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XIII Naval Warfare

Chapter Contents

13.1 Introduction 13.2 Legal Boundaries of the Oceans 13.3 Overview of Rules for Naval Engagements 13.4 Enemy Warships 13.5 Enemy Merchant Vessels 13.6 Enemy Vessels Exempt From Capture or Destruction 13.7 Submarine Warfare 13.8 Belligerent Control of the Immediate Area of Naval Operations 13.9 Maritime and Airspace Zones: Exclusion, War, Operational, Warning, and

Safety 13.10 Blockade 13.11 Naval Mines 13.12 Torpedoes 13.13 Deception by Naval Forces, Including the Use of Enemy or Neutral Flags

13.1 INTRODUCTION

This Chapter addresses the law of war rules that apply to naval operations, especially those aspects of naval warfare that differ from warfare on land or in the air. This Chapter also briefly addresses the legal boundaries of the ocean, which may be relevant to the application of the law of war.

Navy publications have provided discussion of other public international law relating to naval operations, including discussion of the law of the sea applicable during peacetime.1

Some topics that are related to neutrality law and that are relevant to the conduct of both naval and air warfare, such as the conduct of visit and search and neutral commerce, are addressed in Chapter XV, the Law of Neutrality.2

The Law of the Sea During Armed Conflict. The law of the sea is a body of treaty 13.1.1and customary international law. Its rules have been developed principally with peacetime situations in mind. Nothing in the law of the sea impairs a States inherent right of individual or collective self-defense, or rights during armed conflict.3

1 See, e.g., 2007 NWP 1-14M; 1997 NWP 9; 1989 NWP 9. 2 Refer to 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft); 15.12 (Neutral Commerce and Carriage of Contraband). 3 Responses of Rear Admiral John E. Crowley, Chief Counsel and Judge Advocate General, U.S. Coast Guard, to Additional Questions for the Record Submitted by Senator Joseph R. Biden, Jr., SENATE EXECUTIVE REPORT 108-10, United Nations Convention on the Law of the Sea, 108th Congress, Second Session, 170, 172 (Mar. 11, 2004) (It should also be noted that nothing in the Convention restricts the inherent right of individual or collective self-defense or rights during armed conflict, and the administration is recommending that the United States express such

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For example, the law of the sea provides that the high seas are reserved for peaceful purposes.4 However, the use of the high seas for peaceful purposes is understood not to impose restraints upon military operations that would otherwise be consistent with international law, or to impair a States inherent right of self-defense.5 The use of outer space for peaceful purposes also has been interpreted in this way.6

As another example, certain rights under the law of the sea (e.g., certain rights of navigation of vessels, or rights of States with respect to exclusive economic zones) must be exercised with due regard for the rights and duties of other States.7 To the extent this obligation applies during armed conflict, what regard would be due would depend on military necessity and other principles and rules of the law of war, which are specially adapted to the circumstances of armed conflict.8

The United States and the LOS Convention. The U.N. Convention on the Law of 13.1.2the Sea (LOS Convention) was opened for signature on December 10, 1982.9

The United States is not a Party to the LOS Convention. The United States did not sign the LOS Convention when it opened for signature because of several major problems in the Conventions deep seabed mining provisions.10 However, in 1983, the United States announced that it was prepared to accept and act in accordance with the balance of interests reflected in the LOS Convention relating to traditional uses of the oceans such as navigation and overflight and that the United States would exercise and assert its navigation and overflight rights and an understanding.); William H. Taft, Legal Adviser, Department of State, Response to an Additional Question from Senator Inhofe, United Nations Convention on the Law of the Sea: Hearing Before the Committee on Environment and Public Works, U.S. Senate, 108th Congress, Second Session, 77 (Mar. 23, 2004) (As stated in the resolution of advice and consent now before the Senate, nothing in the Convention impairs the inherent right of individual or collective self-defense or rights during armed conflict.). 4 Consider LOS CONVENTION art. 88 (The high seas shall be reserved for peaceful purposes.). 5 CommentaryThe 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part XI, 94 in MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (Article 88 reserves the high seas for peaceful purposes, while articles 141 and 155(2) reserves the Area [which is defined in the LOS Convention art. 1(1) as the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction;] for peaceful purposes. None of these provisions creates new rights or obligations, imposes restraints upon military operations, or impairs the inherent right of self-defense, enshrined in article 51 of the United Nations Charter. More generally, military activities which are consistent with principles of international law are not prohibited by these, or any other provisions of the Convention.). 6 Refer to 14.10.4 (General Use of Outer Space for Peaceful Purposes). 7 Refer to 13.2.3.3 (Exclusive Economic Zones (EEZs)); 13.2.3.4 (High Seas). 8 Refer to 1.3.2 (The Law of Wars Relationship to Other Bodies of Law). 9 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 397. 10 Ronald Reagan, Statement on United States Oceans Policy, Mar. 10, 1983, 1983-I PUBLIC PAPERS OF THE PRESIDENTS 378 (Last July, I announced that the United States will not sign the United Nations Law of the Sea Convention that was opened for signature on December 10. We have taken this step because several major problems in the Convention's deep seabed mining provisions are contrary to the interests and principles of industrialized nations and would not help attain the aspirations of developing countries. However, the convention also contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states.).

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freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the LOS Convention.11 For example, consistent with the LOS Convention, the United States has claimed a 12-nautical mile territorial sea.12 Similarly, the United States has established a contiguous zone extending 24 nautical miles from the baselines of the United States determined in accordance with international law, but in no case within the territorial sea of another nation.13

The Agreement on the Implementation of Part XI of the LOS Convention was adopted on August 17, 1994.14 Because this agreement addressed the objections that the United States previously expressed to Part XI of the LOS Convention, President Clinton recommended that the Senate give its advice and consent to accession to the LOS Convention and to ratification of the Agreement on the Implementation of Part XI.15 Subsequent administrations have also supported U.S. accession to the LOS Convention and the ratification of the Agreement on the Implementation of Part XI of the LOS Convention.16

13.2 LEGAL BOUNDARIES OF THE OCEANS

The legal classifications of ocean areas may be relevant to the application of the law of war and therefore affect military operations during armed conflict by, for example:

11 Ronald Reagan, Statement on United States Oceans Policy, Mar. 10, 1983, 1983-I PUBLIC PAPERS OF THE PRESIDENTS 378, 379 (First, the United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans - such as navigation and overflight. In this respect, the United States will recognize the rights of other States in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states. Second, the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Convention. The United States will not, however, acquiesce in unilateral acts of other States designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.). 12 Refer to 13.2.2.2 (Territorial Seas). 13 Refer to 13.2.3.2 (Contiguous Zones). 14 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, annex to U.N. General Assembly Resolution 48/263, U.N. Doc. A/RES/48/263 (Aug. 17, 1994). 15 William J. Clinton, Letter of Transmittal, Oct. 7, 1994, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION 1 (As described in the report by the Secretary of State, the Agreement meets the objections the United States and other industrialized nations previously expressed to Part XI. It promises to provide a stable and internationally recognized framework for mining to proceed in response to future demand for minerals. I therefore recommend that the Senate give early and favorable consideration to the Convention and to the Agreement and give its advice and consent to accession to the Convention and to ratification of the Agreement.). 16 See, e.g., George W. Bush, Statement on the Advancement of United States Maritime Interests, May 15, 2007, 2007-I PUBLIC PAPERS OF THE PRESIDENTS 583 (First, I urge the Senate to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea during this session of Congress. Joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.); Barack Obama, National Security Strategy 50 (May 2010) (As one key effort in the sea domain, for example, we will pursue ratification of the United Nations Convention on the Law of the Sea.).

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determining the legal boundaries of airspace above those waters;17

determining whether waters are neutral waters;18

determining the authority that a belligerent State has with respect to neutral vessels in an area;19 or

determining the authority that a neutral State has with respect to belligerent vessels in an area.20

Waters are often divided analytically between national waters (i.e., internal waters, territorial seas, and archipelagic waters), which are subject to the sovereignty of a State, and international waters, which are not subject to the sovereignty of any State.21 In addition, special rules apply to international straits and archipelagic sea lanes.22

Territory Notes on Terminology. In some cases, the word territory is used to 13.2.1describe the land, waters, and airspace subject to the sovereignty of a State.23 In other cases, the word territory is used to describe only the land that is subject to the sovereignty of a State.24

Thus, in describing waters that are not subject to the sovereignty of a State (e.g., the exclusive economic zone and continental shelf, and high seas), the word territory should not be used. Coastal States may exercise limited sovereign rights over specific functional areas in the exclusive economic zone and on the continental shelf, but these rights do not imply sovereignty over these areas.25

17 Refer to 14.2 (Legal Boundaries of Airspace). 18 Refer to 15.7.1 (Waters That Are Considered Neutral). 19 Refer to, e.g., 13.11.3.5 (Restrictions on Where Naval Mines May Be Placed); 13.10.2.5 (Limitations on the Scope of the Blockade). 20 Refer to, e.g., 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea Lanes). 21 Refer to 13.2.2 (National Waters); 13.2.3 (International Waters). 22 Refer to 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea Lanes). 23 See, e.g., The Ann, 1 F. Cas. 926, 926-27 (C.C.D. Mass. 1812) (Story, J.) (As the Ann arrived off Newburyport, and within three miles of the shore, it is clear that she was within the acknowledged jurisdiction of the United States. All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot, or marine league, over the waters adjacent to its shores, and this doctrine has been recognized by the supreme court of the United States. Indeed such waters are considered as a part of the territory of the sovereign.) (internal citations omitted). 24 See, e.g., 1955 NWIP 10-2 421 (According to established international law, each State has exclusive legal control (jurisdiction) in the air space above its territory, internal waters, and territorial sea.). 25 See CommentaryThe 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part XI, 24, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (Article 56 enumerates the rights of the coastal State in the EEZ. Article 56(1)(a) establishes the sovereign rights of the coastal State. Article 56(1)(b) sets forth the nature and scope of coastal State jurisdiction with respect to specific matters.

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National Waters. National waters, which are subject to the sovereignty of a State, 13.2.2include internal waters, territorial seas, and archipelagic waters.

13.2.2.1 Internal Waters. A State has sovereignty over its internal waters.26 Internal waters are generally understood to be those waters on the landward side of the baseline of the territorial sea.27 The coastal baseline must be defined in accordance with specific rules of international law as reflected in the LOS Convention.28

13.2.2.2 Territorial Seas. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.29

The United States has claimed a 12-nautical mile territorial sea and recognizes territorial sea claims of other nations up to a maximum breadth of 12 nautical miles.30 Previously, the The terms sovereign rights and jurisdiction are used to denote functional rights over these matters and do not imply sovereignty. A claim of sovereignty in the EEZ would be contradicted by the language of articles 55 and 56 and precluded by article 58 and the provisions it incorporates by reference.); id. at 55 (Article 77 reiterates that the coastal State has sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. The sovereign rights of the coastal State are balanced with provisions protecting the freedom of navigation and the other rights and freedoms of other States from infringement or unjustifiable interference by the coastal State. Under article 78, rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the airspace above those waters.). 26 Convention on the Territorial Sea and Contiguous Zone, art. 1, Apr. 29, 1958, 516 UNTS 205, 207-08 (1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea. 2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.). Consider LOS CONVENTION art. 2 (1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.). 27 Convention on the Territorial Sea and Contiguous Zone, art. 5, Apr. 29, 1958, 516 UNTS 205, 210 (1.Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.). Consider LOS CONVENTION art. 8(1) (Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.). 28 Consider LOS CONVENTION art. 5 (Except where otherwise provided in this Convention, the normal baseline 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.). 29 Convention on the Territorial Sea and Contiguous Zone, art. 1, Apr. 29, 1958, 516 UNTS 205, 207-08 (1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea. 2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.). Consider LOS CONVENTION art. 2 (1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.). 30 See Ronald Reagan, Proclamation 5928: Territorial Sea of the United States of America, Dec. 27, 1988, 54 FEDERAL REGISTER 777 (Jan. 9, 1989) (The territorial sea of the United States henceforth extends to 12 nautical miles from the baselines of the United States determined in accordance with international law.). Consider LOS CONVENTION art. 3 (Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.).

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United States claimed a three-nautical mile territorial sea.31 This claim was made in the context of asserting the rights of the United States as a neutral State.32

Coastal States often make specific maritime claims, but the United States does not recognize those maritime claims that are not in conformity with customary international law, as reflected in the LOS Convention.33

13.2.2.3 Archipelagic Waters. An archipelagic States sovereignty extends to certain waters enclosed by archipelagic baselines drawn in accordance with the LOS Convention.34

An archipelago means a group of islands, including parts of islands, interconnecting water, and other natural features that are so closely interrelated that they form an intrinsic

31 Thomas Jefferson, Secretary of State, Letter to the British Minister Mr. Hammond (Nov. 8, 1793), I MOORES DIGEST 702-03 (The President of the United States thinking that before it shall be finally decided to what distance from our sea shores the territorial protection of the United States shall be exercised, it will be proper to enter into friendly conferences and explanations with the powers chiefly interested in the navigation of the seas on our coasts, and relying that convenient occasions may be taken for these hereafter, finds it necessary in the mean time, to fix provisionally on some distance for the present government of these questions. Reserving, however, the ultimate extent of this for future deliberation, the President gives instructions to the officers acting under his authority to consider those heretofore given them as restrained for the present to the distance of one sea league or three geographical miles from the sea-shores. This distance can admit of no opposition, as it is recognized by treaties between some of the powers with whom we are connected in commerce and navigation, and is as little, or less, than is claimed by any of them on their own coasts.). 32 See, e.g., Douglas W. Kmiec, Acting Assistant Attorney General, Legal Issues Raised by the Proposed Presidential Proclamation to Extend the Territorial Sea, Oct. 4, 1988, 12 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 238, 244 (1988) (The primary example, of course, is the first claim of a three-mile territorial sea made on behalf of the United States by then-Secretary of State Jefferson in 1793. France, Great Britain, and Spain -- all of which held territory in North America -- were engaged in maritime hostilities off our Atlantic coast, an extension of wars ongoing in Europe. As part of an effort to undermine our policy of neutrality, France pressured us to state the extent of our territorial sea.); United States v. California, 332 U.S. 19, 33 note 16 (1947) ([S]hortly after we became a nation our statesmen became interested in establishing national dominion over a definite marginal zone to protect our neutrality. Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacent nation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted throughout the world, although as late as 1876 there was still considerable doubt in England about its scope and even its existence.). 33 DEPARTMENT OF DEFENSE MANUAL 2005.1-M, Maritime Claims Reference, 2 (Jun. 23, 2005) (The maritime claims references in this Manual represent claims made by the coastal nations. Some of the claims are inconsistent with international law. The United States does not recognize those maritime claims that are not in conformity with customary international law, as reflected in the 1982 United Nations Law of the Sea Convention. Examples include excessive straight baseline claims, territorial sea claims in excess of 12 nautical miles (nm), and other claims that unlawfully impede freedom of navigation and overflight.). 34 Consider LOS CONVENTION art. 49(1) (The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth and distance from the coast.); LOS CONVENTION art. 47 (An archipelagic State may draw straight archipelagic baselines joining the outermost posts of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.).

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geographic, economic, and political entity or that historically have been regarded as such.35 An archipelagic State means a State constituted wholly by one or more archipelagos and may include other islands.36 The Philippines and Indonesia are examples of archipelagic States.37

13.2.2.4 Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters. During peacetime, all ships enjoy a right of innocent passage through territorial seas and archipelagic waters.38 A Coastal State, however, has a right of protection, which includes the right to suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security.39

During armed conflict, the right of innocent passage would not apply between belligerent States. During armed conflict, belligerent States may restrict the right of neutral vessels to conduct innocent passage through territorial seas and archipelagic waters belonging to a belligerent State, such as by establishing maritime zones.40 During armed conflict, neutral States may regulate, and even prohibit, belligerent warships and prizes from entering their territorial seas and archipelagic waters.41

International Waters. International waters, which are not subject to the 13.2.3sovereignty of any State, include contiguous zones, exclusive economic zones (EEZs), and the high seas. These waters, which are seaward of the territorial sea, are waters in which States have certain freedoms, such as freedom of navigation and overflight.

35 Consider LOS CONVENTION art. 46(b) (archipelago means a group of islands, including parts of islands, interconnecting water and other natural features which are so closely interrelated that [they] form an intrinsic geographic, economic, and political entity or which historically have been regarded as such.). 36 Consider LOS CONVENTION art. 46(a) (archipelagic State means a State constituted wholly by one or more archipelagos and may include other islands;). 37 CommentaryThe 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part XI, 22, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (A State may enclose archipelagic waters within archipelagic baselines that satisfy the criteria specified in Article 47. Depending on how the archipelagic baseline system is established, the following 20 States could legitimately claim archipelagic waters: Antigua & Barbuda, The Bahamas, Cape Verde, Comoros, Fiji, Grenada, Indonesia, Jamaica, Kiribati (in part), Maldives, Marshall Islands (in part), Papua New Guinea, Philippines, Saint Vincent and the Grenadines, Sao Tome & Principe, Seychelles, Solomon Islands (five archipelagos), Tonga, Trinidad & Tobago, and Vanuatu.). 38 Consider LOS CONVENTION art. 17 (Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.); LOS CONVENTION art. 52 (1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3.). 39 Consider LOS CONVENTION art. 25(3) (The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.). 40 Refer to 13.9.4 (Use of Zones to Prevent Movement Exclusion Zones). 41 Refer to 15.7.2 (A Neutral States Regulations Concerning Belligerent Warships and Prizes in Its Waters).

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13.2.3.1 High Seas Freedoms. States may exercise certain freedoms on the high seas, such as freedom of navigation and freedom of overflight.42 For example, the high seas freedoms that warships may exercise include: task force maneuvering, flight operations, military exercises, surveillance, intelligence gathering activities, and ordnance testing and firing.43 These rights and freedoms must be exercised with due regard for the interests of other States in their exercise of the freedom of the high seas and other applicable rights.44

Within a States EEZ, other States enjoy high seas freedoms of navigation and overflight, and other rights, but must exercise those rights with due regard for the rights and duties of the coastal State.45

13.2.3.2 Contiguous Zones. A contiguous zone is an area extending seaward from the territorial sea to a maximum distance of 24 nautical miles from the baseline, in which the coastal State may exercise the control necessary to prevent or punish infringement of its customs, fiscal, immigration, and sanitary laws and regulations that occurs within its territory or territorial sea.46

42 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82, 83-84 (Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non coastal states: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas.). Consider LOS CONVENTION art. 87(1) (The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII.). 43 2007 NWP 1-14M 2.6.3 (All ships and aircraft, including warship and military aircraft, enjoy complete freedom of movement and operation on and over the high seas. For warships, this includes task force maneuvering, flight operations, military exercises, surveillance, intelligence gathering activities, and ordnance testing and firing.); 1997 NWP 9 2.4.3 (same); 1989 NWP 9 2.4.3 (same). 44 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82, 84 (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 interests of other States in their exercise of the freedom of the high seas.). Consider LOS CONVENTION art. 87(2) (These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.). 45 Consider LOS CONVENTION art. 58 (1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.). 46 Convention on the Territorial Sea and Contiguous Zone, art. 24, Apr. 29, 1958, 516 UNTS 205, 220 (1. In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to: (a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b)

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The United States has established a contiguous zone extending 24 nautical miles from the baselines of the United States determined in accordance with international law, but in no case within the territorial sea of another nation.47

13.2.3.3 Exclusive Economic Zones (EEZs). An Exclusive Economic Zone (EEZ) is a zone of limited, generally resource-related rights and jurisdiction adjacent to the territorial sea and may not extend beyond 200 nautical miles from the baseline.48 The United States has established an exclusive economic zone.49

Although a coastal State does not have sovereignty over its EEZ, it has certain, generally economic rights over these areas that must be exercised with due regard for the rights and duties of other States, such as the high seas freedoms of other States.50

13.2.3.4 High Seas. International law regarding the high seas applies to all parts of the sea that are not included in the EEZ, territorial sea, internal waters, or archipelagic waters Punish infringement of the above regulations committed within its territory or territorial sea.). Consider LOS CONVENTION art. 33 (1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.). 47 William J. Clinton, Proclamation 7219: Contiguous Zone of the United States, Aug. 2, 1999, 64 FEDERAL REGISTER 48701 (Aug. 8, 1999) (The contiguous zone of the United States extends to 24 nautical miles from the baselines of the United States determined in accordance with international law, but in no case within the territorial sea of another nation.). 48 Consider LOS CONVENTION art. 55 (The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.); LOS CONVENTION art. 57 (The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.). 49 Ronald Reagan, Proclamation 5030: Exclusive Economic Zone of the United States of America, Mar. 10, 1983, 97 STAT. 1557 (The Exclusive Economic Zone of the United States is a zone contiguous to the territorial sea, including zones contiguous to the territorial sea of the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands (to the extent consistent with the Covenant and the United Nations Trusteeship Agreement), and United States overseas territories and possessions. The Exclusive Economic Zone extends to a distance 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. In cases where the maritime boundary with a neighboring State remains to be determined, the boundary of the Exclusive Economic Zone shall be determined by the United States and other State concerned in accordance with equitable principles.). 50 Consider LOS CONVENTION art. 56 (1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention. 2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.).

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of an archipelagic State.51 No State may validly purport to subject any part of the high seas to its sovereignty.52 States may exercise certain freedoms on the high seas, such as freedom of navigation and freedom of overflight.53

Chart Illustrating the Legal Boundaries of the Oceans and Airspace. This chart, 13.2.4reproduced from the 2007 Commanders Handbook on the Law of Naval Operations, seeks to summarize the maximum permissible claims of States with respect to the boundaries of the oceans and airspace, as reflected in the LOS Convention.54

51 Convention on the High Seas, art. 1, Apr. 29, 1958, 450 UNTS 82 (The term high seas means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.). Consider LOS CONVENTION art. 86 (The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.). 52 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82 (The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.). Consider LOS CONVENTION art. 89 (No State may validly purport to subject any part of the high seas to its sovereignty.). 53 Refer to 13.2.3.1 (High Seas Freedoms). 54 2007 NWP 1-14M 1.3, Figure 1-1. See also CommentaryThe 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part XI, 4, Figure 1, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION; JOINT PUBLICATION 3-32, Command and Control for Joint Maritime Operations, I-7, Figure I-1 (Aug. 7, 2013); JUDGE ADVOCATE GENERALS LEGAL CENTER & SCHOOL, INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, OPERATIONAL LAW HANDBOOK 160 (2013).

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13.3 OVERVIEW OF RULES FOR NAVAL ENGAGEMENTS

In general, the rules for conducting attacks, such as bombardments, by naval forces are the same as those for land or air forces.55

Areas of Naval Warfare. As a general rule, naval forces may attack military 13.3.1objectives wherever located outside neutral territory.56 In certain cases (e.g., involving belligerent use of neutral territory as a base of operations), hostilities may be conducted in neutral territory to redress violations of neutrality.57

Classification of Vessels. The law of land warfare has divided enemy nationals 13.3.2into different categories in order to facilitate the protection of the civilian population from hostilities.58 Similarly, the law of naval warfare has sought to classify enemy vessels to protect those that are civilian or non-combatant in character.

In general, all vessels of an enemy State may be understood to fall into one of three classes: (1) warships and naval and military auxiliaries; (2) merchant vessels; and (3) exempt vessels.

Warships and naval and military auxiliaries are generally liable to attack and capture.59 Merchant vessels are generally liable to capture, but are liable to attack if they forfeit their protection.60 Exempt vessels are not liable to capture or attack, unless they forfeit their protection.61

Vessels Entitled to Conduct Attacks. During international armed conflict at sea, 13.3.3warships are the only vessels that are entitled to conduct attacks.62

Other vessels, such as auxiliary vessels and merchant vessels, are not entitled to conduct attacks in offensive combat operations.63 All vessels, however, may defend themselves (including resisting attacks by enemy forces).64

55 Refer to 5.5 (Rules on Conducting Assaults, Bombardments, and Other Attacks). 56 Refer to 15.3.1.2 (Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of Neutrality). 57 Refer to 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent Violations of Neutrality). 58 Refer to 4.2 (The Armed Forces and the Civilian Population). 59 Refer to 13.4 (Enemy Warships). 60 Refer to 13.5 (Enemy Merchant Vessels). 61 Refer to 13.6 (Enemy Vessels Exempt From Capture or Destruction). 62 See 1955 NWIP 10-2 500e (At sea, only warships and military aircraft may exercise belligerent rights.). 63 2013 GERMAN MANUAL 1020 (The following vessels and persons may not perform acts of naval warfare: - state ships other than warships, even when carrying out support services for the naval forces, - merchant ships, -

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13.3.3.1 Entitlement of Vessels to Conduct Attacks During Non-International Armed Conflict. The United States is not a Party to any treaties that would prohibit the use of warships and auxiliaries in non-international armed conflict, nor has the United States recognized such a prohibition in customary international law. Accordingly, State vessels other than warships may be used to conduct attacks against non-State armed groups during non-international armed conflict.65 For example, international law does not prohibit auxiliaries from conducting attacks in a non-international armed conflict. Similarly, a State may use its law enforcement authorities to address insurgent groups, and there would be no objection to using a law enforcement vessel as part of operations against insurgents.66

In some cases, the acts of hostility by insurgents on the high seas may be regarded as piracy.67

Shipwrecked Persons. Shipwrecked persons are hors de combat, and may not be 13.3.4made the object of attack.68 Shipwrecked persons include personnel involved in forced landings

fishing vessels and other civilian ships, - prize crews of captured ships, - state aircraft other than military aircraft and - civilian aircraft. The crews of all ships and aircraft are, however, entitled to defend themselves against attacks by enemy armed forces.); 1992 GERMAN MANUAL 1016 (The following vessels and persons may not perform acts of naval warfare: - state ships other than warships, even when carrying out support Services for the naval forces, - state aircraft other than military aircraft, - merchant ships, - fishing boats and other civil ships, - civil aircraft, and - prize crews of captured ships. The crews of all ships and aircraft are, however, entitled to defend themselves against attacks by enemy forces.). 64 See Institute of International Law, Manual of the Laws of Naval War, art. 12 (1913) (Apart from the conditions laid down in Articles 3 [regarding the conversion of public and private vessels into war-ships] and following, neither public nor private vessels, nor their personnel, may commit acts of hostility against the enemy. Both may, however, use force to defend themselves against the attack of an enemy vessel.). Refer to 4.16.1 (Merchant or Civil Crews - Conduct of Hostilities). 65 Wolff Heintschel von Heinegg, Methods and Means of Naval Warfare in Non-International Armed Conflicts, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 211, 219 (2012) (Under the law of international armed conflict, only warships are entitled to exercise belligerent rights. This rule goes back to the prohibition of privateering under the 1856 Paris Declaration. Warships are those vessels that meet the criteria set forth in Articles 2-5 of the 1907 Hague Convention VII, Article 8(2) of the 1958 High Seas Convention and Article 29 of the LOS Convention. Limitations on the exercise of belligerent rights are most important with regard to interference with neutral navigation and aviation; thus, neutral vessels and aircraft must accede to such interference only if the measures are taken by warships. No such limitation applies to non-international armed conflicts vis--vis the parties. It follows from the object and purpose of the rule limiting the exercise of belligerent rights under the law of naval warfarei.e., the transparent entitlement of the warshipthat the non-State actor will obviously not have ships that meet the criteria for classification as a warship since one of the criteria is that it be a State vessel. The government forces may make use of any vessel or aircraft, including, for example, those used for law enforcement and customs enforcement, in the conduct of hostilities.). 66 Refer to 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups). 67 The Three Friends, 166 U.S. 1 (1897) (Belligerency is recognized when a political struggle has attained a certain magnitude and affects the interests of the recognizing power; and in the instance of maritime operations, recognition may be compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates.). 68 Refer to 5.10.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or Shipwreck).

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at sea by or from aircraft, but do not include, for example, combatant personnel engaged in attacks.69

As far as military exigencies permit, after each naval engagement, all possible measures should be taken without delay to search for and collect the wounded, sick, and shipwrecked, and to recover the dead.70

Surrender by Enemy Vessels. The general rules on the protection of persons hors 13.3.5de combat, including the rule prohibiting the attack of persons who have surrendered, also apply to enemy vessels.71 In particular, it is forbidden to make an enemy vessel the object of attack if it has genuinely, clearly, and unconditionally surrendered, in circumstances in which it is feasible to accept such surrender.72

Once an enemy vessel has clearly indicated a readiness to surrender, the attack must be discontinued.73 Indicia of surrender by vessels may include:

hauling down her flag;

hoisting a white flag;74

surfacing (in the case of submarines);75

stopping engines and responding to the attackers signals;76 or

69 Refer to 7.3.1.2 (Shipwrecked). 70 Refer to 7.4.1 (GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked, and Dead). 71 Refer to 5.10.3 (Persons Who Have Surrendered). 72 2007 NWP 8.6.1 (It is forbidden, however, to target an enemy warship or military aircraft that in good faith unambiguously and effectively conveys a timely offer of surrender.); 1955 NWIP 511c (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.). 73 2007 NWP 1-14M 8.6.1 (Once an enemy warship has clearly indicated a readiness to surrender, such as by hauling down her flag, by hoisting a white flag, by surfacing (in the case of submarines), by stopping engines and responding to the attackers signals, or by taking to lifeboats, the attack must be discontinued.). 74 Refer to 12.4 (The White Flag of Truce to Initiate Negotiations). 75 W.T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL AND LIMITED WARS 134 (1968) (The duty to give quarter is, of course, the same in submarine warfare as it is in other naval warfare. There are undoubtedly unusual problems which occur concerning manifestations of surrender in submarine warfare. A submarine even when fully surfaced lies low in the water. There may be, consequently, particular difficulties in observing a submarine's manifestation of surrender. Where a submarine is forced to the surface following depth charging, it seems reasonable that the submarine's commander should be given an opportunity to surrender unless an unequivocal intention of fighting it out on the surface is manifested. The attempt of a surface ship to indicate surrender to a submerged submarine also raises problems. For example, it is clear that the submerged submarine at periscope depth has only limited visibility.).

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taking to lifeboats.

13.4 ENEMY WARSHIPS

Enemy warships and naval and military auxiliaries are subject to attack, destruction, or capture anywhere beyond neutral territory.

Character of Warships. A warship is generally understood to be a ship belonging 13.4.1to the armed forces of a State bearing the external markings distinguishing the character and nationality of such ships, under the command of an officer duly commissioned by the government of that State and whose name appears in the appropriate service list of officers, and manned by a crew that is under regular armed forces discipline.77

Warships are generally understood to possess certain privileges and immunities from the jurisdiction of other States.78

Attacks Against Enemy Warships. In general, enemy warships are military 13.4.2objectives.79 However, warships that have surrendered or that are exempt vessels may not be made the object of attack.80

Captured Enemy Warships No Prize Procedure. Prize procedures are not used 13.4.3for captured enemy warships because their ownership vests immediately in the captors

76 Trial of Helmuth von Ruchteschell, Outline of the Proceedings, IX U.N. LAW REPORTS 82 (British Military Court, Hamburg, May 5-21, 1947) (The captain of the Davisian stopped his engines, hoisted an answering pennant and acknowledged the signal. In spite of this, the raiders firing continued for 15 minutes, wounding 8 or 10 of the crew of the Davisian, whilst they were trying to abandon ship [by taking to lifeboats].). 77 Convention on the High Seas, art. 8, Apr. 29, 1958, 450 UNTS 82, 86 (1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. 2. For the purposes of these articles, the term warship means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.). Consider LOS CONVENTION art. 29 (For the purposes of this Convention, warship means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.). 78 See, e.g., The Schooner Exch. v. McFaddon, 11 U.S. 116, 144 (1812) (But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity. The implied license therefore under which such vessel enters a friendly port, may reasonably be construed, and it seems to the Court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign, within whose territory she claims the rites of hospitality.). Consider LOS CONVENTION art. 95 (Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.). 79 Refer to 5.7.4 (Objects Categorically Recognized as Military Objectives). 80 Refer to 13.3.5 (Surrender by Enemy Vessels); 13.6 (Enemy Vessels Exempt From Capture or Destruction).

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government by the fact of capture.81 As public movable property, warships are seizable as war booty.82 Similarly, prize procedures are not used for captured enemy military aircraft.83

13.5 ENEMY MERCHANT VESSELS

Capture of Enemy Merchant Vessels. Enemy merchant vessels may be captured 13.5.1wherever located beyond neutral territory. Prior exercise of visit and search is not required, provided positive determination of enemy status can be made by other means.84

13.5.1.1 Captured Enemy Merchant Vessels Notes on Terminology. A captured neutral or enemy merchant vessel is called a prize.

13.5.1.2 Use of Prize Procedures to Complete Transfer of Title. Prize procedures are usually used to complete the transfer of title of captured property, such as enemy merchant ships.85

13.5.1.3 Destruction of Captured Enemy Merchant Vessels. When military circumstances preclude sending or taking in such vessel or aircraft for adjudication as an enemy prize, it may be destroyed after all possible measures are taken to provide for the safety of passengers and crew.86 Documents and papers relating to the prize should be safeguarded and, if

81 1955 NWIP 10-2 503a(2) (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 captors government by the fact of capture.). 82 Refer to 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)). 83 Refer to 14.5.3 (Capture of Aircraft and Goods on Board Aircraft). 84 2007 NWP 1-14M 8.6.2.1 (Enemy merchant vessels and civil aircraft may be captured wherever located beyond neutral territory. Prior exercise of visit and search is not required, provided positive determination of enemy status can be made by other means.). 85 See, e.g., LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 482 (192) (It has already been stated above that the capture of a private enemy vessel has to be confirmed by a Prize Court, and that it is only through its adjudication that the vessel becomes finally appropriated.); Oakes v. United States, 174 U.S. 778, 786-87 (1899) (By the law of nations, recognized and administered in this country, when movable property in the hands of the enemy, used, or intended to be used, for hostile purposes, is captured by land forces, the title passes to the captors as soon as they have reduced the property to firm possession; but when such property is captured by naval forces, a judicial decree of condemnation is usually necessary to complete the title of the captors.). 86 2007 NWP 1-14M 8.6.2.1 (When military circumstances preclude sending or taking in such vessel or aircraft for adjudication as an enemy prize, it may be destroyed after all possible measures are taken to provide for the safety of passengers and crew.); 1955 NWIP 10-2 503b(2) (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.).

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practicable, the personal effects of passengers should be saved.87 Every case of destruction of a captured enemy prize should be reported promptly to higher command.88

The destruction of neutral prizes involves similar procedures, but a more serious responsibility.89

Attack of Enemy Merchant Vessels. Enemy merchant vessels may be made the 13.5.2object of attack, outside neutral territory, if they constitute a military objective.90

In particular, enemy merchant vessels may be attacked and destroyed by warships, either with or without prior warning, in any of the following circumstances:91

persistently refusing to stop upon being duly summoned to do so;

actively resisting visit and search or capture;

sailing under convoy of enemy warships or enemy military aircraft;

armed with systems or weapons beyond that required for self-defense against terrorist, piracy, or like threats;

if incorporated into, or assisting, the enemys military intelligence system;

if acting in any capacity as a naval or military auxiliary to an enemys armed forces; or

if otherwise integrated into the enemys war-fighting/war-sustaining effort such that a belligerent warships compliance with the rules of the 1936 London Protocol would,

87 1955 NWIP 10-2 503b(2) (All documents and papers relating to an enemy prize should be saved. If practicable, the personal effects of passengers should be saved.). 88 1955 NWIP 10-2 503b(2) (Every case of destruction of an enemy prize should be reported promptly to higher command.). 89 Refer to 15.15.3 (Destruction of Neutral Prizes). 90 Refer to 5.7 (Military Objectives). 91 2007 NWP 1-14M 8.6.2.2 (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. Persistently refusing to stop upon being duly summoned to do so 2. Actively resisting visit and search or capture 3. Sailing under convoy of enemy warships or enemy military aircraft 4. If armed with systems or weapons beyond that required for self-defense against terrorist, piracy, or like threats 5. If incorporated into, or assisting in any way, the intelligence system of the enemys armed forces 6. If acting in any capacity as a naval or military auxiliary to an enemys armed forces 7. If integrated into the enemys 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.); 1955 NWIP 10-2 503b(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 enemys armed forces. 6. If acting in any capacity as a naval or military auxiliary to an enemys armed forces.).

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under the circumstances of the specific encounter, subject the warship to imminent danger or would otherwise preclude mission accomplishment.

The 1936 London Protocol provides that 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 ships papers in a place of safety.92 Merchant vessels in the sense of this rule, however, do not include merchant vessels that constitute military objectives.93

13.5.2.1 Attack of Civilian Passenger Vessels. If a civilian passenger vessel constitutes a military objective and thus is liable to attack, any attack must comply with other applicable rules related to attacks.94

In particular, attacks against civilian passenger vessels engaged in passenger service must comply with the requirement that the expected loss of life or injury to civilians, and damage to civilian objects incidental to the attack, must not be excessive in relation to the concrete and direct military advantage expected to be gained.95

Detention of Personnel From Enemy Merchant Vessels. Officers and crews of 13.5.3captured enemy merchant ships may be detained.96 If detained, such persons are POWs.97

92 Procs-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 22, 1930, Nov. 6, 1936, 173 LNTS 353, 357. See Treaty for the Limitation and Reduction of Naval Armament, art. 22, Apr. 22, 1930, 46 STAT. 2858, 2881-82 (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 ships papers in a place of safety. For this purpose the ships 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.). 93 Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 428-29 (1025) (1999) (The rules laid down in that document formed part of the 1922 Washington Treaty and were reaffirmed by the 1930 London Conference. During that conference a committee of legal experts presented a report in which the matter was clarified as follows: 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. Whereas it remains unclear what is meant by participating in hostilities it is obvious that merchant vessels are not in all circumstances protected by the 1936 London Protocol. This was confirmed by the judgment of the Nuremberg Tribunal. Hence, enemy merchant vessels that, by their conduct, qualify as legitimate military objectives are not protected by the 1936 London Protocol and mayas an exceptional measurebe attacked and sunk.). 94 Refer to 5.5 (Rules on Conducting Assaults, Bombardments, and Other Attacks). 95 Refer to 5.12 (Proportionality in Conducting Attacks). 96 2007 NWP 1-14M 8.6.2.1 (Officers and crews of captured enemy merchant ships and civilian aircraft may be detained.); 1955 NWIP 10-2 512 (The officers and crews of captured enemy merchant vessels and aircraft may be made prisoners of war.). 97 Refer to 4.16.2 (Merchant or Civil Crews Detention).

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Other civilian enemy nationals on board such captured ships as private passengers are subject to the discipline of the captor.98 If detained, such persons must, at a minimum, be afforded certain fundamental guarantees of humane treatment.99

Nationals of a neutral State on board captured enemy merchant vessels should not be detained unless they have participated in acts of hostility or resistance against the captor, or are otherwise in the service of the enemy.100

13.6 ENEMY VESSELS EXEMPT FROM CAPTURE OR DESTRUCTION

Certain classes of enemy vessels are exempt from capture or destruction, provided they are innocently and solely employed in the activities that enjoy exempted status.

Exempt vessels may not be used for purposes outside their innocent role while taking advantage of their harmless appearance. Warships may not be disguised as exempt vessels.101

Duties of Exempt Vessels. These specially protected vessels must not take part in 13.6.1hostilities or assist the enemys military effort in any manner.

Such vessels and boats are subject to the regulations of a belligerent naval commander operating in the area.102 They must not hamper the movement of combatants, must submit to identification and inspection procedures, and may be ordered out of harms way. Refusal to provide immediate identification upon demand is ordinarily sufficient legal justification for capture or destruction.

Classes of Exempt Vessels. Specifically exempt vessels include: (1) cartel 13.6.2vessels; (2) hospital ships; (3) vessels charged with religious, non-military scientific, or philanthropic missions; (4) vessels granted safe conduct; and (5) small fishing and trade vessels.103

98 2007 NWP 1-14M 8.6.2.1 (Other enemy nationals on board such captured ships and aircraft as private passengers are subject to the discipline of the captor.); 1955 NWIP 10-2 512 (Other enemy nationals on board captured enemy merchant vessels and aircraft as private passengers are subject to the discipline of a captor.). 99 Refer to 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII). 100 2007 NWP 1-14M 8.6.2.1 (Nationals of a neutral nation on board captured enemy merchant vessels and civilian aircraft should not be detained unless they have participated in acts of hostility or resistance against the captor or are otherwise in the service of the enemy.); 1955 NWIP 10-2 512 (The nationals of a neutral state on board captured enemy merchant vessels and aircraft as private passengers should not be made prisoners of war.). Refer to 15.6.2 (Forfeiture of Protections of Neutral Status by a Neutral Person). 101 Refer to 13.13 (Deception by Naval Forces, Including the Use of Enemy or Neutral Flags). 102 Refer to 13.8 (Belligerent Control of the Immediate Area of Naval Operations). 103 1955 NWIP 10-2 503c (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

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13.6.2.1 Cartel Vessels. Vessels and aircraft designated for, and engaged in, the exchange of POWs are privileged from capture.104

13.6.2.2 Hospital Ships That Meet the Requirements of the GWS-Sea. Hospital ships, including military hospital ships, commissioned civilian hospital ships, and authorized neutral hospital ships, that meet the requirements of the GWS-Sea are exempt from capture.105 Hospital ships do not forfeit their exempt status if they are armed for self-defense purposes or if they possess or use communications equipment with encryption.

Hospital ships may be armed with defensive weapon systems, including when necessary certain crew-served weapons, as a prudent anti-terrorism/force protection (AT/FP) measure to defend against small boat attacks.106 The 1949 Geneva Conventions do not directly address weapons systems for hospital ships, but they do expressly provide for the arming of crew members with small arms for the maintenance of order and for the self-defense of the crew or the sick and wounded.107 The arming of the ship with crew-served weapons for self-defense of the ship is not prohibited and is consistent with the ships humanitarian purpose and the crews duty to safeguard the wounded and sick.

The GWS-Sea provides that hospital ships may not use or possess secret codes as means of communication; however, state practice has evolved to accept that modern communications systems (e.g., satellite communications and video teleconference systems) and

taking part in hostilities. Such vessels and boats are subject to the regulations of a belligerent naval commander operating in the area.). 104 See, e.g., The Brig Betsey, 49 Ct. Cl. 125, 132 (Ct. Cl. 1913) (What is a cartel in warfare of the nations? An agreement between belligerents for the exchange of prisoners. What is a cartel ship except a vessel of belligerents duly commissioned for the carriage by sea of exchanged prisoners from enemy country to their own country or for the carriage of official communications to and from enemies?); The Adula, 176 U.S. 361, 379-80 (1900) (While the mission of the Adula was not an unfriendly one to this Government, she was not a cartel ship, privileged from capture as such, but one employed in a commercial enterprise for the personal profit of the charterer, and only secondarily, if at all, for the purpose of humanity.); Crawford v. The William Penn., 6 F. Cas. 778, 780-81 (C.C.D.N.J. 1815) (What is the character of a cartel vessel, and of the persons concerned in her navigation? The flag of truce which she carries, throws over her and them the mantle of peace. She is, pro hac vice, a neutral licensed vessel; and all persons concerned in her navigation, upon the particular service in which both belligerents have employed her, are neutral, in respect to both, and under the protection of both. She cannot carry on commerce under the protection of her flag, because this was not the business for which she was employed, and for which the immunities of that flag were granted to her. She is engaged in a special service, to carry prisoners from one place to another; and, whilst so engaged, she is under the protection of both belligerents, in relation to every act necessarily connected with that service.). 105 Refer to 7.12.1.1 (Military Hospital Ships); 7.12.1.2 (Commissioned Civilian Hospital Ships); 7.12.1.3 (Authorized Neutral Civilian Hospital Ships). 106 Refer to 7.12.6.2 (Conditions That Do Not Deprive Hospital Ships and Sick-Bays of Vessels of Their Protection). 107 Refer to 7.12.6.3 (Arming of Hospital Ships and Equipping Them With Defensive Devices).

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navigational technology (e.g., global positioning systems) require encryption.108 Such systems must not be used for military purposes or in any way that is harmful to an adversary.109

13.6.2.3 Vessels Charged With Religious, Nonmilitary Scientific, or Philanthropic Missions. Vessels charged with religious, nonmilitary scientific, or philanthropic missions are exempt from capture.110 Vessels engaged in the collection of scientific data of potential military application, however, would not be included within this exemption.

13.6.2.4 Vessels Granted Safe Conduct. Vessels and aircraft guaranteed safe conduct by prior arrangement between the belligerents are exempt from capture.111

13.6.2.5 Small Coastal Fishing Vessels and Small Boats Engaged in Local Coastal Trade. Small coastal (not deep-sea) fishing vessels and small boats engaged in local coastal trade are exempt from capture.112

13.7 SUBMARINE WARFARE

General Principle Same Rules Applicable to Both Submarine and Surface 13.7.1Warships. Submarine warships must comply with the same law of war rules that apply to surface warships.113 For example, in their action with regard to merchant ships, submarines must conform to the law of war rules to which surface vessels are subject.114 In general, submarines must provide for the safety of passengers, crew, and ships papers before destruction of an 108 Refer to 7.12.2.7 (Use of Secret Codes for Communication). 109 Refer to 7.12.2.2 (No Use for Military Purposes); 7.10.3.1 (Acts Harmful to the Enemy). 110 HAGUE XI art. 4 (Vessels charged with religious, scientific, or philanthropic missions are likewise exempt from capture.). 111 Refer to 12.6.3 (Safe Conduct). 112 HAGUE XI art. 3 (Vessels used exclusively for fishing along the coast or small boats employed in local trade are exempt from capture, as well as their appliances, rigging, tackle, and cargo. They cease to be exempt as soon as they take any part whatever in hostilities. The Contracting Powers agree not to take advantage of the harmless character of the said vessels in order to use them for military purposes while preserving their peaceful appearance.); The Paquete Habana, 175 U.S. 677, 708 (1900) (This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent States, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. The exemption, of course, does not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way. Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.). 113 2007 NWP 1-14M 8.7 (The law of armed conflict imposes essentially the same rules on submarines as apply to surface warships.); 1997 NWP 9 8.3 (same); 1989 NWP 9 8.3 (same). 114 Treaty for the Limitation and Reduction of Naval Armament, art. 22, Apr. 22, 1930, 46 STAT. 2858, 2881 (In their action with regard to merchant ships, submarines must conform to the rules of International Law to which surface vessels are subject.). Consider Procs-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 22, 1930, Nov. 6, 1936, 173 LNTS 353, 357 (same).

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enemy merchant vessel.115 However, the same exceptions to this rule that permit surface ships to attack enemy merchant vessels that are military objectives also permit submarines to conduct such attacks.116

Different Application of Law of War Rules in the Context of Submarine Warfare. 13.7.2Although submarines must comply with the same law of war rules as surface ships, a law of war rule may apply differently in the context of submarine warfare because of the different circumstances of submarine warfare as compared to surface warfare.

For example, like surface warships, submarine warships also have an obligation to search for and collect the shipwrecked, wounded, and sick after an engagement.117 This obligation, however, is subject to certain practical limitations, and the practical limitations faced by submarines may be different than those faced by surface vessels.118 For example, although a surface warship might be able to take on board survivors after an engagement, a submarine may have limited passenger carrying capabilities. Thus, it may be necessary to rely on other measures (e.g., such as passing the location of possible survivors to a surface ship, aircraft, or shore facility capable of rendering assistance) to comply with the law of war obligation.119

13.8 BELLIGERENT CONTROL OF THE IMMEDIATE AREA OF NAVAL OPERATIONS

Belligerent Right to Establish Special Restrictions in the Immediate Area of Naval 13.8.1Operations. Within the immediate area or vicinity of naval operations, to ensure proper battle space management and self-defense objectives, a belligerent State may establish special restrictions upon the activities of neutral vessels and aircraft, and may prohibit altogether such vessels and aircraft from entering the area.120

115 Refer to 13.5.1.3 (Destruction of Captured Enemy Merchant Vessels). 116 Refer to 13.5.2 (Attack of Enemy Merchant Vessels). 117 Refer to 7.4.1 (GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked, and Dead). 118 Refer to 7.4.4 (Practical Limitations on the Obligation to Search for, Collect, and Take Measures to Protect the Wounded, Sick, and Shipwrecked). 119 Affidavit subscribed by Chester W. Nimitz, Fleet Admiral, Chief of Naval Operations, U.S. Navy from Joseph L. Broderick, Lieutenant Commander, U.S. Naval Reserve, of the International Law Section, Office of the Judge Advocate General, Navy Department (11 May 1946), in XVII TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 379-80 (13. Q: Were, by order or on general principles, the U.S. submarines prohibited from carrying out rescue measures toward passengers and crews of ships sunk without warning in those cases where by doing so the safety of their own boat was endangered? A: On general principles, the U.S. submarines did not rescue enemy survivors if undue additional hazard to the submarine resulted or the submarine would thereby be prevented from accomplishing its further mission. U.S. submarines were limited in rescue measures by small passenger-carrying facilities combined with the known desperate and suicidal character of the enemy. Therefore, it was unsafe to pick up many survivors. Frequently survivors were given rubber boats and/or provisions. Almost invariably survivors did not come aboard the submarine voluntarily, and it was necessary to take them prisoner by force.). 120 2007 NWP 1-14M 7.8 (Within the immediate area or vicinity of naval operations, to ensure proper battle space management and self-defense objectives, a belligerent may establish special restrictions upon the activities of neutral vessels and aircraft and may prohibit altogether such vessels and aircraft from entering the area.); 1955 NWIP 430b (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

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The immediate area or vicinity of naval operations is that area within which hostilities are taking place, or belligerent State forces are actually operating.121

Belligerent State control over neutral vessels and aircraft within the immediate area of naval operations is based upon a belligerent States right to ensure the security of its forces and its right to conduct hostilities without interference from neutrals.122

A belligerent State may not purport to deny access to neutral States, or to close an international strait to neutral shipping, pursuant to this authority unless another route of similar convenience remains open to neutral traffic.123

Belligerent Right to Control Communication of Neutral Merchant Vessels or 13.8.2Aircraft at Sea. A belligerent warship may exercise control over the communications of any neutral merchant vessel or civil aircraft whose presence in the immediate vicinity of naval operations might otherwise endanger or jeopardize those operations.124

A neutral merchant ship or civil aircraft within that area that fails to conform to a belligerent warships directions concerning communications may thereby assume enemy character and risk being fired upon or captured.125 Any transmission to an opposing belligerent such vessels and aircraft from entering the area.); 2006 AUSTRALIAN MANUAL 6.16 (Within the immediate area or vicinity of naval operations, a belligerent may establish special restrictions upon the activities of neutral vessels and aircraft and may prohibit altogether such vessels and aircraft from entering the area.); 2004 UK MANUAL 13.80 ( Nothing in paragraphs 13.65 to 13.79 [on blockades and security zones] should be deemed to derogate from the customary belligerent right to control neutral vessels and aircraft in the immediate vicinity of naval operations.). 121 2007 NWP 1-14M 7.8 (The immediate area or vicinity of naval operations is that area within which hostilities are taking place or belligerent forces are actually operating.); 1997 NWP 9 7.8 (same); 1989 NWP 9 7.8 (substantially similar); TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 300 (It should be emphasized, though, that the immediate area of naval operations refers to an area within which naval hostilities are taking place or within which belligerent forces are actually operating.). 122 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 301 (The claim to control neutral vessels and aircraft within the immediate vicinity of operating forces is essentially a limited and transient one and is based not only upon the right of a belligerent to insure the security of his forces but upon the right to attack and to defend himself without interference from neutrals.). 123 2007 NWP 1-14M 7.8 (A belligerent may not, however, purport to deny access to neutral nations, or to close an international strait to neutral shipping, pursuant to this authority unless another route of similar convenience remains open to neutral traffic.); 1997 NWP 9 7.8 (same); 1989 NWP 9 7.8 (same). Compare 13.10.2.5 (Limitations on the Scope of the Blockade). 124 2007 NWP 1-14M 7.8 (The commanding officer of a belligerent warship may exercise control over the communication of any neutral merchant vessel or civil aircraft whose presence in the immediate area of naval operations might otherwise endanger or jeopardize those operations.); 1955 NWIP 10-2 520a (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.); 2006 AUSTRALIAN MANUAL 6.17 (Within the immediate area or vicinity of naval operations, a commanding officer of a belligerent warship may exercise control over the communications of any neutral merchant vessel or aircraft whose presence might otherwise endanger the success of the belligerent operation.). 125 2007 NWP 1-14M 7.8 (A neutral merchant ship or civil aircraft within that area that fails to conform to a belligerents directions concerning communications may thereby assume enemy character and risk being fired upon or captured.); 1955 NWIP 10-2 430b (Neutral vessels and aircraft which fail to comply with a belligerents

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State of information concerning military operations or military forces is inconsistent with the neutral States duties of abstention and impartiality, and renders the neutral States vessel or aircraft making such a communication liable to capture or destruction.126

Legitimate distress communications should be permitted to the extent that the success of the operation is not prejudiced thereby.127

13.9 MARITIME AND AIRSPACE ZONES: EXCLUSION, WAR, OPERATIONAL, WARNING, AND SAFETY

Belligerent States may establish various maritime and airspace zones during armed conflict. The legal rules that apply to the establishment and enforcement of a zone may depend on the function of the zone and, in particular, whether additional belligerent rights are asserted as a consequence of vessels entering the zone.

Neutral or non-belligerent States have established such zones.128

Authority to Establish Zones. The authority necessary to establish a zone may 13.9.1depend on the location of the zone and the belligerent rights that are asserted as a consequence of vessels entering the zone.

The establishment of a zone in a States waters may rely on its sovereignty over those waters.129 Similarly, the establishment of a zone in a States airspace may rely on its sovereignty

orders expose themselves to the risk of being fired upon. Such vessels and aircraft are also liable to capture (see subparagraph 503d7).). 126 2007 NWP 1-14M 7.8 (Any transmission to an opposing belligerent of information concerning military operations or military forces is inconsistent with the neutral duties of abstention and impartiality and renders the neutral vessel or aircraft liable to capture or destruction.). Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part I: Rules for the Control of Radio in Time of War, art. 6, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 2, 7-8 (1938) (1. The transmission by radio by a vessel or an aircraft, whether enemy or neutral, when on or over the high seas of military intelligence for the immediate use of a belligerent is to be deemed a hostile act and will render the vessel or aircraft liable to be fired upon. 2. A neutral vessel or neutral aircraft which transmits when on or over the high seas information destined for a belligerent concerning military operations or military forces shall be liable to capture. The prize court may condemn the vessel or aircraft if it considers that the circumstances justify condemnation.). 127 2007 NWP 1-14M 7.8 (Legitimate distress communications should be permitted to the extent that the success of the operation is not prejudiced thereby.); 1955 NWIP 10-2 520a (Legitimate distress communications by neutral vessels and aircraft should be permitted if they do not prejudice the success of such operations.). 128 For example, The Nyon Arrangement Between the United Kingdom of Great Britain and Northern Ireland, Bulgaria, Egypt, France, Greece, Roumania, Turkey, the Union of Soviet Socialist Republics and Yugoslavia, Sept.14, 1937, 181 LNTS 135. 129 Refer to 13.2.2 (National Waters). For example, L.F.E. Goldie, Maritime War Zones & Exclusion Zones, 64 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 156, 189-90 (1991) (At this point it may be noted in passing that Operation Market Time, which was enforced by the United States Navy during the Vietnamese War was legally valid since it was a law-enforcement operation limited to a distance of twelve miles from the low water mark of South Vietnam (it did not extend north beyond the DMZ) and so within the domestic competence of South Vietnam, which legislated to empower the activity. Since that operation was conducted entirely within the territorial sea and contiguous zone of South Vietnam, it does not come within the perspective of the present paper.).

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over that airspace.130 The right of a belligerent State to establish a zone outside its territory may rely on the belligerent States: (1) right to interdict contraband; (2) right to control the immediate area of operations; or (3) right of blockade.131

Exclusion zones may also be established in accordance with an appropriate resolution adopted by the U.N. Security Council.

Use of Zones to Warn Vessels or Aircraft War, Operational, Warning, and 13.9.2Safety Zones. A zone may be issued to advise vessels or aircraft to remain clear of an area of naval operations. Such a zone may also provide procedures to reduce the risk of neutral vessels being mistakenly attacked.132

Such zones have been used: (1) to identify a particularly dangerous operational area;133 (2) to assist in the defense of a particular area;134 or (3) to assist in the defense of particular naval forces (i.e., a defensive bubble).135

130 Refer to 14.2.1.1 (National Ai