Duty to Render Assistance to

Mariners in Distress During Armed

Conflict at Sea: A U.S. Perspective

Raul (Pete) Pedrozo

94 INT’L L. STUD. 102 (2018)

Volume 94 2018

Published by the Stockton Center for the Study of International Law

ISSN 2375-2831
International Law Studies 2018

Duty to Render Assistance to

Mariners in Distress During Armed
Conflict at Sea: A U.S. Perspective

Raul (Pete) Pedrozo

CONTENTS

I. Introduction ............................................................................................. 103

II. Second Geneva Convention.................................................................. 104
III. Duty to Render Assistance .................................................................... 106
A. International Maritime Organization Treaties.......................... 107
B. Other International Agreements ................................................ 109
IV. Vienna Convention on the Law of Treaties........................................ 112
V. Draft Articles on the Effects of Armed Conflict on Treaties .......... 113
VI. U.S. State Practice ................................................................................... 117
A. Domestic Court Opinions .......................................................... 118
B. U.S. Laws and Regulations .......................................................... 119
C. USS Dubuque Incident .................................................................. 123
VII. Conclusion ............................................................................................... 124

 Captain Pedrozo is a retired naval judge advocate and former professor of interna-
tional law at the U.S. Naval War College. While on active duty in the U.S. Navy, he served
in a number of positions, including Staff Judge Advocate, U.S. Pacific Command, and Spe-
cial Assistant to the Under Secretary of Defense for Policy. Captain Pedrozo was a member
of the peer-review group that provided comments on the Commentary on the Second Geneva
Convention during the drafting process.
The thoughts and opinions expressed are those of the author and not necessarily of the
U.S. government, the U.S. Department of Defense, the U.S. Department of the Navy, or
the U.S. Naval War College.
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I. INTRODUCTION

B etween 1952 and 1960, the International Committee of the Red Cross
(ICRC) embarked on a project to write a detailed commentary on each of
O
the four 1949 Geneva Conventions, based primarily on the negotiating his-
tory of the Conventions and prior State practice. With the passage of time,
the ICRC decided to update the commentaries to reflect State practice “in
W
applying and interpreting the Conventions . . . during the decades since their
adoption.”1 By doing so, the ICRC would “ensure that the new editions re-

I
flect contemporary practice and legal interpretation.”2
The maritime landscape, both operationally and legally, has changed sig-
nificantly since the first edition of the Commentary on the Second Geneva
Convention (GCII) was published in 1960.3 ICRC experts believe that the
wounded, sick, and shipwrecked can be better protected if the GCII rules
are clearly understood in light of current operational realities. Accordingly,
the intent of the updated Commentary is to reflect current State practice and
provide “up-to-date legal interpretations based on the latest practice, case
law, academic commentary and ICRC experience” to afford greater protec-
tion for combatants and civilians during armed conflicts at sea.4
One question left unanswered by the new Commentary is the relationship
between international humanitarian law (IHL) and other international trea-
ties applicable to the maritime domain, such as the 1982 United Nations
Convention on the Law of the Sea (UNCLOS) and treaties adopted under
the auspices of the International Maritime Organization (IMO). Does the
outbreak of hostilities terminate or suspend the applicability of these mari-
time conventions or do they remain in effect, in part or in their entirety,

1. Introduction to INTERNATIONAL COMMITTEE OF THE RED CROSS, 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 ¶ 5 (2017) [hereinafter COMMENTARY ON THE SECOND GENEVA CON-
VENTION].
The ICRC published its Commentary on the First Geneva Convention in 2016. See
INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE FIRST GE-
NEVA CONVENTION: CONVENTION (I) FOR THE AMELIORATION OF THE CONDITION OF
THE WOUNDED AND SICK IN THE ARMED FORCES IN THE FIELD (2016).
2. Introduction to COMMENTARY ON THE SECOND GENEVA CONVENTION ¶ 5.
3. See Peter Maurer, Foreword to COMMENTARY ON THE SECOND GENEVA CONVEN-
TION, supra note 1.
4. Introduction to COMMENTARY ON THE SECOND GENEVA CONVENTION ¶ 14.
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during an armed conflict at sea? Do different rules apply between parties to

the conflict and parties to the conflict and neutral powers? Are parties to the
conflict and neutral powers nevertheless bound during an armed conflict at
sea by the provisions of the maritime conventions that reflect customary in-
ternational law? This article analyzes these questions in light of the 1969 Vi-
enna Convention on the Law of Treaties, the International Law Commis-
sion’s 2011 Draft Articles on the Effects of Armed Conflicts on Treaties,
and U.S. State practice, focusing primarily on the duty to render assistance
to mariners in distress at sea.

II. SECOND GENEVA CONVENTION

GCII establishes a legal framework for the humane treatment and protection
of victims of armed conflict at sea. In this regard, Article 12 requires parties
to the conflict to respect and protect, in all circumstances, members of the
armed forces and other individuals falling with the scope of the Convention
“who are at sea and who are wounded, sick or shipwrecked . . . without any
adverse distinction founded on sex, race, nationality, religion, political opin-
ions, or any other similar criteria.”5 Paramount to achieving this core objec-
tive of humane treatment, the parties to the conflict are required, after each
engagement and without delay, to “take all possible measures to search for
and collect the shipwrecked, wounded and sick,” without discriminating be-
tween their own and enemy personnel.6 This obligation has its origins in Ar-
ticle 16(1) of the Tenth 1907 Hague Convention, which provides that “after
every engagement, the two belligerents, so far as military interests permit,
shall take steps to look for the shipwrecked, sick, and wounded, and to pro-
tect them . . . against pillage and ill-treatment.”7 The main difference between
the 1907 and 1949 conventions is that the phrase “so far as military interests
permit” was replaced with “take all possible measures,” thus applying the
stricter requirement adopted for war on land to war at sea.

5. Convention (II) for the Amelioration of the Condition of the Wounded, Sick, and
Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S.
85 [hereinafter GC II]. Individuals failing within the scope of the Convention are set forth
in Article 13.
6. Id. art. 18; see also COMMENTARY ON THE SECOND GENEVA CONVENTION, supra
note 1, art. 18, ¶ 1618.
7. Convention No. X for the Adaptation to Maritime Warfare of the Principles of the
Geneva Convention art. 16, Oct 18, 1907, 36 Stat. 2371, T.S. No. 543, reprinted in THE LAWS
OF ARMED CONFLICTS 397 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004) [hereinafter
Hague Convention No. X].
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There may be circumstances, however, in which the belligerents do not

have the capability or capacity to conduct adequate search and rescue oper-
ations after an engagement. In such cases, the 1949 Convention allows the
parties to the conflict to facilitate and supplement their search and recovery
efforts by appealing “to the charity of commanders of neutral merchant ves-
sels, yachts or other craft, to take on board and care for wounded, sick or
shipwrecked persons, and to collect the dead.”8 A similar provision is found
in Article 17(2) of Additional Protocol I, which provides “the Parties to the
conflict may appeal to the civilian population and the aid societies . . . to
collect and care for the wounded, sick and shipwrecked, and to search for
the dead and report their location.”9 This obligation was first included in
Article 9 of the Tenth Hague Convention: “Belligerents may appeal to the
charity of the commanders of neutral merchant ships, yachts, or boats to
take on board and tend the sick and wounded.”10
Article 21, Article 9’s counterpart in the 1949 Convention, clearly does
not impose an obligation on the parties to the conflict to request assistance,
stating, “the Parties . . . may appeal.”11 Nonetheless, the 2017 Commentary
takes the position that appealing to the charity of neutrals to provide assis-
tance is not necessarily a discretionary function. In circumstances where it is
not feasible for a belligerent warship engaged in a surface action to conduct
a search and rescue operation, the ICRC believes that the parties to the con-
flict may be legally bound to notify nearby neutral coastal authorities, hu-
manitarian organizations, or “vessels in the vicinity that there are ship-
wrecked, wounded, sick or dead in need of rescue or recovery, and appeal to
their charity to take them on board and care for them.”12 The ICRC’s posi-
tion that this is not a discretionary function is understandable given the over-
arching obligation of the parties to the conflict in Article 18 to promptly
collect and “ensure” the adequate care of the shipwrecked, wounded, and

8. Neutral vessels that respond to such an appeal or that have on their own accord
provided assistance to wounded, sick, or shipwrecked persons, “shall enjoy special protec-
tion and facilities to carry out such assistance.” GC II, supra note 5, art. 21.
9. The belligerents “shall grant both protection and the necessary facilities to those who
respond to this appeal.” Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of International Armed Conflicts art. 17, June 8,
1977, 1125 U.N.T.S. 3 [hereinafter AP I].
10. Hague Convention No. X, supra note 7, art. 9.
11. GC II, supra note 5, art. 21 (emphasis added).
12. COMMENTARY ON THE SECOND GENEVA CONVENTION, supra note 1, art. 18, ¶
1637.
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sick, as well as in the general purpose and intent of GCII to maximize pro-
tection for victims of armed conflict at sea. Nonetheless, the plain language
of the Convention—“may appeal”—does not support this conclusion.
Similarly, it does not appear that GCII obliges a neutral to respond to
the request for assistance given the language of Article 21, under which ap-
peals are made to the “charity” of commanders of neutral vessels. However,
the Commentary correctly states that this does not mean “that the response to
an appeal . . . is necessarily left entirely to the commander’s discretion.”13 As
discussed in the following Part, there are a number of non-IHL treaties that
impose an obligation on States to come to the assistance of persons in danger
of being lost at sea. To the extent these treaties have not been annulled by
the concept of lex specialis and remain in effect during an armed conflict at
sea, neutrals would arguably have a duty to provide the requested assistance,
if feasible and consistent with their treaty obligations.

III. DUTY TO RENDER ASSISTANCE

Customary international law has long recognized the affirmative obligation

of mariners to render assistance to persons in distress at sea to the extent
they can do so without serious danger to their ship, crew, or passengers. This
long-standing custom is codified in a number of international treaties
adopted under the auspices of the IMO, as well as the 1958 Geneva Con-
vention on the High Seas14 and the 1982 UNCLOS.15 Moreover, there is
nothing in IHL that precludes neutrals from providing such assistance. On
the contrary, Article 17(1) of Additional Protocol I specifically provides that
the “civilian population and aid societies . . . shall be permitted, even on their
own initiative, to collect and care for the wounded, sick and shipwrecked,
even in invaded or occupied areas.”16 Moreover, “no one shall be harmed,
prosecuted, convicted or punished for such humanitarian acts,”17 which
would suggest that the customary duty to render assistance remains in force
during an armed conflict.

13. Id. art. 21, ¶ 1872.

14. Convention on the High Seas art. 12, Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No.
5639, 450 U.N.T.S. 82.
15. United Nations Convention on the Law of the Sea art. 98, opened for signature Dec.
10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
16. AP I, supra note 9, art. 17.
17. Id.
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A. International Maritime Organization Treaties

The duty to render assistance first appeared in the 1910 Salvage Conven-
tion,18 almost forty years before the IMO was formally established.19 The
obligation is codified in Article 11, which provides that “every master is
bound, so far as he can do so without serious danger to his vessel, her crew
and passengers, to render assistance to everybody, even though an enemy,
found at sea in danger of being lost.”20 The Convention explicitly does not
apply to warships or other “Government ships appropriated exclusively to a
public service.”21 However, given that the obligation extends to anyone in
distress, “even though an enemy,” the duty to render assistance under the
Salvage Convention applies both in times of peace and during an armed con-
flict.
An obligation to render assistance, as well as establish search and rescue
services, is also contained in the International Convention of the Safety of
Life at Sea (SOLAS).22 Regulation V/7 requires States to “undertake to en-
sure that necessary arrangements are made for distress communication and
co-ordination in their area of responsibility and for the rescue of persons in
distress at sea around its coasts.”23 Regulation V/33 further requires that
masters of ships at sea—which are in a position to be able to provide assis-
tance—on receiving a signal from any source that persons are in distress at
sea, “proceed with all speed to their assistance.”24 If the ship receiving the
request is unable or considers it unreasonable or unnecessary to provide as-
sistance, “the master must enter in the log-book the reason for failing to

18. Convention for the Unification of Certain Rules of Law Respecting Assistance and
Salvage at Sea, Sept. 23, 1910, 37 Stat. 1658, T.S. No. 576 [hereinafter 1910 Salvage Con-
vention].
19. The IMO was not established until 1948. Convention on the Intergovernmental
Maritime Consultative Organization, Mar. 6, 1948, 9 U.S.T. 621, T.I.A.S. No. 4044, 289
U.N.T.S. 3. The organization’s name was later simplified to the International Maritime Or-
ganization as it is now known.
20. 1910 Salvage Convention, supra note 18, art. 11.
21. Id. art. 14.
22. International Convention for the Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T. 47,
1184 U.N.T.S. 2.
23. “These arrangements shall include the establishment, operation and maintenance
of such search and rescue facilities as are deemed practicable and necessary, having regard
to the density of the seagoing traffic and the navigational dangers and shall, so far as possi-
ble, provide adequate means of locating and rescuing such persons.” Id. annex, ch. V, reg.
7.
24. Id. annex, ch. V, reg. 33, ¶ 1.
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proceed to the assistance of the persons in distress . . . [and] inform the

appropriate search and rescue service accordingly.”25 Regulation V/33 addi-
tionally authorizes the relevant search and rescue service to

requisition . . . ships as the . . . search and rescue service considers best able
to render assistance, and it shall be the duty of the master or masters of the
ship or ships requisitioned to comply with the requisition by continuing to
proceed with all speed to the assistance of persons in distress.26

Like the 1910 Salvage Convention, SOLAS Regulation V/1 also exempts
warships, naval auxiliaries, and other ships owner or operated by a State and
used only on government non-commercial service from its application.
Nonetheless, warships and other government vessels “are encouraged to act
in a manner consistent, so far as reasonable and practicable, with . . . chapter
[V].”27 As discussed in Part VI below, U.S. State practice is to apply the duty
to render assistance to its warships and other non-commercial government-
owned or operated vessels.28
The 1979 Search and Rescue Convention29 contains similar provisions
regarding the establishment of search and rescue services and the duty to
render assistance to persons in distress at sea. Chapter 2 of the Convention’s
annex requires the parties to make the “necessary arrangements . . . for the
provision of adequate search and rescue services for persons in distress at
sea round their coasts.”30 If a party receives information that a person is in
distress at sea in its search and rescue region, “the responsible authorities . .
. shall take urgent steps to provide the most appropriate assistance availa-
ble.”31 Additionally, any unit that receives information of a distress incident
shall take “immediate action to assist as is within its capability or shall alert
other units which might be able to assist, and shall notify the rescue co-or-
dination centre or rescue sub-centre in whose area the incident has oc-
curred.”32

25. Id.
26. Id. ¶ 2.
27 Id. annex, ch. V, reg. 1, ¶ 1.
28. See supra Part VI.
29. International Convention on Maritime Search and Rescue, Apr. 27, 1979, T.I.A.S
No. 11,093, 1405 U.N.T.S. 97.
30. Id. annex, ch. 2, ¶ 2.1.1.
31. Id. ¶ 2.1.9.
32. Id. annex, ch. 5, ¶ 5.9.1.
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Chapter 3 of the annex further requires the parties to coordinate their

search and rescue operations with neighboring States,33 and encourages par-
ties to allow their rescue coordination centers to provide assistance, when
requested, “to other rescue coordination centers, including assistance in the
form of vessels, aircraft, personnel or equipment.”34 Moreover, assistance
shall be provided “regardless of the nationality or status of such a person or
the circumstances in which that person is found,” which suggests that the
obligation applies in times of peace, as well as during an armed conflict at
sea.35 This conclusion is further supported by Article II of the Convention,
which provides that “no provision of the Convention shall be construed as
prejudicing obligations or rights of vessels provided for in other international
instruments.”36
Finally, Article 10 of the 1989 Salvage Convention imposes a duty on
every master, “so far as he can do so without serious danger to his vessel and
persons thereon, to render assistance to any person in danger of being lost
at sea.”37 The Convention further requires the parties to cooperate in matters
related to salvage “in order to ensure efficient and successful performance
of salvage operations for the purpose of saving life or property in danger.”38
Like the 1910 Salvage Convention, the requirements of the 1989 Convention
do “not apply to warships or other non-commercial vessels owned or oper-
ated by a State and entitled . . . to sovereign immunity under generally rec-
ognized principles of international law unless that State decides otherwise,”
in which case the party shall notify the Secretary-General, specifying the
terms and conditions of such application to its sovereign immune vessels.39
State parties are additionally required to adopt measures necessary to enforce
the duty to render assistance.40

B. Other International Agreements

Apart from the aforementioned IMO instruments, the 1958 High Seas Con-
vention, UNCLOS, and the 1944 Chicago Convention also impose a duty to

33. Id. annex, ch. 3, ¶ 3.1.1.

34. Id. ¶ 3.1.7.
35. Id. annex, ch. 2, ¶ 2.1.10.
36. Id. art. II(2).
37. International Convention on Salvage, Apr. 28, 1989, 1953 U.N.T.S. 165.
38. Id. art. 11.
39. Id. art. 4.
40. Id. art. 10(2).
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render assistance to persons in distress at sea. Article 12 of the High Seas

Convention provides:

1. Every State shall require the master of a ship sailing under its flag, insofar
as he can do so without serious danger to the ship, the crew or the passen-
gers:
(a) To render assistance to any person found at sea in danger of being lost;
(b) To proceed with all possible speed to the rescue of persons in distress
if informed of their need of assistance, insofar as such action may reason-
ably be expected of him.41

The duty is not, however, absolute. The master is only required to act when
doing so would not place the ship or its crew and passengers in “serious
danger.”42 Article 12 further requires coastal States to “promote the estab-
lishment and maintenance of an adequate and effective search and rescue
service regarding safety on and over the sea and—where circumstances so
require—by way of mutual regional arrangements cooperate with neighbour-
ing States for this purpose.”43
A nearly identical requirement, with the same limiting language, is found
in Article 98 of UNCLOS:

1. Every State shall require the master of a ship flying its flag, in so far as
he can do so without serious danger to the ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress,
if informed of their need of assistance, in so far as such action may reason-
ably be expected of him . . . .

2. Every coastal State shall promote the establishment, operation and

maintenance of an adequate and effective search and rescue service regard-
ing safety on and over the sea and, where circumstances so require, by way
of mutual regional arrangements cooperate with neighbouring States for
this purpose.44

UNCLOS additionally makes clear that nothing in the Convention is in-

tended to “alter the rights and obligations of States Parties which arise from

41. Convention on the High Seas, supra note 14, art. 12.
42. Id.
43. Id.
44. UNCLOS, supra note 15, art. 98.
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other agreements compatible with . . . [UNCLOS] and which do not affect

the enjoyment by other States Parties of their rights or the performance of
their obligations under . . . [UNCLOS].”45 Arguably, the duty to search for
casualties after an engagement imposed by Article 18 of GCII is consistent
with the duty to render assistance under Article 98.
States parties to the Chicago Convention46 are similarly required to de-
vote aviation assets to provide prompt search and rescue services. If a pilot-
in-command observes

another aircraft or a surface craft . . . in distress, the pilot shall, if possible

and unless considered unreasonable or unnecessary . . . keep the craft in
distress in sight until compelled to leave the scene or advised by the rescue
coordination centre that it is no longer necessary. . . .47

Moreover, upon receipt of information concerning an emergency, rescue co-

ordination centers shall “evaluate such information and assess the extent of
the operation required.”48 The obligation to conduct search and rescue op-
erations continues “when practicable, until all survivors are delivered to a
place of safety or until all reasonable hope of rescuing survivors has
passed.”49
Like the IMO instruments, Annex 12 to the Convention also requires
contracting States to “individually or in cooperation with other States, ar-
range for the establishment and prompt provision of search and rescue ser-
vices within their territories to ensure that assistance is rendered to persons
in distress.”50 This assistance shall be provided to aircraft in distress and to
survivors of aircraft accidents “regardless of the nationality or status of such
persons or the circumstances in which such persons are found,”51 which
again suggests that the obligations of the Chicago Convention remain in
force during an armed conflict.

45. Id. art. 311.

46. Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S.
No. 1591, 15 U.N.T.S. 295.
47. International Civil Aviation Organization, Search and Rescue, Annex 12 to the Con-
vention on Civil Aviation ch. 5, ¶ 5.6.2.a (2004).
48. Id. ¶ 5.1.2.
49. Id. ¶ 5.5.1.
50. Id. ch. 2, ¶ 2.1.1.
51. Id. ¶ 2.1.2.
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IV. VIENNA CONVENTION ON THE LAW OF TREATIES

Rules of treaty interpretation are set out in the Vienna Convention on the
Law of Treaties (VCLT).52 Article 31 provides the general rule: “a treaty shall
be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object
and purpose.”53 A treaty may only be terminated or suspended “as a result
of the application of the provisions of the treaty or of the . . . [VCLT].”54 Of
note, none of the treaties imposing the duty to render assistance contains an
express provision providing for their suspension or termination during an
armed conflict.
If the provisions of the treaty are unclear or its interpretation “leads to a
result that is “manifestly absurd or unreasonable,” then “recourse may be
had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to con-
firm the meaning resulting from the application of article 31. . . .”55 Given
the humanitarian nature of the duty to render assistance contained in the
various maritime conventions, which is akin to the obligation to search for
casualties imposed by Article 18 of GCII, an interpretation that these con-
ventions automatically terminate or are suspended at the outbreak of an
armed conflict would appear to be “manifestly absurd and unreasonable.”
The VCLT also cautions that

the invalidity [or] termination . . . of a treaty . . . or the suspension of its

operation . . . shall not in any way impair the duty of any State to fulfill any
obligation embodied in the treaty to which it would be subject under inter-
national law independently of the treaty.56

Here, the most obvious example is customary international law obligations.

Most States and legal scholars would agree that the duty to render assistance
is a long-standing customary international law norm.

52. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [here-
inafter VCLT].
53. Id. art. 31(1).
54. Id. art. 42(2).
55. Id. art. 32.
56. Id. art. 43. Furthermore, Article 73 states the provisions of the VCLT do “not pre-
judge any question that may arise in regard to a treaty from . . . the international responsi-
bility of a State or from the outbreak of hostilities between States.” Id. at art. 73.
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V. DRAFT ARTICLES ON THE EFFECTS OF ARMED CONFLICT ON

TREATIES

As stated in Article 73, one issue left unanswered by the VCLT is the effect
of armed conflict on State obligations under existing treaties. Consequently,
in 2000 the International Law Commission (ILC) identified this gap as a
topic for its long-term work program. Between 2005 and 2008, the ILC dis-
cussed the issue and in 2008 adopted on first reading a set of eighteen draft
articles and an annex, along with commentaries. These draft articles and an-
nex were submitted to governments for comment and observations through
the U.N. Secretary-General. In 2010, the special rapporteur submitted his
proposed amendments to the draft articles to the ILC, taking into account
the comments and observations of governments. The following year, after
discussing the special rapporteur’s report, the ILC adopted the draft articles
and annex, with commentaries, and transmitted them to the U.N. General
Assembly with a recommendation to take note of the draft and to consider
the possibility of concluding a treaty on the subject at a later date. The Gen-
eral Assembly accepted the ILC’s recommendation in Resolution 66/99 on
December 9, 2011,57 and subsequently decided to return to the issue in 2017
with a view to examining the form to be given to the draft articles and invit-
ing governments to comment on any future action regarding them.58
Consistent with paragraph 48 of the GCII Commentary, Article 3 of the
draft ILC articles reflects the contemporary international law principle that
“the existence of an armed conflict does not ipso facto terminate or suspend
the operation of treaties as between (a) States parties to the conflict [or] (b)
a State party to the conflict and a State that is not.”59 An armed conflict may,
therefore, affect the obligations of parties to a preexisting treaty in different
ways, depending on whether they are a belligerent or a neutral. Article 3 “es-
tablishes the general principle of legal stability and continuity,”60 reflected in
the 1985 resolution of the Institute of International Law (IIL) on the Effects

57. G.A. Res. 66/99, Effects of Armed Conflict on Treaties (Dec. 9, 2012).
58. G.A. Res. 69/125, Effects of Armed Conflict on Treaties (Dec. 10, 2014).
59. Effects of Armed Conflicts on Treaties, in Report of the International Law Commission
to the General Assembly, 66 U.N. GAOR Supp. No. 10, at 173, art.3, U.N. Doc. A/66/10
(2011), reprinted in [2011] 2 Y.B. Int’l. Comm’n (forthcoming) [hereinafter Draft ILC Arti-
cles].
60. Id. art. 3, cmt. ¶ 1.
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of Armed Conflict on Treaties,61 as well as contemporary domestic case

law.62
Article 2 of the 1985 IIL resolution provides that “the outbreak of an
armed conflict does not ipso facto terminate or suspend the operation of trea-
ties in force between the parties to the armed conflict.”63 The same principle
applies to neutrals pursuant to Article 5—“the outbreak of an armed conflict
does not ipso facto terminate or suspend the operation of bilateral treaties in
force between a party to that conflict and third States.”64 Similarly, “the out-
break of an armed conflict between some of the parties to a multilateral
treaty does not ipso facto terminate or suspend the operation of that treaty
between other contracting States or between them and the States parties to
the armed conflict.”65 Articles 3 and 4 further clarify that “the outbreak of
an armed conflict renders operative, in accordance with their own provi-
sions, between the parties treaties . . . which by reason of their nature or
purpose are to be regarded as operative during an armed conflict,”66 and that
“the existence of an armed conflict does not entitle a party unilaterally to
terminate or to suspend the operation of treaty provisions relating to the
protection of the human person, unless treaty otherwise provides.”67 None
of the aforementioned treaties that impose the humanitarian obligation to
render assistance to persons in distress at sea contains a provision that would
allow for their termination or suspension in the event of an armed conflict.
Articles 4 through 7 of the draft ILC articles provide guidance to assist
in the analysis of whether a treaty remains in effect (partially or entirely) dur-
ing an armed conflict. The first question is whether the treaty contains a
provision “on its operation in situations of armed conflict,” if so, those pro-
visions apply.68 As previously indicated, none of the relevant conventions
contains such a provision.
Absent an express provision, the next step is to apply the rules of treaty
interpretation contained in the VCLT.69 As discussed in Part IV, none of the
treaties imposing the duty to render assistance contains an express provision

61. Institute of International Law, The Effects of Armed Conflict on Treaties (1985),
http://www.idi-iil.org/app/uploads/2017/06/1985_hel_03_en.pdf.
62. See Part VI.
63. Institute of International Law, supra note 61, at art. 3
64. Id. art 5.
65. Id.
66. Id. art. 3.
67. Id. art. 4.
68. Draft ILC Articles, supra note 59, art. 4.
69. Id. art. 5.
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providing for their suspension or termination during an armed conflict.

Moreover, any interpretation of these treaties that would suspend or termi-
nate their application completely during an armed conflict would arguably
be “manifestly absurd or unreasonable.”70 Furthermore, a convincing argu-
ment can be made that the duty to render assistance is a customary norm of
international law and, as provided in Article 43 of the VCLT, termination or
suspension of a treaty does not abrogate the duty of States parties to fulfill
their obligations embodied in the treaty to which they would be subject un-
der international law independently of the treaty.71 Applying these general
rules of treaty interpretation to the maritime conventions, it could be argued
that they remain in force, at least, with respect to nations that are not parties
to the armed conflict.
Nonetheless, if the VLCT’s rules of interpretation are not determinative,
Article 6 of the draft ILC articles provides additional factors that can help
decide whether a treaty terminates or is suspended in the event of an armed
conflict. These factors include:

(a) the nature of the treaty, its particular subject matter, its object and pur-
pose, its content and the number of parties to treaty; and

(b) the characteristics of the armed conflict, such as its territorial extent, its
scale and intensity, its duration and, in the case of non-international armed
conflict, also the degree of outside involvement.72

There is widespread international adherence to all of the maritime trea-

ties. The 1910 Salvage Convention has eighty States Parties,73 while the 1989
Salvage Conventions has seventy States parties.74 SOLAS and UNCLOS
have 16375 and 16876 parties, respectively. Similarly, the Search and Rescue

70. See supra text accompanying note 55.

71. VCLT, supra note 52, art. 43.
72. Draft ILC Articles, supra note 59, art. 6(a)–(b).
73. COMITÉ MARITIME INTERNATIONAL, CMI YEARBOOK 2009, PART III: STATUS
OF RATIFICATIONS TO MARITIME CONVENTIONS 432, 436–39 (2009), http://www.comite
maritime.org/Uploads/pdf/CMI-SRMC.pdf.
74. INTERNATIONAL MARITIME ORGANIZATION, STATUS OF IMO TREATIES 463
(2018), http://www.imo.org/en/About/Conventions/StatusOfConventions/Documents
/Status%20-%202018.pdf.
75. Id. at 16.
76. United Nations Treaty Collection, Depository: Law of the Sea, https://trea-
ties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chap-
ter=21&Temp=mtdsg3&clang=_en.
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Convention has 111 States parties.77 The object and purpose of these treaties,
particularly the humanitarian duty to render assistance, is consistent with the
humanitarian object and purpose of GCII to limit the suffering of victims of
armed conflict at sea. These factors clearly weigh in favor of concluding that
the treaties remain in force, at least in part, during an armed conflict.
Finally, the annex to the draft ILC articles provides a list of treaties that,
based on their subject matter, exhibit a higher likelihood of continued ap-
plicability following the outbreak of an armed conflict.78 One category that
meets this criterion and therefore remains in effect during an armed conflict,
whether all or only some of the contracting parties are belligerents, is multi-
lateral law-making treaties.79 Such treaties are defined as treaties that “create
rules of international law for regulating the future conduct of the parties
without creating an international regime, status, or system.”80 A 1948 letter
from the Legal Advisor to the State Department sets out the U.S. position
regarding such treaties:

[N]on-political multilateral treaties to which the US was a party when the

US became a belligerent in the war, and which . . . [the United States] has
not since denounced in accordance with the terms thereof, are still in force
in respect of the US and that the existence of a state of war between some
of the parties to such treaties did not ipso facto abrogate them, although it is
realized that, as a practical matter, certain of the provisions might have
been inoperative. The view of this Government is that the effect of the war
on such treaties was only to terminate or suspend their execution as be-
tween opposing belligerents, and that, in the absence of special reasons for
a contrary view, they remained in force between co-belligerents, between
belligerents and neutral parties, and between neutral parties.81

A similar position was expressed in the 1948 letter of an official of the British
Foreign Office:

It is not the view of His Majesty’s Government that multilateral conven-

tions ipso facto should lapse with the outbreak of war, and this is particularly

77. INTERNATIONAL MARITIME ORGANIZATION, supra note 73, at 415.

78. Draft ILC Articles, supra note 59, art. 7.
79. Id., annex, ¶ (c), at 202.
80. Id., annex, cmt. (15), at 202.
81. Letter from Ernest A. Gross, Legal Adviser, U.S. Department of State, to Richard
Rank (Jan. 29, 1948), in Richard Rank, Modern War and the Validity of Treaties, 38 CORNELL
LAW QUARTERLY 321, 343–44 (1953), reprinted in Draft ILC Articles, supra note 59, cmt. to
annex, ¶ 17, at 202–03.
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true in the case of conventions to which neutral Powers are parties. . . .

Indeed, the true legal doctrine would appear to be that it is only the sus-
pension of normal peaceful relations between belligerents which renders
impossible the fulfillment of multilateral conventions insofar as concerns
them, and operates as a temporary suspension as between the belligerents
of such conventions. . . . As regards multilateral conventions to which only
the belligerents are parties, if these are of a non-political and technical na-
ture, the view upon which His Majesty’s Government would probably act
is that they would be suspended during the war, but would thereafter revive
automatically unless specifically terminated.82

All of the maritime conventions that impose an obligation to render assis-

tance to persons in distress at sea would appear to fall within the category of
multilateral law-making treaties.
Moreover, consistent with Article 43 of the VCLT, Article 10 of the draft
ILC articles provides that termination or suspension of a treaty as a result of
an armed conflict “shall not impair in any way the duty of any State to fulfill
any obligation embodied in the treaty to which it would be subject under
international law independently of that treaty.”83 This principle is consistent
with the International Court of Justice opinion in the Nicaragua case: “The
fact that the above-mentioned principles [of general and customary interna-
tional law], recognized as such, have been codified or embodied in multilat-
eral conventions does not mean that they cease to exist and to apply as prin-
ciples of customary law, even as regards countries that are parties to such
conventions.”84 The duty to render assistance to persons in distress at sea is
widely recognized as a customary norm of international law. This duty re-
mains in force during an armed conflict, subject to lex specialis considerations
pertaining to the parties to the conflict.

VI. U.S. STATE PRACTICE

U.S. State practice, as reflected in domestic court opinions interpreting in-

ternational law, U.S. law, federal regulations, and relevant military manuals

82. Letter from J. Mervyn Jones, British Foreign Office, to Richard Rank (Jan. 7, 1948),
in Rank, supra note 81, at 346–47, reprinted in Draft ILC Articles, supra note 59, cmt. to annex,
¶ 18, at 203.
83. Draft ILC Articles, supra note 59, art. 10.
84. Military and Paramilitary Activities In and Against Nicaragua, Jurisdiction of the
Court and Admissibility of the Application (Nicar. v. U.S.), Judgment, 1984 I.C.J. Rep. 392,
¶ 73 (Nov. 26).
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support the position that the obligation to render assistance to persons in

distress at sea remains in effect during an armed conflict.

A. Domestic Court Opinions

Since the earliest days of the republic, U.S. courts have taken the position
that not all treaties terminate ipso facto at the outbreak of an armed conflict.
For example, in 1823, the U.S. Supreme Court held:

[W]e are not inclined to admit the doctrine urged at the bar that treaties
become extinguished ipso facto by war between the two governments unless
they should be revived by an express or implied renewal on the return of
peace. . . . There may be treaties of such a nature as to their object and
import as that war will put an end to them, but where treaties contemplate
a permanent arrangement of territorial and other national rights, or which
in their terms are meant to provide for the event of an intervening war, it
would be against every principle of just interpretation to hold them extin-
guished by the event of war. . . . We think therefore that treaties stipulating
for permanent rights and general arrangements and professing to aim at
perpetuity and to deal with the case of war as well as of peace do not cease
on the occurrence of war, but are, at most, only suspended while it lasts,
and unless they are waived by the parties or new and repugnant stipulations
are made, they revive in their operation at the return of peace.85

While recognizing that there are divergent views on the effect of war upon
treaties, the Supreme Court reached a similar conclusion in Karnuth v. United
States (1929). In that case, the Court held:

The effect of war upon treaties is a subject in respect of which there are
widely divergent opinions. The doctrine sometimes asserted, especially by
the older writers, that war ipso facto annuls treaties of every kind between
the warring nations, is repudiated by the great weight of modern authority,
and the view now commonly accepted is that whether the stipulations of a
treaty are annulled by war depends upon their intrinsic character. But as to
precisely what treaties fall and what survive under this designation, there is
lack of accord.86

85. Society for the Propagation of the Gospel v. Town of New Haven, 21 U.S. (8
Wheat.) 464, 494–95 (1823).
86. Karnuth v. United States, 279 U.S. 231, 236–37 (1929); see also Techt v. Hughes, 229
N.Y. 222, 240–43 (1920) (noting that Benjamin Cardozo, then Chief Justice of the Court of
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Further, in 1947, the U.S. Supreme Court reaffirmed the principles articu-
lated in the aforementioned cases in Clark v. Allen, stating:

We start from the premise that the outbreak of war does not necessarily
suspend or abrogate treaty provisions. There may, of course, be such an
incompatibility between a particular treaty provision and the maintenance
of a state of war as to make clear that it should not be enforced. Or the
Chief Executive or the Congress may have formulated a national policy
quite inconsistent with the enforcement of a treaty in whole or in part. This
was the view stated in Techt v. Hughes . . . .87

These decisions reflect the contemporary international law view, stated

in both the GCII Commentary and the draft ILC articles, that treaties are not
extinguished ipso facto as a result of armed conflict. Treaties may terminate or
be suspended if their execution is incompatible with armed conflict, such as
treaties of a political nature. However, treaties that can reasonably be exe-
cuted after the outbreak of hostilities remain in effect and must be observed.
The treaties reflecting the duty to render assistance fall into the latter cate-
gory.

B. U.S. Laws and Regulations

U.S. laws and regulations impose an obligation on masters and captains to

render assistance to persons in distress at sea in times of peace and war.
Consistent with Article 10 of the 1989 Salvage Convention, which calls on
States parties to adopt measures necessary to enforce the duty to render as-
sistance to persons in distress at sea, 46 U.S.C. § 2304 imposes a statutory
obligation on ships’ masters and individuals in charge of vessels to “render

Appeals of New York, and later U.S. Supreme Court Justice, provided a lengthy expose on
this legal question).
The effect of war upon the existing treaties of belligerents is one of the unsettled problems
of the law. The older writers sometimes said that treaties ended ipso facto when war came.
The writers of our own time reject these sweeping statements. International law today does
not preserve treaties or annul them . . . . It deals with such problems pragmatically, preserv-
ing or annulling as the necessities of war exact.
Interestingly, although the Court of Appeals of New York heard Techt nearly a decade before
the U.S. Supreme Court heard Karnuth, the two courts rendered similar opinions regarding
the effects of war on existing treaties.
87. Clark v. Allen, 331 U.S. 503, 508–9 (1947) (citations omitted).
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assistance to any individual found at sea in danger of being lost, so far as the
master or individual in charge can do so without serious danger to . . . [their]
vessel or individuals on board.”88 Failure to comply with this obligation sub-
jects a master or individual violating the law to a fine not exceeding $1,000,
two years imprisonment, or both.89 Further, Australian law imposes a similar
obligation on non-sovereign immune vessels, even with regard to persons of
a foreign State at war with Australia.90
The 46 U.S.C. § 2304 obligation specifically does not apply to warships
or other government owned or operated vessels in public service.91 However,
the U.S. Navy imposes a similar duty on commanding officers of warships
or the senior officer present via Article 0925 of the U.S. Navy Regulations.92
Navy Regulations are lawful general orders under Article 92 of the Uniform
Code of Military Justice.93 Failure to comply with the obligation to render
assistance, unless doing so would seriously endanger the ship or its crew, is
therefore subject to criminal prosecution at a special or general courts-mar-
ital.94 The case of the USS Dubuque, discussed below, exemplifies the im-
portance the U.S. Navy places on this duty.

88. 46 U.S.C. § 2304(a)(1) (2012).

89. Id. § 2304(b) (2012).
90. Navigation Act 1912 (Cth) s 317A (Austl.), https://www.legislation.gov.au/De-
tails/C2012C00196.
(1) The master of a ship shall, so far as he or she can do so without serious danger to his or
her ship, its crew and passengers (if any), render assistance to any person, even if such person
be a subject of a foreign State at war with Australia, who is found at sea in danger of being lost.
(2) The master of a ship who fails to comply with the provisions of this section shall be
guilty of an offence punishable on conviction by imprisonment for a period not exceeding
10 years.
(emphasis added)
The Navigation Act does not apply to ships belonging to, or operated by, the Australian
Defence Force. Id. s 3.
91. 46 U.S.C. § 2304(a)(2) (2012).
92. U.S. Dep’t of the Navy, U.S. Navy Regulations art. 0925 (1990).
1. Insofar as can be done without serious danger to the ship or crew, the commanding of-
ficer or the senior officer present as appropriate shall:
a. proceed with all possible speed to the rescue of persons in distress if informed of their
need for assistance, insofar as such action may reasonably be expected of him or her;
b. render assistance to any person found at sea in danger of being lost;
c. afford all reasonable assistance to distressed ships and aircraft; and
d. render assistance to the other ship, after a collision, to her crew and passengers and,
where possible, inform the other ship of his or her identity.
93. Uniform Code of Military Justice, 10 U.S.C. §§ 801–946(a), art 92 (2012).
94. Id.
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U.S. Coast Guard Regulations similarly impose a comparable, but more

expansive duty on commanding officers of Coast Guard ships. The Coast
Guard Regulations state: “Upon receiving information that a vessel or air-
craft is in distress within the area of operation of the unit, the commanding
officer shall, whenever it is appropriate to do so, assist such vessel or aircraft
as soon as possible.”95 Further, the regulations provide that “[i]n rendering
assistance during any distress case, the commanding officer shall aid the dis-
tressed vessel or aircraft and its passengers and crew until such time as it is
able to proceed safely, or until such time as further Coast Guard assistance
is no longer required.”96 Moreover, consistent with GCII Article 18(1), Coast
Guard Regulations do not require, but allow for searches for bodies, albeit
under certain circumstances:

When it has been definitely established . . . that persons are dead, the Coast
Guard is not required to conduct searches for bodies. If, however, requests
are received from responsible agencies . . . Coast Guard units may partici-
pate in body searches provided that these searches do not interfere with
the primary duties of the units. Commanding officers and officers in charge
shall exercise tact and good judgment in the use of their forces for such
purposes.97

In the event of a reported distress, the commanding officer of a Coast

Guard vessel under way shall, unless otherwise directed by higher authority,
“proceed immediately toward the scene of any reported distress within the
range of operation.”98 Similarly, the commanding officer of a ship in port
shall, unless otherwise directed by higher authority, “proceed, as soon as
possible, to the scene of any reported distress within that area of opera-
tion.”99 When rendering aid and assistance, “the commanding officer shall
use sound discretion and shall not unnecessarily jeopardize the vessel or the

95. Commandant, U.S. Coast Guard, COMDTINST M5000.3B, United States Coast
Guard Regulations § 4-1-7B (1992) [hereinafter U.S. Coast Guard Regulations]; see also 1
Office of Navigation Safety and Waterway Services, United States Coast Guard & Chair-
man, Joint Chiefs of Staff, Joint Publication 3-50, National Search and Rescue Manual: Na-
tional Search and Rescue System (1991); 2 Office of Navigation Safety and Waterway Ser-
vices, United States Coast Guard & Chairman, Joint Chiefs of Staff, Joint Publication 3-
50.1, National Search and Rescue Manual: Planning Handbook (1991).
96. U.S. Coast Guard Regulations, supra note 95, § 4-1-7.C.
97. Id. § 4-1-7D.
98. Id. § 4-2-5A.
99. Id. § 4-2-5B.
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lives of the personnel assigned to it.”100 Additionally, having due regard for
the health of his or her crew, “the commanding officer shall take on board
distressed seamen of the United States, shipwrecked persons, and persons
requiring medical care.”101 Once on board, “assisted persons shall be fur-
nished rations and may be transported to the nearest or most convenient
port of the United States.”102
The duty to render assistance, however, only applies to “vessels or air-
craft [and seamen or airmen] of a foreign State at peace with the United
States.”103 Accordingly, if the United States is a neutral during the conflict,
Coast Guard ships could provide assistance to any of the belligerents at
peace with the United States, as well as to other neutral nations. Assistance
to a vessel and its crew of a nation at war with the United States would not
be provided under the Coast Guard Regulations, but rather would be af-
forded under Article 18 of GCII. Coast Guard Regulations also allow the
commanding officer to provide assistance to private efforts, when neces-
sary.104 This would include efforts by relief societies or private entities en-
gaged in the collection of wounded, sick, or shipwrecked personnel.
The duty to assist persons, ships, and aircraft in distress at sea is also
reflected in U.S. military manuals. For example, The Commander’s Handbook
on the Law of Naval Operations reflects the view of the maritime services—
Navy, Marine Corps, and Coast Guard—that “customary international law
has long recognized the affirmative obligation of mariners to go to the assis-
tance of those in danger of being lost at sea” as codified in both the 1958
High Seas Convention and UNCLOS.105 A similar view on the customary
nature of the duty to render assistance to persons in distress at sea is ex-
pressed in the German Navy Commander’s Handbook—“It is not due to
the morale of mariners but in accordance with seafaring tradition and thus
with customary law that all mariners help each other in cases of distress at
sea.”106 Thus, as a customary rule, the duty to render assistance remains in
effect in times of peace, as well as war.

100. Id. § 4-2-5C.

101. Id. § 4-2-5F.
102. Id.
103. Id. §§ 4-2-5D, 4-2-5F (emphasis added).
104. Id. § 4-2-5E.
105. U.S. NAVY, U.S. MARINE CORPS & U.S. COAST GUARD, NWP 1-14M/MCWP 5-
12/COMDTPUB P5800.7A, THE COMMANDER’S HANDBOOK ON THE LAW OF NAVAL
OPERATIONS § 3.2.1 (2007).
106. BUNDESMINISTERIUM DER VERTEIDIGUNG, REFERAT SM 3 AUFTRAGSNUMMER
2002U-01441, KOMMANDANTEN-HANDBUCH: RECHTSGRUNDLAGEN FÜR DEN EINSATZ
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C. USS Dubuque Incident

For its part, the United States takes the duty to render assistance seriously.
As an example, on June 10, 1988, the USS Dubuque (LPD 8) came across a
boatload of eighty Vietnamese refugees adrift in a dilapidated junk in the
South China Sea.107 The U.S. warship, under the command of Captain Alex-
ander Balian, was en route to the Persian Gulf to assume minesweeping du-
ties after the USS Roberts (FFG 58) struck an Iranian M-08 mine in the central
Persian Gulf on April 14, 1988. The Dubuque was carrying a contingent of
nine hundred Marines to augment U.S. forces in the Gulf in the event of
further hostilities with Iran following Operation Praying Mantis. Standing
orders in effect at the time of the incident included: (1) U .S. Navy Regula-
tions, Article 0925, which required commanding officers to render assistance
to any person found at sea in danger of being lost; and (2) Commander, U.S.
Seventh Fleet Operations Order 201, which required commanding officers
to take on board persons in life endangering circumstances at sea if relief of
persons in such circumstances cannot be accomplished by repair to boats,
re-provisioning, or navigational assistance.
An inspection of the junk by the Dubuque’s executive officer revealed
that the vessel had a makeshift sail and appeared seaworthy, but did not have
an operable engine. In his report to Captain Balian, he also reported that
twenty people had already died on the voyage and that the remaining survi-
vors on board looked emaciated and distraught. Nonetheless, Captain Balian
elected not to embark the refugees on the ship because he believed it would
endanger his mission by delaying considerably the Dubuque’s arrival in the
Persian Gulf. He was also concerned about the health and safety of his crew.
Captain Balian decided to provide the refugees with provisions—fruit,
canned food, rice, and fresh water—and send them on their way with a nav-
igational chart containing plotted coordinates to the Philippines. However,
Captain Balian was unaware that the junk had been adrift for nineteen days,
not seven as he had been told, and that thirty of the original 110 passengers
on board had already died. Balian was also misinformed that there were only

VON SEESTREITKRÄFTEN [FEDERAL MINISTRY OF DEFENSE, REFERENCE SM3 ORDER

NUMBER 2002U-01441, COMMANDER’S HANDBOOK: LEGAL BASES FOR THE OPERATIONS
OF NAVAL FORCES] (2002) (Ger.).
107. For a more detailed description of this incident, see JAMES KRASKA & RAUL PED-
ROZO, INTERNATIONAL MARITIME SECURITY LAW 684–86 (2013). Further, the factual as-
certains made within this section may also be found within this source and page range.
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sixty (rather than eighty) refugees on board the junk. As a result, he miscal-
culated the time it would take for the boat to reach the Philippines and the
amount of provisions needed; therefore, the food and water provided was
insufficient for the remainder of the journey. The refugees drifted for nine-
teen more days until rescued by a Filipino fishing vessel. Only fifty-two of
the original 110 refugees that left Vietnam survived the ordeal. When they
ran out of food, they resorted to cannibalism to survive.
As a result of his failure to take the refugees on board or provide other
means for their rescue, Captain Balian received a general court-martial at
which he was found guilty of dereliction of duty for failing to give adequate
assistance to the refugees. He received a career-ending letter of reprimand,
and was relieved of command.

VII. CONCLUSION

Although the law regarding the effects of armed conflict on preexisting treaty
obligations is not completely settled, most contemporary scholars would
agree with the position taken by the ICRC in the GCII Commentary that the
initiation of hostilities does not ipso facto terminate or suspend application of
previous adopted international agreements.108 Most scholars would also
agree that the concept of lex specialis derogat legi generali (special law repeals
general laws) constitutes a general principle of international law.109 The con-
cept is frequently raised when debating the applicability of international hu-
man rights law during armed conflicts regulated by IHL, but it can also apply
to other bodies of law, such as the law of the sea.
The United States takes the position that in nearly all circumstances, IHL
is the lex specialis governing armed conflict and the protection of armed con-
flict victims.110 This position is based on the premise that “[t]he rule that is
more specifically directed towards the action receives priority because it
takes better account of the particular features of the context in which the law
is to be applied, thus creating a more equitable result and better reflecting
the intent of the authorities that have made the law.”111 In this regard, IHL
“has been developed with special consideration of the circumstances of war

108. See PART V.

109. See, e.g., MALCOLM N. SHAW, INTERNATIONAL LAW 116 (5th ed. 2003).
110. OFFICE OF THE GENERAL COUNSEL, U.S. DEP’T OF DEFENSE, LAW OF WAR
MANUAL § 1.3.2 (rev. ed., Dec. 2016).
111. Id. § 1.3.2.1.
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and the challenges inherent in its regulation by law.”112 Accordingly, IHL

treaties like GCII are viewed as “lex specialis in relation to treaties providing
peacetime norms concerning the same subjects.”113 Thus, as between oppos-
ing belligerents, the obligation to search for and collect the shipwrecked,
wounded, and sick reflected in Article 18 of GCII would be viewed as lex
specialis in relation to the duty to render assistance to persons in distress at
sea contained in the various peacetime maritime treaties. The U.S. Coast
Guard Regulations, which limit the duty to render assistance to “vessels or
aircraft [and their crews] of a foreign state at peace with the United States,”
confirm this conclusion.114
The GCII Commentary suggests that it could “be argued that the more a
question is linked, or the closer it occurs to, actual hostilities” the more GCII
prevails.115 Thus, the ICRC argues that “situations far from the battlefield or
not linked to actual hostilities may still be regulated by” the maritime trea-
ties.116 While this position may have some humanitarian appeal, it is not sup-
ported in law or by State practice. For the purpose of searching for and col-
lecting casualties at sea after an engagement, IHL is lex specialis vis-à-vis the
belligerents regardless of the proximity to the battlefield.
That is not to say, however, that the duty to render assistance reflected
in the various maritime treaties is abrogated during an armed conflict vis-à-
vis the belligerents and neutrals or between neutrals and other States not
party to the conflict. Consistent with the basic principle of pacta sunt servanda
(agreements must be kept)117 the obligation would remain in force between
neutrals. Similarly, the obligation would remain in force between neutrals
and the parties to the conflict as a customary rule of international law. Most
governments and contemporary scholars agree that the duty to render assis-
tance to persons in distress at sea is widely recognized as a long-standing
principle of international law.118 The existence of an armed conflict does not
override the duty of a State to fulfill its obligations “embodied in the treaty
to which it would be subject under international law independently of that

112. Id.
113. Id.
114. U.S. Coast Guard Regulations, supra note 95, § 4-2-5D.
115. Introduction to COMMENTARY ON THE SECOND GENEVA CONVENTION, supra note
1, ¶ 58.
116. Id.
117. VCLT, supra note 52, art 26 (“Every treaty in force is binding upon the parties to
it and must be performed by them in good faith.”).
118. See supra notes 83–84 and accompanying text.
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treaty.”119 Parties to the conflict and neutral powers are therefore bound dur-
ing an armed conflict at sea by the provisions of the maritime conventions
that reflect customary international law.
In sum, the peacetime duty to render assistance to mariners in distress at
sea remains in effect during an armed conflict as a treaty obligation and/or
as a matter of customary international law in the following circumstances:
(1) Neutrals parties must render assistance to other neutral parties; (2) Neu-
trals parties must render assistance to belligerents upon request or sua sponte;
and (3) Belligerent parties must render assistance to neutral parties. How-
ever, the obligation is suspended as between the belligerents during the
armed conflict.

119. Draft ILC Articles, supra note 59, art.10; see also VCLT, supra note 52, art. 43.
126