New Edition of The Commander’s Handbook on the Law of Naval Operations
Originally published in 1900, The Commander’s Handbook went through numerous iterations and major revisions in 1955, when it was released as NWIP 10-2 and 1987, when it was published as NWP 9. The latest update occurred in 2017. However, advances in technology, the evolving international security environment, and changes in U.S. policy over the past five years required the revision of The Commander’s Handbook (NWP 1-14M) to reflect contemporary U.S. practice in conducting maritime operations as an “All-Domain Naval Power, leveraging the complementary authorities and capabilities of the U.S. Navy, Marine Corps, and Coast Guard” (2020 Tri-Service Maritime Strategy).
The March 2022 edition of The Commander’s Handbook on the Law of Naval Operations was released on 5 April 2022. The tri-service publication—U.S. Navy (NWP 1-14M), U.S. Marine Corps (MCTP 11-10B), and U.S. Coast Guard (COMDTPUB P5800.7A)—provides an overview of the legal rules governing naval operations in both peacetime and during armed conflict. Written for the warfighter, it is intended for use by operational commanders and supporting staff elements at all levels of command. The new edition also harmonizes The Commander’s Handbook with the Department of Defense (DoD) Law of War Manual (2016) and the August 2019 U.S. Army and U.S. Marine Corps’ The Commander’s Handbook on the Law of Land Warfare (FM 6-27/MCTP 11-10C).
More substantively, the new edition includes several significant additions and doctrinal revisions on unmanned systems, autonomous systems, information warfare, cyber operations, and outer space.
As the DoD adapts to an increasingly complex security environment, the Navy is building a hybrid fleet of manned and unmanned systems to meet these emerging security challenges. Unmanned and autonomous systems will transform modern naval warfare and play a key role in future Distributed Maritime Operations (DMO). The Navy is developing a wide range of unmanned aerial vehicles (UAV), unmanned undersea vehicles (UUV), and unmanned surface vessels (USV) that will allow it to operate in a more dispersed manner and deliver lethal and non-lethal effects in all domains across multiple axes. The deployment of unmanned systems, however, requires development of new operational concepts, raises issues about their legal status, and requires consideration of the rights and duties that inure to such systems for navigation at sea, and belligerent rights under the law of naval warfare.
Privateering was abolished in 1856; only warships may exercise belligerent rights at sea during an international armed conflict (NWP 1-14M (2022), ¶ 22.214.171.124). A warship is defined in the United Nations Convention on the Law of the Sea (UNCLOS) as a
ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline (Article 29).
While the United States is not a party to UNCLOS, since 1983 it has regarded the provisions of the treaty, excepting seabed mining and compulsory dispute settlement, as reflective of customary international law. Thus, if a USV or UUV will engage in hostilities, it must first be designated as a warship or it must be launched from a warship so that it can engage in belligerent acts as an extension of the warship. In the United States, the Chief of Naval Operations exercises the legal competence to designate USVs and UUVs as warships.
The 2017 NWP 1-14M defined USVs and UUVs as “sovereign immune craft” (NWP 1-14M (2017), ¶ 2.3.6). The 2022 NWP 1-14M significantly augments this definition. It clarifies that some USVs and UUVs may directly engage in belligerent rights, such as time-critical strikes (NWP 1-14M (2022), ¶ 2.3.4), and that these USVs and UUVs may be designated as a warship if they are under the command of a commissioned officer and manned by a crew under regular armed forces discipline by remote or other means (NWP 1-14M (2022), ¶ 2.3.5). In other words, USVs or UUVs do not need to have a crew or commanding officer physically onboard to be designated a warship. Additionally, when flagged as a warship or naval auxiliary, a USV or UUV may exercise the same navigational rights and freedoms and other internationally lawful uses of the seas related to those freedoms as manned ships (NWP 1-14M (2022), ¶ 2.3.5).
DoD policy requires that autonomous and semi-autonomous weapon systems be designed to allow commanders and operators to exercise appropriate levels of human judgment over the use of force. Additionally, persons who authorize the use of, direct the use of, or operate autonomous and semiautonomous weapon systems must do so with appropriate care and in accordance with the law of war, applicable treaties, weapon system safety rules, and applicable rules of engagement (DoD Directive 3900.09, ¶ 4.a & 4.b). The new NWP 1-14M adds a new section on autonomous systems that clarifies that the law of war does not prohibit the use of autonomy in weapon systems if they comply with general rules applicable to all weapons (NWP 1-14M (2022), ¶ 9.12).
The Outer Space Treaty (OST) of 1967 forms the basic framework on outer space law. Among other things, the treaty prohibits placing in orbit around the Earth or other celestial bodies any nuclear weapons or objects carrying weapons of mass destruction (WMD); installing WMD on celestial bodies or stationing WMD in outer space in any other manner; and establishing military bases or installations, testing any type of weapons, or conducting military exercises on the moon and other celestial bodies (Article IV). The treaty also requires that the Moon and other celestial bodies shall be used exclusively for “peaceful purposes” (Article IV).
Although the United States has committed itself to explore and use space for peaceful purposes, U.S. policy confirms that “peaceful purposes” permit defense and intelligence-related activities in outer space and that the United States will continue to use space for “national security activities” (2006, 2010, 2020, 2021). Thus, any military activity that is not prohibited by the OST or does not constitute a threat of or use of force in a manner inconsistent with Article 2(4) of the U.N. Charter is permitted in outer space.
The March 2022 edition includes a new section that clarifies that the law of armed conflict regulates hostilities in outer space and that the customary law of armed conflict applies to activities in outer space in the same way it applies to activities in other domains (NWP 1-14M (2022), ¶ 2.11.5). The new edition additionally reinforces the obligations in the OST (Article V) and the Rescue Agreement (Article 4) for the rescue and return of astronauts and return of space objects to the launching authority.
Information Operations and Cyber Operations
To reflect current operations in the Fleet, the information warfare section was significantly expanded to include a broader array of information operations tools employed in the maritime domain. These include military information support operations (MISO), military deception (MILDEC), Key Leader Engagement (KLE), electromagnetic spectrum operations (electronic warfare and electromagnetic spectrum management operations (JEMSO)), and cyberspace operations.
A new paragraph 126.96.36.199.1 was added to address use of force in the cyberspace operations. This section clarifies that cyberspace operations may rise to the level of a use of force within the meaning of Article 2(4) of the U.N. Charter if their “scale and effects” are analogous to other kinetic and non-kinetic operations that are tantamount to a use of force. The United States regards a cyberspace operation that qualifies as a use of force also as an armed attack under Article 51 of the U.N. Charter and customary international law, which gives rise to a right to take necessary and proportionate force in self-defense.
Factors that should be taken into consideration in determining whether a cyberspace operation constitutes a use of force include: (1) Severity; (2) Immediacy; (3) Directness; (4) Invasiveness; (5) Measurability of effects; (6) Military character; (7) State involvement; and (8) Presumptive legality of the operation. By equating an unlawful use of force to an armed attack that gives a State the right of self-defense, the Handbook rejects the International Court of Justice’s assertion in its Paramilitary Activities judgment that only the “most grave” uses of force qualify as armed attacks.
Updated U.S. Policy
Since 2017, there have been several significant changes in U.S. policy that affect military and maritime operations. The Open Skies Treaty was signed in March 1992 and entered into force on January 1, 2002. The treaty allows State-parties to conduct short-notice, unarmed, reconnaissance flights over the others’ territories to collect data on military forces and activities (Articles I.1, II.4, III.1). Both the United States (November 2020) and Russia (December 2021) have withdrawn from the treaty (Article XV). The March 2022 edition reflects that the United States withdrew from the treaty on November 22, 2020, and Russia’s announcement in June 2021 that it intended to withdraw (which it formally completed in December 2021) (NWP 1-14M (2022), ¶ 2.7.3).
The Intermediate-Range Nuclear Forces (INF) Treaty was signed in December 1987 and entered into force on June 1, 1988. The treaty requires the United States and Russia to destroy their ground-launched ballistic and cruise missiles with ranges of between 500 and 5,500 kilometers, and their launchers and associated support structures and support equipment, within three years after the treaty entered into force (Articles I, IV.1, V.1, X.1). Based on Russia’s sustained failure to comply with its obligations by producing and fielding offensive capabilities that were prohibited by the treaty, the United States withdrew from the agreement in 2019. The U.S. withdrawal was fully supported by its NATO allies. The new edition of NWP 1-14M reflects that the United States withdrew from the INF Treaty on August 2, 2019 (NWP 1-14M (2022), ¶ 10.2.2.8).
On July 9, 1982, President Reagan announced that the United States would not sign UNCLOS because several major problems in the Convention’s deep seabed mining provisions were contrary to the interests and principles of industrialized nations and would not help attain the aspirations of developing countries. Nonetheless, the President acknowledged that UNCLOS “contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states.” Accordingly, on March 10, 1983, the President issued an Oceans Policy Statement that provided, in part, that the United States was declaring an Exclusive Economic Zone (EEZ) consistent with Part V of UNCLOS.
Although the Convention grants coastal states exclusive jurisdiction over marine scientific research (MSR) in their EEZ (Articles 56, 246), the U.S. proclamation did not assert this right because of U.S. interests in encouraging MSR. That policy changed on September 9, 2020. The March 2022 edition of NWP 1-14M now reflects that the United States will exercise its right to regulate, authorize, and conduct MSR and that advance consent is required for MSR conducted by a foreign state within the U.S. territorial sea, the U.S. EEZ, and on the U.S. continental shelf (NWP 1-14M (2022), ¶ 188.8.131.52).
The new edition of NWP 1-14M was also updated to reflect U.S. Navy and U.S. Coast Guard quarantine policies necessitated by the COVID-19 pandemic. As a general rule, commanding officers of ships and aircraft commanders are required to comply with U.S. and foreign (host nation) quarantine regulations and restrictions (Navy Regs, Article 0859) that do not contravene U.S. Navy or U.S. Coast Guard sovereign immunity policy. In response to a request by foreign authorities for health information required by foreign State quarantine regulations or for access to sanitation conditions onboard, commanding officers and officers-in-charge may deliver a U.S. Navy Declaration of Health (NAVMED 6210/3) or a U.S. Navy Ship Sanitation Control Certificate (NAVMED 6210/1), respectively. Consistent with these U.S. policies, paragraph 3.2.3 of the new NWP 1-14M instructs commanders and commanding officers to afford assistance to U.S. or foreign health officials and to give all information required, as permitted by the requirements of military necessity and security, that do not infringe on sovereign immunity. Under no circumstances, however, will commanding officers or commanders allow for the inspection of their ship or aircraft.
Harmonization with DoD Law of War Manual and Army-Marine Corps FM 6-27/MCTP 11-10C
Finally, without going into detail, several chapters were substantially rewritten to harmonize the text of NWP 1-14M with corresponding sections in the DoD Law of War Manual and the Army-Marine Corps FM 6-27/MCTP 11-10C, The Commander’s Handbook on Law of Land Operations. These chapters include revisions to Chapter 5: Principles and Sources of The Law of Armed Conflict; Chapter 6: Adherence and Enforcement; Chapter 8: The Law of Targeting; Chapter 9: Conventional Weapons and Weapons Systems; Chapter 11: Treatment of Detained Persons; and Chapter 12: Deception During Armed Conflict, synchronizing the Commander’s Handbook with the other U.S. service manuals.
NWP 1-14M has been an influential publication in advancing maritime security law and the law of naval warfare. The book has been translated into foreign languages, including Spanish and Thai, and has been adopted by naval and coast guard forces around the world as an authoritative restatement on the law governing operations at sea. The 2017 edition was recently cited by the U.S. First Circuit Court of Appeals in a January 2022 decision regarding Stateless vessels (U.S. v. Davila-Reyes).
The explanations and descriptions in NWP 1-14M enable naval commanders and their staffs to comprehend more fully the legal foundations upon which orders issued by higher authority are premised and better understand their responsibilities under international and domestic law to execute their missions within that law. Nonetheless, NWP 1-14M provides general information and guidance—it is not a comprehensive treatment of the law. It does not supersede guidance issued by the chain of command, and it is not a substitute for definitive legal guidance provided by judge advocates and others responsible for advising commanders on the law. The new edition, however, continues the 120-year legacy of distilling and restating operational law for the naval commander to provide a succinct situational awareness of international law at sea.
LCDR Cynthia J. Parmley is the Navy Military Professor at the Stockton Center for International Law, U.S. Naval War College, Newport, Rhode Island.
Raul (Pete) Pedrozo is the Howard S. Levie Professor on the Law of Armed Conflict at the Stockton Center for International Law, U.S. Naval War College, Newport, Rhode Island.
Photo credit: U.S. Navy photo by Mass Communication Specialist 1st Class Scott Taylor