Keith Mack
The laws of the sea are a complex and dynamic area of international law, with naval officers needing to be aware of the legal intricacies surrounding territorial waters. The laws that govern naval operations are distinct from those on land, with specific regulations and complexities. For instance, the United States recognizes a three-mile limit from coastal low-water marks, which means that a vessel within this boundary is subject to the jurisdiction of the nation. This is further complicated by the Posse Comitatus Act, which prohibits federal troops from engaging in civilian law enforcement without express authorization. The Navy also has its own set of regulations, issued by the Secretary of the Navy, which govern the duty, responsibility, and authority of naval personnel. These regulations are distinct from standard military laws and can be altered by the Secretary of Defense or the President. With the unique challenges of naval warfare, a specific set of rules has been developed, which are primarily based on the principles of International Humanitarian Law.
| Characteristics | Values |
|---|---|
| Navy laws are different from ground laws | True |
| Navy laws are issued by | Secretary of the Navy |
| Navy laws are applicable to | Department of the Navy |
| Navy laws are permanent regulations | True |
| Navy laws cover | duty, responsibility, authority, distinctions, and relationships of officials, organizations, and individuals |
| Navy laws are implemented by | Chief of Naval Operations |
| Ground laws are applicable to | Army and Air Force |
| Ground laws are mentioned in | Posse Comitatus Act |
| Posse Comitatus Act was signed in | 1878 |
| Posse Comitatus Act was signed by | President Rutherford B. Hayes |
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What You'll Learn
The Posse Comitatus Act
The original Posse Comitatus Act applied only to the United States Army, but amendments over the years have expanded its scope to include the Air Force, Navy, Marine Corps, and Space Force. The Coast Guard, despite being part of the federal armed forces, is not included in the Act as it has explicit statutory authority to carry out law enforcement. Members of the National Guard are generally not covered by the Posse Comitatus Act as they usually report to their state or territorial governor and are free to engage in law enforcement if permitted by state law. However, when Guard personnel are called into federal service, they become subject to the Act until they are returned to state control.
There are statutory exceptions to the Posse Comitatus Act, including the Insurrection Act, which allows the president to deploy the military to enforce federal law, suppress rebellions, or protect civil rights in a state. Another exception is when the president uses the military to suppress genuine rebellions and enforce federal civil rights laws. Despite these exceptions, the Posse Comitatus Act remains a crucial safeguard against the use of military power in civilian matters, ensuring that the maintenance of peace and law and order remain primarily within the purview of civilian authorities.
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Jurisdiction of navigable waters
The term "navigable waters" is used to describe bodies of water such as oceans, rivers, streams, lakes, ponds, and wetlands that are navigable by boats or other vessels. The specific definition of "navigable waters" can vary depending on the context and the jurisdiction in question.
In the United States, the term "navigable waters" is defined by various federal agencies and legislation, including the Clean Water Act, the Rivers and Harbors Act of 1899, and the Navigable Waters Protection Rule. These laws and regulations outline the scope of federal jurisdiction over navigable waters and the activities that are permitted or prohibited within these waters.
The Clean Water Act establishes federal jurisdiction over "navigable waters," which are referred to as "waters of the United States." This includes not only navigable waters but also tributaries of navigable waters and adjacent wetlands with a significant connection to navigable waters. The Act provides authority to the Environmental Protection Agency (EPA) and the U.S. Department of the Army to define and regulate these waters.
The Rivers and Harbors Act of 1899 prohibits the unauthorized obstruction of navigable waters and requires a permit for any construction or work affecting these waters. The Act gives the U.S. Army Corps of Engineers the authority to issue permits and make rulings on what constitutes navigable waters.
The Navigable Waters Protection Rule, issued in 2020, provides a definition of "waters of the United States" that includes territorial seas, traditional navigable waters, tributaries, certain lakes, ponds, and wetlands. This rule replaced the 2015 Clean Water Rule and was subsequently vacated and remanded by a U.S. District Court in 2021.
In the context of international law and naval warfare, navigable waters are classified as internal waters, territorial seas, and the high seas. A state has exclusive legal control over its internal waters, which include landlocked waters, rivers, canals, and waters in ports and harbors. The legal control over territorial seas is similar to that of internal waters, with the additional provision that all states have the right of innocent passage through these waters in times of peace.
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Naval force in foreign territories
The presence of naval forces in foreign territories is governed by international laws and conventions. These laws outline the rights and responsibilities of naval powers when operating in foreign waters and jurisdictions.
International law recognises three classifications of navigable waters: internal waters, territorial seas, and the high seas. Internal waters refer to landlocked waters, rivers, canals, ports, and certain gulfs and bays within a state's territory. A state holds exclusive legal control over its internal waters, similar to its authority over land-based territories. The territorial sea, on the other hand, includes the waters extending from the baseline of the internal waters outwards. In times of peace, a rule of international law grants all states the right of innocent passage through another state's territorial sea. This right includes stopping and anchoring incidental to ordinary navigation or in cases of force majeure or distress.
Historically, naval powers have established overseas military bases in foreign territories for strategic purposes, particularly during the First and Second World Wars and the Cold War. The United States, for example, maintains a significant number of military bases in foreign countries, with at least 128 bases in 55 countries and territories as of February 2025. These bases are often located in NATO countries, the Middle East, South Korea, and Japan.
The deployment of naval forces in foreign territories is subject to specific regulations and authorisations. In the United States, the "United States Navy Regulations" serve as the principal regulatory document for the Department of the Navy. These regulations outline the duties, responsibilities, and authority of naval officials and are issued by the Secretary of the Navy, subject to the approval of the President of the United States. The Chief of Naval Operations is responsible for maintaining and updating these regulations to meet the current needs of the department.
When operating in foreign territories, naval forces are generally expected to respect the laws and customs of the host nation. In some cases, the presence of naval forces may be governed by status-of-forces agreements or other international agreements that outline the rights and obligations of the visiting forces. Additionally, the laws of naval warfare dictate that force should only be exercised as a last resort in self-preservation and with the assent of local authorities whenever possible.
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US Navy Regulations
The US Navy has its own set of regulations, separate from those of the ground forces, which are issued by the Secretary of the Navy with the approval of the President. These Navy Regulations are the principal regulatory document of the Department of the Navy and carry the sanction of law. They outline the duty, responsibility, authority, distinctions, and relationships of officials, organisations, and individuals within the Navy.
The history of Navy Regulations dates back to November 28, 1775, when the Second Continental Congress enacted the "Rules for the Regulation of the Navy of the United Colonies". The first issuance by the US Government was the "Act for the Government of the Navy of the United States" in 1799, followed by the "Act for the Better Government of the Navy of the United States" in 1800. In the years leading up to the Civil War, twelve successor publications were released under various titles by the President, Navy Department, and Secretary of the Navy.
After the Civil War, a provision in the 1862 naval appropriations bill recognised the regulations issued by the Secretary of the Navy as the regulations of the Navy Department, subject to alterations by the Secretary with the President's approval. Between 1865 and 1948, thirteen editions of Navy Regulations were published under this authority. The 1973 edition was issued under the authority of 10 U.S.C. § 6011, which reaffirmed the Secretary of the Navy's role in issuing regulations with presidential approval.
It is important to note that Navy Regulations do not supersede any orders or directives issued by the President, Secretary of Defense, or Acts of Congress. The Chief of Naval Operations is responsible for maintaining these regulations and ensuring they meet the current needs of the Department of the Navy.
Additionally, the Law of Naval Warfare, as outlined in Chapters 1-6, provides further guidance on the legal framework governing naval operations. It covers topics such as the scope and applicability of naval warfare laws, the distinction between combatants and non-combatants, neutrality, and the enforcement of international laws and treaties.
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International law on the high seas
International law recognises that all parts of the saltwater surrounding the globe that are not part of the territorial sea or internal waters of a state are high seas. The high seas are not completely lawless. According to international law, a maritime country extends outward from its shoreline. Maritime countries essentially control their territorial waters from the shore out to a distance of 12 miles (19.3 km), the “12-mile limit”. Within this zone, all the laws of that country apply.
In addition to the 12-mile limit, maritime countries are also entitled to an exclusive economic zone (EEZ) made up of the water column and the seabed out to a distance of 200 miles (about 322 km). The maritime country that owns the EEZ owns the sea life and mineral resources found within it, but it cannot prevent foreign countries' ships, aircraft, and other vessels from passing through or over it.
Beyond the 12-mile limit and EEZ, in the vast stretches of the ocean, vessels and aircraft from any country are free to pass through, fly over, fish, and extract mineral resources. With respect to crimes committed in these areas, the laws of the country owning the vessel upon which the crime was committed hold sway. In the case of international crimes such as piracy, human trafficking, and crimes against humanity, any country or international organisation can theoretically claim authority over the matter using the concept of universal jurisdiction.
The freedom of the high seas is now recognised to include freedom of navigation, fishing, laying of submarine cables and pipelines, and overflight of aircraft.
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Frequently asked questions
United States Navy Regulations is the principal regulatory document of the US Navy. It is issued by the Secretary of the Navy and acts as a vehicle for implementing Title 10 of the United States Code as it pertains to Naval Services.
The Posse Comitatus Act bars federal troops from participating in civilian law enforcement unless expressly authorized by law. The Act applies to the Navy and Marine Corps, but not the Coast Guard.
The United States recognizes a three-mile limit from coastal low-water marks as its territorial waters, as affirmed by an act of Congress in 1782. However, there have been inconsistencies with this three-mile doctrine, and the United Nations is considering a proposal to extend this limit to twelve miles.
Yes, the San Remo Manual serves as the main reference document for the law of naval warfare. It provides guidelines on the use of certain weapons and interactions between ships and aircraft, reflecting developments in the law of the sea. Additionally, the general principles of International Humanitarian Law (IHL) applicable to land conflicts also apply to naval operations.
