Controversy dominion of the seas. along the whole coast, from Dantzic to Lübeck (m). That the Baltic cannot be considered a closed sea was implicitly recognised by the Powers that signed the Treaty of Copenhagen, 1857, and the subsequent treaties. The controversy, how far the open sea or main ocean, beyond respecting the the immediate vicinity of the coasts, may be appropriated by one nation to the exclusion of others, which once exercised the pens of the ablest and most learned European jurists, can no longer be considered open. Grotius, in his treatise on the Law of Peace and War, hardly admits more than the possibility of appropriating the waters immediately contiguous, though he adduces a number of quotations from ancient authors, showing that a broader pretension has been sometimes sanctioned by usage and opinion. But he never intimates that anything more than a limited portion could be thus claimed; and he uniformly speaks of 'pars,' or 'portus maris,' always confining his view to the effect of the neighbouring land in giving a jurisdiction and property of this sort (n). He had previously taken the lead in maintaining the common right of mankind to the free navigation, commerce, and fisheries of the Atlantic and Pacific Oceans, against the exclusive claims of Spain and Portugal, founded on the right of previous discovery, confirmed by possession and the papal grants. The treatise 'De Mare Libero' was published in 1609. The claim of sovereignty asserted by the kings of England over the British seas was supported by Albericus Gentilis in his Advocatio Hispanica' in 1613 (o). In 1635, Selden published his 'Mare Clausum,' in which the general principles maintained by Grotius are called in question, and the claim of England more fully vindicated than by Gentilis. The first book of Selden's celebrated treatise is devoted to the proposition that the sea may be made property, which he attempts to show, not by reasoning, but by collecting a multitude of quotations from ancient authors, in the style of Grotius, but with much less selection. He nowhere grapples with the arguments by which such a vague and extensive dominion is shown to be repugnant to the law of nations. And in the second part, which indeed is the main object of his work, he has recourse only to proofs of usage and of positive compact, in order to show that Great Britain is entitled to the sovereignty of what are called the Narrow Seas. Father Paul (m) Annual Register, vol. xlix.; State Papers, p. 773. (n) De Jur. Bel. ac Pac. lib. ii. cap. 3, §§ 8-13. (0) Cf. Phillipson, Article on Gentilis in Great Jurists of the World (1913), pp. 113, 122 seq.; and Article on Bynkershoek, ibid. pp. 398 seq. Sarpi, the celebrated historian of the Council of Trent, also wrote a vindication of the claim of the Republic of Venice to the sovereignty of the Adriatic (p). Bynkershoek examined the general question, in the earliest of his published works, with the vigour and acumen which distinguish all his writings. He admits that certain portions of the sea may be susceptible of exclusive dominion, though he denies the claim of the English crown to the British seas on the ground of the want of uninterrupted possession. He asserts that there was no instance, at the time when he wrote, in which the sea was subject to any particular sovereign, where the surrounding territory did not also belong to him (q). Pufendorf lays it down, that in a narrow sea the dominion belongs to the sovereigns of the surrounding land, and is distributed, where there are several such sovereigns, according to the rules applicable. to neighbouring proprietors on a lake or river, supposing no compact has been made, "as is pretended," he says, "by Great Britain"; but he expresses himself with a sort of indignation at the idea that the main ocean can ever be appropriated (r). The authority of Vattel would be full and explicit to the same purpose, were it not weakened by the concession, that though the exclusive right of navigation or fishery in the sea cannot be claimed by one nation on the ground of immemorial use, nor lost to others by non-user, on the principle of prescription, yet it may be thus established where the non-user assumes the nature of a consent or tacit agreement, and thus becomes a title in favour of one nation against another (s). On reviewing this celebrated controversy it may be affirmed, Review of the that if those public jurists who have asserted the exclusive right of controversy. property in any particular nation over portions of the sea, have failed in assigning sufficient grounds for such a claim, so also the arguments alleged by their opponents for the contrary opinion must often appear vague, futile, and inconclusive. There are only two decisive reasons applicable to the question. The first is physical and material, which alone would be sufficient; but when coupled with the second reason, which is purely moral, will be found conclusive of the whole controversy. (1) Those things which are (p) Paolo Sarpi, Del Dominio del Mare Adriatico (Venet. 1676). (4) De Dominio Maris, Opera Minora, Dissert V., first published in 1702. Ibid. cap. vii. ad finem. Cf. Phillipson, Article on Bynkershoek, ut sup. pp. 398 seq. (r) De Jure Naturæ et Gentium, lib. iv. cap. 5, § 7. (8) Droit des Gens, liv. i. ch. 23, SS 279-286. As to the maritime police which may be exercised by any particular nation, on the high seas, for the punishment of offences committed on board its own vessels, or the suppression of piracy and the African slave trade, vide supra, pt. ii. ch. ii. pp. 172, 204. The Behring originally the common property of all mankind, can only become the exclusive property of a particular individual or society of men, by means of possession. In order to establish the claim of a particular nation to a right of property in the sea, that nation must obtain and keep possession of it, which is impossible. (2) In the second place, the sea is an element which belongs equally to all men, like the air. No nation, then, has the right to appropriate it, even though it might be physically possible to do so. It is thus demonstrated, that the sea cannot become the exclusive property of any nation. And, consequently, the use of the sea for these purposes remains open and common to all mankind (†). Claims to exercise exclusive jurisdiction over portions of the open sea or high seas-that is, the parts of the ocean lying outside the territorial limits of the maritime nations of the worldlingered on till the first quarter of the nineteenth century. It was the Behring Sea controversy that brought matters to a head. In 1821, when Alaska and the Aleutian Archipelago belonged to Russia, the Emperor Alexander I. prohibited foreign vessels from approaching within a hundred Italian miles of the Alaskan and Siberian coasts and islands belonging to Russia, on the ground that the seas in question constituted a mare clausum by reason of first discovery and possession of the adjacent shores. Great Britain and the United States regarded these waters as part of the open sea, and at once protested against the claim to such maritime dominion. It has already been pointed out that Mr. Adams, the United States Secretary of State, denied the existence of an "exclusive territorial jurisdiction" on the part of Russia, and demanded for American citizens freedom from molestation "beyond the ordinary distance to which the territorial jurisdiction extends," viz., three miles from low-water mark. As a result of the representations made by the United States and Great Britain, Russia abandoned her pretensions, and entered into conventions to that effect with the two countries in 1824 and 1825 respectively (u). In 1867 Alaska became American territory (x). In 1870 the Alaska Commercial Company acquired by lease from the American Government the islands of St. Paul and St. George for the purpose of carrying on the fur-seal fishery. The company's operations were soon extended, and the thriving industry. began to attract Canadian vessels, which did not confine themselves (t) Ortolan, Règles Internationales et Diplomatie de la Mer, tom. i. pp. 120-126. (u) See supra, pp. 272 seq. (x) See supra, p. 274. to the limits that had been imposed by the United States on her citizens. On the complaint of the American sealers, the United States authorities seized, in 1886, three Canadian schooners while fishing about seventy miles from shore, and brought them before the District Court at Sitka for breaking the law which prohibited the killing of fur-seals, without authorization, "within Alaska territory or the waters thereof." The vessels and cargoes were confiscated and the crews sentenced to imprisonment, the judge having held that the territorial waters of Alaska comprised an extensive area 1,500 miles by 700 miles. Great Britain's protest resulted in the release of the vessels and crew, though after much delay. In 1887 seizures and protests were again made. In 1889 an Act of Congress was passed applying the previous prohibition to "all the dominions of the United States in the waters of Behring Sea"; and soon afterwards more British vessels were captured. Protests and negotiations followed, but proved fruitless. Accordingly Great Britain declared that further seizures would be resisted by force. In 1891 a modus vivendi was arranged, with a view to referring the question to arbitration; and the following year a treaty was concluded at Washington, whereby seven arbitrators were to be appointed, two by each of the contending States, and one each by France, Italy, and Scandinavia. The arbitrators met at Paris and gave their award August 15th, 1893. They found that though Russia claimed extensive jurisdiction by the Czar's ukase of 1821, she admitted soon afterwards that her jurisdiction should be limited to the reach of cannon-shot from the shore, and no longer asserted or exercised exclusive jurisdiction in the Behring Sea, or in the seal fisheries, beyond the ordinary limit of territorial waters. They found, too, that Great Britain had not recognised the earlier Russian claim; and that, after 1867, the United States had no right of protection or property in the fur-seals found outside the three-mile limit. Thus the findings were in favour of Great Britain on all the points of international law involved. Further, in order to prevent the extermination of the seals, rules were drawn up, which proved ineffective to a large extent because Japan and Russia failed to agree to similar regulations. In 1911, however, the four Powers agreed to suspend pelagic sealing for fifteen years. From our present point of view, then, the main result of the Behring Sea arbitration is the definitive recognition of the freedom of the high In accordance therewith, the American representative was authorized to declare, in the case of an arbitration with Russia, 1902, that "the Government of the United States claims, neither Territorial waters. Ports, mouths of rivers, &c. in Behring Sea nor in its other bordering waters, an extent of jurisdiction greater than a marine league from its shores" (y). We have already seen that, by the generally approved usage of nations, which forms the basis of international law, the maritime territory of every State extends: (1) To the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands, belonging to the same State. (2) To the distance of a marine league along all the coasts of the State. (3) To the straits and sounds, bounded on both sides of the territory of the same State, so narrow as to be commanded by cannon-shot from both shores, and communicating from one sea to another (z). The reasons which forbid the assertion of an exclusive proprietary right to the sea in general, will be found inapplicable to the particular portions of that element included in the above designations. 1. Thus, in respect to those portions of the sea which form the ports, harbours, bays, and mouths of rivers of any State where the tide ebbs and flows, its exclusive right of property, as well as sovereignty, in these waters, may well be maintained, consistently with both the reasons above mentioned, as applicable to the sea in general. The State possessing the adjacent territory, by which these waters are partially surrounded and inclosed, has that physical power of constantly acting upon them, and, at the same time, of excluding, at its pleasure, the action of any other State or person, which, as we have already seen, constitutes possession. These waters cannot be considered, from the necessity of the case, to be subject to the common use of all mankind, any more than the adjacent land, which has already been appropriated by a particular people. Neither the material nor the moral obstacle, to the exercise of the exclusive rights of property and dominion, exists in this case. Consequently, the State, within whose territorial limits these waters are included, has the right of excluding every other nation from their use. The exercise of this right may be modified by compact, express or implied; but its existence is founded upon the mutual independence of nations, which entitles every State to judge for itself as to the manner in which the right is to be exercised, subject to the equal reciprocal rights of all other (y) Moore, Digest, vol. i. p. 828. For the Behring Sea controversy, see ibid. vol. i. § 172; Cobbett, Cases, vol. i. pp. 124 seq. Official documents are to be found in the correspondence contained in the British Parl. Papers, 1886-1898; and in the account of the Proceedings of the Arbitration at Paris, in 15 vols. (2) Vide supra, p. 278. |