The Convention on the Law of the Sea

It may not seem like it, but in the last couple of weeks, the United States Senate has debated the ratification of a treaty that would limit mines, albeit naval (or sea) mine and not landmines, but mines nonetheless.  The United Nations Convention on the Law of the Seas (UNCLOS) is not intended to be a disarmament treaty by any stretch of the imagination, but it does contain terminology that would mimic some of the requirements of the Mine Ban Treaty (you can tell it’s not a disarmament treaty because the opposition to ratification is talking about issues of sovereignty and not national security).  I would not be confident about the possibility of ratification of UNCLOS, but I think it is important to highlight how the treaty might limit the use of mines.

First, a word about naval mines.  They have been around for at least as long as landmines, in the United States Civil War, Admiral David Farragut famously ordered his fleet to “Damn the torpedoes, full speed ahead” as the ships steamed up the Mississippi River (naval mines were called torpedoes before modern day torpedoes were invented).  In more recent years, mines have been used in the Straits of Hormuz by Iran to blockade oil shipments as a means of sabre-rattling (Bloomberg).  Naval mines can be somewhat smart, some possess directional blasts and selective targeting, but mostly they are passive, victim-activated mines that don’t distiguish between military and commercial ships making them weapons of terror.  Really, they are just anti-tank mines that can withstand water.

So, how does the Convention on the Law of the Sea relate to mines?  There are two major provisions that address and restrict military actions at sea which apply to the use of mines (and I’m borrowing heavily from Jozef Goldblat’s Arms Control here).  First, UNCLOS would allow “innocent passage” for all ships, including warships, through the territorial waters of other states.  This means that a state cannot indiscriminately mine its territorial waters, although a state could create designated shipping lanes.  Second, “unimpeded transit” must be available through straits used for international navigation.  All ships have the right of passage through these waters, no matter what kind of ship they may be.  This means that the use of naval mines in a place like the Straits of Hormuz would be banned by international law and all territorial waters would have designate safe lanes for transit.  This is essentially the same as the requirement under the Mine Ban Treaty for states to identify and mark all mined areas to prevent the accidental entry by persons into such areas. 

Currently, the only treaty that regulates the use of naval mines is the 1907 Hague Convention which restricted contact mines.  Considering the fact that the Hague Convention also limited the use of poisonous gases and that ban was ignored less than a decade later in World War I, I would hazard a guess to say that the provisions of the Hague Convention in regards to naval mines are a bit out of date.  Thus, the limitations on use that emerge from UNCLOS are a great improvement.  Currently 162 countries are parties to UNCLOS (Wikipedia); that’s two more than the Mine Ban Treaty and I would think the US is more likely to accede to UNCLOS than the the Mine Ban Treaty.  So, if we won’t regulate landmines, let’s at least regulate the naval one.

Michael P. Moore, May 31, 2012

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