CHAPTER II THE OPEN SEA
I RISE OF THE FREEDOM OF THE OPEN SEA
Grotius, II. c. 2, § 3—Pufendorf, IV. c. 5, § 5—Vattel, I. §§ 279-286—Hall, § 40—Westlake, I. pp. 161-162—Phillimore, I. §§ 172-179—Taylor, §§ 242-246—Walker, Science, pp. 163-171—Wheaton, §§ 186-187—Hartmann, § 64—Heffter, § 73—Stoerk in Holtzendorff, II. pp. 483-490—Bonfils, Nos. 573-576—Despagnet, No. 401—Pradier-Fodéré, II. Nos. 871-874—Nys, II. pp. 132-139—Mérignhac, II. pp. 498-505—Calvo, I. §§ 347-352—Fiore, II. Nos. 718-726—Martens, I. § 97—Perels, § 4—Azuni, "Diritto maritimo" (1796), 1, c. I. Article III.—Cauchy, "Le droit maritime international considéré dans ses origines," 2 vols. (1862)—Nys, "Les origines du droit international" (1894), pp. 377-388—Castel, "Du principe de la liberté des mers" (1900), pp. 1-15—Fulton, "The Sovereignty of the Seas" (1911), pp. 1-56.
Former Claims to Control over the Sea.
§ 248. In antiquity and the first half of the Middle Ages navigation on the Open Sea was free to everybody. According to Ulpianus,[480] the sea is open to everybody by nature, and, according to Celsus,[481] the sea, like the air, is common to all mankind. Since no Law of Nations in the modern sense of the term existed during antiquity and the greater part of the Middle Ages, no importance is to be attached to the pronouncement of Antoninus Pius, Roman Emperor from 138 to 161:—"Being[482] the Emperor of the world, I am consequently the law of the sea." Nor is it of importance that the Emperors of the old German Empire, who were considered to be the successors of the Roman Emperors, styled themselves among other titles "King of the Ocean." Real claims to sovereignty over parts of the Open Sea begin, however, to be made in the second half of the Middle Ages. And there is no doubt whatever that at the time when the modern Law of Nations gradually rose it was the conviction of the States that they could extend their sovereignty over certain parts of the Open Sea. Thus, the Republic of Venice was recognised as the Sovereign over the Adriatic Sea, and the Republic of Genoa as the Sovereign of the Ligurian Sea. Portugal claimed sovereignty over the whole of the Indian Ocean and of the Atlantic south of Morocco, Spain over the Pacific and the Gulf of Mexico, both Portugal and Spain basing their claims on two Papal Bulls promulgated by Alexander VI. in 1493, which divided the new world between these Powers. Sweden and Denmark claimed sovereignty over the Baltic, Great Britain over the Narrow Seas, the North Sea, and the Atlantic from the North Cape to Cape Finisterre.
[480] L. 13, pr. D. VIII. 4: mari quod natura omnibus patet.
[481] L. 3 D. XLIII. 8: Maris communem usum omnibus hominibus ut aeris.
[482] L. 9 D. XIV. 2: ἐγὼ μὲν τοῦ κόσμου κύριος, ὁ δὲ νόμος τῆς θαλάσσης.
These claims have been more or less successfully asserted for several hundreds of years. They were favoured by a number of different circumstances, such as the maintenance of an effective protection against piracy for instance. And numerous examples can be adduced which show that such claims have more or less been recognised. Thus, Frederick III., Emperor of Germany, had in 1478 to ask the permission of Venice for a transportation of corn from Apulia through the Adriatic Sea.[483] Thus, Great Britain in the seventeenth century compelled foreigners to take out an English licence for fishing in the North Sea; and when in 1636 the Dutch attempted to fish without such licence, they were attacked and compelled to pay £30,000 as the price for the indulgence.[484] Again, when Philip II. of Spain was in 1554 on his way to England to marry Queen Mary, the British Admiral, who met him in the "British Seas," fired on his ship for flying the Spanish flag. And the King of Denmark, when returning from a visit to James I. in 1606, was forced by a British captain, who met him off the mouth of the Thames, to strike the Danish flag.
[483] See Walker, "History," I. p. 163.
[484] This and the two following examples are quoted by Hall, § 40.
Practical Expression of claims to Maritime Sovereignty.
§ 249. Maritime sovereignty found expression in maritime ceremonials at least. Such State as claimed sovereignty over a part of the Open Sea required foreign vessels navigating on that part to honour its flag[485] as a symbol of recognition of its sovereignty. So late as 1805 the British Admiralty Regulations contained an order[486] to the effect that "when any of His Majesty's ships shall meet with the ships of any foreign Power within His Majesty's Seas (which extend to Cape Finisterre), it is expected that the said foreign ships do strike their topsail and take in their flag, in acknowledgment of His Majesty's sovereignty in those seas; and if any do resist, all flag officers and commanders are to use their utmost endeavours to compel them thereto, and not suffer any dishonour to be done to His Majesty."
[485] See Fulton, "The Sovereignty of the Seas" (1911), pp. 38 and 204-208.
[486] Quoted by Hall, § 40.
But apart from maritime ceremonials maritime sovereignty found expression in the levying of tolls from foreign ships, in the interdiction of fisheries to foreigners, and in the control or even the prohibition of foreign navigation. Thus, Portugal and Spain attempted, after the discovery of America, to keep foreign vessels altogether out of the seas over which they claimed sovereignty. The magnitude of this claim created an opposition to the very existence of such rights. English, French, and Dutch explorers and traders navigated on the Indian Ocean and the Pacific in spite of the Spanish and Portuguese interdictions. And when, in 1580, the Spanish ambassador Mendoza lodged a complaint with Queen Elizabeth against Drake for having made his famous voyage to the Pacific, Elizabeth answered that vessels of all nations could navigate on the Pacific, since the use of the sea and the air is common to all, and that no title to the ocean can belong to any nation, since neither nature nor regard for the public use permits any possession of the ocean.[487]
[487] See Walker, "History," I. p. 161. It is obvious that this attitude of Queen Elizabeth was in no way the outcome of the conviction that really no State could claim sovereignty over a part of the Open Sea. For she herself did not think of dropping the British claims to sovereignty over the "British Seas." Her arguments against the Spanish claims were made in the interest of the growing commerce and navigation of England, and any one daring to apply the same arguments against England's claims would have incurred her royal displeasure.
Grotius's Attack on Maritime Sovereignty.
§ 250. Queen Elizabeth's attitude was the germ out of which grew gradually the present freedom of the Open Sea. Twenty-nine years after her answer to Mendoza, in 1609, appeared Grotius's short treatise[488] "Mare liberum." The intention of Grotius was to show that the Dutch had a right of navigation and commerce with the Indies in spite of the Portuguese interdictions. He contends that the sea cannot be State property, because it cannot really be taken into possession through occupation,[489] and that consequently the sea is by nature free from the sovereignty of any State.[490] The attack of Grotius was met by several authors of different nations. Gentilis defends Spanish and English claims in his "Advocatio Hispanica," which appeared in 1613. Likewise, in 1613 William Welwood defends the English claims in his book, "De dominio maris." John Selden wrote his "Mare Clausum sive de dominio maris" in 1618, but it was not printed until 1635. Sir John Burroughs published in 1653 his book, "The Sovereignty of the British Seas proved by Records, History, and the Municipal Laws of this Kingdom." And in defence of the claims of the Republic of Venice Paolo Sarpi published in 1676 his book "Del dominio del mare Adriatico." The most important of these books defending maritime sovereignty is that of Selden. King Charles I., by whose command Selden's "Mare Clausum" was printed in 1635, was so much impressed by it that he instructed in 1629 his ambassador in the Netherlands to complain of the audacity of Grotius and to request that the author of the "Mare liberum" should be punished.[491]
[488] Its full title is: "Mare liberum, seu de jure quod Batavis competit ad Indicana commercia Dissertatio," and it is now proved that this short treatise is only chapter 12 of another work of Grotius, "De jure praedae," which was found in manuscript in 1864 and published in 1868. See above, § [53].
[490] Grotius was by no means the first author who defended the freedom of the sea. See Nys, "Les origines du droit international," pp. 381 and 382.
[491] See Phillimore, I. § 182.
The general opposition to Grotius's bold attack on maritime sovereignty prevented his immediate victory. Too firmly established were the then recognised claims to sovereignty over certain parts of the Open Sea for the novel principle of the freedom of the sea to supplant them. Progress was made regarding one point only—namely, freedom of navigation of the sea. England had never pushed her claims so far as to attempt the prohibition of free navigation on the so-called British Seas. And although Venice succeeded in keeping up her control of navigation on the Adriatic till the middle of the seventeenth century, it may be said that in the second half of that century navigation on all parts of the Open Sea was practically free for vessels of all nations. But with regard to other points, claims to maritime sovereignty continued to be kept up. Thus the Netherlands had by article 4 of the Treaty of Westminster, 1674, to acknowledge that their vessels had to salute the British flag within the "British Seas" as a recognition of British maritime sovereignty.[492]
[492] See Hall, § 40, p. 152, note 1.
Gradual Recognition of the Freedom of the Open Sea.
§ 251. In spite of opposition, the work of Grotius was not to be undone. All prominent writers of the eighteenth century take up again the case of the freedom of the Open Sea, making a distinction between the maritime belt which is to be considered under the sway of the littoral States, and, on the other hand, the High Seas, which are under no State's sovereignty. The leading author is Bynkershoek, whose standard work, "De dominio maris," appeared in 1702. Vattel, G. F. de Martens, Azuni, and others follow the lead. And although Great Britain upheld her claim to the salute due to her flag within the "British Seas" throughout the eighteenth and at the beginning of the nineteenth century, the principle of the freedom of the Open Sea became more and more vigorous with the growth of the navies of other States; and at the end of the first quarter of the nineteenth century this principle became universally recognised in theory and practice. Great Britain silently dropped her claim to the salute due to her flag, and with it her claim to maritime sovereignty, and became now a champion of the freedom of the Open Sea. When, in 1821, Russia, who was then still the owner of Alaska in North America, attempted to prohibit all foreign ships from approaching the shore of Alaska within one hundred Italian miles, Great Britain and the United States protested in the interest of the freedom of the Open Sea, and Russia dropped her claims in conventions concluded with the protesting Powers in 1824 and 1825. And when, after Russia had sold Alaska in 1867 to the United States, the latter made regulations regarding the killing of seals within Behring Sea, claiming thereby jurisdiction and control over a part of the Open Sea, a conflict arose in 1886 with Great Britain, which was settled by arbitration[493] in 1893 in favour of the freedom of the Open Sea.
II CONCEPTION OF THE OPEN SEA
Field, article 53—Westlake, I. p. 160—Moore, II. § 308—Rivier, I. pp. 234-235—Pradier-Fodéré, II. No. 868—Ullmann, § 101—Stoerk in Holtzendorff, II. p. 483.
Discrimination between Open Sea and Territorial Waters.
§ 252. Open Sea or High Seas[494] is the coherent body of salt water all over the greater part of the globe, with the exception of the maritime belt and the territorial straits, gulfs, and bays, which are parts of the sea, but not parts of the Open Sea. Wherever there is a salt-water sea on the globe, it is part of the Open Sea, provided it is not isolated from, but coherent with, the general body of salt water extending over the globe, and provided that the salt water approach to it is navigable and open to vessels of all nations. The enclosure of a sea by the land of one and the same State does not matter, provided such a navigable connection of salt water as is open to vessels of all nations exists between such sea and the general body of salt water, even if that navigable connection itself be part of the territory of one or more littoral States. Whereas, therefore, the Dead Sea is Turkish and the Aral Sea is Russian territory, the Sea of Marmora is part of the Open Sea, although it is surrounded by Turkish land and although the Bosphorus and the Dardanelles are Turkish territorial straits, because these are now open to merchantmen of all nations. For the same reason the Black Sea[495] is now part of the Open Sea. On the other hand, the Sea of Azoff is not part of the Open Sea, but Russian territory, although there exists a navigable connection between it and the Black Sea. The reason is that this connection, the Strait of Kertch, is not according to the Law of Nations open to vessels of all nations, since the Sea of Azoff is less a sea than a mere gulf of the Black Sea.[496]
[494] Field defines in article 53: "The High Seas are the ocean, and all connecting arms and bays or other extensions thereof not within the territorial limits of any nation whatever."
[496] So say Rivier, I. p. 237, and Martens, I. § 97: but Stoerk in Holtzendorff, II. p. 513, declares that the Sea of Azoff is part of the Open Sea.
Clear Instances of Parts of the Open Sea.
§ 253. It is not necessary and not possible to particularise every portion of the Open Sea. It is sufficient to state instances which clearly indicate the extent of the Open Sea. To the Open Sea belong, of course, all the so-called oceans—namely, the Atlantic, Pacific, Indian, Arctic, and Antarctic. But the branches of the oceans, which go under special names, and, further, the branches of these branches, which again go under special names, belong likewise to the Open Sea. Examples of these branches are: the North Sea, the English Channel, and the Irish Sea; the Baltic Sea, the Gulf of Bothnia, the Gulf of Finland, the Kara Sea,[497] and the White Sea; the Mediterranean and the Ligurian, Tyrrhenian, Adriatic, Ionian, Marmora, and Black Seas; the Gulf of Guinea; the Mozambique Channel; the Arabian Sea and the Red Sea; the Bay of Bengal, the China Sea, the Gulf of Siam, and the Gulf of Tonking; the Eastern Sea, the Yellow Sea, the Sea of Japan, and the Sea of Okhotsk; the Behring Sea; the Gulf of Mexico and the Caribbean Sea; Baffin's Bay.
[497] The assertion of some Russian publicists that the Kara Sea is Russian territory is refuted by Martens, I. § 97. As regards the Kara Straits, see above, § [194].
It will be remembered that it is doubtful as regards many gulfs and bays whether they belong to the Open Sea or are territorial.[498]
III THE FREEDOM OF THE OPEN SEA
Hall, § 75—Westlake, I. pp. 160-166—Lawrence, § 100—Twiss, I. §§ 172-173—Moore, II. §§ 309-310—Taylor, § 242—Wheaton, § 187—Bluntschli, §§ 304-308—Heffter, § 94—Stoerk in Holtzendorff, II. pp. 483-498—Ullmann, § 101—Bonfils, Nos. 572-577—Pradier-Fodéré, II. Nos. 874-881—Rivier, I. § 17—Nys, II. pp. 140-166—Calvo, I. § 346—Fiore, II. Nos. 724, 727, and Code, Nos. 928-930—Martens, I. § 97—Perels, § 4—Testa, pp. 63-66—Ortolan, "Diplomatie de la mer" (1856), I. pp. 119-149—De Burgh, "Elements of Maritime International Law" (1868), pp. 1-24—Castel, "Du principe de la liberté des mers" (1900), pp. 37-80.
Meaning of the Term "Freedom of the Open Sea."
§ 254. The term "Freedom of the Open Sea" indicates the rule of the Law of Nations that the Open Sea is not and never can be under the sovereignty of any State whatever. Since, therefore, the Open Sea is not the territory of any State, no State has as a rule a right to exercise its legislation, administration, jurisdiction,[499] or police[500] over parts of the Open Sea. Since, further, the Open Sea can never be under the sovereignty of any State, no State has a right to acquire parts of the Open Sea through occupation,[501] for, as far as the acquisition of territory is concerned, the Open Sea is what Roman Law calls res extra commercium.[502] But although the Open Sea is not the territory of any State, it is nevertheless an object of the Law of Nations. The very fact alone of such a rule exempting the Open Sea from the sovereignty of any State whatever shows this. But there are other reasons. For if the Law of Nations were to content itself with the rule which excludes the Open Sea from possible State property, the consequence would be a condition of lawlessness and anarchy on the Open Sea. To obviate such lawlessness, customary International Law contains some rules which guarantee a certain legal order on the Open Sea in spite of the fact that it is not the territory of any State.
[499] As regards jurisdiction in cases of collision and salvage on the Open Sea, see below, §§ [265] and [271].
[500] See, however, above, § [190], concerning the zone for Revenue and Sanitary Laws.
[501] Following Grotius (II. c. 3, § 13) and Bynkershoek ("De dominio maris," c. 3), some writers (for instance, Phillimore, I. § 203) maintain that any part of the Open Sea covered for the time by a vessel is by occupation to be considered as the temporary territory of the vessel's flag State. And some French writers go even beyond that and claim a certain zone round the respective vessel as temporary territory of the flag State. But this is an absolutely superfluous fiction. (See Stoerk in Holtzendorff, II. p. 494; Rivier, I. p. 238; Perels, pp. 37-39.)
[502] But the subsoil of the bed of the Open Sea can well, through driving mines and piercing tunnels from the coast, be acquired by a littoral State. See above, § [221], and below, §§ [287c] and [287d].
Legal Provisions for the Open Sea.
§ 255. This legal order is created through the co-operation of the Law of Nations and the Municipal Laws of such States as possess a maritime flag. The following rules of the Law of Nations are universally recognised, namely:—First, that every State which has a maritime flag must lay down rules according to which vessels can claim to sail under its flag, and must furnish such vessels with some official voucher authorising them to make use of its flag; secondly, that every State has a right to punish all such foreign vessels as sail under its flag without being authorised to do so; thirdly, that all vessels with their persons and goods are, whilst on the Open Sea, considered under the sway of the flag State; fourthly, that every State has a right to punish piracy on the Open Seas even if committed by foreigners, and that, with a view to the extinction of piracy, men-of-war of all nations can require all suspect vessels to show their flag.
These customary rules of International Law are, so to say, supplemented by Municipal Laws of the maritime States comprising provisions, first, regarding the conditions to be fulfilled by vessels for the purpose of being authorised to sail under their flags; secondly, regarding the details of jurisdiction over persons and goods on board vessels sailing under their flags; thirdly, concerning the order on board ship and the relations between the master, the crew, and the passengers; fourthly, concerning punishment of ships sailing without authorisation under their flags.
The fact that each maritime State has a right to legislate for its own vessels gives it a share in keeping up a certain order on the Open Sea. And such order has been turned into a more or less general order since the large maritime States have concurrently made more or less concordant laws for the conduct of their vessels on the Open Sea.
Freedom of the Open Sea and war.
§ 256. Although the Open Sea is free and not the territory of any State, it may nevertheless in its whole extent become the theatre of war, since the region of war is not only the territories of the belligerents, but likewise the Open Sea, provided that one of the belligerents at least is a Power with a maritime flag.[503] Men-of-war of the belligerents may fight a battle in any part of the Open Sea where they meet, and they may capture all enemy merchantmen they meet on the Open Sea. And, further, the jurisdiction and police of the belligerents become through the outbreak of war in so far extended over vessels of other States, that belligerent men-of-war may now visit, search, and capture neutral merchantmen for breach of blockade, contraband, and the like.
[503] Concerning the distinction between theatre and region of war, see below, [vol. II. § 70].
However, certain parts of the Open Sea can become neutralised and thereby be excluded from the region of war. Thus, the Black Sea became neutralised in 1856 through article 11 of the Peace Treaty of Paris stipulating:—"La Mer Noire est neutralisée: ouverte à la marine marchande de toutes les nations, ses eaux et ses ports sont formellement et à perpétuité interdites au pavillon de guerre, soit des puissances riveraines, soit de tout autre puissance." Yet this neutralisation of the Black Sea was abolished[504] in 1871 by article 1 of the Treaty of London, and no other part of the Open Sea is at present neutralised.
Navigation and ceremonials on the Open Sea.
§ 257. The freedom of the Open Sea involves perfect freedom of navigation for vessels of all nations, whether men-of-war, other public vessels, or merchantmen. It involves, further, absence of compulsory maritime ceremonials on the Open Sea. According to the Law of Nations, no rights whatever of salute exist between vessels meeting on the Open Sea. All so-called maritime ceremonials on the Open Sea[505] are a matter either of courtesy and usage or of special conventions and Municipal Laws of those States under whose flags vessels sail. There is in especial no right of any State to require a salute from foreign merchantmen for its men-of-war.[506]
[505] But not within the maritime belt or other territorial waters. See above, §§ [122] and [187].
[506] That men-of-war can on the Open Sea ask suspicious foreign merchantmen to show their flags has nothing to do with ceremonials, but with the supervision of the Open Sea in the interest of its safety. See below, § [266].
The freedom of the Open Sea involves likewise freedom of inoffensive passage[507] through the maritime belt for merchantmen of all nations, and also for men-of-war of all nations in so far as the part concerned of the maritime belt forms a part of the highways for international traffic. Without such freedom of passage, navigation on the Open Sea by vessels of all nations would be a physical impossibility.
Claim of States to Maritime Flag.
§ 258. Since no State can exercise protection over vessels that do not sail under its flag, and since every vessel must, in the interest of the order and safety of the Open Sea, sail under the flag of a State, the question has been raised whether not only maritime States but also such States as are not littoral States of the Sea have a claim to a maritime flag. There ought to be no doubt[508] that the freedom of the Open Sea involves a claim of any State to a maritime flag. At present no non-littoral State actually has a maritime flag, and all vessels belonging to subjects of such non-littoral States sail under the flag of a maritime State. But any day might bring a change. The question as to the claim to a maritime flag on the part of a non-littoral State was discussed in Switzerland. When, in 1864, Swiss merchants in Trieste, Smyrna, Hamburg, and St. Petersburg applied to the Swiss Bundesrath for permission to have their vessels sailing under the Swiss flag, the Bundesrath was ready to comply with the request, but the Swiss Parliament, the Bundesversammlung, refused the necessary consent. In 1889 and 1891 new applications of the same kind were made, but Switzerland again refused to have a maritime flag.[509] She had no doubt that she had a claim to such flag, but was aware of the difficulties arising from the fact that, having no seaports of her own, vessels sailing under her flag would in many points have to depend upon the goodwill of the maritime Powers.[510]
[508] See, however, Westlake, I. p. 165.
[509] See Salis, "Schweizerisches Bundesrecht" (1891), vol. I. p. 234.
[510] The question is discussed by Calvo, I. § 427; Twiss, I. §§ 197 and 198; and Westlake, I. p. 165.
Such States as have a maritime flag as a rule have a war flag different from their commercial flag; some States, however, have one and the same flag for both their navy and their mercantile marine. But it must be mentioned that a State can by an international convention be restricted to a mercantile flag only, such State being prevented from having a navy. This is the position of Montenegro[511] according to article 29 of the Treaty of Berlin of 1878.
[511] See above, § [127], but it is doubtful whether this restriction is still in existence, since article 29 has, after the annexation of Bosnia and Herzegovina by Austria in 1908, been modified by the Powers, so that the port of Antivari and the other Montenegrin waters are now no longer closed to men-of-war of all nations. See R.G. XVII. (1910), pp. 173-176.
Rationale for the Freedom of the Open Sea.
§ 259. Grotius and many writers who follow[512] him establish two facts as the reason for the freedom of the Open Sea. They maintain, first, that a part of the Open Sea could not effectively be occupied by a Navy and could therefore not be brought under the actual sway of any State. And they assert, secondly, that Nature does not give a right to anybody to appropriate such things as may inoffensively be used by everybody and are inexhaustible, and, therefore, sufficient for all.[513] The last argument has nowadays hardly any value, especially for those who have freed themselves from the fanciful rules of the so-called Law of Nature. And the first argument is now without basis in face of the development of the modern navies, since the number of public vessels which the different States possess at present would enable many a State to occupy effectively one part or another of the Open Sea. The real reason for the freedom of the Open Sea is represented in the motive which led to the attack against maritime sovereignty, and in the purpose for which such attack was made—namely, the freedom of communication, and especially commerce, between the States which are severed by the Sea. The Sea being an international highway which connects distant lands, it is the common conviction that it should not be under the sway of any State whatever. It is in the interest of free intercourse[514] between the States that the principle of the freedom of the Open Sea has become universally recognised and will always be upheld.[515]
[512] See, for instance, Twiss, I. § 172, and Westlake, I. p. 160.
[513] See Grotius, II. c. 2, § 3.
[515] Connected with the reason for the freedom of the Open Sea is the merely theoretical question whether the vessels of a State could through an international treaty be prevented from navigating on the whole or on certain parts of the Open Sea. See Pradier-Fodéré, II. Nos. 881-885, where this point is exhaustively discussed.
IV JURISDICTION ON THE OPEN SEA
Vattel, II. § 80—Hall, § 45—Westlake, I. pp. 166-176—Lawrence, § 100—Halleck, p. 438—Taylor, §§ 262-267—Walker, § 20—Wheaton, § 106—Moore, II. §§ 309-310—Bluntschli, §§ 317-352—Heffter, §§ 78-80—Stoerk in Holtzendorff, II. pp. 518-550—Liszt, § 26—Bonfils, Nos. 578-580, 597-613—Despagnet, Nos. 422-430—Mérignhac, II. pp. 505-511—Pradier-Fodéré, V. Nos. 2376-2470—Rivier, I. § 18—Nys, II. pp. 139-165—Calvo, I. §§ 385-473—Fiore, II. Nos. 730-742, and Code, Nos. 1001-1027—Martens, II. §§ 55-56—Perels, § 12—Testa, pp. 98-112—Ortolan, "Diplomatie de la mer" (1856), II. 254-326—Hall, "Foreign Powers and Jurisdiction of the British Crown" (1894), §§ 106-109.
Jurisdiction on the Open Sea mainly connected with Flag.
§ 260. Jurisdiction on the Open Sea is in the main connected with the maritime flag under which vessels sail. This is the consequence of the fact stated above[516] that a certain legal order is created on the Open Sea through the co-operation of rules of the Law of Nations with rules of the Municipal Laws of such States as possess a maritime flag. But two points must be emphasised. The one is that this jurisdiction is not jurisdiction over the Open Sea as such, but only over vessels, persons, and goods on the Open Sea. And the other is that jurisdiction on the Open Sea is, although mainly, not exclusively connected with the flag under which vessels sail, because men-of-war of all nations have, as will be seen,[517] certain powers over merchantmen of all nations. The points which must therefore be here discussed singly are—the claim of vessels to sail under a certain flag, ship-papers, the names of vessels, the connection of vessels with the territory of the flag State, the safety of traffic on the Open Sea, the powers of men-of-war over merchantmen of all nations, and, lastly, shipwreck.
Claim of Vessels to sail under a certain Flag.
§ 261. The Law of Nations does not include any rules regarding the claim of vessels to sail under a certain maritime flag, but imposes the duty upon every State having a maritime flag to stipulate by its own Municipal Laws the conditions to be fulfilled by those vessels which wish to sail under its flag. In the interest of order on the Open Sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the Open Sea is freedom for such vessels only as sail under the flag of a State. But a State is absolutely independent in framing the rules concerning the claim of vessels to its flag. It can in especial authorise such vessels to sail under its flag as are the property of foreign subjects; but such foreign vessels sailing under its flag fall thereby under its jurisdiction. The different States have made different rules concerning the sailing of vessels under their flags.[518] Some, as Great Britain[519] and Germany, allow only such vessels to sail under their flags as are the exclusive property of their citizens or of corporations established on their territory. Others, as Argentina, admit vessels which are the property of foreigners. Others again, as France, admit vessels which are in part the property of French citizens.[520]
[518] See Calvo, I. §§ 393-423, where the respective Municipal Laws of most countries are quoted.
[519] See section 1 of the Merchant Shipping Act, 1894 (27 and 28 Vict. c. 60), and sections 51 and 80 of the Merchant Shipping Act, 1906 (6 Ed. VII. c. 7).
[520] The Institute of International Law adopted, at its meeting at Venice—see Annuaire, XV. (1896), p. 201—in 1896, a body of ten rules concerning the sailing of merchantmen under the maritime flag of a State under the heading:—"Règles relatives à l'usage du pavillon national pour les navires de commerce."
But no State can allow such vessel to sail under its flag as already sails under the flag of another State. Just as a vessel not sailing under the flag of a State, so a vessel sailing under the flags of two different States does not enjoy any protection whatever. Nor is protection enjoyed by such vessel as sails under the flag of a State which, like Switzerland, has no maritime flag. Vessels belonging to persons who are subjects of States without a maritime flag must obtain authority to sail under some other State's flag, if they wish to enjoy protection on the Open Sea. And any vessel, although the property of foreigners, which sails without authority under the flag of a State, may be captured by the men-of-war of such State, prosecuted, punished, and confiscated.[521]
[521] See the case of the steamship Maori King v. His Britannic Majesty's Consul-General at Shanghai, L.R., App. c. 1909, p. 562, and sections 69 and 76 of the Merchant Shipping Act, 1894 (27 and 28 Vict. c. 60).
Ship Papers.
§ 262. All States with a maritime flag are by the Law of Nations obliged to make private vessels sailing under their flags carry on board so-called ship papers, which serve the purpose of identification on the Open Sea. But neither the number nor the kind of such papers is prescribed by International Law, and the Municipal Laws of the different States differ much on this subject.[522] But, on the other hand, they agree as to the following papers:—
[522] See Holland, "Manual of Naval Prize Law," §§ 178-194, where the papers required by the different maritime States are enumerated.
(1) An official voucher authorising the vessel to sail under its flag. This voucher consists of a Certificate of Registry, in case the flag State possesses, like Great Britain and Germany for instance, a register of its mercantile marine; in other cases the voucher consists of a "Passport," "Sea-letter," "Sea-brief," or of some other document serving the purpose of showing the vessel's nationality.
(2) The Muster Roll. This is a list of all the members of the crew, their nationality, and the like.
(3) The Log Book. This is a full record of the voyage, with all nautical details.
(4) The Manifest of Cargo. This is a list of the cargo of a vessel, with details concerning the number and the mark of each package, the names of the shippers and the consignees, and the like.
(5) The Bills of Lading. These are duplicates of the documents which the master of the vessel hands over to the shipper of the goods at shipment.
(6) The Charter Party, if the vessel is chartered. This is the contract between the owner of the ship, who lets it wholly or in part, and the charterer, the person who hires it.
Names of Vessels.
§ 263. Every State must register the names of all private vessels sailing under its flag, and it must make them bear their names visibly, so that every vessel may be identified from a distance. No vessel must be allowed to change her name without permission and fresh registration.[523]
[523] As regards Great Britain, see sections 47 and 48 of the Merchant Shipping Act, 1894, and sections 50 and 53 of the Merchant Shipping Act, 1906.
Territorial Quality of Vessels on the Open Sea.
§ 264. It is a customary rule of the Law of Nations that men-of-war and other public vessels of any State are, whilst on the Open Sea as well as in foreign territorial waters, in every point considered as though they were floating parts of their home States.[524] Private vessels are only considered as though they were floating portions of the flag State in so far as they remain whilst on the Open Sea in principle under the exclusive jurisdiction of the flag State. Thus the birth of a child, a will or business contract made, a crime[525] committed on board ship, and the like, are considered as happening on the territory and therefore under the territorial supremacy of the flag[526] State. But although they appear in this respect as though they were, private vessels are in fact not floating portions of the flag State. For in time of war belligerent men-of-war can visit, search, and capture neutral private vessels on the Open Sea for breach of blockade, contraband, and the like, and in time of peace men-of-war of all nations have certain powers[527] over merchantmen of all nations.
[524] See above, § [172], and below, §§ [447]-451.
[525] See Jordan in R.I. 2nd Ser. X. (1908), pp. 340-362 and 481-500.
[526] Since, however, individuals abroad remain under the personal supremacy of their home State, nothing can prevent a State from legislating as regards such of its citizens as sail on the Open Sea on board a foreign vessel.
[527] See below, § [266]. The question of the territoriality of vessels is ably discussed by Hall, §§ 76-79.
Safety of Traffic on the Open Sea.
§ 265. No rules of the Law of Nations exist as yet[528] for the purpose of preventing collisions, saving lives after collisions, and the like, but every State possessing a maritime flag has legislated for the conduct on the Open Sea of vessels sailing under its flag concerning signalling, piloting, courses, collisions, and the like. Although every State can legislate on these matters independently of other States, more and more corresponding rules have been put into force by all the States during the second half of the nineteenth century, following the lead given by Great Britain through section 25 of the Merchant Shipping Act Amendment Act of 1862, the "Regulations for preventing Collisions at Sea" which accompany this Act, and, further, Sections 16 to 20 of the Merchant Shipping Act, 1873.[529] And the "Commercial Code of Signals for the Use of all Nations," published by Great Britain in 1857, has been adopted by all maritime States. In 1889 a maritime Conference took place at Washington, at which eighteen maritime States were represented and which recommended a body of rules for preventing collisions at sea to be adopted by the single States,[530] and a revision of the Code of Signals. These regulations were revised in 1890 by a British Committee appointed by the Board of Trade,[531] and, after some direct negotiations between the Governments, most maritime States have made corresponding regulations by their Municipal Laws.[532] And a new and revised edition of "The International Code of Signals" was published by the British Board of Trade, in conformity with arrangements with other maritime Powers, in 1900, and is now in general use.[533]
[528] It is to be expected that matters will soon undergo a change, for the Conference of the International Maritime Committee, which met at Brussels in September 1910 and where all the maritime States of Europe, the United States of America, most of the South American States, and Japan were represented, produced a draft convention concerning collisions (see Supplement to the American Journal of International Law, IV. (1910), p. 121). The "Maritime Conventions Bill," which is now before Parliament, proposes such alterations of British Municipal Law as would enable the British Government to ratify this Convention. The Institute of International Law already in 1888, at its meeting at Lausanne—see Annuaire, X. (1889), p. 150—adopted a body of eight rules concerning the subject.
[529] See 25 and 26 Vict. c. 63; 36 and 37 Vict. c. 83. The matter is now dealt with by sections 418-421 of the Merchant Shipping Act, 1894 (57 and 58 Vict. c. 60).
[530] See Martens, N.R.G. 2nd Ser. XII. p. 416.
[531] See Martens, N.R.G. 2nd Ser. XXII. p. 113.
[532] Latest British Regulations, 1896.
[533] The matter of collision at sea is exhaustively treated by Prien, "Der Zusammenstoss von Schiffen nach dem Gesetzen des Erdhalls" (2nd ed. 1899).
The question of jurisdiction in actions for damages for collision at sea is not at all settled.[534] That the damaged innocent vessel can bring an action against the guilty ship in the Courts of the latter's flag State is beyond doubt since jurisdiction on the Open Sea follows the flag. If the rule that all vessels while on the Open Sea are considered under the sway of their flag State were one without exception, no other State would claim jurisdiction in cases of collision but the flag State of the guilty ship. Yet the practice of the maritime States[535] goes far beyond this, without, however, being uniform. Thus, for instance, France[536] claims jurisdiction if the damaged ship is French, although the guilty ship may be foreign, and also in the event of both ships being foreign in case both consent, or for urgent measures having a provisionary character, or in case France is a place of payment. Thus, further, Italy[537] claims jurisdiction even if both ships are foreign in case an Italian port is the port nearest to the collision, or in case the damaged ship was forced by the collision to remain in an Italian port. Great Britain goes farthest, for the Admiralty Court claims jurisdiction provided the guilty ship is in a British port at the time the action for damages is brought, even if the collision took place between two foreign ships anywhere on the High Seas.[538] And the Admiralty Court justifies this extended claim of jurisdiction[539] by maintaining that collision is a matter of communis juris, and can therefore be adjudicated upon by the Courts[540] of all maritime States.[541]
[534] See Phillimore, IV. § 815; Calvo, I. § 444; Pradier-Fodéré, V. Nos. 2362-2374; Bar, "Private International Law" (2nd ed. translated by Gillespie), pp. 720 and 928; Dicey, "Conflict of Laws" (2nd ed.), pp. 650-652 and 790; Foote, "Private International Law" (3rd ed.), pp. 486 and 495; Westlake, "Private International Law" (3rd ed.), pp. 266-269; Marsden, "The Law of Collisions at Sea" (6th ed. 1910); Williams and Bruce, "Treatise on the Jurisdiction of English Courts in Admiralty Actions" (3rd ed. 1902).
[536] See Pradier-Fodéré, No. 2363.
[537] See Pradier-Fodéré, No. 2364.
[538] Or even in foreign territorial waters. See Williams and Bruce, op. cit., p. 78:—"The Admiralty Court from ancient times exercised jurisdiction in cases of collision between foreign vessels on the High Seas; and since the Admiralty Court Act, 1861, it has entertained suits for collision between ships in foreign waters, and between an English and a foreign ship in foreign waters."
[539] The Johann Friederich (1838), 1 W. Robinson, 35; the Chartered Mercantile Bank of India, London, and China v. The Netherlands India Steam Navigation Co., 10 Q.B.D. 537.
[540] The practice of the United States of America coincides with that of Great Britain; see the case of the Belgenland, 114, United States, 355, and Wharton, I. § 27.
[541] The Institute of International Law, at its meeting at Lausanne in 1888, adopted two rules concerning the jurisdiction in cases of collision; see Annuaire, X. (1889), p. 152.
Powers of Men-of-war over Merchantmen of all Nations.
§ 266. Although the freedom of the Open Sea and the fact that vessels on the Open Sea remain under the jurisdiction of the flag State exclude as a rule the exercise of any State's authority over foreign vessels, there are certain exceptions in the interest of all maritime nations. These exceptions are the following:—
(1) Blockade and Contraband. In time of war belligerents can blockade not only enemy ports and territorial coast waters, but also parts of the Open Sea adjoining those ports and waters, and neutral merchantmen attempting to break such a blockade can be confiscated. And, further, in time of war belligerent men-of-war can visit, search, and eventually seize neutral merchantmen for contraband, and the like.
(2) Verification of Flag. It is a universally recognised customary rule of International Law that men-of-war of all nations have, to maintain the safety of the Open Sea against piracy, the power to require suspicious private vessels on the Open Sea to show their flag.[542] But such vessels must be suspicious, and, since a vessel may be a pirate although she shows a flag, she may eventually be stopped and visited for the purpose of inspecting her papers and thereby verifying the flag. It is, however, quite obvious that this power of men-of-war must not be abused, and that the home State is responsible for damages in case a man-of-war stops and visits a foreign merchantman without sufficient ground of suspicion. The right of every State to punish piracy on the Open Sea will be treated below, §§ 272-280.
[542] So-called "Droit d'enquête" or "Vérification du pavillon." This power of men-of-war has given occasion to much dispute and discussion, but in fact nobody denies that in case of grave suspicion this power does exist. See Twiss, I. § 193; Hall, § 81, p. 276; Fiore, II. Nos. 732-736; Perels, § 17; Taylor, § 266; Bonfils, No. 519.
(3) So-called Right of Pursuit. It is a universally recognised customary rule that men-of-war of a littoral State can pursue into the Open Sea, seize, and bring back into a port for trial any foreign merchantman that has violated the law whilst in the territorial waters of the State in question. But such pursuit into the Open Sea is permissible only if commenced while the merchantman is still in the said territorial waters or has only just escaped thence, and the pursuit must stop as soon as the merchantman passes into the maritime belt of a foreign State.[543]
[543] See Hall, § 80.
(4) Abuse of Flag. It is another universally recognised rule that men-of-war of every State may seize and bring to a port of their own for punishment any foreign vessel sailing under the flag of such State without authority.[544] Accordingly, Great Britain has, by section 69 of the Merchant Shipping Act, 1894, enacted:—"If a person uses the British flag and assumes the British national character on board a ship owned in whole or in part by any persons not qualified to own a British ship, for the purpose of making the ship appear a British ship, the ship shall be subject to forfeiture under this Act, unless the assumption has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in the exercise of some belligerent right."
[544] The four exceptions mentioned in the text above are based on universally recognised customary rules of the Law of Nations. It is, of course, possible for several States to enter into treaty agreements according to which their men-of-war acquire certain powers over each other's merchantmen on the Open Sea. According to such agreements, which are, however, not universal, the following additional exceptions may be enumerated:—
(1) In the interest of the suppression of the slave trade, the signatory Powers of the General Act of the Brussels Conference of 1890 to which all the larger maritime Powers belong, have, by articles 20-65, stipulated that their men-of-war shall have the power, in certain parts of the Open Sea where slave traffic still continues, to stop every suspect vessel under 500 tons.
(2) In the interest of the Fisheries in the North Sea, special cruisers of the littoral Powers control all fishing vessels and bumboats. See below, §§ [282] and [283].
(3) In the interest of Transatlantic telegraph cables, men-of-war of the signatory Powers of the treaty for the protection of such cables have certain powers over merchantmen. (See below, § [287].)
How Verification of Flag is effected.
§ 267. A man-of-war which meets a suspicious merchantman not showing her colours and wishes to verify the same, hoists her own flag and fires a blank cartridge. This is a signal for the other vessel to hoist her flag in reply. If she takes no notice of the signal, the man-of-war fires a shot across her bows. If the suspicious vessel, in spite of this warning, still declines to hoist her flag, the suspicion becomes so grave that the man-of-war may compel her to bring to for the purpose of visiting her and thereby verifying her nationality.
How Visit is effected.
§ 268. The intention to visit may be communicated to a merchantman either by hailing or by the "informing gun"—that is, by firing either one or two blank cartridges. If the vessel takes no notice of this communication, a shot may be fired across her bows as a signal to bring to, and, if this also has no effect, force may be resorted to. After the vessel has been brought to, either an officer is sent on board for the purpose of inspecting her papers, or her master is ordered to bring his ship papers for inspection on board the man-of-war. If the inspection proves the papers to be in order, a memorandum of the visit is made in the log-book, and the vessel is allowed to proceed on her course.
How Search is effected.
§ 269. Search is naturally a measure which visit must always precede. It is because the visit has given no satisfaction that search is instituted. Search is effected by an officer and some of the crew of the man-of-war, the master and crew of the vessel to be searched not being compelled to render any assistance whatever except to open locked cupboards and the like. The search must take place in an orderly way, and no damage must be done to the cargo. If the search proves everything to be in order, the searchers have carefully to replace everything removed, a memorandum of the search is to be made in the log-book, and the searched vessel is to be allowed to proceed on her course.
How Arrest is effected.
§ 270. Arrest of a vessel takes place either after visit and search have shown her liable thereto, or after she has committed some act which alone already justifies her seizure. Arrest is effected through the commander of the arresting man-of-war appointing one of her officers and a part of her crew to take charge of the arrested vessel. Such officer is responsible for the vessel and her cargo, which latter must be kept safe and intact. The arrested vessel, either accompanied by the arresting vessel or not, must be brought to such harbour as is determined by the cause of the arrest. Thus, neutral or enemy ships seized in time of war are always[545] to be brought into a harbour of the flag State of the captor. And the same is the case in time of peace, when a vessel is seized because her flag cannot be verified, or because she was sailing under no flag at all. On the other hand, when a fishing vessel or a bumboat is arrested in the North Sea, she is always to be brought into a harbour of her flag State and handed over to the authorities there.[546]
[545] Except in the case of distress or unseaworthiness; see below, [vol. II. § 193].
[546] See below, §§ [282] and [283].
Shipwreck and Distress on the Open Sea.
§ 271. It is at present the universal conviction on the part of the States that goods and persons shipwrecked on the Open Sea do not thereby lose the protection of the flag State of the shipwrecked vessel. No State is allowed to recognise appropriation of abandoned vessels and other derelicts on the Open Sea by those of its subjects who take possession thereof. But every State can by its Municipal Laws enact that those of its subjects who take possession of abandoned vessels and of shipwrecked goods need not restore them to their owners without salvage,[547] whether the act of taking possession occurred on the actual Open Sea or within territorial waters and on shore of the respective State.
[547] The Conference of the Maritime Committee held at Brussels in September 1910 also produced a draft convention concerning salvage, which the British Government likewise intends to ratify provided Parliament passes the "Maritime Conventions Bill," see above, [§ 265, p. 333, note 2], and Supplement to the American Journal of International Law, IV. (1910), p. 126. According to the practice of the Admiralty Court—see the case of the Johann Friederich, 1 W. Robinson, 35—salvage on the Open Sea is, just like collisions, a matter of communis juris upon which the Courts of all maritime States are competent to adjudicate. See Phillimore, IV. § 815; and Dicey, "Conflict of Laws" (2nd ed. 1908), p. 791. See also sect. 545 and 565 of the Merchant Shipping Act, 1894.
As regards vessels in distress on the Open Sea, some writers[548] maintain that men-of-war must render assistance even to foreign vessels in distress. But it is impossible to say that there is a customary or conventional rule of the Law of Nations in existence which imposes upon all States the duty of instructing their men-of-war to render assistance to foreign vessels in distress, although many States order by Municipal Regulations their men-of-war to render such assistance, and although morally every vessel is bound to render assistance to another vessel in distress.[549]
[548] See, for instance, Perels, § 25, and Fiore, II. No. 732.
[549] According to article 11 of the draft convention concerning salvage produced by the Conference of the Maritime Committee at Brussels in September 1910—see above, [note 1]—"every master shall be obliged, as far as he can do so without serious danger to his vessel, his crew, or his passengers, to lend assistance to any person, even an enemy, found at sea in danger of perishing. The owner of the vessel shall not be liable for violations of the foregoing provision."
V PIRACY
Hall, §§ 81-82—Westlake, I. pp. 177-182—Lawrence, § 102—Phillimore, I. §§ 356-361—Twiss, I. §§ 177 and 193—Halleck, I. pp. 444-450—Taylor, §§ 188-189—Walker, § 21—Westlake, I. pp. 177-182—Wheaton, §§ 122-124—Moore, II. §§ 311-315—Bluntschli, §§ 343-350—Heffter, § 104—Gareis in Holtzendorff, II. pp. 571-581—Gareis, § 58—Liszt, § 26—Ullmann, § 104—Bonfils, Nos. 592-594—Despagnet, Nos. 431-433—Mérignhac, II. pp. 506-511—Pradier-Fodéré, V. Nos. 2491-2515—Rivier, I. pp. 248-251—Calvo, I. §§ 485-512—Fiore, I. Nos. 494-495, and Code, Nos. 295-300—Perels, §§ 16-17—Testa, pp. 90-97—Ortolan, "Diplomatie de la mer" (1856), I. pp. 231-253—Stiel, "Der Thatbestand der Piraterie" (1905).
Conception of Piracy.
§ 272. Piracy, in its original and strict meaning, is every unauthorised act of violence committed by a private vessel on the Open Sea against another vessel with intent to plunder (animo furandi). The majority of writers confine piracy to such acts, which indeed are the normal cases of piracy. But there are cases possible which are not covered by this narrow definition, and yet they are practically treated as though they were cases of piracy. Thus, if the members of the crew revolt and convert the ship and the goods thereon to their own use, they are considered to be pirates, although they have not committed an act of violence against another ship. Thus, secondly, if unauthorised acts of violence, such as murder of persons on board the attacked vessel or destruction of goods thereon, are committed on the Open Sea without intent to plunder, such acts are practically considered to be piratical. Under these circumstances several writers,[550] correctly, I think, oppose the usual definition of piracy as an act of violence committed by a private vessel against another with intent to plunder. But no unanimity exists among these very writers concerning a fit definition of piracy, and the matter is therefore very controversial. If a definition is desired which really covers all such acts as are practically treated as piratical, piracy must be defined as every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel.[551]
[550] Hall, § 81; Lawrence, § 102; Bluntschli, § 343; Liszt, § 26; Calvo, § 485.
[551] The conception of Piracy is discussed in the case of the Republic of Bolivia v. The Indemnity Mutual Marine Assurance Co., L.R. (1909), 1 K.B., 785.
Already, before a Law of Nations in the modern sense of the term was in existence, a pirate was considered an outlaw, a "hostis humani generis." According to the Law of Nations the act of piracy makes the pirate lose the protection of his home State, and thereby his national character; and his vessel, although she may formerly have possessed a claim to sail under a certain State's flag, loses such claim. Piracy is a so-called "international crime";[552] the pirate is considered the enemy of every State, and can be brought to justice anywhere.
Private Ships as Subjects of Piracy.
§ 273. Private vessels only[553] can commit piracy. A man-of-war or other public ship, as long as she remains such, is never a pirate. If she commits unjustified acts of violence, redress must be asked from her flag State, which has to punish the commander and to pay damages where required. But if a man-of-war or other public ship of a State revolts and cruises the sea for her own purposes, she ceases to be a public ship, and acts of violence now committed by her are indeed piratical acts. A privateer is not a pirate as long as her acts of violence are confined to enemy vessels, because such acts are authorised by the belligerent in whose services she is acting. And it matters not that the privateer is originally a neutral vessel.[554] But if a neutral vessel were to take Letters of Marque from both belligerents, she would be considered a pirate.
[553] Piracy committed by the mutinous crew will be treated below, § 274.
[554] See details regarding this controversial point in Hall, § 81. See also below, [vol. II. §§ 83] and [330].
Doubtful is the case where a privateer in a civil war has received her Letters of Marque from the insurgents, and, further, the case where during a civil war men-of-war join the insurgents before the latter have been recognised as a belligerent Power. It is evident that the legitimate Government will treat such ships as pirates; but third Powers ought not to do so, as long as these vessels do not commit any act of violence against ships of these third Powers. Thus, in 1873, when an insurrection broke out in Spain, Spanish men-of-war stationed at Carthagena fell into the hands of the insurgents, and the Spanish Government proclaimed these vessels pirates, England, France, and Germany instructed the commanders of their men-of-war in the Mediterranean not to interfere as long as these insurgent vessels[555] abstained from acts of violence against the lives and property of their subjects.[556] On the other hand, when in 1877 a revolutionary outbreak occurred at Callao in Peru and the ironclad Huascar, which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal without payment from one of these, and forcibly took two Peruvian officials from on board another where they were passengers, she was justly considered a pirate and attacked by the British Admiral de Horsey, who was in command of the British squadron in the Pacific.[557]
[555] See Calvo, I. §§ 497-501; Hall, § 82; Westlake, I. pp. 179-182.
[556] But in the American case of the Ambrose Light (25 Federal 408; see also Moore, II. § 332, p. 1098) the Court did not agree with this. The Ambrose Light was a brigantine which, when on April 24, 1885, she was sighted by Commander Clark of the U.S.S. Alliance in the Caribbean Sea, was flying a strange flag showing a red cross on a white ground, but she afterwards hoisted the Columbian flag; when seized she was found to carry sixty armed soldiers, one cannon, and a considerable quantity of ammunition. She bore a commission from Columbian insurgents, and was designed to assist in the blockade of the port of Carthagena by the rebels. Commander Clark considered the vessel to be a pirate and sent her in for condemnation. The Court held that in absence of any recognition of the Columbian insurgents as a belligerent Power the Ambrose Light had been lawfully seized as a pirate. The vessel was, however, nevertheless released because the American Secretary of State had recognised by implication a state of war between the insurgents and the legitimate Columbian Government.
[557] As regards the case of the Argentinian vessel Porteña and the Spanish vessel Montezuma, afterwards called Cespedes, see Calvo, I. §§ 502 and 503.
The case must also be mentioned of a privateer or man-of-war which after the conclusion of peace or the termination of war by subjugation and the like continues to commit hostile acts. If such vessel is not cognisant of the fact that the war has come to an end she cannot be considered as a pirate. Thus the Confederate cruiser Shenandoah, which in 1865, for some months after the end of the American Civil War, attacked American vessels, was not considered a pirate[558] by the British Government when her commander gave her up to the port authorities at Liverpool in November 1865, because he asserted that he had not known till August of the termination of the war, and that he had abstained from hostilities as soon as he had obtained this information.
[558] See Lawrence, § 102.
It must be emphasised that the motive and the purpose of such acts of violence do not alter their piratical character, since the intent to plunder (animus furandi) is not required. Thus, for instance, if a private neutral vessel without Letters of Marque during war out of hatred of one of the belligerents were to attack and to sink vessels of such belligerent without plundering at all, she would nevertheless be considered as a pirate.[559]
[559] This statement is correct in spite of art. 46, No. 1, of the Declaration of London; see below, [vol. II. § 410], No. 1.
Mutinous Crew and Passengers as Subjects of Piracy.
§ 274. The crew or the whole or a part of the passengers who revolt on the Open Sea and convert the vessel and her goods to their own use, commit thereby piracy, whether the vessel is private or public. But a simple act of violence alone on the part of crew or passengers does not constitute in itself the crime of piracy, at least not as far as International Law is concerned. If, for instance, the crew were to murder the master on account of his cruelty and afterwards carry on the voyage, they would be murderers, but not pirates. They are pirates only when the revolt is directed not merely against the master, but also against the vessel, for the purpose of converting her and her goods to their own use.
Object of Piracy.
§ 275. The object of piracy is any public or private vessel, or the persons or the goods thereon, whilst on the Open Sea. In the regular case of piracy the pirate wants to make booty; it is the cargo of the attacked vessel which is the centre of his interest, and he might free the vessel and the crew after having appropriated the cargo. But he remains a pirate whether he does so or kills the crew and appropriates the ship, or sinks her. On the other hand, it does not matter if the cargo is not the object of his act of violence. If he stops a vessel and takes a rich passenger off with the intention to keep him for the purpose of a high ransom, his act is piracy. It is likewise piracy if he stops a vessel for the purpose of killing a certain person only on board, although he may afterwards free vessel, crew, and cargo.
That a possible object of piracy is not only another vessel, but also the very ship on which the crew and passenger navigate, is an inference from the statements above in § 274.
Piracy, how effected.
§ 276. Piracy is effected by any unauthorised act of violence, be it direct application of force or intimidation through menace. The crew or passengers who, for the purpose of converting a vessel and her goods to their own use, force the master through intimidation to steer another course, commit piracy as well as those who murder the master and steer the vessel themselves. And a ship which, through the threat to sink her if she should refuse, forces another ship to deliver up her cargo or a person on board, commits piracy as well as the ship which attacks another vessel, kills her crew, and thereby gets hold of her cargo or a person on board.
The act of violence need not be consummated to constitute the crime of piracy. The mere attempt, such as attacking or even chasing only for the purpose of attack, by itself comprises piracy. On the other hand, it is doubtful whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed a single act of violence.[560]
[560] See Stephen, "Digest of the Criminal Law," article 104. In the case of the Ambrose Light—see above, § [273]—the Court considered the vessel to be a pirate, although no attempt to commit a piratical act had been made by her.
Where Piracy can be committed.
§ 277. Piracy as an "international crime" can be committed on the Open Sea only. Piracy in territorial coast waters has quite as little to do with International Law as other robberies on the territory of a State. Some writers[561] maintain that piracy need not necessarily be committed on the Open Sea, but that it suffices that the respective acts of violence are committed by descent from the Open Sea. They maintain, therefore, that if "a body of pirates land on an island unappropriated by a civilised Power, and rob and murder a trader who may be carrying on commerce there with the savage inhabitants, they are guilty of a crime possessing all the marks of commonplace professional piracy." With this opinion I cannot agree. Piracy is, and always has been, a crime against the safety of traffic on the Open Sea, and therefore it cannot be committed anywhere else than on the Open Sea.
[561] Hall, § 81; Lawrence, § 102; Westlake, I. p. 177.
Jurisdiction over Pirates, and their Punishment.
§ 278. A pirate and his vessel lose ipso facto by an act of piracy the protection of their flag State and their national character. Every maritime State has by a customary rule of the Law of Nations the right to punish pirates. And the vessels of all nations, whether men-of-war, other public vessels, or merchantmen,[562] can on the Open Sea[563] chase, attack, seize, and bring the pirate home for trial and punishment by the Courts of their own country. In former times it was said to be a customary rule of International Law that pirates could at once after seizure be hanged or drowned by the captor. But this cannot now be upheld, although some writers assert that it is still the law. It would seem that the captor may execute pirates on the spot only when he is not able to bring them safely into a port for trial; but Municipal Law may, of course, interdict such execution. Concerning the punishment for piracy, the Law of Nations lays down the rule that it may be capital. But it need not be, the Municipal Law of the different States being competent to order any less severe punishment. Nor does the Law of Nations make it a duty for every maritime State to punish all pirates.[564]
[562] A few writers (Gareis in Holtzendorff, II. p 575; Liszt, § 26; Ullmann, § 104; Stiel, op. cit., p. 51) maintain, however, that men-of-war only have the power to seize the pirate.
[563] If a pirate is chased on the Open Sea and flees into the territorial maritime belt, the pursuers may follow, attack, and arrest the pirate there; but they must give him up to the authorities of the littoral State.
[564] Thus, according to the German Criminal Code, piracy committed by foreigners against foreign vessels cannot be punished by German Courts (see Perels, § 17). From article 104 of Stephen's "Digest of the Criminal Law," there seems to be no doubt that, according to English Law, all pirates are liable to be punished. See Stiel, op. cit., p. 15, note 4, where a survey is given of the Municipal Law of many States concerning this point.
That men-of-war of all nations have, with a view to insuring the safety of traffic, the power of verifying the flags of suspicious merchantmen of all nations, has already been stated above (§ [266, No. 2]).
Pirata non mutat dominium.
§ 279. The question as to the property in the seized piratical vessels and the goods thereon has been the subject of much controversy. During the seventeenth century the practice of several States conceded such vessel and goods to the captor as a premium. But during the eighteenth century the rule pirata non mutat dominium became more and more recognised. Nowadays the conviction would seem to be general that ship and goods have to be restored to their proprietors, and may be conceded to the captor only when the real ownership cannot be ascertained. In the first case, however, a certain percentage of the value is very often conceded to the captor as a premium and an equivalent for his expenses (so-called droit de recousse[565]). Thus, according to British Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of the pirate.
[565] See details regarding the question as to the piratical vessels and goods in Pradier-Fodéré, V. Nos. 2496-2499.
[566] See section 5 of the "Act to repeal an Act of the Sixth Year of King George the Fourth, for encouraging the Capture or Destruction of Piratical Ships, &c." (13 & 14 Vict. ch. 26).
Piracy according to Municipal Law.
§ 280. Piracy, according to the Law of Nations, which has been defined above (§ 272) as every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel, must not be confounded with the conception of piracy according to the different Municipal Laws.[567] The several States may confine themselves to punishing as piracy a narrower circle of acts of violence than that which the Law of Nations defines as piracy. On the other hand, they may punish their subjects as pirates for a much wider circle of acts. Thus, for instance, according to the Criminal Law of England,[568] every English subject is inter alia deemed to be a pirate who gives aid or comfort upon the sea to the King's enemies during a war, or who transports slaves on the High Seas.
[567] See Calvo, §§ 488-492; Lawrence, § 103; Pradier-Fodéré, V. Nos. 2501 and 2502.
[568] See Stephen, "Digest of the Criminal Law," articles 104-117.
However, since a State cannot on the Open Sea enforce its Municipal Laws against others than its own subjects, no State can treat such foreign subjects on the Open Sea as pirates as are not pirates according to the Law of Nations. Thus, when in 1858, before the abolition of slavery in America, British men-of-war molested American vessels suspected of carrying slaves, the United States objected and rightly complained.[569]
[569] See Wharton, III. § 327, pp. 142 and 143; Taylor, § 190; Moore, II. § 310, pp. 941-946.
VI FISHERIES IN THE OPEN SEA
Grotius, II. c. 3, § 4—Vattel, I. § 287—Hall, § 27—Lawrence, §§ 86 and 91—Phillimore, I. §§ 181-195—Twiss, I. § 185—Taylor, §§ 249-250—Wharton, II. §§ 300-308—Wheaton, §§ 167-171—Moore, I. §§ 169-173—Bluntschli, § 307—Stoerk in Holtzendorff, II. pp. 504-507—Gareis, § 62—Liszt, § 35—Ullmann, § 103—Bonfils, Nos. 581-582, 595—Despagnet, Nos. 411-413—Mérignhac, II. p. 531—Pradier-Fodéré, V. Nos. 2446-2458—Rivier, I. pp. 243-245—Nys, II. pp. 165-169—Calvo, I. §§ 357-364—Fiore, II. Nos. 728-729, and Code, Nos. 995-999—Martens, I. § 98—Perels, § 20—Hall, "Foreign Powers and Jurisdiction" (1894), § 107—David, "La pêche maritime au point de vue international" (1897)—Fulton, "The Sovereignty of the Seas" (1911), pp. 57-534.
Fisheries in the Open Sea free to all Nations.
§ 281. Whereas the fisheries in the territorial maritime belt can be reserved by the littoral State for its own subjects, it is an inference of the freedom of the Open Sea that the fisheries thereon are open[570] to vessels of all nations. Since, however, vessels remain whilst on the Open Sea under the jurisdiction of their flag State, every State possessing a maritime flag can legislate concerning the exercise of fisheries on the Open Sea on the part of vessels sailing under its flag. And for the same reason a State can by an international agreement renounce its fisheries on certain parts of the Open Sea, and accordingly interdict its vessels from exercising fisheries there. If certain circumstances and conditions make it advisable to restrict and regulate the fisheries on some parts of the Open Sea, the Powers are therefore able to create restrictions and regulations for that purpose through international treaties. Such treaties have been concluded—first, with regard to the fisheries in the North Sea and the suppression of the liquor trade among the fishing vessels in that Sea; secondly, with regard to the seal fisheries in the Behring Sea; thirdly, with regard to the fisheries around the Faröe Islands and Iceland.
[570] Denmark silently, by fishing regulations of 1872, dropped her claim to an exclusive right of fisheries within twenty miles of the coast of Iceland; see Hall, § 40, p. 153, note 2. Russia promulgated, in 1911, a statute forbidding the fisheries to foreign vessels within twelve miles of the shore of the White Sea, but the Powers protested against this encroachment upon the freedom of the Open Sea; the matter is still unsettled.
A case of a particular kind would seem to be the pearl fishery off Ceylon, which extends to a distance of twenty miles from the shore and for which regulations exist which are enforced against foreign as well as British subjects. The claim on which these regulations are based is one "to the products of certain submerged portions of land which have been treated from time immemorial by the successive rulers of the island as subject of property and jurisdiction." See Hall, "Foreign Powers and Jurisdiction" (1894), p. 243, note 1. See also Westlake, I. p. 186, who says: "The case of the pearl fishery is peculiar, the pearls being obtained from the sea bottom by divers, so that it has a physical connection with the stable element of the locality which is wanting to the pursuit of fish swimming in the water. When carried on under State protection, as that off the British island of Ceylon, or that in the Persian Gulf which is protected by British ships in pursuance of treaties with certain chiefs of the Arabian mainland, it may be regarded as an occupation of the bed of the sea. In that character the pearl fishery will be territorial even though the shallowness of the water may allow it to be practised beyond the limit which the State in question generally fixes for the littoral seas, as in the case of Ceylon it is practised beyond the three miles limit generally recognised by Great Britain. 'Qui doutera,' says Vattel (I. § 28), 'que les pêcheries de Bahrein et de Ceylon ne puissent légitimement tomber en propriété?' And the territorial nature of the industry will carry with it, as being necessary for its protection, the territorial character of the spot." This opinion of Westlake coincides with that contended by Great Britain during the Behring Sea Arbitration; see Parliamentary Papers, United States, No. 4 (1893) Behring Sea Arbitration, Archives of His Majesty's Government, pp. 51 and 59. But it is submitted that the bed of the Open Sea is not a possible object of occupation. The explanation of the pearl fisheries off Ceylon and in the Persian Gulf being exclusively British is to be found in the fact that the freedom of the Open Sea was not a rule of International Law when these fisheries were taken possession of. See Oppenheim in Z.V. II. (1908), pp. 6-10, and Westlake, I. (2nd ed.), p. 203.
Fisheries in the North Sea.
§ 282. For the purpose of regulating the fisheries in the North Sea, an International Conference took place at the Hague in 1881 and again in 1882, at which Great Britain, Belgium, Denmark, France, Germany, Holland, and Sweden-Norway were represented, and on May 6, 1882, the International Convention for the Regulation of the Police of the Fisheries in the North Sea outside the territorial waters[571] was signed by the representatives of all these States, Sweden-Norway excepted, to which the option of joining later on is given. This treaty contains the following stipulations:[572]—
[571] Martens, N.R.G. 2nd Ser. IX. p. 556.
[572] The matter is exhaustively treated by Rykere, "Le régime légal de la pêche maritime dans la Mer du Nord" (1901). To carry out the obligations undertaken by her in the Convention for the regulation of the fisheries in the North Sea, Great Britain enacted in 1883 the "Act to carry into effect an International Convention concerning the Fisheries in the North Sea, and to amend the Laws relating to British Sea Fisheries" (46 and 47 Vict. ch. 22).
(1) All the fishing vessels of the signatory Powers must be registered, and the registers have to be exchanged between the Powers (article 5). Every vessel has to bear visibly in white colour on black ground its number, name, and the name of its harbour (articles 6-11). Every vessel must bear an official voucher of her nationality (articles 12-13).
(2) To avoid conflicts between the different fishing vessels, very minute interdictions and injunctions are provided (articles 14-25).
(3) The supervision of the fisheries by the fishing vessels of the signatory Powers is exercised by special cruisers of these Powers (article 26). With the exception of those contraventions which are specially enumerated by article 27, all these cruisers are competent to verify all contraventions committed by the fishing vessels of all the signatory Powers (article 28). For that purpose they have the right of visit, search, and arrest (article 29). But a seized fishing vessel is to be brought into a harbour of her flag State and to be handed over to the authorities there (article 30). All contraventions are to be tried by the Courts of the State to which the contravening vessels belong (article 36); but in cases of a trifling character the matter can be compromised on the spot by the commanders of the special public cruisers of the Powers (article 33).
Bumboats in the North Sea.
§ 283. Connected with the regulation of the fisheries is the abolition of the liquor trade among the fishing vessels in the North Sea. Since serious quarrels and difficulties were caused through bumboats and floating grog-shops selling intoxicating liquors to the fishermen, an International Conference took place at the Hague in 1886, where the signatory Powers of the Hague Convention concerning the fisheries in the North Sea were represented. And on November 16, 1887, the International Convention concerning the Abolition of the Liquor Traffic among the fishermen in the North Sea was signed by the representatives of these Powers—namely, Great Britain, Belgium, Denmark, France, Germany, and Holland. This treaty[573] was, however, not ratified until 1894, and France did not ratify it at all. It contains the following stipulations:[574]—
[573] See Martens, N.R.G. 2nd Ser. XIV. p. 540, and XXII. p. 563.
[574] The matter is treated by Guillaume in R.I. XXVI. (1894), p. 488.
It is interdicted to sell spirituous drinks to persons on board of fishing vessels, and these persons are prohibited from buying such drinks (article 2). Bumboats, which wish to sell provisions to fishermen, must be licensed by their flag State and must fly a white flag[575] with the letter S in black in the middle (article 3). The special cruisers of the Powers which supervise the fisheries in the North Sea are likewise competent to supervise the treaty stipulations concerning bumboats; they have the right to ask for the production of the proper licence, and eventually the right to arrest the vessel (article 7). But arrested vessels must always be brought into a harbour of their flag State, and all contraventions are to be tried by Courts of the flag State of the contravening vessel (articles 2, 7, 8).
[575] This flag was agreed upon in the Protocol concerning the ratification of the Convention. (See Martens, N.R.G. 2nd Ser. XXII. p. 565.)
Seal Fisheries in Behring Sea.
§ 284. In 1886 a conflict arose between Great Britain and the United States through the seizure and confiscation of British-Columbian vessels which had hunted seals in the Behring Sea outside the American territorial belt, infringing regulations made by the United States concerning seal fishing in that sea. Great Britain and the United States concluded an arbitration treaty[576] concerning this conflict in 1892, according to which the arbitrators should not only settle the dispute itself, but also (article 7) "determine what concurrent regulations outside the jurisdictional limits of the respective Governments are necessary" in the interest of the preservation of the seals. The Arbitration Tribunal, which assembled and gave its award[577] at Paris in 1893, imposed the duty upon both parties of forbidding their subjects to kill seals within a zone of sixty miles around the Pribilof Islands; the killing of seals at all between May 1 and July 31 each year; seal-fishing with nets, firearms, and explosives; seal-fishing in other than specially licensed sailing vessels. Both parties in 1894 carried out this task imposed upon them.[578] Other maritime Powers were at the same time asked by the United States to submit voluntarily to the regulations made for the parties by the arbitrators, but only Italy[579] has agreed to this.
[576] See Martens, N.R.G. 2nd Ser. XVIII. p. 587.
[577] See Martens, N.R.G. 2nd Ser. XXI. p. 439. The award is discussed by Barclay in R.I. XXV. (1893), p. 417, and Engelhardt in R.I. XXVI. (1894), p. 386, and R.G. V. (1898), pp. 193 and 347. See also Tillier, "Les Pêcheries de Phoques de la Mer de Behring" (1906), and Balch, "L'évolution de l'Arbitrage International" (1908), pp. 70-91.
[578] See the Behring Sea Award Act, 1894 (57 Vict. c. 2).
[579] See Martens, N.R.G. 2nd Ser. XXII. p. 624.
Experience has shown that the provisions made by the Arbitration Tribunal for the purpose of preventing the extinction of the seals in the Behring Sea are insufficient. The United States therefore invited the maritime Powers whose subjects are engaged in the seal fisheries to a Pelagic Sealing Conference which took place at Washington in 1911, and produced a convention[580] which was signed on July 7, 1911, by which the suspension of pelagic sealing for fifteen years was agreed upon.
[No further details of this Convention are as yet known, and it has not yet been ratified.]
[580] See below, § [593, No. 2].
Fisheries around the Faröe Islands and Iceland.
§ 285. For the purpose of regulating the fisheries outside territorial waters around the Faröe Islands and Iceland, Great Britain and Denmark signed on June 24, 1901, the Convention of London,[581] whose stipulations are for the most part literally the same as those of the International Convention for the Regulation of the Fisheries in the North Sea, concluded at the Hague in 1882.[582] The additional article of this Convention of London stipulates that any other State whose subjects fish around the Faröe Islands and Iceland may accede to it.
[581] See Martens, N.R.G. 2nd Ser. XXXIII. (1906), p. 268.
VII TELEGRAPH CABLES IN THE OPEN SEA
Bonfils, No. 583—Despagnet, No. 401—Pradier-Fodéré, V. No. 2548—Mérignhac, II. p. 532—Nys, II. p. 170—Rivier, I. pp. 244 and 386—Fiore, II. No. 822, and Code, Nos. 1134-1137—Stoerk in Holtzendorff, II. pp. 507-508—Liszt, § 29—Ullmann, § 103—Lauterbach, "Die Beschädigung unterseeischer Telegraphenkabel" (1889)—Landois, "Zur Lehre vom völkerrechtlichen Schutz der submarinen Telegraphenkabel" (1894)—Jouhannaud, "Les câbles sous-marins" (1904)—Renault, in R.I. XII. (1880), p. 251, XV. (1883), p. 17. See also the literature quoted below, [vol. II., at the commencement of § 214].
Telegraph cables in the Open Sea admitted.
§ 286. It is a consequence of the freedom of the Open Sea that no State can prevent another from laying telegraph and telephone cables in any part of the Open Sea, whereas no State need allow this within its territorial maritime belt. As numerous submarine cables have been laid, the question as to their protection arose. Already in 1869 the United States proposed an international convention for this purpose, but the matter dropped in consequence of the outbreak of the Franco-German war. The Institute of International Law took up the matter in 1879[583] and recommended an international agreement. In 1882 France invited the Powers to an International Conference at Paris for the purpose of regulating the protection of submarine cables. This conference met in October 1882, again in October 1883, and produced the "International Convention for the Protection of Submarine Telegraph Cables" which was signed at Paris on April 16, 1884.[584]
[583] See Annuaire, III. pp. 351-394.
[584] See Martens, N.R.G. 2nd Ser. XI. p. 281.
The signatory Powers are:—Great Britain, Argentina, Austria-Hungary, Belgium, Brazil, Colombia, Costa Rica, Denmark, San Domingo, France, Germany, Greece, Guatemala, Holland, Italy, Persia, Portugal, Roumania, Russia, Salvador, Servia, Spain, Sweden-Norway, Turkey, the United States, and Uruguay. Colombia and Persia did not ratify the treaty, but, on the other hand, Japan acceded to it later on.
International Protection of Submarine Telegraph Cables.
§ 287. The protection afforded to submarine telegraph cables finds its expression in the following stipulations of this international treaty:—
(1) Intentional or culpably negligent breaking or damaging of a cable in the Open Sea is to be punished by all the signatory Powers,[585] except in the case of such damage having been caused in the effort of self-preservation (article 2).
[585] See the Submarine Telegraph Act, 1885 (48 & 49 Vict. c. 49).
(2) Ships within sight of buoys indicating cables which are being laid or which are damaged must keep at least a quarter of a nautical mile distant (article 6).
(3) For dealing with infractions of the interdictions and injunctions of the treaty the Courts of the flag State of the infringing vessel are exclusively competent (article 8).
(4) Men-of-war of all signatory Powers have a right to stop and to verify the nationality of merchantmen of all nations which are suspected of having infringed the regulations of the treaty (article 10).
(5) All stipulations are made for the time of peace only and in no wise restrict the action of belligerents during time of war.[586]
[586] See below, [vol. II. § 214], and art. 54 of the Hague rules concerning land warfare which enacts:—"Submarine cables connecting a territory occupied with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They also must be restored and indemnities for them regulated at the peace."
VIII WIRELESS TELEGRAPHY ON THE OPEN SEA
Bonfils, Nos. 53110, 11—Despagnet, 433quater—Liszt, § 29—Ullmann, § 147—Meili, "Die drahtlose Telegraphie, &c." (1908)—Schneeli, "Drahtlose Telegraphie und Völkerrecht" (1908)—Landsberg, "Die drahtlose Telegraphie" (1909)—Kausen, "Die drahtlose Telegraphie im Völkerrecht" (1910)—Rolland in R.G. XIII. (1906), pp. 58-92—Fauchille in Annuaire, XXI. (1906), pp. 76-87—Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.
Radio-telegraphy between ships and the shore.
§ 287a. To secure radio-telegraphic[587] communication between ships of all nations at sea and the continents, a Conference met at Berlin in 1906, where Great Britain, Germany, the United States of America, Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Chili, Denmark, Spain, France, Greece, Italy, Japan, Mexico, Monaco, Norway, Holland, Persia, Portugal, Roumania, Russia, Sweden, Turkey, and Uruguay were represented, and where was signed on November 3, 1906, the International Radio-telegraphic Convention.[588] This Convention, which consists of twenty-three articles, is accompanied by a Final Protocol, comprising six important articles, and by Service Regulations, embodying fifty-two articles. The more important stipulations of the Convention are the following:—Coast Stations and ships are bound to exchange radio-telegrams reciprocally without regard to the particular system of radio-telegraphy adopted by them (article 3). Each of the contracting parties undertakes to cause its coast stations to be connected with the telegraph system by means of special wires, or at least to take such other measures as will ensure an expeditious exchange of traffic between the coast stations and the telegraph system (article 5). Radio-telegraph stations are bound to accept with absolute priority calls of distress from ships, to answer such calls with similar priority, and to take the necessary steps with regard to them (article 9). An International Bureau shall be established with the duty of collecting, arranging, and publishing information of every kind concerning radio-telegraphy, and for some other purposes mentioned in article 13.
[587] See above, § [173], and below, §§ [464] and [582, No. 4].
[588] See Martens, N.R.G. 3rd Ser. III. (1910), p. 147. But not all the signatory Powers have as yet ratified the Convention, ratification having been given hitherto only by Great Britain, Austria-Hungary, Belgium, Brazil, Bulgaria, Denmark, France, Germany, Japan, Mexico, Monaco, Holland, Norway, Portugal, Roumania, Russia, Spain, Sweden and Turkey; and Tunis acceded to it. Italy has reserved ratification on account of her relations with the Marconi Wireless Telegraphy Co.
Radio-telegraphy between ships at sea.
§ 287b. To secure radio-telegraphic communication between such ships at sea as possess installations for wireless telegraphy, an Additional Convention[589] to that mentioned above in § [287]a was signed on November 3, 1906, by all the Powers who signed the forementioned Convention except by Great Britain, Italy, Japan, Mexico, Persia, and Portugal. According to this additional Convention all ships at sea which possess radio-telegraphic installations are compelled to exchange radio-telegrams reciprocally at all times without regard to the particular system of radio-telegraphy adopted.
[589] See Martens, N.R.G. 3rd Ser. III. (1910), p. 158. But this Convention likewise has not yet been ratified by all the signatory Powers.
It is to be hoped that in time all the Powers will accede to this Additional Convention, for its stipulation is of great importance in cases of shipwreck. If ships at sea can refuse to exchange radio-telegrams, it is impossible for them to render one another assistance. It ought not to be possible for the following case[590] to occur, to which attention was drawn at the Berlin Conference by the delegate of the United States of America:—The American steamer Lebanon had received orders to search the Atlantic for a wrecked vessel which offered great danger to navigation. The Lebanon came within communicating reach of the liner Vaderland, and inquired by wireless telegraphy whether the Vaderland had seen the wreck. The Vaderland refused to reply to this question, on the ground that she was not permitted to enter into communication with a ship provided with a wireless apparatus other than the Marconi.
[590] See Hazeltine, "The Law of the Air" (1911), p. 101.
IX THE SUBSOIL BENEATH THE SEA BED
Five rules concerning the subsoil beneath the Sea Bed.
§ 287c. The subsoil beneath the bed of the Open Sea requires special consideration on account of coal or other mines, tunnels, and the like, for the question is whether such buildings can be driven into that subsoil at all, and, if this can be done, whether they can be under the territorial supremacy of a particular State. The answer depends entirely upon the character in law of such subsoil. If the rules concerning the territorial subsoil[591] would have analogously to be applied to the subsoil beneath the bed of the Open Sea, all rules concerning the Open Sea would necessarily have to be applied to the subsoil beneath its bed, and no part of this subsoil could ever come under the territorial supremacy of any State. It is, however, submitted[592] that it would not be rational to consider the subsoil beneath the bed of the Open Sea an inseparable appurtenance of the latter, such as the subsoil beneath the territorial land and water is. The rationale of the Open Sea being free and for ever excluded from occupation on the part of any State is that it is an international highway which connects distant lands and thereby secures freedom of communication, and especially of commerce, between such States as are separated by the sea.[593] There is no reason whatever for extending this freedom of the Open Sea to the subsoil beneath its bed. On the contrary, there are practical reasons—taking into consideration the building of mines, tunnels, and the like—which compel the recognition of the fact that this subsoil can be acquired through occupation. The following five rules recommend themselves concerning this subject:—
[591] See above, §§ [173], 175.
[592] See Oppenheim in Z.V. II. (1908), p. 11.
(1) The subsoil beneath the bed of the Open Sea is no man's land, and it can be acquired on the part of a littoral State through occupation, starting from the subsoil beneath the bed of the territorial maritime belt.
(2) This occupation takes place ipso facto by a tunnel or a mine being driven from the shore through the subsoil of the maritime belt into the subsoil of the Open Sea.
(3) This occupation of the subsoil of the Open Sea can be extended up to the boundary line of the subsoil of the territorial maritime belt of another State, for no State has an exclusive claim to occupy such part of the subsoil of the Open Sea as is adjacent to the subsoil of its territorial maritime belt.
(4) An occupation of the subsoil beneath the bed of the Open Sea for a purpose which would endanger the freedom of the Open Sea is inadmissible.
(5) It is likewise inadmissible to make such arrangements in a part of the subsoil beneath the Open Sea which has previously been occupied for a legitimate purpose as would indirectly endanger the freedom of the Open Sea.
If these five rules are correct, there is nothing in the way of coal and other mines which are being exploited on the shore of a littoral State being extended into the subsoil beneath the Open Sea up to the boundary line of the subsoil beneath the territorial maritime belt of another State. Further, a tunnel which might be built between such two parts of the same State—for instance, between Ireland and Scotland—as are separated by the Open Sea would fall entirely under the territorial supremacy of the State concerned. On the other hand, for a tunnel between two different States separated by the Open Sea special arrangements by treaty would have to be made concerning the territorial supremacy over that part of the tunnel which runs under the bed of the Open Sea.
The proposed Channel Tunnel.
§ 287d. Since there is as yet no submarine tunnel in existence, it is of interest to give some details concerning the project of a Channel Tunnel[594] between Dover and Calais, and the preliminary arrangements between France and England concerning it. Already some years before the Franco-German War the possibility of such a tunnel was discussed, but it was not until 1874 that the first preliminary steps were taken. The subsoil of the Channel was geologically explored, plans were worked out, and a shaft of more than a mile long was tentatively bored from the English shore. And in 1876 an International Commission, appointed by the English and French Governments, and comprising three French and three English members, made a report on the construction and working of the proposed tunnel.[595] The report enclosed a memorandum, recommended by the Commissioners to be adopted as the basis of a treaty between Great Britain and France concerning the tunnel, the juridically important articles of which are the following:—
[594] See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G. XV. (1908), pp. 50-77; and Liszt, § 26.
[595] See Parliamentary Papers, C. 1576, Report of the Commissioners for the Channel Tunnel and Railway, 1876.
(Article 1) The boundary between England and France in the tunnel shall be half-way between low-water mark (above the tunnel) on the coast of England, and low-water mark (above the tunnel) on the coast of France. The said boundary shall be ascertained and marked out under the direction of the International Commission to be appointed, as mentioned in article 4, before the Submarine Railway is opened for public traffic. The definition of boundary provided for by this article shall have reference to the tunnel and Submarine Railway only, and shall not in any way affect any question of the nationality of, or any rights of navigation, fishing, anchoring, or other rights in, the sea above the tunnel, or elsewhere than in the tunnel itself.
(Article 4) There shall be constituted an International Commission to consist of six members, three of whom shall be nominated by the British Government and three by the French Government....
The International Commission shall ... submit to the two Governments its proposals for Supplementary Conventions with respect—(a) to the apprehension and trial of alleged criminals for offences committed in the tunnel or in trains which have passed through it, and the summoning of witnesses; (b) to customs, police, and postal arrangements, and other matters which it may be found convenient so to deal with.
(Article 15) Each Government shall have the right to suspend the working of the Submarine Railway and the passage through the tunnel whenever such Government shall, in the interest of its own country, think necessary to do so. And each Government shall have power, to be exercised if and when such Government may deem it necessary, to damage or destroy[596] the works of the tunnel or Submarine Railway, or any part of them, in the territory of such Government, and also to flood the tunnel with water.
[596] This stipulation was proposed in the interest of defence in time of war. As regards the position of a Channel Tunnel in time of war, see Oppenheim in Z.V. II. (1908), pp. 13-16.
In spite of this elaborate preparation the project could not be realised, since public opinion in England was for political reasons opposed to it. And although several times since—in 1880, 1884, 1888, and 1908—steps were again taken in favour of the proposed tunnel, public opinion in England remained hostile and the project has had for the time to be abandoned. It is, however, to be hoped and expected that ultimately the tunnel will be built when the political conditions which are now standing in the way of its realisation have undergone a change.