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before the Behring Sea arbitrators that “there is a general consent on the part of nations to the action of a state pursuing a vessel under such circumstances [an offence against municipal law committed within territorial waters], out of its territorial waters and on to the high sea.” He takes issue with the eminent advocate's statement that “it is not a strict right by international law, but something which nations will stand by and see done, and not interpose if they think that the particular person has been endeavoring to commit a fraud against the laws of a friendly Power....” He adds: “In our sense of that word there can be no such thing as international law, if it does not exist in a case in which a general consent to it on the part of nations is admitted.”
Woolsey (6th ed., § 58, p. 71) remarks :
For a crime committed in port a vessel may be chased into the high seas and there arrested, without a suspicion that territorial rights have been violated, while to chase a criminal across the borders and seize him on foreign soil is a gross offense against sovereignty.
Under the heading “So-Called Right of Pursuit,” Oppenheim (Vol. I, 2d ed., p. 336) says:
It is a universally recognised customary rule that men-of-war of a littoral state can pursue into the open sea, seize and bring back into a port for trial any foreign merchantman that has violated the law whilst in the territorial waters of the state in question. But such pursuit into the open sea is permissible only if commenced while the merchantman is still in the said territorial waters or has only just escaped thence, and the pursuit must stop as soon as the merchantman passes into the maritime belt of a foreign state.
The Institute of International Law unanimously adopted the following among its resolutions of 1894:
The littoral state has the right to continue on the high seas a pursuit commenced in the territorial sea, and to arrest and judge the ship which has broken its laws within its waters. In case, however, of capture on the high sea, the fact shall be notified without delay to the state of which the ship carries the flag. The pursuit must be interrupted as soon as the ship enters the territorial sea of its own country or of a third Power. The right to pursue is at an end as soon as the ship has entered a part of its own country or a third Power.6
The publicist who seems to deal most fully with this subject is
Piggott.? Owing to this fact we take the liberty of quoting from him in extenso:
Stated broadly, the principle is that when an offence has been committed within the jurisdiction, by a foreign as well as a British ship, and she gets away to sea, she may be pursued on the high sea, captured, and brought in to be dealt with according to law. We have here a direct exercise of force usually by the Executive independent of any legislative warrant, though the principle may be embodied in legislation-upon the high sea. The condition is that the pursuit should be started immediately, that it should be “hot pursuit”; but this condition being satisfied, there appears to be no limit of space or time during which it may continue. The pursuit may be continued the high seas over, but presumably stopping when the escaping vessel enters the area over which a foreign nation exercises its legislative jurisdiction.
But why is this “hot pursuit" justified? Why does it not violate the freedom of the sea ? The answer must be found in the nature of the offence. And for this reason: it is certain that the law, confined as it is to a purely territorial operation, may in ordinary cases be evaded by escape to a foreign country. It is certain, too, that if an offender, though taken red-handed, escape on board a foreign ship, he cannot be pursued beyond low-water mark, however hotly: the remedy, as indicated above, then lies in extradition. But the case can hardly be the same where the ship participates actively in the rescue. The difference then, if hot pursuit of ships is justified, must lie in the nature of the offence committed.
The two familiar examples of the application of the principle are offences against the revenue laws, or against the fishery laws, committed within the revenue or the fishery waters respectively. In these cases there is authority both in practice and judicial opinion, that hot pursuit outside those areas on to the high sea would be justified, and the seizure upheld as consistent with the law of nations. (Story, J., the Marianna Flora.) ...
From the nature of the offences the ship would be used by the master for the commission of the offence, and pursuit and seizure are probably justified where the penalty is confiscation of the ship. For this an analogy is to be found (though, indeed, it may be no more than fanciful), in the case of hot pursuit of wild animals. The temporary property which is recognized in wild animals which have been confined is maintained during escape, if they are immediately pursued beyond the preserve. And it may be that where an offence has been committed for which the penalty is confiscation, the law regards the property of the State in the ship as having been so far created, that it may be preserved by immediate pursuit beyond the jurisdiction.
The principle of hot pursuit applies as well to breaches of the law in force in the territorial waters as to offences committed in harbour or in the waters of the dominion. It has in fact a very special application to the territorial
7 Nationality, Vol. II, p. 35-40.
waters, for it fills one of the gaps left in the protection of the national rights by the fact that these waters are not part of the realm. Breaches of revenue and fishery laws are more often than not committed in shore by small boats, the ship herself lying off in the territorial waters. In such a case, the seizure of the ship would undoubtedly be justified on the ground that the boats are the dependencies of ship, and that therefore she is herself constructively guilty of having committed the offence. The territorial waters have been specially referred to, as the question has a practical bearing on what may be called the legal status of these waters. But the rule here suggested is obviously not limited to them; the ship's boats may themselves be operating in territorial waters, and the ship lying some miles out to sea. There seems, however, to be one manifest condition attached to such a seizure: that there should be some overt act of the ship in relation to the offence, showing her participation in it: thus, that she was superintending the operations of her boats, and was, in fact, their base or point d'appui. Active participation in the offence is probably the essential to seizure, and not the mere fact that the boats belong to the ship. Suppose, for example, boats belonging to a vessel had been seized for sealing in Dominion waters, the ship herself being at the time twenty miles away fishing on her own account. The seizure of the ship by a cruiser, in consequence of information by telegraphy that her boats had been captured, could scarcely be justified. This brings us back to the simple case with which we started. The case is in fact a corollary of what has gone before. Certain conditions being fulfilled in regard to her relation to her boats, a vessel not actually in the waters is regarded as constructively within those limits: then the law as to seizure of vessels for offences committed within those limits must apply: that is to say, she may be seized at once, or she may be pursued on to the high sea.
We also have the high authority of Justice Story, voicing what appears to have been the unanimous opinion of the Supreme Court in the case of the Marianna Flora (1826, 11 Wheaton, p. 1), to the effect that “American ships, offending against our own laws, may be seized upon the ocean, and foreign ships, thus offending within our territorial jurisdiction may be pursued and seized upon the ocean, and brought into our ports for adjudication’’; and “where an aggression was committed by a foreign armed merchant vessel, on a public armed ship of the United States, under these circumstances, and a combat ensued, upon mutual misapprehension and mistake, the commander of the public ship was held exempt from costs and damages, for subduing, seizing and bringing into a port of this country for adjudication, the offending vessel.” "
8 These citations are from the head-notes to this case.
But there are a number of authorities who disapprove of the doctrine of “hot pursuit” on the high seas. Thus, in a note to Wheaton on “Municipal Seizures Beyond the Marine League” (8th ed., No. 108, p. 260) Dana concludes: “It may be said that the principle is settled, that municipal seizures cannot be made, for any purpose, beyond territorial waters.” Field also lays it down as a rule of international law that “an inmate of a foreign ship who commits an infraction of the criminal law of a nation within its territory cannot be pursued beyond its territory into any port of the high seas.” In the discussion of the Hovering Acts, Phillimore remarks:
Nevertheless, it cannot be maintained as a sound proposition of international law that a seizure for purposes of enforcing municipal law can be lawfully made beyond the limits of the territorial waters, though in these hovering cases judgments have been given in favour of seizures made within a limit fixed by municipal law, but exceeding that which has been agreed upon by international law. Such a judgment, however, could not have been sustained if the foreign state whose subject's property had been seized had thought proper to interfere. Unless, indeed, perhaps, in a particular case, where a state had put in force, or at least enacted, a municipal law of its own, like that of the foreign state under which its subject's property had been seized. It is at least quite intelligible why such a state would not interfere on behalf of its subject. My observation does not deny to the neutral, in time of war, the right to complain of and possibly to prevent the hovering of belligerent ships so near her coasts and ports as manifestly to menace and alarm vessels homeward or outward bound. . . .10
And similarly Twiss strongly disapproves of the exercise for any reason whatever of national maritime jurisdiction beyond the marine league.”
This negative view appears also at first sight to be supported by the great judicial authority of Chief Justice Marshall. In Rose v. Himely (1808, 4 Cranch, 241) C. J. Marshall, supported by the majority of his associates of the Supreme Court, held that “a seizure beyond the limits of the territorial jurisdiction for breach of municipal regulations, is not warranted by the law of nations.” It has been claimed (Taylor, § 248) that Rose v. Himely was overruled by Hudson v. Guestier (1810, 6 Cranch, 281). This was the opinion of Chief Justice Marshall himself, but the report of the latter case leaves this point doubtful.” Rose v. Himely is certainly in conflict with certain views previously expressed by Marshall in Church v. Hubbart (1804, 2 Cranch, 187, and Scott's Cases, 343). But the real purport of the latter decision was that “the court did not undertake to pronounce judicially, in a suit on a private contract (a policy of insurance) that a seizure of an American vessel made at four leagues, by a foreign power, was void.” There is at least one famous case in which, it was claimed, the pursuit was continued and capture made in territorial waters. In 1891, the Itata, an armed transport in the service of Chilean insurgents, was accused of violating the neutrality laws of the United States. According to one version, she was pursued by American naval forces from San Diego, California, to Iquique, Chile, where she was surrendered to Admiral McCann under duress,” but without resistance. Assuming the facts to be as stated, the majority of the commissioners appointed to adjust claims between the United States and Chile, according to the convention of August 2, 1892, declared: “After an examination of many authorities on international law and numerous decisions of courts, we are of opinion that the United States committed an act for which they are liable in damages and for which they should be held to answer.”” But it appears that this decision was made on the basis of a demurrer on the part of the United States, and the facts were that the Itata was never pursued into Chilean waters and that her surrender on the part of the Chilean authorities was voluntary.” Thus it will be seen that the authorities are divided on the question as to the validity of “hot pursuit” on the high seas, although it must be admitted that the weight of authority favors the doctrine and that the practice has the sanction of at least Anglo-American custom. Of course, it is evident that the analogy between “hot pursuit” 12 See also Dana's note 108 to Wheaton, 8th ed., § 179, pp. 259-60, and I Moore, Digest, § 151, p. 729. 18 For this version of the facts of the case, see the South American Steamship Co. v. United States, in United States and Chilean Claims Commission, Vol. I, No. 18, passim. For the violations of neutrality of which the Itata had been guilty, see U. S. v. Trumbull (1891), 48 Fed. Rep. 99, and Scott, 731. 14 III Moore's International Arbitrations, p. 3070.
9 International Code, 2d ed., art. 626, pp. 426-7.
10 Commentaries, 3d ed., Vol. I, p. 276. 11 Law of Nations . . . in Time of Peace, § 100.