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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.)

114

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 a 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.

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.)

114

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 a 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

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