Pil PDF

Naval Warfare
Natalino Ronzitti
Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: June 2009
Subject(s):
Reprisals — Peace keeping — Warfare, sea — Ships / vessels — Territorial sea — Exclusive economic
zone — Armed conflict, non-international — Geneva Conventions 1949
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.
Subscriber: Damodaram Sanjivayya National Law University; date: 30 October 2020
A. Sources of Law of Naval Warfare
1 Naval warfare is regulated both by customary and conventional international law
(→ Armed Conflict, International). International conventional law sources go back to the
Declaration respecting Maritime Law between Austria, France, Great Britain, Prussia,
Sardinia, and Turkey ([signed and entered into force 16 April 1856] 115 CTS 1; ‘1856 Paris
Declaration’) abolishing → privateering and establishing rules for → blockade and prizes
(→ Prize Law). But the first real work of codification, dictating a set of rules for almost all
aspects of naval warfare, was laid down at the Hague Peace Conference of 1907, the
contribution of the 1899 Conference being minimal (→ Hague Peace Conferences [1899 and
1907]). The 1907 Conference is of particular relevance as the following conventions were
adopted: the Convention for the Adaptation to Maritime Warfare of the Principles of the
Geneva Convention, produced by the First and revised by the Second Peace Conference
(‘1907 Hague Convention X’); the Convention relative to the Status of Enemy Merchant
Ships at the Outbreak of Hostilities (‘1907 Hague Convention VI’); the Convention relative
to the Conversion of Merchant Ships into War Ships (‘1907 Hague Convention VII’); the
Convention on the Laying of Automatic Submarine Contact Mines (‘1907 Hague Convention
VIII’); the Convention respecting Bombardments by Naval Forces in Time of War (‘1907
Hague Convention IX’); the Convention relative to Certain Restrictions on the Exercise of
the Right of Capture in Maritime War (‘1907 Hague Convention XI’); and the Convention
concerning the Rights and Duties of Neutral Powers in Naval War (‘1907 Hague Convention
XIII’). At The Hague, a Convention for the Establishment of an International Prize Court
(IPC) was also drafted but never entered into force ([signed 18 October 1907] [1907] 205
CTS 381) (→ International Prize Court (IPC)). Subsequent developments include the London
Declaration concerning the Laws of Naval War (Déclaration relative au Droit de la Guerre
Maritime [signed 26 February 1909] [1908–1909] 208 CTS 341) and the Procès-Verbal
relating to the Rules of Submarine Warfare Set forth in Part IV of the Treaty of London of
April 22nd, 1930 ([signed and entered into force 6 November 1936] 173 LNTS 353) relating
to the use of submarines against merchant vessels (‘1936 London Protocol’) (→ Submarine
Warfare). However, only the latter came into force, even though several provisions of the
former are regarded as declaratory of customary international law. Mention also has to be
made of the ‘Manuel des lois de la guerre maritime’ (‘Oxford Manual of Naval War’; [1913]
26 AnnIDI 610) adopted by the → Institut de Droit international, which represents a
restatement of the law then in force.
2 The → Geneva Conventions I–IV (1949) marked a further step in the codification of the
law of naval warfare, in particular the Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (‘Geneva
Convention II’). At this moment, Geneva Convention II is still the most recent codification of
sea warfare. Sea warfare was not the object of the Diplomatic Conference which led to the
adoption of the two Protocols of 1977 additional to the Geneva Conventions. A few
provisions apply, mainly those regulating naval bombardment, since → Geneva Conventions
Additional Protocol I (1977) subjects land, naval, and air bombardment to the same rules.
Furthermore, Additional Protocol I ameliorates the condition of medical transport and the
provisions on relief action may be deemed applicable to sea warfare as well. Technological
developments in weaponry, dramatic changes in the → law of the sea (the 1958 and the
1982 codification), as well as the practice accumulated during the two World Wars call for a
general revision of conventions regulating naval warfare and the amalgamation of sparse
provisions into a single instrument. This was not possible at the time when the Additional
Protocols were drafted, since the law of the sea was in the process of being revised. Even
after the adoption of the United Nations Convention on the Law of the Sea, the great
maritime powers seemed satisfied with the current law and did not deem the time ripe for
convening a codification conference. It was only possible to convene a series of meetings
under the auspices of the San Remo Institute of Humanitarian Law with the participation of
international lawyers and naval experts representing the major areas of the world. The
outcome was the San Remo Manual on International Law Applicable to Armed Conflicts at
Sea, which is a kind of restatement taking into account the existing law as emerging from
conventions and customary law, and progressive developments originating in State practice.
Even if it is a ‘private codification’, the San Remo Manual has, over time, acquired
considerable weight and several navy manuals refer to it as an authoritative statement of
existing law.
B. Armed Forces of Belligerents

3 In principle, rules for the → armed forces of belligerents address those persons who are
entitled to carry arms and take part in hostilities. In sea warfare, unlike land warfare, the
emphasis is not on individuals taking part in hostilities, but on ships. After the abolition of
privateering, only → warships, both surface vessels and submarines, may take part in
hostilities. The Hague Conventions do not give any definition of ‘warship’. This can be
found, instead, in both the 1958 Convention on the High Seas and the 1982 United Nations
Convention on the Law of the Sea. As far as the Hague Conventions are concerned, a
definition may only be implied by the 1907 Hague Convention VII on the transformation of
merchantmen into warships. The Convention, which has the same function as the Hague
Regulations for irregulars, establishes that in order for → merchant ships to be converted
into warships they should bear the external marks denoting the nationality of warships, be
commanded by a navy officer, carry a crew under military discipline, and observe the law
and customs of war. Moreover, the converted warship should be registered in the list of
national warships.
4 Recent practice shows that irregular combatancy in naval warfare is not excluded. For
instance during the → Iran-Iraq War (1980–88), the Iranian Revolutionary Guards operated
against Iraq and neutral shipping from small craft that could not be qualified as warships.
Italy, for instance, excluded that their merchant ships could be visited by the Revolutionary
Guards’ vessels.
5 Merchant vessels cannot take part in hostilities. If they do, they lose their protection as a
civilian object and the crew can be treated as criminals, unless they resort to a valid plea.
For instance, ramming submarines was considered unlawful by Germany during World War
I and commanders of ramming vessels were in some cases executed. However, according to
an authority (LF Oppenheim Oppenheim’s International Law vol 2 Disputes, War and
Neutrality [7th ed Longman London 1952] at 467–8), ramming may be considered lawful to
counter the practice of indiscriminate submarine warfare. Also, auxiliary vessels, ie those
vessels employed for non-commercial government purposes such as transporting troops or
military cargo, cannot take part in hostilities. Auxiliary vessels are often manned by a
civilian crew and do not meet the requirements laid down by the 1907 Hague Convention
VII, even though they are owned or are under the exclusive control of the belligerent.
C. Areas of Sea Warfare

6 The areas of sea warfare are the → high seas and the territorial waters (→ Territorial Sea)
of the enemy. Neutral waters are excluded unless they become an area of operations of the
enemy. Under the 1907 Hague Convention XIII, which also embodies rules on belligerent
prizes in neutral ports, neutrality is not infringed upon if belligerent warships are allowed
to stay for no more than 24 hours in ports, roadsteads, or territorial waters of a neutral
power (Art. 9; see → Neutrality in Naval Warfare). Neutral waters encompass internal and
territorial waters of a neutral State. This statement should be qualified, taking into account
the new law of the sea. → Archipelagic waters of neutral archipelagic States should be
immune from hostilities. The → contiguous zone, now extending up to 24 miles, should be
considered an area of the high seas for naval warfare. The same is true for the
→ continental shelf and the → exclusive economic zone (‘EEZ’). Neutral States are only
entitled to claim that naval operations do not totally hamper their economic rights, for
instance drilling on the continental shelf or fishing in their EEZ. This rule, vague as it is,
implies that belligerents should have due regard for the economic rights of neutral States.
For instance, belligerents are not allowed to destroy fixed platforms of a neutral State
unless they become a base for hostile operations. Belligerents cannot conduct hostilities in
neutralized waters such as those around Antarctica, the territorial waters of the Aaland
Islands, or the waters of the Strait of Magellan. Artificial waterways such as the Suez Canal
are excluded from hostilities by the treaty regulating their regime, though this rule has
frequently been violated. Belligerents have the right to transit (→ innocent passage or
→ transit passage according to the nature of the strait) through neutral straits serving for
international navigation (→ Straits, International). They also have the right to archipelagic
sea lane passage through the archipelagic waters of neutral States. On the contrary,
international straits under the control of a belligerent may become an area of operation by
the enemy. The belligerent strait State is also entitled to exercise its belligerent rights
towards neutral vessels, exercising ‘visit and search’. The area beyond the continental shelf
may become an area of hostilities. Enemy enterprises exploiting the area are subject to
control by the belligerent, which has the right to confiscate them and the mineral resources
excavated. As stated by the UK Manual on the Law of Armed Conflict (‘UK Manual’),
belligerents should take care to avoid damage to cables and pipelines which do not
exclusively serve them.
D. Military Objectives

7 Military objectives in sea warfare were traditionally selected in accordance with
customary international law. As for objects at sea, warships and auxiliary vessels were
indicated as military objectives; as for objectives on land subject to naval bombardment, the
1907 Hague Convention IX listed a number of objectives which could be destroyed. A
general theory on military objectives was lacking. Additional Protocol I contains a definition
of military objectives in Art. 52 which is applicable to naval bombardment since the
Protocol unified the regulations for land (→ Land Warfare), naval, and air bombardment
(→ Air Warfare), as previously mentioned. That definition is not applicable as a matter of
conventional law to military objectives at sea as Additional Protocol I does not apply to
them.
8 Art. 52 Additional Protocol I is considered customary international law and is deemed

applicable to all three kinds of conflicts, including sea warfare. Consequently, military
objectives in sea warfare are ‘those objects which by their nature, location, purpose, or use
make an effective contribution to military action and whose total or partial destruction
capture or neutralization, in the circumstances ruling at the time, offers a definite military
advantage’. A general definition like this makes little sense for military objectives at sea if it
is not combined with a list of military objectives. This would give the interpreter a clearer
picture as is the case, for instance, with the UK Manual on the Law of Armed Conflict.
Warships and auxiliary vessels are military objectives, while merchant ships, whether
enemy or neutral, are not, unless they lose the protection provided by the law of war.
9 According to the main manuals on naval warfare, a merchant ship may be attacked if:
(i) it clearly resists visit and search or capture;
(ii) it does not stop or divert from its route notwithstanding an order to do so;
(iii) it is sailing under an enemy convoy, escorted by warships or military
aircraft;
(iv) it takes part in the hostilities;
(v) it is incorporated into or assisting the enemy’s intelligence or

communication system;
(vi) it acts as an auxiliary vessel to the enemy.
10 Is a merchant vessel liable to be attacked if it carries very light armament for defensive
purposes, such as for resisting terrorists or pirates? The Commander’s Handbook on the
Law of Naval Operations (‘US Manual’) allows for attack on the premise that modern
weaponry makes it difficult to distinguish whether the armament is only for strictly
defensive purposes. On the contrary, the UK Manual excludes that light individual weapons
for defence of personnel against pirates, and purely deflective systems such as ‘chaff’,
render the merchant vessel liable to being attacked.
11 The US naval doctrine lists another exception to the rule prohibiting naval attacks using
merchant vessels. They may be attacked if integrated into the enemy’s war-fighting and
sustaining effort, as the rules dictated by the 1936 London Protocol cannot be complied
with because stopping and visiting would compromise the safety of the warship. The US
doctrine has not however found general acceptance.
12 Fixed installations on the enemy’s continental shelf may be attacked if they are used for
military purposes. In 1988, the United States attacked some oil platforms located on Iran’s
continental shelf, claiming that they were used for collecting intelligence and as a base for
warlike operations. The ICJ, in its judgment in the → Oil Platforms Case [Islamic Republic of
Iran v United States of America], did not dwell on the ius in bello side of the case, since the
issue before the Court was one of ius ad bellum, ie whether the United States was entitled
to react in self-defence against Iran.
E. Means of Warfare

1. Naval Mines
13 The 1907 Hague Convention VIII regulates the laying of automatic submarine contact
mines and establishes the following principles: it is forbidden to lay automatic contact
mines off the coast and the ports of the enemy with the sole object of intercepting
commercial shipping; the minefield should be under the control of the belligerent laying
mines and uncontrolled minefields should be notified in order to avoid risks to peaceful
navigation; and mines should be rendered harmless within a limited time. Unanchored
contact mines are forbidden, unless they become harmless within one hour after they have
been laid down. The same principle applies to torpedoes, the use of which is forbidden
unless they become harmless when they miss the target. The principles embodied in the
1907 Hague Convention VIII have been restated by the ICJ both in the → Corfu Channel
Case United Kingdom v Albania] [Merits] at 22 and in the → Military and Paramilitary
Activities in and against Nicaragua Case [Nicaragua v United States of America] [Merits] at
para. 215]. However, the Hague Convention refers to types of mines that have become
obsolete. More advanced devices are now employed, such as acoustic, magnetic, and water
pressure mines equipped with appropriate sensors, which discriminate between important
vessels eg aircraft carriers and battleships, and light vessels of modest belligerent value.
Dormant mines are disseminated on the continental shelf and may be activated in case of
hostilities. According to a number of commentators, Captor, which is an encapsulated
torpedo lying on the sea-bed, should fall under the rules for torpedoes rather than those for
mines. While conventional law has consistently been developed for land mines, naval mines
have constantly been excluded from any update. A Swedish proposal presented to the First
Committee of the UN General Assembly in 1991, and afterwards conceived as a Protocol on
naval mines to be added to the 1980 Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to
Have Indiscriminate Effects, never materialized since it was not officially tabled at the 1995
Review Conference (UNGA [6 November 1991] UN Doc A/C.1/46/15 Annex). Pending the
formulation of new conventional rules, belligerents should abide by the principles laid down
by the 1907 Hague Convention VIII that have acquired customary international law value,
for instance the principle that mines should be under the control of the belligerent and that
they should become harmless within a fixed period of time after control over them is lost.
The Hague Convention contains an obligation to remove mines at the end of hostilities. It
also sets down rules for beached sea mines. It is open to question whether the Protocol on
Explosive Remnants of War (Protocol V to the 1980 Convention [adopted 28 November
2003, entered into force 12 November 2006] UN Doc CCW/MSP/2003/2) is in principle
applicable also to mines laid down in territorial and internal waters, beached mines
included, since the Protocol covers all explosive remnants located in the ‘territory’ under
the control of a Contracting Party.
2. Submarines
14 The fundamental rule on submarines is that they should observe the same rules as
surface vessels, as was established by the 1936 London Protocol. Emerged submarines are
vulnerable, since they may easily be sunk by aircraft or warships. This is no excuse,
however, to derogate from the London Protocol. The Nuremberg Tribunal stated that a
commander cannot sink a merchant vessel at sight, since the visit exposes the submarine to
a danger (The United States of America et al v Göring et al [Judgment and Sentences of the
International Military Tribunal] [Nuremberg] [1 October 1946] [1947] 41 AJIL 172, at 303–
6). Admiral Doenitz was not found guilty by the Nuremberg Tribunal since the unrestricted
submarine warfare waged by Germany was a reaction to the practice of bringing the Allied
merchant vessels into the war effort: they were ordered to report the position of German
submarines and possibly to ram them.
3. Missiles
15 There are no special regulations for missiles, which may be launched by warships or
submarines. If they hit on land, the rules of Additional Protocol I on attacks apply. In case of
ship-to-ship or ship-to-air combat, missiles should comply with the rules on target
discrimination. This rule deserves special attention in the case of over-the-horizon missiles.
In 1988, during the Iran-Iraq war, an Iranian Airbus full of civilian passengers flying from
Bandar Abbas to Dubai was downed by mistake by the US cruiser Vincennes in the Persian
Gulf.
F. Methods of Warfare

1. Visit and Search
16 Visit and search are classic methods of sea warfare (→ Ships, Visit and Search).
Belligerents are entitled to stop neutral merchant vessels in order to see whether they are
transporting goods considered contraband of war. The 1909 London Declaration makes a
distinction between absolute contraband, conditional contraband, and goods which should
not be considered contraband, such as ‘free goods’ such as religious objects or medical
articles for the prevention of diseases. The categories established by the 1909 London
Declaration have become obsolete, for instance, oil is considered conditional contraband,
and belligerents today tend to compile very broad contraband lists. Contraband only
includes goods destined for the enemy while goods coming from enemy territory and
destined for neutral States cannot be considered contraband, otherwise the right of
neutrals to trade with belligerents would be undermined. The doctrine according to which
goods destined for a neutral country may be captured since they produce revenues that
contribute to the war effort should be rejected. If a visit cannot be carried out on the high
seas or in belligerent waters, the ship should be diverted into a belligerent port and
submitted to a prize tribunal. Destruction of neutral prize is allowed if the diversion
constitutes a danger for the warship but only after the safety of passengers and crew has
been ensured (→ Ships, Diverting and Ordering into Port). As for enemy merchant vessels,
they cannot be attacked unless they fall into one of the categories listed above. Enemy
merchant vessels may be captured as a prize, after adjudication by a prize tribunal. This
adjudication stage is deemed necessary, even though the current edition of the UK Manual
states the contrary and affirms that captured enemy vessels automatically become the
property of Her Majesty’s government. Neutral goods on enemy merchant ships may be
seized if they constitute contraband of war. Commander and crew are entitled to
→ prisoners of war status unless a more favourable treatment is accorded. Neutral ships in
a neutral convoy are exempt from visit, unless the convoy commander allows it on the
request of the belligerent. However, the right of → convoy, which is admitted by the 1909
London Declaration, is not recognized by all maritime powers, for instance, the UK.
Reflagging, ie changing the ship’s flag, is permitted insofar as the flag is transferred from a
neutral State to another neutral State. This happened during the war between Iran and
Iraq, mainly with Kuwaiti shipping put under the US flag in order to be escorted by US
warships.
2. Blockade
17 → Blockade is a time-honoured method of warfare. Although no longer as frequent as
during the 18th and 19th centuries, it has not become totally obsolete. Modern examples
are the controversial blockade by the United States of the port of Haiphong (1972) during
the Vietnam War and the recent blockade by Israel of the Lebanon coast in 2006. During the
NATO intervention against the Federal Republic of Yugoslavia in 1999, the United States
proposed the blockade of the port of Bar, but the proposal was not endorsed by France and
Italy as they deemed it required authorization by the UN Security Council. Blockade is often
an example of asymmetric warfare in that it is not easy to enforce a blockade against a
powerful adversary, with the blockading force running the risk of being exposed to missile
fire from the coastal State.
18 According to the 1909 London Declaration, a blockade, in order to be lawful, has to be
effective, ie maintained by a naval force able to impede the entry or exit of vessels via the
blockaded coast. Additionally it has to be non-discriminatory, ie enforced against all flags,
and duly notified by diplomatic means or by the commander of the blockading force.
Merchant vessels in breach of blockade may be captured and adjudicated as a prize.
19 Blockades aimed at starving the civilian population of the blockaded coast are
forbidden. As can be implied from both Art. 23 Geneva Convention relative to the Protection
of Civilian Persons in Time of War (‘Geneva Convention IV’) and Art. 70 Additional Protocol
I, the effectiveness of the blockade is not frustrated by humanitarian actions. For instance,
during the Israeli blockade of Lebanon, Italy was permitted to evacuate its own and other
countries’ nationals. Humanitarian action requires the consent of the blockading State.
3. Exclusion Zones
20 Exclusion zones are zones in the high seas established by belligerents to control air and
sea navigation. Aircraft and ships entering the zone, whether enemy or neutral, are exposed
to the risk of hostilities. Exclusion zones are not ‘free fire’ zones and as such should be
distinguished from war zones, which are illegal unless established in waters adjacent to the
coastal State. An exclusion zone of 200 miles was established by the United Kingdom
around the Falkland Islands in 1982 at the time of the Argentine invasion. The exclusion
zone, after an initial period in which only Argentine ships were affected, was transformed
into a total exclusion zone also enforced against the ships of third countries.
4. Naval Bombardment

21 Naval → bombardment is regulated by the 1907 Hague Convention IX which
distinguishes between undefended and defended localities. Only defended localities may be
attacked. Military installations and weapon depots lying in undefended localities may,
however, be subject to bombardment unless the enemy proceeds with their destruction.
Naval bombardment is now subject to the rules of Additional Protocol I, since Art. 49
renders Art. 52 applicable to naval warfare as well. Indiscriminate bombardment is
therefore forbidden, as is target area bombardment. Precautionary rules should also be
applied and a warning given when circumstances permit it. The Convention for the
Protection of Cultural Property in the Event of Armed Conflict ([done 14 May 1954, entered
into force 7 August 1956] 249 UNTS 240) is applicable to naval bombardment as is the
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in
the Event of Armed Conflict ([done 26 March 1999, entered into force 9 March 2004]
(1999) 38 ILM 769) (‘Cultural Property Protocol II’).
22 The United States is not party to Additional Protocol I. However, the principle embodied
in Art. 52 Additional Protocol I, stating that attacks should be directed only at military
objectives, is observed as a matter of customary international law.
5. Ruses of War

23 Ruses of war are permitted, and permissible action differs from land warfare as in the
case of emblems of nationality. For instance, deception and flying false colours is allowed,
provided that the belligerent shows its own flag before opening fire. Art. 39 Additional
Protocol I explicitly preserves the time-honoured usage of flying false colours before
opening fire. Decoys, mock operations, and misinformation are also allowed, but it is
prohibited to feign the status of a hospital ship or a vessel protected by the United Nations,
or to simulate distress (→ Ships in Distress). In other instances, the line dividing acts of
→ perfidy from ruses of war is not so clear. For example, it is open to question whether the
World War I practice of q-ships, ie warships camouflaged as merchant vessels that attracted
the confidence of enemy submarine commanders who surfaced to proceed to visit, can be
considered a lawful ruse of war.
G. Humanitarian Issues

24 Humanitarian issues are paramount in naval warfare as in any other kind of warfare.
The very fact that combat operations take part in a natural environment that may be
dangerous for combatants and civilian crews renders humanitarian considerations worth
taking into account. Humanitarian issues are covered by Geneva Convention II and by a
number of provisions of Additional Protocol I.
1. Shipwrecked Persons
25 Shipwrecked persons fall into the category of protected persons. Art. 13 Geneva
Convention II enumerates, under the category of protected persons, all individuals having
the status of lawful combatant who are shipwrecked, wounded, or sick at sea. Protected
persons include not only combatants but also civilians who are at sea because their means
of transport has been hit. They are protected persons in so far as they do not commit any
hostile act. Scuba diver commandos are not entitled to any special protection, unless they
are clearly in distress. The status of shipwrecked lasts until the individual acquires a
different status. Consequently, once the shipwrecked person is on land, his/her status is
determined by other rules. For instance, a member of the enemy navy becomes a prisoner
of war.
2. Hospital Ships

26 → Hospital ships are disciplined by Geneva Convention II which lists three categories:
enemy military ships, private ships equipped by national societies of the Red Cross or other
officially recognized relief societies, and neutral private ships operating under the direction
of a belligerent and with the consent of the flag State. The Geneva Convention requires that
hospital ships be clearly identified and that hospital ships and their means of identification
be notified to the other party to the conflict. Hospital ships are requested not to hamper the
movement of combatants. Yet, if a hospital ship has to stay miles outside the actual zone of
hostilities, its rescue activity is diminished. For this reason, a Red Cross Box was created
during the Falklands war in which Argentina and UK hospital ships were allowed to rescue
shipwrecked persons. Geneva Convention II also gives protection to coastal rescue craft
under the same conditions laid down for hospital ships.
27 Medical aircraft, whose status was not recognized during World War II, are now
disciplined by both Geneva Convention II and by Additional Protocol I. Art. 39 Geneva
Convention II allows the utilization of medical aircraft if all belligerents agree. Additional
Protocol I has widened the protection, and the consent of the belligerent is no longer
requested if the aircraft is operating in a zone not controlled by the adversary. Otherwise
consent is requested. Medical aircraft are employed for the evacuation of wounded and
shipwrecked persons. Search and rescue, for instance of downed pilots, requires the
consent of the adverse party if the sea area is under its control.
H. Environmental Considerations

28 Protection of the marine environment is a duty according to Art. 192 UN Convention on
the Law of the Sea which dictates a number of rules on the marine environment. However,
it is questionable whether this provision applies in wartime. The same is true for the
pertinent → International Maritime Organization (IMO) conventions and regional
conventions, since they are suspended between belligerents in time of war. Additional
Protocol I contains two relevant provisions: Arts 35 (3) and 55. The former embodies a
general rule which prohibits the use of methods or means of warfare that are intended or
may be expected to cause widespread, long-term, and severe damage to the natural
environment. The rule, formulated in general terms, applies to all kinds of warfare,
including naval warfare. The latter applies to methods and means of warfare causing the
above effects and deemed to prejudice the health and survival of the civilian population.
This rule covers the effects of naval hostilities on land, for instance, naval bombardment. In
principle, the Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques ([adopted 10 December 1976, entered into force 5
October 1978] [1977] 16 ILM 90) also applies, but at present it is difficult to identify means
and methods of naval warfare that fall under the scope of this Convention. The problem of
preservation of the marine environment is particularly acute in connection with the
destruction of oil tankers or the bombardment of offshore oil drilling. The San Remo
Manual uses the formula of ‘due regard’, stating that methods and means of warfare should
be employed with due regard for the national environment, taking into account the relevant
rules of international law and forbidding damage or destruction to the natural environment
carried out wantonly and not justified by military necessity (Art. 44). It has to be taken into
account that oil waste or other disasters connected with hostilities may spill over into the
territorial waters of neutral countries. The ICJ, in its Nuclear Weapons Advisory Opinions,
stated that the principle of neutrality prohibits belligerents from causing trans-border
damage to neutral States (at paras 88–89 see → Nuclear Weapons Advisory Opinions). As for
other rules for protection of the marine environment extracted from the peacetime law of
the sea, the San Remo Manual contains very soft provisions, such as the one encouraging
belligerents to agree that no hostile action should be carried out in rare or fragile
ecosystems, or in sea areas that are the habitat of depleted, threatened, or endangered
species or other forms of marine life (Art. 11). An agreement is thus necessary since current
international law does not prohibit, for instance, conducting hostilities in international
straits whose waters fall under the sovereignty of the enemy, even if the strait is a fragile
ecosystem.
I. Reprisals and War Crimes

29 → Reprisals and → war crimes are a controversial subject and are therefore not dealt
with by the San Remo Manual. However, both are a means of enforcing the law of naval
warfare.
30 Art. 47 Geneva Convention II clearly states that reprisals may not be carried out against
protected persons: wounded, sick, or shipwrecked persons, or ships or material protected
by the Convention. Likewise, Art. 20 Additional Protocol I prohibits reprisals against
persons and objects protected under Arts 8 to 34 Additional Protocol I. As for naval
bombardment, the reprisals prohibited under land warfare also apply to naval warfare.
Certain naval operations having repercussions on land cannot be justified under the
doctrine of reprisals, for instance a blockade aimed at starving the civilian population.
Attacks against the natural environment by way of reprisals are forbidden. Usually military
manuals contain a list of forbidden reprisals but they do not indicate which reprisals are
permitted. The problem is particularly relevant for private shipping: is the belligerent
allowed to react in kind against the adversary that is sinking private ships on sight instead
of stopping and submitting them to visit and search? Supposing that a war zone is
established in reaction to the wrongful conduct of the enemy, is the belligerent entitled to
hit neutral shipping? Usually reprisals are allowed only against the wrongdoer and cannot
hit a third party. The Nuremberg Tribunal condemned Germany’s policy of unrestricted
submarine warfare hitting enemy as well as neutral shipping. In particular, the judgment
focused on targeting neutral shipping (The United States of America et al v Göring et al
[Judgment and Sentences of the International Military Tribunal] [Nuremberg] [1 October
1946] (1947) 41 AJIL 172, at 303–6).
31 The theory of war crimes has mainly been developed in connection with land warfare. It
is obvious, however, that war crimes may also be committed in connection with naval
warfare, and the same crime may be committed in land warfare as well in naval warfare, for
instance, killing a prisoner of war. After each engagement, survivors should be searched for
and rescued. One of the indictments of Doenitz at Nuremberg was in connection with the
Laconia order and the policy not to collect survivors of ships torpedoed by German
submarines. However, the failure to rescue survivors was not considered a criminal act if
the rescue resulted in endangering the safety of the submarine.
32 The 1907 Hague Convention IX regulates naval bombardment. It contains a number of
prohibitions, without qualifying them as a war crime. Geneva Convention IV qualifies the
destruction of hospitals and neutralized zones as a crime of war. It may also be held
applicable to naval bombardment. Our reading of Additional Protocol I entails the
application of Art. 85 to naval bombardment, with the consequence that an intentional
attack against a non-defended locality is to be considered a war crime. The same is true for
the other instances envisaged by that provision, such as an attack against the civilian
population.
33 The following list gives examples of conduct to be considered war crimes:
(i) the sinking of a vessel clearly indicating its surrender. It should be

remembered that the obligation to give quarter is also applicable to naval
warfare;
(ii) attack against a hospital ship (Arts 22 and 51 Geneva Convention II and Art.
85 Additional Protocol I);
(iii) attack against persons protected by the Geneva Convention II, ie

wounded, sick and shipwrecked (Art. 13 Geneva Convention II and Art. 85 (2)
Additional Protocol I).
Note that Art. 18 Geneva Convention II imposes the duty to search for and rescue the
shipwrecked after a naval engagement, but does not qualify infringement of this provision
as a crime of war.
J. Termination of Naval Operations

34 In principle, the law dictates the same rules for terminating land, naval, and air
hostilities between States. However, naval operations have some specificities. For example,
after the unilateral surrender by Argentina in 1982 and the declaration that it would not
resume hostilities, the United Kingdom terminated the temporary exclusion zone around
the Falklands and established a 150-mile zone around the archipelago barring Argentinean
naval vessels and private shipping. Usually, a → ceasefire entails the suspension of all land,
sea, and air operations. However, practice shows that States often try to conduct visit and
search of shipping bound for an enemy port, as did Iran notwithstanding the adoption of
UNSC Res 598 (1987) ([20 July 1987] SCOR 42nd Year 5) imposing a ceasefire.
→ Armistice[s] may also have some peculiarities. After the armistice in 1943 between the
Allied and Associated Powers and Italy, Spain interned Italian warships stationed in Spanish
ports for refuelling. Similarly, Egypt tried to search and visit shipping crossing the Suez
Canal bound for Israeli ports, notwithstanding the armistice concluded with Israel in 1949
and UNSC Res 95 (1951) ([1 September 1951] SCOR 6th Year 10) which called Egypt to
terminate all restrictions on the passage of commercial shipping and goods through the
Suez Canal wherever bound. Peace treaties may also contain provisions dealing with the
follow-up of hostilities at sea. This is true, for instance, of the revision of prize judgments.
The Treaty of Peace with Italy ([signed 10 February 1947, entered into force 15 September
1947] 49 UNTS 3) contains a provision on the revision of judgments rendered by the Italian
Court of prizes during World War II.
K. Naval Operations and Non-International Armed Conflicts
35 Naval operations are not as frequent during a non-international armed conflict
(→ Armed Conflict, Non-International). This depends, obviously, on the size of the rebels’
fleet and whether the constituted government resorts to naval operations to hit military
objectives on land. The Hague Conventions of 1907 do not deal with non-international
armed conflicts. The same is true for Geneva Convention II, which only regulates
international armed conflicts, with the exception of general rules embodied in Art. 3 which
contains an explicit reference to shipwreck. Additional Protocol II does not specifically
mention sea warfare, but for a few provisions. Part III refers to shipwrecked persons and
Art. 7 (1) states that all shipwrecked persons, whether or not they have taken part in the
armed conflict, shall be respected and protected. Art. 8 deals with the search for
shipwrecked persons after an engagement. Art. 11 regulates the protection of medical units
and transport and, in keeping with a sound interpretation, includes medical craft. Other
provisions are equally applicable to armed conflict at sea, even if not specifically mentioned.
For instance, since starvation as a method of warfare is prohibited, a blockade aimed at
starving the civilian population is forbidden. Art. 13 (2) prohibits attack against the civilian
population and this rule is equally applicable to naval bombardment. Cultural property is
protected by both Art. 19 Hague Convention on Cultural Property of 1954 and Art. 16
Additional Protocol II. They are applicable to attacks coming from the sea. During the
Yugoslavian conflict, the old town of Dubrovnik was the target of land and naval
bombardment in 1991 and 1992 in contravention of the rules protecting cultural objects
(Prosecutor v Miodrag Jokić[Sentencing Judgment] IT-01-42/1-S [18 March 2004]).
36 The classic question re naval warfare and non-international armed conflict is whether
the constituted government may declare the closure of ports in the hands of insurgents. The
standard answer is that the constituted government may close the port only by establishing
a blockade. This, however, entails a de facto recognition of belligerency, an undesired
consequence for the constituted government. During the break-up of Yugoslavia, the federal
government proclaimed the closure of the Croatian ports without resorting to blockade.
L. Naval PeaceKeeping

37 A peacekeeping force presupposes inter-operability between contingents belonging to
the various States contributing to the peacekeeping mission. While co-ordination is
relatively easy to achieve with land troops, with navies it is quite a different story. Usually
inter-operability is easily obtained in alliances such as NATO, but it is almost impossible to
achieve with navies belonging to different countries with different degrees of expertise and
different technical equipment. This is why naval peacekeeping has not been employed so
often in the history of the United Nations. Naval observer missions were established in the
framework of the UN Truce Supervision Organization in 1948 and the UN Emergency Force
in 1956. Naval peacekeeping was resorted to in the framework of the UN Security Force in
West New Guinea in 1962–63. An observer mission equipped with a modest naval presence
was also established in Central America in 1990 (UN Observer Group in Central America)
and in Cambodia in 1991 (UN Advance Mission in Cambodia). The same was true for the
Observer mission entrusted to patrol the waters off the → Shatt al Arab and the adjacent
coastal waters, after the ceasefire between Iraq and Iran (1988).
38 In the most important instances of naval peace-keeping and -enforcement, States are
authorized by the UN Security Council to enforce → sanctions, such as UNSC Res 217
(1965) ([20 November 1965] SCOR 20th Year 8) on Rhodesia; UNSC Res 665 (1990) ([25
August 1990] SCOR 45th Year 21) on Iraq; UNSC Res 713 (1991) ([25 September 1991]
SCOR 46th Year 42); UNSC Res 757 (1992) ([30 May 1992] SCOR 47th Year 13); UNSC Res
787 (1992) ([16 November 1992] SCOR 47th Year 29); and UNSC Res 820 (1993) ([17 April
1993] SCOR 48th Year 7) on the Former Yugoslavia.
39 The most recent naval operation under the aegis of the United Nations is the Maritime
Task Force (‘MTF’) set up in the framework of the UN Interim Force in Lebanon after the
2006 Israeli intervention in Lebanon. The MTF, composed of seven European navies and the
Turkish navy, operating under German lead, was authorized by UNSC Res 1701 (2006) ([11
August 2006] SCOR [1 August 2006–31 July 2007] 5) to operate in Lebanese territorial
waters but not to stop and search vessels on the high seas. Subsequently the MTF was
taken over by Euromarfor, a European force mandated by the UN.
40 Worth mentioning, even though they are only remotely connected with naval
peacekeeping, are UNSC Res 1816 (2008) ([2 June 2008] UN Doc S/RES/1816 [2008]),
UNSC Res 1831 (2008) ([19 August 2008] UN Doc S/RES/1831 [2008]), UNSC Res 1838
(2008) ([7 October 2008] UN Doc S/RES/1838 [2008]), UNSC Res 1846 (2008) ([2
December 2008] UN Doc S/RES/1846 [2008]). The resolutions address acts of → piracy and
armed robbery off the Somali coast and authorize States, co-operating with the Somali
Federal Transition Government (TGF), to intervene in the territorial waters of Somalia
(→ Somalia, Conflict). The authorization is given for a fixed period of time with the mandate
to fight piracy and to escort ships of the World Food Program. The UN Security Council
authorization eliminates any doubt concerning the validity of the consent given by the TGF.
UNSC Res 1851 (2008) ([16 December 2008] UN Doc S/RES/1851 [2008]) also authorizes
States to take action against pirates’ sanctuaries inside Somali territory. Multinational naval
forces have been dispatched by NATO (Standing NATO Maritime Group 2) and the EU
(Mission Atalanta) to fight piracy in the Gulf of Aden and off the Somali coast.
M. Conclusion
41 As previously said, the law of naval warfare was mostly codified at the Hague
Conference of 1907 and represents one of the first codifications of international law. For
many years, this law remained unchanged, notwithstanding the evolution of the
international community. Two events have rendered the state of law of naval warfare
critical: the entry into force of the UN Charter and the new law of the sea. The former,
having outlawed war, has made critical contributions to the concept of neutrality and the
right of belligerents to control neutral shipping and to seize contraband of war. The latter
has extended the coastal States’ territorial waters and limited the areas in which
belligerents are allowed to carry out hostilities, which now also encompass neutral
archipelagic waters. A further limit is constituted by the projection of the coastal States’
functional rights over areas once completely subject to the freedom of the high seas, mainly
the continental shelf and the exclusive economic zone. In this connection, environmental
considerations, which can no longer be overlooked, must be taken into account.
42 Steady progress in naval armaments and new methods of warfare complete the picture.
None of these changes have been accompanied by any revision. No general conference has
been called and major maritime powers seem satisfied with naval law as it developed in the
past century. Very few new provisions have been drafted and the most notable are those
concerning naval bombardment. For other aspects, for instance, new methods of warfare
such as exclusion zones and other zone restrictions, the current state of law is
unsatisfactory. The same holds true for naval mines. The cohabitation of the old law of naval
warfare with the new law of the UN Charter is still unsettled. Since it has been impossible
to convene a new codification conference, updating the law has been entrusted to State
practice, which is reflected in the navy manuals of the major powers. A useful contribution
is represented by the San Remo Manual, prepared by international lawyers and naval
experts coming from to a wide range of legal circles, which has influenced and is still
influencing the drafting of navy manuals.
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Select Documents
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Appendix.

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Naval Warfare

Content type: Encyclopedia entries

B. Armed Forces of Belligerents

C. Areas of Sea Warfare

D. Military Objectives

8 Art. 52 Additional Protocol I is considered customary international law and is deemed

(i) it clearly resists visit and search or capture;

(iv) it takes part in the hostilities;

(v) it is incorporated into or assisting the enemy’s intelligence or

(vi) it acts as an auxiliary vessel to the enemy.

E. Means of Warfare

F. Methods of Warfare

4. Naval Bombardment

5. Ruses of War

G. Humanitarian Issues

2. Hospital Ships

H. Environmental Considerations

I. Reprisals and War Crimes

(i) the sinking of a vessel clearly indicating its surrender. It should be

(iii) attack against persons protected by the Geneva Convention II, ie

J. Termination of Naval Operations

L. Naval PeaceKeeping

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