announce the unanimous decision of the subcommission to deal with only one of the phases of the British proposal; it would only determine, in its examination of mines as a means of injuring the enemy, whether use may be made of them with the object of barring the commercial shipping of the adversary-a question, it seems, which should be answered in the negative. With this established, the committee could be trusted to emphasize this thought and to leave out of the discussion the application of the principles of the Declaration of Paris on the effectiveness of blockade to the subject of mines.

It is, in fact, along this line that the committee dealt with the English proposal. It was agreed at the outset that in order to avoid any mistake it was necessary to drop the term blockade used in that proposal.

But whilst it was preferred in several quarters to avoid any provision which might unduly restrict the liberty of action of belligerents, and which, however the rule might be expressed, would raise insurmountable difficulties in its interpretation and application and give rise either to abuses or to mutual recriminations between belligerents, the majority of the committee took the contrary position (fourteen votes to three). The majority hesitated only between the formula finally accepted, which is due to a proposal of his Excellency Mr. HAMMARSKJÖLD in cooperation with his Excellency Mr. HAGERUP, and the wording of which was modified by his Excellency Count TORNIELLI, and another formula,1 which was presented during the discussion by the British delegation and was worded as follows:

The laying by a belligerent of automatic contact mines before a commercial port of its adversary is not authorized except when there is anchored there at least one large fighting unit.

This last formula was intended to reconcile the two opinions, but it was abandoned as soon as it was seen that it could not gain unanimity.

2. As to the first two paragraphs of Article 4, their guiding idea is that in principle the attacking party must have the same rights and duties that the one on the defense has as to the places where it is permissible to lay mines. Equality in weapons must here also be preserved in principle.

There was an amendment 2 in the contrary sense presented by the delega[414] tion of Spain with a view to restrict for the attack the use of automatic contact mines to the hostile waters where the other party exercised effective power.

In support of this proposal the eminently defensive nature of mines was pointed out, and the necessity of avoiding so far as possible all confusion on the subject of responsibility for eventual damage caused by this weapon to the shipping of neutrals. To this suggestion it was answered that it seemed going too far and placing too great a restraint upon the exigencies of belligerents.

1

Naval war (said his Excellency Vice Admiral RÖELL) has for its aim to cause the greatest possible damage to the hostile ships in order to bring the war to an end as soon as possible.

One of the principal means is to obstruct the hostile ships in their maneuvers, for example, by preventing them from leaving their port by laying mines and at the same time giving more liberty of movement to one's own vessels. If we limit the laying of mines to maritime zones where

1 Annex 25.

2 Annex 14.

effective power is exercised we shall certainly injure operations of an offensive nature on the theater of war, but this will be going beyond the Spanish proposal, which has only for its object safeguarding neutral ships without at the same time hindering the operations of the belligerents.

The committee, while in principle favoring the point of view of equality for the two belligerents, consented to examine the possibility of finding a certain compromise between the requirements of the attack and the interests of peaceful navigation. Captain CASTIGLIA said that it is fair to give more liberty of action. to the country wishing to defend its ports and its coasts with mines, assuming that it can control them more easily, than to the one using mines in the waters of its adversary. Besides the provision of paragraph 3 of which we have just spoken and which already lays quite a serious restriction upon the attacking party, another would be added, limiting the assailant as to the zone in which he may lay mines to the distance of three miles: an exception would be made for naval ports and for ports classed with naval ports by reason of establishments located there (Article 3), provided said establishments belonged to the State. Several other members of the committee favored this view, and the restriction contained in paragraph 2 of Article 4 obtained six votes against two, and nine abstentions.

It follows from this provision that the principle of equality between attack and defense finds an exception with regard to ports that are not naval ports but contain establishments of naval construction or graving-docks. If these establishments belong to the State the limit of the zone is carried to ten miles for both belligerents; if they belong to individuals it is only the zone of defense that is carried to ten miles, that of attack reaching only three miles, with the exception, of course, of the sphere of immediate activity of the belligerents, which, conformably to Article 5, has no fixed limits. It may be recalled, on the subject of distinctions to be made between attack and defense, that the question of knowing whether such a distinction can be justified has received the attention of writers on international law. Mr. Nys especially, in volume 3 of his treatise, declares himself in favor of a limitation that is unequal for the two belligerents. "Doubtless," says the illustrious Belgian writer, "the littoral sea forms a part of the theater of war, but in the littoral sea the State attacking has none of the rights of the adjacent State; it cannot, like the latter, invoke a right of [415] sovereignty; it therefore does not belong to it to exclude neutrals by all

means that it deems useful; it must adopt such conduct towards them as is permitted by the law of war, that is to say, blockade by means of ships." This view of the matter did not prevail in the Institute, which placed the two belligerents on a footing of perfect equality. We are able to state that the text drawn up by the committee of examination follows an intermediate line between the two opinions by admitting exceptions to the principle of equality.

ARTICLE 5

Within the sphere of their immediate activity, the belligerents have likewise a right to lay anchored automatic contact mines outside the limits fixed in Articles 2 to 4 of the present regulations.

Mines used outside the limits fixed in Articles 2 to 4 must be so constructed as to become harmless within two hours at most after the person using them has abandoned them.

At the beginning of the discussion in the subcommission two diametrically opposed views were advanced. The British delegation aimed at excluding all laying of anchored mines on the open sea, whilst the German delegation was of opinion that there could be no prohibition of the laying of such mines by belligerents in the theater of war-including therein the high sea-and it was explained that under the denomination of "theater of war" should be included "the sea area upon which an operation of war is taking place or has just taken place, or upon which such an operation may take place in consequence of the presence or the approach of the naval forces of the two belligerents." In support of the first view, Captain OTTLEY referred to the dangers for navigation that result from the laying of anchored mines on the open sea; these mines may be the cause of disasters long after the war; once placed they are no longer in all circumstances under the effective control of the belligerent, who often has not time to remove them, and even if he has the time, cannot always find them. The high sea will thus be infested in a manner incompatible with the rights of neutrals. On the other hand, Rear Admiral SIEGEL emphasized the impossibility of limiting the action of belligerents by assigning to them an absolutely circumscribed zone within which the laying of mines will be permitted; in the course of hostilities such a limit can never be scrupulously observed-therefore it is better not to lay down provisions which will not be applied in practice. Moreover, if the theater of war may legitimately extend beyond the coastal waters of the two parties, it will be necessary to permit belligerents to make use of anchored mines for military purposes wherever strategy requires the use of this weapon. The furthest we could think of going would be to lay an obligation upon belligerents in a general way to take every possible precaution to safeguard the rights of neutrals; particularly they might be obligated to make use of only such mines as are constructed in such a way as to become harmless after a more or less limited length of time-in order that danger from them may not continue long after the war-or to indicate, as soon as military necessity permits, the dangerous regions.

In spite of the agreement which was easily arrived at respecting the necessity of imposing such measures of precaution in every use of anchored mines

(Article 6), the question of principle remained in controversy; on the one [416] hand some members of the committee insisted upon an absolute prohibi

2

tion of the laying of anchored mines on the open sea, whilst on the other the formula of "the theater of war" was replaced by a more general idea, the delegation of Germany having suggested that the laying of anchored mines be permitted "within the sphere of the immediate activity of the belligerents." A proposal of the delegation of the Netherlands was then presented as a compromise measure. His Excellency Vice Admiral RÖELL proposed to permit only controlled anchored contact mines on the open sea within the sphere of the immediate hostilities of the belligerents, or as was said in a later and more explicit rendering of this same idea, mines" which when left to themselves become harmless within a very limited length of time (two hours at the most)." It is only under such conditions that neutrals could be safeguarded effectively without depriving belligerents of an indispensable weapon. If this condition presents technical difficulties, it was said, they would appear not to be insurmountable,

1 Annex 26.

2 Annex 21.

and once the obligation is laid down in an international convention, science will not be slow in finding means to meet it satisfactorily.

But the intermediate proposal of the Netherlands did not succeed in gaining unanimity. Rear Admiral SPERRY observed that in his opinion the clause whereby mines should be constructed “in such a way as to become harmless within a period of two hours, etc.," presents "a technical requirement which has never been realized"; "besides," said he, "by this whole stipulation an unacceptable restriction would be imposed upon the right of defending places such as the outer entrances of ports, bridges, and tunnels situated near the sea, as the ordinary range of naval artillery exceeds twelve thousand meters." A vote was then taken upon the question whether in principle the laying of anchored mines should be permitted outside the zones indicated in Articles 2 to 4 in the sphere of the immediate activity of the belligerents; the committee, by a majority of nine votes to seven and one abstention, decided for the affirmative, some of the members at the same time formally declaring that they intended to vote for paragraph 1 of Article 5 on the condition that the restriction proposed by the Netherland delegation should be added thereto. The Netherland addition itself obtained ten votes to four and three abstentions. The committee thus decided that mines could be placed in the sphere of the immediate activity of belligerents, "provided that these mines are so constructed as to become harmless within a period of two hours if they do not remain under surveillance."

This last restriction was changed once more; in accordance with an observation of Captain OTTLEY, accepted by the majority, and assuming the impossibility of having mines constructed so as to become harmless of themselves at the moment they are abandoned, it was necessary to state that the obligation imposed consists in making use of mines that can be rendered harmless within a period of two hours at the most, counted from the moment when these mines are abandoned. Doubts having again arisen as to the technical possibility of realizing this obligation, the committee was called upon to vote on the new English formula; it was accepted by ten votes to four, with two abstentions.

VII

Although an agreement could not be reached on all points with respect to the places where mines may be placed and with respect to the conditions of the construction of mines, there existed, on the other hand, from the beginning [417] a unanimous wish to impose upon States making use of mines very strict obligations as to the precautions to be taken to safeguard peaceful navigation in the greatest possible measure.

These are the precautions contemplated by Articles 6 to 8 of the draft.

ARTICLE 6

When anchored automatic contact mines are used, every possible precaution must be taken for the safety of navigation.

The belligerents undertake, in case these mines should cease to be under surveillance, to notify the danger zones, as soon as it can be done, by a notice to ship-owners, communicated also to the Governments through the diplomatic channel, and to do their utmost to render them harmless within a limited time.

1

The original proposals of the British delegation as well as the amendments

to those proposals presented by the delegations of the Netherlands and the United States of America1 contain provisions along the same line.

In a general way (according to the British project) the necessary precautions shall be taken to safeguard neutral vessels engaged in a legitimate trade; and it is desirable that by reason of the very measures taken in the construction of automatic submarine contact mines these engines cease to be dangerous at the end of a suitable period.

The same provision was repeated in the amendment of the delegation of the Netherlands, with the sole difference that it was also specified that "the laying of mines in territorial waters should be published." The American proposal, on the other hand, contented itself in a more general way with imposing the obligation to take "the precautions desirable for the security of neutrals." The examination of these formulas was referred to the committee, where a proposal of the delegation of Germany 2 was presented combining these different provisions.

Rear Admiral SIEGEL stated that "in order to cooperate in the work, the purpose of which was to defend the interests of neutrals and safeguard the security to which they are entitled by adopting every measure that might seem practical and acceptable from a military point of view," he proposed the following formula:

If anchored contact mines are employed, all necessary precautions must be taken for the safety of legitimate navigation.

The belligerents undertake especially, in case these mines are left to themselves, to notify, as soon as possible, the danger zones to the public, or to render them harmless within a limited time, so that a peril to legitimate shipping may, as far as possible, be removed.

It is this last text which served as a basis for the discussion of the committee, and which, after modification, appears in the project submitted to the Commission. At first, in order to do away with scruples of a legal nature that had been expressed concerning the possibility of restricting the precautions to be taken to legitimate navigation, this last qualification was omitted.

Thereupon a substitution was made in paragraph 1 of the words "possible precautions" for the words "necessary precautions," in accordance with an amendment that had already been offered in the subcommission by Captain IVENS FERRAZ in the name of the delegation of Portugal and taken up again. in the committee by his Excellency TURKHAN PASHA. This change does [418] not carry any essential modification; it is natural that the necessary precautions be taken so far as they are possible. Nevertheless, the purpose of the proposed amendment was manifestly to weaken the obligation and to emphasize the idea that it lies within the judgment of each State to determine in detail the measures to be taken.

The committee took the opposite view, and by a majority (twelve votes for and four votes against) decided to combine the two obligations contained in the second paragraph of the article proposed and constituting, according to the German text, an alternative. It thus changed the words "or to make provision" into "and to make provision," and at the same time it inserted, in order

1 Annex 17.

2 Annex 23.