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Distinction, Proportionality, and Precautions in Attacks at Sea in the New Era of the Law of Naval Warfare
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Distinction, Proportionality, and Precautions in Attacks at Sea in the New Era of the Law of Naval Warfare
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Journal Article
Distinction, Proportionality, and Precautions in Attacks at Sea in the New Era of the Law of Naval Warfare
2025
Overview
China has upset the security balance in East Asia through the development of a longrange strike complex composed of anti-ship ballistic missiles, drones and cruise missiles, and hypersonic missiles that put U.S. naval fleets at risk. Beijing's innovative approach to sea control through the projection of power from land-based fires highlights three important differences between the law applicable to naval warfare and the law of armed conflict (LOAC) as it is implemented on land.1 These legal distinctions are subtle in law, but they shape concrete choices available to naval commanders and could determine the outcome of war at sea. First, the standard for what constitutes a military objective in naval warfare is broader than in land warfare. For example, enemy war-sustaining industries and commercial shipping may be captured or even destroyed in conflict at sea, whereas private property on land is generally protected. Second, in war on land, commanders must take all feasible precautions in attack to consider alternative methods or means to reduce injury to civilians or civilian objects, a high standard. During armed conflict at sea, only reasonable precautions must be taken. This lower bar makes sense because it is less likely that civilians and civilian objects will be caught up in a naval war. The practical result is that war at sea has fewer precautions. Third, attacks against military objectives in the law of armed conflict require a proportionality analysis, which operates differently at sea than on land. Those who plan, approve, or execute an attack are subject to the rule of proportionality, which prohibits attacks in which the expected collateral damage is excessive relative to the anticipated military advantage to be gained. Since naval warfare is fought from platforms, such as warships, submarines, and military aircraft, the proportionality analysis includes only civilians or civilian objects near the platform but does not include civilians or civilian objects on board. These legal nuances would govern any naval conflict between China and the United States and could quickly intensify and widen the conflict.
