VII FLOATING MINES AND MINE FIELDS SEVERAL questions are involved in the employment of floating mines. It has to be considered whether (1) it is permissible to lay such mines on the High Sea beyond the customary bounds of territorial waters, or (2) even within the bounds of territorial waters; and, in the alternative, if permissible, (3) whether the practice is only permissible for the purpose of defence, and even if for that. During the blockade of Port Arthur, the Russians laid mines in all parts of the sea adjacent to that port. The Japanese allege that from the beginning to the end of the siege they removed 395 Russian mines. The removal continued after the siege, so that the total number removed they estimate to have much exceeded this number. In an excellent article, dated November 24, 1905, published in the Times of December 27, the able Tokyo correspondent of that paper remarked that "this chapter of history would not have retained a prominent place in general recollection, had it not been vividly illustrated from time to time by shocking disasters to merchant steamers, which, while navigating routes comparatively remote from the scene of the combat, struck errant mines, and were sent to the bottom." The Russians were not alone the offenders. The Japanese made almost equally extensive use of such mines, as has been learnt from a document compiled at the Japanese Hydrographers' Office in answer to an application from the Russian headquarter staff for information as to the locality of any mines placed by the Japanese in the neighbourhood of Vladivostok. The Japanese Admiralty replied, says the same correspondent, by a detailed statement showing that two mine-laying operations had been carried out by the Japanese in Vladivostok waters-the one in April, 1904, to render impassable the entrance and exit through the straits which must be passed to reach the port; the other, about a year later, when the Baltic Fleet had arrived in Far Eastern Waters. In this case 715 mines were laid "right across Peter the Great Bay, from Askold Island to Korsakoff Island, a distance of forty miles." These figures show that there must have been a mine at about every 100 yards. "In spite of this great plexus of destructive engines," communications with Vladivostok continued undisturbed during the period of eight months from April 15, 1905, when the Askold-Korsakoff line was laid, to November 9 of the same year, when the Japanese Admiralty replied to the Russian inquiry." The danger involved for neutrals in these mines, however, has been amply shown by the destruction of four inoffensive merchantmen in the neighbourhood of Port Arthur. It is no answer, as regards the danger to neutrals, to say no neutral ships-nor indeed any ships at all-were injured by the Japanese mines on the high sea outside Vladivostok. The danger was there, and it was increased by derelict mines wandering beyond the dangerous area. Some dozen it seems drifted as far south as the Oki Islands, over 1000 miles away from where they were laid.1 (1) There is no doubt as to the illegality of laying mines beyond the limits of territorial waters. In pretty general (but not universal) practice a zone of three miles along the coast-line is recognized as being under the sovereignty of the adjacent State. Bays not exceeding ten miles from headland to headland are assimilated to estuaries of the same width, the coastline from which the zone is calculated passing from such headland to headland. Beyond this zone is the High Sea, which is the common property of mankind, and belligerents have no right to interfere with its safety beyond exercising the rights of visit and search and effective blockade, which are specific and wellascertained rights, not capable of extension to cover the laying of mines.2 (2) As regards Territorial Waters, a right of inoffensive passage is universally recognised in favour of all navigators without distinction. Under the existing practice of Europeans, this right can only be abridged by the exigencies of the exercise of the belligerent right of effective blockade on the one side and the general exigencies of defence on the other. In 1894 the Institute of International Law laid down the rules governing the 1 The Daily Mail of March 13, 1906, contained the following paragraph, dated "OSTEND, March 11. "Some consternation was caused here on Thursday, when the Dover mail boat reported a floating mine off the coast. A tug was sent out to remove the mine, which was found to have drifted from the defences at Dunkirk. A French torpedo-boat arrived on Friday, and after paying £60 as salvage, took the mine away." On October 15, 1906, the Standard announced that sixteen floating mines had got adrift in the Solent. Ten of them had been recovered, but the other six had not been found. The naval authorities at Portsmouth had issued a statement to the effect that so long as the mines remained in deep water there was no danger, but should they be carried inshore they would be a serious menace to small craft. From Vladivostok a telegram of October 21, 1906, to the Times announced that the Russian steamer Variag, when leaving the harbour the day before, had struck a torpedo and sank immediately. Two hundred passengers perished, only one being rescued. The Morning Leader announced, on October 24, 1906, from Copenhagen, that the German Government had notified the Danish Baltic Authorities that a floating mine had become detached during the recent manoeuvres, and could not be found. These are only a few of many announcements in the daily newspapers showing the danger to navigation of floating mines. 2 See chapter on Territorial Waters, p. 109 et seq. See Professor von Martitz' interesting paper on "Mines in Naval War," read at the Berlin meeting of the International Law Association (Oct. 1906), in which he claims for belligerents the right to lay down mines as far seawards as ten nautical miles (cannon-range) from the coast, cannon-range, in his opinion, still determining the width of the Territorial Waters' zone, subject to any contractual arrangement fixing it otherwise. right to interfere with the inoffensive user of territorial waters in the following terms :— "Art. V. All ships without distinction have the right of inoffensive passage through territorial waters, subject to the belligerent right to regulate, and, for purposes of defence, to bar the passage through the said waters for every ship, and, subject to the right of neutrals, to regulate the passage through the said waters for ships of war of all nationalities. "Art. VII. Ships passing through territorial waters must conform to the special rules laid down by the adjacent State, in the interest and for the security of navigation and for the police of the sea.” 1 1 These rules in 1895 were also adopted by the International Law Association. (3) It follows from the right of self-preservation that a State may take measures for purposes of defence which would not be equally justified if taken for purposes of attack. Certain acts, however, are absolutely forbidden to both belligerents. The use of floating mines has not yet been added to these: and when the question of their permissibility arises, it will have to be considered (a) whether floating mines can be laid down in any part of the territorial waters of a belligerent State from which neutral ships are not either de facto or by other effective notice excluded; (b) whether only certain kinds of floating mines, which are not liable to become detached and to explode on merely coming into contact with any vessel, may be used; (c) whether for purposes of attack or blockade they may be used at all. The question of whether a belligerent State may on the outbreak of war suspend the user of its territorial waters does not arise, the defending State being sole judge of what is necessary for its safety. As regards the question of humanity, the Hague Conference of 1899 laid down a number of rules, and reserved others for later examination, with a view to attenuating the horrors of war. No horror, yet devised, seems quite equal to that of the destruction of a ship by a floating mine, especially at a distance from the seat of hostilities, as when the mine has broken from its moorings and drifted to a situation where its existence is quite unwarranted. The same indignation which was shown for dumdum bullets and shells giving out asphyxiating gases would also be justified even within the war area against floating mines, which during the Russo-Japanese war destroyed as many as nine vessels, including three battleships, with all the attendant horrors of being blown up without the slightest warning or other possible preparation, or means of life VIII IMMUNITY OF PRIVATE PROPERTY AT SEA AT The Hague Conference, 1899, the United States delegates, in accordance with specific instructions from their Government, presented the following proposition: "The private property of all citizens or subjects of the signatory Powers, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the armed vessels or the military forces of any of the said signatory Powers. But nothing herein contained shall extend exemption from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of any of the said Powers." This proposition represents a traditional policy of the United States. As long ago as 1783, Benjamin Franklin, in the course of treaty negotiations with Great Britain, expressed himself as follows: "It is for the interest of humanity in general that the occasions of war and the inducements to it should be diminished. If rapine is abolished, one of the encouragements to war is taken away, and peace therefore more likely to continue and be lasting. The practice of robbing merchants on the high seas, a remnant of the ancient piracy, though it may be accidentally beneficial to particular persons, is far from being profitable to all engaged in it, or to the nation that authorises it." He also suggested the following article for the treaty then. under discussion :: "That if war shall arise between Great Britain and the United States, which God forbid . . . all merchants or traders with their unarmed vessels employed in commerce, exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of life more easy to obtain, and more general, shall be allowed to pass freely unmolested; and that neither of the Powers shall grant or issue any commission to any private armed vessel, empowering them to take or destroy such trading ships or interrupt such conmerce." This provision was not adopted.1 1"How much better it would have been for Great Britain," observed Mr. C. H. Butler in an address on the subject at the Buffalo meeting of the International Law Association in 1899, "to have accepted this article was demonstrated less than thirty years afterwards, when, during the War of 1812, the Power whose offer to waive that belligerent right of naval warfare had been refused, swept down upon British commerce all over the world, and in less than thirty months captured or destroyed more than twenty-five hundred vessels, which with their cargoes amounted in value to millions of pounds sterling.' |