Law of Naval Warfare


NWIP 10-2

Department of the Navy

Office of the Chief of Naval Operations

September 1955

Law of Naval Warfare NWIP 10-2

Image of Law of Naval Warfare NWIP 10-2 cover.


Contents

Instructions

Chapter 1 – Introduction
100 Scope and Method of Presentation of Law of Naval Warfare
110 Status and Applicability of Law of Naval Warfare
120 Application of Law of Naval Warfare by U.S. Naval Commanders

Chapter 2 – The General Principles of the Laws of War
200 War and Law
210 The Sources of the Laws Regulating Warfare
211 Customary Law
212 Treaties
213 Binding Force of Rules Regulating Warfare
220 The Basic Principles of the Laws of War
221 The Distinction Between Combatants and Noncombatants
230 Neutrality
231 The Determination of Neutral Status of States
232 Neutrality Under the Charter of the United Nations
233 Neutrality Under Regional and Collective Self-defense Arrangements
234 Principles of Self-defense
240 The Laws of Land Warfare
250 The Laws of Air Warfare

Chapter 3 – Enforcement of the Laws of War
300 Means of Enforcement of the Laws of War
310 Reprisals
320 War Crimes Under International Law
330 Punishment of War Crimes Under International Law

Chapter 4 – Areas of Operations
400 Scope
410 The Legal Divisions of the Sea
411 Internal Waters
412 Territorial Sea (Waters)
413 High (Open) Seas
420 The Legal Divisions of the Air Space
421 Legal Control Over the Air Space
422 Special Situations
430 The Areas of Naval Warfare
440 Restrictions Upon Belligerents in Neutral Jurisdiction
441 Acts of Hostility
442 Base of Operations
443 Neutral Territorial Sea and Ports
444 Neutral Air Space

Chapter 5 – Vessels, Aircraft, and Personnel at Sea
500 Vessels and Aircraft
501 Enemy Character
502 Visit and Search
503 Capture and Destruction
510 Personnel
511 Enemy Warships and Military Aircraft
512 Enemy Merchant Vessels and Aircraft
513 Neutral Merchant Vessels and Aircraft
520 Communications

Chapter 6 –Legal Restrictions Upon Weapons and Methods Employed in Naval Warfare
600 Scope
610 Weapons
611 Mines and Torpedoes
612 Chemicals, Gases, and Bacteria
613 Nuclear Weapons
620 Bombardment
621 General Limitations on Bombardment
622 Specific Limitations on Bombardment
623 Warning Before Bombardment
630 Measures of Maritime Warfare Against Trade
631 Contraband
632 Blockade
633 Enemy Property
640 Stratagems and Treachery
641 Improper Use of Distinctive Emblems

Appendix A – Convention for the Adaptation to Maritime War of the Principles of the Geneva Convention – X Hague, 1907

Appendix B – Convention Concerning the Rights and Duties of Neutral Powers in Maritime War – XII Hague, 1907

Appendix C – Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949

Appendix D – Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea of August 12, 1949

Appendix E – Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949

Appendix F – Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949

Appendix G - Ships and Aircraft Papers

Appendix H
– Forms

Appendix I – Code of Conduct for Members of the Armed Forces of the United States

Appendix J – Bibliography


INSTRUCTIONS

NWIP 10-2, Law of Naval Warfare, presents and amplifies international law as related to naval warfare. The text covers the general principles of the laws of warfare, enforcement of the laws of warfare, and legal restrictions on methods and weapons of naval warfare and on belligerents in neutral jurisdictions. Legal divisions of the sea and air are described, as well as areas in which belligerent naval operations are permitted.

Guidance is provided on the legal status of ships, aircraft, and personnel engaged in naval warfare and the action permitted against them under international law. Appendixes to the volume present those treaties which are the principal sources of the law of naval warfare, the U.S. Armed Forces Code of Conduct, and a bibliography. In addition to servicing as a text for instruction and indoctrination, NWIP10-2 aids the naval officer in making and understanding operational decisions dictated by the necessity for adherence to international law and in recognizing violations of international law. NWIP 10-2 supplements NWP 10, Naval Warfare.

References to other publications imply their effective editions.


CHAPTER 1: INTRODUCTION

100 Scope and Method of Presentation of Law of Naval Warfare

Law of Naval Warfare has been prepared as a reference covering international law affecting the conduct of the naval forces in armed conflict. Although primary emphasis is upon the rules concerned with the conduct of naval and aerial warfare, attention is also directed to certain principles and problems common to the whole of the law of war.

The method of presentation consists in the exposition and clarification of those substantive portions of international law relating to naval warfare. The text contains the law as currently interpreted. The notes at the end of each chapter are keyed to the text and are included to present material in clarification of the law and to illustrate examples of deviation from the law [not included].

Appendixes are included for further reference in connection with the text and footnotes.

110 Status and Applicability of Law of Naval Warfare

Although a publication of the Department of the Navy, Law of Naval Warfare cannot be considered as a legislative enactment binding upon courts and tribunals applying the rules of war.

The laws of naval warfare will be considered to be applicable in any of the following situations:

1. A war formally declared by the Congress of the United States, or

2. Any armed conflict or other hostilities in which the naval forces of the United States are engaged.

Since many of the principles contained herein are statements of existing international law, they may be used for information and guidance in situations in which with either there are no hostilities or there are hostilities but the United States is a non-participant.

120 Application of Law of Naval Warfare by U.S. Naval Commanders

Many of the articles of U.S. Navy Regulations, 1948, are concerned with international law and with international relations of the United States. Article 0505, Observance of International Law, is quoted herewith:

1. In the event of war between nations with which the United States is at peace, a commander shall observe, and require his command to observe, the principles of international law. He shall make every effort consistent with those principles to preserve and protect the lives and property of citizens of the United States wherever situated.

2. When the United States is at war, he shall observe, and require his command to observe, the principles of international law and the rules of humane warfare. He shall respect the rights of neutrals as prescribed by international law and by pertinent provisions of treaties, and shall exact a like observance from neutrals.

CHAPTER 2: THE GENERAL PRINCIPLES OF THE LAWS OF WAR

200 War and Law

Although the resort to war is generally prohibited by the Charter of the United Nations, it is exceptionally permitted as an enforcement measure taken by or on behalf of the United Nations and/or as a measure of individual or collective self-defense. However, the distinction must be made between the resort to war and the conduct of war. Whether the resort to war is lawful or unlawful, the conduct of war is regulated by the system of rules known as the laws (or rules) of war. These laws regulate the conduct of war on land, at sea, and in the air. The laws of war are designed to control and mitigate the harmful effects of war by extending, during time of war, at least a minimum standard of protection to combatants and noncombatants and to all individuals who come under the control of the belligerents. These laws are also helpful in regulating the transition to peace at the conclusion of active hostilities.

The laws of war are effective to the extent that they are obeyed by belligerents.

210 The Sources of the Laws Regulating Warfare

The principal sources of the laws of war are custom and treaties. This section is limited to a consideration of the international regulations of warfare and does not cover national regulation by the United States, which is dealt with in the Uniform Code of Military Justice and U.S. Navy Regulations, 1948.

211 Customary Law

Customary laws of war develop out of the usage or practice of States when such usage or practice attains a degree of regularity and is accompanied by the general conviction that behavior in conformity with this usage or practice is both obligatory and right. In a period marked by frequent resort to armed conflict, customary law may develop within a short time.

212 Treaties

Treaties, or conventions as they are sometimes called, are international agreements between two or more states. Certain conventions represent a codification of the rules of war already established by custom. There are also conventions by which new laws of war are created. Both types of conventions have provided the more important developments in the rules of war. The most recently concluded international conventions relating to the regulation of the conduct of warfare are the 1949 Geneva Conventions for the Protection of War Victims. The texts of these conventions are contained in Appendixes C, D, E, and F.

213 Binding Force of Rules Regulating Warfare

a. CUSTOMARY RULES OF WAR are binding on all belligerents and under all conditions. Special rules apply in cases of reprisals against a belligerent for illegitimate acts of warfare. (See Section 310.)

b. RULES ESTABLISHED BY TREATIES. Rules established through a convention (treaty) are usually binding only between parties which have ratified or adhered to, and have not thereafter denounced or withdrawn from, the convention. Furthermore, the rules established through a convention are binding only to the extent permitted by the terms of the convention or by the reservations, if any, that have accompanied the ratification of or adherence to the convention. However, even when the above requirements are not met, a convention may represent, or come to represent, a general consensus as to the established law. Hence, the widespread observance of these conventional rules frequently renders them enforceable as law regardless of ratification. As occasions arise, it is the responsibility of higher authority to determine and instruct forces afloat as to which, if any, of these conventions are not legally binding between the United States and other States immediately concerned, and as to which, if any, are for that reason not to be observed or enforced for the time being.

220 The Basic Principles of the Laws of War

Among the customary rules of warfare, there are three rules frequently referred to as the “basic principles of the laws of war”: military necessity, humanity, and chivalry. These rules, or basic principles, are defined as follows:

a. MILITARY NECESSITY. The principle of military necessity permits a belligerent to apply only that degree and kind of regulated force, not otherwise prohibited by the laws of war, required for the partial or complete submission of the enemy with the least possible expenditure of time, life, and physical resources.

b. HUMANITY. The principle of humanity prohibits the employment of any kind or degree of force not necessary for the purpose of the war, i.e., for the partial or complete submission of the enemy with the least possible expenditure of time, life, and physical resources.

c. CHIVALRY. The principle of chivalry forbids the resort to dishonorable (treacherous) means, expedients, or conduct. (See Section 640).

221 The Distinction Between Combatants and Noncombatants

a. DISTINCTION. The traditional laws of war are based largely on the distinction made between combatants and noncombatants. In accordance with this distinction, the population of a belligerent is divided into two general classes: the armed forces (combatants) and the civilian population (noncombatants). Each class has specific duties and rights in time of war, and no person can belong to both classes at the same time.

b. RESTRICTIONS OF HOSTILITIES. Under customary international law, individuals who do not form a part of the armed forces and who refrain from the commission of all acts of hostility must be safeguarded against injury not incidental to military operations directed against combatant forces and other military objectives. In particular, it is forbidden to make noncombatants the object of a direct attack by the armed forces of a belligerent, if such attack is unrelated to a military objective. Attack for the sole purpose of terrorizing the civilian population is also forbidden.

230 Neutrality

a. DEFINITION. Neutrality may be defined as the nonparticipation of a State in a war between other states. Such nonparticipation must in turn be recognized by the belligerents. In the absence of any treaty limiting the available scope of neutrality (See Article 232), whether or not a State chooses to refrain from participating in war is a policy decision. Similarly, recognition of such nonparticipation is also a policy decision.

b. OBLIGATION AND RIGHTS. Under general international law, a neutral State has certain obligations and rights toward belligerents, and belligerents have corresponding rights and obligations toward a neutral State (See Section 440). The principle of impartiality holds that a neutral State is required to fulfill its obligations and enforce its rights in an equal manner toward all belligerents. If neutral State does not observe the principle of impartiality, the belligerent injured by such nonobservance may consider itself to be bound no longer by its obligations toward the neutral.

231 The Determination of Neutral Status of States


Although it is usual, on the outbreak of war, for nonparticipating States to issue proclamations of neutrality, a special declaration by nonparticipating States of their intention to adopt a neutral status is not required. The status of neutrality is terminated only when a neutral State resorts to war against a belligerent or when a belligerent resorts to war against a neutral State.

232 Neutrality Under the Charter of the United Nations

The Charter of the United Nations imposes upon member States the obligation to settle their international disputes by peaceful means and to refrain from the threat or use of force in their international relations. The obligation to refrain from the threat or use of force is modified by the right of individual and collective self-defense to be exercised until the Security Council has taken the necessary measures to restore peace and by obligation to carry out the decisions of the Security Council. In case of a threat to or breach of the peace, the Security Council is authorized to take enforcement action, involving or not involving the use of armed force, in order to maintain or restore peace. The member States are obligated to give the United Nations every assistance in any action it takes and to refrain from giving assistance to any state against which the United Nations is taking action. Consequently, the members of the United Nations may be obliged to give assistance with their armed forces to the United Nations in its enforcement actions, the fulfillment of which obligation is incompatible with the status of neutrality. On the other hand, member States may be obliged to give assistance to the United Nations in its enforcement actions only with measures not involving the use of armed force. In this case, they may be obliged to take a partisan, rather than an impartial, attitude toward the belligerents. These obligations of the member States, incompatible with the status of neutrality and with the principle of impartiality, under customary international law, come into existence only if the Security Council fulfills the functions delegated to it by the Charter. If the Security Council is unable to fulfill its assigned functions, the members may, in case of a war, remain neutral and observe an attitude of strict impartiality.

233 Neutrality Under Regional and Collective Self-Defense Arrangements

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 of 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.

234 Principle of Self-Defense

The right of a nation or the individuals thereof to take necessary and appropriate action in self-defense is a well-established principle of international law.

Article 0614, U.S. Navy Regulations, 1948, governing the use of force against a friendly foreign state, is set forth in full below:

1. The use of force by United States naval personnel against a friendly foreign state, or against anyone within the territories thereof, is illegal.

2. The right of self-preservation, however, is a right which belongs to states as well as to individuals, and in the case of states it includes the protection of the state, its honor, and its possessions, and the lives and property of its citizens against arbitrary violence, actual or impending, whereby the state or its citizens may suffer irreparable injury. The conditions calling for the application of the right of self-preservation cannot be defined beforehand, but must be left to the sound judgment of responsible officers, who are to perform their duties in this respect with all possible care and forbearance. In no case shall force be exercised in time of peace otherwise than as an application of the right of self-preservation as above defined. It must be used only as a last resort, and then only to the extent which is absolutely necessary to accomplish the end required. It can never be exercised with a view to inflicting punishment for acts already committed.

3. Whenever, in the application of the above-mentioned principles, it shall become necessary to land an armed force in a foreign territory on occasions of political disturbance where the local authorities are unable to give adequate protection to life and property, the assent of such authorities, or of some one of them, shall be first be obtained, if it can be done without prejudice to the interests involved.

240 The Laws of Land Warfare

Naval forces operating on land will be governed by the laws and customs of war on land.

A compilation of the rules of land warfare is contained in Law of Land Warfare, FM 27-10 (1956), issued by the Department of the Army, and in supplements thereto.

250 The Laws of Air Warfare

There is no comprehensive body of laws specially applicable to air warfare in the same sense that there is a comprehensive body of specialized laws relating only to sea warfare and a similar body of laws relating only to land warfare. There are, however, certain customary and conventional rules of a general character underlying the conduct of war on land and at sea which must be considered equally binding in air warfare. In addition, there are certain specialized laws of sea and land warfare which may be considered applicable to air warfare as well.

This book applies to the whole of naval warfare and thereby includes naval air warfare. Appropriate note is taken throughout this book of the situations in which the specialized rules of naval warfare do not similarly regulate the conduct of naval air warfare. In the absence of these distinctions, operational naval commanders are to assume that the rules regulating warfare at sea are equally applicable to naval air warfare.

CHAPTER 3: ENFORCEMENT OF THE LAWS OF WAR

300 Means of Enforcement of the Laws of War

Various means are available to belligerents under international law for inducing the observance of legitimate warfare.

In the event of a clearly established violation of the laws of war, an injured belligerent may resort to remedial action of the following types:

1. Publication of the facts with a view to influencing world opinion against an offending belligerent.

2. Protest and demand for punishment of individual offenders. Such protest and demand for punishment may be communicated directly to an offending belligerent or to the commander of the offending forces. On the other hand, an offended belligerent may choose to forward its complaints through a protecting power, a humanitarian organization acting in the capacity of a protecting power, or any State not participating in the armed conflict.

3. Demand for compensation from an offending belligerent.

4. Reprisals. (See Section 310.)

5. Trial and punishment of captured individual offenders for war crimes. (See Section 330.)

310 Reprisals

a. CHARACTER AND PURPOSE. Reprisals between belligerents are acts, otherwise illegal, which are exceptionally permitted to a belligerent as a reaction against illegal acts of warfare committed by an enemy. The illegal acts of justifying reprisals between belligerents may be committed by order of a government, by order of military commanders, or by the armed forces of a belligerent acting without higher authorization. The purpose of reprisals is to induce compliance with the laws of war.

Reprisals must be clearly distinguished from retortion. Retortion is retaliation for legally permissible acts of a State which are of a cruel, discourteous, unfair, harassing, or otherwise objectionable nature by acts of a similar kind, i.e., by acts that are legally permissible. Reprisal is distinguished from retortion in that a reprisal is a retaliation against an illegal act and has the legal character of an enforcement action which may involve the use of armed force.

b. WHEN EMPLOYED. Reprisals are never to be taken merely for revenge, but only as a last resort to induce an enemy to desist from unlawful practices. Whenever possible, the injured belligerent first must attempt to obtain the cessation of the illegal acts through methods other than reprisal. Acts taken in reprisal should be brought to the attention of the enemy, and of neutrals, if necessary, in order to achieve maximum effectiveness. As a general rule, reprisals should not be employed by subordinate commanders in the absence of direct orders of the highest military authority. The latter should give such orders only after as careful an inquiry into the alleged offense as circumstances permit.

If immediate action is demanded as a matter of military necessity, a subordinate commander may, on his own initiative, order appropriate reprisals, but only after as careful an inquiry into the alleged offense as circumstances permit. Hasty or ill-considered action may be found subsequently to have been unjustified and may subject the officer himself to punishment for violation of the laws of war. Reprisals must cease as soon as they have achieved their objective, which is to induce a belligerent to desist from illegal conduct and to comply with the laws of war.

c. FORMS OF REPRISAL. The acts resorted to by way of reprisal need not conform to those complained of by the injured belligerent, but should not be excessive or exceed the degree of violence committed by the offending belligerent.

d. OBJECTS OF REPRISAL. Subject to the prohibitions enumerated in paragraph e below, reprisals may lawfully be taken against enemy individuals (i.e., members of the armed forces and of the civilian population) and property.

e. REPRISALS: AGAINST WHOM FORBIDDEN. Reprisals are forbidden against the following:

1. Prisoners of war.

2. Wounded, sick, and shipwrecked persons, as the latter are defined in the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea; hospital ships and medical aircraft, and the personnel of such ships and aircraft, as are protected by the same convention.

3. Wounded and sick personnel in the field, as they are defined in the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; the buildings, equipment, and personnel that are protected by the same convention.

4. Civilian persons and their property, as these persons and property are defined in the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War.

320 War Crimes Under International Law

a. DEFINITION OF WAR CRIMES. War crimes may be defined as those acts which violate the rules established by customary and conventional international law regulating the conduct of warfare. Acts constituting war crimes may be committed either by members of the armed forces of a belligerent or by individuals belonging to the civilian population.

b. EXAMPLES OF WAR CRIMES. The following acts are representative war crimes:

1. Offenses against prisoners of war: killing without due cause; infliction of ill-treatment and torture; denial of minimum conditions conducive to life and health; causing the performance of unhealthy, dangerous, or otherwise prohibited labor; infringement of religious rights; and deprivation of the right of a fair and regular trial.

2. Offenses against civilian inhabitants of occupied territories: killing without due cause; infliction of ill-treatment and torture; subjection to illegal experiments; deportation; compelling forced labor; compelling entry into the armed forces of the occupant; denial of religious rights; denaturalization; infringement of property rights; and denial of a fair and regular trial.

3. Offenses against the sick and wounded: killing, wounding, or otherwise ill-treating members of armed forces in the field who are disabled by sickness or wounds or who have laid down arms and surrendered.

4. Offenses against the survivors of sunken ships: killing, wounding, or otherwise ill-treating the shipwrecked, wounded, or sick at sea; failure to search out and make provision for the safety of survivors of sunken ships when military interests so permit.

5. Plunder and pillage of public or private property.

6. Wanton destruction of cities, towns, or villages or devastation not justified by military necessity; aerial bombardment whose sole purpose is to attack and terrorize the civilian population.

7. Deliberate attack upon hospital ships, medical establishments, or medical units.

8. Maltreatment of dead bodies.

9. Abuse of, or firing on, a flag of truce.

10. Misuse of the Red Cross emblem or a similar protective emblem.

11. Denial of quarter, unless bad faith is reasonably suspected.

12. Treacherous request for quarter.

13. Imposing punishment, without a fair trial, upon spies and other persons suspected of hostile acts.

14. Violations of surrender terms.

15. Other analogous acts violating the accepted rules regulating the conduct of warfare.

330 Punishment of War Crimes Under International Law


a. GENERAL. Belligerent states have the obligation under customary international law to punish their own nationals who violate the laws of war and the right to punish enemy nationals, whether members of the armed forces or civilian persons, who fall under their control.

b. SPECIAL DEFENSES TO CHARGES OF WAR CRIMES UNDER INTERNATIONAL LAW

1. Defense of Superior Orders. The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law but may be considered in mitigation of punishment. To establish responsibility the person must know, or have reason to know, that an act he is ordered to perform is unlawful under international law. In addition, if an act, though known to the person to be unlawful at the time of commission, is performed under duress, this circumstance may be taken into consideration either by way of dense or in mitigation of punishment.

2. Responsibility of Commanding Officers. Commanding officers are responsible for illegitimate acts of warfare performed by subordinates when such acts are committed by order, authorization, or acquiescence of a superior. The fact that a commanding officer did not order, authorize, or acquiesce in illegal acts of warfare committed by subordinates does not relieve him from responsibility, provided it is established that the superior failed to exercise his authority to prevent such acts and, in addition, did not take reasonable measures to discover and stop offenses already perpetrated.

3. Acts Legal or Obligatory Under National Law. The fact that national law does not prohibit an act which constitutes a war crime under international law does not relieve the person who committed the act from responsibility under international law. However, the fact that an act which constitutes a war crime under international law is made legal and even obligatory under national law may be considered in mitigation of punishment.

CHAPTER 4: AREAS OF OPERATIONS

400 Scope

This chapter describes the legal divisions of the sea and of the air space; the areas in which belligerent naval operations are permitted; and the restrictions upon belligerents in neutral jurisdiction.

410 The Legal Divisions of the Sea

In international law, navigable waters are classified under three headings: from the land outward to the open sea there are first internal waters, then territorial sea (waters), and, finally, the high seas. This section describes the dividing lines distinguishing the different legal classifications of navigable waters and the character of the legal control (or jurisdiction) exercised in each classification by States in time of peace. These are significant also as between belligerents and neutrals.

411 Internal Waters

a. GEOGRAPHIC EXTENT. Internal waters comprise all those waters which lie within the base line of the territorial sea (see paragraph 412a). They consist of landlocked waters, rivers (including their mouths), canals, waters in ports and harbors, and certain of a State’s gulfs and bays.

b. LEGAL CONTROL. A State has the same exclusive legal control over its internal waters as it has over its other territory.

412 Territorial Sea (Waters)

a. GEOGRAPHIC EXTENT. The territorial sea consists of a belt of the sea extending outward from the base line for three nautical miles. Normally, the base line for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. However, where a coast is deeply indented and cut into, or where there is a fringe of islands along the coast in its immediate vicinity, the method of straight base lines joining appropriate points may be employed in drawing the base line.

b. LEGAL CONTROL. A State’s legal control over the territorial sea is the same generally as its legal control over its internal waters, but there is one important difference. According to a rule of established international law, in time of peace, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea for the purpose of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters. Innocent passage includes stopping and anchoring, but only insofar as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress. Passage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal State. Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea. Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal State in conformity with established principles of international law and, in particular, with such laws and regulations relating to transport and navigation.

In the event that a foreign merchant vessel does not comply with the local laws or regulations, the coastal State may exercise the right of “hot pursuit.” The doctrine of hot pursuit is internationally recognized as the right of a coastal State to pursue with its warships or military aircraft any merchant vessels of a foreign State which have violated the laws or regulations of the coastal State applicable to its territorial sea or contiguous zone. The doctrine applies to all violations within the territorial sea and to violations of customs, fiscal, sanitary, and immigration laws and regulations in the contiguous zone. This doctrine of hot pursuit is to be distinguished from the right to take pursuing action, as necessary to ensure the safety of threatened forces or territory, under the fundamental principle of self-preservation (see Article 234). The latter is a much broader concept, not dependent upon whether the threat occurs within territorial waters or the contiguous zone.

Whether or not this right of innocent passage in time of peace extends equally to the warships of foreign States remains an unsettled point. However, it is at least clear that a short State may enact such regulations as it considers necessary to govern the passage of warships through its territorial sea, and if the warship does not comply with the regulations or disregards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea. For example, almost all States require submarines to be navigated on the surface when passing through their territorial sea.

In addition, there shall be no suspension of the innocent passage of foreign ships, whether merchant vessels or warships, through straits used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State. For the purposes of security and defense, as well as for the purpose of enforcing customs, fiscal, immigration, fishing, and sanitary regulations within its territory or territorial sea, States may establish certain restrictions upon the right of innocent passage of foreign vessels through their territorial sea. Such restrictions upon the right of innocent passage are not prohibited by international law, provided that they are reasonable and necessary to ensure the security and defense of the coastal State. These controls may be exercised either during periods of peace or during the war.

413 High (Open) Seas

a. GEOGRAPHIC EXTENT. The high seas consist of all waters which lie to seaward of the outer limit of the territorial sea, i.e., all of the seas that are not included in the territorial sea or in the internal waters of a State.

b. LEGAL CONTROL. The important legal characteristic of the high seas is that they are not, in geographic whole or part, under the legal control of any State. The legal order of the high seas is international law rather than national law. The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high sea comprises, inter alia, both for coastal and noncoastal States, freedom of navigation, freedom of fishing, freedom to lay submarine cables and pipelines, and freedom to fly over the high seas. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interest of other States in their exercise of freedom of the high seas. The general rule of customary international law is that the vessels of all States are free to sail the high seas, subject in time of peace only to the limitations discussed in the following paragraphs.

c. SPECIAL CONTROLS ESTABLISHED BEYOND TERRITORIAL SEA. It is the practice of most States to exercise a limited jurisdiction over foreign vessels in waters contiguous to their territorial sea for certain defined purposes such as immigration, customs, sanitation, fiscal, fisheries, and conservation of resources. Among the purposes for which States claim to exercise a limited jurisdiction in these contiguous waters (or “contiguous zones” as they are often called) are the prevention and punishment of infringements of its customs, fiscal, immigration, and sanitary regulations within its territory or territorial sea. The contiguous zone for customs, fiscal, immigration and sanitary regulations normally would not extend beyond twelve miles from the base line from which the breadth of the territorial sea is measured. These special controls established beyond a State’s territorial sea may be exercised either during periods of peace or during war.

d. SECURITY AND DEFENSE CONTROLS BEYOND THE TERRITORIAL SEA. Under the general principles of international law and the Charter of the United Nations, a State may exercise measures of self-defense beyond its territorial sea against an imminent and direct threat to the security of the State. International law does not determine the geographical limits of such areas or the degree of legal control that a coastal State may exercise in them, beyond laying down the general requirement of reasonableness in relation to the needs of national security and defense.

420 The Legal Divisions of the Air Space

In international law, the air space is classified under two headings: air space over the land, internal waters, and territorial sea of a State; and air space over the high seas and unoccupied territories (i.e., territories not subject to the sovereignty of any State).

421 Legal Control Over the Air Space

According to established international law, each State has exclusive legal control (jurisdiction) in the air space above its territory, internal waters, and territorial sea. There is no freedom of flight over internal waters and territory; nor is there a right of innocent passage through the air space over the territorial sea analogous to the right of innocent passage through the territorial sea. In the absence of a convention (treaty) regulating the flight of foreign civil or military aircraft through its air space, each State has complete discretion in regulating or in prohibiting such flight.

The air space over the high seas and over unoccupied territories remains free to the aircraft of all States (see paragraph 422b).

422 Special Situations

a. JURISDICTION OF STATES OVER AERIAL INTRUDERS. There are as yet no firmly established rules governing the treatment to be accorded to military aircraft forced by weather conditions or distress to enter the air space of a foreign State without having obtained prior permission. However, the recent practice of States indicates that such intruding military aircraft are considered subject to reasonable measures of control by the State whose air space they have entered. For example, it has been considered a reasonable measure of control to require intruding military aircraft to land at a local airfield. On the other hand, recent practice has indicated that a territorial State does not have the right to resort to measures of armed force which may involve the taking of human life where such aircraft indicate a willingness to submit to reasonable measures of control.

b. ESTABLISHMENT OF IDENTIFICATION ZONES IN AIR SPACE ADJACENT TO TERRITORIAL AIR SPACE. International law does not prohibit States from establishing air identification zones in the air space adjacent to their territorial air space. There has not yet emerged a recognized practice of “contiguous air space zones” analogous to contiguous zones established on the high seas (see paragraph 413c), enabling States to exercise certain legal controls over aircraft flying outside territorial air space. The present system of Air Defense Identification Zones (ADIZ) employed by the United States extends to the air space above the open sea and is limited to the purpose of identifying aircraft.

430 The Areas of Naval Warfare

a. THE GENERAL AREA OF NAVAL WARFARE. The general area within which the naval forces of belligerents are permitted to conduct operations includes: the high seas, the territorial sea and internal waters of belligerents, the territory of belligerents accessible to naval forces, and the air space over such waters and territory.

b. THE IMMEDIATE AREA OF NAVAL OPERATIONS. Within the immediate area or vicinity of naval operations, a belligerent may establish special restrictions (see, for example, paragraph 520a) upon the activities of neutral vessels and aircraft and may prohibit altogether such vessels and aircraft from entering the area. Neutral vessels and aircraft which fail to comply with a belligerent’s orders expose themselves to the risk of being fired upon. Such vessels and aircraft are also liable to capture (see subparagraph 503d7).

440 Restrictions

This section describes the rules restricting the use by belligerents of neutral waters, ports, and air space. These rules establish correlative rights and obligations of neutrals and belligerents and presuppose a neutral’s duty to exercise its rights and to fulfill its obligations in an impartial manner toward all belligerents.

441 Acts of Hostility

As a general rule, all acts of hostility in neutral jurisdiction are forbidden. This includes both visit and search and capture or destruction. However, a belligerent is not forbidden to resort to acts of hostility in neutral jurisdiction against enemy troops, vessels, or aircraft making illegal use of neutral territory, waters, or air space, if a neutral State will not or cannot effectively enforce its rights against such offending belligerent forces.

442 Base of Operations

Belligerents are forbidden to use neutral territory, territorial sea, or air space as a base for hostile operations.

443 Neutral Territorial Sea and Ports

a. PASSAGE THROUGH TERRITORIAL SEA. A neutral State may allow the mere passage of warships, or prizes, of belligerents through its territorial sea.

b. BELLIGERENT STAY IN NEUTRAL PORTS AND WATERS

(1) Twenty-four-hour Limit. In the absence of special provisions to the contrary in the laws or regulations of a neutral State, belligerent warships are forbidden to remain in the territorial sea, ports, or roadsteads of a neutral for more than twenty-four hours. This restriction does not apply to belligerent vessels devoted exclusively to humanitarian, religious, or scientific purposes. In addition, belligerent warships may be permitted by a neutral to extend their stay in neutral ports on account of stress of weather or damage (see paragraph e below). It is the duty of a neutral State to intern a belligerent warship, together with officers and crew, that will not or cannot leave a neutral port where she is not entitled to remain.

(2) Limitations on Stay and Departure. In the absence of special provisions to the contrary in the laws or regulations of a neutral State, no more than three warships of a belligerent are allowed to be in the same port or roadstead of a neutral at any one time. When warships of opposing belligerents are present in a neutral port at the same time, at least twenty-four hours must elapse between the departure of the respective enemy vessels. The order of departure is determined by the order of arrival, unless the vessel which arrived first is granted an extension of the period of stay. A belligerent warship cannot leave a neutral port or roadstead less than twenty-four hours after the departure of an enemy merchant ship.

c. WAR MATERIALS, ARMAMENTS, AND COMMUNICATIONS. Belligerent warships may not make use of neutral ports, roadsteads, or territorial waters to replenish or to increase their supplies of war materials or their armaments or to erect any apparatus for the purpose of communicating with belligerent forces on land or at sea.

d. FOOD AND FUEL. Belligerent warships in neutral ports or roadsteads are not forbidden to supply themselves with food and fuel, although there is no unanimity on the amount of food and fuel that may be taken on. In practice, it has been left to a neutral State to determine the conditions for the replenishment and refueling of belligerent warships. A neutral State may extend the lawful period of stay to vessels being supplied with fuel by twenty-four hours.

e. REPAIRS. In neutral ports and roadsteads, belligerent warships may carry out only such repairs as are absolutely necessary to render them seaworthy, and may not add in any manner whatsoever to their fighting force. It is the duty of a neutral State to decide what repairs are necessary and to insist that these be carried out with the least possible delay.

f. PRIZES. A prize may be brought into a neutral port only because of unseaworthiness, stress of weather, or want of fuel or provisions. It must leave as soon as the circumstances which justified its entry are at an end. It is the duty of a neutral State to release a prize, together with its officers and crew, and to intern the prize crew in the event that a prize is unlawfully brought into the neutral’s port or, having entered lawfully, fails to depart as soon as the circumstances which justified its entry are at an end.

444 Neutral Air Space

a. BELLIGERENT ENTRANCE FORBIDDEN. Belligerent military aircraft are forbidden to enter the air space of a neutral State. Exceptions to this prohibition are as follows:

(1) Belligerent Medical Aircraft. The medical aircraft of belligerents may fly over neutral territory; may land thereon in case of necessity; or may use such neutral territory as a port of call, subject to such regulations as the neutral may see fit to apply equally to all belligerents.

(2) Unarmed Belligerent Aircraft. A neutral State may permit unarmed belligerent military aircraft to enter its space under such conditions as it may wish to impose. Where such aircraft enter without permission, the neutral State may intern the aircraft, together with their crews.

b. DUTIES OF A NEUTRAL. As to belligerent military aircraft which are forbidden to enter the air space of a neutral State, the neutral State should use the means at its disposal to prevent their entry; should compel such aircraft to land once they have entered; and should usually intern such aircraft, together with their crews. Neutral States should, however, permit aircraft in evident distress to enter their air space and land under such safeguards as they may wish to impose.

CHAPTER 5: VESSESL, AIRCRAFT, AND PERSONNEL AT SEA

500 Vessels and Aircraft
This chapter describes the legal status or character of vessels, aircraft, and personnel in warfare at sea, and the action permitted against them under international law.

a. VESSELS AND AIRCRAFT. The term “vessels and aircraft” as used herein includes all objects which are or may be used which are or may be used as a means of transportation by States on or under the sea or in the air above the sea and land.

b. MERCHANT VESSELS AND AIRCRAFT. The term “merchant vessels and aircraft” refers to all vessels and aircraft, whether privately or publicly owned or controlled, which are not in the warship or military aircraft category, and which are solely engaged in ordinary commercial activities.

c. WARSHIPS. The term “warships” includes all vessels commissioned as a part of the naval forces of a State and authorized to display the appropriate flag or pennant as evidence thereof. Such vessels must in addition be commanded by a member of the military forces of a State and must be manned by a crew subject to military discipline.

d. MILITARY AIRCRAFT. The term “military aircraft” includes all aircraft operated by commissioned units of the naval forces of a State and includes military aircraft operated by commissioned units of other component parts of the armed forces which are engaged in operations at sea. Such aircraft must bear the military markings of their State, must be commanded by a member of the military forces, and must be manned by a crew subject to military discipline.

e. BELLIGERENT RIGHTS. At sea, only warships and military aircraft may exercise belligerent rights.

501 Enemy Character

All vessels operating under an enemy flag and all aircraft bearing enemy markings possess enemy character. However, the fact that a merchant vessels flies a neutral flag or that an aircraft bears neutral marking does not necessarily establish neutral character. Any merchant vessel or aircraft owned or controlled by or for an enemy State, enemy persons, or any enemy corporation possesses enemy character, regardless of whether or not such a vessel or aircraft operates under a neutral flag or bears neutral markings.

a. ACQUIRING CHARACTER OF ENEMY WARSHIP OR MILITARY AIRCRAFT. Neutral merchant vessels and aircraft acquire enemy character and are liable to the same treatment as enemy warships and military aircraft (see paragraph 503a) when engaging in the following acts:

1. Taking a direct part in the hostilities on the side of an enemy;

2. Acting in any capacity as a naval or military auxiliary to an enemy’s armed forces.

b. ACQUIRING CHARACTER OF ENEMY MERCHANT VESSEL OR AIRCRAFT. Neutral merchant vessel and aircraft acquire enemy character and are liable to the same treatment as enemy merchant vessels and aircraft (see paragraph 503b), when engaging in the following acts:

1. Operating directly under enemy control, orders, charter, employment, or direction;

2. Resisting an attempt to establish identity, including visit and search.

502 Visit and Search

a. OCCASIONS FOR EXERCISE. The belligerent right of visit and search may be exercised anywhere outside of neutral jurisdiction upon all merchant vessels and aircraft in order to determine their character (enemy or neutral), the nature of their cargo, the manner of their employment, or other facts which bear on their relation to the war. Historically, visit and search was considered the only legally acceptable method for determining whether or not a merchant vessel was subject to capture. It is now recognized that changes in warfare have rendered this method either hazardous or impracticable in many situations. In the case of enemy merchant vessels and aircraft and neutral merchant vessels and aircraft acquiring enemy character as described in the preceding article, the belligerent right of capture (and, exceptionally, destruction as described in paragraph 503b) need not be preceded by visit and search, provided that a positive determination of status can be obtained by other methods. Whether or not the right of visit and search may be exercised upon neutral merchant vessels under convoy of neutral warships of the same nationality remains an unsettled matter in State practice.

b. METHODS OF VISIT AND SEARCH OF MERCHANT VESSELS. In the absence of special instructions issued during a period of armed conflict, the following procedure should be carried out:

1. In general, the belligerent right of visit and search should be exercised with all possible tact and consideration.

2. Before summoning a vessel to lie to, a warship must hoist her own national flag. The summons should be made by firing a blank charge, by international flag signal, or by other recognized means. The summoned vessel, if a neutral, is bound to stop, lie to, and display her colors: if an enemy vessel, she is not so bound and legally may even resist by force, but she thereby assumes all risks of resulting damage. On the other hand, a neutral merchant vessel is obligated not to resist the belligerent right of visit and search.

3. If a summoned vessel takes to flight, she may be pursued and brought to, by forcible measures if necessary.

4. When a summoned vessel has been brought to, the warship should send a boat with an officer to conduct the visit and search. If practicable, a second officer should accompany the officer charged with the examination. The arming of the officers and of the boat’s crew is left to the discretion of the commanding officer of the visiting vessel.

5. If visit and search at sea of a neutral merchant vessel is deemed hazardous or impracticable, the neutral vessel may be escorted by the summoning vessel or by another vessel or by aircraft to the nearest place where search may be made conveniently. In this case, the neutral vessel should not be required to lower her flag, since she has not been captured, but she must proceed according to orders of the escorting vessel or aircraft. A neutral vessel disobeying a belligerent’s orders may be captured and sent in for adjudication.

6. A boarding officer should first examine a ship’s papers in order to determine her character, ports of departure and destination, nature of cargo and employment, and other facts deemed essential. The papers which are generally found on board a merchant vessel are:


a. Certificate of registry of nationality
b. Crew list
c. Passenger list
d. Log book
e. Bill of health
f. Clearance
g. Charter party, if chartered
h. Invoices or manifests of cargo
i. Bills of lading
j. A consular declaration certifying the innocence of the cargo may be included. (See Appendix G.)


7. The evidence furnished by papers against a vessel may be taken as conclusive. However, regularity of papers and evidence of innocence of cargo or destination furnished by them are not necessarily conclusive, and if any doubt exists the personnel of the vessel should be questioned and a search made, if practicable, of the ship or cargo. There are many circumstances which may raise legitimate doubt or suspicion. For example, if a vessel has deviated far from her direct course, this, if not satisfactorily explained, is a suspicious circumstance warranting search, however favorable the character of the papers. If search, under suspicious circumstances, does not satisfy a boarding officer of the innocence of a vessel, the vessel should be captured and sent in for adjudication. Even though a prize court may later order the release of the vessel, the commander sending the vessel in for adjudication acted properly if the result of visit and search appeared to furnish probable cause for capture.

8. When sending in a captured vessel as prize, the detailed prize procedures contained in Instructions for Prize Masters and Special Prize Commissioners (NAVEXOS P-825) are to be followed.

9. Unless military security prohibits, the boarding officer must record the facts concerning the visit and search in the log book of the vessel visited, including the date when and the position where the visit occurred. The entry in the log book should be authenticated by the signature and rank of the boarding officer. (See Appendix H, Form No. 5) Neither the name of the visiting vessel nor the name and rank of her commanding officer should be disclosed.

503 Capture and Destruction

a. ENEMY WARSHIPS AND MILITARY AIRCRAFT

1. Destruction. Enemy warships and military aircraft (including naval and military auxiliaries) may be attacked and destroyed outside neutral jurisdiction.

2. Capture. Enemy warships and military aircraft may be captured outside neutral jurisdiction. Prize procedure is not used for such captured vessels and aircraft because their ownership immediately vests in the captor’s government by the fact of the capture.

b. ENEMY MERCHANT VESSELS AND AIRCRAFT

1. Capture. Enemy merchant vessels and aircraft may be captured outside neutral jurisdiction.

2. Destruction of Enemy Prizes. Enemy merchant vessels and aircraft which have been captured may, in case of military necessity, be destroyed by the capturing officer when they cannot be sent or escorted in for adjudication. Should the necessity for the destruction of an enemy prize arise, it is the duty of the capturing officer to take all possible measures to provide for the safety of passengers and crew. All documents and papers relating to an enemy prize should be saved. If practicable, the personal effects of passengers should be saved. Every case of destruction of an enemy prize should be reported promptly to higher command.

3. Destruction of Enemy Merchant Vessels Prior to Capture. Enemy merchant vessels may be attacked and destroyed, either with or without prior warning, in any of the following circumstances:


1. Actively resisting visit and search or capture.
2. Refusing to stop upon being duly summoned.
3. Sailing under convoy of enemy warships or enemy military aircraft.
4. If armed, and there is reason to believe that such armament has been used, or is intended for use, offensively against an enemy.
5. If incorporated into, or assisting in any way, the intelligence system of an enemy’s armed forces.
6. If acting in any capacity as a naval or military auxiliary to an enemy’s armed forces.

c. ENEMY VESSELS AND AIRCRAFT EXEMPT FROM DESTRUCTION OR CAPTURE. The following enemy vessels and aircraft, when innocently employed, are exempt from destruction or capture:

1. Cartel vessels and aircraft, i.e., vessels and aircraft designated for and engaged in the exchange of prisoners.

2. Properly designated hospital ships, medical transports, and medical aircraft.

3. Vessels charged with religious, scientific, or philanthropic missions.

4. Vessels and aircraft guaranteed safe conduct by prior arrangement between the belligerents.

5. Vessels and aircraft exempt by proclamation, operation plan, order, or other directive.

6. Small costal (not deep-sea) fishing vessels and small boats engaged in local coastal trade and not taking part in hostilities. Such vessels and boats are subject to the regulations of a belligerent naval commander operating in the area.

d. NEUTRAL MERCHANT VESSELS AND AIRCRAFT are in general liable to capture if performing any of the following acts:


1. Carrying contraband (see paragraph 631d).
2. Breaking or attempting to break, blockade (see paragraph 632g).
3. Carrying personnel in the military or public service of an enemy.
4. Transmitting information in the interest of an enemy.
5. Avoiding an attempt to establish identity, including visit and search.
6. Presenting irregular or fraudulent papers; lacking necessary papers; destroying, defacing, or concealing papers.
7. Violating regulations established by a belligerent within the immediate area of naval operations (see paragraph 430b).

When sending in captured neutral merchant vessels or aircraft as prize, the detailed prize procedures contained in Instructions for Prize Masters and Special Prize Commissioners (NAVEXOS P-825) should be followed.

e. DESTRUCTION OF NEUTRAL PRIZES. Although the destruction of a neutral prize is not absolutely forbidden, it involves a much more serious responsibility than the destruction of an enemy prize. A capturing officer, therefore, should never order such destruction without being entirely satisfied that the military reasons therefore justify it, i.e. under circumstances such that a prize can neither be sent in nor, in his opinion, properly released.

Should the necessity for the destruction of a neutral prize arise, it is the duty of the capturing officer to provide for the safety of the passengers and crew. All documents and papers relating to a neutral prize should be saved. If practicable, the personal effects of passengers should be saved. Every case of destruction of a neutral prize should be reported promptly to a higher command. (See Appendix H, Form No. 14.)

510 Personnel

The following articles define the legal status of personnel and set forth the action permitted against them under international law.

511 Enemy Warships and Military Aircraft

a. CAPTURED ENEMY PERSONNEL. The offices and crews of captured or destroyed enemy warships and military aircraft (including naval and military auxiliaries) should be made prisoners of war. Persons authorized by a belligerent to accompany his armed forces, though without actually being members thereof, also should be made prisoners of war. Religious, medical, and hospital personnel taken from enemy warships and military aircraft should not be considered prisoners of war, although they may be retained by the belligerent commander, under whose authority they are, to minister to the needs of the prisoners of war.

b. ENEMY WOUNDED AND DEAD. As far as military interests permit, after each engagement all possible measures should be taken without delay to search for and collect the shipwrecked, wounded, and sick; to protect them against pillage and ill-treatment; to ensure their adequate care; and to search for the dead and prevent their being despoiled.

c. QUARTER. It is forbidden to refuse quarter to any enemy who has surrendered in good faith. In particular, it is forbidden either to continue to attack enemy warships and military aircraft which have clearly indicated a readiness to surrender or to fire upon the survivors of such vessels and aircraft who no longer have the means to defend themselves.

512 Enemy Merchant Vessels and Aircraft

The officers and crews of captured enemy merchant vessels and aircraft may be made prisoners of war. Other enemy nationals on board captured enemy merchant vessels and aircraft as private passengers are subject to the discipline of a captor. The officers and crew who are nationals of a neutral State normally are not made prisoners of war. However, if they participate in any acts of resistance against a captor, they may be treated as prisoners of war. The nationals of a neutral State on board captured enemy merchant vessels and aircraft as private passengers should not be made prisoners of war.

If for any reason (see subparagraph 503b3) an enemy merchant vessel or aircraft is rendered liable to attack, either with or without prior warning, the belligerent obligations defined in paragraphs 511b and c apply.

513 Neutral Merchant Vessels and Aircraft


a. OFFICERS AND CREWS. The officers and crews of captured neutral merchant vessels and aircraft who are nationals of a neutral State should not be made prisoners of war.

b. ENEMY NATIONALS. Enemy nationals found on board neutral merchant vessels and aircraft as passengers who are actually embodied in the military forces of an enemy, or who are en route to serve in an enemy’s military forces, or who are employed in the public service of an enemy, or who may be engaged in or suspected of service in the interests of an enemy may be made prisoners of war.

520 Communications

a. COMMUNICATIONS BY NEUTRAL MERCHANT VESSELS AND AIRCRAFT. A neutral merchant vessel or aircraft which, when on or over the high seas, transmits information destined for a belligerent concerning military operations or military forces is liable to capture.

Within the immediate vicinity of his forces, a belligerent commanding officer may exercise control over the communications of any neutral merchant vessel or aircraft whose presence might otherwise endanger the success of the operations. (See Appendix H, Form No. 4.) Legitimate distress communications by neutral vessels and aircraft should be permitted if they do not prejudice the success of such operations. A neutral vessel or aircraft which does not conform to a belligerent’s control exposes itself to the risk of being fired upon and renders itself liable to capture.

b. SUBMARINE TELEGRAPH CABLES. Submarine telegraph cables between points in an enemy’s territory, between points in the territories of enemies, between points in the territory of an enemy and neutral territory, or between points in occupied territory and neutral territory are subject to such treatment as the necessities of war may require. Submarine telegraph cables between two neutral territories should be held inviolable and free from interference.

CHAPTER 6: LEGAL RESTRICTIONS UPON WEAPONS AND METHODS EMPLOYED IN NAVAL WARFARE

600 Scope

This chapter describes the legal limitations governing the employment of weapons and methods in naval warfare. The basic principles which apply in determining the legality of any weapon or method are stated in Section 220. The rules governing the capture and destruction of vessels and aircraft are stated in Article 503.

610 Weapons

The following articles examine the rules of international law governing mines and torpedoes; chemicals, gases, and bacteria; and nuclear weapons.

611 Mines and Torpedoes

The only restrictions laid down by a convention governing the belligerent employment of mines and torpedoes are laid down in Hague Convention No. VIII (1907). Articles 1 through 3 of this Convention read as follows:

Article 1. It is forbidden:

1. To lay unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them;

2. To lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings;

3. To use torpedoes which do not become harmless when they have missed their mark.

Article 2. It is forbidden to lay automatic contact mines off the coast and ports of the enemy, with the sole object of intercepting commercial shipping.

Article 3. When anchored automatic contact mines are employed, every possible precaution must be taken for the security of peaceful shipping.

The belligerents undertake to do their utmost to render these mines harmless within a limited time, and, should they cease to be under surveillance, to notify the danger zones as soon as military exigencies permit, by a notice addressed to ship-owners, which must also be communicated to the Governments through the diplomatic channels.

612 Chemicals, Gases, and Bacteria

a. CHEMICALS. Weapons of chemical types which are at times asphyxiating in nature, such as white phosphorus, smoke, and flame throwers, may be employed. It is equally permissible to use weapons employing fire, such as tracer ammunition, flame throwers, and other incendiary instruments and projectiles.

b. GASES AND BACTERIA. The United States is not a party to any treaty now in force that prohibits or restricts the use in warfare of poisonous or asphyxiating gases or of bacteriological weapons. Although the use of such weapons frequently has been condemned by States, including the United States, it remains doubtful that, in the absence of a specific restriction established by treaty, a State legally is prohibited at present from resorting to their use. However, it is clear that the use of poisonous gas or bacteriological weapons may be considered justified against an enemy who first resorts to the use of these weapons.

[For more recent doctrine on nuclear, chemical and biological weapons see The Commanders Handbook of the Law of Naval Operations.]

613 Nuclear Weapons

There is at present no rule of international law expressly prohibiting States from the use of nuclear weapons in warfare. In the absence of express prohibition, the use of such weapons against enemy combatants and other military objectives is permitted.

620 Bombardment

The term bombardment as used herein includes both naval and aerial bombardment. This section is not concerned with the legal limitations on land bombardment by land forces.

621 General Limitations on Bombardment

a. DESTRUCTION OF CITIES. The wanton destruction of cities, towns, or villages, or any devastation not justified by military necessity are prohibited.

b. NONCOMBATANTS. Belligerents are forbidden to make noncombatants the target of direct attack in the form of bombardment, such bombardment being unrelated to a military objective. However, the presence of noncombatants in the vicinity of military objectives does not render such objectives immune from bombardment for the reason that it is impossible to bombard them without causing indirect injury to the lives and property of noncombatants. In attempting to bombard a military objective, commanders are not responsible for incidental damage done to objects in the vicinity which are military objectives.

c. TERRORIZATION. Bombardment for the sole purpose of terrorizing the civilian population is prohibited.

d. UNDEFENDED CITIES. Belligerents are forbidden to bombard a city or town that is undefended and that is open to immediate entry by own or allied forces.

622 Specific Limitations on Bombardment

a. MEDICAL ESTABLISHMENTS AND UNITS, fixed or mobile, and vehicles of wounded and sick or of medical equipment may not be bombarded or attacked; however, belligerents must ensure that such medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their own safety. The protection afforded ceases if such establishments or units are used to commit harmful acts outside their humanitarian duties and when, after due warning has been given that the performance of harmful acts will remove protection, such warning has remained unheeded. The distinctive emblem—red cross, or red crescent, or the red lion and sun, on a white background—must be hoisted over medical establishments and units entitled to protection.

b. SPECIAL HOSPITAL ZONES established by agreement among the belligerents are immune from bombardment provided that the conditions under which they are required to operate are continually observed.

c. PROTECTED BUILDINGS. Buildings devoted to religion or to art or to charitable purposes, historic monuments, and the like should, as far as possible, be spared from bombardment on condition that they are not used at the same time for military purposes and are properly located (not near a military objective). It is the duty of inhabitants to indicate such places by distinctive and visible signs. This may be done by large, stiff, rectangular panels divided diagonally into two triangular portions—the upper portion black, the lower portion white. There is, however, no requirement to observe these signs or any others indicating inviolability of buildings that are known to be used for military purposes.

623 Warning Before Bombardment


Where a military situation permits, commanders should make every attempt to give prior warning of their intention to bombard a place so that the civilian population in close proximity will have an opportunity to seek safety.

630 Measures of Maritime Warfare Against Trade

This section deals with the three principal measures of maritime warfare against trade: the control and capture of contraband, the imposition of blockade, and the capture or destruction of enemy property found at sea.

631 Contraband

a. CHARACTER. Contraband consists of all goods which are destined for an enemy and which may be susceptible of use in war. Contraband goods are divided into two categories: absolute and conditional. Absolute contraband consists of goods which are used primarily for war (or goods whose very character makes them destined to be used in war). Conditional contraband consists of goods which are equally susceptible of use either for peaceful or for warlike purposes.

b. BELLIGERENT CONTRABAND DECLARATIONS. Upon the initiation of armed conflict, belligerents may declare contraband lists, setting forth therein the classification of articles to be regarded as contraband, as well as the distinction to be made between goods considered as absolute contraband and goods considered as conditional contraband. The precise nature of a belligerent’s contraband list may vary according to the particular circumstances of the armed conflict.

c. CARRIAGE OF CONTABAND

1. Absolute Contraband. Goods consisting of absolute contraband are liable to capture if their destination is the territory belonging to or occupied by an enemy, or the armed forces of an enemy. It is immaterial whether the carriage of such goods is direct, or involves trans-shipment, or transport overland. In the case of absolute contraband, a destination of territory belonging to or occupied by an enemy, or the armed forces of an enemy, is presumed to exist in the following circumstances: when the transporting vessel is to call at an enemy port before arriving at a neutral port for which the goods are documented; when goods are documented to a neutral port serving as a port of transit to an enemy, even though the goods are consigned to a neutral; and when goods are consigned “to order,” or to an unnamed consignee, but destined to a neutral State in the vicinity of enemy territory.

2. Conditional Contraband. Goods consisting of conditional contraband are liable to capture if destined for the use of an enemy government or its armed forces. It is immaterial whether the carriage of such goods is direct, or involves trans-shipment, or transport overland.

d. LIABILITY TO CAPTURE. Vessels and aircraft carrying goods liable to capture as absolute or conditional contraband may be captured (see subparagraph 503d1). However, liability to capture for carriage of contraband ceases once a vessel or aircraft has deposited the contraband goods.

e. EXCEPTIONS TO CONTRABAND. The following goods are exempt from capture as contraband:

1. Free articles, i.e., goods not susceptible of use in war.

2. Articles intended exclusively for the treatment of wounded and sick members of the armed forces, and for the prevention of disease. The particulars concerning the carriage of such articles must be transmitted to the adverse State and approved by it.

3. Articles provided for by a convention (treaty) or by special arrangement as between the belligerents.

632 Blockade

a. DEFINITION. A blockade is a belligerent operation intended to prevent vessels of all States from entering or leaving specified coastal areas which are under the sovereignty, under the occupation, or under the control of an enemy. Such areas may include ports and harbors, the entire coastline, or parts of it. International law does not prohibit the extension of a blockade by sea to include the air space above those portions of the high seas in which the blockading forces are operating.

b. ESTABLISHMENT. In order to be binding, a blockade must be established by the belligerent government concerned. A blockade may be declared either by the government of the blockading State or by the commander of the blockading force acting on behalf of his government. (See Appendix H, Form No. 1.) The declaration should include the date the blockade begins, the geographical limits of the blockade, and the period granted neutral vessels and aircraft to leave the blockaded area.

c. NOTIFICATION. It is customary for the blockade to be notified in a suitable manner to the governments of all States. The commander of the blockading force usually makes notification to local authorities in the blockaded area.

d. EFFECTIVENESS. A blockade, in order to be binding, must be effective. This means that a blockade must be maintained by a force sufficient to render ingress and egress to or from the blockaded area dangerous.

e. LIMITS OF BLOCKADE. A blockade must not bar access or departure from neutral ports or coasts.

f. APPLICATION OF BLOCKADE. A blockade must be applied equally (impartially) to the vessels and aircraft of all States.

g. BREACH OF BLOCKADE. Knowledge of the existence of a blockade is essential to the offenses of breach of blockade and attempted breach of blockade; presumed knowledge is sufficient. (Breach of blockade is the passage of a vessel or aircraft through the blockade.)

1. Attempted Breach of Blockade occurs from the time a vessel or aircraft leaves a port or air take-off point with the intent of evading the blockade. It is immaterial that the vessel or aircraft is at the time of visit bound to a neutral port or airfield, if its ultimate destination is the blockaded area, or if the goods found in its cargo are to be trans-shipped through the blockaded area. There is a presumption of attempted breach of blockade where vessels and aircraft are bound to a neutral port or airfield serving as a point of transit to the blockaded area.

2. Capture. Vessels and aircraft are liable to capture for breach of blockade and attempted breach of blockade (see subparagraph 503d2). The liability of a blockade runner to capture begins and terminates with her voyage or flight. If a vessel or aircraft has succeeded in escaping from a blockaded area, liability to capture continues until the completion of the voyage or flight.

h. SPECIAL PRIVILIGES

1. Neutral warships and neutral military aircraft have no positive right of entry to a blockaded area. However, they may be allowed to enter or leave a blockaded area as a matter of courtesy. Permission to visit a blockaded area is subject to any conditions, such as the length of stay, that the senior officer of the blockading force may deem necessary and expedient.

2. Neutral vessels and aircraft in urgent distress may be permitted to enter a blockaded area, and subsequently to leave it, under conditions prescribed by the commander of the blockading force.

633 Enemy Property

a. ENEMY CHARACTER OF GOODS. The character of goods found on board a merchant vessel or aircraft is enemy if the commercial domicile of the owner is in territory belonging to or occupied by an enemy belligerent. All goods found on board enemy vessels or aircraft are presumed to be of enemy character in the absence of proof of their neutral character.

b. ENEMY GOODS IN TRANSIT. Notwithstanding any transfer of title to enemy goods already at sea, these goods retain their enemy character.

c. CAPTURE OF ENEMY GOODS. Goods possessing enemy character may be captured. However, enemy goods (contraband excepted) found in neutral vessels or aircraft, normally are not liable to capture.

640 Stratagems and Treachery

a. STRATAGEMS, OR RUSES OF WAR, are legally permitted. In particular, according to custom, it is permissible for a belligerent warship to use false colors and to disguise her outward appearance in other ways in order to deceive an enemy, provided that prior to going into action such warship shows her true colors.

b. ACTS OF TREACHERY, whether used to kill, wound, or otherwise obtain an advantage over an enemy, are legally forbidden. It is, for example, an act of treachery to make improper use of a flag of truce.

641 Improper Use of Distinctive Emblems

The use of the red cross and other equivalent distinctive emblems must be limited to the indication and protection of hospital ships and other authorized medical craft, medical aircraft, medical units and establishments, and medical personnel and materials. It is forbidden to use ships, aircraft, and establishments that are protected by the distinctive emblem of the red cross or other equivalent distinctive emblems, for any military purpose.


[End of main body of text. See above links to appendices located in table of contents.]


Source: Department of the Navy. Office of the Chief of Naval Operations. Law of Naval Warfare, NWIP 10-2. September 1955. Washington, DC: US Government Printing Office, 1959.