International Law. A Treatise Volume I Part 40

---- 172-173--Moore, II. ---- 309-310--Taylor, -- 242--Wheaton, -- 187--Bluntschli, ---- 304-308--Heffter, -- 94--Stoerk in Holtzendorff, II. pp. 483-498--Ullmann, -- 101--Bonfils, Nos.

572-577--Pradier-Fodere, II. Nos. 874-881--Rivier, I. -- 17--Nys, II. pp. 140-166--Calvo, I. -- 346--Fiore, II. Nos. 724, 727, and Code, Nos. 928-930--Martens, I. -- 97--Perels, -- 4--Testa, pp.

63-66--Ortolan, "Diplomatie de la mer" (1856), I. pp. 119-149--De Burgh, "Elements of Maritime International Law" (1868), pp.

1-24--Castel, "Du principe de la liberte des mers" (1900), pp.

37-80.

[Sidenote: Meaning of the Term "Freedom of the Open Sea."]

-- 254. The term "Freedom of the Open Sea" indicates the rule of the Law of Nations that the Open Sea is not and never can be under the sovereignty of any State whatever. Since, therefore, the Open Sea is not the territory of any State, no State has as a rule a right to exercise its legislation, administration, jurisdiction,[499] or police[500] over parts of the Open Sea. Since, further, the Open Sea can never be under the sovereignty of any State, no State has a right to acquire parts of the Open Sea through occupation,[501] for, as far as the acquisition of territory is concerned, the Open Sea is what Roman Law calls _res extra commercium_.[502] But although the Open Sea is not the territory of any State, it is nevertheless an object of the Law of Nations. The very fact alone of such a rule exempting the Open Sea from the sovereignty of any State whatever shows this. But there are other reasons. For if the Law of Nations were to content itself with the rule which excludes the Open Sea from possible State property, the consequence would be a condition of lawlessness and anarchy on the Open Sea. To obviate such lawlessness, customary International Law contains some rules which guarantee a certain legal order on the Open Sea in spite of the fact that it is not the territory of any State.

[Footnote 499: As regards jurisdiction in cases of collision and salvage on the Open Sea, see below, ---- 265 and 271.]

[Footnote 500: See, however, above, -- 190, concerning the zone for Revenue and Sanitary Laws.]

[Footnote 501: Following Grotius (II. c. 3, -- 13) and Bynkershoek ("De dominio maris," c. 3), some writers (for instance, Phillimore, I. -- 203) maintain that any part of the Open Sea covered for the time by a vessel is by occupation to be considered as the temporary territory of the vessel's flag State. And some French writers go even beyond that and claim a certain zone round the respective vessel as temporary territory of the flag State. But this is an absolutely superfluous fiction. (See Stoerk in Holtzendorff, II. p. 494; Rivier, I. p. 238; Perels, pp.

37-39.)]

[Footnote 502: But the subsoil of the bed of the Open Sea can well, through driving mines and piercing tunnels from the coast, be acquired by a littoral State. See above, -- 221, and below, ---- 287_c_ and 287_d_.]

[Sidenote: Legal Provisions for the Open Sea.]

-- 255. This legal order is created through the co-operation of the Law of Nations and the Munic.i.p.al Laws of such States as possess a maritime flag. The following rules of the Law of Nations are universally recognised, namely:--First, that every State which has a maritime flag must lay down rules according to which vessels can claim to sail under its flag, and must furnish such vessels with some official voucher authorising them to make use of its flag; secondly, that every State has a right to punish all such foreign vessels as sail under its flag without being authorised to do so; thirdly, that all vessels with their persons and goods are, whilst on the Open Sea, considered under the sway of the flag State; fourthly, that every State has a right to punish piracy on the Open Seas even if committed by foreigners, and that, with a view to the extinction of piracy, men-of-war of all nations can require all suspect vessels to show their flag.

These customary rules of International Law are, so to say, supplemented by Munic.i.p.al Laws of the maritime States comprising provisions, first, regarding the conditions to be fulfilled by vessels for the purpose of being authorised to sail under their flags; secondly, regarding the details of jurisdiction over persons and goods on board vessels sailing under their flags; thirdly, concerning the order on board s.h.i.+p and the relations between the master, the crew, and the pa.s.sengers; fourthly, concerning punishment of s.h.i.+ps sailing without authorisation under their flags.

The fact that each maritime State has a right to legislate for its own vessels gives it a share in keeping up a certain order on the Open Sea.

And such order has been turned into a more or less general order since the large maritime States have concurrently made more or less concordant laws for the conduct of their vessels on the Open Sea.

[Sidenote: Freedom of the Open Sea and war.]

-- 256. Although the Open Sea is free and not the territory of any State, it may nevertheless in its whole extent become the theatre of war, since the region of war is not only the territories of the belligerents, but likewise the Open Sea, provided that one of the belligerents at least is a Power with a maritime flag.[503] Men-of-war of the belligerents may fight a battle in any part of the Open Sea where they meet, and they may capture all enemy merchantmen they meet on the Open Sea. And, further, the jurisdiction and police of the belligerents become through the outbreak of war in so far extended over vessels of other States, that belligerent men-of-war may now visit, search, and capture neutral merchantmen for breach of blockade, contraband, and the like.

[Footnote 503: Concerning the distinction between theatre and region of war, see below, vol. II. -- 70.]

However, certain parts of the Open Sea can become neutralised and thereby be excluded from the region of war. Thus, the Black Sea became neutralised in 1856 through article 11 of the Peace Treaty of Paris stipulating:--"La Mer Noire est neutralisee: ouverte a la marine marchande de toutes les nations, ses eaux et ses ports sont formellement et a perpetuite interdites au pavillon de guerre, soit des puissances riveraines, soit de tout autre puissance." Yet this neutralisation of the Black Sea was abolished[504] in 1871 by article 1 of the Treaty of London, and no other part of the Open Sea is at present neutralised.

[Footnote 504: See above, -- 181.]

[Sidenote: Navigation and ceremonials on the Open Sea.]

-- 257. The freedom of the Open Sea involves perfect freedom of navigation for vessels of all nations, whether men-of-war, other public vessels, or merchantmen. It involves, further, absence of compulsory maritime ceremonials on the Open Sea. According to the Law of Nations, no rights whatever of salute exist between vessels meeting on the Open Sea. All so-called maritime ceremonials on the Open Sea[505] are a matter either of courtesy and usage or of special conventions and Munic.i.p.al Laws of those States under whose flags vessels sail. There is in especial no right of any State to require a salute from foreign merchantmen for its men-of-war.[506]

[Footnote 505: But not within the maritime belt or other territorial waters. See above, ---- 122 and 187.]

[Footnote 506: That men-of-war can on the Open Sea ask suspicious foreign merchantmen to show their flags has nothing to do with ceremonials, but with the supervision of the Open Sea in the interest of its safety. See below, -- 266.]

The freedom of the Open Sea involves likewise freedom of inoffensive pa.s.sage[507] through the maritime belt for merchantmen of all nations, and also for men-of-war of all nations in so far as the part concerned of the maritime belt forms a part of the highways for international traffic. Without such freedom of pa.s.sage, navigation on the Open Sea by vessels of all nations would be a physical impossibility.

[Footnote 507: See above, -- 188.]

[Sidenote: Claim of States to Maritime Flag.]

-- 258. Since no State can exercise protection over vessels that do not sail under its flag, and since every vessel must, in the interest of the order and safety of the Open Sea, sail under the flag of a State, the question has been raised whether not only maritime States but also such States as are not littoral States of the Sea have a claim to a maritime flag. There ought to be no doubt[508] that the freedom of the Open Sea involves a claim of any State to a maritime flag. At present no non-littoral State actually has a maritime flag, and all vessels belonging to subjects of such non-littoral States sail under the flag of a maritime State. But any day might bring a change. The question as to the claim to a maritime flag on the part of a non-littoral State was discussed in Switzerland. When, in 1864, Swiss merchants in Trieste, Smyrna, Hamburg, and St. Petersburg applied to the Swiss Bundesrath for permission to have their vessels sailing under the Swiss flag, the Bundesrath was ready to comply with the request, but the Swiss Parliament, the Bundesversammlung, refused the necessary consent. In 1889 and 1891 new applications of the same kind were made, but Switzerland again refused to have a maritime flag.[509] She had no doubt that she had a claim to such flag, but was aware of the difficulties arising from the fact that, having no seaports of her own, vessels sailing under her flag would in many points have to depend upon the goodwill of the maritime Powers.[510]

[Footnote 508: See, however, Westlake, I. p. 165.]

[Footnote 509: See Salis, "Schweizerisches Bundesrecht" (1891), vol. I.

p. 234.]

[Footnote 510: The question is discussed by Calvo, I. -- 427; Twiss, I.

---- 197 and 198; and Westlake, I. p. 165.]

Such States as have a maritime flag as a rule have a war flag different from their commercial flag; some States, however, have one and the same flag for both their navy and their mercantile marine. But it must be mentioned that a State can by an international convention be restricted to a mercantile flag only, such State being prevented from having a navy. This is the position of Montenegro[511] according to article 29 of the Treaty of Berlin of 1878.

[Footnote 511: See above, -- 127, but it is doubtful whether this restriction is still in existence, since article 29 has, after the annexation of Bosnia and Herzegovina by Austria in 1908, been modified by the Powers, so that the port of Antivari and the other Montenegrin waters are now no longer closed to men-of-war of all nations. See R.G.

XVII. (1910), pp. 173-176.]

[Sidenote: Rationale for the Freedom of the Open Sea.]

-- 259. Grotius and many writers who follow[512] him establish two facts as the reason for the freedom of the Open Sea. They maintain, first, that a part of the Open Sea could not effectively be occupied by a Navy and could therefore not be brought under the actual sway of any State.

And they a.s.sert, secondly, that Nature does not give a right to anybody to appropriate such things as may inoffensively be used by everybody and are inexhaustible, and, therefore, sufficient for all.[513] The last argument has nowadays hardly any value, especially for those who have freed themselves from the fanciful rules of the so-called Law of Nature.

And the first argument is now without basis in face of the development of the modern navies, since the number of public vessels which the different States possess at present would enable many a State to occupy effectively one part or another of the Open Sea. The real reason for the freedom of the Open Sea is represented in the motive which led to the attack against maritime sovereignty, and in the purpose for which such attack was made--namely, the freedom of communication, and especially commerce, between the States which are severed by the Sea. The Sea being an international highway which connects distant lands, it is the common conviction that it should not be under the sway of any State whatever.

It is in the interest of free intercourse[514] between the States that the principle of the freedom of the Open Sea has become universally recognised and will always be upheld.[515]

[Footnote 512: See, for instance, Twiss, I. -- 172, and Westlake, I. p.

160.]

[Footnote 513: See Grotius, II. c. 2, -- 3.]

[Footnote 514: See above, -- 142.]

[Footnote 515: Connected with the reason for the freedom of the Open Sea is the merely theoretical question whether the vessels of a State could through an international treaty be prevented from navigating on the whole or on certain parts of the Open Sea. See Pradier-Fodere, II. Nos.

881-885, where this point is exhaustively discussed.]

IV

JURISDICTION ON THE OPEN SEA

Vattel, II. -- 80--Hall, -- 45--Westlake, I. pp. 166-176--Lawrence, -- 100--Halleck, p. 438--Taylor, ---- 262-267--Walker, -- 20--Wheaton, -- 106--Moore, II. ---- 309-310--Bluntschli, ---- 317-352--Heffter, ---- 78-80--Stoerk in Holtzendorff, II. pp. 518-550--Liszt, -- 26--Bonfils, Nos. 578-580, 597-613--Despagnet, Nos.

422-430--Merignhac, II. pp. 505-511--Pradier-Fodere, V. Nos.

2376-2470--Rivier, I. -- 18--Nys, II. pp. 139-165--Calvo, I. ---- 385-473--Fiore, II. Nos. 730-742, and Code, Nos.

1001-1027--Martens, II. ---- 55-56--Perels, -- 12--Testa, pp.

98-112--Ortolan, "Diplomatie de la mer" (1856), II. 254-326--Hall, "Foreign Powers and Jurisdiction of the British Crown" (1894), ---- 106-109.

[Sidenote: Jurisdiction on the Open Sea mainly connected with Flag.]

-- 260. Jurisdiction on the Open Sea is in the main connected with the maritime flag under which vessels sail. This is the consequence of the fact stated above[516] that a certain legal order is created on the Open Sea through the co-operation of rules of the Law of Nations with rules of the Munic.i.p.al Laws of such States as possess a maritime flag. But two points must be emphasised. The one is that this jurisdiction is not jurisdiction over the Open Sea as such, but only over vessels, persons, and goods on the Open Sea. And the other is that jurisdiction on the Open Sea is, although mainly, not exclusively connected with the flag under which vessels sail, because men-of-war of all nations have, as will be seen,[517] certain powers over merchantmen of all nations. The points which must therefore be here discussed singly are--the claim of vessels to sail under a certain flag, s.h.i.+p-papers, the names of vessels, the connection of vessels with the territory of the flag State, the safety of traffic on the Open Sea, the powers of men-of-war over merchantmen of all nations, and, lastly, s.h.i.+pwreck.

[Footnote 516: See above, -- 255.]