From the time that men first ventured forth upon the waters of the earth they have found them the cheapest highways for transportation of goods between nations. At first there was no one to deny free use of waterways; but soon those in position to do so found it profitable to try to monopolize them. Through the centuries such monopoly has been common; but now there is comparative freedom. Still we hear much demand for freedom of the seas. What freedom now exists and how that freedom was arrived at is the subject of this inquiry.
Before men navigated the high seas they used rivers and straits.
The Danube and its tributaries drain many of the countries of Europe. Its lower reaches are navigable by seagoing vessels, and its mouth is the nearest outlet for Black Sea countries to Constantinople and its straits. Its upper reaches bring traffic to the seaports downstream or distribute it upstream. Navigation on the Danube began in the dim past. Under Roman administration, the flourishing river traffic was open to all comers, a tax being levied on ships to defray cost of maintenance and police. But, in the dark ages following, central authority was lacking and each petty princeling along the bank levied taxes for passage, much as country constables levied taxes on automobilists in the beginning of the motor era. This practice resulted in almost prohibitive cost and delay.
Then the Turks mastered the Danubian countries, and added to the existing evils a prohibition against any trade other than with Constantinople. This lasted through the fourteenth and fifteenth centuries, after which the Turkish tide receded until Russia reached the river by acquiring Bessarabia.
Turkish monopoly ended in 1829 when Russia gained control of the mouth. This time coincided with the industrial revolution in England, which demanded much produce to feed the growing industries of that great maritime country. Accordingly trade developed rapidly. But the change of masters was no unmixed blessing. The river was alluvial and tended to silt up, and the upper river needed development to permit of freer navigation. Back in the days of the Romans these things had been attended to, and even the Turks had done them passably well; but the Russians had a rival port in Odessa and were not interested. The channels shifted and shoaled, wrecks were frequent, piloting and use of facilities became a racket from which modern racketeers might learn much, and nothing could be done about it. Effort was made to dig a canal across the peninsula to by-pass the mouth of the canal, and two railroads were actually built for the same purpose, but navigational conditions were remedied and the railroads failed to pay. The remedy came about in this wise.
The countries of Europe, led by England, were irked by the conditions of Danube navigation. When it came time to settle the Crimean War, they set up commissions to police the river, administer the facilities, remove obstructions, and facilitate navigation. These commissions were to be governed by the principle that international rivers should be administered for the benefit of world commerce, but by the riparian (bordering) states.
The European (temporary) commission had members representing Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey. It was to designate and cause to be executed the works necessary to clear the mouths of the Danube and facilitate navigation. It levied dues on shipping to pay for these things, just as the Romans had, thus making the project self-liquidating. The permanent commission was to execute these requirements.
Due to various jealousies in connection with the working of this scheme, the local permanent commission has never functioned and the temporary European commission, after three-quarters of a century, is still going strong. This commission has considerable in common with the Port Authority of New York, and perhaps more with the new Tennessee Valley Authority erected to administer the great projects now being undertaken there. That is, it has corporate, legislative, and executive functions overlapping the jurisdiction of the various states in which it functions.
The commission, strengthened from time to time, has been able to accomplish its object with general satisfaction. It has in no way served to prevent the use of the river in war by both armies and navies.
The Rhine presented different problems. Originally its traffic was downstream, distributing products brought from the Danube. When the Turks monopolized Danube traffic, the goods came instead from Italy. Later they came upstream from sea. Then Switzerland at one end favored canals to improve the navigation and give her access to the sea, while Holland at the other collected tolls at the mouth and favored all the traffic possible. In between the petty principalities collected from the passing traffic, as in the Danube.
The first break in this nuisance toll system was brought about by the forces of the French Revolution, which gained control of the whole length of one bank of the river, placed it under one jurisdiction, and removed all unnecessary restrictions, lumping those that remained so that they were imposed but once for the whole length of the river. The traffic more than doubled; but Napoleon’s contest with the sea power of England shut off the traffic, the control reverted to the petty states, and all that had been gained was lost.
Once more it grew, but slowly. Progress came under the leadership of Prussia, which used the need for unity on the river as a means to weld together the German states into a closer confederation, from which grew the German Empire. Traffic was regulated, disciplined, and made profitable. Students of international government will find the details of this story fascinating.
But the Rhine states were only one of the Rhine problems. Access to them from the sea was in the control of the low countries, Holland particularly. Her position athwart the passage from sea to the river routes has made her and her neighbor Belgium the center of much warfare. Holland exacted for access to the river tolls as heavy as the traffic would bear. And thereby hangs a tale that illustrates one of the common difficulties arising out of international agreements. After the Napoleonic wars, the Peace of Paris provided that the navigable portion of the Rhine to and from the sea should be free, and their use forbidden to no one. This sounded perfectly clear, but Holland still collected tolls. She defended this practice by calling attention to the wording of the treaty, which said that the river should be free “jusqu’a la mer.” She said that this wording meant precisely what it said; and that the treaty therefore did not apply to the marginal sea which extended three miles out from the coast. It was for this marginal sea, acknowledged to be Dutch territorial waters, that she charged tolls.
Gradually, however, partly because of the objections of upriver states, but largely because she found it more profitable to get smaller revenues from larger traffic rather than larger ones from smaller traffic, she has removed these tolls and been satisfied with the profit from the reloading and transshipment business which came to her naturally and for which she has developed excellent facilities.
Rhine traffic also illustrated during the World War a peculiarity of international law regarding water traffic. Road making materials greatly in excess of peace-time requirements were shipped by Germany through Holland into occupied Belgium, a traffic to which England strongly objected as a breach of neutrality. Germany defended the traffic by saying that the material was used for civil, not military, purposes. It was finally stopped on the ground that Germany would not allow Holland to inspect and find out for herself if the material was for innocent use. The peculiarity lies in the fact that no objection was or could be made to the same kind of traffic if it originated in Holland itself, while passage through was illegal if the material was for military use.
Most other international rivers of Europe are open to navigation at least to all riparian powers. Few river seaports anywhere are restricted. In China, a densely inhabited country, the interests of trade have brought about the opening of river navigation to foreigners at the treaty ports. Aside from these all movement in China was until recently subject to likin, or tax on movement, so that costs mounted rapidly with distance. This was supposed to be an invention of the heathen Chinese, but it does not appear to differ greatly from the practice already described as having been followed on the Danube and Rhine. South American and African rivers, being in sparsely settled regions needing traffic, are generally free.
In the history of international straits and canals the same contest between control by the power having the advantage of position and the general interest of world commerce has taken place.
From the time of Jason and the Golden Fleece the Bosporus and the Dardanelles have constituted a defile where passage could easily be obstructed whether to the east and west by water or to the north and south by land. Troy and cities before and after it grew great by compelling waterborne commerce to stop and transship there. Sea power was not sufficiently developed and understood to prevent Darius or Xerxes from crossing, but after the battle of Salamis Athenian fleets fortified the Dardanelles and monopolized the Black Sea traffic until Sparta, in the naval battle of Aegospotami, in the Dardanelles (then the Hellespont, or Greek bridge), took away Athenian control, cut off the grain supply of Athens, and thus compelled her surrender. When Rome arrived at the Black Sea she had already eliminated all her rivals, and control was not disputed. But after Constantine established his capital there, the strategic strength of its position on the Straits enabled the Eastern Empire to resist the Barbarian invasion, and to keep open navigation. Constantinople in the Dark Ages was thus the only place that kept alive the traditions of ancient culture, a bridge from ancient glory to modern civilization.
Again when the Turks became a great power in Europe it was not until they had swept beyond it and held Europe to the Danube that they were able to take Constantinople. Meanwhile the great Italian maritime cities fought for the traffic in the Straits, and their prosperity varied in proportion to their ability to monopolize it. It took the Turks a century after they held the ports on both sides of the Dardanelles before they were able to take Constantinople, because the Italian cities could sustain it by sea, and Constantinople could not be taken from the land side. In those days, before heavy artillery was invented, a sea power could not be prevented by land fortifications from navigating the straits. A year after the Turks had planted the newly invented artillery across the Bosporus, Constantinople fell.
For three centuries the Turks closed the Bosporus to all foreign shipping. Then, in 1774, Russia arrived by land on the shores of the Black Sea, and forced open the Bosporus from the east. Thereafter until the World War all Europe was keenly sensitive to the Straits Question. England especially, being more vitally dependent upon maritime trade, indulged in very devious diplomacy with the aim of maintaining the decadent Turks in control in the hope that she might control the Straits by controlling the Turks, or, at Worst, prevent others from doing so. There were numerous European wars and interventions centering around the Straits Question, involving at one time or another all the great powers of Europe. In one of these, where the Sultan had been overthrown, they restored him to his throne and guaranteed his sovereignty. Another resulted in the Crimean War. Europe regularly intervened at the peace to prevent the prize falling to the lot of any one great power.
After the World War, Turkey was the only defeated power to offer armed resistance to the settlement imposed upon her. She was thrown out of Europe, but forced her way back. At Lausanne in 1923 she submitted to the creation of a demilitarized zone along the Straits, and agreed that they should be free to the ships of sea or air without dues except for services rendered. When in 1929 Lausanne went by the board, the demilitarization clause seems to have remained in force, for a few months ago when Prime Minister MacDonald proposed the suppression of the military clauses of the peace treaties, Turkey promptly demanded that the Lausanne Treaty be included in this process, stating that while she did not desire to disturb the articles relating to the freedom of the Straits, she wished to be permitted to have the force necessary to keep them open.
The channels into the Baltic through the Danish Belts are narrow and tortuous. Use of them may be entirely controlled from land. Yet they are the only means of access, except the Kiel Canal, between the outer seas (via the North Sea) and the Baltic on which some five nations border. Denmark thus controls a powerful position, a defile, essential to the commerce of five nations, but wholly in the control of one. Until 1846 nations paid “sound dues” to Denmark for the right to use these channels. The United States and others ended these dues by paying a lump sum, the income from which was available for maintaining the channel.
Glancing through the pages of history since England became a sea power we find her fleets regularly visiting Copenhagen; regularly seeing to it that Denmark is friendly to her; or, if not, promptly taking steps to bring her back to the fold. Time after time England has, in peace, sent fleets to coerce Denmark to do her will. During the World War it was in England’s best interest that Denmark should remain neutral; and she did so. Copenhagen has played a smaller role in history than the Bosporus because the commerce of the Baltic is less and came later; but the same reason governs its importance that governs the greater importance of Constantinople; it controls the bottleneck through which flows the sea-borne trade of all the Baltic countries.
Britain has commanding positions from which to control many such bottle necks: the Strait of Dover, Gibraltar, Malta, Bab el Mandeb, the Strait of Malacca, Hongkong, Florida strait (with the United States on one side and Britain on the other), Yucatan Channel, the various passages into the Caribbean, the Strait of Magellan (with Britain at the Falklands). In Asia, Japan has similar advantage of position at the northern Straits. Not one of these but gives to the power having the advantage of position added power to defend its sea-borne commerce; for at these points trade converges. The holder of the straits may deny passage to the commerce of his enemies, and may ensure a large measure of safety to his own. International straits are now free in peace for the passage of ships of all nations.
The history of the interoceanic canals points the same story of contest between monopoly and freedom. The importance to the world of water transportation, which is less appreciated in this country than abroad, is indicated by the early appearance of navigable canals in history. The interoceanic canals are but the greatest examples of a long series of canals. Hardly had Balboa discovered the Pacific when Charles V of Spain dreamed of an isthmian canal to help exploit his then existing monopoly of that ocean.
The idea of an isthmian canal was early in the mind of the United States government. In 1826 Henry Clay, as Secretary of State, wrote: "…The benefits of it ought not to be exclusively appropriated to anyone nation. . . Two elements led to the earliest treaty about it, the Clayton- Bulwer treaty of 1850. One was the acquisition of California and the great trek west of the forty-niners, many of whom went by ship and across the Isthmus of Panama; a trek that was magnified by the discovery of gold there and in Australia. The other was the desire to prevent Great Britain, who had set up a claim to a protectorate of the Mosquito Coast, from using that opening to get control of an isthmian route. The Monroe Doctrine was a convenient weapon by which to oppose Britain in this matter, but the United States intended the terms of the treaty to mean that Great Britain should give up her protectorate. Great Britain did not see it that way, and further negotiations and another treaty were necessary before that result was accomplished. The aim of the United States at that time did not go further than to prevent the monopoly or control of a canal by Great Britain. International control was definitely desired.
It was not long, however, before our special interests came to the front, increasing until, half a century later, the Hay-Pauncefote Treaty permitted the canal to be built as a United States government enterprise, and to be defended accordingly, while being free for the use of the trade of all countries.
Meanwhile the Suez Canal, dreamed of since early times, was privately built, under French auspices, in Egyptian territory, under the suzerainty of the Turk, upon whom, as we have seen, Great Britain exerted considerable influence. After it had been built and found workable, Britain obtained a controlling share of the stock, and gradually picked up control of the approaches and surroundings of the canal. It too is free for the use of all comers, subject of course to tolls.
In the beginning there was no doctrine governing the use of the high seas. The sea was there and anyone so bold as to venture upon it was welcome to do so. But soon monopoly appeared, under the title of the sovereignty of the seas, or the closed sea.
When history began, transportation by land or sea was difficult and dangerous. The broad highway of the sea was there, the wind was tireless, the highway required no maintenance. Commerce prospered. As the art of navigation developed, those who had the power and were accustomed to seize for themselves control ashore attempted to do the same at sea. Powerful states from the dawn of history grew great by the aid of maritime commerce; or, lacking it, were forced to adopt it to develop their full power. Egypt, Phoenicia, Greece, and Rome grew great by the sea.
When barbarian hordes which knew not the sea overthrew the civilization of Europe, the Dark Ages ensued; but, after a lapse of centuries, commerce began to revive. Then Venice, and later Genoa, grew rich and powerful on the commerce with the East, carried on by the Black and Caspian Seas, by the Euphrates River, and by the Red Sea. The Crusades, starting as land ventures, found sea routes better. The later crusades and the maintenance of the Crusaders in the Holy Land Were by sea.
About this time Venice, having the position and the power, claimed sovereignty of the Adriatic. Each year the Doge threw into the sea a ring, symbolizing the marriage of Venice with the sea. In exercising this sovereignty she excluded foreign vessels from the Adriatic and from certain ports elsewhere, or charged heavily for their use.
But upon the final overthrow of the Crusades, the Moslems denied to Christian vessels the use of the eastern Mediterranean. The old routes to India were closed; Vasco da Gama, Columbus, and others sought and found new ones, all water. Venice and Genoa lost their advantage of position, which fell instead to Spain and Portugal. These countries, wishing to monopolize the seas which gave access to the real and imagined wealth of far countries, submitted to the World Court of that day, that is to say, the Pope, that he should divide the oceans between them, which he did. And Spain and Portugal in turn waxed rich and prosperous.
The Netherlands and England then arose to challenge these pretensions; a challenge that was made good by the defeat of the great Spanish Armada. Britain in turn set up pretensions of her own. It is these that constitute the most lasting and most perfect example of the sovereignty of the seas.
The outward and visible sign of this sovereignty is described in a regulation of the British Navy, which appeared first in the time of King John, in 1202, and which was still there in 1805. In the time of King William III this regulation read:
Upon your meeting with any ship or ships within his Majesty’s seas; which for your better guidance herein you are to take notice that they extend to Cape Finisterre; belonging to any foreign prince or state, you are to expect them in their passage by you to strike their topsail and take in their flag, in acknowledgment of his Majesty’s sovereignty in these seas; and, if any shall refuse, or offer to resist, you are to use your utmost endeavor to compel them thereto.
The British Navy enforced this regulation. A British commander, commissioned by the King to clear the sea of robbers, fell in with a fleet of a hundred merchant ships between Guernsey and Portland. He ordered them to strike, which they refused to do. Thereupon he engaged and overcame them, and brought the whole hundred ships into port to be forfeited to the King. In 1554, when King Philip of Spain was voyaging to England with the intention of marrying Queen Mary, a British admiral fired upon him for presuming to fly the Spanish Royal Ensign within the British seas. In 1606 the King of Denmark, voyaging home from England, was compelled to strike the Danish flag.
This sovereignty was written into treaties. One provided that Dutch ships of war or merchantmen should strike their colors and lower their topsails when meeting British naval ships; another defined the British seas as extending from Finisterre to Norway, and insisted that even a whole Dutch fleet should salute a single British ship.
Britain used this pretension in connection with her wars by which she reduced her strong commercial rival to a second-rate power and then prevented France from salvaging some of the Dutch wreckage. The War of the Spanish Succession was fought to prevent the junction of two powers which might threaten her at sea. Trafalgar put the final seal upon England’s power to enforce her claims.
At the beginning of the thirteenth century when the French secured possession of Normandy, England claimed that this loss involved solely the land; that her sovereignty still included the adjacent seas, right up to the coast line of Normandy. Accordingly she retained the Channel Isles, which hitherto had been considered part of Normandy, and she still has them—Jersey, Guernsey, Alderney, and Sark.
But during all the centuries while England on the one hand was enforcing her pretension to sovereignty of the seas, on the other hand she was denying such pretensions on the part of others. In his authorization to John Cabot and his sons in 1496, Henry VII empowered them to search out new lands in any part of the world “unknown to Christians before these times,” including the seas claimed by Spain and Portugal. Sir Francis Drake, in his famous voyage of circumnavigation, entered the Pacific Ocean, claimed by Spain. When the Spanish Ambassador vigorously objected, Elizabeth denied the claim, asserting that occupation of the ocean was contrary to the course of nature and public usage; and that all nations were at liberty to navigate the ocean, since the use of the sea is common to all, like the air. Likewise England denied such pretensions many times, even down to our own day, and on the part of many nations. In 1907 Germany sponsored a movement for the Baltic States to declare that sea neutralized; whereupon a British fleet was promptly dispatched into that sea.
The history of the United States overlaps the period during which England claimed maritime sovereignty. Our naval regulations still contain an article which reads: “No ship of the Navy shall lower her sails or dip her ensign unless in return for such compliments.” Our history overlaps other similar pretensions; for the practices of the Barbary pirates whom we overthrew were based upon the claim that the countries concerned were entitled to dues from countries whose ships navigated waters controlled by them. Similarly the United States in the 1880’s attempted to vindicate seizure of foreign vessels in the Bering Sea by a claim to jurisdiction of that sea.
It is when war occurs that normal freedom of the seas becomes subject to severe limitations. It is these limitations to which crusaders for the freedom of the seas usually object. The question of freedom of the seas is closely tied up with the idea of neutrality. Today the ideas that govern, which are the product of experience, are being subjected to much criticism and there are many who would change them in the hope of furthering the cause of peace.
In maritime war there are always three parties in conflict: the two belligerents and the neutral. The neutral may have no desire to have any part in the war, but it is beyond his power to prevent it. The United States has played a leading part in developing the idea of neutrality and has very forcibly stated and upheld the practices of which that idea consists. When a belligerent army sets foot in a foreign territory it constitutes a breach of the neutrality of that country. But warships may pass through the territorial waters of a neutral country without committing a breach of neutrality. They may even, at not too frequent intervals nor in too large numbers, enter neutral ports and get fuel and general supplies there without committing a breach of neutrality. Belligerent ships may come into neutral ports freely and get whatever is for sale there. Neutral merchant ships may come and get munitions for belligerents with perfect freedom so far as the neutral is concerned. Even the merchant ships of the neutral himself may take munitions from home ports and sail with them for belligerent destinations. These elements of freedom exist in war.
However, the belligerent is entitled to fight his war effectively if at all. To that end he may, outside neutral waters, capture enemy merchant vessels and also neutral vessels if they are helping the enemy. One method of doing this, which helped us win the Civil War, was to maintain an old-fashioned blockade in effective proximity to the shores of the enemy, which everyone recognized could lawfully prevent all ingress into and egress from the blockaded shores. But times change. Now submarines and aircraft make that kind of blockade rarely possible. There is another well-recognized and acknowledged Way to control trade which modern conditions have made the principal one, namely, by the seizure of contraband. Formerly this could be done rather simply. Ships were small and could be readily searched to see if they contained contraband. In the absence of cable and radio, the papers carried by ships indicated clearly the destination of the cargo. But the mechanism of business has changed with the advent of modern means of communication, and the destination of the cargo is frequently unknown to anyone at the time of sailing. Now visit and search, even if effective, cannot determine destination, which is an essential element in contraband. In those days transportation ashore was so difficult that it was safe to assume from the port of discharge that the goods would not travel much farther; but that is no longer so. Moreover contraband no longer includes only gun powder and things associated with it, but nearly every article of commerce. Hence, to make control of commerce effective, the British in the World War, by Orders in Council—we once fought about British Orders in Council—extended by step after radical step the rules concerning the manner of exercising this control. Instead of boarding and searching vessels at sea with a minimum interference with commerce, they brought them into a British port for examination. Instead of accepting their papers as prima- facie evidence of innocence or guilt, they assumed guilt until evidence of innocence could be produced. This was justified in their eyes not only by the changes in the mechanism of trade previously mentioned, but also by the expertness displayed by masters and shippers in bootlegging contraband. The British enlarged the list of contraband to unheard of proportions, and eliminated entirely the distinction between those articles which were actual munitions, previously called absolute contraband, and those other articles which might be used equally well for civilian or military use, which had been called conditional contraband, and which had been subject to capture only when destined for the armed forces or government of the enemy. Moreover they seized goods actually destined to neutral ports in countries to which the enemy had access, even though the goods were to be absorbed bona fide into the common stock of the neutral country, since, they said, that common stock served as a source of supply for the enemy. All these extensions of the old accepted doctrine which the British claimed were necessary to bring it into accord with modern conditions were the subject of constant, vigorous, though no doubt often legalistic, objection on the part of the United States, the disputes waxing so bitter at times that, in a different temper of the people, the United States might easily have found itself at war with England once more, and for the same old reason. However, in the actual temper of the people, the encroachments of the Germans were more bitterly resented; and there was justice in this, not only because the people on other grounds leaned toward the allied cause, but also because the German attacks on trade, unlike the British, completely disregarded the well-recognized laws of maritime war, and substituted for them a flagrant disregard of law.
The final step in British control of German supplies was not made fully effective until the United States, by entering the war, ceased to obstruct, as it was her neutral duty to do, and added her assistance. This final step consisted in determining the peace-time requirements of the Baltic neutrals and Holland in various commodities, and rationing those countries, so that they could not export to Germany without making their own people hungry. The lure of war prices was sufficiently great so that neutrals did go hungry rather than give up their profits, but supplies for Germany were reduced to negligible proportions.
The World War was but the latest example of the inevitable fact that a neutral maritime nation cannot avoid being a party to a maritime war, even though he maintains a technical state of neutrality; and that, if the war be sufficiently long and bitter, unless he be strong enough in a military sense to maintain his neutrality, he will be forced into it. The World War is the third war into which we have been forced by reason of not being strong enough to maintain our neutrality. The other two were the naval war of 1798 with France, and the War of 1812.
The dictionary defines neutrality as “not taking part with or assisting either of two contending parties.” This sounds simple, but it is not. Whatever we do or refrain from doing with regard to trade affecting either belligerent affects the prosecution of his war. Our merchants take munitions to one party while naval forces prevent their reaching the other party. We are in fact then assisting one party. If, as has been suggested, we declare an arms embargo, we assist the other.
The legitimate conflicts of interest between neutral and belligerent lead often to reprisals by the belligerent, and these reprisals are not confined to the enemy, they also affect the neutral. As Admiral Cole says:
History shows that the course of events at widely separated periods has been singularly alike. A weak neutral suffers humiliation in having to accede to the demands of a stronger belligerent power. A strong neutral, when its voice is raised in protest, is listened to with respect proportionate to the degree of effect its power may have upon the balance of power existing between the two belligerents. Sometimes, the protest of the neutral being acceded to, there results an outcome of the struggle different from that which might otherwise have been the case.
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lx is because sovereignty has to be recognised and respected that it is impracticable either to ban all wars without exception or to erect an impassable barrier against those wars which it is possible to ban.—Spaight, Pseudo-Security.