General rules

159 Except as provided for in paragraph 171, the provisions of this Part are not to be construed as in any way departing from the provisions of the Second Geneva Convention of 1949 and Additional Protocol I of 1977 which contain detailed rules for the treatment of the wounded, sick and shipwrecked and for medical transports.

160 The parties to the conflict may agree, for humanitarian purposes, to create a zone in a defined area of the sea in which only activities consistent with those humanitarian purposes are permitted.

Section I Protected persons

161 Persons on board vessels and aircraft having fallen into the power of a belligerent or neutral shall be respected and protected. While at sea and thereafter until determination of their status, they shall be subject to the jurisdiction of the State exercising power over them.

162 Members of the crews of hospital ships may not be captured during the time they are in the service of these vessels. Members of the crews of rescue craft may not be captured while engaging in rescue operations.

163 Persons on board other vessels or aircraft exempt from capture listed in paragraphs 136 and 142 may not be captured.

164 Religious and medical personnel assigned to the spiritual and medical care of the wounded, sick and shipwrecked shall not be considered prisoners of war. They may, however, be retained as long as their services for the medical or spiritual needs of prisoners of war are needed.

The International Institute of Humanitarian Law, at the initiative of its President, Professor J. Patrnogic, Professor N. Ronzitti from the University of Pisa (Italy) and Professor A. Goldie from the University of Syracuse (USA), began in 1987 a series of meetings of international lawyers and naval experts on the subject of the need for a modernisation of the law applicable to armed conflict at sea. At the second meeting, the experts suggested to the Institute that they work on the development of a manual. The intensive work over the following years led to the adoption of the San Remo Manual.

This document is a contemporary restatement of the law, together with some progressive development, which takes into account recent State practice, technological developments and the effect of related areas of the law, in particular, the United Nations Charter, the 1982 Law of the Sea Convention, air law and environmental law. The last restatement of the law of armed conflict at sea was undertaken by the Institute of International Law in 1913. Developments in the law since that date have for the most part not been incorporated into treaty law, with the exception of the Second Geneva Convention which is essentially limited to the protection of the wounded, sick and shipwrecked at sea, and does not address the whole question of the law on the conduct of hostilities at sea. The Manual and the related Explanation represent a unique effort of experts from different parts of the world to establish the present state of the law based on State practice and treaty law of continuing validity.

Section I Scope of application of the law

1 The parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used.

2 In cases not covered by this document or by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience.

Section II Armed conflicts and the law of self-defence

3 The exercise of the right of individual or collective self-defence recognised in Article 51 of the Charter of the United Nations is subject to the conditions and limitations laid down in the Charter, and arising from general international law, including in particular the principles of necessity and proportionality.

4 The principles of necessity and proportionality apply equally to armed conflict at sea and require that the conduct of hostilities by a State should not exceed the degree and kind of force, not otherwise prohibited by the law of armed conflict, required to repel an armed attack against it and to restore its security.

5 How far a State is justified in its military actions against the enemy will depend upon the intensity and scale of the armed attack for which the enemy is responsible and the gravity of the threat posed.

Section I Means of warfare

Missiles and other projectiles

78.1 The formulation of this paragraph gave rise to severe controversy between those who believed that specific rules should be developed with regard to weapons with over-the-horizon (OTH) and beyond-visual-range (BVR) capabilities and those who believed that such specific rules were not necessary in the light of the general principles applicable to naval warfare, in particular, existing provisions regarding precautions in attacks. The controversy centred around the question whether the use of such missiles and other projectiles should be restricted specifically within the framework of this document, inter alia, by formulating obligations with regard to technical target acquisition systems and with regard to self-destruct mechanisms. Lengthy discussions were held regarding the technical aspects of the use of such weapon systems and whether appropriate formulae could be found to establish the obligation to conform to the general and detailed rules regarding target discrimination. In terms of the technology used it was argued that ideally spatial separation between military objectives and objects exempt from attack would effectively ensure the protection of the latter. This aspect, however, is dealt with under paragraphs 105–108 below.

78.2 The absence of a paragraph regarding a mandatory self-destruct device on missiles or a prohibition of means normally characterised as fire-and-forget weapons follows from the fact that participants felt that the speed at which these weapons travel does not allow for reconsideration of a decision by a commanding officer once the launch is executed.

Preliminary remarks

Part V deals with what traditionally used to be the law of prize. However, the measures belligerents may take against enemy and neutral vessels and aircraft according to the subsequent paragraphs are not only those of economic warfare at sea. The title to Part V has been changed to ‘measures short of attack’ in order to clarify this.

According to the rules laid down in Part V, enemy as well as neutral vessels and aircraft, under certain circumstances, may be captured. That kind of capture needs to be distinguished from capture according to paragraph 40. Enemy merchant vessels and civil aircraft that are characterised as military objectives may not only be attacked but, a fortiori, also captured. In that case property passes as soon as capture is completed. The same holds true as regards neutral merchant vessels and aircraft that are liable to attack. In other words, objects liable to attack may in any event be captured. Property passes simultaneously with the completion of capture.

The applicability of the definition of military objectives has not superseded the rules governing economic warfare at sea that remain applicable qua customary international law. Hence, according to the rules laid down in Part V, enemy as well as neutral merchant vessels and civil aircraft may be captured in certain cases even if they are not liable to attack. However, if they are captured and do not qualify as objects liable to attack, they are captured for adjudication as prize.

Preliminary Round Table on International Humanitarian Law Applicable to Armed Conflicts at Sea

San Remo, 15–17 June 1987

In co-operation with the University of Pisa, Italy and Syracuse University, NY, USA

Round Table of Experts on International Humanitarian Law Applicable to Armed Conflicts at Sea

Madrid, 26–29 September 1988

In collaboration with the Humanitarian Law Study Centre of the Spanish Red Cross

MEETINGS OF EXPERTS FOLLOWING THE MADRID PLAN OF ACTION

First Meeting: Bochum, 10–14 November 1989

In collaboration with the Institute of Peacekeeping Law and Humanitarian Law, Ruhr University, Bochum and the German Red Cross in the Federal Republic of Germany

Second Meeting: Toulon, 19–23 October 1990

In collaboration with the Mediterranean Institute of Strategic Studies, Université de Toulon et du Var and the French Red Cross

The San Remo Manual was prepared during the period 1988–94 by a group of legal and naval experts participating in their personal capacity in a series of Round Tables convened by the International Institute of Humanitarian Law. The purpose of the Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea. The Manual includes a few provisions which might be considered progressive developments in the law but most of its provisions are considered to state the law which is currently applicable. The Manual is viewed by the participants of the Round Tables as being in many respects a modern equivalent to the Oxford Manual on the Laws of Naval War Governing the Relations Between Belligerents adopted by the Institute of International Law in 1913. A contemporary manual was considered necessary because of developments in the law since 1913 which for the most part have not been incorporated into recent treaty law, the Second Geneva Convention of 1949 being essentially limited to the protection of the wounded, sick and shipwrecked at sea. In particular, there has not been a development for the law of armed conflict at sea similar to that for the law of armed conflict on land with the conclusion of Protocol I of 1977 additional to the Geneva Conventions of 1949. Although some of the provisions of Additional Protocol I affect naval operations, in particular those supplementing the protection given to medical vessels and aircraft in the Second Geneva Convention of 1949, Part IV of the Protocol, which protects civilians against the effects of hostilities, is only applicable to naval operations which affect civilians and civilian objects on land.

Background

The San Remo Manual was prepared during the period 1988–94 by a group of legal and naval experts participating in their personal capacity in a series of Round Tables convened for this purpose by the International Institute of Humanitarian Law. A preliminary Round Table on International Humanitarian Law Applicable to Armed Conflicts at Sea, held in San Remo in 1987 on the initiative of the International Institute of Humanitarian Law, in co-operation with the University of Pisa and the University of Syracuse in New York, discussed the need for a modernisation of the law applicable to armed conflicts at sea. The Declaration adopted at that meeting noted that:

It was only in the subsequent meeting at Madrid, convened by the International Institute of Humanitarian Law with the support of the Spanish Red Cross in 1989, that participants decided on a plan of action to study systematically these issues and to draft a restatement of the contemporary law applicable to armed conflicts at sea together with some proposals for progressive development.

Section I Internal waters, territorial sea and archipelagic waters

14 Neutral waters consist of the internal waters, territorial sea, and, where applicable, the archipelagic waters, of neutral States. Neutral airspace consists of the airspace over neutral waters and the land territory of neutral States.

15 Within and over neutral waters, including neutral waters comprising an international strait and waters in which the right of archipelagic sea lanes passage may be exercised, hostile actions by belligerent forces are forbidden. A neutral State must take such measures as are consistent with Section II of this Part, including the exercise of surveillance, as the means at its disposal allow, to prevent the violation of its neutrality by belligerent forces.

16 Hostile actions within the meaning of paragraph 15 include, inter alia:

1. (a) attack on or capture of persons or objects located in, on or over neutral waters or territory;

2. (b) use as a base of operations, including attack on or capture of persons or objects located outside neutral waters, if the attack or seizure is conducted by belligerent forces located in, on or over neutral waters;

3. (c) laying of mines; or

4. (d) visit, search, diversion or capture.

17 Belligerent forces may not use neutral waters as a sanctuary.

18 Belligerent military and auxiliary aircraft may not enter neutral airspace. Should they do so, the neutral State shall use the means at its disposal to require the aircraft to land within its territory and shall intern the aircraft and its crew for the duration of the armed conflict.

Section I Means of warfare

Missiles and other projectiles

78 Missiles and projectiles, including those with over-the-horizon capabilities, shall be used in conformity with the principles of target discrimination as set out in paragraphs 38–46.

Torpedoes

79 It is prohibited to use torpedoes which do not sink or otherwise become harmless when they have completed their run.

Mines

80 Mines may only be used for legitimate military purposes including the denial of sea areas to the enemy.

81 Without prejudice to the rules set out in paragraph 82, the parties to the conflict shall not lay mines unless effective neutralisation occurs when they have become detached or control over them is otherwise lost.

82 It is forbidden to use free-floating mines unless:

1. (a) they are directed against a miliary objective; and

2. (b) they become harmless within an hour after loss of control over them.

83 The laying of armed mines or the arming of pre-laid mines must be notified unless the mines can only detonate against vessels which are military objectives.

84 Belligerents shall record the locations where they have laid mines.

85 Mining operations in the internal waters, territorial sea or archipelagic waters of a belligerent State should provide, when the mining is first executed, for free exit of shipping of neutral States.

86 Mining of neutral waters by a belligerent is prohibited.

87 Mining shall not have the practical effect of preventing passage between neutral waters and international waters.

Section I Determination of enemy character of vessels and aircraft

112 The fact that a merchant vessel is flying the flag of an enemy State or that a civil aircraft bears the marks of an enemy State is conclusive evidence of its enemy character.

113 The fact that a merchant vessel is flying the flag of a neutral State or a civil aircraft bears the marks of a neutral State is prima facie evidence of its neutral character.

114 If the commander of a warship suspects that a merchant vessel flying a neutral flag in fact has enemy character, the commander is entitled to exercise the right of visit and search, including the right of diversion for search under paragraph 121.

115 If the commander of a military aircraft suspects that a civil aircraft with neutral marks in fact has enemy character, the commander is entitled to exercise the right of interception and, if circumstances require, the right to divert for the purpose of visit and search.

116 If, after visit and search, there is reasonable ground for suspicion that the merchant vessel flying a neutral flag or a civil aircraft with neutral marks has enemy character, the vessel or aircraft may be captured as prize subject to adjudication.

117 Enemy character can be determined by registration, ownership, charter or other criteria.

Section II Visit and search of merchant vessels

Basic rules

118 In exercising their legal rights in an international armed conflict at sea, belligerent warships and military aircraft have a right to visit and search merchant vessels outside neutral waters where there are reasonable grounds for suspecting that they are subject to capture.

Section I Scope of application of the law

The parties to an armed conflict at sea are bound by the principles and rules of international humanitarian law from the moment armed force is used.

1.1 International humanitarian law, as defined in paragraph 13 of this document, applies to all armed conflicts from the moment that force is used and therefore its application does not depend on a ‘state of war’ nor on attaining a particular threshold of intensity of the hostilities. Reference in this regard can be made to the ICRC Commentary to Article 2 of the Geneva Conventions which defines the use of the word ‘armed conflict’ for the purposes of the application of the law as follows:

The purpose for the application of the law from the moment that any force is used is in order to assure that the rules providing limits on the conduct of hostilities and protection for non-State parties and protected persons and objects are indeed implemented and that parties cannot absolve themselves of these rules by denying that an armed conflict exists.

General rules

159 Except as provided for in paragraph 171, the provisions of this Part are not to be construed as in any way departing from the provisions of the Second Geneva Convention of 1949 and Additional Protocol I of 1977 which contain detailed rules for the treatment of the wounded, sick and shipwrecked and for medical transports.

159.1 The Round Table decided not to introduce into this document all the detailed provisions on the protection of the wounded, sick and shipwrecked that are to be found in the Second Geneva Convention of 1949 and Additional Protocol I. This document concentrates on the law applicable to the conduct of hostilities at sea as this is the area that has been the subject of the greatest uncertainty. The law applicable to the protection of the wounded, sick and shipwrecked at sea, however, is still governed by the Second Geneva Convention and Additional Protocol I and the rules therein are sufficiently clear. The provisions in Part VI of this document are therefore to be seen as additional to these treaty law provisions or as a clarification. The only exception to this is paragraph 171 which recommends a rule which is at variance with the Second Geneva Convention.

160 The parties to the conflict may agree, for humanitarian purposes, to create a zone in a defined area of the sea in which only activities consistent with those humanitarian purposes are permitted.

160.1 This paragraph is inspired by the ‘Red Cross Box’ that was agreed on by Argentina and the United Kingdom during the South Atlantic conflict in 1982.

Section I Basic rules

38 In any armed conflict the right of the parties to the conflict to choose methods or means of warfare is not unlimited.

38.1 There are no explicit treaty provisions at the present time which specifically state that the general principles applicable in armed conflict on land are also relevant to the conduct of hostilities at sea. However, it logically follows from the whole body of law that this general principle is firmly rooted in the law of naval armed conflict. Moreover, on 19 December 1968, the United Nations General Assembly, in Resolution 2444 (XXIII), unanimously affirmed certain principles underlying the law of armed conflict, including the requirements stated in paragraphs 38 and 39.

38.2 This basic rule obviously finds its roots in conferences and discussions which took place in the nineteenth century. The principle found its way into documents on the law of armed conflict as early as 1874 at the Brussels Conference (Article 12). The formulation was subsequently developed in the Hague Regulations of 1907 (Article 22). With regard to the wording of the paragraph, it should be noted that it is taken from Article 35(1) of Additional Protocol I. Although that Article falls outside the scope of Article 49(3), of the Protocol and therefore already applies in naval warfare, it was felt appropriate to include it in this document to emphasise the importance of the principle. Additional comments on the rule can therefore be found in existing commentaries. Relevant to the effective implementation of this paragraph is also Article 36 of API regarding new weapons.