XVII restricted to nationals of the state or to incorporated national CHAP. companies.1 In order to secure observance of the conditions of navigation, only aircraft of the contracting states are to be permitted freedom of innocent passage; and as an additional means of protecting the safety of aerial navigation a technical minimum standard of competence of officers and crew is provided for in an annex, further requirements being left to the individual states.2 for Air The convention further makes provision for the creation of a Commission permanent International Commission for Air Navigation, organ- Navigation ized so as to secure preponderant voting power to the five Great Powers as against all contracting states, and placed under the direction of the League of Nations. The commission is empowered to receive and act upon proposals for amending the convention or any of its annexes, and it will collect information with respect to air navigation and publish official maps and prepare opinions. Disagreements relating to the interpretation of the convention are to be referred to the Permanent Court of International Justice, but the commission itself is given authority to decide by a majority vote disputes concerning the technical regulations. A special difficulty foreseen by the convention is the prevention of customs fraud. Provision is made that aircraft must depart only from and alight only in specially designated "customs aërodromes," and frontiers must be crossed at points indicated on aëronautical maps.5 There is to be examination of the aircraft's papers after the manner 1 Art. 5-10. 4 Art. 11-14. An earlier draft of the convention, elaborated during the Paris Conference of 1919, applied to airships the rules governing jurisdiction over merchant vessels in territorial waters. Provision was made (Art. 23) that "the legal relations entered into between persons on board an airship in flight are governed by the law of the nationality of the aircraft," an exception being made in the case of offenses committed against a national of the terri torial sovereign when the offense was followed by a landing upon the territory, See A. K. Kuhn, "International Aërial Navigation and the Peace Conference, Am. Journal, XIV (1920), 369. 3 a Art. 34. Art. 37. Attention may be called to the unique method of representation of the member states in the new union. The five leading powers are to have each two representatives; other states, including the British self-governing dominions, each one representative. Votes are to be cast by states, but the votes of the five leading powers are overweighted, so as to give them as a whole a majority of one over the total number of votes of the other contracting parties. See Art. 34. 5 Annex H. Mr. Kuhn calls attention to the need of legislation by Congress for the regulation of aërial navigation in the United States. As in the case of maritime navigation, there is obvious need of a single municipal code prescribing uniform rules for the whole country. Such a municipal code would doubtless, as in the case of maritime laws (see below, p. 294), follow closely the rules of the international convention. Am. Journal, loc cit. CHAP. XVII of the examination of a marine vessel's papers in port. For reasons not stated, the right of adherence to the convention is somewhat limited, being confined to members of the League of Nations or other states admitted by a three-fourths majority vote. CHAPTER XVIII THE HIGH SEAS Outside the territorial waters of the several states, as circumscribed by the maritime belt following the sinuosities of the coast, lie the high seas. These bodies of water, embracing the several oceans, the arms or branches of those oceans, such as the Mediterranean, the North, the Baltic, the Caribbean, and the Black seas, bays and gulfs too wide at their mouth to be territorial, such as the bays of Biscay and Bengal, connecting seas, such as the Sea of Marmora and the Red Sea, are open to all nations alike for purposes of navigation, of deep-sea fishing, or of submarine cable communication. Upon the high seas no state may claim rights of jurisdiction other than over ships flying its national flag; and on these the basis of control is personal rather than territorial. a. The high seas open to the use of all nations claims to The principle that the high seas are open and free to the use Early of all nations was not recognized in its full extent until the exclusive first quarter of the nineteenth century. The early Roman jurists jurisdiction looked upon the sea, as upon the air, as common to all mankind. But with the development of commerce in the later Middle Ages, maritime states began to claim dominion over parts of the open sea adjacent to their territories. The Adriatic Sea was claimed by Venice, and the Ligurian Sea by Genoa. The Baltic Sea was shared by Sweden and Denmark. England not only claimed sovereignty over the Narrow Seas and the North Sea, but staked out the Atlantic Ocean itself by a line drawn from Cape Finisterre in Spain around the British Isles to Stadland in Norway. These claims reached the height of their extravagance when Portugal and Spain, in dispute as to the extent of their territorial possessions in the Atlantic and the Pacific, entered into the treaty of Tordesillas in 1494, delimiting their boundaries of discovery in the New World by a line drawn three hundred and seventy leagues west of the Cape Verde Islands, Spain receiving the lands west of the line and Portugal those to the east. Thereupon Portugal claimed sovereignty over the Indian Ocean and the south Atlantic, and Spain 'See above, p. 222. CHAP. XVIII Conflicting doctrines of writers over the Pacific and the Gulf of Mexico. Some of these claims to exclusive jurisdiction were acquiesced in by other powers. England succeeded, by the power of its navy, in compelling foreign fishing-vessels to take out a license to fish in the North Sea; 1 while foreign vessels entering the waters claimed by England as territorial were obliged to strike their topsail and take in their flag in recognition of her sovereign jurisdiction. On the other hand, the excessive pretentions of Spain and Portugal were stoutly resisted. by England, as illustrated in the famous statement of Queen Elizabeth, who, untroubled by the inconsistency of English claims, informed the Spanish ambassador that "the use of the sea and air is common to all; neither can a title to the ocean belong to any people or private persons, forasmuch as neither nature nor public use and custom permitteth any possession thereof."2 On the whole but little law was recognized in the matter. Each state asserted such claims as seemed warranted in its own eyes and obtained recognition of them in proportion to its power to defend them. Naturally the conflicting claims of states gave rise to a corresponding doctrinal controversy. To Grotius belongs the distinction of making the first effective plea for a larger freedom of the seas. His pamphlet, Mare Liberum,3 appeared in 1609, in defense of the right of the Dutch to navigate the Indian Ocean, claimed by Portugal to be its exclusive territorial waters. His argument was based upon a priori principles derived from the Roman law, that the sea could not in fact be "occupied" as in the case of land, and therefore must have been intended by nature to be free to all. Moreover, the sea, being inexhaustible in use, was not in principle susceptible of occupation, which was necessary in the case of things the utility of which could only be conserved by becoming private property. These arguments are somewhat qualified in the De Jure Belli et Pacis of 1625. Grotius was answered by a number of advocates of territorial claims. Notes of Gentilis in defense of Spanish claims were published posthumously in 1613, under the title Hispanica Advocationis Libri Duo. John Selden replied in 1618 with his Mare Clausum, controverting theories of natural law with the bald fact that parts of the sea had actually been appropriated by England. XVIII In 1653 Sir John Burroughs published a further defense of British CHAP. claims under the title, The Sovereignty of the British Seas, while Paolo Sarpi defended the claims of Venice in a volume published in 1676. For the time being Grotius appeared to be in the minority; but by the eighteenth century new writers came to his support, notably Bynkershoek, whose work, De Dominio Maris, was published in 1702.2 Bynkershoek recognized, however, the fact that the seas could be effectively occupied to the extent of the maritime belt measured by the range of a cannon-shot.3 Vattel repeated in 1758 the a priori arguments of Grotius, and his principles found a ready hearing among the writers of the early nineteenth century. Side by side with the change of doctrine came a change of practice. The right of free navigation won general acceptance by the close of the seventeenth century, but it continued for more than a century to be attended by the necessity of saluting the British flag when vessels entered the waters regarded by that government as the "British Seas." But this last survival was tacitly abandoned after its vigorous reassertion in 1805.5 Fishing rights came later, Denmark abandoning its claims to the regions. of Greenland and Iceland, and Great Britain abandoning its claims to the German Ocean. A last attempt on the part of Russia in 1821 to assert a claim to the exclusive sovereignty of Bering Sea by prohibiting foreign ships from approaching within one hundred Italian miles of the shores of Alaska was resisted by the United States and other powers, and was promptly abandoned by conventions concluded in 1824 and 1825. At the present day, whether the law rests upon a principle of "natural rights" more or less obsolete, or whether it rests upon a new theory based upon the obvious needs of the community of nations, general practice recognizes the high seas as open and free to the use of all nations beyond the strict limits of the marine league surrounding the several maritime states. This freedom is protected, rather than restricted, by the necessary regulations that have been adopted for the protection of navigation and fishing and for the suppression of piracy 6 For details of these treatises, see Fulton, Sovereignty of the Sea. 3 See above, p. 250, n. 3. Droit des Gens (Eng. trans.), Bk. I, §§ 279 ff. See Hall, International Law, § 40. For the reappearance of this claim on the part of the United States as successor to Russia, see below, p. 296. Modern practice of states |