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SITUATION IV.

STRATEGIC AREA ON HIGH SEAS.

There is war between States X and Y. Other States are neutral. A merchant vessel of the United States is proceeding to a port of State Z and is 10 miles from any land, though at that distance from the coast of State X. A cruiser of State X approaches and warns the master of the merchant vessel that he must keep farther off the coast as this water is within the strategic area which has been proclaimed by the Government of X and is closed to all vessels.

The master appeals to the commander of a cruiser of the United States to escort him through this area. The voyage would not bring the vessels within 5 miles of the coast of State X.

What should the commander do?

SOLUTION.

The commander should decline to escort the merchant vessel through the strategic area.

He should advise the master of the merchant vessel to keep clear of the strategic area.

NOTES.

Opinion of Grotius.-Grotius very early advocated some form of control by a fleet over the area which it commanded. The words of Grotius are translated by Whewell as follows:

The empire of a portion of the sea is, it would seem, acquired in the same way as other lordship; that is, as above stated, as belonging to a person, or as belonging to a territory: Belonging to a person, when he has a fleet which commands that part of the sea; belonging to a territory, in so far as those who sail in that part of the sea can be compelled from the shore as if they were on land. (De Jure Belli ac Pacis, L. II, c. III, sec. 2.)

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Phillimore in a measure follows Grotius. He says:

The portion of sea actually occupied by a fleet riding at anchor is within the dominion of the nation to which the fleet belongs so long as it remains there; that is, for all purposes of jurisdiction over persons within the limits of the space so occupied. The like principle is applicable to the portion of territory occupied by an army, a fleet being considered as a maritime army.

This proposition is of course not to be considered without reference to the place of anchorage: A French fleet permitted to anchor in the Downs, or an English fleet at Cherbourg, would only have jurisdiction over the subjects of the respective countries which happen to be within the limits of their temporary occupation of the water. Both in the case of the fleet and the army there is, according to the theory of the law, a continuation or prorogation of the territory to which they belong. (International

Law, CCIII.)

Area of war. The area of hostilities is generally regarded as limited to the belligerent jurisdiction and the open sea. On the open sea neutrals are liable to the consequences if they enter a field in which belligerent operations are at the moment going on, e. g., come into range during an actual battle between the fleets of the opposing belligerents. Otherwise, it has been generally supposed that the high seas were free to innocent neutral vessels in the time of war as in the time of peace, though in the time of war neutral vessels might be liable to visit and search.

Blockaded area. One of the other restrictions upon the movements of neutral vessels is imposed in the establishment of blockade. The area of operations of the blockading force is under the provisions of the declaration of London of 1909, regarded as closed to neutral vessels under risk of seizure. It is not always possible to define the limits of this area. Formerly the area was not limited under American doctrine, but a seizure might be made at any point outside of neutral jurisdiction if t vessel were bound for a blockaded port. An attempt to explain and make more definite the area was made at the International Naval Conference in 1908-9.

ARTICLE 17. Neutral vessels are not to be captured for breach of blockade except within the area of operations of the ships of war detailed to render the blockade effective.

The other conditions of the liability of a vessel to capture is that she be found within the radius of action of the warships assigned to maintain the blockade effective; it is not enough that she should be on her way to the blockaded port.

As for what constitutes the radius of action, an explanation has been given which has been universally accepted, and which is reproduced here as furnishing the best commentary on the rule of article 17:

"When a Government decides to undertake blockading operations against some part of the enemy coast it assigns a certain number of warships to take part in the blockade, and intrusts the command of these to an officer whose duty is to insure by this means the effectiveness of the blockade. The commander of the naval force thus formed distributes the ships placed at his disposal according to the configuration of the coast and the geographical position of the blockaded places, and gives each ship instructions as to the part which she has to play, and especially as to the zone intrusted to her surveillance. It is all of the zones of surveillance together, organized in such manner that the blockade is effective, that form the radius of action of the blockading naval force.

"The radius of action so understood is closely connected with the effectiveness of the blockade, and also with the number of ships employed on it.

"Cases may occur in which a single ship will be enough to maintain a blockade effective for instance, at the entrance of a port, or at the mouth of a river with a small estuary-on condition as circumstances allow the blockading ship to stay near enough to the entrance. In that case the radius of action is itself near the coast. But, on the contrary, if circumstances force her to remain far off, it may be that one ship would not be enough to secure effectiveness, and to maintain this it will then be necessary to add other ships. From this cause the radius of action becomes wider and more remote from the coast. It may therefore vary with circumstances and with the number of blockading ships, but it will always be limited by the condition that effectiveness must be assured.

"It does not seem possible to assign limits to the radius of action in definite and unvarying figures any more than it is possible to fix beforehand and invariably the number of ships necessary to assure the effectiveness of any blockade. These points must be determined according to circumstances in each particular case of a blockade; perhaps it would be possible to do this at the time of the declaration.

"It is evident that a blockade will not be established in the same way on a defenseless coast and on a coast possessing all modern means of defense. There would be no question in the

latter case of applying a rule such as that which formerly required that ships should be stationary and sufficiently close to the blockaded places. The position would be too dangerous for the ships of the blockading force, which besides now possess more powerful means enabling them to watch effectively a much wider zone than formerly.

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'The radius of action of a blockading naval force may extend somewhat far, but as it depends on the number of ships contributing to the effectiveness of the blockade and is always limited by the condition of effectiveness, it will never reach remote seas upon which merchant vessels sail which are perhaps destined for the blockaded ports, but whose destination is contingent on the changes which circumstances may produce in the blockade during their voyage. To sum up, the idea of the radius of action joined to that of effectiveness as we have tried to define it-that is to say, including the zone of operations of the blockading forces-allows the belligerent to exercise in an effective manner the right of blockade which is admitted to be his, and, on the other hand, it saves neutrals from exposure to the inconvenience of blockade at a great distance, while it leaves them free to run the risks to which they knowingly expose themselves by approaching points to which access is forbidden by the belligerent." (N. W. C. International Law Topics, 1909, pp. 49-53.)

The definition of the area of operations of a blockade even if in such manner as to include a large range of high sea is regarded as a legitimate act of war, and the belligerent right is respected. The principle which is recognized is that the belligerent has the right to put pressure upon his opponent without interference by neutrals. It is undoubtedly an inconvenience and may be a loss to neutral commerce to be excluded from the blockaded area, but it is a recognized consequence of war.

Mined areas.-Warlike operations in recent years have been extended through the use of new means of warfare. The introduction of submarine mines as a means of warfare immediately gave rise to the question of the area within which they might lawfully be used. The use of mines during the Russo-Japanese War in 1904-5 gave practical demonstration of the necessity of determining the regulation of the use of mines. Dr. Lawrence, then lecturer on international law at the British Royal Naval College, writing in 1904, when the events of the RussoJapanese War were before the world, says:

A discussion on a moot point of neutral procedure when navigating the high seas, leads naturally to a further discussion of certain matters connected with belligerent procedure in the open waters which are part of the common highway of all nations. The question, or rather the group of questions, to which we refer grew out of the sinking of the Japanese battleship Hatsuse by a marine mine on May 15, when she was cruising 10 miles southeast of Port Arthur, and therefore out on the high seas a considerable distance beyond Russian territorial waters. A month before, on April 13, a Russian battleship, the Petropavlovsk, had been destroyed by a Japanese mine or mines. But as the catastrophe took place in the outer roadstead of Port Arthur, and at no very great distance from the shore, it was felt to be a legal, though terrible, incident of warfare. No one disputes the right of belligerents to lay mines in their own territorial waters or those of their foes as a means of strengthening the defenses of harbors or assisting attacks upon them. But when the area of destruction is extended to the high seas, questions of legality immediately arise. The sinking of the Hatsuse was discussed at once by the press of the civilized world. The general impression seems to have been that the Russians created a mine field in the open sea, or deliberately turned mechanical mines adrift in all the waters to which they had access. Under the impression that these views were correct, Russian methods were vehemently denounced and Russian officers charged with a gross violation of international law. In the United States the chorus of condemnation was especially loud; but the American Government wisely refrained from making representations before it was sure of the facts and instructed its naval attachés abroad to inquire into the matter.

After discussing the available information in regard to the use of these mines, Lawrence says:

We pass now from conjecture about fact to discussion about law. Immediately we find ourselves face to face with a difficulty which is serious in all legal systems, and specially serious in that which is called international law. There are no precedents. Mines are not new. They have been used on land since the introduction of gunpowder. But the first to employ them successfully at sea were the Confederates, who mined their harbors and blew up several of the attacking or blockading ships. This was in the American Civil War of 1861-1865; and since that time vast improvements have been introduced in the apparatus of submarine defense. But though mining as an art has been revolutionized, the practice of it has been confined to the ports and territorial waters of belligerent powers. The recent case is the first in which a mine How is an unprecedented situation to be

acted far out at sea.
met in international law?
2d ed., pp. 93–100.)

(War and Neutrality in the Far East,

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