Full Volume 73: The Commander's Handbook on the Law of Naval Operations

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(5) Dr. Robert. S.. Wood. This book, the seventy-third volume of the International Law Studies to Dr. Wood in recognition of his devoted service to the Naval. series, is. War. dedicated. College, his. visionary leadership of the Center for Naval Warfare Studies, and his support for the rule of law..

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(7) INTERNATIONAL LAW STUDIES Volume 73.

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(9) INTERNATIONAL LAW STUDIES Volume 73. Annotated Supplement to The Commander's. Handbook on. the. Law of Naval. Operations. A.R. Thomas and James C. Duncan Editors. Naval. War. College. Newport, Rhode 1999. Island.

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(11) FOREWORD The. International. War College in. Law Studies "Blue Book". 1901 to publish. essays, treatises. series. was. initiated. and articles. by the Naval. that contribute to the. broader understanding of international law. This, the seventy-third volume of that series, publishes the Annotated Supplement to the. Law of Naval. by students. at. The Commander's Handbook on. Operations. Originally prepared in soft. the Naval. War. cover in. late. 1997 for use. College and by judge advocates and others. commanders on the law, it has been so well be able to make it available to a wider audience. responsible for advising operational. received that. we. are pleased to. through the "Blue Book". series.. The Commander's Handbook on. the. Law. of Naval Operations provides guidance. commanders and supporting staff elements at all levels of command of the Navy, Marine Corps, and Coast Guard. As an official to. operational. expresses the views of the. United. wi*h respect to the. publication,. it. international. norms governing the conduct of military operations in both time of. States. peace and time of war. This encyclopedic Annotated Supplement provides a section-by-section analysis of the Handbook with. full. discussion of the concepts. involved and the sources of the rules stated. As an unofficial publication, the positions. and opinions expressed. the United States. The. Navy. in the annotations are not necessarily those. or the Naval. War. of. College.. Annotated Supplement was prepared under the leadership of Professor. Emeritus Jack Grunawalt, while he served. as. War. Director of the Naval. Law and Policy Department. On behalf of the Secretary of the Navy, the Chief of Naval Operations, and the Commandant of the Marine Corps, I extend to Professor Grunawalt and the countless others who College's Oceans. participated in the. hope. that. those. who. it. will. development of this publication. prove. as useful to. advise operational. those. who. my. and thanks.. gratitude. study international law. commanders on. the. complex and. as it. I. has to. difficult issues. associated with military operations.. A. K. Cebrowski. Vice Admiral, U.S. Navy President, Naval. War. College.

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(13) INTRODUCTION AND ACKNOWLEDGEMENTS The Commander's Handbook. on. 1-14M/MCWP 5-2.1/COMDTPUB. fleet, in. War. and the. the. field,. Studies ("Blue. Book"). series.. Supplement will achieve. a. As. a result. much wider. commands around. (NWP. 1997 Annotated. and. at. headquarters. We extend our. College Foundation and their anonymous. contributors for funding the publication of this. on. Operations. both United States forces and those of other nations.. appreciation to the Naval. military. of Naval. P5800.1). Supplement have been well received in the activities for. Law. the. volume of the. International. Law. of their generous support, the Annotated. distribution to academic institutions. and. the world. That distribution will facilitate research. the law of naval operations and will serve to. promote the. rule of law in the. conduct of future operations. Others. of special recognition:. also are deserving. Captain J. Ashley Roach, first. JAGC,. USN. (ret.). was the primary author of the. Annotated Supplement. Ash has been a tremendous asset to the JAG Corps and. law community.. to the operational. Among his many accomplishments,. be credited with setting the stage for the Annotated Supplement. series.. Professor Emeritus and Captain Richard J. Grunawalt, JAGC, a. primary drafter and the leader of the team that produced. Annotated Supplement. Bravo Zulu to Jack for. this. he can. USN (ret.) was. this iteration. of the. and his many other operational. law achievements. Lieutenant Colonel James Duncan,. USMC. of the Oceans. Law and. Department has served as the editor for this Blue Book. Without. his. Policy. energy and. Book would not have been published. Dr. Robert S. Wood, the Dean of the Center for Naval Warfare Studies, has provided leadership and constant support to the Oceans Law and Policy enthusiasm,. this. Blue. Department throughout All those. who. its. existence.. have served in the Oceans. many other members of the. Law and. Policy Department and. community have contributed to the Commander's Handbook and the Annotated Supplement over the years. Thank you. all. for. operational law. your continuing support in updating and improving these manuals.. Both the Commander's Handbook and the Annotated Supplement. The Oceans Law and Policy Department iteration. We welcome inputs from all readers.. progress.". next. are. "works in. has started the draft of the. Dennis Mandsager Professor of Law Director, Oceans. Law. and Policy Department.

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(15) ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS. NEWPORT, 1997. RI.

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(17) 15. NOV. 1997. INTRODUCTORY NOTE The Commander's Handbook on. the. Law. of Naval Operations. 1-14M/MCWP 5-2.1/ COMDTPUB P5800.1), formerly NWP A)/FMFM 1-10, was promulgated to U.S. Navy, U.S. Marine Corps, Coast Guard activities in October 1995.. (NWP 9 (Rev.. and U.S.. The Commander's Handbook contains. no reference to sources of authority for statements of relevant law. This approach was deliberately taken for ease of reading by its intended audience the operational commander and his staff. This Annotated Supplement to the Handbook has been prepared by the Oceans Law and Policy Department,. —. Center for Naval Warfare Studies, Naval. War College. to support the. academic. and research programs within the College.. Although prepared with the. assistance. of cognizant. offices. of the General. Counsel of the Department of Defense, the Judge Advocate General of the Navy, The Judge Advocate General of the Army, The Judge Advocate General of the Air Force, the Staff Judge Advocate to the. Commandant of the Marine. Corps, the Chief Counsel of the Coast Guard, the Chairman, Joint Chiefs of Staff and the. Unified Combatant. Supplement are not the. to. Commands,. be construed. as. the annotations in this Annotated. representing official policy or positions of. Department of the Navy or the U.S. Government.. The. text. appear. of the Commander's Handbook as. footnotes. numbered. is. set forth. consecutively. verbatim. Annotations. within. each. Supplementary Annexes, Figures and Tables are prefixed by the. letter. Chapter.. "A" and. incorporated into each Chapter.. Comments,. suggestions and recommendations for changes to this. volume may. be submitted to the undersigned.. Richard J. Grunawalt Director, Oceans. Law and. Policy Department.

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(19) ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS. CONTENTS Page. No.. INTRODUCTORY NOTE CONTENTS. lii. v. ABBREVIATIONS AND RECURRING CITATIONS. xxi. PREFACE SCOPE. xxxv. PURPOSE. xxxv. APPLICABILITY. xxxvi. STANDING RULES OF ENGAGEMENT (SROE). xxxvi. INTERNATIONAL LAW. xxxvii. Practice of Nations. xxxvii. International. U.S.. Agreements. Navy Regulations. xxxvii xxxviii.

(20) VI. Page. No.. PART I—LAW OF PEACETIME NAVAL OPERATIONS. CHAPTER. 1. LEGAL DIVISIONS OF THE OCEANS. AND AIRSPACE 1.1. INTRODUCTION. 1.2. RECOGNITION OF COASTAL NATION. 1. CLAIMS. 2. 1.3. MARITIME BASELINES. 3. 1.3.1. Low- Water Line. 5. 1.3.2. Straight Baselines. 5. 1.3.3. Bays and Gulfs. 7. 1.3.4. Paver Mouths. 12. 1.3.5. Reefs. 13. 1.3.6. Harbor Works. 13. 1.4. NATIONAL WATERS. 14. 1.4.1. Internal. Waters. 15. 1.4.2. Territorial Seas. 15. 1.4.3. Archipelagic Waters. 18. 1.5. INTERNATIONAL WATERS. 19. 1.5.1. Contiguous Zones. 20. 1.5.2. Exclusive. 1.5.3. High. Seas. 23. 1.5.4. Security Zones. 23. 1.6. CONTINENTAL SHELVES. 23. 1.7. SAFETY ZONES. 25. 1.8. AIRSPACE. 25. 1.9. OUTER SPACE. 26. Economic Zones. 20.

(21) VII. Page. No.. A NNE XES Al-1. U.S. Statement in Right of Reply. A 1-2. Letter of Transmittal. Al-3 Al-4 Al-5 Al-6 Al-7 Al-8. U.S. Oceans Policy Statement. 43. Maritime Claims of the U.S. 46. Consolidated Glossary of Technical Terms. 51. U.S. Territorial Sea Proclamation. 78. U.S. U.S.. EEZ EEZ. 27. & Letter of Submittal. Fact Sheet. 32. 80. .. 83. Proclamation. FIGURES 1-1. Straight Baselines. 8. 1-2. The. 9. 1-3. Al-1. Bay With Islands Bay With Mouth Exceeding 24 Nautical Miles .... Territorial Sea of Islands and Low-Tide Elevations Legal Regimes for Oceans & Airspace. 85. A 1-2. Continental Shelf Delimitation. 86. Al-3. Depth of Sediment Test. 86. 1-4 1-5. Semicircle Test. .. .. 10. 10 17. TABLES Al-1. Parties to the. A 1-2. Parties to. Al-3 Al-4 Al-5 Al-6 Al-7 Al-8. A 1-9 Al-10 Al-11. LOS. Convention the 1958 Geneva Conventions 1982. 87. 90. States Delimiting Straight Baselines. 94. Claimed Historic Bays Claimed Territorial Seas. 96 97. Expansion of Territorial Sea Claims. 100. Archipelagic State Claims. 101. A. Multi-Island States. Not. Qualified. 104. B. Dependent Territories. 104. With Acceptable Archipelagic Ratios Contiguous Zone Claims. 105. States. Illegal. Security Zones. 106 108.

(22) VIII. Page. No.. CHAPTER 2. INTERNATIONAL STATUS AND NAVIGATION OF WARSHIPS AND MILITARY AIRCRAFT. 2.1. STATUS OF WARSHIPS. 109. 2.1.1. Warship Defined. 109. 2.1.2. International Status. 110. 2.1.3. Auxiliaries. 112. 2.2. STATUS OF MILITARY AIRCRAFT. 114. 2.2.1. Military Aircraft Defined. 114. 2.2.2. International Status. 114. 2.2.3. Military Contract Aircraft. 115. NAVIGATION IN AND OVERFLIGHT OF NATIONAL WATERS. 115. 2.3. 2.3.1. Internal. Waters. 115. 2.3.2. Territorial Seas. 116. 2.3.3. International Straits. 121. 2.3.4. Archipelagic Waters. 127. NAVIGATION IN AND OVERFLIGHT OF INTERNATIONAL WATERS. 129. 2.4.1. Contiguous Zones. 129. 2.4.2. Exclusive. 2.4.3. High. 2.4.4. Declared Security and Defense Zones. 132. 2.4.5. Polar Regions. 134. 2.4.6. Nuclear Free Zones. 136. 2.5. AIR NAVIGATION. 138. 2.5.1. National Airspace. 138. 2.5.2. International Airspace. 140. 2.4. 2.6. Economic Zones. Seas. 129 131. EXERCISE AND ASSERTION OF NAVIGATION AND OVERFLIGHT RIGHTS AND. FREEDOMS. 143.

(23) IX. Page. No.. RULES FOR NAVIGATIONAL SAFETY FOR VESSELS AND AIRCRAFT. 146. 2.7.1. International Rules. 146. 2.7.2. National Rules. 146. 2.7.3. Navigational Rules for Aircraft. 147. 2.8. U.S.-U.S.S.R.. 2.7. AGREEMENT ON THE PREVENTION OF INCIDENTS ON AND OVER THE. HIGH SEAS 2.9 2.9.1. 2.9.2 2.9.3. 147. MILITARY ACTIVITIES IN OUTER SPACE.. .. .. Outer Space Defined The Law of Outer Space International Agreements on Outer Space. 149 149 151. Activities. 2.9.4 2.9.5. 149. Rescue and Return of Astronauts Return of Outer Space Objects. 153. 154. ANNEXES A2-1 A2-2 A2-3. ALP ACFLT 016/94: Sovereign Immunity Joint US/USSR Territorial Sea Statement Policy. Policy. .. .. 161. on Exercise of the Right of 163. Assistance Entry. A2-4. CJCSI 2410.01A: Guidance. The A2-5. for. Exercise of Right of Assistance Entry. NAVJAG MSG. 061630Z Jun. 88:. 165. Guidance on 175. Transit Passage. A2-6 A2-7 A2-8. Draft. 155. MSG on Transit Passage Policy. .. 179. U.S. Freedom of Navigation Program. 186. & the Gulf of Sidra. 188. Navigation Rights. FIGURES 2-1. A Designated Archipelagic. A2-1 A2-2 A2-3. Danish. Sea Lane. .. 129. 190. Straits. Strait. of Gibralter. Strait. of Bab El. Mandeb. 191. 192.

(24) Page. No.. A2-4 A2-5 A2-6 A2-7 A2-8 A2-9 A2-10 A2-11 A2-12. Strait. of Hormuz. 193. Strait. of Malacca. 194. Strait. of Tiran. 195. Canadian Arctic. 196. Northwest Passage Latin American Nuclear-Free Zone South Pacific Nuclear-Free Zone. 197. African Nuclear- Weapon-Free. 198 199. Zone. 200. GulfofSidra. 201. TABLES A2-1 A2-2 A2-3 A2-4 A2-5 A2-6. on Warship Innocent Passage Straits Between an Island & Mainland Straits Regulated by Long-standing Conventions Straits Not Connecting High Seas/EEZ International Straits: Least Width Straits Less Then 24NM but with Adjacent High Seas Route. 202 204. Restrictions. EEZ. A2-7. States. A2-8. LOS Convention EEZ Proclamations Regarding. CHAPTER 3. with. .. .. 205. 206 207. 209. Claims Inconsistent with 1982. 210 211. Navigation. PROTECTION OF PERSONS AND PROPERTY AT SEA AND MARITIME LAW ENFORCEMENT. 3.1. INTRODUCTION. 3.2. RESCUE, SAFE HARBOR,. 3.2.1. Assistance to Persons, Ships, and Aircraft in Distress.. 3.2.2. Safe. 3.2.3. Quarantine. 214 215 216. 3.3. ASYLUM AND TEMPORARY REFUGE. 216 216. 3.3.2. Asylum Temporary Refuge. 3.3.3. Inviting Requests for. 3.3.1. 213. AND QUARANTINE. Harbor. .. 213. 219. Asylum or Refuge. 220.

(25) XI. Page. No. 3.3.4. Protection of U.S. Citizens. 220. 3.4. RIGHT OF APPROACH AND VISIT. 221. 3.5. REPRESSION OF PIRACY. 221. 3.5.1. U.S.. 3.5.2. Piracy Defined. 3.5.3. Use of Naval Forces. 3.6. 3.7. Law. 222 222 225. to Repress Piracy. PROHIBITION OF THE TRANSPORT OF SLAVES. 226. SUPPRESSION OF UNAUTHORIZED. BROADCASTING 3.8. SUPPRESSION OF INTERNATIONAL. NARCOTICS TRAFFIC. 3.9. 227. .. 227. .. RECOVERY OF GOVERNMENT PROPERTY LOST AT SEA. 3.10. 228. PROTECTION OF PRIVATE AND MERCHANT VESSELS. AND AIRCFJVFT, PRIVATE PROPERTY,. AND PERSONS 3.10.1. 228. Protection of U.S. Flag Vessels and Aircraft,. 229. U.S. Nationals and Property 3.10.2. Protection of Foreign Flag Vessels. and. Aircraft,. 230. and Persons. ..... 3.10.3. Noncombatant Evacuation Operations (NEO). 3.11. MARITIME LAW ENFORCEMENT. 231. 3.11.1. Jurisdiction to Proscribe. 232. 3.11.2. Jurisdiction to Enforce. 234. 3.11.3. Limitations. 3.11.4 3.11.5. 3.11.6. on the Exercise of Maritime Law Enforcement Jurisdiction Counterdrug Operations Use of Force in Maritime Law Enforcement Other Maritime Law Enforcement Assistance. 231. 240 244 245. 246.

(26) XII. Page. No.. TABLES A3-1. Maritime Counterdrug/ Alien Migrant Interdiction. CHAPTER 4. Agreements. 247. SAFEGUARDING OF U.S. NATIONAL INTERESTS IN THE MARITIME ENVIRONMENT. 4.1. INTRODUCTION. 4.1.1. Charter of the United Nations. 249 250. 4.2. NONMILITARY MEASURES. 254. 4.2.1. Diplomatic. 4.2.2. Economic. 4.2.3. Judicial. 254 256 257. 4.3. MILITARY MEASURES. 257. 4.3.1. Naval Presence. 258. 4.3.2. The Right of Self-Defense. 259. 4.4. INTERCEPTION OF INTRUDING AIRCRAFT. 265. ANNEXES A4-1 A4-2 A4-3. United Nations Peace-keeping Operations President's Letter of Instruction. JCS Standing Rules of Engagement. 267. 272 277. TABLES A4-1. States. On. That Ratified Amendment. to the. International Civil Aviation. Convention 286.

(27) XIII. Page. No.. PART II—LAW OF NAVAL WARFARE. CHAPTER 5. PRINCIPLES. AND SOURCES OF THE LAW. OF ARMED CONFLICT 5.1. WAR AND THE LAW. 5.2. GENERAL PRINCIPLES OF THE LAW OF. 289. ARMED CONFLICT 5.3. 5.4. COMBATANTS AND NONCOMBAT ANTS. 290. .. SOURCES OF THE LAW OF ARMED CONFLICT. .. .. 296. 297. 297. 5.4.2. Customary Law International Agreements. 5.5. RULES OF ENGAGEMENT. 305. 5.4.1. 299. ANNEXES A5-1. Letter of Transmittal. & Letter of Submittal. 306. FIGURES A5-1. Spectrum of Conflict. 314. TABLES A5-1. Parties to the. Geneva Conventions and Their. Additional Protocols. CHAPTER 6 6.. 6.1.1. 6.1.2. 315. ADHERENCE AND ENFORCEMENT. ADHERENCE TO THE LAW OF ARMED CONFLICT. 323. Adherence by the United States Department of the Navy Policy. 324 324.

(28) XIV. Page. No. 6.1.3. Command. 6.1.4. Individual Responsibility. 328. ENFORCEMENT OF THE LAW OF ARMED CONFLICT. 329. 6.2. 6.2.1. 6.2.2. The The. 327. Responsibility. Power International Committee of the Red Cross (ICRC) Protecting. 333. 334. 6.2.3. Reprisal. 335. 6.2.4. Reciprocity.. 342. 6.2.5. War Crimes Under. International. Law. 343. ANNEXES A6-1 A6-2. Reportable Violations. 359. Rules for Combatants. 362. CHAPTER 7. THE LAW OF NEUTRALITY. 7.1. INTRODUCTION. 365. 7.2. NEUTRAL STATUS. 367. 7.2.1. Neutrality. Under. the Charter of the. 368. United Nations 7.2.2. Neutrality. Under Regional and. Self-Defense Arrangements. Collective. 370. 7.3. NEUTPJVL TERRITORY. 370. 7.3.1. Neutral Lands. 371. 7.3.2. Neutral Ports and Roadsteads. 371. 7.3.3. Neutral Internal Waters. 7.3.4. Neutral Territorial Seas. 7.3.5. Neutral International. 7.3.6. Neutral Archipelagic Waters. 7.3.7. Neutral Airspace. 374 375 377 378 379. 7.4. NEUTRAL COMMERCE. 380. 7.4.1. Contraband. 381. Straits.

(29) XV Page. No.. of Noncontraband Carriage. 7.4.2. Certificate. 7.5. ACQUIRING ENEMY CHARACTER. 7.5.1. Acquiring the Character of an. Enemy Warship. 385. 385 or. 386. Military Aircraft 7.5.2. Acquiring the Character of an. Enemy Merchant. Vessel. 387. or Civil Aircraft. AND SEARCH. 7.6. VISIT. 7.6.1. Procedure for. 7.6.2. Visit. 7.7. BLOCKADE. 7.7.1. General. 7.7.2. Traditional Rules. 7.7.3. Special Entry and Exit Authorization. 7.7.4. Breach and Attempted Breach of Blockade. 7.7.5. Contemporary. 7.8. 7.8.1. 7.10. and Search. 388 389. and Search by Military Aircraft. 390 390 390 392 392 393. Practice. BELLIGERENT CONTROL OF THE IMMEDIATE AREA OF NAVAL OPERATIONS Belligerent Control of Neutral at. 7.9. Visit. 387. .. 394. Communications 394. Sea. EXCLUSION ZONES AND WAR ZONES ..... CAPTURE OF NEUTFJUL VESSELS AND AIRCRAFT. 7.10.1. Destruction of Neutral Prizes. 7.10.2. Personnel of Captured Neutral Vessels and Aircraft. 7.11. BELLIGERENT PERSONNEL INTERNED BY A. NEUTRAL GOVERNMENT. .. .. 395. 396 397 398. 399. FIGURES A7-1. Reciprocal Fdghts and Duties. 400.

(30) XVI. Page. No.. CHAPTER 8. THE LAW OF TARGETING. 8.1. PRINCIPLES OF LAWFUL TARGETING ..... 401. 8.1.1. Military Objectives. 402. 8.1.2. Civilians. and Civilian Objects. 403. 8.1.3. Environmental Considerations. 405. 8.2. SURFACE WARFAM. 407. 8.2.1. 8.2.2 8.2.3. Enemy Warships and Military Aircraft Enemy Merchant Vessels and Civil Aircraft Enemy Vessels and Aircraft Exempt From. 407 408. Destruction or Capture. 412. 8.3. SUBMARINE WARFAM. 419. 8.3.1. Interdiction of Enemy. Merchant Shipping by 419. Submarines 8.3.2. Enemy. Vessels and Aircraft. Exempt From Submarine 421. Interdiction. 8.4. AIR WARFAM AT SEA. 8.4.1. Enemy. Vessels and Aircraft. 421. Exempt From. Interdiction. Aircraft. 422. 8.5. BOMBARDMENT. 422. 8.5.1. General Rules. 423. 8.5.2. Warning Before Bombardment. 427. 8.6. LAND WARFARE. 8.6.1. Targeting in Land Warfare. 428 428. 8.6.2. Special Protection. 428. ANNEXES A8-1. ICRC. Guidelines for Military Manuals. 430.

(31) XVII. Page. No.. CHAPTER 9. CONVENTIONAL WEAPONS AND WEAPONS SYSTEMS. 9.1. INTRODUCTION. 437. 9.1.1. Unnecessary Suffering. 438. 9.1.2. Indiscriminate Effect. 440. 9.2. NAVAL MINES. 441. 9.2.1. Current Technology. 442. 9.2.2. Peacetime Mining. 442. 9.2.3. Mining During Armed Conflict. 443. 9.3. LAND MINES. 448. 9.4. TORPEDOES. 451. 9.5. CLUSTER AND FRAGMENTATION. WEAPONS 9.6. 451. BOOBY TRAPS AND OTHER DELAYED ACTION DEVICES. 451. 9.7. INCENDIARY WEAPONS ............. 452. 9.8. DIRECTED ENERGY DEVICES. 452. 9.9. OVER-THE-HORIZON WEAPONS SYSTEMS. 454. ANNEXES A9-1. CHAPTER 10.1. Letter of Transmittal. 10. 455. NUCLEAR, CHEMICAL, AND BIOLOGICAL WEAPONS. INTRODUCTION. 459.

(32) XVIII. Page. No. 10.2. NUCLEAR WEAPONS. 459. 10.2.1. General. 459. 10.2.2. Treaty Obligations. 461. 10.3. CHEMICAL WEAPONS. 10.3.1. Treaty Obligations. 10.3.2 10.3.3. Pdot Control Agents Herbicidal Agents. 466 466 473 476. 10.4. BIOLOGICAL WEAPONS. 10.4.1. Treaty Obligations. 10.4.2. United. States Policy. 477 478. Regarding Biological. Weapons. CHAPTER. 11. 478. NONCOMBATANT PERSONS. 11.1. INTRODUCTION. 481. 11.2. PROTECTED STATUS. 481. 11.3. THE CIVILIAN POPULATION. 482. THE WOUNDED, SICK, AND SHIPWRECKED. 484. 11.4. 11.5. MEDICAL PERSONNEL AND CHAPLAINS. 11.6. PARACHUTISTS. 488. 11.7. PRISONERS OF WAR. 489. 11.7.1. Trial. 11.7.2. Labor. 11.7.3. Escape. 11.7.4. Temporary Detention of Prisoners of War, Civilian Internees, and Other Detained Persons Aboard. 11.8. .. and Punishment. .. .. 486. 492 493 493. Naval Vessels. 494. INTERNED PERSONS. 495.

(33) XIX. Page. No. 11.9. PROTECTIVE SIGNS AND SYMBOLS. 496. 11.9.1. The Red Cross and Red Crescent. 496. 11.9.2. 497. 11.9.6. Other Protective Symbols The 1907 Hague Symbol The 1954 Hague Convention Symbol The White Flag Permitted Use. 11.9.7. Failure to Display. 499 499 499. 11.10. PROTECTIVE SIGNALS. 500. 11.10.1. Radio. Signals. 500. 11.10.2. Visual Signals. 500. 11.10.3. Electronic Identification. 11.11. IDENTIFICATION OF NEUTRAL. 11.9.3. 11.9.4 11.9.5. 498 498. 500. .. PLATFORMS. 501. A NNE XES All-1. Code of Conduct. 502. FIGURES 11-1. CHAPTER. Protective Signs and Symbols. 12. 503. DECEPTION DURING ARMED CONFLICT. 12.1. GENERAL. 507. 12.1.1. Permitted Deceptions. 507. 12.1.2. Prohibited Deceptions. 509. 12.2. MISUSE OF PROTECTIVE SIGNS, SIGNALS,. AND SYMBOLS 12.3. NEUTRAL FLAGS, UNIFORMS. 510. INSIGNIA,. AND 511. 12.3.1. At Sea. 511. 12.3.2. In the Air. 512.

(34) XX Page. No. 12.3.3. 12.4. 12.5. On Land. 512. THE UNITED NATIONS FLAG AND EMBLEM. 512. ENEMY FLAGS, UNIFORMS. INSIGNIA,. AND 512. 12.5.1. At Sea. 512. 12.5.2. In the Air. 513. 12.5.3. On. 513. 12.6. FEIGNING DISTRESS. 12.7. FALSE CLAIMS OF. 12.7.1. Illegal. 12.8. SPIES. 515. 12.8.1. Legal Status. 516. INDEX. Land. Combatants. NONCOMBATANT STATUS. 514 514 515. 517.

(35) ABBREVIATIONS AND RECURRING CITATIONS Short form citations, abbreviations and acronyms are utilized throughout the footnotes for recurring references in lieu of. and. alphabetical listing provides full citations. full. citations.. The following. out abbreviations and. spells. acronyms for those short form references.. ACDA. U.S.. AFP. Air Force Pamphlet. AFP. 110-20. Arms Control and Disarmament Agency. Air. U.S.. Selected. Force,. International. Agreements (AFP 110-20, 1981) (with Navy Supplement). AFP. 110-31. U.S.. Air. Conduct. Force,. of. Law. International. Armed. —The. and. Conflict. Air. Operations (AFP 110-31, 1976). AFP. U.S. Air Force, Commander's. 110-34. the. Alexander. Handbook on. Law of Armed Conflict (AFP. Offshore. Consultants,. Restrictions. Within the. Geographical. New LOS. Implications. Supply. 10-34, 1980). Navigational. Inc.,. for. States 8 (Alexander, ed. Final. Defense. 1. the. Context:. United. Report under. Service. Contract. 903-84-C-0276, Dec. 1986). AR. Army. ATP. Allied Tactical Publication. Bevans. Treaties and. Regulation. Other International Agreements of the United States of America, 1776-1949 (Bevans ed., 1968-76). BFSP Bothe, Partsch Solf. British. &. New. and Foreign State Papers. Rules for Victims of. (1982). Armed. Conflicts.

(36) XXII. CDDH. Diplomatic Conference on the Reaffirmation. Development. and. Law. Humanitarian. of. International. Applicable. in. Armed. Conflicts, 1974-1977. C.F.R.. Code of Federal Regulations. Chicago Convention. Convention on International Civil Aviation, Chicago, 7 December 1944, 59. Stat.. 1693, 84. U.N.T.S. 389 Coll,. Ord. & Rose. Legal and Moral Constraints on Low-Intensity Conflict. International eds.,. Law. War. Naval. (U.S.. No.. Studies. 67, Coll et. al.. 1995). COMDTINST. Commandant of the Coast Guard. Common. Article. article. College. common. to. all. Conventions of 12 August. Instruction. four. Geneva. 1949 for the. Protection of War Victims. Continental Shelf. Convention. Convention on the Continental Shelf, Geneva, 29 April 1958, 15 U.S.T. 471, 499 U.N.T.S. 311. DAPam. Department of the Army Pamphlet. DA Pam 27-1. Department of the Army, Treaties Governing. Land Warfare (DA Pam 27-1, 1956). DA Pam 27-1-1. Department of the Army, Protocols to the Geneva Conventions of 12 August 1949 (DA. Pam. DA Pam 27-161-1. 27-1-1, 1979). Department of the Army,. PA Pam 27-161-1, DA Pam 27-161-2. 1. International. Law. 1979). Department of the Army, 2 International Law. (DA Pam. 27-161-2, 1962).

(37) XXIII. of. an. Declaration. Declaration of. Project. Brussels. Concerning the Laws and Customs of War, Brussels,. International. 27 August 1874, 65 B.F.S.P. 1005,. reprinted in. Schindler. & Toman. 25. Declaration of. Declaration Concerning the Laws of Naval. London. War, London, 26 February 1909, 104 B.F.S.P. 242, reprinted in Schindler & Toman 755. Declaration of Paris. Declaration Respecting Maritime Law, Paris,. 16 April 1856, 115 Parry. 1,. 1. (Supp.) 89, reprinted in Schindler. Am.. Department of Defense Directive. Doswald-Beck. San. Manual on. Applicable to. L.. & Toman 699. DODDIR. Remo. J. Int'l. International. Armed Conflicts at Sea,. Law. Prepared. by International Lawyers and Naval Experts Convened by the International Institute of Humanitarian Law (Doswald-Beck ed., 1995) Fed. Reg.. Federal Register. Fleck. The Handbook of Humanitarian Law Armed Conflict (Fleck ed., 1995). FM. U.S.. Army. Field. U.S.. Army. Field. FM. 27-10. in. Manual. Manual 27-10, The Law of. Land Warfare, 1956. FMFRP. Fleet. GAOR. United Nations General Assembly,. Marine Force Reference Publications Official. Records. GC. Convention Relative Civilian Persons in. to. the. Protection of. Time of War, Geneva, 12. August 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

(38) XXIV. GPI. Protocol. Additional. Geneva. the. to. Conventions of 12 August 1949, and Relating to the Protection of Victims of International. Armed. Conflicts, 16 I.L.M. 1391, reprinted in. &. Schindler. Protocol. GPII. Toman. 551. [Additional. I]. Protocol. Additional. to. Geneva. the. Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International. Armed. Conflicts, 16 I.L.M.. 1442 [Additional Protocol. GPW. Convention Relative. II]. the. to. Treatment of. War, Geneva, 12 August 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 Prisoners of. GPW. Convention Relative. 1929. the. to. Treatment of. Prisoners ofWar, Geneva, 27 July 1929, 47 Stat.. 2021,. LNTS. 118. Schindler. 343,. reprinted. & Toman 271. The Contemporary Law of Armed. Green. in. Conflict. (1993). Greenspan. The Modern Law of Land Warfare. Grunawalt. The Law of Naval. (1959). Enemy. Warfare: Targeting. Merchant Shipping (U.S. Naval War College International Law Studies No. 65, Grunawalt ed.,. Grunawalt, King. McClain. &. 1993). Protection of the Environment During Conflict. (U.S.. International al.. GWS. 1929. eds.,. Naval. Law Studies No.. War 69,. Armed. College. Grunawalt et. 1996). Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929, 47 Stat. 2074, 118 L.N.T.S. 303,. & Toman. 257. reprinted in. Schindler.

(39) XXV. GWS. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, 6 U.S.T.3114, 75U.N.T.S. 31. GWS-Sea. Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85. Hackworth. Digest of International. Hague. Hague Convention No. Opening of Hostilities,. III. October 1907, 36. Law. Ill. Relative to the. The. 2259, 7. Stat.. 1940-44). (8 vols.,. Hague,. Am. J.. 18. Int'l L.. (Supp.) 85. Hague IV. Hague Convention No. IV Respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, 36 J. Int'l. HR. L. (Supp.). Stat.. 2227, 2. Am.. 90. Regulations Respecting the Laws and Customs. of War on Land, annex to Hague IV. (see. Hague. IV). Hague. V. V. Hague Convention No.. Respecting the. Rights and Duties of Neutral Powers and Persons in Case of War on Land,. 18 October 1907, 36 L. (Supp.). Hague VIII. Stat.. The Hague, 2310, 2 Am. J. Int'l. 117. Hague Convention No. VIII Relative Laying. of Automatic. Submarine. to the. Contact. The Hague, 18 October 1907, 36 2332, 2 Am. J. Int'l L. (Supp.) 138. Mines,. Hague IX. Stat.. Hague Convention No. IX Concerning Bombardment by Naval Forces in Time of War, The Hague, 18 October 1907, 36 Stat. 2351, 2. Am. J.. Int'l L.. (Supp.) 146.

(40) XXVI. X. Hague. X for the Adaptation. Hague Convention No. to. Maritime Warfare of the Principles of the. Geneva Convention, [of 1906], The Hague, 18 October 1907, 36 Stat. 2371, 2 Am. J. Int'l L. (Supp.) 153. Hague XI. Hague Convention No. XI Relative to Certain Restrictions with Regard to the Exercise of the Pdght of Capture in Naval War, The Hague, 18 October 1907, 36. Stat.. 2396, 2. Am. J.. Int'l L.. (Supp.) 167. Hague XIII. Hague Convention No. XIII Concerning. the. Rights and Duties of Neutral Powers in Naval. War, The Hague, 18 October 1907, 36 2415, 2 Am. J. Int'l L. (Supp.) 202. High. Seas. Convention. Stat.. Convention on the High Seas, Geneva, 29 April 1958, 13 U.S.T. 2312, 450 U.N.T.S. 92. Hudson. International Legislation 1919-1945 ed.,. Hyde. 9 vols. 1939-49). International. Law. Chiefly. as. Interpreted and. Applied by the United States (Hyde ed.,. (Hudson. ed.,. 2d rev.. 1945-47). ICAO. International Civil Aviation Organization. I.CJ.. International. Court of. Justice,. Reports of. Judgments, Advisory Opinions and Orders. ICRC. International. ICRC, Commentary. Commentary on. ('49. Conventions). ICRC, Commentary (GP. I. & II). Committee of the Red Cross the. Geneva Conventions of. 12 August 1949 (Pictet. Commentary on. et al. eds.,. 1952). the Additional Protocols of. 8 June 1977 to the Geneva Conventions of 12. August 1949 (Sandoz. et. al eds., 1987).

(41) XXVII. IMO. International Maritime Organization (formerly. Maritime. International. Consultative. Organization (IMCO)). IMT. International Military Tribunal,. IMTFE. International Military Tribunal for the Far East. INCSEA. Agreement Between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over the High Seas, Moscow, 25 May 1972, 23 U.S.T. 1168, 852 U.N.T.S. 151 [Incidents at Sea. Nuremberg. Agreement] Int'l. Leg. Mat'ls. International Legal Materials. JAG Manual. Manual of the Judge Advocate General of the Navy, JAG' Instruction 5800.7C. JCS. U.S. Joint Chiefs of Staff. Joint Pub.. JCS Joint. Joint Pub. 1-02. Dictionary of Military and Associated Terms. JSCP. JCS, Joint Strategic Capabilities Plan. Kelsen. Collective Security. Publication. War. (U.S. Naval. Studies Levie,. Documents. No.. Under. International. College International. Law Law. 39, 1954). War (U.S. Naval War College International Law Studies No. 60, Documents on. Prisoners of. Levie ed., 1979) Levie, Prisoners. Prisoners. of War. Conflict. of. War. (U.S.. International. Law. in. International. Naval Studies. No.. War. Armed College. 59, 1978).

(42) XXVIII. Lieber. Code. U.S. Department of War, Instructions for the. Government of the Armies of the United States in the Field, General Orders No. 100, 24 April 1863 Lillich. & Moore. Law from the Naval War College Review (U.S. Naval War College International Law Studies Nos. 61 & 62, Lillich & Moore eds., 1980) Readings in International. L.N.T.S.. League of Nations Treaty. LOAC. Law. London Protocol. Proces-Verbal. Series. of Armed Conflict Relating. Submarine Warfare. to. Rules. the. of. IV of the Treaty of London of 22 April 1930, London, 6 November 1936, 173 U.N.T.S. 353, 31. Am. J.. LOS LOS. Law. Int'lL. (Supp.) 137. of the Sea. United Nations Office. Bulletin. the. LOS. set forth in Part. Convention. Law of the. Sea,. for. Ocean. Law of the. Affairs. and. Sea Bulletin. United Nations Convention on the Law of the Sea opened for signature 10. December 1982, 21. I.L.M. 1261. LOS. Glossary. Consolidated Glossary of Technical Terms used in the. United Nations Convention on the Law. of the Sea, International Hydrographic Bureau Special Pub.. Aspects of the the. LOS. Official. Records. Law of the. Official. A. Manual on Technical United Nations Convention on. No.. 51,. Sea, Part. I. (1982). Records of the Third United Nations. Conference on the Law of the Sea (1975-1984). LRTWC. U.N. War Crimes Commission, Law Reports of Trials of War Criminals, 1948-49.

(43) XXIX. MacChesney. Documents and Commentary on. Situation,. Recent Developments in the International Law of the Sea (U.S. Naval War College, International Law Studies No. 51 (1956)) Malloy. Conventions,. Treaties,. International. Acts,. Protocols and Agreements between the United. America. of. States. Other. and. Powers,. 1776-1909 (Malloy comp., 1910-38) Studies. Mallison. the. in. Law. Naval. of. Warfare:. War (U.S. Law Studies. Submarines in General and Limited. Naval. War. College International. No.. 58, 1966). Public Order of the Oceans (1962). McDougal. & Burke. The. McDougal. &. Law and Minimum World. Feliciano. Public Order:. The. Legal Regulation of International Coercion (1961). MCM,. 1995. Manual. for. Courts-Martial,. United. States. (1995 Edition). MCRM. DoD. Maritime Claims Reference Manual, 2005. 1-M, 1997 (Available. at. http://www.dtic.dla.mil/defenseHnk). MJCS. Memorandum from. MLEM. U.S. Coast Guard, Maritime. Manual,. COMDTINST. Law Enforcement. 16247.1 A. A Digest of International Law. Moore Moore. the Joint Chiefs of Staff. & Turner. Readings on International. (1906). Law from. the Naval. War College Review 1978-1994 (U.S. Naval War College International Law Studies No. 68, Moore. NCA. & Turner eds.,. National. Command. 1995). Authorities.

(44) XXX Nordquist. United Nations Convention on the Law of the Sea,. 1982:. eds.,. 1985-). A. Commentary (Nordquist. in. Nuremberg Tribunal and. in. Principles of International. Principles. the charter of the. NWIP NWIP. al.. Law Recognized. Nuremberg. the. et. Judgment of the Tribunal. Naval Warfare Information Publication 10-2. Law of Naval Warfare (NWIP. 10-2, 1955). NWP. Naval Warfare Publication. NWP9. The Commander's Handbook on Naval Operations. NWP 9. (Rev. A). (NWP. 9,. (NWP. Law of. the. Law of. 1987). The Commander's Handbook on Naval Operations. the. 9 (Rev.. A)/FMFM. 1-10, 1989). O'Connell. The 2d. Official. Records. International. ed., 2 vols.. Law. of the Sea (Shearer. ed.,. 1982). Records of the Diplomatic Conference. Official. on the Reaffirmation and Development of International Humanitarian. Armed 1. Oppenheim-. Lauterpacht 2. Oppenheim-. 1. Conflicts,. Oppenheim,. Law. Geneva, 1974-1977 (1978). International. Law:. 2. Oppenheim,. International. Law:. (Lauterpacht ed., 7th ed., 1952). Oxford Manual. Institute. War on. Treatise. A. Treatise. of International Law, The Laws of Land, 9 September 1880. The Geneva Conventions of (Pictet ed., 1958). PW. A. (Lauterpacht ed., 8th ed., 1955). Lauterpacht. Pictet. applicable in. Prisoner of War. 12 August 1949.

(45) XXXI. Manual. R.C.M.. (1995. States. (MCM), United. for Courts-Martial. Part. Edition),. II,. Rules. for. Courts-Martial. Restatement (Third). Restatement (Third) of The Foreign Relations. Law of the United Roach. & Smith. States (1987). Excessive Maritime Claims (U.S. Naval. Law. College International. War. No.. 66,. (U.S. Naval. War. No.. 64,. Studies. 1994). The Law of Naval Operations. Robertson. Law. College International. Robertson. 1991). ed.,. ROE. Rules of engagement. Roerich Pact. Treaty. on. of Artistic. Protection. the. Scientific. Studies. and. Institutions. Monuments, Washington, 15 Stat.. The Law of Naval Warfare. Rubin. The Law of Piracy. Law. International. Remo. Manual. San. Remo. & Toman. Armed. Conventions,. Documents. Schmitt. & Green. Reports. & Gustafson. College. 63, 1988). Law. International. Conflict:. A. (Schindler. Collection of. and. Resolutions. & Toman. Law of War International Law. &. Green. The Reports. eds.,. to the. 1899 and 1907 (Scott. Sohn. No.. War. Conflicts at Sea (1995). Levie on the. Schmitt. (Ronzitti ed., 1988). Other eds.,. 3rd. 1988). ed.,. College. Scott,. Studies. The Laws of Armed. Rev.. April 1935; 49. (U.S. Naval. Manual on. Applicable to Schindler. Historic. 3267, T.S. 899. Ronzitti. San. and. The Law of the. (U.S. Naval. Studies. No.. War 70,. 1998) (Forthcoming). Hague Conferences of ed.,. 1917). Sea in a Nutshell (1984).

(46) XXXII. Power and War Rights. Spaight. Air. SROE. Joint. of Staff Standing. Chiefs. Engagement. (3d ed., 1947). for U.S. Forces,. Rules. of. CJCSI 3121.01. (1994). Stone. Legal. A. Treatise. Law. of. Controls. on. the. International. Conflict:. Dynamics of Disputes War. (1954). Large. Stat.. U.S. Statutes. Swarztrauber. The Three-Mile Limit of. at. Territorial. Seas. (1972). Convention. Convention on the Territorial Sea and Contiguous Zone, Geneva, 29 April 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205. T.I.A.S.. U.S.. Territorial Sea. Treaties. Agreements T.I.F.. Title. V Report. and. Other. International. Series. U.S. Department of State, Treaties in Force. Report to the Congress, Conduct of the Persian Gulf War, Pursuant to Tide V of the Gulf Supplemental Persian Conflict Authorization and Personnel Benefits Act of Final. 1991 (Pub. L. 102-25, April 1992) T.S.. Treaty Series. Tucker. The Law of War and Naval. No.. TWC. War. Neutrality. College International. Sea (U.S.. Law. Studies. 50, 1955). Trials. of War Criminals before the Nuremberg. Military Tribunals. Law No.. 10:. Under Control Council. Nuremberg, October 1946-April. 1949 (1949-53). UCMJ. at. Uniform Code of Military Justice.

(47) XXXIII. UNCLOS. III. Third United Nations Conference on the. Law. of the Sea, 1974-1982. U.N.G.A.. United Nations General Assembly. U.N.S.C.. United Nations Security Council. U.N.T.S.. United Nations Treaty. U.S.C.. United. States. U.S.T.. United. States Treaties. Series. Code and Other International. Agreements. Whiteman. Digest of International. Law (Whiteman. ed.,. 1973). Wiktor. Unperfected Treaties of the United. America 1776-1976 (Wiktor. ed.,. States. of. 1976-1994).

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(49) PREFACE SCOPE This publication. out those fundamental principles of international and. sets. domestic law that govern U.S. naval operations. at sea.. Part. I,. Law of Peacetime. Naval Operations, provides an overview and general discussion of the law of the including definitions and descriptions of the jurisdiction and sovereignty. sea,. exercised by nations over various parts of the world's oceans; the international legal status. and navigational. rights. of warships and military. aircraft;. protection of. persons and property at sea; and the safeguarding of national interests in the. maritime environment. Part. II,. Law of Naval Warfare,. of law of special concern to the naval. sets. out those principles. commander during any period. in. which. U.S. naval forces are engaged in armed conflict. Although the primary emphasis. of Part. II is. upon. the rules of international law concerned with the conduct of. naval warfare, attention. common. to the. also directed to relevant principles. is. whole of the law of armed. and concepts. conflict.. PURPOSE This publication. is. intended for the use of operational commanders and. elements. supporting. staff. officers in. command and. at all levels. their staffs. of command.. It is. designed to provide. with an overview of the. governing naval operations in peacetime and during armed. rules. of law. The. conflict.. explanations and descriptions in this publication are intended to enable the naval. commander and. comprehend more fully the legal foundations upon issued to them by higher authority are premised and to the commander's responsibilities under international and. his staff to. which the orders understand better. domestic law to execute general guidance.. It is. his. mission within that law. This publication. sets. not a comprehensive treatment of the law nor. substitute for the definitive legal guidance. others responsible for advising. forth. is it. a. provided by judge advocates and. commanders on the. law.. Although The Commander's Handbook on the Law of Naval Operations is a publication of the Department of the Navy, neither The Handbook nor its annotated supplement can be considered as a legislative enactment binding upon courts and tribunals applying the rules of war. However, their contents may possess evidentiary value in matters relating to U.S. custom and practice. See The Hostages Trial (Wilhelm List et al.), 11 1237-38, 8 LRTWC 51-52 (U.S. Military Tribunal, Nuremberg, 8 July 1947-19 Feb. 1948); The Peleus Trial, 1 LRTWC 19 (British Military Ct., Hamburg, 1945); Tlie Belsen Trial, 2 LRTWC 48-49 (British Military Ct., Luneburg, 1945); The Abbage Ardenne Case (Trial of Brigadefurher Kurt Meyer), 4 LRTWC 110 (Canadian Military Ct., Aurich, Germany, 1945). 1. .. TWC. (continued...).

(50) XXXVI. Officers in. command of. operational units are encouraged to utilize this. publication as a training aid for assigned personnel.. APPLICABILITY Part. I. of this publication. peace. Part. also. I. is. applicable to U.S. naval operations during time of. complements the more. on maritime law. definitive guidance. enforcement promulgated by the U.S. Coast Guard. Part. applies to the. II. conduct of U.S. naval forces during armed. the policy of the United States to apply the law of. armed. conflict. It. conflict to. is. all. circumstances in which the armed forces of the United States are engaged in. combat operations, otherwise designated applicable to. all. of whether such. regardless as. "war.". hostilities. -. are. hostilities. Relevant portions of Part. declared or. II are,. therefore,. involving U.S. naval forces irrespective of the. character, intensity, or duration of the conflict. Part. II. may. also. be used for. information and guidance in situations in which the United States nonparticipant in hostilities involving other nations. Part. more. definitive guidance. the U.S.. Army and. on land and. air. is. a. complements the. II. warfare promulgated, respectively, by. U.S. Air Force.. STANDING RULES OF ENGAGEMENT (SROE) The National Command Authorities. (i.e.,. the President and the Secretary of. Defense or their duly deputized alternates or successors as. the. NCA). —commonly. referred to. approve and the Chairman of the Joint Chiefs of Staff promulgates. SROE for U.S. forces (Chairman of the Joint Chiefs of Staff Instruction 3121.01 1. October 1994).. These. rules delineate the circumstances. forces will initiate and/or continue. under which U.S.. engagement with other forces encountered.. l.(... continued). In the course of these cases, the question of the status of such official publications and the British. and U.S. military manuals arose on various occasions. Although the courts recognized these publications as "persuasive statements of the law" and noted that, insofar as the provisions of. mold. was nevertheless stated that since these publications were not legislative instruments they possessed no formal binding power. Hence, the provisions of military manuals which clearly attempted to military manuals are acted upon, they. interpret the existing law. were accepted or rejected by the courts. ofthe accuracy with which the law was. LRTWC, 2.. State practice, itself a source. set forth.. in. NWIP 10-2, para.. of international law,. it. accordance with their opinion. 100. n.l;. FM 27-10, para. 1;. 15. Digest of Law and Cases 21-22.. DODDIR 5100.77, Subj: DOD Law ofWar Program, implemented for the Department. Navy by SECNAVINST 3300. 1 A, para 4a. Similar directions have been promulgated by the operational chain of command, e.g., MJCS 0124-88 4 August 1988; USCINCLANTINST. ofthe. 3300.3A; 3.. CINCPACFLTINST. The. unclassified portion. 3300.9.. ofthe. SROE. is. at. Annex A4-3. (p.. 277)..

(51) XXXVII. Combatant commanders may augment the standing rules as necessary to reflect changing political and military policies, threats, and missions specific to their area of responsibility (AOR). Such augmentations to the standing rules are approved. by the. NCA and promulgated by the Joint Staff, J-3, as annexes to the standing. rules.. This publication provides general information,. is. not directive, and does not supersede. guidance issued by such commanders or higher authority.. INTERNATIONAL LAW For purposes of this publication, international law that. rules. is. defined. as that. nations consider binding in their relations with one. International law derives. from the. another.. practice of nations in the international arena. and from international agreements. international relations. body of. International law provides stability in. and an expectation that certain acts or omissions will effect. predictable consequences. If. one nation. violates the law,. it. may. expect that. comply with international law ordinarily involves greater political and economic costs than does observance. In short, nations comply with international law because it is in their interest to do so. Like most rules of conduct, international law is in a continual state of development and change. Practice of Nations. The general and consistent practice among nations with respect to a particular subject, which over time is accepted by them others will reciprocate.. Consequendy,. generally as a legal obligation,. Customary. international law. binding upon. is. Art.. as. more. An. international agreement. 38 of the Statute of the International Court ofjustice (59. agreements, custom. (as. international law, is. and (where the. set forth in. it,. the. evidence of a general practice accepted. recognized by civilized nations,. AFP. is. nations that reflects their intention. 179) provides that, in adjudicating disputes brought before. Statute. customary international law. is. nations.. all. entered into by two or 4.. known. the principal source of international law and. International Agreements.. 1. is. failure to. decisions. Stat.. commitment to be bound by a. 1031, T.S. 993, 3Bevans. Court shall apply international. as law),. general principles of law. of national and international courts,. parties to the dispute agree) general principles. 110-20. at. texts. on. of equity. The. The Sources of International Law and the Law of the United States, 37 Nav. L. Rev. 1 (1988). 5-19. Walker,. Restatement (Revised) Foreign Relations. provides a comprehensive, yet basic, analysis of the sources of international law and their impact on the municipal law of the United States.. Countries are generally called "States" in international law. the United States, the term "nation" international law sense. This concept. 5.. Law, 6.. in. Kegley. &. is. is. used in. of the term. expanded upon. Wittkopf,. this. in Joyner,. The Global Agenda:. See also paragraph 5.4.1. (p.. 297).. To. avoid confusion with the. states. of. publication to include countries and States in the. The. Reality and Relevance of International. Issues. and Perspectives 186-97 (2d ed. 1988)..

(52) XXXVIII. its. terms in their relations with one another. International agreements, whether. bilateral treaties,. executive agreements, or multilateral conventions, are the. second principal source of international law. However, they bind only those. them or. nations that are party to. To. them.. existing. may. otherwise consent to be. bound by. the extent that multilateral conventions of broad application codify. rules. international. U.S.. that. law binding upon. Navy Regulations.. commanders International. At all times,. parties. U.S.. Law,. regarded. and non-parties. Navy Regulations,. observe international law.. to. a. may be. of customary law, they. evidence of. as. alike.. 1990, require U.S. naval. 0705,. Article. Observance of. states:. command. to observe, the principles. to fulfill this responsibility,. a departure from other. commander shall observe, and require. of international law. Where necessary. their. Q. provisions of Navy Regulations. 7.. The. particular. name. is. authorized.. assigned to the arrangement,. memorandum of understanding, exchange not. alter the fact that. it is. of notes or. letters,. e.g.,. treaty,. executive agreement,. technical arrangement or plan, does. an international agreement if the arrangement falls within the definition of. international agreement provided in this paragraph. Procedures within the U.S.. negotiating international agreements regulations. which impose. international agreements. may be found. stringent controls. on the. in State. Government for and Navy. DOD. Department,. negotiation, conclusion and forwarding of. by organizational elements of the Department of the Navy. Those. requirements are set forth in 22 C.F.R. part 181;. DODDIR. 5530.3, Subj: International. Agreements, 11 June 1987. Implementing Navy instructions include SECNAV Instruction 5710.25 (series), Subj: International Agreements; OPNAV Instruction 5710.24, Subj: International Agreements. OPNAV. Agreements. Navy Procedures; and OPNAV Instruction 5710.25,. Procedures.. Questions regarding the definition and processing of. international agreements should be referred to the Office of the. (N3L/N5L). or the Office of the. Subj: International. Deputy. Assistant. and Operational Law (Code 10)). Vienna Convention on the Law of Treaties,. Chief of Naval Operations. Judge Advocate General of the Navy. (International 8.. 679 (1969) and 9.. Navy. UCMJ,. AFP art.. arts. 1,. 26. & 38,. reprinted in. 8. Int'l. Leg. Mat'ls. 110-20, at 7-2.. 92, provides that a violation of a lawful general regulation, such as. Regulations, 1990,. is. punishable by court-martial.. art.. 0705,.

(53) PARTI. LAW OF PEACETIME NAVAL OPERATIONS Chapter. 1. Chapter 2. — —. Legal Divisions of the Oceans and Airspace. International Status. and Navigation of Warships and. Military Aircraft. Chapter 3. —. Protection of Persons and Property at Sea and. Maritime Chapter 4. —. Law Enforcement. Safeguarding of U.S. National Interests in the. Maritime Environment.

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(55) CHAPTER 1 Legal Divisions of the. Oceans and Airspace. INTRODUCTION. 1.1. The. oceans of the world traditionally have been. headings of internal waters,. classified. and high. territorial seas,. under the broad. seas.. Airspace has. 1. been divided into national and international concepts have evolved, such. as. In recent years,. airspace.. economic zone and. the exclusive. new. archipelagic. expanded the jurisdictional claims of coastal and island nations over wide expanses of the oceans previously regarded as high seas. The phenomenon of expanding maritime jurisdiction and the rush to extend the. waters, that have dramatically. 12 nautical miles and beyond were the subject of international. territorial sea to. negotiation from 1973 through 1982 in the course of the Third United Nations. Law of the Sea. That Conference produced the 1982 United Convention on the Law of the Sea (1982 LOS Convention).. Conference on the Nations. announced that it would neither sign nor ratify the Convention due to fundamental flaws in its deep seabed mining. In 1983, the United States. LOS. 1982. Space, or outer space, begins at the undefined. 1.. airspace. space. and extends. to infinity.. upward. limit. of national or international. That undefined point of demarkation between airspace and outer. generally regarded as occurring at that yet to be determined point. is. incapable of sustaining aerodynamic flight and. where. where the atmosphere. artificial satellites. is. cannot be sustained in. The Modern International Law of Outer Space 522-33 (1982); Fawcett, Outer Law and Policy 16-17 (1984). 2. The 1982 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, U.N. Doc. A/CONF. 62/122 (1982), is reprinted in the Navy supplement to AFP orbit. Christol,. New. Space:. 110-20 and. Challenges to. in. 21. Int'l. Each country has. Those without. its. Leg. Mat'ls 1261 (1982).. own preference. a strong. for. maximizing the benefits of its relationships with the. maritime history tend to see their. nations than inclusively with the international overflight. Alexander, 8.. coastal nation the. United. The. interests. is. community. of the United States. States seeks to exploit. maritime power the United States. interests. its. Dep't. St. Bull.,. the international. oceans. Mar.. lies. L.. Oct. 1986,. community. in the equal. & Comm.. at 42.;. sea.. exclusively as coastal. favoring maritime navigation and. reflect that. apparent dichotomy:. and offshore. fisheries resources. as a. oil deposits; as a. dependent on unencumbered navigation and overflight. routes throughout the world and in outer space. Negroponte, Seas?,. more. However, an approach. actually benefits. all. Who Will Protect Freedom of the reflecting the inclusive interests. of. nations, since the fundamental importance of the. and reasonable access to them for. all. nations.. Harlow, Book Review, 18 J.. 150-51 (1987).. An understanding of the. historical. development of the law of the. sea. is. necessary to appreciate the. evolutionary nature of international law generally and the importance the actions and inactions of. governments, including their navies, have in establishing and losing. rights..

(56) Commander's Handbook on. 2. the. Law. of Naval Operations. provisions.. Although the Convention, by its terms, would not come into formal. effect until. one year following deposit with the United Nations of the 60th. instrument of. ratification, the. relating to navigation. United. States considered that the provisions. and overflight codified existing law and practice and. reflected customary international law.. On November. 16, 1994, the. 1982. LOS. respect to those nations that are parties to. Convention came into. force,. The concerns of the United. it.. and other industrialized nations with respect. with. States. deep seabed mining. to the. provisions of the Convention were successfully resolved by an. Agreement. adopted without dissent by the United Nations General Assembly on July 28,. That Agreement contains. 1994.. Convention and. is. to. submitted the 1982. binding changes to the 1982. LOS. be applied and interpreted together with the Convention. On. as a single treaty.. legally. October. LOS. 7,. 1994, the President of the United States. Convention and the Agreement reforming. its. deep. seabed mining provisions to the Senate for its advice and consent to accession and ratification, respectively.. 1.2. RECOGNITION OF COASTAL NATION CLAIMS. In a statement. on U.S. oceans policy. issued 10. March 1983,. the President. stated:. First,. the United States. is. prepared to accept and act in accordance with the. balance of interests relating to traditional uses of the oceans [in the 1982. Convention]. —such. as. will recognize the rights. of other States in the waters off their. 3.. See Statement by the President, Mar. 10, 1983,. 4.. See Table. Convention. as. Al-1. (p.. LOS. navigation and overflight. In this respect, the United States. Annex Al-3. coasts, as reflected in. (p. 43).. 87) for a listing of nations that have ratified or acceded to the 1982. of 1 November 1997. See Annex Al-1. (p.. LOS. 27) for the views of the United States. as. to the rights and duties of non-parties to the Convention as articulated in its 8 March 1983 Statement in Right of Reply, 17 LOS Official Records 243. Figure Al-1 (p. 85) illustrates the several regimes. International navigation and overflight and conduct by coastal nations in those areas are discussed in Chapter 2. The United States is a party to the Territorial Sea Convention, the Continental Shelf Convention, the High Seas Convention and the Fisheries Convention. See Table Al-2 (p. 90) for a listing of nations that are parties to these four 1958 Geneva Conventions. 5. U.N. General Assembly Resolution A/RES/48/263 of 17 Aug 1994 and accompanying Annex "Agreement Relating to the Implementation of Part XI of the United Nations Convention. on the Law of the Sea of 10 December 1982," 6. Id., Agreement Art. 2 at 474.. reprinted in. Nordquist, Vol.. 1. at. 471-91.. of Transmittal, Oct. 7, 1994, Senate Treaty Doc. 103-39, (see Annex Al-2 (p. 32)). For an excellent overview of the 1982 LOS Convention seeDoran, An Operational Commander's 7. Letter. Perspective of the 1982. 1995). at. 335-47.. On. LOS Convention,. Int'lJ.. of Marine & Coastal L., Vol. 10, No. 3 (August Convention see Department of Defense. the national security aspects of the. White Paper, National. Security and the. Law of the. Sea,. 2nd. ed.,. January 1996..

(57) Oceans and Airspace. Legal Divisions of the. 3. the Convention, so long as the rights and freedoms of the United States and others. under international law are recognized by such Second, the United States will exercise and rights. and freedoms on. worldwide. a. basis in a. coastal States.. assert its. manner. balance of interests reflected in the Convention.. however, acquiesce in. unilateral acts. navigation and overflight that. is. consistent with the. The United. of other States designed to. States will not,. restrict the rights. and freedoms of the international community in navigation and overflight and other related high seas uses.. The legal. of ocean and airspace areas directly. classifications ("regimes"). affect. by determining the degree of control that a coastal nation may exercise over the conduct of foreign merchant ships, warships, and aircraft operating within these areas. The methods for measuring maritime jurisdictional claims, and the extent of coastal nation control exercised in those areas, are set naval operations. forth in the succeeding paragraphs of this chapter.. Reference Manual. (DoD. 2005. 1-M) contains. The. a listing. DOD Maritime Claims of the ocean claims of. coastal nations.. 1.3. MARITIME BASELINES. The. territorial sea. and. all. other maritime zones are measured from baselines.. In order to calculate the seaward reach of claimed maritime zones,. necessary to 8.. See. comprehend how. Annex Al-3. (p.. 43) for the. baselines are drawn.. of this statement. United. full text. it is first. 1. been to Convention. States practice has. recognize those provisions of maritime claims that are consistent with the 1982. LOS. and assert its rights against those aspects that are inconsistent with internationally recognized rights and freedoms. For example, the United States will recognize a 12 nautical mile territorial sea claim, but not a restriction on warship innocent passage in those waters. and. to diplomatically protest. 9.. 10.. See also Figure. The. Al-1. (p. 85).. MCRM provides. a description. of the nature of the various claims and includes. a. system of charts depicting the baselines and seaward reach of the claimed areas of national jurisdiction.. These claims. State, Limits in the Seas. also. No.. appear in certain issues of Notice to Mariners. (e.g.,. 1/97), U.S. Dep't. 36, National Claims to Maritime Jurisdictions (7th rev. 1995),. and. U.S. Dep't State, Limits in the Seas No. 112, United States Responses to Excessive National. Maritime Claims (1992). Publication of these lists does not constitute U.S. recognition or acceptance of the validity of any claim. The list of United States claims is reproduced in Annex Al-4 (p. 46). For a comprehensive analysis of excessive maritime claims, see Roach & Smith. 1 1 The current rules for delimiting baselines are contained in articles 5 through 14 of the 1982 LOS Convention. They distinguish between "normal" baselines (following the sinuosities of the coast) and "straight" baselines (which can be employed along certain irregular coasts). As noted by the I.C.J., delimitation. of straight baselines "cannot be dependent merely upon the will of the its municipal law. [T]he validity of the delimitation with regard to. coastal State as expressed in. other States depends. upon. .. .. .. international law." Trie Anglo -Norweigan Fisheries Case,. [1951]. I.C.J.. (continued...).

(58) Commander's Handbook on. 4. the. Law. of Naval Operations. 11. (...continued). Rep. 132. The. baseline rules take into account. most of the wide. existing along the coastlines of the world. Alexander, at 13-14.. variety of physical conditions. The. MCRM. lists. the baseline. on baselines is compiled in U.N. Office for Ocean The Law of the Sea: Baselines: National Legislation With. claims of the coastal nations. National legislation. and the Law of the Sea, Maps, U.N. Sales No. E.89.V.10 (1989). The baseline provisions of the 1982 LOS Convention are examined in U.N. Office for Oceans Affairs and the Law of the Sea, The Law of the Sea: Baselines, U.N. Sales No. E.88.V.5* (1989). See also Atlas of the Straight Baselines (T.. Affairs. Illustrative. Scovazzi. The. et al. eds.,. 2d. ed. 1989). and Roach. &. Smith,. at. 41-91.. discussion of maritime zones in the text of this chapter assumes that the adjacent land area. within the undisputed sovereignty of the claimant nation. However, the legal. title. to. is. some. mainland and island territories is in dispute, thus affecting the offshore zones; for example: Essequibo region of western Guyana claimed by Venezuela; Western Sahara presently occupied by Morocco, but claimed by the Polisario supported by Algeria and Mauritania; the southern Kuriles, claimed by Japan and occupied by the U.S.S.R. (now Russia) since the end of World War II; various of the Spratly Islands claimed by China, Vietnam, Malayasia, the Philippines, Taiwan and. among China, Japan, and Taiwan; Liancourt Rock (or Takeshima) disputed between Japan and the Republic of Korea; Mayotte Island in the Indian Ocean disputed between France and Comoros; British Indian Ocean Territory (including Diego Garcia) where the United Kingdom's ownership is disputed by Mauritius; some small islands in the. Brunei; the Senkakus Islands disputed. Mozambique Channel between Mozambique and Madagascar disputed between Madagascar and France; Persian Gulf islands of Abu Musa, Tunb al Sughra, and Tunb al Kabra disputed between. Umm. United Arab Emirates; Kubbar, Qaruh, and al Maraden Islands disputed between Kuwait and Saudi Arabia; Hawar Islands disputed between Bahrain and Qatar; Falklands/Malvinas dispute between the United Kingdom and Argentina; and the two uninhabited islands of Hunter and Matthew, to the east of New Caledonia, disputed between France and Vanuatu. Iran and the. less than a quarter of them have been by agreement between the adjacent or opposing neighbors. Alexander, 41-44. Most of these agreements are collected in U.N. Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Maritime Boundary Agreements (1970-1984), U.N. Sales No. E.87.V.12 (1987); maritime boundary agreements concluded prior to 1970 are listed in an annex to this collection. See also U.S. Dep't State, Limits in the Seas No. 108, Maritime Boundaries of the World, (rev. 1990) and International Maritime Boundaries (Charney & Alexander eds., 1993 (2. Further, although there are close to 400 maritime boundaries,. definitely resolved. Vols.).. The. Antarctic. is. discussed in paragraph 2.4.5.2.. U.S. maritime boundaries have been established with the Soviet Union (now Russia), Sen. Treaty Doc. 101-22 and Sen. Ex. Rep. 102-13, to which the Senate gave its advice and consent on 16. Rep. 345-46 and 23 Int'l Leg. Mats. No. 45), Cuba (see Dep't State, State, Limits in the Seas No. 91); 9890 (see Dep't Limits in the Seas No. 1 10); Venezuela, T.I.A.S. and the Cook Islands and Tokelau, T.I.A.S. 10775 (see Dep't State, Limits in the Seas No. 100). The boundary with Cuba is established by executive agreement, pending advice and consent of the Senate to the treaties establishing these boundaries. Sen. Ex. H, 96th Cong. 1st Sess., T.I.A.S. 9732, 32 U.S.T. 840; T.I.A.S. 10,327; T.I.A.S. 10,913; T.I.A.S. 1 1,853 (Cuba). See also Feldman & Colson, The Maritime Boundaries of The United States, 75 Am. J. Int'l L. 729 (1981); Smith, The Maritime Boundaries of The United States, 71 Geographical Rev., Oct. 1981, at 395; and Maritime Boundary: Cuba-United States, Limits in the Seas No. 110 (1990). The United States has outstanding maritime boundary issues with Canada, including areas in the Beaufort Sea, Dixon Entrance, and Strait ofJuan de Fuca. The U.S. -Canada dispute regarding the extension of the Gulf of Maine boundary was resolved in the Gulf of Maine Case, 1984 I.C.J. Regs. 347. See I Sep. 1991; Canada in the Gulf of Maine, (see 1984 I.C.J.. 1247); Mexico, T.I.A.S. 8805. (see. Dep't. State, Limits in the Seas. (continued...).

(59) Legal Divisions of the. Low-Water. 1.3.1. Oceans and Airspace. Line. Unless other special rules apply, the baseline from. which maritime claims of a nation are measured is the low- water 12 coast as marked on the nation's official large-scale charts.. Where. 1.3.2 Straight Baselines. there. is. may employ. nation. the coastline. of islands along the coast in. a fringe. 5. straight baselines.. The. its. is. line. along the. deeply indented or where. immediate. general rule. is. vicinity, the coastal. that straight baselines. must not depart from the general direction of the coast, and the sea areas they 3 A coastal nation which uses enclose must be closely linked to the land domain. 1. straight baselines. must either clearly indicate them on its. charts or publish a. list. of. 11. (...continued). International Maritime Boundaries (Charney,. &. Alexander. eds.,. 1993. at. 401-16. Negotiations. continue to resolve the U.S. -Dominican Republic maritime boundary. Negroponte, Current. Developments. Oceans. in U.S.. Policy, Dep't St. Bull., Sep. 1986, at 86.. established a provisional enforcement. boundary between. There has been considerable. between the United. States. litigation. concerning the application of these. 1658, 91 L.Ed. 1889 (1947); United States. rules.. Tb United ;. States has. and the Bahamas. States. United States. v.. and several. California,. states. of the United. 332 U.S.. 67 S.Ct.. 19,. 381 U.S. 139, 85 S.Ct. 1401, 14 L Ed.2d. California,. v.. it. 4. 296 (1965); United States v. Louisiana, 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44 (1969); United States v. Alaska, 422 U.S. 184, 95 S.Ct. 2240, 45 L.Ed.2d 109 (1975), on remand 519 F.2d 1376 (9th Cir. 1975); United States. v.. California,. 432 U.S. 40, 97 S.Ct. 2915, 53 L.Ed.2d 94 (1977),. modified 449 U.S. 408, 101 S.Ct. 912, 66 L.Ed.2d 619 (1981). 12. Territorial Sea Convention, art. 3; 1982 LOS Convention,. been defined. as. beach, to which the sea recedes charting purposes (p. 51).. is. known as. at. low-water.". the level of Chart. The. "Low-water. line" has. The line along a coast,. actual water level taken as. low-water. or for. LOS Glossary, definition 50, Annex Al-5. Datum.. Since 1980, the United States has used a uniform, continuous Chart Datum of Mean. Low Water for all. tidal. Lower Commonwealth of Puerto Rico, Guam, Commonwealth of Northern Mariana Islands, and. waters of the United States, the. American Samoa, United its. art. 5.. "the intersection of the plane of low water with the shore.. States Virgin Islands,. other territories and possessions. 45 Fed. Reg. 70296-97, 23 Oct. 1980; Hicks, Tide and. Current Glossary 3. &. 15. (NOAA. 1989).. Normal baselines must be consistent with the. rule set forth in the text. Excessive. "normal" baseline. claims include a claim that low-tide elevations wherever situated generate a territorial sea and that artificial islands. generate a territorial sea (Egypt and Saudi Arabia). Churchill. the Sea 46 (2d ed. 1988). 13. Territorial Sea. On. low-tide elevations, see 1.3.2.2; on. Convention,. art. 4;. 1982. LOS. & Lowe, The Law of. artificial islands, see 1.4.2.2.. Convention,. art. 7.. Norway. is an example of a country whose coastline is deeply indented and fringed with islands; in 1935 it was the first country to establish a baseline consisting of a series of straight lines between extended land points. In its decision, the International Court ofJustice approved the system. Tlie. Anglo-Norwegian. Fisheries Case,. [1951] I.C.J. Rep. 116;. MacChesney 65. The. criteria laid. the decision for delimiting straight baselines independent of the low-water line. down. in. were copied almost. verbatim in the 1958 Territorial Sea Convention, and continued, with some additional provisions, in the 1982 LOS Convention. See U.S. Dep't of State, Limits in the Seas No. 106, Developing Standard Guidelines for Evaluating Straight Baselines (1987). (continued...).

(60) Commander's Handbook on the Law. 6. of Naval Operations. geographical coordinates of the points joining. The United. States,. its. See Figure 1-1.. together.. with few exceptions, does not employ. interprets restrictively. this practice. and. use by others.. Unstable Coastlines. Where the. 1.3.2.1. them. coastline. natural conditions, e.g., deltas, straight baselines. is. may be. highly unstable due to established connecting. 13. (...continued). Properly drawn straight baselines do not significantly push the seaward limits of the. away from. territorial sea. the coast. Straight baselines are not authorized for the purpose of territorial sea. expansion, which seizes property interests from other States in coastal adjacency or opposition, and. from all other States of the world who share a common interest in the high seas and deep seabed. In viewing the 1982 LOS Convention as a whole, the U.S. position is that straight baseline segments must not exceed 24 in length. See note 15.. NM. If the. portion of the coast being examined does not meet either criterion (deeply indented or. fringed with islands), then. no. straight baseline. segment may lawfully be drawn. in that locality,. and. the subordinate rules (on permissible basepoints, vector of the putative straight baseline in relation to the coast,. and the. requisite quality. Further, the coastal State. must. of the waters that would be enclosed), may not be invoked. the requirements of one test or the other, and may not mix. fulfill all. may not claim that a locality is indented, though not deeply, though they do not constitute a fringe, and claim it may draw straight baselines in that locality. Either test selected must be met entirely on its own terms. If neither test is met, then the low-water mark must be used in that locality. However, failure to meet this preliminary geographical test in one locality does not preclude establishing it in another. 14. Territorial Sea Convention, art. 4(6); 1982 LOS Convention, art. 16. 15. Letters from Sec'y State to Dep't Justice, 13 Nov. 1951 and 12 Feb. 1952, quoted in 1 Shalowitz, Shore and Sea Boundaries 354-57 (1962) and 4 Whiteman 174-79. Straight baselines must the requirements. For example, a State. and. that. it. has. some. islands,. be constructed stricdy in accordance with international law to avoid navigational rights of all States.. may be found. in the. Commentary. Several parts of the U.S. coast. would qualify for the straight baselines. United States. unilateral attempts to diminish the. A concise description of the U.S. position on the use ofstraight baselines (e.g.,. in the Transmittal. Maine and. Message. at. pp. 8-10. (see. note. 7).. southeast Alaska) have the physical characteristics that. use of straight baselines. Alexander, at 19.. The U.S. Supreme Court has held that. could be applied in the United States only with the federal government's approval.. 381 U.S. 139, 167-69, 85 S.Ct. 1401, 14 L.Ed.2d 296, 314-15 (1965); 394 U.S. 11, 36-38, 89 S.Ct. 773, 787-89, 22 L.Ed.2d 44 (1969); and Alabama Boundary Case, 470 U.S. 93, 99, 105 S.Ct. 1074, 84 L.Ed.2d 73, 79 (1985).. v.. California,. Louisiana Boundary Case,. and. Mississippi. Seventy-five nations have delimited straight baselines along. Al-3 (p. 94). No maximum The longest line used by the Norwegians. all. or a part of their coasts. See Table. LOS. Convention. in 1935 was the 44-mile line across Lopphavet. Much longer lines have since been drawn, not in conformity with the law, such as Ecuador (136 nautical miles), Madagascar (123 nautical miles), Iceland (92 nautical miles), and Haiti (89 nautical miles). Alexander, Baseline Delimitations and Maritime Boundaries, 23 Va. J. Int'l L. 503, 518 (1983). Vietnam's baseline system departs to a considerable extent from the general direction of its coast. Alexander, id. at 520. Other straight baselines that do not conform to the 1 982 LOS Convention's provisions include Albania, Canada, Colombia, Cuba, Italy, Senegal, Spain, and the former-U.S.S.R. Alexander, at 37; U.S. Dep't of State, Limits in the Seas No. 103 (1985); and MCRM. Among the straight baselines that depart most radically from the criteria of the 1982 LOS Convention are the Arctic straight baselines drawn by Canada and the former-U.S.S.R. See Roach length of straight baselines. is. set forth in the. 1982. ,. &. Smith. at. 57-8. (continued...).

(61) Legal Divisions of the. on the low- water. appropriate points. These. straight baselines. 7. remain. despite subsequent regression or accretion of the coastline, until. effective,. changed by the 1.3.2.2. line.. Oceans and Airspace. coastal nation.. Low-Tide. Elevations.. A low- tide elevation is a naturally formed land. by water and which remains above water at low tide but is submerged at high tide. As a rule, straight baselines may not be drawn to or from a low-tide elevation unless a lighthouse or similar installation, which is 17 permanently above sea level, has been erected thereon. area surrounded. Bays and Gulfs. There is a complex formula for determining the baseline 18 For baseline purposes, a "bay" is a closing the mouth of a legal bay or gulf. 1.3.3. .. well-marked indentation in the coastline of such proportion to the width of its. mouth. and constitute more than. to contain landlocked waters. as. curvature of the coast.. The water. area of a "bay". a. mere. must be greater than that of a 19 drawn across the mouth. See. whose diameter is the length of the line Figure 1-2. Where the indentation has more than one mouth due to the presence. semicircle. 15. (...continued). Some of the. Soviet straight baseline claims are analyzed in U.S. Dep't of State, Limits in the Seas. No. 107 (1987) across. (Pacific. The USS. (Black Sea).. Ocean, Sea of Japan, Sea of Okhotsk, Bering Sea) and No. 109 (1988). ARKANSAS. Avacha Bay, the entrance. Washington Naval. Inst.. Post,. May. 22. to Petropavlovsk,. the Soviet straight baseline. drawn. Kamchatka Peninsula, on 17 and 21 May 1987.. 1987, at A34; 39 Current Dig. Soviet Press, 24 June 1987, at 18; U.S.. Proc. Naval Review,. LOS. (CGN-41) challenged. May. 1988,. at. 231.. making use of the delta provision must first meet the threshold test of art. 7(1) of the LOS Convention which permits the drawing of straight baselines by joining appropriate points along the coast in localities where the coastline is deeply indented and cut into or where a fringe of islands exists along the coast. Applicable deltas include those of the Mississippi and Nile Rivers, and the Ganges-Brahmaputra River in Bangladesh. 16.. 1982. Alexander,. at. Convention,. art.. 7(2). States. 81 n.10.. Convention,. 17. Territorial Sea. arts.. 11. is. charts they should. be distinguishable from. (IHO). definition 49,. a legal. &. 4(3);. 1982. LOS. Convention,. term for what are generally described. Low-tide elevation. Annex Al-5. (p. 51).. low-tide elevations without lighthouses. islands.. as. received general international recognition.". also. basepoints for straight baselines. LOS. 13. &. 7(4).. On. International Hydrographic Organization. The LOS Convention would. as. arts.. drying banks or rocks.. Convention,. art. 7(4).. No. permit the use of if. the usage "has. low-tide elevation. may be used. as a basepoint for establishing straight baselines if it is located wholly outside the measured from normal baselines. Where a low-tide elevation is situated at a distance not exceeding the breadth of the territorial sea measured from the mainland or an island, the. territorial sea. low-tide elevation 18.. may. Many bodies. also be used as the normal baseline. See Figure 1-5 (p. 17). of waters called "bays" in the geographical sense are not "bays" for purposes. of international law. See Westerman, The Juridical Bay (1987). 19. Territorial Sea Convention, art. 7(2); 1982 LOS Convention, art. 10(2). Islands landward of the line are treated as part of the water area for satisfaction of the semicircle test. Territorial Sea. Convention,. art. 7(3);. 1982. LOS. Convention,. art.. 10(3)..

(62) 8. Commander's Handbook on the Law. FIGURE. A.. 1-1. of Naval Operations. STRAIGHT BASELINES. DEEPLY INDENTED COASTLINE. B.. FRINGING ISLANDS.

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