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
13.1.1 The Law of the Sea During Armed Conflict. The law of the sea is a body of treaty
and 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.

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 10810, 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 selfdefense 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
13.1.2 The United States and the LOS Convention. The U.N. Convention on the Law of
the 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.).

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).

Refer to 13.2.3.3 (Exclusive Economic Zones (EEZs)); 13.2.3.4 (High Seas).

Refer to 1.3.2 (The Law of Wars Relationship to Other Bodies of Law).

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
13.2.1 Territory Notes on Terminology. In some cases, the word territory is used to
describe 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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13.2.2 National Waters. National waters, which are subject to the sovereignty of a State,
include 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.).

865

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
13.2.3 International Waters. International waters, which are not subject to the
sovereignty 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 landlocked, 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 landlocked, 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.).

868

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
13.2.4 Chart Illustrating the Legal Boundaries of the Oceans and Airspace. This chart,
reproduced 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).

869

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
13.3.1 Areas of Naval Warfare. As a general rule, naval forces may attack military
objectives 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
13.3.2 Classification of Vessels. The law of land warfare has divided enemy nationals
into 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
13.3.3 Vessels Entitled to Conduct Attacks. During international armed conflict at sea,
warships 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, -

870

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 noninternational 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

13.3.4 Shipwrecked Persons. Shipwrecked persons are hors de combat, and may not be
made 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).

871

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
13.3.5 Surrender by Enemy Vessels. The general rules on the protection of persons hors
de 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:

69

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

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.).

872

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.
13.4.1 Character of Warships. A warship is generally understood to be a ship belonging
to 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
13.4.2 Attacks Against Enemy Warships. In general, enemy warships are military
objectives. 79 However, warships that have surrendered or that are exempt vessels may not be
made the object of attack. 80
13.4.3 Captured Enemy Warships No Prize Procedure. Prize procedures are not used
for 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).

873

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
13.5.1 Capture of Enemy Merchant Vessels. Enemy merchant vessels 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. 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.).

874

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
13.5.2 Attack of Enemy Merchant Vessels. Enemy merchant vessels may be made the
object 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 selfdefense 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.).

875

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
13.5.3 Detention of Personnel From Enemy Merchant Vessels. Officers and crews of
captured 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).

876

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
13.6.1 Duties of Exempt Vessels. These specially protected vessels must not take part in
hostilities 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.
13.6.2 Classes of Exempt Vessels. Specifically exempt vessels include: (1) cartel
vessels; (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

877

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).

878

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
13.7.1 General Principle Same Rules Applicable to Both Submarine and Surface
Warships. 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).

879

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
13.7.2 Different Application of Law of War Rules in the Context of Submarine Warfare.
Although 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
13.8.1 Belligerent Right to Establish Special Restrictions in the Immediate Area of Naval
Operations. 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

880

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
13.8.2 Belligerent Right to Control Communication of Neutral Merchant Vessels or
Aircraft 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

881

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
13.9.1 Authority to Establish Zones. The authority necessary to establish a zone may
depend 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.).

882

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.
13.9.2 Use of Zones to Warn Vessels or Aircraft War, Operational, Warning, and
Safety 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 Airspace).

131

Refer to 15.12 (Neutral Commerce and Carriage of Contraband); 13.8 (Belligerent Control of the Immediate
Area of Naval Operations); 13.10 (Blockade).
132

For example, HYDROLANT 597/03 (54,56) EASTERN MEDITERRANEAN SEA (202135Z MAR 2003),
reprinted in 2007 NWP 1-14M, Appendix A (2. ALL VESSELS SHOULD MAINTAIN A SAFE DISTANCE
FROM U.S. FORCES SO THAT INTENTIONS ARE CLEAR AND UNDERSTOOD BY U.S. FORCES.
VESSELS THAT ENTER THE MARITIME SAFETY ZONE WHICH ARE APPROACHING U.S. FORCES, OR
VESSELS WHOSE INTENTIONS ARE UNCLEAR ARE SUBJECT TO BOARDING AND VISIT BY U.S.
FORCES. ALL VESSELS APPROACHING U.S. FORCES ARE REQUESTED TO MAINTAIN RADIO
CONTACT WITH U.S. FORCES ON BRIDGE-TO-BRIDGE CHANNEL 16. 3. U.S. FORCES WILL EXERCISE
APPROPRIATE MEASURES IN SELF-DEFENSE IF WARRANTED BY THE CIRCUMSTANCES. VESSELS
APPROACHING U.S. FORCES WILL HELP MAKE THEIR INTENTIONS CLEAR AND AVOID
UNNECESSARY INITIATION OF SUCH DEFENSIVE MEASURES BY MAKING PRIOR CONTACT AS
DESCRIBED ABOVE.).
133

For example, HYDROLANT 597/03 (54,56) EASTERN MEDITERRANEAN SEA (202135Z MAR 2003),
reprinted in 2007 NWP 1-14M, Appendix A (U.S. FORCES IN THE EASTERN MEDITERRANEAN HAVE
ESTABLISHED A MARITIME SAFETY ZONE AND ARE CONDUCTING COMBAT OPERATIONS IN
INTERNATIONAL WATERS THAT POSE A HAZARD TO NAVIGATION. ALL VESSELS ARE ADVISED
TO EXERCISE EXTREME CAUTION AND TO REMAIN CLEAR OF THE FOLLOWING DESIGNATED
OPERATION AREA BOUND BY 32-28.0N 033-22.0E, 31-40.0N 033-22.0E, 31-55.0N 032-20.0E, 32-46.8N 03220.0E.).
134

For example, Woodrow Wilson, Executive Order Establishing Defensive Sea Areas, No. 2584, Apr. 5, 1917,
reprinted in 12 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 13, 16 (1918) (I, WOODROW WILSON, President of the
United States of America, do order that defensive sea areas are hereby established, to be maintained until further
notification, at the places and within the limits prescribed as follows, The responsibility of the United States of
America for any damage inflicted by force of arms with the object of detaining any person or vessel proceeding in
contravention to Regulations duly promulgated in accordance with this Executive order shall cease from this date.).
135

For example, A.D. Parsons, Letter Dated 24 April 1982 from the Permanent Representative of the United
Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security
Council, U.N. Doc. S/14997 (Further to Mr. Whytes letter dated 9 April 1982 (S/14963), I have the honour, on
instructions from my Government, to inform you that the following communication was conveyed to the
Government of Argentina on 23 April 1982: In announcing the establishment of a maritime exclusion zone around
the Falkland Islands, Her Majestys Government made it clear that this measure was without prejudice to the right of

883

The establishment of such a zone does not relieve the proclaiming belligerent State of its
obligation under the law of war to refrain from attacking vessels and aircraft that do not
constitute military objectives. Thus, a vessel or aircraft that is otherwise protected does not
forfeit its protection from being made the object of attack simply by entering a zone of the ocean
on the high seas established by a belligerent State. 136
In some cases, however, the fact that a vessel or aircraft enters a zone without
authorization may be probative in assessing whether it is entitled to protection (e.g., whether it is
an enemy military vessel or aircraft, or whether it has acquired the character of enemy military
vessels or aircraft). 137 For example, the notification of the zone in advance may mean that most
neutral or protected vessels and aircraft have departed the area. Similarly, the entry into the zone
of an unidentified vessel without authorization may be probative of whether the vessel
constitutes a military objective.
13.9.3 Use of Zones to Counter Enemy Logistics. Zones may be used to assist in the
implementation of the belligerents strategy to counter the adversarys logistics. 138 For example,
zones may be established to facilitate the interdiction of contraband. 139 As a case in point, a
zone may be established to warn neutral vessels and aircraft that they will be subject to visit and
search if they attempt to enter the zone without authorization.
the United Kingdom to take whatever additional measures may be needed in the exercise of its right of self-defence
under Article 51 of the United Nations Charter. In this connection, Her Majestys Government now wishes to make
clear that any approach on the part of Argentine warships, including submarines, naval auxiliaries, or military
aircraft which could amount to a threat to interfere with the mission of the British forces in the South Atlantic, will
encounter the appropriate response. All Argentine aircraft including civil aircraft engaging in surveillance of these
British forces will be regarded as hostile and are liable to be dealt with accordingly.).
136

John H. McNeil, Neutral Rights and Maritime Sanctions: The Effects of Two Gulf Wars, 31 VIRGINIA JOURNAL
635-36 (1991) (Iraq replied to these Iranian declarations by proclaiming a series of
escalating exclusion zones, beginning with a prohibited war zone; Iraq declared that it would attack all vessels
appearing within these zones, and stated that all tankers, regardless of nationality, docking at Kharg Island are
targets for the Iraqi Air Force. As noted earlier, Iraq launched the Tanker War in 1984 in an apparent bid to
internationalize the war. During the first months of this new offensive, some seventy ships were hit, many of which
were neutral-flag tankers bound to or from the massive Iranian oil terminal at Kharg Island. But international law
has never legitimized attacks upon neutral merchant vessels simply because they ventured into a specified area of
the high seas.).

OF INTERNATIONAL LAW 631,

137

Refer to 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).

138

For example, L.F.E. Goldie, Maritime War Zones & Exclusion Zones, 64 U.S. NAVAL WAR COLLEGE
INTERNATIONAL LAW STUDIES 156, 185-86 (1991) ((a) The Exclusion Zone of the Skaggerak The Skaggerak is an
arm of the North Sea on its eastern side and lies between Denmark and Norway. It is some 150 nautical miles in
length and 85 miles in width. The argument vindicating the British proclamation of the Skaggerak as a maritime
exclusion zone under emerging customary international law may be accepted, since the strategy for enforcing the
exclusion of the adversary from the zone was an apparently successful one. It was a persisting logistical strategy
enforced by both aircraft and submarines providing an adequate ratio of force to space. This proposition can be
analyzed out into the following elements. (i) The zone was reasonable in area, and despite German surface naval
power, the logistical strategy was persistently maintained and was made effective through submarine and aerial
warfare; (ii) The object, while not primarily one of self-defense, was for the related purposes of: (b) encumbering
Germanys reinforcements and supplies destined for its oppressive occupation of Norwaya victim of Nazi
aggression; (c) the target shipping had military objectives and purposes and could not be viewed as carrying supplies
which had the object of benefitting the civilian population of Norway;).
139

Refer to 15.12 (Neutral Commerce and Carriage of Contraband).

884

Zones may not be employed for the purpose of starving the civilian population. 140 Such
zones must not impose an unreasonable burden on neutral commerce in free goods. 141
13.9.4 Use of Zones to Prevent Movement Exclusion Zones. Belligerents may
establish exclusion zones that prohibit the entry of vessels or aircraft without authorization from
that belligerent. 142 Such zones may suspend the right of innocent passage through non-neutral
waters. 143
The extent, location, and duration of the exclusion zone and the measures imposed should
not exceed what is required by military necessity. 144
Belligerents establishing such zones must provide safe passage through the zone for
neutral vessels and aircraft where the geographical extent of the zone significantly impedes free

140

Refer to 5.20 (Starvation).

141

See 2007 NWP 1-14M 7.9 (To the extent that such zones serve to warn neutral vessels and aircraft away from
belligerent activities and thereby reduce their exposure to collateral damage and incidental injury (see paragraph
8.3.1), and to the extent that they do not unreasonably interfere with legitimate neutral commerce, they are
undoubtedly lawful.).
142

For example, 2004 UK MANUAL 12.58 footnote 76 (During the Falklands conflict 1982, a total exclusion zone
of 200 nautical miles was established around the Islands. It applied, inter alia, to any aircraft, military or civil,
operating in support of the illegal occupation by the Argentine forces, and any aircraft (military or civil) found
within the zone without authority from the Ministry of Defence would be regarded as operating in support of the
illegal occupation and thus hostile and liable to be attacked by the British forces.).
143

For example, HYDROPAC 795/2004 (62) PERSIAN GULF (030850Z MAY 2004), reprinted in 2007 NWP 114M, Appendix C (8. ADDITIONALLY, EFFECTIVE IMMEDIATELY, EXCLUSION ZONES ARE
ESTABLISHED AND THE RIGHT OF INNOCENT PASSAGE IS TEMPORARILY SUSPENDED IN
ACCORDANCE WITH INTERNATIONAL LAW AROUND THE KAAOT AND ABOT OIL TERMINALS
WITHIN IRAQI TERRITORIAL WATERS. THE EXCLUSION ZONES EXTEND 2000 METERS FROM THE
OUTER EDGES OF THE TERMINAL STRUCTURES IN ALL DIRECTIONS. 9. ONLY TANKERS AND
SUPPORT VESSELS AUTHORIZED BY TERMINAL OPERATORS OR COALITION MARITIME SECURITY
FORCES ARE ALLOWED TO ENTER THE EXCLUSION ZONES. VESSELS ATTEMPTING TO ENTER THE
ZONES WITHOUT AUTHORIZATION MAY BE SUBJECT TO DEFENSIVE MEASURES, INCLUDING
WHEN NECESSARY, THE USE OF DEADLY FORCE. ALL REASONABLE EFFORTS WILL BE TAKEN TO
WARN VESSELS AWAY BEFORE EMPLOYING DEADLY FORCE. HOWEVER, DEADLY FORCE WILL
BE EMPLOYED WHEN NECESSARY TO PROTECT COALITION MARITIME SECURITY FORCES,
LEGITIMATE SHIPPING PRESENT IN THE EXCLUSION ZONES AND THE OIL TERMINALS.).
144

For example, Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea, in DIETER FLECK, THE
HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 467 (1049) (On 28 April 1982 Great Britain
proclaimed a Total Exclusion Zone (TEZ) in the South Atlantic. Beside deterring the Argentine naval forces from
leaving their ports, its main purpose was to facilitate the early identification of military objectives and to prevent
vessels flying neutral flags from conveying information to Argentina. On one hand, the British TEZ covered an
area of 200 nautical miles measured from the centre of the main island. On the other hand, the TEZ was situated far
from any main shipping lanes. Moreover, its duration was comparatively short. It did not serve economic warfare
purposes but was aimed at facilitating military operations, including identification. Vessels and aircraft flying flags
of states not parties to the conflict suffered no damage whatsoever. For these reasons, only the former USSR
officially protested against the British TEZ.).

885

and safe access to the ports and coasts of a neutral State and, unless military requirements do not
permit, in other cases where normal navigation routes are affected. 145
13.9.5 Procedures for Declaring a Zone. As a matter of practice, maritime and/or aerial
warnings (e.g., HYDROLANT, HYDROPAC, Notice to Airmen (NOTAM)) would ordinarily be
promulgated as part of the establishment of a maritime or airspace zone.
13.10 BLOCKADE
A blockade is an operation by a belligerent State to prevent vessels and/or aircraft of all
States, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal
areas belonging to, occupied by, or under the control of an enemy belligerent State. 146
13.10.1 Purpose of Blockade and Belligerent Rights Associated With Blockade. The
purpose of a blockade is to deprive the adversary of supplies needed to conduct hostilities. 147
A blockade enables the blockading State to control traffic in the blockaded area. A
blockade also enables the blockading State to take measures on the high seas to deny supplies to
a blockaded area. 148 For example, a blockading State has the right to visit and search vessels on
the high seas to enforce its blockade. 149
13.10.2 Criteria for Blockades. In order to be binding, a blockade must meet certain
criteria.
13.10.2.1 Authority for the Establishment of a Blockade. A blockade must be
established by proper legal authority. The establishment of a blockade has been accomplished
145

2007 NWP 1-14M 7.9 (Belligerents creating such zones must provide safe passage through the zone for neutral
vessels and aircraft where the geographical extent of the zone significantly impedes free and safe access to the ports
and coasts of a neutral state and, unless military requirements do not permit, in other cases where normal navigation
routes are affected.).
146

2007 NWP 1-14M 7.7.1 (Blockade is a belligerent operation to prevent vessels and/or aircraft of all nations,
enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied
by, or under the control of an enemy nation.); 1997 NWP 9 7.7.1 (same); 1989 NWP 9 7.7.1 (same); 1955 NWIP
10-2 632a (A blockade is a belligerent operation intended to prevent vessels of all States from entering or leaving
specified coastal areas which are under the sovereignty, under the occupation, or under the control of an enemy.).
147

ICRC AP COMMENTARY 654 (2095) (It should be emphasized that the object of a blockade is to deprive the
adversary of supplies needed to conduct hostilities, and not to starve civilians.).
148

John Reese Stevenson, Department of State, Legal Adviser, Letter dated June 6, 1972, reprinted in Steven C.
Nelson, Contemporary Practice of the United States Relating to International Law, 66 AJIL 836, 837 (1972) (To
have declared a blockade could have implied, under traditional international law, a whole range of actions which
would have extended the area of hostilities and risked grave dangers of widening the conflict. The traditional law of
blockade requires a formal declaration of the establishment of the blockade and notification of it to all states. A
blockade must be effective in preventing all ingress or egressincluding commercial trade and activitiesfrom or
to the enemy's coast. The blockading state would have the right to stop vessels of any nation anywhere on the high
seas, to inspect and search such vessels, to seize them if they are bound to or from the blockaded ports, and
eventually to condemn them and their cargos in a prize court. Ships attempting to violate the blockade could be
taken under fire should they fail to stop on order.).
149

Refer to 15.13.1 (Purposes of Visit and Search).

886

by a declaration of the belligerent State, or by the commander of the blockading force acting on
behalf of the belligerent State. 150
The U.N. Security Council is also expressly given the authority by the Charter of the
United Nations to authorize blockades. 151 A blockade of the ports or coasts of a State is
generally regarded as a measure involving force against that State for the purposes of the Charter
of the United Nations. 152
13.10.2.2 Notification of the Blockade. It is customary for the belligerent State
establishing the blockade to notify all affected States of its imposition.153 The commander of the
blockading forces will usually also notify local authorities in the blockaded area. 154
Notification should include, as a minimum, the date the blockade is to begin, its
geographic limits, and the grace period granted neutral vessels and aircraft to leave the area to be
blockaded. 155

150

Consider DECLARATION OF LONDON art. 9 (1909) (A declaration of a blockade is made either by the blockading
Power or by the naval authorities acting in its name.).
151

Refer to 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of the
Charter of the United Nations).
152

See, e.g., Legal and Practical Consequences of a Blockade of Cuba, Oct. 19, 1962, 1 SUPPLEMENTAL OPINIONS
490 (2013) (The legality today of a blockade unilaterally imposed by one
state upon another depends upon its compatibility with the language and principles of the Charter. Ordinarily it, like
other measures involving force, is reserved to the United Nations or to regional organizations such as the OAS. If
imposed unilaterally without prior approval it must be considered a reasonable measure under the circumstances,
proportional to the threat posed, and limited to a legitimate purpose. It does not become more or less lawful on the
basis of declaration of war or a failure to declare war.); Definition of Aggression, arts. 1, 3, Annex to U.N.
GENERAL ASSEMBLY RESOLUTION 3314 (XXIX), Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec.
14, 1974) (Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political
independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out
in this Definition. Any of the following acts, regardless of a declaration of war, shall, subject to and in
accordance with the provisions of article 2, qualify as an act of aggression: ... (c) The blockade of the ports or coasts
of a State by the armed forces of another State.).
OF THE OFFICE OF LEGAL COUNSEL 486,

153

2007 NWP 1-14M 7.7.2.2 (It is customary for the belligerent nation establishing the blockade to notify all
affected nations of its imposition.); 1955 NWIP 10-2 632b (It is customary for the blockade to be notified in a
suitable manner to the governments of all States.). Consider 1909 DECLARATION OF LONDON art. 11 (A
declaration of blockade is notified (1) to neutral Powers, by the blockading Power, by means of a communication
addressed to the Governments direct, or to their representatives accredited to it.).
154

2007 NWP 1-14M 7.7.2.2 (The commander of the blockading forces will usually also notify local authorities in
the blockaded area.); 1955 NWIP 10-2 632b (The commander of the blockading force usually makes notification
to local authorities in the blockaded area.). Consider 1909 DECLARATION OF LONDON art. 11 (A declaration of
blockade is notified (2) to the local authorities, by the officer commanding the blockading force. The local
authorities will, in turn, inform the foreign consular officers at the port or on the coastline under blockade as soon as
possible.).
155

2007 NWP 1-14M 7.7.2.1 (The declaration should include, as a minimum, the date the blockade is to begin, its
geographic limits, and the grace period granted neutral vessels and aircraft to leave the area to be blockaded.); 1955
NWIP 10-2 632b (The declaration should include the date the blockade begins, the geographical limits of the
blockade, and the period granted neutral vessels and aircraft to leave the blockaded area.). Consider 1909
DECLARATION OF LONDON art. 9 (A declaration of blockade is made either by the blockading Power or by the naval

887

The form of the notification is not material so long as it is effective, and a variety of
methods may be used. 156
The notification of the blockade may establish a presumption of knowledge of the
blockade that is required in the offense of breach or attempted breach of a blockade. 157
13.10.2.3 Effectiveness of the Blockade. In order to be binding, a blockade must
be effective. 158 This requirement of effectiveness is intended to prevent paper blockades. 159
The requirement of effectiveness means that the blockade must be maintained by forces
that are sufficient to render ingress or egress of the blockaded area dangerous. 160 The
authorities acting in its name. It specifies (1) The date when the blockade begins; (2) The geographical limits of
the coastline under blockade; (3) The period within which neutral vessels may come out.).
156

For example, The Public Commission to Examine the Maritime Incident of 31 May 2010, et. al (The Turkel
Commission), Report: Part one, 162-63 (58) (Jan. 2010) (In the case at hand, the State of Israel took the following
steps in order to give notice of the naval blockade: from the testimony of the Military Advocate-General, MajorGeneral Avichai Mendelblit, it can be seen that the Military Advocate-Generals Office asked the Ministry of
Transport to transmit information regarding the imposition of the naval blockade by all methods at its disposal, in
order to ensure that the notice would reach all vessels in the Mediterranean Sea. This was also done. The notice
was also published on the Internet sites of the IDF, the Shipping Authority, the Military Advocate-General, and the
Ministry of Transport, and, as noted above, via several international channels. The announcement was also
transmitted twice a day via the emergency channel for maritime communication to all ships within a distance of up
to 300 kilometers from the Israeli coast. In addition, notices were also sent to the flag States and the States that
Israel knew intended to send ships to the area. These steps clearly satisfy the requirement of notice.).
157

Refer to 13.10.4.2 (Knowledge of the Existence of Blockade).

158

Consider 1909 DECLARATION OF LONDON art. 2 (In accordance with the Declaration of Paris of 1856, a
blockade, in order to be binding must be effective that is to say, it must be maintained by a force sufficient really
to prevent access to the enemy coastline.); Declaration respecting maritime law signed by the Plenipotentiaries of
Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856,
reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89 (1907) (4. Blockades, in order to be binding, must be
effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.).
159

The Peterhoff, 72 U.S. 28, 50 (1867) (It must be premised that no paper or constructive blockade is allowed by
international law. When such blockades have been attempted by other nations, the United States have ever protested
against them and denied their validity. Their illegality is now confessed on all hands. It was solemnly proclaimed
in the Declaration of Paris of 1856, to which most of the civilized nations of the world have since adhered; and this
principle is nowhere more fully recognized than in our own country, though not a party to that declaration.); The
Olinde Rodrigues, 174 U.S. 510, 513-14 (1899) (The fourth maxim of the Declaration of Paris (April 16, 1856)
was: Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to
prevent access to the coast of the enemy. Manifestly this broad definition was not intended to be literally applied.
The object was to correct the abuse, in the early part of the century, of paper blockades, where extensive coasts were
put under blockade by proclamation, without the presence of any force, or an inadequate force; and the question of
what might be sufficient force was necessarily left to be determined according to the particular circumstances.).
160

See 2007 NWP 1-14M 7.7.2.3 (To be valid, a blockade must be effectivethat is, it must be maintained by a
surface, air, or subsurface force or other legitimate methods and means of warfare that is sufficient to render ingress
or egress of the blockaded area dangerous.); 1955 NWIP 10-2 632d (A blockade, in order to be binding, must be
effective. This means that a blockade must be maintained by a force sufficient to render ingress and egress to or
from the blockaded area dangerous.); The Olinde Rodrigues, 174 U.S. 510, 515 (1899) (Such is the settled
doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions
issued by the Secretary of the Navy, June 20, 1898, General Order No. 492: A blockade to be effective and binding
must be maintained by a force sufficient to render ingress to or egress from the port dangerous.);

888

requirement of effectiveness does not preclude temporary absence of the blockading force, if
such absence is due to stress of weather or to some other reason connected with the blockade
(e.g., pursuit of a blockade runner). 161
The forces that are necessary to make a blockade effective depend on the specific military
circumstances. 162 The blockade may be maintained by forces that are some distance from the
shore. 163
13.10.2.4 Impartial Application of the Blockade. A blockade must be applied
impartially to the vessels and aircraft of all States. 164 The requirement that a belligerent must
apply a blockade impartially to the vessels and aircraft of all States is intended to prevent
measures of discrimination by the blockading belligerent in favor of or against the vessels and
aircraft of particular States, including its own or allied vessels and aircraft. 165
13.10.2.5 Limitations on the Scope of the Blockade. A blockade must not bar
access to, or departure from, neutral ports and coasts. 166
A blockade may not be used for the purpose of starving the civilian population, and the
expected incidental harm to the civilian population may not be excessive in relation to the
expected military advantage to be gained from employing the blockade. 167

161

2007 NWP 1-14M 7.7.2.3 (The requirement of effectiveness does not preclude temporary absence of the
blockading force, if such absence is due to stress of weather or to some other reason connected with the blockade
(e.g., pursuit of a blockade runner).). Consider 1909 DECLARATION OF LONDON art. 4 (A blockade is not regarded
as raised if the blockading force is temporarily withdrawn on account of stress of weather.).
162

See The Olinde Rodrigues, 174 U.S. 510, 516-18 (1899) (As we hold that an effective blockade is a blockade so
effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that the
question of effectiveness is not controlled by the number of the blockading force. In other words, the position
cannot be maintained that one modern cruiser though sufficient in fact is not sufficient as matter of law. The
question of effectiveness must necessarily depend on the circumstances. We agree that the fact of a single capture is
not decisive of the effectiveness of a blockade, but the case made on this record does not rest on that ground. We
are of opinion that if a single modern cruiser blockading a port renders it in fact dangerous for other craft to enter the
port, that is sufficient, since thereby the blockade is made practically effective.).
163

2013 GERMAN MANUAL 1062 (A blockade, in order to be binding, must be effective (25 Principle 4). It must
be maintained by armed forces sufficient to prevent access to the blockaded coast. Long distance blockades are
also permissible, i.e. the blockade and control of an enemy coast by armed forces at a greater distance from the
blockaded coast as a result of military requirements.); 2004 UK MANUAL 13.68 (The force maintaining the
blockade may be stationed at a distance determined by military requirements.).
164

1955 NWIP 10-2 632f (A blockade must be applied equally (impartially) to the vessels and aircraft of all
states.). Consider 1909 DECLARATION OF LONDON art. 5 (A blockade must be applied impartially to the ships of
all nations.).
165

1955 NWIP 10-2 632f note 35 (The requirement that a belligerent must apply a blockade impartially to the
vessels and aircraft of all states is intended to prevent measures of discrimination by the blockading belligerent in
favor of or against the vessels and aircraft of particular states, including its own or allied vessels and aircraft.).
166

1955 NWIP 10-2 632e (A blockade must not bar access or departure from neutral ports or coasts.). Consider
1909 DECLARATION OF LONDON art. 18 (The blockading forces must not bar access to neutral ports or coasts.).
167

Refer to 5.20 (Starvation).

889

13.10.3 Special Entry and Exit Authorization. In certain cases, vessels or aircraft may
enter or exit a blockaded area.
13.10.3.1 Neutral Warships and Military Aircraft. Although neutral warships and
military aircraft enjoy no positive right of access to blockaded areas, the belligerent State
imposing the blockade may authorize their entry and exit. Such special authorization may be
made subject to such conditions as the blockading force considers necessary and expedient. 168
13.10.3.2 Neutral Vessels and Aircraft in Evident Distress. Neutral vessels and
aircraft in evident distress should be authorized entry into a blockaded area, and subsequently
authorized to depart, under conditions prescribed by the officer in command of the blockading
force or responsible for maintenance of the blockading instrumentality (e.g., mines). 169
13.10.3.3 Passage of Relief Consignments Under the GC. Similarly, neutral
vessels and aircraft engaged in the carriage of qualifying relief supplies for the civilian
population and the sick and wounded should be authorized to pass through the blockade cordon,
subject to the right of the blockading force to prescribe the technical arrangements, including
search, under which passage is permitted. 170
13.10.4 Breach and Attempted Breach of Blockade. Breach or attempted breach of a
blockade subjects a neutral vessel or aircraft to capture. 171
13.10.4.1 Acts of Breach or Attempted Breach of Blockade. Breach of blockade is
the passage of a vessel or aircraft through a blockade without special entry or exit authorization
from the blockading belligerent. 172

168

See 2007 NWP 1-14M 7.7.3 (Although neutral warships and military aircraft enjoy no positive right of access
to blockaded areas, the belligerent imposing the blockade may authorize their entry and exit. Such special
authorization may be made subject to such conditions as the blockading force considers to be necessary and
expedient.); 1955 NWIP 10-2 632h(1) (Neutral warships and neutral military aircraft have no positive right of
entry to a blockaded area. However, they may be allowed to enter or leave a blockaded area as a matter of courtesy.
Permission to visit a blockaded area is subject to any conditions, such as the length of stay, that the senior officer of
the blockading force may deem necessary and expedient.). Consider 1909 DECLARATION OF LONDON art. 6 (The
commander of a blockading force may give permission to a warship to enter, and subsequently leave, a blockaded
port.).
169

See 2007 NWP 1-14M 7.7.3 (Neutral vessels and aircraft in evident distress should be authorized entry into a
blockaded area, and subsequently authorized to depart, under conditions prescribed by the officer in command of the
blockading force or responsible for maintenance of the blockading instrumentality (e.g., mines).); 1955 NWIP 10-2
632h(2) (Neutral vessels and aircraft in urgent distress may be permitted to enter a blockaded area, and
subsequently to leave it, under conditions prescribed by the commander of the blockading force.). Consider 1909
DECLARATION OF LONDON art. 7 (In circumstances of distress, acknowledged by an officer of the blockading force,
a neutral vessel may enter a place under blockade and subsequently leave it, provided that she has neither discharged
nor shipped any cargo there.).
170

2007 NWP 1-14M 7.7.3 (Similarly, neutral vessels and aircraft engaged in the carriage of qualifying relief
supplies for the civilian population and the sick and wounded should be authorized to pass through the blockade
cordon, subject to the right of the blockading force to prescribe the technical arrangements, including search, under
which passage is permitted.). Refer to 5.19.3 (Passage of Relief Consignments).
171

Refer to 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

890

Attempted breach of a blockade occurs from the time a vessel or aircraft leaves a port or
airfield with the intention of evading the blockade and, for vessels exiting the blockaded area,
continues until the voyage is completed. 173 A temporary anchorage in waters occupied by the
blockading vessels does not justify capture, in the absence of other grounds. 174
A presumption arises that certain merchant vessels or aircraft are attempting to breach a
blockade where those vessels or aircraft are bound for a neutral port or airfield serving as a point
of transit to the blockaded area. 175
13.10.4.2 Knowledge of the Existence of Blockade. Knowledge of the existence
of the blockade is essential to the offenses of breach of blockade and attempted breach of
blockade; presumed knowledge is sufficient. 176
Knowledge may be presumed once a blockade has been declared and appropriate
notification provided to affected governments. 177 For example, a vessel in a blockaded port is
presumed to have notice of the blockade as soon as it commences. 178

172

2007 NWP 1-14M 7.7.4 (Breach of blockade is the passage of a vessel or aircraft through a blockade without
special entry or exit authorization from the blockading belligerent.); 1997 NWP 9 7.7.4 (same); 1989 NWP 9
7.7.4 (same); 1955 NWIP 10-2 632g (Breach of blockade is the passage of a vessel or aircraft through the
blockade.).
173

2007 NWP 1-14M 7.7.4 (Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port
or airfield with the intention of evading the blockade, and for vessels exiting the blockaded area, continues until the
voyage is completed.); 1997 NWP 9 7.7.4 (same); 1989 NWP 9 7.7.4 (substantially similar); 1955 NWIP 10-2
632g(2) (Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or air take-off point
with the intent of evading the blockade.).
174

The Teresita, 72 U.S. 180, 182 (1867) (We are of opinion that, under such circumstances, temporary anchorage
in waters occupied by the blockading vessels, does not justify capture, in the absence of other grounds.).
175

2007 NWP 1-14M 7.7.4 (There is a presumption of attempted breach of blockade where vessels or aircraft are
bound for a neutral port or airfield serving as a point of transit to the blockaded area.); 1955 NWIP 10-2 632g(1)
(There is a presumption of attempted breach of blockade where vessels and aircraft are bound to a neutral port or
airfield serving as a point of transit to the blockaded area.); The Peterhoff, 72 U.S. 28, 55 (1867) (It is an
undoubted general principle, recognized by this court in the case of The Bermuda, and in several other cases, that an
ulterior destination to a blockaded port will infect the primary voyage to a neutral port with liability for intended
violation of blockade.). Compare 15.12.2 (Requirement of Enemy Destination).
176

2007 NWP 1-14M 7.7.4 (Knowledge of the existence of the blockade is essential to the offenses of breach of
blockade and attempted breach of blockade.); 1997 NWP 9 7.7.4 (same); 1989 NWP 9 7.7.4 (same); 1955 NWIP
10-2 632g (Knowledge of the existence of a blockade is essential to the offenses of breach of blockade and
attempted breach of blockade; presumed knowledge is sufficient.). Consider 1909 DECLARATION OF LONDON art.
14 (The liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual or
presumptive, of the blockade.).
177

2007 NWP 1-14M 7.7.4 (Knowledge may be presumed once a blockade has been declared and appropriate
notification provided to affected governments.); 1997 NWP 9 7.7.4 (same); 1989 NWP 9 7.7.4 (same). Consider
1909 DECLARATION OF LONDON art. 15 (Failing proof to the contrary, knowledge of the blockade is presumed if
the vessel left a neutral port subsequently to the notification of the blockade to the Power to which such port
belongs, provided that such notification was made in sufficient time.).
178

The Prize Cases, 67 U.S. 635, 677 (1863) (A vessel being in a blockaded port is presumed to have notice of the
blockade as soon as it commences. This is a settled rule in the law of nations.).

891

A vessel sailing ignorantly (i.e., with neither presumptive nor actual knowledge) to a
blockaded port is not liable to capture, although it may be turned away from the blockaded
area. 179
13.11 NAVAL MINES
Naval mines are lawful weapons, i.e., they are not illegal per se. 180 However, specific
rules apply to their use. These rules have developed largely to mitigate the risk these mines pose
to neutral vessels. 181 Different rules apply to landmines. 182
13.11.1 Background on Naval Mines. Naval mines have been used for area denial,
coastal and harbor defense, anti-surface and anti-submarine warfare, and blockade.
Naval mines are sometimes classified as either armed or controlled mines, with
controlled mines having no destructive capability until affirmatively activated by an arming
order (thereby becoming armed mines). 183

179

Yeaton v. Fry, 9 U.S. 335, 342-43 (1809) (Marshall, C.J.) (Hispaniola is excepted absolutely from the policy;
but other ports are within the terms of the voyage insured, if they be not blockaded. It is their character, as
blockaded ports, which excludes them from the insurance. Their being excepted by this character is thought to
justify the opinion, that it is the risk attending this character which produces the exception, and which is the risk
excepted. The risk of a blockaded port, as a blockaded port, is the risk incurred by breaking the blockade. This is
defined by public law. Sailing from Tobago for Curracoa, knowing Curracoa to be blockaded, would have incurred
this risk, but sailing for that port, without such knowledge, did not incur it.).
180

Refer to 6.5 (Lawful Weapons).

181

For example, A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES
CONCERNING THE LAWS AND USAGES OF WAR. TEXT OF CONVENTIONS WITH COMMENTARIES 328-29 (1909) (The
Russo-Japanese War drew the attention of the world to the deadly results produced by floating mines. Though not
expressly mentioned in Count Benckendorffs Circular, the laying of torpedoes, etc. (pose de torpilles, etc.) was
included among the subjects for consideration. Mines were employed in the Russo-Japanese War by both
belligerents, and hundreds either broke adrift from their moorings or, not be anchored at all, floated into the high
seas and caused serious loss of life to neutrals long after the conclusion of the war. In the course of the discussion of
the British proposal in Committee, the Chinese delegate made the following declaration which brings out strongly
the dangers to which neutral shipping is exposed by their employment: At the same time, the Delegation [of China]
desires to bring to the knowledge of the delegates certain facts which it ventures to hope will suggest the
examination of this important proposition in a widely humanitarian sense. The Chinese Government is even to-day
obliged to furnish vessels engaged in coastal navigation with special apparatus to raise and destroy floating mines
which are found not only on the open sea but even in its territorial waters. In spite of the precautions which have
been taken a very considerable number of coasting vessels, fishing boats, junks and sampans have been lost with all
hands without the details of these disasters being known to the western world. It is calculated from five to six
hundred of our countrymen engaged in their peaceful occupations have there met a cruel death in consequence of
these dangerous engines of war.) (amendment in original).
182

Refer to 6.12 (Landmines, Booby-Traps, and Other Devices).

183

2007 NWP 1-14M 9.2.1 (For purposes of this publication, naval mines are classified as armed or controlled
mines. Armed mines are either emplaced with all safety devices withdrawn, or are armed following emplacement,
so as to detonate when preset parameters (if any) are satisfied. Controlled mines have no destructive capability until
affirmatively activated by some form of arming order (whereupon they become armed mines).); 1989 NWP 9
9.2.1 (For purposes of this publication, naval mines are classified as armed or controlled mines. Armed mines are
either emplaced with all safety devices withdrawn, or are armed following emplacement, so as to detonate when

892

13.11.2 Peacetime Mining. Naval mines may not be emplaced in internal waters, the
territorial sea, or archipelagic waters of another State in peacetime without that States
consent. 184
13.11.2.1 A States Archipelagic Waters and Territorial Sea. A States right to
mine its archipelagic waters and territorial sea during peacetime is subject to the right of
innocent passage of foreign vessels. 185
If armed mines are emplaced in a States own archipelagic waters or territorial sea,
appropriate international notification of the existence and location of such mines is required. 186
Because the right of innocent passage may be suspended only temporarily, 187 armed mines must
be removed or rendered harmless as soon as the security threat that prompted their emplacement
has terminated. 188
Armed mines may not be emplaced in international straits or archipelagic sea lanes
during peacetime. 189
Emplacement of controlled mines in a States own archipelagic waters or territorial sea is
not subject to notification or removal requirements. 190
preset parameters (if any) are satisfied. Controlled mines have no destructive capability until affirmatively activated
by some form of controlled arming order (whereupon they become armed mines).).
184

2007 NWP 1-14M 9.2.2 (Naval mines may not be emplaced in internal waters, territorial seas, or archipelagic
waters of another nation in peacetime without that nations consent.). See also Military and Paramilitary Activities
in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 1986 I.C.J. 14, 111-12 (213-15) (The
legal rules in the light of which these acts of mining should be judged depend upon where they took place. The
laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject
to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. It is
therefore the sovereignty of the coastal State which is affected in such cases. It has already been made clear
above that in peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act;).
185

Refer to 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).

186

Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22 (The obligations
incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence
of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger
to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII,
which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary
considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime
communication; and every States obligation not to allow knowingly its territory to be used for acts contrary to the
rights of other States.).
187

Refer to 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).

188

2007 NWP 1-14M 9.2.2 (Because the right of innocent passage can be suspended only temporarily, armed
mines must be removed or rendered harmless as soon as the security threat that prompted their emplacement has
terminated.); 1997 NWP 9 9.2.2 (same); 1989 NWP 9 9.2.2 (same).
189

2007 NWP 1-14M 9.2.2 (Armed mines may not be emplaced in international straits or archipelagic sea lanes
during peacetime.); 1997 NWP 9 9.2.2 (same).
190

2007 NWP 1-14M 9.2.2 (Emplacement of controlled mines in a nations own archipelagic waters or territorial
sea is not subject to such notification or removal requirements.); 1997 NWP 9 9.2.2 (same); 1989 NWP 9 9.2.2
(same).

893

13.11.2.2 International Waters. Controlled mines may be emplaced in

international waters (i.e., beyond the territorial sea of any State) if they do not unreasonably
interfere with other lawful uses of the oceans. What constitutes an unreasonable interference
may involve a number of factors, including:

the rationale for their emplacement (e.g., the self-defense requirements of the emplacing
State);

the extent of the area to be mined;

the hazard (if any) to other lawful ocean uses; and

the duration of their emplacement. 191

Because controlled mines do not constitute a hazard to navigation, international notice of

their emplacement is not required. 192
Armed mines may not be emplaced in international waters prior to the outbreak of armed
conflict, except under the most demanding requirements of individual or collective self-defense.
Should armed mines be emplaced in international waters under such circumstances, prior
notification of their location must be provided. A State emplacing armed mines in international
waters during peacetime must maintain an on-scene presence in the area sufficient to ensure that
appropriate warning is provided to ships approaching the danger area. All armed mines must be
expeditiously removed or rendered harmless when the imminent danger that prompted their
emplacement has passed. 193
13.11.3 Naval Mining During Armed Conflict. Belligerent States may lawfully employ
naval mines subject to certain restrictions.
Neutral States that lay automatic contact mines off their coasts must observe the same
rules and take the same precautions as those that are imposed on belligerents. 194 In addition, a
neutral State must inform ship owners, by a notice issued in advance, where automatic contact
191
2007 NWP 1-14M 9.2.2 (The determination of what constitutes an unreasonable interference involves a
balancing of a number of factors, including the rationale for their emplacement (i.e., the self-defense requirements of
the emplacing nation), the extent of the area to be mined, the hazard (if any) to other lawful ocean uses, and the
duration of their emplacement.).
192

2007 NWP 1-14M 9.2.2 (Because controlled mines do not constitute a hazard to navigation, international
notice of their emplacement is not required.); 1997 NWP 9 9.2.2 (same); 1989 NWP 9 9.2.2 (same).
193

2007 NWP 1-14M 9.2.2 (Armed mines may not be emplaced in international waters prior to the outbreak of
armed conflict, except under the most demanding requirements of individual or collective self-defense. Should
armed mines be emplaced in international waters under such circumstances, prior notification of their location must
be provided. A nation emplacing armed mines in international waters during peacetime must maintain an on-scene
presence in the area sufficient to ensure that appropriate warning is provided to ships approaching the danger area.
All armed mines must be expeditiously removed or rendered harmless when the imminent danger that prompted
their emplacement has passed.).
194

HAGUE VIII art. 4 (Neutral Powers which lay automatic contact mines off their coasts must observe the same
rules and take the same precautions as are imposed on belligerents.).

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mines have been laid. This notice must be communicated at once to the Governments through
the diplomatic channel. 195
13.11.3.1 General Obligation to Take Feasible Precautions When Using Naval
Mines. The general obligation to take feasible precautions for the protection of civilians applies
when using naval mines. 196 In particular, when anchored automatic contact mines are employed,
every possible precaution must be taken for the security of peaceful shipping. 197
13.11.3.2 International Notification When Using Armed Mines. International
notification of the location of emplaced armed mines must be made as soon as military
exigencies permit. 198 Such notification may be conducted through official public
announcements, communications to the United Nations, bilateral diplomatic notification, or
notices to mariners. 199
In particular, when anchored automatic contact mines are employed, belligerents
undertake to do their utmost to render these mines harmless within a limited time and, should
they cease to be under surveillance, to notify the danger zones as soon as military exigencies
permit, by a notice addressed to ship owners, which must also be communicated to the
Governments through the diplomatic channel. 200
13.11.3.3 Surveillance of Minefields. Surveillance or monitoring of minefields
may be an appropriate precaution to reduce the risk of harm to peaceful vessels by permitting
warning to be given to peaceful vessels that unwittingly venture near the minefield. 201

195

HAGUE VIII art. 4 (The neutral Power must inform ship-owners, by a notice issued in advance, where automatic
contact mines have been laid. This notice must be communicated at once to the Governments through the
diplomatic channel.).

196

Refer to 5.3.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
197

HAGUE VIII art. 3 (When anchored automatic contact mines are employed, every possible precaution must be
taken for the security of peaceful shipping.).

198

2007 NWP 1-14M 9.2.3 (International notification of the location of emplaced mines must be made as soon as
military exigencies permit.); 1997 NWP 9 9.2.3 (same); 1989 NWP 9 9.2.3 (International notification of the
location of emplaced armed mines must be made as soon as military exigencies permit.).
199

For example, HOWARD S. LEVIE, MINE WARFARE AT SEA 146-47 (1992) (The mining was announced by
President Nixon on radio and television on the evening of 8 May 1972. Appropriate notification was also given to
all other nations concerned, both by a letter to the President of the United Nations Security Council, and by direct
bilateral diplomatic notification, as well as by notices to mariners. That same day (9 May 1972, in Hanoi), mines
were dropped by aircraft in Haiphong harbor (and in Cam Pha and Hon Gai harbors), three days in advance of the
mines becoming armed, thus permitting the ships in the harbor three periods of daylight in which to leave if they so
desired.).
200

HAGUE VIII art. 3 (The belligerents undertake to do their utmost to render these mines harmless within a limited
time, and, should they cease to be under surveillance, to notify the danger zones as soon as military exigencies
permit, by a notice addressed to ship owners, which must also be communicated to the Governments through the
diplomatic channel.).

201

Compare 6.12.7 (Rules for Using Non-Remotely Delivered Anti-Personnel Mines Without Compliant SD/SDA
Mechanisms).

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13.11.3.4 Recording of Minefield Locations. The location of minefields must be

carefully recorded to ensure accurate notification and to facilitate subsequent removal and/or
deactivation. 202
13.11.3.5 Restrictions on Where Naval Mines May Be Placed. Mines may not be
emplaced by belligerents in neutral waters. 203
Naval mines may be employed to channelize neutral shipping, but not in a manner to
deny transit passage of international straits or archipelagic sea lanes passage of archipelagic
waters by such shipping. 204
Mining of areas of indefinite extent in international waters is prohibited. Reasonably
limited barred areas may be established by naval mines, provided neutral shipping retains an
alternate route around or through such an area with reasonable assurance of safety. 205
13.11.3.6 Prohibition Against Mining Off Enemy Coasts and Ports Solely to
Intercept Commercial Shipping. Naval mines may not be emplaced off the coasts and ports of
the enemy with the sole objective of intercepting commercial shipping. 206 Mining for some
other purpose would not violate this rule. 207 For example, mines may otherwise be used in the
strategic blockade of enemy ports, coasts, and waterways, even if commercial shipping is
incidentally affected. 208
202

2007 NWP 1-14M 9.2.3 (The location of minefields must be carefully recorded to ensure accurate notification
and to facilitate subsequent removal and/or deactivation.); 1997 NWP 9 9.2.3 (same); 1989 NWP 9 9.2.3 (same).
203

2007 NWP 1-14M 9.2.3 (Mines may not be emplaced by belligerents in neutral waters.). Refer to 15.7
(Neutral Waters).
204

2007 NWP 1-14M 9.2.3 (Naval mines may be employed to channelize neutral shipping, but not in a manner to
deny transit passage of international straits or archipelagic sea lanes passage of archipelagic waters by such
shipping.); 1997 NWP 9 9.2.3 (same); 1989 NWP 9 9.2.3 (Naval mines may be employed to channelize neutral
shipping, but not in a manner to impede the transit passage of international straits or archipelagic sea lanes passage
of archipelagic waters by such shipping.).
205

2007 NWP 1-14M 9.2.3 (Mining of areas of indefinite extent in international waters is prohibited. Reasonably
limited barred areas may be established by naval mines, provided neutral shipping retains an alternate route around
or through such an area with reasonable assurance of safety.); 1997 NWP 9 9.2.3 (same); 1989 NWP 9 9.2.3
(same).
206

HAGUE VIII art. 2 (It is forbidden to lay automatic contact mines off the coast and ports of the enemy, with the
sole object of intercepting commercial shipping.); 2007 NWP 1-14M 9.2.3 (Naval mines may not be emplaced
off the coasts and ports of the enemy with the sole objective of intercepting commercial shipping, but may otherwise
be employed in the strategic blockade of enemy ports, coasts, and waterways.); 1997 NWP 9 9.2.3 (same); 1989
NWP 9 9.2.3 (same).

207

WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 283 (2009) (If there is some other
purpose to the laying of the mines, their use in these localities is lawful. Thus, if the purpose was to intercept all
shipping, both commercial and military, the laying of the weapons would not breach this provision.).
208

For example, Richard Nixon, Address to the Nation on the Situation in Southeast Asia, May 8, 1972, 1972
PUBLIC PAPERS OF THE PRESIDENTS 583, 585 (I therefore concluded that Hanoi must be denied the weapons and
supplies it needs to continue the aggression. In full coordination with the Republic of Vietnam, I have ordered the
following measures which are being implemented as I am speaking to you. All entrances to North Vietnamese ports
will be mined to prevent access to these ports and North Vietnamese naval operations from these ports. Countries

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13.11.3.7 Neutralization of Naval Mines. Anchored mines must become harmless

as soon as they have broken their moorings. 209 In particular, it is forbidden to lay anchored
automatic contact mines that do not become harmless as soon as they have broken loose from
their moorings. 210
Unanchored mines not otherwise affixed or imbedded on the ocean floor must become
harmless within an hour after loss of control over them. 211 In particular, it is forbidden to lay
unanchored (i.e., free-floating) automatic contact mines, except when they are so constructed as
to become harmless one hour at most after the person who laid them ceases to control them. 212
13.11.4 Post-Conflict Naval Demining Obligations. The removal of naval mines at the
end of the conflict may be the subject of specific agreements among States. 213
At the close of a war to which Hague VIII is applicable, Parties to Hague VIII have an
obligation to remove the naval mines that they had laid, each State removing its own mines. 214
As regards anchored automatic contact mines laid by one of the belligerents off the coast of the
other, their position must be notified to the other party by the State that laid them, and each State
must proceed with the least possible delay to remove the mines in its own waters. 215

with ships presently in North Vietnamese ports have already been notified that their ships will have three daylight
periods to leave in safety. After that time, the mines will become active and any ships attempting to leave or enter
these ports will do so at their own risk.).
209

2007 NWP 9.2.3 (Anchored mines must become harmless as soon as they have broken their moorings.); 1997
NWP 9 9.2.3 (same); 1989 NWP 9 9.2.3 (same).
210

HAGUE VIII art. 1 (It is forbidden 2. To lay anchored automatic contact mines which do not become harmless
as soon as they have broken loose from their moorings;).

211

2007 NWP 9.2.3 (Unanchored mines not otherwise affixed or imbedded in the bottom must become harmless
within an hour after loss of control over them.); 1997 NWP 9 9.2.3 (same); 1989 NWP 9 9.2.3 (same).
212

HAGUE VIII art. 1 (It is forbidden 1. To lay unanchored automatic contact mines, except when they are so
constructed as to become harmless one hour at most after the person who laid them ceases to control them;).
213

For example, Protocol to the Agreement on Ending the War and Restoring Peace in Vietnam Concerning the
Removal, Permanent Deactivation, or Destruction of Mines in the Territorial Waters, Ports, Harbors, and Waterways
of the Democratic Republic of Vietnam, Jan. 27, 1973, 24 U.S.T. 1, art. 1 (The United States shall clear all the
mines it has placed in the territorial waters, ports, harbors, and waterways of the Democratic Republic of Vietnam.
This mine clearing operation shall be accomplished by rendering the mines harmless through removal, permanent
deactivation, or destruction.).
214

HAGUE VIII art. 5 (At the close of the war, the Contracting Powers undertake to do their utmost to remove the
mines which they had laid, each Power removing its own mines.).
215
HAGUE VIII art. 5 (As regards anchored automatic contact mines laid by one of the belligerents off the coast of
the other, their position must be notified to the other party by the Power which laid them, and each Power must
proceed with the least possible delay to remove the mines in its own waters.).

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13.12 TORPEDOES
It is forbidden to use torpedoes that do not become harmless when they miss their
mark. 216 Such torpedoes may become a hazard to innocent shipping, and therefore torpedoes
must be designed to become harmless when they have missed their mark.
For example, torpedoes have been designed to become harmless upon completion of their
propulsion run, such as by sinking to the bottom.
13.12.1 Torpedoes Notes on Terminology. In the 19th century, the term torpedo was
used to refer to any explosive munition that operated by contact against the hull of a ship,
including relatively stationary munitions that, in modern parlance, would be called mines. 217
However, by the time of the 1907 Hague VIII Convention, the term torpedo was used in the
modern sense to refer to munitions that propelled through the water. 218
13.13 DECEPTION BY NAVAL FORCES, INCLUDING THE USE OF ENEMY OR NEUTRAL FLAGS
In general, the rules concerning good faith, ruses, and perfidy also apply to naval
warfare. 219 For example, it would be prohibited for a belligerent warship to convey falsely the
appearance of a hospital ship. 220 On the other hand, a variety of deceptions are not prohibited,
including camouflage, deceptive lighting, disguised electronic signatures, and dummy ships,
among others. 221

216

HAGUE VIII art. 1 (It is forbidden 3. To use torpedoes which do not become harmless when they have missed
their mark.).

217

For example, TAMARA MOSER MELIA, DAMN THE TORPEDOES: A SHORT HISTORY OF U.S. NAVAL MINE
COUNTERMEASURES, 1777-1991, 3 (1991) (At high tide on the morning of 5 August Farragut entered the bay.
Farraguts officers had persuaded him to allow the sloop Brooklyn, hastily rigged with a rudimentary torpedo catcher
on the bowsprit, to lead the advance in place of Farraguts flagship, Hartford. Contrary to Farraguts orders,
monitor Tecumseh moved west of the red buoy where it struck and detonated one of the newly placed mines. As
Tecumseh quickly went down, Brooklyn suddenly stopped and backed, stalling the fleets advance. High in
Hartfords rigging Farragut watched Tecumseh sink and Brooklyn hesitate. From Hartfords poop deck Lieutenant
Watson heard the admirals exchange with Brooklyn: Farragut hailed again and all that could be distinguished of
her reply was something about torpedoes. Damn the torpedoes! he instantly shouted, ordering Hartfords captain
Full speed ahead, Drayton.).
218

A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES CONCERNING
THE LAWS AND USAGES OF WAR. TEXT OF CONVENTIONS WITH COMMENTARIES 328 (1909) (The word torpille

until recently appears to have meant any sort of receptacle containing an explosive intended to operate against the
hull of a ship by contact either on or below the water line. Thus, there were torpilles fizes, torpilles mouillees,
torpilles mobiles, and finally torpilles automobiles. It would appear that latterly the word has come to mean only
automobile torpedo, e.g. in the Convention now under consideration the word mine is used when an automatic
torpedo is not implied.).
219

Refer to 5.21 (Overview of Good Faith, Perfidy, and Ruses).

220

Refer to 5.24.2 (Distinctive Emblems of the Geneva Conventions (e.g., Red Cross)); 7.12.3 (Distinctive
Marking and Other Identification of Hospital Ships and Coastal Rescue Craft).
221

Refer to 5.25.2 (Examples of Ruses).

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The rules concerning deception by belligerent warships, especially with respect to the
flying of neutral flags or with respect to disguise as merchant vessels, may be considered more
permissive than similar situations in land warfare. 222
13.13.1 Belligerent Warships Use of False Colors and Other Disguises. In particular,
according to custom, it is permissible for a belligerent warship to use false colors and to disguise
her outward appearance in other ways in order to deceive an enemy, provided that before going
into action such warship shows her true colors. 223
For example, a belligerent warship may fly enemy or neutral colors and display enemy or
neutral markings in order to deceive the enemy into believing the vessel is of enemy or neutral
nationality or is not a warship. 224 Such deceptions may be used in order to facilitate the
approach of enemy vessels or to escape enemy vessels. 225
Warships, however, may not seek to claim falsely the status of vessels that are exempt
from capture or destruction. These vessels include: (1) cartel vessels; (2) hospital ships; (3)
vessels charged with religious, non-military scientific, or philanthropic missions; (4) vessels
granted safe conduct; and (5) small coastal fishing vessels and small boats engaged in local
coastal trade. 226
222

Refer to 5.24.1 (Signs, Emblems, or Uniforms of a Neutral or Non-Belligerent State).

223

See, e.g., 2007 NWP 1-14M 12.3.1 (Under the customary international law of naval warfare, it is permissible
for a belligerent warship to fly false colors and disguise its outward appearance in other ways in order to deceive the
enemy into believing the vessel is of neutral nationality or is other than a warship. However, it is unlawful for a
warship to go into action without first showing her true colors.); 2007 NWP 1-14M 12.5.1 (Naval surface and
subsurface forces may fly enemy colors and display enemy markings to deceive the enemy. Warships must,
however, display their true colors prior to an actual armed engagement.); 1955 NWIP 10-2 640a (In particular,
according to custom, it is permissible for a belligerent warship to use false colors and to disguise her outward
appearance in other ways in order to deceive an enemy, provided that prior to going into action such warship shows
her true colors.).
224

For example, TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 140 footnote 37 (During World War II the
Germans enjoyed a measurable degree of success through the skillful disguise they provided for their armed raiders.
The tactics of the armed raiders were to reveal their true identity only after having come within close enough
range to overwhelm the victim (usually armed enemy merchant vessels) by surprise. One of the most notable
actions involving these armed raiders took place in November 1941 between the Australian cruiser Sydney and the
German armed raider Kormoran. The disguised raider, when approached by the Sydney, identified herself as a
Dutch merchant vessel. Before the Sydney could establish the truth or falsity of her claimed identity the Kormoran
cast off her disguise and opened fire at a distance of 2,000 yards. As a result of the action the Sydney was destroyed
with complete loss of officers and crew.); LAUTERPACT, II OPPENHEIMS INTERNATIONAL LAW 510 (211) (On the
other hand, the following is a perfectly legitimate ruse which is reported to have occurred during the World War: at
the end of October 1914, the German cruiser Emden, hiding her identity by rigging up a dummy fourth funnel and
flying the Japanese flag, passed the guardship of the harbor Penang in the Malay States, made no reply to its signals,
came down at full speed on the Russian cruiser Zhemshug, and then, after lowering the Japanese flag and hoisting
the German flag, opened fire and torpedoed her.).
225

LAUTERPACT, II OPPENHEIMS INTERNATIONAL LAW 509 (211) (As regards the use of a false flag, it is by most
writers considered perfectly lawful for a man-of-war to use a neutral or enemy flag (1) when chasing an enemy
vessel, (2) when trying to escape, and (3) for the purpose of drawing an enemy vessel into action. On the other
hand, it is universally agreed that, immediately before an attack, a vessel must fly her national flag.).
226

Refer to 13.6 (Enemy Vessels Exempt From Capture or Destruction).

899