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The Law and Flags at Sea
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The United States Flag
The flag of the United States was first adopted by resolution of the Continental Congress,
June 14, 1777:
Resolved, That the flag of the thirteen United States be thirteen stripes, alternate red and white: that the
union be thirteen stars, white in a blue field, representing a new constellation.
This 13-star, 13-stripe design remained in effect until 1795, when two additional stars and stripes were added to mark the
admission to the Union of Vermont and Kentucky. From that point on, it was unchanged, despite the admission of further states,
until 1818, when the number had reached 20. After much debate, Congress decided to abandon the idea of adding a stripe for
each new state and instead adopted the law that determines the design of the flag today:
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled,
That from and after the fourth day of July next, the flag of the United States be thirteen horizontal stripes, alternate red and white:
that the union be twenty stars, white in a blue field.
Sec. 2. And be it further enacted, That on the admission of every new state into the Union, one star be added to the union of the
flag; and that such addition shall take effect on the fourth day of July then next succeeding such admission.
Act of April 4, 1818, ch. 34, 3 Stat. 415
Although it has been reenacted several times in connection with the codification of federal statutes (most recently in 1947),
the substance of the 1818 law is still in effect and may be found in Title 4, United States Code, Sections 1 and 2:
Sec. 1. Flag; stripes and stars on. The flag of the United States shall be thirteen horizontal stripes,
alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field.
Sec. 2. Same; additional stars. On the admission of a new State into the Union one star shall be
added to the union of the flag; and such addition shall take effect on the fourth day of July then next succeeding such admission.
It may be noted that the statute gives relatively little guidance on the precise design of the
flag: the correct proportions between hoist and fly, the size of the canton (union), the
arrangement of the stars, the shades of red and blue, or even whether the stripes are seven
red and six white or vice
versa. Traditionally, there was great variety in these aspects of flag design, with only
the Navy, Army, and federal civilian departments subject to more precise regulation, which they
issued in the form of departmental orders and directives. The earliest of these was a
circular from the Board of Navy Commissioners in 1818 prescribing the arrangement of the stars
and the sequence of the stripes for the 20-star ensign enacted by Congress that year. In the
early 20th century, several officers noted the desirability of a single standard design and
a set of standard flag sizes for government use, and in 1912 President Taft issued an executive
order setting 10:19 as the standard ratio for hoisted flags and prescribing the precise sizes and
arrangements of the flag's component parts. Since then, each time a new state is admitted, a
new executive order is issued, the one currently in effect being President Eisenhower's
Executive Order No. 10834 of August. 21, 1959. The color shades used in flags procured for government and military use
are set by a federal procurement specification issued by the General Services Administration.
There is some question whether the requirements of the executive order apply outside the
Executive Branch of the Federal Government. In 1998, Congress added to the Flag Code
(Title 4, U.S. Code, Sec. 5 et seq) the proviso that "The flag of the United States for the purpose of this
chapter shall be defined according to sections 1 and 2 of this title and Executive Order 10834 issued pursuant thereto." But this
language on its face would rule most actual U.S. flags out of coverage by the Flag Code, since very few flags in public use
conform to the 10:19 proportions set by the Executive Order. Clearly Congress cannot have intended that due respect and
honor need not be paid to a Stars and Stripes manufactured in four by six or three by five foot sizes. I conclude from this
that, notwithstanding this addition to the Code, private citizens and agencies outside the Federal Executive Branch remain at
liberty to use flags of any design consistent with the terms of the 1818 law if they so desire.
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Sea Flags in International Law
The display of national flags on the high seas is regulated by customary
international law, articles 90-94 of the UN Convention on the Law of the
Sea (to which the United States is not a party), and article 5 of the 1958
Geneva Convention on the High Seas, "each State shall fix the conditions
for the grant of its nationality to ships, for the registration of ships
in its territory, and for the right to fly its flag." Further, "each
State shall issue to ships to which it has granted the right to fly its
flag documents to that effect." Flying a country's flag constitutes
a claim by the vessel flying it that it possesses the nationality of the
flag (NWP 1-14M, The Commander's Handbook on the Law of Naval Operations),
and therefore, as the U.S. District Court for Oregon ruled in the case
of The Fideliter in 1869, "it is of importance to all maritime
powers that the national character borne by a ship [i.e., in the flag she
displays] should be her true character" (8 F.Cas. 1177). Accordingly,
most countries have implemented the obligations in the by explicit legislation.
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Sea Flags in U.S. Domestic Law
Unlike most other countries, the right of American ships and boats to fly
the American flag is not explicitly spelled out by law or regulation.
It stems rather from a combination of the laws determining what constitutes
a vessel with American nationality, judicial precedent, and the customary
international law that gives vessels of a particular nationality the right
to display that flag.
The first law governing the nationality of vessels in the United States,
"An Act for Registering and Clearing Vessels" (1 Stat. 55) was enacted
on September 1, 1789. It provided that only a ship built in the United
States, owned by an American citizen, and under the command of an American
master could be registered, and being registered "shall be deemed and taken
to be, and denominated, a ship or vessel of the United States."
Three years later, "An Act Concerning the Registering and Recording of
Ships or Vessels" (1 Stat. 287) added that registered vessels of
the United States were "entitled to the benefits and privileges appertaining
to such ships or vessels." Under customary international law, one
of those privileges is flying the United States flag.
Under the current statutory authority on documentation of American vessels,
the Vessel Documentation Act of 1980, ships and boats
of more than five measurement tons are eligible to be documented by the
U.S. Coast Guard. The Coast Guard considers that documentation to
provide authoritative evidence of a vessel's U.S. nationality. Not
all vessels over five tons are required to be documented, however; those not
involved in trade are exempt.
What, then, of the right to fly the flag aboard undocumented vessels,
whether above or below the five-ton threshold? The Assistant Attorney
General of the United States, arguing the case of Billings v. United
States before the Supreme Court in 1914, stated that "A yacht belonging
to a citizen of the United States, even though not a vessel of the United
States in the sense that it is entitled to registry or enrollment, yet
flies the American flag, and is the object of peculiar protection by the
United States" (232 U.S. 261). Furthermore, the right of free
expression guaranteed by the first amendment to the Constitution would
also guarantee to any U.S. citizen the right to fly the American (or any
other) flag.
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Sea Flags and the Law of Naval Warfare
According to The Commander's Handbook on the Law of Naval Operations,
international law defines a warship as a ship belonging to the armed
forces of a nation bearing the external markings distinguishing the character
and nationality of such ships, under the command of a commissioned officer,
and manned by a crew under regular military discipline. Most countries
use flags, at least in part, as the external markings required. In
the United States Navy and Coast Guard, these "distinctive markings" are
the commission pennant, command pennant, or admiral's flag; the Coast Guard
ensign in the case of a Coast Guard cutter; and the Geneva Convention Red
Cross flag in the case of a hospital ship.
During wartime, if a vessel operates under an enemy flag, it by definition
possesses "enemy character" and may be attacked as an enemy ship.
By contrast, flying a neutral ship is not a definitive proof of a ship's
neutral character, as an enemy ship may be flying a neutral flag as a ruse.
For this reason, one of the rights of a belligerent warship is the right
of "visit and search." There are specific rules on how this right
is exercised, including the requirement that the warship exercising the
right hoist its national flag before summoning the suspect vessel to lie
to for boarding. If a neutral merchant ship, the summoned vessel
is required to follow instructions and display her colors as well.
If it is in fact an enemy ship and tries to get away, it is subject to
attack. Refusing to heed the instructions of a warship under these
conditions is tantamount to an admission of enemy status and entitles the
warship to use force.
As in the days of sail, an enemy warship signals its readiness to surrender
by "striking its colors," that is, hauling down her national ensign.
Once an enemy warship "has clearly indicated a readiness to surrender,"
the attack must be discontinued. One may not fire upon a ship that
has struck its colors.
False Colors
In warfare at sea, it is permissible for a belligerent warship to fly the
flag of a country other than its own in order to deceive an enemy into
believing that it is neutral or even a ship of the enemy's own navy.
White Flag (Flag of Truce)
In addition, customary international law recognizes that a white flag indicates
a request for a cease-fire, negotiation, or surrender. Use of the
white flag to gain a military advantage is an act of perfidy under the
laws of war. In the naval context, as explained in NTP-13(B), Flags,
Pennants and Customs:
When displayed from any conspicuous place of hoist, [the flag
of truce] indicates a desire to send a communication, but the truce does
not exist until the hoist has been replied to. A belligerent may
decline to receive the flag of truce. If blank guns are fired while
a flag of truce is displayed, the ship, boat or party nearing it must stop
and not approach nearer. Bearers of the flag of truce are inviolable
provided they do not act improperly. Should they do so, or should
the flag be used improperly to obtain information, the bearers may become
subject to capture and punished as spies.
Cartel ships, vessels used to transport exchanged prisoners of war or to
carry envoys, are identified by the display of flags as mutually agreed
by the belligerent parties. This display normally includes flying
the flag of truce at some specified point of hoist on the cartel ship.
Geneva Convention Flags (Red Cross, Red Crescent, etc.)
Under the 1949 Geneva Conventions and previous international agreements,
a white flag with a red cross (or, in the case of Islamic countries, a
red crescent) is the recognized symbol of protected medical and religious
persons and activities. Ships and installations flying these flags
or otherwise marked with these symbols are exempt from attack. Their
misuse in order to injure, kill, or capture the enemy is an act of perfidy
under the laws of warfare.
Foreign Flags on U.S. Ships
Courtesy Ensigns
Many countries require either as a matter law or of customary practice
that foreign vessels in their territorial waters display the host country's
flag. This flag is known as a "courtesy ensign." When a host
country has a merchant ensign that differs from its national flag used
ashore, it is the merchant ensign that is displayed as the courtesy ensign.
According to The Commander's Handbook on the Law of Naval Operations,
however, "a warship cannot be required . . . to fly the flag of the
host nation." U.S. policy is that public vessels, including warships
as well as civilian-manned ships belonging to the Military Sealift Command
and other U.S. government vessels, enjoy sovereign immune status, that
they are exempt from the jurisdiction of any other state. Because
complying with a coastal state's regulations purporting to require the
display of its flag in its waters or ports could be construed as an admission
that the U.S. public vessel is subject to the coastal state's jurisdiction,
all U.S. public vessels are forbidden from flying courtesy ensigns.
Foreign Ensigns While Rendering Honors
As described at the page on Navy flag ceremonies,
a Navy or Coast Guard ship firing a salute in honor of a foreign country or a foreign
officer or dignitary does fly that country's naval ensign at a masthead as prescribed by
Navy Regulations. This practice is sometimes misinterpreted as a violation of the
U.S. Flag Code, as it seems to involve placing a foreign flag above that of the United
States. In fact, the Flag Code has no bearing on naval flag practice; by its own terms
the Flag Code applies only to "civilians or civilian groups or
organizations as may not be required to conform with regulations
promulgated by one or more executive departments of the Government of
the United States." Furthermore, the Flag Code speaks of displaying a foreign flag "equal, above,
or in a position of superior prominence or honor to, or in place of" the American flag. On a ship, the place of superior
prominence and honor is the flagstaff at the stern (when not under way) or the gaff (when under way). Any masthead
is a place of inferior honor to either of these. Moreover, both the Coast Guard and the Navy have stated that "above"
in the nautical context means at a higher level at the same point of hoist, given the distinctive arrangement of the
masts and rigging used for nautical flag display.
Dressing and Full-Dressing in Honor of Foreign Festivities
As with salutes, a ship that is
dressed or full-dressed for a foreign festivity or
solemnity flies that country's naval ensign at the head of the mainmast. As with flags
displayed for salutes, this practice does not contravene the Flag Code's prohibition
against displaying a foreign flag "above" the American flag, whether the ship dressed
is a warship or a merchant vessel.
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Copyright 2000, 2001 by Joseph McMillan