Chapter II: The Open Sea (2)

As regards vessels in distress on the Open Sea, some writers[548] maintain that men-of-war must render assistance even to foreign vessels in distress. But it is impossible to say that there is a customary or conventional rule of the Law of Nations in existence which imposes upon all States the duty of instructing their men-of-war to render assistance to foreign vessels in distress, although many States order by Municipal Regulations their men-of-war to render such assistance, and although morally every vessel is bound to render assistance to another vessel in distress.[549]

[Footnote 548: See, for instance, Perels, § 25, and Fiore, II. No. 732.]

[Footnote 549: According to article 11 of the draft convention concerning salvage produced by the Conference of the Maritime Committee at Brussels in September 1910--see above, note 1--"every master shall be obliged, as far as he can do so without serious danger to his vessel, his crew, or his passengers, to lend assistance to any person, even an enemy, found at sea in danger of perishing. The owner of the vessel shall not be liable for violations of the foregoing provision."]

V

PIRACY

Hall, §§ 81-82--Westlake, I. pp. 177-182--Lawrence, §
102--Phillimore, I. §§ 356-361--Twiss, I. §§ 177 and 193--Halleck,
I. pp. 444-450--Taylor, §§ 188-189--Walker, § 21--Westlake, I. pp.
177-182--Wheaton, §§ 122-124--Moore, II. §§ 311-315--Bluntschli,
§§ 343-350--Heffter, § 104--Gareis in Holtzendorff, II. pp.
571-581--Gareis, § 58--Liszt, § 26--Ullmann, § 104--Bonfils, Nos.
592-594--Despagnet, Nos. 431-433--Mérignhac, II. pp.
506-511--Pradier-Fodéré, V. Nos. 2491-2515--Rivier, I. pp.
248-251--Calvo, I. §§ 485-512--Fiore, I. Nos. 494-495, and Code,
Nos. 295-300--Perels, §§ 16-17--Testa, pp. 90-97--Ortolan,
"Diplomatie de la mer" (1856), I. pp. 231-253--Stiel, "Der
Thatbestand der Piraterie" (1905).

[Sidenote: Conception of Piracy.]

§ 272. Piracy, in its original and strict meaning, is every unauthorised act of violence committed by a private vessel on the Open Sea against another vessel with intent to plunder (_animo furandi_). The majority of writers confine piracy to such acts, which indeed are the normal cases of piracy. But there are cases possible which are not covered by this narrow definition, and yet they are practically treated as though they were cases of piracy. Thus, if the members of the crew revolt and convert the ship and the goods thereon to their own use, they are considered to be pirates, although they have not committed an act of violence against another ship. Thus, secondly, if unauthorised acts of violence, such as murder of persons on board the attacked vessel or destruction of goods thereon, are committed on the Open Sea without intent to plunder, such acts are practically considered to be piratical. Under these circumstances several writers,[550] correctly, I think, oppose the usual definition of piracy as an act of violence committed by a private vessel against another with intent to plunder. But no unanimity exists among these very writers concerning a fit definition of piracy, and the matter is therefore very controversial. If a definition is desired which really covers all such acts as are practically treated as piratical, piracy must be defined as _every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel_.[551]

[Footnote 550: Hall, § 81; Lawrence, § 102; Bluntschli, § 343; Liszt, § 26; Calvo, § 485.]

[Footnote 551: The conception of Piracy is discussed in the case of the Republic of Bolivia _v._ The Indemnity Mutual Marine Assurance Co., L.R. (1909), 1 K.B., 785.]

Already, before a Law of Nations in the modern sense of the term was in existence, a pirate was considered an outlaw, a "hostis humani generis." According to the Law of Nations the act of piracy makes the pirate lose the protection of his home State, and thereby his national character; and his vessel, although she may formerly have possessed a claim to sail under a certain State's flag, loses such claim. Piracy is a so-called "international crime";[552] the pirate is considered the enemy of every State, and can be brought to justice anywhere.

[Footnote 552: See above, § 151.]

[Sidenote: Private Ships as Subjects of Piracy.]

§ 273. Private vessels only[553] can commit piracy. A man-of-war or other public ship, as long as she remains such, is never a pirate. If she commits unjustified acts of violence, redress must be asked from her flag State, which has to punish the commander and to pay damages where required. But if a man-of-war or other public ship of a State revolts and cruises the sea for her own purposes, she ceases to be a public ship, and acts of violence now committed by her are indeed piratical acts. A _privateer_ is not a pirate as long as her acts of violence are confined to enemy vessels, because such acts are authorised by the belligerent in whose services she is acting. And it matters not that the privateer is originally a neutral vessel.[554] But if a neutral vessel were to take Letters of Marque from both belligerents, she would be considered a pirate.

[Footnote 553: Piracy committed by the mutinous crew will be treated below, § 274.]

[Footnote 554: See details regarding this controversial point in Hall, § 81. See also below, vol. II. §§ 83 and 330.]

Doubtful is the case where a privateer in a civil war has received her Letters of Marque from the insurgents, and, further, the case where during a civil war men-of-war join the insurgents before the latter have been recognised as a belligerent Power. It is evident that the legitimate Government will treat such ships as pirates; but third Powers ought not to do so, as long as these vessels do not commit any act of violence against ships of these third Powers. Thus, in 1873, when an insurrection broke out in Spain, Spanish men-of-war stationed at Carthagena fell into the hands of the insurgents, and the Spanish Government proclaimed these vessels pirates, England, France, and Germany instructed the commanders of their men-of-war in the Mediterranean not to interfere as long as these insurgent vessels[555] abstained from acts of violence against the lives and property of their subjects.[556] On the other hand, when in 1877 a revolutionary outbreak occurred at Callao in Peru and the ironclad _Huascar_, which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal without payment from one of these, and forcibly took two Peruvian officials from on board another where they were passengers, she was justly considered a pirate and attacked by the British Admiral de Horsey, who was in command of the British squadron in the Pacific.[557]

[Footnote 555: See Calvo, I. §§ 497-501; Hall, § 82; Westlake, I. pp. 179-182.]

[Footnote 556: But in the American case of the _Ambrose Light_ (25 Federal 408; see also Moore, II. § 332, p. 1098) the Court did not agree with this. The _Ambrose Light_ was a brigantine which, when on April 24, 1885, she was sighted by Commander Clark of the U.S.S. _Alliance_ in the Caribbean Sea, was flying a strange flag showing a red cross on a white ground, but she afterwards hoisted the Columbian flag; when seized she was found to carry sixty armed soldiers, one cannon, and a considerable quantity of ammunition. She bore a commission from Columbian insurgents, and was designed to assist in the blockade of the port of Carthagena by the rebels. Commander Clark considered the vessel to be a pirate and sent her in for condemnation. The Court held that in absence of any recognition of the Columbian insurgents as a belligerent Power the _Ambrose Light_ had been lawfully seized as a pirate. The vessel was, however, nevertheless released because the American Secretary of State had recognised by implication a state of war between the insurgents and the legitimate Columbian Government.]

[Footnote 557: As regards the case of the Argentinian vessel _Porteña_ and the Spanish vessel _Montezuma_, afterwards called _Cespedes_, see Calvo, I. §§ 502 and 503.]

The case must also be mentioned of a privateer or man-of-war which after the conclusion of peace or the termination of war by subjugation and the like continues to commit hostile acts. If such vessel is not cognisant of the fact that the war has come to an end she cannot be considered as a pirate. Thus the Confederate cruiser _Shenandoah_, which in 1865, for some months after the end of the American Civil War, attacked American vessels, was not considered a pirate[558] by the British Government when her commander gave her up to the port authorities at Liverpool in November 1865, because he asserted that he had not known till August of the termination of the war, and that he had abstained from hostilities as soon as he had obtained this information.

[Footnote 558: See Lawrence, § 102.]

It must be emphasised that the motive and the purpose of such acts of violence do not alter their piratical character, since the intent to plunder (_animus furandi_) is not required. Thus, for instance, if a private neutral vessel without Letters of Marque during war out of hatred of one of the belligerents were to attack and to sink vessels of such belligerent without plundering at all, she would nevertheless be considered as a pirate.[559]

[Footnote 559: This statement is correct in spite of art. 46, No. 1, of the Declaration of London; see below, vol. II. § 410, No. 1.]

[Sidenote: Mutinous Crew and Passengers as Subjects of Piracy.]

§ 274. The crew or the whole or a part of the passengers who revolt on the Open Sea and convert the vessel and her goods to their own use, commit thereby piracy, whether the vessel is private or public. But a simple act of violence alone on the part of crew or passengers does not constitute in itself the crime of piracy, at least not as far as International Law is concerned. If, for instance, the crew were to murder the master on account of his cruelty and afterwards carry on the voyage, they would be murderers, but not pirates. They are pirates only when the revolt is directed not merely against the master, but also against the vessel, for the purpose of converting her and her goods to their own use.

[Sidenote: Object of Piracy.]

§ 275. The object of piracy is any public or private vessel, or the persons or the goods thereon, whilst on the Open Sea. In the regular case of piracy the pirate wants to make booty; it is the cargo of the attacked vessel which is the centre of his interest, and he might free the vessel and the crew after having appropriated the cargo. But he remains a pirate whether he does so or kills the crew and appropriates the ship, or sinks her. On the other hand, it does not matter if the cargo is not the object of his act of violence. If he stops a vessel and takes a rich passenger off with the intention to keep him for the purpose of a high ransom, his act is piracy. It is likewise piracy if he stops a vessel for the purpose of killing a certain person only on board, although he may afterwards free vessel, crew, and cargo.

That a possible object of piracy is not only another vessel, but also the very ship on which the crew and passenger navigate, is an inference from the statements above in § 274.

[Sidenote: Piracy, how effected.]

§ 276. Piracy is effected by any unauthorised act of violence, be it direct application of force or intimidation through menace. The crew or passengers who, for the purpose of converting a vessel and her goods to their own use, force the master through intimidation to steer another course, commit piracy as well as those who murder the master and steer the vessel themselves. And a ship which, through the threat to sink her if she should refuse, forces another ship to deliver up her cargo or a person on board, commits piracy as well as the ship which attacks another vessel, kills her crew, and thereby gets hold of her cargo or a person on board.

The act of violence need not be consummated to constitute the crime of piracy. The mere attempt, such as attacking or even chasing only for the purpose of attack, by itself comprises piracy. On the other hand, it is doubtful whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed a single act of violence.[560]

[Footnote 560: See Stephen, "Digest of the Criminal Law," article 104. In the case of the _Ambrose Light_--see above, § 273--the Court considered the vessel to be a pirate, although no attempt to commit a piratical act had been made by her.]

[Sidenote: Where Piracy can be committed.]

§ 277. Piracy as an "international crime" can be committed on the Open Sea only. Piracy in territorial coast waters has quite as little to do with International Law as other robberies on the territory of a State. Some writers[561] maintain that piracy need not necessarily be committed on the Open Sea, but that it suffices that the respective acts of violence are committed by descent from the Open Sea. They maintain, therefore, that if "a body of pirates land on an island unappropriated by a civilised Power, and rob and murder a trader who may be carrying on commerce there with the savage inhabitants, they are guilty of a crime possessing all the marks of commonplace professional piracy." With this opinion I cannot agree. Piracy is, and always has been, a crime against the safety of traffic on the Open Sea, and therefore it cannot be committed anywhere else than on the Open Sea.

[Footnote 561: Hall, § 81; Lawrence, § 102; Westlake, I. p. 177.]

[Sidenote: Jurisdiction over Pirates, and their Punishment.]

§ 278. A pirate and his vessel lose _ipso facto_ by an act of piracy the protection of their flag State and their national character. Every maritime State has by a customary rule of the Law of Nations the right to punish pirates. And the vessels of all nations, whether men-of-war, other public vessels, or merchantmen,[562] can on the Open Sea[563] chase, attack, seize, and bring the pirate home for trial and punishment by the Courts of their own country. In former times it was said to be a customary rule of International Law that pirates could at once after seizure be hanged or drowned by the captor. But this cannot now be upheld, although some writers assert that it is still the law. It would seem that the captor may execute pirates on the spot only when he is not able to bring them safely into a port for trial; but Municipal Law may, of course, interdict such execution. Concerning the punishment for piracy, the Law of Nations lays down the rule that it may be capital. But it need not be, the Municipal Law of the different States being competent to order any less severe punishment. Nor does the Law of Nations make it a duty for every maritime State to punish all pirates.[564]

[Footnote 562: A few writers (Gareis in Holtzendorff, II. p 575; Liszt, § 26; Ullmann, § 104; Stiel, _op. cit._, p. 51) maintain, however, that men-of-war only have the power to seize the pirate.]

[Footnote 563: If a pirate is chased on the Open Sea and flees into the territorial maritime belt, the pursuers may follow, attack, and arrest the pirate there; but they must give him up to the authorities of the littoral State.]

[Footnote 564: Thus, according to the German Criminal Code, piracy committed by foreigners against foreign vessels cannot be punished by German Courts (see Perels, § 17). From article 104 of Stephen's "Digest of the Criminal Law," there seems to be no doubt that, according to English Law, all pirates are liable to be punished. See Stiel, _op. cit._, p. 15, note 4, where a survey is given of the Municipal Law of many States concerning this point.]

That men-of-war of all nations have, with a view to insuring the safety of traffic, the power of verifying the flags of suspicious merchantmen of all nations, has already been stated above (§ 266, No. 2).

[Sidenote: _Pirata non mutat dominium._]

§ 279. The question as to the property in the seized piratical vessels and the goods thereon has been the subject of much controversy. During the seventeenth century the practice of several States conceded such vessel and goods to the captor as a premium. But during the eighteenth century the rule _pirata non mutat dominium_ became more and more recognised. Nowadays the conviction would seem to be general that ship and goods have to be restored to their proprietors, and may be conceded to the captor only when the real ownership cannot be ascertained. In the first case, however, a certain percentage of the value is very often conceded to the captor as a premium and an equivalent for his expenses (so-called _droit de recousse_[565]). Thus, according to British Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of the pirate.

[Footnote 565: See details regarding the question as to the piratical vessels and goods in Pradier-Fodéré, V. Nos. 2496-2499.]

[Footnote 566: See section 5 of the "Act to repeal an Act of the Sixth Year of King George the Fourth, for encouraging the Capture or Destruction of Piratical Ships, &c." (13 & 14 Vict. ch. 26).]

[Sidenote: Piracy according to Municipal Law.]

§ 280. Piracy, according to the Law of Nations, which has been defined above (§ 272) as every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel, must not be confounded with the conception of piracy according to the different Municipal Laws.[567] The several States may confine themselves to punishing as piracy a narrower circle of acts of violence than that which the Law of Nations defines as piracy. On the other hand, they may punish their subjects as pirates for a much wider circle of acts. Thus, for instance, according to the Criminal Law of England,[568] every English subject is _inter alia_ deemed to be a pirate who gives aid or comfort upon the sea to the King's enemies during a war, or who transports slaves on the High Seas.

[Footnote 567: See Calvo, §§ 488-492; Lawrence, § 103; Pradier-Fodéré, V. Nos. 2501 and 2502.]

[Footnote 568: See Stephen, "Digest of the Criminal Law," articles 104-117.]

However, since a State cannot on the Open Sea enforce its Municipal Laws against others than its own subjects, no State can treat such foreign subjects on the Open Sea as pirates as are not pirates according to the Law of Nations. Thus, when in 1858, before the abolition of slavery in America, British men-of-war molested American vessels suspected of carrying slaves, the United States objected and rightly complained.[569]

[Footnote 569: See Wharton, III. § 327, pp. 142 and 143; Taylor, § 190; Moore, II. § 310, pp. 941-946.]

VI

FISHERIES IN THE OPEN SEA

Grotius, II. c. 3, § 4--Vattel, I. § 287--Hall, § 27--Lawrence, §§
86 and 91--Phillimore, I. §§ 181-195--Twiss, I. § 185--Taylor, §§
249-250--Wharton, II. §§ 300-308--Wheaton, §§ 167-171--Moore, I.
§§ 169-173--Bluntschli, § 307--Stoerk in Holtzendorff, II. pp.
504-507--Gareis, § 62--Liszt, § 35--Ullmann, § 103--Bonfils, Nos.
581-582, 595--Despagnet, Nos. 411-413--Mérignhac, II. p.
531--Pradier-Fodéré, V. Nos. 2446-2458--Rivier, I. pp.
243-245--Nys, II. pp. 165-169--Calvo, I. §§ 357-364--Fiore, II.
Nos. 728-729, and Code, Nos. 995-999--Martens, I. § 98--Perels, §
20--Hall, "Foreign Powers and Jurisdiction" (1894), § 107--David,
"La pêche maritime au point de vue international" (1897)--Fulton,
"The Sovereignty of the Seas" (1911), pp. 57-534.

[Sidenote: Fisheries in the Open Sea free to all Nations.]

§ 281. Whereas the fisheries in the territorial maritime belt can be reserved by the littoral State for its own subjects, it is an inference of the freedom of the Open Sea that the fisheries thereon are open[570] to vessels of all nations. Since, however, vessels remain whilst on the Open Sea under the jurisdiction of their flag State, every State possessing a maritime flag can legislate concerning the exercise of fisheries on the Open Sea on the part of vessels sailing under its flag. And for the same reason a State can by an international agreement renounce its fisheries on certain parts of the Open Sea, and accordingly interdict its vessels from exercising fisheries there. If certain circumstances and conditions make it advisable to restrict and regulate the fisheries on some parts of the Open Sea, the Powers are therefore able to create restrictions and regulations for that purpose through international treaties. Such treaties have been concluded--first, with regard to the fisheries in the North Sea and the suppression of the liquor trade among the fishing vessels in that Sea; secondly, with regard to the seal fisheries in the Behring Sea; thirdly, with regard to the fisheries around the Faröe Islands and Iceland.

[Footnote 570: Denmark silently, by fishing regulations of 1872, dropped her claim to an exclusive right of fisheries within twenty miles of the coast of Iceland; see Hall, § 40, p. 153, note 2. Russia promulgated, in 1911, a statute forbidding the fisheries to foreign vessels within twelve miles of the shore of the White Sea, but the Powers protested against this encroachment upon the freedom of the Open Sea; the matter is still unsettled.

A case of a particular kind would seem to be the pearl fishery off Ceylon, which extends to a distance of twenty miles from the shore and for which regulations exist which are enforced against foreign as well as British subjects. The claim on which these regulations are based is one "to the products of certain submerged portions of land which have been treated from time immemorial by the successive rulers of the island as subject of property and jurisdiction." See Hall, "Foreign Powers and Jurisdiction" (1894), p. 243, note 1. See also Westlake, I. p. 186, who says: "The case of the pearl fishery is peculiar, the pearls being obtained from the sea bottom by divers, so that it has a physical connection with the stable element of the locality which is wanting to the pursuit of fish swimming in the water. When carried on under State protection, as that off the British island of Ceylon, or that in the Persian Gulf which is protected by British ships in pursuance of treaties with certain chiefs of the Arabian mainland, it may be regarded as an occupation of the bed of the sea. In that character the pearl fishery will be territorial even though the shallowness of the water may allow it to be practised beyond the limit which the State in question generally fixes for the littoral seas, as in the case of Ceylon it is practised beyond the three miles limit generally recognised by Great Britain. 'Qui doutera,' says Vattel (I. § 28), 'que les pêcheries de Bahrein et de Ceylon ne puissent légitimement tomber en propriété?' And the territorial nature of the industry will carry with it, as being necessary for its protection, the territorial character of the spot." This opinion of Westlake coincides with that contended by Great Britain during the Behring Sea Arbitration; see Parliamentary Papers, United States, No. 4 (1893) Behring Sea Arbitration, Archives of His Majesty's Government, pp. 51 and 59. But it is submitted that the bed of the Open Sea is not a possible object of occupation. The explanation of the pearl fisheries off Ceylon and in the Persian Gulf being exclusively British is to be found in the fact that the freedom of the Open Sea was not a rule of International Law when these fisheries were taken possession of. See Oppenheim in Z.V. II. (1908), pp. 6-10, and Westlake, I. (2nd ed.), p. 203.]

[Sidenote: Fisheries in the North Sea.]

§ 282. For the purpose of regulating the fisheries in the North Sea, an International Conference took place at the Hague in 1881 and again in 1882, at which Great Britain, Belgium, Denmark, France, Germany, Holland, and Sweden-Norway were represented, and on May 6, 1882, the International Convention for the Regulation of the Police of the Fisheries in the North Sea outside the territorial waters[571] was signed by the representatives of all these States, Sweden-Norway excepted, to which the option of joining later on is given. This treaty contains the following stipulations:[572]--

[Footnote 571: Martens, N.R.G. 2nd Ser. IX. p. 556.]

[Footnote 572: The matter is exhaustively treated by Rykere, "Le régime légal de la pêche maritime dans la Mer du Nord" (1901). To carry out the obligations undertaken by her in the Convention for the regulation of the fisheries in the North Sea, Great Britain enacted in 1883 the "Act to carry into effect an International Convention concerning the Fisheries in the North Sea, and to amend the Laws relating to British Sea Fisheries" (46 and 47 Vict. ch. 22).]

(1) All the fishing vessels of the signatory Powers must be registered, and the registers have to be exchanged between the Powers (article 5). Every vessel has to bear visibly in white colour on black ground its number, name, and the name of its harbour (articles 6-11). Every vessel must bear an official voucher of her nationality (articles 12-13).

(2) To avoid conflicts between the different fishing vessels, very minute interdictions and injunctions are provided (articles 14-25).

(3) The supervision of the fisheries by the fishing vessels of the signatory Powers is exercised by special cruisers of these Powers (article 26). With the exception of those contraventions which are specially enumerated by article 27, all these cruisers are competent to verify all contraventions committed by the fishing vessels of all the signatory Powers (article 28). For that purpose they have the right of visit, search, and arrest (article 29). But a seized fishing vessel is to be brought into a harbour of her flag State and to be handed over to the authorities there (article 30). All contraventions are to be tried by the Courts of the State to which the contravening vessels belong (article 36); but in cases of a trifling character the matter can be compromised on the spot by the commanders of the special public cruisers of the Powers (article 33).

[Sidenote: Bumboats in the North Sea.]

§ 283. Connected with the regulation of the fisheries is the abolition of the liquor trade among the fishing vessels in the North Sea. Since serious quarrels and difficulties were caused through bumboats and floating grog-shops selling intoxicating liquors to the fishermen, an International Conference took place at the Hague in 1886, where the signatory Powers of the Hague Convention concerning the fisheries in the North Sea were represented. And on November 16, 1887, the International Convention concerning the Abolition of the Liquor Traffic among the fishermen in the North Sea was signed by the representatives of these Powers--namely, Great Britain, Belgium, Denmark, France, Germany, and Holland. This treaty[573] was, however, not ratified until 1894, and France did not ratify it at all. It contains the following stipulations:[574]--

[Footnote 573: See Martens, N.R.G. 2nd Ser. XIV. p. 540, and XXII. p. 563.]

[Footnote 574: The matter is treated by Guillaume in R.I. XXVI. (1894), p. 488.]

It is interdicted to sell spirituous drinks to persons on board of fishing vessels, and these persons are prohibited from buying such drinks (article 2). Bumboats, which wish to sell provisions to fishermen, must be licensed by their flag State and must fly a white flag[575] with the letter S in black in the middle (article 3). The special cruisers of the Powers which supervise the fisheries in the North Sea are likewise competent to supervise the treaty stipulations concerning bumboats; they have the right to ask for the production of the proper licence, and eventually the right to arrest the vessel (article 7). But arrested vessels must always be brought into a harbour of their flag State, and all contraventions are to be tried by Courts of the flag State of the contravening vessel (articles 2, 7, 8).

[Footnote 575: This flag was agreed upon in the Protocol concerning the ratification of the Convention. (See Martens, N.R.G. 2nd Ser. XXII. p. 565.)]

[Sidenote: Seal Fisheries in Behring Sea.]

§ 284. In 1886 a conflict arose between Great Britain and the United States through the seizure and confiscation of British-Columbian vessels which had hunted seals in the Behring Sea outside the American territorial belt, infringing regulations made by the United States concerning seal fishing in that sea. Great Britain and the United States concluded an arbitration treaty[576] concerning this conflict in 1892, according to which the arbitrators should not only settle the dispute itself, but also (article 7) "determine what concurrent regulations outside the jurisdictional limits of the respective Governments are necessary" in the interest of the preservation of the seals. The Arbitration Tribunal, which assembled and gave its award[577] at Paris in 1893, imposed the duty upon both parties of forbidding their subjects to kill seals within a zone of sixty miles around the Pribilof Islands; the killing of seals at all between May 1 and July 31 each year; seal-fishing with nets, firearms, and explosives; seal-fishing in other than specially licensed sailing vessels. Both parties in 1894 carried out this task imposed upon them.[578] Other maritime Powers were at the same time asked by the United States to submit voluntarily to the regulations made for the parties by the arbitrators, but only Italy[579] has agreed to this.

[Footnote 576: See Martens, N.R.G. 2nd Ser. XVIII. p. 587.]

[Footnote 577: See Martens, N.R.G. 2nd Ser. XXI. p. 439. The award is discussed by Barclay in R.I. XXV. (1893), p. 417, and Engelhardt in R.I. XXVI. (1894), p. 386, and R.G. V. (1898), pp. 193 and 347. See also Tillier, "Les Pêcheries de Phoques de la Mer de Behring" (1906), and Balch, "L'évolution de l'Arbitrage International" (1908), pp. 70-91.]

[Footnote 578: See the Behring Sea Award Act, 1894 (57 Vict. c. 2).]

[Footnote 579: See Martens, N.R.G. 2nd Ser. XXII. p. 624.]

Experience has shown that the provisions made by the Arbitration Tribunal for the purpose of preventing the extinction of the seals in the Behring Sea are insufficient. The United States therefore invited the maritime Powers whose subjects are engaged in the seal fisheries to a Pelagic Sealing Conference which took place at Washington in 1911, and produced a convention[580] which was signed on July 7, 1911, by which the suspension of pelagic sealing for fifteen years was agreed upon.

[No further details of this Convention are as yet known, and it
has not yet been ratified.]

[Footnote 580: See below, § 593, No. 2.]

[Sidenote: Fisheries around the Faröe Islands and Iceland.]

§ 285. For the purpose of regulating the fisheries outside territorial waters around the Faröe Islands and Iceland, Great Britain and Denmark signed on June 24, 1901, the Convention of London,[581] whose stipulations are for the most part literally the same as those of the International Convention for the Regulation of the Fisheries in the North Sea, concluded at the Hague in 1882.[582] The additional article of this Convention of London stipulates that any other State whose subjects fish around the Faröe Islands and Iceland may accede to it.

[Footnote 581: See Martens, N.R.G. 2nd Ser. XXXIII. (1906), p. 268.]

[Footnote 582: See above, § 282.]

VII

TELEGRAPH CABLES IN THE OPEN SEA

Bonfils, No. 583--Despagnet, No. 401--Pradier-Fodéré, V. No.
2548--Mérignhac, II. p. 532--Nys, II. p. 170--Rivier, I. pp. 244
and 386--Fiore, II. No. 822, and Code, Nos. 1134-1137--Stoerk in
Holtzendorff, II. pp. 507-508--Liszt, § 29--Ullmann, §
103--Lauterbach, "Die Beschädigung unterseeischer
Telegraphenkabel" (1889)--Landois, "Zur Lehre vom
völkerrechtlichen Schutz der submarinen Telegraphenkabel"
(1894)--Jouhannaud, "Les câbles sous-marins" (1904)--Renault, in
R.I. XII. (1880), p. 251, XV. (1883), p. 17. See also the
literature quoted below, vol. II., at the commencement of § 214.

[Sidenote: Telegraph cables in the Open Sea admitted.]

§ 286. It is a consequence of the freedom of the Open Sea that no State can prevent another from laying telegraph and telephone cables in any part of the Open Sea, whereas no State need allow this within its territorial maritime belt. As numerous submarine cables have been laid, the question as to their protection arose. Already in 1869 the United States proposed an international convention for this purpose, but the matter dropped in consequence of the outbreak of the Franco-German war. The Institute of International Law took up the matter in 1879[583] and recommended an international agreement. In 1882 France invited the Powers to an International Conference at Paris for the purpose of regulating the protection of submarine cables. This conference met in October 1882, again in October 1883, and produced the "International Convention for the Protection of Submarine Telegraph Cables" which was signed at Paris on April 16, 1884.[584]

[Footnote 583: See Annuaire, III. pp. 351-394.]

[Footnote 584: See Martens, N.R.G. 2nd Ser. XI. p. 281.]

The signatory Powers are:--Great Britain, Argentina, Austria-Hungary, Belgium, Brazil, Colombia, Costa Rica, Denmark, San Domingo, France, Germany, Greece, Guatemala, Holland, Italy, Persia, Portugal, Roumania, Russia, Salvador, Servia, Spain, Sweden-Norway, Turkey, the United States, and Uruguay. Colombia and Persia did not ratify the treaty, but, on the other hand, Japan acceded to it later on.

[Sidenote: International Protection of Submarine Telegraph Cables.]

§ 287. The protection afforded to submarine telegraph cables finds its expression in the following stipulations of this international treaty:--

(1) Intentional or culpably negligent breaking or damaging of a cable in the Open Sea is to be punished by all the signatory Powers,[585] except in the case of such damage having been caused in the effort of self-preservation (article 2).

[Footnote 585: See the Submarine Telegraph Act, 1885 (48 & 49 Vict. c. 49).]

(2) Ships within sight of buoys indicating cables which are being laid or which are damaged must keep at least a quarter of a nautical mile distant (article 6).

(3) For dealing with infractions of the interdictions and injunctions of the treaty the Courts of the flag State of the infringing vessel are exclusively competent (article 8).

(4) Men-of-war of all signatory Powers have a right to stop and to verify the nationality of merchantmen of all nations which are suspected of having infringed the regulations of the treaty (article 10).

(5) All stipulations are made for the time of peace only and in no wise restrict the action of belligerents during time of war.[586]

[Footnote 586: See below, vol. II. § 214, and art. 54 of the Hague rules concerning land warfare which enacts:--"Submarine cables connecting a territory occupied with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They also must be restored and indemnities for them regulated at the peace."]

VIII

WIRELESS TELEGRAPHY ON THE OPEN SEA

Bonfils, Nos. 531{10, 11}--Despagnet, 433 _quater_--Liszt, §
29--Ullmann, § 147--Meili, "Die drahtlose Telegraphie, &c."
(1908)--Schneeli, "Drahtlose Telegraphie und Völkerrecht"
(1908)--Landsberg, "Die drahtlose Telegraphie" (1909)--Kausen,
"Die drahtlose Telegraphie im Völkerrecht" (1910)--Rolland in R.G.
XIII. (1906), pp. 58-92--Fauchille in Annuaire, XXI. (1906), pp.
76-87--Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.

[Sidenote: Radio-telegraphy between ships and the shore.]

§ 287_a_. To secure radio-telegraphic[587] communication between ships of all nations at sea and the continents, a Conference met at Berlin in 1906, where Great Britain, Germany, the United States of America, Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Chili, Denmark, Spain, France, Greece, Italy, Japan, Mexico, Monaco, Norway, Holland, Persia, Portugal, Roumania, Russia, Sweden, Turkey, and Uruguay were represented, and where was signed on November 3, 1906, the International Radio-telegraphic Convention.[588] This Convention, which consists of twenty-three articles, is accompanied by a Final Protocol, comprising six important articles, and by Service Regulations, embodying fifty-two articles. The more important stipulations of the Convention are the following:--Coast Stations and ships are bound to exchange radio-telegrams reciprocally without regard to the particular system of radio-telegraphy adopted by them (article 3). Each of the contracting parties undertakes to cause its coast stations to be connected with the telegraph system by means of special wires, or at least to take such other measures as will ensure an expeditious exchange of traffic between the coast stations and the telegraph system (article 5). Radio-telegraph stations are bound to accept with absolute priority calls of distress from ships, to answer such calls with similar priority, and to take the necessary steps with regard to them (article 9). An International Bureau shall be established with the duty of collecting, arranging, and publishing information of every kind concerning radio-telegraphy, and for some other purposes mentioned in article 13.

[Footnote 587: See above, § 173, and below, §§ 464 and 582, No. 4.]

[Footnote 588: See Martens, N.R.G. 3rd Ser. III. (1910), p. 147. But not all the signatory Powers have as yet ratified the Convention, ratification having been given hitherto only by Great Britain, Austria-Hungary, Belgium, Brazil, Bulgaria, Denmark, France, Germany, Japan, Mexico, Monaco, Holland, Norway, Portugal, Roumania, Russia, Spain, Sweden and Turkey; and Tunis acceded to it. Italy has reserved ratification on account of her relations with the Marconi Wireless Telegraphy Co.]

[Sidenote: Radio-telegraphy between ships at sea.]

§ 287_b_. To secure radio-telegraphic communication between such ships at sea as possess installations for wireless telegraphy, an Additional Convention[589] to that mentioned above in § 287_a_ was signed on November 3, 1906, by all the Powers who signed the forementioned Convention except by Great Britain, Italy, Japan, Mexico, Persia, and Portugal. According to this additional Convention all ships at sea which possess radio-telegraphic installations are compelled to exchange radio-telegrams reciprocally at all times without regard to the particular system of radio-telegraphy adopted.

[Footnote 589: See Martens, N.R.G. 3rd Ser. III. (1910), p. 158. But this Convention likewise has not yet been ratified by all the signatory Powers.]

It is to be hoped that in time all the Powers will accede to this Additional Convention, for its stipulation is of great importance in cases of shipwreck. If ships at sea can refuse to exchange radio-telegrams, it is impossible for them to render one another assistance. It ought not to be possible for the following case[590] to occur, to which attention was drawn at the Berlin Conference by the delegate of the United States of America:--The American steamer _Lebanon_ had received orders to search the Atlantic for a wrecked vessel which offered great danger to navigation. The _Lebanon_ came within communicating reach of the liner _Vaderland_, and inquired by wireless telegraphy whether the _Vaderland_ had seen the wreck. The _Vaderland_ refused to reply to this question, on the ground that she was not permitted to enter into communication with a ship provided with a wireless apparatus other than the Marconi.

[Footnote 590: See Hazeltine, "The Law of the Air" (1911), p. 101.]

IX

THE SUBSOIL BENEATH THE SEA BED

[Sidenote: Five rules concerning the subsoil beneath the Sea Bed.]

§ 287_c_. The subsoil beneath the bed of the Open Sea requires special consideration on account of coal or other mines, tunnels, and the like, for the question is whether such buildings can be driven into that subsoil at all, and, if this can be done, whether they can be under the territorial supremacy of a particular State. The answer depends entirely upon the character in law of such subsoil. If the rules concerning the territorial subsoil[591] would have analogously to be applied to the subsoil beneath the bed of the Open Sea, all rules concerning the Open Sea would necessarily have to be applied to the subsoil beneath its bed, and no part of this subsoil could ever come under the territorial supremacy of any State. It is, however, submitted[592] that it would not be rational to consider the subsoil beneath the bed of the Open Sea an inseparable appurtenance of the latter, such as the subsoil beneath the territorial land and water is. The rationale of the Open Sea being free and for ever excluded from occupation on the part of any State is that it is an international highway which connects distant lands and thereby secures freedom of communication, and especially of commerce, between such States as are separated by the sea.[593] There is no reason whatever for extending this freedom of the Open Sea to the subsoil beneath its bed. On the contrary, there are practical reasons--taking into consideration the building of mines, tunnels, and the like--which compel the recognition of the fact that this subsoil can be acquired through occupation. The following five rules recommend themselves concerning this subject:--

[Footnote 591: See above, §§ 173, 175.]

[Footnote 592: See Oppenheim in Z.V. II. (1908), p. 11.]

[Footnote 593: See above, § 259.]

(1) The subsoil beneath the bed of the Open Sea is no man's land, and it can be acquired on the part of a littoral State through occupation, starting from the subsoil beneath the bed of the territorial maritime belt.

(2) This occupation takes place _ipso facto_ by a tunnel or a mine being driven from the shore through the subsoil of the maritime belt into the subsoil of the Open Sea.

(3) This occupation of the subsoil of the Open Sea can be extended up to the boundary line of the subsoil of the territorial maritime belt of another State, for no State has an exclusive claim to occupy such part of the subsoil of the Open Sea as is adjacent to the subsoil of its territorial maritime belt.

(4) An occupation of the subsoil beneath the bed of the Open Sea for a purpose which would endanger the freedom of the Open Sea is inadmissible.

(5) It is likewise inadmissible to make such arrangements in a part of the subsoil beneath the Open Sea which has previously been occupied for a legitimate purpose as would indirectly endanger the freedom of the Open Sea.

If these five rules are correct, there is nothing in the way of coal and other mines which are being exploited on the shore of a littoral State being extended into the subsoil beneath the Open Sea up to the boundary line of the subsoil beneath the territorial maritime belt of another State. Further, a tunnel which might be built between such two parts of the same State--for instance, between Ireland and Scotland--as are separated by the Open Sea would fall entirely under the territorial supremacy of the State concerned. On the other hand, for a tunnel between two different States separated by the Open Sea special arrangements by treaty would have to be made concerning the territorial supremacy over that part of the tunnel which runs under the bed of the Open Sea.

[Sidenote: The proposed Channel Tunnel.]

§ 287_d_. Since there is as yet no submarine tunnel in existence, it is of interest to give some details concerning the project of a Channel Tunnel[594] between Dover and Calais, and the preliminary arrangements between France and England concerning it. Already some years before the Franco-German War the possibility of such a tunnel was discussed, but it was not until 1874 that the first preliminary steps were taken. The subsoil of the Channel was geologically explored, plans were worked out, and a shaft of more than a mile long was tentatively bored from the English shore. And in 1876 an International Commission, appointed by the English and French Governments, and comprising three French and three English members, made a report on the construction and working of the proposed tunnel.[595] The report enclosed a memorandum, recommended by the Commissioners to be adopted as the basis of a treaty between Great Britain and France concerning the tunnel, the juridically important articles of which are the following:--

[Footnote 594: See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G. XV. (1908), pp. 50-77; and Liszt, § 26.]

[Footnote 595: See Parliamentary Papers, C. 1576, Report of the Commissioners for the Channel Tunnel and Railway, 1876.]

(Article 1) The boundary between England and France in the tunnel shall be half-way between low-water mark (above the tunnel) on the coast of England, and low-water mark (above the tunnel) on the coast of France. The said boundary shall be ascertained and marked out under the direction of the International Commission to be appointed, as mentioned in article 4, before the Submarine Railway is opened for public traffic. The definition of boundary provided for by this article shall have reference to the tunnel and Submarine Railway only, and shall not in any way affect any question of the nationality of, or any rights of navigation, fishing, anchoring, or other rights in, the sea above the tunnel, or elsewhere than in the tunnel itself.

(Article 4) There shall be constituted an International Commission to consist of six members, three of whom shall be nominated by the British Government and three by the French Government....

* * * * *

The International Commission shall ... submit to the two Governments its proposals for Supplementary Conventions with respect--(_a_) to the apprehension and trial of alleged criminals for offences committed in the tunnel or in trains which have passed through it, and the summoning of witnesses; (_b_) to customs, police, and postal arrangements, and other matters which it may be found convenient so to deal with.

(Article 15) Each Government shall have the right to suspend the working of the Submarine Railway and the passage through the tunnel whenever such Government shall, in the interest of its own country, think necessary to do so. And each Government shall have power, to be exercised if and when such Government may deem it necessary, to damage or destroy[596] the works of the tunnel or Submarine Railway, or any part of them, in the territory of such Government, and also to flood the tunnel with water.

[Footnote 596: This stipulation was proposed in the interest of defence in time of war. As regards the position of a Channel Tunnel in time of war, see Oppenheim in Z.V. II. (1908), pp. 13-16.]

In spite of this elaborate preparation the project could not be realised, since public opinion in England was for political reasons opposed to it. And although several times since--in 1880, 1884, 1888, and 1908--steps were again taken in favour of the proposed tunnel, public opinion in England remained hostile and the project has had for the time to be abandoned. It is, however, to be hoped and expected that ultimately the tunnel will be built when the political conditions which are now standing in the way of its realisation have undergone a change.