INTERNATIONAL LAW TOPICS AND DISCUSSIONS. TOPIC I. MARGINAL SEA AND OTHER WATERS. What regulations should be made in regard to the use in time of war of the marginal sea and other waters? REGULATIONS. 1. Acts of war are prohibited in neutral waters and in waters neutralized by convention. 2. "Belligerents are bound to respect the sovereign rights of neutral powers and to abstain in neutral waters from all acts which would constitute, on the part of the neutral powers, which knowingly permitted them, a non fulfillment of their neutrality." 3. The area of maritime war: (a) The sea outside of neutral jurisdiction. (b) Gulfs, bays, roadsteads, ports, and other waters of the belligerents. 4. Limitations: (a) Marginal sea. The jurisdiction of an adjacent state over the marginal sea extends to 6 miles (60 to a degree of latitude) from the low-water mark. (b) Roadsteads.-The jurisdiction over roadsteads is the same as over the sea. (c) Gulfs and bays.-The jurisdiction of an adjacent state over the sea extends outward 6 miles from a line drawn between the opposite shores of the entrance to the waters of gulfs or bays where the distance first narrows to 12 miles. (d) Straits. (1) Straits not more than 12 miles in width are under the jurisdiction of the adjacent states. (2) Innocent passage through straits connecting open seas is permitted. (e) Canals.-(1) (a) Canals or artificial waterways within neutral jurisdiction are closed or open to vessels of war during hostilities, according to the regulations which have been established prior to the declaration of war. (b) No act of hostility shall take place within these waters. (2) (a) Canals or artificial waterways within belligerent jurisdiction when national in character may be closed during war, but should, if possible, be open to innocent vessels of neutral powers. (b) Canals or artificial waterways of mixed character which are not of grand importance to the commerce of the world may be similarly closed. (c) Canals or artificial waterways which are strictly international and form main highways of world commerce may be closed to all vessels of a power at war with the power which in time of peace is in control of the canal or artificial waterway. NOTES. Early ideas on marginal sea. It is evident from the works of ancient writers that the sea was often regarded as susceptible of possession in the same manner as land. There were also early declarations, as among Roman jurists, that "the use of the sea is as free to all men as the air." The idea of maritime sovereignty was the prevailing one, however, during the Middle Ages. The prevalence of lawlessness at sea in the form of piracy and otherwise during the Middle Ages required a strong hand to suppress. It was natural that a state should protect its neighboring trade routes, and its own traders, as well as foreign traders also, would gladly yield obedience in return for this protection. The commerce of the Italian states was, during this period, very important. The marriage of the sea celebrated by the city of Venice from the latter part of the twelfth century was emblematic of the authority which that city had at the time over the Adriatic. Venice from time to time claimed and exercised the privilege of excluding others from the use of the Adriatic. The restrictive measures were usually taken with a view to protecting trade and commerce in these early days. Grotius sums up the best opinion of the early days of the seventeenth century, though not following Gentilis, saying: It would seem that dominion over a part of the sea is acquired in the same manner as other dominion; that is, as said above, EARLY IDEAS ON MARGINAL SEA. 13 because it appertains to a person or to a territory-as appertaining to a person when he has a fleet, which is a sea army, in that part of the sea; as appertaining to territory in so far as those who sail in the adjacent part of the sea can be commanded from the shore no less than if they were upon land. (De Jure Belli ac Pacis. Lib. II., c. 3, 13.) Bynkershoek in 1702 tried to make this more definite by stating that the dominion over the sea ceased with the limit of the range of cannon shot. (De Domino Maris, c. 2.) To the position of Grotius, Selden in 1635 had been bitterly opposed. Molloy, writing later in the seventeenth century, says: After the writings of the illustrious Selden, certainly it is impossible to find any prince or republic or single person indued with reason or sense that doubts the dominion of the British sea to be entirely subject to that imperial diadem. (De Jure maritimo, Bk. I, chap. 5, 1.) And as the sea is capable of protection and government, so is the same no less than the land subject to be divided amongst men, and appropriated to cities and potentates, which long since was ordained of God as the thing most natural. (Ibid., 4.) The point of view of those who claimed that the open sea was, as said in the Roman law, "by nature common to all," however, gradually prevailed, particularly in the eighteenth century, yet the line at which the open sea began in distinction from the line of the marginal sea continued to be a subject of controversy. Early control.-In ancient times the control of the sea was not considered a matter of much importance. During the period of Roman power, that state exercised a considerable control for the protection of the different parts of its dominion. During the Middle Ages, with the development of maritime commerce and of competition, the Mediterranean and the waters about the coasts of western Europe became the subject of conflicting claims. The Venetians seemed to have maintained their control of the waters of the Adriatic till the seventeenth century, requiring that those who sailed its waters have permission, and in return they afforded a degree of protection. |