CHAP. XVIII b. The law of the sea Regulations to prevent collisions and the slave trade.1 On the other hand, it is still subject to sharp restrictions in time of war, when precedence is given in several matters to belligerent rights over the normal rights of states not parties to the war.2 3 The law of the sea in respect to the protection of navigation has already been discussed in part in connection with the jurisdiction of states over vessels flying the national flag. Order is maintained on the high seas as between individuals by subjecting the internal discipline of each vessel to the law of the state whose flag it flies, irrespective of the nationality of the parties involved in the case. Each state determines for itself the conditions under which it will admit merchant vessels to its registry; and once a vessel is authorized to fly the flag of a particular state, no other state may question its right to sail the seas or interfere in any way with its movements. On the other hand, the maintenance of order on the high seas as between national vessels is secured by general regulations to prevent collisions, and by special regulations governing fishing-vessels in parts of the sea where the need of such regulations has been felt." While no single code of navigation for the prevention of collisions has yet been adopted, the urgent need of common action in this matter has led the individual maritime states to adopt identical municipal regulations with respect to lights and signals, the law of the road, piloting, and courses. Great Britain led the way with a "Commercial Code of Signals for the Use of All Nations" published in 1857, which was subsequently adopted by all maritime states. In 1888 the Institute of International Law drew up a "Draft of Uniform Law for Marine Collisions," and this was followed in 1889 by another draft convention prepared by a maritime conference of the leading states assembled at Washington. Action by the separate states was, however, delayed, and a new conference met at Brussels in 1909. The draft conventions prepared by this last body dealt with limitations upon the liability of ship-owners, maritime mortgages and privileged liens, and reparation for injuries resulting from collisions. They were indorsed the following year and recommended to the several states for separate adoption as national law. While there is no single conventional rule, the uniform provisions of national law, together 2 'See above, pp. 204 ff. See below, Chap. XXXII. IV (1910), 115. See above, p. 190. •Resolutions, 83. Journal, Supplement, with established usages, are regarded by national courts as a sort CHAP. of common law of the sea to be applied in cases properly coming before them.1 While there has been in general no need for the regulation of fisheries on the high seas, special cases have arisen where joint action was called for by the states interested in protecting the fisheries and the fishing-vessels in a particular part of the sea adjacent to their coasts. One of the first and most important conventions adopted with this object in view was the Hague Convention of 1882 for the Regulation of the Police of the Fisheries in the North Sea outside Territorial Waters. This agreement made provision for the registration of fishing-vessels and for a special emblem to be borne by them, while specific rules were laid down for the avoidance of conflicts between vessels of different nationalities. An exceptional provision, of great collateral importance, is the authorization of the cruisers of the signatory powers to exercise a reciprocal right of visit, search, and seizure of the vessels of their several flags for the enforcement of the rules laid down." A second general convention adopted in 1887 was directed towards the abolition of the liquor traffic among fishermen in the North Sea. In 1901 Great Britain and Denmark concluded an agreement for the regulation of fisheries in the waters adjacent to the Faröe Islands and to Iceland, similar in character to the North Sea agreement of 1882.1 The controversy between the United States and Great Britain over the seal fisheries in the waters adjacent to Bering Sea was perhaps too exceptional in respect to the issues raised to form a precedent of importance. The outcome of the resort to arbitration. shows, however, the possibilities of international regulation of an industry at once domestic and international. In 1886 and 1887 United States police cruisers seized certain British Columbian vessels for violation of regulations made by the United States for the protection of the seal fisheries. The seizures were upheld by the United States courts, which relied upon the theory that the waters of Bering Sea were a closed territorial sea." The dispute was The question of the jurisdiction taken by national courts in cases of collision is discussed above, p. 197. See in particular the case of the Scotia, 14 Wallace, 170 (1871), where the universal obligation of established maritime usages is emphasized. 2 Oppenheim, International Law, I, § 282. Ibid., § 283. Ibid., § 285. XVIII c. Regula shing on the high seas The Bering Sea Seal Fisheries case CHAP d. Regulation of submarine cables submitted to arbitration by a treaty of 1892, which called upon the arbitrators not only to render an award on the merits of the case, but to frame regulations which might be concurrently adopted for the protection of the seals.1 In presenting its case the United States, while not claiming exclusive jurisdiction over Bering Sea, relied upon rights inherited from Russia, by which jurisdiction might be exercised to the extent of protecting the seals when absent from their breeding-places on American territory in search of food on the high seas. This claim of a property right in the seals, which might be protected in the open sea as well as on the Pribyloff Islands themselves, was rejected by the arbitration tribunal. The tribunal, however, drew up a series of regulations for the protection of the seals, to be adopted by the parties to the case and such other maritime powers as might agree to them. The failure of this effort to protect the seals from threatened extinction led the United States to call, in 1911, the Pelagic Sealing Conference, which met in Washington and drew up a convention providing for a closed season and other supplementary measures." While the terminal points of submarine cables rest upon the territory of a particular state, and are therefore subject to its immediate control, the greater part of their length rests upon an ocean bed open for the use of all who desire to lay such lines of communication. Hence there arose the need for joint action on the part of interested powers, both to regulate the placing of cables and to prevent injury to them on the part of irresponsible individuals. In 1884 a conference of twenty-six states met at Paris and adopted an International Convention for the Protection of Submarine Telegraph Cables. The importance of this convention lies not merely in the fact that it provides for the administrative regulation of what might be called an "international public utility;" but in the fact that the signatory powers undertook to punish the negligent breaking or damaging of a cable by the prosecution of offenders in their national courts, and in order to facilitate such protective measures agreed to permit their men-of-war to stop and verify the nationality of merchantmen of all nations which were suspected of having infringed the regulations of the treaty." For the text of the convention, see Am. Journal, VI (1912), Supp. 72; Malloy, Treaties, I, 746. 1 3 Moore, Arbitrations, I, Chap. XVII; Am. Journal, VI (1912), 233. Charles, Treaties, 60. For the act of Congress of 1912, see Am. Journal, VII (1913), 140. For the text of the convention, see Malloy, Treaties, II, 1949. "See Oppenheim, International Law, I, §§ 286-7. XVIII e. Freedom of the seas: of war By long custom international law has come to recognize sharp CHAP. restrictions upon the normal freedom of the seas in the event of war between two maritime states. Neutral states, not parties to the conflict, have been called upon to submit to the visit and search in time of their merchant vessels by the public vessels of the belligerent states, with the object of ascertaining the nationality of the vessel and the character and destination of its cargo.'Moreover, the right of belligerents to engage in battle on the high seas may seriously inconvenience neutral vessels whose course leads them through those waters. At the same time belligerents have exercised an authority to extend the area of maritime jurisdiction by marking off zones of offense and defense, in some cases planted with mines, into which neutrals enter at their own risk.Neutral states are thus obliged to subordinate their normal rights upon the high seas to the prosecution of a war in the making of which they have had no part, and with which, furthermore, they have had no legal right to interfere notwithstanding the consequences to themselves. As for the belligerents, they obviously sacrifice the enjoyment of their rights of navigation, fishing, and communication in so far as either can succeed in doing injury to the other. The entire merchant marine of both states, although privately owned by individual non-combatant citizens, is by the law of maritime war subject to capture and confiscation by the enemy.3 A new aspect of the freedom of the seas came to the front during the World War. Both combatant groups, confronted with new conditions, found it necessary to stretch the rules of maritime warfare beyond the accepted interpretations of the past. As a neutral the United States suffered both from the application of the law of contraband and blockade by one belligerent and from the ruthless offensive measures of the other belligerent. American commerce, even that carried on with the neutral nations of Europe, was for the time completely demoralized. At the same time, Great Britain, although having fought scarcely a single sea battle, had captured or driven to cover the entire merchant marine of the enemy. It was under these circumstances that President Wilson made his address before the Senate on January 22, 1917, laying 'See below, p. 511. "See below, p. 500. The specific questions raised by the conflicting rights of belligerents and neutrals are considered in detail below. They are referred to here only as indicating the practical limitations of the general principle of the freedom of the seas. Freedom of the seas: political aspects CHAP. XVIII Freedom of the seas: as affected by naval armaments 1 down the conditions under which he considered it possible that the United States might coöperate with other nations in establishing an international authority to guarantee peace, and stating that "the freedom of the seas is the sine qua non of peace, equality, and coöperation.' Again in his inaugural address of March 5, the President enumerated among "the principles of a liberated mankind" which the United States would stand for, whether in war or in peace, "that the seas should be equally free and safe for the use of all peoples, under rules set up by common agreement and consent, and that so far as practicable they should be accessible to all upon equal terms."2 This plea for a new freedom of the seas thereafter played a prominent part in the discussions in America and in Europe of the constructive basis of international peace. The second of the "fourteen points" repeats the principle in the form of "absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants.3 It is difficult to assign a precise meaning to the phrase "freedom of the seas" as currently used by publicists in 1917-18. In time of peace, as has been shown above, the seas have long been free, so that any change in the law in that respect would seem to be uncalled for. Nor is it to be believed that all the proponents of the doctrine thought that in a future war belligerents, if including the more powerful nations, would be willing to forego the right to capture contraband and maintain blockade, whatever hardships those practices might inflict upon neutrals. Assuming, however, that the freedom of the seas was contemplated as a constructive condition of a more durable international peace, it may be interpreted as meaning, in the first place, that all states must henceforth play a 1 Official Statements of War Aims and Peace Proposals, 53. "With these statements must be associated the frequent mention of the "freedom of the seas" in unofficial German discussions of the terms of peace, and in particular the address of von Bethmann-Hollweg before the Reichstag on November 9, 1916, in which, after pledging Germany's coöperation in peaceful arrangements to prevent war, the chancellor said: "Then the principles of justice and free development, not only on the Continent but also on the seas, must be made valid." 3 While the principles of the "fourteen points," together with other associated declarations of President Wilson, were incorporated into the terms of the armistice of November 11, 1918, it should be noted that the Allied powers, in their note of November 5, 1918, reserved a right to further interpretation of the second point above quoted. President Wilson was apparently of that opinion, and he and others seem to have thought it possible to call upon belligerents to abandon the right to capture the private property of the enemy. See below, p. 505. |