The San Remo Manual on International Law Applicable to Armed Conflicts at Sea was adopted in June 1994 by the International Institute of Humanitarian Law after a series of round table discussions held between 1988 and 1994 by diplomats and naval and legal experts. It is “the only comprehensive international instrument that has been drafted on the law of naval warfare since 1913”.
The San Remo Manual is a legally recognised document but is not binding on states. The San Remo Manual is a codification of customary international law, an integration of existing legal standards for naval conflict with the Geneva Conventions of 1949 and Protocol I of 1977. The San Remo Manual is broken into six parts that each discuss a different section of the law.
The San Remo Manual
The San Remo Manual was prepared at the end of the 1980s and the beginning of the 1990s 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 San Remo Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea.
The San Remo 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 San Remo 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 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 applicable only to naval operations which affect civilians and civilian objects on land.
Article 1 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, June 12, 1994, states that “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”. Article 2 adds that “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”.
Article 3 enounces that “The exercise of the right of individual or collective self-defence recognized 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”.
Article 4 declares that “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”.
Article 5 affirms that “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”.
Article 51 of the UN Charter
Chapter VII of the United Nations Charter sets out the UN Security Council’s powers to maintain peace. It allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and non-military action to “restore international peace and security”.
Chapter VII also gives the Military Staff Committee (the United Nations Security Council subsidiary body whose role, as defined by the United Nations Charter, is to plan UN military operations and assist in the regulation of armaments) responsibility for strategic coordination of forces placed at the disposal of the UN Security Council. It is made up of the chiefs of staff of the five permanent members of the Council.
The UN Charter’s prohibition of member states of the UN attacking other UN member states is central to the purpose for which the UN was founded in the wake of the destruction of World War II: to prevent war. This overriding concern is also reflected in the Nuremberg Trials’ concept of a crime against peace “starting or waging a war against the territorial integrity, political independence or sovereignty of a state, or in violation of international treaties or agreements” (crime against peace), which was held to be the crime that makes all war crimes possible.
The United Nations was established after World War II and the ultimate failure of diplomacy despite the existence of the League of Nations in the years between the First and Second World War. The Security Council was thus granted broad powers through Chapter VII of the UN Charter as a reaction to the failure of the League. These broad powers allow it to enjoy greater power than any other international organisation in history. It can be argued that the strong executive powers granted to it give it the role of “executive of the international community” or even of an “international government”.
Chapter VII of the UN Charter on “Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”, Article 51, states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.
Article 51 provides for the right of countries to engage in self-defence, including collective self-defence, against an armed attack (including cyber-attacks). This article was the impetus for much international pact-making and has been cited by the United States as support for the Nicaragua case and the legality of the Vietnam War. According to that argument, “although South Vietnam is not an independent sovereign State or a member of the United Nations, it nevertheless enjoys the right of self-defense, and the United States is entitled to participate in its collective defense”. Article 51 has been described as difficult to adjudicate with any certainty in real-life.
This Article 51 of the UN Charter is particularly vague: it does not define what constitutes an attack. Is the seizure of ships or aircraft an attack? Is the accidental or intentional violation of another country’s airspace an attack? Is industrial espionage an attack? Is a spy satellite taking photographs of military installations an attack? It does not define what constitutes an armed attack. For example, is a cyber-attack an armed attack?
It does not define “collective self-defence”. Does the attacked nation need to request assistance or can other nations pre-emptively intervene and claim their intervention constitutes collective self-defense? Requiring the attacked nation to request assistance might seem like the most responsible position, but this requires that the United Nations Security Council determine who the original aggressor and defender are. This determination may not be possible or delivered in a timely manner.
Article 51 of the United Nations Charter is sufficiently vague to allow states to assert their right to self-defense without escalating a conflict. While either side in a conflict may see the other as the aggressor acting beyond mere self-defense, Article 51 is vague enough that neither side can prove the other has acted offensively. This vagueness can aid in, if not the de-escalation of conflicts, preventing the rapid escalation of conflicts.