Laws, or rules of conduct, have governed the behavior of men since they first found it necessary to band together for mutual protection. The need has not been limited to land. It has become of paramount importance wherever the activities of men are in conflict, or even in association, with each other. And so we have the laws which govern the conduct of men and ships at sea.
Their history is a fascinating one and, no doubt, much of it is familiar to every professional Navy man. But it is quite beyond the scope of this article, which is intended only to give the naval officer a quick, pragmatic view of the overriding rules of the sea which govern him in times of peace. Emphasis must be placed on the phrase, limes of peace, for clearly these rules may be abridged or nullified during periods of war.
Navy Regulations require every naval officer to act at all times in accordance with “the principles of international law.” This injunction should raise a big question in the mind of every naval officer: what is international law? International law, or the law of nations as it is sometimes called, is not law at all in the usual sense. It is more in the nature of an agreement between the nations of the world to observe rules of conduct in their relations with one another. International law, binding nations and not people as such, originated in Europe during the Middle Ages when the theologians of that era developed a moral guide for the benefit of Christendom. It gradually spread throughout the rest of the civilized world until it became accepted as a body of “law” which nations considered binding upon themselves. The law of the sea is part of this code of conduct. It is the branch of international law regulating maritime relations.
In general, of course, it applies to the three-fourths of the surface of the earth which is water. More specifically, it applies in categories which can be segregated as (1) the high seas, (2) territorial waters, and (3) internal, or national, waters.
The High Seas
The high seas are made up of that body of water which lies to seaward of the maritime belt; that is, ocean territory more than three miles from land. (Considerable dispute exists as to the width of the maritime belt, a matter which is outlined in the territorial water section.) They are universally considered to be a common highway for the use of mankind and, as such, cannot become the exclusive domain of any state.
Genoa, Venice, Spain, Portugal, Sweden, Denmark, and England have all, at one time or another, claimed sovereignty over portions of the high seas. For the most part these claims resulted from ignorance of the real nature of the sea, although England—in her early heyday as a maritime power—was very jealous of her claim to sovereignty over “British Seas.” Regardless of any historical concepts to the contrary, the principle of the freedom of the seas is today the great underlying axiom on which all maritime law is based. This concept of the ocean’s universality is of genuine concern to the naval officer.
The U. S. Supreme Court has described the idea in these terms: “Upon the high seas, in time of peace, all possess an entire equality.” Of course, this does not mean that each nation can do as it pleases, so that lawlessness and anarchy prevail on the oceans. On the contrary, the principle of the freedom of the seas will survive only as long as nations hold the opposite view and are willing to be governed by the “law of the sea.”
The basic postulate upon which the law of the sea rests is that every nation has exclusive jurisdiction over all vessels flying its flag. The laws, civil and criminal, of the nation concerned are applicable to any act or occurrence taking place on board ships flying its flag. For the lawyer and merchant mariner this generalization may not be a technically accurate statement of the law, for there are certain exceptions. But for the naval officer it is a sufficiently correct definition.
The principle of exclusive jurisdiction has an important corollary, which is that every vessel on the high seas must have a nationality. Requisites set forth by different nations to obtain nationality vary. Some grant nationality without much formality, but all agree that every nation must register the names of all private vessels flying its flag and that these names be readily visible so that each ship can be identified at a distance. No vessel may change its name without permission and new registration; and ships flying the flag of a nation without permission may be arrested by the warships of that nation.
All countries further agree that private vessels must carry certain identifying papers. Since it is always possible that a U. S. naval officer may have to ascertain positively the nationality of some private vessel, the usually required papers are enumerated below:
1. Certificate of Registry.—An official voucher authorizing the ship to sail under a given flag. This voucher may also be known as a Passport, Sea Letter, or Sea Brief; but the purpose is the same, i.e., to show the vessel’s nationality.
2. Muster Roll.—A list of all the members of the crew together with the nationality of each.
3. Log Book.—This is similar to the log of a warship.
4. Manifest of Cargo.—A statement of the cargo the ship is carrying, including details about the number and marking of each item, the names of shippers, the consignees, and other pertinent information.
5. Bills of Lading.—Duplicates of the documents of sale which are given to the shipper when the goods are shipped.
6. Charter Party.—This is a notice of contract and is needed only if the vessel has been chartered by a party other than the owner.
The question of nationality and its proper establishment leads into another matter of great importance to the naval officer: the right of approach. This right permits a warship to verify the nationality of any merchant ship encountered on the high seas. It is not a belligerent right and is one of the few exceptions to the general rule which forbids interference with foreign ships in peacetime.
Verification of nationality is usually accomplished by requesting the private vessel to hoist her flag. The merchant ship is not, according to the better legal view, required to lie-to, wait for the approach, or change her course and speed. If the act of hoisting flag and verifying the name of the vessel satisfies the naval commander, the incident is then closed. But suppose the vessel shows a flag at variance with the one under which she is registered or declines to hoist any identification at all?
Legal opinion as to what a naval commander may do in the first instance is somewhat divided. Some courts have held that the naval ship is not justified in taking further action if the merchantman hoists some flag. But the better view seems to be that the naval ship may take further action if her commander deems it necessary. If he does, however, he should proceed with extreme caution and have reasonable grounds to support his act. If the private ship refuses to show any colors at all, then the naval commander may order the customary shot to be fired across her bow. If the ship persists in remaining unidentified, then the naval vessel may resort to force.
Just what steps the naval commander may decide to take under his right to “resort to force” are up to him. But clearly he has a duty to keep in mind that resorting to force in peacetime, except in extreme cases, may prove unpleasantly embarrassing for his country. It follows naturally that any ill- conceived act on his part which involves the United States in a diplomatic controversy may become equally embarrassing to him. Fortunately, the rapid communications that are available usually will permit him to seek advice in difficult situations.
At all times during an approach the naval commander must be judicious and cautious in his thinking. But this does not mean that he cannot, initially at least, proceed boldly with his approach and request for identification. He can be secure in the knowledge that he has the unquestioned right to force any ship on the high seas to reveal her identity.
While the right of approach is, by nature, a passive right to interfere with other ships, there are other instances in which the right of interference assumes more active characteristics. These situations involve piracy, self-defense, and hot-pursuit.
Interference to Prevent Piracy
Piracy, in the mind of the average person, evokes visions of Captain Kidd ravaging the Spanish Main. The naval officer must be more prosaic about it, since pirates may still practice their trade in this age of the atom.
Piracy is any unauthorized act of violence for personal gain committed against persons or goods on the open sea, either by a private vessel against another vessel or by a mutinous crew or passengers against their own ship. Note that this definition limits the commission of an act of piracy to merchant ships. The reason is found in the basic nature of piracy; that is, an act of violence to be considered a piratical act cannot be sanctioned by the state. Warships or public vessels, as long as they remain under the orders of a recognized government, cannot be guilty of piracy no matter what they do. Maritime law, in cases of this kind, demands that redress be sought from the offending nation. The nature of the redress will vary with circumstance, but it has been universal practice to demand—among other things—that the naval commander be punished for his acts. While the definition of piracy seems reasonably clear, a quick look at history will give a better appreciation of what constitutes an act of piracy.
International society agrees that if the crew of a vessel revolts and converts the ship and its cargo to their own use, an act of piracy has been committed. In the same manner, any unauthorized act of violence, such as murder, kidnapping, or destruction or conversion of goods with intent to plunder, if committed on the open sea, is deemed a piracy. In most acts of piracy the conversion of property to personal use is an essential element. This is important, for it differentiates the act committed to satisfy personal gain from the act done to further a political end. The distinction merits additional discussion.
Normally a revolution within a state does not have international repercussions, since the incident is likely to be confined within national borders. But when the nation involved possesses naval forces and these join the insurgents, it becomes possible that the rights of other states will be affected. This will, in fact, occur if the insurgent naval forces attempt to interfere with vessels of nations other than the nation against which they have rebelled. Such situations are usually complicated by a proclamation of the duly constituted government branding the insurgents as pirates.
Here again the naval officer needs little imagination to picture himself becoming involved in an incident of this nature as he cruises in waters where political instability may be a more or less congenital problem. A recent case in point is that of Argentina where, during the overthrow of Peron, the Navy joined the insurgents.
Luckily for Navy men, the governments of the Western Hemisphere have already faced this problem via agreements of the Pan American Union, now called the Organization of American States.
The Pan American Convention of 1928, to which the United States is a signatory, provides that vessels which have risen in arms against their governments are not to be treated as pirates even though they have committed depredations against their country’s established government. That is, if a warship rebels and confines her activities to the parent state, such vessel should be left unmolested by warships of other nations. But what if there is interference with vessels of a third state, such as visits and searches, attempts at blockades, or attempts to stop movement of supplies?
In that event the naval commander is entitled, to take such steps as he deems necessary to protect the citizens and commerce of his country. Here again, force must be tempered with moderation and should not exceed that dictated by the circumstances of the case. Whether or not, in an instance of this type, interference by the insurgent warship may be called an act of piracy is a nebulous point, although there is some precedent for doing so. The Pan American Convention, of course, is not binding on nations outside the Western Hemisphere. It reveals the attitude of the American government in regard to insurgent warships, however, and the U. S. naval officer will be justified in following the same practices when cruising in other waters. This assumes that he has received no contrary instructions and that time does not permit him to communicate with his superiors.
A final word about piracy—It is an international crime; the pirate is considered the enemy of every nation; he and his vessel lose by piracy the protection of their country and their national character; and they can be brought to justice anywhere they are apprehended.
Interference in Self-Defense
The second active right of interference involves self-defense. This is a controversial and somewhat loosely-defined right, as might be expected in view of the fact that it has seldom been invoked.
In our history the matter attracted some attention when Spain in 1873 actually exercised the right against a supposedly American ship. This vessel, the Virginius, was involved in carrying munitions and Cuban revolutionaries. It was stopped by a Spanish cruiser as it approached the coast of Cuba and was taken into custody. Some of the ship’s crew, including American and British subjects, were shot after a very short and summary trial. Public indignation waxed hot over the matter, but the United States eventually decided that the Virginius had not been entitled to fly the American flag and dropped the case.
While such instances may not be likely to recur, the unexpected too often rears its head in the naval profession. Not so long ago, for example, a former president of Cuba was charged with using the United States as a base from which to conduct a revolutionary movement against the present Cuban government. Arms were actually confiscated in the United States and some American citizens implicated. Suppose the revolutionaries had succeeded in obtaining an American ship and had made an attempt to land in Cuba; suppose that ship had been intercepted on the high seas by a Cuban frigate; suppose a U. S. warship witnessed the incident and/or was asked to give assistance by the vessel flying the American flag? Under those conditions the U. S. naval commander on the spot would do well to recall the right of interference where self-defense is indicated and to remember the stand his own country took in the case of the Virginius.
Interference by Hot-Pursuit
Interference through the right of “hot- pursuit” is more familiar to the naval officer. Briefly stated, this right permits a public vessel to pursue and capture, on the high seas, a foreign vessel which has violated the law of the man-of-war’s country while within its territorial waters. By application of a rule known as “constructive presence,” the right of hot-pursuit is extended to cover vessels which may remain or “hover” on the high seas, but communicate with the shore by use of their own small craft. In other words, such vessels may be pursued and apprehended even though they never actually enter the territorial waters of the nation they offend.
It is universally agreed that the pursuit involved in this right of interference must be continuous and that the right itself ceases when the offending vessel enters its own territorial waters or the territorial waters of a third country. The word ceases means absolute discontinuance of the pursuit. That is, the pursuing ship may not lurk beyond protecting territorial waters and pick up the chase again when the pursued ship emerges. Of course, controversial cases have arisen, as they always will, whenever an attempt is made to fit any set of facts to a legal doctrine.
While the rights of peacetime interference to punish piracies and to engage in self- defense and hot-pursuit are accepted in one form or another by the international community, it should be noted that some states considerably extend these rights by treaty. Of course, such extensions apply only as between the treaty signers; and the number of such treaties is not great.
Many other types of treaties limit the rights of their contracting parties as against each other on the high seas. These may involve such matters as fishing, the laying of cables, adoption of safety measures, and the like. By and large, however, they belong to an entirely different category of legal discussion.
Territorial Waters
When we speak of territorial waters we are talking about just that—waters which are part of the territory of the nations on which they border. Sometimes these waters are referred to as the marginal seas, sometimes the maritime belt. But regardless of the term used, the thing we are talking about is the extent of national sovereignty into the ocean. In other words, how far out into the sea does a littoral nation extend?
This question has been argued and fought over for centuries. It still is a controversial matter, and no given limit is accepted on a world-wide basis. Until recently, a decided majority view held that the limit is one marine league, or three miles, from coastal low-water marks. This is the view still taken by the United States, and it is the one which the naval officer should keep fixed in mind. Here is what the office of the Navy’s Judge Advocate General has to say on this precise point:
“The authorities are practically unanimous in the opinion that within three miles of the coast a state may, under international law, exercise any jurisdiction and do any act which it may lawfully do upon its own land territory. In short, a state has jurisdiction over waters lying within three miles of its coast.”
Another way of putting it is to say that when a vessel approaches within three miles of our shores it is just as much in the United States as if it were on display at the corner of State and Wabash streets in Chicago. Of course, the same is true of a vessel approaching within three miles of any other coastal nation; it is then under the jurisdiction of that nation and subject—with certain exceptions later noted—to its laws.
The United States first recognized the three-mile limit by act of Congress in 1782. It has affirmed this position in numerous acts and legal decisions ever since.
There are, however, at least three general problem areas regarding this matter of which naval commanders should be aware:
1. The shifting state of international law.
2. Apparent exceptions to the rule occasioned by acts of the United States.
3. Claims to widely extended territorial water limits made by other countries.
Shifting International Law
Right now the United Nations and its Legal Committee are wrestling with the question of whether to approve twelve miles, rather than three, as the accepted limit to territorial waters.
This situation stems from the fact that since World War II an increasing number of the world’s maritime nations have decided to move their territorial limits out to twelve miles. Just how many countries now take the twelve-mile position is uncertain, for the picture is very fluid. But they form, admittedly, a majority.
In other words, while such powerful seagoing nations as Britain, France, the Low Countries, Japan and Australia—plus about fifteen other countries—have thus far stuck with the United States in adhering to the three mile limit, we are now clearly among the minority. And if, as reported, Canada is ready to accept twelve miles, we stand virtually alone among the nations of the North American continent in our view.
At Geneva last July the UN’s International Law Commission produced its new model code on the law of the sea in peacetime, a project which had been “in the mill” for seven years. Article Three of the code’s Regime of Territorial Seas reads in part as follows:
“The Commission considers that international law does not permit an extension of the territorial sea beyond twelve miles.”
Most international lawyers feel that this is an implicit recognition of the twelve-mile limit, and if it is retained in the code and finally promulgated by either the UN or a special worldwide conference as a majority view in international law, it will obviously have much effect.
Even if this should happen, though, it does not mean that the United States must accept a limit other than three miles. Up to now there has been no indication that America will abandon her traditional position on the matter. But all naval officers should be cognizant of the legal ferment now taking place in regard to territorial waters and should endeavor to keep abreast of all developments.
American Claims
Ever since the United States came into being mere have been certain acts on the part of the U. S. government which have appeared to be inconsistent with the three- mile doctrine. Here are a few examples:
1. In 1799 Congress passed a law providing that any ship “bound to any port or place in the United States” might be boarded and searched within twelve miles of the American coast. The law applied, and still does, only to vessels whose destination is some port in the United States. It is part of the legal set-up under which our customs service functions.
2. The boundary line between the United States and Mexico is fixed by the treaty of 1848 as beginning at a point in the Gulf of Mexico “three leagues (nine miles) from land, opposite the mouth of the Rio Grande.” Other countries have objected to this arrangement as violating the three-mile limit; however, the U. S. government points out that the boundary is effective only as between the two countries and has no relation to the rights of other nations in that area.
3. The United States has at various times asserted control along some of the Aleutians beyond the three-mile limit for purposes of protecting the seal industry. The problem is now handled by treaty, however, between the United States, Russia, Britain, and Japan.
4. In 1922 the United States, as a result of prohibition, proclaimed new “customs- enforcement” areas along certain parts of our coastline out to a distance of 62 miles from shore. The reason for this was that foreign ships carrying liquor would hover beyond the twelve-mile limit and send fast motor- launches into shore to land the contraband. The enlarged enforcement areas, still available to the Coast Guard, gave U. S. vessels a much better opportunity to enforce our revenue laws.
5. During World War II President Roosevelt proclaimed various defensive sea areas beyond the three-mile limit. Within the confines of these areas, and for defense purposes, American naval vessels, of course, had wide latitude of action.
The important point to remember about all these apparent inconsistencies—at least in the view of the United States—is that they are directed toward a specific purpose. This is what international lawyers call “special purpose control,” as distinguished from the exercise of jurisdictional sovereignty. It is a theory on which the United States government leans rather heavily. In essence, the theory seems to say something like this:
“Under our view of international law America may, in its own interests, exercise specific limited control over certain situations or areas beyond the three-mile limit; but in so doing the United States makes no claim to blanket jurisdiction beyond the three- mile limit nor is it interfering with the recognized freedom of the high seas.” It is probably on this basis that the Air Force has been allowed to construct its so-called Texas Towers for radar detection purposes in areas a hundred miles-or-so from the Atlantic Coast. For the U. S. government is making no claim whatsoever to sovereignty at this distance. In addition, of course, it is a well established doctrine of international law that nations may take reasonable precautions on the high seas to foster national security; i.e., defense measures.
Finally, there are two Presidential proclamations of relatively recent date which have a distinct bearing on the matter of apparent exceptions to the three-mile limit. Both were issued by President Truman in 1945. One of these declared that the natural resources of the subsoil and seabed of the continental shelf appertain to the United States and are subject to its jurisdiction and control. The continental shelf is delineated
by the hundred-fathom curve which extends anywhere from three to 120 miles offshore. The other proclamation asserted the right of the United States to establish fishing conservation zones in sea areas adjoining the American coastline. Unless these zones are recognized by treaty with other countries, however, their regulation outside the three- mile limit can be enforced only against U. S.. fishermen.
Claims of Other Countries
The situation most likely to be troublesome to the naval officer is one involving other nations, notably certain Latin-Ameri- can countries. For some of them seem to claim territorial waters extending considerably beyond three—or even twelve— miles. Costa Rica, for example, asserts jurisdiction off its coast for a distance of 200 miles in both the Atlantic and Pacific.
Use of the foregoing phrase “seem to claim” is made advisedly, since it is often hard to tell just what sort of authority other nations intend to assert over waters beyond the three-mile limit. Russia, for example, actually asserts sovereignty over certain waters north of Siberia which are said to be “the northern continuation of the Siberian continental shelf.” Argentina, Costa Rica, Cuba, Mexico, and Peru, however, have all put forth claims to the continental shelf contiguous to their land areas. Does this mean an intent to wield complete jurisdiction?
Most authorities on international law seem to think it does, and they are upheld by the most recent (February, 1956) expression of Latin nationals on the matter. At a convention of the Inter-American Council of Jurists at Mexico City, a Latin-American delegation sought to win approval for a resolution rejecting the three-mile limit. They said this limit was inadequate for members of the Pan-American Union and suggested that each nation should set its own maritime boundaries “within reason.” U. S. delegates led the fight against the Latin-American move and managed to defeat it.
In any case, the U. S. Navy skipper whose vessel is cruising in such waters would do well to keep these claims in mind even though his own country may regard them as an infringement on the freedom of the seas.
Not too long ago off the coast of Peru certain American fishermen were taken into custody by Peruvians, apparently for violating fishing regulations of that country. At the time of their apprehension the fishermen were working considerably more than twelve miles from the Peru coast. Here is a situation which could be extremely difficult and frustrating for a naval officer. Suppose a U. S. destroyer had been cruising in those waters and the American fishermen had sought to enlist its aid? What should the destroyer captain decide?
According to U. S. law (and probably international law) he would be justified in using force to free his countrymen on the high seas. According to Peruvian law he would be guilty of breaching the maritime codes. In such a predicament as this, application of the law cannot invariably be depended upon to provide the correct answer, but it can provide an important backdrop against which a common-sense decision can be made.
In such a situation as the one suggested, force-with-moderation might be the answer. That is, the naval commander might show every intent of using force—up to the point of actually applying it. From then on he would have to weigh a variety of factors; not only the law of the sea, but the fate of the fishermen if he failed to use force, the chances of working things out amicably with the arresting officials, possible loss of stature in the eyes of the maritime world, the setting of precedent, the importance and nature of his mission in those particular waters, possibilities of bloodshed, etc. In short, that naval officer would have to decide if upholding the American concept of the law was worth the probable consequences of his interference.
Obviously, any number of incidents such as this could arise in areas where there is a difference of opinion as to the state of the law regarding territorial waters. Fortunately there are not too many waters where this ticklish situation exists, but no Navy man can be sure he won’t someday find himself in a spot where it does.
Internal Waters
Internal, or national, waters are those waters which lie to landward of the base line of the territorial belt. They include harbors, ports, roadsteads, gulfs, bays, straits, lakes, and rivers. In these waters, apart from special situations, the local law of the land is supreme.
It is in foreign ports, however, that the naval commander will find his most thorny problems, for it is here that he may be called upon to act as the representative of his government without the benefit of advice from higher authority. In most ports, of course, there is a consular authority who can and will render valuable assistance to the visiting naval officer. And obviously it is a good idea for the naval commander, when visiting foreign ports, to establish close relations with Department of State representatives. They are always on top of the local political situation.
Since so many internal waters problems involve the legal status of a warship in a foreign port, we might take stock of what is meant by a warship. The government of the United States holds a warship to be “a public armed vessel under the command of an officer duly commissioned by the government, whose name appears on the list of officers of the military fleet, and the crew of which are under regular naval discipline, which vessel is qualified by its armament and the character of its personnel to take offensive action against the public or private ships of the enemy.” A man-of-war is, therefore, an organ of the State and will continue to be one as long as it remains manned, is under the command of a responsible officer, and is in the service of the State.
Warships, by their very nature, are constantly on the move and frequently visit foreign ports. Contrary to popular belief, no special agreement between the flag State and the territorial State is usually required to effect the visit. That is, in the absence of treaties, laws, regulations, or special prohibitions, foreign ports are, in peacetime, open to foreign men-of-war.
Clearly, this does not give warships an absolute right to enter foreign ports. The territorial state may impose certain restrictions, both as to the number of vessels to enter and the length of their stay. The U. S. Naval War College, for example, has taken the stand that no more than three foreign vessels of war should be present in any naval district of the United States and that the length of stay should be limited to fifteen days unless other arrangements have been made.
As a practical matter, visits of warships to foreign ports are normally cleared through diplomatic channels. Notification of the projected visit takes different forms. The United States has agreements with certain nations whereby arrangements to visit are concluded at a level lower than that of the Department of State or Foreign Offices. This is why certain visits are cleared more expeditiously than others. In countries where formal diplomatic clearance must be obtained, a considerable length of time may elapse before all particulars are settled. Notification, of course, is not required in those instances where a warship is forced to put into a foreign port by reason of stress, weather, or other circumstances of force majeure, since by the customary law of the sea all ships in distress have the right to enter a foreign port. What constitutes distress is for the commander of the ship to decide. Although the right to enter under distress is unequivocal and applicable to all types of ships, in these days of rapid communications it is a rare occasion when a warship cannot notify appropriate parties of its need to enter a foreign port.
When the entry of a foreign warship has been authorized, the territorial State waives its jurisdiction over the ship and no form of public or private process lies against her. This means that no legal proceeding can be taken to detain her, to recover damages for collision, to recover a salvage award, or for any other cause. The immunity, however, is restricted to the ship, since a claim may be made against her government. In addition, no Territorial State official may board the foreign vessel against the wishes of her commander.
On the other hand, a man-of-war, through the medium of its commander and crew, does not have carte blanche to act without regard for the wishes and rules of the foreign port. Its privileged status carries with it an understanding that the ship will respect local laws and regulations, particularly those dealing with navigation, anchorage, and sanitation.
The commanding officer of a warship in a foreign port retains absolute jurisdiction over the officers and crew as long as they remain on board, and the local authorities have no jurisdiction over disturbances, or crimes committed on board, as long as these are perpetrated by the ship’s personnel. If a crime is committed by a foreign national, representations may be made by the territorial state through diplomatic channels to obtain custody of the malefactor, but the naval commander does not have to surrender him unless he desires to do so.
The status of the officers and crew while ashore is not as clear cut as when they remain on board. Most authorities say that, while on land, in uniform, and performing an official act, naval personnel are not subject to local jurisdiction, but there are opinions to the contrary. If such men are ashore pursuing private endeavors, the law is clear that they are subject to local jurisdiction. Whether or not local jurisdiction will be exercised depends on the circumstances of the case and any agreements that may exist between the two nations. Normally, local authorities do not exercise jurisdiction in the case of minor infractions, but do so where major crimes are committed.
Deserters, of course, are in a class by themselves. The general rule is that, apart from any international agreement, the local authorities have no duty to arrest and detain deserters. In no event, however, should naval parties be landed to search for deserters unless the matter has been cleared with the local government.
Naval commanders have a duty to protect all commercial vessels and aircraft flying the American flag while these craft are in pursuit of their lawful occupations. Hence, while it may be improbable, it is not inconceivable that naval officers may have a need to know something of the status of merchantmen while in foreign ports. As a rule the masters of merchant ships turn to local consular officials if they get in trouble; but under some circumstances they have been known to request aid from naval commanders present in the same port.
A merchant vessel entering a foreign port becomes subject to the local law. At the same time she is not divorced from the laws of her own State. She always remains subject to the laws of her flag. While this may seem to give rise to a conflict of laws, real conflict rarely occurs, for a workable rule has been developed to govern this precise situation. The rule is that local port authorities will not interfere in the internal affairs of a foreign merchant ship except in those cases where the peace and tranquility of the port have been disturbed.
A disturbance of sufficient magnitude to invoke local jurisdiction is one “of such gravity that it would awaken public interest on shore when it became known there, and especially if it were of a character such that its commission within the territory of any civilized state would result in the severe punishment of the offender.” The quotation comes from an opinion by the U. S. Supreme Court in a merchant ship case, but it is a good definition for naval officers to know. It may help in the cataloguing of offenses committed by naval personnel ashore.
There is at least one other internal-waters matter that is of interest to the naval commander—asylum, or sanctuary. Problems of sanctuary usually arise when political disorders or revolutions occur ashore. At such times it is the naval officer’s duty, subject to other instructions from higher authority, to maintain an attitude of strict impartiality during the upheaval.
Navy Regulations state: “The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the granting of asylum; but even in waters of such countries, officers should refuse all applications for asylum except when required by the interest of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers shall neither directly nor indirectly invite refugees to accept asylum.”
The article above stated is clear, but it leaves to the discretion of the naval commander the determination of when the dictates of “humanity” call for granting asylum. This is a matter which will probably have to be determined on the spot by the commander concerned, or his representative, and will require the finest exercise of judgment. It is obvious that a misstep in the application of accepted principles may seriously embarrass the United States and jeopardize the officer’s career.
No ambiguity exists in regard to asylum in connection with merchant ships. Under international law, merchant ships in foreign ports cannot provide refuge for political refugees or criminals escaping justice.
It is only too clear that in an article of this nature it is not possible to cover all the ramifications of the law or how they may affect the naval commander.
As the professional naval man moves up the ladder of seniority, however, he does well to study the role that the “law of the sea” plays in his profession. Truly, it is too big a part to be ignored. The conclusion is inescapable that here is another facet of the profession that must be learned and mastered. How pertinent (once more) are the words “. . . it is not enough that he be a capable mariner. ...”