The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field. The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government. Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No compensation can be paid for articles accepted and published. The issuance of this publication approved by the Secretary of the Navy on 6 April 1961. REAR ADMIRAL WILLIAM C. Mott, USN CAPTAIN ROBERT D. POWERS, JR., USN Judge Advocate General of the Navy LIEUTENANT COMMANDER FRANK J. FLYNN, USN Editor For sale by the Superintendent of Documents MESSAGE FROM THE JUDGE ADVOCATE GENERAL On 24 May 1798, the USS GANGES sailed from Philadelphia under the command of Captain Richard Dale, U.S. Navy. A former armed merchantman, she had been purchased only two weeks previously in view of the imminent possibility of hostilities with France. Since the USS CONSTELLATION, the first of three frigates authorized by Congress, was not to sail until a month later, the GANGES became the first man-of-war of the Navy to sail under the United States Constitutional form of government. Captain Dale's orders were signed by Secretary of War James McHenery only two days prior to the departure of the GANGES. They read as follows: Capt. Dale. [Philadelphia,] War Department. 22 May. 1798 Sir, Although Congress have authorized the arming, equipping and employing a Number of Ships, an evident object of which is the Protection of the Commerce of the United States, yet as Congress possess exclusively the Power to declare War, grant Letters of Marque & Reprisal, and make Rules concerning Captures on Land and Water, and as neither has yet been done, your Operations must accordingly be partial & limited. For the present, you will be governed by the following Instructions, which relate to the Prevention of Violations of our jurisdictional Rights and to Self-defence.— 1. The Jurisdiction of the United States, on our Coast, has been determined to extend One Marine League from our Shores, and to comprehend all our Rivers and Inlets and all the Bays and Sounds, landlocked by the Territory of the United States. If within these Limits, you find any armed Vessel whatever, committing Depredations on our Coast or attacking or having taken, or in the act of pursuing to attack or take any Vessel of the United States, or the Vessel of any Nation whatever, you are to make every Exertion to prevent the Execution of such unlawful Proceedings, and to defend or liberate or retake the Vessel pursued, attacked or captured, and send in the offending Vessel, to some port of the United States, to be delt with according to Law, in such cases.— 2. If on the high Seas, you are attacked by any armed Vessel whatever, you are to defend Yourself to the Utmost. If the Assailant strikes, examine her Papers, and if She has not a regular Commission, and then in force, bring her into some port of the United States, to be tried as a Pirate. That these orders carry important international law implications is obvious. Naval officers since that day have lived the greater part of their professional lives and performed many duties of their office under the rules of international law. Unlike most citizens, who spend a lifetime under the domestic rules of the United States law, naval officers in coursing the seven seas and traveling the four corners of the earth frequently encounter situations governed by the “law of nations." Very often they have had no more time to review the governing concepts than had Captain Dale of the GANGES prior to his departure. (Continued on page 56) INTERNATIONAL LAW AND OPEN-OCEAN MINING* By CAPT ROBERT D. POWERS, JR., USN DEPUTY AND ASSISTANT JUDGE ADVOCATE GENERAL Consistent with established policy, the views expressed in this article are the private views of the author and do not necessarily carry official sanction of any Department or Agency of the Government. The fact of publication by the JAG Journal does not imply endorsement of content but indicates merely that the subject treated is one which merits attention. LEGAL EGALITY OF MINEFIELD warfare on the open sea is in finality a balance of two concepts. The first concept is that of the "freedom of the seas" which has been supported by the United States throughout the history of this nation. Under this concept neutrals have the right under international law to the use of the high seas for shipping without undue interference by belligerents. The second concept is the right of a belligerent to use lawful weapons in accordance with rules of naval warfare to defeat his enemy. The principle of reasonableness affects both concepts. Under international law as developed by the custom of nations, a "reasonable section of the high seas can be used by belligerents as a legitimate theater of war." An unreasonable restriction of large segments of the high seas is not lawful. The facts of each situation, taking into consideration the temperament of the times, determines what is a reasonable restriction of the high seas for purposes of mine warfare, or other types of combat. Historically, neutral nations have become disturbed when great areas of the high seas were mined, largely because of the lack of "control" over the mined areas. The problem of "control" of mines by the nation seeding them was of paramount concern in the very early days of submarine mines. This is the reason for the attempt to develop some codified set of rules on mine warfare. With the discovery in the late 1700's that gunpowder could be exploded under water, nations began thinking of the use of this possibility as the basis of a weapon of war. Control of the explosion was one of the problems *An address on the same subject was delivered by Captain Powers on 30 January 1961 to the Fourth Minefield Conference on Open-Sea Antisubmarine Warfare, U.S. Naval Ordnance Laboratory, Washington, D.C. David Bushnell, an American, discovered in 1777 when he tried to drag a box of gunpowder against the British Frigate Cerebus. This early mine became fouled and finally sank a friendly schooner. The first generally successful use of mines in naval warfare occurred during the Civil War when the confederate forces, utilized free-floating mines, then called torpedoes. Used principally to defend harbors and rivers against union ships these torpedoes were largely uncontrollable. Cognizance of the problem of mines in international law resulted from the extensive mining in the Russo-Japanese war. Floating uncontrolled automatic contact mines were laid off port Arthur. These mines drifted into the high seas and became a peril to the ships of the power that laid them as well as to its enemy and to all neutral shipping. It was impossible to tell whether any particular mine was laid by the Russians or the Japanese. It is reported that the Russian vessel Yenissei laid some 389 mines and was itself destroyed by the 390th mine put out. This bit of history illustrates the importance of a system to repel mines as well as to attract them. If a mine with a built-in IFF procedure can be developed, which in addition to identifying a ship as friend or foe, will also identify neutral ships and further determine if the neutral vessel is carrying contraband, the problem of mining in international law will be considerably lessened. Modern developments in mine devices have greatly helped the problem of "control" and in some measure improved the position of mines as an instrument of warfare in the eyes of those nations with neutral shipping problems. The invention of electrical detonating methods in harbor defense and shore-controlled mine fields in harbor defense is a great achievement from the legal point of view. MINE WARFARE RULES-HAGUE ALTHOUGH MINES AS weapons have undergone radical technical development in the last 50 (Continued from page 54) Navy Regulations, for example, abound with reference to the responsibility of officers in occasions involving the field of international law and relations: e.g., where injury to the United States or its citizens is committed or threatened; where usual diplomatic or consular representatives may be absent; and where protection of our commercial vessels and aircraft in their lawful occupation may be indicated-to mention but a few. The naval officer on the high seas or upon foreign shore is in the arena of international intercourse, where in addition to observing the international rules of conduct, he has frequently been called upon to represent his country in its relations with other nations. Traditionally he has played a role in our foreign relations apparatus-as attaché to embassies and as a representative to various international conferences, commissions and boards. In recent years the responsibility of the naval officer in the international field has increased markedly. We have world wide commitments under scores of treaties and agreements on a scale unimagined prior to World War II. We are living in an era of international uncertainty marked by the phenomenon of the "cold war." Thus new and additional requirements have been imposed upon all naval officers to become knowledgeable in the fields of international relations and international law. Secretary of the Navy Connally showed his awareness of these requirements in a speech on 11 April 1961 before the officers of the Navy Department in an unprecedented assembly in Constitution Hall. Referring to officer training, he asked this rhetorical question: Should not there be more emphasis on international affairs and national motivations, including the actions and reactions of nations to the ebb and flow of world events? For the Navy lawyer, dedicated to doing the best possible professional job for his client, professional competence in the international field is especially important. In the course of his career as a Navy lawyer, the possibility is remote that his knowledge of international law will not be tested. For him, therefore, continuing education in this field is a manifest necessity. Over the past several months I have spoken to many audiences, civil and military, of the importance of Education-education in general, and in particular in the international field. I am instituting a wider coverage of international law in the JAG JOURNAL. For you, our Navy lawyers, I encourage enrollment in the Naval War College extension courses in International Law and International Relations, study of the War College's "bluebooks”, the participation in postgraduate courses, and the taking of any other opportunity for enhancing your knowledge in the field of international law and relations. years, international law, at least as the conventional law embodied in Hague Convention VIII is concerned, has not been changed. The RussoJapanese war of 1904 and the loss of non-belligerent shipping through mine warfare was the direct cause of the Hague Conference and the resulting convention. The nations of the world agreed that something had to be done to protect neutral shipping, but there was no agreement how far restrictions would have to be imposed. The attempt to compromise in arriving at an understanding on mine warfare has been generally described by most international lawyers as an extremely unsatisfactory effort. The resulting product was of little use in delineating the extent to which nations might make use of mine warfare weapons. Both text writers of international law and people engaged in the practical application of mine warfare support this conclusion. Hague Convention VIII gives so much room for discretion that no general set of rules can state of international law and custom belligerents are permitted to fight their battles there, it is none the less incumbent on them to do nothing which might, after their departure from a particular place, render this highway dangerous for neutrals who have an equal right to use it. The British stated that the permanent right of the neutral to security of navigation of the high seas takes precedence over the transitory right of the belligerent to employ these seas as the scene of the operation of war. In affixing their signature to the convention, Great Britain made the following reservation: The British plenipotentiaries declare that the mere fact that this convention does not prohibit a particular act or proceeding must not be held to debar the British government from contesting the legitimacy of the action. Germany on the other hand agreed that mine laying imposes a heavy responsibility towards neutrals and peaceful shipping and declared that no nation will resort to such means unless "for military reasons of an absolutely urgent character". German representatives stated that Germany would always follow the principle of humanity, but was against the issuing of rules "the strict observation of which might be rendered impossible by the force of things." HAGUE CONVENTION VIII must be interpreted in connection with other general principles of international law and conventional law such as Hague XIII concerning the rights and duties of neutral powers in naval war. Mine warfare is just one phase of war at sea. Hague VIII is not the exclusive regulation for mine warfare. It has to be applied in conjunction with all other principles covering naval war. Indiscriminate actions against neutral shipping are no more permissible through the use of mines, because not specifically prohibited by Hague VIII, than if such action were taken by any other weapon. The Belligerents have a right to use legitimate weapons to further their interests in war. principle of freedom of the high seas gives them the right to fight their naval battles anywhere on the sea. But this same freedom of the high seas entitles neutral states to use the seas and their established international routes for peaceful commerce. As in all cases, rules of warfare are restrictive and designed to balance the rights of the belligerents against those of the neutrals. The rights of neutrals to have nonbelligerent shipping protected from unreasonable interference and damage is the primary reason for regulations governing mine warfare. MINE WARFARE IN WORLD WAR I AND WORLD WAR II CONDUCT DURING THESE wars leaves no doubt that Hague VIII had been violated extensively by belligerents on both sides. What beclouds the issue is that both sides claim their actions were taken in reprisal for illegal war acts committed by the other side. Mining of the high seas became more and more extensive as the war progressed. The British north sea barrage, ostensibly undertaken in reprisal for illegal German acts probably covered the widest area in World War I. Charges and countercharges of violations of Hague VIII were made by both sides throughout the war. The rights of neutrals in certain areas were ignored by both sides. Mine warfare in World War II was even more extensive than in World War I. Again Germany was accused of having violated Hague VIII and other Conventions governing naval warfare and British measures were taken in retaliation. Among the recurring complaints against German actions was the absence of required notification to neutral shipping, which Germany claimed was not necessary under Hague VIII until military exigencies so permitted. In 1939 and 1940 Great Britain and Germany increased their mine laying activities and accused each other of doing so in violation of international law. Germany countered British accusations by stating that Hague VIII prohibited only the laying of mines off the enemy coast for the sole purpose of intercepting commercial shipping (Article 2), but that the British convoy system had, as a result, elimination of purely commercial routes. Germany took the position that as long as there were warships present for the protection of commercial shipping, mine laying was legal because it was directed against those warships. Further, Germany stated that notification of the mine fields in accordance with Article 3 was not required until military operations were concluded, and the constant presence of British warships for convoy purposes on commercial routes made the entire area a continuing military objective. Neutrals, in particular Argentina and Norway, protested the laying of mines on the high seas as illegal. Norway stated that the heaviest losses to its merchant fleet had been caused by mines. Only 2 ships had accidentally entered mine areas of which there had been advance notification, in all other cases the ships sank in waters where notice of mining had not been given. Norway pointed out that international law prohibits mine laying with the sole object of intercepting commercial shipping; Norway further stated that it is practically impossible to prove that mines are not laid with a military objective in mind. Consequently, neutrals have little protection. WAR ZONES OR DANGER AREAS IN BOTH WORLD wars, but especially in World War II, the problems of mine warfare became intermingled with the larger problem of war zones or danger areas. In this presentation the problem can only be briefly covered. Is the establishment of these zones legal under international law? Do belligerents have the right to declare entire areas of the high seas closed to neutral shipping or to render these areas so dangerous that neutral shipping may be warned to enter only at their peril? Would it be legal to establish such zones or areas if a safe passage for neutral shipping was provided and neutral governments notified of their location? Great Britain's view regarding their own danger areas established in World War II is that they were legal because they were actually legitimate theaters of military operations, whereas German danger areas were specifically directed against neutral commerce. The establishment of such zones may be the focal point in high sea mining of the future, and the legality of high sea mining will be affected by the legality of such zones, if accepted. Some writers assert that neutrals in any future war will have to contend with such zones and that the establishment of such zones may be recognized as a legitimate form of naval warfare, whether maintained through the use of mines or submarines, as long as safe passage is provided for innocent shipping. It is reasonably well established that a belligerent is permitted to place restrictions upon, and even to forbid altogether, neutral navigation in limited areas. It is generally accepted among nations that belligerents have the right to exercise control over neutral vessels within a restricted area of the high seas adjacent to its territorial waters. Maritime control areas is the term we used for areas extending beyond the territorial sea. Within these waters a belligerent may lay mine fields and take other measures designated to insure its defense. In the Naval War College International Law Studies of 1955 it is indicated that it does not appear possible at the present time to state with any degree of precision either the extent these areas may take or the intensity of the controls that may be exercised within them. However, it is clear that the general criteria to be used in judging the legitimacy of a particular defensive area must be the reasonableness of its extent in terms of its essentially defensive function as well as the ability of the belligerent to exercise a close and effective control over the area. The uses of control areas are related to belligerent requirements of a narrowly defensive character and the controls belligerents may exercise within them are generally recognized as outweighing the limited inconvenience caused to neutrals. It is equally clear that the extreme measures Germany sought to take within war zones against neutral vessels have not received approval within the family of nations. Establishment of barred areas of indefinite extent on the open seas by the laying of mine fields would not be acceptable under present interpretation of international law. Limited and controlled areas in future engagements would undoubtedly be acceptable. Belligerents have not yet been conceded the right to bar altogether such areas to the use of neutral traffic, but may support danger zones which restrict the freedom of movement of neutral vessels if certain routes are established by which neutral traffic may pass through the declared war zones with a reasonable assurance of safety. Oppenheim's International Law contains the following statement in connection with the British barred zones of World War II: These developments tended in the direction of a successful assertion of the right of a belligerent to lay minefields on the high seas irrespective of reprisals but subject to the duty to insure the relative safety of neutral traffic. RELATED PROBLEMS OF MINE WARFARE IN INTERNATIONAL LAW THOUGH NOT A problem of high sea mining, neutrals have the right to lay mines in their territorial waters for their own protection. Although Article 4 of Hague Convention VIII says they may lay mines "off their coasts", the negotiating history of Hague VIII clearly indicates that there was no doubt that only neutral territory was meant. Both world wars show many instances where neutrals barred entrance to their internal waters with anchored mines. Specific examples were the Scandinavian and Baltic states and some Mediterranean states. In all instances appropriate notification was given. (Continued on page 71) |