International Law. A Treatise Volume I Part 30

The United States adopts, as the basis of the neutralisation of such s.h.i.+p ca.n.a.l, the following Rules, substantially as embodied in the Convention of Constantinople, signed October 29, 1888, for the free navigation of the Suez Ca.n.a.l, that is to say:--

1. The ca.n.a.l shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable.

2. The ca.n.a.l shall never be blockaded, nor shall any right of war be exercised or any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the ca.n.a.l as may be necessary to protect[325] it against lawlessness and disorder.

[Footnote 325: This does not mean that the United States have a right permanently to fortify the ca.n.a.l. Such a right has likewise been deduced from article 23 of the Hay-Varilla Treaty of November 18, 1903, which runs:--"If it should become necessary at any time to employ armed forces for the safety or protection of the ca.n.a.l, or of the s.h.i.+ps that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times in its discretion, to use its police and its land and naval forces or to establish fortifications for these purposes."

However, it would seem that by this article 23 only temporary fortifications are contemplated. On the other hand, if read by itself, article 3 of the Hay-Varilla Treaty, according to which the Republic of Panama grants to the United States all the rights, power, and authority which the United States would possess and exercise if she were the sovereign of the territory concerned, could be quoted as indirectly empowering the United States to fortify the Panama Ca.n.a.l permanently. But the question is whether article 3 must not be interpreted in connection with article 23.

The fact that article 23 stipulates expressly the power of the United States temporarily to establish fortifications would seem to indicate that it was intended to exclude permanent fortifications. The question of the fortification of the Panama Ca.n.a.l is discussed by Hains (_contra_) and Davis (_pro_) in A.J.

III. (1909), pp. 354-394 and pp. 885-908, and by Olney, Wambough, and Kennedy in A.J. V. (1911), pp. 298, 615, 620.]

3. Vessels of war of a belligerent shall not revictual nor take any stores in the ca.n.a.l except so far as may be strictly necessary; and the transit of such vessels through the ca.n.a.l shall be effected with the least possible delay in accordance with the regulations in force, and with only such intermission as may result from the necessities of the service.

Prizes shall be in all respects subject to the same rules as vessels of war of belligerents.

4. No belligerent shall embark or disembark troops, munitions of war, or warlike materials in the ca.n.a.l, except in case of accidental hindrance of the transit, and in such case the transit shall be resumed with all possible despatch.

5. The provisions of this article shall apply to waters adjacent to the ca.n.a.l, within three marine miles of either end. Vessels of war of a belligerent shall not remain in such waters longer than twenty-four hours at any one time except in case of distress, and in such case shall depart as soon as possible; but a vessel of war of one belligerent shall not depart within twenty-four hours from the departure of a vessel of war of the other belligerent.

6. The plant, establishments, buildings and all works necessary to the construction, maintenance, and operation of the ca.n.a.l shall be deemed to be part thereof, for the purposes of this Treaty, and in time of war, as in time of peace, shall enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the ca.n.a.l.

Article 4

It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned ca.n.a.l shall affect the general principle of neutralisation or the obligation of the high contracting parties under the present Treaty.

Article 5

The present Treaty shall be ratified by his Britannic Majesty and by the President of the United States, by and with the advice and consent of the Senate thereof; and the ratifications shall be exchanged at Was.h.i.+ngton or at London at the earliest possible time within six months from the date hereof.

In faith whereof the respective Plenipotentiaries have signed this Treaty and thereunto affixed their seals.

Done in duplicate at Was.h.i.+ngton, the 18th day of November, in the year of Our Lord 1901.

(Seal) PAUNCEFOTE.

(Seal) JOHN HAY.

On November 18, 1903, the so-called Hay-Varilla Treaty[326] was concluded between the United States and the new Republic of Panama, according to which, on the one hand, the United States guarantees and will maintain the independence of the Republic of Panama, and, on the other hand, the Republic of Panama grants[327] to the United States in perpetuity for the construction, administration, and protection of a ca.n.a.l between Colon and Panama the use, occupation, and control of a strip of land required for the construction of the ca.n.a.l, and, further, of land on both sides of the ca.n.a.l to the extent of five miles on either side, with the exclusion, however, of the cities of Panama and Colon and the harbours adjacent to these cities. According to article 18 of this treaty the ca.n.a.l and the entrance thereto shall be neutral in perpetuity, and shall be open to vessels of all nations as stipulated by article 3 of the Hay-Pauncefote Treaty.

[Footnote 326: See Martens, N.R.G. 2nd Ser. x.x.xI. p. 599.]

[Footnote 327: That this grant is really cession all but in name, was pointed out above, -- 171 (4); see also below -- 216.]

VI

MARITIME BELT

Grotius, II. c. 3, -- 13--Vattel, I. ---- 287-290--Hall, ---- 41-42--Westlake, I. pp. 183-192--Lawrence, -- 187--Phillimore, I.

---- 197-201--Twiss, I. ---- 144, 190-192--Halleck, I. pp.

157-167--Taylor, ---- 247-250--Walker, -- 17--Wharton, -- 32--Moore, I. ---- 144-152--Wheaton, ---- 177-180--Bluntschli, ---- 302, 309-310--Hartmann, -- 58--Heffter, -- 75--Stoerk in Holtzendorff, II. pp. 409-449--Gareis, -- 21--Liszt, -- 9--Ullmann, -- 87--Bonfils, Nos. 491-494--Despagnet, Nos. 403-414--Merignhac, II. pp.

370-392--Pradier-Fodere, II. Nos. 617-639--Nys, I. pp.

496-520--Rivier, I. pp. 145-153--Calvo, I. ---- 353-362--Fiore, II.

Nos. 801-809, and Code, Nos. 271-273, 1025--Martens, I. -- 99--Bynkershoek, "De dominio maris" and "Quaestiones juris publici," I. c. 8--Ortolan, "Diplomatie de la mer" (1856), I. pp.

150-175--Heilborn, System, pp. 37-57--Imbart-Latour, "La mer territoriale, &c." (1889)--G.o.dey, "La mer cotiere"

(1896)--Schucking, "Das Kustenmeer im internationalen Recht"

(1897)--Perels, -- 5--Fulton, "The Sovereignty of the Seas" (1911), pp. 537-740--Barclay in Annuaire, XII. (1892), pp. 104-136, and XIII. (1894), pp. 125-162--Martens in R.G. I. (1894), pp.

32-43--Aubert, _ibidem_, pp. 429-441--Engelhardt in R.I. XXVI.

(1894), pp. 209-213--G.o.dey in R.G. III. (1896), pp.

224-237--Lapradelle in R.G. V. (1898), pp. 264-284, 309-347.

[Sidenote: State Property of Maritime Belt contested.]

-- 185. Maritime belt is that part of the sea which, in contradistinction to the Open Sea, is under the sway of the littoral States. But no unanimity exists with regard to the nature of the sway of the littoral States. Many writers maintain that such sway is sovereignty, that the maritime belt is a part of the territory of the littoral State, and that the territorial supremacy of the latter extends over its coast waters.

Whereas it is nowadays universally recognised that the Open Sea cannot be State property, such part of the sea as makes the coast waters would, according to the opinion of these writers, actually be the State property of the littoral States, although foreign States have a right of innocent pa.s.sage of their merchantmen through the coast waters.

On the other hand, many writers of great authority emphatically deny the territorial character of the maritime belt and concede to the littoral States, in the interest of the safety of the coast, only certain powers of control, jurisdiction, police, and the like, but not sovereignty.

This is surely erroneous, since the real facts of international life would seem to agree with the first-mentioned opinion only. Its supporters rightly maintain[328] that the universally recognised fact of the exclusive right of the littoral State to appropriate the natural products of the sea in the coast waters, especially the use of the fishery therein, can coincide only with the territorial character of the maritime belt. The argument of their opponents that, if the belt is to be considered a part of State territory, every littoral State must have the right to cede and exchange its coast waters, can properly be met by the statement that territorial waters of all kinds are inalienable appurtenances[329] of the littoral and riparian States.[330]

[Footnote 328: Hall, p. 158. The question is treated with great clearness by Heilborn, "System," pp. 37-57, and Schucking, pp. 14-20.]

[Footnote 329: See above, -- 175. Bynkershoek's ("De Dominio Maris," c.

5) opinion that a littoral State can alienate its maritime belt without the coast itself, is at the present day untenable.]

[Footnote 330: The fact that art. I. of Convention 13 (Neutral Rights and Duties in Maritime War) of the second Hague Peace Conference, 1907, speaks of sovereign rights ... in neutral waters would seem to indicate that the States themselves consider their sway over the maritime belt to be of the nature of sovereignty.]

[Sidenote: Breadth of Maritime Belt.]

-- 186. Be that as it may, the question arises how far into the sea those waters extend which are coast waters and are therefore under the sway of the littoral State. Here, too, no unanimity exists upon either the starting line of the belt on the coast or the breadth itself of the belt from such starting line.

(1) Whereas the starting line is sometimes drawn along high-water mark, many writers draw it along low-water mark. Others draw it along the depths where the waters cease to be navigable; others again along those depths where coast batteries can still be erected, and so on.[331] But the number of those who draw it along low-water mark is increasing. The Inst.i.tute of International Law[332] has voted in favour of this starting line, and many treaties stipulate the same.

[Footnote 331: See Schucking, p. 13.]

[Footnote 332: See Annuaire, XIII. p. 329.]

(2) With regard to the breadth of the maritime belt various opinions have in former times been held, and very exorbitant claims have been advanced by different States. And although Bynkershoek's rule that _terrae potestas finitur ubi finitur armorum vis_ is now generally recognised by theory and practice, and consequently a belt of such breadth is considered under the sway of the littoral State as is within effective range of the sh.o.r.e batteries, there is still no unanimity on account of the fact that such range is day by day increasing. Since at the end of the eighteenth century the range of artillery was about three miles, or one marine league, that distance became generally[333]

recognised as the breadth of the maritime belt. But no sooner was a common doctrine originated than the range of projectiles increased with the manufacture of heavier guns. And although Great Britain, France, Austria, the United States of America, and other States, in Munic.i.p.al Laws and International Treaties still adhere to a breadth of one marine league, the time will come when by a common agreement of the States such breadth will be very much extended.[334] As regards Great Britain, the Territorial Waters Jurisdiction Act[335] of 1878 (41 and 42 Vict. c. 73) specially recognises the extent of the territorial maritime belt as three miles, or one marine league, measured from the low-water mark of the coast.

[Footnote 333: But not universally. Thus Norway claims a breadth of four miles and Spain even a breadth of six miles. As regards Norway, see Aubert in R.G. I. (1894), pp. 429-441.]

[Footnote 334: The Inst.i.tute of International Law has voted in favour of six miles, or two marine leagues, as the breadth of the belt. See Annuaire, XIII. p. 281.]

[Footnote 335: See above, -- 25, and Maine, p. 39.]

[Sidenote: Fisheries, Cabotage, Police, and Maritime Ceremonials within the Belt.]

-- 187. Theory and practice agree upon the following principles with regard to fisheries, cabotage, police, and maritime ceremonials within the maritime belt:--