1 For an indication of the size and scale of major military exhibitions, see, for example, the website for Euronaval 2016, the world meeting of naval technologies, which was held in Paris from 17 to 21 October 2016. Available at: www.euronaval.fr/58/programme (all internet references were accessed in December 2016).

2 The name “dreadnought” – “fear nothing” – refers to the first of a class of new ships that was built for the Royal Navy in the early 1900s. Subsequent fleets of battleships constructed by numerous navies derived from the dreadnought. The vessel which gave its name to this class of ships, HMS Dreadnought, was launched in 1906 and included revolutionary features for its time, such as vastly improved armour and greater numbers of large-calibre guns, as well as being powered by steam turbine. For a detailed analysis of the development, impact and characteristics of the dreadnought see Hough, Richard, Dreadnought: A History of the Modern Battleship, Periscope Publishing, Penzance, 2003Google Scholar.

3 During the era of the battleship, the size of projectile fired from the main armament steadily increased, with the largest gun types firing projectiles of 15-inch (381 mm), 16-inch (406.4 mm) and 18-inch (457.2 mm) calibre. In modern times, the main armament of a warship includes a variety of weapon systems, but the largest guns in regular use range between 3-inch (76.2 mm) and 5-inch (127 mm) calibre. For information relating to naval guns in current use, see, for example, Royal Australian Navy, “Naval Guns”, available at: www.navy.gov.au/fleet/weapons/naval-guns. The history of the Naval Gun Factory at the Washington Navy Yard provides detail on the steadily increasing size of naval guns in the early twentieth century. See Naval History and Heritage Command, Washington Navy Yard: History of the Naval Gun Factory, 1883–1939, available at: www.history.navy.mil/research/library/online-reading-room/title-list-alphabetically/w/washington-navy-yard-history-naval-gun-factory.html.

4 See Goldrick, James, Before Jutland: The Naval War in Northern European Waters, August 1914–February 1915, Naval Institute Press, Annapolis, MD, 2015, pp. 156–158Google Scholar.

5 US Navy, “21st Century U.S. Navy Mine Warfare: Ensuring Global Access and Commerce”, Program Executive Office for Littoral and Mine Warfare, Expeditionary Warfare Directorate, June 2009, p. 8.

6 Sydney J. Freedberg Jr, “Sowing the Sea with Fire: The Threat of Sea Mines”, Breaking Defense, 30 March 2015, available at: http://breakingdefense.com/2015/03/sowing-the-sea-with-fire-how-russia-china-iran-lay-mines-and-how-to-stop-them/.

7 See Truver, Scott C., “Taking Mines Seriously: Mine Warfare in China's Near Seas”, Naval War College Review, Vol. 65, No. 2, 2012, pp. 33–36Google Scholar.

8 Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines, 36 Stat. 2332, The Hague, 18 October 1907 (Hague Convention VIII).

9 Sweden sponsored a number of proposals to develop a Protocol to the Conventional Weapons Convention dealing with the topic of naval mines, but in the face of little international support these proposals have not been progressed. See Doswald-Beck, Louise (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press, Cambridge, 1995 (San Remo Manual), p. 169CrossRefGoogle Scholar; see also Dinstein, Yoram and Domb, Fania (eds), The Progression of International Law: Four Decades of the Israel Yearbook on Human Rights, Brill Nijhoff, Leiden, 2011, p. 375CrossRefGoogle Scholar.

10 Recent papers that deal in greater detail with selected aspects of mine warfare, and provide a contemporary analysis of associated legal issues, were published in the Naval Mine Warfare Forum which appeared in International Law Studies, Vol. 90, 2014, available at: stockton.usnwc.edu/ils/vol90/iss1/.

11 For a description of mine types, see S. C. Truver, above note 7.

12 Dave Majumdar, “Sea Mines: The Most Lethal Naval Weapon on the Planet”, The National Interest, 1 September 2016, available at: nationalinterest.org/blog/the-buzz/sea-mines-the-most-lethal-naval-weapon-the-planet-17559.

13 Ibid. See also S. C. Truver, above note 7, p. 32; Erikson, Andrew S., Goldstein, Lyle J. and Murray, William S., Chinese Mine Warfare: A PLA Navy “Assassin's Mace” Capability, Naval War College, China Maritime Studies No. 3, 2009, p. 1Google Scholar.

14 For an explanation of “Greek Fire”, see: www.britannica.com/technology/Greek-fire.

15 See, for example, the brief commentary regarding the use and effectiveness of naval mines during the period from 1778 until the 1990s in S. C. Truver, above note 7, pp. 30–32.

16 Some scholars attribute the invention of the modern naval mine to the Chinese during the fourteenth century. See, for example, Joseph Needham, Science and Civilisation in China, Vol. 5, Part 7: Military Technology: The Gunpowder Epic, Cambridge University Press, Cambridge, 1986, pp. 192–209Google Scholar. For others, the focus is on the use of naval mines by Spain during the Siege of Antwerp during the sixteenth century: see Roberts, Adam and Guelff, Richard (eds), Documents on the Laws of War, 3rd ed., Oxford University Press, Oxford, 2000, p. 104Google Scholar; Levie, Howard S., Mine Warfare at Sea, Martinus Nijhoff, Dordrecht, 1992, pp. 9–18Google Scholar.

17 See above note 8. See also Haines, Steven, “1907 Hague Convention VIII relative to the Laying of Automatic Submarine Contact Mines”, International Law Studies, Vol. 90, 2014, pp. 418–420Google Scholar. For a brief description of the use of naval mines during the Russo-Japanese war, see H. S. Levie, above note 16, pp. 17–18; see also Letts, David and McLaughlin, Rob, “Law of Naval Warfare”, in Liivoja, Rain and McCormack, Tim (eds), Routledge Handbook of the Law of Armed Conflict, Routledge, London, 2016, p. 271Google Scholar.

18 At the time, the weapons that are now known as “mines” were commonly referred to as “torpedoes” – hence the use of the latter term in the quote attributed to Farragut. See Tamara Moser Melia, “Damn the Torpedoes: A Short History of US Naval Mine Countermeasures, 1777–1991”, Contributions to Naval History No. 4, Naval Historical Center, Washington, DC, 1991, pp. 2, available at: edocs.nps.edu/dodpubs/topic/general/DamnTorpedoesWhole.pdf; H. S. Levie, above note 16, p. 16.

19 See T. M. Melia, above note 18, pp. 1–3.

20 Naval mines were used extensively during the First World War, the Second World War, the Korean War, the Vietnam War, the 1980–88 Iran–Iraq War, the 2003 Gulf War and the 2011 Libyan conflict. See von Heinegg, Wolff Heintschel, “Methods and Means of Naval Warfare in Non-International Armed Conflicts”, in Watkin, Kenneth and Norris, Andrew J. (eds), Non-International Armed Conflict in the Twenty-First Century, Vol. 88, US Naval War College, International Law Studies, Newport, 2012, pp. 211–212Google Scholar; see also selected examples of mine warfare practices from the First World War and Second World War in Jones, Peter, Australia's Argonauts, Echo Books, West Geelong, 2016, pp. 123, 291, 339–340, 368Google Scholar.

21 A recent example of the emphasis placed on the development of modern mine-clearance and warfare capabilities can be seen in the establishment of Australian Mine Warfare Team 16 by the Royal Australian Navy, which is intended to “deliver a sustainable, full-spectrum, deployable mine warfare capability to enable future expeditionary maritime task group operations”. See: news.navy.gov.au/en/Jul2016/Fleet/3079/New-mine-warfare-team-established.htm.

22 See the Proceedings of the Hague Peace Conferences at: www.loc.gov/rr/frd/Military_Law/pdf/Hague-Peace-Conference_1907-V-1.pdf, especially pp. 272–288 in relation to that part of the Conference which dealt with naval mines.

23 S. Haines, above note 17, p. 420.

24 Ibid. See also the San Remo Manual, above note 9, p. 168, where it is contended that at “the time the Convention was drafted, it was deplored that no absolute prohibition could be agreed upon”. See also Y. Dinstein and F. Domb (eds), above note 9, p. 375, where it is noted that “Great Britain had urged outlawing the use of automatic contact mines in open sea areas beyond the belligerents’ territorial waters” as a means of preserving its naval dominance, but this proposal was not supported as “the majority of States represented at The Hague … [were] … unwilling to refrain from the use of this most effective means of naval warfare”.

25 The title of Hague Convention VIII is “relative to the Laying of Automatic Submarine Contact Mines”, but the text of the Convention excludes the word “submarine” and refers only to “automatic contact mines”.

26 See, for example, the San Remo Manual, above note 9, p. 169, where it is noted that “practice by belligerents in the first Gulf War showed that the provisions of the Convention have continued validity in modern naval warfare”. The status of Hague Convention VIII as customary international law is left as an open question by A. Roberts and R. Guelff, above note 16, p. 103, who merely observe that “to the extent that any aspect of the Convention may be considered customary international law, such aspect would be applicable to all States and the Convention's ‘general participation clause’ (Article 7) would cease to be relevant in that regard”. Note also the quotation regarding the Soviet view of Hague Convention VIII in H. Levie, above note 16, p. 175, that “for all its weak points the VIII Hague Convention is regarded as customary international law of the sea”. Haines also considers that “the rules contained in the 1907 Convention are regarded as having attained customary status in relation to automatic contact mines alone”, and he observes that “when combined with other elements of customary law” the result was the production of the rules which are provided in the San Remo Manual: S. Haines, above note 17, p. 443.

27 The first seven articles of Hague Convention VIII are:

28 These “rules” are a summary that has been extracted from the commentary relating to mines as a means of warfare which are identified in the San Remo Manual, above note 9, pp. 169–176.

29 ICJ, Corfu Channel Case (United Kingdom v. Albania), Judgment, ICJ Reports 1949.

30 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986.

31 ICJ, Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, ICJ Reports 2003.

32 A comprehensive analysis of the current relevance of the Corfu Channel case can be found in Heathcote, Sarah, Bannelier, Karine and Christakis, Theodore (eds), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case, Routledge, London, 2012Google Scholar.

33 ICJ, Corfu Channel, above note 29, p. 28.

34 Ibid.

35 Ibid., pp. 32–35. Operation Retail was conducted from 12 to 13 November 1946, when twenty-two submarine contact mines were discovered in the Corfu Channel and removed from their moorings by British forces.

36 At the time, there was no codified agreement on the maximum breadth of a State's territorial waters, but there was wide acceptance of a maximum breadth of 3 nautical miles as a matter of customary international law. Codified agreement regarding the maximum breadth of the territorial sea (12 nautical miles) was finally reached with the entry into force of the United Nations Convention on the Law of the Sea, 1833 UNTS 3, 10 December 1982 (entered into force 16 November 1994) (UNCLOS).

37 ICJ, Corfu Channel, above note 29, pp. 5–7.

38 See the discussion by the Court regarding the factual situation that existed in the Corfu Channel during the period May–October 1946: ibid., pp. 19–22.

39 Ibid., pp. 22–23.

40 Ibid., pp. 32–35

41 UNCLOS, Art. 2.

42 ICJ, Corfu Channel, above note 29, p. 35.

43 Ibid., pp. 18–22.

44 Ibid., pp. 21–22.

45 The two main parties involved in the conflict were the Sandinistas, who came to power in Nicaragua at the conclusion of the revolution of 1978–79, and the contras, which is the generic name given to a number of groups which were attempting to overthrow the Nicaraguan government in the early 1980s. The contras received various types of support from the United States.

46 See ICJ, Nicaragua, above note 30, paras 75–80, 215, 292.

47 Ibid., para. 292, finding 7. Although not central to the theme of this article, as a consequence of the finding regarding the deployment of naval mines, the ICJ also found the United States to be in breach of its obligations under the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua, 367 UNTS 3, 21 January 1956 (entered into force 24 May 1958).

48 ICJ, Nicaragua, above note 30, para. 76.

49 Ibid.

50 Ibid., para. 80.

51 Ibid., para. 292, finding 8.

52 ICJ, Nicaragua, Judgment (Merits), Summary, 27 June 1986, p. 166, available at: www.icj-cij.org/docket/files/70/6505.pdf.

53 ICJ, Nicaragua, above note 30, para. 215.

54 Ibid.; ICJ, Corfu Channel, above note 29, p. 22. The Court noted that such “elementary considerations of humanity” are “even more exacting in peace than in war”.

55 The IAC between Iran and Iraq lasted from 1980 until 1988 and involved maritime, air and ground forces from both States.

56 ICJ, Oil Platforms, above note 31, para. 71.

57 ICJ, Oil Platforms, “Separate Opinion of Judge Simma”, International Law Reports, Vol. 130, p. 500, para. 43.

58 See ICJ, Oil Platforms, above note 31, para. 120, for a comprehensive list of vessels associated with the United States that were attacked in the Gulf between July 1987 and April 1988. The Bridgeton, which was re-flagged from Kuwait to the United States, struck a mine near Kuwait on 24 July 1987. See “Bridgeton is Latest of Five Gulf Tankers to Hit a Mine”, Los Angeles Times, 25 July 1987, available at: articles.latimes.com/1987-07-25/news/mn-994_1_gulf-tankers. The Texaco Caribbean, which was operating under a charter to US interests, struck a mine near Fujairah on 10 August 1987: see “Texaco Supertanker Loaded with Iranian Oil Hits Mine: Cargo Leak, None Hurt, Owner Says”, Los Angeles Times, 10 August 1987, available at: articles.latimes.com/1987-08-10/news/mn-230_1_tanker.

59 ICJ, Oil Platforms, above note 31, para. 63.

60 Ibid.

61 Ibid., para. 67.

62 Ibid., para. 69.

63 Ibid., paras 69–70.

64 Ibid., para. 71.

65 Ibid., para. 72.

66 Ibid.

67 Charter of the United Nations, 1 UNTS XVI, 24 October 1945 (UN Charter), Art. 2(4). For additional detail regarding naval mines and the jus ad bellum, see Letts, David, “Beyond Hague VIII: Other Legal Limits on Naval Mine Warfare”, International Law Studies, Vol. 90, 2014, pp. 449–451Google Scholar.

68 Ibid.

69 This issue was one of the complaints raised against the United States in the Nicaragua case.

70 UN Charter, above note 67, Art. 51.

71 See commentary in the San Remo Manual, above note 9, p. 169, where it is noted that “the provisions of the Convention have continued validity in modern naval warfare”.

72 For extensive analysis of the customary international law status of Hague Convention VIII, see Busuttil, James J., Naval Weapons Systems and the Contemporary Law of War, Oxford University Press, Oxford, 1998, pp. 29–71Google Scholar, especially pp. 78–79.

73 For example, the recently released US Law of War Manual includes repeated reference to Hague Convention VIII as the authority for many of its contents: US Department of Defense, Law of War Manual, 2015 (US Law of War Manual), pp. 909–914. The Manual, which is published online and regularly updated, can be accessed at the US Department of Defense “Publications” web page, available at: www.defense.gov/News/Publications. This practice is also adopted by the UK Ministry of Defence in the Joint Service Manual of the Law of Armed Conflict, JSP 383, 2004, amended in 2013, paras 13.52–13.64, available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/27874/JSP3832004Edition.pdf. A convenient source of access to a selection of military law manuals is provided by the US Naval War College's Stockton e-portal, available at: usnwc.libguides.com/c.php?g=86619&p=557511.

74 See, generally, San Remo Manual, above note 9, pp. 168–176.

75 Ibid., p. 173; see also US Law of War Manual, above note 73, p. 913.

76 For an assessment of the “Gray Zone”, see Hal Brands, “Paradoxes of the Gray Zone”, Foreign Policy Research Institute E-Notes, 5 February 2016, available at: www.fpri.org/article/2016/02/paradoxes-grayzone/.

77 See Votel, Joseph L., Cleveland, Charles T., Connett, Charles T. and Irwin, Will, “Unconventional Warfare in the Gray Zone”, Joint Force Quarterly, Vol. 80, No. 1, 2016Google Scholar.

78 Natalino Ronzitti, “Naval Warfare”, Max Planck Encyclopedia of Public International Law, para. 35, available at: opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e342#law-9780199231690-e342-div1-11.

79 Ronzitti, Natalino (ed.), The Law of Naval Warfare: A Collection of Agreements and Documents with Commentaries, Martinus Nijhoff, Dordrecht, 1988Google Scholar.

80 Ibid., pp. 10–13.

81 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I).

82 The Sri Lanka NIAC is unique in the sense that the Liberation Tigers of Tamil Eelam, which was the name of the group involved in the armed conflict against the Sri Lanka government, had a large and capable naval force (the “Sea Tigers”) that included a mine-laying capability. N. Manoharan, “Tigers with Fins: Naval Wing of the LTTE”, IPCS Article No. 1757, 1 June 2005, available at www.ipcs.org/article_details.php?articleNo=1757&submit=Jump; “Sri Lanka Country Profile: Timeline”, BBC, 21 September 2016, available at: www.bbc.com/news/world-south-asia-11999611; “Liberation Tigers of Tamil Eelam (LTTE)”, South Asia Terrorism Portal, available at: www.satp.org/satporgtp/countries/shrilanka/terroristoutfits/Ltte.htm.

83 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II).

84 See W. H. von Heinegg, above note 20, pp. 217–219.

85 Ibid., p. 219.

86 Schmitt, Michael N., Garraway, Charles H. B. and Dinstein, Yoram, The Manual on the Law of Non-International Armed Conflict with Commentary, International Institute of Humanitarian Law, San Remo, 2006, p. 30Google Scholar, where the authors note the use of a free-floating naval mine as an example of an indiscriminate (and therefore prohibited) weapon in NIAC.

87 Sivakumaran, Sandesh, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2012Google Scholar.

88 Ibid., p. 438.

89 Dinstein, Yoram, Non-International Armed Conflicts in International Law, Cambridge University Press, Cambridge, 2014, p. xiiiCrossRefGoogle Scholar.

90 See comments on this topic in McLaughlin, Rob, “The Law Applicable to Naval Mine Warfare in a Non-International Armed Conflict”, International Law Studies, Vol. 90, 2014, pp. 476–479Google Scholar.

91 ICTY, Prosecutor v. Dusko Tadić, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 127.

92 W. H. von Heinegg, above note 20, p. 221; this principle also follows the reasoning in the Nicaragua case, above note 30, para. 215.

93 AP I, Art. 54(1).

94 AP II, Art. 14; see also Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005, Rule 53, available at: ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule53.

95 Permanent Court of International Justice, The Case of S. S. Lotus (France v. Turkey), Judgment, PCIJ Series A, No. 10, 7 September 1927.

96 The San Remo Manual, above note 9, notes the prohibition contained in Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War, 36 Stat. 2415, The Hague, 18 October 1907, Article 2, as well as the general prohibition on the use of force contained in Article 2(4) of the UN Charter; see also ICJ, Nicaragua, above note 30, para. 215.

97 See Wolff Heintschel von Heinegg, “Minelaying and the Impediment of Passage Rights”, International Law Studies, Vol. 90, 2014, for a detailed analysis of the impact of mine-laying on passage rights, including the impact on neutral States.

98 ICJ, Nicaragua, above note 30, para. 215.

99 W. H. von Heinegg, above note 20, p. 567.

100 See, generally, James Crawford, “State Responsibility”, Max Planck Encyclopedia of Public International Law, available at: opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1093; see also ICJ, Corfu Channel, above note 29, p. 22.

101 UNCLOS, Art. 19(2)(a).

102 Ibid., Art. 19(2)(f).

103 Ibid., Art. 24(1). A coastal State also has sovereignty over its internal waters (see UNCLOS, Arts 2, 8), where no passage rights exist for foreign vessels and therefore the notification requirements may not be as relevant; in the case of archipelagic States, sovereignty exists over archipelagic waters (see UNCLOS, Art. 49) and the notification requirements are synonymous with those in the territorial sea.

104 Ibid., Art. 24(2); see also W. H. von Heinegg, above note 20, p. 572–573.

105 UNCLOS, Art. 25(3).

106 Ibid., Art. 38(1).

107 Ibid., Art. 53.

108 Ibid., Arts 44, 54.

109 See W. H. von Heinegg, above note 20, p. 573.

110 See the discussion on this topic in Boothby, William H., The Law of Targeting, Oxford University Press, Oxford, 2012, p. 106CrossRefGoogle Scholar (including the references in the footnotes).

111 The United States has taken an expansive view by the inclusion of “war-sustaining” capabilities in the definition of military objective: see US Law of War Manual, above note 73, p. 214. A contrary view is expressed in Melzer, Nils, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross, Geneva, 2009, pp. 51–55Google Scholar; see also Camins, Emily, “The Past as Prologue: The Development of the ‘Direct Participation’ Exception to Civilian Immunity”, International Review of the Red Cross, Vol. 90, No. 872, 2008, p. 878CrossRefGoogle Scholar.

112 S. C. Truver, above note 7, pp. 53–54, notes that China, Russia and North Korea all have significantly larger naval mine stockpiles than the United States; perhaps even more worrying is the assertion that more than twenty mine-producing States sell these weapons to other States and non-State actors, with obvious maritime security implications.

113 Ibid., p. 30.

114 It has not been possible to address here all the legal considerations that may potentially affect the legality of the use of naval mines as a means of warfare. Detailed examination of other legal instruments that may be applicable was undertaken in D. Letts, above note 67, pp. 446–474.