Chapter II: The Open Sea (1)

I

RISE OF THE FREEDOM OF THE OPEN SEA

Grotius, II. c. 2, § 3--Pufendorf, IV. c. 5, § 5--Vattel, I. §§
279-286--Hall, § 40--Westlake, I. pp. 161-162--Phillimore, I. §§
172-179--Taylor, §§ 242-246--Walker, Science, pp.
163-171--Wheaton, §§ 186-187--Hartmann, § 64--Heffter, §
73--Stoerk in Holtzendorff, II. pp. 483-490--Bonfils, Nos.
573-576--Despagnet, No. 401--Pradier-Fodéré, II. Nos.
871-874--Nys, II. pp. 132-139--Mérignhac, II. pp. 498-505--Calvo,
I. §§ 347-352--Fiore, II. Nos. 718-726--Martens, I. § 97--Perels,
§ 4--Azuni, "Diritto maritimo" (1796), 1, c. I. Article
III.--Cauchy, "Le droit maritime international considéré dans ses
origines," 2 vols. (1862)--Nys, "Les origines du droit
international" (1894), pp. 377-388--Castel, "Du principe de la
liberté des mers" (1900), pp. 1-15--Fulton, "The Sovereignty of
the Seas" (1911), pp. 1-56.

[Sidenote: Former Claims to Control over the Sea.]

§ 248. In antiquity and the first half of the Middle Ages navigation on the Open Sea was free to everybody. According to Ulpianus,[480] the sea is open to everybody by nature, and, according to Celsus,[481] the sea, like the air, is common to all mankind. Since no Law of Nations in the modern sense of the term existed during antiquity and the greater part of the Middle Ages, no importance is to be attached to the pronouncement of Antoninus Pius, Roman Emperor from 138 to 161:--"Being[482] the Emperor of the world, I am consequently the law of the sea." Nor is it of importance that the Emperors of the old German Empire, who were considered to be the successors of the Roman Emperors, styled themselves among other titles "King of the Ocean." Real claims to sovereignty over parts of the Open Sea begin, however, to be made in the second half of the Middle Ages. And there is no doubt whatever that at the time when the modern Law of Nations gradually rose it was the conviction of the States that they could extend their sovereignty over certain parts of the Open Sea. Thus, the Republic of Venice was recognised as the Sovereign over the Adriatic Sea, and the Republic of Genoa as the Sovereign of the Ligurian Sea. Portugal claimed sovereignty over the whole of the Indian Ocean and of the Atlantic south of Morocco, Spain over the Pacific and the Gulf of Mexico, both Portugal and Spain basing their claims on two Papal Bulls promulgated by Alexander VI. in 1493, which divided the new world between these Powers. Sweden and Denmark claimed sovereignty over the Baltic, Great Britain over the Narrow Seas, the North Sea, and the Atlantic from the North Cape to Cape Finisterre.

[Footnote 480: L. 13, pr. D. VIII. 4: mari quod natura omnibus patet.]

[Footnote 481: L. 3 D. XLIII. 8: Maris communem usum omnibus hominibus ut aeris.]

[Footnote 482: L. 9 D. XIV. 2: ἐγὼ μὲν τοῦ κόσμου κύριος, ὁ δὲ νόμος τῆς θαλάσσης.]

These claims have been more or less successfully asserted for several hundreds of years. They were favoured by a number of different circumstances, such as the maintenance of an effective protection against piracy for instance. And numerous examples can be adduced which show that such claims have more or less been recognised. Thus, Frederick III., Emperor of Germany, had in 1478 to ask the permission of Venice for a transportation of corn from Apulia through the Adriatic Sea.[483] Thus, Great Britain in the seventeenth century compelled foreigners to take out an English licence for fishing in the North Sea; and when in 1636 the Dutch attempted to fish without such licence, they were attacked and compelled to pay £30,000 as the price for the indulgence.[484] Again, when Philip II. of Spain was in 1554 on his way to England to marry Queen Mary, the British Admiral, who met him in the "British Seas," fired on his ship for flying the Spanish flag. And the King of Denmark, when returning from a visit to James I. in 1606, was forced by a British captain, who met him off the mouth of the Thames, to strike the Danish flag.

[Footnote 483: See Walker, "History," I. p. 163.]

[Footnote 484: This and the two following examples are quoted by Hall, § 40.]

[Sidenote: Practical Expression of claims to Maritime Sovereignty.]

§ 249. Maritime sovereignty found expression in maritime ceremonials at least. Such State as claimed sovereignty over a part of the Open Sea required foreign vessels navigating on that part to honour its flag[485] as a symbol of recognition of its sovereignty. So late as 1805 the British Admiralty Regulations contained an order[486] to the effect that "when any of His Majesty's ships shall meet with the ships of any foreign Power within His Majesty's Seas (which extend to Cape Finisterre), it is expected that the said foreign ships do strike their topsail and take in their flag, in acknowledgment of His Majesty's sovereignty in those seas; and if any do resist, all flag officers and commanders are to use their utmost endeavours to compel them thereto, and not suffer any dishonour to be done to His Majesty."

[Footnote 485: See Fulton, "The Sovereignty of the Seas" (1911), pp. 38 and 204-208.]

[Footnote 486: Quoted by Hall, § 40.]

But apart from maritime ceremonials maritime sovereignty found expression in the levying of tolls from foreign ships, in the interdiction of fisheries to foreigners, and in the control or even the prohibition of foreign navigation. Thus, Portugal and Spain attempted, after the discovery of America, to keep foreign vessels altogether out of the seas over which they claimed sovereignty. The magnitude of this claim created an opposition to the very existence of such rights. English, French, and Dutch explorers and traders navigated on the Indian Ocean and the Pacific in spite of the Spanish and Portuguese interdictions. And when, in 1580, the Spanish ambassador Mendoza lodged a complaint with Queen Elizabeth against Drake for having made his famous voyage to the Pacific, Elizabeth answered that vessels of all nations could navigate on the Pacific, since the use of the sea and the air is common to all, and that no title to the ocean can belong to any nation, since neither nature nor regard for the public use permits any possession of the ocean.[487]

[Footnote 487: See Walker, "History," I. p. 161. It is obvious that this attitude of Queen Elizabeth was in no way the outcome of the conviction that really no State could claim sovereignty over a part of the Open Sea. For she herself did not think of dropping the British claims to sovereignty over the "British Seas." Her arguments against the Spanish claims were made in the interest of the growing commerce and navigation of England, and any one daring to apply the same arguments against England's claims would have incurred her royal displeasure.]

[Sidenote: Grotius's Attack on Maritime Sovereignty.]

§ 250. Queen Elizabeth's attitude was the germ out of which grew gradually the present freedom of the Open Sea. Twenty-nine years after her answer to Mendoza, in 1609, appeared Grotius's short treatise[488] "Mare liberum." The intention of Grotius was to show that the Dutch had a right of navigation and commerce with the Indies in spite of the Portuguese interdictions. He contends that the sea cannot be State property, because it cannot really be taken into possession through occupation,[489] and that consequently the sea is by nature free from the sovereignty of any State.[490] The attack of Grotius was met by several authors of different nations. Gentilis defends Spanish and English claims in his "Advocatio Hispanica," which appeared in 1613. Likewise, in 1613 William Welwood defends the English claims in his book, "De dominio maris." John Selden wrote his "Mare Clausum sive de dominio maris" in 1618, but it was not printed until 1635. Sir John Burroughs published in 1653 his book, "The Sovereignty of the British Seas proved by Records, History, and the Municipal Laws of this Kingdom." And in defence of the claims of the Republic of Venice Paolo Sarpi published in 1676 his book "Del dominio del mare Adriatico." The most important of these books defending maritime sovereignty is that of Selden. King Charles I., by whose command Selden's "Mare Clausum" was printed in 1635, was so much impressed by it that he instructed in 1629 his ambassador in the Netherlands to complain of the audacity of Grotius and to request that the author of the "Mare liberum" should be punished.[491]

[Footnote 488: Its full title is: "Mare liberum, seu de jure quod Batavis competit ad Indicana commercia Dissertatio," and it is now proved that this short treatise is only chapter 12 of another work of Grotius, "De jure praedae," which was found in manuscript in 1864 and published in 1868. See above, § 53.]

[Footnote 489: See below, § 259.]

[Footnote 490: Grotius was by no means the first author who defended the freedom of the sea. See Nys, "Les origines du droit international," pp. 381 and 382.]

[Footnote 491: See Phillimore, I. § 182.]

The general opposition to Grotius's bold attack on maritime sovereignty prevented his immediate victory. Too firmly established were the then recognised claims to sovereignty over certain parts of the Open Sea for the novel principle of the freedom of the sea to supplant them. Progress was made regarding one point only--namely, freedom of navigation of the sea. England had never pushed her claims so far as to attempt the prohibition of free navigation on the so-called British Seas. And although Venice succeeded in keeping up her control of navigation on the Adriatic till the middle of the seventeenth century, it may be said that in the second half of that century navigation on all parts of the Open Sea was practically free for vessels of all nations. But with regard to other points, claims to maritime sovereignty continued to be kept up. Thus the Netherlands had by article 4 of the Treaty of Westminster, 1674, to acknowledge that their vessels had to salute the British flag within the "British Seas" as a recognition of British maritime sovereignty.[492]

[Footnote 492: See Hall, § 40, p. 152, note 1.]

[Sidenote: Gradual Recognition of the Freedom of the Open Sea.]

§ 251. In spite of opposition, the work of Grotius was not to be undone. All prominent writers of the eighteenth century take up again the case of the freedom of the Open Sea, making a distinction between the maritime belt which is to be considered under the sway of the littoral States, and, on the other hand, the High Seas, which are under no State's sovereignty. The leading author is Bynkershoek, whose standard work, "De dominio maris," appeared in 1702. Vattel, G. F. de Martens, Azuni, and others follow the lead. And although Great Britain upheld her claim to the salute due to her flag within the "British Seas" throughout the eighteenth and at the beginning of the nineteenth century, the principle of the freedom of the Open Sea became more and more vigorous with the growth of the navies of other States; and at the end of the first quarter of the nineteenth century this principle became universally recognised in theory and practice. Great Britain silently dropped her claim to the salute due to her flag, and with it her claim to maritime sovereignty, and became now a champion of the freedom of the Open Sea. When, in 1821, Russia, who was then still the owner of Alaska in North America, attempted to prohibit all foreign ships from approaching the shore of Alaska within one hundred Italian miles, Great Britain and the United States protested in the interest of the freedom of the Open Sea, and Russia dropped her claims in conventions concluded with the protesting Powers in 1824 and 1825. And when, after Russia had sold Alaska in 1867 to the United States, the latter made regulations regarding the killing of seals within Behring Sea, claiming thereby jurisdiction and control over a part of the Open Sea, a conflict arose in 1886 with Great Britain, which was settled by arbitration[493] in 1893 in favour of the freedom of the Open Sea.

[Footnote 493: See below, § 284.]

II

CONCEPTION OF THE OPEN SEA

Field, article 53--Westlake, I. p. 160--Moore, II. § 308--Rivier,
I. pp. 234-235--Pradier-Fodéré, II. No. 868--Ullmann, §
101--Stoerk in Holtzendorff, II. p. 483.

[Sidenote: Discrimination between Open Sea and Territorial Waters.]

§ 252. Open Sea or High Seas[494] is the coherent body of salt water all over the greater part of the globe, with the exception of the maritime belt and the territorial straits, gulfs, and bays, which are parts of the sea, but not parts of the Open Sea. Wherever there is a salt-water sea on the globe, it is part of the Open Sea, provided it is not isolated from, but coherent with, the general body of salt water extending over the globe, and provided that the salt water approach to it is navigable and open to vessels of all nations. The enclosure of a sea by the land of one and the same State does not matter, provided such a navigable connection of salt water as is open to vessels of all nations exists between such sea and the general body of salt water, even if that navigable connection itself be part of the territory of one or more littoral States. Whereas, therefore, the Dead Sea is Turkish and the Aral Sea is Russian territory, the Sea of Marmora is part of the Open Sea, although it is surrounded by Turkish land and although the Bosphorus and the Dardanelles are Turkish territorial straits, because these are now open to merchantmen of all nations. For the same reason the Black Sea[495] is now part of the Open Sea. On the other hand, the Sea of Azoff is not part of the Open Sea, but Russian territory, although there exists a navigable connection between it and the Black Sea. The reason is that this connection, the Strait of Kertch, is not according to the Law of Nations open to vessels of all nations, since the Sea of Azoff is less a sea than a mere gulf of the Black Sea.[496]

[Footnote 494: Field defines in article 53: "The High Seas are the ocean, and all connecting arms and bays or other extensions thereof not within the territorial limits of any nation whatever."]

[Footnote 495: See above, § 181.]

[Footnote 496: So say Rivier, I. p. 237, and Martens, I. § 97: but Stoerk in Holtzendorff, II. p. 513, declares that the Sea of Azoff is part of the Open Sea.]

[Sidenote: Clear Instances of Parts of the Open Sea.]

§ 253. It is not necessary and not possible to particularise every portion of the Open Sea. It is sufficient to state instances which clearly indicate the extent of the Open Sea. To the Open Sea belong, of course, all the so-called oceans--namely, the Atlantic, Pacific, Indian, Arctic, and Antarctic. But the branches of the oceans, which go under special names, and, further, the branches of these branches, which again go under special names, belong likewise to the Open Sea. Examples of these branches are: the North Sea, the English Channel, and the Irish Sea; the Baltic Sea, the Gulf of Bothnia, the Gulf of Finland, the Kara Sea,[497] and the White Sea; the Mediterranean and the Ligurian, Tyrrhenian, Adriatic, Ionian, Marmora, and Black Seas; the Gulf of Guinea; the Mozambique Channel; the Arabian Sea and the Red Sea; the Bay of Bengal, the China Sea, the Gulf of Siam, and the Gulf of Tonking; the Eastern Sea, the Yellow Sea, the Sea of Japan, and the Sea of Okhotsk; the Behring Sea; the Gulf of Mexico and the Caribbean Sea; Baffin's Bay.

[Footnote 497: The assertion of some Russian publicists that the Kara Sea is Russian territory is refuted by Martens, I. § 97. As regards the Kara Straits, see above, § 194.]

It will be remembered that it is doubtful as regards many gulfs and bays whether they belong to the Open Sea or are territorial.[498]

[Footnote 498: See above, § 191.]

III

THE FREEDOM OF THE OPEN SEA

Hall, § 75--Westlake, I. pp. 160-166--Lawrence, § 100--Twiss, I.
§§ 172-173--Moore, II. §§ 309-310--Taylor, § 242--Wheaton, §
187--Bluntschli, §§ 304-308--Heffter, § 94--Stoerk in
Holtzendorff, II. pp. 483-498--Ullmann, § 101--Bonfils, Nos.
572-577--Pradier-Fodéré, II. Nos. 874-881--Rivier, I. § 17--Nys,
II. pp. 140-166--Calvo, I. § 346--Fiore, II. Nos. 724, 727, and
Code, Nos. 928-930--Martens, I. § 97--Perels, § 4--Testa, pp.
63-66--Ortolan, "Diplomatie de la mer" (1856), I. pp. 119-149--De
Burgh, "Elements of Maritime International Law" (1868), pp.
1-24--Castel, "Du principe de la liberté des mers" (1900), pp.
37-80.

[Sidenote: Meaning of the Term "Freedom of the Open Sea."]

§ 254. The term "Freedom of the Open Sea" indicates the rule of the Law of Nations that the Open Sea is not and never can be under the sovereignty of any State whatever. Since, therefore, the Open Sea is not the territory of any State, no State has as a rule a right to exercise its legislation, administration, jurisdiction,[499] or police[500] over parts of the Open Sea. Since, further, the Open Sea can never be under the sovereignty of any State, no State has a right to acquire parts of the Open Sea through occupation,[501] for, as far as the acquisition of territory is concerned, the Open Sea is what Roman Law calls _res extra commercium_.[502] But although the Open Sea is not the territory of any State, it is nevertheless an object of the Law of Nations. The very fact alone of such a rule exempting the Open Sea from the sovereignty of any State whatever shows this. But there are other reasons. For if the Law of Nations were to content itself with the rule which excludes the Open Sea from possible State property, the consequence would be a condition of lawlessness and anarchy on the Open Sea. To obviate such lawlessness, customary International Law contains some rules which guarantee a certain legal order on the Open Sea in spite of the fact that it is not the territory of any State.

[Footnote 499: As regards jurisdiction in cases of collision and salvage on the Open Sea, see below, §§ 265 and 271.]

[Footnote 500: See, however, above, § 190, concerning the zone for Revenue and Sanitary Laws.]

[Footnote 501: Following Grotius (II. c. 3, § 13) and Bynkershoek ("De dominio maris," c. 3), some writers (for instance, Phillimore, I. § 203) maintain that any part of the Open Sea covered for the time by a vessel is by occupation to be considered as the temporary territory of the vessel's flag State. And some French writers go even beyond that and claim a certain zone round the respective vessel as temporary territory of the flag State. But this is an absolutely superfluous fiction. (See Stoerk in Holtzendorff, II. p. 494; Rivier, I. p. 238; Perels, pp. 37-39.)]

[Footnote 502: But the subsoil of the bed of the Open Sea can well, through driving mines and piercing tunnels from the coast, be acquired by a littoral State. See above, § 221, and below, §§ 287_c_ and 287_d_.]

[Sidenote: Legal Provisions for the Open Sea.]

§ 255. This legal order is created through the co-operation of the Law of Nations and the Municipal Laws of such States as possess a maritime flag. The following rules of the Law of Nations are universally recognised, namely:--First, that every State which has a maritime flag must lay down rules according to which vessels can claim to sail under its flag, and must furnish such vessels with some official voucher authorising them to make use of its flag; secondly, that every State has a right to punish all such foreign vessels as sail under its flag without being authorised to do so; thirdly, that all vessels with their persons and goods are, whilst on the Open Sea, considered under the sway of the flag State; fourthly, that every State has a right to punish piracy on the Open Seas even if committed by foreigners, and that, with a view to the extinction of piracy, men-of-war of all nations can require all suspect vessels to show their flag.

These customary rules of International Law are, so to say, supplemented by Municipal Laws of the maritime States comprising provisions, first, regarding the conditions to be fulfilled by vessels for the purpose of being authorised to sail under their flags; secondly, regarding the details of jurisdiction over persons and goods on board vessels sailing under their flags; thirdly, concerning the order on board ship and the relations between the master, the crew, and the passengers; fourthly, concerning punishment of ships sailing without authorisation under their flags.

The fact that each maritime State has a right to legislate for its own vessels gives it a share in keeping up a certain order on the Open Sea. And such order has been turned into a more or less general order since the large maritime States have concurrently made more or less concordant laws for the conduct of their vessels on the Open Sea.

[Sidenote: Freedom of the Open Sea and war.]

§ 256. Although the Open Sea is free and not the territory of any State, it may nevertheless in its whole extent become the theatre of war, since the region of war is not only the territories of the belligerents, but likewise the Open Sea, provided that one of the belligerents at least is a Power with a maritime flag.[503] Men-of-war of the belligerents may fight a battle in any part of the Open Sea where they meet, and they may capture all enemy merchantmen they meet on the Open Sea. And, further, the jurisdiction and police of the belligerents become through the outbreak of war in so far extended over vessels of other States, that belligerent men-of-war may now visit, search, and capture neutral merchantmen for breach of blockade, contraband, and the like.

[Footnote 503: Concerning the distinction between theatre and region of war, see below, vol. II. § 70.]

However, certain parts of the Open Sea can become neutralised and thereby be excluded from the region of war. Thus, the Black Sea became neutralised in 1856 through article 11 of the Peace Treaty of Paris stipulating:--"La Mer Noire est neutralisée: ouverte à la marine marchande de toutes les nations, ses eaux et ses ports sont formellement et à perpétuité interdites au pavillon de guerre, soit des puissances riveraines, soit de tout autre puissance." Yet this neutralisation of the Black Sea was abolished[504] in 1871 by article 1 of the Treaty of London, and no other part of the Open Sea is at present neutralised.

[Footnote 504: See above, § 181.]

[Sidenote: Navigation and ceremonials on the Open Sea.]

§ 257. The freedom of the Open Sea involves perfect freedom of navigation for vessels of all nations, whether men-of-war, other public vessels, or merchantmen. It involves, further, absence of compulsory maritime ceremonials on the Open Sea. According to the Law of Nations, no rights whatever of salute exist between vessels meeting on the Open Sea. All so-called maritime ceremonials on the Open Sea[505] are a matter either of courtesy and usage or of special conventions and Municipal Laws of those States under whose flags vessels sail. There is in especial no right of any State to require a salute from foreign merchantmen for its men-of-war.[506]

[Footnote 505: But not within the maritime belt or other territorial waters. See above, §§ 122 and 187.]

[Footnote 506: That men-of-war can on the Open Sea ask suspicious foreign merchantmen to show their flags has nothing to do with ceremonials, but with the supervision of the Open Sea in the interest of its safety. See below, § 266.]

The freedom of the Open Sea involves likewise freedom of inoffensive passage[507] through the maritime belt for merchantmen of all nations, and also for men-of-war of all nations in so far as the part concerned of the maritime belt forms a part of the highways for international traffic. Without such freedom of passage, navigation on the Open Sea by vessels of all nations would be a physical impossibility.

[Footnote 507: See above, § 188.]

[Sidenote: Claim of States to Maritime Flag.]

§ 258. Since no State can exercise protection over vessels that do not sail under its flag, and since every vessel must, in the interest of the order and safety of the Open Sea, sail under the flag of a State, the question has been raised whether not only maritime States but also such States as are not littoral States of the Sea have a claim to a maritime flag. There ought to be no doubt[508] that the freedom of the Open Sea involves a claim of any State to a maritime flag. At present no non-littoral State actually has a maritime flag, and all vessels belonging to subjects of such non-littoral States sail under the flag of a maritime State. But any day might bring a change. The question as to the claim to a maritime flag on the part of a non-littoral State was discussed in Switzerland. When, in 1864, Swiss merchants in Trieste, Smyrna, Hamburg, and St. Petersburg applied to the Swiss Bundesrath for permission to have their vessels sailing under the Swiss flag, the Bundesrath was ready to comply with the request, but the Swiss Parliament, the Bundesversammlung, refused the necessary consent. In 1889 and 1891 new applications of the same kind were made, but Switzerland again refused to have a maritime flag.[509] She had no doubt that she had a claim to such flag, but was aware of the difficulties arising from the fact that, having no seaports of her own, vessels sailing under her flag would in many points have to depend upon the goodwill of the maritime Powers.[510]

[Footnote 508: See, however, Westlake, I. p. 165.]

[Footnote 509: See Salis, "Schweizerisches Bundesrecht" (1891), vol. I. p. 234.]

[Footnote 510: The question is discussed by Calvo, I. § 427; Twiss, I. §§ 197 and 198; and Westlake, I. p. 165.]

Such States as have a maritime flag as a rule have a war flag different from their commercial flag; some States, however, have one and the same flag for both their navy and their mercantile marine. But it must be mentioned that a State can by an international convention be restricted to a mercantile flag only, such State being prevented from having a navy. This is the position of Montenegro[511] according to article 29 of the Treaty of Berlin of 1878.

[Footnote 511: See above, § 127, but it is doubtful whether this restriction is still in existence, since article 29 has, after the annexation of Bosnia and Herzegovina by Austria in 1908, been modified by the Powers, so that the port of Antivari and the other Montenegrin waters are now no longer closed to men-of-war of all nations. See R.G. XVII. (1910), pp. 173-176.]

[Sidenote: Rationale for the Freedom of the Open Sea.]

§ 259. Grotius and many writers who follow[512] him establish two facts as the reason for the freedom of the Open Sea. They maintain, first, that a part of the Open Sea could not effectively be occupied by a Navy and could therefore not be brought under the actual sway of any State. And they assert, secondly, that Nature does not give a right to anybody to appropriate such things as may inoffensively be used by everybody and are inexhaustible, and, therefore, sufficient for all.[513] The last argument has nowadays hardly any value, especially for those who have freed themselves from the fanciful rules of the so-called Law of Nature. And the first argument is now without basis in face of the development of the modern navies, since the number of public vessels which the different States possess at present would enable many a State to occupy effectively one part or another of the Open Sea. The real reason for the freedom of the Open Sea is represented in the motive which led to the attack against maritime sovereignty, and in the purpose for which such attack was made--namely, the freedom of communication, and especially commerce, between the States which are severed by the Sea. The Sea being an international highway which connects distant lands, it is the common conviction that it should not be under the sway of any State whatever. It is in the interest of free intercourse[514] between the States that the principle of the freedom of the Open Sea has become universally recognised and will always be upheld.[515]

[Footnote 512: See, for instance, Twiss, I. § 172, and Westlake, I. p. 160.]

[Footnote 513: See Grotius, II. c. 2, § 3.]

[Footnote 514: See above, § 142.]

[Footnote 515: Connected with the reason for the freedom of the Open Sea is the merely theoretical question whether the vessels of a State could through an international treaty be prevented from navigating on the whole or on certain parts of the Open Sea. See Pradier-Fodéré, II. Nos. 881-885, where this point is exhaustively discussed.]

IV

JURISDICTION ON THE OPEN SEA

Vattel, II. § 80--Hall, § 45--Westlake, I. pp. 166-176--Lawrence,
§ 100--Halleck, p. 438--Taylor, §§ 262-267--Walker, § 20--Wheaton,
§ 106--Moore, II. §§ 309-310--Bluntschli, §§ 317-352--Heffter, §§
78-80--Stoerk in Holtzendorff, II. pp. 518-550--Liszt, §
26--Bonfils, Nos. 578-580, 597-613--Despagnet, Nos.
422-430--Mérignhac, II. pp. 505-511--Pradier-Fodéré, V. Nos.
2376-2470--Rivier, I. § 18--Nys, II. pp. 139-165--Calvo, I. §§
385-473--Fiore, II. Nos. 730-742, and Code, Nos.
1001-1027--Martens, II. §§ 55-56--Perels, § 12--Testa, pp.
98-112--Ortolan, "Diplomatie de la mer" (1856), II. 254-326--Hall,
"Foreign Powers and Jurisdiction of the British Crown" (1894), §§
106-109.

[Sidenote: Jurisdiction on the Open Sea mainly connected with Flag.]

§ 260. Jurisdiction on the Open Sea is in the main connected with the maritime flag under which vessels sail. This is the consequence of the fact stated above[516] that a certain legal order is created on the Open Sea through the co-operation of rules of the Law of Nations with rules of the Municipal Laws of such States as possess a maritime flag. But two points must be emphasised. The one is that this jurisdiction is not jurisdiction over the Open Sea as such, but only over vessels, persons, and goods on the Open Sea. And the other is that jurisdiction on the Open Sea is, although mainly, not exclusively connected with the flag under which vessels sail, because men-of-war of all nations have, as will be seen,[517] certain powers over merchantmen of all nations. The points which must therefore be here discussed singly are--the claim of vessels to sail under a certain flag, ship-papers, the names of vessels, the connection of vessels with the territory of the flag State, the safety of traffic on the Open Sea, the powers of men-of-war over merchantmen of all nations, and, lastly, shipwreck.

[Footnote 516: See above, § 255.]

[Footnote 517: See below, § 266.]

[Sidenote: Claim of Vessels to sail under a certain Flag.]

§ 261. The Law of Nations does not include any rules regarding the claim of vessels to sail under a certain maritime flag, but imposes the duty upon every State having a maritime flag to stipulate by its own Municipal Laws the conditions to be fulfilled by those vessels which wish to sail under its flag. In the interest of order on the Open Sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the Open Sea is freedom for such vessels only as sail under the flag of a State. But a State is absolutely independent in framing the rules concerning the claim of vessels to its flag. It can in especial authorise such vessels to sail under its flag as are the property of foreign subjects; but such foreign vessels sailing under its flag fall thereby under its jurisdiction. The different States have made different rules concerning the sailing of vessels under their flags.[518] Some, as Great Britain[519] and Germany, allow only such vessels to sail under their flags as are the exclusive property of their citizens or of corporations established on their territory. Others, as Argentina, admit vessels which are the property of foreigners. Others again, as France, admit vessels which are in part the property of French citizens.[520]

[Footnote 518: See Calvo, I. §§ 393-423, where the respective Municipal Laws of most countries are quoted.]

[Footnote 519: See section 1 of the Merchant Shipping Act, 1894 (27 and 28 Vict. c. 60), and sections 51 and 80 of the Merchant Shipping Act, 1906 (6 Ed. VII. c. 7).]

[Footnote 520: The Institute of International Law adopted, at its meeting at Venice--see Annuaire, XV. (1896), p. 201--in 1896, a body of ten rules concerning the sailing of merchantmen under the maritime flag of a State under the heading:--"_Règles relatives à l'usage du pavillon national pour les navires de commerce_."]

But no State can allow such vessel to sail under its flag as already sails under the flag of another State. Just as a vessel not sailing under the flag of a State, so a vessel sailing under the flags of two different States does not enjoy any protection whatever. Nor is protection enjoyed by such vessel as sails under the flag of a State which, like Switzerland, has no maritime flag. Vessels belonging to persons who are subjects of States without a maritime flag must obtain authority to sail under some other State's flag, if they wish to enjoy protection on the Open Sea. And any vessel, although the property of foreigners, which sails without authority under the flag of a State, may be captured by the men-of-war of such State, prosecuted, punished, and confiscated.[521]

[Footnote 521: See the case of the steamship _Maori King_ _v._ His Britannic Majesty's Consul-General at Shanghai, L.R., App. c. 1909, p. 562, and sections 69 and 76 of the Merchant Shipping Act, 1894 (27 and 28 Vict. c. 60).]

[Sidenote: Ship Papers.]

§ 262. All States with a maritime flag are by the Law of Nations obliged to make private vessels sailing under their flags carry on board so-called ship papers, which serve the purpose of identification on the Open Sea. But neither the number nor the kind of such papers is prescribed by International Law, and the Municipal Laws of the different States differ much on this subject.[522] But, on the other hand, they agree as to the following papers:--

[Footnote 522: See Holland, "Manual of Naval Prize Law," §§ 178-194, where the papers required by the different maritime States are enumerated.]

(1) An official voucher authorising the vessel to sail under its flag. This voucher consists of a Certificate of Registry, in case the flag State possesses, like Great Britain and Germany for instance, a register of its mercantile marine; in other cases the voucher consists of a "Passport," "Sea-letter," "Sea-brief," or of some other document serving the purpose of showing the vessel's nationality.

(2) The Muster Roll. This is a list of all the members of the crew, their nationality, and the like.

(3) The Log Book. This is a full record of the voyage, with all nautical details.

(4) The Manifest of Cargo. This is a list of the cargo of a vessel, with details concerning the number and the mark of each package, the names of the shippers and the consignees, and the like.

(5) The Bills of Lading. These are duplicates of the documents which the master of the vessel hands over to the shipper of the goods at shipment.

(6) The Charter Party, if the vessel is chartered. This is the contract between the owner of the ship, who lets it wholly or in part, and the charterer, the person who hires it.

[Sidenote: Names of Vessels.]

§ 263. Every State must register the names of all private vessels sailing under its flag, and it must make them bear their names visibly, so that every vessel may be identified from a distance. No vessel must be allowed to change her name without permission and fresh registration.[523]

[Footnote 523: As regards Great Britain, see sections 47 and 48 of the Merchant Shipping Act, 1894, and sections 50 and 53 of the Merchant Shipping Act, 1906.]

[Sidenote: Territorial Quality of Vessels on the Open Sea.]

§ 264. It is a customary rule of the Law of Nations that men-of-war and other public vessels of any State are, whilst on the Open Sea as well as in foreign territorial waters, in every point considered as though they were floating parts of their home States.[524] Private vessels are only considered as though they were floating portions of the flag State in so far as they remain whilst on the Open Sea in principle under the exclusive jurisdiction of the flag State. Thus the birth of a child, a will or business contract made, a crime[525] committed on board ship, and the like, are considered as happening on the territory and therefore under the territorial supremacy of the flag[526] State. But although they appear in this respect as though they were, private vessels are in fact not floating portions of the flag State. For in time of war belligerent men-of-war can visit, search, and capture neutral private vessels on the Open Sea for breach of blockade, contraband, and the like, and in time of peace men-of-war of all nations have certain powers[527] over merchantmen of all nations.

[Footnote 524: See above, § 172, and below, §§ 447-451.]

[Footnote 525: See Jordan in R.I. 2nd Ser. X. (1908), pp. 340-362 and 481-500.]

[Footnote 526: Since, however, individuals abroad remain under the personal supremacy of their home State, nothing can prevent a State from legislating as regards such of its citizens as sail on the Open Sea on board a foreign vessel.]

[Footnote 527: See below, § 266. The question of the territoriality of vessels is ably discussed by Hall, §§ 76-79.]

[Sidenote: Safety of Traffic on the Open Sea.]

§ 265. No rules of the Law of Nations exist as yet[528] for the purpose of preventing collisions, saving lives after collisions, and the like, but every State possessing a maritime flag has legislated for the conduct on the Open Sea of vessels sailing under its flag concerning signalling, piloting, courses, collisions, and the like. Although every State can legislate on these matters independently of other States, more and more corresponding rules have been put into force by all the States during the second half of the nineteenth century, following the lead given by Great Britain through section 25 of the Merchant Shipping Act Amendment Act of 1862, the "Regulations for preventing Collisions at Sea" which accompany this Act, and, further, Sections 16 to 20 of the Merchant Shipping Act, 1873.[529] And the "Commercial Code of Signals for the Use of all Nations," published by Great Britain in 1857, has been adopted by all maritime States. In 1889 a maritime Conference took place at Washington, at which eighteen maritime States were represented and which recommended a body of rules for preventing collisions at sea to be adopted by the single States,[530] and a revision of the Code of Signals. These regulations were revised in 1890 by a British Committee appointed by the Board of Trade,[531] and, after some direct negotiations between the Governments, most maritime States have made corresponding regulations by their Municipal Laws.[532] And a new and revised edition of "The International Code of Signals" was published by the British Board of Trade, in conformity with arrangements with other maritime Powers, in 1900, and is now in general use.[533]

[Footnote 528: It is to be expected that matters will soon undergo a change, for the Conference of the International Maritime Committee, which met at Brussels in September 1910 and where all the maritime States of Europe, the United States of America, most of the South American States, and Japan were represented, produced a draft convention concerning collisions (see Supplement to the _American Journal of International Law_, IV. (1910), p. 121). The "Maritime Conventions Bill," which is now before Parliament, proposes such alterations of British Municipal Law as would enable the British Government to ratify this Convention. The Institute of International Law already in 1888, at its meeting at Lausanne--see Annuaire, X. (1889), p. 150--adopted a body of eight rules concerning the subject.]

[Footnote 529: See 25 and 26 Vict. c. 63; 36 and 37 Vict. c. 83. The matter is now dealt with by sections 418-421 of the Merchant Shipping Act, 1894 (57 and 58 Vict. c. 60).]

[Footnote 530: See Martens, N.R.G. 2nd Ser. XII. p. 416.]

[Footnote 531: See Martens, N.R.G. 2nd Ser. XXII. p. 113.]

[Footnote 532: Latest British Regulations, 1896.]

[Footnote 533: The matter of collision at sea is exhaustively treated by Prien, "Der Zusammenstoss von Schiffen nach dem Gesetzen des Erdhalls" (2nd ed. 1899).]

The question of jurisdiction in actions for damages for collision at sea is not at all settled.[534] That the damaged innocent vessel can bring an action against the guilty ship in the Courts of the latter's flag State is beyond doubt since jurisdiction on the Open Sea follows the flag. If the rule that all vessels while on the Open Sea are considered under the sway of their flag State were one without exception, no other State would claim jurisdiction in cases of collision but the flag State of the guilty ship. Yet the practice of the maritime States[535] goes far beyond this, without, however, being uniform. Thus, for instance, France[536] claims jurisdiction if the damaged ship is French, although the guilty ship may be foreign, and also in the event of both ships being foreign in case both consent, or for urgent measures having a provisionary character, or in case France is a place of payment. Thus, further, Italy[537] claims jurisdiction even if both ships are foreign in case an Italian port is the port nearest to the collision, or in case the damaged ship was forced by the collision to remain in an Italian port. Great Britain goes farthest, for the Admiralty Court claims jurisdiction provided the guilty ship is in a British port at the time the action for damages is brought, even if the collision took place between two foreign ships anywhere on the High Seas.[538] And the Admiralty Court justifies this extended claim of jurisdiction[539] by maintaining that collision is a matter of _communis juris_, and can therefore be adjudicated upon by the Courts[540] of all maritime States.[541]

[Footnote 534: See Phillimore, IV. § 815; Calvo, I. § 444; Pradier-Fodéré, V. Nos. 2362-2374; Bar, "Private International Law" (2nd ed. translated by Gillespie), pp. 720 and 928; Dicey, "Conflict of Laws" (2nd ed.), pp. 650-652 and 790; Foote, "Private International Law" (3rd ed.), pp. 486 and 495; Westlake, "Private International Law" (3rd ed.), pp. 266-269; Marsden, "The Law of Collisions at Sea" (6th ed. 1910); Williams and Bruce, "Treatise on the Jurisdiction of English Courts in Admiralty Actions" (3rd ed. 1902).]

[Footnote 535: See above, § 146.]

[Footnote 536: See Pradier-Fodéré, No. 2363.]

[Footnote 537: See Pradier-Fodéré, No. 2364.]

[Footnote 538: Or even in foreign territorial waters. See Williams and Bruce, _op. cit._, p. 78:--"The Admiralty Court from ancient times exercised jurisdiction in cases of collision between foreign vessels on the High Seas; and since the Admiralty Court Act, 1861, it has entertained suits for collision between ships in foreign waters, and between an English and a foreign ship in foreign waters."]

[Footnote 539: _The Johann Friederich_ (1838), 1 W. Robinson, 35; the Chartered Mercantile Bank of India, London, and China _v._ The Netherlands India Steam Navigation Co., 10 Q.B.D. 537.]

[Footnote 540: The practice of the United States of America coincides with that of Great Britain; see the case of the _Belgenland_, 114, United States, 355, and Wharton, I. § 27.]

[Footnote 541: The Institute of International Law, at its meeting at Lausanne in 1888, adopted two rules concerning the jurisdiction in cases of collision; see Annuaire, X. (1889), p. 152.]

[Sidenote: Powers of Men-of-war over Merchantmen of all Nations.]

§ 266. Although the freedom of the Open Sea and the fact that vessels on the Open Sea remain under the jurisdiction of the flag State exclude as a rule the exercise of any State's authority over foreign vessels, there are certain exceptions in the interest of all maritime nations. These exceptions are the following:--

(1) Blockade and Contraband. In time of war belligerents can blockade not only enemy ports and territorial coast waters, but also parts of the Open Sea adjoining those ports and waters, and neutral merchantmen attempting to break such a blockade can be confiscated. And, further, in time of war belligerent men-of-war can visit, search, and eventually seize neutral merchantmen for contraband, and the like.

(2) Verification of Flag. It is a universally recognised customary rule of International Law that men-of-war of all nations have, to maintain the safety of the Open Sea against piracy, the power to require suspicious private vessels on the Open Sea to show their flag.[542] But such vessels must be suspicious, and, since a vessel may be a pirate although she shows a flag, she may eventually be stopped and visited for the purpose of inspecting her papers and thereby verifying the flag. It is, however, quite obvious that this power of men-of-war must not be abused, and that the home State is responsible for damages in case a man-of-war stops and visits a foreign merchantman without sufficient ground of suspicion. The right of every State to punish piracy on the Open Sea will be treated below, §§ 272-280.

[Footnote 542: So-called "Droit d'enquête" or "Vérification du pavillon." This power of men-of-war has given occasion to much dispute and discussion, but in fact nobody denies that in case of grave suspicion this power does exist. See Twiss, I. § 193; Hall, § 81, p. 276; Fiore, II. Nos. 732-736; Perels, § 17; Taylor, § 266; Bonfils, No. 519.]

(3) So-called Right of Pursuit. 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.[543]

[Footnote 543: See Hall, § 80.]

(4) Abuse of Flag. It is another universally recognised rule that men-of-war of every State may seize and bring to a port of their own for punishment any foreign vessel sailing under the flag of such State without authority.[544] Accordingly, Great Britain has, by section 69 of the Merchant Shipping Act, 1894, enacted:--"If a person uses the British flag and assumes the British national character on board a ship owned in whole or in part by any persons not qualified to own a British ship, for the purpose of making the ship appear a British ship, the ship shall be subject to forfeiture under this Act, unless the assumption has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in the exercise of some belligerent right."

[Footnote 544: The four exceptions mentioned in the text above are based on universally recognised customary rules of the Law of Nations. It is, of course, possible for several States to enter into treaty agreements according to which their men-of-war acquire certain powers over each other's merchantmen on the Open Sea. According to such agreements, which are, however, not universal, the following additional exceptions may be enumerated:--

(1) In the interest of the suppression of the slave trade, the signatory Powers of the General Act of the Brussels Conference of 1890 to which all the larger maritime Powers belong, have, by articles 20-65, stipulated that their men-of-war shall have the power, in certain parts of the Open Sea where slave traffic still continues, to stop every suspect vessel under 500 tons.

(2) In the interest of the Fisheries in the North Sea, special cruisers of the littoral Powers control all fishing vessels and bumboats. See below, §§ 282 and 283.

(3) In the interest of Transatlantic telegraph cables, men-of-war of the signatory Powers of the treaty for the protection of such cables have certain powers over merchantmen. (See below, § 287.)]

[Sidenote: How Verification of Flag is effected.]

§ 267. A man-of-war which meets a suspicious merchantman not showing her colours and wishes to verify the same, hoists her own flag and fires a blank cartridge. This is a signal for the other vessel to hoist her flag in reply. If she takes no notice of the signal, the man-of-war fires a shot across her bows. If the suspicious vessel, in spite of this warning, still declines to hoist her flag, the suspicion becomes so grave that the man-of-war may compel her to bring to for the purpose of visiting her and thereby verifying her nationality.

[Sidenote: How Visit is effected.]

§ 268. The intention to visit may be communicated to a merchantman either by hailing or by the "informing gun"--that is, by firing either one or two blank cartridges. If the vessel takes no notice of this communication, a shot may be fired across her bows as a signal to bring to, and, if this also has no effect, force may be resorted to. After the vessel has been brought to, either an officer is sent on board for the purpose of inspecting her papers, or her master is ordered to bring his ship papers for inspection on board the man-of-war. If the inspection proves the papers to be in order, a memorandum of the visit is made in the log-book, and the vessel is allowed to proceed on her course.

[Sidenote: How Search is effected.]

§ 269. Search is naturally a measure which visit must always precede. It is because the visit has given no satisfaction that search is instituted. Search is effected by an officer and some of the crew of the man-of-war, the master and crew of the vessel to be searched not being compelled to render any assistance whatever except to open locked cupboards and the like. The search must take place in an orderly way, and no damage must be done to the cargo. If the search proves everything to be in order, the searchers have carefully to replace everything removed, a memorandum of the search is to be made in the log-book, and the searched vessel is to be allowed to proceed on her course.

[Sidenote: How Arrest is effected.]

§ 270. Arrest of a vessel takes place either after visit and search have shown her liable thereto, or after she has committed some act which alone already justifies her seizure. Arrest is effected through the commander of the arresting man-of-war appointing one of her officers and a part of her crew to take charge of the arrested vessel. Such officer is responsible for the vessel and her cargo, which latter must be kept safe and intact. The arrested vessel, either accompanied by the arresting vessel or not, must be brought to such harbour as is determined by the cause of the arrest. Thus, neutral or enemy ships seized in time of war are always[545] to be brought into a harbour of the flag State of the captor. And the same is the case in time of peace, when a vessel is seized because her flag cannot be verified, or because she was sailing under no flag at all. On the other hand, when a fishing vessel or a bumboat is arrested in the North Sea, she is always to be brought into a harbour of her flag State and handed over to the authorities there.[546]

[Footnote 545: Except in the case of distress or unseaworthiness; see below, vol. II. § 193.]

[Footnote 546: See below, §§ 282 and 283.]

[Sidenote: Shipwreck and Distress on the Open Sea.]

§ 271. It is at present the universal conviction on the part of the States that goods and persons shipwrecked on the Open Sea do not thereby lose the protection of the flag State of the shipwrecked vessel. No State is allowed to recognise appropriation of abandoned vessels and other derelicts on the Open Sea by those of its subjects who take possession thereof. But every State can by its Municipal Laws enact that those of its subjects who take possession of abandoned vessels and of shipwrecked goods need not restore them to their owners without salvage,[547] whether the act of taking possession occurred on the actual Open Sea or within territorial waters and on shore of the respective State.

[Footnote 547: The Conference of the Maritime Committee held at Brussels in September 1910 also produced a draft convention concerning salvage, which the British Government likewise intends to ratify provided Parliament passes the "Maritime Conventions Bill," see above, § 265, p. 333, note 2, and Supplement to the _American Journal of International Law_, IV. (1910), p. 126. According to the practice of the Admiralty Court--see the case of the _Johann Friederich_, 1 W. Robinson, 35--salvage on the Open Sea is, just like collisions, a matter of _communis juris_ upon which the Courts of all maritime States are competent to adjudicate. See Phillimore, IV. § 815; and Dicey, "Conflict of Laws" (2nd ed. 1908), p. 791. See also sect. 545 and 565 of the Merchant Shipping Act, 1894.]