final and decisive assertion of the freedom of the high seas, are likely to be the permanent results of the arbitration. 1 § 107. But in the Rights over waters. (3) Claims to jurisdiction beyond the marine league. Claims to dominion over whole seas may be said to have vanished altogether from International Law. process of departure they left behind them a number of assertions of territorial power over considerable stretches of water along the coasts of maritime states; and it is doubtful how far some of these are alive to-day. Great Britain has never in recent times attempted to exercise the rights of sovereignty over the "King's Chambers"; and though Chancellor Kent declared in favor of the "justice and policy" of her claim to "supremacy over the narrow seas adjacent to the British Isles," and referred with approval to similar claims made early in the nineteenth century by American statesmen, including as they did an assertion of the right to prohibit naval warfare between the Gulf Stream and the Atlantic Shore, or at least within a line drawn from headland to headland and along the open coast for four leagues out to sea,2 it may well be questioned whether any attempt would now be made to enforce these views. Indeed, the general policy of the United States has tended emphatically towards the curtailment of such claims, and is well set forth in a despatch from Mr. Fish, when Secretary of State in 1875, to Sir Edward Thornton, then British Minister at Washington. In it he says: "We have always understood and asserted that, pursuant to public law, no nation can rightfully claim jurisdiction beyond a marine league from its coast." The opinion of the civilized world sets strongly in this direction; and we may consider the few cases in which claims to large bays and broad waterways are still allowed as survivals of an older order. 1 See § 91. 2 Commentaries on International Law (Abdy's ed.), 113, 114. The British Hovering Acts of 1736 and 1784 assert a jurisdiction for revenue purposes to a distance of four leagues from the shore, and there are acts setting up a similar claim for health purposes. In 1797, 1799 and 1807 the United States Congress legislated to the same effect, and many maritime nations have embodied the like provisions in their laws.1 Dana argues, however, that the right to make seizures beyond the three-mile limit has no existence in modern International Law, and maintains with regard to the act of Congress of 1797, that it did not authorize the seizure of a vessel outside the marine league, but only its seizure and punishment within that limit for certain offences committed more than three miles, but less than twelve, from the shore.2 It is very doubtful whether the claim would be sustainable against a remonstrance from another power, even in this attenuated form. When it is submitted to, the submission is an act of courtesy. As Twiss rightly and properly says: "It is only under the comity of nations in matters of trade and health, that a state can venture to enforce any portion of her civil law against foreign vessels which have not as yet come within the limits of her maritime jurisdiction." 3 § 108. The next group of subjects which demand attention are those connected with The right of innocent passage. This may be defined as the right of free passage through the territorial waters of friendly states when they form a channel of communication between two portions of the high seas. There can be no doubt, Rights over waters. (4) The right of innocent passage. that when both the shores of a strait which is not more than six miles across are possessed by the same 1 Wharton, International Law of the United States, § 32. 2 Wheaton, International Law (Dana's ed.), 258, note. power, the whole of the passage is regarded as territorial water; and there are instances of wider straits which are deemed to be under the power of the local sovereign. But these territorial rights do not extend to the absolute exclusion of the vessels of other states from the waters in question. In the days when whole seas were claimed in full ownership, the powers which owned narrow waterways were in the habit of taking tolls from foreign vessels as they passed up or down the straits. The most famous of these exactions were the Sound Dues levied by Denmark upon ships of other powers which sailed through the Sound or the two Belts, on their passage from the North Sea to the Baltic or from the Baltic to the North Sea. Their origin is lost in remote antiquity. The earliest treaties in which they are mentioned regard them as established facts and recognize the right of Denmark to levy them. In the Middle Ages other states negotiated with the territorial power as to their amount, and sometimes made war upon her to reduce exorbitant demands; but no one denied that a reasonable toll might lawfully be exacted. But with the growth of modern commerce these demands became increasingly irksome; and as the old idea of appropriating the ocean gave way to the doctrine that it was free and open to all, it was felt that the navigation of straits which connected two portions of the high seas was an adjunct to the navigation of the seas themselves, and should be as free in one case as in the other. Accordingly, in 1857 Denmark found herself unable any longer to levy the Sound Dues, though her jurists were able to show a clear prescription of five hundred years in her favor. By the Treaty of Copenhagen she gave them up.1 A large pecuniary indemnity was paid to her by the maritime powers of Europe; but, in order to avoid recognizing by implication any right on her part, the covenanted sum was declared to be given as compensation for the burden of maintaining lights and buoys for the future. In the same year the United States negotiated a separate convention with 1 Twiss, Law of Nations, § 188. N Denmark, whereby all tolls on their vessels were abolished, and, in consideration of a covenant on the part of the King of Denmark to light and buoy the Sound and the two Belts as before, and keep up an establishment of Danish pilots in those waters, they agreed to pay him the sum of "three hundred and ninety-three thousand and eleven dollars in United States currency." These instances show that the common law of nations now imposes upon all maritime powers the duty of allowing a free passage through such of their territorial waters as are channels of communication between two portions of the high seas. The right thus created is, of course, confined to vessels of states at peace with the territorial power, and is conditional upon the observance of reasonable regulations and the performance of no unlawful acts. It extends to vessels of war as well as to merchant vessels. No power can prevent their passage through its straits from sea to sea, even though their errand is to seek and attack the vessels of their foe, or to blockade or bombard his ports. As long as they commit no hostile acts in territorial waters, or so near them as to endanger the peace and security of those within them, their passage is perfectly "innocent." The word, as used in the phrase "right of innocent passage," refers to the character of the passage, not to the nature of the ship. Rights over waters. (5) The Dardanelles and § 109. It is sometimes supposed that the regulations in force for the transit of vessels through the Dardanelles and the Bosphorus disprove the doctrine we have just laid down as special case of the to the extension of the right of innocent passage to ships of war. But a short historical examination of the case will show that it is exceptional, in that it is governed by special treaty stipulations and not by the ordinary rules of International Law. Till 1774, when Russia com the Bosphorus. 1 Treaties of the United States, p. 239. pelled Turkey to open the Black Sea and the straits leading to it from the Mediterranean to merchant vessels, it had been the practice of the Porte, which did not consider itself bound by the public law of Europe, to forbid the passage of the Dardanelles and the Bosphorus to ships of other powers. After 1774 ships of war were still excluded; and in 1809 Great Britain recognized this practice as "the ancient rule of the Ottoman Empire." She was followed in 1840 by Austria, Russia and Prussia, who were parties with her to the Quadruple Treaty of London. The first subsidiary convention attached to the Treaty of Paris of 1856 revised the rule so as to allow the passage of light cruisers employed in the service of the foreign Embassies at Constantinople, and of a few small vessels of war to guard the international works at the mouth of the Danube. A further modification was introduced by the Treaty of London of 1871, which retained the previous rules, but reserved power to the Sultan to open the straits in time of peace to the war vessels of friendly powers, if he should deem it necessary in order to secure the observance of the Treaty of Paris of 1856.1 These last two treaties have been signed by all the Great Powers, and are universally accepted as part of the public order of Europe. It is clear, therefore, that the rules they lay down are binding; but it is equally clear that these rules rest upon treaty stipulation, and not upon the common law of nations. We now see that the case of the Dardanelles and the Bosphorus is an exception to ordinary rules, and instead of proving that the right of innocent passage does not extend to vessels of war, it proves the exact contrary; for, if the principle of exclusion applied under International Law, there would have been no need of a long series of treaties in order to bring it into operation. It may be added, that when the regular channel for navigation between two parts of the high seas runs through marginal waters, there is a right of peaceful 1 Twiss, Law of Nations, I., § 189; Holland, European Concert in the Eastern Question, 256-257 and 273. |