Sea Control - Sea Control 464 - The Newport Manual with Dr. James Kraska and Professor Pete Pedrozo

Episode Date: September 21, 2023

Links1. The Newport Manual on the Law of Naval Warfare, by James Kraska, Pete Pedrozo, et al., International Law Studies, U.S. Naval War College, 2023.2. "Radioactive Tsunamis: Nuclear Torpedo Drones and Their Legality in War," by Pete Pedrozo, CIMSEC, September 4, 2023.3. San Remo Manual on International Law Applicable to Armed Conflicts at Sea.

Hey, folks, it's Jared. I'm joined by Dr. James Kraska and Professor Pete Pedrozzo to discuss the Newport Manual on the Law of Naval Warfare. This episode was edited and produced by Nate Miller. Pete just published with us at the beginning of September, so I'll take this opportunity to plug his work, Radioactive Tsunamis, Nuclear Torpedo Drones and Their Legality in War. You can find that as well as our most recent call for articles at simsec.org. And with that, Kimber's Men. You're listening to Sea Control, hosted by the Center for International Maritime Security. Aloha, Shoemates, and welcome back aboard Sea Control.

My guests today are Dr. James Kraska and Professor Pete Pedroso, and we're going to be discussing the Newport Manual on the Law of Naval Work. So, James, Pete, welcome aboard. James, I'm going to start with you. Can you tell the listeners a little bit about your background, please? Yeah, so I was a Navy judge advocate for about 20 years, did most of my service in the Western Pacific, as well as in the Pentagon, focused on international operational law, including law of the sea, law of armed conflict, and law of naval warfare. And then after that, I retired. I went to Duke University Marine Laboratory for a little while and then came back into the Navy as a civilian in the Stockton Center for International Law at the Naval War College. I'm sorry, I'm just going to go slightly off script here and ask you, like, what were you doing at the Duke University Marine Laboratory? That's an interesting diversion.

Yeah, so after I retired, I went to Duke University Marine Laboratory, which is in the Nicholas School of the Environment. And I did, I taught a class on deep seabed mining, taught another class on the law of the sea, and I focused on irregular or asymmetric threats in the marine environment. Well, thank you. Welcome. Pete, how about you? Can you tell the listeners a little bit more about yourself, please? Sure. I also am a retired Navy judge advocate. I retired after 34 years of service, eight years of that, which was in the Army, in the infantry. I also did most of my tours in the Pacific, both Army and Navy, with the exception I did spend quite a bit of time at the Pentagon as a special assistant to the Undersecretary of Defense and Policy, as well as the head of the Navy's then International Law Division. And then I was also the senior judge advocate at U.S. Pacific Command before it became U.S. Indo-Pacific Command for four years.

And then I retired and went to the Naval War College for five years and then went back to Hawaii to work back at Indo-PACOM as the principal deputy staff judge advocate and the senior civilian attorney there. And then after my wife came back to the States, I got a job back at the War College at the Stockton Center. Well, thank you both for coming on today. As a reminder to the listeners, all the opinions are our own and not reflective of any of the institutions with which we might

be otherwise associated. So, James, first question to you in the preface, you and your co-authors wrote, the manual is the first effort to restate the law of naval warfare as a purely Lex Lata exercise since 1955. What does that actually mean to the layperson? well lex lata is a term of art in international law which means a description of the law as it actually exists and that stands opposed to lex forenda which is the law as you might like it to be or aspirational views or perspectives on the law and that's often what you get in scholarship because if somebody is writing a phd dissertation they want to have some unique new twist they don't

want to just describe the law, but they aspire to change the law through some policy or moral imperative. It's their view of the world. And that's fine from an academic standpoint, but it's not a good guide for real world operations. And so what we were interested in is capturing the state of the law of naval warfare as it actually exists. That is, as it has been applied by states, either in real world conflicts or in their training and in their doctrine. And so the Newport Manual is focused on what states have actually done during armed conflict or what they are training to do during armed conflict. And this is different from a lot of the scholarship that is out there, including, for example, the San Remo Manual.

And so we thought it was important in this era to be able to have a restatement or a collection of rules that the major maritime powers have implemented in the past and that are in training for the future to facilitate coalition operations. And so the states that have significant naval forces, the United States, Japan, some European partners, Australia, India, a handful of other countries that have serious capabilities and how they intend to employ them. And there was not a guide in the law of naval warfare to do so. The last one was the Naval Warfare Publication 10-TAC-2, published in 1955. And this, of course, wasn't adequate to the times that we're in today. Can you tell me just a little bit more about the composition of your team as well? Because it sounds, I am interpreting that this was an international effort, that this was not just, you know, you folks up at the Naval War College, but some of these other powers that you mentioned probably provided personnel to provide their own perspectives, as well as go through their own case history, if you will, and provide that. uh that's right and now this was not sort of a collection of national representatives but it

just so happened that we were looking at uh inviting into this project the key experts on the law of naval warfare they just so happen to be mainly from major maritime powers so first we have Professor Dr. Wolf von Heinegg from Germany, who has written more in this subject than any other living person. And he was key to the success of the project. We also have James Ferrant, a judge advocate, a barrister in the Royal Navy. Captain Gupri Khurana from from India, India's leading authority on the law of the sea and the law of naval warfare. We have two scholars from Japan. One is Eureka Ishii, who is a professor at the National Defense Academy, as well as Commander Koki Sato, who is the leading authority in the Japan Maritime

Self-Defense Force on the law of naval warfare. And he's written extensively in Japanese. And these scholars were able to bring non-Western sources, both Gupreet and Eureka and Koki were able to bring non-Western sources and practices for these very large navies. So the JMSDF has the second largest naval force in the free world, and India has the third. India is a massive navy. They've got numerous experts and numerous vessels that they put to sea, both in the eastern and western Indian Ocean and even beyond. Then we also had Rob McLaughlin and Dave Letts.

Both are retired commodores in the Royal Australian Navy, and both have written extensively in this area. And then finally, Pete and I were involved in this project. So we really looked to first for expertise, not necessarily country representation, but it just turned out that way that we were interested in the people that had the greatest experience in this field. Pete, next question to you. Why did you feel publishing was necessary and what is this manual designed to replace or is it kind of a first of its kind? well it uh why did we publish it why was it necessary i think if the uh if there is a armed conflict in the western pacific it's going to involve major naval engagements as james mentioned since there really isn't a single publication that reflects the law of naval warfare holistically from different views we thought it was it would be important that since

we will fight as a coalition if there is a conflict in the Western Pacific. We felt it necessary that we would have a manual that could be, that would reflect different views of the different countries that might participate in such a coalition so that they would have a reference document that they could look at. What's it designed to replace? I wouldn't say that it's designed to replace anything. The only thing that's something like it is the, as James mentioned, the San Remo Manual, which has been around since the mid 90s. The problem with the San Remo Manual is that it does contain some progressive views on the law of naval warfare. It was the views of scholars at the time, what they wanted the law to be as opposed to what the law was. So we thought

that it would be that it was necessary to indicate in our manual where the San Remo Manual goes beyond what is the law and states what they think is progressive law. So that's basically the reason that we wrote this manual. So, James, back to you for the next question. Pete, obviously, you can jump in on this as well, and we can probably throw the San Remo manual into the question, but what takes precedence when the law of naval warfare conflicts with the law of the sea and San Remo? Does San Remo have any legal standing then?

uh so san remo has no legal standing because it's merely just a book that some scholars wrote they did to to an extent strive to restate or capture the law of naval warfare and in some respects um they did so and so in in that you know from that view it has been helpful uh the problem as pete mentioned though is that it just contains a number of elements of lex ferranda One of these examples relates to the question you just asked, which is what takes precedent during naval warfare? Is it the law of the sea or the law of naval warfare? And here the San Remo Manual is incorrect. It sort of mixes the two. You could see why somebody might be excused doing so because the San Remo Manual came about in 1994, which was exactly at the point at which naval warfare was less likely than any time in the last, you know, 75 years. The Law of the Sea was specifically negotiated to avoid even military issues, let alone naval warfare issues. So the Law of the Sea was the process that set in motion the third UN conference was begun with a speech by Ambassador Arvid Pardo in 1967, where he worried about some issues in the Law of the Sea and deep seabed mining and also worried about the superpowers, the United States and the Soviet Union, military domination of the oceans and weapons of mass destruction.

What happened after his speech is that the UN energized two different streams of efforts. The first was on the military issues, which they peeled off and they negotiated the Seabed Nuclear and Weapons of Mass Destruction Treaty. That was a separate event where a separate treaty was signed to deal with weapons of mass destruction beyond 12 nautical miles. the civilian peacetime issues were separated and those evolved into the third UN conference and produced the UN conference on the law of the sea so it's a staple of international law that when you have a specialized regime it displaces the more generalized regime the law of the sea is not completely irrelevant in the law of naval warfare because it, for example, it demarcates where international waters begin, or more accurately, what is the outer extent of national waters,

of sovereignty, it's out to 12 nautical miles. And so naval warfare may be conducted lawfully, use in bellow beyond 12 nautical miles of any neutral state. So naval warfare can be conducted on the high seas, in the exclusive economic zone, in the contiguous zone of any nation, as well as, of course, within the territorial sea of the belligerents. So in that respect, the law of the sea is still useful. It's not useful, and in fact, it's irrelevant when you talk about other issues in the law of the sea, such as the right that the coastal state has for due regard for its fisheries resources, for example. And so this is a mistake that scholars have made and one of the things that we thought would be helpful to set right. If there's a naval conflict

going on, no country in practice is going to apply any sort of due regard for the fish of another country in its targeting process. Now, you were working on this as the war in the Black Sea has unfolded. So did any of the events in the maritime domain there affect what ultimately went into the manual? And then, Pete, I think you're going to start with this one. I don't think that any of the events in the Black Sea itself had a bearing on anything that would be put into the manual.

But the Ukraine-Russia conflict does illustrate that the law of naval warfare is alive and well and that it needs some amplification to ensure that the rules are followed. So, for example, Russia established restricted areas or war zones. That's perfectly legitimate under the law of armed conflict, the law of naval warfare, and we talk about that in the manual. However, it cannot be a free-fire zone like the Russians applied it at the beginning of the war when they sank a number of neutral merchant vessels in the northwest part of the Black Sea. That was clearly a violation of the law of naval warfare, but it illustrates how these war zones are in place during naval warfare, and there are certain rules that apply. Same thing with naval mines. There's been a lot of extensive naval mining going on in the Black Sea during the conflict. A lot of news reports indicating that there are free-flowing mines in the Black Sea. That would be inconsistent with the law of naval warfare, where there are certain requirements, old rules that apply from the 1907 Hague Convention, that require mines to deactivate themselves if they break loose of their moorings. or if the person that emplaces the mine loses control of the mine. So all these kind of things are reflected in our manual and are discussed at great length.

And so in that sense, although the Black Sea didn't have any influence on what we put in the manual, it does show that there is a need to clarify what the rules are for certain activities during a naval war. You mentioned the Russian violation of some of these rules with the use of the pre-fire zone and sinking vessels sort of indiscriminately that come into these. What is the accountability mechanism for violating those rules? Does that refer to the Hague or somewhere else? Well, it's a violation of the law of armed conflict. So if there are tribunals established after the conflict, the violators could be tried for war crimes. We saw this after World War II. There were war crime trials against German naval officers for unrestricted submarine warfare. They weren't punished. They were found guilty, but not punished for unrestricted submarine warfare because the United States and the United Kingdom also engaged in unrestricted submarine warfare. And therefore, the tribunal felt that it would not be fair to punish the German naval officers for violating the law of naval warfare. But they did clarify that they were, in fact, violations of the law.

And then, James, back to you. What were the biggest changes from previous publications on this subject? I think you've covered some of it already, but if you have anything else to add. Now, thanks for the question. So, yeah, there were a number of changes. Really, the first one is what I alluded to with regard to the Naval Warfare Publication 10-TAC-2, which reflects only the U.S. position, and it's also, you know, decades out of date. This is the problem with other military manuals, is that they only reflect one country's position. That also includes the U.S. Commander's Handbook on the Law of Naval Operations, which Pete and I are the primary review authority for that, for the Navy, and was most recently published in 2022. too. It's just a U.S. Navy, U.S. Marine Corps, U.S. Coast Guard publication. It doesn't include the views of other countries. And that's really the key here is that, as Pete mentioned, we are operating in a coalition in which other countries come to the table, and they also have their different views. And the weakness in whether it's academic or government publications so far is that they only reflect one view. Even the academic publications like the San Remo manual

assert one single view as a rule, sort of take it or leave it. That's not what happens in the real world. As we know from operating in numerous coalitions, states have reasonable variations or slight variations on the law, and they apply the law in sometimes slightly different nuance. A perfect example is what's determined to be a lawful military objective. And a number of states and European allies have a very narrow view of what's a military objective. And it relates to whether the object that you want to target contributes to the enemy's military action. That's quite a narrow view that doesn't comport with the state practice of the United States and some other countries. We have a broader view, and in the U.S. view, a military objective is something that supports the war-sustaining element of the enemy. And so think about it. This could be something like an oil tanker, and it's particularly amenable in a naval warfare context where you do have an element of economic war at sea.

This is, this has already been described, for example, with relation to China, with the Malacca dilemma. And you can bet that if there's conflict in East Asia, Taiwan, South China Sea, East China Sea, that these economic targets will come into play, and that this war-sustaining view is likely to actually be implemented. The San Remo manual wouldn't accept that. So rather than have sort of a pedantic hard list of rules that reflect only one view, we've captured all of the positions, all of the nuances of the different maritime powers. One other thing that I'll just say briefly is that the other aspect that makes this sort of fresh or relevant is that we have included some elements that are just emerging, such as unmanned systems, unmanned warships. And so in that respect, we take the view that in looking at the state practice of different navies that unmanned warships have sovereign immune status in the law of the sea. They are entitled to freedom of navigation in the law of the sea, and they also have belligerent rights

in the law of naval warfare. So this is something that previous works have not looked at. I just thought about this, but did you address at any point in there what we see with but maritime militias and fishing vessels that serve, we'll say, quote-unquote, dual purposes. Does that come up in there? Yes, it has. And obviously there's other scholars, and Pete and I have written about this as well. We do go into more detail or more depth because, as you know, there are war plans, apparently by adversaries, to use merchant vessels in a wide variety of

roles, including as part of the kill chain or even putting missiles on container ships. And so we do go into quite a bit of detail on when these vessels lose their protected status. Now, enemy merchant ships can always be captured. And sometimes they may turn themselves into lawful targets. And so we talk about the distinction between these two quite a bit. Even talking just about these vessels being subject to capture is somewhat unique today because a lot of people have forgotten about the law of prize capture. And so we have an entire chapter on this. Well, I would imagine it's even more complex today because you're talking about what constitutes a nation's vessel. Is it solely flag state status? Is it the company that's owned? What about the cargo that's on board? If you're talking about, you know, the tanker is, okay, there's going to be one type of cargo there. If you're talking about a container vessel that someone wants for some reason, you may have cargo from 60 different countries on that or 60 countries represented because of where those different companies' cargo comes from. So did you try to peel that back and address some of that complexity? I mean, that seems like it would take decades to sort out after the fact.

and it would probably never, it would be something you would read about 50 years after the conflict. Oh, this has finally been resolved. Yeah, I mean, basically we're talking, in the law of near warfare, we're talking about platform-based targeting. So if a ship, if a merchant ship,

which would normally only, an enemy merchant ship, which would normally only be subject to capture unless it did something that would lose that status, it would not be targetable initially, only after it engages in certain activities Could it be targetable? So if you've got a container ship, which is a merchant ship, it's an enemy merchant ship, and it has a Club K missile battery hidden in a container, that ship is targetable. And it doesn't matter that there's 100 different countries represented in the cargo that's being carried by that ship. That's irrelevant because you're targeting the platform.

And the same thing goes for the maritime militia vessels, is that it's platform-based targeting. You don't care who's on board the vessel. It doesn't matter that they're a bunch of fishermen. If they're engaged in certain activities that makes them lose their protected status as a merchant ship, the platform is targetable without taking into consideration who's on board. And the same rules apply for a neutral vessel. So if a neutral vessel is engaged in activities that's providing assistance to the other belligerent, then it becomes targeted. Just like an enemy merchant vessel would become targetable, that engages in certain types of activities. Back to you, Pete, for the final question, then.

How do you, at least to start answering, how do you answer the critique? This is drawn up at the U.S. Naval War College in Newport by Americans. I wrote allies in the initial draft. That's not true. Not all of these countries are allies, but certainly several of them are OK. Germany, treaty ally. The United Kingdom, treaty ally. Japan, treaty ally. The Indians, obviously not allies, but growing increasingly like-minded by the day is probably the best descriptor that's not a legal one. So how do you address that critique that it's not just US slash Western slash, okay, like minded nations, because there are two, you know, very two to four very prominent countries that are going to say, like, none of this is applicable to us, we can do whatever we want. I would say anyone who has that criticism of the manual, I would tell them to read the manual. And if they read the manual carefully, they will see, as James indicated, that we have been very careful that if there are different points of view on certain issues in the law of naval warfare, we capture that.

Because if we operate in a coalition environment, we need to know what the limitations of our coalition partners are. So we can't just assume that everybody's going to follow the U.S. rules when we go to war, because that's not the case. And we've seen that over and over again over the past 50 years in the Persian Gulf, and where we have coalition allies that some of them can't do certain things because their national rules don't allow it. So we've done a good job, I think, of capturing from individual state military manuals what those rules are so that a coalition can look at the manual and say, here's five different viewpoints on this one issue. Which ship are we going to use to conduct a certain mission? Because we know that they're going to be able to do it based on their national rules. So I think that's the importance of this manual. It does capture different points of view. is not a U.S. view. It's not an American manual. It's a manual that reflects, as James mentioned,

the views of major maritime powers, with the exception, I would say, of China and Russia. James, anything further to add on that last question? Well, yeah, I would just, I agree with Pete. This manual is reflective of the views of major maritime powers and their state practice. So if there's a bias, then you could say that it doesn't reflect the views of all states. It reflects the views of those states that have operated larger or more competent navies in either training for armed conflict or in actual armed conflicts. So we go back and look at German and Japanese practice during the World Wars, for example, which is still relevant for use in bellow today. So, you know, we're not looking at,

it's not a collection of views from all states. It's not a miniature United Nations sort of view, but it's a view of states that have operated extensively in the maritime domain. Well, gentlemen, I'm sorry, that's all that we have time for today. I'd like to thank my guests, Dr. James Kraska and Professor Pete Pedroza. Pete, we'll start with you. Where can we find you online and what are you working on next? My email is raul.pedrozo at usmwc.edu. That's my War College email address. And right now, James and I and Professor Mike Schmidt are working on updating the annotated supplement to the Commander's Handbook on the Law of Naval operations. The annotated supplement has not been updated since the 80s, so I think this is going to

be a good product, a useful product for the U.S. Naval Forces, and I think that we hope to be able to finish it before the end of the year. James, same question as you. Where can we find you, and what are you working on next besides the extremely large, complex product peaches to Yeah, so I'm also at the Naval War College. My email is james.praska at usnwc.edu, working on the commentary to the Newport Manual. And Pete and I are considering another book. So if anybody has good ideas, we've got a couple of thoughts that we're going through. but if anybody has any thoughts, we'll be glad to consider those. Also, I would say the Newport Manual is available for download for free in International Law Studies. International Law Studies is the oldest journal of international law in the United States, the oldest publication at the Naval War College, and so the Newport Manual is volume 101 of ILS. Anybody can download

it, and more than 2,000 people have done so already. So if you have any thoughts or constructive criticism on the Newport Manual, we're also thinking about eventually a second version of that, and so Pete and I would be glad to hear your comments. I will put in a plug as well. We will have a link available in the show notes and when this goes up on the SimSec website, so if you want the easy button right after you listen to it, you can go there and download the manual. But gentlemen, And thank you again for joining us. To the listeners, thanks for tuning in. We'll see you next time.

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