had been used for intelligence-gathering. (Narwal, as an oceangoing 
trawler, arguably might also be said to have been outside the exception because 
of her size, 1400 tons). 

Both belligerents attacked merchant vessels employed in the enemy's war- 
fighting or war-sustaining effort; there is no recorded protest. The United 
Kingdom employed over 50 STUFT (Ships Taken Up From Trade) vessels, 
privately owned ships, ranging in size from the liner Queen Elizabeth II to the 
cable ship Iris, that were requisitioned from their owners. The containership 
Atlantic Conveyor, lost to Exocet attack, was among the casualties of war. These 
vessels should be distinguished from Royal Fleet Auxiliary (RFA) ships such as 
Sir Galahad, also lost, and RFA tankers similar in function to requisitioned 
tankers. Argentina apparently used both STUFT-type ships and naval 
auxiliaries. The United Kingdom published the location of its hospital ships 
as operating in a "Red Cross box," and Argentina respected this neutral zone. 
There is nothing in GWSEA requiring or approving such, and there appears to 
be no custom - apart from the cartel ship analogy - to permit such. Such a 
neutral zone may be established for land warfare, y and demonstrates the 
possibility of adaptation of land war norms for conflict at sea. 

On April 7, 1982 the United Kingdom declared a 200-mile Maritime 
Exclusion Zone (MEZ), to be effective April 12, for all Argentine shipping 
around the Falklands/Malvinas. On April 23 the United Kingdom established a 
Defensive Sea Area (DSA) or "defensive bubble" around its task force, warning 
that approach by Argentine civil or military aircraft, warships or naval auxiliaries 
would be dealt with "appropriately." On May 1, when fighting started in the 



1 54 Targeting Enemy Merchant Shipping 

Falklands/Malvinas, the MEZ was changed to a Total Exclusion Zone (TEZ) 
for all ships supplying the Argentine war effort; MEZ coverage was extended 
on May 7 to all sea areas more than 1 2 miles off the Argentine coast. Argentina 
had declared a 200-mile defense zone (DZ) off its coast and around the 
Falklands/Malvinas on April 13, after having protested the British action. MEZ 

OKI 

enforcement capability came on the day of its enforcement. Presumably 
Argentina could have enforced the DZ if it had chosen to do so, although after 
the cruiser General Belgrano's sinking, Argentine naval forces, except for naval 
aviation and possibly submarines, did not figure in the war. On May 1 1 Argentina 
declared all waters of the South Atlantic Ocean a war zone, threatening to attack 
any British vessel therein. Apparently the only neutral ship attacked by the 
Argentines in the war zone was the Hercules, a Liberian-flag tanker in ballast that 
was owned by United States interests. Although the Soviet Union belatedly 
protested the lawfulness of the British TEZ, it apparently did not object to the 
Argentine DZ, and did observe the U.K. TEZ. The United States had 
published warnings to U.S. vessels and vessels beneficially owned by U.S. 
interests like Hercules two days before she was hit. On July 12, active hostilities 
in the Falklands/Malvinas ended, but the United Kingdom continued the TEZ 
and economic sanctions. Ten days later, the TEZ was lifted, but the United 
Kingdom warned Argentina to keep military ships and aircraft away from the 
islands, declaring a 150-mile Protection Zone. The TEZ had been relatively 
successful, although Argentina succeeded in airlifting supplies in until the last 
days of the war. Apparently Argentine sealift efforts failed. 

(1) Appraisal 

Commander Fenrick proposed an analysis in 1986 for legality of the exclusion 
zone in the context of the Falklands/Malvinas War and the then ongoing Tanker 
War in the Persian Gulf: 

If belligerents use exclusion zones, they should publicly declare the existence, 
location, and duration of the zones, what is excluded from the zone, and the 
sanctions likely to be imposed on ships or aircraft entering the zone without 
permission, and also provide enough lead time before the zone comes into effect 
to allow ships to clear the area. As with blockades, "paper" zones are insufficient. 
Belligerents declaring zones should deploy sufficient forces to the zone to make 
it "effective," that is, to expose ships or aircraft entering the zone to a significant 
probability of encountering submarines, ships, or aircraft engaged in enforcing the 
zone. All militarily practicable efforts should be made to employ minimum 
sanctions, such as seizure instead of attack on sight. Similarly, all militarily 
practicable measures should be taken to ensure proper target identification and to 
ensure that only legitimate military objectives, such as military aircraft, warships, 
and ships incorporated into the belligerent war effort, are attacked. The emphasis 
on what is militarily practicable is important. Sometimes the minimum practicable 
sanction will be attack on sight; sometimes ships or aircraft that are not legitimate 
military objectives will be attacked because of errors in target identification. There 



Walker 155 

must be a proportional and demonstrable nexus between the zone and the 
self-defence requirements of the state establishing the zone 



292 



He asserted, correctly, that Argentina's 200-mile zone around the 
Falklands/Malvinas "was probably adequate and ... its declaration that the entire 
South Atlantic was a war zone was disproportionate to its defense requirements 
and would affect shipping unconnected with the conflict." Thus the U.S. 
Court of Appeals was correct in assessing liability against Argentina for loss of 
the Hercules, a decision reversed by the Supreme Court of the United States on 
sovereign immunity grounds. Commander Fenrick also says that the 200-mile 
British TEZ, although seemingly "an arbitrary interference with the freedom of 
navigation of . . . ships of non-parties to the conflict," was a reasonable temporary 
appropriation of a limited area of the high seas away from major shipping routes 
for self-defense purposes to prevent non-party clandestine participation in the 
conflict. The appropriation was accompanied by adequate notice, did not result 
in any casualties to the ships or aircraft of non-parties, and was terminated after 
a brief period on July 22, once the British consolidated their position in the 
Falklands. The British TEZ was, in the circumstances, compatible with the law 
of naval warfare for general wars and with limited warfare trends. Professor 
Goldie concurs with the Court of Appeals' and Commander Fenrick's views. 

War zones as to enemy merchantmen are clearly legitimate so long as they 
are proportional to the military effort. Professor Goldie and Admiral Miller 
have made the important point that such zones may be justified, even if illegal 
in terms of size, duration, etc., if such zones are legitimate reprisals to illegal 
acts of adversaries, e.g., the U.S. Pacific Ocean war zone during World War II 
and the allied Atlantic war zones during both World Wars. Even if a zone 
is legal in terms of proportionality, etc., such a lawful zone does not justify 
violation of principles of humanitarian law, e.g., shooting survivors in the 
water. The conflict also saw development of the U.K. view of self-defense in 
the Charter era. 

Besides the development of the law of exclusion zones, the war saw applica- 
tion of traditional principles applicable to capture or attacks on merchant 
shipping. The exception to the rule against capture or destruction of coastal 
fishing vessel was illustrated in the Narwal capture. The trawler had been used 
for intelligence-gathering and was probably too large to be considered a coaster. 
The U.K. action was similar to trends during the Korean War, the Chinese civil 
war, Vietnam, and the Paracel Islands campaign. Use of merchantmen to carry 
warfighting/war-sustaining cargoes made such ships liable to attack, and these 
vessels became targets as legitimate as the RFA ships. This repeated a trend from 
previous conflicts. On the other hand, exempted vessels, e.g., hospital ships, 
continued to carry the protections they have always enjoyed. 302 And the attack 
on Hercules, a neutral-flag merchantmen, was illegal under prior practice. 



1 56 Targeting Enemy Merchant Shipping 

(2) Other Trends 

On December 10, 1982, the U.N. Convention on the Law of the Sea 
(UNCLOS) was signed. Repeating the U.N. Charter Article 2(4) pledges of 
refraining from any threat or use of force against the territorial integrity or 
political independence of any state, "or in any manner inconsistent with the 
principles of international law embodied in the Charter of the United Nations," 
UNCLOS declares that the high seas shall be used only for peaceful purposes. 
While UNCLOS thus does not apply to armed conflict situations, consideration 
of some of its terms remains important for two reasons: UNCLOS continues to 
apply to some relationships between belligerents and nonbelligerents, and some 
UNCLOS concepts may be urged for law of naval warfare rules. Although 
UNCLOS cannot be analyzed in detail, certain provisions may be mentioned 
briefly. Its terms raise a number of potential issues for war at sea. UNCLOS is 
not yet in force and the United States did not sign the treaty, but many of its 
provisions have been accepted by the United States as a restatement of state 
practice. 

The high seas are open to all states, as delimited by UNCLOS; freedom of 
navigation is guaranteed. "No state may validly purport to subject any part of 
the high seas to its sovereignty." The 1958 High Seas Convention has similar 
terms. How should these claims be reconciled with a belligerent's proclama- 
tion of a MEZ or a TEZ? Every state has the right to sail ships flying its flag on 
the high seas and may set conditions for granting nationality to its ships, for ship 
registration, and for the right to fly its flag. As with the 1958 High Seas 
Convention, there "must exist a genuine link between the State and the ship." 
The recent draft U.N. Ship Registration Convention would elaborate on the 
UNCLOS genuine link principles. Will or should these provisions impact 
the "flag only" rule? Professor Wolfrum has stated that they do not. UNCLOS 
also provides for the right of approach and visit, for pirates, slavers and narcotics 
trafficking, except for warships and vessels "used only on government non-com- 
mercial service," which have complete immunity. These provisions, in terms 
of procedures and immunities, appear congruent with the principles of naval 
warfare except, of course, the right of belligerents to attack and destroy enemy 
warships and naval auxiliaries, and the conditional right to attack enemy 
merchant ships. Other UNCLOS provisions declare the right to fish on the high 
seas subject to other treaty obligations, rights of coastal states, and the obligation 
to conserve high seas resources. There are also requirements for preserving 

1 1 A. 

and protecting the marine environment. These parallel principles of the 1977 
Environmental Modification Convention and Protocol I, and these UN- 
CLOS principles might be invoked by neutrals. 

The response to all these questions, which might arise in the context of 
nonbelligerent states' claims, is met by UNCLOS Article 87(1), which subjects 
high seas usage to "conditions laid down by this Convention [UNCLOS] and 



Walker 157 

by other rules of international law," i.e., the rules of armed conflict at sea, 
among other norms; there is a parallel provision in the 1958 High Seas 
Convention. To the extent that UNCLOS incorporates by reference other 
treaties, 1 UNCLOS is subject to the treaty law of naval warfare, e.g., the 1907 
Hague Convention IX regarding capture during naval war. Thus, UNCLOS 
stands on the same footing as the 1958 High Seas Convention; it is a treaty for 
those party to it - and important naval powers like the United States are not - 
with important exceptions to it. To the extent that UNCLOS Article 87(1) 
represents a customary norm - and about 30 years of practice under the analogous 
provision of the High Seas Convention would seem to have ripened the treaty 
rule into a customary norm - the result is the same for nations not party to 
UNCLOS, such as the United States. The provision, in Article 88 of UNCLOS, 
that the high seas shall be reserved for peaceful purposes, must be read as 
subject to the Article 87(1) limitation. This is congruent with UNCLOS Article 
301, "Peaceful uses of the seas," which provides: 

In exercising their rights and performing their duties under this Convention, States 
Parties shall refrain from any 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. 

Thus the law of the sea and naval warfare stands on the same footing as the law 
of land warfare and the U.N. Charter. States are subject to the Charter, including 
rights of self-defense under Article 51 and perhaps under customary law. 
UNCLOS governs uses of the sea, subject to other rules of international law, 
i.e., the law of naval warfare. 

Appearing in 1982, Professor O'Connell's International Law of the Sea traced 
the evolution of the rules evolving from World War II, and the traditional list 
of exceptions from attack, e.g., fishing boats, hospital ships, etc. O'Connell 
notes the military necessity principle, distinguishing between situations where 
overt activity (e.g. , killing survivors of a sinking) would be illegal, and passive 
action (e.g., failure to pick up survivors of a sinking because of legitimate fear of 
being attacked by the enemy), which would be legal. He believes that "like other 
mediating rules, 'military necessity' does not annul the principle [of humanity] , 
and must be strictly construed and applied if it is not to do so." He seems to 
take no clear position beyond World War II practice on the issue of sinking 
armed enemy merchant vessels, that submarines were exempted from the duties 
imposed on surface raiders. While restating the traditional rule that a ship's 
"enemy character is indicated by the flag ... it is entitled to fly [, t]hat is now 
to be read with the modern rules for attributing nationality to ships [,]" i.e., 
apparently with the genuine link theory, discussed and criticized earlier in the 
peacetime law of the sea context. As long as an exclusion zone has been 



1 58 Targeting Enemy Merchant Shipping 

publicized and neutral shipping is not put unduly at risk, O'Connell would justify 
an exclusion zone as a reasonable means of self-defense. 

G. The Iran-Iraq War, 1980-8^ 

When Iraq invaded Iran on September 22, 1980, Iran declared Persian Gulf 
waters up to 40 miles off her coasts a war zone (officially titled an "exclusion 
zone"), announced new shipping lanes through the Strait of Hormuz, 
prohibited all transportation of materials to Iraqi ports, and warned of retaliations 
if Persian Gulf nations gave Iraq facilities. Iraq responded in early October, 

declaring that the Persian Gulf north of 29°30'N was a "prohibited war zone." 

ill 

This was the area for the Tanker War until March 1 984. " Iranian bomb attacks 
closed Iraq's oil terminals and blocked all of Iraq's commercial ports at the start 
of the war, thus forcing Iraq to use pipelines to non-Iraqi ports to send out oil 
or accept war-sustaining goods through other means, i.e., nearby neutral 
ports. "Whether classified as absolute or conditional contraband, oil and the 
armaments which its sale or barter on international markets [brought], were 
absolutely essential to the war efforts of the Persian Gulf belligerents." Neither 
side declared contraband lists, nor were high seas blockades instituted, although 
the Iranian exclusion zone, covering the Shatt al-Arab littoral, was in affect a 

-lie 'X'lA 

blockade of Iraq's small coastline. ~ No prize courts were established. Iran 
did patrol the Gulf in 1981, interrogating ships thought to be carrying con- 
traband. A Kuwaiti survey ship and a Danish freighter were seized on suspicion 
of contraband, but both vessels were let go. Iraq protested seizure of the Danish 
ship as a flagrant violation of international law. Iran was careful, however, to 
avoid provoking its neighbors or major Western powers, being dependent on 
trans-shipments from the United Arab Emirates and food imports through the 
Gulf. The Danish vessel, the Elsa Cat, had been taken in the Strait of Hormuz; 
Iran declared that its navy "guarantee [d] the security of all ships in the Strait 
. . . but will not allow Iraq or anybody else to abuse this wartime situation to 
carry war materials for Iraq." 

In September 1980, the United States, after pledging "strict neutrality," had 
declared that it intended to do what was necessary, including naval action, to 
keep open the Strait of Hormuz. By October 15, at least 60 Australian, French, 
U.K. and U.S. warships were in the Indian Ocean to protect the Strait oil route; 
there were 29 Soviet vessels in the area. ~ The U.N. Security Council passed 

'XA.Ci 

Resolution 479, calling for cessation of hostilities, also in September 1980. 

In late 1981, President Reagan reaffirmed and expanded the Carter Doctrine 
to include a U.S. interest in dealing with any threat to Saudi Arabia and a 
readiness to keep the Strait of Hormuz open if Iran tried to stop shipping there. 
The international aspect of this U.S. critical defense zone (CDZ) was undoub- 
tedly lawful in its premise of defense from external aggression and the open nature 
of its communication. Moreover, the CDZ was definite in its boundaries and 



Walker 159 

proportional to the interest protected, i.e., the flow of Gulf oil to the West and 
to Japan. (Saudi Arabia produces about 20 percent of the Earth's oil consump- 
tion.) 

By early 1982, Iraq could only export oil through the trans-Turkey pipeline; 
Syria closed the Iraqi pipeline to the Mediterranean. On January 14, of that 
year, Iraq issued a warning to international shipping "to keep clear of the western 
part of the Gulf as any ships traveling in that area would be treated the same way 
as three vessels which Iraq claimed to have sunk on Jan[uary] 11 as they were 
leaving the Iranian port of Bandar Khomeni." On March 10, it was reported 
that Iraq had mined the channel linking this port and the port of Bandar Mashahr 
with the open sea. An Iranian tanker had been lost in February, probably due 

343 

to mines. 

On August 12, 1982, Iraq announced its Gulf Maritime Exclusion Zone 
(GMEZ) and two days later warned foreign shipping to stay clear of Iranian 
waters in the upper Gulf, including waters around Kharg Island, from which 
Iran was exporting up to 2 million barrels of petroleum a day to finance the war 
effort. On August 29, Iran responded, declaring it would protect foreign shipping, 
begin escorting foreign shipping, and deployed ships with surface-to-air missiles 
at Kharg. Iran began giving naval protection to shuttle convoys of Iranian-flag 
and neutral flag merchantmen that lifted oil from Iran's northern Gulf ports to 
those farther down the shore for world export. Iraq conducted air strikes against 
these convoys throughout 1982, 1983 and 1984. When Iraq bombed Iran's 
Nowruz oil offshore installations 40 miles west of Kharg Island in March 1983, 
a large oil slick resulted. Although early reports that the slick had equalled the 
area of Belgium were later discounted, it was big enough to threaten desalination 
plants in Bahrain, Qatar and Saudi Arabia before strong winds blew it offshore 
and partially dispersed it. Fish imports into the UAE were stopped because they 
were oil-contaminated. Iraq rejected Iran's request for a partial truce so that oil 
cappers could try to stop the 2,000 to 5,000 barrels per day flow. Because of 
the Iraqi attacks on Gulf oil shipping, the London-based War Risks Rating 
Committee raised the rates for marine cargo insurance in 1982 and 1984. 

Early in 1982, Iraq bombed the Nowruz offshore oilfield installations, causing 
an oil slick in the Gulf; previously Iraq had bombed Iran's Kharg Island 
installations. An Iranian convoy of neutral flag tankers was hit by Iraqi aircraft. 
Throughout 1983 and early 1984, Iranian Navy-escorted convoys were hit. 
In September 1982 the Arab Summit urged an end to the war and compliance 
with the Security Council resolutions. In 1983 and 1984, the Council again 
called for a ceasefire, condemning the Iranian attacks, and affirming the right to 
free navigation and commerce in the Gulf. By now the United States had 
established its Central Command; France, Great Britain and the USSR were 
also maintaining a presence in the Indian Ocean. The USSR and other nations 

"ICO 

proposed a U.N. naval force to patrol the Gulf. The United States announced 



160 Targeting Enemy Merchant Shipping 

new self-defense measures for its warships in Notices to Mariners and Notices 
to Airmen in January 1984; the measures were justified on self-defense grounds 
when Iran protested. 

In 1984, the GMEZ was extended to 50 miles around Kharg Island; the war 
was moving down the Gulf. Tankers were hit at Kharg. Iraq attacked neutral-flag 
vessels by aircraft and mining outside the GMEZ. Iran attacked neutral flag 
tankers on the high seas and in Saudi territorial waters; some were in ballast, 
some were destined for or headed from Saudi ports, and others were carrying 
Kuwaiti crude. Although there was a U.N. -sponsored ceasefire from June 1984 
to March 1985, the attacks continued episodically. In May 1985 Iran again began 
attacking tankers bound to or from Saudi Arabia and Kuwait. In June and 
September 1985, the Iranian Navy intercepted and detained two Kuwaiti ships; 
in September Iran's visit and search procedures, looking for Iraq-bound strategic 
materials, were stepped up. Ships stopped included Chinese, Danish, German, 
Kuwaiti, U.K. and U.S. -flag merchantmen. Some vessels bound for the United 
Arab Emirates were diverted by Iran to Bandar Abbas. A French warship began 
the precedent of defense of French-flag merchant ships in October. It positioned 
itself between the French merchantman Ville d' Angers and an Iranian warship, 
warning the latter that it would use force if the Iranian tried to intercept Ville 
d' Angers. (French rules of engagement declared that French warships would fire 
on forces refusing to break off attacks on neutral merchantmen under attack; the 
result had been a drop in attacks near French men-of-war.) Nevertheless, France 
announced that its navy would not convoy French tankers. In April 1986, a U.S. 
destroyer similarly had warned an Iranian warship off what may have been a 
planned boarding of the S.S. President McKinley, a U.S. -flag merchantman. By 
April 1987, Iran had searched 1200 ships over the previous 18 months and had 
confiscated 30 cargoes. It was becoming clear that although Iran could not close 
the Strait by military action, it might succeed in scaring off enough shipping to 
make a difference. Iran began to shuttle oil, which it sold to finance the war, 
down the coast from Kharg Island to the Sirri oil terminal. ~ Despite the action 
of the U.S. destroyer, the United States had recognized that "there is a basis in 

-ICC 

international law for ship searches by belligerents" in March 1986. The United 
Kingdom had stated in January 1986 that a right of visit and search was an aspect 
of self-defense under Article 51 of the U.N. Charter. " The Netherlands 
similarly recognized a right of visit and search, but only as to ships proceeding 
to and from belligerents' ports. Only in 1987 did Iran enact legislation 
concerning prize law. By that time the GCC states - e.g., Kuwait and Saudi 

-ICO 

Arabia - had been regarded as having "unbelligerent" status. 

In 1982, U.N. Security Council Resolutions 514 and 522 called for an end 
to the war. Resolution 540 (1983) approved "the right of free navigation and 
commerce in international waters, call[ed] upon all States to respect this right 
and also call[ed] upon the belligerents to cease . . . hostilities in . . . the Gulf, 



Walker 161 

including all sea-lanes, navigable waterways . . . and to respect the integrity of 
the other littoral States. . . ." Resolution 552 of June 1, 1984 repeated the call 
for "the right of free navigation," specifically condemning recent (i.e., Iranian) 
attacks on commercial ships en route to and from states not party to the 
conflict. 

In the summer of 1984, mines detonated in the Gulf of Suez and the Strait 
of Bab el Mandeb, damaging several ships. Although Iran along with Libya was 
accused of laying the mines, Iran denied the charges, and it is thought that the 
Libyan cargo ship Ghat laid them. Egypt exercised its rights under the Constan- 
tinople Convention to inspect all shipping, and a half dozen nations' navies 
cooperated in locating and destroying the mines, clearly illegally laid under 
international law. 

One more Security Council resolution called for a ceasefire in late 1986. 
In August Iraq bombed Iran's Sirri terminal for the first time; the war was moving 
further down the Gulf toward the Strait of Hormuz. A British-registered, Hong 
Kong-owned tanker was badly damaged at Sirri. Iran's Lavan and Larak terminals 
were then hit. In November Iran hit the United Arab Emirates' Abu al-Bakoush 
oil installations. In September 1986, Iran had fired on, stopped and searched 
the Soviet merchant ship Pyotr Emtsov, bound for Kuwait with arms ultimately 
destined for Iraq. The USSR protested the incident. Both belligerents continued 
to attack merchantmen in the Gulf, regardless of cargo or destination. The USSR 
sent a KnVa/e-class frigate to escort four Soviet vessels carrying arms to Iraq from 
the Straits of Hormuz to Kuwait, signalling to the belligerents that the USSR 
would protect Soviet-flag ships. The Kitty Hawk carrier batde group deployed off 
Oman in the Indian Ocean, the United Kingdom and France increased their 
ship activity, and the U.K. Indian Ocean (i.e., Armilla) squadron began to spend 
half its time in the Gulf. The U.K. position on the Gulf shifted in 1986, 
however, from statements of British "neutrality" in the "war" to U.K. "impar- 
tiality" in "armed conflict," partly to attempt to ensure that the law of blockade 
would not be applied to the detriment of British shipping. 

Besides traditional seaborne boardings, Iran began using helicopters for visit 
and search. ° Some merchantmen began to carry chaff canisters to confuse 
incoming missiles, while others were being repainted dull, non-reflective gray 
for the same reason. Although most merchant ships remained unarmed, a U.S. 
helicopter reported coming under missile fire from a Greek ship. Iran reportedly 
completed testing Chinese antiship Silkworm missiles, and the United States 
again expressed concern over keeping the Strait of Hormuz open. Press reports 
said that the Iranian Air Force had established a suicide plane squadron to attack 
merchant shipping like the Japanese kamikazi flights of World War II. Clearly 
the Gulf was becoming a more dangerous place as all actors prepared new tactics 
and new technologies. In May 1987, Kuwait and the United States began 
negotiations leading to transfer of 1 1 tankers from the Kuwaiti to the U.S. flag. 



1 62 Targeting Enemy Merchant Shipping 

An Iranian patrol boat fired on and damaged another Soviet merchantman, the 
Ivan Koroteav. The United States and Kuwait completed reflagging arrangements, 
having preempted the USSR, which had to settle for chartering three of its 
tankers to Kuwait; the charters were renewed into 1988. Although assailed 
in some quarters, the U.S. re-flagging comported with international law. In 
mid-May, one of the USSR tankers hit a mine, said by the Soviets to have been 
placed by Iran. A day later, on May 17, U.S.S. Stark was hit by Iraqi fighter- 
launched Exocet missiles. The United States began revising its Rules of 
Engagement for possible interactions between U.S. and Iraq's forces and, 
incidentally, anyone else displaying hostile intent or committing hostile acts. 
U.S. forces in the Gulf of Oman and the Persian Gulf were augmented. 

The President ordered a higher state of alert for U.S. naval forces in the area and 
warned the belligerents that U.S. warships would fire if their aircraft approached 
U.S. vessels in a manner indicating hostile intent, unless they provided adequate 
notification of their intentions. 

The warning was published to the international community through the issuance 
of a Notice to Mariners and a similar Notice to Airmen, warning ships and aircraft 
that U.S. Navy vessels in the Persian Gulf, Strait of Hormuz, Gulf of Oman, and 
North Arabian Sea were taking additional defensive precautions in response to 
the Stark attack and the continuing terrorist threat in the region. The Notice to 
Mariners requested ships and other vessels to establish radio contact with U.S. 
forces on prescribed international radio frequencies and to identify themselves and 
state their intentions as soon as they were detected. It advised that, in order to 
avoid inadvertent confrontation, ships and craft, including military vessels, might 
be requested to change course to remain well clear of U.S. naval vessels. The 
notice warned that failing to respond to requests for identification and intentions, 
or to warnings or a request to remain clear, and operating in a threatening manner 
could place the ship or craft at risk by U.S. defensive measures. It also advised that 
illumination of U.S. naval vessels with weapons fire control radar would be 
viewed with "suspicion" and could result in immediate defensive reaction. Finally, 
it stressed the U.S. forces would remain mindful of navigational considerations of 
ships and craft in their immediate vicinity, especially when operating in confined 
waters. 

With a few exceptions, the Notice to Mariners and the Notice to Airmen [were] 
successful in reducing the risk of an inadvertent confrontation with other ships 
and aircraft. The notices [struck] a reasonable balance between high seas freedom 
of navigation and overflight and the inherent right of self-defense in protecting 
U.S. naval vessels from a belligerent or terrorist attack. 

In July, the United States began convoying re-flagged tankers. The United States 
announced that its actions were consistent with international law, which 
recognized the right of a neutral to escort and protect ships flying its flag which 
did not carry contraband. The United States added that its ships would not be 



Walker 163 

carrying oil from Iraq and that neither Iran nor Iraq would thus have any basis 
for taking hostile actions against U.S. warships or the vessels they protected. If 
a Gulf belligerent attempted to conduct visit and search of a U.S. -flag vessel 
under protection of a U.S. man-of-war, the U.S. would examine the ship's cargo 
and would certify absence of contraband, thereby paralleling the rules of the 
unratified 1909 London Declaration. In August the re-flagged S.S. Bridgeton hit 
a mine; the U.S. Navy began providing mine protection. On September 21, 
1987, the U.S. Navy caught the Iran Ajr laying mines in the shipping lanes and 
sank it, arguing that this was done in self-defense. 

The U.K. position on the war was different from that of France or the United 
States: 

Britain [did] not, on the whole, [refer] to the traditional law of war and neutrality 
at sea. Instead, it [had] couched its pronouncements in terms of freedom of 
navigation and the law of self-defense, based on Article 51 of the U.N. Charter. 
So enthusiastic [was] the British Government about basing its statements on this 
provision that the General Council of British Shipping (GCBS), which distributes 
guidance notes to its members, actually [reproduced] the text of Article 51 to be 
passed on to masters of British merchant ships entering the Gulf. Emphasis on 
Article 51 rather than the traditional law [was] particularly apparent in certain 
statements concerning visit and search. When the British merchant ship Barber 
Perseus was stopped by Iranians in January 1986 and forced into an Iranian port, 
the British Government explained its position in this way. 

The United Kingdom upholds the general principle of freedom of naviga- 
tion on the high seas. However, under 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 defense 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. 

The general advice given by the Foreign Office and reproduced in the GCBS 
guidance notes of advice [was] that even if a ship [was] not carrying any 
contraband, it [was] usually better to submit to visit and search by the Iranian Navy 
and to point out to the Iranian officer conducting the search that if his suspicions 
[proved] to be unfounded and unreasonable, then the ship's owners [would] have 
a right to compensation. 

The United Kingdom [had] protested against Iran's detention of ships on several 
occasions, not so much for exercising the right to visit and search per se, but for 
the delays that have occurred and, in some cases, on occasions where the Foreign 
Office believed an exercise of visit and search could not have been occasioned 
reasonably by suspicions of a ship carrying prohibited goods. Nevertheless, unlike 



1 64 Targeting Enemy Merchant Shipping 

the French and U.S. Governments, the British Government [had] made no 
attempt to say that its warships would certify whether ships were carrying 
prohibited goods, and British warships [had] not intervened to prevent the exercise 
of visit and search. Nor [had] British pronouncements referred to the exercise of 
belligerent rights by Iran. They [had] been couched instead in terms of reference 
to Article 51. 

The Armilla Patrol began "accompanying" U.K. shipping - i.e., those vessels of 
U.K. registry or registered in a U.K. colony or dependent territory (e.g., Hong 
Kong), but not Commonwealth-registered ships - (e.g., Singapore) - and flag of 
convenience vessels whose majority ownership is British or in a British colony 
or dependence-as far north as Bahrain. U.K. protection did not extend to ships 
crewed by British mariners or to ships with no connection to the United 
Kingdom, as France and the United States were later prepared to do. The U.K. 
rules of engagement adhered to Britain's view that U.N. Charter, Article 51, 
governed any U.K. response: "The rules of engagement [were] intended to avoid 
escalation, although the varied nature of potential threat and the possibility of 
surprise attack are recognized and the inherent right of self-defence of Royal 
Navy ships or British merchant vessels under their protection, is not cir- 
cumscribed or prejudiced." The result would have posed "interesting questions" 
as to whether a U.K. warship could have defended U.K. merchantmen, as 
defined above, or British-crewed ships. One "practical solution" might be that 
an atta«]c on the merchant vessel "might reasonably be perceived as an attack on 
the warship as well. In that situation, the warship [would] be able to defend itself 
and in doing so defend the merchant vessel accompanying it." 

All commentators seem to have agreed on the illegality of Iran's use of 
unanchored mines, particularly in shipping lanes. The same is true for mines laid 
in the Red Sea in 1984. While a state may mine a defense area along its coast 
with due notice of the minefield, employment of drifting mines is not lawful. 

By mid-1987, Iran had attacked nearly 100 ships of 30 nationalities, using 
aircraft, helicopters, small boats and warships as platforms. Iraq had attacked over 

"^77 

200 vessels, mostly those owned or chartered by Iran. In late May 1987, the 
USSR had sent three minesweepers to join its two frigates that had been on 
patrol in the Gulf since 1986. The June Venice Economic Summit of major 
Western powers and Japan "agree [d] that new and concerted international efforts 
[were] urgently required to bring the Iran-Iraq war to an end." Besides calling 
upon the belligerents to end the war and supporting the U.N., the Summit 
"reaffirmed that the principle of freedom of navigation in the Gulf is of 
paramount importance for us and for others and must be upheld. The free flow 
of oil and other traffic through the Strait . . . must continue unimpeded." The 
Summit pledged to consult on ways to pursue these important goals effective- 
ly. On July 20, the Security Council, calling for a cease-fire, "deplor[ed] . . . 
the . . . attacks on neutral shipping . . . , the violation of international 



Walker 165 

humanitarian law and other laws of armed conflict," demanded that Iran and 
Iraq "discontinue all military actions on land, at sea and in air." The Council 
called on other nations "to exercise the utmost restraint and to refrain from any 
act which [might] lead to further escalation and widening of the con£lict[.]" 
In August Great Britain and France agreed to send minesweepers to the Gulf, 
and by September Italian, Belgian and Netherlands ships were on the way. 

In October 1987, the United States responded to an Iranian Silkworm missile 
attack on a U.S. re-flagged tanker, S.S. Sea Isle City, in Kuwaiti waters by 
destroying offshore oil rigs used as an Iranian gunboat base. The United States 
justified its attack on self-defense grounds, while others argued it was a "carefully 
calculated reprisal," bringing the United States in on Iraq's side. ' The U.S. 
strike was stated to be in specific response to the Iranian attack on Sea Isle City; 
any connection with the Iranian attack on the S.S. Sungari, which had occurred 
the day before Sea Isle City was hit, was avoided. Although Sungari was 
beneficially U.S.-owned, it flew the Liberian flag. This established some 
precedent, at least for that stage of the war, that the United States did not consider 
open registry ships, even if owned by U.S. interests, to have enough U.S. 
connection to merit protection. That view changed as the war deepened. In 
any event, in the destruction of the rigs, the U.S. response followed Charter era 
criteria for self-defense: it was proportional, in that only the source of the attacks 
- the host platforms - was destroyed and it was necessary, to remove a continued 

IDC 

threat to neutral shipping. It was not a reprisal situation. A second incident 
came the next month. 

In November 1987, a U.S. Navy frigate fired on a small boat that approached an 
American tanker. The boat did not fire at the tanker but ignored warning shots 
and closed to within 500 yards. The boat turned out to be an unarmed Arab fishing 
boat, not an Iranian patrol boat. The boat was hit and one person on board was 
killed. The incident occurred between the coast of the United Arab Emirates and 
Abu Musa Island, a small island from which Iranian speedboats had carried out 
raids on Gulf shipping. The United States again relied on the inherent right of 
self-defense under international law as the basis for its actions. 

Fishing boats, if employed as such, are exempt from capture and destruction. 
This was not the issue here; it was a case of mistaken identity under suspicious 
circumstances. The U.S. plea of self-defense was justified, particularly in view 
of the warning shots that no one could ignore. 

In November, the Arab League Extraordinary Summit Conference "expressed 
anxiety at the continuation of the war and voiced . . . indignation at [Iran's] 
intransigence, provocations and threats to the Arab Gulf States." The Summit 
"condemned Iran's . . . procrastination in accepting . . . Resolution 598 . . . 
[and] called on Iran to accept the Resolution and implement it in toto. ..." The 
international community was asked to "shoulder its responsibilities, exert 



1 66 Targeting Enemy Merchant Shipping 

effective international efforts and adopt measures adequate to make [Iran] 
respond to the calls for peace." Iraq's acceptance of Resolution 598 and its 
positive response to peace initiatives were appreciated. The Summit confirmed 
support for Iran's defense of its territory and "legitimate rights" and declared 
solidarity with Kuwait and Saudi Arabia. That same month Iran adopted, 
apparently for the first time, what amounted to a declaration of contraband: 

On November 17, 1987, Iran adopted a law according to which all goods 
belonging to states at war with Iran were liable to capture and condemnation. 
Goods belonging to neutral states or to neutral or enemy nationals were liable to 
capture if they fell into certain categories. The first of these categories concerned 
goods the transport of which to enemy territory was prohibited altogether. The 
second concerned goods destined, directly or indirectly, for enemy territory, if 
they effectively contributed to sustain the enemy's war effort. 

This did not of course cover the circumstances of destruction, without warning, 
of neutral merchantmen, or indeed of destruction of enemy merchant ships. 

In December 1987, a U.S. warship helped rescue a Cypriot crew after an 
Iranian gunboat attack set their tanker ablaze, one of many such attacks in the 
renewed war in the Gulf. Tanker captains began tailing convoys or simulating 
them during night steaming. On April 14, 1988, U.S.S. Samuel B. Roberts hit 
a mine in a field laid in international waters. In response the United States 
attacked Iranian oil platforms that had been supporting attacks on neutral 
shipping on April 18. Four days later Iranian naval units attacked U.S. naval 

■JQT 

vessels, which destroyed or damaged most of the attackers. By this time five 
European NATO allies - Belgium, Britain, France, Italy and the Netherlands - 
had sent more than 40 warships to the Gulf for escort and mine suppression 
duty. The United States began extending protection to neutral ships in 
distress, if those vessels were outside war/exclusion zones, were not carrying 
contraband, and were not resisting legitimate visit and search by a Persian Gulf 
belligerent, on April 29. This action also comported with international law. 
In May, Iraqi aircraft hit Iran's Larak oil terminal in the Strait of Hormuz; Seawise 
Giant, Liberian-registered and the world's largest supertanker, was among five 
ships hit. In July 1988, a week after the Airbus incident of July 3, U.S. 
ship-based helicopters attacked Iranian gunboats that had set afire a Panamanian- 
registered tanker owned by Japanese interests. 

On the diplomatic front, Saudi Arabia had broken diplomatic relations with 
Iran in April 1988. In June the second Arab League Extraordinary Summit 
reaffirmed its 1987 communique on the war. By mid-June, however, Great 
Britain and France had restored diplomatic relations with Iran. Saudi Arabia 
announced a $12-$30 billion arms deal with Great Britain, which included 6 to 8 
minesweepers. Iran announced acceptance of U.N. Security Council Resolution 



Walker 167 

598 on July 18, and the U.N. Secretary-General announced a ceasefire effective 
August 20, 1988. 399 

The United States announced the end of escorted convoy operations in the 
Gulf in October 1988. In January 1989, "de-flagging" procedures for revert- 
ing the tankers to the Kuwaiti ensign began. By that time, the Western naval 
presence in the Gulf had been reduced sharply. 

(1) Appraisal 

Commander Fenrick has summarized the Tanker War: 

The Iran-Iraq conflict was a major war, not a small war. For the only time since 
World War II, deliberate and sustained operations were carried out against 
merchant ships. As a general statement, prior to March 1984, Iraq attacked all 
vessels in a proclaimed exclusion zone at the northern end of the Gulf. From 
March 1984 until the end of the conflict, Iraq switched the focus of its anti-ship- 
ping campaign in an effort to attack the weak link in Iran's war economy and to 
arouse world interest in the conflict. Iraq directed most of its attacks against tankers, 
most of them neutral and unconvoyed, sailing to or from Kharg Island, the very 
heavily defended main Iranian oil terminal, located towards the northern end of 
the Persian Gulf. All the Iraqi attacks were delivered by shore-based aircraft and 
almost all involved the use of air launched missiles. Iraq appears to have devoted 
minimal effort to obtaining visual identification of the target before missile launch, 
with the result that accidents, such as the Iraqi attack on the USS Stark, did occur. 
Iran does not appear to have begun attacking commercial shipping until Iraq 
commenced its anti-tanker campaign in 1984. Since there was no sea traffic with 
Iraq, Iran attacked neutral merchant shipping destined to and from neutral ports 
in the Gulf, presumably in an effort to persuade Iraq's financial backers, the other 
Gulf states, to dissuade Iraq from its campaign against the Kharg Island tankers. 
Iran's attacks on merchant shipping were less numerous than those of Iraq and, in 
general, less costly in lives and property damage because they were conducted 
with rockets instead of missiles. In addition, it is understood that Iran devoted 
more effort to target identification than did Iraq. On the other hand, Iran did not 
conduct its attacks in declared exclusion zones and some of its attacks were carried 
out in neutral territorial waters. 

The result was the largest loss of merchant ships and merchant seamen's lives 
since World War II: 

Throughout the eight year course of the Gulf War, Iran and Iraq [had] attacked 
more than 400 commercial vessels, almost all of which were neutral State flagships. 
Over 200 merchant seamen [had] lost their lives because of these attacks. In 
material terms, the attacks [had] resulted in excess of 40 million dead weight tons 
of damaged shipping. Thirty-one of the attacked merchants were sunk, and 
another 50 declared total losses. For 1987 alone, the strikes against commercial 
shipping numbered 178, with a resulting death toll of 108. In relative terms, by 
the end of 1987, write-off losses in the Gulf War stood at nearly half the tonnage 
of merchant shipping sent to the bottom in World War II. In all, ships flying the 



168 Targeting Enemy Merchant Shipping 

flags of more than 30 different countries, including each of the permanent 
members of the United Nations Security Council, [had] been subjected to attacks. 

Only about one or two percent of the ship voyages in the Gulf involved attacks, 
however. Nevertheless, in terms of percentage of losses due to maritime 
casualties worldwide, the statistics were "staggering." During 1982, the first year 
of the Tanker War, 47 percent of all Liberian-flag tonnage losses due to maritime 
casualty occurred in the Gulf. In 1986, the figure was 99 percent; in 1987, more 
than 90 percent, and the final percentages may have gone higher due to late 
declaration of constructive total losses. (Most of the Gulf tanker traffic flew flags 
of convenience, and a third were owned by U.S. nationals, with another 
substantial portion under charter to U.S. nationals.) Insured losses by marine 
underwriters were heavy, reaching $30 million in one month, with resulting 
tremendous increases in war risk premiums. If there were 

any good things [that could] be said of this conflict, they [were] that the Gulf War 
[became] the principal factor in reducing the overtonnaging of the world oil tanker 
fleet and in aiding a recovery of the tanker market, and second, that tremendous 
advances in marine firefighting equipment and techniques [were] directly at- 
tributable to recent experience in the Gulf. 

To a government expert, "this [was] too thin a silver lining to justify the 
cloud.*' Iran attacked ships of more 32 national flags, while Iraqi attacks mostly 
concentrated on vessels flagged or chartered by Iran. Iraq concentrated on 
attacking ships within the Iranian war zone, while Iran attacked vessels mostly 
in the lower Gulf, outside its or Iraq's zones. Iraq tended to shoot first and identify 
later, while Iran conducted careful vessel reconnaissance and specific vessel 
identification. Iraq used aircraft for all its attacks, while Iran employed conven- 
tional aircraft, helicopters and surface warships or small boats, the latter manned 
by Revolutionary Guard forces. Iraq was never able to produce a major 
interruption in Iran's oil exports to finance the war. The Tanker War was the 
most important part of the fighting at sea. 

Writing in 1986, before the war had ended, Commander Fenrick noted that 
"It [was] futile to discuss exclusion zones used in this conflict utilizing presumed 
limited war standards, as both belligerents probably [had] gone beyond the 
standards hitherto considered permissible in general war." Because it was 
debatable that unconvoyed neutral tankers could have been considered as part 
of Iran's war effort, Commander Fenrick asserted that "Iraqi practice in using 
exclusion zones touche[d] the outer limits of legal acceptability and may well 
[have] overstep [ped] the boundary." Iran's conduct in attacking neutral ships 
outside the declared war zones and occasionally in neutral waters "was so 
flagrantly contrary to the laws of maritime warfare that nothing can be said in 
defence of it." 



Walker 169 

Even if one concedes that the other Gulf states [were] providing financial support 
to Iraq, it does not appear possible to consider the neutral ships engaged in traffic 
with these states to be incorporated into the Iraqi war effort. Iran's desire to take 
action to force Iraq to refrain from attacking the Kharg Island tanker traffic [did] 
not legitimize its actions. It is somewhat surprising that the actions of Iran and 
Iraq in the Persian Gulf [did] not generate a stronger, or at least more vociferous, 
response on the part of other states. It is presumed the relative lack of response is 
owing to the desire of the superpowers to avoid conflict with each other in a 
sensitive area, and to the facts that there is a tanker surplus and an oil glut, that 
the tankers attacked usually belong[ed] to flag of convenience states, and that the 
loss of life [had] been relatively limited. 

Another author believes that the Iranian war zone, being more "defensive" in 
nature, was valid under international law. Professor Goldie's excellent analysis 
would say, however, that both sides' zones were disproportionate and therefore 
illegal. Professor Dinstein, while granting that war zones have been grafted 
onto the law of maritime warfare, would say that "the so-called exclusion zones 
[were] not proper war zones," because they were not mined or regularly 
patrolled, and there were no safe sea lanes for regulated neutral shipping. 
While it is true that neither belligerent had traditional naval forces sufficient to 
conduct routine patrols, he does not account for the air surveillance. 

Neither Iran nor Iraq published contraband lists. Nevertheless, it is clear that 
both nations considered petroleum exports critical to financing the war. " The 
war was also a "total war" insofar as the adversaries were concerned, and a 
major conflict insofar as global standards can measure it. The result is that Iraq 
was justified in attacking enemy (i.e., Iranian) merchant ships, if loaded with 
war-fighting/ war-sustaining cargoes (e.g., oil) outbound from Iranian ports. 
Iraq was also justified in attacking neutral merchantmen convoyed by Iranian 
warships, particularly if those ships carried war-fighting/ war-sustaining car- 
goes. Neutral vessels carrying such cargo for the Iranian war effort and steaming 
alone were likewise subject to attack by Iraq. It has been argued that Iraqi 
attacks on merchantmen within the Iranian exclusion zone were not indis- 
criminate: 

Can the Iraqi air attacks on merchant shipping be labeled as indiscriminate because 
they do not identify the targets visually before launching missiles? I believe not. 
First, the Iranian exclusion zone . . . made the Iraqi Air Force's target identification 
easier. Iraqi Air Force pilots apparently assume [d] that any large radar return from 
a ship located within the Iranian exclusion zone must be a tanker carrying, or 
destined to carry, Iranian oil. And second, there . . . [was] no evidence that any 
protected vessels . . . [were] found within the Iranian exclusion zone. 

Fortuitously, Iraq pumped most of its oil to sell and sustain its war effort through 
pipelines to Syria, Saudi Arabia and Turkey and thence to the outside world, or 
financed its war effort through Saudi Arabia and Kuwait. (Whether Kuwait and 



1 70 Targeting Enemy Merchant Shipping 

Saudi Arabia had arms-length bargains with Iraq, or acted out of fear of their 
powerful neighbor, or otherwise, is less than clear.) The result was that Kuwait, 
and to a lesser extent Saudi Arabia, were selling oil and turning over some of 
the proceeds to Iraq as loans. Clearly the cash or its equivalent to Iraq could 
have been seized as part of its war effort, but equally clearly the oil, sold to 
neutrals and carried in neutral tankers, could not be attacked. Thus, the Iranian 
attacks on neutral merchantmen were illegal; "[a]n attack upon a neutral 
merchant ship known to be engaged in inter-neutral trade [in this war, e.g., 
between Kuwait and an oil-consumer nation] [was,] therefore, a violation of 
law.'* Moreover, warships of neutral nations may convoy such neutral 
merchantmen. Thus the United States was legally justified in convoying the 
re-flagged tankers, and indeed other neutral nations' merchantmen. U.S. con- 
voying carried with it the right of self-defense, and thus the U.S. responses 
(e.g., shooting back) were legally justified if they satisfied the criteria of propor- 
tionality, which was clearly the case. This was a continuation of trends in other 
conflicts of the era. The conflict included interactions with merchant ships in 
coastal states' EEZs; since the EEZ is part of the high seas, such interactions (e.g., 

visit and search, etc.) were as legitimate as if the situation occurred on the high 
424 

seas. 

The result may seem anomalous, in that Iraq received a net benefit from the 
operation of the law of neutrality. Its war effort could be financed, albeit 
indirectly, by neutral tanker traffic carrying Kuwaiti and Saudi oil for sale on 
world markets, while Iran could be condemned for its attacks on such vessels 
while suffering legally-justified attacks on its tankers, and the tankers of other 
neutrals carrying Iranian crude. Nevertheless, this is the result. As Professor 
Tucker put it most aptly, "[t]he fact that the exercise made of these neutral rights 
thereby places one of the belligerent at a disadvantage with respect to its 
opponent does not provide the disadvantaged belligerent with a lawful basis for 
claiming that it has been made the object of discriminatory measures." 

(2) Other Trends 

Several major research efforts appeared as the Tanker War ended: Professor 
Levie's Code of International Armed Conflict (1986); the Restatement (Third), Foreign 
Relations Law of the United States (1988), NWP 9 A (1989), and roundtables under 
the general aegis of the International Institute of Humanitarian Law (NHL), 1987 
to date. Professor Ronzitti edited The haw of Naval Warfare (1988), in 
connection with the IIHL meetings; it includes a general introductory analysis, 
commentaries on treaties and other documents (e.g., the 1913 Oxford Manual) 
and the texts of treaties and other documents; references to these have been 
made throughout other parts of this article. What follows is an analysis of how 
the Code, the Restatement (Third), NWP 9 A, and the ongoing work of the IIHL 
apply to the issue of targeting enemy merchant ships. 



Walker 171 

a. The Levie Code. Professor Levie's Code restates the existing treaty and 
documents-based principles. However, "[t]his Code does not include rules of the 
customary international law of war which have never been formally stated in an 
international document of some nature." He notes that many customary norms 
- e.g., the practice of states - have been "codified" in binding international 
agreements, e.g., the 1907 Hague Conventions; have been codified in interna- 
tional agreements that have never been ratified, e.g., the 1909 London Naval 
Treaty; have been restated or expressed in other documents prepared by 
international organizations but not in treaty format; or certain treaties such as 
the 1972 Bacteriological Convention or Protocol I of 1977 that eventually will 
become law. 

Citing the 1930 London Naval Treaty and the 1936 London Proces- Verbal, 
he states the rule as to attacks on enemy merchant ships: 

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, 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. 

Professor Levie says that there is some evidence that these are the rules despite 
contrary Allied practice during World War II. 

This restrictive view of destruction of enemy merchantmen appears supported 
by his Code provisions on neutrals performing unneutral service. Vessels on 
one-shot service involving transport of enemy armed forces personnel, trans- 
mission of intelligence to the enemy, or persons who directly assist enemy 
operations, are subject to condemnation as though carrying contraband. l On 
the other hand, a neutral vessel will be condemned "and, in a general way, 
receive the same treatment as would be applicable to her if she were an enemy 
merchant vessel" if she 

(a) "takes a direct part in hostilities;" 

(b) "is under the orders or control of an agent placed on board by the enemy 
Government;" 

(c) "is in the exclusive employment of the enemy Government; "[or] 



1 72 Targeting Enemy Merchant Shipping 

(d) "is exclusively engaged at the time either in the transport of enemy troops or 
in the transmission of intelligence in the interest of the enemy." 

Thus a permanently dedicated vessel may be subject to more severe sanctions - 
"the same treatment as . . . if she were an enemy merchant vessel "- which may 
mean capture and condemnation. These principles are stated to be customary 
law, based on the 1909 London Declaration. Whether action against such 
ships includes destruction, and under what circumstances, is less than clear, such 
being up to "pure" state practice in the absence of treaty or other document. 
Thus his Code does not necessarily stand for the proposition that enemy merchant 
vessels are not subject to destruction in appropriate circumstances. Whether 
those circumstances would include not placing passengers, crew and papers in 
safety in event of surface or sub-surface attack is debatable, in view of the 1930 
London Treaty and the 1936 Proces- Verbal. 

The Code recognizes the traditional exceptions prohibiting attacks on small 
coastal fishing or trading boats engaged as such, hospital ships, etc., and vessels 
carrying cultural property for which due notification has been given. Relying 
on Protocol I and the 1977 Environmental Modification Convention, Professor 
Levie states a rule of a general prohibition on methods or means of warfare 
"intended, or [which] may be expected, to cause widespread, long-term and 
severe damage to the natural environment." 

b. The Restatement (Third), Foreign Relations. The Restatement (Third), 
aside from noting the rule that war-coerced treaties are void and suggesting that 
hostilities might be a basis for ending or withdrawing from an agreement under 
fundamental change of circumstances principles, ' does not directly address the 
enemy merchantman attack problem. However, the Restatement does repeat the 
principles of the 1958 High Seas Convention, UNCLOS, the U.N. Ship 
Registration Convention and the Restatement (Second) with respect to the 
"genuine link" concept and duties of flag states to exercise effective authority 
and control over vessels. The traditional rules for freedom of the high seas are 
repeated but subject to a "reasonable regard to the interests of other states in 
their exercise of the freedom of the high seas." Conspicuously absent is the 
qualifier, in UNCLOS Article 87(1), that high seas freedoms are subject to "other 
rules of international law." The Restatement does acknowledge the right of 
warship high seas transit and asserts that use of warships for aggressive purposes 
would violate U.N. Charter norms. The right of self-defense is available on the 
high seas, but these principles are tucked away in the Comments and Reporters' 
Notes. 43 * The departure from UNCLOS Article 87(1) would render the Restate- 
ment less helpful in analyzing the relationship of the law of naval warfare to 
UNCLOS, but in a roundabout way, through citation of the Charter principles, 
the Restatement would seem to achieve the same result if it is considered that the 

A IO 

law of naval warfare, in its treaty aspects, is subject to the Charter, and that 



Walker 173 

other principles, e.g., those derived from custom, are viable in the context of 
the Charter. The Restatement (Third) cites the 1977 Environmental Modifica- 
tion Convention among many other treaties in finding a duty of states, "to the 
extent practicable under the circumstances," to protect the natural environment, 
with state liability for violations. The 1949 Geneva Conventions and other 
law of armed conflict principles are not cited in the Restatement' s human rights 
provisions, and, although the major treaties are listed and analyzed, scant 
attention is paid the public emergency clauses. Restatement § 702 says: 

A state violates international law if, as a matter of state policy, it practices, 
encourages, or condones 

(a) genocide, 

(b) slavery or the slave trade 

(c) the murder or causing the disappearance of individuals, 

(d) torture or other cruel, inhuman, or degrading treatment or punishment, 

(e) prolonged arbitrary detention, 

(f) systematic racial discrimination, or 

(g) a consistent pattern of gross violations of internationally recognized human 
rights. 

These are stated to be customary norms in the Comment', and (a) through (f) 
have jus cogens quality, such that a treaty - e.g. , the public emergency clauses - 
cannot override them, according to the Restatement Reporters. J This differs 
from the express language of the human rights convention, to which many 
nations are parties (but not the United States, except for its relatively recent 
ratification of the Genocide Convention. ) Since law of armed conflict treaties, 

A A "7 

with one exception, are not cited in the Restatement, the usefulness of the 
Restatement, except for its general analytical framework, e.g. , on sources of law, 
treaties, etc., is less than useful for armed conflict scenarios. 

Given the relative paucity of treatment of law of armed conflict issues in the 
Restatement, the impact of the genuine link theory for ships and the claims for 
environmental protection and human rights in the armed conflict scenario 
remains improbable. However, the ready availability of the Restatement with its 
black-letter format, its prestigious authorship, and the similarity of treatment for 
some peace-oriented issues, e.g., the environment, may provoke a spillover effect 
into the law of naval warfare. Professor O'Connell, for example, would seem 
to attempt to read the genuine link theory into prize law or private international 



1 74 Targeting Enemy Merchant Shipping 

law (i.e., conflict of laws) involving capture of belligerent merchantmen. 
Nevertheless, the rule that nationality of a ship for purposes of visit and search 
or capture, etc. of an enemy merchant vessel depends on its flag, and the flag 
alone, remains well-established. The traditional rule was given additional support 
in the practice of the United States and Kuwait in re-flagging the tankers during 
the 1980-88 war. However, the genuine link argument is liable to be raised 
in future merchant ship visit and search, capture, diversion or destruction 
situations. Genuine link may be a useful concept for the calm of a prize or 
criminal case courtroom in the context of conflicts principles, but it is not a 
helpful concept for the naval commander attempting to observe international 
law at sea while defending the ship and protecting national interests. 

c. NWP 9A. In 1989, NWP 9A's annotated supplement appeared. 
Separate provisions state the rules for surface, submarine and air attacks. 
For surface attack, enemy merchant ships may be attacked with or without 
'warning if the merchantman: 

(1) actively resists visit and search or capture; 

(2) persistently refuses to stop upon being duly summoned to do so; 

(3) sails under convoy of enemy warships or military aircraft; 

(4) is armed; 

(5) is incorporated into, or assists in any way, the enemy's armed forces intelligence 
system; 

(6) acts in any capacity as a naval or military auxiliary to enemy armed forces; or 

(7) is integrated into the enemy's war-fighting or war-sustaining efFort and 
compliance with the 1936 Proces- Verbal to the 1930 London Protocol would, 
under circumstances of the specific encounter subject the warship to imminent 
danger or would otherwise preclude mission accomplishment. 

Paragraph (4) does not distinguish between defensive and offensive armament, 
a previous distinction, because "[i]n the light of modern weapons, it is impossible 
to determine, if it ever was possible, whether the armament on merchant ships 
is to be used offensively against an enemy or merely defensively." Paragraph (7) 
is new and was: 

added to cope with the circumstance [of a ship] carrying militarily important cargo 
that is not a naval or military auxiliary and to reflect the actual practice of nations, 
at least in general wars. Although the term 'war-sustaining' is not subject to precise 



Walker 175 

definition, "effort" that indirectly but effectively supports and sustains the 
belligerent's war-fighting capability properly falls within the scope of the term. 



The traditional rules applicable to surrenders and post-attack search and rescue 
of the shipwrecked, etc., continue to apply, and all of these provisions are 
premised on three fundamental principles of the law of armed conflict: 

1 . The right of belligerents to adopt means of injuring the enemy is not unlimited. 

2. It is prohibited to launch attacks against the civilian population as such. 

3. Distinctions must be made between combatants and noncombatants, to the 
effect that noncombatants be spared as much as possible. 

These legal principles governing targeting generally parallel the military principles 
of the objective, mass and economy of force. The law requires that only objectives 
of military importance be attacked but permits the use of sufficient mass to destroy 
those objectives. At the same time, unnecessary (and wasteful) collateral destruc- 
tion must be avoided to the extent possible and, consistent with mission ac- 
complishment and the security of the force, unnecessary human suffering must be 
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. 

Only combatants and other military objectives may be attacked. Military objec- 
tives 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. 

NWP 9A adds that neutral vessels acquire enemy character when operating 
directly under enemy control, orders, charter, employment, or direction, or 
when such vessels resist an attempt to establish identity, including visit and 
search. Thus, as noted earlier, NWP 9 A would appear to approve of Iraqi 
attacks on ships carrying oil outbound to sustain the Iranian war effort. The 
self-defense aspects of United States responses is less clear. The traditional list 
of forbidden targets - hospital ships, coastal fishing and trading boats engaged as 
such, etc. - follows, with the addition of civilian passenger liners at sea, unless they 
are being used for military purposes or refuse to respond to a warship's directions. The 
inevitable civilian deaths in such a sinking "would be clearly disproportionate 
to whatever military advantage that might be gained" from their destruction. 

Submarines may attack the same categories of enemy merchantmen, although 
the seven-point list has been compressed to four, and military exigencies and 



1 76 Targeting Enemy Merchant Shipping 

the practicalities of submarine configurations are said to excuse more readily 
prior warning or the duty to recover shipwrecked, etc. The same rules for 
forbidden targets apply to submarines. 

Aircraft may attack under the same circumstances as surface warships and 
submarines; the same forbidden target rules apply, and the same humanitarian rules 
for surrender and survivors, etc., apply equally to aircraft, although the prac- 
ticalities of capacity to accept surrender or really help survivors may be limited. 

Vessels operating under enemy charter possess enemy character, according to 
NWP 9A\ there is no examination (or refutation) of the "genuine link" 
problems. 460 NWP 9 A adds that 

There is ho settled practice . . . regarding the conditions under which the transfer 
of enemy merchant vessels ... to a neutral flag may be made. . . . However, it is 
generally recognized that, at the very least all such transfers must result in the 
complete divestiture of enemy transfer and control. ... [A naval commander] is 
entitled to seize any vessel transferred from an enemy to a neutral flag when such 
transfer has been made either immediately prior to, or during, hostilities. 

Thus NWP 9 A would approve as legal the Kuwaiti-U.S. re-flagging procedures 
during the Tanker War. 

NWP 9A approves as legal a temporary exclusion zone, although neutrals 
cannot be denied access. ' Although noting restrictions on chemical, biological 
and nuclear weapons, except as to collateral damage, NWP 9 A does not appear 
to include environmental damage in the calculus of attack, and protective 
symbols used in the 1954 Hague Cultural Property Convention and 1977 
Protocol I are supplied for informational purposes only. (As noted earlier, the 
United States is not a party to either treaty.) And although protections for the 
civil population are clearly discussed, including situations where the United 
States supports positions in Protocol I, the potential for claims of human rights 
violations is not considered. 

NWP 9A also recites the traditional customary rules for neutral commerce, 
noting the difficulty in distinguishing between absolute and conditional con- 
traband, the presumption for enemy destination, exemptions from contraband, 
and aircert/clearcert/navicert procedures. Visit and search rules, "similar" to 
those for nonbelligerent visit and search, e.g., for drug interdiction, are set forth 
in full. Principles for capture and destruction of neutral vessels and aircraft 
take the traditional U.S. view, which includes forcible measures (i.e., possible 
destruction) of aircraft or ships resisting proper capture and destruction of prizes 
where the ship cannot be taken into port for adjudication or properly released, 
distinguishing between prizes and ships sent to port for visit and search. The 
customary blockade rules are recited, as are the norms for personnel aboard 
neutral platforms and those interned by neutral governments. 



Walker 177 

In summary, then, NWP 9 A does an excellent job of presenting the law 
related to attacks on enemy merchant ships. Query, however, whether a future 
revision might combine the three recitations for surface, sub-surface and air 
attacks, since the lists of permitted targets and the list of forbidden targets are the 
same, the only differences being the circumstances of warning and post-attack 
procedures. Query also whether the whole list approach might be scrapped in 
favor of a general warning and navicert system plus use of temporary exclusion 
and war zones. On the other hand, a naval commander may not wish to disclose 
his presence, which is implicit in an exclusion zone warning. Moreover, in an 
all-ocean long war, exclusion zones may not be feasible as a matter of law in 
practice. Depending on development of the law of nonbelligerent interdiction 
as well as principles for merchant ship interdiction during armed conflict, the 
same methodologies for each procedure should be devised, to minimize con- 
fusion and simplify command and training problems. This, of course, is a 
function of law development and practice and not a suggestion for revision of 
NWP 9A t which reflects the law. Last, NWP 9A and other manuals should 
reflect the potential for U.N. Security Council action, which occurred in 1950 
during the Korean conflict, again in 1965 with respect to Rhodesia, and 
tangentially in other situations. 

d. The IIHL and Other Initiatives. Beginning with the Preliminary Round 
Table of Experts on International Humanitarian Law, held in 1987 at San Remo, 
Italy, the International Institute of Humanitarian Law (IIHL) has sponsored a 
series of conferences at which participants might express views on law of naval 
warfare issues. There has been discussion of the possibility of a draft treaty on 
the subject, but later IIHL conversations have considered preparing a "Restate- 
ment*' approach analogous to the American Law Institute's series of Restatements 
of the Law in the United States, of which the most relevant for this analysis have 
been the Restatements (Second) and (Third), Foreign Relations of the United States. 
The IIHL, founded in 1970, has a primary goal of promoting the application, 
development and dissemination of international humanitarian law as well as 
promoting human rights. Experts, from governments appearing in private 
capacities, from the academic community, and from the private sector have been 
invited to these conferences. A 1987 meeting resulted in an outline of basic 
principles of humanitarian law and outlined areas needing discussion in light of 
these principles. The 1988 meeting adopted a plan of action envisaging a series 
of further annual meetings to draft part of the Restatement-style document to 
serve "as a guide to accepted standards with possibly some compromise solutions 
where necessary." The last of the annual meetings was to be held in 1992. 
Thus far only the 1 987 meeting papers and proceedings, the preparatory work 
for the 1988 meeting, and the principal papers and commentaries for the 1989 
and 1990 meetings have been published. Besides the IIHL initiative, other 
groups of scholars have considered the subject, notably at the annual meetings 



1 78 Targeting Enemy Merchant Shipping 

of the American Society of International Law, at Syracuse University, and at the 
Naval War College, the latter of which sponsored the papers in this volume. 
Participants in the Syracuse and Naval War College meetings were for the most 
part members of the U.S. Planning Group, an informal association of U.S. 
academicians interested in the subject. Although three of the IIHL roundtables and 
publication of the predecessor volume in the War College International Law 
Studies series have occurred after the convening of the Naval War College 
symposium that resulted in publication of this book, it is appropriate to consider 
the principal papers presented to the IIHL experts insofar as they relate to the subject. 

The Restatement approach of the IIHL has been criticized as a "precipitous 
move" to formulation of rules by a codification accomplished by private 
individuals who are not state representatives. "The term restatement causes 
confusion when the participants in the process are identified helter-skelter as 
academics or representatives of governments. . . . [TJhere is a great need to 
identify state practice, but [there should be] restraint on the rush to codify." 
Despite these objections, the IIHL project is nearing completion, although its 
final product had not been published by press time for this volume. Drafts of its 
work have been circulated, but these cannot be assessed because they are subject 
to revision. Despite the criticisms of and limitations on the IIHL and other 
studies, the result will contribute, albeit perhaps at a secondary level, to the 
law of naval warfare. 

(1) The 1987 IIHL Meeting at San Remo 

In 1987, the IIHL 

Round Table identified the most difficult areas in the law of naval warfare today 
as first, when armed force could be used at sea, including the concepts of 
self-defense, necessity, and proportionality, and second, neutrality and belligerent 
rights at sea. The group then decided to focus on humanitarian issues and 
reaffirmed in a resolution the basic principles applicable to all kinds of war, namely, 
that the choice of means of warfare is not unlimited, that there must be a balance 
between military and humanitarian considerations, and that victims of war and 
the rights of neutrals must be respected. 

The 1987 meeting at San Remo, Italy, had for its preparatory work The Law of 
Naval Warfare. ' Although only a published version of the preparatory essays, 
and therefore only a secondary source for international law, the book may 
gain considerable importance because it republishes international agreements 
and other documents, e.g., the 1913 Oxford Manual of Naval Warfare, together 
with commentaries by scholars on each document. For that reason, the con- 
clusions of the commentators on the law of naval warfare affecting the targeting 

AQQ 

of merchant vessels are worth summarizing. Except for regional agreements 
and an introductory essay, The Law of Naval Warfare takes a chronological course, 



Walker 179 

beginning with the 1856 Declaration of Paris. Not all agreements affecting the 
law of naval warfare, e.g. the 1958 law of the sea conventions, are analyzed, and 
some that only tangentially impact it, e.g., Protocol I to the Geneva Convention of 
1949, are included. Nevertheless, The Law of Naval Warfare is overall a useful book. 

Professor Ronzitti's introductory essay asserts that the conflicts between 1945 
and 1990, analyzed in this chapter, have had a tendency to be fought close to 
the belligerents' coasts and "even to their territorial waters. However, [he said] 
it is difficult to say whether this practice is dictated by a legal conviction to do 
so or by consideration of advantage, as, [e.g.,] when belligerents have limited 
naval capability." When the records of Korea and the Gulf War are added to 
the situations cited, e.g., the 1971 India-Pakistan war and the 1980-88 Tanker 
War, it is clear that state practice confirms the right of belligerents to conduct 
naval operations far from home (e.g. , the United Kingdom and the United States 
in Korea, both belligerents in the India-Pakistan war, many nations in the Tanker 
War and the Gulf War) on the high seas as well as in the territorial sea. Ronzitti 
also questions the legality of the 1982 United Kingdom TEZ around the 
Falklands as violating the U.N. Charter, Article 51, while not mentioning the 
Argentine War Zone of the entire South Atlantic Ocean. Whether his view is 
correct is debatable. 

Professor Guttry sees the 1907 Hague Convention (VI) Relating to the Status 
of Enemy Merchant Ships at the Outbreak of Hostilities as being somewhat 
useful today in the protection of private property at sea, citing state practice since 
its signature. Professor Venturini observes problems with practice since 1907 
for the strict terms of Hague Convention (VII) Relating to the Conversion of 
Merchant Ships into Warships, concluding that "it might be argued that State 
practice shows a tendency to the recognition of the combatant status of any 
merchant vessel integrated for all practical purpose [s] into a belligerent navy." 
Whether Professor Venturini would agree with the United States view, stated 
in NWP 9 A, depends on how the phrase "integrated for all practical purpose [s]' 
is interpreted. Professor Levie's analysis of Hague Convention (VIII) Relating to 
the Laying of Automatic Submarine Contact Mines notes that the rule against laying 
unanchored contact mines and the requirements of notice and for removal of mines 
remain valid law, but that these principles' applicability to other types of mines could 
be disputed. Professor Shearer's analysis of Hague Convention (XI) Relating 
to Capture in Naval War restates the customary rules flowing from that treaty. 

Professor Schindler's commentary on Hague Convention (XIII) Regarding 
Rights and Duties of Neutral Powers in Naval War begins with the important 
point that since the founding of the United Nations: 

If the Security Council of the United Nations decides on military or non-military 
enforcement measures according to Articles 39 fF. of the Charter, member States 
which are bound by such a decision have to deviate from the duties of neutrality. 
Their position can be described as one of qualified neutrality or non-belligerency. 



1 80 Targeting Enemy Merchant Shipping 

Neutrality in its strict sense, however, remains possible under the Charter if the 
Security Council is not in a position to take any binding decision or if it takes 
such a decision but does not call upon a particular State to take part in the 
enforcement measures. Neutrality also remains untouched if the Security Council 
decides on enforcement measures when there is only a threat to the peace but no 
armed conflict, as it did in 1966 against South Rhodesia and in 1977 against South 
Africa. The law of neutrality applies only in case of armed conflict. Up to now the 
Security Council has never been able to decide on enforcement measures in case 
of an armed conflict. Members of the United Nations therefore have never since 
1945 been prevented from remaining neutral and applying the law of neutrality. 

He concludes that in the Charter era nations may either come to the aid of a 
victim of aggression under the self-defense principles of Article 5 1 of the Charter, 
remain neutral, or adopt an intermediate position of "nonbelligerency, "i.e., 
assisting the victim by other than military means. States cannot aid the aggressor 
nation. The result is that the old law of neutrality can be divided into two 
sets of rules: those applying to all states not party to a conflict, including neutrals; 
and those applying particularly to neutrals only. The rights of neutrals, as well 
as the duty to tolerate certain belligerent measures, belong to all nations not party 
to the conflict, while the duties of abstention, prevention and impartiality apply 
only to neutrals in the strictest sense. He concludes that with certain minor 
exceptions, e.g., the impact of UNCLOS on warship passage through neutral 

territorial waters, the 1907 Convention provisions are part of the customary 

W500 

Professor Kalshoven's careful analysis of the 1909 Declaration of London states 
that customary rules prevail today, but that subsequent treaty norms confirm that 
"neutral vessels should not be destroyed without cause." ' The analysis of 
Professors Nwogugu and Goldie on the 1930 agreements involving submarine 
warfare are helpful recitations of practice that followed on them. Professor 
Prott's analysis of the 1954 Hague Cultural Property Convention notes the gaps 
for modern naval warfare, given the discovery of underwater archaeological 
discoveries and wrecks and the problems of the text, e.g. , the military necessity 
exception included at U.S. and U.K. instance (neither of which are parties to 
the treaty), and that the subject may have lost its immediacy. The rule for 
sunken military aircraft or warships - i.e., that title to them remains in the flag 
state - is not mentioned, nor is there a citation to the Roerich Pact, a Western 
Hemisphere treaty on the same subject, the 1970 convention on prohibition 
of the transport, etc., of illicitly- taken cultural property, or the 1972 conven- 
tion concerning the protection of the world cultural and natural heritage, all 
of which may have naval warfare implications. Professor Bothe's careful analysis of 
1977 Protocol I to the Geneva Conventions of 1949 notes the general exemption 
of air and naval warfare from the Protocol's terms while dismissing those parts 
that do apply. Unfortunately, there is little discussion of general customary rules 
enbedded in Protocol I and the possible impact of such customs, thus 



Walker 181 

strengthened by repetition in the Protocol for land campaigns, on war at sea. The 
United States is not a party to the Protocol, and has indicated it will not ratify it. 

Two regional treaties are also analyzed. The commentator for the 1928 
Havana Convention on Maritime Neutrality, to which the United States is a 
party, notes that the Convention repeats, and thereby strengthens, the rules of 
Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in 
Naval War, being based on World War I experience. Professor Bring, comment- 
ing on the 1938 Stockholm Declaration Regarding Similar Rules of Neutrality, 
observes that not all Nordic states would observe them today (Denmark and 
Norway being NATO members, for example), but that the rules reaffirm in the 
relevant Hague Convention principles and customary law but today do not 
establish a specific regional or Nordic approach to the law of neutrality. 

If it be taken as a handbook for its subject, The Law of Naval Warfare represents 
a reasonably complete but not exhaustive collection of relevant agreements and 
documents. There are gaps, as suggested above, and later editions will 
doubtless correct these. The commentaries accompanying the documents must 
be employed with care; they are but a secondary source of law, although 
sometimes an important (or the only additional) source for study of a problem. 

At the 1987 San Remo roundtable, Professor Ronzitti found the United 
Kingdom's TEZ around the Falklands/Malvinas "difficult to reconcile" with 
the concept of neutrality, insofar as nonbelligerent merchant ships are con- 
cerned. Both Professor Levie, writing for the conference, and Commander 
Fenrick's earlier article, left open the issue of the TEZ and enemy merchant 
vessels. Professor Ronzitti also tentatively concluded that: 

the practice shows a tendency to confine naval operations to areas close to the 
coast of belligerents, and even today, their territorial waters. However, it is difficult 
to say whether this practice is dictated by a legal conviction regarding the coastline 
or by considerations of opportunity, as for instance, when belligerents have limited 
naval capability. 

Participants subsequently questioned whether enough practice had developed 
to support a customary norm, and whether a war zone was unlawful when 
applied to neutrals. 

Professor Lowe, in another paper prepared for the San Remo conference, 
spoke of war zones in the UNCLOS Exclusive Economic Zone (EEZ) 
context: 

The precedents in the Gulf and South Atlantic suggest that the establishment on 
the high seas during hostilities of war zones of reasonable size (having regard to 
the scale of the conflict, the range and type of weapons employed, and the number 
and distribution of ships and other facilities to be protected, and also the interests 
of other users of the seas in that area) is acceptable to the international community, 
as is the declaration that unauthorized ships in the zone may be presumed to 



1 82 Targeting Enemy Merchant Shipping 

threaten combatant ships and facilities therein and are accordingly liable to attack. 
The latter provision obviates the need to settle the question of the right to exclude 
foreign vessels from the zone. 

He also concluded that neutral states had the right to forbid hostile military 
activities in adjacent sea areas "out to such a distance as affords them reasonable 
protection from the consequences of hostilities." The weight of practice does not 
support the view that military uses can be made of the entire EEZ. "The high seas 
should be regarded as free for all military activities, including those mentioned." 
Coastal states may restrict such uses on the bases of necessity and proportionality. 
He concluded by suggesting that "any ship, regardless of its nationality, . . . under 
the command, control or direction of combatant military authorities should be 
assimilated to the status of a warship for the purposes of the foregoing rules." 

Professor Robertson stated that modern naval warfare had made the 1907 
Hague Convention IX, relating to naval bombardment, obsolete before its 
entry into force, and noted the general rule of proportionality in Protocol I and 
the advent of modern over-the-horizon weapons. He asked whether the rules 
for attack should be a seaborne version of Protocol I's proportionality principle 

or perhaps weapon-specific rules. The latter approach, he thought, would be 

mi 

very difficult. The ensuing discussion recognized the problem of long-range 
weapons, the difficulty of discrimination for certain weapons platforms, and the 
general need to adhere to general rules of military necessity, military objective 
and proportionality, perhaps on the model of the rules of air warfare, while 
excluding certain vessels from attack, e.g., hospital ships and passenger liners. 

Professor Levie stated that Protocol I did not apply to war at sea and inquired 
whether exclusion zones were a legal method of warfare and whether such zones 
should be limited in scope, and whether state practice had crystallized enough to 
declare them legitimate. Commander Fenrick stated that persuasive arguments 
for their legality could be made, and that common rules for aircraft and 
submarine should be developed. The ensuing discussion also raised issues of 
environmental damage resulting from combat at sea. 

The San Remo conference closed with papers on protected vessels, the 
ensuing discussion noting the "neutral zone" for hospital ships established by the 
United Kingdom, rules of engagement and their relationship to armed 
conflict, and reprisals. 

The General Report of the San Remo conference stated: 

The Group of Experts: 

Recalls that the principles and rules of international humanitarian law apply 
impartially to international armed conflicts irrespective of the legality of the initial 
resort to force or the justification given for any such conflict. 



Walker 183 

Recognizes the relevance of the principles of international law applicable in armed 
conflict to armed conflict at sea, in particular: 

1) Parties to a conflict and members of their armed forces do not have 
an unlimited choice of methods and means of warfare. The employment of 
weapons or methods of warfare of a nature to cause unnecessary losses or 
excessive suffering is prohibited. 

2) Parties to a conflict shall at all times distinguish between civilian objects 
and military objectives. Attack shall be directed solely against military 
objectives. 

3) Parties to a conflict shall ensure that in cases not covered by explicit 
legal provisions, those involved in an armed conflict remain under 
the protection and the rule of the principles of the law of nations, as 
they result from the law of humanity and the dictates of the public 
conscience. 

4) The rules on the conduct of hostilities are subject to the fundamental 
principle of the need to balance military and humanitarian requirements. 

5) Persons hors de combat and/or shipwrecked are entitled to respect 
for their lives and their physical and moral integrity. 

Stresses that parties involved in an armed conflict at sea shall respect the rights of 
States not involved in the conflict, 

Notes that new technologies and methods of naval warfare, new developments in 
the law of armed conflict and in the law of the sea and the increased possibilities 
of grave harm to the environment as a result of armed conflict at sea, require study 
in the light of the principles recognized above, 

Notes the various studies and recommendations on the law of armed conflict at 
sea by the United Nations and the International Conferences of the Red Cross 
and Red Crescent, 

Urges the dissemination of the results of ICRC's and competent international 
organizations' work on the technical identification of protected vessels at 
sea, 

Decides: 

1) To study the means of applying the above-mentioned principles to 
the regulation of armed conflict at sea. The following should be taken into 
consideration, in particular: 

- new technologies, for instance, sea mines and long-range weapons; 



1 84 Targeting Enemy Merchant Shipping 

- means of warfare at sea, for instance, the use of "exclusion zones", ruses 
of war, and submarine warfare; 

- the use of maritime areas, for instance, neutralized zones, cartel ships, 
identification of protected vessels and aircrafts; 

- humanitarian considerations, for instance, neutralized zones, cartel ships, 
identification of protected vessels and aircrafts; 

- scope of application of the law of armed conflicts at sea, for instance, 
low-intensity operations; 

- enforcement of the law of armed conflict at sea, for instance, reprisals, 
prosecutions of war crimes, fact-finding; 

- armed conflict at sea adversely affecting the environment; 

- the needs of shipping of States which are not taking part in the conflict. 

2) To study and develop more effective means to secure the practical 
implementation of the law of armed conflict at sea on a national level, for 
instance, means of instruction to military personnel, including rules of 

530 

engagement. . . . 

The Report is but a secondary source, or evidence of law, " but its themes laid 
out the topics for subsequent IIHL meetings. 

(2) The Madrid Meeting 

At a meeting of the IIHL group in Madrid, Spain, in 1988: 

it was decided that in future meetings the group's efforts should be focused on 
identifying areas of agreement on what the law is, as meetings hitherto had 
principally highlighted areas of disagreement. The participants at the Madrid 
meeting adopted a plan of action that envisioned a series of yearly meetings of 
experts on the law of naval warfare from around the world, including in particular 
military lawyers. Each meeting would operate as a working group to identify 
common areas of agreement and articulate those rules in a document that would 
be similar to a "restatement" of the law of naval warfare. 

The first of the working groups met in Bochum, Federal Republic of Germany, 
the next year. 

(3) The Bochum Roundtable 

At the 1989 Bochum roundtable, Commander Fenrick's paper, The Military 
Objective and the Principle of Distinction in the Law of Naval Warfare, i.e., objects 
such as merchantmen that may be legitimately attacked, was presented. After 
reviewing trends in the law, the influence of the 1977 Protocol I " to the 



Walker 185 

Geneva Conventions of 1949, and current preparations of military manuals, 
Commander Fenrick concluded: 

If one accepts the most permissive provisions in the manuals referred to above as 
a starting point, then, on one view, enemy merchant vessels may be attacked and 
destroyed when they: 

a) engage in acts of war on behalf of the enemy such as laying mines, minesweep- 
ing, cutting undersea cables, visiting neutral merchant ships or attacking merchant 
ships on one's own side, 

b) act as a de facto auxiliary to an enemy's armed forces by, for example, carrying 
troops or acting as a replenishment vessel, 

c) are incorporated into, or assist in any way, the intelligence system of the enemy's 
armed forces, 

d) are armed, 

e) actively resist visit and search or capture, 

f) refuse to stop upon being duly summoned, 

g) sail under convoy of enemy warships or military aircraft, or 

h) are integrated into the enemy's war-fighting/war-sustaining effort and com- 
pliance with the rules of the 1936 London Protocol would, under the circumstan- 
ces of specific encounter, subject the attacker to imminent danger or otherwise 
not be feasible. 

Further, neutral merchant ships could be attacked and destroyed for the reasons 
specified under heads (a), (b), (c), (e), (f) and (g) above. It is clear that head (d) 
is not an adequate reason in and of itself for attacking a neutral merchant vessel. 
The key question which remains, however, is: should neutral merchant ships be subject 
to attack for the reasons specified in head (h)? Is there a valid legal reason why 
neutral merchant ships should be immune from attack when they are employed 
on tasks functionally indistinguishable from those where enemy merchant vessels are 
subject to attack? If neutral merchant ships which are incorporated into the 
enemy's war fighting/war sustaining effort are not, for that reason alone, subject to 
attack then most of the attacks directed by Iraq against neutral tankers travelling to 
and from Iran during the Tanker War were unlawful. It is not essential that 
international law, to be valid, should always be compatible with state practice. If, 
however, the law of naval warfare is to have an impact on the conduct of warfare, 
there should be a crude congruence between law and practice so that it is marginal, 
extreme conduct which is condemned, not activities which are routine operations 

c 535 

of war. 



1 86 Targeting Enemy Merchant Shipping 

The analysis does not answer the reciprocal question of Iranian attacks on vessels 
proceeding to and from neutral Kuwaiti or Saudi ports, which would a fortiori be 
illegal, or the sub-issue of Iraqi attacks on vessels proceeding in ballast or with 
cargoes that would not be considered part of an opponent's warfighting/war-sustain- 
ing effort. Ultimately, the Bochum conference found, according to Dr. van 
Hegelsom: 

. . . [T]he general principles of military objective and of distinction, as codified in 
the First Additional Protocol to the Geneva Conventions (Additional Protocol I) 
are valid in the naval environment. The experts identified the obligation to 
distinguish at all times between civilians and combatants and between civilian 
objects and military objectives and the obligation to limit attacks strictly to military 
objectives. 

As noted above, the precise formulation of the rules is still in draft form. 

Additional IIHL conferences on the law of naval warfare have been held since 

r "17 

the Newport conference that is the subject of this book. 
(4) Appraisal of the IIHL Process 

The discussions of the IIHL conferences have been entirely unofficial; military 
and diplomatic officers have attended in a private capacity, along with academic 
and International Committee of the Red Cross representatives. All the proposals 
have been subject to revision by the conferees, and there has been feedback 
revision in future meetings. Nevertheless, these discussions point toward possible 
development of a "restatement" of rules, perhaps similar to Professor Levie's 
Code, entirely unofficial, and therefore only a secondary source of law, or 
perhaps evidence of primary sources of law - custom, treaties and general 
principles - under the Restatement (Third) view. ~ As noted above, there has 
been opposition to this approach. Whether the IIHL conferences' results, in 
restatement form or otherwise, will have an impact on national manuals on the 
law of armed conflict like NWP 9A, in citations of scholars, or in state practice, 
remains for the future. To the extent that the IIHL work-product is congruent 
with existing and developing custom and general principles or international 
agreements and their interpretations, those primary sources will be reinforced. 
To the extent that the IIHL rules are cited in court decisions or the product of 
researchers, or perhaps incorporated in resolutions of international organizations 
such as the ICRC or the U.N. General Assembly, they will remain in the 
huddle of secondary sources or evidences of primary sources. (If the U.N. 
Security Council picks up the IIHL rules as binding norms, they will be elevated 
to primary status. ) Where the IIHL principles state only progressive develop- 
ment of the law, e.g. , rules concerning attacks on liners that are not part of the 
customary or conventional rules, their influence will be the least. Even if the 
IIHL process has no direct impact on the law, it will have had the beneficial 



Walker 187 

function of raising issues and stimulating debate, and thereby bring broader 
attention to bear on the law of naval warfare. 

III. Summary and Conclusions 

Although there have been at least ten naval conflicts that have involved enemy 
merchant shipping or neutral vessels that have acquired enemy character be- 
tween 1945 and 1990, the change in the practice of states has been relatively 
incremental since World War II. The rule book has been thrown out the 
porthole on occasions, e.g., during the 1971 India-Pakistan and the Tanker Wars, 
but not enough to establish a new rule or that there are no rules. One of the 
difficulties in surveying the period has been lack of hard evidence, due to security 
classifications and the fact that governments do not publish diplomatic papers 
for many years after the event, and then only selectively. Thus this chapter's 
Discussion and the resulting Summary may be lacking in critical details that could 
alter a view of state practice radically. The reason for this caveat lies in the way 
international law looks at state practice, or custom. Not only must there be a 
sustained practice, but it must be accepted as law by nations affected, under the 
majority view. J Whether one or two claims would be enough to support a 
trend may be doubtful to some; in almost all recent cases opinion juris - acceptance 
of the practice as law - the record may be meager. The exceptions may be the 
Falklands/Malvinas War (1982) and the Tanker War (1980-88), but even here 
the picture may be less than complete. 

The Korean conflict would seem to have stretched to the line the rule that 
small coastal fishing vessels when plying their trade are not subject to capture or 
attack, but the attacks might be justified under another theory generally - but 
not universally - approved today, i.e., destruction of vessels as part of the enemy's 
war-sustaining effect. Pretty clearly the small fishing boats and coastal traders 
carrying weapons during the Vietnam War were part of the North Vietnam war 
effort, and attacks were justified. The United Kingdom's attack on Narwal 
was justified on one officially-stated ground, Narwal' s supporting Argentine 
intelligence, but attack might have been also vindicated because Narwal was a 
1 600-ton trawler and obviously not a coastal boat. 

Hospital ships - another forbidden target - were respected during the 
Falklands/Malvinas War through the medium of the "Red Cross box" neutral 
zone - a new wrinkle, borrowed from the law of land warfare. 

The record is mixed on belligerents' attacks on traditional oceangoing ships 
steaming alone. During the Arab-Israeli conflicts, there were attacks on neutral 
vessels and an Israel-bound tanker, and an Egyptian-declared blockade of tankers 
coming from Eilat. * Whether the Israel-bound tanker was carrying war-sus- 
taining petroleum (probably it was) or whether Sinai oil was helping finance the 
Israeli war effort is not clear from the research. During the 1971 India-Pakistan 



188 Targeting Enemy Merchant Shipping 

conflict, India instituted naval control of shipping, which would have subjected 
those vessels to Pakistani attack if the Indian vessels were convoyed or were 
involved in the war effort. India declared a blockade of what was then East 
Pakistan (now Bangladesh), and captured Pakistani merchantmen. Whether 
these were supporting the enemy war effort and therefore subject to capture or 
were wrongfully seized is less than clear; one commentator has asserted that India 
ignored the rules. 

During the Vietnam conflict the United States published notice of its mining 
North Vietnamese harbors, thus warning all ships, in accordance with interna- 
tional law, whether they would have been classified as enemy merchantmen on 
war service or neutrals performing unneutral service. This might be compared 
with the illegal use of mines in the Red Sea and Persian Gulf. U.S. -flag merchant 
vessels were the subject of shoreside attacks, with no evidence that warnings 
were given. Two were sunk, one loaded with cement. There is no evidence of 
a claim by North Vietnam of the cement hauler's being on war service. Both 
RFA and STUFT ships were attacked during the Falklands/Malvinas War while 
on war-sustaining missions, and there is no evidence of protests. ' Under 
established principles, both classes of vessels were legitimate targets. 

During the Tanker War, Iraq attacked enemy merchant ships, and was legally 
entitled to do so, when these vessels carried Iranian petroleum that would be 
sold or bartered to support the war effort. Neutral-flag tankers carrying 
belligerents' petroleum, the sale of which would support the war effort, were 
also subject to attack when convoyed by Iranian warships. (If a belligerent 
chose to attack, and was subjected to necessary, proportional defensive responses, 
those responses were also consonant with international law.) On the other hand, 
neutral vessels carrying neutral goods were not subject to attack, and attacks by 
Iran or Iraq on foreign-flag ships of this nature were clearly illegal under 
international law, whether convoyed by neutral nation warships or steaming 
alone. Neutral nations could respond proportionally in self-defense to such 
attacks, whether the response came from convoying warships, warships in the 
area, or by other means of self-defense. 

Blockades in the traditional sense were declared in several of the conflicts 
(Korea, 1950; India-Pakistan, 1971; Arab-Israel, 1973; Iran-Iraq, 1980; 
Lebanon, 1982), and the traditional rules seem to have been applied, despite 
the contentions of some that the rules had become functionally obsolete. 
Quarantine - in which merchantmen supplying an adversary are stopped and 
diverted in a nonwar context - was an innovation. This practice was first 
developed in the Algerian civil war under a self-defense rationale, and was 
employed by the United States during the 1962 Cuban missile crisis, by the 
United Kingdom in the Rhodesian interdiction operation with U.N. Security 
Council approval, and by the United States in mining operations in North 
Vietnamese territorial waters and South Vietnam in the South China Sea. 



Walker 189 

Some have questioned the legal validity of such operations when the claim has 
been based on self-defense in the wake of the 1986 Nicaragua Case, but there 
has been no authoritative guidance on the issue beyond state practice to the 
contrary and the Security Council's decisions in the case of Rhodesia. Under 
the circumstances, a conditional conclusion is that such quarantines are legal 
under a self-defense theory, so long as they are necessary and proportional in 
response and otherwise conform to international norms - e.g., a quarantine 
cannot obstruct freedom of navigation of third-nation warships, nor can it bar 
a hospital ship from a port. 

The period 1945-90 also witnessed a re-emphasis on the exclusion zone used 
perhaps in the Korean War, and certainly in the Falklands/Malvinas War, 
and the Tanker War. "' The principle that has emerged is that such zones are 
legal, so long as they are published and reasonable in area and duration, i.e., that 
they obey the general principles of necessity and proportionality. Wartime 
reprisals may permit a wider zone. 

Besides the developing rules from practice, however, decision makers must 
consider the impact of treaty law clearly applicable to naval warfare. Two 
post- World War II examples are the GWSEA prohibition on attacks on small 
coastal rescue craft, and the 1977 Environmental Modification Conven- 
tion. New general principles of law, perhaps analogized from emerging 
human rights norms, may further complicate the picture. 

Then there is the problem of "radiations" from other bodies of law that may 
affect the rules of practice in maritime warfare. One recent example is the "Red 
Cross box" concept in the Falklands/Malvinas War, a procedure borrowed from 
the law of land warfare by the United Kingdom and respected by Argentina. 
That was a good idea, but consider commentators' attempts to incorporate the 
UNCLOS "genuine link" concept into the rule that enemy character is 
determined by the flag flown, or attempts to incorporate 1977 Protocol I 
wholesale into the law of naval warfare. Both appear to be erroneous 
conceptions of the current state of the law, but these analyses point the way for 
attempts at possible inclusion of concepts, in whole or in part, from these and 
other sources in future considerations of law of naval warfare issues: as established 
practice human rights; the 1954 Hague Cultural Property Convention, not 
in force for the United States but with potential overtones for legitimation of 
state practice; the High Seas Convention and UNCLOS; the 1977 Protocol 

con 

I additional to the 1949 Geneva Conventions; the 1981 Conventional 
Weapons Convention; and resolutions of the U.N. Security Council or other 
international organizations. 

Throughout the 1945-1990 period, commentators assessed the subject matter 
of this paper. These sources, and indeed the new military manuals such as NWP 9 A, 
have their place in the analysis, either as secondary sources ~ or as expositors of 
state practice to date. It is for this reason that they have been included too, and 



1 90 Targeting Enemy Merchant Shipping 

must be considered along with state practice, treaties, general principles of law, 
and other sources. 

In sum, the place of state practice in the law of naval warfare is much more 
complicated today than before advent of the U.N. Charter in 1945. Perhaps it 
is for this reason that the IIHL and others have begun a series of roundtables to 
attempt to "restate" the law of naval warfare. Whether this is a wise 
methodology, and whether the results will be acceptable to states, is not clear 
today because of the ongoing nature of the project. What is fairly certain is that 
more than state practice will be considered in its deliberations, and should be 
considered by national decisionmakers assessing law of naval warfare issues 
related to projected or ongoing situations. 

There has been discussion of a general treaty on the law of naval warfare. 
A treaty offers certain advantages: 

CO*. 

(1) If congruent with custom, the rule is strengthened; 

COT 

(2) Treaties may be the preferred source for some states; 

(3) Custom can be elusive in content, relying on the happenstance practice 
of states during a naval war, and the particulars of a particular practice may be 
sealed in archives for decades; 

(4) State practice for wartime rules during armed conflict can be an awfully 
expensive way to write law; 

(5) For naval decision makers, there is the advantage of a "black letter" format, 
e.g., the 1949 Geneva Conventions' provisions; 

(6) Training in the subject can be simpler; the black letter format of treaties 
lends itself to easier learning. 

These propositions could be countered: 

COO 

(1) Inconsistent custom can eventually obliterate an outmoded treaty; 

(2) If a treaty is tied to current technology, it may be out of date before the 
ink is dry, and the problems of arguing by analogy or under the principle 
indusio unius exclusio may arise; 

(3) Custom has the advantage of adapting to new situations that cannot now 
be contemplated; 

(4) Treaties are always subject to reservations or understandings by the 
signatories, which can result in as much confusion as to the state of the law as 
in the case of custom, an example being Soviet bloc and other reservations to 
the 1949 Geneva Conventions; 

(5) If issues over which there is sharp disagreement arise during the treaty 
negotiation process, the result can be protracted negotiations, a breakup of the 
negotiations with no treaty resulting, states may refuse to sign, as in the case of 
U.S. refusal to sign UNCLOS, states may decline to ratify the agreement, as in 



Walker 191 

the case of the United States and SALT II, or a treaty that reflects the lowest 
common denominator on the subject may result, which accomplishes little; 

(6) The internal ratification process for many nations can result in outright 
rejection of the treaty, considerable delays, further reservations by the legislative 
body (e.g. y the Senate under the U.S. Constitution), or lack of legislative support 

592 

for implementing statutes; 

(7) Carefully- written "black letter" rules for custom can be incorporated into 
military manuals, to be employed by decisionmakers or in an instructional 
setting. Indeed, it has been necessary to condense the detail of treaties such 
as the 1949 Geneva Conventions to make them more understandable for 
users; thus a treaty can suffer from ambiguity of words, even as custom carries 
a risk of ambiguity of rules. 

With the demise of the Soviet Union an< t a resulting unipolar world with the 
United States as the only true military sup ^rpower, the inclination to engage in 
multilateral agreement negotiations may be decreasing. State practice may be 
the rising modality for determining intern ational law. The continued trends 
in fragmentation of nations - Czechoslovakia, the USSR and Yugoslavia being 
the most recent examples - would suggest that the babble of claims and 
counterclaims as to what is the law, or should be the law, further militates 
against beginning the treaty process now. Yet this very process of disintegra- 
tion and the resultant relative weakness of nations to counter threats from within 
and without argues for establishment of some norms to guide what may be the 
beginning of a new season of conflict. For now, the patchwork of traditional 
custom and general principles, treaties perhaps modified by practice or inter- 
pretation, and the often-conflicting urgings of scholars and groups such as the 
IIHL, plus the modifications in state practice that have characterized naval 
conflicts since World War II, will be the principal guide to naval powers as they 
confront relatively new bodies of law pressing from the periphery. The latter 
include the U.N. Charter, UNCLOS, the 1977 Protocols, and the law of human 
rights. The result may be the dawn of a new world order or a fresh descent into 
international chaos. 



Notes 

^Professor of Law, Wake Forest University; Charles H. Stockton Professor of International Law, U.S. Naval 
War College, Newport, R.I. Parts of this chapter may be incorporated in the author's Yale Law School J. S.D. 
dissertation and are his views and not necessarily those of the U.S. Navy or the U.S. Government. The author 
expresses thanks to Professor Thomas W. Steele, Wake Forest University law librarian, and his staff; and to 
Professor Robert E. Schnare, Jr., Director of the Naval War College Library, and his staff, for assistance in 
compiling sources. 

1 . International agreements may evidence custom, or state practice, even though states are not formal 
parties to the agreement through the ratification process. Natalino Ronzitti, The Crisis of the Traditional Law 



192 Targeting Enemy Merchant Shipping 

Regulating International Armed Conflicts at Sea and the Need for its Revision, in The Law of Naval Warfare 1, 2 
(N. Ronzitti ed. 1988); George Walker, The Sources of International Law and the Restatement flliird), Foreign 
Relations Law of the United States, 37 Nav. L. Rev. 1, 10-12 (1988), citing, inter alia, Case Concerning Military 
and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.) 1986 I.C.J. 14, 31-38, 91-135 [hereinafter 
Nicaragua Case]; North Sea Continental Shelf (W. Ger. v. Den., W. Ger. v. Neth.), 1969 I.C.J. 4, 28-29, 
36-45; The Pacquete Habana, 175 U.S. 677 (1900); Restatement (Third), Foreign Relations Law of the United 
States, Part III, Introductory Note, para. 4 (1988); Richard R. Baxter, Treaties and Custom, 129 Recueil des Cours 
25, 36 (1970). 

2. U.N. Convention on the Law of the Sea, Dec. 10, 1982, U.N. Pub. No. E.83.V.5 (1983) [hereinafter 
UNCLOS]. Many UNCLOS provisions restate customary law. See, e.g., Restatement (Third), supra note 1, Part V, 
Introductory Note, para. 5, and Joint Statement by the United States and the USSR Concerning Uniform Interpretation of 
Rules of International Law Governing Innocent Passage, Sept. 23, 1 989, para. 1 . , 28 Int'l Legal Mat'ls 1 444, 1 445 ( 1 989) . 

3. Ian Brownlie, Principles of Public International Law 5-6 (4th ed. 1990). 

4. U.S. Department of the Navy, Annotated Supplement to the Commander's Handbook on the Law 
of Naval Operations (NWP 9) (Rev. A)/FMFM 1-10), [hereinafter NWP 9A], Preface, at 1 n.2 (1989). 

5. Compare I.C.J. Statute, art. 38(l)(c), 38(l)(d), (general principles oflaw recognized by civilized nations 
a primary source, highly qualified scholars' and judicial opinions as subsidiary means for determining the law) 
with Restatement (Third), supra note 1, §§ 102(2), 103(2) (general principles common to major legal systems 
are a subsidiary source; judgments and opinions of national and international tribunals, judgments and opinions 
of international arbitral tribunals, scholars' writings, and "pronouncements by states that undertake to state a 
rule of international law [e.g., resolutions of international organizations], when such pronouncements are not 
seriously challenged by other states)." The Restatement (Third) formula draws on the Statute, which is binding 
on litigation before the World Court. Cf id. § 102, reporters' note 1. 

6. See, e.g., the use of scholars' writings in The Pacquete Habana, 175 U.S. 677 (1900). 

7. NWP 9A, supra note 4, para. 7.4, notes that such ships may be subject to visit and search, but not 
to capture or destruction, by belligerents. 

8. Id. paras. 8.2, 8.2.1. 

9. Cf. id. para. 7.5.1. 

10. Id. para. 8.2.3. As will be seen infra in Parts II.E-II.F, vessels such as coastal fishing craft may lose 
their protected status if they engaged in combat operations, e.g., by gathering intelligence or by transporting 
war material or troops. 

11. Leland M. Goodrich et al., Charter of the United Nations 25-26 (3d ed. 1969). 2 Daniel P. 
O'Connell, The International Law of the Sea 1094 (Ivan A. Shearer ed., 1982) [hereinafter 2 Daniel 
P.O'Connell] declares that "The outlawing of the resort to force in the . . . Charter has profoundly affected 
the law of war at sea." 

12. U.N. Charter, art. 51, says that the right continues "until the . . . Council has taken measures 
necessary to maintain international peace and security." Hence, to the extent the Council would fail to act, 
perhaps because of a veto or less than super-majority vote under id. art. 27, or to the extent that the scope of 
a Council decision under id. arts. 25, 48 does not cover a situation that might involve self-defense, Members 
are free to exercise that right. An example from any of the situations discussed infra in this chapter would be 
the circumstance of a submarine attack on, or display of hostile intent to, a warship steaming far away from 
the geographic zone of a conflict controlled by a Council action. Alternatively, a state whose freedom of action 
is totally regulated by Council action regarding a localized conflict (the classic case that might have involved 
such being the 1982 Falklands/Malvinas conflict, Part II. F infra) would not have denied those states the right 
to take self-defense measures in other contexts. For example, if there had been an attack or a threat of attack 
on Great Britain's home islands by a third power (or by Argentina for that matter), the United Kingdom could 
have responded proportionally in self-defense. 

13. Id., arts. 33-38. For further analysis, see Leland M. Goodrich et al., supra note 11, ch. 6. 

14. U.N. Charter, arts. 39-51. 

15. Leland M. Goodrich et al., supra note 1 1, at 333. 

16. U.N. Charter, arts. 25, 48-49. If a party to a successful suit in the International Court of Justice 
cannot get compliance from the losing state, the Council also has authority to recommend, or decide on, 
measures to give effect to the judgment. Id., art. 94(2). 

17. NWP 9A, supra note 4, paras. 4.3.2 - 4.3.2.1, citing, inter alia, the Caroline Case, 2 John B. Moore, 
Digest of International Law 409-14 (1906). See also infra note 24 and accompanying text. 

18. NWP 9 A, supra note 4, para. 4.3.2, at 4-1 1 - 4-12, citing the Cuban Missile Crisis of 1962, analyzed 
infra at Part II.C.3; see also Derek W. Bowett, Self-Defence in International Law 187-93 (1958); Myres S. 
McDougal & Florentino P. Feliciano, Law and Minimum World Public Order 232-41 (1961); Julius Stone, 
Aggression and World Order 44 (1958); David K. Linnan, Self-Defense, Necessity and U.N. Collective Security: 
United States and Other Views, 1991 Duke J. Comp. & Int'l L. 57, 65-84, 122; W. Michael Reisman, Criteria 

for the Lawful Use of Force in International Law, 10 Yale J. Int'l L. 279 (1955); Oscar Schachter, The Right of States 



Walker 193 

to Use Armed Force, 82 Mich. L. Rev. 1620, 1634 (1984); Claud H.M. Waldock, The Regulation of the Use of 
Force by Individual States in International Law, 81 Recueil des Cours 451, 496-99 (1952); cf. Horace B. Robertson, 
Jr., Contemporary International Law: Relevant to Today's World?, 45 Nav. War Coll. Rev. 89, 101 (No. 3, 1992). 

19. Ian Brownlie, International Law and the Use of Force by States 112-13, 264-75 (1963); Yoram 
Dinstein, War, Aggression and Self-Defence 86, 174-75 (1988); Louis Henkin, How Nations Behave 140-45 
(2d ed. 1979). Daniel P. O'Connell, The Influence of Law on Sea Power 83 (1979) [hereinafter Daniel P. 
O'Connell]; Vaughan Lowe, The Commander's Handbook on the Law of Naval Operations and the Contemporary 
Law of the Sea, in Horace B. Robertson, Jr., The Law of Naval Operations 109, 127-30 (1991), referring, inter 
alia, to Nicaragua Case, supra note 1, at 92-94, 109-11. See also Christopher Greenwood, The Effects of the 
United Nations Charter on the Law of Naval Warfare 10-12 (1991), rapporteur's manuscript presented to the 
Round Table of Experts on International Humanitarian Law Applicable to Armed Conflict at Sea, Bergen, 
Norway, Sept. 20-24, 1991; Christopher Greenwood, Remarks, in Panel, Neutrality, The Rights of Shipping and 
the Use of Force in the Persian Gulf War (Part I), 1988 Proc. Am. Soc'y Int'l L. 158, 159-61 (1990), noting this 
was the U.K. view during the 1980-88 Tanker War; Rainier Lagoni, Remarks, in id. 161, 162. James J. 
McHugh, Forcible Self-Help in International Law, 25 Nav. War Coll. Rev. 61 (No. 2, 1972) analyzes both sides 
of this and related issues. 

20. UNCLOS, supra note 2, arts. 91, 92; Convention on the High Seas, Apr. 29, 1958, arts. 5, 6, 13 
U.S.T. 2312, 2315, T.I.A.S. No. 5200, 450 U.N.T.S. 82, 84, 86 [hereinafter 1958 High Seas Convention]; 
Restatement (Third), supra note 1, § 501. See also infra notes 304-30 and accompanying text. 

21. Yoram Dinstein, supra note 19, at 184; see also the U.N. General Assembly's "Definition of 
Aggression" Resolution, U.N.G.A. Res. 3314, 29 U.N. GAOR Supp. No. 19, U.N. Doc. A/9619 & Corr. 
1 (1974), reprinted in 69 Am. J. Int'l L. 480 (1975), the latter of which omits article 3(d) of the Resolution, 
most critical for this study: 

Article 3 

Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance 
with the provisions of article 2, qualify as an act of aggression: 

****** 



(d) An attack by the armed forces of a State on the land, sea or air forces, marine and air fleets 
of another State; 

Compare Definition of Aggression, art. 3, reprinted in 69 A. J. Int'l L. at 482, with, e.g., the version in Julius 
Stone, Conflict Through Consensus 186, 188 (1977), or the draft version reprinted in 13 Int'l Legal Mat'ls 321 , 
324 (1974). The ICJ cited the Resolution, art. 3(g), in the Nicaragua Case, supra note 1, 1986 I.C.J, at 103-04, 
and did: 

not believe that the concept of "armed attack" includes not only acts by armed bands where such acts 

occur on a significant scale but also assistance to rebels in the form of the provision of weapons or 

logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to 

intervention in the internal or external affairs of other States. It is also clear that it is the State which 

is the victim of an armed attack which must form and declare the view that it has been so attacked. 

There is no rule in customary international law permitting another State to exercise the right of 

collective self-defence on the basis of its own assessment of the situation. Where collective self-defence 

is invoked, it is to be expected that the State for whose benefit this right is used will have declared 

itself to be the victim of an armed attack. 

The decision is only a secondary source of law and carries no precedential weight. I.C.J, statute, arts. 38(1), 

59. It may be significant that the Security Council has not taken the bait of the Resolution, preamble, para. 

4, in citing the Resolution in any of the situations, 1974-90, analyzed in this study, although some, e.g., 

Falklands/Malvinas, infra part II-F, were clear cases of aggression as defined in the Resolution. Most authorities 

question whether the Resolution is a codification of custom in all respects. For example, Bengt Broms, chair 

of the U.N. Committee that produced the Resolution, made no such assertion in The Definition of Aggression, 

154 Recueil Des Cours 299, 385-88 (1978). Yoram Dinstein, supra note 19, at 124, cites no authority for the 

proposition that the whole Resolution restates customary law. For a trenchant analysis of the Resolution, see, 

e.g., Julius Stone, supra ch. 9. 



1 94 Targeting Enemy Merchant Shipping 

22. George Bunn, International Law and the Use of Force in Peacetime: Do U.S. Ships Have to Take the First 
Hit?, 39 Nav. War Coll. Rev. 69-70 (1986). 

23. Horace B. Robertson, Jr., supra note 18, citing Yoram Dinstein, supra note 19, at 179. 

24. NWP 9A, supra note 4, para. 4.3.2.1, citing George Bunn, supra note 22, at 70; R.Y.Jennings, The 
Caroline and McLeod Cases, 32 Am. J. Int'l L. 82, 89 (1938), which with NWP 9A cite the Caroline Case; 
letter of U.S. Secretary of State Daniel Webster to U.K. Ambassador Lord Alexander B. Ashburton, Aug. 6, 
1842, 2 John B. Moore, Digest of International Law 411-12 (1906); letter of Secretary Webster to U.K. 
Minister Henry S. Fox, Apr. 24, 1841, in 1 K. Shewmaker, The Papers of Daniel Webster: Diplomatic Papers 
58, 67 (1983). Vaughan Lowe, supra note 19, at 128, notes that the Nicaragua Case, supra note 1, at 93, 
specifically excluded consideration of anticipatory self-defense, and that states are likely to place greater reliance 
on that doctrine in the future. 

25. W. Michael Reisman, Critical Defense Zones and International Law: The Reagan Codicil, 76 Am. J. Int'l 
L. 589 (1982). 

26. North Adantic Treaty, Apr. 4, 1949, art. 6, 63 Stat. 2241, 2244, T.I.A.S. No. 1964, 34 U.N.T.S. 
243, 246, as modified by Protocol to the North Adantic Treaty on the Accession of Greece and Turkey, Oct. 
17, 1951, 3 U.S.T. 43, 44, T.I.A.S. No. 2390, 126 U.N.T.S. 350. 

27. W. Michael Reisman, supra note 25, at 589, cites the Monroe Doctrine as an example. 

28. Oscar Schachter, International Law in Theory and Practice, 178 Recueil des Cours 9, 169 (1982). 

29. See Ian Brownlie, supra note 19, at 281, citing many sources; Derek W. Bowett, Reprisals Involving 
Recourse to Armed Force, 66 Am. J. Int'l L. 1 (1972); Claud H.M. Waldock, supra note 18, at 492-94. 

30. Julius Stone, supra note 18, at 43, 94-98; Yoram Dinstein, supra note 19, at 207. As in the case of 
his "interception" theory for self-defense, see supra notes 23-24 and accompanying text, Professor Dinstein 
seems to be very close to the majority view when he says "armed reprisals are prohibited unless they qualify 
as . . . self defense under [U.N. Charter,] Article 51." Yoram Dinstein, supra at 203. 

31. NWP 9A, supra note 4, para. 6.23. 

32. Case Concerning Air Service Agreement Between France and the United States (Fr. v. U.S.), 18 
U.N. Rep. Int'l Arb. Awards 417, 443-46 (1978). The U.S. and other nations' orders in early August 1990, 
freezing Iraqi and Kuwaiti assets before the U.N. Security Council acted, were valid economic reprisals. George 
K. Walker, The Crisis Over Kuwait, August 1990-February 1991, 1991 Duke J. Comp. & Int'l L. 25, 43. 

33. Oscar Schachter, supra note 28, at 169, 185-87; Claud H.M. Waldock, supra note 18, at 458. 

34. Philip C. Jessup, Should International Law Recognize an Intermediate Status Between Peace and War?, 48 
Am. J. Int'l L. 98 (1954); Myres S. McDougal, Peace and War: Factual Continuum with Multiple Legal Consequences, 
49 id. 63 (1955). NWP 9A, supra note 4, fig. SF5-1, Spectrum of Conflict, is an excellent illustration of this point. 

35. See infra notes 178-179, 183, 198, 308-13, 328-29, 374, 422, 441, 465 and accompanying text. 

36. For a general discussion of the intricacies of private ownership interests in commercial shipping, see 
generally Grant Gilmore & Charles L. Black, The Law of Admiralty, chs. 2-4, 9, 1 1 (2d ed., 1975); Thomas 
J. Schoenbaum, Admiralty and Maritime Law, chs. 8-10, 18 (1987). The problems of containerized shipping 
and others confronting the dwindling U.S. merchant marine are examined in John A. McPhee, Looking for 
a Ship (1990). 

37. See, e.g., Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1603(d) (1988) (definition of 
commercial activity). 

38. London Declaration Concerning the Law of Naval War, Feb. 26, 1909, art. 57, in The Law of Naval 
Warfare, supra note 1, at 223, 250. 

39. See supra note 34 and accompanying text. 

40. Cf NWP 9A, supra note 4, para. 7.5. 

41. For analysis of these jus ad hello issues in the context of the Falklands/Malvinas War, see Alberto R. 
Coll, Philosophical and Legal Dimensions of the Use of Force in the Falklands War, in Alberto R. Coll & Anthony 
C. Arend, the Falklands War: Lessons for Strategy, Diplomacy and International Law 34 (1988). 

42. S.C. Res. 82, U.N. Doc. S/RES/82 (1950); S.C. Res. 84, U.N. Doc. S/RES/84 (1950), reprinted 
in Karel C. Wellens, Resolutions and Statements of the United Nations Security Council (1946-1989): a 
Thematic Guide 252-54 (1990); see also Edwin C. Hoyt, The United States Reaction to the Korean Attack: A 
Study of the Principles of the United Nations Charter as a Factor in American Policy- Making, 55 Am. J. Int'l L. 45 
(1961); Josef L. Kunz, Legality of the Security Council Resolutions of June 25 and June 21, 1950, 50 id. 137 (1951). 

43. See U.N. SCOR Supp. (June - Aug. 1950) at 50, U.N. Doc. S/1580 (1980), reprinted in 10 Marjorie 
M. Whiteman, Digest of International Law 866-67. See also James A. Field, History of United States Naval 
Operations: Korea 42 (1962); Message of the U.S. Joint Chiefs of Staff to the Commander in Chief, Far East 
(General Douglas Mac Arthur), July 1, 1950, 7 U.S. Department of State, Foreign Relations of the United 
States 1950 (Korea) 271 (1976), authorizing the blockade by "such means and forces ... to deny unauthorized 
ingress to and egress from the Korean coast ... to suppress seaborne traffic to and from North Korea and to 
prevent movement by sea of forces and supplies for use in operations against South Korea. Care should be 



Walker 195 

taken to keep well clear of the coastal waters of Manchuria and USSR." Notices to governments and mariners 
were to be issued from Washington. 

44. Malcom W. Cagle & Frank A. Manson, The Sea War in Korea 281-83 (1957); see also id. at 299-300, 
304, 353-57, 370-73. James A. Field, supra note 43, at 54, reports at least one submarine incident early in the 
war. There were periodic periscope sighting claims later. Id. at 349, 395. Id. at 372 estimates that a submarine 
campaign would have been effective. Inshore blockading was an ROK responsibility. Id. at 58-59. See id. at 
61, 126, 158, 444 for actions connected with the blockade. Id. at 187, 193, 358-59, 372, 444, 447 discusses 
USSR involvement with North Korean mining. If a Russian merchantman attempted to enter a blockaded 
port, the vessel would be stopped, and, if necessary, fired upon to enforce the blockade. If a Russian warship 
attempted to enter such a port, it would be allowed to enter and leave. If the warship escorted a Russian 
merchantman, and the two tried to enter a blockaded port, the merchant vessel would be stopped, but the 
warship would be allowed to proceed. If the warship tried to interfere with measures taken to stop the 
merchantmen, and fired on the blockading vessel, the latter would return fire in self-defense. Memorandum 
of Conversation by U. Alexis Johnson, Deputy Director of U.S. State Department Office of Northeast Asian 
Affairs, July 8, 1950, 7 Foreign Relations of the United States: 1950, at 332-33 (1976). As the Memorandum 
noted, this was "normal international practice." See London Declaration Concerning the Laws of Naval War, 
Feb. 26, 1909, arts. 5-6, 20, in The Law of Naval Warfare, supra note 1, at 223, 228, 232; NWP 9A, supra 
note 4, para. 7.7; see also supra notes 11-39 (self-defense and related issues). 

45. George K. Walker, supra note 32, at 49-50. 

46. See infra notes 207-08 and accompanying text. 

47. See infra notes 73-76 and accompanying text. 

48. Compare supra notes 43-44 with, e.g., NWP 9A, supra note 4, para. 7.7.2. 

49. James A. Field, supra note 43, at 52; telegrams from John J. Muccio, U.S. ambassador in South Korea, 
to Secretary of State Dean Acheson, June 26, 1950, 7 Foreign Relations, supra note 44, at 168. 

50. James A. Field, supra note 43, at 269, 273-74, 286, 291, 304, 312. 

51. See, e.g., NWP 9A, supra note 4, para. 8.2.3. 

52. See, e.g., id. at 8-19 & n. 59. 

53. James A. Field, supra note 43, at 58. 

54. Id. at 372. 

55. Id. at 71-74. Thirty SCAJAP ships; 13 MSTS vessels; 26 U.S.-chartered, U.S.-flag cargo ships; and 
4 Japanese-flag merchantmen participated in the Inchon landing. Id. at 181. The Wonsan invasion involved 
30 SCAJAP ships and "MSTS shipping as assigned," which included Japanese marus, i.e., merchantmen. Id. 
at 223, 240. SCAJAP and chartered Japanese vessels were employed in the Hungnam and other military 
evacuations, where civilians were also extracted. Id. at 291. For a summary of cargoes carried, see id. at 382-83. 

56. See supra notes 49-51 and accompanying text. 

57. NWP 9A, supra note 4, para. 8.2.2.2; see also U.S. Department of the Navy, Law of Naval Warfare 
(NWIP 10-2) para. 503(b)(3) (Change 6, 1955) [hereinafter NWIP 10-2]. 

58. Hague Convention (VII) Relating to the Conversion of Merchant Ships into Warships, Oct. 1 8, 
1907, in the Law of Naval Warfare, supra note 1, at 111. 

59. See Gabriella Venturing Commentary, in The Law of Naval Warfare, supra note 1, at 120. 

60. See id. at 122. 

61. NWP 9A, supra note 4, para. 8.2.3 at 8-19, citing Malcolm W. Cagle & Frank A. Manson, supra 
note 44, at 296-97; see also Myres S. McDougal & Florentino P. Felciano, supra note 18, at 594. 

62. W.J. Fenrick, The Military Objective and the Principle of Distinction in the Law of Naval Warfare, in 7 
Bochumer Schriften zur Friedenssicherung und zum Humanitaren Volkerrecht 1, 17 (Wolff von Heinegg 
ed., 1991), introductory report presented to the Round-Table of Experts in International Humanitarian Law 
Applicable to the Armed Conflicts at Sea, Bochum, Germany, Nov. 10-14, 1989, citing Robert W. Tucker, 
The Law of War and Neutrality at Sea, 1955 International Law Studies 267 (1957). W.J. Fenrick, supra, is also 
published in an updated version in W.J. Fenrick, Legal Aspects of Targeting in the Law of Naval Warfare, 1991 
Can. Y.B. Int'l L. 238, 256. See also infra notes 431, 444-518 and accompanying text. Sally V. Mallison & W. 
Thomas Mallison, Naval Targeting: Lawful Objects of Attack, in Horace B. Robertson, Jr., supra note 19, at 241, 
261, state that these captures violated Hague Convention (XI) Relative to Certain Restrictions with Regard 
to the Exercise of the Right of Capture in Naval War, Oct. 18, 1907 [hereinafter Hague XI], art. 3, 36 Stat. 
2396, 2408-09, T.S. No. 544, restating the rule of The Pacquete Habana, 175 U.S. 677 (1900). Fifth Report 
of U.N. Command Operations in Korea, U.N. Doc. S/1834 (1950), reprinted in 23 Dep't State Bull. 603, 604 
(1950) noted that many North Korean small craft were used to carry war material. In some cases the, enemy 
had forced native fishing operations to its use. "[E]very effort [was] being made to confine destruction of small 
craft to those conducting military operations." 

63. James A. Field, supra note 43, at 396. Pittman B. Potter, Pacific Blockade or War?, 47 Am. J. Int'l L. 
273, 274 (1953) believed that such an action would be legitimate in the Charter era. 



1 96 Targeting Enemy Merchant Shipping 

64. Note from the Acting U.S. Representative to the U.N. Secretary-General, Mar. 1 1 , 1954 [hereinafter 
Note], transmitting the Seventy-sixth Report of the U.N. Command in Accordance with the Security Council 
Resolution of 7 July 1950 (S/1588), U.N. Doc. No. S/3185 (1954), reprinted in 4 Marjorie M. Whiteman, 
Digest of International Law 1186 (1965). 

65. Proclamation of ROK President Rhee, Jan. 18, 1952, reprinted in id. at 531-32; see also id. at 1 184-86. 

66. Note, supra note 64; id. at 1 1 86. 

67. Daniel P. O'Connell, supra note 19, at 167. 

68. See, e.g., 2 Daniel P. O'Connell, supra note 11, at 1 109-10. 

69. See supra note 42. 

70. Douglas M. Johnston, The International Law of Fisheries: A Framework for Policy-Oriented 
Inquiries 217 (1965). 

71. Under UNCLOS, supra note 2, arts. 55-85, coastal states may assert rights to explore, exploit, 
conserve and manage natural resources of the exclusive economic zone (EEZ) and the continental shelf. Under 
UNCLOS, the EEZ may extend out to 200 nautical miles from territorial sea baselines, and the continental 
shelf extends outward to the same distance, with certain exceptions. There is a right of freedom of navigation 
in these waters. See generally NWP 9A, supra note 4, paras. 1.5.2, 1.6. 

72. James R. Boma, Troubled Waters Off the Land of the Morning Calm: A Job for the Fleet, 42 Nav. War 
Coll. Rev. 33, 39-40, 42-43 (No. 2, 1989); Choun Ho Park, The 50-Mile Military Boundary Zone of North 
Korea, 72 Am. J. Int'l L. 866, 873-75 (1988). 

73. G.A. Res. 377, U.N. Doc. A/1481 (1950), reprinted in 45 Am. J. Int'l L. Supp. 1 (1951). 

74. See U.N. Charter, arts. 10-11, 14; Jorge Castenada, Legal Effects of United Nations Resolutions 
81-116 (1969); Juraj Andrassy, Uniting for Peace, 50 Am. J. Int'l L. 563 (1956). 

75. See generally, 1-4 Rosalyn Higgins, United Nations Peacekeeping (1970); United Nations, The Blue 
Helmets: A Review of United Nations Peace-Keeping (1985). One early example was the General Assembly's 
non-binding call for an embargo on war materials and petroleum shipped to the PRC in 1951. By the end of 
1951, 40 Members and 6 non-Members had complied. Howard J. Taubenfeld, International Actions and 
Neutrality, 47 Am. J. Int'l L. 377, 393-94 (1953). 

76. G.A. Res. 2625, reprinted in 9 Int'l Legal Mat'ls 1292 (1970); G.A. Res. 3314, supra note 21. Nations 
have also negotiated similar statements of regional importance, such as the nonbinding Helsinki Accords of 
1975. See Conference on Security and Co-Operation in Europe, Final Act, Aug. 1, 1975, 73 Dep't State Bull. 
323 (1975), 14 Int'l Legal Mat'ls 1292 (1975). 

77. Statement of the President of the United States, June 27, 1950, 23 Dep't St. Bull. 5 (1950). James 
Cable, Gunboat Diplomacy 1919-1979, at 222 (2d ed., 1981) rates this operation as a "successful" use of 
gunboat diplomacy. Besides the Patrol, U.S. naval commanders warned their subordinates of the possibility 
of an attack "from across the Yellow Sea," a special antisubmarine patrol was established at Sasebo, Japan, there 
was an unconfirmed intelligence report that the USSR was planning an all-air attack on Japan, and on 
December 6 the U.S. Joint Chiefs of Staff "sent out a general alarm to American forces throughout the world." 
James A. Field, supra note 43, at 274. The United States also experimented with methodologies for intercepting 
a junk invasion fleet in 1951. Id. at 343-44. 

78. Statement of John Foster Dulles, U.S. U.N. Representative, Nov. 27, 1950, 23 Dep't St. Bull. 
990-91 (1950). 

79. President's Message to Congress, Feb. 2, 1953, 28 id. 207, 209 (1953). See also 4 Marjorie M. 
Whiteman, supra note 64, at 533-34. 

80. Mutual Defense Treaty, Dec. 2, 1954, China-US., 6 U.S.T. 433, T.I.A.S. No. 3178, 248 U.N.T.S. 
213. The treaty was denounced by the United States and is no longer in effect. See generally Goldwater v. 
Carter, 481 F. Supp. 949 (D.D.C. 1979), rev'd, 617 F.2d 697 (D.C. Cir. 1979), vacated, 444 U.S. 533 (1979). 

81. See, e.g., Agreement Relating to the Presence of U.S. Armed Forces in China, Aug. 29 & Sept. 3, 
1947, China-US., 61 Stat. 3755, T.I.A.S. No. 1715, 9 U.N.T.S. 91; Mutual Defense Agreement, Jan. 30 & 
Feb. 9, 1951, 2 U.S.T. 1499, T.I.A.S. No. 2293, 132 U.N.T.S. 273; Mutual Security Agreement, Dec. 29, 
1951 &Jan. 2, 1952, 3 id. 4543, T.I.A.S. No. 2604, 181 U.N.T.S. 161; Mutual Defense Assistance Agreement, 
Oct. 23 & Nov. 1, 1952, id. 5166, T.I.A.S. No. 2712, 184 U.N.T.S. 348. 

82. 10 Marjorie M. Whiteman, supra note 43, at 876, quoting Note from Chinese Ministry of Foreign 
Affairs to U.S. Embassy, Canton, June 30, 1949; U.S. Dep't of State press release, Nov. 30, 1949; Note from 
Chinese Nationalist Government to U.S. Consul General, Taipei, Dec. 12, 1949; Note from U.S. Embassy, 
Canton, to Minister of Foreign Affairs of China, Dec. 19, 1949; Note from U.S. Charge'd' Affaires to Chinese 
Foreign Minister, Mar. 13, 1950, 21 Dep't St. Bull. 34-35, 945 (1949), 22 id. 23-24, 406 (1950); Remarks of 
U.K. Foreign Minister Bevin to the House of Commons, 469 Pari. Deb., H.C. (5th ser.) 2015 (1949). 

83. Statement of the President of the United States, June 27, 1950, 23 Dep't St. Bull. 5 (1950). 

84. See generally, 4 Marjorie M. Whiteman, supra note 64, at 538-41. 

85. Id. at 541-42. 



Walker 197 

86. Bruce Swanson, Eighth Voyage of the Dragon 186 (1982), citing The Southeast China Coast Today, 
Off. Nav. Intell. Rev. 59 (Feb. 1953). 

87. James Cable, supra note 77, at 227. 

88. Id. at 228, 230. See also 1 Edwin B. Hooper et al, The United States Navy and the Vietnam Conflict 
357-59 (1976). 

89. Bruce Swanson, supra note 86, at 213. 

90. Ely Maurer, Legal Problems Regarding Formosa and the Offshore Islands, 39 Dep't St. Bull. 1005, 1011 
(1958), quoted in 4 Marjorie M. Whiteman, supra note 64, at 407. See also James Cable, supra note 77, at 235. 

91. Bruce Swanson, supra note 86, at 221. 

92. See supra notes 79-80 and accompanying text. 

93. See supra notes 11-39 and accompanying text. 

94. Hague Convention (XI) on Restrictions with Regard to Capture in Naval War, Oct. 18, 1907 
[hereinafter Hague XI], art. 3, 36 Stat. 2396, 2408-09, T.S. No. 544; The Pacquete Habana, 175 U.S. 677 
(1900); NWP 9A, supra note 4, para. 8.2.3, at 8-19 & n. 60. 

95. Robert W. Tucker, supra note 62, at 95-96. 

96. NWIP 10-2, supra note 57, para. 503(c)(6), citing, inter aha, Hague XI, supra note 62. NWIP 10-2 
continued as the U.S. Navy's manual for the law of naval warfare through a 1974 revision, id. at iii, and was 
the basis for the U.S. Air Force's 1976 view on the subject of exemptions from attack. U.S. Dep't of the Air 
Force, International Law - The Conduct of Armed Conflict and Air Operations: AFP 110-31, para. 4-4(c) 
(1976) which did add, however, that "[t]he extent to which this traditional immunity of merchant vessels, still 
formally recognized, will be observed in practice in future conflicts will depend upon the nature of the conflict, 
its intensity, the parties to the conflict and various geographical, political and military factors," before quoting 
NWIP 10-2 supra, para. 503(b)(3). 

97. 2 Lassa Oppenheim, International Law 477-78 (Hersh Lauterpacht ed., 1955). 

98. 2 id. at 462-71, 531-32; Robert W. Tucker, supra note 62, at 57-72; see also NWIP 10-2, supra note 
57, para. 503(a) (3), from which the list format was taken. 

99. NWIP 10-2, supra note 57, paras. 430(b), 520(a). 

100. Robert W. Tucker, supra note 62, at 359-422. 

101. Id. at299n.39. 

102. Id. at 276-77, 300, the latter citing NWIP 10-2, supra note 57, paras. 430(b), 520(a). 

103. 2 Lassa Oppenheim, supra note 97, at 278-83, 682-84, 807, 814-19, 862-68. 

104. According to Ratifications and Accessions to the Geneva Convention and /or the Additional Protocol between 
1.5.1991 and 29.2.1992, Dissemination (No. 17, Apr. 1992), 168 nations had become party to the 
Convention by February 2, 1992. 

105. Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked 
Members of Armed Forces at Sea, Aug. 12, 1949 [hereinafter GWSEA], art. 13(5), 6 U.S.T. 3217, 3228, 
T.I.A.S. No. 3363, 75 U.N.T.S. 85, 94. The protection of article 27 was new with the Convention. 2 Jean 
S. Pictet, The Geneva Conventions of 12 August 1949: Commentary 171 (1960). Daniel P. O'Connell, supra 
note 19, at 9, notes that this would be an issue as to wakes overturning fishing boats during the Vietnam War. 
See infra notes 226-32, 240-42, and accompanying text. 

106. Cf NWP 9A, supra note 4, para. 8.2.2.2. On the other hand, general World War II arming of 
merchant ships and orders to resist was interpreted as taking part in hostilities, which made crews liable to 
prisoner of war status. 2 Daniel P. O'Connell, supra note 11, at 1117. 

107. See supra note 1 and accompanying text. 

108. GWSEA, supra note 105, art. 27, 6 U.S.T. 3236, T.I.A.S. No. 3363, 75 U.N.T.S. 102. 

109. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, [hereinafter 

Genocide Convention], U.S.T. , T.I.A.S. No. , 78 U.N.T.S. 277. For a general history of the 

antecedents to human rights law, see Louis Henkin, supra note 19, at 228-31. 

110. E.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 4, 999 U.N.T.S. 
171, 174. For a general analysis, see Restatement (Third), supra note 1, Part VII (1988), which lists agreements 
and discusses the potential for application of them through state practice. See generally Myres S. McDougal et 
al., Human Rights and World Public Order (1980) for further analysis. See also Rifo E. Hauser, International 
Law and Basic Human Rights, Nav. War Coll. Rev. 51 (June 1971) and Louis B. Sohn, International Law and 
Basic Human Rights, id. 52 (Mar. 1970), noting the possibility of application of these norms in the maritime 
context. In early 1992 the U.S. Senate Committee on Foreign Relations recommended advice and consent 
for the Covenant, subject to five reservations, five understandings, four declarations, and one proviso. Senate 
Comm. on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Re,p. No. 
102-23, 102d Cong., 2d Sess. 1 (1992). On April 2, 1992, the U.S. Senate gave advice and consent to the 
Covenant, subject to the reservations, understandings, declarations and the proviso. 138 Cong. Rec. S 4781, 
S 4783-84 (1992). The ratification was deposited with the United Nations on June 8, 1992. 

111. Nicaragua Case, supra note 1 . 



1 98 Targeting Enemy Merchant Shipping 

112. One early judicial application of general principles of humanity was the Corfu Channel Case (U.K. 
v. Alb.), 1949 I.C.J. 4, 22, in which Albania was held liable for deaths of British navy people in 1947 when 
British warships, enforcing the right of freedom of navigation through the Strait of Corfu, were damaged or 
sunk by Albanian-laid mines in time of peace. Hague Convention (VIII) Relative to the Laying of Automatic 
Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332, T.S. No. 541, was not applicable because no armed 
conflict existed. The Nicaragua Case, supra note 1, found similar liability in 1986. The late Judge Baxter once 
lamented the unnecessary dichotomy between human rights law and the humanitarian law of armed conflict. 
George K. Walker, Tlie Law of Armed Conflict Fought in a Comparative Criminal Law Context, in 1 Touro J. 
Transnat'l L. 153 (1988). Future wars, and the laws and the inevitable claims resolution process flowing from 
them, may provide the confluence of these now-discrete bodies of law. On this point, see Gerard I. A.D. 
Draper, Human Rights and the Law of War, 12 Va. J. Int'l L. 326 (1972). 

113. Convention for the Protection of Cultural Property in the Event of Armed Conflict (With Final 
Protocol) [hereinafter 1954 Hague Cultural Property Convention], May 14, 1954, 249 U.N.T.S. 215, 358. 
Although the United States signed but has not ratified the Convention, it is in force for the former USSR and 
over 70 nations, many of whom have also ratified the Protocol. The United States is a party to the Roerich 
Pact, Apr. 15, 1935, 49 Stat. 3260, T.S. No. 899, 167 L.N.T.S. 279, however. See NWP 9A, supra note 4, 
at 1 1 -23, 1 1 -24 for a list of parties. 

114. Lyndel V. Prott, Commentary, in The Law of Naval Warfare, supra note 1, at 582. 

115. 1954 Hague Cultural Property Convention, supra note 113, arts. 12, 16, Regulations, arts. 1-4, 6, 
17, 249 U.N.T.S. 250, 252, 270-72, 284. 

116. Id. art. 13, 249 U.N.T.S. 250. 

117. Id. art. 14(1), 249 U.N.T.S. 252. 

118. Id. art. 14(2), 249 U.N.T.S. 252. For further analysis, see Prott, supra note 114, at 585. 

119. 1954 Hague Cultural Property Convention, supra note 113, arts. 4(2), 11(2), 249 U.N.T.S. 244, 
250. 

120. Id. arts. 9, 11(1), 249 U.N.T.S. 248. 

121. Id. art. 11(3), 249 U.N.T.S. 250. See also Lyndel V. Prott, supra note 114, at 585, 586 for further 
analysis. 

122. Over 70 nations have ratified the Convention, supra note 1 13, and the same points made at supra 
note 1 concerning a finding of customary law from the text of treaties apply, albeit with less vigor, since less 
than half the nations of the world have ratified the Convention. Over 70 states' ratifications do represent a 
very strong trend, however. 

123. See supra note 113. 

124. 1954 Hague Cultural Property Convention, supra note 113, arts. 18(2), 18(3), 249 U.N.T.S. 254-56. 

125. 3 Marjorie M. Whiteman, Digest of International Law 1088 (1964), citing official Egyptian sources. 

126. S.C. Res. 50, May 29, 1948, reprinted in Karel C. Wellens, supra note 42, at 421. The ceasefire had 
been invoked a week earlier. S.C. Res. 49, May 22, 1948, in id. 420. It continued in effect through 1957, 
with breaches by both sides, until armistice agreements were reached in 1957. Actions in breach of the armistice 
agreements also occurred. See S.C. Res. 54, July 15, 1948; S.C. Res. 56, Aug. 19, 1948; S.C. Res. 61, Nov. 
4, 1948; S.C. Res. 62, Nov. 16, 1948; S.C. Res. 66, Dec. 29, 1948; S.C. Res. 73, Aug. 11, 1949; S.C. Res 
89, Nov. 17, 1950; S.C. Res. 92, May 8, 1951; S.C. Res. 93, May 18, 1951; S.C. Res. 95, Sept. 1, 1951; 
S.C. Res. 101, Nov. 24, 1953; S.C. Res. 106, Mar. 29, 1955; S.C. Res. 107, Mar. 30, 1955; S.C. Res. 108, 
Sept. 8, 1955: S.C. Res. Ill, Jan. 19, 1956; S.C. Res. 113, Apr. 4, 1956; S.C. Res. 114, June 4, 1956; S.C. 
Res. 127, Jan. 22, 1958; S.C. Res. 162, Apr. 11, 1961; S.C. Res 171, Apr. 9, 1962; S.C. Res. 228, Nov. 25, 
1966, reprinted in id. 422-24. 

127. 3 Marjorie M. Whiteman, supra note 125, at 1088. 

128. Id. at 1089; Leo Gross, Passage Tltrough the Suez Canal of Israel- Bound Cargo and Israel Ships, 51 Am. 
J. Int'l L. 530, 533-34 (1957). S.C. Res. 101, Nov. 24, 1953, reprinted in Karel C. Wellens, supra note 42, at 
435-36, had condemned a retaliatory action by Israeli armed forces as a violation of the ceasefire approved by 
S.C. Res. 54, July 15, 1948, reprinted in id. at 422-23. 

129. The Hying Trader, 17 I.L.R. 440-41 (Prize Ct. Alexandria, Egypt, 1950). 

130. Id. at 440, 442-44, 447. 

131. Id. at 446; see also The Fjeld, 17 I.L.R. 345, 347 (Prize Ct. Alexandria, Egypt, 1950). 

132. Leo Gross, supra note 128, at 534-37, 543-52. 

133. See supra note 34 and accompanying text. 

134. 3 Marjorie M. Whiteman, supra note 125, at 1089, citing telegram of U.S. Department of State to 
the U.S. Embassy, Cairo, Aug. 7, 1950; dispatch of U.S. Embassy, Cairo, to U.S. Department of State, Sept. 
2, 1950; see also Leo Gross, supra note 128, at 538. 

135. Daniel P. O'Connell, supra note 19, at 112. See also 3 Marjorie M. Whiteman, supra note 125, at 
1089-90, quoting remarks of Herbert Morrison, Secretary of State for Foreign Affairs to the U.K. House of 
Commons, Mar. 21, 1951, 485 Pari. Deb., H.C. (5th ser.) 2404 (1951). 



Walker 199 

136. Daniel P. O'Connell, supra note 19, at 112. 

137. 3 Marjorie M. Whiteman, supra note 118, at 1090, 1095. 

138. James Cable, supra note 77, at 228-29. British warships had sought, often unsuccessfully, to intercept 
immigrants to what became Israel in 1947, and three U.S. destroyers had the "impossible" task of assisting 
Count Folke Bernadotte in maintaining peace between Israelis and Arabs in 1948, but they did succeed in 
evacuating the U.N. team from Haifa in July 1948. Id. at 225-26. 

139. See 3 Marjorie M. Whiteman, supra note 125, at 1090. 

140. S.C. Res. 75, Sept. 1, 1951, reprinted in 3 Marjorie M. Whiteman, supra note 125, at 1091-92. 

141. News conference remarks by Secretary of State Dulles, Feb. 5, 1957, 36 Dep't St. Bull. 306 (1957). 

142. See generally 3 Marjorie M. Whiteman, supra note 125, at 1092-94; Leo Gross, supra note 128, at 
538-40, 559. 

143. 3 Marjorie M. Whiteman, supra note 125, at 1092; Gross, supra note 125, at 561. 

144. Daniel P. O'Connell, supra note 19, at 112; see also Charles B. Selak, Jr., A Consideration of the Legal 
Status of the GulfofAqaba, 52 Am. J. Int'l L. 660 (1958). The omission generated a spirited debate that spilled 
over into the negotiations for what became the 1958 law of the sea conventions, infra notes 174-82, as to 
whether the Gulf of Aqaba was part of the open seas for freedom of navigation. Although the Arab states 
argued that the Gulf was a closed sea, the prevailing view was that the Gulf was open to navigation by all 
states, including Israel, whose port of Eilat is at the northern end. See generally Charles B. Selak, Jr., A 
Consideration of the Legal Status of the Gulf of Aqaba, 52 Am. J. Int'l L. 660 (1958); Alexander Melamid, Legal 
Status of the Gulf of Aqaba, 53 id. 412 (1959); Leo Gross, The Geneva Conference on the Law of the Sea and the 
Right of Innocent Passage Through the Gulf of Aqaba, id. 565 (1959). 

145. See generally 3 Marjorie M. Whiteman, supra note 125, at 1097-1 130. The Treaty of Constantinople, 
Oct. 22, 1888, arts. 1-7, reprinted in 3 John Basset Moore, A Digest of International Law 264-65 (1906), 
provides for use of the Canal in peace and war, to all shipping, including belligerents' warships. The Canal 
cannot be blockaded, belligerents' warships are limited in their visits and may not be stationed off the access 
ports, and belligerent warships must follow opponents through the Canal at 24-hour intervals. Charles B. 
Selak, Jr., The Suez Canal Base Agreement of 1954, 49 Am. J. Int'l L. 487, 488-91 (1955) describes how the 
Canal had been subject to an international regime, "although its status appear[ed] to fall short of neutralization, 
since the convention provides that it is open to warships, even in wartime." See also 3 James B. Moore, supra 
at 267, who says flady that the Convention does not neutralize the Canal, a position with which other authors 
agree. Charles B. Selak, Jr., supra at 491 n. 21. The 1954 agreement was abrogated on January 1, 1957, but 
Egypt reaffirmed the terms of the Constantinople Convention April 24, 1957. Egyptian Presidential Decree 
Abrogating 1954 Agreement with the United Kingdom, Jan. 1, 1957, 51 Am. J. Int'l L. 672 (1957); Egyptian 
Declaration on the Suez Canal, Apr. 24, 1957, art. 1, id. at 673. 

146. James Cable, supra note 77, at 233-38; 1 Edwin B. Hooper et al., supra note 88, at 351. 

147. Wolff von Heinegg, Visit, Search, Diversion and Capture: Conditions of Applicability 28-29 (1991), report 
presented to the Round Table of Experts on International Humanitarian Law Applicable to Armed Conflicts 
at Sea, Bergen, Norway, Sept. 20-24, 1991. It is expected that the substance of this report will be published 
in the 1992 Canadian Yearbook of International Law. Wolff von Heinegg, Visit, Search, Diversion and Capture 
in Naval Warfare: Part I, The Traditional Law, 1991 Can. Y.B. Int'l L. 183, 329. Dr. von Heinegg cites, e.g., 
these cases for the propositions that follow them: The Zamalek, 6 Rev. Egypt. D. Int'l 212, 213 (Egypt Prize 
Ct. 1950), neutral cargo bound for neutral ports released; The Captain Manoli, 28 I.L.R. 661, 664 (Egypt 
Prize Ct. 1959), citing C.John Colombos, A Treatise on The Law of Prize 212-19 (4th ed. 1949), if neutral 
vessel is in the service of belligerents, it loses neutral status and therefore is considered an enemy ship on enemy 
service; The Arsia, 6 Rev. Egypt. D. Int'l 220, 224-25 (Egypt Prize Ct. 1949), enemy destination rules from 
U.K. practice followed, citing, e.g., The Marie Glaeser, 1914 P. 218, 238-39 (Adm., Prize Ct.); use ofblacklists, 
supra note 129 and accompanying text, The Derwenthall, 6 Rev. Egypt. D. Int'l 218, 219 (Egypt Prize Ct. 
1949); The Inge Toft, 31 I.L.R. 510 (United Arab Repub. Prize Ct. 1960), tracing effective Israeli ownership 
of charterer and consignees; The Hough de Vries, 17 id. AA1 (Egypt Prize Ct. 1950), broad construction of 
contraband. 

148. S.C. Res. 95, UN. Doc. S/RES/95, reprinted in Karel C. Wellens, supra note 42, at 433-34; The 
Inge Toft, 31 I.L.R. at 512-15. Part of the Toft court's rationale was a finding in Navios Corp. v. The Ulysses 
II, 161 F. Supp. 932, 934-43 (D. Md. 1958), aff d per curiam, 260 F.2d 959 (4th Cir. 1958), of the existence 
of a state of war, demonstrating how a decision in a private-party suit can have public-order ramifications 
when injected into prize court jurisprudence. 

149. The Inge Toft, 31 I.L.R. at 512-15; The Lea Lott, 28 id. 652, 653-56 (United Arab Repub. Prize 
Ct. 1959), which approved a seizure without any mention of aggression and therefore breach of the armistice. 

150. See supra note 45 and accompanying text. 

151. The Inge Toft, 31 I.L.R. at 518. 

152. Cf Natalino Ronzitti, supra note 1, at 4-5. 

153. Leo Gross, supra note 121, at 539-41. 



200 Targeting Enemy Merchant Shipping 

154. Compare id. with, e.g., NWP 9A, supra note 4, para. 4.3.2. 

155. Leo Gross, supra note 128, at 552-54. 

156. See supra note 140 and accompanying text. Similarly, the Council declared in 1956 that "[t]here 
should be free and open transit through the Canal without discrimination, overt or covert — this covers both 
political and technical aspects [and] . . .[t]he operation of the Canal should be insulated from the politics of 
any country[.]" S.C. Res. 118, U.N. Doc. S/Res/1 18 (1958), reprinted in Karel C. Wellens, supra note 42, at 
22. This action was taken when Egypt nationalized the Suez Canal Company and the Canal's freedom and 
security was threatened. 

157. Chaim Herzog, The War of Atonement: October, 1973, at 263-64 (1975). 

158. James Cable, supra note 77, at 244; James Ennes, Assault on the Liberty (1980); Walter L. Jacobsen, 
A Juridical Examination of the Israeli Attack on the Liberty, 36 Nav. L. Rev. 1 (1986). 

159. Bernard H. Oxman, The Regime of Warships Under the United Nations Convention on the Law of the Sea, 
24 Va. J. Int'l L. 809 (1984) thoroughly analyzes the issue and notes that UNCLOS represents little change 
in the prior law. The High Seas Convention, supra note 20, art. 8, 13 U.S.T. at 2315, T.I.A.S. No. 5200, 450 
U.N.T.S. at 86; and UNCLOS, supra note 2, art. 29, define warships, and Liberty clearly matched these 
traditional requirements. The case of the U.S.S. Pueblo, seized by North Korea at about the same time, was 
similar, except that it was asserted that Pueblo was in North Korean territorial waters as distinguished from an 
announced security zone. Compare Press Statement by Secretary of State Dean Rusk, Dec. 22, 1969, with North 
Korean Document Signed by U.S. at Panmunjom, 60 Dep't St. Bull. 2 (1969); Panel, The Pueblo Seizure: Facts, 
Law, Policy, 1969 Proc. Am. Soc'y Int'l L. 1 (1969). Although it is debatable whether Pueblo was ever in 
North Korean territorial waters as asserted by that state, the sole remedy against a warship engaged in territorial 
seas passage that is not innocent is to require the warship to leave. Convention on the Territorial Sea and 
Contiguous Zone, Apr. 29, 1958 [hereinafter Territorial Sea Convention], arts. 14, 23, 15 U.S.T. 1606, 1610, 
1612, T.I.A.S. No. 5639, 516 U.N.T.S. 205, 214, 220; UNCLOS, supra, arts. 17, 19, 30. 

160. S.C. Res. 242, para. 2(a), U.N. Doc. 8/RES/242/(1967), reprinted in Karel C. Wellens, supra note 
42, at 454. 

161. Daniel P. O'Connell, supra note 19, at 1 12, had similarly criticized a 1951 Council resolution. See 
supra note 1 44 and accompanying text. 

162. Wolff von Heinegg, supra note 147, at 29. Denied overflight routes because of the contemporaneous 
Organization of Petroleum Exporting Countries oil embargo threat, the United States resupplied Israel by air. 
James Cable, supra note 77, at 21, 250-51. 

163. Daniel P. O'Connell, supra note 19, at 101-03; see also James Cable, supra note 77, at 20. 

164. Chaim Herzog, supra note 157, at 266-69. 

165. Supra note 145. 

166. Treaty of Peace, Mar. 26, 1979, Egypt - Israel, art. 5, 18 Int'l Legal Mat'ls 362, 365 (1979). The 
U.S. Navy had assisted in Canal clearance operations in 1974-75. See generally Arthur W. Rovine, Digest of 
United States Practice in International Law 1974, at 352-54 (1975); Eleaner C. McDowell, id. 1975, at 433-34 
(1976). For a debate on the Treaty, compare Mohamad El Baradei, The Egyptian- Israeli Peace Treaty and Access 
to the GulfofAqaba: A New Legal Regime, 76 Am. J. Int'l L. 532 (1982) with Ruth Lapidoth, The Strait ofTiran, 
the GulfofAqaba, and the 1979 Treaty of Peace Between Egypt and Israel, 77 id. (1983). 

167. Protocol Concerning Relations of the Parties, Annex III to Treaty of Peace, Mar. 26, 1979, 
Egypt-Israel, art. 8, 18 Int'l Legal Mat'ls 391. 

168. 1 Anthony H. Cordesman & Abraham R. Wagner, The Lessons of Modern War 104-08 (1990); 
Chaim Herzog, supra note 157 at 263-69. 

169. 1 Anthony H. Cordesman & Abraham R. Wagner, supra note 168, at 216, citing Richard A. Gabriel, 
Operation Peace for Galilee 142, 148 (1984). 

170. See supra notes 125-37, 162-64, 168-69 and accompanying text. 

171. See supra note 165 and accompanying text. See also supra notes 138-45 and accompanying text. 

172. See supra note 157 and accompanying text. 

173. See supra note 158 and accompanying text. 

174. Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 
U.N.T.S. 311; Convention on Fisheries and Conservation of the Living Resources of the High Seas, Apr. 
29, 1958 [hereinafter 1958 Fisheries and Conservation Convention], 17 U.S.T. 138, T.I.A.S. No. 5969, 559 
U.N.T.S. 285; Territorial Sea convention, supra note 159, 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 
205; 1958 High Seas Convention, supra note 20. 

175. NWP 9A, supra note 4, para. 1.1, at 1-2 n.4. 

176. 1958 High Seas Convention, supra note 20, art. 2, 13 U.S.T. 2314, T.I.A.S. No. 5200, 450 U.N.T.S. 
82-84. See Francis V. Russo, Jr., Neutrality at Sea in Transition: Slate Practice in the Gulf War as Emerging 
International Customary Law, 19 Ocean Devel. & Int'l L. 381, 384 (1988) for the point that the law of the sea, 
as partly stated in the High Seas Convention and other agreements, exists alongside the law of naval warfare 
and other applicable rules of international law. This view is confirmed by the commentary of the International 



Walker 201 

Law Commission (ILC) on the Vienna Convention on the Law of Treaties, May 23, 1969, art. 73, 1155 
U.N.T.S. 331, 350, in Report of the Commission to the General Assembly, U.N. Doc. A/6309/Rev. 1 (1966) 
[hereinafter ILC Report], reprinted in 1966(2) Y.B. Int'l L. Comm'n 267-68: 

Different considerations appeared to the Commission to apply to the case of an outbreak of 
hostilities between parties to a treaty. It recognized that the state of facts resulting from an outbreak of 
hostilities may have the practical effect of preventing the application of the treaty in the circumstances 
prevailing. It also recognized that questions may arise as to the legal consequences of an outbreak of 
hostilities with respect to obligations arising from treaties. But it considered that in the international 
law of today the outbreak of hostilities between States must be considered as an entirely abnormal 
condition, and that the rules governing its legal consequences should not be regarded as forming part 
of the general rules of international law applicable in the normal relations between States. Thus, the 
Geneva Conventions codifying the law of the sea contain no reservation in regard to the case of an 
outbreak of hostilities notwithstanding the obvious impact which such an event may have on the 
application of many positions of those Conventions; nor do they purport in any way to regulate the 
consequences of such an event. It is true that one article in the Vienna Convention on Diplomatic Relations 
(article 44) and a similar article in the Convention on Consular Relations (article 26) contain a reference 
to cases of "armed conflict." Very special considerations, however, dictated the mention of cases of 
armed conflict in those articles and then only to underline that the rules laid down in the articles hold 
good even in such cases. The Vienna Conventions do not otherwise purport to regulate the 
consequences of an outbreak of hostilities; nor do they contain any general reservation with regard to 
the effect of that event on the application of their provisions. Accordingly, the Commission concluded 
that it was justified in considering the case of an outbreak of hostilities between parties to a treaty to 
be wholly outside the scope of the general law of treaties to be codified in the present articles; and that 
no account should be taken of that case or any mention made of it in the draft articles, (emphasis 
added). 

The ILC was established in 1947 by U.N. General Assembly resolution. Its 25 members, all distinguished 
scholars, are representative of the world community and are elected by the Assembly on the basis of government 
nominations. The view of Herbert W. Briggs, then the U.S. member, coincided with the ILC position; other 
sources must be examined in conflict situations. Herbert W. Briggs, Unilateral Denunciation of Treaties: The 
Vienna Convention and the International Court of Justice, 68 Am. J. Int'l L. 51 (1974). 

177. Territorial Sea Convention, supra note 159, art. 24(1), 15 U.S.T. at 1612, T.I.A.S. No. 5639, 516 
U.N.T.S. at 220; Frederick C. Leiner, Maritime Security Zones: Prohibited Yet Perpetuated, 24 Va. J. Int'l L. 967, 
980-81 (1984). The assertion contained in Id. at 980 that the 1958 conventions "conclusively rejected the 
legality of peacetime maritime security zones" is not correct. As Bernard H. Oxman, supra note 159, at 811, 
demonstrates for UNCLOS, supra note 2, and by inference for the 1958 Convention these agreements are 
concerned with peacetime uses of the seas but are subject to other bodies of international law, e.g., the law of 
maritime warfare. A security zone is a feature of the latter, and as will be developed infra, is lawful so long as 
it is necessary and proportional for its purposes under the law of self-defense. 

178. 1958 High Seas Convention, supra note 20, arts. 4-5, 13 U.S.T. 2315, T.I.A.S. No. 5200, 450 
U.N.T.S. 84-85. Scholars had debated the approach, derived from the Nottebohm Case (Liech. v. Guat.), 
1955 I.C.J. 4. See, e.g., Myres S. McDougal et al, The Maintenance of Public Order at Sea and the Nationality of 
Ships, 54 Am. J. Int'l L. 25, 114-16 (1960) (vehemently opposed), citing Philip C. Jessup, The United Nations 
Conference on the Law of the Sea, 59 Colum. L. Rev. 234, 256 (1959); A.D. Watts, The Protection of Merchant 
Ships, 33 Brit. Y.B. Int'l L. 52, 84 (1957) (favoring the concept). Paradoxically, the World Court chose a more 
traditional concept for corporations in the Case Concerning the Barcelona Traction, Light & Power Co. (Belg. 
v. Spain), 1970 I.C.J. 3, analyzed in Herbert W. Briggs, Barcelona Traction: The Jus Standi of Belgium, 65 Am. 
J. Int'l L. 327 (1971). The "genuine link" debate persists. See infra notes 183, 198, 308-13, 328-29, 374, 441, 
465 and accompanying text. 

179. See generally Boleslaw A. Boczek, Flags of Convenience: An International Legal Study (1962), 
updated by Rodney P. Carlisle, Sovereignty for Sale: The Origins and Evolution of the Panamanian and 
Liberian Flags of Convenience (1981). 

180. 1958 High Seas Convention, supra note 20, arts. 8-9, 13 U.S.T. 2315, T.I.A.S. No. 5200, 450 
U.N.T.S. 86. 

181. Id. arts. 24-25, 13 U.S.T. 2319, T.I.A.S. No. 5200, 450 U.N.T.S. 96. 

182. 1958 Fisheries and Conservation Convention, supra note 174, arts. 1-2, 17 U.S.T. 140, T.I.A.S. No. 
5969, 559 U.N.T.S. 286-88. 

183. Restatement (Second), Foreign Relations Law of the United States § 28 (1965). 

184. But cf. id. § 64. 



202 Targeting Enemy Merchant Shipping 

185. Rudigar Wolfrum, Reflagging and Escort Operation in the Persian Gulf: An International Law Perspective, 
29 Va. J. Int'l L. 386, 391-92 (1989) [hereinafter Rudigar Wolfrum], citing Constitution of the Maritime Safety 
Comm. of the Inter-gov'tal Mark. Consultative Org., 1960 I.C.J. 150, 170. 

186. Rudigar Wolfrum,"5Mpra note 176, at 393. 

187. Myres S. McDougal & Florentino P. Feliciano, supra note 18, at 587-96. 

188. Ross Leckow, The Iran-Iraq Conflict in the Gulf: The Law of War Zones, 37 Int'l & Comp. L. Q. 629, 
635 n.27 (1988), citing Myres S. McDougal & Forentino P. Feliciano, supra note 18, at 494, which is part of 
the authors' discussion of neutrality. 

189. Myres S. McDougal & Florentino P. Feliciano, supra note 18, at 587-96, which is part of their chapter 
on combat situations, e.g., "regions of war" or "theaters of war." Cf id. at 568-72, which is more concerned 
with land warfare and areas excluded from attack. 

190. Compare id. at 501-09 with id. at 597. 

191. C.John Colombos, The International Law of the Sea 548-55, 559-60, 586-626 (1967). 

192. Id. at 695-99, 786-94. 

193. Id. at 528-31. 

194. NWIP 10-2, supra note 57, para. 503(b)(3), discussed supra note 57 and accompanying text. 

195. W. Thomas Mallison, Studies in the Law of Naval Warfare: Submarines in General and Limited War 
106-29 (1968). 

196. See id. at 55-56, 89-90, 93, 129-30. 

197. Myres S. McDougal & William T. Burke, The Public Order of the Oceans 805 (1962). 

198. Id. at 1035. See also supra notes 178, 183 and accompanying text. 

199. 2 Daniel P. O'Connell, supra note 1 1, at 805-06. 

200. Id., citing inter alia Daniel P. O'Connell, supra note 19, at 123 and Daniel P. O'Connell, International 
Law and Contemporary Naval Operations, 44 Brit. Y.B. Int'l L. 18, 36 (1970); Wolff von Heinegg, supra note 
147, at 34; 4 Marjorie M. Whiteman, supra note 64, at 513-14, reprinting telegram of U.S. Ambassador to 
France Amory Houghten to Secretary of State Dulles, Jan. 26, 1958; telegram of the U.S. Embassy, Paris, to 
Secretary Dulles, Nov. 6, 1959; Christian Science Monitor, Dec. 28, 1960, at 2. See also Note, Interference with 
Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction, 22 Vand. 
J. Transnat'l L. 1161, 1218 (1989); Anna van Zwanenberg, Interference with Ships on the High Seas, 10 Int'l & 
Comp. L.Q. 785, 791 (1961). 

201. Daniel P. O'Connell, supra note 200, at 38-39. 

202. Wolff von Heinegg, supra note 147, at 34. 

203. 10 Keesing's Contemporary Archives 15277 (1956); 11 id. 16080, 16184 (1958). 

204. In 1958 Iceland unilaterally extended her exclusive fishing zone limit from 4 to 12 miles. Regulations 
Concerning the Fishing Limits Off Iceland, June 30, 1958, quoted in 4 Marjorie M. Whiteman, supra note 64, at 
1 157-58. A seven-nation conference, including Britain, protested and announced they would continue to fish in 
the eight-mile belt. Britain had announced it would send armed escorts to protect U.K. trawlers, if necessary, 
on July 4. Id. at 1 160, quoting N.Y. Times, July 21, 1958, at 12. The Royal Navy began to intervene to protect 
trawlers and their crews, although other states' trawlers remained outside the 12-mile limit. Icelandic Ministry for 
Foreign Affairs, British Aggression in Icelandic Waters 5-13 (June 1959), quoted in 4 Marjorie M. Whiteman, supra 
at 1163-69. British trawler owners voluntarily withdrew from the disputed area in 1960, pending the 
then-ongoing Geneva Conference on the Law of the Sea. Id. at 1174, citing dispatch of the U.S. Embassy, 
London, to U.S. Department of State, Apr. 29, 1960, and N.Y. Times, May 13, 1960, at 3, and id., Aug. 12, 
1960, at 2. The Conference broke up in disagreement over the breadth of the territorial sea. See Robert D. 
Powers & Leonard R. Hardy, How Wide the Territorial Sea? in Carl M. Franklin, The Law of the Sea: Some 
Recent Developments 304 (1961). The dispute was resolved in 1961 by Exchange of Notes Between Great 
Britain and Iceland, Mar. 11, 1961, 397 U.N.T.S. 275. In 1972 Iceland asserted a 50-mile fishing zone, assault on 
British and German trawlers began, and Britain filed suit against Iceland in the International Court of Justice, 
which indicated interim measures and ultimately held that Iceland could not unilaterally exclude Great Britain 
from historic fishing waters. The litigants were admonished to negotiate differences. Fisheries Jurisdiction Case (U.K. 
v. Ice.), 1972 I.C.J. 12 (request for interim measures); 1973 I.C.J. 3; 1974 I.C.J. 4 (merits); James Cable, supra note 
77, at 249-50. The U.S. reaction to similar seizures, occurring primarily off the west coast of Latin America and 
in the Gulf of Mexico by nations claiming territorial seas or economic zones in excess of those claimed by the 
United States, was an insurance compensation system to secure release of crews and boats, coupled with 
diplomatic protests. Theodor Meron, The Fisherman's Protective Act: A Case Study in Contemporary Legal Strategy 
of the United States, 69 Am. J. Int'l L. 290 (1975). Although the Act is still on the books, 22 U.S.C. §§ 1971-80 
(1980), its efficacy has been limited by the broader view the United States has taken today of offshore 
jurisdictional claims, e.g., for the EEZ through the Fisheries Conservation and Management Act, 16 U.S.C. 
§§ 1801-82 (1988, Supp. II 1990), unless the seizure otherwise violates international law as recognized by the 
United States. There is a further proviso, however, that would appear to broaden the Protective Act's coverage. 



Walker 203 

See Steven J. Burton, The 1976 Amendments to the Fishermen's Protective Act, 71 Am. J. Int'l L. 740 (1977). For 
other more explosive confrontations with fishing vessels, *ee Daniel P. O'Connell, supra note 200, at 73-75. 

205. Proclamation No. 3504, 3 C.F.R. 232 (1959-1963), referring to S.J. Res. 230, Pub. L. No. 87-733, 76 
Stat. 697 and an October 23, 1962 resolution passed under the Inter-American Treaty of Reciprocal Assistance (Rio 
Treaty), Sept. 2, 1947, arts. 6, 8, 62 Stat. 1681, 1701, T.I.A.S. No. 1838, 21 U.N.J.S. 77, 97, 99. For 
commentator analysis, see generally Abram Chayes, The Cuban Missile Crisis (1974); Robert A. Divine, The 
Cuban Missile Crisis (1971); Louis Henkin, supra note 19, at 279-302. Robert F. Kennedy, Thirteen Days: A 
Memoir of the Cuban Missile Crisis (1969); 10 Marjorie M. Whiteman, supra note 43, at 8-20, 874 (1968); 
Abram Chayes, Law and the Quarantine of Cuba, 41 Foreign Aff. 550 (1963); Carl Q. Christol & C.R. Davis, 
Maritime Quarantine: The Naval Interdiction of Offensive Weapons and Associated Material to Cuba, 56 Am. J. Int'l L. 
525, 527 (1963); W. Thomas Mallison, Limited Naval Blockade or Quarantine - Interdiction: National and Collective 
Defense Claims Valid under International Law, 31 Geo. Wash. L. Rev. 355, 387-88 (1962); Sally V. Mallison & 
W. Thomas Mallison, A Survey of the International Law of Naval Blockade, 102 U.S. Nav. Inst. Proc. 44, 49-50 (No. 
2, 1976); Brunson MacChesney, Some Comments on the "Quarantine" of Cuba, 57 Am. J. Int'l L. 592, 593 
(1963); Joseph B. McDevitt, The UN Charter and the Cuban Quarantine, 17 JAG J. 71 (1963); Myres S. 
McDougal, 77ie Soviet-Cuban Quarantine and Self-Defense, 57 Am. J. Int'l L. 557 (1963); John H. McNeill, 
Neutral Rights and Maritime Sanctions: The Effects of Two Wars, 31 Va. J. Int'l L. 631, 633 (1991); Leonard C. 
Meeker, Defensive Quarantine and the Law, 57 Am. J. Int'l L. 515 (1963); William O. Miller, Collective Intervention 
and the Law of the Charter, Nav. War Coll. Rev. 71 (Apr. 1970); William O. Miller, Law of Naval Warfare, id. 
35 (Feb. 1972); Covey T. Oliver, International Law and the Quarantine of Cuba: A Hopeful Prescription for Legal 
Writing, 57 Am. J. Int'l L. 373 (1963); Quincy Wright, The Cuban Quarantine, id. 546, 554-56 (1963). 

206. E.g., Vaughan Lowe, supra note 19, art. 128, 137 referring to Nicaragua Case, supra note 1, which 
held, inter alia, that a customary right of self-defense existed alongside those rights articulated in the U.N. 
Charter, art. 51 , but that the United States was not entitled to rely on collective self-defense because Nicaragua's 
providing rebels in El Salvador with arms or logistical or other support was not an "armed attack," so that the 
right of self-defense was not triggered. 1986 I.C.J, at 94-100, 103-05, citing, inter alia, the Rio Treaty, supra 
note 205, art. 3, 62 Stat, at 1700, T.I.A.S. No. 1838, 21 U.N.T.S. at 95-97, which articulates the inherent 
right of self-defense of U.N. Charter, art. 51. The quarantine response was under article 6 and 8, which 
involved "aggression . . . not an armed attack." 

207. S.C. Res. 216, 217, U.N. Docs. S/RES/216, 217 (1965), reprinted in 5 Int'l Legal Mat'ls 167-68 
(1966). 

208. Daniel P. O'Connell, supra note 19, at 174-75, referring to S.C. Res. 221, U.N. Doc. S/RES/221 
(1965), reprinted in 5 Int'l Legal Mat'ls 534 (1966). See also)ime$ Cable, supra note 77, at 123-26; Daniel P. 
O'Connell, supra at 137-38. The United States generally complied. Exec. Order No. 11322, 3 C.F.R. 243 
(1967 Compil.). Congress made an exception for Rhodesian chrome ore exports to the United States. See 
Diggs v. Shultz, 470 F.2d 461, 465-67 (D.C. Cir.), cert, denied, 411 U.S. 931 (1972). The chrome ore exception 
was removed by 1977 legislation. See 22 U.S.C. § 287c (1988) and Act of Mar. 18, 1977, 91 Stat. 22. 

209. 16 Keesing's Contemporary Archives 22525 (1968). 

210. See, e.g., S.C. Res. 232, U.N. Doc S/RES/232 (1966) and S.C. Res. 253, U.N. Doc. S/RES/253 
(1968), terminated by S.C. Res. 460, U.N. Doc. S/RES/460 (1979), reprinted in Karel C. Wellens, supra note 
42, at 84-89, 104-05. 

21 1. See infra notes 569-73 and accompanying text. 

212. See supra notes 89, 92-93, infra notes 373-77, 399, 425-27, and accompanying text. 

213. Cf. U.N. Charter, art. 42. See also NWP 9A, supra note 4, paras. 4.3.2, 7.7, and infra note 229 and 
accompanying text. 

214. See supra note 45 and accompanying text. 

215. Government of Pakistan v. R.S.N. Co., Ltd., 40 I.L.R. 472 (High Ct. of Dacca, Pakistan, 
1965). 

216. See generally P. Sharma, The In do- Pakistan Maritime Conflict, 1965: A Legal Appraisal (1970). For an 
abbreviated discussion of Charter issues, see supra notes 1 1-32 and accompanying text. The Indian Navy effort 
during the Goa campaign of the early sixties was "confined to territorial waters." D. K. Palit, The Lightning 
Campaign: The Indo-Pakistan War 1971, at 145 (1972). Goa generated heated debate in the U.N. Security 
Council and a World Court decision that in effect supported India's occupation of the Portuguese enclave. 
See Status of Goa, 16 U.N. SCOR (987th mtg) at 10-11, 16; id. (988th mtg.) at 7-8; Case Concerning Right of 
Passage Over Indian Territory (Port. v. India), 1960 I.C.J. 6. The initial Pakistani list of absolute contraband 
included: 

(a) All kinds of arms, ammunitions and explosives, and all kinds of materials or appliances suitable 
for use in chemical, biological or atomic warfare; machines for the manufacture or repair of any of the 
foregoing; component parts thereof, articles necessary or convenient for their use; materials or 



204 Targeting Enemy Merchant Shipping 

ingredients used in their manufacture; articles necessary or convenient for the production or use of 
such materials or ingredients. 

(b) Fuel of all kinds; all contrivances for, or means of, transportation on land, in water or air, 
and machines used in their manufacture or repair, component parts thereof; instruments, articles 
and animals necessary or convenient for their use; materials or ingredients used in their 
manufacture, articles necessary or convenient for the production or use of such materials or 
ingredients. 

(c) All means of communication, tools, implements, instruments, equipment, maps, pictures, 
papers and other articles, machines, or documents necessary or convenient for carrying on hostile 
operations; articles necessary or convenient for their manufacture or use. 

(d) Precious metals and objects made thereof, coin bullion, currency, evidence of debts, deben- 
tures, bonds, coupons, materials, dies, plates, machinery, or other articles necessary or convenient for 
their production, manufacture. 

Schedule II on conditional contraband comprised: 

All kinds of food, foodstuffs, feed, forage and clothing and manufactured textile products; tobacco, 
articles and material necessary or convenient for their production, manufacture or use. 

A later list did not distinguish between absolute and conditional contraband: 

(a) All kinds of arms and ammunitions and explosives; their components and ingredients, 
radio-active materials. 

(b) Crude oil and fuel and lubricants of all kinds. 

(c) All means of transportation on land, in water or air, and components thereof. 

(d) Electronics and telecommunication equipment. 

(e) Optical equipment specially designed for military use. 

(f) Precious metals and objects made thereof, coin bullion, currency, evidence of debts, debentures, 
bonds, coupons, stocks, and shares or any negotiable or marketable security; precious or semi-precious 
stones, jewels. 

Wolff von Heinegg, supra note 147, at 30, citing All Pak. Legal Decisions 437, 472 (1965). In September 1965 
India copied the initial Pakistani list of absolute contraband. No list was officially ratified. Wolff von Heinegg, 
supra, at 30. 

217. 15 Keesing's Contemporary Archives 21327 (1966). 

218. Panel, supra note 19, at 171 (Remarks by Professor Lagoni), referring to U.N. General Assembly 
Resolution 2162 of Dec. 5, 1966. 

219. See supra notes 73-76 and accompanying text. 

220. A U.S. naval task force, sent to facilitate evacuation of U.S. nationals from Bangladesh, arrived 
after hostilities were over. D. K. Palit, supra note 216, at 144-50; Wolff von Heinegg, supra note 
147, at 31. Both belligerents published contraband lists, including materials traditionally considered absolute 
contraband. NWP 9A, supra note 4, para. 7.4.1, at 7.25 n. 98, citing Belligerent Interference with Neutral 
Commerce, in Contemporary Practice of the United States Relating to International Law, 66 Am. J. Int'l L. 
386-87 (1972). Pakistan issued a contraband list almost identical with that of 1965, supra note 216, with these 
additions: 

(g) Implements and apparatus for manufacture or repair of all types of military hardware equipment. 

(h) All other types of goods and equipment, and parts and accessories thereof, that can be used or 
may assist in the conduct of war. 

See supra note 216. 



Walker 205 

India transmitted this contraband list to the New Delhi diplomatic community: 

1. arms of all kinds, including arms for sporting purposes, and their distinctive component parts, 

2. projectiles, charges, and cartridges of all kinds, and their distinctive component parts, 

3. powder and explosives specially prepared for use in war, 

4. gunmountings, limber boxes, limbers, military wagons, file forges, and their distinctive 
component parts, 

5. clothing and equipment of a distinctively military character, 

6. all kinds of harness of a distinctively military character, 

7. saddle, draught, and pack animals suitable for use in war, 

8. armour plates, 

10. warships, including boats, and their distinctive component parts of such nature that they can 
only be used on a vessel of war, 

1 1 . aeroplanes, airships, balloons, and aircraft of all kinds and their component parts, together with 
accessories and articles recognizable as intended for use in connection with balloons and aircraft, 

1 2. implements and apparatus designed exclusively for the manufacture of war, for the manufacture 
or repair of arms, or war material for use on land and sea, 

13. surface to surface missiles, surface to air missiles, air to surface rockets and guided missiles and 
warheads for any of the above weapons, mechanical or electronic equipment to support or operate the 
above items, 

14. any other class of materials or items as may assist the army in the prosecution of the armed 
conflict against the Union of India. 

Eight Indian ports were declared subject to control on December 8, and on December 15, 1971 the Bengal 
Chamber of Commerce advised neutral shipping it would not risk attack in the Bay of Bengal if these 
instructions were obeyed: 

(a) No ship should approach Sandheads to a distance less than 40 miles between dusk and dawn. 

(b) Masters should be warned that they are liable whilst on passage in the Bay, to be challenged 
by Units of Indian Navy to establish their bonafides; they should cooperate and they will get courtesy 
and considerate treatment. 

(c) For such ships as have left Calcutta having been detained here on account of their contraband 
cargo, which they had to discharge in accordance with official instructions it is strongly suggested that 
masters should obtain an endorsement from customs to the effect that all contraband cargo has been 
discharged. In addition, it is further recommended that agent should obtain an endorsement from the 
Indian Navy to the same effect and the officer to be contacted in this respect is. . . . 

The next day the Indian Parliament adopted the Naval and Aircraft Prize Act, 1971, which declared in part: 

"Prize" [is defined as] anything which . . . may be subjected to adjudication . . . including a ship 
or an aircraft and goods carried therein irrespective of whether the ship is captured at sea or seized in 
port or whether the aircraft is on or over land or sea at the time of capture or seizure. [According to 
Section 3 (3) the Act is applicable] during war or as a measure of reprisal during an armed conflict or 
in the exercise of the right of self-defense" [and according to Section 4(3) the Prize Court] . . . shall 
adjudge and condemn all such ships, vessels, aircraft and goods belonging to any country or state or 
the nationals, citizens or subjects thereof. 



206 Targeting Enemy Merchant Shipping 

The Act had no practical relevance, but the Indian navy stopped and searched more than 100 neutral merchant 
vessels during the conflict that lasted only two weeks. On December 21, 1971 , India suspended visit and search 
of neutral vessels. Wolff von Heinegg, supra note 147, at 31-33. 

221. Daniel P. O'Connell, supra note 19, at 86-87, 129; 2 Daniel P. O'Connell, supra note 11, at 1099. 

222. See supra footnote 220. 

223. Wolff von Heinegg, supra note 147, at 33. 

224. Fred Greene, The Indian- Pakistan War and the Asian Power Balance, 25 Nav. War Coll. Rev. 16 (No. 
3, 1973). 

225. These dates have been chosen because 1962 marked the first major infusion of U.S. forces into 
Vietnam; the last U.S. service people left in 1973, although U.S. aid continued through 1975. See generally 
Stanley Karnow, Vietnam: A History 247-69, 655-56, 661, 678, 684 (1983); Louis Henkin, supra note 19, at 
303-12. 

226. R.L. Schreadly, The Naval War in Vietnam, 1950-1970, in Frank Uhlig, Jr., Vietnam: The Naval 
Story 274, 280-87 (1986); James A. Hodgman, Market Time in the Gulf of Thailand, id. 308; see also 2 D.P. 
O'Connell, supra note 11, at 1097-99, 1122-23, and Daniel P. O'Connell, supra note 19, at 176-77. 

227. W.J. Fenrick, supra note 62, at 18; Fenrick, supra note 62, at 256. Cf Hague XI, supra note 55, art. 
3, 36 Stat. 2408-09, T.S. No. 544; Institute of International Law, Oxford Manual of Naval War, arts. 3, 12, 37, 
(1913), in Law of Naval Warfare, supra note 1, at 277, 280, 282, 293; The Pacquete Habana, 175 U.S. 677 
(1900); W. Thomas Mallison, supra note 195, at 15-16, 126-28 (1968). See also supra notes 61-96 and 
accompanying text. 

228. 2 Edward J. Marolda & Oscar P. Fitzgerald, The United States Navy and the Vietnam Conflict 518 
(1986). The original defense zone was promulgated in Republic of Vietnam Decree on Sea Surveillance, Apr. 
27, 1965, in 4 Int'l Legal Mat'ls 461 (1965). 

229. 2 Edward J. Marolda & Oscar D. Fitzgerald, supra note 228, at 118-20. 

230. Id. at 228-39. 

231. Id. at 309. Like much of the rest of the RVN Navy, it was supplied by the United States. Id. at 31 1. 

232. Daniel P. O'Connell, supra note 19, at 325; von Heinegg, supra note 147, at 34. 

233. Lane C. Kendall, U.S. Merchant Shipping and Vietnam, in Frank Uhlig, Jr., supra note 226, at 482, 
491,499-500. 

234. W.J. Fenrick, supra note 62, at 18; id at 256, citing Daniel P. O'Connell, supra note 19, at 110. 

235. 1 Edwin Hooper et al., supra note 88, ch. 12; Daniel M. Redmond, Getting Them Out, 116 U.S. 
Nav. Instit. Proc. 44 (No. 8, 1990). About a million Vietnamese went south, 560,000 by ship, 240,000 by 
airlift, and over 140,000 on foot or by boat. 

236. Horace B. Robertson, Jr., New Technologies and Armed Conflicts at Sea, 1 4 Syracuse J. Int'l L. & Comm. 
699, 703 (1988). 

237. W.J. Fenrick, supra note 62, at 18; W.J. Frenrick supra, note 62, at 256-57; Swayze, Traditional 
Principles of Blockade in Modem Practice: United States Mining of Internal and Territorial Waters of North Vietnam, 
29 JAG J. 143 (1977); Bruce A. Clark, Recent Evolutionary Trends Concerning Naval Interdiction of Seaborne 
Commerce as a Viable Sanctioning Device, 27 id. 160 (1973). See also Daniel P. O'Connell, supra note 19, at 94-95. 
NWP 9A, supra note 4, para. 7.7.5 at 7-38, for the premise that this method of interdiction is "useful" despite 
a trend away from belligerents' practice of establishing a blockade according to the traditional rules. Earlier, 
inland waters and rivers of North Vietnam had been mined. For other political and operational aspects of the 
campaign, see Ulrik Luckow, Victory Over Ignorance and Fear: The U.S. Minelaying Attack on North Vietnam, 35 
Nav. War Coll. Rev. 17 (No. 1, 1982). 

238. 2 Edward J. Marolda & Oscar P. Fitzgerald, supra note 228, at 320-25. 

239. 18 Keesing's Contemporary Archives 25338 (1972). 

240. Cf. NWP 9A, supra note 4, para. 8.2.3, at 8-21 n. 65. 

241. See generally id., para. 7.7.5; Frank B. Swayze and Bruce A. Clark, supra note 237. 

242. See supra note 103 and accompanying text. 

243. See supra notes 49-52 and accompanying text. 

244. GWSEA, supra note 105, arts. 22-35, 6 U.S.T. at 3234-40, T.I.A.S. No. 3363, 75 U.N.T.S. at 
100-06. 

245. Daniel P. O'Connell, supra note 19, at 10-12; Bruce Swanson, supra note 86, at 268-69. The PRC 
had mounted a similar but unsuccessful effort in 1950. 1 Edwin B. Hooper et al., supra note 88, at 339-41. 

246. Eleanor C. McDowell, supra note 166, at 13-15, 423-26, 766, 777-83, 879-86; Arthur W. Revine 
and Eleanor C. McDowell, Contemporary Practice of the United States Relating to International Law, 69 Am. J. Int'l 
L. 861-63, 874-79 (1975); U.S. Recovers Merchant Ship Seized by Cambodian Navy, 72 Dep't St. Bull. 719-22 
(1975); Thomas E. Behuniak, Tlie Seizure and Recovery of the S.S. Mayaguez: A Legal Analysis of United States 
Claims, 82 Mil. L. Rev. 41 (1978), 83 id. 59 (1979). 

247. See supra note 94 and accompanying text. 



Walker 207 

248. 1958 Territorial Sea Convention, supra note 159, arts. 14-17, 15 U.S.T. 1610-11, T.I.A.S. No. 5639, 
516 U.N.T.S. 214-16; UNCLOS, supra note 2, arts. 17-26. 

249. 1958 Territorial Sea Convention, supra note 159, art. 24, 15 U.S.T. 1612-13, T.I.A.S. No. 5639, 
516 U.N.T.S. 220; UNCLOS, supra note 2, art. 31. 

250. 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, art. 1, 23 U.S.T. 
701, 704-07, T.I.A.S. No. 7337. 

251. Cf. Luigi Migliorino, Commentary, in Law of Naval Warfare, supra note 1, at 615, 620; Horace B. 
Robertson, Jr., A Legal Regime for the Resources of the Seabed and Subsoil of the Deep Sea: A Brewing Problem for 
International Lawmakers, Nav. War Col. Rev. 61 (Oct. 1968); Tullio Treves, Military Installations, Structures, 
and Devices on the Seabed, 74 Am. J. Int'l L. 808 (1980); Rex J. Zedalis, A Response, 75 id. 926 (1981), and 
Tullio Treves, Reply, id. 933 (1981); discuss these issues in the context of the UNCLOS, supra note 2, 
negotiations. For analysis of UNCLOS in the context of merchant ship issues, see infra notes 304-30 and 
accompanying text.. 

252. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological 
(Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972 [hereinafter 1972 Bacteriological 
Convention], arts. 1-4, 26 U.S.T. 583, 587-88, T.I.A.S. No. 8062. 

253. Cf. Vaughan Lowe, Commentary, in The Law of Naval Warfare, supra note 1, at 640, 648. 

254. 1972 Bacteriological Convention, supra note 252, art. 8, 26 U.S.T. 589, T.I.A.S. No. 8062, referring 
to Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of 
Bacteriological Methods of Warfare, June 17, 1925, and U.S. reservation, Dec. 16, 1974, 26 U.S.T. 571, 
T.I.A.S. No. 8061, 94 L.N.T.S. 65. 

255. Howard S. Levie, Nuclear, Biological and Chemical Weapons, in Horace B. Robertson, Jr., supra note 
19, at 331, 335-45. NWP 9A, supra note 4, paras. 10.3.2.1, 10.4.2, states the U.S. position that first use of 
chemical weapons and any use of biologicals would violate customary international law. 

256. Vaughan Lowe, supra note 253, at 641, 647-48. 

257. U.N. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental 
Modification Techniques, May 18, 1977 [hereinafter 1977 Environmental Modification Convention], arts. 
1-2, 31 U.S.T. 333, T.I.A.S. No. 9614. 

258. Luis Rodriguez, Commentary, in The Law of Naval Warfare, supra note 1, at 661); see also Comment, 
Weather Genesis and Weather Neutralization: A New Approach to Weather Modification, 6 Cal. W. Int'l L.J. 412 
(1976). 

259. Michael Bothe et al., New Rules for Victims of Armed Conflict 290-91 (1982); Michael Bothe, 
Commentary, in The Law of Naval Warfare, supra note 1, at 760; Yves Sandoz et al., Commentary on the 
Additional Protocols of 8 June 1979 to the Geneva Conventions of 12 August 1949, at 605-06 (1987); W.F. 
Fenrick, supra note 62, at 41; Howard S. Levie, Means and Methods of Combat at Sea, 14 Syracuse J. Int'l L. & 
Comm. 727, 729-30 (1988). As Yves Sandoz et al., supra at 606, and Michael Bothe, supra at 761, note, 
however, other parts of the Protocol - not directly germane to this analysis - are not thus limited and do apply 
to sea warfare. 

260. Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection 
of Victims of International Armed Conflicts, Dec. 12, 1977 [hereinafter Protocol I], art. 49(3), in The Law of 
Naval Warfare, supra note 1 , at 673, 725-26. 

261. E.g., Louise Doswald-Beck, The Principles of Humanity in the Law of Sea Warfare: The Protection of 
Civilians and the Hors de Combat, in Panel, Neutrality, the Rights of Shipping and the Use of Force in the Persian Gulf 
War (Part II), 1988 Am. Soc'y Int'l L. Proc. 599, 600-01 (1990), arguing for one standard. See also Natalino 
Ronzitti, Remarks, in id. 603, 604. Protocol I is in force for 108 nations, as compared with 168 parties to the 
1949 Geneva Conventions. Ratifications and Accessions, supra note 104, at 5. 

262. Protocol I, supra note 260, art. 52, in The Law of Naval Warfare, supra note 1, at 727-28. See also 
W.J. Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98 Mil. L. Rev. 91 (1982); Louise 
Doswald-Beck, supra note 261, at 601. 

263. Protocol I, supra note 260, art. 53, in The Law of Naval Warfare, supra note 1, at 728, referring to 
the 1954 Hague Cultural Property Convention, analyzed supra notes 1 13-24. 

264. See supra notes 1, 2 and accompanying text. 

265. Protocol I, supra note 260, art. 54, in The Law of Naval Warfare, supra note 1, at 728-29. 

266. 1977 Environmental Modification Convention, supra note 257, 31 U.S.T. 333, T.I.A.S. No. 9614. 

267. Protocol I, supra note 260, art. 55(1), in The Law of Naval Warfare, supra note 1, at 729). See also 
id., art. 35(3), in The Law of Naval Warfare, supra, at 729. 

268. See supra notes 257-58 and accompanying text. 

269. Protocol I, supra note 260, art. 56, in The Law of Naval Warfare, supra note 1, at 729-30. 

270. Id., art. 57, in The Law of Naval Warfare, supra note 1, at 730-31. 

271. George H. Aldrich, New Life for the Laws of War, 75 Am. J. Int'l L. 764, 778 (1981). 



208 Targeting Enemy Merchant Shipping 

272. Protocol I, supra note 260, art. 58, in The Law of Naval Warfare, supra note 1, at 732. 

273. See NWP 9A, supra note 4, para. 8.3.1, referring to id., para. 8.2.2.2, noting the shift from principles 
stated in, inter alia, Treaty Relating to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, 
art. 1(1), The Law of Naval Warfare, supra note 1, at 347, 348, which never came into force; London Treaty 
for the Limitation and Reduction of Naval Armaments, Apr. 22, 1930, art. 22, 112 L.N.T.S. 65, 88; 
Proces- Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London, 
Nov. 6, 1936, Rules 1, 2, 173 id. 353; to the practice during World War II, detailed in Robert W. Tucker, 
supra note 62, at 55-70, and W. Thomas Mallison, supra note 195, at 106-23. 

274. Protocol I, supra note 260, arts. 51(4), 51(5), in The Law of Naval Warfare, supra note 1, at 727. 

275. Id., arts. 35(1), 35(2), in The Law of Naval Warfare, supra note 1, at 719. 

276. 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, Apr. 10, 1981 [hereinafter 
1981 Conventional Weapons Convention], reprinted in Dietrich Schindler & Jiri Toman, The Laws of Armed 
Conflicts 179 (3d ed. 1988). 

277. 1981 Conventional Weapons Convention, supra note 276, Protocol I, in Dietrich Schindler & Jiri 
Toman, supra note 276, at 185. For analysis of the Convention and Protocol I, see J. Ashley Roach, Certain 
Conventional Weapons Convention: Arms Control or Humanitarian Law?, 105 Mil. L. Rev. 3 (1984). 

278. 1981 Conventional Weapons Convention, supra note 276, Protocol III, in Dietrich Schindler & Jiri 
Toman, supra note 276, at 190. 

279. James Ennes, supra note 158, at 67-68, 70, 81, 92, 152. See also supra note 158 and accompanying 
text. 

280. Cf. 1981 Conventional Weapons Convention, supra note 276, Protocol III, art. 1(2), in Dietrich 
Schindler & Jiri Toman, supra note 276, at 190. 

281 . Id., Protocol II, art. 1 , in Dietrich Schindler & Jiri Toman, supra note 276, at 185. For further analysis, 
see Burris M. Carnahan, The Law of Land Warfare: Protocol II to the United Nations Convention on Certain 
Conventional Weapons, 103 Mil. L. Rev. 73 (1984). 

282. 1981 Conventional Weapons Convention, supra note 276, col II, arts. 3(3), 4(2), 5, 7-8, in Dietrich 
Schindler & Jiri Toman, supra note 276, at 186-88. 

283. NWP 9A, supra note 4, paras. 8.2.3, at 8-19, citing Max Hastings & Simon Jenkins, The Batde for 
the Falklands 158 (1983); Martin Middlebrook, Operation Corporate: The Falklands War 186-87 (1985); 1 
Howard S. Levie, The Code of International Armed Conflict 186 (1985). See also Howard S. Levie, The 
Falklands Crisis and the Laws of War, in Alberto R. Coll & Anthony C. Arend, supra note 41, at 64, 67. USSR 
surveillance ships and aircraft, plus satellites, could monitor the task force movement, but it is not clear whether 
the ships could or did enter the MEZ or the DSA; USSR aircraft could approach Ascension Island, the British 
staging area, but could not reach the Falklands/Malvinas. 3 Anthony H. Cordesman & Abraham R. Wagner, 
The Lessons of Modern War 280 (1990). On May 10, Britain declared a 100-mile controlled airspace around 
Ascension. Id. at 250. 

284. See generally, 3 Anthony H. Cordesman & Abraham R. Wagner, supra note 283, at 330-31. Max 
Hastings & Simon Jenkins, supra note 283, at 88-89, 161, 214, 227-28, 277-84, 292, 349-51; Martin 
Middlebrook, supra note 283, at 79-80, 178, 243-51, 400-01. Roger Villar, Merchant Ships at War: The 
Falklands Experience (1984) is an additional, excellent study. 

285. Anthoine A. Bouvier, Humanitarian Protection and Armed Conflicts at Sea: Means and Methods of 
Identifying Protected Craft, 14 Syracuse J. Int'l L. & Comm. 759, 765 (1988); Commentary, id. 765 (Remarks of 
Commander Fenrick, Mr. Eberlin). 

286. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in 
the Field, Aug. 12, 1949, art. 23, 6 U.S.T. 3114, 3130, T.I.A.S. No. 3362, 75 U.N.T.S. 31, 46. 

287. 3 Anthony H. Cordesman & Abraham R. Wagner, supra note 283, at 242-44, 249. Max Hastings 
& Simon Jenkins, supra note 283, at 105, 119, 124-25, 133, 143, 147, 157; Martin Middlebrook, supra note 
283, at 97, 98, 126. United Nations lawmaking had minimal effect on the war. On April 3, 1982, the Security 
Council determined that there was a breach of the peace, demanded immediate cessation of hostilities and 
withdrawal of Argentine forces, and called on the belligerents to seek a diplomatic solution. The USSR, China, 
Poland and Spain abstained. S.C. Res. 502, U.N. Doc. S/RES/502, 21 Int'l Legal Mat'ls 679 (1982). The 
rationale for Soviet noninvolvement is explored in Vojtech Mastny, The Soviet Union and the Falklands War, 
36 Nav. War Coll. Rev, 46, 47 (No. 3, 1983). The Organization of American States (OAS) resolution of 
April 28 urged Argentina and the United Kingdom to cease hostilities within the region defined by the Rio 
Treaty, Sept. 2, 1947, art. 4, 62 Stat. 1699, 1700-01, T.I.A.S. No. 1838, 21 U.N.T.S. 77, 97, and to refrain 
from any act that might affect inter-American peace and security. The OAS advocated a truce and peaceful 
settlement of the problem. OAS Resolution I, Serious Situation in the South Atlantic, Apr. 28, 1982, O.A.S. 
Doc. OEA/Ser. F/II.20, Doc. 28/82 rev. 3 (Apr. 28, 1982), 21 Int'l Legal Mat'ls 669 (1982). The European 
Community had suspended imports from Argentina on April 16. E.C. Council Regulation 877/82 Suspending 
Imports of All Products Originating in Argentina, Apr. 16, 1982, 1982 O.J. (L 102) 1, E.C.S.C. Council 



Walker 209 

Decision 82/228/ECSC Suspending Imports of All Products Originating in Argentina, Apr. 16, 1982, 21 Int'l 
Legal Mat'ls 547-48 (1982). These were extended on May 18, 1982. See id. at 549-50. The United States 
suspended military exports, security assistance and export credits to Argentina on April 30. See Statements 
Concerning Assistance to and Sales to Argentina, id. 682-84. Security Council Resolution 505 of May 26, 1982 
urged the belligerents to accept the U.N. Secretary-General's good offices. S.C. Res. 505, U.N. Doc. 
S/RES/505, reprinted in Karel C. Wellens, supra note 42, at 404. An OAS resolution then took an anti-E.C, 
U.K. and U.S. position on May 29, 1982, 21 Int'l Legal Mat'ls 672-74. The E.C. and U.S. measures were 
rescinded in June and July 1982 respectively. Id. 1210. John Norton Moore, The Inter-American System Snarls 
in Falklands War, 76 Am. J. Int'l L. 830 (1982) states that the May 29 OAS resolution was ultra vires. For analysis 
of events leading up to the 1982 war, see Michael P. Socarras, The Argentine Invasion of the Falklands: International 
Means of Signaling, in W. Michael Reisman & Andrew R. Willard, International Incidents: The Law that 
Counts in World Politics 115 (1988). See also Marshall Hall, Argentine Policy Motivations in the Falklands War 
and the Aftermath, 36 Nav. War. Coll. Rev. 21 (No. 6, 1983). For general accounts of the conflict, see 3 
Anthony H. Cordesman & Abraham R. Wagner, supra note 283 at 238-361; Harry D.Train III, An Analysis 
of the Falkland /Malvinas Islands Campaign, 41 Nav. War. Coll. Rev. 33 (No. 1, 1988). For analysis of the 
territorial claims and claims of self-defense in international law, see James F. Gravelle, The Falklands (Malvinas) 
Islands: An International Law Analysis of the Dispute Between Argentina and Great Britain, 107 Mil L. Rev. 5 (1985). 

288. W.J. Fenrick, The Exclusion Zone Device in the Law of Naval Warfare, 1986 Canad. Y.B. Int'l L. 91, 
109-12; see also Max Hastings & Simon Jenkins, supra note 283, at 147, 157; Martin Middlebrook, supra note 
283, at 151; Howard S. Levie, supra note 283 at 65; Howard S. Levie, supra note 259, at 735-38; Vojtech 
Mastny, supra note 287, at 49. 

289. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 431-33 (1989), reversing 
830 F.2d 421, 423 (2d Cir. 1987); Sally V. Mallison & W. Thomas Mallison, supra note 62, at 269. 

290. 3 Anthony H. Cordesman & Abraham R. Wagner, supra note 283, at 260; 2 Daniel P. O'Connell, 
supra note 11, at 1112. 

291. 3 Anthony H. Cordesman & Abraham R. Wagner, supra note 283, at 250-51, 334, 336. 

292. W.J. Fenrick, supra note 288, at 124-25; accord Vaughan Lowe, The Impact of the Law of the Sea on 
Naval Warfare, 14 Syracuse J. Int'l L. & Comm. 657, 673 (1988). 

293. W.J. Fenrick, supra note 288, at 125, citing, inter alia, NWIP 10-2, supra note 57, paras. 430(b), 
520(a). 

294. Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 423-24 (2d Cir. 1987), rev'd, 
488 U.S. 428 (1989). The Supreme Court thus agreed with the U.S. District Court, which dismissed, on 
Foreign Sovereign Immunities Act grounds, Amerada Hess Shipping Corp. v. Argentine Republic, 638 F. 
Supp. 73 (S.D.N.Y. 1986), and dissenting Judge Kearse in the Second Circuit, 830 F.2d at 429-31. See also 
supra note 289 and accompanying text. 

295. WJ. Fenrick, supra note 288, at 116. 

296. L.F.E. Goldie, Maritime War Zones & Exclusion Zones, in Horace B. Robertson, Jr., supra note 19, at 
156, 174. Leckow, supra note 188, at 635-36, agrees as to the British zone. He does not consider legality of 
the Argentine South Atlantic zone, but presumably would say it was illegal because, in his view, "war zones 
can be justified only in very restricted circumstances, where inconvenience to neutral vessels is kept to a 
minimum." Id. at 635. 

297. Cf 2 Daniel P. O'Connell, supra note 11, at 1111-12; W.J. Fenrick, supra note 288, at 94, 113, 121; 
L.F.E. Goldie, supra note 296, at 194; Prof. Lagoni, in Panel, supra note 19, at 163, argues that a "defensive 
protection zone is admissible only if it is adjacent to the coast of the state establishing it," a position seemingly 
contrary to other commentators. If his view is taken, the U.K. DSA, or "defensive bubble," supra note 287 
and accompanying text, was illegal under international law. Lagoni's is a minority position among commen- 
tators. 

298. L.F.E. Goldie, supra note 296, at 160-74, 183-94; Miller, Belligerency and Limited War, Nav. War 
Coll. Rev. 19 (Jan. 1969). 

299. See also supra notes 1 1-39 and accompanying text. 

300. See supra notes 61-62, 91, 94, 225-31, 248, 283 and accompanying text. 

301. Compare supra notes 50-60, 129-34, 157, 168-69, 199-202, 215-16, 233-44, 247, and accompanying 
text with supra note 284 and accompanying text. 

302. See supra notes 286-87 and accompanying text. 

303. Compare supra note 289 and accompanying text with supra notes 54-60, 82-86, 199-201, 221-23. 

304. UNCLOS, supra note 2, arts. 88, 301. 

305. For analysis of UNCLOS, primarily in the context of the peacetime environment, see, e.g., 2 Daniel 
P. O'Connell, supra note 11, ch. 25. 

306. See supra note 2. 

307. UNCLOS, supra note 2, arts. 87, 89. 



21 Targeting Enemy Merchant Shipping 

308. See 1958 High Seas Convention, supra note 20, art. 2, 13 U.S.T. at 2314, T.I.A.S. No. 5200, 450 
U.N.T.S. at 82-84. 

309. Compare UNCLOS, supra note 2, arts. 91-92, 94 with 1958 High Seas Convention, supra note 20, 
art. 5, 13 U.S.T. 2315, T.I.A.S. No. 5200, 450 U.N.T.S. 84-86. 

310. U.N. Convention on Conditions for Registration of Ships, Feb. 7, 1986, 26 Int'l Legal Mat'ls 1236 
(1987). The European Community has begun attacking the problem through the Rome Treaty. Note, 
Common Maritime Transport Policy for the EEC: The Commission Does Battle with Flags of Convenience, 13 B.C. 
Int'l & Comp. L. Rev. 447 (1990). The problem of unsafe ships under open registry has also been the subject 
of treaty negotiations. Ebere Osieke, Flags of Convenience Vessels: Recent Developments, 73 Am. J. Int'l L. 604 
(1979). 

311. UNCLOS, supra note 2, arts. 95-96, 110. 

312. See supra notes 185-86 and accompanying text. 

313. UNCLOS, supra note 2, arts. 116-20. 

314. Id. arts. 192-96. 

315. See supra notes 257-58, 266-68, and accompanying text. 

316. Vaughan Lowe, supra note 292, at 664, raises some of these issues from the UNCLOS perspective. 

317. UNCLOS, supra note 2, art. 87(1). 

318. 1958 High Seas Convention, supra note 20, art. 2, 13 U.S.T. 2314, T.I.A.S. No. 5200, 450 U.N.T.S. 
82-84. See also supra note 176 and accompanying text. 

319. E.g., UNCLOS, supra note 2, art. 116(a) (obligations under treaties an exception to the right to 
engage in fishing). 

320. Hague XI, supra note 62, art. 3, 36 Stat. 2408-09, T.S. No. 544 (coastal fishing and trading boats 
exempt from capture so long as they do not take part in hostilities). 

321. Compare UNCLOS, supra note 2, art. 87(1) with 1958 High Seas Convention, supra note 20, art. 2, 
13 U.S.T. 2314, T.I.A.S. No. 5200, 450 U.N.T.S 82-84. Sec also supra notes 174-67, and accompanying text. 

322. UNCLOS, supra note 2, art. 88. 

323. Id. art. 301. For analysis of the right of self-defense and other Charter issues, see supra notes 11-39 
and accompanying text. 

324. Vaughan Lowe, supra note 13, at 132; Professor Oxman agrees with this analysis. "[T]he rules of 
armed conflict are not addressed by the Convention." Bernard H. Oxman, supra note 159, at 811. See also 
Boleslaw Boczek, Peaceful Purposes Provisions of the United Nations Convention on the Law of the Sea, 20 Ocean 
Devel. & Int'l L. 359 (1989); Herbert W. Briggs, supra note 176, at 51; 1LC Report, supra note 176, 1966(2) 
Y.B. Int'l L. Comm'n at 267-68; Francis V. Russo, Jr., supra note 176, at 384. 

325. 2 Daniel P. O'Connell, supra note 11, at 1106-26. 

326. Id. at 1105-06. 

327. Id. at 1 108-09. See also id. at 1 131-37. 

328. Id. at 1 1 12-13, referring to id. at 747-69. 

329. See supra notes 174-84 and accompanying text. 

330. 2 Daniel P. O'Connell, supra note 11, at 1109-12. 

331. For an overview of the history of the Persian Gulf and prior naval involvement in the region, see 
Samuel P. Menefee, Gunboat Diplomacy in the Persian Gulf? An Alternative Evaluation of a Contemporary Naval 
Conflict, 31 Va. J. Int'l L. 566 (1990). 

332. Elaine P. Adam, Chronology 1980, 59 Foreign Aff. 714, 725, 729-32 (1981); David L. Peace, Major 
Maritime Events in the Persian Gulf War, in Panel, supra note 19, at 146, 147 (1990); David L. Peace, Major 
Maritime Events in the Persian Gulf Between 1984 and 1991: A Juridical Analysis, 31 Va. J. Int'l L. 545, 547 (1991); 
J. Ashley Roach, Missiles on Target: Targeting and Defense Zones in the Tanker War, id. 593, 600-02 (1991). A 
U.N. initiative to evacuate 70 neutral vessels anchored at the Shatt al-Arab terminals and trapped by the Iranian 
decree under the International Committee of the Red Cross flag was given up as a failure by March 1982, 
because Iraq refused to allow them to depart. Boleslaw Boczek, Law of Warfare and Neutrality: Lessons from the 
Gulf War, 20 Ocean Devel. & Int'l L. 239, 244, 257 (1989), who argues that this may have been violative of 
the law of blockade, which allows neutrals a grace period to depart at the beginning of a blockade. 

333. J. Ashley Roach, supra note 332, at 604-05. 

334. 2 Anthony H. Cordesman & Abraham R. Wagner, The Lessons of Modern War 90-91, 101-02, 
(1990); Frankcis V. Russo, Jr., supra note 176, at 393, reports that Kuwait and Saudi Arabia also made substantial 
cash grants to Iraq to help finance its war effort. See also Farhaug Mehr, Neutrality in the Gulf War, 20 id. 105 
(1989). 

335. NWP 9A, supra note 4, para. 7.4.1, at 7-25 n.98, citing, inter alia, Milton Viorst, Iran at War, 65 
Foreign Aff. 349, 350 (1986); see also 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 
92; J. Ashley Roach, Missiles on Target: The Law of Targeting and the Tanker War, in Panel, supra note 19, at 
154, 156-57; J. Ashley Roach, supra note 332, at 596-97, 600-01. Captain Roach has stated that even though 
Iraq did not follow the formalities of blockade - announcement and effectiveness - an argument could be made 



Walker 21 1 

that Iraq was enforcing an air blockade of Iran, and that neutral ships assumed the risk of attack if they chose 
to carry Iranian oil during the conflict. J. Ashley Roach, supra, at 157; id at 607-08. Yoram Dinstein, 
Commentary, in Panel, supra note 261, at 606, 608 says that "[n]o blockade [was] proclaimed . . . , and had it 
been . . . , it would have been a 'paper blockade.' Consequendy, the law of blockade [was] inapplicable." 
Paper blockades are by definition ineffective. 2 Daniel P. O'Connell, supra note 11, at 1150-51, citing Paris 
Declaration Respecting Maritime Law, Apr. 16, 1856, art. 4, The Law of Naval Warfare, supra note 1, at 61; 
65; London Declaration Concerning the Laws of Naval War, Feb. 26, 1909, art. 2, The Law of Naval Warfare, 
supra at 223, 227-28. Professor Dinstein also stated that oil shipped out of the Gulf could not have been 
contraband, since the right to capture "is limited to import goods and does not cover export items. The 
Declaration of London makes it abundantly clear that a cargo cannot constitute contraband if it is not destined 
for the enemy . . . [0]il shipped out of the Gulf does not come within the purview of contraband." Yoram 
Dinstein, supra, at 608. While the argument is technically correct, it might be noted that goods characterized 
as contraband that are exported from one enemy port to another enemy port are subject to capture and 
condemnation. Declaration of London, supra, arts. 30-39, in The Law of Naval Warfare, supra at 238-41. 2 
Daniel P. O'Connell, supra note 11, at 1144-47 subscribes to the general theory but notes the tendency of 
nations to treat goods as enemy-destined cargo when the consignee is an enemy agent in neutral territory 
where the agent could reconsign the goods to the enemy. It would seem a logical extension of this to say that 
if enemy goods (e.g., oil) are sold for the benefit of the war effort, and the proceeds are then sent, perhaps by 
electronic funds transfer, to enemy bank accounts where they can further the war effort, the practical result is 
the same. Thus Professor Dinstein is technically correct as to the exact words of the 1909 London Declaration, 
which perhaps reflects the commercial and economic warfare practices of its day or earlier conflicts, but today's 
realities are that outgoing shipments of warfighting/ war-sustaining goods are also contraband, albeit by the 
circumlocutous analysis stated above. 

336. Panel, supra note 19, at 170 (Remarks by Mr. Burnett); Panel, supra note 261, at 609 (Remarks by 
Mr. Wiswall). 

337. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 126-27; Wolff von Heinegg, 
supra note 147, at 35. 

338. 28 Keesing's Contemporary Archives, supra note 343. 

339. The United States also stopped shipments on turbines for Iraqi frigates being built in Italy. 27 id. 
31011 (1981). See also Council Calls on Iran and Iraq to Settle Dispute Peacefully, 17 U.N. Chron. 5, 7 (Sept. 
1980). 

340. S.C. Res. 479, U.N. Doc. S/RES/479 (1980), reprinted in Karel C. Wellens, supra note 42, at 357. 

341. W. Michael Reisman, supra note 25, at 589, 590; see also Samuel P. Menefee, supra note 331, at 586, 
who reports USSR Premier Leonid Brezhnev's December 1980 speech on Soviet principles for the Gulf: 

Not to set up military bases in the Persian Gulf and on contiguous islands and not to deploy nuclear 
or any other weapons of mass destruction there; 

Not to use or threaten to use force against the Persian Gulf Countries and not to interfere in their 
internal affairs; .... 

Not to create any impediments or threats to normal trade exchange and the use of maritime 
communications connecting the states of this region with other countries. 

342. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 133-34. 

343. 28 Keesing's Contemporary Archives 31522 (1982) (emphasis added). 

344. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 171; 28 Keesing's Contem- 
porary Archives 31850 (1982); 29 id. 32594 (1983); 30 id. 32680, 33058-59 (1984); 31 id. 33560 (1985); Janis 
Kreslins, Chronology 1982, 61 Foreign Aff. 714, 725-26 (1983); J. Ashley Roach, supra note 332, at 605. 

345. 29 Keesing's Contemporary Archives 32594-95 (1983). 

346. 28 id. 31850 (1982); 30 id. 33058 (1984). 

347. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 171; Janis Kreslins, supra note 
344, at 225-26; J. Ashley Roach, supra note 332, at 605. 

348. Final Declaration of 12th Summit of Arab Heads of State, Sept. 6-9, 1982, 21 Int'l Legal Mat'ls 1144, 
1145-46 (1982). For other peace initiatives of these years, see generally 28 Keesing's Contemporary Archives 
31852 (1982) (GCC); 29 id. 32595 (1983); 30 id. 33058 (1984) (GCC condemns Iranian aggression); 31 id. 
33561 (1985) (Arab League, among others); 32 id. 34264-65 (1986) (GCC claimed Iran persisted in ignoring 
efforts to end the war). 

349. S.C. Res. 540, U.N. Doc. S/RES/540 (1983); S.C. Res. 552, U.N. Doc. S/RES/552 (1984) 
reprinted in Karel C. Wellens, supra note 42, at 359-60, 377-78. See also W.J. Fenrick, supra note 288, at 120-21 . 
One commentator has argued that "[a]t the very least, [Resolution 552 was] a ringing reaffirmation of the 



212 Targeting Enemy Merchant Shipping 

right of neutral shipping engaged in interneutral commerce to be free from intentional attack on the high seas. 
Further, Resolution 552 clearly [did] not condemn the Iraqi attacks, and thus implies ... its acceptance of 
their legality." J. Ashley Roach, in Panel, supra note 19, at 158; J. Ashley Roach, supra note 332, at 604. The 
resolutions were not meant to impede customary rights of visit and search, however. Francis V. Russo, Jr., 
supra note 176, at 395. 

350. See 3 Anthony H. Cordesman & Abraham R. Wagner, supra note 283, ch. 5 for analysis of the 
Central Command in the context of strategic technology for limited force engagements. The early history of 
the U.S. Navy's Middle East Force, partial predecessor to the Central Command, is traced in Peter W. De 
Forth, U.S. Naval Presence in the Persian Gulf: The Mideast Force Since World War II, 28 Nav. War Coll. Rev. 
28 (No. 1, 1975). 

351. Thomas Naff, The Iran-Iraq War: Implications for U.S. Policy 64, 65 (1985); Chronology 1984, 63 
Foreign Aff. 672, 682-86 (1985); Christopher Greenwood, Remarks, in Panel, supra note 19, at 158. 

352. Panel, supra note 19, at 171 (Remarks by Mr. Kaladkin). 

353. Marian Leich, United States Defense Measures in the Persian Gulf Area, 78 Am. J. Int'l L. 884 (1984). 

354. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 191-98, 205-13, 227, 534-39; 
Ken Booth, Law, Force and Diplomacy at Sea 178 (1985); Chronology 1984, 63 Foreign Aff. 672, 682-86 
(1985); L.F.E. Goldie, Low Intensity Conflict at Sea, 14 Syracuse J. Int'l L. & Comm. 597, 625-26 (1988); Kay 
King, Chronology 1985, 64 Foreign Aff. 645, 658-61 (1986); Wolff von Heinegg, supra note 147, at 35-36; 
Frank L. Wiswall, Remarks, in Panel, supra note 261, at 594, 596; Frank L. Wiswall, Neutrality, the Rights of 
Shipping and the Use of Force in the Persian Gulf, 31 Va. J. Int'l L. 619, 623 (1991). 

355. Richard W. Murphy, Review of Developments in the Middle East, 86 Dep't St. Bull. 39, 41 (Mar. 1986). 

356. The precipitating event was Iranian interception of the U.K. merchantman Barber Perseus. Panel, 
supra note 19, at 158-59 (Remarks by Professor Greenwood). 

357. Frits Kalshoven, Commentary, in The Law of Naval Warfare, supra note 1, 272, 274. 

358. Jeffrey Schloesser, U.S. Policy in the Persian Gulf 87 Dep't St. Bull. 38, 41 (Oct. 1987). 

359. S.C. Res. 514, U.N. Doc. S/RES/514 (1982); S.C. Res. 522, U.N. Doc. S/RES/522 (1982); S.C. 
Res. 540, U.N. Doc. S/RES/540 (1983); S.C. Res. 552, U.N. Doc. S/RES/552 (1984), reprinted in Karel 
C. Wellens, supra note 42, at 357-60, 377-78. 

360. Convention of Constantinople, Oct. 22, 1888, supra note 145. 

361 . 31 Keesing's Contemporary Archives 33371-73 (1985). As noted, supra at note 112 and infra at note 
381 and accompanying texts, laying mines under these circumstances was unlawful. 

362. See S.C. Res. 598, U.N. Doc. S/RES/598, reprinted in 26 Int'l Legal Mat'ls 1479 (1987). 

363. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 229-30, 236-37; Horace B. 
Robertson, Jr., Chronology 1986, 65 Foreign Aff. 653, 672-76 (1987). 

364. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 244, 255, 271-74; Norman 
Cigar, The Soviet Navy in the Persian Gulf: Naval Diplomacy in a Combat Zone, 42 Nav. War Coll. Rev. 56 (No. 
2, 1989); Christopher Greenwood, in Panel, supra note 19, at 158; David L. Peace, in Panel, supra note 19, at 
149; David L. Peace, supra note 332, at 550; Wolff von Heinegg, supra note 147, at 35 n. 355. 

365. Christopher Greenwood, in Panel, supra note 19, at 158. 

366. 32 Keesing's Contemporary Archives 34514 (1988). 

367. 33 id. 35160, 35597 (1987). 

368. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 271-81; Norman Cigar, supra 
note 364, at 59, 63; Peter Hayes, Chronology 1987, 66 Foreign Aff. 638, 655-60 (1988). 

369. Caspar Weinberger, A Report to Congress on Security Arrangements in the Persian Gulf 26 Int'l Legal 
Mat'ls 1434, 1448, 1450-52, 1458, 1461-63 (1987); Comment, Reflagging Kuwaiti Tankers: A U.S. Response 
in the Persian Gulf, 1988 Duke L.J. 174, 202; David L. Peace, in Panel, supra note 19, at 150-51; David L. 
Peace, supra note 332, at 553-54; Frank L. Wiswall, supra note 354, at 662 n. 12; Rudiger Wolfrum, supra 
note 185, at 386-94; Statement by Assistant Secretary of State Richard William Murphy, May 19, 1987, 87 
Dep't St. Bull. 58-60 (July 1987); contra, Yoram Dinstein, in Panel, supra note 261, at 608-09, who may not 
have had access to other indicia of a "genuine link." Query whether a "genuine link" is necessary at all from 
the perspective of the law of armed conflict. See supra notes 176-86, 197, 310-11, 328 and accompanying text. 
See also Panel, supra note 261 , at 610 (Remarks by Mr. Wiswall). Wiswall, supra at 622-23 says that the reflagging 
was not a departure from U.S. Merchant Marine policy and was not anomalous. Statement by Michael H. 
Armacost, Undersecretary of State for Political Affairs, to U.S. Senate Foreign Relations Comm., June 16, 
1987, 26 Int'l Legal Mat'ls 1429, 1431 (1987) notes that Kuwait had already reflagged two tankers under the 
U. K. ensign. One practical reason for reflagging was that the U.S. Navy did not have enough ships to escort 
all vessels beneficially owned by U.S. nationals, which may have been a third or more of the tankers in the 
Gulf. Frank Wiswall, in Panel, supra note 261, at 595-96. For a contemporary debate on reflagging and other 
Tanker War issues, see Conference Report, The Persian /Arabian Gulf Tanker War: International Law or 
International Chaos, 19 Ocean Devel. & Int'l L. 299 (1988); see also Francis V. Russo, Jr., supra note 176, for 
another thoughtful analysis. 



Walker 213 

370. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 289-90, 549-58. See generally 
Statement of U.S. Secretary of State George P. Shultz, May 20, 1987, 87 Dep't St. Bull. 62-63 (July 1987); 
Iran-Iraq War and Navigation in the Gulf, 26 Int'l Legal Mat'ls 1422-31 (1987); William H. Nelson, Peacekeepers 
at Risk, 113 U.S. Nav. Inst. Proc. 90 Quly 1987); David L. Peace, in Panel, supra note 19, at 149; David L. 
Peace, supra note 332, at 551-53. For a comparative study, see Joseph F. Bouchard, Accidents and Crises: Panay, 
Liberty and Stark, 41 Nav. War. Coll. Rev. 87 (No. 4, 1988). 

371. David L. Peace, in Panel, supra note 19, at 149-50; Peace, supra note 332, at 552; J. Ashley Roach, 
supra note 332, at 610; Caspar Weinberger, supra note 374, at 1454-55, 1459-60, 1463. The texts of the 1984 
warnings are published in Marian Leich, supra note 353. The warnings were published within days after the 
official report on the bombing of the U.S. Marine headquarters at Beirut International Airport in 1983. J. 
Ashley Roach, supra at 609. Daniel P. O'Connell, supra note 19, at 169-80; J. Ashley Roach, Rules of 
Engagement, 36 Nav. War Coll. Rev. 46 (No. 1, 1983) and Ivan A. Shearer, Rules of Engagement and the 
Implementation of the Law of Naval Warfare, 14 Syracuse J. Int'l L. & Comm. 767 (1988) analyze ROE from an 
international law perspective. See also infra note 533 and accompanying text, and Bradd C. Hayes, Naval Rules 
of Engagement: Management Tools for Crisis 40-44 (1989). 

372. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 290-92, 298-300; Walter 
Isaacson, Into Rough Water, Time, Aug. 10, 1987, at 8; John H. McNeill, supra note 205, at 635, 638; David 
L. Peace, in Panel, supra note 19, at 149; David L. Peace, supra note 318 at 554; Wolff von Heinegg, supra 
note 147, at 36; Rudiger Wolfrum, supra note 185, at 397-98; see also London Declaration Concerning the 
Laws of Naval Warfare, Feb. 26, 1909, arts. 61-62, in The Law of Naval Warfare, supra note 1, at 223, 251-52. 

373. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 318-19; Bradd C. Hayes, supra 
note 371, at 47-48; letter of President Ronald Reagan to U.S. Speaker of the House Jim Wright, Sept. 4, 
1987, 23 Weekly Comp. of Pres. Doc. 1066-67 (1987). Commentators have differed on whether the U.S. 
claim of self-defense was legitimate under the circumstances, but Theodor Meron, Remarks, in Panel, supra 
note 19, at 164; John H. McNeill, supra note 205, at 638-39; David L. Peace, in Panel, supra note 19, at 
151-52; and David L. Peace, supra note 332, at 554-57, conclude that the attack on Iran Ajr was allowable 
under international law. 

374. Christopher Greenwood, in Panel, supra note 19, at 159 (footnote omitted), quoting answer by the 
Minister of State, Foreign and Commonwealth Office to a parliamentary question, Jan. 28, 1986, 90 Pari. 
Deb., H.C. (6th ser.) 426 (1986). For the French attitude, see supra note 354 and accompanying text. 

375. Christopher Greenwood, in Panel, supra note 19, at 159-61 (footnote omitted) quoting U.K. Foreign 
and Commonwealth Office and Ministry of Defence, Joint Memorandum to House of Commons Select 
Committee, 3d Rep., Defence Committee 1986-87, H.C. 409, at 70 (1987). See also infra note 394 and 
accompanying text. 

376. Rainier Lagoni, in Panel, supra note 19, at 163, referring to Hague Convention (VIII) Regarding 
Laying of Automatic Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332, T.S. No. 541. See also Howard 
S. Levie, Commentary, in The Law of Naval Warfare, supra note 1, at 140, 142-44, 146, Howard S. Levie, 
Mine Warfare and International Law, Nav. War. Coll. Rev. 27 (Apr. 1972), and supra note 361 and accompanying 
text. 

377. Caspar Weinberger, The Permanence of U.S. Interests in the Persian Gulf, remarks to the American 
Defense Preparedness Association, May 20, 1987, Office of the Assistant Secretary of Defense (Public Affairs) 
News Release No. 264-87, at 4. See also Table 9.7, Targets in the Tanker War as of October 12, 1987, in 2 
Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 327-28. 

378. Norman Cigar, supra note 364, at 64; Bradd C. Hayes, supra note 364, at 655-60. 

379. Vienna Economic Summit, Statement on Iran-Iraq War and Freedom of Navigation in the Gulf June 9, 
1987, 23 Weekly Comp. of Pres. Doc. 647-48 (1987). See also Caspar Weinberger, supra note 369, at 1449-50. 

380. S.C. Res. 598, U.N. Doc. S/RES/598, reprinted in Karel C. Wellens, supra note 42, at 362-63. 

381 . Saudi Arabia also committed its four minesweepers to clearance operations. 2 Anthony H. Cordesman 
& Abraham R. Wagner, supra note 334, at 300, 304, 313-14; Bradd C. Hayes, supra note 368, at 655-60. 

382. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 328-31 ; Bradd C. Hayes, supra 
note 376, at 48-49; N.Y. Times, Oct. 20, 1987, at A10; John H. McNeill, supra note 205, at 638-39; David 
L. Peace, in Panel, supra note 19, at 152; David L. Peace, supra note 332, at 557-58; see also letter of President 
Reagan to House Speaker Wright, Oct. 20, 1987, 23 Weekly Comp. of Pres. Doc. 1206 (1987). 

383. Frank L. Wiswall, supra note 354, at 622. 

384. See infra notes 394-95 and accompanying text. 

385. Compare supra notes 383-84 and accompanying text with supra notes 1 1-39, and accompanying text; 
see also Vaughan Lowe, supra note 19, at 129. 

386. David L. Peace, in Panel, supra note 19, at 152-53; David L. Peace, supra note 318, at 558. Similar 
situations had occurred in August 1987 with no casualties; deadly force was not required. Bradd C. Hayes, 
supra note 371, at 46; Howard S. Levie, The Status of Belligerent Personnel "Splashed" and Rescued by a Neutral 
in the Persian Gulf Area, in Panel, supra note 261, at 597; Howard S. Levie, The Status of Belligerent Personnel 



214 Targeting Enemy Merchant Shipping 

"Splashed" and Rescued by a Neutral in the Persian Gulf Area, 31 Va. J. Int'l L. 610 (1991). One reason for 
particular concern with respect to possible small craft attacks was that the Iranian Navy had been conducting 
maneuvers in Iran's exclusion zone and territorial waters, including simulated speedboat attacks on suicide 
runs. Peter Hayes, supra note 368, at 658. 

387. See supra notes 283, 302. 

388. David L. Peace, in Panel, supra note 19, at 153-54; David L. Peace, supra note 332, at 558. This 
might be contrasted with the Dogger Bank Case (U.K. v. Russ.) (1905), J. Scott, Hague Court Reports 403 
(1916), in which a Russian battleship division fired on English fishing boats on the Dogger Bank in the North 
Sea, killing two fishermen, wounding six, sinking one boat and damaging four other craft, during the 1904-05 
Russo-Japanese War. The Russian fleet had been warned of the possibility of Japanese torpedo-boat attacks, 
quite similar to the U.S. concern over speedboat suicide runs, supra note 386. The difference was that the 
Russian warships opened fire without any warning shots. The commission of inquiry held Russia liable; Russia 
accepted the decision and paid damages. The incident very nearly resulted in war between Russia and Great 
Britain. Richard F. Lebow, Accidents and Crises: The Dogger Bank Affair, 31 Nav. War Coll. Rev. 66, 69-73 
(No. 1, 1978). 

389. Text of Communique front Amman Summit, 27 Int'l Legal Mat'ls 1651-52 (1988). 

390. Wolff von Heinegg, supra note 147, at 35. 

391. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 336-37; Bradd C. Hayes, supra 
note 368, at 660. 

392. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 375-80; letter of President 
Reagan to House Speaker Wright, Apr. 19, 1988, 24 Weekly Compil. of Presid. Documents 493 (1988). For 
operational details, see Bud Langston & Don Bringle, Operation Praying Mantis: The Air View, 115 U.S. Nav. 
Inst. Proc. 54 (May 1989); Ronald O'Rourke, Gulf Ops, id. 42, 44; J. R. Perkins III, Operation Praying Mantis: 
The Surface View, id. 66. Bradd C. Hayes, supra note 371, at 51-52, erroneously characterizes the response to 
the Roberts mining as a "reprisal." 

393. The Federal Republic of Germany sent ships to the Mediterranean Sea to replace ships sent to the 
Gulf. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 313-17, 570; U.S. Department 
ofState, Western Defense: The European Role in NATO 16-17 (1988). 2 Anthony H. Cordesman & Abraham 
R. Wagner, supra at 528, credit the U.S. convoying as catalyzing other nations' participation in the operation. 

394. Statement by Secretary of Defense Frank Carlucci, 88 Dep't St. Bull. 61 (July 1988). The initial 
executive decision had been taken with respect to protection of the jack-up barge Scan Bay, of Panamanian 
registry but with U.S. nationals aboard. Ronald O'Rourke, supra note 392, at 46-47. For the U.K. view, see 
supra note 375 and accompanying text. 

395. Frank L. Wiswall, supra note 354, at 628; Rudigar Wolfrum, supra note 185, at 398-99. Fank L. 
Wiswall, supra at 623, suggests that if the U.S. policy had been the same as French policy, see supra note 354, 
the deterrent would have reduced the carnage. 

396. 34 Keesing's Contemporary Archives 35938 (1988). 

397. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 390-94; letter of President 
Reagan to House Speaker Wright, July 14, 1988, 24 Weekly Comp. of Pres. Doc. 938 (1988). For a factual 
account of the Airbus incident, see 2 Anthony H. Cordesman & Abraham R. Wagner, supra at 573-84. 

398. League of Arab States, Text of Communique from Algiers Summit, 27 Int'l Legal Mat'ls 1654 (1988), 
referring to Text of Communique from Amman Summit, supra note 389 and accompanying text. 

399. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 398-99; Bradd C. Hayes, 
Chronology 1988, 68 Foreign Aff. 220, 232-38 (1989). 

400. John H. Cushman, Jr., Navy to End Convoys in Gulf But It Will Still Protect Ships, N.Y. Times, Sept. 
17, 1988, at 2; See also Ronald O'Rourke, supra note 392, at 48. 

401. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 401. 

402. Id. at 400-01. 

403. W.J. Fenrick, supra note 62, at 20-21; see also W.J. Fenrick, supra note 62, at 260. 

404. Francis V. Russo, Jr., supra note 176, at 397; Frank L. Wiswall, Remarks, in Panel, supra note 261, 
at 594-95; Frank L. Wiswall, supra note 354, at 621. 

405. Frank L. Wiswall, supra note 261, at 595; cf. Frank L. Wiswall, supra note 354, at 621. Although 
Professor Goldie would agree on most of these points, he would argue that the threat of an oil surplus in the 
1980s and "the favorable conditions of insurance . . . rendered such attacks relatively less unacceptable to the 
tanker fleets' owners than did such attacks during the World Wars," when there was a scarcity of shipping and 
cargoes. L.F.E. Goldie, supra note 296, at 176. 

406. David L. Peace, in Panel, supra note 19, at 147-48; David L. Peace, supra note 332, at 548-49; J. 
Ashley Roach, in Panel, supra note 19, at 156; J. Ashley Roach, supra note 332, at 603-08. 

407. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 530. 

408. W.J. Fenrick, supra note 288, at 121-22; see also Boleslaw Boczek, supra note 332, at 258. 

409. Ross Leckow, supra note 188, at 639. 



Walker 215 

410. L.F.E. Goldie, supra note 296, at 176. 

411. Yoram Dinstein, in Panel, supra note 261, at 608. 

412. David L. Peace, in Panel, supra note 19, at 148-49; David L. Peace, supra note 332, at 547-48. 

413. See generally, e.g., 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, and supra note 
335 and accompanying text. 

414. See supra notes 403-04 and accompanying text. 

415. W. Thomas Mallison, supra note 195, at 121; Boleslaw Boczek, supra note 332, at 258; J. Ashley 
Roach, supra note 19, at 156; see also NWP 9A, supra note 4, para. 8.2.2.2, at 8-12, and Robert W. Tucker, 
supra note 62, at 69 n.53. 

416. W. Thomas Mallison, supra note 195, at 122; J. Ashley Roach, supra note 332, at 156. 

417. W. Thomas Mallison, supra note 195, at 121; NWP 9A, supra note 4, para. 8.2.2; David L. Peace, 
in Panel, supra note 19, at 148-49; David L. Peace, supra note 332, at 318; J. Ashley Roach, in Panel, supra 
note 19, at 156; J. Ashley Roach, supra note 332, at 606-07; Wolff von Heinegg, supra note 147, at 35-36; 
but see Robert W. Tucker, supra note 62, at 66, and compare id. at 69 n. 13; contra Ranier Lagoni, in Panel, 
supra note 19, at 163. Francis V. Russo, Jr., supra note 176, at 396-97, says that the legality of attacks would 
depend on a variety of factors: the relationship of a State with which a ship is trading to the hostilities; the 
ship's cargo; the cargo's ultimate use; the extent to which the cargo directly or indirectly supports the 
belligerent's war economy. This argument is analogous to the problem of defining contraband, which has 
baffled prize courts for years, or the genuine link theory for ships urged by at least one commentator. See supra 
notes 178-79, 183, 198, 308-13, 328-29, 369 and accompanying text. While Commander Russo's approach 
shows real analysis of the complexities of the problem and may be helpful for prize court jurisprudence, it 
does not solve the problem of an attack and sinking followed by claims of law violations under international 
law, unless the attacking state is willing to run that risk. Assuming a high seas scenario outside a war zone, it 
would seem that the ideal preventive (or risk minimization) approach would be a declaration by a belligerent 
as to what is contraband, acknowledgment of such by the world community, use of a warning system by 
neutrals (see, e.g., supra note 289 and accompanying text), and a navicert or clearcert system such as those used 
in World Wars I and II, particularly if the conflict is protracted. The notification/warning/ navicert/clearcert 
methodologies should be feasible in today's world of facsimile and other instantaneous communication, even 
in the event of partial communications disruptions. For a discussion of the navicert system developed during 
World Wars I and II, see 7 Green H. Hackworth, Digest of International Law 212-17 (1943); 1 William N. 
Medlicott, The Economic Blockade 436-42 (1952); 2 id. 153-59, 420-27 (1959); 1 1 Marjorie M. Whiteman, 
Digest of International Law 38-51 (1968). The older terms were passport or sea-letter. Many bilateral 
agreements stated the terms for these during the eighteenth and nineteenth centuries. 2 John B. Moore, 
International Law Digest 1045-69 (1906). John H. McNeill, supra note 205, while citing NWP 9A, supra, 
questions whether the rules have now changed from visit, search, and capture to attack and sink for ships 
carrying warfigh ting/ war-sustaining cargo. 

418. J. Ashley Roach, in Panel, supra note 19, at 157; J. Ashley Roach, supra note 332, at 607. 

419. 2 Anthony H. Cordesman & Abraham R. Wagner, supra note 334, at 90-92, 101-02, 133-34, 170, 
186; Farhaug Mehr, supra note 334, at 105; Francis V. Russo, Jr., supra note 176, at 393. 

420. W. Thomas Mallison, supra note 195, at 132; Boleslaw Boczek, supra note 332, at 258-59; J. Ashley 
Roach, supra note 332, at 157. Iran's argument of the right of retaliation, or reprisal, has been properly rejected. 
Boleslaw Boczek, supra at 259-60; see also supra notes 28-32 and accompanying text. 

421 . Robert W. Tucker, supra note 62, at 334-35, citing, inter alia, London Naval Protocol, Feb. 26, 1909, 
arts. 61-62, in The Law of Naval Warfare, supra note 1, at 223, 251-52. 

422. Boleslaw Boczek, supra note 332, at 261-62; see also supra notes 11-39 and accompanying text; see 
also Rainier Lagoni, in Panel, supra note 19, at 163-64, who regards defense of merchantmen of flags other 
than the warship's as an open question. 

423. Compare, e.g. supra notes 54-60, 89-90, 92-93, 135-38, 157-58, 163, 204, 212, 237, 284, 289, 303, 
and accompanying text, with supra notes 421-22. 

424. Rainier Lagoni, in Panel, supra note 19, at 163. 

425. Robert W. Tucker, supra note 62, at 204. 

426. On the last, see L.F.E. Goldie, Lieber Group Panel: 83d ASIL Annual Meeting on Planning Further 
Meetings to Develop the Principles of International Humanitarian Law Governing Armed Conflict at Sea, 14 Syracuse 
J. Int'l L. & Comm. 555 (1989). See also infra notes 473-535 and accompanying text. 

427. 1 Howard S. Levie, supra note 283, at xxi-xxii. 

428. Id. at 162-63. 

429. 2 id. at 821-23. 

430. Id. at 821-24. 

431. Note Provessor Levie's careful omission of reference to pure state practice not grounded in a treaty 
or other significant document, supra note 427 and accompanying text. 

432. See supra note 428 and accompanying text. 



21 6 Targeting Enemy Merchant Shipping 

433. 1 & 2 Howard S. Levie, supra note 283, at 179-203, 524-40, 554-57, 560-61, 570-74. 

434. 1 id. at 107-08. 

435. Restatement (Third), supra note 1, §§ 331(2)(a), 336 & reporters' note 4. 

436. Id. §§ 501-02. 

437. Compare id. § 521 with UNCLOS, supra note 2, art. 87(1). See also supra notes 317-23 and 
accompanying text. 

438. Restatement (Third), supra note 1, § 521, comment b & reporters' notes 1, 2; § 905, comment g & 
reporters' note 7, discussing differences in the scope of the right of self-defense after ratification of the U.N. 
Charter. See also supra notes 1 1 -39 and accompanying text. 

439. U.N. Charter, art. 103, invalidates provisions of any other international agreement inconsistent with 
the Charter. Nothing is said in the Charter about the place of custom. 

440. The Nicaragua Case, supra note 1, found that a customary norm equated to the U.N. Charter, art. 
51, right of self-defense. Id., art. 93(1), declares that all states that are Members of the United Nations "are 
ipso facto parties to the Statute of the International Court of Justice." I.C.J. Statute, art. 38(1), lists treaties, 
custom and general principles of law as coequal sources of international law, and thus it could be argued that 
insofar as a customary norm has developed, it should be considered along with any treaty principles. If there 
are no treaty principles, custom or general principles should prevail. Whether a custom in derogation of the 
Charter would be upheld, given the broad sweep of Charter purposes and principles, U.N. Charter, arts. 1, 
2, and the possible finding of a customary norm parallel to them, is unlikely. On the other hand, since under 
the I.C.J. Statute, art. 59, decisions of the International Court of Justice are not given precedential value and 
are given secondary source status under id., art. 38(l)(d), whether the reasoning of the Nicaragua Case, supra 
note 1, would be followed is open to argument in the next case before the Court and may be a slim reed for 
dispute resolution in other contexts. Others have argued differendy. Cf, e.g., Vaughan Lowe, supra note 19, 
at 128, 137. If there is no source - i.e., no custom, treaties, etc., that apply to a situation - the Case of the S.S. 
Lotus (Fr. v. Turk.), 1927 P. C.I.J, (ser. A) No. 10, at 18 says that parties are free to act in the interest of their 
own jurisdiction. See generally George K. Walker, supra note 1, at 9. 

441. Restatement (Third), supra note 1, Part VI. 

442. See generally id. §§ 701-11. 

443. Cf id. §§ 701, reporters' note 6, and 702, reporters' note 11. The reporters' notes, although 
informative, are not considered part of the "restated law" as the comments are. George K. Walker, supra note 
1, at 36. 

444. Restatement (Third), supra note 1, § 702, Comment a, reporters' note 1. 

445. Id., reporters' note 1 1 . See also, e.g., George K. Walker, supra note 1 , at 32-33, citing different theories 
of the scope of jus cogens and its application to treaties, and see supra note 443 for the weight to be given 
Restatement reporters' notes. 

446. See U.S. Department of State, Treaties in Force 329 (1992), citing Genocide Convention, supra note 
109. 

447. 2 Restatement (Third), supra note 1, at 443-47 (table of multilateral international agreements), citing 
Hague Convention (IV) on the Law and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 
539. The Restatement does cite several agreements related to armed conflict situations. Restatement (Third), 
supra at 443-47, citing, e.g., Genocide Convention, supra note 109; Convention on the Non- Applicability of 
Statutory Limitations to War Crimes Against Humanity, Nov. 11, 1970, 754 U.N. T.S. 73. 

448. See supra note 328 and accompanying text. 

449. See supra notes 368-69 and accompanying text, which indicate that the United States and Kuwait at 
least considered the possible impact of the genuine link theory, in that underneath the change of flags were 
actions that would have satisifed the theory. 

450. The lack of need for a warning is explained by the advent of modern technology - e.g., satellite 
communications, over-horizon weapons and antiship missile systems - that make lack of warning imperative 
in some cases for the attacking warship. NWP 9A, supra note 4, para. 8.2.2. Sally V. Mallison & W. Thomas 
Mallison, supra note 62, at 287, omitted the controversial seventh category from their recapitulation, in 1991, 
of their list of enemy merchant vessels subject to attack and destruction. Commander Fenrick included the 
seventh category in his 1989 report to the IIHL Roundtable at Bochum, adding the caveat that the 1936 
London Protocol must be followed unless under the specific circumstances of the encounter, the attacker 
would be subject to "imminent danger" or it would otherwise be infeasible to comply. See infra note 535 and 
accompanying text. John H. McNeill, supra note 205, at 633-34, asks whether the seventh category represents 
a change in the rules, from the traditional rights of visit, search and capture to a claim of right to attack and 
sink. 

451. J. Ashley Roach, in Panel, supra note 19, at 154-55; Roach, supra note 332, at 594-95, citing U.S. 
Department of Defense General Counsel letter of Sept. 27, 1972, 67 Am. J. Int'l L. 122 (1973). 

452. NWP 9A, supra note 4, para. 7.5. 

453. See supra note 411 and accompanying text. 



Walker 217 

454. See supra note 415 and accompanying text. See also NWP 9A, supra note 4, paras. 4.3.2, 4.3.2.1. 

455. NWP 9A, supra note 4, para. 8.2.3. 

456. Compare id. para. 8.3.1 with id. para. 8.2.2. 

457. Id. para. 8.3.2. 

458. Id. para. 8.4. 

459. Id. para. 7.5. 

460. See supra notes 178-79, 183, 198, 308-13, 320-29, 369, 396 and accompanying text. 

461. NWP 9A, supra note 4, para. 7.5 n. 112, citing Caspar Weinberger, supra note 374, at 1450-51. 

462. See supra notes 374-75, 377, and 406 which show that some time intervened between reflagging and 
sailing the ships. 

463. NWP 9A, supra note 4, at para. 7.8. 

464. Id. ch. 10. 

465. Id. para. 11.10.2, at 11-22. 

466. See id. ch. 11. 

467. Id. para. 7.4 

468. Compare id. para. 7.6 with id. para. 3.8, the latter referring to OPNAVINST 3120.32B, which is not 
published with NWP 9A. 

469. NWP 9A, supra note 4, paras. 7.6, 7.9, 7.9.1. 

470. Id. para. 7.7. 

471. Id. paras. 7.9.2-7.10. 

472. See supra notes 11-39, 52-45, 207-08 and accompanying text. 

473. See General Report of the Preliminary Round Table of Experts on International Humanitarian Law Goueming 
Armed Conflicts at Sea and the List of All Participants and program, 14 Syracuse J. Int'l L. & Comm. 563-69 
(1988). 

474. Panel, Developments in the Law of Naval Warfare: Custom or Codification?, 1989 Proc. Am. Soc'y Int'l 
L. 145, 151 (1990) (Remarks by Professors Meron and Dinstein). David L. Larson, Naval Weaponry and the 
Law of the Sea, 18 Ocean Devel. & Int'l L. 125, 156 (1987) also urged a codification conference. For analysis 
of the Restatements in the context of the law of naval warfare, see supra notes 183-84, 435-47 and 
accompanying text. 

475. Panel, supra note 474, at 145 (Remarks by Professor Merson). 

476. Id. at 146, 147 (Remarks by Professor Goldie), referring to General Report of the Preliminary Round Table 
of Experts on International Humanitarian Law Governing Armed Conflicts as Sea, 14 Syracuse J. Int'l L. & Comm. 
563 (1988). 

477. Panel, supra note 474, at 147 (Remarks by Professor Goldie), referring to The Law of Naval Warfare, 
supra note 1 . 

478. See 1 Bochumer Schriften zur Friedenssicherung und zum Humanitaren Volkerrecht, supra note 62; 
8 id. (WolfTvon Heinegg ed. 1992). 

479. See Panels, supra notes 19, 261, 479. 

480. Panel, supra note 479, at 146-47 (Remarks by Professor Goldie). 

481. Id. 

482. Horace B. Robertson, Jr., supra note 39, a series of commentaries on NWP 9A, supra note 4. 

483. Panel, supra note 474, at 149 (Remarks by Professor Reisman). See also id. at 149-52 (Remarks by 
other participants), which noted development of the analogous Oxford Manual of Naval Warfare (1913), 
reprinted in The Law of Naval Warfare, supra note 1, at 277, by the Institut de Droit International. 

484. I.C.J. Statute, art. 38(l)(d); Restatement (Third), supra note 1, § 103(2)(c). 

485. Panel, supra note 474, at 146 (Remarks by Mrs. Doswald-Beck). 

486. See supra note 477 and accompanying text. 

487. I.C.J. Statute, art. 38(l)(d); Restatement (Third), supra note 1, § 103(2)(c). 

488. Havana Convention on Maritime Neutrality, Feb. 28, 1928, 47 Stat. 1989, T.S. No. 845, 135 
L.N.T.S. 188; Stockholm Declaration Regarding Similar Rules of Neutrality, May 27, 1938, 188 L.N.T.S. 
294, involving Denmark, Finland, Iceland, Norway and Sweden. See also infra notes 514-15 and accompanying 
text. 

489. Paris Declaration Respecting Maritime Law, Apr. 16, 1856, reprinted in The Law of Naval Warfare, 
supra note 1, at 61. 

490. See supra notes 174-86, 304-24 and accompanying text for a discussion of the 1958 conventions. 

491. Natalino Ronzitti, supra note 1, at 4-5. 

492. Compare id. at 6-7, 39-41 , with the analysis, supra notes 287-98; see also NWP 9A, supra note 4, paras. 
7.8, 7.8.1. Professor Lagoni, in Panel, supra note 19, at 163 would similarly assert that defensive protection 
zones are valid only if adjacent to the coast of a nation establishing such. See also supra note 297 and 
accompanying text. 



21 8 Targeting Enemy Merchant Shipping 

493. Andrea de Guttry, Commentary, in Law of Naval Warfare, supra note 1, at 102, 108-09, analyzing 
Hague Convention (VI) Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities, Oct. 
18, 1907, reprinted in The Law of Naval Warfare, supra note 1, at 93, and not in force for the United States. 

494. Compare Gabriella Venturini, Commentary, in The Law of Naval Warfare, supra note 1, at 120, 126, 
with NWP 9A, supra note 4, para. 7.5.1. Hague Convention (VII) Relating to the Conversion of Merchant 
Ships into Warships, Oct. 18, 1907, reprinted in The Law of Naval Warfare, supra note 1, at 111, is also not in 
force for the United States. 

495. Howard S. Levie, Commentary, in Law of Naval Warfare, supra note 1, at 140, 146, analyzing Hague 
Convention (VIII) Relating to the Laying of Automatic Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 
2332, T.S. No. 541; see also NWP 9A, supra note 4, para. 9.2, which says Hague VIII is a "guide" to the law 
on employment of naval mines, and supra note 376 and accompanying text on mine warfare during the 1980-88 
Tanker War. 

496. Ivan A. Shearer, Commentary, in Law of Naval Warfare, supra note 1, at 183, analyzing Hague (XI) 
supra note 62; see also NWP 9A, supra note 4, para. 8.2.3, which lists other vessels exempt from capture under 
other agreements. 

497. Dietrich Schindler, Commentary, in Law of Naval Warfare, supra note 1, at 211, analyzing Hague 
Convention (XII) Regarding Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 
2415, T.S. No. 545. 

498. Dietrich Schindler, supra note 502, at 21 1-13. 

499. Id. at 213-14; for analysis of these rights and duties, see id. at 215-21. 

500. Mat 221. 

501. Frits Kalshoven, Commentary, in The Law of Naval Warfare, supra note 1, at 257, 272-73. 

502. Edwin Nwogugu, Commentary, in id. 353; L.F.E. Goldie, Commentary, in id. 489, analyzing 
Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, arts. 1-4, 
in id. 343, 344-45, which never entered into force; London Treaty for the Limitation and Reduction of Naval 
Armaments, Apr. 22, 1930, art. 22, 46 Stat. 2858, 2881-82, T.S. No. 830, 112 L.N.T.S. 65, 88, now expired; 
Proces- Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of 
22 April 1930, Nov. 6, 1936, 173 id. 353, not in force for the United States; Nyon Arrangement, Sept. 14, 
1937, 181 id. 137, not in force for the United States; Agreement Supplementary to the Nyon Arrangement, 
id. 151, also not in force for the United States. 

503. Lyndel V. Prott, Commentary, in Law of Naval Warfare, supra note 1, at 582, analyzing 1954 Hague 
Cultural Property Convention, supra note 113. See also supra notes 1 13-22, 263 for further analysis. 

504. See NWP 9A, supra note 4, paras. 2.1.2.2, 3.4, citing, inter aha, 9 Marjorie M. Whiteman, Digest of 
International Law 221, 434 (1968); Marian Leich, Digest of United States Practice in International Law: 1980, 
at 999-1006 (1986). 

505. Roerich Pact, supra note 113. 

506. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of 
Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231. 

507. Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 23, 1972, 
27 U.S.T. 37, T.I.A.S. No. 8226. 

508. Michael Bothe, Commentary, in The Law of Naval Warfare, supra note 1, at 760, analyzing Protocol 
I, supra note 260. See also supra notes 259-75 and accompanying text. 

509. L.D.M. Nelson, Commentary, in The Law of Naval Warfare, supra note 1, at 779, 783, analyzing 
Havana Convention on Maritime Neutrality, supra note 488 and Hague Convention (XIII) Concerning Rights 
and Duties of Neutral Powers in Naval War, supra note 496, noting the U.S. reservation to article 12(3) of 
the Havana Convention, which would have equated armed merchantmen with warships with respect to 
sojourn and provisioning limitations. 

510. Ove Bring, Commentary, in The Law of Naval Warfare, supra note 1, at 839, 843, analyzing 
Stockholm Declaration Regarding Similar Rules of Neutrality , supra note 488. 

511. See, e.g., supra notes 490, 500-07 and accompanying text. 

512. See supra note 288 and accompanying text. 

513. Natalino Ronzitti, The Right of Self-Defense and the Law of Naval Warfare, 14 Syracuse J. Int'l L. 571, 
575 (1988), apparently referring to Howard S. Levie, supra note 283 at 727, 736-38. 

514. Howard S. Levie, supra note 283, at 737; W.F. Fenrick, supra note 288, at 102. 

515. Natalino Ronzitti, supra note 518, at 575; see also id. at 578 and Daniel P. O'Connell, supra note 
200, at 27-39, who articulates the same ambivalence. 

516. See, e.g., Commentary, 14 Syracuse J. Int'l L. & Comm. 581, 587 (1988) (Remarks of Dr. Fischer). 

517. Id. at 590 (Remarks of Mrs. Doswald-Beck); cf. id. at 590-91 (Remarks of Professor Lowe), 594 
(Remarks of Professor Robertson). 



Walker 219 

518. Vaughan Lowe, supra note 292, at 672-75; but see also Commentary, 14 Syracuse J. Int'l L. & Comm. 
677, 683-85, 690-91 (1988) (Remarks of Professors Lowe and Kalshoven), and Commentary, id. at 704, 715, 
718 (Remarks of Commander Fenrick and Professor Robertson). 

519. Hague Convention (IX) Respecting Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 
36 Stat. 2351, T.S. No. 542. 

520. Protocol I, supra note 260, art. 52, in The Law of Naval Warfare, supra note 1, at 727-28. See also 
supra note 261 and accompanying text. 

521 . Horace B. Robertson, Jr., New Technologies and Armed Conflicts at Sea, 1 4 Syracuse J. Int'l L. & Comm. 
699-704 (1988), referring to Horace B. Robertson, Commentary , in The Law of Naval Warfare, supra note 1, 
at 161. 

522. Commentary, 14 Syracuse J. Int'l L. & Comm. 704, 714 (1988) (Remarks of Professor Robertson). 

523. Id. at 705-13, 726, 722-25 (Remarks of Commander Fenrick, Dr. Van Hegelsom, Professor 
Robertson, Mrs. Doswald-Beck, Dr. Bring, Professor DeLupis, Col. Dahl, Professor Kalshoven, Professor 
Gordon, Professor Amer). See also Horace B. Robertson, Jr., supra note 521, at 169-70. 

524. Howard S. Levie, supra note 259, at 728-30, 736-38; see also Discussion & Notes, id. at 741, 747-48, 
749, 752-53 (Remarks of Professor Levie, Mr. Halkiopoulos, Dr. Van Hegelsom). But see id. at 751 (Remarks 
of Dr. Fischer). 

525. Discussion & Notes, id. at 748-49 (Remarks of Commander Fenrick), citing W. Thomas Mallison, 
supra note 195, at 1 17-23, and W.F. Fenrick, supra note 288; see also Discussion & Notes, supra at 751-53, 756 
(Remarks of Professor DeLupis, Admiral Clara, Professor Reisman). 

526. Discussion & Notes, supra note 524, at 749, 751,753,756,758 (Remarks of Professor DeLupis, Colonel 
Dahl). 

527. Antoine A. Bouvier, supra note 285; Commentary, 14 Syracuse J. Int'l L. & Comm. 765 (1988) 
(Remarks of Commander Fenrick, Mr. Eberlin); see also supra notes 285-86 and accompanying text. 

528. Ivan A. Shearer, supra note 371. The conference also had available Selected United States Rules of 
Engagement, Vietnam Era, id. 795 (1988), reprinted from 121 Cong. Rec. S9897-S9905 (1975). Classified ROEs 
are subject to the state secrets privilege. Zuckerbraun v. General Dynamic Corp., 935 F.2d 544 (2d Cir. 1991), 
affirming dismissal of a wrongful death suit involving a deceased U.S.S. Stark sailor; the claims were against 
missile defense system manufacturers, designers and testers and required technical details of the Phalanx close-in 
defense weapons system, alleged to have malfunctioned in the Iraqi attack on Stark during the Tanker War. 
See also supra note 370 and accompanying text. 

529. Remiguisz Bierzanek, Reprisals in Armed Conflicts, 14 Syracuse J. Int'l L. & Comm. 829 (1988). 

530. General Report of the Preliminary Round Table of Experts on International Humanitarian Law Governing 
Armed Conflicts at Sea, 14 Syracuse J. Int'l L. & Comm. 563 (1988). 

531. Compare I.C.J. Statute, art. 38(l)(d) with Restatement (Third), supra note 2, § 103(2)(c). 

532. Panel, supra note 474, at 146 (Remarks by Mrs. Doswald-Beck). 

533. W.J. Fenrick, supra note 62. 

534. Protocol I, supra note 260, art. 52(2), The Law of Naval Warfare, supra note 1, at 728. 

535. W.J. Fenrick, supra note 62, at 63-64. This paper was presented at the beginning of the conference, 
and participants were invited to submit comments, which are also being published, but which are not cited 
here because of space limitations. 

536. G.J.F. van Hegelsom, Methods and Means of Combat in Naval Warfare, in 8 Bochumer Schriften zur 
Friedenssicherung und zum Humanitaren Volkerrecht 1, 3 (Wolff von Heinegg ed., 1992), introductory report 
presented to the Round-Table of Experts on International Humanitarian Law Applicable to Armed Conflicts 
at Sea, Toulon, France, Oct. 19-23, 1990. 

537. In 1990 the group met in Toulon, France; see id.; in 1991, in Bergen, Norway; see Christopher 
Greenwood, supra note 19 and Wolff von Heinegg, supra note 147; in 1992, in Ottawa, Canada; see Horace 
B. Robertson, Jr., The "New" Law of the Sea and the Law of Armed Conflict at Sea 43 n.l (1992), originally 
presented as the introductory report to the Round-Table of Experts on International Humanitarian Law 
Applicable to Armed Conflict at Sea, Ottawa, Canada, Sept. 25-28, 1992. Additional conferences have been 
planned. 

538. I.C.J. Statute, art. 38(l)(d). 

539. Restatement (Third), supra note 1, § 103(2)(c). 

540. See, e.g., supra note 483 and accompanying text. 

541. Restatement (Third), supra note 1, § 103(2)(d) & Comment c. 

542. U.N. Charter, arts. 24, 25, 37, 39, 41, 42, 48. See also supra notes 45-47, 73-76 and accompanying 
text. 

543. NWP 9A, supra note 4, para. 8.2.3 & n.61, says that liners should not be attacked unless carrying 
troops or military cargo because civilian loss of life would be disproportionate to any military advantage 
gained. 



220 Targeting Enemy Merchant Shipping 

544. Cf. Horace B. Robertson, Jr., Preface, in Horace B. Robertson, Jr., supra note 19, at x, states much 
the same goals for his book. 

545. E.g., the reluctance of the U.S. Government to publish the Vietnam ROE. Ivan A. Shearer, supra 
note 371, at 767-68. 

546. Cf. I.C.J. Statute, art. 38(l)(b); Restatement (Third), supra note 1, § 102. See also George K. Walker, 
supra note 1, at 7-13. 

547. See supra note 62 and accompanying text. 

548. See supra note 61 and accompanying text. 

549. See supra notes 226-27 and accompanying text. 

550. See supra note 283 and accompanying text. 

551. See supra notes 285-86, 527 and accompanying text. 

552. See supra notes 1 28-29 and accompanying text. 

553. See supra notes 220-21 and accompanying text. 

554. See supra notes 112, 233-42, 361, 373, 376 and accompanying text. 

555. See supra note 284 and accompanying text. 

556. See supra note 335 and accompanying text. 

557. See supra note 416 and accompanying text. 

558. See supra notes 420-21 and accompanying text. 

559. See supra notes 422-23 and accompanying text. 

560. See supra notes 43, 63, 162-63, 168-69, 220, 343 and accompanying text. 

561. See generally, e.g., James F. McNulty, Blockade: Evaluation and Expectation, Nav. War. Coll. Rev. 65 
(Oct. 1966). 

562. See supra notes 200, 205, 207-08, 237-38. 

563. See supra note 206. 

564. See supra note 63 and accompanying text. 

565. See supra notes 287-92 and accompanying text. 

566. See supra notes 332, 347, 354 and accompanying text. 

567. WJ. Fenrick, supra note 288, at 124. 

568. See supra notes 29-32 and accompanying text. 

569. To fail to consider these additional sources may invite an incomplete analysis. Cf. the difficulty with 
relying exclusively on Howard S. Levie, supra notes 427-34, who carefully notes the lack of analysis of 
customary norms not generated by other documents such as treaties. 

570. See supra notes 108, 242-43 and accompanying text. 

571. See supra notes 257-58 and accompanying text. 

572. Cf. I.C.J. Statute, art. 38(l)(c), and Restatement (Third), supra note 1, §§ 102, 103; see also George 
K. Walker, supra note 1, at 31-32. 

573. See supra notes 107-12 and accompanying text. 

574. See supra notes 286-87 and accompanying text. 

575. See supra notes 338-29 and accompanying text. 

576. See sources supra at note 259. 

577. See supra notes 1 10-12 and accompanying text. 

578. See supra notes 1 13-23 and accompanying text. 

579. See supra notes 174-86, 304-17, 328-29 and accompanying text. 

580. See supra notes 259-75 and accompanying text. 

581. See supra notes 276-82 and accompanying text. 

582. See, e.g., supra notes 344, 349, 362, 379, 389, 393-399. 

583. Cf. I.C.J. Statute, art. 38(l)(d); Restatement (Third), supra note 1, § 103. 

584. See supra notes 473-537 and accompanying text. 

585. David L. Larson, supra note 474, at 156; Natalino Ronzitti, supra note 1, at 51. 

586. Both the I.C.J. Statute, art. 38(1), and the Restatement (Third), supra note 1, § 102 list custom, 
treaties and general principles of law as co-equal source of law, the Restatement restricting principles to a 
supplementary function for the other two. This contrasts with the primacy of treaties over custom in U.S. 
practice. See, e.g., George K. Walker, supra note 1, at 7, 41-45. 

587. George K. Walker, supra note 1, at 13-14. 

588. See id it 7. 

589. Horace B. Robertson, Jr., Modem Technology and the Law of Armed Conflict at Sea, in Horace B. 
Robertson, Jr., supra note 19, at 362; Horace B. Robertson, Jr., supra note 521, at 699; Horace B. Robertson, 
Jr., Commentary, in The Law of Naval Warfare, supra note 1, at 169-70. 

590. James Russell Lowell put it poetically: 
New occasions teach new duties; 
Time makes ancient good uncouth; 



Walker 221 

They must upward still, and onward, 

Who would keep abreast of Truth. 
The Present Crisis (1844), 1 James R. Lowell, Poetical Works 185, 190 (1890); see also Philip C. Jessup, supra 
note 34, at 98; Myres S. McDougal, supra note 34, at 63. This point can be a correlative of the previous one. 
See infra note 591 and accompanying text. On the other hand, a situation may arise in which there is little or 
no treaty law on point; examples are air and space warfare in this century. 

591. See, e.g., 6 U.S.T. 3267-3310, 75 U.N.T.S. 419-62, for a partial recitation. The United States also 
reserved to use the death penalty. See also Richard R. Baxter, The Geneva Conventions of 1949, Nav. War Coll. 
Rev. 59 (Jan. 1956); Gerald Draper, Rules Governing the Conduct of Hostilities: The Laws of War and Their 
Enforcement, id. 22 (Nov. 1965). 

592. The London Declaration Concerning the Laws of Naval War, Feb. 26, 1909, The Law of Naval 
Warfare, supra note 1, at 223, was rejected by the U.K. House of Lords, for example. Frits Kalshoven, 
Commentary, in id. at 271. 

593. This was the approach taken with NWP 9A, supra note 4, which has two versions. The text version 
of 1989, reprinted in Horace B. Robertson, Jr., supra note 19, at 385, is designed for naval commanders and 
for instructing nonlawyers. The annotated version, also issued in 1989, is copious in its citations and 
bibliography. A revision, to appear as NWP 9B, is currendy underway. See also George K. Walker, Book 
Review, 45 Nav. War Coll. Rev. 172 (No. 2, 1992). 

594. Frits Kalshoven, Noncombatant Persons, in Horace B. Robertson, Jr., supra note 19, at 300, 301, 325 
notes this problem for the drafters of NWP 9A. 

595. Cf W. Michael Reisman, The Cult of Custom in the Late 20th Century, 17 Cal. W. Int'l L.J. 133 
(1987). 

596. Myres S. McDougal, The Hydrogen Bomb Tests, 49 Am. J. Int'l L. 357-58 (1960). 

597. Besides the principles that may be invoked from the law of treaties in the uncertainties arising from 
the breakup of states, the law of treaty succession also must be taken into account. See generally Vienna 
Convention on Succession of States in Respect of Treaties, Aug. 23, 1978, U.N. Doc. A/CONF. 80/31 
(1978), 17 Int'l Legal Mat'ls 1488 (1978); Ian Brownlie, supra note 3, at 655-73; Arnold D. McNair, The Law 
of Treaties chs. 37-41 (2d ed. 1961); 2 Daniel P. O'Connell, State Succession in Municipal Law and 
International Law (1967). 



Green 223 

Comments on George K. Walker Paper 
State Practice Following 
World War II, 1945-1990 

By 
L.C. Green * 

It is not the purpose of these remarks to comment on the various conflicts 
considered by Professor Walker. Rather, they seek to draw attention to general 
problems relating to naval warfare law raised by the paper. 

Professor Walker rightly draws attention to the varied sources or agencies 
from which evidence as to the rules on international law may be drawn, and 
there can be no doubt that the rules of armed conflict may be drawn from similar 
sources, bearing in mind in this context the significance of the Martens clause 
with its reference to "usages established among civilized peoples, the laws of 
humanity and the dictates of the public conscience". While it is true that Hague 
Convention IV relates to warfare on land, it cannot be denied that these same 
basic principles are of general application, regardless of the theatre involved. This 
view finds some support in the Preamble to Convention IX of 1907 relating to 
Bombardment by Naval Forces, which expressly refers to "the desire to serve 
the interests of humanity and to diminish the severity and disasters of war." 

Care must be taken, however, not to exaggerate the significance of analogies, 
for, as Judge Badawi Pasha has pointed out, "in international law, recourse to 
analogy should only be had with reserve and circumspection." Caution must 
therefore be exercised in applying the rules which have been enunciated for one 
dimension of activity to another, unless the rules in question are of so general a 
character that it is obvious that they are intended to apply to armed conflict 
generally, regardless of whether it be conducted on land, at sea or in the air. This 
is particularly important in relation to Protocol I which expressly states in Article 
49 that "the provisions of [the] Protocol with respect to attacks apply to all attacks 
in whatever territory conducted, including the national territory belonging to a 
Party to the conflict but under the control of an adverse Party." This latter 
reference to 'territory under the control of an adverse party' clearly implies that 
it relates to land. Moreover, the Article goes on to state that its "provisions . . . 
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 . . . against objectives on land but do not otherwise affect the rules of international 
law applicable in armed conflict at sea. . . . (emphasis supplied) Clearly, therefore, 
the Protocol is only of direct effect insofar as naval warfare is concerned when 
that warfare is directed against the land. As to warfare at sea, whether it involves 
belligerent or neutral shipping or nationals belonging to an adverse party or to 



224 Targeting Enemy Merchant Shipping 

a neutral power, it is the traditional customary law, plus the relevant Hague 
Conventions that govern, and the Protocol provision "has no application to 
ship-to-ship . . . combat." The Protocol, therefore, is only relevant to the extent 
that it reproduces customary rules of warfare which may be regarded as of a 
general or fundamental character. Thus, rules regarding proportionality would 
be relevant, for "[t]he principle of proportionality is a general principle of the 
law of armed conflict which has found its expression in such provisions as the 
prohibition of 'unnecessary' suffering" in Article 23(c) of the Hague Regulations 
annexed to Convention IV. These comments apply even more emphatically 

Q 

to the Restatement (Third) Foreign Relations Law of the United States, which 
does not purport to deal in any way with the law of armed conflict other than 
somewhat superficially in regard to war crimes. Any comments made in the 
Restatement concerning the registration of ships or any other matter can hardly 
be said to "provoke a[ny] spillover effect into the law of armed conflict." 

In his paper, Professor Walker has excluded any consideration of sea to air 
engagements, whether directed against enemy or neutral aircraft. However, it 
should be noted that civil aircraft are as much "transports" as are merchant ships, 
while NWP 9 constantly coalesces its comments regarding both seagoing vessels 
and aircraft. It is perhaps proper, therefore, that at least some comment be made 
with regard to the targeting of civil aircraft. There can be no question that if 
there is ample evidence to indicate that a neutral aircraft is so assimilated to the 
forces or service of an adverse party, it is as amenable to attack as is a neutral 
merchant vessel in similar circumstances. However, the restrictions which 
traditional naval warfare law imposes with regard to the safety of personnel would 
not be normally applicable if such aircraft were attacked. The problem of a civil 
aircraft belonging to a belligerent arose in its most glaring form in relation to the 
attack upon an Iranian civil aircraft by the USS Vincennes during the Gulf War. 
This is perhaps not the place to consider whether the United States was in the 
position of a belligerent during that conflict and, if so, the identity of its adverse 
party. The fact that Captain Rogers considered himself to be under attack and 
the fact that United States naval forces were engaged in combat with Iranian 
vessels on occasion enables us to comment at least briefly on this particular 
incident. This attack, combined with warnings directed also to neutral aircraft 
in the vicinity of U.S. naval craft, while flying in an internationally recognized 
scheduled airlane, emphasizes the importance of careful attention not only to 
rules of engagement, but also to the factual situation, proper reading of tech- 
nological information and, especially, the maintenance of proper training and 
discipline on individual vessels. The issue of wrongful determination of the 
intention of an aircraft in the vicinity of operations must, in the first instance, 
be the responsibility of the naval commander, provided, however, that he 
exercises all reasonable precautions that may be expected of one of his rank when 
in action. This is particularly important in view of the provision in NWP 9 



Green 225 

that "civilian airliners in flight are subject to capture but are exempt from 
destruction . . . unless at the time of the encounter they are being utilized by 
the enemy for a military purpose ... or refuse to respond to the directions of 
the intercepting warship." It is also probably required that the naval commander 
should be reasonably certain that his "directions" are received and understood. 
It is recognized that this may put a heavy burden upon the naval commander in 
question, but it would appear, since such aircraft are prima facie immune from 
destruction, that the burden of denying immunity or protection rests upon him. 

Although, as has been pointed out, Professor Walker has drawn attention to 
the problem of proportionality, which may be said to underlie the whole of the 
law of armed conflict, and although he comments on it in the light of Protocol 
I, it is suggested that he perhaps over-extends the analogies from land warfare 
with which the relevant sections of the Protocol deal. It is further suggested that 
he has not fully discussed the problem as it may arise in actual naval combat. A 
merchant vessel which may well be a legitimate target in the circumstances may 
nevertheless have to be granted immunity from attack on account of the 
disproportionate damage that would ensue, particularly to the environment or 
of a long-term character, if an attack were launched. This issue could easily arise 
if the vessel in question were an oil tanker or, even more seriously, nuclear- 
powered. He bases his approach to this issue on the attacker's intent to destroy 
the vessel, without paying sufficient attention to the direct and reasonably 
anticipated consequences of such an attack. In such a case it might well be that, 
regardless of the legitimacy of the target, a naval commander might be required 
by his rules of engagement to consult with his political masters whether an attack 
should be undertaken. The effect of the destruction of such a vessel, particularly 
if that effect could result in damage to a neutral coast, might be so dispropor- 
tionate to the advantage to be gained from a sinking that a commander would 
be well-advised, if he is unable to capture the vessel, to allow it to continue on 
its way. 

A further problem arises concerning attacks on vessels carrying food, or, as in 
the Korean war, fishing vessels — a problem that would be aggravated if the 
adverse party was essentially a fish-eating state. While it is true that in customary 
law food may be considered as conditional contraband, new attitudes with regard 
to proportionality and the rights of non-combatants would require greater care 
than may have been necessary in the past. Once again a commander might have 
to weigh with care the effects of a sinking upon the civilian population as distinct 
from preventing a cargo of food that might be intended for the armed forces of 
the adverse party. The fact that NWP 9 is silent on the status of even coastal 
fishing vessels should not be taken to mean that such vessels belonging to 
nationals of the adverse party are automatically to be considered as legitimate 
targets either for sinking or capture, although if there is sufficient economic 
intelligence available to suggest a reasonable conclusion that the food is in fact 



226 Targeting Enemy Merchant Shipping 

intended for the armed forces there would be justifiable grounds to seize the 

vessel and submit it to prize jurisdiction. There is strong ground for arguing that, 

regardless of technical and similar changes that have taken place in recent years, 

1 ~\ 
the law remains as it was settled by Hague Convention XI in 1907, until such 

time as that Convention has been revised. It should be remembered that at 

Nuremberg the Tribunal took the line that "by 1939 [after a mere thirty years 

the] rules [laid down in Hague Convention IV] were recognized by all civilized 

nations as being declaratory of the laws and customs of war which are referred 

to in Article 6(b) of the Charter" establishing the Tribunal. The Preamble to 

Convention XI states that "it is expedient to lay down in written mutual 

engagements the principles which have hitherto remained in the uncertain 

domain of controversy or have been left to the discretion of Governments." 

Perhaps even more significant was the attitude of the Tribunal with regard to 

the London Naval Agreement of 1930 and the 1936 Protocol concerning 

unrestricted submarine warfare against merchant ships. The fact that both sides 

had indulged in such warfare did not remove guilt from Doenitz and Raeder 

in respect of having ordered such breaches of the law. The law remains despite 

naval practice, but punishment for breaches in such circumstances may be 

discounted. 

In this regard, it must be emphasized that international law is the product of 

state practice as evidenced by custom or by agreement in treaty. However, the 

mere fact that a treaty has not been amended or denounced does not mean that 

it remains declaratory of the law when belligerents have ceased to comply with 

its provisions. Such behavior may indicate that the treaty has fallen into desuetude 

and that the contrary practice, particularly when pursued by both sides without 

protest or attempt to indict an adverse party with criminality, is a better indication 

of what they consider acceptable or legitimate. 

1 H 

Professor Walker suggests that "[a]n inference could be made that the 
negotiators [of the 1949 Geneva Convention on the Wounded, Sick and 
Shipwrecked Members of Armed Forces at Sea ] would not have included [in 
its protective provisions] all merchant seamen, including those aboard enemy 
merchant vessels, if they did not feel that all such ships were subject to attack, 
which had become the norm during World War II." It could perhaps even more 
easily be inferred that it was because such conduct had become the norm during 
World War II, the draftsmen sought to protect such merchant seamen and to 
emphasize that if they were the victims of unlawful attacks they were still to be 
protected. 

While it may be true that the humanitarian law of armed conflict is part of 
the law of human rights, it may be submitted that the instance cited in the Walker 
Report concerning "a war of genocidal experimentation at sea, or an [order 
by an] individual commander that directs execution of a captured crew with 
genocidal intent" does not need any reference to general human rights law or 



Green 227 

the specific crime of genocide. In view of the accepted law with regard to war 
crimes, regardless of the theatre in which they are committed, to base criminality 
on the general body of human rights law in such circumstances would only 
amount to "gilding the lily". The reference to the perfidious use of the 
protective emblem with regard to cultural property is not confined to a vessel 
purporting to be carrying such property. It is of general application with regard 
to the use of any protective emblem, and is merely indicative of the problem 
that will face any commander who suspects that an emblem is being improperly 
used. Similarly, it is suggested that the references made to the 1958 Law of the 
Sea Conventions are not really in point since they are dealing with the normal 
uses of the sea in time of peace and do not purport in any way to affect the rights 
of belligerents, for, as Professor Walker himself points out, the freedom of the 
high seas is exercised — and therefore limited by — "the other rules of interna- 
tional law" as well as the stipulations of the Convention. Equally the reference 
in UNCLOS, 1982, that "the high seas shall be used only for peaceful pur- 
poses"" implies that the contents of that Convention have no relevance to naval 
warfare, at least until such time as there is no doubt that naval warfare as 
traditionally conducted is contrary to international law per se. 

Rather than drawing analogies from Protocol I, it might be better, particularly 
in view of the number of major naval powers that have failed to ratify this 
instrument, and of the fact that there is by no means universal agreement as to 
which articles of the Protocol amount to rules of customary law in regard to 
warfare on land, let alone to fundamental principles underlying the law of armed 
conflict as such, to ignore the terms of the Protocol and seek to evolve a draft 
applicable to naval warfare alone. Moreover, it should be remembered that 
Protocol I is intended to elaborate the Geneva Conventions of 1949 as they 
apply to humanitarian law in armed conflict. In the light of the experience of 
World War II and the technological advances that have evolved since, it would 
appear that the various Hague and later agreements concerning naval warfare 
have become somewhat archaic and tend to be disregarded. Experience in the 
Gulf War and the use of protective fleets by non-participants suggest that it is 
time to revise also the rights and duties of neutrals in naval warfare and to 
re-examine their right to establish protective convoys, for it is submitted the 
legal position is not as clear as Professor Walker asserts. Any such revision 
would, of course, make use of any relevant principles to be found in the 
agreements mentioned by Professor Walker. 

However, to seek to extend to naval warfare principles especially drafted with 
a view to the needs of land warfare often makes the exercise somewhat artificial 
and far-fetched. This is particularly true when the specific provisions of Protocol 
I are incompatible with the customary or previously established treaty law 
relevant to naval warfare. The comments here made with regard to Protocol 
I are equally applicable to the Protocols appended to the 1980 Conventional 



228 Targeting Enemy Merchant Shipping 

Weapons Convention. At the same time it should always be borne in mind 
that the fact that neither a specific Convention nor customary law specifically 
"requires or approves or permits" a particular line of conduct, such as the 
establishment of a "Red Cross Box" during the Falklands conflict, does not in 
any way prevent the parties to the conflict from setting up any similar "box" or 
making any arrangement that they choose and, as between themselves, this 
would even apply to an arrangement derogating from a treaty requirement. This 
is probably true even of those agreements that have been made for the protection 
of persons hors de combat, unless it can be maintained that the treaty provision in 
question amounted to a principle of jus cop-ens applicable to the protection of 
human rights even during armed conflict. 

In connection with the Gulf War and the destruction and attacks on neutral 
shipping, Professor Walker draws attention to Commander Fenrick's com- 

fc 30 
ment: 

It is somewhat surprising that the actions of Iran and Iraq in the Persian Gulf did 
not generate a stronger, or at least more vociferous, response on the part of other 
states. It is presumed the relative lack of response is owing to the desire of the 
superpowers to avoid conflict with each other in a sensitive area. . . . 

In view of the apparent willingness of the superpowers to tolerate the situation 
and indulge in minesweeping, chartering or reflagging of vessels, it seems 
unlikely that such a conflict might have ensued. Perhaps it may be suggested that 
the reason for the lack of more vigorous response was that the superpowers were 
not prepared to state that Iranian and Iraqi practices were in conflict with the 
rights of belligerents to attack neutrals when there was some evidence to suggest 
that they were in fact trading with or indirectly supporting a belligerent. 
Moreover, practice during World War II, as well as during the Gulf War, 
suggests that belligerents will disregard the former distinction between absolute 
and conditional contraband or the requirement that contraband lists be publish- 
ed, and will instead seek to inhibit any trade with an adverse party, contending 

that such trade automatically assists the economic war effort, which would appear 

-l-i 

to be recognized by NWP 9 and this, moreover, seems to be Commander 
Fenrick's current view. While it is true that both Fenrick's proposals and the 
draft: to have come out of Pisa and Bochum are completely unofficial, they 
may be indicative of the manner in which the law of naval warfare, at least in 
regard to the targeting of merchant vessels, might proceed. 



Green 229 



Notes 

* LL.B., LL.D., F.R.S.C., University Professor, Honorary Professor of Law, University of Alberta. 

1. Preamble to Hague Convention IV, 1907, reprinted in Dietrich Schindler and Jiri Toman, The Laws 
of Armed Conflicts 70 (3d ed. 1988) [hereinafter Schindler and Toman]. 

2. Id. at 812. See also Case Concerning Military and Paramilitary Activities In and Against Nicaragua 
(Nicar. v. U.S.), 1986 I.C.J. 14, 113-4 (para. 218). 

3. Reparation for Injuries Case, 1949 I.C.J. 205, 211. 

4. Schindler and Toman, supra note 1 , at 650. 

5. Michael Bothe ET.AL, New Rules for Victims of Armed Conflicts 290 (1982). 

6. See, e.g., U.S. Department of the Navy, Commander's Handbook on the Law of Naval Warfare, 
NWP 9 (1987) 8.1.2, 8.5.1.7 [hereinafter NWP 9]; W.J. Fenrick, The Rule of Proportionality and Protocol I in 
Conventional Warfare, 98 Mil. Law Rev. 91 (1982). On the general principle of "proportionality", see Case 
Concerning Air Service Agreement (U.S. v. France) 18 Rep. Int'l Arb. Awards 417, 443-5. 

7. Supra note 5, at 1 19; see also id., at 194-5. 

8. George K. Walker, State Practice Follwoing World War II, 1945-1990, 65 International Law Studies: 
Targeting Enemy Merchant Shipping 172 (Richard J. Grunawalt, ed., 1993). 

9. Id.ztWA. 

10. NWP 9, supra note 6, at 8.2.3.6. 

11. Supra note 8, at 182. 

12. Id. at 182-186. 

13. Convention Relative to Certain restrictions with regard to the Exercise of the Right of Capture in 
Naval Warfare, reprinted in Dietrich Schindler and Jiri Toman, supra note 11, at 819. 

14. H.M.S.O., Cmd. 6964, 65; 141 Ain, J. Int'l L. 1947, 172, 248-9. 

15. supra note 1, at 881. 

16. Id. at 883. 

17. Loc. cit., n. 12, 109, 112; 304-5, 308, resp. 

18. Supra note 8, at 131. 

19. Supra note 1, at 401. 

20. Supra note 8, at 131. 

21. Id. at 132. 

22. Id. at 156-157. 

23. Id. at 156. 

24. Id. at 170. 

25. See, e.g., Robert W. Tucker, The Law of War and Neutrality at Sea, 1955 International Law Studies 
335 (1957). 

26. Supra note 8, at 148 et seq. 

27. Supra note 1 , at 1 79-96. See W.J. Fenrick, New Developments in the Law Concerning Conventional Weapons 
in Armed Conflicts, 19 Can. Y.B. Int'l L. 229 (1981). 

28. Supra note 8, at 153. 

29. See, e.g., Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989). 

30. Supra note 8, at 169. 

31. NWP 9, supra note 6, at 8.2.2.2(7). 

32. Supra note 8 at 185-186. 

33. Id. at 186. 



Chapter V 

Targeting Realities: 
Platforms, Weapons Systems and 

Capabilities 



A paper by 
James Service * 



Comments by 
J. H.Doyle, Jr. 



Service 231 



Targeting Realities: 
Platforms, Weapons Systems and 

Capabilities 



Ladies and Gentlemen, I am neither a legal scholar nor an academic. In fact, 
my only real academic credential stems from the fact that I once was 
privileged to preside over the world's finest War College — the institution in 
which we meet today. What I am is a retired naval officer, an aviator by military 
profession, and a former Battle Force Commander. Through a period of 35 years 
of active duty service I became familiar with the responsibility that goes along 
with the application of military force in pursuit of national interests. My purpose 
here is to present my view — the view of the naval warrior — of the realities 
of naval warfare in the modern world. To do this I must first describe what I 
think might happen during a future conflict. 

I. The Future Conflict 

We'll start with some assumptions concerning the nature of future conflict. 
First, I assume that in the current international political climate, the likelihood 
of a large, conventional and declared war is relatively low, while the likelihood 
of a limited conflict is high. Second, I assume that any conflict today, particularly 
one that might be prolonged, will involve economic targeting. Third, I assume 
that modern warfare, even that of a limited nature, will be fought, in part at least, 
with technologically advanced weapons. Fourth, and here, perhaps, is my 
shakiest assumption, I assume that the recent events in the Persian Gulf are a 
prototype of contemporary international armed conflict which may occur in the 
maritime environment. Each of these requires some further explication. 

A. Limited Conflict 

My first assumption, that conflict will be of a limited nature, requires some 
definition. I fully recognize that "limited" is a term that may mean many things 
to many people. Certainly it is no comfort to the person being shot at that the 
conflict he is engaged in may be perceived by outsiders as limited. It is rather 
like an observation made by Admiral Jim Watkins when he was the Chief of 
Naval Operations. In referring to the state of world order, he remarked that this 
may indeed be a time of peace, but it is a very violent one. For my purposes, I 
view limited conflict as one that involves few belligerents and is conventional 
(i.e., non-nuclear) in its nature. 

In my opinion, we have reached a stage in world history when the interests 
of peace are truly global in nature. I think it beyond question that it is in the 



232 Targeting Enemy Merchant Shipping 

best interests of both the Soviet Union and the United States to preserve the 
peace - however tense that peace might be from time to time. To a greater 
extent than ever before, the world today is largely comprised of status quo 
powers. More than this, virtually all nations of the world have an interest in 
containing the effects of armed conflict. 

Most nations prefer to see the international polity continue largely as it exists; 
yet an anomaly persists. In some parts of the world, war still retains the natural 
and legitimate connotations it had in the Western world prior to World War I. 
My view of the world yields a "good news/bad news" cliche. The bad news is, 
international conflict will continue to exist into the foreseeable future, even in 
the presence of a relatively universal desire for peace. The good news is that such 
conflict probably will be limited in scope, if not in nature. No rational belligerent 
nation will want to risk resort to expansive warfighting means that may invite 
other nations to become belligerents in opposition to them, and no ostensibly 
neutral nation will want to commit itself to a struggle for its very survival solely 
in another nation's interest. 

In addition, since modern technology produces weapons that give a significant 
advantage to the nation that strikes first, it is unreasonable to expect that highly 
publicized declarations of war will precede contemporary hostilities. The last 
declaration of war was the Arab-Israeli War of 1948; since that time, no nation 
has, in that manner, signaled its intent to engage in hostilities. Given the 
technological and legal sophistication of nations today, I will assume that future 
conflicts also will commence without formalities. 

B. Targeting Economic Assets 

My second assumption, that future wars will involve targeting of economic 
assets, is based on two premises. First, I believe the days of territorial conquest are 
now a part of history. This is not to say that wars may not continue to erupt over 
disputed claims of sovereign territory, but I consider it highly unlikely that future 
wars will be fought for literal national survival — in part because the international 
polity cannot accept the possibility that a nation may pass out of existence at the 
pleasure of another nation. Witness, for example, the concerns of many smaller 
nations over the relatively benign 1983 invasion of Grenada by U.S. forces. 

Second, since territorial conquest is an unlikely result of future wars, an 
alternative means of bringing armed conflict to a favorable conclusion will be 
employed. I believe the mechanism of choice will be an attempt to diminish the 
enemy's economic capability to continue the war effort. Of course, throughout 
history economics frequently has played a role in war-fighting tactics and 
strategy. The difference today is that now it could be a predominant factor. 

If my first assumption is a correct one, that wars will be fought by limited 
numbers of nations, then in a very real sense, each belligerent will be an island. 
To the extent that an opposing belligerent can prevent that "island's" ability to 



Service 233 

resupply and/or to gain economic credits with which to purchase military 
supplies, a significant, and perhaps a decisive, advantage can be gained. War may 
not be rational, but it must be functional. 

C. Modern Warfare is Technologically Advanced 

My third assumption, that future wars will be heavily influenced by modern 
technological advances in weaponry, is really a product of empirical verification. 
Once the exclusive province of the more advanced nations, today "smart" 
weapons, missile technology and highly sophisticated naval platforms are avail- 
able to virtually all nations. The India-Pakistan war of 1971 was a sobering 
experience for much of the world simply because it was fought by third-world 
nations with big-power weapons. In this conflict, the world witnessed the first 
naval missile battle in history and, I believe, presaged the shape of things to come. 
Since that time, virtually all nations involved with international armed conflict 
have employed modern technology to advantage. 

The weapons of the Persian Gulf tanker war are clear, contemporary examples 
of this reality. Iraq employed modern air platforms to launch Exocet missiles at 
the tankers purchasing oil from Iran. Iran deployed Silkworm missiles both for 
defensive and offensive purposes. By war's end, both nations were engaged in a 
"War of the Cities" using modern missile technology. 

The practices of other nations serve to underscore the point. Argentina 
employed Exocet missiles in the Falklands/Malvinas conflict. Brazil and India 
both are endeavoring to build modern submarine fleets. South Korea, Israel, 
France and other nations are heavily involved in supplying modern arms to 
third-world powers. Even guerrilla fighters seem to have unlimited access to 
modern weapons if they have the cash to purchase them. 

D. The Iran-Iraq Tanker War Model of Contemporary Warfare 

My final assumption that the Iran-Iraq Tanker War is a model for wars of the 
future really proceeds from a combination of the three prior assumptions. That 
war began without formality when Iraq crossed the border to occupy disputed 
territory. In all likelihood, future wars will begin as this one did or, equally 
probable, when internal pressures become strong enough for another nation to 
begin actively supporting insurgent forces. 

From the perspective of the belligerents, the war was, of course, total, but it 
was a war of two belligerents only. It can hardly be argued that either the great 
powers or the nations of the Middle East were impartial, but all attempted to 
remain apart from the actual conflict itself. I believe that too will be a pattern 
for the future. 

Of particular interest is the fact that, from the outset, the Persian Gulf Tanker 
War was a conflict of attrition. The objectives were primarily economic, although 
later in the war attrition focused on baser objectives (i.e., when the Iran-Iraq 



234 Targeting Enemy Merchant Shipping 

War became a "War of the Cities*' and the civilian populace of each nation was 
deliberately targeted). Iraq clearly focused belligerent efforts on the economic 
sustenance of Iran's warmaking capability by targeting the tankers purchasing 
Iranian oil. Iran, without the ability similarly to target Iraqi oil, attempted to 
make the war economically painful for all nations through indiscriminate mining 
and violent harassment of merchants bound for other Persian Gulf ports. 

Finally, both nations fought the conflict with a combination of traditional 
means (e.g., armed foot soldiers) and sophisticated weaponry (e.g., Exocet, Scud 
and Silkworm missiles). In an era when even insurgents have Stinger missiles, 
modern assault rifles and high-tech weapons platforms, we must expect that 
nations who fight each other will surely be able to obtain — and equally surely, 
will utilize — sophisticated means of destruction. 

II. Targeting the Enemy 

Having laid a predicate for my arguments with the foregoing assumptions, I 
can now turn to the issue of targeting. Targeting the enemy has, in essence, two 
main objectives. The first is destruction of the enemy's implements of war and 
the second is reduction of the enemy's capability to sustain a war effort. Both 
objectives seek to bring the war to a successful conclusion through attrition. 
Targeting the enemy implements of war is an obvious necessity, but one not 
necessarily germane to the issue that you seek to resolve in this conference. 
Therefore, I turn to the second objective of targeting, reducing the enemy's 
capability to carry on the fight. 

In any prolonged conflict of the future, it will be essential that the enemy's 
capability to sustain its war effort be targeted from the outset. In a very real sense, 
war has progressed, if you can call it that, from a territorial imperative to an 
economic issue. Accordingly, a major role for naval commanders in the future 
will be to interdict and/or destroy enemy merchant shipping. The concomitant 
conclusion is that economic viability will be a critical element for any belligerent. 
This means, in turn, that the military commander will have an equally important 
task in protecting his own nation's economic base — including merchant vessels. 

This objective of warfare is hardly a novel one. Laying siege to the enemy 
fortification was a form of economic warfare. In the early years of the nineteenth 
century, France and England were locked in a titanic struggle and each sought 
to weaken the other through economic means. Napoleon, by the Berlin Decrees 
of 1806 and the Milan Decrees of 1807, sought to sever Europe's trade with 
England, imposing, in essence, an outward facing blockade. The British struck 
back with the "Orders in Council" by which they hoped to regulate trade so as 
to force their own wares upon Europe while strangling the export trade of France 
and her allies. Neither system was wholly successful, but both were instrumental 
in achieving a threshold of economic pain for the other. 



Service 235 

During the U.S. Civil War, both blockade and targeting of the South's 
economic base (i.e., international commerce in cotton) played a major role in 
the North's overall strategy to bring the conflict to a successful conclusion. In 
both World Wars, Germany made a concerted effort to interdict Great Britain's 
seaborne resupply efforts while Great Britain, in turn, sought to foreclose all 
commerce to and from occupied Europe. In the Second World War, the 
submarine force of the U.S. Pacific Fleet was employed to destroy Japan's 
merchant fleet and thereby restrict her access to the raw materials that sustained 
her industrial might. In the India-Pakistan War of 1971 visit-and-search tech- 
niques were applied to interdict maritime commerce. Iran also employed 
visit-and-search techniques extensively during the Iran-Iraq conflict. 

In sum, targeting an enemy's economic base has proved in the past to be an 
effective means of conducting warfare. Not infrequently, it has been a decisive 
factor, affecting both land and naval campaigns. In an appropriate situation, it may 
be a decisive factor in bringing hostilities to an early resolution. My conclusion, 
then, as a student of history and as a former military planner, is that economics 
will continue to play a significant role in any prolonged armed conflict. 

That brings me to the essence of my thesis. Given that economics have played 
an effective role in warfare of the past, it remains to be seen why targeting the 
enemy's economic base — that is, actual destruction — is, or may be, necessary. 
It is fair, I think, to reflect on the utility of less destructive means of coercion, 
such as visit and search, blockade and mining. Certainly these mechanisms have 
been effective means of applying economic coercion in the past. 

The reality, I believe, is that the structure of the international polity is 
significantly different today than it was just a few decades ago. Successful 
avoidance of the strictures of mining and blockade have always been possible 
through concerted internal effort. Today, however, nations are economically 
interdependent, international corporations are multi-national in scope and 
structure and, most importantly, profits are there to be made — or lost — on 
the vagaries of world conflict. So long as the enormous profits associated with 
trading in war materials are available, there will be successful attempts to evade 
international commitments stemming from blockades or national directives — 
attempts that transcend and multiply substantially the capability of the individual 
nation to avoid the effects of those tactics. In this situation, passive methods of 
interdicting commerce may be useful, but only marginally so. 

III. Capabilities, Limitations and Tactics of Naval Platforms 

A. Capabilities 

At sea, the essence of tactical success in modern naval warfare has been the 
ability to first put ordnance on target. In a limited, conventional war, this tactic, 
when applied to the economic resources of the enemy, well may be a strategic 



236 Targeting Enemy Merchant Shipping 

consideration. Today, the capabilities of naval platforms to accomplish that task 
are significantly more impressive than their counterparts of only a few years ago. 
Advanced weapons technology, coupled with increased capabilities to gather 
real-time information about the potential enemy's disposition and location, puts 
at hazard the enemy platform in ways never before even conceived. 

Missile technology yields a stand-off strike capability that is relatively new. 
The U.S. Navy's Harpoon, for example, is an anti-ship guided missile with a 
range of 60 nautical miles. It may be launched from air, surface or subsurface 
platforms in any weather state. The platform launching the Harpoon may receive 
guidance data from other platforms and the missile itself requires no data inputs 
subsequent to launch. During the Iran-Iraq Tanker War, Iraq very effectively 
used French-made Exocet missiles to target oil tankers doing business with Iran. 
The high-speed, sea-skimming capabilities of an Exocet makes it a very 
dangerous weapon indeed, and one for which the merchant ship has little, if 
any, defense. 

In addition to missiles, "smart- weapons" with built-in TV or imaging infrared 
seeker guidance systems provide a good stand-off capability with a high degree 
of accuracy. Similarly, wire guided torpedoes and mines that react only to preset 
conditions may effectively increase the capability to target enemy merchant 
vessels with specificity and relative safety. 

Still, all these capabilities are of little value if the information needed to put 
the ordnance on target is not known. It is probably pedestrian to say that 
intelligence is a constant of war, but it is nevertheless true. The value of radar 
in World War II, or that of the communications intelligence developed in the 
same era, cannot be overemphasized, and the ability to use stand-off weapons 
has now put an enhanced premium on having the information needed to 
accurately deliver those weapons. 

The concomitant of weapons technology and "smart" weapons is that 
intelligence technology has been advanced as well. Today, the ability to gain the 
information needed effectively to use a stand-off capability also has been 
developed. The result is that technology and information capabilities coalesce 
to make sea strikes from afar a probable fact of naval targeting in future conflict. 

B. Limitations 

Despite these very significant capabilities, there are accompanying limitations. 
Primary among the limitations of modern naval platforms is their vulnerability. 
That first strike capability I mentioned previously is a critical advantage in 
modern naval engagements. No longer are surface ships capable of absorbing 
those first few cannon shots and still win the battle with skillful seamanship and 
daring commanders. Air platforms today do not return to base with their canvas 
skins full of bullet holes. Today's high performance aircraft are more capable 
than their predecessors, but so are the missile defenses used to thwart an aerial 



Service 237 

attack. Submarines depend on stealth and deep water for survival and are 
extremely vulnerable once on the surface. 

In addition, if the enemy naval forces are a significant threat relative to your 
own, battle tactics will require massing your forces in sufficient numbers to apply 
a concentration of firepower capable of defeating that first attack — or threat of 
attack. This, in turn, means that the ability to disperse forces for commerce 
raiding is reduced. Therefore, the probability is that the raider will be a lonely 
platform. 

Moreover, a warcraft with great offensive firepower and little means of 
defense is an inherently vulnerable platform. That platform will necessarily 
depend on such variables for a first strike capability as stealth, intelligence and 
weapon- range combinations plus speed and agility. To successfully survive its 
attack on the enemy — whether merchant or military — the platform will need 
the stand-off distance afforded by modern technology merely to ensure escape. 
The obvious conclusion to be drawn from these facts is that the air platform or 
the silent submarine, if available, will often be the weapons of choice for targeting 
the merchant vessel. 

Complicating the equation is the fact that there is an inherent scarcity of high 
value munitions and an uncertain ability for those weapons to destroy the enemy. 
Surface platforms, even with their greater magazine capabilities, can carry only 
so much ordnance. Submarines, which are highly vulnerable upon detection, 
can carry only so many torpedoes or submarine-launched cruise missiles 
(SLCMs), and aircraft: are even more obviously limited. In any prolonged conflict 
that involves relatively equal naval capabilities between the antagonists, I believe 
we will see ships at sea with empty missile magazines and, perhaps, little to show 
for their delivery. When Admiral Arleigh Burke was asked what he would 
change in the new class of guided missile destroyers named for him, he said he 
would add a brace of cutlasses. 

Finally, intelligence, however capable, still has its limitations and this can 
present the Battle Group Commander with a dilemma. Propulsion system and 
radar signatures can be catalogued for high-value military platforms, but the task 
of assembling definitive targeting information on all merchant vessels would be 
daunting. Furthermore, repair and replacement of various electronic com- 
ponents would be difficult to track and catalogue as the merchant fleet undergoes 
periodic maintenance. 

The Joint Operational Targeting System (JOTS) overhead satellite systems 
and tactical systems available to the Battle Group Commander have superb 
capabilities, but, in the final analysis, none can replace VID (visual identification) 
to confirm whether the potential target is the right one. There is, therefore, 
a risk that any attack on merchant shipping launched over-the-horizon 
without visual ID may find an innocent victim. I think it is also fair to state that 
only a few nations possess sophisticated targeting/intelligence systems such as 



238 Targeting Enemy Merchant Shipping 

those I have described. In the absence of such systems, less capable nations will 
be inclined to shoot first and ask questions later as we have witnessed during the 
recent Iran/Iraq conflict. In other words, adherence to the 1936 Naval Protocol 
by one party only (perhaps by the more capable nation) may place it at a 
considerable disadvantage — at least until it recognizes how the game is being 
played. 

C. Tactics 

Given the foregoing, my conclusions as to the tactics likely to be employed 
in a future war at sea are that over-the-horizon OTH systems, to the extent 
possible, will be the weapons of choice. Mine warfare may be utilized, and where 
it is, I would expect that it would be employed primarily to blockade ports or 
to channelize merchant shipping. Unquestionably, the nation that possesses aerial 
capabilities to target the enemy merchant vessel will have an advantage that will 
be fully exploited. And, finally, surface and sub-surface attacks will be swift and 
carried out with as much stand-off capability as possible to avoid the potential 
of being targeted in return. Submarines, especially, have awkward command 
and control and limited defensive capabilities. 

I think the conclusions to be drawn from these tactics are fairly clear. There 
is no doubt in my mind that any platform engaging a merchant will attack 
without warning and then retreat rapidly from the area of conflict after that attack 
for the simple reason that the stand-off capabilities available to him are also likely 
to be available to the enemy as well. The uncomplicated fact is, delaying an 
exodus from an area of attack will be hazardous to the longevity of the attacker. 

IV. Relevance of the 1936 Protocol 

All this brings me to the central topic of your discussion today — the relevance 
in 1990 of the London Protocol of 1936. If I were once again to place myself 
in the position of a battle group commander, responsible for interdicting enemy 
commerce on the high seas, I would have to consider the following issues and 
problems when a possible enemy merchant vessel is discovered. 

A. Surface Platform Interdiction 

Should my platform engage or warn? If I warn at a distance, will my 
communication to the merchant reveal my own position and subject me to 
immediate targeting by enemy warships, enemy aircraft: or by the merchant 

Q 

itself? In any case, would a warning from an unseen enemy be sufficient to cause 
the merchant to stop and abandon ship? If I warn through visual signals, to avoid 
electro-magnetic emissions, will the merchant nevertheless broadcast the situa- 
tion? Is the merchant being escorted by other vessels, including air or sub-surface 
platforms? Even if none of these situations are immediately threatening, will my 



Service 239 

proximity in the area for the length of time necessary to warn, to permit the 
crew to abandon and to then sink or scuttle the merchant nevertheless be 
unacceptably hazardous to my own unit? 

B. Subsurface Platform Interdiction 

Should my submarine silently torpedo the merchant or should I come to the 
surface to warn? All my previous problems with the surface vessel now arise, 
with a few more thrown in. A submarine on the surface is not only an unwieldy 
platform, slow to respond and maneuver, but, without the cloak of deep water, 
it is highly vulnerable with virtually no surface oriented defenses. Moreover, if 
the merchant should carry armament itself, it would have an immediate tactical 
advantage over the submarine within range of its weapons system. Even without 
armament, it is probable that a large merchant would withstand ramming far 
better than a submarine. 

C. The Airborne Platform 

Of all platforms, the airborne one stands in the least risk of immediate 
destruction from warning the enemy merchant before releasing ordnance on it. 
Yet, here too, the anomaly of the London Protocol for modern warfare is 
evident. It is true that the air platform may be better able to escape enemy forces 
called to defend the merchant that has been warned, but that says no more than 
that the warning may also be the hunter's signal to abandon the quarry. 
Moreover, the length of time necessary to bring the ship to all stop and to 
disembark passengers, crew and ship's papers will almost certainly exceed the 
fuel capability of an attack aircraft to loiter over the target. Indeed, if the aircraft 
were to be required to permit passengers and crew to disembark prior to 
commencing a bombing attack, the purpose of the interdiction could be defeated 
by a dilatory crew. The alternative would be to hold that aircraft may not attack 
merchant vessels. 

V. The Commander's Decision Matrix 

The military commander's focus is on his mission, not on the specific platform 
he may use, and generally not on the specific tactics he may employ, to 
accomplish the mission. As a general proposition, the military commander will 
not avoid using an effective and efficient tactic, otherwise lawful, merely because 
of an ambiguity in international law. Having said that, I also need to say that I 
do not believe any U.S. military commander would reject, out of hand, any 
ostensible requirement of international law when structuring his forces and 
tactics. 

I think this is true because we who have been responsible for planning and 
executing the application of military force are acutely aware that the laws of 



240 Targeting Enemy Merchant Shipping 

armed conflict both serve a valid purpose and complement the principles of 
warfare. Yet, it is we, and our forces, who sit on that knife's edge when it comes 
time to take up arms. Because of this, we feel keenly the need for reality and 
theory to come together in international law and particularly so in the laws of 
armed conflict. To give you an idea how the military planner might approach 
this problem, it may be helpful for you to understand how I personally might 
view the situation. My own decision matrix would begin with observations 
something like this: 

First, my objective is to help bring the war to a speedy conclusion on favorable 
terms to my government. Second, I have an inherent responsibility to protect 
my nation's assets — which includes my own forces. Third, I have a similarly 
inherent responsibility to minimize the effects of war to the extent possible. 
Fourth, I view interdiction of enemy economic resupply efforts as a viable means 
of shortening the conflict and minimizing damage on both sides. Fifth, my 
enemy has targeting capabilities similar to mine. Sixth, I cannot commit all my 
forces to commerce raiding — substantial assets must be massed to engage enemy 
military forces or to support the land and air campaign. Seventh, modern 
communications and intelligence methods are such that, once located, any 
military platform is at risk from enemy forces. Eighth, high value modern 
munitions will generally be reserved for high value targets. Ninth, use of iron 
bombs and naval gunfire will decrease range to potential enemy targets and 
increase vulnerability. Tenth, in shallow waters or restricted operating areas the 
vulnerability of submarines is magnified. 

As I put these considerations into the tactical situation I find an inherent 
inconsistency between the most effective means of accomplishing my military 
mission and the literal requirements of the London Protocol. If I can accomplish 
my mission with minimal loss of life and destruction of property then, as a 
responsible military commander, I must do so. While I recognize that the 
inherent rationale for the London Protocol is to minimize loss of life, with 
today's modern weapons systems available to most nations, I believe adherence 
to that Protocol will, more probably than not, yield the opposite result. 

Blind adherence to the literal words of the Protocol would unacceptably put 
at risk all of my forces, decrease the probability of success for my assigned mission 
and unnecessarily prolong the conflict. My conclusion is, therefore, that the 
Protocol does not meet well the needs of the community of nations it serves. 

If I were to go to war today, with the conditions as I have assumed them to 
be, I would recommend to my superiors tactics that would be inherently at odds 
with the London Protocol. Not insignificantly, however, I believe those tactics 
would be consonant with the original purpose of the Protocol — to minimize 
the effects of war. 



Service 241 



Notes 

♦Former President, U.S. Naval War College, Newport, R.I. Vice Admiral, U.S. Navy (Ret.). The author 
would like to express his appreciation for the assistance given by CDR M.E. Bowman, JAGC, USN in editing 
earlier drafts of this article. 

1. I recognize that this analysis does not take into account the collective security provisions of the United 
Nations Charter. Articles 41 and 42 of the Charter, if implemented, could mandate involvement by nations 
on behalf of the collective security and peace-keeping mission of the Security Council. A few years ago I 
might have dismissed that possibility out of hand; today, as the gulf between Western and Bloc nations appears 
to be narrowing, there may be some potential for implementation of the original collective security mission 
envisioned in 1945. 

2. Some might argue that Panama is a recent exception. Although the United States did not consider 
that a state of "war" existed, certainly the dictator Noriega gave up a significant advantage with his premature 
and clumsy declaration that a state of war was in effect between Panama and the United States. 

3. Although I do not intend to raise the specter of large scale conventional war, it is worth noting that 
should such a conflict occur between NATO and Warsaw Pact nations, a primary survival requirement for 
the Soviets necessarily would be to prevent or delay the resupply of Europe. That, in turn, would mean a 
military objective of interdicting and/or destroying merchant shipping bound from the United States for 
European ports. 

4. There may be circumstances in which a nation is bound by a collective security arrangement to enter 
a conflict according to its international obligations. The NATO alliance, for example, is an "attack on one is 
an attack on all" alliance. Nevertheless, to the extent feasible, I believe that in the origins of any future conflict 
all nations will endeavor to view the conflict as a "you and he" problem rather than an "us and them" situation. 

5. This is certainly true of land targets today. It may be less true of seaborne merchant targets depending 
on the weaponry available to the belligerent. It is difficult to imagine selecting weaponry as expensive and 
limited in numbers as the Harpoon to target merchant vessels. On the other hand, if the belligerent has "smart 
bombs" or weapons such as Exocet missiles available, it should be equally true for the merchant vessel. 

6. Wayne P. Hughes, Jr., Fleet Tactics: Theory and Practice 180 (1987). 

7. In essence, this was the problem that resulted in the accidental targeting by Iraqi air force pilots of the 
USS Stark. 

8. Although we tend to think of merchants as unarmed traders, in a prolonged conflict I would expect 
that merchants would receive a certain amount of armament as was the practice in World War II. Certainly 
shoulder-fired anti-air missile defenses are probable. Naval guns and possibly even some missile support might 
also be expected. 

9. Aircraft are not specifically mentioned in the Protocol. I am aware that the inability of an airplane to 
provide for the safety of passengers, crew and ships papers has persuaded some commentators to adopt the 
view that the Protocol stands for the proposition that air interdiction and destruction of merchant shipping is 
not permitted. If this were true, I would view the result as a situation in which international law acted as a 
bar to a legitimate exercise of armed force. In a full career of association with the laws of armed conflict it has 
never occurred to me that such a bar would be a rational expression of international law. Moreover, if it did 
purport to be such a bar I seriously doubt that the "law" would be followed for the simple reason that it would 
not be an accurate expression of the international will. 

10. By this I do not mean that any and all means may be employed or that any and all weapons may be 
used. The predicate for military planning is legitimacy, both in weapons and in tactics. 



242 Targeting Enemy Merchant Shipping 

Comments on James Service's Paper: 

Targeting Realities: 

Platforms, Weapons Syetems and Capabilities 

By 
J. H.Doyle, Jr.* 

Law of Naval Warfare as Applicable to 
Targeting Enemy Merchant Shipping 

Ladies and Gentlemen, it is indeed a great pleasure to be back at the Naval 
War College with this distinguished group of international lawyers, diplomats, 
historians, naval lawyers and line officers from the United States and Allied 
nations. This subject is complex but timely, and deserves the attention of all of 
us. The War College is to be commended for conducting this symposium on 
the Law of Naval Warfare related to targeting enemy merchant shipping. 

I wish to commend Admiral Jim Service on a fine presentation. His decision 
matrix for the commanders on the scene is particularly helpful. I will build on 
his remarks and present other considerations which may be useful to interna- 
tional lawyers in formulating rules of conduct governing naval warfare. I will 
confine my remarks to the operational considerations in targeting enemy 
merchant shipping. 

I certainly agree that future wars will be heavily influenced by modern 
technological advances in weaponry. Today, there is a booming international 
arms market in modern submarines, mines, long range reconnaissance and ASW 
aircraft, anti-ship cruise missiles, land based surface to air missiles, chemical 
weapons, coastal defense missiles, ballistic missiles, and, alarmingly, nuclear 
proliferation. When you consider that there are active ballistic missile programs 
in countries as diverse as Argentina, Iraq, India, China and Israel and that the 
warheads could be chemical, nuclear or conventional, at least some form of SDI 
does not sound unreasonable. 

Forty countries in the Third World receive military hardware from other 
Third World export industries in addition to developed countries. There are 48 
countries with anti-ship cruise missiles (2100 Harpoons, 2600 Exocets, 10,000 
SS-N-2's). There are 19 countries with diesel attack submarines, 21 countries 
with naval mining capabilities and 10-16 countries with chemical warfare 
capabilities. There are increasing numbers of sophisticated submarines available 
to the Third World in the future, (examples: India and Brazil building SSN'S; 
the French Rubis - 3000 ton SSN; advanced air-independent propulsion schemes 
for diesel submarines - Swedish Stirling engine, West German fuel cell research, 



Doyle 243 

Canadian low power nuclear reactor, Italian Toroidal). India has purchased 6 
Soviet Kilo's and 2 West German Type 209 diesels. 

Recall that a World War II vintage mine (100-125 kg whd) put the USS 
Roberts out of action. A hit on the side of the ship nearly broke it in half. Superb 
damage control by the crew saved the ship. However, mines did limited damage 
to oilers in the Persian Gulf. 

Aerospatiale and MBB are working on a supersonic successor to the Exocet 
called ANS. It is stealthy (low radar cross-section), Mach 2+, 15G maneuver, 
dual mode (radar and IR) guidance, range 180 km, sea-skimmer (20 ft, off deck), 
ramjet and integral solid booster propulsion. A current sub-sonic Exocet in 
the Falklands sank HMS Sheffield, damaged HMS Glamorgan and sunk the 
merchant Atlantic Conveyor (2 Exocets). In the Persian Gulf, Exocets put 
the USS Stark out of action but did limited damage to large oilers; the oil kept 
flowing. 

In Anti-Submarine Warfare, 2 ASW carriers, 15 frigates, 6 submarines of the 
Royal Navy plus various ASW aircraft expended over 200 weapons against only 
1 Argentine submarine and a sea full of false contacts. 

As the examples above indicate, the vulnerability of modern naval platforms 
even, or perhaps especially, in limited war situations will be a factor. A 
Commander must take into consideration the various threats to his own forces 
if he is tasked to destroy or interdict merchant ships, or to protect merchant 
ships as in the Persian Gulf situation. As Admiral Guilbault pointed out, the 
threat also involves the threat of detection from space or other active and passive 
means, including the visual sighting of a flaming datum. 

Let us now look at a general war scenario - NATO versus Warsaw Pact. This 
situation is possible but gets more unlikely each day. The NATO maritime 
strategy is to take the war to the enemy. An early ASW campaign is con- 
templated. NATO naval forces would conduct offensive operations in Soviet 
sea denial zones (2000 km from the "homeland," usually) and impose a high 
attrition on Soviet naval forces, thereby neutralizing their military capabilities 
and assuring freedom of the seas to support U.S. and Allied operations and 
control the critical sea lines of communications that link the Allies with deployed 
forces. 

Naval forces would support the land battle on the flanks. Amphibious forces 
might be landed. U.S. and Allied submarines, aircraft and surface ships will be 
far too busy with limited assets targeting enemy submarines, surface ships, airfields, 
C sites, bases and facilities ashore to waste weapons and risk detection in targeting 
enemy merchant ships. At this stage, Warsaw Pact shipping has little military 
value considering their extensive and internal land lines of communication. A 
mining campaign in the Baltic and Black Seas and Arctic Ocean would be more 
to the point. 



244 Targeting Enemy Merchant Shipping 

In a general war, the Warsaw Pact has a similar problem. The first priority of 
their SSNs will probably be to protect their SSBNs in nuclear reserve. If any 
remain, they will attack ships of the Battle Group, amphibious forces or 
underway replenishment groups. Soviet Naval Air has a similar priority and has 
insufficient assets to risk higher casualties by attacking NATO merchant shipping 
in the Atlantic. If the situation became an attrition war against the sea lines of 
communications, similar to World War II, NATO would convoy its merchant 
ships and the Soviets would attempt to sink without warning. One might argue 
that the strict rules in the London Protocol of 1936 should apply to Allied 
merchant ships sailing independently in sanitized lanes. However, one would 
have to assume that the protocol would be violated or at best interpreted 
narrowly. 

Let us turn to the case of a limited war. Here the situation changes drastically. 
The characteristics of a low level or regional conflict are different from a general 
war. For example: 

- Usually the battle space and sea room are constrained. 

- Forces are usually concentrated rather than dispersed. 

- Forces operate near or over land and in shallow water, thus making the forces 
more vulnerable and degrading certain sensors and weapon systems. 

- The visual and electronic environment is confused with a mixture of friendly, 
enemy and neutral ships and aircraft. 

- There is a low tolerance for damage and personnel casualties, including hostages, 
at least in the U.S. Generally, the public's attention span and tolerance vis-a-vis 
uses of military force will be directly proportional to the loss of life in the action, 
factored by its duration. 

- There are definite rules of engagement constraints on offensive and defensive 
actions. Admiral Crowe, the former Chairman of the Joint Chiefs of Staff, stated 
that one of his achievements during his tenure was to modify the rules of 
engagement so that U.S. forces in crisis situations could take defensive action 
without absorbing the first blow. 

- The identification assessments are complex, e.g., the incident in the Persian Gulf 
when the USS Vincennes mistakenly identified a commercial aircraft as a military 
aircraft and shot it down with surface to air missiles. 

- Friendly support and assistance are varied and unpredictable. 

- The threat can be from land, boats, ships, submarines, mines, fighters, bombers, 
helicopters, swimmers and unmanned vehicles. 



Doyle 245 

- There are political constraints on the use of force that may be far more 
stringent than the legal constraints in the Commander's Handbook on the 
Law of Naval Operations (NWP-9). 

- There is a high incentive to keep the superpowers from direct confron- 
tation or from taking one side or the other. 

- Ground commitments will be less tolerable than naval commitments. 

The above considerations apply generally in the case of regional conflicts. In 
the case of targeting enemy merchant ships, there are other problems. Ideally, 
one should have a global array of sensors, weapons and delivery systems plus an 
intelligence network including communication and signal intelligence that can 
sort out various merchant ships while still in port and then continuously track 
the particular ship all the way to its final destination. What is needed is a complete 
library of the electronic, acoustic and visual fingerprints of all merchant shipping; 
an identification and assessment of cargo as it is loaded; the probable shipping 
routes; a space surveillance system that can continuously track the merchant ship 
while at sea irrespective of whether or not the ship is emitting electronic signals; 
a command, control and communication system that can hand off the track to 
surface ships, aircraft: and/or submarines that are positioned to target the 
previously identified enemy merchant ship; weapons that can be fired beyond 
the radar or visual horizon with the discrimination to hit the right merchant ship 
and with the accuracy and speed to compensate for the time late in firing at a 
moving target and the right warhead to accomplish the mission - (which is not 
necessarily to sink the enemy merchant ship). I would much rather have a low 
cost weapon that is designed to render the ship immobile - dead in the water - 
with damaged propellers or ship control capability - than have to clean up the 
oil spill from a 300,000 ton tanker. I doubt if the Coast Guard wants to clean it 
up either. In a limited war or crisis control situation, environmental considera- 
tions are going to be important factors. 

No nation has the complete capability as I have just described. Some do worse 
than others. Iraq fired Exocets on large radar contacts hoping the ship was a 
tanker. We know that Iraq made at least one mistake in the Stark incident. Iran 
planted mines and harassed all merchant ships indiscriminately with missiles and 
small caliber ammunition fired from helicopters and small ships. 

I would have to say that measured against the ideal merchant targeting system 
described above, U.S. capability is marginal at best. We have no comprehensive 
library of fingerprints. As yet, we do not have a space based radar satellite system 
for surveillance of the surface of oceans. We have space assets and sensors that 
are useful under various conditions, but the ability to keep a continuous track 
and sort all the friendly, enemy and neutral merchant ships that ply the oceans 
is limited. Our over the horizon targeting system for long range weapons like 



246 Targeting Enemy Merchant Shipping 

Harpoon and Tomahawk against moving targets leaves much to be desired in 
terms of hitting the right target on time in a confused environment of friendly, 
enemy and neutral merchant ships. Our ships, submarines and aircraft are 
designed primarily for attacking enemy warships, submarines, aircraft and 
striking targets ashore. Our weapons are optimized for those missions, not for 
use against merchant ships. We have no low cost weapon in numbers for 
disabling a merchant ship. This is not to say that we don't have weapons to use, 
but a Tomahawk cruise missile at $1 .2 million a copy and in short supply would 
not be the weapon of choice against a merchant ship. 

What I am really saying is that targeting enemy ships in a limited war is a 
tough job. Because of the difficulty in detecting, tracking, and identifying targets 
in broad ocean areas, the operational commander is forced to search in confined 
littoral areas, probably near the destination of the particular merchant ship. Then 
he must use ships and aircraft on scene to locate, track, visually identify and then 
assess the character of the particular merchant ship. I recall in 1974 during the 
Cyprus Crisis, I was a Battle Group commander aboard the carrier Forrestal with 
accompanying cruisers and destroyers and submarines. I was ordered to take a 
position well south of Cyprus just to make sure the Soviets understood that they 
were not to get involved in the conflict between Greece and Turkey with their 
Mediterranean Squadron. I was also tasked to maintain continuous surveillance 
in the Mediterranean between Greece and Cyprus and make reports on all ships 
in the area, particularly Greek warships. We flew the airwing round the clock 
starting at dawn trying to keep an updated surface picture. It was a back-breaking 
operation and we were only partially successful. We could at least sort out 
merchant ships from Greek warships but as far as sorting out various merchant 
ships one from the other, that was another problem. There were just too many 
of all types of ships at sea. 

Now the situation has improved. We have better intelligence, sensors, 
surveillance aircraft and space assets, but it is still a tremendous challenge. 

There is technology available to fill in the gaps in an optimum enemy 
merchant ship surveillance, tracking and targeting system. For example: an active 
space based surveillance system, imaging radar, infrared techniques, and other 
technical approaches would help in establishing a coherent surface picture. The 
Global Positioning System (GPS) will help. I am sure that Admiral Guilbault 
could devise a space and C tracking and handoff system that could do the job 
if we gave him the money to do it. I think we should press on with developing 
the new technology. Limited conflicts and regional crises put a higher premium 
on intelligence, surveillance, identification, and accurate assessments. In our 
planning we often assume that limited war is a lesser included offense of general 
war and that ships, aircraft, sensors and weapon systems designed for general war 
are automatically suitable in low intensity conflicts. That is often not the case 



Doyle 247 

and we need to look more closely at our limited war capabilities and make 
improvements. 

Thus far, I have assumed that in a limited war the U.S. Navy would be tasked 
to sink enemy merchant ships. This is possible, but unlikely in my judgment. If 
we are so tasked, we would probably be politically constrained to visit and search 
procedures to accurately determine the character, destination and cargo of the 
ship, before taking further action. This means close surveillance by ships and 
aircraft, using visual means to establish identities. I believe it would be counter- 
productive to embark on a campaign of sinking enemy merchant ships at sea in 
a limited war when there are much more lucrative and politically important 
fixed targets ashore that could contribute to the limited objective at hand. The 
Libyan strike is a good example. 

I think it more likely that the U.S. Navy will be in the role of protecting 
merchant shipping and assuring freedom of the seas for world commerce. A 
disruption in world shipping will have a rippling effect in the interrelated world 
economies that probably cannot be tolerated for long by either the developed 
or developing countries. In this situation, the incentive will be to confine the 
conflict geographically, limit the participants, persuade the maritime nations and 
"superpowers" to cooperate in keeping the sea lines of communication open, 
and encourage, cajole or threaten the belligerents to negotiate. The U.S. Navy 
may be tasked to convoy merchant ships, provide for their protection against a 
variety of threats, sort out neutral merchant ships from belligerents, and use force, 
as necessary, to contribute to political objectives. 

However, whether we end up protecting merchant shipping or targeting 
them, the requirement for a global surveillance, sorting-out, tracking, hand-off, 
targeting and suitable engagement system for merchant shipping is still valid. We 
need to develop a coherent surface picture for the oceans of the world. In any 
event, the regional crisis and limited war situation need a fresh approach. While 
the general roles and missions of the U.S. Navy may remain the same, the 
methods of implementation may be significantly changed. Commanders will not 
have a free hand in carrying out their mission. The Rules of Engagement (ROE) 
will be dictated by the National Command Authority and blessed by the State 
Department. The political constraints may be far more stringent than any legal 
restraints in NWP-9. Minimizing loss of life, both military and civilian, and 
damage to property or the environment will be important factors. Weapon 
systems and sensors may have to be tailored to be more useful in limited wars 
and crisis control. The Navy may have to adjust to new missions such as assisting 
in drug enforcement and the like. There is a continuing and vital role for the 
U.S. Navy, but the Navy must be flexible enough and have the capability to 
adapt to changing conditions. 

Although the policy and ROE constraints in a given limited conflict scenario 
might be quite stringent, naval commanders must find flexibility in the laws of 



248 Targeting Enemy Merchant Shipping 

naval warfare to target enemy merchant ships if the need arises. This may require 
a reassessment or fresh interpretation of the London Protocol of 1936. 

Finally, a note of caution in all that I have said about limited conflicts and 
regional crisis. First, the Navy must retain its capability to fight a general war if 
necessary. Second, while a limited conflict might necessitate new ways of 
implementation and a certain tailoring of sensors and weapons, it by no means 
follows that the aircraft, surface ships and submarines can be less capable and 
sophisticated. The opposite is more likely the case. 

^Consultant, Applied Physics Laboratory, John Hopkins University. Former Professor of Law, George 
Washington University, Washington, D.C. Vice Admiral, U.S Navy (Ret.). 



Chapter VI 

Strategic Imperatives: 
Economic Warfare at Sea 



A paper by 
Hugh F. Lynch * 

Comments by 
Harry Almond 



Targeting Enemy Merchant Shipping 250 

Strategic Imperatives: Economic Warfare 

at Sea 



"T"? conomic Warfare at Sea" is a centuries-old practice often employed by 
M 4 naval forces of nations seeking to gain victory by reducing the enemy's 
warfighting potential, rather than frontally attacking on land and overcoming 
him through bloody assault. If this practice has been used down the years, it is 
also a very current tool in prosecuting warfare in the late twentieth century, as 
most recently demonstrated in the eight-year Iran-Iraq War. So it is most 
appropriate, at a symposium on the "Law of Naval Warfare and the Targeting 
of Merchant Shipping", that we consider the strategic imperatives which may 
drive the belligerent nations to attack the merchant shipping of their enemy, and 
even of neutrals, while we also consider the reciprocal imperatives which may 
drive the neutral nations to defend their merchant shipping. 

In ancient times, nations did not have the benefit of an international code to 
mark the legal bounds of their conduct of war at sea. In modern times, 
particularly in the twentieth century, these bounds of lawful maritime behavior 
have been defined with some precision and tabulated. But they are quite 
frequently transgressed even by the "best" in the family of nations. Indeed, the 
layman might be surprised to learn that the international law of naval warfare is 
as frequently determined by "customary law" as it is by laws codified in treaties. 
Therefore, in putting into practice their strategic imperatives, nations can 
actually rewrite the law of naval warfare - provided they obtain enough 
concurrence in theory, and congruence in practice, among other nations. 

In this paper, I intend to explore strategic imperatives within two generalized 
scenarios: first, in global conventional war between the two superpowers and 
their respective alliances; next, in the context of limited conflicts between two 
nations other than the superpowers. I will also look at some of the future variables 
in limited war at sea, as brought about by transfers of technology and the 
horizontal proliferation of sophisticated weapon systems. 

I have decided not to treat scenarios which include nuclear exchanges among 
any of the current or candidate nuclear powers. In such a circumstance, 
economic warfare at sea would have been so overshadowed by the nuclear 
conflict as to greatly diminish the weight of considerations given to international 
law at the lower levels of conflict. The powers involved would undoubtedly do 
whatever they deemed essential to conduct warfare at the more destructive 
levels. The nuclear "imperatives" would be so compelling as to deemphasize the 
finer points of the law of armed conflict. One eminent jurist has said it this way: 
"if it came to the point where strategic nuclear weapons were resorted to, the 



251 Lynch 

boundaries of limited war would have been passed and the law would have little 
relevance." 

Before going further, though, let us narrow the focus on what it is we will 
be discussing when we refer in this paper to "economic warfare at sea." In the 
modern literature on economic warfare, there are entire volumes written which 
include under this general heading any form of coercion which is used by a 
nation to reduce the economic strength and war potential of an adversary. While 
that may be a useful definition for broader treatises, in this instance we will limit 
our definition of "economic warfare at sea" to the use or threat of use of military 
means in a maritime environment to reduce the power of an enemy during overt 
hostilities. 



The Case of Global Conventional War 

Now let's take a look at the first scenario: global conventional war between 
the Warsaw Pact and NATO. In recent years, the writing of a plausible scenario 
for the start of such a war has challenged the intellects of some of our best strategic 
thinkers. They invariably conclude that no intelligent scenario can be devised 
which could possibly justify launching such a conflict. 

Since the advent of perestroika, and particularly over the last six months, it has 
become increasingly difficult to imagine the Warsaw Pact as a viable fighting 
alliance; we would have to regress to the politics of the Brezhnev era to be able 
to imagine the unimaginable. But for the sake of strategic imperatives and 
international law, let us assume such a war "happened." After all, the military 
and naval forces for such a conflict still exist; it's only the changeable political 
forces which have made a NATO/Warsaw Pact war less likely. 

In the Warsaw Pact - NATO scenario, the easiest conclusion to reach with 
regard to economic warfare at sea is one that says: The Warsaw Pact has interior 
lines of communication; NATO depends on the sea lines of communication 
(SLOC); therefore, the Soviets are compelled to resort to unrestricted warfare 
against merchantmen to stop the flow of reinforcements and resupply from the 
United States to Europe. 

To strengthen that conclusion, many would compare the Soviets' inventory 
of over 350 submarines with that of Germany's inventory of less than 50 at the 
start of World War II. It's never quite that simple. While the obvious may have 
some ring of truth, there are complicating factors on both sides of the equation. 

In a protracted war between the two super-alliances, it would be reasonable 
to expect both sides to attempt to avoid crossing the nuclear threshold. Yet so 
powerful and ultimate are the nuclear arsenals that both sides would be likely to 
focus as much or more on the nuclear balance as they would on the battles in 
the ongoing campaign, in what the Soviets have called the "conventional phase" 
of war. 



Targeting Enemy Merchant Shipping 252 

The Soviets have long emphasized the importance of their maritime defense 
perimeter as a means of protecting the homeland. They write of the need to 
establish "sea denial" zones and to destroy NATO naval forces in those areas. 
They are particularly concerned about platforms equipped with nuclear strike 
weapons - that is, those that can threaten the homeland with nuclear warheads 
contained in cruise missiles, gravity bombs, and ballistic missiles. Closer to the 
homeland, the Soviets have delineated "sea control" areas in which they would 
particularly desire to prevent the penetration of NATO's nuclear-powered 
attack submarines (SSNs). Even in 1990, NATO, and especially the United 
States, has such superiority in individual nuclear submarine performance that the 
Soviets must maintain defensive forces in depth to protect the seabased element 
of their strategic nuclear forces. This is no mean task and will require many 
nuclear attack submarines and other surface and air platforms dedicated to the 
defense of their ballistic missile submarines (SSBNs). 

The United States Navy has already dispersed its nuclear strike arsenal, and 
will continue to do so throughout the 1990s. Instead of having fourteen carriers 
and fewer than forty SSBNs capable of nuclear strike, the U.S. Navy continues 
to fit out Tomahawk missiles in more than 80 attack submarines and 55 surface 
combatants already in the Fleet, with more to come. Along with the SSBNs of 
our British and French allies, this nuclear-capable naval force puts a great strain 
on the assets of the Soviet Navy for defense of the homeland. In the near term, 
they are faced with over 200 NATO ships and submarines, and 500 U.S. 
sea-based strike aircraft, all capable of penetrating the heart of Mother Russia 
with nuclear warheads. 

Such a strong NATO offensive maritime force complicates that easily-con- 
trived Soviet "strategic imperative" for SLOC interdiction of merchant shipping. 
It means that the Soviets can ill afford an extensive naval campaign against enemy 
merchantmen, let alone against truly neutral merchantmen. They would have 
to concentrate more on targets which include naval combatants, naval auxiliaries, 
reinforcement shipping in convoys, and amphibious task forces. All of these ships 
are either prima facie military warships or can be said to have taken on the 
character of warships. Therefore, according to current international law, they 
are subject to attack without warning. 

There are also tactical considerations which militate against indiscriminate 
attacks on merchantmen in the global scenario. The first applies to submarines 
in particular: with so many other, more lucrative targets at sea, it would seldom 
be worth it to reveal a submarine's position in order to destroy one mer- 
chantman, be it an enemy or a bonafide neutral carrying neutral cargo to a neutral 
port. With the responsiveness and capabilities of NATO Maritime Patrol 
Aircraft, ASW (anti-submarine warfare) surface combatants and submarines, the 
reward for attacking innocent merchantmen is not likely to overcome the risk 
factor, particularly for the classes of Soviet nuclear attack submarines likely to 



253 Lynch 

be assigned to such SLOC duties. Secondly, the Soviet Navy's ability to replenish 
weapons at sea is so limited, especially if engaged in combat with NATO, that 
there are likely to be practical if not doctrinal restrictions placed on the threshold 
value of targets to be attacked and on the minimum number of weapons to be 
retained for self-defense. While these considerations apply mostly to combatant 
ships, especially submarines, similar practical limits will apply to maritime strike 
aircraft and their Long-Range Aviation counterparts. For the European Theater 
in particular, Soviet bombers will have to penetrate NATO land-based air 
defenses to get at most ship targets. Is it worth it to attempt to transit this hostile 
airspace and then, perhaps, to be confronted by naval air defenses in order to 
sink individual merchantmen? We think not. 

So the strategic imperative of hitting NATO's reinforcement and resupply 
shipping is not necessarily so compelling early in a NATO-Warsaw Pact war. 

That is not to say that the Soviets might not attempt such a campaign on a 
limited scale. They undoubtedly would, if for no other reason than to complicate 
the problem for the NATO navies by tying down ASW assets. Nevertheless, 
their primary targets will be naval combatants and such merchant ships as are 
included in convoys or other task groups - those laden with military hardware 
and other military supplies. Their attacks should be concentrated on these 
legitimate targets - militarily-useful ships - and not on what's commonly referred 
to as "economic shipping." The latter, which would carry essential foodstuffs 
and other sustainment for the civilian populations, may be dispatched on 
individual sailings in protected sea lanes. In such circumstances, they represent 
low-value, moderate-risk targets, and generally ought not to be regarded as 
worth the effort in the Soviet's calculus. 

The truly compelling thing about the World War III scenario is the high 
stakes for the participant nations. If World War II were so hard-fought at sea 
with so little regard for the inviolability of international law with respect to 
merchant shipping, and if the Nuremberg courts were so understanding of 
violations of law in this area, then why should World War III be any less 
compulsive when it comes to risk-benefit analysis? The one overriding impera- 
tive from the Soviet point of view is likely to be maximization of exchange 
ratios, whatever the target, and to hell with international law. 

The same might be said for the problem of inadvertent targeting of non-com- 
batants by Soviet over-the-horizon missiles, be they sub-, air-, or surface- 
launched. It is probably a question of the solutions retrieved from a 
correlation-of-forces equation more than a question of compliance with law. 
How many weapons are left in the inventory, and is the missile platform likely 
to return to fight another day? In most cases, positive visual identification is not 
worth the trouble! 

So much for the Soviets in this scenario and their strategic imperatives on the 
offensive. 



Targeting Enemy Merchant Shipping 254 

From the perspective of the U.S. and NATO, what will be the strategic 
imperatives regarding economic warfare at sea in the same scenario? 

Certainly the Soviets can reach all their Warsaw Pact allies and their Far 
Eastern Continental Theater via land lines of communication. However, the 
Trans-Siberian Railway, deep as it is inside the Soviet Union, is still vulnerable 
to destruction at key junctures. Even though breaks in that intercontinental 
conveyor might not mean more than a temporary disruption in its services, we 
should expect that the Soviets have planned for such contingencies, and that the 
Far Eastern Military District - absent any conflict on the Chinese border - could 
be essentially self-sustaining in military supplies and foodstuffs for at least six 
months. 

The polar shipping route, used in the warmer months, could be easily 
interdicted; the Danish and Turkish Straits, hopefully still under NATO control 
or at least mined closed, would preclude the need for an oceanic SLOC campaign 
by NATO. Nevertheless, there are other areas where NATO should be 
aggressively pressing interdiction of Warsaw Pact merchantmen. These are in 
the Baltic and Black Seas. With NATO dedicating much of its air power to 
FOFA - Follow On Forces Attack - or deep interdiction, the Baltic and Black 
Seas would be important reinforcement waterways to Poland, East Germary, 
Bulgaria, Romania and, via the Danube and other rivers, even to the heart of 
central Europe. There are not likely to be many neutral merchantmen in the 
way, even from the Scandinavian countries. 

In summary then, what conclusions would we take from our consideration 
of the first scenario - general, conventional, worldwide war - and the strategic 
imperatives pertaining to economic warfare at sea. First, we would conclude 
that, because the stakes are so high, both sides would do what they must to 
succeed. Faint attempts might be made to enshroud, within the cloak of the law, 
those naval encounters with merchantmen carrying only humanitarian support 
for civilians. But not much time will be spent debating proprieties; practical 
exigencies will dominate, as they did in World War II. 

Second, NATO and the neutrals of the world would generally benefit from 
the strictest adherence by all parties, to the international law dealing with 
combatants and merchantmen. The Warsaw Treaty Organization would have 
the least to gain by complying with such law. At any rate, because of some very 
practical war-fighting constraints in the nuclear age, the Soviets are not likely to 
expend considerable resources on merchantmen dedicted to "economic" car- 
goes. 

Limited Conflicts 

For our second scenario, I have chosen limited conflicts between two nations 
other than the United States and the Soviet Union. I don't intend to use any 



255 Lynch 

particular conflict or set of adversaries as a case study. Rather, I'll treat limited 
war at sea as a general category of conflict, and I'll consider strategic imperatives 
in these circumstances as necessary judgments or propositions of not only 
belligerents on the one hand, but those of the neutrals as well. Then I'll refer to 
the major powers as a particular class of neutrals. 

For our purposes, perhaps the best treatment of the genus "limited war" is 
that contained in the second volume of D.P. O'Connell's The International Law 
of the Sea. In it he categorizes all conflicts since World War II as limited conflicts, 
and then states that the characteristic limitations of these conflicts were one or 
more of the following: "the theater of operations; the scale of operations and 
level of weaponry; and the graduation of force and the scale of response." I'll 
adopt these as descriptors for my treatment of economic warfare at sea in a limited 
war. Later I'll discuss the potential for outgrowing these limitations. 

First, we must remember that the belligerents in limited wars will usually have 
that same strategic imperative that the major powers had in World War II: that 
is, to achieve victory. Whether it be war between Iran and Iraq, Arabs and 
Israelis, or India and Pakistan, the first objective is success in combat. It is only 
when the first goal is not attainable that most countries will settle for a "draw," 
or, as a last resort, will they opt for national survival in circumstances that would 
otherwise represent total defeat. These statements may be self-evident, but 
sometimes we seem to forget them. It should be understandable that the behavior 
of "third-world" nations, as warriors, can be as fiercely dedicated toward that 
first goal of victory as the Axis or Allied powers were in the last World War. 
After all, they too are fighting for personal and national survival. As long as they 
seem to be able to achieve their goal, while remaining within the principal 
bounds of commonly accepted international law, most will comply with the 
rules, and most will keep their war "limited." Frustrate their progress toward 
that goal, however, and we can expect that they will depart from international 
law, as required, in order to restore their progress. It seems that, the closer nations 
come to defeat, the more dastardly are their deeds. 

In 1983, after having been at war with Iran for three years, Iraq looked is if 
it would be defeated by sheer force of numbers. At that point, Iraq resorted to 
the first use of chemical weapons. Later, as the Iraqi air blockade pulled the 
noose tighter around Iranian oil exports, the Iranians responded with the illegal 
use of mines and indiscriminate attacks upon neutral shipping. As one observer 
put it, "the very success of Iraq's air blockade compelled Iranian retaliation." 

It's also instructive to remember that, in both World Wars, belligerents on 
both sides varied their compliance with the law of naval warfare, as it was 
understood, with regard to submarine attacks on merchant shipping. In the First 
World War, the Germans did several legalistic U-turns in the U-boat campaign, 
alternately forbidding and permitting unrestricted submarine warfare against 
merchantmen. Again in the Second World War, Germany began by observing 



Targeting Enemy Merchant Shipping 256 

the London Protocol of 1936, but by 1940 unrestricted submarine warfare was 
once more the order of the day; and the United States entered the war using the 
more practical standard instead of that prescribed by the Protocol. Adherence 
to international law seems to have a lot to do with desperation and advantage in 
combat. 

Why should we, then, expect greater compliance with international law in 
limited wars than we have seen in the two world wars? It reminds one of the 
rifleman's complaint against the term "Lower Intensity Conflict"; he asks: 
"lower intensity for whom?" 

The second strategic imperative in economic warfare at sea during limited 
conflicts is one the neutrals should be demanding of the belligerents - that is, 
adherence to the law of neutrality. 

If the law of neutrality had its origin in the doctrines of mercantilism, its 
evolution to this day has been generally beneficial for the material well-being of 
most of mankind. But we are now really only at the threshold of an era where 
the preservation of that law becomes even more challenging. Three occurrences 
in the last two decades have demonstrated the increasing importance of the 
interdependence in trade and investment of the world's nations. The first was 
the OPEC countries' successful constriction of the world's oil supply in the 1970s 
and the resultant economic dislocations, not the least of which was the high rate 
of inflation in the United States; second was the crash of the international 
financial markets, more or less in unison, in October 1987; and third was the 
infringement upon neutral rights in the Iran-Iraq War. 

Economic disruptions in one part of the world have tended to cascade into 
major crises in other corners of the world. This chain reaction among the major 
powers has occurred repeatedly, not just in the three major events mentioned, 
but in many other lesser ones as well. In that same twenty year period, we have 
seen how some smaller states, e.g. Iran, Syria, Israel, Libya, and even Saudi 
Arabia, have been able to leverage their influence over world events - all out of 
proportion to their populations and resources in the family of nations. 

So as the world political economy becomes more interrelated if not inter- 
locked, nations must individually and collectively demand stricter observance of 
the rights of neutrals. If the barbarians wish to fight the barbarians, their battles 
must be constrained by the law of armed conflict, including the law of neutrality. 

Our third imperative is merely a corollary of the second; it says that 
enforcement of the law of neutrality will be required. The more powerful nations 
will not allow themselves to be weakened or economically devastated as a result 
of conflict among lesser powers. When a society achieves a higher standard of 
living over a period of time, that higher standard of living redefines those things 
which are considered "necessities" of life. So it will be the populaces, if not the 
governments, who will demand noninterference with their material pleasures. 
Stating the imperative in this manner still leaves open the question as to how to 



257 Lynch 

enforce this neutral side of international law. Diplomats and jurists would 
undoubtedly adopt the more reasonable and pacific approaches to dissuade 
belligerents from infringing on the rights of neutrals. The preferred methods in 
such matters would range from the use of "enraged world public opinion", to 
economic sanctions short of overt hostilities, to demands for adherence to law, 
to exhortations for "police action" under the auspices of the United Nations. 
Unquestionably, these are the most desirable means for the restoration of the 
rights of neutrals - the court or courts of first resort. Any experienced military 
advisor should also prefer these means to the final arbiter, the use of superior 
force. 

Yet if none of the pacific means succeeds, the use of sufficient force may 
become the only remaining option - short of taking no action and suffering the 
further erosion of the rights of neutrals as a consequence. The key word, of 
course, is "sufficient." On the one hand, in this legal frame of reference, one 
should first acknowledge that some basic principles apply: the doctrines of 
military necessity, proportionality, and humanity. These are concepts of which 
all of you are most knowledgeable. They all rightly serve to limit the amount, 
type and manner in which force may be applied even in upholding the law. 

The question of sufficiency or economy of force, however, has another side 
to it: what is enough force for mission accomplishment, that is, for the 
enforcement of the rights of neutrals? I will shortly discuss the case of sufficiency 
of naval forces for guaranteeing the freedom of the seas in the future. For now, 
let's consider the present-day sufficiency. The most interesting historical case 
with closest proximity in time is the Persian Gulf War and the self-help 
enforcement actions of the United States and some of our NATO allies operating 
in a non-NATO framework. Generally we can say that sufficient but not 
excessive force was used by neutrals in and over the Gulf. The two extremes in 
this application of force in defense of the rights of neutrals were the Stark and 
Vincennes incidents. Both represent aberrations from the intended norm of 
self-defense - the Stark incident being a failure to act, and the Vincennes z 
precipitous action taken in error. Both extremes are well documented in the 
open literature. 

Contrasting with them are the circumstances and execution of Operation 
Praying Mantis, the U.S. Navy's anti-Iranian strikes in the Persian Gulf on April 
18, 1988. After reading the first-hand accounts of two senior commanders in 
that battle, one would be hard-pressed to criticize the operation for the 
applications of either too much or too little force. Unquestionably, more force 
was available than was applied, and the operation did not extend too far in terms 
of time, or in terms of additional targets. They might have hit other naval targets 
in port, or land-based targets such as the Silkworm missiles, or some of the 
airborne Iranian fighters - but they didn't. 



Targeting Enemy Merchant Shipping 258 

With the benefit of historical vision, however, let's look at another proposal, 
and how it might have fared in the same battle. In an article in the New York 
Times on October 20, 1987 and at various other forums in that timeframe, Elliot 
Richardson and Cyrus Vance together suggested that the duties of enforcer in 
the Gulf could be performed with less hazard through U.N. auspices, utilizing 
a number of unarmed patrol boats as well as naval vessels from member 
states, not to include the U.S. or U.S.S.R. On another occasion, Mr. 
Richardson stated: "You would then have a small U.N. fleet with an effective 
capability comparable to the U.S. presence in the Gulf today - somewhat smaller, 
perhaps, but essentially equivalent." For command and control, Mr. 
Richardson would have enjoined the Security Council of the U.N., as a body, 
to "decide in advance what kind of response would be appropriate to what kind 
of provocation" . . . should the U.N. escort vessels themselves . . ."be subject 
to some significant attack." At the time he was comparing the proposed U.N. 
force of frigates with a U.S. Navy force of 38 ships. 

Without comparing the proposed and the real- world forces in every respect, 
and without detailing each action of the Iranians during Operation Praying 
Mantis, one might characterize Mr. Richardson's proposal as a formula for U.N. 
disaster. In it he demonstrated a serious lack of understanding of the military 
problem in the Gulf in 1987-88. He not only underestimated the capabilities of 
Iranian patrol boats, guided missile frigates, and fighter aircraft, he also underes- 
timated the contributions of U.S. Air Force AWACs aircraft and KC-10 tankers, 
and particularly the complexities of the command, control and communications 
problems, especially the positive ID requirement with Soviets and other third 
parties intermingled. One might also surmise that he had never studied the 
Falklands/Malvinas campaign to discover how close the Royal Navy had come 
to sustaining more grievous losses in May-June 1982. 

In summary, then, the point of this strategic imperative is to ensure that you 
send more than enough force to accomplish the mission of enforcing the rights 
of neutrals, and then measure your response to violations of those rights. 

For our last proposition, we would maintain that, in order to keep limited 
wars limited, it is essential to maintain some distance between the major powers. 
By this we mean that, almost by definition, we should not allow both the Soviet 
Union and the United States to become active "enforcers" of neutrality in the 
same theater of operations - particularly if they were to view themselves as 
enforcers against one another's clients. 

Most recently in the Persian Gulf War, one could easily build a case to 
support the thesis that both the U.S. and U.S.S.R. leaned (perhaps rather heavily) 
toward Iraq and away from Iran. So the superpowers did not assume the 
roles of opposing military powers in that case. Nevertheless, as reported in the 
Naval Institute Proceedings, at one point during Operation Praying Mantis, the 
U.S. destroyer Merrill had a warship closing at 25 knots; it was tentatively 



259 Lynch 

interpreted to be a "possible Iranian SAAM FFG". As Merrill made preparations 
for a Harpoon missile attack amidst the many other hostile actions that day, a 
U.S. helicopter investigated the target at closer range, obtaining positive iden- 
tification on a Soviet Sovremenny-class DDG. 

The circumstances were substantially different in the Indo-Pakistani War of 
December 1971. O'Connell treats the differences succinctly: 

"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 deliberate- 
ly put to one side by the Indian naval staff. The result was that the operations 
spilled over into the high seas, a naval blockade of Pakistan was proclaimed, and 
shipping was attacked. In the course of these operations neutral ships were sunk, 
one with total loss of life. In every sense, the Indian naval operations accepted no 
limitation as to area or scale. Was this then a case of 'limited war'? 

The only limitation seems to have been in the duration of the conflict; it 
lasted only two weeks. What if it had lasted longer; what if the proclaimed 
blockade had been prolonged and effective; what if tanker traffic in the nearby 
Persian Gulf had become involved, while the United States was deeply com- 
mitted to the Vietnam War? 

The important factor, which is often overlooked in considering the Indo- 
Pakistani War, is that both the United States and the Soviet Union sent task 
groups to the high seas of the Bay of Bengal, where the aircraft carrier USS 
Enterprise and her escorts took measure of the Soviet group which included some 
of their most modern cruisers. Even if the mission had only been enforcement 
of the law of neutrality, what mischief might have ensued? 

The Soviet Union and the United States are now beginning to find areas of 
mutually beneficial, not competing interests. But, for this paper, I don't intend 
to limit our definition of "major powers" to those two nations. In terms of naval 
forces, at least two of our NATO allies can currently be categorized as "major 
powers", and we would also include China, and Japan as powers with very 
sizeable and capable navies. It is important that these powers, as well, do not face 
off against each other in conflicts started by opposing "client" states. 

At the same time, we are faced with a "use it or lose it" quandary: someone 
will have to protect the rights of nonbelligerents, or the law of neutrality will 
become non-existent. One would hope that other nations, not parties to limited 
wars, would actively protect their own rights when capable of doing so, and not 
rely on the United States Navy to do all the dirty work. 

Future Wars and Weapons 

It does no good to lament the demise of the legality of "war" and the efficacy 
of the law of war merely because Article 2 of the United Nations Charter outlaws 



Targeting Enemy Merchant Shipping 260 

the use of force in resolving international disputes. It would appear that, in fact, 
nations continue to fight "wars'* in the last half of the twentieth century about 
as often as they did in the previous one hundred and fifty years. We now have 
as great a need for the laws of armed conflict and neutrality as we had prior to 
1945. For the benefit of belligerents and non-combatants alike - both nations 
and individuals - it is essential to protect and preserve as much of that body of 
international law as we can. Without both the law and enforcement of the law, 
"limited" wars of the future could easily get well beyond the limiting factors 
that we accepted earlier in the paper: "the theater of operations; the scale of 
operations and level of weaponry, and the graduation of force and the scale of 
response." I'll restrict my discussion of the future to that element of limited 
war to which I was assigned, namely economic warfare at sea. But there are 
obvious parallels in land warfare which one can easily imagine without their 
being drawn out here. 

The inevitable development I see in the future is the proliferation of the 
possession and use of more sophisticated and more destructive weapons systems 
among many more countries. A recession in the arms industries of the Western 
democracies and others - due to the events in Eastern Europe - is likely to spur 
brisk competition to satisfy third-world demands at international arms bazaars. 
Old enmities are not likely to soon fade away. So I would anticipate that these 
new systems will eventually be employed in limited conflicts, against both 
belligerents and neutrals, unless the penalties for their illegal use are prohibitively 
high. The weapons we have in mind are: cruise and ballistic missiles with 
conventional and chemical warheads; more sophisticated mines at sea; nuclear 
submarines; precision targeting systems employed with conventional warheads 
of far greater destructive power; stronger land-based air forces with enhanced 
capabilities for war at sea; and, in some cases, increased sea-based aviation 
capabilities. 

Iraq's economic warfare against Iran is credited with "the distinction of being 
perhaps the sole example in history of a successful economic blockade essentially 
carried out by air power alone." But it does not stand alone as a use of 
land-based tactical aviation, armed with air-to-surface missiles, employed in war 
at sea. In the Falklands-Malvinas conflict, Argentina was extremely successful in 
attacking Royal Navy ships with only five Super-Etendard aircraft and about as 
many Exocet missiles. These events tell us that we can expect more of the same 
employment in the future, only with longer-range aircraft and missiles. In the 
Praying Mantis operation, the U.S. required positive visual identification before 
permitting ships and aircraft to attack surface combatants with medium-range 
Harpoon, Walleye, and Standard missiles. This required U.S. helicopters, and 
attack aircraft to risk the first few rounds of S AMs and gunfire as they got close 
enough for positive identification with the prevailing limit of visibility. 
Although there are electronic and infrared means of detection and classification 



261 Lynch 

of targets, some countries may not have these means to identify targets from a 
distance, yet will have the aircraft and missiles to press the attack. Will they 
hazard themselves to take a quick look-see on the first pass? The answer is 
probably not unless they can expect retribution for attacking a truly neutral 
merchantman, or an escorting neutral combatant. Argentine aircraft were flying 
roughly 350 nautical miles, with inflight refueling, in order to reach their targets. 
What does that tell us about the future limitation on the extent of the theater of 
operations? 

In both the Indo-Pakistani and the Falklands-Malvinas wars, submarines were 
used in combat. In fact, in the Falkland's we had the first use of a nuclear- 
powered submarine in combat. The ownership of nuclear submarines is spread- 
ing to the third-world as India has received the first of possibly four Charlie-class 
nuclear-powered attack submarines from the Soviet Union. China builds her 
own Han-class SSNs as well as Xia-class nuclear-powered ballistic missile 
submarines. If the U.K. and Germany could impose long-distance blockades on 
each other in the two World Wars, why could not India do likewise with her 
Charlie-class submarines in the Arabian Sea and the Gulf of Oman against 
Pakistan? In fact, if the Argentines had already received their full complements 
of Super-Etendards and Exocets before war broke out in 1982, and had driven 
off the British surface fleet, would the next step for the U.K. have been a close 
blockade of Argentine ports by Royal Navy SSN's? 

Write your own scenarios if the ones offered appear too far-fetched. But the 
weapon systems are proliferating and their capabilities in speed, range, and 
destructive power are increasing. Many nations are developing ballistic missile 
capabilities; recent literature suggests that about fifteen nations now have the 
ability to produce mid-range missiles, and India already has a 1500-mile missile, 
the Agni. Argentina has been working on the Condor missile with Egypt and 
Iraq. Brazil is investing in the Sonda IV, and Pakistan has its Haft. 

These may be land attack missiles, but the ability to direct other variants to 
sea, as was done with the Silkworm, can't be too far behind if these nations so 
choose. Couple the general market availability of space-based surveillance 
systems with ballistic or cruise missile delivery systems, and we have a quantum 
leap in the extension of the maritime battlefield from nations that may not 
otherwise be rated as maritime powers. We cannot overlook the possibility of 
chemical warheads for these missiles. Some twenty countries may be producing 
chemical weapons today. But it's more likely that they would be used in land 
warfare and would have less utility at sea, except against amphibious operations. 
Neither can we overlook the proliferation of nuclear weapons over the next 
decade. Five or six nations now have nuclear weapons capabilities and roughly 
another twenty-five or so may be nearing that capability. Their use at sea may 
be less likely than on land, but they complicate the equations among belligerents 



Targeting Enemy Merchant Shipping 262 

and neutrals alike. If that's not enough, let's further exacerbate the problem by 
eventually including sophisticated deep-water mines. 

That will be enough gloom and doom for now. But these are no longer Buck 
Rogers cartoons. They will be near- to mid-term realities. Nearly all these 
weapons will extend the theater and scale of operations. If nations use them from 
the onset of hostilities, then the responses will not be graduated either. Limited 
war at sea will have once more become nearly unlimited. Along the intermediate 
levels of the scale of warfare, it's going to require more than a few NATO frigates, 
and a set of rules of engagement from the Security Council of the United Nations 
for the neutrals to stay competitive in the contest for freedom of the seas. 

The Challenge for International Law 

It would seem that as the proliferation of nuclear and chemical weapons 
occurs, the "haves" will generally be deterred from their use against each other 
just as the superpowers have been. The "have-nots" will need alliances with the 
"haves", or the protection of a much more binding moral suasion than has been 
operative in the past. The more likely circumstance, in any case, is the use of 
the more sophisticated conventional weaponry. The U.S. Commission on 
Integrated Long-Term Strategy framed the military challenge thusly: 

"The much greater precision, range, and destructiveness of weapons could extend 
war across a much wider geographic area, make war much more rapid and intense, 
and require entirely new modes of operation." 

The challenge for international law will be to keep abreast of technological 
change. Is that a question of "writing" new law, or of developing new standards 
of behavior which are accepted as the norms for nations engaged in combat at 
sea? 

From the point of view of the practitioner of the operational art at sea, it 
would seem that we could have more effective law, that is, greater adherence 
to the international standards in a rapidly changing military-technological 
environment if we stuck to the basics, to the principles. The standards of military 
necessity, proportionality, and humanity can be applied across the entire 
spectrum of warfare from "lower intensity conflict" to nuclear warfare. The 
objective should be greater compliance with international law at sea, not a more 
abundant and more restrictive law of naval warfare to be set aside and ignored 
at the firing of the first round. The rate of change in technology and weapons, 
and the rate of proliferation could be too much to keep up with if we are looking 
for a new set of specific prohibitions each step of the way. The more promising 
field could be the persuasion of all, or nearly all of the nations of the world to 
abide by the rules we already have, and to apply them generously. 



263 Lynch 

Of this we can be sure: the future holds the very likely prospect of economic 
warfare at sea; the hostilities will occur further from the shores of the belligerents 
and will be more intense and destructive. The extent to which neutral commerce 
will suffer depends on how effective the non-belligerents are in convincing the 
combatants, either through pacific means or through military coercion, to abide 
by the commonly accepted international law of the sea. 

Notes 

*Captain, USN (Ret.), former Chairman, Naval Operations Department, U.S. Naval War College; currently 
Professor of Naval Warfare Studies, Naval War College. 

1. George K. Walker, The Sources of International Law and the Restatement (Third), Foreign Relations Law of 
the United States, Naval Law Review, 7-13; (Winter 1988); Francis V. Russo, jr., Neutrality at Sea in Transition: 
State Practice in the Gulf War as Emerging International Customary Law, 19 Ocean Development and International 
Law 381-383 (1980); Daniel P. O'Connell, 1 The International Law of the Sea, 33-47 (1982). Foran interesting 
approach to A New Genre in the Study of International Law, see International Incidents: The Law That Counts 
in World Politics, 3-24, 263-269 (W. Michael Reisman et al. eds., 1988). 

2. Daniel P. O'Connell, The Influence of Law on Sea Power 86 (1975). 

3. Yuan Li Wu, Economic Warfare 2-10 (1952). See also, James P. O'Leary, Economic Warfare and Strategic 
Economics, 5 Comparative Strategy, 179 (1985). 

4. Daniel P. O'Connell, 2 The International Law of the Sea. 1096 (1982). 

5. David Segal, The Iran-Iraq War: A Military Analysis, Foreign Affairs 955 (Summer 1988). 

6. Ross Leckow, The Iran-Iraq Conflict in the Gulf: The Law of War Zones, International and Comparative 
Law Quarterly 638-644 (July 1988); Ronald O'Rourke, The Tanker War, U.S. Naval Inst. Proc. 30-34 (May 
1988). 

7. Ross Leckow, supra note 6, at 960. 

8. Daniel P. O'Connell, supra note 4, at 1131-37. 

9. Michael Vlahos, The Stark Report, U.S. Nav. Inst. Proc, 4-67 (May 1988), Norman Friedman, The 
Vmcennes Incident", U.S. Nav. Inst. Proc, 72-79 (May 1988). 

10. Bud Langston, et al, The Air View: Operation Praying Mantis, U.S. Nav. Inst. Proc, 54-65 (May 1989); 
James B. Perkins III, The Surface View: Operation Praying Mantis, U.S. Nav. Inst. Proc, 66-70 (May 1989). 

11. Cyrus R. Vance & Elliot L. Richardson, Put the U.N. Into the Persian Gulf, N.Y. Times, October 20, 
1987, at A35: 2-6. 

12. Elliot L. Richardson, Conference Report: The Persian /Arabian Gulf Tanker War: International Law or 
International Chaos, 19 Ocean Development and International Law 312 (1988). 

13. Id., at 311-12. 

14. Bud Langston, supra note 10, at 54-65; and Perkins supra note 10, at 66-70. As described by Captain 
Langston at 56, "Positive identification of Iranian naval and air forces was crucial to the operation as allied and 
Soviet surface forces were in the area. Omani and United Arab Emirates patrol boats were also operating in 
the southern Persian Gulf, as well as Omani, United Arab Emirates, Iraq, and Saudi Arabian aircraft". 

15. James B. Perkins III, supra note 10, at 69. 

16. Daniel P. O'Connell, supra note 4, at 1099. 

17. See supra note 4. 

18. David Segal, supra note 5, at 960. 

19. Bud Langston, supra note 10, at 58-59. The limit of visibility was reported as 3 to 5 miles. 

20. Daniel P. O'Connell, supra note 2, at 129. 

21. Jane's Fighting Ships, 1989-90, at 91, 253 Richard Sharpe, ed., (1989). 

22. Robert H. Morris, Evolving World Situation ROA National Security Report 2 (November 1989). 

23. Les Aspin, Missiles, Nukes, Chemicals Threaten Peace, ROA National Security Report 13 (November 
1989). See also The Global Proliferation of Ballistic Missiles, Jane's Defense Weekly, 1384-85 (December 23, 
1989). 

24. Robert H. Morris, supra note 22, at 1. 

25. Id. 

26. U.S. Commission on Integrated Long-Term Strategy, Discriminate Deterrence, Commission Report, 
8 (January 1988). 



Targeting Enemy Merchant Shipping 264 

Comments on Hugh LynclYs Paper: 
Strategic Imperatives: Economic Warfare at Sea 

By 
Harry Almond * 

General Assessment: Economic Warfare at Sea 
Introduction - Perspectives. 

Approach. Approaches to law that are evolving in a sequence of ambiguous, 
dynamic situations vary according to the purposes of inquiry. McDougal and 
his associates have led us to fruitful inquiry by advising that regardless of the 
tactics of approach, the most productive viewpoint is that of the detached 
observer. This vantage point provides us with distance from law whose prescrip- 
tive strength is tentative. It enables us objectively to sort out the claims among 
contending prospects for rule in those situations where the certain decisions to 
be treated as law are still in stiff competition with the claims of policy. This 
situation prevails with economic warfare where the vague but telling claims of 
policy, like those of "necessity" or in the vernacular of "extenuating circumstan- 
ces," are readily raised. States from time immemorial have resorted to fashioning 
and using strategic instruments of policy, so that it comes as no surprise that the 
economic instrument used in belligerency will be accompanied by diplomatic 
and ideological as well as military instruments. 

Klaus Knorr provides a background to the position taken in this paper: When 
modern belligerent states practice economic warfare, 

they seek to reduce each other's economic base of military (and economic) power 
relative to their own. In these cases, economic warfare supplements military action 
as a means to coerce or simply to overwhelm or resist an adversary. But the 
immediate purpose of economic warfare is then not coercive. It is rather to weaken 
the economic foundation of the enemy's power. Military action can, of course, 
be applied toward destroying the economic sinews of the opponent's military 
strength. Naval blockades can sever trade, and bombing from the air and sabotage 
on the ground can destroy factories, shipyards, rail transport, etc. [pp. 133-134]. 

Knorr concludes: 

In practice, the effectiveness of economic warfare is difficult, if not impossible, to 
measure, since the economic policies involved are usually only one factor, and 
certainly not the weightiest, in determining the outcome of war. Regarding 
World War II, economic warfare hardly caused the downfall of Germany and 
Japan, though it contributed to their eventual collapse. And the contribution it 



265 Almond 

did make surely resulted overwhelmingly from military measures of economic 
warfare, from naval blockade, and especially, in the case of Germany, from aerial 
bombardment. 4 

The processes of claim, applicable alike to firming policy and law, are 
operative in state practice during peace and belligerency . Such processes actively 
lead to the expected patterns of behavior in warfare. They have been notably 
affected by changing attitudes and expectations, changing tolerances, regarding 
the targets and acceptable destruction of hostilities, and in that sense alone they 
have led to law that has had a humanitarian character and moderating effect. But 
from the mid-1 9th Century, and particularly in recent years, state practice has 
introduced directly the humanitarian concern with non-combatants. Because so 
much of this concern has led to new law, and because belligerency itself through 
state practice is the determinative arena in which new law is applied, the extent 
to which such moderation has an impact in the law-making sense must await 
future hostilities. 

Accordingly, a variety of approaches can be considered for an inquiry into 
economic warfare at this time. Following McDougal it can be comprehensive, 
and for present purposes, the comprehensive approach already taken by Mc- 
Dougal and Feliciano will be taken as sufficient. Approaches may in a sense be 
an attempt at codification, where the inquiry seeks to refine or increase the body 
of hard law, or it may be concerned with general principles, or operational in 
the sense that direct "hands-on" advice is proposed to the audience. The 
approach taken here draws on the operational factor, but is aimed at a primary 
point of assessment: the inquiry is directly concerned with whether we are 
witnessing trends, substantially revived during the second World War, of 
attacking the entire economy of a nation as a strategic, and legitimate, target of 
warfare. This trend is bolstered by the recent desert war against Iraq - the attack 
was launched against the political and working infrastructure of the nation to 
bring about a quick termination to the fighting, and this meant attacks on targets 
that were essential to the economy as a whole as well as to the economy of war 
fighting. Once the target of economic war is the economy, then the measures 
of economic warfare tend to be blurred, combining the traditional use of economic 
measures and military measures. At least part of this trend was signalled by the 
advancing military technology, and the appearance of submarine warfare. 

Perspectives. The traditional instruments of war are designed to coerce others 
by force or threats to resort to force through arms. The legal regulation of the 
use of force and of military forces in particular expressed as the law of war is 
notable for general principles that leave open the emergence of law consistent 
with the tolerances of states as to what they accept as legally permissible. 

While this inquiry addresses economic warfare particularly during the bel- 
ligerency of states, the grand strategy within which economic instruments are 



Targeting Enemy Merchant Shipping 266 

-i-i 
used to advance policy ultimately must govern. A nation without long-term 

goals and perspectives concerning the future of global order stands to suffer and 

ultimately to decline. A democratic state handicapped by leaders that lack 

strategic vision and are caught up in the rough and tumble of domestic politics 

is not readily attuned to the elements of strategy, let alone its critical vocabulary. 

The fundamental elements of policy that is dependent upon coercion, lodged 

in deception, surprise, and the manipulation of the participants in policy have 

their counterparts both in times of "war" and "peace", but the resort to these 

factors, even the resort to covert warfare, is often repugnant to the democratic 

perspective. Uncertainties over the balance of power and its cultivation, and 

over equilibrium associated with the element of "peace" are aggravated by such 

a state in its democratic processes. Because the formulation and promotion of a 

grand strategy is so difficult, the recourse to economic warfare as an instrument 

of policy or strategy tends toward a policy vacuum. But this it seems must be 

^ j -14 

accepted as a given. 

The conduct of warfare amounts to a resort to intense coercion, and among 
the modalities that have emerged are the attacks that are strategic in nature, aimed 
at the economies as well as the traditional attacks aimed at the economic activities 
of an enemy. Armed force symbolizing capability to exert power, capacity to 
defend, and even in threat, intention to influence is the familiar military 
instrument, intended to exert coercion of high intensity, and expected to achieve 
military and political objectives. Hence economic warfare is likely to be 
accompanied by armed force or conducted in parallel with the use of armed 
force. 

Traditionally, economic warfare imposed through naval forces has relied on 
blockade, and found it effective in bringing an earlier termination to the war. 
With the rise of strategic weapons and the tolerances among states relating to 
strategic warfare appearing in the second World War, naval forces can be 
expected to serve in future wars with other military forces in conducting warfare 
aimed strategically at immobilizing an enemy's economy. 

The law applicable to economic warfare has therefore developed in the 
context of the law of war, and against the expectations about future wars. The 
decades following the second World War have been decades of growing 
expectations that coercion will be invoked, and once commenced rising to 
coercion of the highest intensity, and therefore at highest level of tolerance. Law 
under these conditions is law that adapts to changing methods of warfare, and 
also to a growing tolerance that makes new methods of economic warfare 
tolerable and legally permissible. Moreover, because those who use force also 
rely upon judgmental standards some of which are embodied in the "Principles 
of War", these standards show a similar flexibility as states move toward new 
weapons, methods of attack and military technologies. The fundamental 
principle is that in which they seek an application of economies in the use of 



267 Almond 

force. This is in a sense forced upon them, because they are dealing here with 
scarce resources and costly destruction. 

So before commencing war, states that consider their actions with some 
deliberation also turn toward judgmental standards in which intense, and often 
costly and high risk coercive measures are not invoked unless persuasive or less 
intensive coercive actions are first considered or taken. Nevertheless, because 
warfare is a matter whose outcomes are speculative state practice, founded on 
state perceptions of the high costs and destruction involved, it is particularly 
aimed at invoking the coercive and usually forcible instruments at early stages 
to gain the strategic advantage and tactical features of surprise, shock, deception, 
and disabling initial attacks. Strategic advantage is sought as a major auxiliary 
goal because it offers an economy in the use of force, and pursuit of objectives 
through force. 

The policy and policy making of states across the spectrum of their relations 
with each other thus shift also across the coercive instruments needed exclusively 
for deterrence [relatively few if these are the major nuclear weapons] to those 
that will be needed for armed combat, particularly where that may turn out to 
be combat of long duration, and extensive use of resources. 

The design and effective use of the military instrument and the other 
instruments of war are of great interest to policy-makers and the military 
commander. The pressure to choose against scarce resources tends in practice 
to reduce the assets available for blockades, particularly where the enemy states 
have formidable naval forces on each side to contend with. Hence a crucial test 
is that of military utility. Additionally, both commander and statesman seek to 
conform to community standards manifested in international law about the 
making of war, and about the permissibility in using the instruments of force, 
because resort to war entails the political element. A strong vision of war must 
encompass the policies and actions to be taken once the war has terminated. 
Both commander and statesman seek to have instruments that can operate 
effectively and speedily, with economy and efficiency. The fundamental objec- 
tive, reciprocated with rivals and enemies and allies, is to achieve military objects, 
and ultimately political objectives, with a minimum destruction of values 
subjected to violence and destruction. 

Although the instruments of coercion may also be designed for peacetime 
use, or invoked in strategies prior to going to war, they are primarily used for 
conducting war and reaching successful conclusions to war, and also for 
strengthening law among states, and for achieving policy goals that states must 
achieve for their own well-being. The framework for inquiry into the instru- 
ments of coercion is surmounted by the fundamental claim of all social orders: 
where all else fails, or where no other instruments are available or at hand, they 
are compelled to resort to self-help in the extreme cases to assure their survival. 



Targeting Enemy Merchant Shipping 268 

The effectiveness of these instruments is measured by how closely they attain 
military and political objectives. Accordingly, they must be used within the 
standards imposed or accepted by the global community. Their effectiveness as 
instruments of war is largely determined by their efficiency and economy in use, 
but they are also determined by their operation consistent with community 
standards. Because the instruments of war are instruments intended for action, 
their effectiveness is determined by correlation in terms of action, but actions 
claimed by states are intimately tied to both policy and law. "War," according 

to Clausewitz, "is simply a continuation of political intercourse, with the 

1 ft 
addition of other means. 

The assessment of economic warfare is, necessarily, an assessment that touches 
the interaction of claims to self help, and in particular self-defense, with the 
satisfaction of customary international law and United Nations Charter obliga- 
tions, and the rights and responsibilities of neutrals. It inevitably leads into 
perspectives about global order. The rise of the peacekeeping and maintenance 
of order instruments under the United Nations can be attributed to new 
perceptions about the use of force, to wit, the permissible use or threat of use, 
or the use of force to counter prospective aggression, all in the context of 
achieving global order, and shifting toward collective action. But the fundamen- 
tal assessment involves the perspective regarding self-help - and thus self defense 
- and the use of force and coercion. Even in the collective forms of action for 
enforcement or maintenance of public order, states have simply turned to 
collective self-defense or concurrent or synchronous actions of self defense under 
another guise. 

Economic warfare and its instruments are judged by the same standards as are 
the military instruments, and the use of economic warfare as instruments of 
coercion are judged under the standards to be found in the law of war. 
Although economic warfare may tend toward low degrees of coercion, a 
response by way of force [assuming a response directly asserted to economic 
measures and not to forcible measures] may need to be weighed against whether 
it would be proportionate to the force used, or force needed to retaliate. But 
it is of critical importance that we recognize that the use of retaliatory force is 
appraised in the context of public order, self-defense, the practice and custom 
of states, and other indicia of their expectations. When states turn to strategic 
economic warfare, it is evident that circumstances of intensive violence are 
introduced affecting the attitudes both toward law and leading to the tolerances 
about the conduct of warfare of that nature. Apart from this, the strategies of 
economic warfare, and the separate strategies of reaching strategic goals are 
comparable in most respects to those involving the use of force through military 
means. Additionally, they are strategies that include the variations employed 
by other strategies: for example, reprisals, a form of self help, are applied through 



269 Almond 

economic warfare, and reprisals are adopted both by the belligerents and the 
neutral states. 

Self-Help and Self-Defense 

To assess the emerging law of economic warfare, the overall framework of 
self-help must be briefly sketched. Self-help, like the overriding conditioning 
factor of necessity, operates in the primordial relations among states. In warfare 
under the present military technologies, expectations universally anticipate 
comprehensive and high intensity violence that is not controllable under law or 
other social processes under the familiar principles and standards. Moral prin- 
ciples, and the principle of war relating to humanity tend to shift toward a 
vanishing point when violence is intensified. Violence opposed by violence leads 
to the naked application of necessity. But the complementary principles that 
provide controls are intended even in wars of high intensity violence to resonate 
between the application and mutual moderation of the impact of principles of 
humanity and necessity. These are principles readily adopted by all states, and 
they are actively operational even in the most violent conflicts. 

But the two principles mentioned operate to control the conduct of hostilities 
themselves. Surmounting the operation of the two principles is the larger, 
constitutive goal that some states seek more fervently than others. This goal is 
that of first achieving minimum public order, building on the existing public 
order in any event, to determine the permissibility or legitimacy of their actions. 
Some states, as with Hitler's Germany and Stalin's Russia, were committed to 
public order, but it was intended to be a public order that they would control 
and dominate. Thus the belligerency may be about the constitutive elements of 
public order itself: the struggle may be for a public order configured with the 
values of one belligerent rather than another. These differing perspectives about 
global order affect the perspectives of the enemy states about the law applicable 
to their conflict. But in all conflicts, it is evident that the belligerents are involved 
in a struggle for strategic supremacy - a more limited goal, but ultimately to be 
fleshed out with a claim for public order, achieved if need be through coercion, 
or war. They may be involved in a struggle for resources. 

The notion that weapons may be distinguished and some identified as 
"offensive" and some as "defensive" is under the best of circumstances am- 
biguous, and not a principle that controls the use of weapons. Military doctrine 
distinguishes offensive and defensive warfare, but the military commander, for 
reasons of exigency or choice, will use those weapons he believes will achieve 
the military object. That object involves the military attack, acquisition of enemy 
positions or territory, or destruction of enemy forces, positions, capabilities or 
logistics. 



Targeting Enemy Merchant Shipping 270 

Self defense does not escape the element of normative ambiguity: the facts 
and applicable norms are facts that may be difficult to adduce at the time of 
action, and norms or law that is expressed in general terms as is found in the 
United Nations Charter. There are no common law courts to work through a 
practice and tradition to make these fully manageable either as sources or the 
control of law. Accordingly, much depends upon judgment and the reasonable 
exercise of discretion. Rules of engagement, principles relating to the introduc- 
tion of force, principles concerning the just war, and principles relating to 
reprisals have in common check points for the commander or decision maker. 
They are not compulsory but are only aids to the stages employed in exercise 
of discretion or judgment. Acts to use force have decisional components and 
appear in analysis as a stream or flow of decision; hence going to a court to have 
it rule with finality about an element in the decision has an element of unreality 
that ignores the "fog of war." It runs counter to the development of law from 
dynamic situations and aimed at future dynamic situations. Law for such purposes 
/tends to develop against a larger array of facts to some extent similar to those 
that the legislator must face. 

Neutrality, The Public Order and Belligerency 

The perspectives of states in their recourse to the use of force fall within the 
framework of attitudes toward coercion. These perspectives have been amply 
considered by other commentators. The fundamental perspective is concerned 
with the protection of the existing public order, or toward the promotion of 
public order for the future that will afford greater security. This perspective is 
adopted in the claims of all participants during belligerency, including neutrals. 
The interaction of the issues of economic warfare with these objectives raise a 
variety of problems in blockade, contraband, belligerent occupation [for 
economic purposes as well as for political purposes, or strategic purposes] , and 
the expanding right of angary. Resort to reprisal, a separate but subordinate 
instrument of coercion, is subject to the same policy considerations. It is an 
instrument under which agents of warfare, or methods of warfare, otherwise 
impermissible, are permitted in response to the first use of such agents or methods 
by the enemy. 

The claims relating to neutrality have a direct bearing upon economic warfare: 
belligerents that claim a right to interfere with or stop the flow of goods from 
neutrals raise issues as to the neutral behavior of states that are not participating 
in the conflict. Differences relating to the policy of neutrality have led to 
qualifications regarding the neutral's position. McDougal and Feliciano refer to a 
variety of terms, conveying a variety of policy implications, now adopted to refer 
to neutrality. They mention "non-belligerency," "status of nonparticipation," 



271 Almond 

"absolute neutrality," "differential neutrality," "qualified neutrality," 
"benevolent neutrality," "permanent neutrality" and so on. 

States insisting that they are neutral have adopted terms of this nature because 
they have perceived a change in the nature of belligerency in current practice: 
states that they believe to be aggressors are not entitled to the full benefits of 
neutrality, so that they decide for themselves that certain freedoms will be taken 
with regard to the application of the laws otherwise restraining neutrals in their 
trade. But the larger impact of perspectives also applies: the neutral states are 
claiming the inclusive rights of states to all of the freedoms of the use of the seas 
and perhaps of air space [and in the future outer space], while the belligerents 
are claiming the exclusive rights to enclose areas of the seas and so on in which 
they will be conducting hostilities and as to which they will not be responsible 
for harm or damage caused to those that are not so engaged. 

It is evident that the changes in perspectives have an impact upon what is 
tolerated, and thus upon the emerging law relating to neutrals. So the bases of 
power of the states involved are significant factors. McDougal and Feliciano 
appropriately quote from the Norwegian historian, Orvik to this end: 

The outcome of the struggle to establish such a modus vivendi [between 
belligerents and neutrals] has at all times been entirely dependent upon the 
economic and military strength, the strategic position and the perspicacity and 
persistence of the two sides. In short, 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. 

In the comprehensive framework adopted by the two authors, the strategies 
for asserting and protecting the claims of the two sides, and the conditions under 
which the claims are made are adduced. Among the conditions mentioned are 
the differing demands and perspectives about global order and its future, the 
character and technology of violence, particularly with the appearance of the 
thermonuclear weapons, and the economic and social values of the various 
participants that form the major stakes. 

Additionally, the context of the claims process is considered. Questions raised 
include those such as the authority of a minimum order to be shared by all sides 
and from which authority relating to hostilities and regulation of those hostilities 
emanates; how minimum order is implemented to achieve international security 
in the interests of all states in the global community; and questions relating to 
the expectations of states about the effectiveness of collective security. These 
questions are important in the context of the applicable law, and in appraising 
the changes occurring in the "traditional" law. States are believed to share 
common objectives toward reaching minimum order, and toward minimizing 
the destruction of values. These perceptions appear in turn in their law, in such 
concepts as the principle of military necessity. 



Targeting Enemy Merchant Shipping 272 

In invoking the instruments of war, states, in general, seek to satisfy the law 
of war. Not only must the instruments satisfy the existing community standards, 
but because the policies they embody are future-oriented they are likely to 
contain expectations of an emerging law. The logic of the changing law is to be 
found in the gradual growth of global public and legal order, so that neutrality 
is subordinated to the expectations that a public order hostile to aggression will 
be served. This was the logic adopted by the Attorney-General of the United 
States in defending the neutrality position of the United States favoring the allies 
against Hitler: 

It is the declared policy of the Government of the United States to extend to 
England all aid "short of war." At the same time it is the declared determination 
of the government to avoid entry into the war as a belligerent. . . . Events since 
the World War [World War I] have rejected the fictions and assumptions upon 
which the older rule rested [i.e, the rules of the Hague Convention on Neutrality]. 
To appreciate the proper scope of that doctrine of impartial neutrality we must 
look to its foundations. Its cornerstone is the proposition that each sovereign state 
is quite outside of any law, subject to no control except its own will, and under 
no legal duty to any other nation. 

The United States put forward a new category "in which certain acts of 
partiality are legal even under the law of neutrality." This introduces a new 
perspective into the law of force. An international breach of the peace under 
this view is a matter that concerns all states in large measure because they have 
adopted a global organization and a global process to achieve global order that 
reflects their community. But Jackson's perspective makes it a right of all states 
to act with force if they can show that they are involved in the maintenance of 
international peace and security, and that global or collective efforts to do this 
were unavailing. It entails the element of the "just war" - a notion that is linked 
to the public social and legal order. Moreover, his is a perspective that contains 
higher expectations of law, and the legal and global order than we have of the 
behavior of states and their elites. In any event, his claim can fall back on 
necessity, the conditioning factor as to all international law, and upon which 
states are compelled to rely when their order breaks down. 

Jackson thus joined those who supported a higher degree of freedom for the 
policies and decisions of states that claimed they were neutrals, enabling them 
to take actions that in an early tradition would have made them belligerents. 
Jackson found that the neutral state must meet the higher law requirements of 
the public order itself: 

A system of international law which can impose no penalty on a law-breaker and 
also forbids other states to aid the victim would be self-defeating and would not 
help even a little to realize mankind's hope for enduring peace. 



273 Almond 

Additionally, this is a concern with the permissibility or lawfulness in resorting 
to coercion, whether that coercion be exercised by military measures, or by 
economic instruments as considered here, or otherwise. The naval officers and 
those in their line of command as servants of their governments have similar 
concerns. The uncertainties of law and the appearance of law often in a formative 
stage make the issue of permissibility a complex one, so that all states, belligerents 
and neutrals alike, traditionally claiming a wide degree of independence, or 
absolute "sovereignty", particularly during belligerency, tend to claim that the 
law is controversial and that their actions are lawful. 

Secretary of State Kellogg observed in connection with neutrality and the 
Kellogg-Briand Pact that we would not abandon our claims to self-defense, so 
that responses to aggression became the basis of global standards regarding the 
use of force: 

There is nothing in the American draft of an anti-war treaty which restricts or 
impairs in any way the right of self-defense. That right is inherent in every 
sovereign state and is implicit in every treaty. Every nation is free at all times and 
regardless of treaty provisions to defend its territory from attack or invasion and 
it alone is competent to decide whether circumstances require recourse to war in 
self-defense. If it has a good case, the world will applaud and not condemn its 
action. . . . Inasmuch as no treaty provision can add to the natural right of 
self-defense, it is not in the interest of peace that a treaty should stipulate a juristic 
conception of self-defense since it is far too easy for the unscrupulous to mold 
events to accord with an agreed definition. 

Kellogg caught many of the main themes of community principle: self- 
defense was an inherent right among states never to be suspended and preserved 
under overriding customary international law; definitions of self-defense were 
self-defeating because the subjectivities of states in their perceptions of aggression 
targeted against them tend to be overriding yet unique; wars were not eliminated 
by documents such as the Pact but only shifted to issues of aggression, and so 

46 

on. 

Section 233 of the United States Navy manual, the Law of Naval Warfare, 
declared that states may relinquish their claims to neutrality when they enter 
into security agreements: 

The right of individual and collective self-defense established by the Charter of 
the United Nations may be implemented by regional and collective self-defense 
arrangements. Under these arrangements the possibility of maintaining a status of 
neutrality and observing an attitude of impartiality depends upon the extent to 
which the Contracting Parties are obliged to give assistance to the regional action, 
or in the case of collective self-defense, to the victim of an armed attack. The 
principal effect of regional and collective self-defense arrangement is to transform 
the right of the parties to assist that State suffering from an armed attack into a duty 
to assist a State attacked. 



Targeting Enemy Merchant Shipping 274 

And the overriding impact of the discretionary element exercisable when 
threats intensified was noted by the American writer, Hyde: 

Realization of the fact that under certain conditions non-belligerent states may be 
disposed, for good or bad reasons, to ignore what the law of neutrality may 
normally exact is perhaps of greater importance to the members of the interna- 
tional society than close appraisal of what the law of neutrality as such permits or 
forbids a neutral to do with respect to the conflict that is waged around it. 

Economic warfare strategy partakes of general military and maritime strategy. 
Reliance on economic warfare to supplement other methods of warfare has been 
largely vested in the maritime states, but this is likely to change as states turn to 
strategic bombing for destroying each other's economy. But generally speaking 
there is a distinction between land and sea powers: 

. . . there is an enduring geopolitical difference between land and sea that affects 
importantly how man thinks about his natural habitat, the land, and an environ- 
ment that is fundamentally hostile to him, the sea. The natural condition of the 
land is to be politically controlled. . . . The natural condition of the sea, in sharp 
contrast, is to be uncontrolled. 

The maritime strategy of the United States has evolved over the years with 
changes in perspectives, in national interests and goals, and in the needs of the 
nation with regard to its relations with other states, especially allies. But a set of 
common themes prevail in all of the versions: the major task in command of the 
sea remains the protection of communications, a defensive task, and maintaining 
control of the sea for the protection of the nation, an offensive task. The notion, 
often advanced as propaganda and ideological strategy, that there are differences 
between weapons, some of which are identified as offensive and some defensive, 
thus becomes meaningless when states are engaged in actual combat. The 
differences are those of the military commander's action and intention, and he 
may use the same weapon for either purpose: 

Elimination of offensive naval force from the National Military Establishment 
would permit us only a limited use of the seas at the cost of continued, unremitting, 
defensive efforts, and it would completely destroy the capability which we now 
possess of using the seas for offensive operations and as an area under our control 
from which to project and establish elements of the army and air force on the 
Eurasian continent. The elimination of offensive naval power throws away at one 
stroke a major component of our greatest strategic asset which is our capability of 
exploiting the elements of mobility, concentration, surprise, and economy of 
force. 

This position was not changed by subsequent reports by authorities in charge 
of naval forces. Stress was given to new elements such as strategic deterrence, 



275 Almond 

but sea control and projection of sea power remained, and these are strategies 
that cross over the strategies of economic warfare. To achieve those ends, a 
maritime state needed to have superiority in naval force whether for sea control, 
power projection, strategic deterrence, or combat. It would demand flexibility 
to reach new threats to the maintenance of stability and to the containment of 
crises. The forces themselves could not rely on a substantial reserve of forces, 
hence they required a readiness in being. Admiral Watkins remarked: 

Perhaps most importantly, naval forces have unique escalation control charac- 
teristics [a major element of deterrence and prevention] that contribute to effective 
crisis control. Naval forces can be intrusive or out of sight, threatening or 
non-threatening, and easily dispatched but just as easily withdrawn. The flexibility 
and the precision available in employing naval forces provide escalation control 
in any crisis, but have particular significance in those crises which might involve 
the Soviet Union. 

The strategy of the Soviet Union, according to the Department of Defense, 
is said by the Soviet spokesmen to be a strategy of military sufficiency. A major 
shift in Soviet strategy is said to have occurred, because the stress is upon the 
decision and upon the political dimension and no longer a military strategy 
[whatever that means] : 

Security in the nuclear age must be evaluated differently. Assessing security is more 
and more becoming a political task. It can only be resolved by political means 
through detente, disarmament, strengthening confidence, and developing inter- 
national cooperation. 

Maritime strategy, through rules of engagement and through doctrine, 
interacts with law and policy, each affecting the others. A nation's strategy, 
doctrine and statements about the military art might thus be combed for its 
attitude toward law, particularly because that attitude must determine what the 
perspective about the legal order itself will be. The United States maritime 
strategy in its most recent version was placed by Admiral James D. Watkins into 
the larger context of the national military strategy: 

Our national military strategy is designed: to preserve this country's political 
identity, framework, and institutions; to protect the United States, including its 
foreign assets and allies; to foster the country's economic well-being; and to bolster 
an international order supportive of the vital interests of this country and its allies. 
To achieve these ends, our national strategy is built on three pillars: deterrence, 
forward defense, and alliance solidarity. 

This is a maritime strategy that is to be distinguished from our major rival, 
the Soviet Union, compelled by geography, military experience and predilection 
to adopt a land-based strategy. Watkins argues that the navy's importance tends 



Targeting Enemy Merchant Shipping 276 

to grow during times of limited conflicts, providing, as it does, major support 
to the actions of the nation's strike forces. Hence there is a need for a versatile 
array of naval forces, and continuous adaptation to new methods of warfare and 
new targets calls for a navy commensurate with the nation's global interests. 

Admiral Watkins' reference in his statement to the preservation of the nation's 
"economic well being" indicates the expectation that economic strategies of 
warfare promoting the nation's economic strength and weakening that of the 
enemy are among those that will be adopted and given major attention. And 
like the other strategies, effective economic warfare, and the capabilities to 
exercise such warfare, are aimed at deterrence - a major element in maintaining 
the well-being of the United States and its allies, and stability with others. 
Deterrence calls for costly investment in capabilities and readiness, yet it remains 
the key to what assurance we can have to prevent aggression. We are compelled 
to conclude that our naval forces call for independent assessment as to needs, 
missions and capabilities, and unlike most other armaments fail to lend themsel- 
ves to arms control equilibria or the balancing among equals simply because the 
states involved have differing interests. It is possible, but subject to speculation, 
that the rules identified with arms control and which make it effective need to 
be adjusted. 

The law relating to economic warfare emerges from the practice and strategies 
of states with respect to the economic measures they have adopted, or the attacks 
they have mounted against the economy of the rival states. This law is affected 
by the changing practice and perspectives among states with regard to belligeren- 
cy and neutrality. In both World Wars, the appearance of new methods of 
warfare had their impact upon neutrals, notably in the creation of war zones, 
the attitude and extent to which minefields were laid, and the claim of 
belligerents to sink at sight both enemy and neutral ships. With these changes 
in the law, states also tend to adopt new attitudes toward enforcing the law: 
reprisals, for example, for violations by belligerents of neutrality or reprisals by 
neutrals, are determined by the law itself, while reprisals are actions that 
affirmatively promote the law, and a changing or emerging law makes this a 
complex policy problem. 

Such changes also had their impact upon the judgements of the prize courts, 
and therefore to the law developed through the application of principles and 
judgment. But these courts have perspectives of their own, and for a period 
during the first World War some of these courts, under the leading prize court 
judges of Britain, attempted to fit the new practices into the existing law, and 
ultimately these cases facing the realities of change were overruled. The 
problem that the prize court judges faced was summed up by Commissioner 
Nielsen in the Oriental Navigation Company (1928): 



277 Almond 

Custom, practice and changed conditions have their effect on international law 
as well as on domestic law. However, ... a violation of law is not equivalent to 
a modification or abolition of law. The fact that new instrumentalities of warfare 
make it inconvenient for a belligerent in control of the sea in a given locality to 
act in conformity with established rules of law does not ipso facto result in a change 
of the law or justify disregard of the law. 

Economic warfare may involve methods that are accompanied by the use of 
force, or by the threats to use force, or they may be used with the intention that 
they are intended to persuade the enemy to take certain actions. During warfare, 
the economic strategies are usually accompanied by the use of force, and that 
use is appraised against the standards of military necessity, the responsibility of 
states to avoid unnecessary suffering, to avoid excess in the use of force, and 
therefore meet the standards of proportionality. Accordingly, the strategy of 
economic warfare may be assessed as to the legality of the strategy that does not 
resort to force or threats of force may be treated as an unfriendly act. In those 
situations, the state resorting to such a strategy has a far greater freedom to act, 
and far more discretion than does the state that resorts to force or threats of force. 

State practice in World War I shows the impact of belligerent practice in 
changing the written, conventional or treaty law. The United Kingdom and 
other belligerents in that war set aside the Declaration of London. And the British 
Government through a series of Orders-in-Council adopted one that was aimed 
at justifying reprisals themselves. The "reprisal orders" were said to be a 
response to German submarine attacks, and though not permissible under 
prevailing law were justified under special circumstances as an exercise of "an 
unquestionable right of retaliation." 

The same period provided us with state practice concerning the changes 
occurring in the prize courts relating to contraband and other issues relating to 
the modalities or tactics of economic warfare. This practice leads us to the realities 
of state application of law: belligerent states tend to find the law controversial, 
and therefore they are eased into interpretations to their own liking, and states 
involved in wars of highly intensified violence tend to find much of their law 
inoperative. We might expect that this may occur with the provisions of the 
United Nations Charter. 

Traditionally, economic warfare is perceived as conduct during armed combat 
- acts that supplement the military actions, whose law evolves from belligerent 
practice and hostilities. But such acts, though not usually referred to as economic 
warfare, occur during peacetime by way of reprisals or retorsion, and though 
both persuasive and coercive, do not depend upon the use of force. Examples 
of this kind might be found in the Cuban- Missile Crisis where the quarantine 
was adopted to avoid the stigma and functional features that would have made 
up a forcible blockade - prohibited under the United Nations Charter among 
states in peaceful relations. A further example may be found in the ambiguous 



Targeting Enemy Merchant Shipping 278 

situations currently involving the United Nations stand against Iraq, where the 
economic sanctions are purportedly those directed by the Security Council of 
the United Nations, again short of war. 

Economic strategies operable in peacetime have received less attention. 
Although such strategies may not require naval forces, the strategies themselves 
deserve brief mention. Where a nation's strategic bases of power include its assets 
and resources, its organizational base and the morale of that base, and the values 
they prize and commitments to those values, it is evident that economic 
persuasion and coercion in peacetime may be essential to shape a rival toward 
comparable values. The strategic element arises because states seek to deter, or 
to prevent, other states from becoming a threat, and because they can readily 
see the economic base of power becoming the base for other states to become 
a rival military power. This perception imposed upon the current problems of 
the Soviet Union is recommended as a moderating element in the rush to assist 
that state before it shows the willingness and ability to shift toward democratic 
processes and institutions. 

Reprisals affecting neutrals invoked by the British during World War I, 
commencing with the Order-in-Council, March 11, 1915, are illustrative of the 
actions taken to restrict German trade and commerce. However, as Schwarzen- 
berger has pointed out, reprisals, intended to promote lawful conduct may turn 
out to be altered when the belligerents take on themselves the standards of 
application: 

In a language which applies as much to the application of indiscriminate reprisals 
as to the pleas before the British-United States Mixed Claims Commission, 
Commissioner Pinkney pointed out: "If a belligerent is empowered by the law 
of nations to seize the property of neutrals upon its own terms whensoever that 
belligerent shall believe or affect to believe that by such means its enemy may be 
annoyed or reduced, few nations would choose to remain neuter." Once 
discretion is exercised so widely, the alleged rule "will be applied in practice upon 
false as well as mistaken grounds." 

This was exactly what happened in both World Wars, and even neutral Powers 
which went to war for the revindication of the rights of neutrals, as belligerents 
swiftly changed their tune. Moreover, in both these wars, the major victorious 
Powers greatly benefitted from the law as they had shaped it and saw little reason 
why they should champion a return to the traditional law. 

Thus, the strategies of states in past armed conflicts, and in "peacetime" as 
well, have included the economic instrument: i.e., states may be able to reduce 
the financial or trade flow to rivals through effective measures in such institutions 
as the GATT or IMF. The strategies may therefore be aimed at either material 
resources or at services relating to the economic process or both. They may be 
unilateral or coalition strategies. While the stress here is economic warfare at sea, 



279 Almond 

particularly upon blockade, the strategies in the larger sense would include a 
variety of measures intended to weaken the economy. 

According to Medlicott in the foremost study to the economic warfare carried 
on in the first World War, the "official definition" or conception of economic 
warfare adopted by the British Committee of Imperial Defence on July 27, 1939, 
extends beyond activities involving the goods or services of trade and commerce 
to the strategic targets that lie in the industrial base of the enemy, i.e., industrial 
facilities and even the working population that is employed by them: 

The aid of economic warfare is so to disorganize the enemy's economy as to 
prevent him from carrying on the war. Its effectiveness in any war in which this 
country may be engaged will vary inversely with the degree of self-sufficiency 
which the enemy has attained, and/or the facilities he has, and can maintain, for 
securing supplies from neighboring countries, and directly with the extent to 
which (i) his imports must be transported across seas which can be controlled by 
His Majesty's ships, (ii) his industry and centers of storage, production, manufac- 
ture and distribution are vulnerable to attack from the air, and (iii) opportunities 
arise from interfering with exports originating from his territories. 

Medlicott noted that economic warfare is broad, expanding and flexible in 
nature, and includes "all economic activities which directly or indirectly further 
the war effort of a belligerent," and that this was the usage of the United States 
after Pearl Harbor. He then pointed out: 

Economic warfare is a military operation, comparable to the operations of the 
three Services in that its object is the defeat of the enemy, and complementary to 
them in that its function is to deprive the enemy of the material means of resistance. 
But, unlike the operations of the Armed Forces, its results are secured not only 
by direct attack upon the enemy but also by bringing pressure to bear upon those 
neutral countries from which the enemy draws his supplies. It must be distin- 
guished from coercive measures appropriate for adoption in peace to settle 
international differences without recourse to war, e.g., sanctions, pacific blockade, 
economic reprisals, etc., since, unlike such measures, it has as its ultimate sanction 
the use of belligerent rights. 

In assessing the effects of the economic warfare, Medlicott noted the staying 
power of Germany in World War II, its use of resources from captive nations, 
its ingenuity in finding substitutes, but also the growing gap in production by 
the allies when production was compared with Germany. Nevertheless, 

The picture was of an economy achieving with difficulty the demands of a 
supreme war effort, with too slight a reserve of human or industrial resources to 
achieve much more. Raw material shortage seemed to be the main handicap to 
economic expansion, and certainly the one most vulnerable to economic warfare 
attack; it was necessary, therefore, to relax none of the existing forms of pressure 



Targeting Enemy Merchant Shipping 280 

on the neutrals, and also to ensure that Germany found no escape from her 
difficulties by other means. . . . 

The strategies employed in war are affected by changes in the methods of 
warfare, the introduction of new military technologies, and by the appearance 
of new weapons. These changes all have their effect on the law, because each 
of these must be assimilated under that law, or the law must render them 
impermissible. Moveover, neutrality itself has been affected, as is clear from the 
introduction to this paper, and that has in part been the result of the independent 
authority among states to determine when war has broken out [hence to 
determine its neutrality or other relations it might have with the hostile states] , 
and which side might have been acting unlawfully [hence the determination of 
whether the "neutral" state can refrain from aiding the aggressor, or afford 
discriminatory and privileged support to its victim] . 

The strategy of economic warfare as set down by the British government 
suggests the growing magnitude of the strategy in a major war: 

1. To prevent the two enemy dominions [Japan and German] from establishing 
economic exchange by blockade running; still more, of course, to prevent their 
opening regular communications by land or sea. 

2. To develop the increased possibilities of economic pressure on the neutral 
border States adjacent to German Europe and on Vichy French colonies to the 
fullest extent which the military situation permits, with a view both to obtaining 
supplies and to denying to the enemy resources which are becoming more than 
ever essential to him. 

3. To develop within occupied countries both in German Europe and in the Far 
East all forms of passive and active resistance to economic exploitation. 

4. To develop methods for directing against the increasing weakness of 
Germany's war potential attack from the air which shall really be effective. 

5. To devise combined operations against the most important accessible 
economic targets in enemy-occupied territory and against his lines of communica- 
tion. 

6. To defend important sources of supply and access to them, including the 
supplies of South America. 

Further complications arose after the major wars with the United Nations 
Charter, because the Charter provides for the Security Council to have primary 
- actually exclusive - authority with regard to matters relating to the maintenance 
of the peace, or with regard to aggression. Once seized of the matter and once 
it proclaims the enforcement decisions and actions to be taken, all members of 



281 Almond 

the United Nations will, unless excepted [which is unlikely], be included in 
support of the United Nations action. 

And other complications arise with the advent of the United Nations with 
regard to interpretation of critical language, such as that concerning "armed 
attack" as used in Article 51. Because war is outlawed, but aggression remains a 
reality, the states have been compelled to shift their vocabulary to fit aggression 
and self-defense into concepts for a regulatory process, and they have built upon 
their experience in formulating the laws of war. Here again the determination 
or appraisal of facts indicating an "armed attack" must be that of the victim state 
or the state that might be involved in what it claims to be a response by way of 
self-defense to an armed attack, subject to broad standards as to making that 
response, and the force that it is using. 

Accordingly, we have seen the rise of new claims as to the policy or content 
of neutrality: non-belligerency, non-participation, and non-alignment, adding 
further ambiguity, functional in nature and in their differences, and indicating 
relationships with all or some of the belligerents not to be governed by the 
traditional rules of neutrality. The impact upon the tactics, or modalities, of 
economic warfare at sea has been felt, commencing with the renunciation during 
World War I of the application of the Declaration of London, 1909. Events had 
by then already indicated that new methods of warfare and new claims of the 
belligerents overrode the rules laid down in that Declaration. Had it remained 
in force, it would have led only to confusion about the standards that govern 
legitimate reprisals, and the tendencies clearly shown in the second World War 
for states to talk past each other, claiming reprisals and counter-reprisals to cover 
all of their attacks regardless of target and the force applied. 

Changes occurred also in the geographical features that affected neutral states. 
The global reach of major wars led to the claims of states, separately and as part 
of the regional groupings, to freeing adjacent seas, extending far into the high 
seas, from the presence of belligerent naval vessels. This was illustrated in the 
Declaration of Panama in 1939. 

In addition to these political and legal implications, the strategies of economic 
warfare are determined by whether they rest upon coercive techniques or 
persuasive techniques, or mixtures of these, and they may be used concurrently 
or separately. But during wartime, the strategies are imposed primarily through 
coercive measures that include the concurrent resort to force or threat to use 
force. The law relating to coercive strategies or strategies that depend ultimately 
upon the use of force operates through the standards of reasonableness: necessity, 
proportionality in the use of force, attack on legitimate military objects. 

Economic deprivation strategies such as those mentioned here may be refined 
substantially in the future so that they, operating under the familiar principle of 
economy of force [or of resources committed to actions against a rival] , will 
become more effective. Further refinements may be expected to arise from 



Targeting Enemy Merchant Shipping 282 

reaching deep into a rival's economy, attacking the industrial base, the logistics 
and transportation facilities, and even the civilian population engaged in military 
production. This was the expectation associated with city strikes during the 
second World War. Hence it is stressed here that these strategies affect the 
emerging law, giving it content, and they are assessed under the law relating 
generally to the exercise of coercion. 

The "sources" of the law applicable to economic warfare include the 
customary international law, a law that is dynamic and is responsive to continuing 
change in state practice; treaties such as the Declaration of London, 1909, that 
apply now only to the customary international law they embody; the various 

77 

instructions and navy regulations; law of war manuals and rules of engagement 
which, though not among the formal sources, are the evidence of the law, and 

7R 

reflect the practice of states. General principles assimilated by the Prize Courts, 
to wit, the municipal courts designed to resolve issues relating to contraband or 
other non-neutral conduct of neutral states, may also be included. Documents 
and a careful inquiry into this subject is provided by such writers as Carlton 
Savage, with his two volume work for the Department of State extending into 
World War I. 

While definitions of economic warfare have already been given, and none 
are universally accepted, it is evident that the conception to be usable must be 
functional. A general conception of economic warfare embodies measures taken 
to reach the economies of other states, is the outcome of strategies used by states 
to influence, alter or control the decisions or policies of an adversary or aimed 
at neutral states that might be providing economic assistance to an adversary. 
Such warfare, during armed combat, is supported or promoted by military 
measures, especially by the naval forces. The methods and strategies used are 
controlled under law, but they also promote or give policy content to the law, 
operating to make it effective. Whether perceived as a strategy by policy or 
decision makers in general in pursuing their goals, or as a strategy by the military 
force and especially the naval forces acting in the operational dimension of 
hostilities, economic warfare is judged under legal standards of reasonableness 
and effectiveness. 

The law of economic warfare is a continuously emerging law, drawing upon 
the changes in the relations of states, upon the technologies that affect their 
war-fighting capabilities, upon the national power that underpins their strength, 
and upon the changes that are occurring in the conduct of hostilities. The strong 
trends in this law include the trends reflecting a changing law, changing with 
the belligerent practice among states, and the changes imposed through tech- 
nology, and its impact upon the conduct of hostilities. These changing trends 
have shown their impact upon the law relating to contraband, the doctrines of 
ultimate voyage and continuous voyage, practice relating to navicerts and other 
administrative measures, and blockade. 



283 Almond 

Major studies have been concerned with domestic legislation alone: the 

history and emergence of neutrality in the United States, the legislation adopted, 

and the changes to that legislation trace political perspectives that replaced the 

notions of "neutrality" with "non-belligerence," "non-alignment," and so on. 

Such features as state-trading and the peculiar claim of exemption of such trading 

from the usual practice and law with regards to neutrals have gradually vanished 

as naval warfare became a global activity. Where however the tendency might 

be to maintain the traditional law on the books, it is likely that the changes will 

be made either through resort to the claim of reprisals, or through outright 

violation of the law. 

ft i 
According to Alford, economic warfare is "material resource" warfare. He 

refers to such warfare as 

. . . intentional disturbances of the flow of material resources among people and 
of the processes by which these resources are used to produce values. Under the 
rubic "modern economic warfare" are embraced such apparently disparate prac- 
tices as the preemption of scientific knowledge and skill to deny them to an 
adversary and interferences with the transport of materials such as nuclear and 
biological weapons, not regarded as wealth in a conventional sense. 

Julius Stone has pointed out that the economic warfare and the expectations 
of states that engage in it have changed with the experience during conflict. 
Napoleon attempted to ruin Britain commercially by attacks on British maritime 
commerce, and did not succeed. He was faced with British naval power that 
made his efforts fruitless. The link was made by early commentators between 
maritime commerce and the need for a navy: Mahan is cited as an authority for 
the claim that without maritime commerce, there was no further interest for a 
nation to protect, hence no need for its navy. But Mahan was inconsistent in 
these views, because he subsequently discovered the need for naval power to 
reduce a rival's war fighting capabilities both at sea and in general. Shifts in 
perspectives ranged from those who claimed that economic warfare was to claim 
the wealth of a rival, and those who viewed such warfare as a strategic enterprise, 
affecting its war capabilities. 

Some of the military changes appeared with the emergence of submarine and 
air warfare applied to maritime commerce as well as to its protection. Attempts 
here, under law to regulate such military actions, led to a general breakdown in 
the agreements relating to both, and states, though they tried in 1923 to reach 
a convention for air warfare, were unsuccessful, and none has yet been achieved. 
The demands of humanity were in large measure overriden by the demands of 
military necessity, as the attacks on the Lusitania and the Sussex were to show 
during the first World War. The Nuremberg Trial of Admiral Doenitz finding 
violations of law but refusing punishment was unable to clarify the matter. The 
Court said: 



Targeting Enemy Merchant Shipping 284 

In view of all the facts proved and in particular of an order of the British Admiralty 
announced on May 8, 1940, according to which all vessels should be sunk at sight 
in the Skagerrak, and the answers to interrogatories by Admiral Nimitz stating 
that unrestricted submarine warfare was carried on in the Pacific Ocean by the 
United States from the first day that nation entered the war, the sentence on 
Doenitz is not assessed on the ground of his breaches of the international law of 
submarine warfare. 

Alford believes that economic warfare is waged during periods of "general 
military stalemate.'* The emerging perception however is that economic warfare 
may be characterized as a form of economic coercion, and the effectiveness of 
coercion may arise from the economic "disturbances" alone, or through the 
parallel or simultaneous exercise of military coercion. But Alford correctly 
perceives that coercive economic practices may be invoked during the lesser 
wars or hostilities of violence that has not reached the high intensity of a major 
war. Moreover, it may be an instrument that can be designed to vary the coercive 
element. The state invoking economic warfare may be able to avoid escalation 
in the intensity of coercion, perhaps simply threatening its adversary with military 
force not invoked. In doing this it has an instrument that may be less costly, 
more efficient, and more effective especially in terms of political goals that follow 
the confrontation, and more flexible in terms of the diplomatic or ideological 
[including propaganda] options available to it. At the time this paper is being 
written, this is one of the elements still available for the United States and others, 
acting pursuant to a coalition formed under the auspices and mandate of the 
U.N. Security Council. 

Alford also suggests that if states, like the United States and the Western 
democratic states, are to have the advantage of the economic instrument of 
coercion, they must have the appropriate power base within the government to 
provide for a professional and continuing inquiry into invoking it. This at present 
is lacking. Like other policy instruments at our disposal, the instrument gains 
effectiveness through close inquiry and attention to its use, and to inquiry into 
the use of such techniques by others against us. Alford's text is then an attempt 
to strengthen the coercive economic instrument through a framework of inquiry 
addressing a process of claims and counterclaims among states including the 
working of that process within the government and its own cadres. 

The larger context in which the instrument is involved extends to the 
persuasive economic instrument, so that the nation would seek to persuade allies 
or friendly states, and even, when the occasion demands, use persuasion with or 
in place of coercion with regard to rivals. But the usual context for economic 
warfare is that of the use of a coercive instrument, and its effectiveness is 
determined by the extent to which the flow of material resources of an adversary 
have been impaired, the duration of that impairment, and the elements in the 
economic process that are affected. 



285 Almond 

The economic sanctions of the Security Council against Iraq [commencing 
in 1990] were all-inclusive. It was expected that through such sanctions, 
sufficiently and intensively imposed, Iraq would meet the terms imposed by its 
adversaries without an outbreak in war. Hence, while the tendency has been to 
step aside from describing the situation as one of armed combat or war, the use 
of sanctions are used as if a war had been declared between the parties. It is 
evident that the use of such measures are permitted through the United Nations 
Charter without regard to ascribing the element of war, but it is also clear that 
Iraq has seized the territory of Kuwait through aggression, and that continued 
possession of that territory adverse to the legitimate government and to the global 
community at large constitutes a continued aggression. Accordingly, the states 
involved can invoke collective self defense where Kuwait has called for assis- 
tance, and, according to some views, they might claim self defense itself. The 
claim of self-defense however would require a clear showing that Iraq*s action 
was aggression against their "political independence", "territorial integrity**, or 
against the objects and purposes of the Charter. 

The coercive element in economic warfare directs us to the action element, 
but the design and use of economic warfare techniques lead to modifications in 
the law. It is evident that with changing methods of warfare and therefore 
changing tolerances about the attacks that are made and the weapons used, the 
law will be affected. The law is largely shaped by how states behave in their 
recourse to coercion. Coercively oriented, the economic warfare is aimed at 
resources, but more directly according to Alford at creating "psychical disequi- 
librium in the power elite of the adversary." He cites Liddell Hart as describing 
this "as the sense of being trapped. Effective use of economic warfare is 
characterized by a reaction in the target elite or adversary in which it accepts 
demands before the situation deteriorates. This of course is the expectation in 
imposing such sanctions on Iraq in the current crisis. Nonetheless, economic 
warfare alone is insufficient to force major policy changes: military power is 
almost always required. 

Numerous other correlations of economic warfare tactics and the traditional 
tactics in the use of military force could be mentioned. These serve us here to 
freshen our perceptions about the application of the principle of economy of 
force, of, perhaps, the various law of war principles, applied however to the 
economic warfare techniques, the need to select target elites with care, and to 
determine as far as possible the effectiveness of the technique in achieving results. 
Economic warfare when coupled with the activities of irregular or guerrilla 
forces, or in the context of limited or regional wars, raises problems that are not 
addressed in this paper. 

The attempts described in this paper to balance out opposing principles, one 
favoring the command and freedom of the seas, and the other favoring the claims 
of belligerents to deny commerce with their rivals creates the primary difficulties 



Targeting Enemy Merchant Shipping 286 

for laying down the principles of economic warfare at sea. This balancing of 
principles is given added complexity under the strategies of states, because 
economic warfare may only be a strategy to deny a rival belligerent essential 
goods, or it may be a larger strategy, such as that aimed at opposing its 
war-making powers or capabilities. In the second perspective, which as shown 
earlier was adopted in World War II, the larger economic strategy combining 
military action and the goals of destroying the economy led to strikes at the cities 
and urbanized areas, at industrial and economic targets, and even the populations 
that service these targets, as well as the traditional strategies of reaching com- 
merce on the seas. The economic strategy was thus the underpinning for the 
methods of economic warfare, one being used to justify the other. 

Much of this is put by the commentators at the turn of the 20th Century. 
Captain Mahan in a familiar passage puts the argument for a strategy of economic 
warfare that is aimed primarily at reaching commerce and trade: 

The history of Sea Power is largely, though by no means solely, a narrative of 
contests between nations, of mutual rivalries, of violence, frequently culminating 
in war. The profound influence of sea commerce upon the wealth and strength 
of countries was clearly seen long before the true principles which governed its 
growth and prosperity were detected. To secure to one's own people a dispropor- 
tionate share of such benefits, every effort was made to exclude others, either by 
the peaceful legislative methods of monopoly or prohibitory regulations, or, when 
these failed, by direct violence. The clash of interests, the angry feelings roused 
by conflicting attempts thus to appropriate the larger share, if not the whole, of 
the advantages of commerce and of distant unsettled commercial regions, led to 
wars. On the other hand, wars arising from other causes have been greatly 

87 

modified in their conduct and issue by the control of the sea. 

Thus belligerents, under current conditions seek through superior seapower 
to stop entirely the trade of their rivals with others, ensuring, they believe, that 
these goods that would serve the war effort once denied will have an important 
impact upon weakening the capabilities of the rival. But in shifting to the war 
fighting capabilities, they have also shifted their perspectives toward a strategy 
that acquiesces in targeting economic and industrial targets through air strikes. 
In the past, their objectives were more materialistic and less strategic, because 
they then sought to acquire the fruits of that commerce in order to benefit from 
the goods acquired and not made available to their rivals. Mahan supports 
resort to "history" and the past practice of states in naval warfare, but argues that 
changes in naval warfare are such that "theories about the naval warfare of the 
future are almost wholly presumptive." He refers to the shift for example in 
naval armaments: the "powers to injure an enemy from a great distance, to 
maneuver for an unlimited length of time without wearing out the men, to 
devote the greater part of the crew to the offensive weapons. . . ." 



287 Almond 

Sergei Gorshkov, Admiral of the Fleet of the Soviet Union writing in the 
middle of the 20th Century, uncovered interests of his country in a naval force. 
Foremost in these interests he included the resources of the seas, and the 
traditional uses. But "the main goal*' for building the Soviet or communist naval 
forces lies in building up communism: 

For the Soviet Union, the main goal of whose policy is the building of communism 
and a steady rise in the welfare of its builders, sea power emerges as one of the 
important factors for strengthening its economy, accelerating scientific and tech- 
nical development and consolidating the economic, political, cultural and scien- 
tific links of the Soviet people with the peoples and countries friendly to it. 

Building on this theme throughout the book, Gorshkov in the conclusion 
turns the Western theme back upon the Western states by insisting that it is not 
they who are expansionist. The imperialists are pressing expansion. The com- 
petitive arena into which naval forces must be introduced lead to: 

A new stage in the struggle to divide up and take over the oceans for economic 
and military purposes may now be observed. The World Ocean is becoming the 
object of a kind of expansion by the imperialist states. It is obvious that in this 
struggle navies, as an instrument of policy, will occupy an important place 

Admiral Gorshkov has thus proved to be fully capable of handling the political, 
polemics and dialectics of his civilian counterparts, and thus, presumably, able 
to woo away sizable funds for the building of the Soviet navy. In two passages 
of related argument, he noted: 

It is reasonable to consider that the totality of the means of harnessing the World 
Ocean and the means of defending the interests of the state when rationally 
combined constitute the sea power of the state, which determines the capacity of 
a particular country to use the military-economic possibilities of the ocean for its 
own purpose 

McDougal and Feliciano and numerous other commentators have reviewed 
the tactics and program of economic warfare in detail. They point out that 
three tasks are involved. First, the characterizing of the goods and perhaps 
services to be prohibited or controlled. This activity identifies contraband, 
involving an appraisal as to the relation of the goods to the military capabilities 
of the enemy belligerent, and the application of doctrines relating to contraband. 
[Services might include the commercial provision of information from satellites. 
Reaching the satellites would require either ground, air or space-based inter- 
ference, including the use of naval platforms for this purpose]. Second, stopping 
the flow of commerce that might increase the war potential or fighting 
capabilities of the rival, as well as the flow of neutral commerce in general. Third, 



Targeting Enemy Merchant Shipping 288 

determining the disposition of the goods and the carrying craft, i.e., through 
destruction, condemnation, requisition or release [usually through the deter- 
mination of the prize courts] . The modalities for conducting controls at sea 
extend from visit and search to certification of cargoes at their point of delivery 
or source or shipment. The modalities mentioned here tend to change, and 
significant change has an impact upon the law itself causing the parties to change 
or adopt differing perspectives about the applicable law. The modalities for 
imposing economic warfare through coercion at sea are supplemented by the 
use of aircraft and submarines and these have had a major impact upon the law 
and leading to frequent change in the applicable rules. 

Appraising the impact of these activities, McDougal and Feliciano conclude 
that both belligerent and neutral states are in a process of claim that is advancing 
community standards. The primary objective for each is to minimize the 
destruction of values prized by the neutral and belligerents, and encompassed in 
the law of war under the principle of economy of force. 

Detailed consideration here of the various activities and modalities must be 
followed in the writing of the commentators. But it is essential to bear in view 
the changing, dynamic nature of this form of warfare because of the new 
techniques of warfare, both in application and in weaponry, and the delivery of 
weapons, and because of the relations of the parties where they may maintain 
in parallel a considerable array of relations while confronting each other with 
imminent hostilities [as currently in the Middle East, the Iraqi crisis] . 

The rapid drawing down on reserves of resources or materials is another 
dynamic feature: many materials are in scarce supply, but are essential to effective 
war fighting with advanced technologies; some, like petroleum products, are 
vulnerable to attack and to denial through blockade, and are rapidly depleted by 
modern vehicles, aircraft and ships during the conduct of hostilities. Difficulties, 
and change in perception have arisen with regard to the goods that fall within 
contraband: early prize cases indicate that even foodstuffs contribute to the 
warfighting capabilities. 

The overall framework of economic warfare is also affected by a change in 
the violence and extent of the violence: a shift from the major global wars of 
the first half of the century to wars more limited in every respect may lead to a 
differing balancing out of the principles, so that the neutral states are favored, 
and peaceful activities within the public order protected. Blockade is then 
metamorphosed into other configurations: the term "quarantine" was used for a 
specific activity of denying Soviet missiles to Cuba, and the term "interdiction" 
by the United States and others, including the Security Council of the United 
Nations, to refer to the interceptions made with ships passing to and from Iraq. 

Forcible blockades provide an additional problem: if the view is taken that 
the blockade may not lead to the destruction of ships, particularly those that are 
caught within the war zone where the blockade is enforced, then the use of 



289 Almond 

aircraft and submarines would be shackled. Here we have a collision in the 
new methods of warfare with traditional attitudes about the character of the 
blockade and its effectiveness. Past practice suggests that in warfare the changes 
in the use of force are the dominant elements affecting the perspectives of 
belligerents and non-belligerents alike, in some measure because they reflect the 
changing and intrusion of the new military technologies and new organization 
of combat units to impose force, including the blockades. Admiral Miller, 
quoting Lauterpacht, catches this factor: 

Measures 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 blockade, namely that the 
belligerent who possesses effective command of the sea is entitled to deprive his 
opponent thereof for the purpose either of navigation by his own vessels or of 
convening on neutral vessels such goods as are destined to or originate from him. 

Of particular interest in the emerging law of economic 'warfare is the ease 

with which the belligerents have imposed their perceptions that the law must 

change with changing modalities or techniques of warfare, so that we find the 

use of force dominating such perspectives, and leading to change in such 

instruments as the Declarations of Paris and London. Similarly, national policy 

regarding the prosecution of the war dictated the attitudes, and affected the law 

concerning controls. Such law was most often the domestic statutory law, but 

the impact may be to remove goods from exemptions, or as public enemy 

i oo 
property no longer protected by the Declaration of Paris. 

The Declaration of London perhaps was weakest in denying Britain its most 

effective naval tactic in economic warfare. Captain Maurice P. A. Hankey, naval 

assistant secretary for the Committee of Imperial Defence, observed that this 

would require repudiation of the instrument, and that otherwise Britain would 

be unable to refine the notion of blockade toward true effectiveness: 

[In the absence of the Declaration] In that case our obvious course, to be adopted 
as soon as the naval situation permitted, would be to declare a blockade of the 
North Sea ports, and simultaneously to make a sweeping declaration of what was 
contraband, including all the principal raw materials on which German manufac- 
turers depend as well as her main articles of export. Neutral vessels would be 
rigorously held up and examined outside the Cattegat; the doctrine of continuous 
voyage would be rigorously applied; a system of agents in Swedish, Danish, and 
Russian ports would apprise us as to how trans-shipment was taking place and 
measures would be taken to deal with offenders. 

Economic warfare is thus conceived as a part of a national strategy, and as 
aimed at strategic goals. Nations engage upon a strategy, or at times referred to 
as a "grand strategy" that provides them a framework for national purpose and 



Targeting Enemy Merchant Shipping 290 

the exercise of national power, aimed at the optimization of values that they 
prize. A crucial element of each nation's strategy is aimed at protecting the nation 
and its values, and "interests" from the threats or attacks of others. 

The United States and its allies cannot forego doctrine and a strategy aimed 
at countering as well as deterring aggression or threats of aggression regardless 
of source. For this reason, as well for the others stated earlier, the decline of the 
Soviet Union is not a sufficient reason for turning attention from the possible 
threats that might arise, particularly if that state under new elites in the future, 
or through chaos and breakdown, creates such a threat. Soviet doctrine and 
concepts of the military art should be appraised to determine Soviet perspectives; 
rules of engagement, regulations, instructions for the men of the fleet, and so 
on, are not available, but would prove valuable if they are published. Neverthe- 
less even without a comprehensive inquiry into all of the Soviet directives, it is 
unlikely that the Marxist-Leninist framework of reference will vanish, or that 
the United States would find it sufficient to relinquish caution in the future 
dealings. 

Perhaps the major reason for avoiding the equalities and "stabilization" 
anticipated under arms control agreements when controls are to be imposed 
upon naval forces is that the interests of states that are land-based and those that 
are the maritime states, or "thalassocracies", differ in substance and need. 3 The 
United States has interests to protect in peacetime relating to its trade, allies, and 
interests not matched by the Soviet Union; its interests in the event of armed 
combat even with states other than the Soviet Union might include a refined 
development of economic warfare, its modalities, techniques and tactics. 

These differences in the larger terms of reference found in the maritime 
strategy as a whole were raised and considered at the Adderbury Conversations 
on Naval Strategy and Arms Control July 30-31, 1988, and the United States 
position summarized in the first statements: 

The Americans explained their maritime strategy in terms of the nature of Western 
forces, the nature of adversary forces and national strategic culture. United States 
maritime strategy (a) was a defensive deterrent against a threatening land power 
and (b) emphasizes coalition warfare. Forward positioning of forces was required 
by both of these factors.. It reduced misperception and contributed to stability as 
well as economizing on forces. Alternative strategies like direct defence of shipping 
were more force intensive. Once war begins, the American participants argued, 
maritime forces must be used offensively to be effective: the offensive was the 
stronger form of war at sea. 

Perceived in this sense, a strategy includes the programs, plans and policy 
framework that provide guidance to the means that are to be adopted or refined 
to achieve the strategic goals. Tactics are therefore distinguished from strategy 
and strategies, because they are the instrumental, or operational, means by which 



291 Almond 

the strategic goals are to be attained. Economic warfare at sea comprises the 
national tactics, and the methods used are either for enforcement or as policy 
instruments or policy oriented strategies, subject to refinement and change, to 
achieve goals. 

But why is the law of economic warfare subject to continuing change? Our 
analysis indicates that this is the result of the interaction of law and the policy 
instrument. Because the instruments of economic warfare are controlled under 
law, but they also are the means to strengthen or promote the law. It can be said 
that the tactics identified with economic warfare both promote the existing law 
and lend themselves toward shaping the content of the law of the future; the 
continuing change in the methods and tolerances regarding economic warfare 
thus leads to a continuing change and refinement in the law that is applicable. 

Other factors in the application of the law relating to economic warfare should 
be mentioned. Recourse to precedents is a traditional factor of legal inquiry, but 
according to Mahan, of less importance to strategy: 

It is not ... a vain expectation, as many think, to look for useful lessons in the 
history of sailing ships as well as that of galleys. Both have their points of 
resemblance to the modern ship; both have their points of essential difference, 
which makes it impossible to cite their experience or modes of action as tactical 
precedents to be followed. But a precedent is different from and less valuable than 
a principle. The former may be originally faulty, or may cease to apply through 
change of circumstances; the latter has its root in the essential nature of things, 
and, however various its applications as conditions change, remains a standard to 
which action must conform to attain success. War has such principles; their 
existence is detected by the study of the past, which reveals them in successes and 
in failures, the same from age to age. Conditions and weapons change; but to cope 
with one or successfully wield the others, respect must be had to those constant 
teachings of history in the tactics of the battlefield, or in those wider operations 
of war which are comprised under the name of strategy. 

Precedent in the law, especially when associated with war, has a differing 
operational position. Mr. Justice Rutledge, dissenting in In re Yamashita, pointed 
out that a war crimes trial, and its appeal in the United States Supreme court, 
was without precedent, and that the precedent not to proceed was of great 
importance. Seemingly alluding to the difficulty in the prosecution's getting a 
grasp on the operational, juridical facts, he noted: 

Precedent is not all-controlling in law. There must be room for growth, since 
every precedent has an origin. But it is the essence of our tradition for judges, 
when they stand at the end of the marked way, to go forward with caution, 
keeping sight, so far as they are able, upon the great landmarks left behind and the 
direction they point ahead. If, as may be hoped, we are now to enter upon a new 
era of law in the world, it becomes more important than ever before for the nations 
creating that system to observe their greatest traditions of administering justice, 



Targeting Enemy Merchant Shipping 292 

including this one, both in their own judging and in their new creation. The 
proceedings in this case veer so far from some of our time-tested road signs that 
I cannot take the large strides validating them would demand. 

Hence the intermingling of precedent, strategy, tactics and an emerging law 
occurs in a dynamic framework of situations, affected by rapid change in events 
associated with warfare and its technologies. This perspective has been caught 
with regard to submarine warfare in general, and is applicable to the development 
of such warfare for economic warfare: 

There is no guarantee that the antisubmarine measures successful in the past will 
continue to be adequate in the future. A clear understanding of the events of 
World War II, their reasons and consequences, is necessary, however, as back- 
ground for any decisions which are to be made in the postwar period. . . . One 
overall conclusion is clearly evident . . . the introduction of new weapons, gear, 
and tactics has led to a continual interplay of measures and countermeasures in 
which no other conclusion retains its validity for very long. 

The changes in strategy affected by changes in methods of warfare are so great 
that they are likely to have an impact upon the humanitarian element in the law 
of war, as is evident in the following: 

According to an early distinction between strategy and tactics, strategy comprised 
the set of decisions made and acted on out of sight of the enemy; tactics comprised 
the rest. The advent of modern weapons, such as carrier-based aviation, has 
permitted outright battles to occur at greater than visual ranges, and the modern 
version of the distinction holds that a strategic actor is one who does not have 
"contact" with the enemy. "Strategic warfare" has come to refer to war made 
against population [which had been under the care of the Geneva Conventions] 
or industry, and latterly, to such war waged with nuclear weapons. The term 
"operational art" introduced by Soviet thinkers but well on its way to adoption 
by the West identifies a more highlighted layer, between strategy and tactics. A 
further useful distinction divides strategy and "grand strategy," the latter being the 
total scheme of national military endeavor, including economic elements. 

The "grand themes" of sea powers over the period from the ancient Greeks 
to the present are described by one commentator in terms of the rise of the 
thalassocracies, i.e., the states that have either substantially augmented their sea 
power relative to other states, or have established sea forces as part of the 
comprehensive maritime state. Great land-powers like the Soviet Union thus 
would innately move toward sea forces that would provide it with defense, and 
a reasonable, and sufficient defense would be its goal. The great sea powers seek 
command of the sea, in part because of their dependance upon that command, 
calling for the following elements: a superior fighting fleet to maintain exclusive 
control of the seas; a naval capability to defend against invasion; to protect 



293 Almond 

maritime commerce; to blockade the enemy coast; to engage in combined 
activities with other military services; and, to provide under current conditions 
with strategic bombardment. 

One commentator recommends that the United States recognize its role as 
the enforcer of peace upon the seas: 

If international agreements on laws to govern the sea finally emerge, or if new 
defensive treaties are enacted, it will still be American sea power which will 
enforce them. Even should new agreements not occur, or should they fail, the 
United States will unilaterally continue to use its sea power to enforce free 
exchange upon the sea. This is the legal right of any maritime nation - in our case 
the most powerful nation in history at that - much of whose livelihood is derived 
from the sea. Happily, most of the civilized world - which profits thereby - is 
grateful for it. 

How does this practice bear upon the law of economic warfare? It appears 
that states involved in coercive actions are not concerned with the "progressive 
development" of law, or with identifying that law with a larger, constitutive 
global order as such. Their primary concern is with the freedom to act when 
they resort to the use of force, but they want for symbolic, prestigious, or even 
power-oriented reasons, to have the permission to act under law or to be 
supported by law in their actions. 

When states turn to the use of force they are turning to an instrument to 
promote or strengthen their law, but the law that they are concerned with is at 
best the law that gives them the support of their actions, and enables them 
through the collective element that makes up law to draw upon community 
support. From law they attain a certain degree of economy in their actions, 
because the costs or burdens in turning to force are either reduced, or some of 
them are eliminated. And acting "within the law" they have a calculus of 
permissive actions rather than one of actions that others may condemn as 
"aggression," or "tortious," or wrongful, and therefore that they may refrain 
from assisting or supporting. 

Strategic Economic Warfare 

Economic warfare at sea considered in terms of the objectives or purposes is 
part of economic warfare in general. Strategies to strangle an enemy's economy 
are invoked by resort to all of the military capabilities, as well as the non-military 
strategies. They may be applied during "peacetime" or during "wartime," 
drawing upon Security Council directives, and so on. Strategic economic 
warfare thus refers to warfare aimed at the enemy's economy. The modalities of 
strategic economic warfare have been affected by the advances in military 
technology, so that submarines are now armed with weapons that can operate 



Targeting Enemy Merchant Shipping 294 

against economic targets, while submarines themselves may engage through their 
traditional role of destroying sea commerce to achieve supporting objectives. 

The operational element in warfare thus has a major impact upon the 
perspectives of states and their elites. States during wartime claim a freedom to 
act, or determine the decisions to be taken, because of the necessities involved, 
and the overriding need of self preservation. Moreover, the necessities in war 
are affected by new weapons, new technologies, and new means for conducting 
warfare. All such determinations tend to couple perspectives about force 
planning, deterrence, strategy, both military strategy and the "grand" or overall 
political strategy, and national policy. 

Once the legal or policy hurdles that strategic warfare is an attack on the 
civilian population have passed, states insist that they are acting permissibly under 
the legal principle of military necessity. They can then claim that as long as they 
pursue the objectives of reaching the military economy or the economy that 
supports the military effort they can mount their attacks on cities, the urban 
population, the entire structure that supports the war effort. They can also justify 
the use of weapons that are less discriminate, and the line between discriminate 
and indiscriminate attacks begins to blur, and with this development, the line 
between protecting the noncombatant under the law of war becomes cloudy as 
well. 115 

The economic warfare that is invoked during hostilities has its counterpart in 
the economic sanctions invoked during peacetime, in particular, the sanctions 
adopted pursuant to directives of the Security Council of the United Nations. 
Here there is opportunity to pursue the imposition of coercion in stages, but 
there is also the probable drawback that attaining the support of states in the 
Security Council will have retarding impacts upon a war or combat strategy, 
affecting surprise, deception, and so on, or enabling the targeted state to gain 
the advantage of breakdown in the coalition it faces, or to secure a more 
substantial grip on its military forces and capabilities. 

The current application of sanctions under Security Council directives and 
community participation [but with the United States taking the lead] is aimed 
at the head of the Iraqi government, and, presumably, will be aimed at those 
who might assume the lead in the event he is incapacitated or removed. But it 
is also a sanctioning strategy that necessarily must be aimed at the populace, their 
representatives, other states in the region, and supported by a military, economic, 
ideological and diplomatic array of threats. 

Economic warfare - when we assess it in terms of the targets - draws upon 
the use of military forces, and may be enhanced by diplomatic and ideological 
strategies as well. With changes in the military capabilities and weaponry of states, 
belligerent states adopt new modalities of economic warfare, primarily shaped 
by the targets of the new weapons. Thus, during the second World War, the 
belligerent states turned to strategic economic warfare with new weaponry, 



295 Almond 

particularly through the intensified use of strikes by aircraft. The important 
feature in economic sanctions, or economic warfare, is that they involve actions 
usually supported by coercion to achieve their goals and that these actions gain 
their legality or permissibility through the reaction of other states, and ultimately 
through community standards. The claim element is of major importance in the 
process of claim that leads to law when the actions involving coercion are in 
view. Control, under law, or under social or other processes, upon the resort to 
economic warfare is thus guided by the general principles in the law of war, or 
the law relating to coercion, but additional, more detailed controls call for a 
continuing clarification of state perspectives about such actions, and thus the 
emergence of what they will tolerate ultimately to be found in the governing 
law with regard to their behavior. 

State practice in the use of strategic aircraft strikes prepared the way for the 
doctrinal acceptance, at least, for targeting strategic nuclear weapons on the 
urban communities, the so-called "counter-value strategy" and the adoption of 
the newly appearing nuclear weaponry both for offensive and defensive military 
objectives. Inherent in the "humane" version of this strategy was that it was 
applicable to threats, but not applicable to the actual use of weapons, but this 
distinction would be difficult to maintain in belligerent practice. However, with 
the rise of nuclear weaponry, states adopted military strategies and political 
strategies, with each drawing upon the other for support, wherever possible. ; 

During combat, the military strategy, whose emphasis on the use of force and 
on using it to strengthen other strategies prevails. During peacetime, the political 
strategy is adopted. The differences tend to lie around the selection of modalities 
of intensified violence or force, so that the military strategy is a strategy of using 
military capabilities while the political strategy though it may invoke such 
capabilities can operate in a more dominant sense during periods of limited or 
"low intensity" violence. 

B.H. Liddell Hart couples his readings of military and general history with 
his understandings from Sun Tzu, close readings of the campaigns of such 
distinguished generals as Belasarius, reflecting on Clausewitz and other writers 
on strategy. Hart proposes that military strategy, even if it must accommodate 
other strategies, such as deterrence for example, is a strategy of drawing an 
aggressor into his attack, and then while he is occupied with this, to pick the 
points for counterattack. Deterrence policies are open. Military strategies depend 
upon secrecy: 

In strategy.. calculation is simpler and closer approximation to truth possible than 
in tactics. For in war, the chief incalculable is the human will, which manifests 
itself in resistance, which in turn lies in the province of tactics. Strategy has not 
to overcome resistance, except from nature. Its purpose is to dimmish the possibility 
of resistance, and it seeks to fulfill this purpose by exploiting the elements of 
movement and surprise. [p. 337). (Emphasis by author). 



Targeting Enemy Merchant Shipping 296 

During peacetime we have discovered that the strategies of opposing or rival 
states are "adversary" in nature, while it seems that the grand strategies they 
adopt are an amalgamation of all of the components of power to further national 
purpose and goals. The interaction of the political and military strategies is 
familiar in state practice: the dialectical element in the working out of strategies 
of rivals tends toward an equilibrium or system of continuously evolving checks 
in terms of the weaponry, usually leading to the "deterrence" equilibrium where 
the weaponry that is balanced is perceived as weaponry of intolerable destruc- 
tion. It is presumed that the deterrence strategy, shared by the rival states, is 
dependent upon the will of each, and that the will to invoke the weapons is 
crucial to the "credibility" of the strategy. However, the actualization of the 
strategy into conduct, i.e., by way of the use of the weapons, is presumed to 

122 

depend upon that will. 

Deterrence according to a leading commission that considered our strategic 
forces may be identified in terms of countering the action of a rival. The extent 
to which it is applicable with economic sanctions remains uncertain, as indicated 
in the following expressed here in terms of the Soviet threat: 

Deterrence is central to the calm persistence we must demonstrate in order to 
reduce these risks [of war or military attack] . . . Deterrence is not, and cannot be, 
bluff. In order for deterrence to be effective we must not merely have weapons, 
we must be perceived to be able, and prepared, if necessary, to use them effectively 
against the key elements of Soviet power. Deterrence is not an abstract notion 
amenable to simple quantification. Still less is it a mirror image of what would 
deter ourselves. Deterrence is the set of beliefs in the minds of the Soviet leaders, 
given their own values and attitudes, about our capabilities and our will. It requires 
us to determine, as best we can, what would deter them from considering 
aggression, even in a crisis - not to determine what would deter us. 

Distinctions in this context of a "political" strategy of deterrence and a strategy 
of armed conduct thus tend to arise from the extent to which weapons are 
invoked. But the differences between "offensive" and "defensive" weaponry 
long largely meaningless in wartime or armed combat have less meaning during 
peacetime as well. Weapons in peacetime attain their effectiveness through the 
threats they impose and may therefore be invoked by the diplomat or ideologist, 
or for the purposes of propaganda, or to attempt to gain strategic advantage over 
one's opponent. ' The use of the nuclear weapons to back up economic 
sanctions leads to speculation: it is possible however that the deterrence equi- 
librium, and the proliferation of these weapons [or the appearance of readily 
available alternatives such as chemical weapons] will lead to their having little 
impact upon such sanctions. 

The "will" of the nation to act or endure is introduced into its strategies or 
implied in them as a crucial and necessary component of economic sanctions as 
well as of warfare in general. The perception of a nation's will by Clausewitz 



297 Almond 

leads to his assessment of the center of gravity of a belligerent, i.e., the locus of 
its power to act or decide. Thus, in the war in Southeast Asia this may have been 
for the United States the element of public support. 

There is a direct correlation between solid objectives and what Clause witz 
called the "strategic center of gravity." That is the point of decision. National 
War College students recently applied that principle to Vietnam. The group 
generally agreed that the strategic center of gravity for South Vietnam always 
was the people; not body counts on the battlefield, but the minds of the people. It 
took U.S. leaders a long time to figure that out. The primary pressure point for 
the United States was national will. The enemy found that out early, and 
continually turned the screws. No one determined the strategic center of gravity 
for North Vietnam. It may even have been in some other country. That is one 
reason why it was so hard for us to define decisive objectives. 

Without the will to carry on a struggle to achieve a clearly-defined goal or 
objective, even a stronger military force lacks the social will essential to enabling 
it to endure, persist and win. Hence the notion of economic warfare, turned to 
peacetime, becomes part of a larger strategy in which targeting is upon a rival's 
economy, and therefore upon his cities and industrial areas, and, in peacetime, 
the threats can be imposed by weapons and military capabilities of all kinds. In 
the economic sanctions imposed under Security Council directives upon Iraq 
the naval forces are of particular significance for the purpose of blockade and for 
providing military threats. 

Strategic economic warfare, largely the outcome of the second World War 
when waged with air-borne delivery of weapons to attack the German and 
Japanese cities and thus the economy of both countries, is likely to continue into 
future wars. The link between the political objectives and the conduct of warfare 
stressed as a fundamental principle of Clausewitz is even clearer when we turn 
to economic warfare in this sense. The arming of naval vessels with strategic 
weapons makes them an essential element both in the deterrent factor and in 
the conduct of hostilities should belligerents turn to strategic weapons. 

Strategic Economic Goals 

Economic warfare, like other measures of warfare, and the law regulating that 
warfare find their place within the larger strategy of confronting and combatting 
an enemy or rival, and within the programs instituted under that strategy to 
attain the policy objectives of warfare. Strategy even as traditionally conceived 

1 97 

has a military and political component in common usage. ' Strategy is generally 
identified as the program and plans, and operational guidelines, formulated and 
tested with regard to specified strategic objectives of states. 

Used in the political, or broadest, sense the concept of strategy assimilates the 
augmentation and application of national power to achieve such goals both 



Targeting Enemy Merchant Shipping 298 

1 on 

during war and peacetime. When narrowed to military strategy, the plans and 
programs and operational elements include the rules of engagement of the 
military forces for achieving military objectives during combat. The broad use 
of strategy among states is associated with the larger global policy goals particular- 
ly of the major states, and with the actions and operations that might through 
national power achieve those goals. The actions of states are expected to 
accommodate international law and community standards, and the perspectives 
of states that make up their strategy will seek to preserve and promote the values 
prized by the state. 

It is notable that the modalities of economic warfare are readily invoked 
during wartime and peace, that they may be used in hostile actions, usually 
backed then by the use of military force, or as an unfriendly action, as in retorsion. 
Used in wartime with military force they are subject to the community standards 

1 90 

generally encompassed under the principle of military necessity. But this 
principle leads to judgmental standards such as the principle of economy of force 
[a fundamental principle of war applicable to the judgment and decisions of the 
commander] . According to Mahan that principle is best applied through atten- 
tion to "exclusiveness of purpose." 

. . . [C]oncentration [a principle of war] sums up in itself all the other factors, the 
entire alphabet, of military efficiency in war. In another way, Napoleon expressed 
this in a notable saying: "Exclusiveness of purpose is the secret of great successes." 
Exclusiveness of purpose means concentration of the will upon one object to the 
exclusion of others. There is thus a concentration of mental and moral outlook, 
of resolution, as real as the physical concentration of disposable forces: and when 
the moral prepossession exists in a military man the physical concentration will 
follow, as surely as any effect follows upon its cause. 

Such "warfare" conceived in the broader sense of including economic 
sabotage and economic sanctions and actions in general uses methods that can 
strike at a nation's vulnerable technologies and economies based upon technol- 
ogy [e.g., communications, computer networks, computer assisted decision 
processes], and during hostilities can check or interfere with vital lines of 
communication and instruction to naval vessels, and to the commanders in 
general of all of the military services. Economic warfare thus can be based upon 
technologies of peace turned quickly to hostile uses. 

Mahan suggests that principles fit comfortably the development of a 
"strategy," but the pressure of tactics determines their operation and application. 
The pressure of tactics is impelled by new attack scenarios adopted by belligerents 
both in their force and contingency planning, and during combat, the changes 
in the organizational base for conducting and supporting war [e.g., the massive 
industrial infrastructure], the resort to the weapons and agents to achieve their 
immediate military objectives [tactical during combat; strategic in the larger 



299 Almond 

sense]. Similarly, economic warfare operates as a prelude to hostilities, as in the 
current Iraqi situation, or accompanied by severe coercion, it is shaped by the 
attitudes toward violence rather than the attitudes toward more remote 
economic goals. 

Economic warfare undergoing change with changing technologies is thus 
brought under principles that are primarily affected by the growing content 
arising from belligerent [and even peacetime] practice of states. Hence, 

Based as Naval Strategy is upon fundamental truths, which when correctly 
formulated, are rightly called principles, these truths, when ascertained, are in 
themselves unchangeable; but it by no means follows that in elucidation and 
restatement, or by experience in war, new light may not be shed upon the 
principles, and new methods introduced into their application. 

Naval strategy is then like other military strategies dependent upon the 
objective and the realistic attainment of the objective. The military realities 
however require attention to readiness and facilities for conducting warfare at 
great distances. According to Mahan: 

It is true . . . that on a maritime theater the navy is the all-important factor; but 
in these days a navy no more than an army can stretch its lines of communication 
too far from a strong and extensive base. Its communications must be assured, 
either by overwhelming control of the sea, making it as it were its own territory; 

1 ^9 

or else, by a well-knit line of posts properly spaced from the home territory. 

But the prevailing policy necessities in democratic states and even in the 
totalitarian states as they are now evolving demand substantial support by the 
public of the strategy that may involve war. Economic warfare commencing 
purposefully at an early stage may thus do two things: it can set the stage for an 
economic strategy; and it can set the groundwork for moving ahead to more 
intensive coercion if the less intensive modalities fail, or if persuasion cannot be 
adopted, and lead to the nation's goals. 

Thus, Mahan noted with regard to the Monroe Doctrine the interlocking 
themes that had commanded social support: 

The Monroe Doctrine in its beginnings was partly an expression of commercial 
interest, directed against a renewal of Spanish monopoly in the colonial system; 
it was partly military, defensive against European aggressions and dangerous 
propinquity; partly political, in sympathy with communities struggling for 
freedom. 

The Chinese strategist has aptly put the fundamental objective that determines 
the goals of the military commander. With growing linkage between the 
traditional modalities of economic warfare and the shift toward strategic 



Targeting Enemy Merchant Shipping 300 

economic warfare, these goals are the same whatever the modalities of warfare 
chosen: 

Victory is the main object in war. If this is long delayed, weapons are blunted and 
morale depressed. When troops attack cities, their strength will be exhausted. 

Clausewitz reached the same conclusion, stressing however that the policy 
element in undertaking war looks to policy objectives beyond those of the 
military objectives: 

Combat is the only effective force in war; its aim is to destroy the enemy's forces 
as a means to a further end . . . The decision by arms is for all major and minor 
operations in war what cash payment is in commerce . . .Thus it is evident that 
destruction of the enemy forces is always the superior, more effective means, with 
which others cannot compete . . . When we speak of destroying the enemy's 
forces we must emphasize that nothing obliges us to limit this idea to physical 
forces: the moral element must also be considered . . . That the method of 
destruction cannot fail to be expensive is understandable; other things being equal, 
the more intent we are on destroying the enemy's forces, the greater our own 
efforts must be. 

So Clausewitz too raises the need to achieve an economy, a swiftness, and 
the shock of military effectiveness in using military forces, but his stress on 
achieving political aims compels the commander and statesman to combine 
capabilities toward making war achieve the larger global goals that make the 
sacrifice of war worthwhile. Into this crucible of strategy and policy states 
may invoke the modalities of economic warfare, perhaps before armed hostilities 
have begun and then during combat. And, if combat escalates, the strategy 
adopted, and implemented, is likely to turn to strategic economic warfare, 
coupling the use of strategic weapons to strategic goals that would bring an 
enemy's economy to a standstill. 

Economic Sanctions in Peacetime: Assessment 

Economic sanctions are based on economic strategies, and the application of 
economic instruments of policy, to achieve either the exclusive policy objectives 
of states or the common objectives among states for achieving global order, or 
strengthening it. Economic sanctions may be exercised by states individually 
or collectively pursuant to directives of the Security Council or of the regional 
organizations of which they are a member. Where invoked without armed force 

they would not constitute aggression under the United Nations definition of 

138 
aggression. 

Economic strategies and economic sanctions are available to states to achieve 

a variety of goals that states may seek for themselves alone, as well as the 



301 Almond 

far-reaching,inclusive goal of minimum order. They may enable states to prepare 
themselves for hostilities with potential enemies by weakening the economy, 
and the will, of their rivals or of states violating international law. This is one 
of the primary goals of the current economic sanctions directed at Iraq. [1990]. 

They may also constitute threats with the expectation that the violator will 
recognize the possibility that the coercion imposed by the sanction may be 
intensified to the point of hostilities, and the further expectation that the violator 
may then terminate its misconduct. They may of course be used in association 
with other strategies both in times of peace and in war, so that ideological, 
military and diplomatic strategies would then operate to reinforce each other, 
and give greater assurance of achieving the larger goals of restoring the damage 
to the global order itself. This too is indicative of the stated goals of states in the 
Iraqi crisis. 

Such sanctions and strategies thus may reduce the bases of belligerent power 
of an adversary - reaching to weaken his power, his wealth, and even his rectitude 
or respect within the community. But in mentioning these broad goals and the 
resort to economic sanctions, the need for analysis and consideration of the 
effectiveness of the sanctions emerges. States may be able to select between 
economic sanctions and military sanctions, but then find themselves without 
adequate assurance that the economic sanction alone is the least costly path to 
take, or that a prolonged economic sanction will achieve the desired goals, with 
the expectation being that the costs and burdens, and uncertainties, of hostilities 
can be eliminated. Or that a prolonged economic sanction might so weaken an 
adversary that a military blow after the sanction has run a considerable period 
might be more effective and less costly. 

Although there are a variety of impacts that may occur to the violator when 
a comprehensive economic sanction, or one in which the confinement of the 
violating state's economy is reasonably complete, is imposed, the primary aim 
of such a strategy is to reach either the economy or the economic activities. A 
comprehensive peace-time coalition of states invoking an economic sanction 
against a state, such as Iraq, is aiming its actions at the economy. Should the 
coalition turn to the military sanction, the goal of the economic component of 
their strategy will continue to be the economy but implemented through military 
or strategic measures. Whether the economic sanction can reach the desired 
results without escalation to intensified coercion and military force, calls for 
judgment as well as for adoption of strategies that can be readily corrected if they 
are not found to be effective. 

Monitoring economic sanctions to determine their effectiveness, the assess- 
ment of the vulnerabilities of the targeted state, the assurance that a coalition of 
states will cooperate in imposing a comprehensive sanction, the imposition of 
other sanctions, are all matters that call for the closest, continuous review. 
Economic sanctions involving a large number of states are likely to call for 



Targeting Enemy Merchant Shipping 302 

economic assistance and cooperation among the coalition to replace the 
economic benefits that had been enjoyed before the sanctions were imposed. 

The force planner concerned with the use of naval forces in this context must 
consider the resources he will shift to the economic strategy, and he must balance 
in his strategic assessment the effective use of the strategic instruments at his 
disposal. When and how much of his resources are to be devoted to strategic 
economic warfare, for example, necessarily entails consideration of the costs 
arising upon termination of the war, assuming victory, to restore an enemy 
whose economy has been severely damaged by such a strategy. 

Economic warfare in general is premised on the expectation that states cannot 
effectively wage war if the morale of their citizens is diminished or the industrial 
structure destroyed. The uncertainties of this warfare are brought out by the 
experience of the British armed forces in the Second World War, and in 
particular the experience in using the air force as the delivery vehicle for large 
amounts of explosives and incendiary devices. The naval forces would unques- 
tionably be drawn into such warfare in the future if their long-range missiles or 
off-shore bombardment capabilities were to be enlisted. 

The result of the British experience suggests that economic warfare aimed at 
strategic targets was not successful in bringing the war to an end. The extent to 
which it enabled the military actions and activities to achieve success is unclear. 
It must be emphasized that strategic economic warfare was conducted by military 
actions, primarily aircraft attacks, on economic targets behind the military lines. 
But if this warfare was questionable, the effectiveness of economic warfare in 
peacetime, such as through economic sanctions, remains in doubt. Such sanc- 
tions do not have the urge of military force, nor the impacts such force would 
have on the populace and its place in compelling the termination of hostilities. 

With the brief appraisal of British practice in World War II by Professor 
D.H.N. Johnson in view, we might consider how the British policy for a strategic 
economic warfare program came about, and how it was applied. The British 
policy at the beginning of the second World War can be traced to a memoran- 
dum of May 2, 1928 by Lord Trenchard. Following Clausewitz, but adding a 
new dimension, the memorandum declared that force would not be ad- 
ministered exclusively to destroy the opposing air forces, but to 'break down 
the enemy's means of resistance by attacks on objectives selected as most likely 
to achieve this end. 

The attacks on other selected objectives became a matter of controversy, 
because, under the principle of economy of force, there was concern whether 
the use of scarce attack resources might better be applied to military forces 
themselves, or directly to military installations. President Roosevelt addressed 
an appeal to refrain from attacks on undefended cities, and expected both sides 
to respect this position. However, as the fighting progressed, the "seven possible 
targets" for attack drawn up by the Chiefs of Staff in January 1941 included 



303 Almond 

civilian morale. The others summarized by Johnson were the German air force, 
anti-invasion targets, transportation, industries, naval objectives and oil, with 
industries, transportation and Morale' as convenient secondary targets. Morale 
was subsequently to be linked to transportation, and then ultimately the 
economy as a whole. Yet night bombing, favored to protect the attacking forces, 
necessarily included attacks that might involve a larger area than the specific 
targets themselves. This led in Britain to debates usually on the grounds of moral 
principle and humanity. Churchill's own reflections suggesting a principle of 
reciprocity at work were reluctantly accepted by the military services, stressing 
that naval blockades during the First World War led to far more deaths or 
casualties than did the major bombing attacks of the Second World War. 
Churchill's minute was the subject of much of the controversy: 

It seems to me that the moment has come when the question of the so-called 'area 
bombing' of Germany cities should be reviewed from the point of view of our 
own interests. If we come into control of an entirely ruined land, there will be a 
great shortage of accommodations for ourselves and our Allies and we shall be 
unable to get housing materials out of Germany for our own needs because some 
temporary provision would have to be made for the Germans themselves. We 
must see to it that our attacks do not do more harm to ourselves in the long run 
than they do to the enemy's immediate war effort. 

Area bombing, and now "target bombing" refer to attacks on cities or 
congested populace areas in which the indirect damage to the civilians will be 
large. But strategic economic warfare, ultimately, was to include the civilians 
themselves as targets provided they were working in the military effort. In major 
wars, this would mean the entire community. Concern with such attacks led to 
the claims of "undefended" places, of non-military objectives such as hospitals 
and schools, of "neutralized zones" during wartime or zones of protection of 
non-combatants, and even to the protection of cultural property. 

Under Protocol I, Geneva Protocols, 1977, indiscriminate attacks are 
prohibited. Such attacks are likely to include those practiced in World War II 
on urbanized areas and aimed at economic destruction. Article 51 declares in 
para. 5: 

Among others, the following types of attacks are to be considered as indis- 
criminate: 

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 



Targeting Enemy Merchant Shipping 304 

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. 

Strategic economic sanctions, such as those that are currently practiced with 
regard to Iraq under directives of the Security Council of the United Nations, 
are also dependent upon naval forces and naval support. The considerable 
distance to the probable field of land combat dictates the need for an effective 
naval force, at least to offset attacks that might be land-based, or based on the 
naval forces of the aggressor, and naval forces would be needed to support such 
attacks. In this role, the navy and other military forces operate both in a deterrent 
capacity, where it is sought through the force they threaten, to prevent a war 
and gain the objectives of war, or should force be invoked to provide attacks 
that will be effective, economical and swiftly achieve a termination of the war 
with the enemy's forces destroyed. 

Compromises with these objectives or a failure to pursue the political 
objectives would be inconsistent with the teachings of Clausewitz and others. 
But experience with economic sanctions in peacetime is minimal: it might be 
argued that when such sanctions are attempted against a strong nation they may 
lead to attacks by that nation. It is possible that Japan launched its surprise attack 
on the United States in the second World War because it lacked resources, and 
sanctions seeking to prevent it from reaching those resources were viewed as 
acts amounting to war. 

The indicia of effective sanctions are found in performance. Clarification of 
goals and purpose, and the extent to which these are attained is an important 
task. The effectiveness of the economic sanctions ultimately depends upon 
whether the target state can be reached in terms of its economy, i.e., as to the 
necessities of life, the means of survival, and to some extent as to the morale of 
its citizens. The ability of Iraq to produce on its own territory adequate foodstuffs 
or to achieve the flow of foodstuffs and other necessities through smuggling or 
breach of the sanctions must be considered in appraising the time needed to 
achieve economic goals. It is unclear whether achieving "economic" goals is 
enough, or whether achieving them will lead to achieving other social goals as 
well. 

Whether military forces are to be disposed or maintained, or the extent to 
which this is done to ensure such sanctions, and also to assure that Iraq will not 
turn to military action is a matter for judgement to be made through those who 
participate in such things within a given state. Whether other sanctions, 
ideological, diplomatic or "political" should be imposed is a matter for judgment 
as well, and resort to them may lead to a more comprehensive set of objectives, 
and a more refined array of targets than those of the economic sanctions alone. 



305 Almond 

Prospects for the Future 

What are the prospects for the future rules of naval warfare, and especially 
those of economic warfare at sea? These prospects depend in large measure upon 
the new modalities for exerting coercion - new military capabilities, weapons, 
and methods of attack. They also depend upon the attitudes of states toward 
public order: will they continue to struggle over widely differing perceptions 
about global order, partially guided by the United Nations Charter and inter- 
national law? Or will they turn in earnest toward promoting global order under 
the United Nations Charter or otherwise? 

But formidable challenges lie ahead. Among these: naval forces are likely to 
be developed to undertake new and more difficult missions, in which the 
elements of economic warfare are commingled with those of the direct use of 
force. The graying of weaponry - submarines and surface ships alike carrying 
strategic weapons as well as weapons for their own defense, the deployment of 
submersibles, and so on will have their impact. 

Economic warfare short of war is likely to be refined: in the current crisis in 
the Middle East economic sanctions under the United Nations Charter have 
been directed through resolutions of the Security Council. These include the 
use of naval forces, as set forth under Resolution 655 (August 25, 1990): 

[The Security Council] calling upon those Member States cooperating with the 
Government of Kuwait which are deploying maritime forces to the area to use 
such measures commensurate to the specific circumstance as may be necessary 
under the authority of the Security Council to halt all inward and outward 
maritime shipping in order to inspect and verify their cargoes and destinations and 
to ensure strict implementation of the provisions related to such shipping laid 
down in resolutions 661 (1990). 

But economic warfare claimed under the exercise of self-defense against 
aggression, or by way of reprisals, or in response to unfriendly acts by way of 
retorsion, or as ordered by the regional organizations may be anticipated. While 
naval forces operate in peacetime through presence, transit, military exercises, 
port visits and so on, it is probable that they may be used as in the past for more 
coercive measures, and that these will be directed at economic targets as well as 
the traditional military targets. 

New methods of economic warfare are likely to appear and be claimed as 
permissible in the future. The quarantine in the Cuban-Missile Crisis furnishes an 
example of a method designed to reach Soviet shipments of missiles exclusively, 
and thereby to escape the more comprehensive program that is associated with 
the blockade. Such an action has variously been characterized as an act of "self 
defense," a "quarantine," a "blockade" with a new and differing name, as an 
offensive act, permitted to affirm certain interests, and so on. Resolutions of the 



Targeting Enemy Merchant Shipping 306 

United Nations General Assembly, as with its "Uniting for Peace" Resolution, 
can provide recommendations to members to act using economic or military 
sanctions, and affording legality or permissibility to such actions. These too may 
assimilate new methods of warfare. Article 94 of the United Nations Charter 
suggests that enforcement of a judgment of the International Court of Justice 
may be directed through the Security Council. As seen, this could include 
economic sanctions, enforceable through naval forces: 

[Article 94 (2)] . If any party to a case fails to perform the obligations incumbent 
upon it under a judgment rendered by the Court, the other party may have 
recourse to the Security Council, which may, if it deems necessary, make 
recommendations or decide upon measures to be taken to give effect to the 
judgment. 

Supplementary law such as that from the Briand-Kellogg Pact, coupled with 

the Budapest Articles of Interpretations, 1934, must be gradually assimilated 

1 ^o 
in the practice of states to control the resort to coercive measures. Institutional 

arrangements must be developed and invoked to ensure consultation and 

decision-making for the community at large. Regional organizations such as 

NATO presupposed to be the appropriate check on threats of aggression must 

remain operative. 

However, the trends in law as prescribed and applied have become clear: 
belligerent actions are shaped through new methods and weapons of warfare, 
and they, in turn, continually reshape the expectations and law of neutrality, as 
well as the tolerances relating to all forms of coercion, including economic 
warfare. We can envisage future conferences addressing problems of this 
nature. But past practice and trends suggest that the work and drafts of such 
conferences will have little meaning unless the law that is drafted into these 
instruments is closely assimilated to the expectations of the "operators," i.e., to 
the decision-makers involved in resorting to the use of force itself. Strong 
tendencies of such conferences and drafts to rely upon the elegance of law, 
displayed through the language that is used, and to rely upon the good faith of 
nations in adapting their practices to a set of rules, and the opposing tendencies 
of states to seek out how they intend to protect themselves or deter others against 
attacking them are primary, almost primordial, instincts almost always taking 
precedence when the war crimes courts meet or when the prize courts determine 
and apply the applicable law. 

States concerned with economic warfare must give closer attention to the 
implications of economic measures and methods that are used in war, or in 
peacetime to gain strategic advantage with regard to future wars. Strategic 
objectives have appeared creating a shift in the perspectives about such warfare, 
and about the methods to be invoked. The shift has led to an increased tendency 
to use forcible measures of economic warfare, or, at least, to include under 



307 Almond 

forcible measures of warfare, the economic targets, or the economy selected as 
a strategic target. Additionally, states are faced with a form of economic warfare 
when terrorists shift to targets critical to the economy, or where "low-intensity" 
conflict erupts with the same tendencies. Attacks by such groups intended 
to upset a nation's economy by striking, for example, at nuclear power 
plants, or other facilities essential to the economy are among the future 
prospects. Similarly, the concerted acts of espionage and industrial theft enable 
states that practice these activities to gain the economic benefits of their rivals at 
little or low cost, and also to gain knowledge about vulnerabilities in the 

economies of those rivals readily exploitable during wartime by military 

155 
measures. 

The major conclusion regarding economic warfare at sea relates to the 
changing content of the perspectives of neutrality. Traditional neutrality has 
given way in the two World Wars to a point of non-belligerency, characterized 
by the tolerances of the belligerents and neutrals with respect to how much 
discriminatory action will be accepted of neutral states, and when breaches are 
such that the neutral will be treated as a belligerent. To this extent, the traditional 
perspectives and law remain unchanged. However, under the traditional 
perspectives there was a clear line between belligerency and non-belligerency, 
but this has given way to the ambiguities of state practice. Under the traditional 
law the standards of impartiality and other standards determined with some 
degree of clarity and objectivity whether the neutral state had crossed the line 
of belligerency. 

Now there are varying degrees of non-belligerency. Moreover, non-bel- 
ligerency [neutrality in the changing current sense] is subservient to perspectives 
about global order and practices aimed at global order. These new perspectives 
give the neutral a claim at least that it can resort to conduct, formerly treated as 
contrary to its neutral responsibilities, and insist that it remains neutral and in 
support of the global order. Such a claim would include the argument that other 
states should take a similar position, i.e., all states are then aligned against the 
aggressor in behalf of the public order. It would mean, if fully carried out, that 
the determination of aggression could be widely shared among the states not at 
war. This is at best an assumption. 

However, new perspectives have appeared regarding the use of force under 
the global organization [United Nations], and with regard to aggression. The 
participants that are not belligerents have a new role: there is a stronger case for 
them to resort to force for self defense, collective self defense, or promotion of 

the global order, and while acting individually claiming their acts to be erga 

156 
omnes. 

The role of the Security Council is likely to change, if, of course, expectations 

among states show the willingness to defer to an international organ with the 

powers it has. These interacting elements show strong trends toward public 



Targeting Enemy Merchant Shipping 308 

order, even when states resort to the immediate threat by way of self defense. 
Yet the trends are still emerging: states have no compulsion, no globally imposed 
responsibility to act against aggressors without the mandate of the Security 
Council. But neutrality becomes important only as a statement of the factual or 
interactive situation among states during belligerency: states are not belligerents 
if the belligerents do not treat them as such. Hence the subjectivities of states 
are the crucial element: the state subjected to aggression is the major starting 
point for determining aggression. Its actions in retaliation are most likely to be 
affirmed by the global community. The states claiming neutrality or belligerency 
are also a point of focus as to their standing, except that competing or conflicting 
claims and policies are more likely to be raised. The real change in trends is 
toward the notion of a collective perspective about both public order and the 
support of public order by "neutrals" in war, or at times of aggression. 

Conclusion 

The conclusion of this analysis must consider two major issues. First. What 
can we expect from state tolerances with regard to economic warfare in the 
future? Second. What are our expectations about invoking economic sanctions, 
through the directives and resolutions of the Security Council of the United 
Nations, and about the effectiveness of both such sanctions and economic 
warfare? The answers to these questions based upon the preceding analysis lead 
us to conclude that economic warfare is a means of imposing either persuasion 
or coercion or both aimed primarily at the economies of rival states. 

The effectiveness of such warfare will depend upon the impact of the coercion 
or sanction upon the targeted state, to wit, upon its economy, its economic 
activities, and its trade and commerce with other states. States with strong 
domestic economies that are not dependent upon other states supporting their 
economic base are those most likely to be able to protect that base. 

The law regulating and governing economic warfare is an emerging law, 
reflecting the changing tolerances among states. Focus must be upon the 
operational element in law, that is the element that links the emergence of law 
with changing behavior patterns and tolerances associated with new weapons 
and methods of attack. What this leads us to conclude, in short, is that the law 
itself including the law of war is affected by the actions of states: new law is 
established through the tolerances arising with regard to attacks and weapons, 
old law is strengthened and the actions themselves are instruments both for 
enforcing and promoting the law in general. 

Some of the conclusions in greater detail: 

- Economic warfare at sea may be conducted by enemy states either by attacking 
the means by which an enemy's goods are transported, stored, or produced, or by 



309 Almond 

other coercive measures; prevailing trends suggest that economic warfare may 
include the targeting of the economy at large including its industrial base, and the 
civilian population involved in the production of goods and services essential for 
the military activities. 

- To this end, naval vessels have been designed as platforms for strategic attacks, 
both with respect to the missiles that can be delivered, and with respect to the 
aircraft that they carry; such attacks were conducted in the Gulf War. 

- Changing perspectives aroused by new weapons, new methods of attack, and 
the greater destructiveness of weapons affect the military and economic instru- 
ment, supporting the trends toward attacking the economic base of rivals, in part 
through working with the elasticity and the complementary balancing in applica- 
tion of the law of war principles relating to indiscriminate attacks, indirect damage 
and destruction, proportionality, and necessity. The attempts in treaties and 
agreements to reach the impact of change, e.g., in the Declaration of St. 
Petersburg, in the Geneva Protocols of 1977 [regarding attacks, precautions, and 
so on] have not been tested in belligerency and are likely to remain moribund. 

- Economic sanctions against states, established under directives of the Security 
Council of the United Nations, are largely the creature of the determinations and 
decisions of that organ, but they may be aimed at a state's economy, or at its 
economic activities, including transport of goods, or any combination of these. 

- As with other areas of warfare, the law and the emerging law of economic warfare 
have been affected by rapidly changing technologies, improved military organiza- 
tion capable of drawing upon those technologies, access to the plans of the enemy 
through improved intelligence, and the growing sophistication of the military 
capabilities and the methods of warfare. 

- As with other modalities and instruments of warfare, the means or modalities of 
economic warfare are not fixed, but are adapted, as needed, with regard to the 
missions or targets involved, and adapted to the needs or necessities as perceived 
in the changing military situations; economic warfare is coupled with forcible 
measures that vary from minor to severe coercion, evidenced by low to high 
intensity of violence; economic warfare at sea is perceived as a major component 
of economic warfare in general, and the methods of such warfare are and will be 
refined in the future in order to improve their effectiveness in achieving policy 
goals of the participants and those involved. 

- Economic warfare at sea has traditionally been warfare through naval forces 
aimed at blockade, interference or countering the enemy's commerce and trade, 
including that of neutrals supporting the enemy; submarines and submersibles will 
be important components of such warfare, particularly in strategic as well as the 
traditionally economic warfare at sea and over land, and will include air blockades, 
and perhaps blockades through the targeting of ballistic or cruise missiles, or 
through electronic warfare techniques. Economic warfare is most likely to be 
affected by changing perspectives concerning the conduct of warfare, and there- 
fore the operational law is likely to include much that is "soft" law - or law 



Targeting Enemy Merchant Shipping 31 

evolving as belligerency progresses, rather than hard law or rules found applicable 
without change or affect on the policy involved in such rules. Much of this 
operational law of economic warfare is applicable to all methods of warfare. 

- State practice relating to wars in the last two centuries shows that economic 
warfare has had at best a limited impact upon weakening the enemy. However, 
this may be attributed to success of the targeted state in producing its goods, or in 
securing its goods from others. As economic warfare turns toward strategic 
economic warfare, all of the military services will participate in using strategic 
weapons to weaken an enemy's economy and for improving the strategic position 
of the state that invokes economic measures. As economic warfare is expanded 
conceptually and operationally to include strategic and tactical strikes at an enemy's 
economy, or involves more effective collective economic sanctions including 
those marshalled under the Security Council to reach a target state's total 
economy, the effectiveness of such warfare in achieving military and political 
objectives, as well as economic [economy-destroying] objectives are likely to 
increase, and the law relating to such warfare become more settled. 

- Economic methods of warfare that operate by persuasion, i.e., by means in which 
force is not used or threatened, have not been widely used; however, as the 
economic base and the economies of states become more complex, involving a 
greater interaction of decisions, and more vulnerable to interferences with their 
technologies relating to communications, production of goods, transport of goods 
and so on, the economies will also become vulnerable targets, more readily subject 
to interference and even lasting damage. 

- Law is appraised in the global community through a consideration of the entire 
context of expectations, including state practice, custom and customary interna- 
tional law, the decisions and policies of public officials, the activities of states and 
so on; accordingly, the application of law and its interpretation are likely to meet 
with the ambiguities, changing methods of warfare, changing tolerances among 
states as to what is permitted as warfare becomes more intense, and to elude the 
precision and certainty usually sought in the law itself: as states shift toward 
doctrines of strategic deterrence through threats regarding the industrial base and 
the industrial population, it is probable that they will make these threats effective 
in combat. If attacks upon cities and the industrial base are considered part of 
economic warfare - i.e., where the object of the attack, the economy, defines the 
method of attack, economic warfare, this would stimulate the present shift from 
economic warfare as a method operable in itself that is, as the means either short 
of war or as a non-forcible means during war to a method that embraces forcible 
means to achieve its goals. This would lead to the unequivocal application of 
the laws of war and the standards of military necessity to such action. 

- The applicable and operational law relating to economic warfare ranges into 
areas of substantial discretion: hence we can anticipate that as such methods of 
warfare are more frequently invoked, there will be refinements in economic 
warfare in which the attacks or methods of warfare are found permissible as the 
discretionary acts of governments in attacking each other. Further refinements 
may arise where the resort to force is authorized by the legal authority of the global 



31 1 Almond 

community, to wit, through directives of the Security Council, or in conformance 
with recommendations of the General Assembly of the United Nations. 

- The differences allegedly arising between ofFensive and defensive warfare are 
minimal because during combat, and in the force planning relating to preparation 
for combat, states employ similar methods of warfare, weapons, and tactics for 
each. Offensive warfare appears in the form of an assertive action in taking a 
military object, while defensive warfare assumes a reactive action in defending 
one, but combat tends to oscillate between the two forms of action. This 
perspective regarding weapons targeted for deterrence is already clear in the SALT 
agreements: the United States and the Soviet Union, though they purported to 
reach controls on "offensive strategic weapons," failed to define the weapons as 
such except by arbitrary stipulation and targets, and ultimately they were com- 
pelled to recognize that such weapons might be used interchangeably by way of 
tactics and strategy with weapons that counter the offensive weapons [the strategic 
defense weapons]. 

- In adopting strategic ballistically delivered weapons, the United States and the 
Soviet Union have adopted a military perspective for outer space: transit by such 
weapons, testing of the delivery systems, and so on is not banned. 

- The application of law and the standards from the law of war are imposed on 
economic warfare where accompanied by the use of force, or particularly where 
the objectives of economic warfare are achieved through the use of force; where 
there is a clear separation of economic measures from forcible measures, there is 
a wide discretion in their use, and their use is largely judged as acts of unfriendly 
relations or where made in response as forms of retorsion. 

- The relation of economic warfare to neutrality is a relation that involves the 
separation of belligerent and non-belligerent states; but this relation is subject to 
confusion because the status of war, and the status of neutrality, are matters that 
are in a continuous state of flux, particularly where the Security Council acts, so 
that neutrality itself is affected; in policy and in strict terms of law, the law itself 
is in a state of flux. 

- The operational element involving the decisions to use force, or the decisions 
in how it is used, are of critical importantance in forming the policy that each of 
the states involved in belligerency expects to be the governing policy and source 
of authority both with regard to warfare in general, and with regard to economic 
warfare. There are immediate changes in the law that regulates warfare and the 
use of weapons reflecting changes in the conduct of hostilities. 

- Economic warfare is a strategy that may draw upon either the economic 
instrument of policy or the military instrument or both; deterrence of rival states 
is sought by demands imposed through coercion, and coercion may be imposed 
by a single state, a group of states, or under the direction of the Security Council 
to achieve deterrence, prevention, or the restoration or rehabilitation of damage 
caused by the state that has violated international law. 



Targeting Enemy Merchant Shipping 31 2 

Economic warfare demands analysis of the operational element - the 
modalities and changing modalities for imposing coercion, and the prescriptive 
and normative elements - the authority and control imposed under law upon 
the policies, strategy and decision of the commander in warfare is in the strategic 
terms of reference. 

As noted above, economic warfare demands analysis of the operational 
element - the modalities and changing modalities for imposing coercion, and 
the prescriptive and normative elements - the authority and control imposed 
under law upon the policies, strategy and decisions of the commander in warfare. 
Future developments will therefore range into the interaction of law, in part 
through anticipatory efforts in the adoption of "new" law, with the military 
operations and activities. The behavior of states during warfare is in the 
strategic terms of reference either "tactical", involving activities in which states 
are accommodating and opposing the policies and demands of each other, and 
"strategic" when they strengthen or add to the constitutive base of the public 
order. 

But analyses of the policies and strategies of states, and their behavior reveal 
a factor of great importance: strategy with its policies, plans and programs, and 
its implementing strategies may adopt programs based upon naked power or 
upon law. But strategy, like deterrence, is policy oriented and policy directed, 
and expected under law to draw upon effective power, in the context of legal 
order. Strategy in the operational phase depends upon perspectives at a given 
time, so that the objectives or principles of strategy may continue to have their 
impact, but new objectives may arise. Command of the sea thus is displaced by 
a strategy for strategic economic warfare. Hence states that seek to strengthen 
law and the global legal order are certain to invoke law and appraise the applicable 
law in developing their strategy. This is evident in such activities as the drafting 
of rules of engagement applicable to the use of military forces. 

We can therefore assume that as states move toward a common legal order 
their strategy and strategies for using force will draw increasingly upon common 
perspectives about law, but while we can assume this, it would be incautious to 
presuppose law by the drafting of agreements or the formulation of resolutions 
in the global institutions. Law-making in this large and changing context will 
gain strength only if we recognize that it is law-making of a legislative nature, 
and that the legislation among states is the continuous application of practice 
imposed both through treaties and custom, and that the two necessarily interact 
and in these dangerous realms continuously throw up choices for the policy- 
makers. The changes considered in this paper particularly as we shift to the 
awesome area of strategic economic policy involve the situations of choice and 
the means to correct decisions that have gone awry. 

A detailed regulation of economic warfare as such has not appeared in the 
practice among states. The general principles are those applicable to warfare in 



313 Almond 

general, relating to legitimate targets, force or coercion proportionately applied 
[often by the parallel use of military measures], and so on. As this inquiry suggests 
the reason for this is that the modalities of economic warfare, like that of warfare 
in general, evolve from the perspectives and tolerances of states about such 
warfare, and in particular, about the objectives that they are seeking. When they 
shift from specific identifiable economic targets or economic activities to the 
economy as a whole, then economic warfare and military warfare tend to merge 
as they did in the second World War. The participants expect at this stage that 
the war has intensified and that the stakes have increased. The participants expect 
greater violence and then exercise it, and the cycles escalate with growing 
intensity and growing expectations. The participants resort to new strategies and 
intensify those that they have adopted, especially in terms of the destructiveness 
of the war they have unleashed. 

For this reason, the conclusion is reached in this paper that what we refer to 
as economic warfare is likely to shift from concepts of identifiable targets to 
concepts of the entire support structure essential to conducting hostilities, and 
targets shift to energy sources, railroads, and the infrastructure components of 
the community at large. This was even recognized at the Nuremberg Trials. 
Attempts to halt this trend have appeared, to be sure, but these have not 
established a foothold that would make them secure as the enforceable law. Thus, 
the provisions in the Geneva Protocols of 1977 to refrain from attacking energy 
sources and provisions for new protections of the environment and so on have 
been offered to strengthen the community attitudes toward humanitarian 
protections. 

Economic sanctions, employing strategies of the global community, are aimed 
at the use of the economic instrument to manipulate the policies of others, to 
influence their decisions, and to reach community goals, pursuant to community 
standards. The economic instrument for both the sanctions and warfare may be 
coercive or non-coercive, as indicated earlier, or states may mix them together, 
always with the policy objectives in view. Economic warfare leads our perspec- 
tives toward the economy as a fundamental or crucial base of power, so that 
states that seek to destroy that base will tend even as in the wars of Greeks, 
Persians and Romans to destroy those they conquer, or subdue their inhabitants. 

As the Gulf War has shown, our present attitudes reflect the hope that the 
calculus of risk and benefit involved in resorting to sanctions will be favorable 
in every sense: the costs will be reduced, human suffering eliminated or 
minimized, and so on. But economic warfare alone has not appeared in practice 
to have been effective, unless military measures accompany that practice. And 
economic sanctions set forth in the United Nations Charter as a strategy to 
invoke, are subjected to the caveat that if they are not perceived as effective, 
they will be accompanied by military sanctions. Economic strategies then may 
be applied before hostilities, during hostilities, and after hostilities, fashioned as 



Targeting Enemy Merchant Shipping 314 

necessary, to achieve desired outcomes. All of these features are illustrated in the 

Gulf War, and open our inquiry in the future toward clarifying change in such 

.. • 169 
strategies. 

While we can consider trends - whether they shift toward or away from 

enlarging warfare by enlarging the economic objectives and hence the measures 

to be adopted in war - we cannot predict the outcomes. It would be foolhardy 

to predict the future of state practice in warfare - or in economic warfare - in 

view of the changing conditions and relations that affect the policies of states. 

As Churchill said in his eulogy to Chamberlain in the House of Commons, 

November 12, 1940: 

It is not given to human beings, happily for them, for otherwise life would be 
intolerable, to foresee or to predict to any large extent the unfolding course of 
events. In one phase men seem to have been right, in another they seem to have 
been wrong. Then again, a few years later, when the perspective of time has 
lengthened, all stands in a different setting. There is a new proportion. There is 
another scale of values. History with its flickering lamp stumbles along the trail of 
the past, trying to reconstruct its scenes, to revive its echoes, and kindle with pale 
gleams the passion of former days. What is the worth of all this? The only guide 
to a man is his conscience; the only shield to his memory is the rectitude and 
sincerity of his actions. It is very imprudent to walk through life without this 
shield, because we are so often mocked by the failure of our hopes and the 
upsetting of our calculations, but with this shield, however the fates may play, we 
march always in the ranks of honor. 

Notes 

^National Defense University - Institute of National Strategic Studies. Georgetown University, National 
Security Studies Program. This paper contains only the opinions of the author, and they should not be attributed 
to the United States Government or Georgetown University. 

1. Captain Hugh F. Lynch, in his paper on the "strategic imperatives" relating to economic warfare at 
sea, purposefully limits his inquiry into economic warfare in a warfighting context. This of course is the 
traditional context, premised on the expectation of strongly armed belligerents with strong navies that they 
could "reduce the enemy's warfighting potential" by reaching that part of his economic power involved in 
his trade and access to goods across national borders. The term "imperative" is used to identify priorities in 
military objectives. The author has a companion paper to this, see Harry H. Almond, Jr., An Assessment of 
Economic Warfare: Developments from the Persian Gulf 31 Va. J. of Int'l L. 645-672, (1991). 

2. See Ken Booth on the diplomatic instrument: Law, Force and Diplomacy at Seas, (1985); for a view 
by implication that the entire economy gradually verges on becoming a target for warfare, blurring the 
lines of discriminate warfare, r/"M.Shulman, Learning to Uve with Authoritarian Regimes, 55 Foreign Affairs 
325, 337 (1977). Shulman notes that if our goal is to protect the economy, that of the aggressor is to attack 
it. 

3. Klaus Knorr, Power and Wealth, 133 el seq., (1973). 

4. Id, at 136. 

5. The changing methods of warfare, new weapons and agents used in attacks and hostilities, and changes 
in the organization of invoking violence have had their impacts leading to change in perspectives about 
neutrality as well as economic warfare, and they are indeed interrelated. As Myres S. McDougaland Florentino 
P. Feliciano have indicated in their Law and Minimum World Public Order (1961), the notions of neutrality 
had already begun to wear under the practice of World War I, and were replaced by qualifications of neutrality: 
"absolute neutrality," "qualified neutrality," "non-participation,' and 'non-belligerency" were terms intended 



31 5 Almond 

to suggest policies that did not fit easily into the older notions of neutrality. This change, considered in depth 
in McDougal and Feliciano, was outlined in Lassa Oppenheim's International Law (1952) immediately after 
the second World War. 

6. Expected patterns of behavior may be initiated or directed, so to speak, by the adoption of policies 
regarding coercion. Legal regulation of coercion imposed through economic measures invokes the same 
general standards as are used with military coercion or force, to wit, the principles associated with necessity, 
proportionality, and legitimacy of target. These principles are expressed in general language, and 
they are formulated for precise situations by accommodating to the conditions to which they are 
applied. Necessity for high intensity use of violence will differ and be less subject to constraint in state 
practice than situations in which the violence released and the conditions applicable to the use of force 
are less. Distinctions may also be made between the use of these principles when the time of reference 
differs, i.e., the principles are under closer constraints at the initiation of aggression and with regard to 
responses to aggression than during hostilities or warfare. To make states more accountable there have 
been a number of proposals, enlarging upon the just war principles, to prevent precipitous or unconsidered 
uses of force, and to encourage a weighing of the factors that ought, by common sense, be assessed, 
even when the time is short. Speeches by former Secretary of Defense, Weinberger, and former 
Secretary of State, Shultz, suggest that there is no established policy or standards for making these assessments. 
Weinberger's six tests for using combat forces lean toward introducing major public participation, and 
toward making the determination about outcomes and success in achieving them, while Shultz is bent on the 
timely use of power justified by those uses of force where we are on the side of the good. These positions and 
debates on them appear in Ernest W. Lefever, ed., Ethics and American Power (1985), and the just war 
component is considered in A. Sabrosky & R.L. Sloane, The Recourse to War: An Appraisal of the 
"Weinberger Doctrine" (1988). The proposals for a checklist for decision makers is found in nearly every 
manifestation in which coercion or force is to be invoked, or where in on going hostilities new injections of 
force are intended. Cf. Nanda, discussed in Richard B. Lillich, Humanitarian Intervention, in John N. Moore, 
ed., Law and Civil War in the Modern World, 229, 248 (1974). [For forcible humanitarian intervention, 
Nanda calls for consent of the government involved; limited humanitarian purpose; duration of mission limited 
to accomplish limited objectives; limited use of coercive measures; and lack of other means to achieve 
objectives.] 

7. Numerous writers have taken the view that economic warfar