Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 30 : Employment of hospital ships and coastal rescue craft
Text of the provision*
(1) The vessels described in Articles 22, 24, 25 and 27 shall afford relief and assistance to the wounded, sick and shipwrecked without distinction of nationality.
(2) The High Contracting Parties undertake not to use these vessels for any military purpose.
(3) Such vessels shall in no wise hamper the movements of the combatants.
(4) During and after an engagement, they will act at their own risk.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2251  Article 30 of the Second Convention lays down the conditions under which hospital ships and coastal rescue craft may be employed.[1] The list of obligations is not exhaustive: according to Article 31, such vessels are also obliged to obey all legitimate orders given in the exercise of the rights of control, search and detention. Since these vessels are employed during armed hostilities, it was deemed important not to ‘lose sight of the purpose of warfare’.[2] Hence, it is stressed in paragraph 4 that, during and after an engagement, they act at their own risk.
2252  Article 30 does not explicitly address the consequences of non-compliance. However, observance of the conditions laid down in the first three paragraphs is a conditio sine qua non (an essential condition) for the protection granted by Articles 22, 24, 25 and 27. Accordingly, failure to comply with Article 30 results in a loss of protection, even if that failure may not qualify as an ‘act harmful to the enemy’ in the sense of Article 34. There is, however, an important difference between losing protection as a result of non-compliance with Article 30 and losing it as a result of an ‘act harmful to the enemy’ according to Article 34. In the latter case, if the act harmful to the enemy renders the vessel a military objective, and provided the safeguards according to Article 34 and customary international humanitarian law are observed, an attack on the hospital ship or coastal rescue craft would be justified, while the former would result only in a loss of protection against capture.
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B. Historical background
2253  Article 30 is, for the most part, identical to Articles 6 and 13, paragraphs 5–7, of the 1868 Additional Articles relating to the Condition of the Wounded in War; to Article 4, paragraphs 1–4, of the 1899 Hague Convention (III); and to Article 4, paragraphs 1–4, of the 1907 Hague Convention (X).[3]
2254  In its report to the First Hague Peace Conference in 1899, the Second Commission emphasized that the obligation to provide assistance to the wounded, sick and shipwrecked without distinction as to nationality justified the special protection granted to hospital ships.[4] It was also to be
perfectly understood that these vessels are not to serve any other purpose, that they cannot under any pretext be directly or indir[e]ctly employed to further any military operation: [such] as gathering information, carrying dispatches, or transporting troops, arms, or munitions. The contracting Governments in signing the proposed convention engage their honor in this sense. It would be perfidy to disregard it.[5]
Lastly, it was agreed that ‘[w]hile holding scrupulously to their charitable rôle, hospital ships must in no way hamper the movements of the belligerents’.[6] At the Second Hague Peace Conference in 1907, the slight changes made to Article 4 did not result in any substantive modification of its 1899 predecessor. Article 4 was adopted by the Plenary without discussion.[7]
2255  Article 4 of the 1907 Hague Convention (X), particularly its second paragraph, proved its worth during the First World War because it gave belligerents an effective response to violations of the conditions for the employment of hospital ships.[8] Thus, the 1937 Commission of Naval Experts, in its report to the 16th International Conference of the Red Cross in 1938, saw no need for further modification.[9] There was, however, one issue that was discussed at some length. It concerned
the question whether hospital-ships should not be required to maintain a certain distance between themselves and the combatant forces, and whether a distinction ought not to be drawn between cases in which hospital-ships are to be regarded as accompanying war vessels with a view to the performance of their proper functions, and cases in which they are clearly being convoyed by such vessels.[10]
2256  The German Red Cross took the position that a hospital ship travelling in a convoy of enemy warships ‘must be presumed to have waived the protection of the Convention, as in such cases it was no longer possible to stop and visit it.… [T]he convoying of hospital-ships could only [be] regarded as legitimate when its purpose was to protect them from floating mines.’[11] The Commission was nonetheless not prepared either to set a distance that hospital ships must keep from warships or to devise a rule prohibiting hospital ships from sailing in a convoy of warships. A distance was impossible to specify because it would be determined by circumstances and by the orders given to hospital ships. As to the proposed distinction between travelling in convoy and merely accompanying the warships, ‘it was pointed out that in practice [such a distinction] would be impossible to draw, as the question whether a hospital-ship was accompanying war vessels or was being convoyed by them could never be objectively decided, particularly by the enemy’.[12] Accordingly, the Commission of Naval Experts ‘laid down the principle that whatever the relative positions of hospital-ships and war vessels, the former never cease to enjoy the protection of the Convention. If they draw near to war vessels they may in fact expose themselves to danger; but in doing so they would be acting at their own risk and peril.’[13]
2257  During the Second World War, States continued to be divided over whether hospital ships sailing in a convoy of belligerent warships (or joining merchant vessels in a convoy of belligerent warships) lost their protection.[14] Interestingly, in the Report of the Preliminary Conference of National Societies of 1946, the Commission recommended that the draft convention contained in the Naval Expert Report of 1937 be amended as follows: ‘A hospital-ship is presumed to forego the protection of the Convention if it is convoyed by warships, or included in a convoy of merchant ships.’[15] That proposal was rejected by the 1947 Conference of Government Experts because it ‘might entail abuses and … there can be no question, even in such an event, of depriving hospital-ships of all protection’.[16]
2258  Apart from the inclusion of coastal rescue craft, Article 25 of the draft convention adopted by the 1948 International Conference of the Red Cross in Stockholm, which eventually became Article 30, was almost identical to Article 4, paragraphs 1–4, of the 1907 Hague Convention (X). At the 1949 Diplomatic Conference, the UK proposal to amalgamate the second and third paragraphs of draft article 25 was rejected by Committee I, because the governments ‘would also have been responsible for the movements of their hospital ships’.[17] A proposal by New Zealand to delete, in the first paragraph, the words ‘of the belligerents’ was ‘accepted, on the ground that non-belligerent wounded or shipwrecked persons should also be protected’.[18] The issue of hospital ships sailing in a convoy of belligerent warships was not taken into consideration.[19]
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C. General considerations
2259  The conditions hospital ships and coastal rescue craft must fulfil in order to benefit from the protection provided for by Articles 22, 24, 25 and 27 is specified, albeit non-exhaustively, in the first three paragraphs of Article 30. Under Article 26, the lifeboats of hospital ships enjoy the same protection as the vessels to which they belong.[20] Hence, the provisions of Article 30 also apply to the lifeboats belonging to hospital ships. Under Article 31, such vessels must, of course, also comply with the legitimate orders of a belligerent.
2260  The exclusive employment of hospital ships (including their lifeboats) and coastal rescue craft for the strictly humanitarian function of providing relief and assistance on a non-discriminatory basis is the sole reason for their special protection, and for the accompanying obligation of the Parties to the conflict to respect and protect them. At the same time, it is understood that their protection cannot be absolute. In particular, when such vessels are performing their tasks during or shortly after a naval engagement, there is always a possibility that they will suffer incidental damage during an attack against a lawful target. Such damage may, however, be in violation of the law regulating the conduct of hostilities.
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D. Paragraph 1: Relief and assistance
2261  The protection granted to hospital ships and coastal rescue craft ‘is not based on their own interest but on the interests of the victims’ of armed conflict.[21] It may be recalled that all hospital ships must be ‘built or equipped … specially and solely with a view to assisting the wounded, sick and shipwrecked’ (Article 22(1)). In this respect, paragraph 1 merely re-emphasizes one of the reasons for the special protection to which such vessels are entitled.[22] It should be stressed that the obligations under paragraph 1, while similar to those found in several peacetime instruments, such as the 1974 SOLAS Convention, must be interpreted on their own merits and not by reference to those regularly modified instruments.[23]
2262  Already in 1899 it was generally agreed that affording relief and assistance to the wounded, sick and shipwrecked
must not be entirely selfish. The ships in question should offer their assistance to the victims of war without distinction as to nationality. … In this way the immunity which is granted to them finds its justification. Each belligerent yields up the right of capturing vessels of this description belonging to its adversary, and this renunciation is prompted both by a charitable motive and by a well-understood self-interest, since when an opportunity arises these vessels will render service to their own sailors as well as to those of the enemy.[24]
Hence, the obligation to provide assistance impartially, i.e. ‘without distinction of nationality’, implies a clear prohibition on belligerents discriminating between their own and enemy nationals.[25] Any attempt to pursue selfish aims by, for instance, prioritizing assistance to one’s own nationals would clearly be in violation of the obligation under paragraph 1. Moreover, paragraph 1 should not be interpreted as prohibiting a distinction based on nationality only. Article 12(2) of the Second Convention prohibits ‘any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria’. Accordingly, the distinctions mentioned in Article 12 are certainly forbidden in the context of paragraph 1 as well.
2263  Lastly, it is important to note a key difference between the wording of the present paragraph and Article 4, paragraph 1, of the 1907 Hague Convention (X). The latter, like Article 4, paragraph 1, of the 1899 Hague Convention (III), was limited to ‘the wounded, sick, and shipwrecked of the belligerents’. During the 1949 Diplomatic Conference, the words ‘of the belligerents’ were deleted ‘on the ground that non-belligerent wounded or shipwrecked persons should also be protected’.[26]
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E. Paragraph 2: Not to be used for any military purpose
2264  If hospital ships (including their lifeboats) and coastal rescue craft must be employed exclusively for the provision of assistance to victims of armed conflict at sea, it is evident that they may not be used for any military purpose.[27] Although the examples given in 1899 – gathering information, carrying dispatches, or transporting troops, arms or munitions[28] – will normally qualify as ‘acts harmful to the enemy’ and thus deprive hospital ships of their protection under Article 34, the prohibition under Article 30(2) is even broader.[29] This paragraph prohibits not only acts that facilitate the belligerent’s own operations or that prevent or impede enemy operations, but also, as the word ‘any’ clearly indicates, every use of such vessels that is of a military nature or that serves the purposes of the armed forces,[30] even if such use has no belligerent nexus.[31] For instance, the use of a hospital ship for hydrographic surveys would be a violation of paragraph 2, even if the sea area in question is remote from the region in which the armed conflict exists and the survey adds no value to the ongoing military operations. On the other hand, the concept of ‘military purpose’ ought not to be overextended to include ordinary activities of a nature to facilitate the hospital ship’s navigation. Thus, for example, the sending of naval hazard reports or weather reports from a hospital ship may not be considered a ‘military purpose’.
2265  The examples given in 1899 and State practice during the world wars provide some idea of the types of activity engaged in by hospital ships and coastal rescue craft that are contrary to the prohibition of paragraph 2.[32] During the 1982 Falkland/Malvinas Islands conflict, the question arose as to whether hospital ships would be allowed to return combatants to their military units once they had recovered from their wounds or illness. While there is no prohibition on combatants returning to their units after medical treatment, hospital ships and coastal rescue craft may not be used for the specific purpose of returning convalescent military personnel to their units.[33] This would clearly amount to a use for military purposes and, arguably, even an ‘act harmful to the enemy’, because the returning personnel would constitute reinforcements.
2266  A different issue, which arose during the Second World War, relates to the use of hospital ships for the repatriation of able-bodied prisoners of war. Of course, such repatriation is an obligation under Article 118(1) of the Third Convention. It may also be held that such transport does not constitute a use for military purposes sensu stricto. However, if the prisoners of war are not wounded, sick or shipwrecked, their transport does not constitute a humanitarian function which hospital ships and coastal rescue craft are to perform exclusively. Therefore, if a Party to the conflict envisages the use of its hospital ships for the repatriation of able-bodied prisoners of war, it should enter into an agreement with the relevant adversary to ensure the continuing protection of the vessels from capture and attack as a ‘cartel vessel’.
2267  It should be noted that the prohibition of use for military purposes applies not to the Parties to the conflict but to the ‘High Contracting Parties’. Article 30 applies to all coastal rescue craft and hospital ships, including those utilized by relief societies and private individuals of the Parties to the conflict or those of neutral States. Although the hospital ships protected by Articles 24 and 25 do not qualify as State/government ships, the respective flag State, whether belligerent or neutral, is obliged to refrain from using them, or to prevent them from being used, for any military purpose. It would be going too far, therefore, to hold that Article 30(2) applies equally in times of peace and during an international armed conflict, although States should always refrain from using their hospital ships for any military purpose. If they are so used in peacetime, there might be doubts in times of conflict regarding the exclusivity of their use for the strictly humanitarian functions that are constitutive of their protection.
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F. Paragraph 3: No hampering of the movements of combatants
2268  To ‘hamper’ means to ‘hinder or impede the movement or progress’ of someone or something.[34] Accordingly, paragraph 3 prohibits hospital ships and coastal rescue craft from intentionally positioning themselves in a way that impedes or delays the freedom of movement of belligerent warships. The purpose of this rule is ‘to prevent these vessels causing major problems to the military actions of belligerents’.[35] It only applies to intentional hampering.[36] While it may be difficult to establish intent, it is prohibited for a hospital ship or coastal rescue craft that is not rendering assistance to the wounded, sick or shipwrecked to position itself in such a manner that the movement of belligerent forces is delayed or noticeably prevented. In this context, it should be borne in mind that hospital ships, particularly those exceeding 2,000 tons gross, are comparatively slow and have limited manoeuvrability. Moreover, while rescuing the wounded, sick and shipwrecked at sea, they will often ‘hamper’ the movements of belligerents simply because they are present in the sea area in which the engagement has taken, or is taking, place (Article 18). The mere fact that they do not immediately get out of the way is not sufficient justification for depriving them of their protection on the basis of a violation of paragraph 3, even if this results in a short delay. If hospital ships or coastal rescue craft do not act with obvious intent, they do not lose their protection, but they would in fact put themselves at risk.[37] One way of preventing hospital ships from hampering the movements of belligerents and thus enhancing the ships’ protection could be the establishment of a safety zone at sea. During the 1982 Falkland/Malvinas Islands conflict, Argentina and the United Kingdom agreed to establish the so-called ‘Red Cross Box’, in which the hospital ships of both Parties to the conflict were deployed.[38] There is, however, no legal obligation to that effect.
2269  Curiously, the term ‘combatants’ is used in paragraph 3. This is probably because the same wording was used in 1899 and 1907. Certainly, the term is not to be understood in the sense of Article 13(1)–(3) of the Second Convention, or of Article 4a(1)–(3) of the Third Convention. At sea, the main focus naturally lies on ships. Hence, the term ‘combatants’ is to be understood as applying to warships and other military seagoing vehicles employed by the Parties to the conflict.
2270  Unlike paragraph 2, which applies to the ‘Parties to the conflict’, the prohibition in paragraph 3 of intentionally hampering the movements of armed forces at sea applies to the hospital ships and coastal rescue craft themselves. This is because governments are in a position to prevent these vessels from being used for military purposes but not to control their actual conduct at sea (in particular in the case of hospital ships utilized by relief societies and private individuals of neutral countries). For that reason, the UK proposal to amalgamate paragraphs 2 and 3 was rejected by the 1949 Diplomatic Conference.[39]
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G. Paragraph 4: Acting at their own risk during and after an engagement
2271  As the wording of paragraph 4 clearly indicates, hospital ships and coastal rescue craft do not operate at their own risk for the entire duration of an international armed conflict but only ‘during and after an engagement’. The term ‘engagement’ means ‘a battle between armed forces’,[40] i.e. involving the actual use of methods and means of warfare between military units of the Parties to the conflict at sea. Given the context of paragraph 1, the verb ‘act’ means to afford relief and assistance to the wounded, sick and shipwrecked, particularly through their collection and transport at sea. Accordingly, paragraph 4 only applies to situations in which hospital ships and coastal rescue craft render assistance to protected persons either while weapons are still in use or immediately after such use, that is to say when danger may still be present, especially when mines may have been laid. In such situations, it is not feasible to spare protected vessels from harm or even accidental attacks.[41] While deliberate attacks on such vessels continue to be prohibited under Articles 22, 24, 25 and 27, harm inflicted unintentionally or incidentally while they are moving and operating within firing range does not constitute a violation of the prohibition of attack, or of the obligation to protect and respect such vessels. That is the case unless the damage is excessive in relation to the military advantage anticipated, or if the belligerent involved has failed to take all feasible precautions to prevent or minimize incidental damage.[42]
2272  As the drafting history of Article 30 shows, the States party to the Second Convention were not prepared to deprive hospital ships and coastal rescue craft of their protection when sailing either in close proximity to or in a convoy of enemy warships.[43] However, if they sail in proximity to enemy warships, they run the risk of being incidentally harmed by lawful attacks against those warships, and they would be operating at their own risk, even though they may not be engaged in rendering assistance to protected persons at that time.[44] Again, incidental damage to the hospital ship will be lawful only if it is not excessive in relation to the military advantage anticipated and if all feasible precautions have been taken.
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H. Consequences of non-compliance
2273  Article 30 does not explicitly address the consequences of non-compliance with its provisions. Failure to comply with paragraphs 1 to 3 does not necessarily qualify as an ‘act harmful to the enemy’ in the sense of Article 34 on the discontinuance of protection.[45] Moreover, Article 34 does not apply to coastal rescue craft. It should also be recalled that the conditions for the employment of such vessels are constitutive of their protection.
2274  Therefore, they lose their protection against capture if they: (a) are no longer innocently employed in their normal role, in particular if they are used for military purposes; (b) do not submit to identification and inspection when required; or (c) intentionally hamper the movement of combatants or disregard orders to stop or move out of the way.[46]
2275  Only in exceptional situations, i.e. if they commit ‘acts harmful to the enemy’, will an attack against such vessels be justified under international humanitarian law, provided the safeguards of Article 34, the rules regulating the conduct of hostilities, as well as customary international humanitarian law, are observed.[47]
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Select bibliography
See the select bibliography of the commentary on Article 22 of the Second Convention.

1 - See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 137.
2 - Report to the 1899 Hague Peace Conference, pp. 35–36.
3 - The wording of the 1907 Hague Convention (X), Article 4, paras 1–4, is slightly different from that of its 1899 predecessor. In the first paragraph, ‘independently of their nationality’ is replaced with ‘without distinction of nationality’. In the second paragraph, the verb ‘engage’ is replaced with ‘undertake’. In the third paragraph, ‘ships’ is replaced with ‘vessels’ and ‘in no way’ with ‘in no wise’. The fourth paragraph remains unchanged.
4 - Proceedings of the Hague Peace Conference of 1899, p. 36.
5 - Ibid.
6 - Ibid.
7 - Proceedings of the Hague Peace Conference of 1907, Vol. I, p. 63. See also Article 41(7)-(9) of the 1913 Oxford Manual of Naval War: ‘These ships cannot be used for any military purpose. They must in no wise hamper the movements of the combatants. During and after an engagement, they will act at their own risk and peril.’ as well as Article 81 of the same Manual: ‘Vessels used for hospital service shall afford relief and assistance to the wounded, sick and shipwrecked of the belligerents without distinction of nationality.’
8 - The best-known case is that of the German hospital ship Ophelia, which was seized by the British Prize Court because she was also fitted as a signalling ship for military purposes. See Colombos, p. 591; Garner, pp. 244–249. See also the case of the Russian hospital ship Orel (also called the Aryel), which, during the Russo-Japanese War (1904–1905), was captured and condemned by the Japanese Prize Court for having performed, while serving as a hospital ship, certain services for the Russian fleet, which amounted to use for military purposes; and Takahashi, pp. 620–622.
9 - Therefore, paragraphs 1–4 of draft article 12 proposed by the Commission of Naval Experts were identical to paragraphs 1–4 of Article 4 of the 1907 Hague Convention (X); see Naval Expert Report of 1937, p. 27.
10 - Ibid. pp. 29–30.
11 - Ibid. p. 30.
12 - Ibid.
13 - Ibid.
14 - Mossop, p. 402.
15 - Report of the Preliminary Conference of National Societies of 1946, p. 59.
16 - Report of the Conference of Government Experts of 1947, p. 90.
17 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 74–75.
18 - Ibid.
19 - For a discussion of this topic, see para. 2272.
20 - See the commentary on Article 26, section C.2.b.
21 - Proceedings of the Hague Peace Conference of 1899, p. 35.
22 - For the meaning of the term ‘assistance’, see the commentary on Article 22, section C.1.e.i.
23 - On the relationship between IHL and the SOLAS Convention, see Introduction, section C.5.(e)-(f).
24 - Report to the 1899 Hague Peace Conference, p. 399.
25 - See United States, Law of War Manual, 2016, para. 7.12.2.1, fn. 297.
26 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 74–75.
27 - According to the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, para. 48, the protection of, inter alia, hospital ships and coastal rescue craft presupposes that they are ‘innocently employed in their normal role’.
28 - See para. 2254.
29 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1952, p. 179, takes the view that paragraph 2 ‘refers to acts even more serious than the “acts harmful the enemy” referred to in Articles 34 and 35’. In the commentary on Article 34 (ibid. pp. 190–191), Pictet defines the phrase ‘acts harmful to the enemy’ as ‘acts the purpose or effect of which is to harm the adverse Party, by facilitating or impeding military operations’. There may, however, be uses for military purposes that neither facilitate one’s own nor impede the enemy’s military operations but that would still qualify as uses for ‘military purposes’. Hence, the prohibition on the ‘use for any military purpose’ is broader and thus less serious than ‘acts harmful to the enemy’.
30 - See United States, Law of War Manual, 2016, para. 7.12.2.3: ‘[H]ospital ships and coastal rescue craft belonging to one State must not interfere with opposing forces’ efforts to capture shipwrecked personnel, nor otherwise interfere with enemy military operations.’
31 - Therefore, it would be excessive to consider any use of such vessels for military purposes an act of perfidy (see, however, Proceedings of the Hague Peace Conference of 1899, p. 36). Under Article 37 of Additional Protocol I, it is prohibited to kill, injure or capture an adversary by resort to perfidy. Only in rare circumstances, therefore, will the use of protected vessels for military purposes constitute an act of perfidy.
32 - For the cases of the Orel and the Ophelia, see fn. 8.
33 - This issue must be distinguished from the question whether wounded, sick or shipwrecked persons protected by the Second Convention who have recovered or are convalescent on board a hospital ship may be transported by it; see the commentary on Article 22, para. 1964.
34 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 646.
35 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 48.12.
36 - Ibid. para. 48(c): ‘if they … do not intentionally hamper the movement of combatants’.
37 - Similarly, see United States, Law of War Manual, 2016, para. 7.12.2.3: ‘Any deliberate attempt by a hospital vessel to hamper the movement of combatants would constitute an act harmful to the enemy, although inadvertent actions might also put those vessels at increased harm (e.g., if enemy forces mistakenly believe that the vessel is acting deliberately to impede their movements.’
38 - For references, see the commentary on Article 18, para. 1702.
39 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 74–75.
40 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 473.
41 - Regarding accidental air attacks on hospital ships during the Second World War, see Mossop, p. 402.
42 - The prohibition of excessive ‘collateral damage’ and the obligation to take all feasible precautions in attack apply to naval warfare qua customary international law. See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 46.
43 - See the commentary on Article 34, para. 2376.
44 - For whether or not travelling in convoy may be regarded as a clear indication of an intention not to submit to legitimate belligerent orders, see the commentary on Article 31, para. 2291.
45 - See section E.
46 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 48–49.
47 - For further details, see the commentary on Article 34, para. 2380–2382.