The Naval Minefield of Customary International Humanitarian Law

Naval mines are an often unseen engine of war held in the inventories of over fifty countries and a growing number of non-state organizations. Since the Second World War, there have been twenty-four separate naval mining events, with the first of these (the 1946 mining of two Royal Navy warships off the coast of Albania) leading to the International Court of Justice's inaugural case. The only conventional international law currently governing the use of non-nuclear naval mines is the Hague Convention No. VIII of 1907, negotiated to regulate the use of a specific naval weapon built with early twentieth century technology, and used in the circumstances of wars as then fought. Although ratified by only twenty-seven countries, some jurists now transpose this convention to twenty-first century weaponry with global applicability. Through the two specific lenses of belligerent practice as witnessed during armed conflict and state preparations for war, this article examines this transposition of a convention that, by its own text, limits itself to a specific sub-set of naval mines used in wars in which all belligerents are party to the Convention, to the present situation whereby some practitioners of customary international law (CIL) seek to apply its provisions to all types of naval mines in all conflicts. In doing so, this article highlights a divergence of state practice from CIL desire, as well as the potential for contentious application of CIL to constrain nations from using potentially legitimate methods of offence and self-defence.