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(For attacks from the sea on objectives on land, see supra, Conduct of Hostilities)
“Naval warfare” is the term used to denote “the tactics of military operations conducted on, under, or over the sea”.[1] The general principles of International Humanitarian Law (IHL) applicable to conflicts on land (which have to do primarily with sparing non-combatants and civilian property) apply to this type of military operation. Naval warfare nevertheless has certain singular features that necessitate a specific set of rules.
Most of the international instruments governing the law of war at sea were adopted in the early twentieth century.[2] However, it became clear during the various conflicts that subsequently occurred that the rules governing war at sea had become obsolete. It was not until the early 1990s that experts and government officials drew up the San Remo Manual, which clarifies the law of war at sea and brings it up to date, taking account of the developments that had occurred over the previous hundred years.
Though incomplete, most of the work codifying the law of war at sea was done in 1907, the year in which the Hague Conventions were adopted.[3] Eight of the Conventions tackle different aspects of naval warfare. Their provisions deal both with the conduct of hostilities (the laying of underwater mines: Convention VIII; bombardment by naval forces: Convention IX; protection of the sick, wounded and shipwrecked: Convention X) and the protection of certain ships (the status of merchant ships and their conversion into warships: Conventions VI and VII; the right of capture: Conventions XI and XII, which never came into force; the rights and duties of neutral powers: Convention XIII).
The inability of the rules adopted in those Conventions to limit the number of victims of naval hostilities became evident during the two world wars. The rules also proved outdated in the light of the technological progress made during that time. Indeed, a treaty was adopted in London in 1936 stipulating that submarines were bound by the same rules as surface ships, but it proved insufficient: the Second World War was ridden with torpedo attacks on neutral vessels, merchant ships and hospital ships, the indiscriminate laying of underwater mines, etc.
In 1949 the Geneva Convention for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea (Convention II) replaced the Hague Convention X of 1907. In addition, Protocol I of 1977 states that all its provisions concerning protection against the effects of hostilities also apply to naval operations “which may affect the civilian population, individual civilians or civilian objects on land”.[4] However, these two fundamental instruments still failed to clarify matters concerning the conduct of hostilities at sea.
During the Falklands/Malvinas War (1982), for example, problems arose with the use of exclusion zones by the warring parties and Convention II’s prohibition of the use of secret codes by hospital ships.[5] Moreover, the armed conflict between the Islamic Republic of Iran and Iraq (1980-1988) saw frequent attacks on neutral civilian ships and the use of underwater mines.
Between 1987 and 1994, experts and high-ranking government officials from 24 countries convened several times at the International Institute of Humanitarian Law in San Remo to draft the San Remo Manual.[6] The Manual is a non-binding document modelled on its ancestor, the Oxford Manual,[7] and containing laudable clarifications of the rules currently applicable to naval warfare. Its main virtue is that it allows post-war developments in international law, in particular IHL (1949 Geneva Conventions and Protocol I of 1977) to be explicitly combined.
The San Remo Manual recalls that the key principles of the law of war on land are applicable to war at sea. For example, the principle of distinction and the requirement to take precautionary measures when launching an attack are clearly formulated. The concept of “military objective” was included and adapted to war at sea.
The Manual also clears up certain problems specific to maritime hostilities: it contains detailed provisions on the use of certain weapons (mines and torpedoes) and addresses interaction between ships and aircraft; distinctions between different kinds of maritime zone reflect developments in the law of the sea, etc.
The fact that the text is non-binding and wars at sea are not common in no way robs the San Remo Manual of its usefulness today. It provides States with a coherent document enabling them to take account of the law of war at sea in their actions and legislation.[8]
It is today the main reference document for the law of naval warfare.
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MEYROWITZ Henri, “Le Protocole additionnel I aux Conventions de Genève et le droit de la guerre maritime”, in RGDIP, Vol. 89, 1989, pp. 243-298.
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PARKS William H., “Making Law of War Treaties: Lessons for Submarine Warfare Regulation”, in SCHMITT Michael N. (ed.), International Law across the Spectrum of Conflict, Newport, R.I., 2000, pp. 339-385.
ROACH Ashley J., “Legal Aspects of Modern Submarines Warfare”, in Max Planck UNYB, Vol. 6, 2002, pp. 367-385.
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(See infra, VI. Hospital Ships)
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MACCLAIN Ronald S., “The Coastal Fishing Vessel Exemption from Capture and Targeting: An Example and Analysis of the Origin and Evolution of Customary International Law”, in Naval Law Review, Vol. 45, 1998, pp. 77-125.
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ROBERTSON Horace B., “The Obligation to Accept Surrender”, in Naval War College Review, Vol. 46, No. 2, 1993, pp. 103-115.
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MA Jinxing & SUN Shiyan, “Restrictions on the use of force at sea: An environmental protection perspective”, in IRRC, Vol. 98, No. 902, 2016, pp. 515-541.
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