A Map to the Second Edition of the Newport Manual on the Law of Naval Warfare

The U.S. Naval War College has recently published its second edition of the Newport Manual on the Law of Naval Warfare as volume 105 of International Law Studies (ILS), sometimes referred to as the “Blue Book.” Although there are no major or thematic changes to the second edition, it provides updates and clarifications that impact naval operations during armed conflict at sea.

This post identifies the academic and operational context for the second edition and highlights select revisions made.

Context

Given the dangerous geopolitical situation in the Black Sea and Western Pacific, as well as the waters surrounding Taiwan, the Senkaku Islands, and the features in the South China Sea, ensuring a comprehensive and accurate understanding of the rules of naval warfare is more important than ever. The second edition has been edited by four of the original authors following an extensive review and revision process. This edition replaces the first edition, published less than two years ago as volume 101 of ILS. The Newport Manual has become a standard work in the field, with more than 11,800 downloads. The second edition alone had about one thousand downloads in its first month of publication.

After the publication of the first edition, its authors received feedback on various aspects of the Manual, which eventually led to the decision to hold a one-day workshop in Newport in May 2024, following the conclusion of the Stockton Center’s annual Alexander C. Cushing International Law Conference. Approximately forty people attended the workshop, representing numerous States, international organizations, and individual attendees. Based on input from the workshop, the second edition of the Manual includes some clarification and corrections to parts of the text in the first edition, as well as updated information regarding State practice since the first edition’s release.

The Newport Manual restates the law governing armed conflict at sea and is designed as a practical guide for naval commanders and their staffs. It is the first such effort since the publication of the Chief of Naval Operations’ Law of Naval Warfare, published in 1955 as Naval Warfare Information Publication (NWIP 10-2), which focused strictly on lex lata (law as it is) rather than progressive or theoretical frameworks (lex ferenda). In this regard, the Newport Manual has a clear difference in approach from most other works in the field.

Just like the previous edition, the Stockton Center for International Law at the U.S. Naval War College published the second edition of the Newport Manual. The first edition’s authors include an international expert group that included: Professor Wolff Heintschel von Heinegg; Dave Letts and Rob McLaughlin, both retired Commodores of the Royal Australian Navy who are currently serving as professors at the Australian National Centre for Ocean Resources and Security (ANCORS); Commander Koki Sato, a Legal Officer at the College of Command & Staff of the Japan Maritime Self-Defense Force (JMSDF); Professor Yurika Ishii, formerly of the National Defense Academy of Japan and now at Sophia University; retired Captain Gurpreet Khurana, now at Nalanda University, Rajgir, India; and Commodore James Farrant of the Royal Navy. Professor James Kraska and Professor Raul “Pete” Pedrozo, both from the Stockton Center, completed the team that authored the first edition.

The Newport Manual is not just an intellectual exercise but also a practical guide for commanders and their staffs designed to prepare for likely real-world events, such as the alarming threat of conflict over Taiwan in the coming years. The JMSDF Command & Staff College has translated the Newport Manual into Japanese and the Korean Naval War College has translated it into Korean. Leading practitioners and scholars from around the world, including from Korea, India, the Philippines, Australia, the United States, Denmark, Switzerland, and the United Kingdom, peer-reviewed the Manual.

The law of naval warfare can be an especially intimidating subject that integrates four overlapping bodies of law: the law of the sea; the law of armed conflict and hostilities at sea, including blockade; the law of prize capture; and the law of maritime neutrality. The intersection of these frameworks, along with heavy reliance on customary norms and the unique application of rules of warfighting at sea, has resulted in very little expertise in armed conflict at sea, both within the United States and among its alliance partners. The Newport Manual seeks to fill this gap by synchronizing legal policy among the U.S. Navy and joint force, NATO forces, the JMSDF, the Philippine Navy, the Royal Australian Navy, the Republic of Korea Navy, and other allies, as these partnerships are key to maintaining security and stability in Asia and other areas of current or potential armed conflict at sea.

There are no major doctrinal differences between the first and second editions of the Newport Manual, but the authors did make several changes throughout the document to clarify terms, tighten the text, and ensure that the law reflected State practice. Because the Newport Manual focuses on State practice, it recognizes some variation among States, such as those that are, and are not, parties to Additional Protocol (AP) I. The Second Edition adds new examples of State practice for some rules of naval warfare, both for AP I and non-AP I States.

Revisions

What follows is a summary of some of the revisions appearing in the second edition. There were no significant changes to Chapter 11 or Chapter 12. Overall, as a manual for practitioners and legal advisers, the changes either supplement existing positions set forth in the Manual or occasionally offer material differences in interpretation of the law based on further study of State practice.

Chapter 1 – Sources of the Law of Naval Warfare

– Recognizes that judicial decisions are subsidiary means for the interpretation of existing rules of international law, not sources of international law (§ 1.2 Sources of the Law of Naval Warfare (n. 7)).

– Adds the Manuel de Droit des Opérations Militaires, Ministère des Armées (2022) (France) and Chief of the General Staff (Canada), B-GJ-005-104/FP-021, Law of Armed Conflict at the Operational and Tactical Levels (2001), in recognition of the French Navy as an influential maritime power (§ 1.2.4.1 National Military Manuals).

– Adds the International Committee of the Red Cross’s Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (2017), given its status as a major work of learned scholarship in the field (§ 1.2.4.3 Writings of Publicists).

– Amends the definition of “war crime” to track more closely to the definition used in the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 94 (§ 1.3.1 Concept, n. 74).

Chapter 2 – Scope of the Application of the Law of Naval Warfare

– Acknowledges that a non-international armed conflict can become an international armed conflict (IAC) if another State becomes a party to the conflict by taking part in the hostilities on the side of the non-State organized armed group (§ 1.2 IAC: Concept).

– Clarifies the murky threshold for the application of prize law and maritime neutrality, taking the position that once a State uses armed force (even minimal), whether by land, sea, or air forces, against another State, an IAC exists. In such case, an IAC gives rise to rights and duties of neutral States. It is unsettled, however, whether the entire law of naval warfare (including prize law and the law of maritime neutrality) automatically applies as soon as there is a use of force by one State against another State (§ 2.1.2.1 Armed Force).

– Applies conflict classification to regular naval forces, naval auxiliaries, vessels used by militias, and “any other vessel under the control of the armed forces of the State” (§ 2.1.2.2 Attribution).

– Clarifies that during peacetime, States may use reasonable and necessary force in maritime law enforcement, and that if they exceed the standard and act unlawfully with excessive use of force, the issue is not relevant for conflict classification (§ 2.1.2.3 Against Another State, n. 107).

– Adds a new section on extra-territorial self-defense. This new section recognizes that 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 organized armed group (OAG) from using its territory as a base of operations from which to launch attacks against other States, the aggrieved State may exercise its right of self-defense against OAGs within the territory of the unwilling or unable State. In this regard, numerous States, including the United States, United Kingdom, Australia, Bahrain, Canada, Denmark, the Netherlands, and New Zealand, conducted or explicitly supported strikes against Houthi forces launching attacks from Yemen (§ 2.4.1.3 Extra-territorial Self-Defense).

– Adds a new section on the defense of merchant vessels. During peacetime and armed conflict at sea, the flag State is primarily responsible for providing protection to vessels flying its flag on the high seas. The doctrines of self-defense and protection of nationals provide military forces the authority to use proportionate force necessary to protect their flagged vessels and nationals and their property against unlawful attacks beyond foreign territorial seas ( 2.4.1.5 Defense of Merchant Vessels).

– Adds a new footnote underscoring the legal equality of rights and duties between the belligerents in the Russia-Ukraine conflict (§ 2.4.3 Equal Application of Jus in Bello, n. 149).

Chapter 3 – Status of Vessels, Aircraft and their Crews

– Clarifies 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” (§ 3.2.1 “Warship” Defined).

– Provides additional examples of the use of small craft and their legal status, including “those used in attacks by special operations forces, mine clearance, and visit and search, even though they have not been formally designated as warships” (§ 3.2.3 Small Craft Status, n. 168).

– Adds greater context for the effort of member States of the International Maritime Organization to develop regulations for maritime autonomous surface ships (MASS) and a goal-based code (§ 3.3 Unmanned and Autonomous Maritime Systems).

– Provides additional clarity and examples on the lawful roles of naval auxiliaries, including “provision of sensor or weather information, so long as the contribution does not involve command or control of the associated attack” (§ 3.4 Naval Auxiliaries (Auxiliary Vessels)).

– Adds information on the Vietnam Maritime Militia and Self Defense Force (§ 3.7.1 National Maritime Militia).

– Provides 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 [prisoner of war] status if they fall into the hands of the enemy.” The section continues, saying, “Non-government officials shall be released at an appropriate time unless there is a valid reason for their capture, such as occupying an important position in the war” (§ 3.9 Government Ships Operated for Noncommercial Purposes).

Chapter 4 – Areas of Naval Operations

– Takes no position on whether a strait is determined by actual or potential use for international navigation (§ 4.1.1.4 Straits).

– Recognizes the meaning of “normal mode” for transit in archipelagic sea lanes passage as being “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” (§ 4.1.1.5 Archipelagic Waters).

– Reinforces the right to conduct belligerent operations in the exclusive economic zone by referencing the case of the Russian corvette, Vasily Bykova, conducting “a visit and search of the Turkish-owned, Palau-flagged dry-cargo freighter Şükrü Okan that was transiting through the Bulgarian EEZ” (§ 4.1.2.1 Contiguous Zone, EEZ, and Continental Shelf, n. 354).

Chapter 5 – Basic Principles of the Law of Armed Conflict

– Recognizes that States may impose policy requirements on the proportionality rule that exceed what is required by the law of war. The United States, for example, “requires commanders to take additional protective measures not required by the law of war as they deem appropriate to the circumstances when planning and conducting military operations” (§ 5.1 Proportionality (Prohibition of Excessive Collateral Damage)).

Chapter 6 – Means (Weapons) of Naval Warfare

– Considers Russia’s and Ukraine’s use of remotely controlled, explosive-laden, expendable Unmanned Maritime Systems to conduct attacks as being “weapons” rather than “warships” (§ 6.7 Unmanned Maritime Systems).

– Concludes the 2017 Treaty on the Prohibition of Nuclear Weapons entered into force in 2021, is binding only on States party, and is not reflective of customary international law ( 6.11 Nuclear Weapons).

– Restates existing law governing chemical weapons and biological weapons (§§ 6.12–6.13).

Chapter 7 – Methods of Naval Warfare

– Concludes the jus in bello lawfulness of Russia’s “Maritime Exclusion Zone” in the Sea of Azov and the Northern Black Sea does not alter Russia’s obligation to refrain from attacking civilian or neutral vessels or aircraft in the zone that do not constitute a military objective (§ 7.2.1 Maritime Operational Zones).

– Updates humanitarian requirements applicable to blockade. There is no evidence in customary law that a “blockading power must, if the civilian population of the blockaded area is not adequately supplied with food and other goods essential for its survival, provide for the free passage of such goods.” The passage continues, saying “If at all, the blockading power is prohibited from arbitrarily denying consent to a request for the provision of humanitarian relief consignments by a qualifying humanitarian organization” (§ 7.4.5 Humanitarian Requirements).

Chapter 8 – The Law of Targeting at and from the Sea

– Recounts Russia’s “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” (§ 8.5.1.1 “War Sustaining” as Making an Effective Contribution to Enemy Military Action, n. 574).

– Recounts Ukraine’s declaration that “all vessels” bound for Russian or Russian-occupied ports are at risk and prohibits transits through the North-East Black Sea region and the Kerch-Yenikal Strait (§ 8.5.1.2 “War Sustaining” Debate in the Maritime Context, n. 578).

– Adds a new section on submarine pipelines. Concludes that if Ukraine were responsible for the 2022 attacks on the Nord Stream 1 and 2 gas pipelines, the pipelines qualified as lawful targets because of their contribution to Russia’s war-sustaining effort (§ 8.6.8.2 Pipelines).

– Adds a new footnote that points to evidence that the 2022 attacks on the Nord Stream 1 and 2 gas pipelines are attributable to Ukraine (§ 8.6.8.2 Pipelines, n. 608).

– Clarifies that naval warfare applies proportionality differently than the law of armed conflict on land (§ 8.8.1 Proportionality at Sea).

Chapter 9 – Prize Law

– Concludes that enemy ships that have been given safe conduct are exempt from capture as prize and cites the negligent sinking of the Awa Maru in 1944 (§ 9.5 Enemy Merchant Vessels and Civil Aircraft Exempt from Capture as Prize, n. 665).

– Includes Iran’s list of contraband items used during the Tanker War and an excerpt of Japan’s domestic law that provides a list of contraband during armed conflict (§ 9.6.2.3 Free Goods, n. 682).

Chapter 10 – Protected Vessels, Aircraft, and Persons at Sea

– Updates two sections and adds the “Red Crystal” to the list of recognized organizations (§ 10.4.1.2 Hospital Ships Utilized by Red Cross/Red Crescent/Red Crystal Societies of the Belligerents; § 10.4.1.3 Hospital Ships Utilized by Red Cross/Red Crescent/Red Crystal Societies or by Private Persons of Neutral Countries).

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James Kraska is Charles H. Stockton Professor of International Maritime Law and Chair of the Stockton Center for International Law at the U.S. Naval War College.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

 

 

 

 

 

Photo credit: U.S. Navy, Petty Officer 3rd Class Michael Shen