International Law Part 11

By Article VII., the powers might keep two war vessels in the "ports of access of Port Said and Suez," though "this right shall not be exercised by belligerents."

By Article X., the territorial jurisdiction for general administrative purposes is affirmed, and likewise for sanitary measures in Article XV.[140]

This Suez Ca.n.a.l of such great international importance is by this convention within the jurisdiction of Egypt, but the powers have a.s.sumed to provide that this jurisdiction shall not be exercised in such a way as to prevent innocent pa.s.sage.

The Panama or Nicaraguan Ca.n.a.l is in part provided for by the Clayton-Bulwer Treaty, between the United States and Great Britain in 1850, but in case of actual operation new agreements would be necessary.[141]

The ca.n.a.l at Corinth, shortening somewhat the route to the Black Sea and Asia Minor, was opened in 1893. This ca.n.a.l does not, like the Suez, greatly change the current of the world's intercourse, and is entirely within the jurisdiction of Greece.

Similarly the ca.n.a.l at Kiel, opened in 1896, is wholly within the jurisdiction of Germany.

-- 53. The Three-mile Limit

One of the most generally recognized rules of international law is that the jurisdiction of a state extends upon the open sea to a distance of three miles from the low-water mark. In the words of the Act of Parliament pa.s.sed in consequence of the case of the _Franconia_,[142]

1878 (41 and 42 Victoria, c. 73), "The territorial waters of Her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." The three-mile limit became more and more generally recognized after the publication of Bynkershoek's "De Dominio Maris," in which he enunciates the principle that the territorial jurisdiction ends where the effective force of arms ends, which being approximately three miles from sh.o.r.e at that time, has since been usually accepted.

For special purposes a wider limit of jurisdiction is maintained and sometimes accepted by courtesy, though it is doubtful whether any state would attempt to hold its position against a protest from another state.

The claims are based on the jurisdiction over fisheries, the enforcement of revenue laws, and the maintenance of neutrality. Such claims as the former English claims to the "King's Chambers," announced in 1604 to be bounded by a "straight line drawn from one point to another about the realm of England," as from the Lizard to Land's End, would not now receive serious support; and since the rejection of the claims of the United States by the Bering Sea Tribunal, it can be safely stated that the expansion of territorial jurisdiction upon the open sea will only come through the consensus of states. The desirability of some new regulations upon marine jurisdiction was well shown in the discussions of the Inst.i.tute of International Law at its meeting in Paris in 1894.[143]

Within the three-mile limit the jurisdiction extends to commercial regulations, rules for pilotage and anchorage, sanitary and quarantine regulations, control of fisheries, revenue, general police, and in time of war to the enforcement of neutrality.

-- 54. Fisheries

The existence of fisheries has given rise to some special claims to extension of maritime jurisdiction.

(_a_) As a general rule, the right of =fis.h.i.+ng on the high sea= belongs to all states alike, but each must respect the rights of others. In order that these rights might be defined, it has in many cases been necessary to resort to conventions. One of the most recent examples of this kind is seen in the convention in regard to the North Sea Fisheries, May 6, 1882, to which Belgium, Denmark, France, Germany, Great Britain, and Holland are parties. The cruisers of any of these states may present the case of the fis.h.i.+ng vessel violating the regulations of the convention in the country to which the vessel belongs, but the trial and penalty belong to the country of the vessel.[144]

(_b_) Special privileges granted by one state to another, or secured by custom, become servitudes, as in the case of the =Canadian= fisheries, and must depend upon the interpretation of the treaties by which they were granted.

By the Treaty of 1783 the United States have the right of fis.h.i.+ng on certain parts of the coast of the British Dominion in North America.

Great Britain claimed that these rights were annulled by the Treaty of Ghent, 1814, which put an end to the War of 1812 as that treaty was silent upon the subject. The United States declared "they were not annulled by the war as they were enjoyed by the colonists before the separation from England in 1783, and so existed perpetually independent of treaty."

This claim was adjusted by the Treaty of 1818, which gave to the United States permission to take fish on certain parts of the coast of Newfoundland and Labrador, to dry and cure fish in certain inlets, and to enter other inlets for shelter, repairs, and supplies.

Disputes arising under this treaty were settled by the Treaty of 1854, which gave to Canadian fishermen certain rights of fis.h.i.+ng along the eastern coast of the United States north of the thirty-sixth parallel of lat.i.tude.

The United States took action to terminate this treaty in accord with its terms in 1866. The conditions of the Treaty of 1818 revived.

The Treaty of Was.h.i.+ngton, 1871, practically reestablishes the provisions of the Treaty of 1854, specifying that the difference in value between the rights granted by each state to the other should be determined by a commission. This commission awarded $5,500,000 to Great Britain in 1877.[145]

In accord with the provisions of the Treaty of 1871, it was terminated by the United States in 1886, the provisions of the Treaty of 1818 again coming in force.

A law of March 3, 1897,[146] provides that the President may in certain contingencies deny vessels of the British Dominions of North America entry into the waters of the United States, and may also prohibit the importation of fish and other goods.

(_c_) Another question which has given rise to much discussion is that of the =seal-fis.h.i.+ng in Bering Sea=.[147]

In 1821 Russia claimed that the Pacific north of lat.i.tude 51 was _mare clausum_. The United States and Great Britain denied this claim. By conventions, 1824 and 1825, Russia conceded to these nations rights of navigation, fis.h.i.+ng, etc. After the United States in 1867 acquired Russian America, seal-fis.h.i.+ng a.s.sumed importance. As the Canadian fishermen were not restrained by the laws binding the United States fishermen, it was feared that the seal would become extinct. In 1886 three Canadian schooners were by decree of the district court of Sitka confiscated for the violation of the laws of the United States in regard to seal-fis.h.i.+ng, the judge charging the jury that the territorial waters of Alaska embraced the area bounded by the limits named in the treaty of cession to the United States of 1867 as those "within which the territories and dominion conveyed are contained."[148] This act with others of similar character led to a formal protest by Great Britain.

The questions in dispute were referred to a court of arbitration which decided against the claims of the United States, denying that the sea referred to as the Bering Sea was _mare clausum_, and denying that the United States acquired jurisdiction by prescriptive right from Russia in 1867. It was also decided that the United States had no right of property in the seals in the open sea, and that the destruction of these animals was contrary to the laws of nature. The United States and Great Britain, however, entered into an agreement in regard to the protection and taking of the seals by their subjects. Other nations were also to be asked to become parties to the agreement.[149]

It may be regarded as finally established that fis.h.i.+ng in the open sea is free to all, though of course states may by conventions establish regulations which shall be binding upon their subjects.

-- 55. Vessels

At the present time every vessel must be under the jurisdiction of some state.

(_a_) =Cla.s.ses.=--Vessels are divided into two general cla.s.ses.

(1) _Public vessels_, which include s.h.i.+ps of war, government vessels engaged in public service, and vessels employed in the service of the state and in command of government officers.

(2) _Private vessels_, owned by individuals and under regulations varying in different states.

(_b_) The =nationality= of a public vessel is determined by its flag. In an extreme case the word of the commander is held to be sufficient proof.

In case of a private vessel the flag is a common evidence, but in case of doubt the vessel must show to proper authorities its papers which certify its nationality.

(_c_) The general exercise of =jurisdiction over vessels= is as follows:--

(1) Upon the high seas and _within its own waters_ the jurisdiction of a state over its public and private vessels is exclusive for all cases.

(2) Over _public vessels in foreign waters_, the jurisdiction of the state to which a public vessel belongs is exclusive for all matters of internal economy. The vessels are subject to port regulations in matters of anchorage, public safety, etc. As Dana says in his note to Wheaton, "It may be considered as established law, now, that the public vessels of a foreign state coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits."[150] In general practice the waters of all states are open to the vessels of war of all other states with which they are at peace.

This is a matter of courtesy and not of right, and is in fact sometimes denied, as by the provision of the Treaty of Berlin, 1878, "The port of Antivari and all the waters of Montenegro shall remain closed to the s.h.i.+ps of war of all nations."[151] Various regulations may require, without offence, notice of arrival, probable duration of stay, rank of commander, etc.

The boats, rafts, etc., attached to a vessel of war are regarded as a part of the s.h.i.+p while engaged in the public service.

While there is some difference of opinion as to the immunities of the persons belonging to a s.h.i.+p of war in a foreign harbor, a generally admitted rule seems to be that while the persons of a s.h.i.+p of war are engaged in any public service that is not prohibited by the local authorities, such persons are exempt from local jurisdiction. The s.h.i.+p's crew would not be arrested and detained by local authorities for minor breaches of local regulations, though they might be sent on board their vessel with statement of reasons for such action. If the action of the crew const.i.tutes a violation of the law of the country to which they belong, the commander of the s.h.i.+p may punish them, and report his action to the local authorities. In case of crimes of serious nature the commander may turn the offenders over to the local authorities, but must a.s.sure them a fair trial.

The commander of a vessel is, of course, always responsible to his home government, and his action may become the subject of diplomatic negotiations.

The question of _right of asylum_ on board a s.h.i.+p of war has been much discussed. _First_, Most civilized states now afford asylum on board their s.h.i.+ps of war to those who, in the less civilized regions, flee from slavery.[152] _Second_, In cases of revolution s.h.i.+ps of war sometimes afford refuge to members of the defeated party, though the s.h.i.+p of war may not be used as a safe point from which further hostilities may be undertaken. _Third_, A commander may afford asylum to political refugees under circ.u.mstances which he thinks advisable.

_Fourth_, In cases where asylum is granted to offenders whether political, or (in case of treaty right) criminal, if the request of the local authorities for the release of the criminal is refused by the commander of the s.h.i.+p, there is no recourse except to the diplomatic channels through extradition.

The immunities granted to vessels of war are also generally conceded to other vessels strictly upon public service, _e.g._ carrying an amba.s.sador to his post. The largest possible exemption is given to a vessel conveying the sovereign of a state. Vessels transporting military forces in command of regularly commissioned government officers are usually granted immunities accorded to men-of-war.

(3) Over _private vessels in foreign waters_ the amount of jurisdiction claimed by different states varies.

The principle which is meeting with growing favor, as shown by practice and by treaty stipulation, is stated by Chief Justice Waite in 1886 as follows, "Disorders which disturb only the peace of the s.h.i.+p, or those on board, are to be dealt with exclusively by the sovereignty of the home of the s.h.i.+p, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction."[153]

The position of France is, briefly, to a.s.sume no jurisdiction over foreign merchantmen within her ports save in cases where the act affects some person other than those belonging to the s.h.i.+p, where the local authorities are expressly called upon to interfere, or, when the order of the port is disturbed.[154]

The British Territorial Waters Jurisdiction Act of Aug. 28, 1878, gives jurisdiction to the authorities over all acts committed within the marine league, even though the s.h.i.+ps are not anch.o.r.ed but merely pa.s.sing through territorial waters.[155] This is an extreme position, and not supported by the best authorities, even in Great Britain.

The position of France, as stated above, is open to little objection either in practice or theory, and is more and more becoming a form of treaty agreement, and may be considered generally approved. Where these principles are adopted the jurisdiction of breaches of order within the s.h.i.+p may be referred to the home consul at the port, who has jurisdiction, and if necessary may call upon the local officers to a.s.sist him in enforcing his authority.

(4) In recent years special exemption from jurisdiction has been accorded to certain _semi-public_ vessels engaged particularly in the postal and scientific service. Vessels in the postal service have by treaties been accorded special freedom from customs and port regulations; and by the Convention between Great Britain and France, Aug. 30, 1890 (Art. 9), it is agreed that in time of war such vessels shall be free from molestation till one of the states shall give formal notice that communication is at an end.