time state, but such supplementary legislation can bind national vessels and the vessels of states which accept the additional regulations, solely, unless the rule receives universal sanction through adoption by all maritime powers.

Equal participation in the deep-sea fisheries is a legitimate employment of the high seas which all maritime nations may enjoy. The limitations and regulations imposed correspond with those established to secure the freedom of navigation on the seas, since the yearly production of the fisheries discloses an importance only secondary to that of commercial navigation, the estimated value of the world's fishery products amounting to five hundred million dollars, annually. ("Report of the United States Bureau of Fisheries," 1915.) The protection afforded the fisheries by national regulation within territorial waters is inadequate; consequently, while fishing within territorial waters is reserved exclusively for national vessels, all foreigners being rigorously excluded unless enjoying limited treaty privileges, the undisputed right of fishing on the high seas, enjoyed by all nations, may be restrained or regulated by custom or treaty.1

Modern practice exhibits a fundamental departure from the former pretensions of sovereignty maintained by dominant maritime powers. The navigation and fishery regulations which limit the use of the sea to any appreciable degree constitute no derogation from the fundamental principles of international law establishing the freedom of the sea. Although such co-operative restrictions seek the secure and perpetual enjoyment of the sea for all maritime nations, foreign nations

1 Like many other maritime states, Great Britain has agreed to limit her undisputed right to fish in the open sea by the following conventions: By treaty with the United States, for the protection of the Northeast fisheries; notably the treaties of 1818, 1872, 1892;

By the treaty of 1839, supplemented by the treaty of 1867, with France, regulating fishing in the adjacent seas;

By the treaty of 1904 with France, relating to the Newfoundland fisheries;

By the treaty of 1882 between Great Britain, Belgium, Denmark, France, Germany, and the Netherlands governing the North Sea fisheries.

are bound to observe the limitations enacted, only upon voluntary adoption.

Certain indefensible limitations still endure in time of peace, and the magnitude of modern wars exerts serious restrictions upon commerce, frequently intensified by the employment of irregular and unprecedented practices, nevertheless there exists nothing comparable to the former, continued pretensions to the sovereignty of the seas, involving humiliating ceremonies and the payment of tribute. At discretion, a merchant vessel may, or may not, offer the flag salute upon passing war-ships of any sovereign. The ceremony which indicated submission to the maritime dominion of powerful states in previous centuries, has become merely a courtesy to be returned by the fleet-commander.

Aside from the question whether sovereignty comprehended property in the seas, it is beyond dispute that the exercise of sovereignty on the seas resulted in restrictions which are no longer countenanced. While certain exceptional limitations upon the most complete liberty of navigation still endure, the former comprehensive pretensions to dominion over wide areas of the open sea are no longer maintained. Suppressed for three centuries by the intense national rivalries engendered by the unprecedented opportunities for maritime development disclosed by the discovery of the New World, but gaining increasing recognition as the maritime states of Europe realized the futility of endeavoring to maintain a lasting and exclusive dominion over the high seas, the principle of the freedom of the seas ultimately received universal acceptance through the voluntary abandonment by Great Britain of all claims to sovereignty beyond territorial waters.

CHAPTER VII

EXCEPTIONAL LIMITATIONS ON THE FREEDOM OF THE SEAS

Before proceeding with the consideration of the freedom of navigation on inland waters, which almost immediately evolved from the establishment of the unrestricted use of the seas, certain exceptional limitations must be briefly noted. The freedom of the seas, like the freedom of navigation on inland, international waterways, enjoys a world-wide observance, albeit certain notable restrictions still exist. In relation to the vast extent of international waterways, both inland and maritime, available for the commerce and enterprise of all nations, the limitations imposed during peace are not particularly burdensome, though significant as demonstrating that the unqualified observance of the principle has not yet been achieved, neither on the high seas nor on inland waterways.

Although pretensions to sovereignty over extensive areas of the high seas are now virtually obsolete, certain claims to restricted maritime areas still persist, based upon the extension of the marginal sea beyond the customary limits, and so enclosing bays, gulfs, and even narrow seas, which justly belong to all nations in common. Long exclusive possession or explicit treaty provisions with other maritime nations may accord a limited or even a complete recognition of such adverse claims. As a rule the presumption is against the validity of all claims exceeding the customary limits of territorial jurisdicton, for, as Vattel demonstrates, "the rights of navigation and fishing and other rights which are exercised on the sea are classed among those rights which may be exercised at will, and which are not subject to prescription, they cannot be lost by a non-user. Hence, although it should happen that a nation had been, from time immemorial, the only one to exercise the right

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of navigating or fishing in certain seas, it could not on that ground claim an exclusive right; for the fact that the other nations did not use their common right of navigating and fishing in the waters in question does not lead to the conclusion that they agreed to renounce their right, and they may still use it as often as they please." But it can happen that "non-user" may take on the character of consent, or implied agreement, and thus become a title in favor of one nation as against another. When a nation is alone in exercising the right of navigating and fishing in certain waters, and claims an exclusive right, and forbids others to exercise their right, IF THEY OBEY the prohibition with sufficient signs of acquiescence, they impliedly renounce their right in favor of the other nation and give it an exclusive right which it may lawfully maintain against them in the future, especially when that right is confirmed by long usage." (Vattel, "Law of Nations," Vol. I, Book I, Chap. xxiii, secs. 285-286.)

International law admits the exercise of national jurisdiction upon inland waters bounded entirely by the territory of a single state and affording access solely to ports within the national domain, as well as over the marginal sea, customarily limited to one marine league seaward. Bays, not exceeding six nautical miles in width, are considered territorial waters, though immemorial usage may permit jurisdiction on waters exceeding these universally recognized limits, particularly if national security is jeopardized otherwise. In the opinion of Vattel, all considerations respecting the marginal seas apply "more especially and with greater reason to roads (anchorages), bays, and straits, inasmuch as they are even more capable of being effectively possessed and are of greater importance to the safety of the state; i.e. bays and straits of small area, and not wide stretches of sea sometimes called by these names, such as Hudson's Bay, and the Straits of Magellan, over which sovereignty, and still less ownership, could be claimed. A bay, entrance into which can be prevented, may be possessed and made subject to the laws of the sovereign; and it is important

that this be so, since the nation might be much more easily insulted in such waters than along the coast, which is exposed to the winds and force of the waves." (Vattel, "Law of Nations," Vol. I, Book I, Chap. xxiii, sec. 291.)1

All other waters constitute the high seas and cannot be restricted by any sovereign, though Phillimore adheres to the view that "the portion of the sea actually occupied by a fleet riding at anchor is within the dominion of the nation to which the fleet belongs, so long as it remains there," a doctrine revived during the progress of the Spanish Claims hearings, December 19, 1901, the Assistant Attorney General declaring that "an United States battleship represents the sovereignty of its country. . . . The vessel and the water upon which it floats is United States territory." (Phillimore, "International Law," I, sec. 203; II, sec. 303.) (Spanish Treaty Claims Commission, # 30, Dec. 19, 1901.)2

Futile efforts during the nineteenth century to establish exclusive claims upon the high seas served further to vindicate the principle universally recognized during the first decade, so that at present the derogations from the complete freedom of the seas involve the extension of marginal waters beyond the customary limits. The exactions of the Barbary pirates; the arrogant claims of Great Britain to the right of visit and search aboard foreign merchant-men during peace; the dues imposed upon navigation within the Danish Sound; and the successive endeavors of Russia and the United States to restrict the sealfishing industry in the Bering Sea, ceased to exist, demon

1 F. de Martens, "Traité de droit international," Vol. I, sec. 96, pg. 495; supported by Oppenheim, "International Law," I, pg. 230; asserts that the extensive Sea of Azov is not open to the navigation of foreign vessels, in the absence of permission from the Russian Government, since communication with the Black and Mediterranean Seas is indirect; it is virtually enclosed by Russian territory; and therefore resembles a gulf more than an open sea.

2 The ocean is "the open sea, the high sea, that which is the common highway of nations, the common domain, within the body of no country and under the particular right or jurisdiction of no sovereign, but open, free and common to all alike, as a common and equal right. U. S. vs. Morel, 26 Fed. Cases, No. 15, 807.