Abstract
Naval mines are considered to pose a serious threat to international shipping. This certainly holds true for free-floating submarine contact mines but not necessarily for modern naval mines that are highly discriminating weapons. Be that as it may, the mere fact that naval mines have been laid in a given sea area will impede upon freedom of navigation. The only international treaty dealing with naval mines is the 1907 Hague Convention VIII, whose scope is limited to automatic submarine contact mines and which was concluded at a time when the breadth of the territorial sea did not exceed 3 nautical miles and other concepts, such as the EEZ, were unknown. The first part of the present chapter deals with the question whether and to what extent belligerents are entitled to lay mines in international straits overlapped by their territorial sea, their archipelagic waters, or in the high seas. The second part deals with the legality of naval minelaying in times of peace, which is to be determined in the light of the Corfu Channel judgment, the international law of the sea, and the positions taken by States in military manuals.
This article was originally published in International Law Studies, 90 Int’L. Stud 544 (2014).
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Notes
- 1.
This quote is borrowed from Griffith (1981).
- 2.
- 3.
- 4.
1907 Hague Convention VIII, 36 Stat. 2332, T.S. No. 541. Although the Convention is limited to automatic contact mines, there is wide agreement that it is applicable to modern naval mines that are based on a different technology. See Heintschel von Heinegg (1994).
- 5.
The Russo-Japanese War was the first international armed conflict during which naval mines were used extensively and which had long-lasting detrimental effects on shipping after the end of hostilities. See Lauterpacht H (ed) Oppenheim L (1952), p. 471; Hoffmann (1977), p. 145; Colombos (1968), p. 531 and Castrén (1954), p. 275.
- 6.
1907 Hague Proceedings Vol. III, p. 3:399.
- 7.
For the various proposals, see id., Annexes 9–37, at 662–682. Worth mentioning is the British proposal (Annex 9) according to which the use of automatic contact mines would have been limited to the territorial seas of the belligerents. Only when laid off military ports could the distance be extended to 10 nautical miles.
- 8.
Id. It may be added that some of those proposals were far from altruistic or motivated by the wish to protect innocent shipping. In particular, States with large navies were afraid that the use of naval mines could jeopardize their naval supremacy. “Behind the proposals of the Conference stood the politics of force.” Reed (1984), p. 294.
- 9.
For instance, the Colombian delegation proposed the following:
The employment of anchored automatic mines is absolutely forbidden except as a means of defense. Belligerents may not employ such mines except for the protection of their own coasts and only within a distance of the greatest range of a cannon. In the case of arms of the sea or navigable channels leading exclusively to the shores of a single Power, that Power may bar the entrance for its own protection by laying automatic contact mines. Belligerents are absolutely forbidden to lay anchored automatic contact mines in the open sea or in the waters of the enemy.
1907 Hague Proceedings Vol. III, Annex 36, at 682.
- 10.
Id., Annex 31, at 677. Articles 2 to 5 would have limited the right to lay mines to the three-nautical mile territorial seas of the belligerents unless laid off military ports. In the latter case the distance would extend up to 10 nautical miles. There was, however, no absolute prohibition of employing naval mines in high seas areas. According to Article 5, the belligerents would have been entitled to lay automatic contact mines “within the sphere of their immediate activity,” provided they became harmless “within 2 h at most after the person using them has abandoned them.”
- 11.
On the other hand, we must take into account the incontestable fact that submarine mines are a means of warfare the absolute prohibition of which can neither be hoped for nor perhaps desired even in the interest of peace: they are, above all, a means of defense, not costly but very effective, extremely useful to protect extended coasts, and adapted to saving the considerable expense that the maintenance of great navies requires. … This means that automatic contact mines are an indispensable weapon. Now to ask an absolute prohibition of this weapon would consequently be demanding the impossible; it is necessary confine ourselves with regulating its use. 1907 Hague Proceedings Vol. III, p. 399.
- 12.
1907 Hague Proceedings Vol. I, p. 282.
- 13.
Article 2 prohibits the laying of mines off the enemy’s coats and ports only if it serves the “sole object of intercepting commercial shipping.”
- 14.
Tucker (1955), p. 303.
- 15.
See, e.g., Reed who maintains that 1907 Hague Convention VIII created a standard for the protection of neutral shipping that “should be interpreted from the viewpoint of a neutral shipper.” Reed (1984), p. 301. However, he ignores the fact that the obligations of belligerents under Article 3(2) of the Convention are subject to feasibility and military exigencies.
- 16.
1907 Hague Proceedings Vol. III, Annex 12, p. 663.
- 17.
Id., Annex 22, p. 671.
- 18.
Id., p. 408.
- 19.
For further discussion of the Convention, see Haines (2014).
- 20.
Statement by Sir Ernest Satow, Delegate of Great Britain, at the Eighth Plenary Meeting (Oct. 9, 1907). 1907 Hague Proceedings Vol. I, p. 275.
- 21.
Id.
- 22.
Statement by Baron Marschall von Bieberstein, Delegate of Germany. Id. p. 275, 76. He added that “military acts are not solely governed by stipulations of international law. There are other factors: Conscience, good sense, and the sentiment of duty imposed by principles of humanity will be the surest guides for the conduct of sailors and will constitute the most effective guaranty against abuses.”
- 23.
But see Tucker (1955), p. 303, who states that “it is only mine laying of an openly indiscriminate character that is prohibited i.e., mines sewn [sic] without regard to any definite military operation save that of endangering all peaceful shipping, and without any reasonable assurance of control or surveillance.”
- 24.
- 25.
Mallison (1968), p. 68.
- 26.
For the contrary view, see Baxter (1970), p. 97.
- 27.
- 28.
On April 9, 1940 the German government provided notification of a “mine warning area” in the Skagerrak between Lindesnes, Lodbjerg and Flekkeröy, Sandnäs Hage; on September 3, 1939 regarding the Southern entrance of the Sound and the Great Belt; and on April 29, 1940 regarding the Kattegat. The British government allowed passage through the Strait of Dover and the Firth of Forth.
- 29.
Supra note 17 and accompanying text.
- 30.
Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9).
- 31.
See Truver (1985), pp. 115–117.
- 32.
See authorities cited infra notes 33–48.
- 33.
See Cagle and Manson (1957), pp. 121–122.
- 34.
- 35.
Mallison and Mallison (1976), p. 102.
- 36.
- 37.
See Heintschel von Heinegg (2012), pp. 211, 217.
- 38.
S.C. Res. 1973, 6, U.N. Doc. S/RES/1973 (Mar. 17, 2011).
- 39.
Convention Respecting the Free Navigation of the Suez Maritime Canal, Gr. Brit.-Ger.-Austria-Hung.-Spain-Fr.-It.-Neth.-Russ.-Turk., Oct. 29, 1888, reprinted in (1909) AJIL Supplement 3:123.
- 40.
See Levie (1992), pp. 157–158.
- 41.
See Rohwer (1974), pp. 24–26.
- 42.
For the facts established by the ICJ, see Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 76–80 (June 27) [hereinafter Nicaragua]. See also Levie (1992), pp. 162–166.
- 43.
Nicaragua, supra note 42, 236 (Schwebel J dissenting opinion).
- 44.
Id., 238.
- 45.
For a comprehensive analytical assessment of the legal issues of the Iran-Iraq War, see the contributions in de Guttry and Ronzitti (1993). The Iran-Iraq War (1980–1988) and the Law of Naval Warfare. Cambridge University Press, Cambridge; Dekker and Post (1992). The Gulf War of 1980–1988. Kluwer Academic Publishers, Dordrecht.
- 46.
Nordquist and Wachenfeld (1988).
- 47.
Ronzitti (1987).
- 48.
For the facts established by the ICJ, see Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 23–25 (Nov. 6). See also Levie (1992), pp. 166–70.
- 49.
U.N. Security Council, Charge D’Affaires of the Permanent Mission of Iran, Letter dated Oct. 21, 1980 from the Charge D’Affaires of the Permanent Mission of Iran to the United Nations to the Secretary General. U.N. Doc. S/14226 (Oct. 22, 1980).
- 50.
United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N.T.S. 1833:397 [hereinafter UNCLOS]. The Convention entered into force on November 16, 1994. As of November 12, 2014, 166 States, including the Holy See, are parties to it.
- 51.
Upon signature, Iran made the following declaration:
Notwithstanding the intended character of the Convention being one of general application and of law making nature, certain of its provisions are merely product of quid pro quo which do not necessarily purport to codify the existing customs or established usage (practice) regarded as having an obligatory character. Therefore, it seems natural and in harmony with article 34 of the 1969 Vienna Convention on the Law of Treaties, that only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein.
The above considerations pertain specifically (but not exclusively) to the following:
The right of Transit passage through straits used for international navigation (Part III, Section 2, article 38).
Declarations and Statements, Oceans & Law of the Sea. http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm (than follow Iran hyperlink). Accessed 8 June 2017.
It should also be noted that Oman, which borders the Strait of Hormuz as well, neither explicitly accepts nor rejects the applicability of the transit passage regime. Upon signature, Oman declared:
It is the understanding of the Government of the Sultanate of Oman that the application of the provisions of articles 19, 25, 34, 38 and 45 of the Convention does not preclude a coastal State from taking such appropriate measures as are necessary to protect its interest of peace and security.
Id. (then follow Oman upon signature hyperlink).
Upon ratification on August 17, 1989, Oman declared that the
Sultanate of Oman exercises full sovereignty over its territorial sea, the space above the territorial sea and its bed and subsoil, pursuant to the relevant laws and regulations of the Sultanate and in conformity with the provisions of this Convention concerning the principle of innocent passage.
Id. (then follow Oman upon ratification/accession hyperlink).
- 52.
See UNCLOS, supra note 50, art. 52.
- 53.
For a similar assessment of the prior notification requirement, see Reed (1984), pp. 306–307 (who rightly maintains that during the two world wars all “war zones,” including those enforced by the use of naval mines, had been notified by the belligerents.).
- 54.
1907 Hague Convention VIII, supra note 4, art. 4.
- 55.
SRM (1995), p. 29.
- 56.
See Heintschel von Heinegg (1994), pp. 59–70.
- 57.
SRM (1995), supra note 55. See also the related Explanation, which provides additional detail concerning each of the Manual’s basic rules.
- 58.
NWP 1-14M (2007).
- 59.
Canadian Manual (2001).
- 60.
UK Manual (2004).
- 61.
German Manual (2013).
- 62.
- 63.
- 64.
- 65.
- 66.
SRM (1995), supra note 55, 83; Canadian Manual (2001), supra note 59, 838 and UK Manual (2004), supra note 60, 13.55. According to NWP 1-14M (2007), 9.2.3, international notification must be made only, “as soon as military exigencies permit.” It is unclear whether the United States believes the safety of neutral shipping is subsidiary to considerations of military necessity. However, a minefield most often serves the purpose of “modifying geography” and of preventing other vessels from using a certain area of the seas. This can be accomplished only, if the respective minefield is notified in advance. The German Manual does not expressly mention notification. However, according to paragraph 1046, any minelaying is subject to the principles of effective surveillance, risk control and warning. The latter implies an obligation to notify the laying of armed mines or the arming of prelaid mines.
- 67.
UNCLOS, supra note 50, arts. 38, 45, 53. In archipelagic waters that are not subject to the regime of archipelagic sea lanes passage, other States enjoy the right of innocent passage, which, according to UNCLOS Article 52(2), may be suspended temporarily in specified areas.
- 68.
SRM (1995), p. 27, provides “[t]he rights of transit passage and archipelagic sea lanes passage applicable to international straits and archipelagic waters in peacetime continue to apply in times of armed conflict.” While this statement is correct insofar as neutral sea areas are concerned, it is highly questionable whether it also holds true for belligerent international straits and archipelagic sea lanes because there is no obligation of a belligerent to grant the enemy those passage rights.
- 69.
For a discussion of the “package deal” reached during the negotiations that produced UNCLOS, see Kraska (2014), pp. 354–357. Its intent was to balance the interests of flag, port and coastal States.
- 70.
The declarations by Iran and Oman concerning the Strait of Hormuz, supra note 51, have, therefore, not prevented an application of the transit passage regime to that international strait.
- 71.
UNCLOS, supra note 50, arts. 38, 44, 53, 54.
- 72.
See authorities cited supra note 65. For the status of neutral international straits and archipelagic sea lanes, see SRM (1995), pp. 23–30.
- 73.
SRM (1995), p. 89 and Canadian Manual (2001), p. 841. According to the German Manual (2013), p. 1046, there seems to be no prohibition of mining international straits and archipelagic sea lanes either. The obligation of belligerents to take all feasible precautionary measures for the protection of peaceful shipping seems to suggest that it includes the provision of safe and convenient alternative routes.
- 74.
UK Manual (2004), 13.61 (“Passage through waters subject to the right of archipelagic sea lanes passage shall not be impeded unless safe and convenient alternative routes are provided.”).
- 75.
Id., 13.61 (“Transit passage shall not be impeded.”).
- 76.
NWP 1-14M (2007), 9.2.3(6).
- 77.
Stevenson and Waite (2011), p. 713.
- 78.
Id. at 383.
- 79.
UK Manual (2004), supra note 60, 13.55.
- 80.
SRM (1995), pp. 10(c), 34, 35; NWP 1-14M (2007), 7.3.8; Canadian Manual (2001), 804 (1)(c), 821, 822; UK Manual (2004), 13.6(b), 13.21 and German Manual (2013), 1011, 1014, 1016. For an analysis of the relationship between the law of the sea and the law of naval warfare, see Heintschel von Heinegg (2005).
- 81.
- 82.
- 83.
SRM (1995), p. 35.
- 84.
- 85.
NWP 1-14M (2007), 9.2.3(8).
- 86.
See supra note 27 and accompanying text. See also Reed (1984), pp. 306–307.
- 87.
1907 Hague Convention VIII, supra note 4, art. 3.
- 88.
NWP 1-14M (2007), 9.2.3(1).
- 89.
See SRM (1995), p. 83.
- 90.
Id.
- 91.
1907 Hague Convention VIII, supra note 4, art. 3.
- 92.
See supra note 47 and accompanying text.
- 93.
- 94.
SRM (1995), supra note 55, 92.
- 95.
- 96.
See International Committee of the Red Cross (2009), pp. 41–68.
- 97.
There were allegations that the mines had been laid by Libya, although the terrorist group of the Islamic Jihad had claimed it laid the mines. See Levie (1992), pp. 159–162 and the authorities he cites.
- 98.
German Manual (2013), 1045.
- 99.
NATO Standardization Agency (2014), 2-P-10.
- 100.
Id. at 2-D-3.
- 101.
Id. at 2-O-1.
- 102.
German Manual (2013), 1047.
- 103.
Id., 1049, 1050.
- 104.
NWP 1-14M (2007), 9.2.2.
- 105.
German Manual (2013), 1047.
- 106.
Corfu Channel, supra note 30.
- 107.
Id. at 29.
- 108.
Id. at 18–22.
- 109.
Id. at 22.
- 110.
Id.
- 111.
NWP 1-14M (2007), 1.2. This position is illustrated in specific NWP 1–14 provisions addressing passage rights and freedom of navigation. See id., 2.5.2.1 (innocent passage), 2.5.3.1 (transit passage), 2.5.4.1 (archipelagic sea lanes passage), 2.6.3 (freedom of navigation in international waters).
- 112.
For the meaning of the term “impede,” see supra note 77 and accompanying text.
- 113.
See Heintschel von Heinegg (2005).
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Heintschel von Heinegg, W. (2018). Minelaying and the Impediment of Passage Rights. In: Schildknecht, J., Dickey, R., Fink, M., Ferris, L. (eds) Operational Law in International Straits and Current Maritime Security Challenges. Operational Maritime Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-72718-9_2
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