The Legal and Political Implications of Mining
by In the case of conventional mines governed by the full Hague Convention VIII rules it is unlikely that the will to lay them will exist until conflict appears imminent. In the case of remotely controlled mines, it is possible that politicians may be persuaded of the advantages of pre-conflict mining at an earlier stage of escalation. Because of the uncertain state of the law in this area, there would be some risk of international condemnation.
1. The only convention governing the conduct of minewarfare at sea is the 1907 Hague Convention No VIII – Relative to the laying of Automatic Submarine Contact Mines. Its aim is to protect neutral commerce and to uphold the principle of immunity of enemy merchantmen from attack without warning. Practice in the intervening years and eg the ruling of the International Court of Justice in the Corfu Channel case in 1949, has however added to the customary law on the subject. The 1972 Seabed Arms Control Treaty also has some relevance (see paragraph 8 below). Basically the legal status of mines has not changed significantly since 1907.
The 1907 Hague Convention
2. In summary, the Convention forbids:
a. The laying of unanchored mines (until the Gulf conflict this had more or less been eradicated) which remain dangerous for more than one hour after laying.
b. The laying of anchored mines which do not disarm themselves on breaking loose.
c. The use of torpedoes which do not disarm themselves on missing their targets.
d. The laying of mines with the sole objective of intercepting commercial shipping (A prohibition easily evaded by the claim that the intended targets are warships).
3. The Convention also requires that nations laying minefields should notify the danger zones as soon as military exigencies permit, by a notice addressed to ship owners, which must also be communicated to Governments through diplomatic channels.
Permitted Mining Areas
4. A nation can mine its own territorial or internal waters providing that:
a. Activated minefields are notified in accordance with Hague Convention VIII.
b. There is no permanent or unreasonable interference with the right of innocent passage.
c. International straits are not closed to shipping.
5. The mining of another nation’s waters without permission would be a hostile act. This would be acceptable in the case of an enemy during hostilities but would be manifestly illegal at any other time.
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