Submarines and ASW in Time of War

Attempts to place legal restraints on the employment of the submarine in time of war have been a losing battle.[1] Submarines are in principle subject to the same requirements as surface vessels with respect to visit, search, and seizure of neutral merchant ships, to the placing of passengers and crew in a place of safety before the destruction of vessels, the rescue of survivors,[2] and the bombardment of military objectives on shore.[3] But the increasing intensity of economic warfare at sea, the need for secrecy, and, in the strictly legal sphere, the imposition of reprisals for alleged prior violation of the law by the other belligerent have so weakened the force of the law that it is of doubtful validity today.

There is no law with respect to ASW in time of war, except for restraints on the use of force by merchant ships to resist visit and search[4]—another archaic survival in the law. The law does not regulate, except in incidental respects, the combat of warships.

The duties of neutral states with respect to belligerent naval vessels in their internal seas and territorial waters in time of war has been described above. Neutral states have also established neutrality zones off their coasts and outside their territorial waters in time of war. The Declaration of Panama, adopted by the Foreign Ministers of the American Republics in 1939, declared that defined waters adjacent to the American Continent should be kept “free from the commission of any hostile act by any non-American belligerent nation, whether such hostile act be attempted or made from land, sea or air.”[5]

The one anti-submarine weapon which is regulated, albeit in a clumsy and inadequate way, is the unanchored and anchored automatic contact mine. A Convention drawn up at The Hague in 1907[6] forbids the laying of “unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them” and of “anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings.”[7] The Convention does not apply by its literal terms to acoustic and magnetic mines. Since the only restriction on the purpose of mine-laying under the terms of the treaty is that they may not be laid for the “sole object” of intercepting commercial shipping,68 the use of mines against submarines is not precluded. There is no firm requirement in the Convention of adequate notice to commercial shipping. The Convention thus puts no obstacle in the way of mining of the high seas and of the territorial seas and internal waters of the belligerents against submarines and warships or, for that matter, against merchant ships, enemy and neutral. The objections that have been raised to the establishment of war zones and the laying of mine fields in the high seas or territorial seas are based on the effect of these activities on the shipping of neutral states, rather than on any impact they may have upon the navies of the contending states.69

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  • [1] The literature on both sides of the Atlantic is extensive. Two excellent surveys, both by formernaval officers, are W. T. Mallison, Studies in the Law of Naval Warfare: Submarines in General andLimited Wars, 58 Naval War College, International Law Studies (1966), and R. W. Tucker, The Lawof War and Neutrality at Sea, 50 id. 63—68 (1955).
  • [2] London Naval Protocol on Submarine Warfare, signed Nov. 6, 1936, 3 Bevans 298.
  • [3] Hague Convention on Bombardment by Naval Forces in Time ofWar, signed Oct. 18, 1907, 36Stat. 2351, T.S. No. 542, 1 Bevans 681.
  • [4] C. J. Colombos, ATreatise on the Law of Prize 292—293 (3d ed. 1949).
  • [5] Approved Oct. 3, 1939, 34 Am. J. Int’l L. Supp. 17 (1940).
  • [6] Hague Convention on Laying of Automatic Submarine Contact Mines, signed Oct. 19, 1907,36 Stat. 2332, T.S. No. 541, 1 Bevans 669; see H.S. Levie, Mine Warfare and International Law, 24Naval War College Review, No. 236, p. 27 (1972).
  • [7] Art. 1.
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