David Letts on the “Updated Newport Manual on the Law of Naval Warfare”

Today you’ll hear about a terrific development in law of armed conflict scholarship: the recent publication of the Second Edition of the Newport Manual on the Law of Naval Warfare.

It was primarily put together by a group that I believe represents the world’s top experts in this area: David Letts, Wolff Heintschel von Heinegg, and Lawfire^®  contributors and LENS Conference speakers Pete Pedrozzo and Dr. James Kraska.  In addition, there were a number of other highly-respected contributors and reviewers involved.  All in all, I’m convinced this is the definitive work.

My friend Dave Letts has kindly agreed to give us an outline of what is new in the Second Edition.  I think this is important because the previous edition debuted just over two years ago.  However, as Dave points out, “the need for better understanding of the law of naval warfare has never been greater.” 

Recent and developing events underline how dynamic this area is.  As he observes:

“Threats to maritime activity in the Black Sea from the armed conflict between Russia and Ukraine, the impact of the conflict in Yemen on maritime trade seeking to use the Red Sea and Suez Canal, and the potential for maritime conflict in the South China Sea, all highlight the importance of properly understanding the legal framework within which naval warfare lies.”

Unfortunately, all of these threats will likely continue for the foreseeable future and, unfortunately, grow more intense and even proliferate. Is our knowledge where is needs to be?  I don’t think so.

Dave is correct that the law of naval warfare is too often neglected by States, and academic study is limited.  But we are facing a future where expertise in this area may be urgently needed on short notice, so the time is now to get a better understanding.

I’m in the process of reading through the new edition cover-to-cover.  Though I thought I knew a fair amount of this part of the law of armed conflict, I’m finding that I’m really learning a lot.  Fortunately,  as Dave says, the Manual is written as a “practical guide to the law of naval warfare for naval commanders and their staff, regardless of their country of origin.” 

Consequently, it’s composed in a fluid style that facilitates understanding by all readers, including those with no legal background.  In fact, I  recommend it not just for those Dave highlights, but also for policy makers as well as lawyers who are (or aspire to be) in the field of international business transactions. 

As you’ll find in reading the Manual, neutrals and others not directly involved in a given conflict may nevertheless find themselves and their commercial enterprises impacted by the law of naval warfare.  

One last note: while this body of law generally follows the law of war applicable to land and air warfare, there are nuances that, in a given circumstance, could be decisively critical–and that’s why familiarity with it is so important.  Finally, the  Second Edition of the Manual is available for free online here.

Here’s Dave:

Updated Newport Manual on the Law of Naval Warfare

by David Letts

Only two years after the initial publication of the Newport Manual on the Law of Naval Warfare, the revised and updated Second Edition of the Manual has been published by the United States Naval War College as volume 105 of International Law Studies (ILS). The Second Edition replaces the original edition, published approximately two years ago as volume 101 of ILS.

The Newport Manual deals with the law of naval warfare, a specialized area of the law of armed conflict that is often neglected by States when undertaking their negotiations for new legal instruments that regulate armed conflict. Academic study of the law of naval warfare is similarly limited, confined to a small group of scholars who concentrate on studying this body of law.

However, the need for better understanding of the law of naval warfare has never been greater. Threats to maritime activity in the Black Sea from the armed conflict between Russia and Ukraine, the impact of the conflict in Yemen on maritime trade seeking to use the Red Sea and Suez Canal, and the potential for maritime conflict in the South China Sea, all highlight the importance of properly understanding the legal framework within which naval warfare lies. 

The main purpose of the Newport Manual is to provide a practical guide to the law of naval warfare for naval commanders and their staff, regardless of their country of origin. Accordingly, the Newport Manual can be used by naval forces throughout the world as it is focused strictly on lex lata (law as it is) rather than progressive or theoretical frameworks of the law (lex ferenda).

The Second Edition of the Newport Manual does not deviate from the structure of the original publication, with the chapters remaining the same and the overall content not significantly altered. However, the Second Edition does provide updates and clarifications that impact naval operations during armed conflict at sea, and this Second Edition of the Manual has been edited by four of the Newport Manual’s original authors following an extensive review and revision process after the publication of the original edition.

What has changed?

There are no major doctrinal differences between the First and Second editions of the Newport Manual, but changes were made to clarify terms, tighten the text, and ensure that the law reflected state practice. As the Newport Manual focuses on state practice it recognizes some variation among states in their application of the law of naval warfare, including variances that arise from some states having legal obligations as states party to Additional Protocol I (AP I).

Chapter 1

This chapter deals with Sources of the Law of Naval Warfare. Changes include:

• • clarification that judicial decisions are subsidiary means for the interpretation of existing rules of international law, not sources of international law
  • addition of some further military manuals in the list provided in the Manual
  • addition of the ICRC Commentary on the Second Geneva Convention to the section that lists Writings of Publicists, as this was a major work of learned scholarship in the field
  • revised the definition of “War Crime” to more closely align with the 2 October 1995 Tadic decision in the ICTY.

Chapter 2

This chapter addresses the Scope of the Application of the Law of Naval Warfare. The major changes to this chapter include:

• • Acknowledging that NIAC can become IAC if another State joins the conflict by taking part in the hostilities on the side of the non-State organized armed group
  • Clarification on the threshold for the application of prize law and maritime neutrality when armed force is used, and therefore an IAC exists
  • Clarification that during peacetime, states may use reasonable and necessary force in maritime law enforcement and that if they exceed that standard and act unlawfully with excessive use of force, the issue is not relevant for conflict classification
  • a new section that recognizes states have an obligation not to let their territory be used for acts contrary to the rights of other states. If a state is unwilling or unable to prevent an OAG from using its territory as a base of operations to launch attacks against other states, the aggrieved state(s) may exercise its right of self-defense against OAGs within the territory of the unwilling or unable state (drawing on state support for strikes against Houthi forces launching attacks from Yemen
  • a new section dealing with Defense of Merchant Vessels that recognizes a state may use proportionate force necessary to protect their flagged vessels and nationals and their property against unlawful attacks beyond foreign territorial seas

Chapter 3

Major changes that were made to this chapter which deals with the Status of Vessels, Aircraft and their Crews include:

• • Clarification that “an autonomous vessel that operates independently of human decision-making may still be under the command of an officer and manned by a crew serving on board another ship or ashore.”
  • additional examples of the use of small craft, and clarification of their legal status, by referring to craft “such as those used in attacks by special operations forces, mine clearance, and visit and search, even though they have not been formally designated as warships.
  • additional clarity and examples on the lawful roles of naval auxiliaries
  • a new section that states: “The master and crew of other government ships operated for non-commercial purposes, and embarked government officials, that do not enjoy combatant status enjoy POW status if they fall into the hands of the enemy.”

Chapter 4

An often-disputed element of the law of naval warfare is clarity regarding what maritime areas naval operations can be conducted in. This chapter has sought to further clarify the issue with the following changes:

• • The meaning of “normal mode” for passage and overflight in archipelagic sea lanes is recognized as “circumstantial, depending on the type of vessel or aircraft and may involve defensive measures consistent with their security, including the launching and recovery of aircraft and military devices, screen formation steaming, and acoustic and electronic surveillance, and may respond in self-defense to a hostile act or demonstrated hostile intent. These are considered part of their “normal mode” during times of armed conflict.
  • An example from the Russia-Ukraine conflict was also included to provide further support for the belligerent right to conduct operations in exclusive economic zones. The Russian corvette Vasily Bykova conducted a belligerent visit and search of the Turkish-owned, Palau-flagged dry-cargo freighter Şükrü Okan that was transiting through the Bulgarian EEZ.

Chapter 5

The key change in this chapter, dealing with LOAC’s Basic Principles, was:

• • Recognition that States may impose policy requirements on the proportionality rule that exceed what is required by the law of war, for example to further reduce the likelihood of collateral damage.

Chapter 6

State practice from recent conflicts regarding the means (weapons) of naval warfare resulted in additions that:

• • Clarified that Russian and Ukrainian remotely controlled, explosive-laden, expendable UMS qualify as “weapons” rather than “warships”
  • Inserted new sections that restate the law governing prohibitions on the use of chemical weapons and biological weapons.

Chapter 7

Minor changes were made regarding methods of naval warfare including:

• • Acknowledgement that Russia’s “Maritime Exclusion Zones” in the Sea of Azov and the Northern Black Sea are lawful jus in bello methods of warfare, but declaration of these zones does not alter Russia’s obligation to refrain from attacking civilian or neutral vessels or aircraft in the zones.
  • Updating the part of the Manual dealing with blockade and the supply of food and other goods essential for the survival of the civilian population by noting that customary law does not obligate a blockading power to provide for the free passage of such goods even if requested by a humanitarian organization.

Chapter 8

The final set of substantive amendments deal with targeting at and from the sea by looking at two examples from the Russia-Ukraine conflict:

• • Targeting of “war sustaining” targets and infrastructure where Russia has launched “numerous missile and drone attacks against Ukrainian port infrastructure and facilities, including ship berths, cargo terminals, and grain warehouses,” following its withdrawal from the “Grain Deal.” In response, Ukraine has similarly declared “all vessels” bound for Russian or Russian-occupied ports at risk and transits through the North-East Black Sea region and the Kerch-Yenikal Strait “prohibited.”
  • A new section was added on submarine pipelines that addresses the attacks on Nord Stream 1 and 2 gas pipelines in September 2022 and concludes these pipelines would be lawful targets due to their contribution to Russia’s war economy
  • The different way that naval warfare applies proportionality to the law of armed conflict on land is also commented upon and clarified. The key aspect of this difference relates to targeting at sea being primarily directed at platforms, and not individuals.

There were no significant changes made to Chapters 9 – 12, although some further examples and clarification were provided in these chapters.

Conclusion

It is likely that further updates to the Newport Manual will be needed as changes in naval capabilities occur in the future. The authors of the Second Edition of the Newport Manual do not intend to publish a new edition at any set interval, but amendments are contemplated if warranted by significant changes in either the law or relevant state practice.

About the author:

Associate Professor David Letts is Director of the Military Law Program, and Director of the Centre for Military and Security Law, at the Australian National University (ANU). He arrived at ANU in late 2012 after a career of more than three decades in the Royal Australian Navy.

David’s research interests centre upon the application of legal regimes to military operations, and he has written on topics including military justice, law of the sea, the law of naval warfare, international humanitarian law and the legal issues which arise on peacekeeping operations.

Since joining the ANU College of Law David has been a regular public commentator on government policy which affects the legality of Australian military operations and his opinion is regularly sought by the media.

Disclaimers:

The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the U.S. Naval War College, U.S. Department of Defense, or the U.S. Government, or any other governmental or private entity.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!