International Law. A Treatise Volume I Part 31

(1) The littoral State can exclusively reserve the fishery within the maritime belt[336] for its own subjects, whether fish or pearls or amber or other products of the sea are in consideration.

[Footnote 336: All treaties stipulate for the purpose of fishery a three miles wide territorial maritime belt. See, for instance, article 1 of the Hague Convention concerning police and fishery in the North Sea of May 6, 1882. (Martens, N.R.G. 2nd Ser. IX. p. 556.)]

(2) The littoral State can, in the absence of special treaties to the contrary, exclude foreign vessels from navigation and trade along the coast, the so-called cabotage,[337] and reserve this cabotage exclusively for its own vessels. Cabotage meant originally navigation and trade along the same stretch of coast between the ports thereof, such coast belonging to the territory of one and the same State.

However, the term cabotage or coasting trade as used in commercial treaties comprises now[338] sea trade between any two ports of the same country, whether on the same coasts or different coasts, provided always that the different coasts are all of them the coasts of one and the same country as a political and geographical unit in contradistinction to the coasts of colonial dependencies of such country.

[Footnote 337: See Pradier-Fodere V. Nos. 2441, 2442.]

[Footnote 338: See below, -- 579, where the matter is more amply treated.]

(3) The littoral State can exclusively exercise police and control within its maritime belt in the interest of its custom-house duties, the secrecy of its coast fortifications, and the like. Thus foreign vessels can be ordered to take certain routes and to avoid others.

(4) The littoral State can make laws and regulations regarding maritime ceremonials to be observed by such foreign merchantmen as enter its territorial maritime belt.[339]

[Footnote 339: See Twiss, I. -- 194.]

[Sidenote: Navigation within the Belt.]

-- 188. Although the maritime belt is a portion of the territory of the littoral State and therefore under the absolute territorial supremacy of such State, the belt is nevertheless, according to the practice of all the States, open to merchantmen of all nations for inoffensive navigation, cabotage excepted. And it is the common conviction[340] that every State has by customary International Law the _right_ to demand that in time of peace its merchantmen may inoffensively pa.s.s through the territorial maritime belt of every other State. Such right is correctly said to be a consequence of the freedom of the Open Sea, for without this right navigation on the Open Sea by vessels of all nations would in fact be an impossibility. And it is a consequence of this right that no State can levy tolls for the mere pa.s.sage of foreign vessels through its maritime belt. Although the littoral State may spend a considerable amount of money for the erection and maintenance of lighthouses and other facilities for safe navigation within its maritime belt, it cannot make merely pa.s.sing foreign vessels pay for such outlays. It is only when foreign ships cast anchor within the belt or enter a port that they can be made to pay dues and tolls by the littoral State. Some writers[341] maintain that all nations have the right of inoffensive pa.s.sage for their merchantmen by usage only, and not by the customary Law of Nations, and that, consequently, in strict law a littoral State can prevent such pa.s.sage. They are certainly mistaken. An attempt on the part of a littoral State to prevent free navigation through the maritime belt in time of peace would meet with stern opposition on the part of all other States.

[Footnote 340: See above, -- 142.]

[Footnote 341: Kluber, -- 76; Pradier-Fodere, II. No. 628.]

But a right of foreign States for their men-of-war to pa.s.s unhindered through the maritime belt is not generally recognised. Although many writers a.s.sert the existence of such a right, many others emphatically deny it. As a rule, however, in practice no State actually opposes in time of peace the pa.s.sage of foreign men-of-war and other public vessels through its maritime belt. And it may safely be stated, first, that a usage has grown up by which such pa.s.sage, if in every way inoffensive and without danger, shall not be denied in time of peace; and, secondly, that it is now a customary rule of International Law that the right of pa.s.sage through such parts of the maritime belt as form part of the highways for international traffic cannot be denied to foreign men-of-war.[342]

[Footnote 342: See below, -- 449.]

[Sidenote: Jurisdiction within the Belt.]

-- 189. That the littoral State has exclusive jurisdiction within the belt as regards mere matters of police and control is universally recognised. Thus it can exclude foreign pilots, can make custom-house arrangements, sanitary regulations, laws concerning stranded vessels and goods, and the like. It is further agreed that foreign merchantmen casting anchor within the belt or entering a port,[343] fall at once and _ipso facto_ under the jurisdiction of the littoral State. But it is a moot point whether such foreign vessels as do not stay but merely pa.s.s through the belt are for the time being under this jurisdiction. It is for this reason that the British Territorial Waters Jurisdiction Act of 1878 (41 & 42 Vict. c. 73), which claims such jurisdiction, has called forth protests from many writers.[344] The controversy itself can be decided only by the practice of the States. The British Act quoted, the basis of which is, in my opinion, sound and reasonable, is a powerful factor in initiating such a practice; but as yet no common practice of the States can be said to exist.

[Footnote 343: The Inst.i.tute of International Law--see Annuaire, XVII.

(1898), p. 273--adopted at its meeting at the Hague in 1898 a "_Reglement_ sur le regime legal des navires et de leurs equipages dans les ports etrangers" comprising seven rules.]

[Footnote 344: See Perels, pp. 69-77. The Inst.i.tute of International Law, which at its meeting at Paris in 1894 adopted a body of eleven rules regarding the maritime belt, gulfs, bays, and straits, voted against the jurisdiction of a littoral State over foreign vessels merely pa.s.sing through the belt. See Annuaire, XIII. p. 328.]

[Sidenote: Zone for Revenue and Sanitary Laws.]

-- 190. Different from the territorial maritime belt is the zone of the Open Sea, over which a littoral State extends the operation of its revenue and sanitary laws. The fact is that Great Britain and the United States, as well as other States, possess revenue and sanitary laws which impose certain duties not only on their own but also on such foreign vessels bound to one of their ports as are approaching, but not yet within, their territorial maritime belt.[345] Twiss and Phillimore agree that in strict law these Munic.i.p.al Laws have no basis, since every State is by the Law of Nations prevented from extending its jurisdiction over the Open Sea, and that it is only the Comity of Nations which admits tacitly the operation of such Munic.i.p.al Laws as long as foreign States do not object, and provided that no measure is taken within the territorial maritime belt of another nation. I doubt not that in time special arrangements will be made as regards this point by a universal international convention. But I believe that, since Munic.i.p.al Laws of the above kind have been in existence for more than a hundred years and have not been opposed by other States, a customary rule of the Law of Nations may be said to exist which allows littoral States in the interest of their revenue and sanitary laws to impose certain duties on such foreign vessels bound to their ports as are approaching, although not yet within, their territorial maritime belt.

[Footnote 345: See, for instance, the British so-called _Hovering Acts_, 9 Geo. II. c. 35 and 24 Geo. III. c. 47. The matter is treated by Moore, I. -- 151; Taylor, -- 248; Twiss, I. -- 190; Phillimore, I. -- 198; Halleck, I. p. 157; Stoerk in Holtzendorff, II. pp. 475-478; Perels, -- 5, pp.

25-28. See also Hall, "Foreign Powers and Jurisdiction," ---- 108 and 109, and Annuaire, XIII. (1894), pp. 135 and 141.]

VII

GULFS AND BAYS

Vattel, I. -- 291--Hall, -- 41--Westlake, I. pp. 183-192--Lawrence, -- 72--Phillimore, I. ---- 196-206--Twiss, I. ---- 181-182--Halleck, I.

pp. 165-170--Taylor, ---- 229-231--Walker, -- 18--Wharton, I. ---- 27-28--Moore, I. -- 153--Wheaton, ---- 181-190--Bluntschli, ---- 309-310--Hartmann, -- 58--Heffter, -- 76--Stoerk in Holtzendorff, II. pp. 419-428--Gareis, -- 21--Liszt, -- 9--Ullmann, -- 88--Bonfils, No. 516--Despagnet, Nos. 405-406--Merignhac, II. pp.

394-397--Pradier-Fodere, II. Nos. 661-681--Nys, I. pp.

441-447--Rivier, I. pp. 153-157--Calvo, I. ---- 366-367--Fiore, II.

Nos. 808-815, and Code, Nos. 278-279--Martens, I. -- 100--Perels, -- 5--Schucking, "Das Kustenmeer im internationalen Recht" (1897), pp. 20-24--Barclay in Annuaire, XII. pp. 127-129--Oppenheim in Z.V. I. (1907), pp. 579-587, and V. (1911), pp. 74-95.

[Sidenote: Territorial Gulfs and Bays.]

-- 191. It is generally admitted that such gulfs and bays as are enclosed by the land of one and the same littoral State, and whose entrance from the sea is narrow enough to be commanded by coast batteries erected on one or both sides of the entrance, belong to the territory of the littoral State even if the entrance is wider[346] than two marine leagues, or six miles.

[Footnote 346: I have no reason to alter the above statement, although Lord Fitzmaurice declared in the House of Lords on February 21, 1907, in the name of the British Government, that they considered such bays only to be territorial as possessed an entrance _not_ wider than six miles.

The future will have to show whether Great Britain and her self-governing colonies consider themselves bound by this statement. No writer of authority can be quoted in favour of it, although Walker (-- 18) and Wilson and Tucker (5th ed., 1910, -- 53) state it. Westlake (vol.

I. p. 187) cannot be cited in favour of it, since he distinguishes between bays and gulfs in such a way as is not generally done by international lawyers, and as is certainly not recognised by geography; for the very examples which he enumerates as _gulfs_ are all called _bays_, namely those of Conception, of Cancale, of Chesapeake, and of Delaware. In the North Atlantic Coast Fisheries case, between the United States and Great Britain, which was decided by the Permanent Court of Arbitration at the Hague in 1910, the United States--see the official publication of the case, p. 136--also contended that only such bays could be considered territorial as possessed an entrance not wider than six miles, but the Court refused to agree to this contention.]

Some writers maintain that gulfs and bays whose entrance is wider than ten miles, or three and a third marine leagues, cannot belong to the territory of the littoral State, and the practice of some States accords with this opinion. But the practice of other countries, approved by many writers, goes beyond this limit. Thus Great Britain holds the Bay of Conception in Newfoundland to be territorial, although it goes forty miles into the land and has an entrance more than twenty miles wide. And the United States claim the Chesapeake and Delaware Bays, as well as other inlets of the same character, as territorial,[347] although many European writers oppose this claim. The Inst.i.tute of International Law has voted in favour of a twelve miles wide entrance, but admits the territorial character of such gulfs and bays with a wider entrance as have been considered territorial for more than one hundred years.[348]

[Footnote 347: See Taylor, -- 229; Wharton, I. ---- 27 and 28; Moore, I. -- 153.]

[Footnote 348: See Annuaire, XIII. p. 329.]

As the matter stands, it is doubtful as regards many gulfs and bays whether they are territorial or not. Examples of territorial bays in Europe are: The Zuider Zee is Dutch; the Frische Haff, the Kurische Haff, and the Bay of Stettin, in the Baltic, are German, as is also the Jade Bay in the North Sea. The whole matter calls for an international congress to settle the question once for all which gulfs and bays are to be considered territorial. And it must be specially observed that it is hardly possible that Great Britain would still, as she formerly did for centuries, claim the territorial character of the so-called King's Chambers,[349] which include portions of the sea between lines drawn from headland to headland.

[Footnote 349: Whereas Hall (-- 41, p. 162) says: "England would, no doubt, not attempt any longer to a.s.sert a right of property over the King's Chambers," Phillimore (I. -- 200) still keeps up this claim. The att.i.tude of the British Government in the Moray Firth Case--see below, p. 264--would seem to demonstrate that this claim is no longer upheld.

See also Lawrence, -- 87, and Westlake, I. p. 188.]

[Sidenote: Non-territorial Gulfs and Bays.]

-- 192. Gulfs and bays surrounded by the land of one and the same littoral State whose entrance is so wide that it cannot be commanded by coast batteries, and, further, all gulfs and bays enclosed by the land of more than one littoral State, however narrow their entrance may be, are non-territorial. They are parts of the Open Sea, the marginal belt inside the gulfs and bays excepted. They can never be appropriated, they are in time of peace and war open to vessels of all nations including men-of-war, and foreign fishing vessels cannot, therefore, be compelled to comply with munic.i.p.al regulations of the littoral State concerning the mode of fishing.

An ill.u.s.trative case is that of the fisheries in the Moray Firth. By article 6 of the Herring[350] Fishery (Scotland) Act, 1889, beam and otter trawling is prohibited within certain limits of the Scotch coast, and the Moray Firth inside a line drawn from Duncansby Head in Caithness to Rattray Point in Aberdeenshire is included in the prohibited area. In 1905, Mortensen, the captain of a Norwegian fishing vessel, but a Danish subject, was prosecuted for an offence against the above-mentioned article 6, convicted, and fined by the Sheriff Court at Dornoch, although he contended that the incriminating act was committed outside three miles from the coast. He appealed to the High Court of Justiciary, which,[351] however, confirmed the verdict of the Sheriff Court, correctly a.s.serting that, whether or not the Moray Firth could be considered as a British territorial bay, the Court was bound by a British Act of Parliament even if such Act violates a rule of International Law. The British Government, while recognising that the Scotch Courts were bound by the Act of Parliament concerned, likewise recognised that, the Moray Firth not being a British territorial bay, foreign fishing vessels could not be compelled to comply with an Act of Parliament regulating the mode of fishing in the Moray Firth outside three miles from the coast, and therefore remitted Mortensen's fine. To remedy the conflict between article 6 of the above-mentioned Herring Fishery (Scotland) Act, 1889, and the requirements of International Law, Parliament pa.s.sed the Trawling in Prohibited Areas Prevention Act,[352]

1909, according to which no prosecution can take place for the exercise of prohibited fishing methods outside the three miles from the coast, but the fish so caught may not be landed or sold in the United Kingdom.[353]

[Footnote 350: 52 and 53 Vict. c. 23.]

[Footnote 351: Mortensen _v._ Peters, "The Scotch Law Times Reports,"

vol. 14, p. 227.]

[Footnote 352: 9 Edw. VII. c. 8.]

[Footnote 353: See Oppenheim in Z.V. V. (1911), pp. 74-95.]

[Sidenote: Navigation and Fishery in Territorial Gulfs and Bays.]

-- 193. As regards navigation and fishery within territorial gulfs and bays, the same rules of the Law of Nations are valid as in the case of navigation and fishery within the territorial maritime belt. The right of fishery may, therefore, exclusively be reserved for subjects of the littoral State.[354] And navigation, cabotage excepted, must be open to merchantmen of all nations, but foreign men-of-war need not be admitted.

[Footnote 354: The Hague Convention concerning police and fishery in the North Sea, concluded on May 6, 1882, between Great Britain, Belgium, Denmark, France, Germany, and Holland reserves by its article 2 the fishery for subjects of the littoral States of such bays as have an entrance from the sea not wider than ten miles, but reserves likewise a maritime belt of three miles to be measured from the line where the entrance is ten miles wide. Practically the fishery is therefore reserved for subjects of the littoral State within bays with an entrance thirteen miles wide. See Martens, N.R.G. 2nd Ser. IX. (1884), p. 556.]

VIII