The Law of Naval Warfare

Not one of the instruments governing the conduct of naval warfare and control over neutral shipping is less than a third of a century old, and next to none can fairly be said to reflect faithfully the general international law applicable to naval warfare today. Indeed, there is some question of the continuing validity of the instruments inter partes, whether by force of changed circumstances or otherwise.

A number of the Conventions drawn up at The Hague in 1907 pertain to naval warfare. These are: Convention No. VI relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities;[1] Convention No. VII relating to the Conversion of Merchant Ships into Warships;[2] Convention No. VIII relative to the Laying of Automatic Submarine Contact Mines[3] (which assumed some importance in connection with the mining of Haiphong Harbour); Convention No. IX concerning Bombardment by Naval Forces in Time of War;[4] Convention No. XI relative to Certain Restrictions with regard to the Exercise of the Right of Capture in Naval War;[5] and Convention No. XIII concerning the Rights and Duties of Neutral States in Maritime War.44

Of the instruments dealing with neutral shipping the Declaration of Paris of 1856,45 providing that free ships make free goods (that is, that enemy property on board neutral ships is not subject to seizure unless it is contraband), still retains its formal validity, but it has not been operative in the two World Wars. In 1909, a number of naval powers attempted to draw up a general codification of the law in the Declaration of London,46 which dealt with blockades, the control of contraband, including visit and search and condemnation in prize, enemy character and unneutral service. However, no State ever became a party to the instrument and, despite occasional references to it in the First World War, it was not binding in either of the two World Wars.

Out of the efforts made after the First World War to place limitations on the use of weapons, including an unsuccessful attempt to outlaw the submarine, came a provision of the London Treaty for the Limitation and Reduction of Naval Armament,[6] which stated that the parties “accepted as established rules of international law” that submarines must, in dealing with merchant ships, conform to the rules of international law governing surface warships and that merchant vessels could not, except if they resisted or tried to escape, be sunk without the crew’s and passengers’ having first been put in a place of safety. This obligation was incorporated in the London Naval Protocol of 1936,[7] to which over forty States became parties. The Protocol was not complied with during the Second World War.

The law, whether conventional or customary, which was in force at the outbreak of the First World War was already highly politically charged, representing as it did a preliminary squaring off for war and an attempt to reconcile the interests of major maritime powers with those of other States. Where this classic body of law now stands it is difficult to say, for a number of forces have been at work to obscure its contours and to bleach its colours almost to vanishing point.

The doctrine of reprisals has been a major force in destroying the law. The practice of both belligerents in establishing operational sea zones, in laying great minefields, in sinking merchant ships without warning and without putting passengers and crew in a place of safety, and the adoption of new methods of contraband control and of blockade was justified as reprisals by one belligerent against prior unlawful acts by the opposing belligerent.[8] As is true of reprisals generally, it was often impossible to determine which State had been the first to violate the imprecise standards of the law, and reprisals responding to reprisals led to an escalation in the violence employed at sea. Reprisals had so thoroughly permeated the hostile relations of Great Britain and of Germany during the two World Wars that one cannot say where the law untainted by reprisals now stands.

Changes in technology also had a powerful impact, as they had on the little law on air warfare. Submarine operations called for stealth, and a submarine could not be expected to expose itself to danger and to burden itself by taking aboard the passengers and crews of ships it was about to sink. Unrestricted submarine warfare became the norm, and although Admiral Doenitz was found guilty of this practice by the Nuremberg Tribunal,[9] the fact that other belligerents had acted in the same way led to the imposition of no punishment on this account. In the present day, cruise missiles fired at long distances and controlled at long distance or homing on heat or radar may fail to distinguish between warships and merchant ships and between neutral and belligerent shipping.[10]

The third major change which overtook the law of naval warfare was the adoption of new modes of carrying on economic warfare in which a longdistance economic blockade of the enemy, designed to destroy its economic capacity to carry on war,[11] replaced the earlier law with respect to contraband, blockade and prize. The blockade was carried on through regulation of commerce by such means as navicerts, rationing, ship warrants and blacklisting, while naval forces were left to police compliance with the system thus established. At the same time that Great Britain, aided in both wars by the United States, was attempting to strangle Germany in this way, both on land and at sea, Germany was employing the submarine to intercept the flow of supplies across the Atlantic. There two forces combined to eat away and ultimately to destroy much of the law.

In subsequent conflicts, such as those between India and Pakistan and between Israel and the Arab States, there have been instances of the use of prize law, but almost exclusively with respect to ships found within the territorial seas or internal waters of the States concerned.

Some residuum of the law remains. It is clearly unlawful to make a hospital ship the object of attack or to fire upon survivors in the water. A State not involved in a conflict might be expected to apply the laws of neutrality in order to avoid unwelcome stays by warships of the belligerents. States at war may still talk in terms ofcontraband and blockade and enemy character, but the concepts have been so altered by practice, by reprisals and by the changing character of warfare, that they bear little resemblance to the same concepts in the “classical” age of the law before the two World Wars.

  • [1] Martens, Nouveau Recueil General, 3d ser., vol. 3, p. 533.
  • [2] Id. at p. 557. 5 Id. at p. 580. 6 Id. at p. 604.
  • [3] 43 Id. at p. 663. 44 Id. at p. 713.
  • [4] 45 Signed April 16, 1856, Martens, Nouveau Recueil General, vol. 15, p. 791.
  • [5] 46 Signed Feb. 26, 1909, British and Foreign State Papers, vol. 104, p. 242.
  • [6] Signed April 22, 1930, art. 22, L.N.T.S., vol. 112, p. 65 at p. 88.
  • [7] Proces-Verbal concerning Rules of Submarine Warfare, signed at London, Nov. 6, 1936,L.N.T.S., vol. 173, p. 253.
  • [8] Tucker, The Law of War and Neutrality at Sea, United States Naval War College, InternationalLaw Studies, vol. 50 (1957), pp. 30-32, 254-258, 305-307, 312-315.
  • [9] Nazi Conspiracy and Aggression, Opinion and Judgment (1947), p. 140.
  • [10] The impact of new technology on naval operations and, as a result, on the law of naval warfare isilluminatingly analyzed by D. P. O’Connell, in “International Law and Contemporary Naval Operations”, in British Year Book of International Law, vol. 44 (1970), p. 19, and “The Legality of NavalCruise Missiles”, in American Journal of International Law, vol. 66 (1972), p. 785.
  • [11] See Medlicott, The Economic Blockade, vol. 1 (1952) and vol. 2 (1959).
 
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