a satisfactory solution of a problem under study can scarcely be indicated in advance. Even if the scientific principle upon which the invention to be made rests were most simple from a theoretical point of view, obstacles absolutely unforeseen and very often difficult to overcome may at any turn occur to prevent the practical realization of the idea.

It is also necessary not to lose sight in the case before us of the fact that it would not be sufficient to construct an apparatus of perfect action by means of which a mine on breaking from its moorings would be automatically rendered harmless; there is equally the problem, and this seems to me to be of no less importance, of giving the apparatus in question such a construction that the other mechanical parts of the mine are not altered to the prejudice of its military value, so that the mine remains simple and not dangerous to handle without losing its effectiveness. It is only after having tested the apparatus to be constructed from different points of view, which in all probability will necessitate a series of lengthy experiments, that we can accomplish the change in the material of mines and then indicate approximately the time in which this operation can be brought to an end.

Now if in existing circumstances we were to fix in conventional form a period running from now on for the adoption of perfected mines, and if at the expiration of the time the change in question were not yet executed by one of the contracting Powers, this latter would find itself in a most embarrassing situation. For it would be obliged, if a war should break out in the interval, either to renounce the use of mines not yet converted or to fail in its conventional engagement. Both of these eventualities must necessarily be obviated. It therefore seems to us that if we take seriously the engagement in question, we cannot accept a period fixed in advance in the matter.

In accordance with these ideas the delegation of Austria-Hungary proposed 1 to omit the period of three years and to add to paragraph 2 of Article 1 a new provision worded as follows:

1

The maritime Powers which do not at present own these perfected mines, and which consequently could not at present be a party to this prohibition, undertake to convert, as soon as possible, the matériel of their mines so as to bring them into conformity with the foregoing condition. The memorandum of the Austro-Hungarian delegation concluded with these words:

The fact that the conversion of mines is desirable not only for humanitarian reasons but also in the very interest of the Powers, offers a sufficient guaranty that the undertaking set forth in the above proposal will be faithfully carried out. In this way the humanitarian aim in view will be attained as soon as the means are provided. To do otherwise and to accept a particular period measured from the present for the conversion of mines would be, in the opinion of the delegation of Austria-Hungary, to make an engagement with a mental reservation which evidently would hardly be in harmony with the absolute obligation resulting from a conventional stipulation.

As to the unanchored mines referred to in the first paragraph of Article 1, the delegation of Austria-Hungary entirely supports the observa1 Annex 27.

tions presented on this subject by the naval delegate of Great Britain, and thinks that we might well get along without a provision analogous to that just mentioned or of any other provision fixing a definite time. [424] As to the provision of the second paragraph of Article 5, the delegation of Austria-Hungary has no proposal to make, as the clause in question seems to it unacceptable in principle.

The majority of the committee supported, as to the mines referred to in paragraph 2 of Article 1, the view of the Austro-Hungarian delegation, whose proposal relative thereto was accepted by eight votes to four, with five abstentions. But it was decided that the same provision should be applied to the apparatus mentioned in Article 6 in order that the mines there contemplated should likewise be the subject of an engagement by the Powers to furnish themselves therewith as soon as possible. Accordingly it was necessary to assign to this provision a different place than that proposed by the delegation of Austria-Hungary; it was thought that a special article should be made of it to be placed in this last chapter.

As to unanchored automatic contact mines it seemed equally necessary to fix a period for the change of existing material. One year, counted from the coming into effect of the Convention to be concluded, was deemed sufficient by the majority of the committee by twelve votes against five abstentions; it is to these considerations that the present form of paragraphs 1 and 3 of Article 9 is due.

There remained the question of the time to be fixed for the mines mentioned in paragraph 2 of Article 5. For this a British proposal,' offered in agreement with the delegation of Japan, was adopted by nine votes to two and six abstentions to the following effect:

Until a belligerent is provided with mines constructed so as to fulfill the condition contained in the second paragraph of Article 5, it is forbidden to place anchored automatic contact mines beyond the limits fixed by Articles 2 to 4.

By this provision, which appears as paragraph 2 of the article in question, and which is naturally accepted only by the States that do not object to the admission of paragraph 2 of Article 5, while avoiding the fixing of a delay for the putting into use of mines answering the requirements of paragraph 2 of Article 5, there is introduced an indirect sanction by forbidding the use of mines not answering the conditions laid down in the said article outside of the limits established by Articles 2 to 4.

Captain OTTLEY, in support of his proposal, put the question, whether mines that do not possess safeguards should be used elsewhere than in territorial waters before mines fulfilling these conditions are available? A negative answer should be given this question.

The opinion (said he) that international law permits the use of unperfected automatic mines everywhere beyond territorial waters where the immediate sphere of the activity of belligerents lies, seems rather pessimistic. It will perhaps be more exact to say that it was rather the lack of a special law on this subject that caused the unrestricted use of mines of this dangerous type during the recent war in the Far East.

1 Annex 28.

The deplorable effects of such use with respect to merchant vessels and neutrals have been pointed out to us by our colleague from China. The conscience of the human race is now awakened, and it has become our absolute duty to take such measures that in the future these terrible events will never be repeated.

Therefore (concluded he) I sincerely beg my colleagues to insist that [425] in the future mines of the unperfected kind that were used in the Far East shall never be allowed.

ARTICLE 10

The stipulations of the present Convention are concluded for a period of five years from the date on which the present Convention takes effect.

The signatory Powers express the hope that they may have occasion to resume consideration of the question of the use of submarine mines before the expiration of the period provided in the foregoing paragraph.

This article may be passed without comment; it was accepted by seven votes against five. His Excellency Count TORNIELLI, with a view to facilitating a revision of the present Convention, especially on account of the technical difficulties which on several occasions have come up in the course of the discussions in the committee, proposed that the Convention be concluded for a period fixed in advance. The term of five years proposed by Rear Admiral SIEGEL was accepted after some hesitation between this term and a longer term proposed by the English delegation, and after the rejection of a proposal of Rear Admiral SHIMAMURA, supported by Colonel TING (by seven votes to five), fixing the duration of the Convention to the next Conference. It is to be noted that Colonel TING gave notice that he would take up this last proposal again before the Commission.

The vau contained in the second paragraph completes to a certain degree the provision of paragraph 1 by urging the conclusion of a new agreement to replace the present Convention; it was adopted unanimously on the motion of Rear Admiral SIEGEL.

IX

Before closing this report it is necessary to speak of a question which was debated in the subcommission and in the committee of examination, but which did not result in the insertion of an express provision in the draft; to wit, the question of the responsibility that might arise out of the laying of automatic submarine contact mines.

Here again we find a proposal on the part of the delegation of the Netherlands,' according to which an article of the following tenor would be added at the end of the regulations:

The loss of non-hostile personnel or material caused by the placing of mines outside of notified regions must be compensated for by the Government that laid them.

In support of this proposal, his Excellency, Vice Admiral RÖELL expressed the wish of the Netherland delegation to cooperate in finding a formula regulating the indemnity due for damage caused by a want of precaution on the

part of Governments. Although a satisfactory solution was very difficult to formulate, he nevertheless believed that the establishment of a principle setting forth the responsibility would be indispensable.

1

An analogous proposal was presented by the delegation of Brazil as an addition to its amendment on the laying of mines by neutrals; Captain BURLAMAQUI said that "the calculation of the damage should be made in an ordinary suit; in case of disagreement the fixing of the indemnity should rest

with the Permanent Court of Arbitration, to which the interested States [426] should send within six months after the accident all documents necessary for the defense of their rights. The payment of the indemnity should take place three months after the Court of Arbitration gives judgment."

The general principle outlined in these proposals was opposed by no one; it was recalled that the Institute of International Law, in its session at Ghent, had also answered the question in this sense. "A violation of one of the preceding rules" (so read the provisional text adopted by the Institute) " entails responsibility therefor on the part of the State at fault."

But on the other hand attention was drawn to the practical difficulties in applying the general rule by which, according to the expression of his Excellency Count TORNIELLI, "he who causes damage unjustifiably should make reparation therefor." It would be decided that in certain regions the two belligerents might lay mines; which of the two would pay the damages if unfortunately a peaceful ship should be destroyed in a region where the two belligerents had made use of submarine mines? And how could it be proved which State was at fault?

In presence of these objections, his Excellency Vice Admiral RÖELL proposed, in order to ensure a wider application of the principle, to make no mention of fault in the placing of mines and to extend the responsibility even to a chance case and without there being any infraction of the adopted rules on the part of the State that has made use of them. The laying of mines should in itself suffice to involve the responsibility of the State that has made use of a weapon so dangerous for peaceful navigation. This extension of the principle could not secure a majority vote; it was rejected by five votes to three, with eight abstentions; several among the naval delegates expressly declared that they must refrain from voting upon the strictly legal question. But on the proposal of his Excellency Mr. VAN DEN HEUVEL it was decided by the committee that it would not be necessary to make any express rule respecting the question, inasmuch as the general principles of law are sufficient to solve all cases that may arise. Indeed, any legitimate mine-laying could not involve liability, and there would be no reason to depart in this matter from rules that are applied to the other operations of war. If there is a question of damage caused by unlawful use in contravention of adopted rules, the general principles of law equally suffice to lay the responsibility upon the State at fault. The question of difficulties in proof should not be brought into the discussion: it could not in any way lead to modifications in the material rules of law to be applied. With this in mind the committee refrained from adding any provision on this subject.

Such, gentlemen, is the project of the regulations we have the honor to submit to the judgment of the Commission: it represents a first attempt to

1 Annex 13.

regulate in an international convention this difficult and relatively new subject. We believe, however, that if it is adopted by all States in its essential provisions and applied in harmony with the spirit that has originated it, an important step forward will be made in the path of progress and civilization.

[427]

Annex B

DRAFT REGULATIONS CONCERNING THE LAYING OF
AUTOMATIC SUBMARINE CONTACT MINES

It is forbidden:

ARTICLE 1

1. To lay unanchored automatic contact mines which do not become harmless one hour at most after the person who laid them ceases to control them; 2. To lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings;

3. To use torpedoes which do not become harmless when they have missed their mark.

ARTICLE 2

It is forbidden to lay anchored automatic contact mines beyond a distance of three nautical miles from low-water mark, throughout the length of the coast-line, as well as along the islands and islets adjacent thereto.

In the case of bays, the zone of three nautical miles shall be measured starting from a straight line drawn across the bay in its part nearest the entrance at the first point where the opening does not exceed ten miles in width.

ARTICLE 3

The limit for the laying of anchored automatic contact mines is extended to a distance of ten nautical miles off military ports and ports where there are either military arsenals or establishments of naval construction or repair.

As military ports are considered those ports which have been decreed as such by the nation to which they belong.

ARTICLE 4

Off the coasts and ports of their adversaries, the belligerents may lay anchored automatic contact mines within the limits indicated in the two preceding articles.

However, they shall not exceed the limit of three nautical miles off ports which are not military ports, unless establishments of naval construction or repair belonging to the State are situated therein.

It is forbidden to lay automatic contact mines off the coasts and ports of the enemy with the sole object of intercepting commercial shipping.