Even Grotius granted that bays and minor parts of the sea are subject to the right of occupation,1 or, to put it differently, constitute territorial and sovereign waters, respectively. Nevertheless he stated:

This much is certain: Even he who shall have seized the sea, may not interfere with defenceless and harmless navigation, because even on land such a passage cannot be prohibited, although it is usually less necessary and more harmful. (Illud certum est, etiam qui mare occupaverit navigationem impedire non posse inermem et innoxiam, quando nec per terram talis transitus prohiberi potest, qui et minus esse solet necessarius et magis noxius.)?

There arises now the question of the right of hospitality as a sharply defined postulate; the logical and unavoidable result and effect of the freedom of the sea. I have just finished a separate pamphlet, "The Law of Hospitality in War and in Peace," which will be published by Springer. For the moment, however, I will only say this: The prevailing doctrine is too much still under the influence of the principle of sovereignty. The harbors are territorial waters, indeed; and even in the dispute concerning the legal nature of territorial waters, I accept the territorial sovereignty of a coast State.3 But the full operation of the principle of the freedom of the sea, too, demands that freedom of the sea and territorial sovereignty over the coast must act in full accord. As for straits and channels, there exist already in a large measure covenanted, though inadequate, restrictions insuring freedom of intercourse; in like manner, the freedom of commerce on international streams has been reconciled through mutual agreements with territorial sovereignty. Furthermore, the right of a free passage for merchant ships in coastal waters ("ius passagii sive transitus innoxii," "droit de passage inoffensif ") is generally accepted, but the right of entrance into a port is still menaced by the principle of sovereignty which can exercise every sort of arbitrary will.5

1 II c. 3 § 8.

2 II c. 3 § 12. Compare also Vattel II c. 9 § 126: "Thus the sea even in its occupied parts must remain open to all navigation. Consequently, he who has possession of it ought not to refuse passage to a vessel, from which he has nothing to apprehend. However, it may happen accidentally that its owner will refuse rightly such unlimited use." (Ainsi la mer, même dans ses parties occupées, suffit à la navigation de tout le monde; celui qui en a le domaine ne peut donc y refuser passage à un vaisseau, dont il n'a rien à craindre. Mais il peut arriver par accident que cet usage inépuisable sera refusé avec justice par le Maître de la chose.)

3 Compare" Luftschiffahrtsrecht," p. 5 ff.

Cp.." Luftschiffahrtsrecht," p. 5 £; von Ullmann, VR. 291; Liszt, VR. 90; von Perels, "Das internationale öffentliche Seerecht," p. 212; Schücking, "Das Küstenmeer im international Seerecht," p. 31; de Lapradelle, "Le droit de l'Etat sur la mer territoriale," p. 25; Frenzel, "Die Theorie über die rechtliche Natur des Küstenmeeres (Dissertation of the University of Leipzig), 1908, pp. 18, 52; Annuaire de l'Institut de droit international, vol. 12, p. 132 ff., vol. 13, p. 305.

5 De Lapradelle, "Le droit de l'Etat sur la mer territoriale," 1898, p. 21, states: "This free access is merely tolerated reciprocally, it is by no means a right" (ce libre accès n'est qu'une tolérance réciproque; ce n'est pas un droit.) Liepmann, "Der Kieler Hafen im Seekrieg," p. 138 f., declares: "Not international Taw, but the rights of territorial sovereignty and the maritime police force, will have the last say in these regions."

It is, indeed, a sign of the conservative nature of international law, when it is considered that only in treaties relating to navigation, colonization, and friendship, certain ports of conservative States have been opened to foreign vessels' and that, generally speaking, only the precepts of courtesy and usage regulate the hospitable intercourse between vessels. Already Grotius' and Vattel have pointed out the way to a conciliation between State and international law, by proclaiming the principle that a coast State may prevent the entrance of a foreign vessel, and respectively place restrictions upon it, solely for the purpose of averting a danger menacing its own safety. The Institute of International Law, too, made an attempt to effect a much desired reform along these lines. But the exalted conception of the principle of sovereignty, in addition to the distortion of the idea of neutrality during war, have stood thus far in the way of a rational law of hospitality.

The whole of international law as it exists to-day is altogether based upon a too one-sided conception of the principle of sovereignty. A clearer elaboration of the point of view of international law, which demands recognition and perfection on the basis of mutual agreement, constitutes the question of the future.

§ 2. THE PRINCIPLE OF THE FREEDOM OF THE SEA IN TIMES OF WAR, ITS VIOLATION, AND THE PROBLEM OF ITS RESTORATION.

I. According to international law, as it exists at the present time, the freedom of the sea is not abolished, it is merely restricted; with the exception of these limitations freedom of the seas still exists in a full measure.

Above all there exists no freedom of the sea for merchant vessels on the scene of action; on the contrary, a merchant vessel enters this zone upon its own responsibility. The guns of battleships need not remain silent, event if "neutral" Americans appear occasionally among the hostile naval squadrons, although the former, according to Wilson," are entitled to travel wherever lawful business on the sea calls them."

1 Compare, for example, Perels, "Das internationale öffentliche Seerecht der Gegenwart," 1882, pp. 96, 99 ff.; Strupp, Urkunden, I 82, 347.

2 De iure belli ac pacis (The Laws of War and Peace), 1625, II c. 3 § 12.

3 Le droit des gens, 1758, II c. 9 § 126.

Compare "Annuaire de l'Institut de droit international," vol. 17, p. 274 (art. 3).

5 Schücking (Der Dauerfriede, p. 54) who regards the open sea as belonging to no one in particular (see above p. 5, note 3) but who would like to see it become a common property, so that the realization of the freedom of the seas may become an accomplished fact, states: "As soon as the sea is declared common property (res commune), the neutrals will be in a position to demand, in a future war on the sea, that all acts of war on the high sea be discontinued entirely." But just as a merchant vessel can not say in times of peace "make room for me (ôte-toi que je m'y mette), so likewise shall a neutral vessel in war times not be in a position to hamper the battleships in their war activities.

But even outside of the zone of combat exist restrictions of the freedom of the sea. Thus, for example, freedom of traffic for merchant ships of the belligerents is restricted on account of the right. of.capture at sea, while, on the other hand, the right of blockade, including the right of placing mines and the law of contraband, limit the freedom of commerce of even neutral merchant vessels.

Thus three authorities assert themselves on the sea. In so far as their power extends, the freedom of the sea and through it the oversea trade of the belligerents as well as of the neutrals ceases to exist.1 But outside of these three spheres of domination freedom of the sea exists, and even the authorities themselves are not absolute; they are limited. Wherever the laws of capture, of blockade, and of contraband prohibit the seizure of ships and of their cargoes, respectively, the principle of the freedom of the sea goes into effect, unrestricted even within the three spheres of domination.

Still the principle of the freedom of the sea is hit hard and in a perfectly legal manner by the three exacting masters, so hard, indeed, that serious doubts have arisen whether it is altogether possible to speak of a freedom of the seas and not rather of a freedom for the sea rulers. And yet we have the privilege of stating emphatically that the threefold mastery of the sea has its limitations. Verily the following sneering words of Mephistopheles in "Faust" may be cited in this connection:

66

2

War, commerce, and piracy,
They are triune, inseparable.

It will be well to bear in mind that, according to existing laws, maritime warfare is nothing but a commercial warfare and the piracy" of it makes its appearance in the so-called "unholy trinity mentioned by Niemeyer. Whether and to what extent we enjoy freedom of the sea during war depends mainly upon the legal restrictions that are imposed upon the three exacting masters. It will have to be admitted that, within the confines of these laws, the rights of capture at sea, of contraband, and of blockade signify in themselves a smooth rejection of the freedom of the sea.* When

1 Liepmann, "Die Freiheit der Meere" in the Deutsche Juristen-Zeitung, 1917. Nos. 21-22, Sp. 923.

2 Niemeyer, "Die Prinzipien des Seekriegsrechts," 1909, p. 15 states: "If we wish to be honest, then we must admit that the main purpose of our regulations does not lie in the restrictions imposed by the (Paris) Declaration upon the arbitrary will of war, but in the recognition accorded to exorbitant war privileges. These privileges find their highest expression in the following unholy triunity: right of capture at sea, right of contraband and right of blockade. The right of capture at sea sanctions the brutal treatment of private property; the rights of contraband and of blockade accord the same treatment to neutral commerce. The restrictions contained in the Declaration consist in reality in the exclusion of privateering, in the immunity of enemy goods on neutral vessels, and in the demand for effective blockades."

3 Compare also Triepel, "Die Freiheit der Meere," 1917, p. 16.

4 Loc. cit., p. 11. Similarly van Calker, pp. 18, 24. Stier-Somlo, p. 77 f.

hostile merchant vessels may be brought up as prizes by the enemy, when ports may be closed even to neutral ships and their contraband cargoes confiscated, even without the existence of an actual blockade, then such acts constitute a direct contradiction of the principle of unhampered commercial intercourse on the seas. It was, perhaps, for this reason that Lord Cromer,1 too, saw "in the chattering about the freedom of the sea nothing but a meaningless and misleading phrase, a euphemistic expression for the destruction of English sea rule, which had proven a blessing to the entire world "(!!). Let England enjoy her own complaisance. I merely wish to state that this rudeness directed equally against Germany and America has missed its aim. For, in the first place, as has been said before, freedom of intercourse and of trade exists far from the zone of combat and beyond the rights of capture, of blockade, and of contraband; and, secondly, these three laws have limitations that in turn prove to be elements of freedom. The essence of right asserts itself particularly in the restraints which it imposes upon might; and whoever demands freedom of the sea within the boundaries of the present law merely wishes to state in other words that: Each Power is required to yield to the limitations imposed by the rights of capture at sea, of contraband, and of blockade. There exists a law of naval warfare serving as a legal restraint upon warfare on sea that simply may not be violated with brutal disregard. Hence, the demand for freedom of the sea in war means that these limitations are to be respected, so that commercial intercourse may be assured of its somewhat legally restrained freedom of movement. In this manner these restrictions serve as a basis for the rights of capture at sea, of contraband, and of blockade, and eventually constitute the main purport of the principle of the freedom of the sea in times of war, according to binding law. Whether this is sufficient is a politico-legal question which we shall take up later on.

II. But England and the Entente Powers have placed themselves in sharp opposition to the freedom of the sea as accepted by existing laws. In the course of the present world war, our opponents have abolished the freedom of the sea completely. The restrictions imposed by the rights of capture at sea, of contraband, and of blockade, including the law of neutrality, were swept aside and the oversea commercial traffic closed in the main or, rather, compelled to perform auxiliary services for the Western Powers. They pay no longer the slightest attention to the restrictions imposed by the right of

1 London Times, May 30, 1916.

2 Compare my article " England-Amerika und das Völkerrecht," p. 3 (Bulletin of the University of Frankfurt, Special Edition, dedicated by the Royal Julius-Maximilian University of Würzburg to its students in the service, offered for sale by the bookstores in 1917).

3 See particularly Heinrich Pohl: "England und die Londoner Deklaration," 1915, and also "Englisches Seekriegsrecht im Weltkrieg," 1917.

capture at sea, in direct violation of the Paris Declaration concerning the laws and customs on the sea; they even seize enemy goods sailing under a neutral flag, and they deprive the mails transmitted through enemy ships of the privilege of inviolability. But these are after all acts of war that are directed against the enemy, and in such cases one must always expect violations of this sort.

However, the Entente Powers have also destroyed the effect of the whole neutrality law on the sea. Not only was the protection guaranteed to neutral ships and to neutral merchandise by the Declaration of Paris concerning the principles of maritime law abolished, not only were German passengers removed summarily from neutral vessels, but our opponents have also strangled the commerce of the neutral nations, in spite of the fact that, according to the Declaration of Paris concerning the principles of maritime law, this is to remain free in times of war, being only subject to the restrictions imposed by the laws of contraband and blockade. These two legal systems were pushed forward, but simply turned topsy-turvy; and in this way, within a very short time after the closing of the North Sea by the English (November 3, 1914), the freedom of the sea resolved itself into a complete state of piracy. The program of Mephistopheles had come to a realization.

Unfortunately the neutral nations were not united nor sufficiently powerful to force England back into the path of right and justice. Because of this toleration of injustice on the part of the neutral nations, Germany's interests were seriously impaired, and Germany was forced to adopt a policy of self-preservation. However, in order to guard her own interests as well as defend those of the neutral nations, she has never ceased to point out the only way that could lead back to the path of right and justice. Germany never tired of shouting time and time again amidst the general chaos the words which-if followed-would have meant the salvation of the neutral nations: Freedom of the sea!

England's present warfare brings to our recollection the severe arraignment pronounced as early as 1857 by Lord Derby, himself an Englishman:

The history of maritime law, of maritime injustices, stands as an indelible testimony to the boundless selfishness and greed of the English nation and its Government.

A continuation of the arraignment is furnished by Octavio in "Piccolomini":

Just this is the curse of an evil deed,

That it must constantly produce evil.

1 Similarly, the mail packages found on neutral vessels and belonging to neutral countries, are not accorded a better treatment.

2 Loreburn-Niemeyer, Das Privateigentum im Seekrieg," p. 103.