In discussing naval phases of the European War, together with possible and probable operations in various waters, the writer found that his lack of precise knowledge of the political status of different bodies of water other than the high seas was widely shared.
A search for information on this score brought forth many interesting facts relating to the history of some of the waters and to the growth of definite customs regarding them. The present paper is compiled from notes taken in the course of the search referred to.
The following authorities were consulted:
Moore, International Law Digest, Washington, 1906.
Oppenheim, International Law, London, 1912.
Stockton, Outlines of International Law, Scribner's, 1914.
Latour, La Mer Territoriale, Paris, 1889.
Encyclopedia Britannica, 11th Edition.
References to the source of information for each fact stated below are not given for the reason that the important facts are quoted by virtually all the authorities consulted and the references would thus become very cumbersome.
A state is defined as an organized group of individuals permanently occupying and controlling a fixed territory. If the state is sovereign it has entire control over such territory in both its internal and external relations. If it is not sovereign its status is usually well defined, so that there exists no doubt as to jurisdiction over the territory, except in occasional instances of boundary disputes.
So much for jurisdiction over the territory or land of the earth. There remains to be considered, however, the much greater area of the earth covered by water.
By the very nature of things a state must have control over any bodies of water which are entirely within its territory and surrounded by it, for, to obtain access to such water, a foreign state would be compelled to trespass upon the territory of the state in question. Nor could such trespass be avoided, even by traveling through the air, for the tendency of modern states is to claim as territorial the air above their dominions to an unbounded height.
But far the greater surface of water on the earth is not wholly confined within the limits of one state, but either borders on territory unequivocally under foreign sovereignty, discharges into such territory, or borders upon the open sea. Aside from such waters are the high seas themselves.,
So it has become necessary, for the purposes of amicable coexistence and intercourse of states, to have clearly defined, either by general rules, or by specific sanction, the rights and restrictions of all parties concerned in the use of all waters.
SEAS OR OCEANS
Beginning with the largest divisions of water, the seas or oceans, we find that in antiquity, to the limited extent that the seas were known and used, they were free. No weight is given the contending claim of the Roman Emperor Antoninus Pins "Being the emperor of the world, I am consequently the law of the sea."
But, as we get to the later Middle Ages, we find states making exclusive claims to certain seas, enforcing these claims, and having them recognized by other states. This was the doctrine of Mare Clausum. As examples we may quote the request of the Emperor Frederick III of Germany upon Venice, in 1478, for permission to transport corn through the Adriatic; also the practice of England in forcing all foreigners to take out an English license to fish in the North Sea.
To a state of society tolerating such principles as these, the liberal principles proposed by Grotius, the "father of International Law," in his treatise Mare Liberum, published in 1609, appeared heretical and aroused protest.
But the germ was planted, the idea grew and, by the end of the first quarter of the 19th century, the doctrine of the freedom of the open sea had universal acceptance.
Just recently, however (July, 1915), Italy has declared the Adriatic Sea closed to navigation of all countries north of a line joining Otranto and a point on the opposite shore. This, of course, has been done as a belligerent act, wherein it differs from the former exercise of such authority as a simple sovereign act, irrespective of war rights or powers.
The London press in December, 1915, discussed a proposal that the Allies should close the Mediterranean and permit trading therein by license only.
These acts, or proposed acts, do indeed contravene the liberal ideas which had slowly gained control, but in a struggle of the magnitude of the present war, wherein, too, all the great maritime nations are belligerents, it is hardly to be wondered at, though deeply regretted, that some conventions should be overridden when one belligerent or another believes it to be of advantage to take such action.
Having noted these exceptions to established custom, we return to a consideration of the growth of this custom.
England long laid claim to the "Narrow Seas," or "King's Chambers," composed of St. George's Channel, the Bristol Channel, the Irish Sea and the North Channel. As late as 1805 the regulations for the government of the British Navy required every commander afloat to see to it that all foreign ships "within His Majesty's Seas (which extend to Cape Finisterre)" should strike their topsails in acknowledgment of Britain's sovereignty therein. In the Territorial Waters Jurisdiction Act of 1878, though, no such claim was made, and it may be considered to have been quietly dropped, along with all other such claims.
Thus we see that the seas themselves have come to be free and open to all alike; but all seas border on the territory of one or more states. Was the doctrine of freedom of the seas to extend to the very shores of such states?
Maritime Belt.—The answer, given by the states themselves is "No." They have been a unit in declaring for a fictitious extension of territory which has come to be called the "maritime belt," also frequently referred to as the "Marine League."
Justification for this is found, first, in the fact that the security of the bordering state demands exclusive possession; second, in the need for surveillance of shipping, for guaranty of good policing, and securing political and fiscal interests (customs dues, etc.) ; third, in the necessity for assuring the existence of the population along the coast (coast-fisheries);
Writers, though, draw a distinction between the sovereignty over the land territory and over the maritime belt. The state exercises territorial supremacy in her continental domain but only what we might call a primacy of interest in the maritime belt. To illustrate the difference, a state permits to foreign vessels the right of innocent passage in the maritime belt, but does not concede this privilege on its national rivers.
Some writers, too, draw a further distinction between those rights in the maritime belt which a state may or may not, by its sovereignty, reserve to itself, according as they are exhaustible or inexhaustible. Thus the ability to pass through waters is inexhaustible, while the fisheries of the same are not. Hence the state may keep for itself the fisheries of such waters, but not the right of passage.
However, the right which each member of the family of nations has to intercourse with the other members would in itself give the right to innocent passage through such waters.
Extent of Maritime Belt.—Granted that states are entitled to a maritime belt about their territory, it becomes necessary to fix the extent of such belt, i.e. its inner and outer limits.
The Romans, in cases where it became necessary to measure distances from the shore line, began at the high water-mark, but latter-day treaties recognize the low water-mark as the one from which the maritime belt is measured. In this, as in so many other phases of international law, various proposals have been made by writers, such as beginning the belt at the line of navigable depth, but practice has become general in choosing the limit given above.
The inner line of the maritime belt follows the sinuosities of the coast-line. Its location at the mouths of bays and rivers will be treated below.
What the width of the belt should be has been a vexed question. In the Middle Ages, when protection against pirates was one of the strongest reasons for the existence of the belt, 60 marine miles was often claimed, and is so recorded by the writers of the times. We have record, too, of Spain's exercising her authority over such area.
Bynkershoek, in 1702, first proposed that, as the purpose of the maritime belt was to afford security to the coast, it should extend only so far as the sea could be defended from the coast, i. e., to the limit of cannon range.
There have been treaties which embodied this definition, notably that of 1799 between Great Britain and the United States, and this principle is favored by Germany at the present time.
Following the first enunciation of the principle of cannon range, the actual distance represented increased with improvement of ordnance, but a need was later felt for a more exact definition, and so we find many states embodying in treaties a distance which, at the time the treaties were made, represented about the extreme range of cannon shot, three miles. So general did this rule become that it has continued down to the present time, and has well-nigh universal recognition. Certain exceptions to be noted are Norway, which claims that the configuration of her coast necessitates her exercising jurisdiction over a belt four miles wide, and Spain, which claims six miles.
The mile, used as unit of measurement, is generally stipulated in treaties as being the one-sixtieth part of a degree of latitude.
In passing, as a matter of interest, we may note the statement of one of our early statesmen, President Jefferson, that the United States should lay claim to jurisdiction to the inner edge of the Gulf Stream.
The Institute of International Law, at its sessions in 1894, adopted certain rules regarding territorial waters which Holland, in 1896, brought to the attention of European and American governments for conference thereon, but no further action was taken.
These rules proposed that territorial waters should extend six marine miles from the low water-mark, following the sinuosities of the coast, except that in the case of bays more than 12 miles wide, the belt is to be measured from a straight line from shore to shore at the points where the bays contract to 12 miles.
For greater security of states, and considering, too, the increase in draft of ships, it seems advisable that the limit should be extended to six miles, but the three mile principle is so well established that it seems little likely to be changed.
In this connection it is interesting to recall that, in the case of the fight between the Kearsarge and the Alabama, off the French coast, the French government demanded that the action be held at such distance from the shore that shells would not drop in territorial waters of France.
Jurisdiction over Maritime Belt.—Although writers differ on the question, it seems good practice to affirm that no state has the right to deny innocent passage through her territorial belt to foreign merchantmen, subject, of course, to the rights of belligerents. This, however, does not include the right of cabotage or coastwise trade. Such innocent passage cannot be claimed by men-of-war unless the territorial waters font part of the highway between open seas, but is usually not denied them.
The question as to the extent of jurisdiction of a bordering state over foreign merchantmen passing through the waters is a moot one. In the celebrated case of the Franconia, in 1876, the British Court for Crown Cases Reserved held that English courts had no jurisdiction over crimes committed in the English territorial belt. Parliament, in 1878, passed the "Territorial Waters Jurisdiction Act" to remedy the situation. By this bill it was declared that an infraction committed by an individual, whether or not a subject of great Britain, within the territorial waters of His Britannic Majesty, came within the jurisdiction of the Admiralty courts, even though the offense were committed on board a foreign vessel. Another article of the bill declares, however, that action in such cases shall not be taken, except with the consent of one of the principal Secretaries of State of His Majesty. This would indicate that the right is not held to be so free from question as to warrant its unrestricted enforcement.
The Institute of International Law has adopted the rule that crimes or offenses committed aboard a foreign ship passing through territorial waters are outside the jurisdiction of the bordering state unless such crimes affect the state's rights.
This accords with the view taken by the United States Supreme Court, in the case of Church vs. Hubbart, that nations may prevent violations of their laws by seizures on the high seas in the neighborhood of their coasts, but the seizure must be justifiable under the laws of the country exercising that right.
ENCLOSED SEAS AND INTERIOR SEAS
Inland waters serving as means of access to the ports of one state are considered, in general, to be territorial.
The seas of Azov and Kara are considered territorial by Russia. and seemingly with good ground.
In the case of the Inland Sea of Japan, the British Supreme Court at Shanghai declared this to be the high seas. The Privy Council, on appeal, reversed the lower court's decision in the case, but made no comment on the question of the Inland Sea's being part of the high seas. Japan treats it, however, as territorial waters, and, in view of the narrowness of the openings to it, it is hard to see how it could be otherwise regarded.
The Black Sea has had an interesting history. Until the eighteenth century it was bordered by Turkish territory only, and under such conditions was treated as a closed sea by Turkey. With the advent of Russia upon its shores it ceased to be a closed sea and foreign merchant shipping was admitted; later, by the treaty of Paris, 1856, it was opened to commerce of all nations and neutralized. The flag of war was forbidden, except in the case of a few small Russian and Turkish vessels maintained for police purposes.
In 1870 Russia disregarded the stipulation prohibiting men-of-war, and, by the treaty of London, 1871, the requirement of neutralization and exclusion of men-of-war were abolished.
The Baltic Sea was virtually closed by Denmark's control over the sound from early times down to 1857, but by treaties in that year the sound and sea were declared open. No special declaration as to the Baltic's condition in time of war has been made, but in treaties between Russia and Sweden, in 1759, between Russia and Denmark, in 1780, between Russia and Prussia, in 1781, and between Denmark and Sweden, in 1794, the Baltic was declared neutral. Some writers uphold the right of the bordering countries to declare the Baltic closed, but this has not been done in any recent war.
In the case of interior seas, which term includes lakes, the custom has been to divide their waters proportionally among the bordering states. Thus the Caspian is Russian and Persian, although, as by treaty Russia alone can keep armed vessels thereon, the sea is virtually Russian.
The Great Lakes of North America, with the exception of Lake Michigan, are considered entirely territorial waters divided between Great Britain and the United States by a line midway between their shores. Lake Michigan belongs entirely to the United States.
GULFS AND BAYS
It is generally admitted that gulfs and bays enclosed by one state, whose entrance from the sea can be commanded by coast batteries, belong to the enclosing state, even if the entrance is more than six miles wide; whereas bays whose entrance cannot be commanded by batteries, also those enclosed by more than one state, must be considered part of the open sea.
In practice, though, there are certain exceptions. Great Britain has always claimed Conception Bay as territorial, and the United States has claimed Chesapeake Bay and Delaware Bay similarly.
As stated above, the Institute of International Law has recommended that bays be considered territorial only where less than 12 miles, though exempting from this provision those wider bays which have been considered territorial for more than ioo years.
Various fishery conventions concerning the North Sea made by the bordering states stipulate that exclusive jurisdictions may be exercised in bays up to 10 miles in width.
In the award of the Hague tribunal, in 1910, concerning North Atlantic coast fisheries, it was decided that the marine league should be measured at right angles from a straight line across the body of water at the place where it ceases to have the configuration and characteristics of a bay.
In the case of a foreign fishing vessel violating British fishing laws in the Moray Firth, but more than three miles from shore, the British government recognized the Firth as not being a British territorial bay.
As Oppenheim well says, the whole matter calls for an international conference to settle what gulfs and bays are to be considered territorial.
We may divide straits into two general classes, the first, those leading to inland or territorial seas and the second class those connecting open seas. As regards the first class, if the strait is narrow enough to be commanded by coast batteries, there can be no question of the territoriality of the waters. The second class of straits is that which raises questions of jurisdiction. In this case the bordering state has the same rights as in the case of coast waters. It has jurisdiction if the strait is not over six miles wide, but cannot deny the right of innocent passage to merchantmen nor to men-of-war. Again we must note that, whereas the governing principle is as just stated, certain straits are, by agreement, excepted therefrom.
In 1894 the Institute of International Law adopted the following principles relative to straits:
1. Straits whose shores belong to different states form part of the territorial waters of the bordering states, who have sovereignty to the middle limit.
2. Straits whose shores belong to one state form, so far as concerns approach to the coast, part of the territorial waters of such state, although they may be indispensable as means of maritime communication between two or more states.
3. Straits which serve as passage from one free sea to another can never be closed. Straits actually subject to conventions or special usages are exempted from these rules.
The Sound.—From as early as the fourteenth century, Denmark claimed jurisdiction over the sound and the two belts leading to the Baltic and collected tolls on all ships passing, in return for which she guaranteed freedom from piracy and maintained aids to navigation and pilots.
In 1848 the United States protested against this practice, declaring that, under the public law of nations, navigation of the two seas connected was free to all nations, therefore navigation of the sound connecting them should also be free.
After several years of negotiations, Denmark, in 1857, concluded a treaty with the principal European maritime nations whereby, in return for indemnities paid her, Denmark gave up her claims to tolls. In the same year a treaty between Denmark and the United states to the same effect was concluded.
Dardanelles and Bosphorus.—Until the eighteenth century, Turkey surrounded the Black Sea and her exclusion of all foreign shipping therefrom was allowed. After Russia became a bordering state, however, Turkey was obliged to permit passage of foreign merchant shipping through the Dardanelles and Bosphorus, but she continued to exclude foreign men-of-war. By various treaties this action was confirmed, and by the treaty of Paris, 1856, the Black Sea was neutralized and opened to merchant shipping of all nations, but forbidden to the flag of war, except certain small Turkish and Russian patrol vessels. By separate convention the rule excluding foreign men-of-war from the Dardanelles and Bosphorus was reaffirmed.
In 1870 Russia disregarded the neutralization of the Black Sea, and in the treaty of London, 1871, this neutralization and exclusion of men-of-war therefrom were abolished.
In 1902 Turkey permitted Russia to pass four torpedo-boat destroyers through the Bosporus and Dardanelles, but disarmed under merchant flag. Great Britain protested against this and reserved the same right f or herself.
Again, in the Russo-Japanese war two vessels of the Russian volunteer fleet passed through the straits under merchant flag, later hoisting the man-of-war flag and undertaking offensive operations in the Red Sea. No nation protested to Turkey against this passage, as, of course, it was not possible for Turkey to foresee the use to which these ships would be put.
Straits of Juan de Fuca.—By treaty of 1846 the boundary between the United States and Canada follows the middle of the channel between Vancouver Island and the mainland from the 49th parallel of latitude through the strait to the sea. The whole strait is open to the use of both countries, but both have considered the waters as entirely territorial.
Straits of Magellan.—In 1879 the United States Secretary of State declared that this country would not tolerate exclusive claims by any nation whatsoever to the straits of Magellan. A treaty between Argentina and Chile, made in 1881, neutralized the straits, guaranteed free navigation to all nations and forbade fortifications thereon. This put an end to all disputes as to the straits.
If a river lies wholly within a state, it is, like interior seas and lakes, wholly under the jurisdiction of that state and "not open to foreign states, except by grant of that privilege. Canada, in 1876, and again in 1892, agitated the question of the right of Canadian vessels to use the Hudson River as far as New York, as contingent upon their right to use the Champlain Canal to Albany. The United States replied that the Hudson lies wholly within the United States and is not an international river.
By treaty between the United States and Great Britain, in 1790, the use of the Mississippi River was reserved to subjects of Great Britain and the citizens of the United States forever, but this was done under the misapprehension that the river had its source in Canada. In 1818, when another treaty between the United States and Great Britain was negotiated, the United States Commissioners refused to agree to a similar provision, as it was then known that the Mississippi River lies wholly within the United States.
Rivers which form boundaries between states are under the jurisdiction of such bordering states, the dividing line usually being the middle of the navigable channel, unless otherwise stipulated.
Rivers which flow through two or more states come under the jurisdiction of each in its own territory, but no state has the right to take any action on its part of such river as will affect adversely the enjoyment by another state of its rights in the same river.
Until the French Revolution, bordering states on international rivers had, and sometimes exercised, the right of excluding navigation of such rivers in their territory by ships of foreign states which bordered on the same river.
The Congress of Vienna, though, in 1815, recognized the principle of the right of free navigation between the sea and head of navigation on international rivers, not only by the bordering states but by all states.
The treaty of Paris, 1856, opened the Danube to free navigation, and the Congo Conference at Berlin, 1885, did the same for the Congo and Niger rivers and their tributaries.
This free navigation refers, of course, to commercial shipping only. We have very recently, in the present war, seen the refusal of Rumania to allow men-of-war of either Austria or Russia to use the Danube in Rumanian territory.
The recognition of this principle of free navigation on international rivers has not been universal, however, as the United States for many years was not granted by Great Britain the free use of the St. Lawrence from the international boundary to the sea. In 1854, by treaty, Great Britain granted this privilege, reserving the right to suspend it, but by the treaty of Washington, 1871, navigation of the river was declared free and open forever for purposes of commerce to citizens of the United States, subject to all laws and regulations of Great Britain and Canada not inconsistent therewith. This does not, however, grant the right of passage of United States men-of-war.
The rivers Yukon, Porcupine, Strikine and St. John (where it forms the international boundary) by treaty with Great Britain are governed by the same principles as the St. Lawrence; by treaties with Mexico, in 1848 and 1853, rights in the Colorado river, Gulf of California and Rio Grande are similarly secured.
By proclamation of Argentina and by treaties between the United States and Paraguay, the Plata, Parana, Paraguay and Uruguay rivers are open to free navigation.
Amazon.—The right of the United States to navigate this river formed the subject of much diplomatic negotiation from 1850 on, and finally, in 1866, the Government of Brazil declared the river open to vessels of all nations; Bolivia had previously made a similar decree, regarding headwaters or tributaries to the Amazon, and Peru later did likewise.
Brazil, however, requires the securing of a permit as a condition for foreign men-of-war ascending the river. The U. S. S. Wilmington, in 1899, made this trip.
Orinoco.—Venezuela permits the use of one channel in this river, but has closed the other by decree. The United States protested against this closure, but Venezuela refused to rescind her decree.
Canals being artificially constructed, there can be no question of the complete jurisdiction over them by the state in whose territory they lie, save where modified by treaty stipulations.
In general states have been more liberal to foreign states in grants of privileges in canals than in rivers, but this cannot be considered a purely philanthropic action, as the question of revenue from tolls has an important bearing.
The Kiel canal in Germany and the Corinth canal in Greece are each controlled by the bordering state and have been opened to all merchantmen.
It is interesting to note here that the construction of the Kiel Canal gave rise to agitation in France over the construction of a canal to join the Atlantic and Mediterranean, passing through southern France. It was argued that the Kiel Canal doubled the value of Germany's fleet, and further that the control of the Straits of Gibralter by England might operate to cut off the two coasts of France from each other. A study of the project by government officials was made, but the difficulties were considered too great and the project was dropped.
Suez Canal.—This was built by a so-called Universal company formed by De Lesseps under a firman, or concession, issued by the viceroy of Egypt, a vassal state of Turkey. The firman granted a 99-year concession, at the end of which time the canal was to revert to the Egyptian Government.
Without going into details regarding the history of its construction and the negotiations concerning its status, it will suffice to state that, by the convention of Constantinople, 1888, the canal was declared to be open in peace and in war to the merchantmen and men-of-war of all nations. It cannot be blockaded, nor is any act of hostility allowed within it nor within the three-mile limit of either of its terminal ports.
Men-of-war of belligerent nations must pass through without delay; troops, munitions and other war material may not be loaded or unloaded within the canal or its harbors ; no men-of-war may be stationed in it, nor any permanent fortifications erected.
During the Franco-Prussian war ships of both belligerents used the canal.
At the time that Great Britain proposed the treaty draft which later became the Constantinople Convention, she declared that, in respect to the free passage of the canal, she reserved the right to take such action as might be deemed necessary by her, while her troops remained in Egypt. This reservation was referred to again in the British Parliament in 1898.
In 1898, during the war with Spain, the United States inquired of England, as the controlling power of the canal, whether the United States, a non-signatory power to the Constantinople convention, was on the same footing as regards free passage of men-of-war as the signatory powers. The reply was affirmative.
As Egypt virtually forms to-day a protectorate of Great Britain the canal may be considered, for practical purposes, to be in British territory. It is at all events controlled by the British. Of the 400,000 shares of the canal company's stock, 177,624 were assigned to the Khedive of Egypt. These shares, less 1040, of which the Khedive had already disposed, were bought from him by the British Government in 1875.
Whether the close of the present war will see any change in the conventions regulating the use of the canal is problematical. It forms a vital link in the path to Great Britain's possessions and is not likely to be overlooked in any international agreements that are made.
Panama Canal.—This is constructed in United States territory and is wholly under the jurisdiction of the United States. By the Hay-Pauncefote treaty of 1901, between the United States and Great Britain, the canal is declared open and free to merchantmen and men-of-war of all nations on terms of entire equality. It is never to be blockaded nor any act of hostility to be committed within it. Belligerent men-of-war are forbidden to revictual, take on stores or stop within it. In fact the treaty declares that the principles of the Constantinople Convention of 1888 are accepted as applying to the Panama Canal.
No provision was made for the adherence of any other state to the treaty, nor is there any reference to defenses, though it was understood that the United States reserved the right to take such measures in this respect as it saw fit, and the canal is actually being fortified.