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Operational Maritime Law 1
Jörg Schildknecht
Rebecca Dickey
Martin Fink
Lisa Ferris Editors
Operational Law in
International Straits
and Current Maritime
Security Challenges
Operational Maritime Law
Volume 1
Editor-in-Chief
Jörg Schildknecht
NATO Centre of Excellence for Operations in Confined and Shallow Waters
Kiel, Germany
Advisory Editors
Wolff Heintschel von Heinegg
European University Viadrina, Frankfurt (Oder), Germany
Steven Haines
University of Greenwich, London, United Kingdom
Sean P. Henseler
Naval War College, Newport, RI, USA
David Letts
Australian National University, Acton ACT, Australia
Rebecca Dickey
United States Navy, Jacksonville, FL, USA
The Operational Maritime Law Volumes, an independent series in the field of public
international maritime law, bridges the gap between operators and legal practitioners
in an effort to further legal understanding and international cooperation for a better,
safer, maritime domain. At first glance international law provides a well-defined
framework for military action. However, it is all too evident from day-to-day
practice in any operation that application is a nontrivial task. It is rather the key
challenge, governed by each particular situation as well as individual legal
interpretations. As modern threats become more complex and naval assets increas-
ingly protect and defend against threats from both State and non-State actors, it
intrinsically becomes more evident that further study and review of current maritime
law is necessary. Bearing in mind that all naval operations are bound by international
law, having knowledge of the legal boundaries of military operations and responses
is paramount. The Operational Maritime Law Volumes are independently peer-
reviewed by international reviewers and contain contributions on topics addressing
all aspects of operational maritime law inside and outside armed conflict. The aim is
to provide a forum for military and legal experts to publish new research advancing
legal discourse, as well as analysis of current issues, in order to create a comprehen-
sive compilation of articles, reports, findings, and documents. The volumes contain
contributions from international experts as authors, ranging from international law
professors and adjunct professors; university researchers; to operational law
practitioners, who provide robust analyses, insights, and offer new conclusions on
topics that are directly relevant for navy operations that are carried out in the 21st
Century. The organizing principles of the series are two-fold. First, to examine so far
unsolved legal questions in an effort to provide guidelines for the conduct of
maritime operations. Second, the volume creates a reference book for general
education on the law of naval operations as well as a comprehensive source for
operational handbooks and military planning. The full range of analysis of opera-
tional maritime law is one of this series’ strengths. The approach in dealing with
multiple legal issues across the domains of command and control, civil military
cooperation, operational necessities and legal restraints, framed in a clear and
consistent principal-agent analysis, and written by scholars across multiple
disciplines, demonstrates how military operations at sea can legally be executed.
The series is focused on the operational and tactical level making it distinctly a
unique work in the market.
Operational Law in
International Straits and
Current Maritime Security
Challenges
Editors
Jörg Schildknecht Rebecca Dickey
NATO Centre of Excellence for United States Navy
Operations in Confined and Shallow Jacksonville, FL, USA
Waters
Kiel, Germany
This is a U.S. government work and its text is not subject to copyright protection in the United States;
however, its text may be subject to foreign copyright protection 2018
All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically
the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on
microfilms or in any other physical way, and transmission or information storage and retrieval,
electronic adaptation, computer software, or by similar or dissimilar methodology now known or
hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or
the editors give a warranty, express or implied, with respect to the material contained herein or for any
errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional
claims in published maps and institutional affiliations.
This Springer imprint is published by the registered company Springer International Publishing AG part of
Springer Nature.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Contents
v
vi Contents
Abstract
This book is the first volume of the Operational Maritime Law series. The series
provides a platform for practitioners and scholars with specific interest in current
operational maritime law issues, to publish research advancing legal discourse, as
well as analysing current issues. The theme of the first volume is Operational
Law in International Straits and Current Maritime Security Challenges. This
volume is broken down into three parts. Part I explores international straits in an
operational law context, Part II discusses current subjects on maritime security
and maritime safety and Part III offers some thoughts on the law of armed conflict
at sea. This introduction highlights today’s maritime challenges in naval
operations and provides an explanation of the relevance of each section of the
publication. In regard to operational maritime law, three strands, in particular,
stand out: maritime security, focus on persons and non-international armed
conflict. Furthermore, in terms of positioning the law applicable for naval
operations within the context of international law, it is argued that this area
may be seen as a sub-regime of the international law of military operations.
M. Fink (*)
Royal Netherlands Navy, University of Amsterdam, Amsterdam, Netherlands
e-mail: finkmd@hotmail.com
R. Dickey
United States Navy, Jacksonville, FL, USA
J. Schildknecht
Centre of Excellence for Operations in Confined and Shallow Waters, Kiel, Germany
L. Ferris
New Zealand Defence Force, Wellington, New Zealand
This is a U.S. government work and its text is not subject to copyright protection in 1
the United States; however, its text may be subject to foreign copyright protection 2018
J. Schildknecht et al. (eds.), Operational Law in International Straits and Current
Maritime Security Challenges, Operational Maritime Law 1,
https://doi.org/10.1007/978-3-319-72718-9_1
2 M. Fink et al.
1 Introduction
What are today’s legal challenges for States and their defence forces in the maritime
domain? How do naval operations adapt to modern conflict to confront the changing
nature of legal challenges while operating at sea? These questions are central to this,
first-in-a-series, publication on operational maritime law. It provides a platform for
practitioners and scholars with specific expertise in current operational maritime law
to publish research advancing legal discourse, as well as analysing current issues on
these matters. The initiative of this series is driven by the Centre of Excellence for
Operations in Confined and Shallow Waters (COE CSW) in Kiel, Germany.1 It is
born out of an understanding that the combination of broad tasking and an array of
growing mission sets for naval assets today and the increasing complexity of
international law at sea create a necessity to further study current international law
applicable to the maritime domain. The first volume’s theme is Operational Law in
International Straits and Current Maritime Security Challenges. To present this first
volume, some introductory remarks are made here with regard to today’s legal
challenges in the maritime dimension.
There is little debate over the existence and relevance of the maritime domain in
modern conflict. But what does ‘modern conflict’ actually mean in a maritime
context? Perhaps one important overarching evolution in conflict from the last two
decades has been the gradual decline of the ‘statist approach’. The rise of non-State
actors and non-international armed conflict developed as one of the main challenges
inherent to today’s conflict. An abundance of legal questions also emerged from this
evolution. These questions spring from issues that originate from trying to fit or
adapt the ius ad bellum and ius in bello to this changing situation and have also
included debates from other sources of international law, such as human rights law.
The maritime domain did not lag in this evolution of the decline of the statist
approach. Although the legal debates, arguably, have not been as vigorous as in
the land dimension, it has not felt the changing face of conflict any less. The recent
focus within the maritime dimension may, arguably, be captured in three distinct
themes: the rise of the importance of the concept of maritime security, the focus on
persons during naval operations and the participation of naval forces in
non-international armed conflict (NIAC). These three themes can be discussed as
separate issues but are clearly related to each other.
1
See the website of the CEO CSW at: http://www.coecsw.org/.
Introduction: Challenges in Operational Maritime Law 3
States analyse the maritime dimension in terms of possible threats that may come
from or arise from the sea and aim to enhance security against those threats.
Maritime security is the enhancement of a State’s security interests in the maritime
dimension. Interestingly, the concept of maritime security takes on a broad under-
standing, and it can be perceived that the sharp classic divide between war and peace
has completely melted away. Threats to a State in the maritime dimension can exist
at all levels and types of conflict. The scope of the threat is broad and is difficult to
concretely define. More often maritime security is defined as a set of pressing
security issues, which may include topics such as illegal fisheries, security and safety
in ports and on board vessels, piracy, boat refugees, terrorism at sea and weapons of
mass destruction at sea.
Today, States generally accept that naval forces play a role in enhancing maritime
security. The military and the more traditional military security issues are, however,
not central to maritime security. The military is one of the many different
instruments to help enhance maritime security. Still, what is interesting to note is
that organisations such as NATO and the EU have through their recent maritime
strategies bound themselves to this idea of a role for naval forces in maritime
security.2 NATO, as a classic collective defence organisation, assumed a role in
counter-piracy operations, became active in the Aegean Sea in relation to refugees,
and recently changed its Article-V Operation Active Endeavour into Operation Sea
Guardian, which aims to build on maritime situational awareness, counter-terrorism
and support to capacity building.3 Oliver Clark, in his chapter on piracy, is exposing
some legal challenges that arise from the involvement of traditional naval forces in
maritime security operations in the context of piracy. Jouko Lehti’s contribution
explains the EU’s legal ventures into helping boat refugees and battling refugee
smuggling and trafficking operations.
What also emerged in this context is the issue of private military companies
(PMCs) at sea to protect merchant vessels and maritime trade. After we have seen
much (legal) discussion in the land dimension with regard to PMCs in Iraq and
Afghanistan, the piracy threat that emerged in the last 10 years in and around the
Indian Ocean has fired this practice also in the maritime dimension, with
accompanying legal debates. Are they a welcome alternative for sea-trade protection
by naval forces? Should they exist next to, or instead of the military? And how will
they meet the legal thresholds for using force? In this volume, Ian Ralby discusses
some of these challenges of regulating the use of PMCs.
Apart from operational level consequences and legal challenges that focus on the
importance of enhancing maritime security, on a strategic-political level maritime
security arguably advances a different point of departure than the classic ‘Grotian’
2
NATO has adopted its Alliance Maritime Strategy (AMS) in 2011. The EU adopted its
EU-Maritime Security Strategy (EUMSS) in 2015.
3
NATO (2016).
4 M. Fink et al.
view of the freedom of the seas. In order to enhance security at sea and act in a timely
manner against threats, one must understand the maritime environment, gain a
sufficient level of awareness of the operating environment and reach a certain level
of control. Often used terms like ‘policing the seas’ and the general acceptance of
so-called ‘maritime security operations’ may have, arguably, caused a silent evolu-
tion in which the strategic-political thinking has changed from freedom of the seas to
controlling the seas. The question is whether this way of thinking is also trickling
through legal concepts and thinking or whether the legal fundamental point of
departure of the freedom of the seas still stands.
2.2 Persons
The importance of enhancing maritime security has also brought about a focus on
persons. Traditional naval warfare and naval operations conducted within the UN
collective security system, such as maritime embargo operations, always had a primary
focus on goods and vessels. Today’s challenge for naval forces in the maritime
dimension is mainly focused on human beings. Warships are tasked to confront
pirates, boat refugees, slave and drug traffickers, mercenaries and terrorists. Naval
operations moved from its traditional goods/vessel focus to person-focused operations.
This focus also provides a new dimension to legal challenges at sea. To name two
of these challenges in particular, firstly, in the past decade, the application of human
rights law in the maritime environment has emerged as an important and well-
discussed legal issue.4 It ranges from issues with regard to fundamental human
rights in relation to piracy and arresting persons for drug trafficking, such as fair
trial and detention rights, to non-refoulement in the context of boat refugees. Some of
these legal challenges that apply human rights law in the maritime dimension have
reached the European Court of Human Rights (ECtHR). In this context of applying
human rights law at sea, the challenges between the interrelationship of human rights
law and the international law of the sea are on different subjects not yet crystallised.
Rick Button, for instance, highlights the challenges of the difference between search
and rescue (SAR) and law enforcement operations. The same question examining
the interrelationship that exists may be present between the provisions on the rescue
of persons in the law of naval warfare, the law of the sea and human rights law.
The second example of a legal challenge that can be mentioned here is the
so-called ‘legal finish’ during naval operations. Interestingly, this issue of the legal
finish appeals back to the way traditional, but unused, prize law is organised, namely
in a ‘wet’ dimension and a ‘dry’ dimension. The wet dimension is the actual action
and legal issues at sea in which a good, a vessel or—today—a person is captured.
The dry dimension is the subsequent actions that need to be considered in the
aftermath of the action. The smooth connection between both dimensions is chal-
lenging in itself. Transferring the person to a State or to another State that is willing
4
See e.g. Treves (2010), Guilfoyle (2010) and Papastavridis (2013).
Introduction: Challenges in Operational Maritime Law 5
to start legal procedures and ensuring that sufficient evidence is produced that holds
in a court of law are examples of this. Apart from the non-use of prize law, during the
‘1990s of the former century, maritime embargo operations that had been the
primary focus in naval operations arguably pushed the notion of a dry dimension
in naval operations further to the background. Today, however, law enforcement
types of operations that naval forces are confronted with have renewed the under-
standing that efforts must be put also into the dry dimension and that a successful
‘legal finish’ to what happens at sea urges for a whole government approach.
If conflict rises to the level of an armed conflict, then current conflicts can often be
characterised as non-international. Fighting against non-State actors has given States
a plethora of legal issues to debate, ranging from detention issues to an expanding set
of conflict types beyond international and non-international, to complex issues on
the legal boundaries of the battlefield. Obviously, these debates also have an impact
in the maritime dimension. At the same time, recent years have seen armed conflicts
erupt in coastal States in which naval forces were part of the military campaign.
Examples are Libya, Yemen, Iraq Gaza and Lebanon. These conflicts confronted
maritime lawyers with interesting legal questions, such as whether the law of naval
warfare, and the law of blockade in particular, actually applies to conflicts in the
Gaza or off the coast of Yemen. How must the right of belligerent visit and search be
understood in the fight against non-State actors? What are the legal possibilities to
detain persons on a foreign-flagged vessel from a State that has nothing to do with
the underlying conflict? These are all questions that surface when having to deal with
non-State actors during a non-international armed conflict at sea.
Having noted above the focus in the maritime dimension during the last 15 years
through three strands that have emerged as a consequence of the decline of the statist
approach, it is something completely different to state that traditional international
armed conflict is a thing of the past. The current situation is, in fact, quite the
contrary. Much on the foreground, for instance, is the tension between States in
the South China Sea, which is an issue that cannot be forgotten in this context. David
Letts, in his chapter, searches for options on how to scale down tensions between
States. Re-emerging tensions between Russia and other States may also develop
beyond the cyber-dimension or a situation where Russia’s military involvement is
kept in the grey zone of conflict. What must, therefore, be underlined is that the
above-mentioned strands have resulted in a certain focus, rather than concluding that
6 M. Fink et al.
other types of warfare belong to history. The challenge for naval operators (and the
military as a whole) is that they have to deal with the complete spectrum of conflict
and crises from peacetime crises to ‘grey-on-grey’ war fighting and from law
enforcement operations to restoring international peace. It merits, therefore, also to
keep in mind that certain aspects of international law may have been snowed under
but still exist, like the forgotten basics of prize law, to which Marcel Schulz devotes a
chapter. This volume also includes multiple authors’ analyses on the use of interna-
tional straits and maritime areas. Another forward-leaning analysis in this context is
Tassilo Singer’s chapter on the legal possibilities of occupational law applied at sea.
One can take different approaches to study the relationship between international
law and the maritime dimension. Broadly seen, there are two approaches that have
emerged. The first is the increasingly generally accepted approach to centralise
military operations and consider what aspects of international law apply and how
they interrelate to each other during military operations. This approach, usually
termed the International Law of Military Operations, has become a well-accepted
approach and term. The term underlines the influence of and the interrelationship
between various branches of international law that regulate military operations.5 The
maritime dimension is an essential aspect of military operations with particular legal
challenges of its own. Similar to international law of military operations, the law that
applies to maritime operations consists of various branches of international law.
Arguably, the particularities and challenges of the maritime dimension and applica-
ble laws make Operational Maritime Law a specific sub-discipline of its own within
the general international law of military operations.6
The second is the approach that centralises around the term of maritime security,
which logically flows from the focus on the strands mentioned above and is reflected
in a legal sub-discipline that is termed Maritime Security Law. Although these terms
may overlap in terms of content, the difference between operational maritime law
and maritime security law lies with the view that the first focuses on security and
military operations, and the second contains a broader scope of issues in which the
military may play a role within security and safety challenges in the maritime
dimension. In the latter, for instance, port security measures, merchant vessel safety
measures and maritime environmental issues belong to this broader legal discipline.
Maritime Security Law, therefore, includes both security and safety issues that
emerge out of the maritime community as a whole. There is merit in combining
security and safety, as Kraska and Pedrozo mention, ‘In many respects the fusion of
5
Gill and Fleck (2015), p. 5.
6
Arguably the term operational maritime law encompasses a broader term than the law of naval
operations, because the ‘naval’ emphases the military, where maritime includes all maritime
activities of a State.
Introduction: Challenges in Operational Maritime Law 7
maritime security and maritime safety is unavoidable. The legal regimes that regulate
each activity are less distinct today than in the past and now share common and
mutually reinforcing objectives.’7 However, as this series is primarily aiming to
unlock the current legal challenges that are connected to the use of naval assets, the
term Operational Maritime Law will be used as the more on point approach and term
for this particular purpose.
This introduction has touched upon only a few challenges that are emerging in the
maritime dimension and has not even scratched the surface of the legal issues that
come with these challenges. For sure, scholars and practitioners will have many
more analyses, findings and debates on their minds that need sharing and a platform
in order to enhance our understanding of international law in the maritime dimen-
sion. Let this be your invitation.
References
Centre of Excellence Confined and Shallow Waters CEO CSW at: http://www.coecsw.org/.
Accessed 7 July 2017
Gill TD, Fleck D (2015) Concept and sources of the international law of military operations. In: Gill
TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn.
Oxford University Press, Oxford, pp 3–13
Guilfoyle D (2010) Counter piracy law enforcement and human rights. Int Comp Law Q
59:141–169
Kraska J, Pedrozo R (2013) International maritime security law. Nijhoff publishers, Martinus
NATO (2016) Operation active endeavour. http://www.nato.int/cps/en/natohq/topics_7932.htm.
Accessed 5 July 2017
Papastavridis E (2013) European convention on human rights and the law of the Sea: the Strasbourg
court in unchartered waters. In: Fitzmaurice M, Merkouris P (eds) The interpretation and
application of the European -convention of human rights: legal and practical implications.
Martinus Nijhoff, Leiden, pp 117–146
Treves T (2010) Human rights and the law of the sea. Berkely J Int Law 28(1):1–13
Martin Fink is a Commander in the Royal Netherlands Navy. He has served in several national
and international legal postings as a military legal advisor, among which were the Netherlands
Maritime Force (NLMARFOR) and the NATO Joint Force Command Naples, and a brief spell at
the Netherlands Ministry of Defence. He has been on several operational tours as a legal advisor,
among which were Iraq, Afghanistan and South Sudan. He has been a lecturer of international law
at the Netherlands Defence Academy and is a researcher at the University of Amsterdam, at the
Amsterdam Centre of International Law (ACIL), and holds a doctor iuris at the same university.
Rebecca Dickey is a Lieutenant in the United States Navy. She has served in operational positions
on board multiple naval vessels and has served internationally as a Legal Advisor at the NATO
Centre of Excellence for Operations in Confined and Shallow Waters (COE CSW). Her operational
tours include Humanitarian Aid missions to Central and South America, as well as deployments to
the South China Sea, East China Sea and Yellow Sea.
7
Kraska and Pedrozo (2013), p. 5.
8 M. Fink et al.
Jörg Schildknecht is a Commander (res.) of the German Navy. He is currently stationed as the
Legal Advisor of the NATO Centre of Excellence for Operations in Confined and Shallow Waters
(COE CSW) in Kiel, Germany. He is a civil servant of the German Navy and has been deployed in
several military missions in his military reserve rank. He has worked for, inter alia, EU NAVFOR
Northwood and Rome, the Mürwik Naval Academy, German Fleet Command Flensburg and the
International Law Department of the German Ministry of Defense in Berlin. He is a specialist in
international law and holds a doctor iuris at the University of Hamburg.
Lisa Ferris is the Director of New Zealand Defence Legal Services. In 2008, she was deployed to
the Arabian Gulf as the Legal Officer aboard the frigate HMNZS TE MANA where she provided
legal advice to the Commanding Officer. In late 2009, Lisa Ferris was deployed to Afghanistan as
the legal officer advising the New Zealand senior national officer on rules of engagement, law of
armed conflict, and general military law issues. Lisa Ferris was deployed to Afghanistan again in
2012 as counsel assisting a Court of Inquiry, and to Iraq in 2015 to support the planning for the
deployment of NZ force elements. In 2013, she was appointed as the Deputy Director Operations
Law and the Chief of Staff for Defence Legal Services. In 2017, Lisa Ferris was promoted to
Colonel and appointed as the Director of Defence Legal Services. On 23 January 2018, Lisa Ferris
was appointed to her present rank. Lisa Ferris holds a Master of Laws with Honours and a Bachelor
of Commerce and Administration from Victoria University and completed United States Marine
Corps Staff College (Extramural) in 2014.
Part I
International Straits
Minelaying and the Impediment of Passage
Rights
Abstract
Naval mines are considered to pose a serious threat to international shipping. This
certainly holds true for free-floating submarine contact mines but not necessarily
for modern naval mines that are highly discriminating weapons. Be that as it may,
the mere fact that naval mines have been laid in a given sea area will impede upon
freedom of navigation. The only international treaty dealing with naval mines is
the 1907 Hague Convention VIII, whose scope is limited to automatic submarine
contact mines and which was concluded at a time when the breadth of the
territorial sea did not exceed 3 nautical miles and other concepts, such as the
EEZ, were unknown. The first part of the present chapter deals with the question
whether and to what extent belligerents are entitled to lay mines in international
straits overlapped by their territorial sea, their archipelagic waters, or in the high
seas. The second part deals with the legality of naval minelaying in times of
peace, which is to be determined in the light of the Corfu Channel judgment, the
international law of the sea, and the positions taken by States in military manuals.
1 Introduction
Naval mines are an extreme threat to innocent shipping. Indeed, not just during armed
conflicts but also in times of peace (e.g., in the Red Sea in 1984) that international
shipping has suffered considerable losses by hitting naval mines, whose presence had
This article was originally published in International Law Studies, 90 Int’L. Stud 544 (2014).
W. Heintschel von Heinegg (*)
Europa-Universität Viadrina, Frankfurt (Oder), Germany
e-mail: heintschelvonheinegg@europa-uni.de
This is a U.S. government work and its text is not subject to copyright protection in 11
the United States; however, its text may be subject to foreign copyright protection 2018
J. Schildknecht et al. (eds.), Operational Law in International Straits and Current
Maritime Security Challenges, Operational Maritime Law 1,
https://doi.org/10.1007/978-3-319-72718-9_2
12 W. Heintschel von Heinegg
not been notified or which were “free-floating” mines. In view of the importance of the
freedom of navigation to the world economy and international security, the naval mine
threat the “hidden menace”1 seems to be intolerable. Therefore, the question arises
whether international law principles and rules provide effective protection of interna-
tional shipping by prohibiting or restricting the use of these means of warfare.
It must not be forgotten, however, that today’s naval mines, which can be
programmed to hit only certain categories of ships or, if sufficient data are available,
even an individual ship, are highly discriminating weapons.2 The use of unanchored
automatic submarine contact mines that do not become harmless within 1 h after they
have been laid, and anchored contact mines that do not become harmless as soon as
they have broken loose, is prohibited. However, even then, such mines do not
necessarily pose an indiscriminate danger to innocent shipping because the “bow
wave brushes the mine clear of the ship.”3 Still, the fact that naval mines have been
laid in a given sea area or even reasonable grounds for suspicion that they may be
present will always have an impact on innocent shipping. Such shipping will either
refrain from using the area or proceed with utmost caution, thus extending the
duration of the voyage. Because minesweeping and countermine operations are a
very challenging, costly, and time-consuming task, even the availability of the
necessary assets to undertake those operations does not mean that the mine threat
can be quickly and effectively eliminated.
This article focuses on two questions. The first concerns the exercise of the
belligerent right of minelaying and its impact on the freedom of navigation enjoyed
by innocent, in particular neutral, shipping. In this context, a brief discussion of the
term “passage rights” is necessary. In the contemporary international law of the sea,
the term is usually used for the rights of innocent passage, transit passage, and
archipelagic sea-lane passage. During international armed conflicts, the belligerents
will often not limit their operations to their national waters but employ methods and
means of naval warfare, including naval mines, in high seas areas. Therefore, the
term “passage rights” is understood here in a broad sense, not including just those
rights but also including the freedom of navigation in sea areas beyond the outer
limits of the territorial sea. The starting point will be 1907 Hague Convention VIII.4
In a second step, the subsequent practice of States will be analyzed with a view to
establishing the contemporary law on belligerent minelaying in the light of passage
rights/freedom of navigation. The law of neutrality, in particular the right of neutral
States to lay mines in their national waters, will be dealt with only marginally.
The second question concerns the laying of naval mines in times of peace.
Operations to lay mines are not easy but rather are a time-consuming task unless
1
This quote is borrowed from Griffith (1981).
2
For a short overview of the technology currently in use, see Levie (1992), pp. 97–115. For further
details, see Fuller and Ewing (2013), p. 115. See also Rios (2005), pp. 11–15.
3
Levie (1992), p. 141, quoting a Report of Experts submitted to the International Court of Justice
(ICJ) in the Corfu Channel case. See also Cowie (1949), pp. 188–189.
4
1907 Hague Convention VIII, 36 Stat. 2332, T.S. No. 541. Although the Convention is limited to
automatic contact mines, there is wide agreement that it is applicable to modern naval mines that are
based on a different technology. See Heintschel von Heinegg (1994).
Minelaying and the Impediment of Passage Rights 13
they are intended to hit vessels indiscriminately. A State may therefore plan to lay
mines well before the outbreak of an international armed conflict in order to be
prepared to counter a threat. Moreover, it may wish to pursue its national security
goals by denying others the use of its territorial sea, including that overlapped by
international straits, and its archipelagic waters, including those within archipelagic
sea lanes. Seemingly, such minelaying might be considered as clearly illegal because
of the international law of the sea, which, certainly during times of peace, guarantees
freedom of navigation not only in high seas areas but also in the territorial sea,
international straits, and archipelagic waters while recognizing that these sea areas
are subject to the territorial sovereignty of the coastal or archipelagic State. A closer
examination shows that international law provides no absolute prohibition on
minelaying during peacetime.
One of the most difficult and contentious issues faced by the 1907 Hague Peace
Conference was the regulation of mine warfare at sea. In view of the experience of
the Russo–Japanese War (1904–1905),5 the delegates were prepared to assure “to
pacific commerce an effectual protection”6 against the effects of naval mines both
during and in the aftermath of an international armed conflict.7 There was, however,
no agreement as to how such protection should be accomplished.
Some delegations proposed far-reaching restrictions that would have resulted in
an almost absolute prohibition on minelaying in high seas areas to safeguard the
freedom of navigation of innocent, in particular neutral, shipping.8 While some of
those proposals were too ambitious to have a realistic chance of being accepted by a
5
The Russo-Japanese War was the first international armed conflict during which naval mines were
used extensively and which had long-lasting detrimental effects on shipping after the end of
hostilities. See Lauterpacht H (ed) Oppenheim L (1952), p. 471; Hoffmann (1977), p. 145;
Colombos (1968), p. 531 and Castrén (1954), p. 275.
6
1907 Hague Proceedings Vol. III, p. 3:399.
7
For the various proposals, see id., Annexes 9–37, at 662–682. Worth mentioning is the British
proposal (Annex 9) according to which the use of automatic contact mines would have been limited
to the territorial seas of the belligerents. Only when laid off military ports could the distance be
extended to 10 nautical miles.
8
Id. It may be added that some of those proposals were far from altruistic or motivated by the wish
to protect innocent shipping. In particular, States with large navies were afraid that the use of naval
mines could jeopardize their naval supremacy. “Behind the proposals of the Conference stood the
politics of force.” Reed (1984), p. 294.
14 W. Heintschel von Heinegg
sufficient number of delegations,9 there was a short period during which it seemed
possible to arrive at a compromise between those who were in favor of limiting the
use of naval mines to certain sea areas and those who wished to prevent such
geographical limitations. The Committee of Examination, in its report to the Third
Commission, proposed four draft articles defining the sea areas in which naval mines
could be laid.10 The committee was guided by the wish to protect as far as possible
innocent shipping without unduly depriving belligerents of the use of an effective,
inexpensive means of naval warfare.11
Eventually, the draft articles that dealt with the sea areas in which minelaying was
to be limited did not obtain the necessary majority. The Third Commission in its
Report to the Conference emphasized:
By thus overturning, through the suppression of Articles 2 to 5, the decision which had
seemed to obtain unanimous support in the committee and according to which a restriction as
to area in the use of anchored mines ought to be expressly set forth in the regulations, there
has been no intention to swerve from the conviction that a restriction as to area also is
imposed upon the employment of such mines. The very weighty responsibility towards
peaceful shipping assumed by the belligerent that lays mines beyond his coastal waters has
been several times placed in evidence, and it has been unanimously recognized that only
“absolute urgent military reasons” can justify such a usage with respect to anchored mines.
“Conscience, good sense, and the sentiment of duty imposed by the principle of humanity”
will be the surest guide for the conduct of mariners of all civilized nations; even without any
written stipulation, there will surely not be lacking in the minds of all the knowledge that the
9
For instance, the Colombian delegation proposed the following:
principle of the liberty of the seas, with the obligations that it carries for those who make use
of this means of communication open to all peoples, is definitively dedicated to humanity.12
This statement probably correctly reflected the general attitude of the delegations
present in The Hague. However, the 1907 Hague Convention VIII contains no
specific provision that prohibits or considerably restricts the laying of mines in
certain sea areas.13 Therefore, the general view is that “Article 3 . . . allows the
implication that, within the terms of the Convention, belligerents may sew [sic]
anchored automatic contact mines anywhere upon the high seas.”14 However, the
preamble should be considered in a systematic interpretation of the operative
provisions. The preamble indicates that the parties were “inspired by the principle
of the freedom of sea routes, the common highway of all nations” and wished “to
restrict and regulate [the] employment [of automatic submarine contact mines] in
order to mitigate the severity of war and to ensure, as far as possible, to peaceful
navigation the security to which it is entitled, despite the existence of war.” In view
of this stated purpose, Article 3(1) can be interpreted as prohibiting vast minefields in
high seas areas if they disproportionally interfere with freedom of navigation.15 The
preamble is, however, subsidiary to the operative provisions, in particular Articles
1 and 3(2). In those, peaceful shipping is protected only against anchored and
unanchored mines that do not become harmless in accordance with Article 1
(1) and (2). And the State’s obligation to render anchored mines harmless “should
they cease to be under surveillance” is far from absolute in character; Article
3 qualifies the obligation by requiring only that they “undertake to do their utmost.”
The same holds true for the obligation to notify shipowners of danger zones, the
requirement being subject to “military exigencies.” Moreover, the preamble itself
reveals that Hague Convention VIII does not provide “all the guarantees desirable.”
Therefore, and in view of the drafting history, the provisions of the Convention
cannot be interpreted as limiting the right of belligerents to use naval mines to certain
sea areas or as prohibiting their use if they unduly interfere with the freedom of
navigation, in particular with certain passage rights.
During the 1907 deliberations, the Netherlands delegation exerted considerable
effort to obtain agreement to a prohibition on the laying of mines in international
straits. Originally, the Dutch delegation had proposed the following provision: “In
all cases straits uniting two open seas cannot be barred.”16 Later, the Dutch delega-
tion modified its proposal: “In any case, the communication between two open seas
12
1907 Hague Proceedings Vol. I, p. 282.
13
Article 2 prohibits the laying of mines off the enemy’s coats and ports only if it serves the “sole
object of intercepting commercial shipping.”
14
Tucker (1955), p. 303.
15
See, e.g., Reed who maintains that 1907 Hague Convention VIII created a standard for the
protection of neutral shipping that “should be interpreted from the viewpoint of a neutral shipper.”
Reed (1984), p. 301. However, he ignores the fact that the obligations of belligerents under Article 3
(2) of the Convention are subject to feasibility and military exigencies.
16
1907 Hague Proceedings Vol. III, Annex 12, p. 663.
16 W. Heintschel von Heinegg
cannot be barred entirely, and passage will be permitted only on conditions which
are indicated by the competent authorities.”17 Those proposals were rejected because
“the proposal of the Netherlands met objections drawn from rights of territorial
sovereignty as well as from conventional stipulations existing on the subject of
certain straits.”18
It follows from the text and drafting history that those delegates who were
opposed to an establishment of fixed limits within which mines could be employed
and who advocated the right of belligerents to make use of anchored mines without
restrictions as to place, even on the high seas, eventually prevailed. Accordingly,
under the 1907 Convention, minelaying could impede the customary right of
innocent passage, even if exercised in an international strait and on the freedom of
navigation in high seas areas.19
Interestingly, the British delegate emphasized that “the right of the neutral to
security of navigation on the high seas ought to come before the transitory right of
the belligerent to employ these seas as a scene of operations of war,” and he
considered the Convention as constituting “only a partial and inadequate solution
of the problem.”20 Since the Convention could not “be regarded as a complete
exposition of the international law on this subject,” it would “not be permissible to
presume the legitimacy of an action for the mere reason that this Convention has not
prohibited it.”21
The German delegate responded by emphasizing that “a belligerent who lays
mines assumes a heavy responsibility towards neutrals and to-wards peaceful
shipping” and that “no one will resort to this instrument of warfare unless for military
reasons of an absolutely urgent character,” but it would be a great mistake to issue
rules the strict observance of which might be rendered impossible by the law of facts.
It is of the first importance that the international maritime law “. . . contain only
clauses the execution of which is possible from a military point of view and is
possible even in exceptional circumstances. Otherwise, the respect for law would be
lessened and its authority undermined.”22
Despite the obvious disagreement regarding the right to use naval mines in high
seas areas, seemingly both delegates agreed that the laying of mines that interfered
with innocent, in particular neutral, shipping is subject to considerations of military
necessity “of an absolutely urgent character.” In other words, minelaying in high
seas areas would, according to both delegates, clearly be unlawful if not justified by a
17
Id., Annex 22, p. 671.
18
Id., p. 408.
19
For further discussion of the Convention, see Haines (2014).
20
Statement by Sir Ernest Satow, Delegate of Great Britain, at the Eighth Plenary Meeting (Oct.
9, 1907). 1907 Hague Proceedings Vol. I, p. 275.
21
Id.
22
Statement by Baron Marschall von Bieberstein, Delegate of Germany. Id. p. 275, 76. He added
that “military acts are not solely governed by stipulations of international law. There are other
factors: Conscience, good sense, and the sentiment of duty imposed by principles of humanity will
be the surest guides for the conduct of sailors and will constitute the most effective guaranty against
abuses.”
Minelaying and the Impediment of Passage Rights 17
23
But see Tucker (1955), p. 303, who states that “it is only mine laying of an openly indiscriminate
character that is prohibited i.e., mines sewn [sic] without regard to any definite military operation
save that of endangering all peaceful shipping, and without any reasonable assurance of control or
surveillance.”
24
See Lauterpacht H (ed) Oppenheim L (1952), p. 473; Colombos (1968), pp. 533–534; Castrén
(1954), p. 277; Tucker (1955), p. 303–305; Levie (1992), pp. 65–89 and Cowie (1949), pp. 43–87,
119–165.
25
Mallison (1968), p. 68.
26
For the contrary view, see Baxter (1970), p. 97.
27
Levie (1992), pp. 78–83. See also Reed (1984), p. 306 (who maintains that the practice of the two
world wars has contributed to a customary rule according to which minefields in high seas areas
must always be notified).
28
On April 9, 1940 the German government provided notification of a “mine warning area” in the
Skagerrak between Lindesnes, Lodbjerg and Flekkeröy, Sandnäs Hage; on September 3, 1939
regarding the Southern entrance of the Sound and the Great Belt; and on April 29, 1940 regarding
the Kattegat. The British government allowed passage through the Strait of Dover and the Firth of
Forth.
29
Supra note 17 and accompanying text.
30
Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9).
18 W. Heintschel von Heinegg
Similarly, the mining of the Red Sea in 198431 is not relevant to this analysis as it did
not occur during an armed conflict.
Since the armed conflicts during which naval mines were used have been
addressed extensively elsewhere,32 it suffices here to highlight only those aspects
of the conflicts relevant to the examination of the relationship between the belliger-
ent right to employ naval mines and the passage rights of innocent neutral shipping.
Hence, the Korean War (1950–1953)33 need not be addressed because the mines laid
off Wonsan to prevent an amphibious landing operation resulted in no lasting
impediment to passage rights. The same holds true for the mining in 1972 of three
North Vietnamese ports during the Vietnam War34 (although it is worth mentioning
that neutral ships were given a period of grace to leave35) and of the approaches to
Port Stanley during the Falklands/Malvinas conflict (1982).36 During the 2011
conflict in Libya, Quaddafi’s forces laid mines off the port of Misurata, probably
in order to prevent food and other supplies from reaching the city.37 This conduct
was considered unlawful, not because of its impact on the freedom of navigation but
because of its disregard for humanitarian considerations and for UN Security
Council Resolution 1973, which obliged Libyan authorities to “ensure the rapid
and unimpeded pas-sage of humanitarian assistance.”38
The mining of the Suez Canal during the Arab–Israeli Wars (1967 and 1973) also
need not be considered here because the Suez Canal is subject to a special treaty
regime39 and its passage is not governed by the law of the sea. However, the 1973
conflict is notable in that both the Gulf of Suez and the Gulf of Aqaba were closed by
minefields.40 Interestingly, their closure attracted considerably less attention than did
the closure of the Suez Canal.
The use of naval mines during the 1971 India–Pakistan conflict still remains
widely unnoticed even though at least five neutral merchant vessels were sunk by
mines.41 The mining of the Bay of Bengal by India and of the delta of the Ganges
River by Pakistan did not extend beyond the territorial seas of the belligerents and
had no broader impact on passage rights or on the freedom of navigation.
31
See Truver (1985), pp. 115–117.
32
See authorities cited infra notes 33–48.
33
See Cagle and Manson (1957), pp. 121–122.
34
See Levie (1992), pp. 144–157 and Swayze (1977).
35
Mallison and Mallison (1976), p. 102.
36
See Levie (1992), p. 159 and Fenrick (1985).
37
See Heintschel von Heinegg (2012), pp. 211, 217.
38
S.C. Res. 1973, 6, U.N. Doc. S/RES/1973 (Mar. 17, 2011).
39
Convention Respecting the Free Navigation of the Suez Maritime Canal, Gr. Brit.-Ger.-Austria-
Hung.-Spain-Fr.-It.-Neth.-Russ.-Turk., Oct. 29, 1888, reprinted in (1909) AJIL Supplement 3:123.
40
See Levie (1992), pp. 157–158.
41
See Rohwer (1974), pp. 24–26.
Minelaying and the Impediment of Passage Rights 19
The India–Pakistan conflict and the use of naval mines against Nicaraguan ports
in 198442 support the position that the laying of mines in the enemy’s territorial sea
and internal waters is permissible under the law of armed conflict. As has been
rightly stated by Judge Schwebel in his dissent to the Nicaragua judgment, a
“belligerent is entitled . . . to take reasonable measures (a fortiori, within the internal
waters of the opposing belligerent) to restrict shipping, including third flag shipping,
from using the ports of its opponent. Thus the use of mines in hostilities is not of
itself unlawful.”43 Judge Schwebel also emphasized, however, that as against third
States whose shipping was damaged or whose nationals were injured by mines laid
by or on behalf of the United States, the international responsibility of the United
States may arise. Third States were and are entitled to carry on commerce with
Nicaragua, and their ships are entitled to make use of Nicaraguan ports. If the United
States were to be justified in taking blockade-like measures against Nicaraguan
ports, as by mining, it could only be so if its mining . . . were publically and officially
announced by it and if international shipping was duly warned by it about the fact
that mines would be or had been laid in specified waters.44
The use of naval mines during the Iran–Iraq War (1980–1988)45 is the most
important post-Second World War armed conflict in which the question of the
legality of belligerent interference with the freedom of navigation of neutral shipping
has arisen. In response to the laying of naval mines in the Persian Gulf, the
international community made use of a variety of measures to enforce the right of
freedom of navigation, ranging from convoying their merchant vessels46 and mine-
sweeping operations47 to the use of force against Iranian vessels that had been caught
laying unanchored mines and two oil platforms that had been used as bases for
operations.48 These enforcement measures were considered lawful as either self-
defense actions or countermeasures in response to the illegal use by Iran of unan-
chored mines and of nonnotified anchored mines. It may be concluded, therefore,
that had Iran refrained from the use of unanchored mines and had it properly
provided notification of the minefields, the international community’s response to
the mining activities would not have been based on the illegality of the Iranian
42
For the facts established by the ICJ, see Military and Paramilitary Activities in and against
Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 76–80 (June 27) [hereinafter Nicaragua]. See also
Levie (1992), pp. 162–166.
43
Nicaragua, supra note 42, 236 (Schwebel J dissenting opinion).
44
Id., 238.
45
For a comprehensive analytical assessment of the legal issues of the Iran-Iraq War, see the
contributions in de Guttry and Ronzitti (1993). The Iran-Iraq War (1980–1988) and the Law of
Naval Warfare. Cambridge University Press, Cambridge; Dekker and Post (1992). The Gulf War of
1980–1988. Kluwer Academic Publishers, Dordrecht.
46
Nordquist and Wachenfeld (1988).
47
Ronzitti (1987).
48
For the facts established by the ICJ, see Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 23–25
(Nov. 6). See also Levie (1992), pp. 166–70.
20 W. Heintschel von Heinegg
conduct. Thus, the international community’s rationale for the actions taken does not
support a conclusion that the mining of the Persian Gulf was unlawful per se.
An important facet of the Iran–Iraq conflict concerns the status of the Strait of
Hormuz and the question of whether during an international armed conflict mines
may be laid in international straits. In October 1982, the Iranian government, in a
letter to the UN Security Council, declared:
As certain rumours have been spread concerning the Straits of Hormuz, which might disturb
international navigation in that area, the Ministry of Foreign Affairs of the Islamic Republic
of Iran reaffirms that Iran is committed to keeping the Straits open to navigation and will not
spare any effort for the purpose of achieving this end.49
This statement is remarkable in that Iran has consistently taken the position that
the regime of transit passage set forth in Article 38 of the 1982 United Nations
Convention on the Law of the Sea50 does not apply to the Strait of Hormuz because
Iran has merely signed, not ratified, the Convention.51 At the same time, the
49
U.N. Security Council, Charge D’Affaires of the Permanent Mission of Iran, Letter dated Oct.
21, 1980 from the Charge D’Affaires of the Permanent Mission of Iran to the United Nations to the
Secretary General. U.N. Doc. S/14226 (Oct. 22, 1980).
50
United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N.T.S. 1833:397 [hereinafter
UNCLOS]. The Convention entered into force on November 16, 1994. As of November 12, 2014,
166 States, including the Holy See, are parties to it.
51
Upon signature, Iran made the following declaration:
Notwithstanding the intended character of the Convention being one of general application
and of law making nature, certain of its provisions are merely product of quid pro quo which
do not necessarily purport to codify the existing customs or established usage (practice)
regarded as having an obligatory character. Therefore, it seems natural and in harmony with
article 34 of the 1969 Vienna Convention on the Law of Treaties, that only states parties to
the Law of the Sea Convention shall be entitled to benefit from the contractual rights created
therein.
The above considerations pertain specifically (but not exclusively) to the following:
The right of Transit passage through straits used for international navigation (Part III, Section 2,
article 38).
Declarations and Statements, Oceans & Law of the Sea. http://www.un.org/Depts/los/conven
tion_agreements/convention_declarations.htm (than follow Iran hyperlink). Accessed 8 June 2017.
It should also be noted that Oman, which borders the Strait of Hormuz as well, neither explicitly
accepts nor rejects the applicability of the transit passage regime. Upon signature, Oman declared:
It is the understanding of the Government of the Sultanate of Oman that the application of the
provisions of articles 19, 25, 34, 38 and 45 of the Convention does not preclude a coastal State from
taking such appropriate measures as are necessary to protect its interest of peace and security.
Id. (then follow Oman upon signature hyperlink).
Upon ratification on August 17, 1989, Oman declared that the
Sultanate of Oman exercises full sovereignty over its territorial sea, the space above the territorial
sea and its bed and subsoil, pursuant to the relevant laws and regulations of the Sultanate and in
conformity with the provisions of this Convention concerning the principle of innocent passage.
Id. (then follow Oman upon ratification/accession hyperlink).
Minelaying and the Impediment of Passage Rights 21
statement does not necessarily establish that Iran will not take belligerent
(or peacetime) measures that would prevent or impede passage through the Strait
of Hormuz and, thus, Iran’s acceptance of a legal obligation to refrain from such
actions.
52
See UNCLOS, supra note 50, art. 52.
53
For a similar assessment of the prior notification requirement, see Reed (1984), pp. 306–307 (who
rightly maintains that during the two world wars all “war zones,” including those enforced by the
use of naval mines, had been notified by the belligerents.).
54
1907 Hague Convention VIII, supra note 4, art. 4.
22 W. Heintschel von Heinegg
sea-lane passage.55 Notification of the laying of armed mines and the arming of
prelaid mines in neutral national waters is required.
The 1907 Hague Convention VIII does not provide a comprehensive legal frame-
work on minelaying during an international armed conflict since its scope of
applicability ratione materiae is limited to “automatic submarine contact mines.”
Although it is possible to deduce from the Convention a number of principles that
also apply to modern naval mines,56 an identification of contemporary international
law is not limited to a dynamic interpretation of the Convention. Rather, it is
indispensable to also consider those publications that shed light on what States are
willing to accept as the current state of the law applicable to minelaying during
international armed conflicts. These include the San Remo Manual,57 as well as the
military manuals of the U.S. Navy,58 Canada,59 the United Kingdom,60 and
Germany.61 While the manuals selected for examination is rather limited, there are
two reasons why they may still serve as reference points. First, the U.S. Navy manual
(NWP, 1-14) has been adopted by a number of other States, which consider its
provisions to correctly reflect the current state of the law. Second, these manuals are
the most current statements on the international law applicable to mine warfare.
55
SRM (1995), p. 29.
56
See Heintschel von Heinegg (1994), pp. 59–70.
57
SRM (1995), supra note 55. See also the related Explanation, which provides additional detail
concerning each of the Manual’s basic rules.
58
NWP 1-14M (2007).
59
Canadian Manual (2001).
60
UK Manual (2004).
61
German Manual (2013).
62
SRM (1995), pp. 15, 16, 86; NWP 1-14M (2007), 7.3, 9.2.3; Canadian Manual (2001), 805, 806;
UK Manual (2004), 13.8, 13.9, 13.58 and German Manual (2013), 1205, 1214, 1216.
63
SRM (1995), p. 87; Canadian Manual (2001), 839 and UK Manual (2004), 13.59.
Minelaying and the Impediment of Passage Rights 23
mines off a neutral’s coast is obliged to provide for safe routes through the minefield,
e.g., by leaving open convenient channels or by providing piloting services. It must
be emphasized, however, that the laying of mines in close proximity to a neutral
territorial sea will be lawful only in exceptional circumstances, for example, in a
confined sea area that is used by the enemy.
64
SRM (1995), supra note 55, 10; Canadian Manual (2001), supra note 59, 703(1); UK Manual
(2004), supra note 60, 13.6; German Manual (2013), supra note 61, 1011.
65
SRM (1995), supra note 55, 85; Canadian Manual (2001), supra note 59, 836 and UK Manual
(2004), supra note 60, 13.57.
66
SRM (1995), supra note 55, 83; Canadian Manual (2001), supra note 59, 838 and UK Manual
(2004), supra note 60, 13.55. According to NWP 1-14M (2007), 9.2.3, international notification
must be made only, “as soon as military exigencies permit.” It is unclear whether the United States
believes the safety of neutral shipping is subsidiary to considerations of military necessity.
However, a minefield most often serves the purpose of “modifying geography” and of preventing
other vessels from using a certain area of the seas. This can be accomplished only, if the respective
minefield is notified in advance. The German Manual does not expressly mention notification.
However, according to paragraph 1046, any minelaying is subject to the principles of effective
surveillance, risk control and warning. The latter implies an obligation to notify the laying of armed
mines or the arming of prelaid mines.
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a jelenetet, de amint a zöld hajnal egyre világosabbá vált, a földi kép
annál jobban elhalványodott.
Amint a visszhangzó lépések egyre közelebb és közelebb
hangzottak mellette, Plattner maga köré tekintett és látta, hogy a
sápadt arcok egész tömege gyűlt össze körülötte a völgy sötét
mélyéből és valamennyien a szobában lévő két embert figyelték.
Soha ekkora tömegét az Élők Őrzőinek még nem látta. Egyik felük
csak a haldoklót figyelte a szobában, másik felük viszont végtelen
haraggal az asszony mozdulatait követte, amint lázasan kutatott
valami után, amit sehogyan sem tudott kézrekeríteni. Olyan nagy
tömegekben gomolyogtak körülötte az Őrző Lelkek, hogy egyszer-
másszor megakadályozták azt is, hogy a szobába lásson, de azért
Plattner világosan emlékszik rá, hogy bent a szobában minden
végtelenül csendes volt.
Két lélek arcára különösen jól emlékszik még ma is. Az egyik egy
asszony fehér és tiszta vonalú arca volt, amely valamikor talán hideg
és kegyetlen lehetett, de amelyet most egy a földön nem ismert
okosság lágyított puhára. A másik talán az asszony atyja lehetett.
Mindkettőjük figyelmét szemmel láthatólag teljesen lekötötte valami
gyűlöletes cselekedet szemmel kísérése, amelyet nem tudtak
megakadályozni. A férfi mögött szintén egy csomó fej gomolygott,
de ezek már nem lehettek szülők, hanem olyan lények arcai, akik
valamikor talán maguk is ridegek voltak, de akiket a fájdalom
megtisztított. Egészen az előtérben egy lány arca tünt fel, de ezen
sem fájdalom, sem harag nem látszott, csak végtelen türelem és
fáradtság, amint – ahogyan Plattner mondja – szabadulását várta.
Plattnert cserben hagyta leíróképessége, amikor ennek a kísérteties
tömegnek a gyülekezéséről beszélt.
A lelkek a harang szavára gyültek össze és szinte pillanatok alatt
verődtek össze a szoba körül. Úgy látszik, Plattner olyan izgatott volt,
hogy egészen önkénytelenül, idegességében kivette a zöld port
tartalmazó üveget a zsebéből és maga elé tartotta, – de erre már
nem emlékszik egészen világosan.
A lépések egyszerre elhallgattak. Plattner hiába várta a
következőt, néma csönd ülte meg a tájat és azután egyszerre a
váratlan csöndben, mint egy éles, vékony penge, keresztülvágott a
harang szava. A hangra a fejek tömegei jobbra-balra kezdtek
imbolyogni és hangos sírás hallatszott körülötte. Az asszony a
szobából mindebből semmit sem hallott, mert valamit lázas
gyorsasággal a gyertya lángjába tartott. A harang második
kondulására minden egészen elhalványodott és jeges széláramlat
szórta szét a Lelkek Őrzőit. A harmadik kondulásra valami hirtelen
keresztülnyúlt rajta az ágy felé. Bizonyosan mindnyájan hallottak
már fénysugárról. Nos, ez olyan volt, mint valami sötétségsugár és
amikor Plattner jobban odanézett, tisztán kivett egy sötét kart és
kezet.
A zöld nap most már majdnem delelőjére érkezett és a szobában
lefolyó eseményeket odaátról már alig lehetett kivenni, de Plattner
látta, amit az ágy fehérje görcsösen megvonaglik és az asszony válla
fölött meglepetten visszatekint az ágy irányába.
A hideg szél gyorsan magával vitte az árnyakat a völgy mélyében
fekvő templom felé és Plattner ekkor hirtelen megértette a fekete
kar jelentőségét, amely átnyúlt válla fölött és megragadta
zsákmányát. Nem mert a háta mögé nézni, hogy meglássa az Árnyat
a kar mögött. Kétségbeesett erőfeszítéssel, szemeit eltakarva,
rohanni kezdett, de talán még húsz lépést sem tehetett, mikor
megbotlott egy kőben és elesett. Előre bukott kezeire, az üveg
pozdorjává zúzódott a földön és a zöld por abban a percben
felrobbant. A következő pillanatban kábultan és számtalan sebből
vérezve, ismét az iskola kertjében találta magát szemtől szemben
ülve Lidgettel.
Ezzel Plattner története véget ért. Igyekeztem olyan sorrendben
leírni a dolgokat, ahogyan Plattner mesélte nekem és gondosan
óvakodtam attól, hogy bármit is változtassak akár annak stílusán,
akár felépítésén, pedig könnyű lett volna a szenzáció kedvéért úgy
beállítani a dolgot a haldokló ágyánál, mint valami összeesküvést,
amelyben Plattner is szerepet játszott, de eltekintve attól, hogy egy
egészen kivételes, de különben igaz történetbe csempésztem volna
hamisításokat, az ilyen dolgok, véleményem szerint, csak rontottak
volna azon a hatáson, amelyet ez a sötét világ a maga zöld
világításával és az össze-vissza gomolygó Élők Őrzőivel az olvasóra
tesz.
Hozzá kell tennem, hogy tényleg az iskola közelében egy házban
bekövetkezett az a haláleset, amelyről Plattner beszélt történetében,
és pedig pontosan abban a pillanatban, amikor Plattner visszatért a
földre. Egy adótisztviselő halt meg és özvegye, aki jóval fiatalabb
volt megboldogult uránál, a mult hónapban férjhezment egy
környékbeli állatorvoshoz. Miután a történet, amelyet itt
elmondottam, különböző formákban szájról szájra járt az egész
faluban, az asszony fölhatalmazott arra, hogy nevét kiírjam, de
kikötötte, hogy ő határozottan tagadja, hogy bármi is igaz volna
Plattner elbeszéléséből, ami megboldogult férje utolsó óráit illeti. Ő
nem égetett el semmiféle végrendeletet – bár Plattner soha nem is
vádolta ilyesmivel – és néhai férjének csak egy végrendelete volt,
amelyet közvetlenül házasságkötésük után készített. Annyi bizonyos,
hogy Plattner leírása a halottas szoba bútorzatáról teljesen pontos
volt, ami egészen csodálatos, ha tekintetbe vesszük, hogy Plattner
előzőleg soha nem járt a házban.
Még egy dolog van, amelyről idáig nem szóltam, de miután nem
szeretném, ha babonás vagy túlságosan hiszékeny színben tünnék
fel, most erre is felhívom az olvasók figyelmét. Plattner kilenc napi
távolléte e világból kétségbevonhatatlan tény, de ez még nem
bizonyítja egyben azt is, hogy elbeszélése is mindenben megfelel a
valóságnak, mert könnyen lehetséges, hogy még e földi téren kívül is
hallucinálnak az emberek.
Ezt az olvasónak sohasem szabad elfelednie.
A gyönyörü öltöny
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