The Current State of the Law of Naval Warfare: A Fresh Look at the San Remo Manual

• Author: Wolff Heintschel von Heinegg
• Position: Professor of International Law at Europe-University in Frankfurt (Oder), Germany
• Pages: 269-296

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The Current State ofThe Law ofNaval Warfare:

AFresh Look at the San Remo Manual

Wolff Heintschel von Heinegg*

Introduction

The 1994 San Remo Manual1has met widespread approval as acontemporary

restatement of the principles and rules of international law applicable to

armed conflicts at sea. In view ofthe fact that many ofits provisions are but acom-

promise between the differing views within the group of international lawyers and

naval experts who drafted it, some of its provisions may be far from perfection.

Still, this has not prevented aconsiderable number of States from adopting most of

the San Remo rules in their respective manuals or instructions for their naval

armed forces. 2Against that background it is somewhat surprising that there are an

increasing number ofboth operators and lawyers criticizing parts ofthe San Remo

Manual as outdated and as an unreasonable obstacle to the success of their oper-

ational or strategic goals. They, inter alia, refer to the provisions on measures

short of attack and on methods and means of naval warfare, especially on block-

ade and operational zones. In their view, those provisions meet neither the neces-

sities of modern operations, e.g., maritime interception operations (MIO) nor

non-military enforcement measures decided upon by the UN Security Council,

nor do they offer operable solutions to the naval commander.3

*Professor of International Law at Europe-University in Frankfurt (Oder), Germany. This

article was first published in volume 36 of the Israel Yearbook on Human Rights (2006) and is

reprinted with permission. ©2006 by Wolff Heintschel von Heinegg.

AFresh Look at the San Remo Manual

Of course, the San Remo Manual does not prioritize military or operational ne-

cessity. Rather it imposes legal restrictions on naval commanders that may prove

inconvenient in view ofthe means available and in view ofthe task of the respective

mission. The said criticism, however, goes beyond such general complaints about

legal rules. It is based upon the belief that whenever it comes to other States' ship-

ping, interference would be permissible only if it is in accordance with the law of

naval warfare, i.e., with the provisions of the San Remo Manual. If so, it would be

difficult, indeed, to maintain that certain missions, e.g., MIO, conducted within

the framework of the Global War on Terror are legal. It would be similarly difficult

to explain the legality ofmeasures enforcing an embargo ifthey had to be judged in

the light of the law of blockade alone.

However, the said criticism is based upon an erroneous understanding of the

law of naval warfare, of its scope of applicability and, thus, of the San Remo Manual.

Maritime interception operations aimed at combating transnational terrorism4or

the proliferation ofweapons ofmass destruction 5and related components do have

alegal basis that is independent from the law of naval warfare. The same holds true

with regard to enforcing an embargo—either with or without the authorization of

the UN Security Council.6Therefore, neither the law of naval warfare nor the San

Remo Manual as its most recent restatement pose an insurmountable obstacle to

such operations. The San Remo Manual's provisions apply exclusively to situations

of international armed conflicts. 7MIO and other maritime operations have to be

based upon that body of law only if they occur in the course of an armed conflict

between two or more States.

However, the said criticism does not seem to be absolutely unjustified insofar as

the San Remo Manual may indeed no longer properly reflect contemporary State

practice or meet the realities of modern maritime and naval operations. Moreover,

some of its provisions seem to be quite ambiguous and, thus, may be misinter-

preted. This lack of legal clarity could ultimately render obsolete the great progress

achieved by the San Remo Manual.

Therefore, it is time to take afresh look at the San Remo Manual. The task this

author has been entrusted with is to identify those provisions that ought to be re-

considered or modified8and to evaluate the persuasiveness of some of the critical

arguments that have been put forward.

Definitions

At first glance, the list of definitions in paragraph 13 of the Manual seems to be

comprehensive and reflective of customary law. The latter is certainly true in

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