XII, ch. 6; 1 Pédelièvre, Nos. 419-443; Pomeroy, §§ 91-123; 2 P.-Fodéré, Nos. 781-833; 1 and 2 Rivier, 172-217 and 436-442; * Salomon, L'occupation des territoire sans maître (1889); Scaife, in 4 Papers of the Am. Historical Assoc. (1890), No. 3, pp. 269-293; * Scott, Cases, 38-44, 71-74, 9597, 655-674; Snow, Cases, 6-12, 364-373, 393-396; Selossé, Traité de l'annexion (1880), 61-98, 281 ff.; Taylor, §§ 217-227; *1 Twiss, ch. 8, §§ 113-139; Ibid., The Oregon Question (1846); Ullmann (2d ed.), §§ 9298; Vattel, liv. I, §§ 81, 203-210, and liv. II, §8 79-98, 140-151; Walker, Manual, §§ 9-13; 1 Wharton, Digest, §§ 2-3; Wheaton, §§ 161-176; *Westlake, 84-140; Ibid., Chapters, 134-177; Wilson, § 28.

*

I

For additional references, especially on Occupation, see Bonfils (Fauchille), (5th ed.), p. 319; Chrétien, Nos. 142-146; Bulmerincq, in 1 Marquardsen, 50; Gareis, § 70; Grotius, lib. II, c. 9; Hall (5th ed.), 116118; Heffter, § 72; Holtzendorff, in 2 Handbuch, 274-79; Klüber, § 140; 2 Mérignhac, 449-450; * Moore, § 89; *1 Oppenheim, 88 244-47; * I Phillimore, §§ 284-95; 2 P.-Fodéré, Nos. 850-66; 1 Rivier, 217-220; Ullmann (2nd ed.), § 100.

Colonial Protectorates, Hinterland Spheres of Influence, etc. —- Bonfils (Fauchille), Nos. 558-561; * Bry, Nos. 169-171; *Despagnet, Essai sur protectorat (1896), 218-277; Fiore, in 14 R. D. I. P. (1907), 148 ff.; Gairal, Le protectorat int., 267 ff.; Hall (5th ed.), 125-131; *Ibid., Foreign Powers and Jurisdiction of the British Crown, 204-238; Lawrence, Principles (3d ed.), §§ 102-104; Ibid. (4th ed.), §§ 79-81; 2 Mérignhac, 435 ff.; 2 Nys, 80-108; G. Meyer, Die staatsrechtliche Stellung der deutschen Schutzgebiete (1888); Perrinjaquet, in 16 R. D. I. P. (1909), 316 ff.; De Pouvourville, in 6 R. D. I. P. (1889), 113 ff.; 1 Rivier, 89-91; 177-179; *Stengel, Die staats und völkerrechtliche Stellung der deutschen Colonien (1886), and Deutsche Colonialstaatsrecht (1887); *1 Westlake, 119-140; Ibid., Chapters, 177-189.

CHAPTER XIII

TERRITORIAL WATERS

191. (1) The Marginal Sea. The territory of a State bordering on the open sea also includes the Territorial or Marginal Sea, which is usually held to be a marine league measured from the low-water mark.1

192. History of the Marine League. The three-mile limit, or marine league, was originally based upon the principle first clearly enunciated by Bynkershoek in the early part of the eighteenth century that the territorial sovereignty or jurisdiction of the State is limited by its power to defend its seacoast by force of arms potestatem terræ finiri ubi finitur armorum vis, i.e. quousque tormenta exploduntur. The range of the cannon of that day seems to have been about a marine league or three nautical miles, and this distance became the generally recognized limit of the marginal sea in the course of the eighteenth century. During the nineteenth century the rule of the marine league appears to have completely supplanted the principle upon which it

That the jurisdiction of a State over its littoral or marginal sea is based upon territorial sovereignty is denied by some good authorities on what appear to be insufficient grounds. For a criticism of their views, see especially Heilborn, System, 37-57; 1 Oppenheim, § 185; Schücking, Das Küstenmeer, 14-20; and I Westlake, 191-192.

For the argument against the doctrine of territorial sovereignty as applied to territorial waters, see De Lapradelle, in 5 R. D. I. P. (1898), 264 ff. For the views of leading authorities on this point, see De Lapradelle, op. cit., 271-272.

Jurisdiction over territorial waters may, of course, include property rights, but it is not essentially based upon property, as many of the older authorities supposed. The low-water mark is usually taken as the starting point for the measurement of the marine league, but there is a considerable variety of opinion on this point. See, e.g. Imbart de Latour, La mer territoriale, 20 ff.; 1 Nys, 502-505; and 1 Oppenheim, § 186. The low-water mark has the sanction of many treaties, the British Territorial Waters Jurisdiction Act of 1876, and of the Institute of International Law. See 13 Annuaire, 329.

* De dominio maris (1702), ch. 2. Cf. the vaguer statements of Grotius (lib. II, cap. 3, 88 13 and 14), and Vattel (liv. I, ch. 23, § 289).

was originally based; and, instead of being extended to meet the demands of new modern guns of ever increasing range, it has always remained the same until it is now apparently as fixed and unalterable as were the laws of the Medes and the Persians. And this in spite of the protests of publicists and the efforts of statesmen.3

There can be no doubt that an extension of the three-mile limit for all territorial purposes would be highly desirable. The marine league no longer satisfies the needs of modern requirements for defense. An extension to meet these requirements is certainly favored by an ever increasing number of publicists, and has been strongly recommended by the Institute of International Law.4

193. Right of Innocent Passage. Though the marginal sea is undoubtedly territorial, "all ships without distinction have the right of innocent passage through the territorial sea, saving to belligerents the right of regulating such passage and of forbidding it to any ship for the purpose of defense, and saving to

3 The great majority of modern publicists favor an extension of the three-mile limit, but some of them do not distinguish clearly between the present threemile rule and the principle upon which it was originally based. For references, see the Bibliography at the end of this chapter.

In 1806 the Government of the United States attempted to obtain a recognition of a six-mile limit from England, but refused to admit a claim of six miles made by Spain to the Cuban coast in 1863 and 1864. Secretary Seward, in 1 Moore, § 146. In 1864 Secretary Seward proposed a zone of five miles to the British Legation at Washington. I Moore, § 152. The British Government has, however, always insisted upon the three-mile limit. Norway claims four miles. See Aubert, in 1 R. D. I. P. (1894), 429 ff.

The three-mile limit has the sanction of a considerable number of State Acts and Treaties, e.g. the Russian Prize Rules of 1869, the British Territorial Waters Acts of 1876, French legislation in 1866 and 1888, the North Sea Fisheries Convention of 1882, the Convention of Constantinople relating to the Suez Canal of 1888, and the Convention of 1893 concerning the Behring Sea. For additional treaties, ee 1 Calvo, § 356; and 1 Nys, 509.

4 In 1894, the Institute of International Law, after an exhaustive discussion of this question, voted by a decisive majority (there was no division of opinion as to the desirability of extending the three-mile limit) in favor of a zone of six marine miles for all territorial purposes. It even permitted the extension of this zone for putposes of neutrality beyond six miles in time of war, provided the range of cannon shot were not exceeded. See 13 Annuaire, 329, or Tableau décennal (1894–1904), 340 ff.

The maritime Powers were urged to hold an International Congress for the adoption of these or similar rules, but no such Congress has even been held. It is highly desirable that this recommendation by the Institute be acted upon.

5

neutrals the right of regulating the passage of ships of war of all nationalities through the said sea." But such vessels, if merchantmen, are probably liable in principle to the jurisdiction of the riparian State."

194. Exercise of Authority beyond the Marine League. There is considerable authority and practice in favor of the view that for purposes of defense and in order to execute its revenue

Art. 5 of the Rules adopted by Institute of International Law. See 13 Annuaire, 329. Translated by 1 Westlake, 189.

This is unquestionably a rule of International Law based on the universal practice of nations. It, of course, does not include cabotage or the right to engage in the coasting trade.

Art. 7 declares that "ships which pass through territorial waters must conform to the special regulations published by the littoral State in the interest and for the safety of the navigation or as a matter of maritime police." As Westlake (I, p. 190) points out: "The right of the littoral State to publish regulations in the interest of navigation does not include a right to exact payment of dues, by ships not entering its harbors, under pretext of providing the navigation with necessary lights and buoys." See also 1 Oppenheim, § 188.

There is a difference of opinion as to whether warships enjoy the right of innocent passage through the territorial waters. They certainly have the customary right of passage through such portions of the marginal sea as constitute international highways. See 1 Oppenheim, §§ 188 and 449. Hall (p. 159 of 5th ed.) denies that the right of innocent passage extends to warships. For a refutation of this view, see Westlake (I, 192), who points out that the "ship of war as well as the merchantman may have a lawful errand beyond the littoral sea in question," which "in the course of its lawful voyage it may be difficult for it to avoid.”

Oppenheim (I, § 449) is of the opinion that “a State is in strict law always competent to exclude men-of-war from all or certain of its ports and from those territorial waters which do not serve as highways for international traffic."

This is undoubtedly the law in respect to ports and international highways. But Oppenheim (I, § 188) elsewhere admits that "as a rule, however, no State actually opposes in time of peace the passage of foreign men-of-war and other public vessels through its maritime belt," and that "a usage has grown up by which such passage, if in every way inoffensive and without danger, shall not be denied in time of peace." The authorities are divided on this point. Art. 6 of the Rules adopted by the Institute (see supra) declares: "Crimes and offences committed on board foreign ships passing through the territorial sea by persons on board of them against persons or things on board the same ship, are as such outside the jurisdiction of the littoral State, unless they involve a violation of the rights or interests of the littoral State or of its subjects not forming part of the crew or passengers.”

This is a good practical rule and it represents the prevailing custom, but it may be doubted whether it is a principle of International Law. As in the analagous case of jurisdiction over foreign merchantmen in port (see infra, § 211), it would seem that there is no good reason for denying local jurisdiction over passing vessels in principle. The British Territorial Waters Act of 1878 claims such jurisdiction. See especially Hall (5th ed.), 204-206; 1 Oppenheim, § 189; and 1 Westlake, 254 ff. On the Immunity of Warships from Local Jurisdiction, see, infra, § 209.

I

and sanitary laws, a State may exercise a limited authority beyond the three-mile limit. Such limited authority or jurisdiction has been asserted and exercised, at least by Great Brit ain, the United States, and France; and, whether on the basis of comity 10 or of law, appears to encounter no opposition on the

8

7 The British Hovering Acts (9 Geo. II, c. 35 and 24 Geo. III, c. 47) of 1736 and 1784 asserted a jurisdiction, for revenue purposes and for the prevention of "hovering" on the coast in a menacing and annoying manner, to a distance of four leagues from the shore. They have long since been repealed. Atlay (note 179 a to Wheaton) tells us that "the present customs legislation [of Great Britain] makes a distinction as regards the extent of jurisdiction claimed for revenue purposes between ships belonging to British subjects and ships belonging to foreigners." While asserting a jurisdiction extending three leagues from the shore in case of British subjects, it only claims one league if the owners are not British. See Customs Act of 1876, 39 and 40 Vict., c. 36. "British Acts of Parliament require vessels liable to quarantine or having infectious diseases on board to observe certain regulations when within two leagues of the coast of the United Kingdom, but they authorize no enforcement of those regulations except by the recovery of a penalty from the captain when the vessel arrives within the territory," 1 Westlake, 152.

For a very full discussion and defense of the British Hovering and Quarantine or Public Health Acts, see 2 Piggott, Nationality, 40-60.

8 The revenue laws of the United States, embodied in the Act of 1799 (§ 27) and incorporated into the Revised Statutes (sec. 2760), direct the officers of the revenue cutters to "go on board all vessels which arrive within the United States or within four leagues thereof, if bound for the United States, and search and examine the same, and every part thereof, and [they] shall demand, receive, and certify the manifests required to be on board certain vessels, . . . and [they] shall remain on board such vessels until they arrive at the port or place of their destination." 1 Moore, § 151, pp. 725-726.

It should be especially noted that the law does not authorize the seizure of a foreign vessel beyond the three-mile limit, as has sometimes been asserted. It merely prescribes visit and search. "The Statute (of 1797) may well be construed to mean only that a foreign vessel, coming to an American port, and there seized for a violation of revenue regulations committed out of the jurisdiction of the United States, may be confiscated; but that, to complete the forfeiture, it is essential that the vessel shall be bound to and shall come within the territory of the United States, after the prohibited act. The act done beyond the jurisdiction is assumed to be part of an attempt to violate the revenue laws within the jurisdiction." Dana's note 108 to Wheaton, § 179, p. 258. See also 1 Moore, § 151, p. 726.

9

It appears that France authorizes visit and search for the enforcement of revenue laws to a distance of two myriameters or about four leagues. 2 Mérignac, 387; 1 Nys, 514; and 2 P.-Fodéré, No. 173.

The French Government insisted that the battle between the Alabama and Kearsarge should not take place within the range of cannon shot from the coast. 1 Moore, § 150.

10 Twiss (I, § 190) remarks on this head: "Such laws and regulations, however, have no foundation of strict right against other nations. . . . It is only under the Comity of Nations in matters of trade and health that a State can venture to enforce any portion of her Civil Law against foreign vessels, which have not as yet come