the Germans with having "scattered mines indiscriminately in the open sea on the main trade route from America to Liverpool via the north of Ireland" and charging also that they had been laid by some merchant vessel flying a neutral flag. The Admiralty therefore gave notice that the whole of the North Sea must henceforth be considered as within the military zone and that in this area "merchant shipping of all kinds, traders of all countries, fishing craft and all other vessels will be exposed to the gravest dangers from mines which it has been necessary to lay." All merchant and fishing vessels of every description were warned of the dangers they would encounter by entering this area except in strict accordance with Admiralty directions. "Every effort will be made,' said the statement, "to convey this warning to neutral countries and to vessels on the sea, but from the fifth of November onwards the Admiralty announce that all ships passing a line drawn from the northern point of the Hebrides, through the Faroe Islands to Iceland do so at their own peril."

The announcement further added that ships of all countries wishing to trade to and from Norway, the Baltic, Denmark and Holland were advised to come by the English Channel and the Straits of Dover where they would be given sailing directions by which they could pass safely up the east coast of England to Farn Island, thence to Lundesnaes lighthouse on the southwest coast of Norway. The London Times commenting on these measures declared that they were "unusual and indeed unique" but that they were clearly justified as necessary measures to meet those of an adversary who "conforms to the ordinary rules of warfare neither on land nor on sea," and that it "would be leniency degenerating into weakness and folly, not to fight him with his own weapons, or at all events not to prevent him using them."

The employment of mines as a mode of warfare was, as is well known, first resorted to on an extensive scale during the Russo-Japanese War, and the matter was first brought officially to the attention of the world by the Chinese delegation to the Second Hague Conference in 1907.5

53

The acts of the First Hague Conference contained no provisions in respect to the employment of mines or torpedoes in war, and the RussoJapanese War being the first in which they were used there were, of 53 La Deuxième Conférence de la Paix, t. III, p. 663.

course, no precedents in regard to the employment of such agencies. But it is clear that their use under certain conditions was not condemned. The manual for the use of British officers in the field contained a provision which declared them to be legitimate weapons, and that those who used them were entitled to be treated as lawful combatants.54 Nevertheless, the laying of mines in the open sea where they endangered neutral shipping was severely criticised by many writers at the time. The English Admiral Horsey, in a letter published in the London Times, 55 denounced the practice as "inhuman and a breach of international law and practice." Professor Holland 56 stated in a letter at the same time that "it is certain that no international usage sanctions the employment of one belligerent against another of mines or other secret contrivances which would, without notice, render dangerous the navigation of the high seas." Lawrence took a similar view.57

At the Second Hague Conference the British delegation proposed that the employment of unanchored automatic submarine contact mines and of anchored mines which do not become harmless upon breaking loose from their moorings, should be forbidden and that belligerents should be allowed to lay mines only in their territorial waters or those of the enemy. This proposal, had it been adopted, would have prevented absolutely the laying of mines in the open sea. It was powerfully supported by Sir Ernest Satow, who declared that the high seas constituted a great international highway and that the right of neutrals to navigate those seas should take precedence of the transitory rights of belligerents to fight their battles thereon. But largely on account of the opposition of Marschall von Bieberstein, supported by the delegates of many of the smaller Powers and a few of the larger ones, the English proposal was defeated and the results of the Conference, so far as they relate to the places where and the conditions under which mines may be laid by belligerents, are embodied in Articles 2 and 3 of the Convention Relative to the Laying of Automatic Submarine Contact Mines. Article 2 reads as follows: "It is forbidden to lay automatic contact mines off

54 Smith and Sibley, p. 93.

55 May 24, 1904.

London Times, May 24, 1904.

"War and Neutrality in the Far East, p. 10.

the coasts and ports of the enemy, with the sole object of intercepting commercial shipping." Article 3 reads: "When anchored contact mines are employed, every possible precaution must be taken for the security of peaceful shipping. 58 The belligerents undertake to do their utmost to render these mines harmless within a limited time * and to notify the danger zones as soon as military exigencies permit, by a notice addressed to ship owners

* *

It is quite clear from a reading of these and other articles of the Hague convention relating to mines, that the statement sometimes made that the convention prohibits the laying of mines in the open sea is quite without foundation, and that in other respects its provisions for the security of neutral shipping are inadequate. As Sir Ernest Satow pointed out in the course of the discussion of the convention, "There is nothing in its provisions to forbid belligerents placing mines, floating or anchored, on the high seas, nothing to prohibit them from placing mines off the coast of the enemy without regard to neutral shipping, for the proviso that these zones shall be notified as soon as military exigencies allow' is of little value." 59 Likewise the prohibition of the use of mines off the coast of the enemy, "with the sole object of intercepting commercial shipping is futile, for a belligerent has merely to allege a different object to make it illusory, as, for example, to prevent the enemy from finding shelter or receiving supplies from a port." 60

Even if the prohibitions of the convention afforded adequate safe

58 Scott, Texts of the Peace Conference at The Hague, p. 254. Article 1 forbids the laying of unanchored, automatic, contact mines which do not become harmless within at least an hour after the person who laid them has lost control of them, and also the laying of such mines when anchored, which do not become harmless as soon as they have broken loose from their moorings.

59 Higgins, The Hague Peace Conferences, p. 343; also Lémonon, La Séconde Conférence, p. 499, and Westlake, Pt. II, p. 324. See a letter by Mr. Higgins to the London Times of September 14, 1914, where the same opinion is expressed. "The permission to belligerents," said Sir Ernest Satow, "to lay mines anywhere in the sphere of their immediate activity, was a permission to strew the high seas with mines. On the outbreak of war a catastrophe to a neutral ship would at once create a situation which in all probability diplomacy would be impotent to solve." The convention would there increase instead of diminish the causes of war. Conférence International de la Paix, Actes et Documents, t. III, p. 380.

60 Compare the views of Lord Loreburn, Capture at Sea, p. 139, where these provisions are declared to be little more than "benevolent expressions."

guards to neutral shipping in the open seas, Germany might, if she chose to do so, refuse to regard it as binding on her (although she has ratified it), for Article 7 of the convention declares that: "The provisions of the present convention are only applicable between the contracting Powers, and then only if all the belligerents are parties to the convention." Now it happens that Russia, one of the belligerents in the present war, has not ratified the convention, and it follows from Article 7 that it is not legally binding on any of them.61 But no such plea has been made by the German Government; on the contrary, it announced that it would act in accordance with the terms of the convention; it denied the charge of having laid in the North Sea any mines of the prohibited class and it declared that no fishing boats or other vessels flying neutral flags have been employed in the laying of mines anywhere.

During the course of the discussion of the convention in the Conference, Baron von Bieberstein, replying to the criticism of Sir Ernest Satow that the convention as adopted imposed no restrictions as to the place where anchored mines might be laid, fully admitted the great responsibility of belligerents in their use of mines, but he affirmed that conscience, good sense and the unwritten law of humanity and civilization afford a better guarantee for the observance of international law than written contracts. "The officers of the German Navy, I loudly affirm it," [Je le dis à voix haute], he said, "will always fulfill in the strictest fashion the duties which emanate from the unwritten law of humanity and civilization * *As to the sentiment of humanity and civilization, I cannot admit that there is any government or country which is superior in these sentiments to that which I have the honour to represent." 62 Unhappily the events of the present war have not justified the Baron's optimism and faith in the potency of conscience, good sense and humanity as factors in securing the observance by belligerents of international law.

*

But quite apart from the Hague convention, neutrals have a right to navigate the high seas without being exposed to the danger of destruction by secret engines of warfare placed there by belligerents to injure

1 Compare, on this point, the views of Mr. A. P. Higgins in the London Times of September 14, 1914.

63 Conférence International de la Paix, Actes et Documents, t. III, p. 382.

their enemies. In this connection, Mr. A. Pearce Higgins justly observes that "there are certain well recognized principles which apply to this question of mine laying in the open sea, principles which were strongly emphasized by English jurists during the Russo-Japanese War. These found expression in the reservation made by the British Government on signing and ratifying the Mines Convention; in this the British plenipotentiaries declared 'that the mere fact that this convention does not prohibit a particular act or proceeding must not be held to debar His Britannic Majesty's government from contesting its legitimacy.'" 63 The late Professor Westlake thus stated the principle, and it is one which can hardly be impeached:

The right of sovereignty, therefore, does not extend to employing anywhere what might be foreseen to be engines of slaughter and damage to unoffending foreigners. The foreign government whose subjects suffer from such engines does not need to inquire whether their use is prohibited by any positive rule of international law, whether resting on custom or agreement. They are indefensible in themselves and the foreign government concerned will be justified, not only in taking up the cause of its injured subjects, but even in interfering in order to stop the offending methods of warfare.64

The question of laying mines has been considered by the Institute of International Law at each of its sessions since 1906, and it has adopted a series of regulations, the first of which forbids the placing of either anchored or unanchored contact mines in the open seas.65 This rule, that of absolute prohibition, is most in accord with the "principle of the

" Mr. Thomas Gibson Bowles, a well known member of the English Parliament and a writer of note on international law, in a letter published in the London Times of Sept. 9, 1914, severely criticised Sir Ernest Satow for having "very unwisely" voted for the Mines Convention and the British Government for having "still more unwisely" ratified it. He adds: "Whether such a convention of the governments represented on this occasion at The Hague has given any sanction to the cowardly use of contact mines against belligerent and neutral shipping alike; whether, in short, a Foreign Office delegate and Secretary can secretly give a sanction withheld by the law of nations to methods of warfare so inhuman, is a question to which I believe there can be but a negative reply.

"I myself feel absolutely confident that neither by the law of nations nor by any convention whatever can the unrestricted and deliberate assassination of harmless neutrals by concealed mines be either sanctioned or justified. And I feel equally confident that if and when the question arises our prize courts will so declare." 64 International Law,-War, p. 322.

65 Annuaire, 1906, p. 88; 1910, pp. 429–457; 1911, pp. 286-302; 1913, pp. 227-228.