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limore, §§ 155-171; Pomeroy, §§ 129-138; 2 P.-Fodéré, Nos. 682-747; I
Piédelièvre, Nos. 376-384; I Rivier, 142, 221-229; * Schuyler, Am.
Diplomacy, 265-366; Snow, Cases, 32-41; Taylor, §§ 233-241; I Twiss,
§ 145;
* Ullmann (2d ed.), § 105; Vattel, liv. II, §§ 123-134;
lake, ch. 7, pp. 142-159; 1 Wharton, Digest, § 30; * Wheaton, §§ 192-
205; Ibid., History, 498-517; Wilson, §§ 39, 40; Woolsey, § 62.

* I West

CHAPTER XIV

THE OPEN SEA

THE FREEDOM OF THE OPEN SEA

202. History of the Freedom of the Open Sea. — During Antiquity and the early Middle Ages, the open sea was theoretically free and common to the use of all mankind,' though by no means free from depredation by pirates even under the rule of the Roman Empire. But owing to the universal prevalence of piracy and the revival of commerce during the Later Middle Ages, the leading maritime States of Europe claimed territorial jurisdiction over adjacent seas. Thus Venice and Genoa respectively laid claim to the Adriatic and the Ligurian Seas, Portugal regarded herself as sovereign over the whole of the Indian and the southern portion of the Atlantic Ocean, and Spain preferred the modest claim of sovereignty over the Pacific Ocean and the Gulf of Mexico. Sweden and Denmark were apparently satisfied with the Baltic and the Arctic regions, but England claimed the Narrow Seas, the North Sea, and the Atlantic from Cape Finisterre in Spain to Stadland in Norway.

These enormous pretentions led to a great controversy2 on the

This was at least the view of the Roman jurists, who are supposed to have derived the doctrine from the Rhodian Laws of the Sea.

2 Thus Gentilis defended the Spanish and English claims in a work entitled Advocatio Hispanica (1613). In the same year William Welwood defended the English claims in a work entitled De dominio maris. In 1635 Sir John Burroughs published his Sovereignty of the British Seas. In 1676 Sarpi published a book in defense of the claims of Venice to the Adriatic. The work of Grotius written in behalf of Holland was directed against the exorbitant claims of Portugal. Selden's work (published in 1635), was an official defense of the claims of England to the northern seas. I Oppenheim, § 250. See Nys, Les origines, 379-387, for additional information regarding this great controversy.

Very interesting is the reply of Queen Elizabeth to the Spanish envoy Mendoza who complained (in 1580) of the intrusion of English vessels in East Indian waters.

freedom of the sea to which the most notable contributions were the Mare liberum by Hugo Grotius, in 1609, and the Mare clausum by John Selden, written in 1618 but not published before 1635. The main contention of Grotius was that the sea is by nature incapable of appropriation or occupation. This was denied by Selden, who claimed that portions of the sea had actually been appropriated, especially by England.

The final victory for the freedom of the open sea may be said to have been won3 by 1824, when Great Britain1 joined with the United States in protesting against the claim of Russia to the exclusive use of the waters of the Behring Sea within 100 Italian miles of the Alaskan and Siberian coasts, or islands belonging to Russia.5

The great queen refused to admit any right in Spain to debar her subjects from trade, or from "freely navigating that vast ocean, seeing the use of the sea and air is common to all; neither can a title to the ocean belong to any people or private persons, forasmuch as neither nature nor public use and custom permitteth any possession thereof." Cited by Hall (6th ed.), p. 143.

3 Special mention should be made of the important book by Bynkershoek, De dominio maris, published in 1702.

In the early part of the nineteenth century, Great Britain had silently dropped her claim that foreign vessels should "strike their topsail and take in their flag, in acknowledgment of His Majesty's sovereignty within His Majesty's seas" (which were supposed to extend to Cape Finisterre). Cited by Hall, (6th ed.), 147; and 1 Oppenheim, § 249.

5 This claim, abandoned by Russia in 1824, was afterward (1886-1893) partly revived by the United States in respect to the seal fisheries; but it is a mistake to assert, as has frequently been done, that the United States Government based its claim mainly on the right of mare clausum.

True, this was the view taken by Judge Dawson of the District Court of Alaska (the Onward, etc.), and Chief Justice Fuller assumed (in the Sayward case) that the seizures were made on the ground of mare clausum; but Mr. Phelps (our minister at London) admitted that this so-called right was not applicable to the case, and Secretary Blaine, referring to the mare clausum, declared: "The Government has never claimed it and never desired it. It expressly disavows it." I Moore, Digest, 903. His main argument was that the Canadian vessels which had been seized and confiscated were engaged in a pursuit that was in itself contra bonos mores, though in one of his notes to Lord Salisbury, he also asserted for the United States a claim to jurisdiction derived from Russia north of the 60th parallel of north latitude.

The main argument of the United States was, however, that of property in the seals and consequent right of protection on the high seas. This claim was based on the well-known fact that the seals habitually resort, for breeding purposes, to the Pribyloff Islands, belonging to the United States, from whence they go out on the high seas in search of food, and to which they regularly return during successive years.

The Court of Arbitration, to which all questions relating to the controversy were

203. The Freedom of the Open Sea. It may, therefore, now be regarded as a universally accepted rule of International Law that the open sea is free for the common use of all nations. Being practically insusceptible of effective occupation, it cannot be appropriated by any sovereignty or subjected to any jurisdiction; being indispensable for free intercourse, more particularly as an international highway, it is free and common to all. It is not so much res nullius as res communis omnium. The freedom of the open sea has three main practical consequences:

204. (1) The Right of Free Navigation. Collisions. The right of free navigation has certain necessary restrictions. For example, to prevent collisions, certain regulations respecting signs, signals, etc., are prescribed and observed. But these derive

referred, decided (in 1893) in favor of Great Britain on all points; but, for the better safeguarding of the seals, it drew up a series of rules which have unfortunately remained largely ineffective, owing mainly to the failure of Japan and Russia to agree to similar regulations.

Bonfils

On the Behring Sea Controversy, see Barclay, in 25 R. D. I., 417 ff.; (Fauchille), Nos. 505 and 965 (see p. 291 of 5th ed. for references); 1 Cobbett, 124 ff.; Geffcken, in 22 R. D. I., 230 ff., and 53 Fortnightly Rev., (1890), 741 ff.; Engelhardt, in 26 R. D. I., 388, and 5 R. D. I. P. (1899), 193 and 347 ff.; *Henderson, in Am. Diplomatic Questions, 3-61; Lawrence, Principles (3d ed.), § 106; Ibid. (4th ed.), 86; Knott, in 27 Am. Law. Rev., 684 ff.; *1 Moore, Digest, § 172; F. de Martens and Renault, in 1 R. D. I. P. (1894), 32 ff. and 44 ff.; *Snow, Cases, 521528, and Am. Diplomacy, 471-509; Scott, Cases, 443-449, for the case of La Ninfa; Walker, Science, 175-204.

For good brief accounts of the History of the Freedom of the Open Sea, in international theory and practice, see Bonfils (Fauchille), Nos. 573-576; *Hall (6th ed.), 140-151; 2 Nys, 135-139; and 1 Oppenheim, §§ 248-251. For a complete account of the Behring Sea Controversy, see the Proceedings of the Tribunal Arbitration at Paris (1895) in 15 vols.

The open sea (or "high seas") has been well defined as "the ocean, and all connecting arms and bays or other extensions thereof, not within the territorial limits of any nation whatever." Field, Code, Art. 53.

It includes such bodies of partially land-locked water as the Black Sea and the Sea of Marmora, which are connected with the open sea by navigable straits open to international navigation; but it does not include the Sea of Azov, which, though connected with the Black Sea by a navigable strait, is considered Russian territory. 1 Oppenheim, § 252.

'Such regulations are found in the laws of most countries, e.g. the British Merchant Shipping Act of 1873, the French Regulations of 1897, and the Regulations decreed by the Belgium King in 1850 which have been adopted by various maritime States. For the French text of these rules, see Perels (French trans., 1884), 373–380. The Institute of International Law adopted a " Project for a Uniform Law of Maritime Collisions" in 1888. See Tableau,91-93. The first rule is that if a collision has been caused by a fault, damages fall upon the ship on board of which the fault has

their origin and sanction from municipal rather than International Law.

205. (2) Free Fishing on the High Seas. - Freedom of fishing on the high seas a right which can only be limited through an international servitude or by treaty. Thus, the fisheries on the North Sea are regulated by the Hague Convention of 1882, and the Tribunal which arbitrated the Behring Sea Controversy adopted a series of regulations which were intended to prevent the extermination of the seals in that region.10

206. (3) Submarine Cables.-The right of laying and protecting submarine cables. In accordance with a wish expressed by the Institute of International Law in 1879" that the destruction

been committed. In 1889 a Conference of leading maritime States met at Washington to consider this subject. Its discussions have had a great influence upon subsequent legislation.

On Collisions, see especially: * Bonfils (Fauchille), Nos. 578-580; * Bry, No. 180; 2 Fiore, Nos. 740-742; 2 Mérignhac, 523 ff. and 552; 2 Nys, 171-174; 1 Oppenheim, § 265; Perels, §§ 19-20 and pp. 373 ff.; 5 P.-Fodéré, Nos. 2362-2375.

For the text of an International Convention for the Purpose of Establishing Uniformity in Certain Rules Regarding Collisions," see Supplement to 4 A. J. (1910), 121-125. For valuable editorial comment, see 4-6 A. J. (1910–12), 412 ff., 192 f., and 488 ff., respectively.

It has been claimed that there is an international legal obligation of assistance in case of collision, shipwreck, etc. There is undoubtedly a strong moral obligation, and some countries, e.g. the United States, France, and England, have made it a legal obligation in municipal law.

8 Thus, until 1904, the French claimed to have an international servitude in the fisheries upon the banks of Newfoundland.

9 See Bonfils, No. 582; 1 Oppenheim, § 282; and 5 P.-Fodéré, Nos. 2457-2458. 10 See supra, note on p. 216. For the text of these regulations, which unfortunately have not been adopted by the other Powers, excepting Italy, see 1 Moore, Digest, § 172, pp. 914-916.

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On Fishery Rights on the Open Sea and in Territorial Waters (with special reference to the N. E. Fisheries), see 1 Cobbett, 153 ff.; Elliot, The U.S. and the N.E. Fisheries (1887); Isham, The Fishery Question (1887); *Lawrence, Principles (3d ed.), § 111; *1 Moore, Digest, §§ 163 ff.; *U.S. v. Great Britain (1910-case of Atlantic Coast Fisheries, in 4 A. J., 218-274, 948 ff.).

A very curious exception to the rule laid down in the text is the British pearl fishery off Ceylon which extends to a distance of twenty miles from land. This is a "claim to the products of certain submerged portions of land which have been treated from time immemorial by the successive rulers of the island as subjects of property and jurisdiction." Hall, Foreign Jurisdiction of the British Crown, 243 n. Westlake (I, 186) regards it as 'an occupation of the bed of the sea." On the question whether the bed of the sea can be occupied, see Oppenheim, in 2 Zeitschrift, 1-16; 1 Piggott, Nationality, 25-28; and Robin, in 15 R. D. I. P. (1908), 50 ff. 11 Tableau, 86; or 4 Annuaire, 394.

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