Author Topic: International Law Applicable to Naval Mines  (Read 92 times)

adroth

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International Law Applicable to Naval Mines
« on: September 01, 2019, 01:39:53 PM »
This thread is an off-shoot of the following discussion on the mother forum. Best to discuss this matter here:

https://www.facebook.com/groups/rpdefense/permalink/2372956826123484/




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https://www.chathamhouse.org/sites/default/files/field/field_document/20140226NavalMines.pdf

Introduction

In September 2012 nearly 30 states from six continents were involved in a joint mine clearing exercise off the coast of Bahrain. Although participating states remained adamant that the operation was not directed at Iran, the show of unity undoubtedly sent a signal to Tehran that an international coalition would be willing to take measures in response to any
attempts to block the Strait of Hormuz.

The mine countermeasure exercise generated a series of discussions among leading legal experts and drew attention to the need for greater clarity as to the law governing the use of naval mines in times of both peace and war. On 26 and 27 February 2014 Chatham House, in collaboration with the Royal Navy and US Naval War College, organized a workshop on naval mines bringing together a group of international law scholars, operational lawyers and other legal experts in the field. The objective of the workshop was to clarify existing law and to identify areas of legal uncertainty to assist states to conduct their operations lawfully.

The following summary of the workshop does not represent the official views of any particular state as those who participated did so as legal experts in their individual capacity. Moreover, the summary does not necessarily reflect the unanimous view of all the participants. Links are provided to papers produced by some of the scholars who participated in the workshop.

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Peacetime constraints on laying mines

States seeking to lay naval mines in peacetime are limited in how and what they may do by both treaty and customary international law obligations. The 1982 United Nations Convention on the Law of the Sea (UNCLOS)5 does not expressly refer to mine-laying or, for that matter, the right of states to undertake mine countermeasure (MCM) operations.

Nevertheless UNCLOS is the most relevant treaty for determining the circumstances under which a state may lawfully lay mines in peacetime.

Sovereign waters and international waters

• Territorial seas, internal waters and the archipelagic waters of the mine-laying
state

In peacetime, a state is permitted to lay mines in its own territorial seas, internal waters and archipelagic waters. However, since ships of all nations enjoy the right of innocent passage through the territorial sea8 and archipelagic waters, a state’s right to lay armed mines in these waters is tempered by its obligation not to hamper the appropriate passage of foreign ships. This rule is derived from both treaty10 and customary international law. A coastal state is entitled to suspend innocent passage to protect its national security and for weapons exercises but, in such circumstances, the suspension must be temporary and only in specified areas of its territorial sea. In other words, the right to do so is exceptional. If a coastal state lays armed mines in its territorial waters and fails to give any warning or notification to
vessels of another state that have rights of access or passage, it will be in breach of its international legal obligations. These legal obligations are found in treaty and customary international law. Once the security threat terminates, armed mines must be removed or rendered harmless while floating mines must be removed or rendered harmless one hour
after they are deployed in any circumstance (the origin of this rule is discussed below). It should be noted, however, that since the obligation is not to hamper innocent passage, the laying of controlled/deactivated mines – in other words those that do not affect innocent passage – probably does not trigger the notification requirements.

• The territorial seas, internal waters and the archipelagic waters of another
state

In peacetime, a state is prohibited from laying mines of any type in the territorial seas, internal waters or the archipelagic waters of another state. To do so would violate the territorial sovereignty of the latter and constitute a use of force unless the mine-laying is done with the consent of that state.

• International waters, international straits and archipelagic sea lanes

Most states agree that, as a general rule, international law prohibits the laying of armed mines in international waters,16 international straits and archipelagic sea lanes during peacetime. The prohibition on laying armed mines in international waters derives from the principle of freedom of navigation as well as the duty on states to observe the peaceful uses
of the high seas as recognized in UNCLOS. The prohibition on laying armed mines in international straits derives from the principle that all ships enjoy the right of unimpeded transit passage through international straits. This is reinforced by the obligation on coastal states not to ‘hamper transit passage’ and to give ‘appropriate publicity to any danger to navigation … within … the strait of which they have knowledge’. Moreover, unlike innocent passage, transit passage cannot be suspended. These obligations also apply to archipelagic sea lanes.

There is some disagreement as to whether an exception to the rule exists in regard to the laying of armed mines in international waters during peacetime. The US maintains that armed mines may be laid in international waters prior to the existence of an armed conflict on the basis of individual or collective self-defence. According to the US, in such
circumstances a state must maintain an on-scene presence in the area sufficient to ensure that appropriate warning is provided to ships approaching the danger area, and all armed mines must be expeditiously removed or rendered harmless when the imminent danger has passed.

The law is unsettled as to whether controlled mines may be laid in international waters in peacetime since a state’s obligation is to have ‘due regard’ to the rights of other states. For example, the US has taken the position that controlled mines may be emplaced in international waters subject to the requirement that they do not unreasonably interfere with
other lawful uses of the seas. Moreover, controlled mines, it is claimed, do not constitute a hazard to navigation and therefore notification is not required. Not all states share this view as some maintain that, in peacetime, neither armed nor controlled mines may be laid in international waters. Likewise, whether controlled mines may be laid in international straits in peacetime also remains unsettled.

These differences aside, if harm results to innocent shipping as a consequence of unlawful mine-laying by a state, that state is responsible in international law for that internationally wrongful act. This might form a basis for subsequent liability in legal proceedings, or entitle the injured state to take countermeasures or act under the doctrine of necessity.
Depending on the scale and effect of the resulting harm, the mine-laying state may even be deemed to have perpetrated an ‘armed attack’ that would give rise to the right to use force in self-defence by the state/s directly injured by the attack.

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« Last Edit: September 01, 2019, 03:21:51 PM by adroth »