Изображения страниц
PDF
EPUB

DR. DRAGO'S OPINION.

39

opening of bays to the 6-mile limit. The conclusion was stated as follows:

5. The position of the United States with reference to question 5 is that the distance of "3 marine miles of any of the coasts, bays, creeks, or harbors" referred to in the said article, must be measured from low-water mark, following the indentations of the coast; and the United States requests the tribunal to answer and decide this question accordingly. (Case of the United States, Ibid., vol. 1, p. 248.)

66

Opinion of Dr. Drago.-Dr. Drago, in a dissenting opinion, refers to the award which states that the line from which the 3-mile limit shall extend shall be drawn across the body of water at the place where it ceases to have the configuration characteristic of a bay. At all other places the 3 miles are to be measured following the sinuosities of the coast." In criticizing this, he justly

says:

But no rule is laid out or general principle evolved for the parties to know what the nature of such configuration is or by what methods the points should be ascertained from which the bay should lose the characteristics of such. (Ibid., vol. 1, pp. 102-112.)

Chesapeake Bay. In the case of the Alleganean, considered by the Alabama Claims Commission, it was said (Stetson . The United States) of the Chesapeake Bay:

Considering, therefore, the importance of the question, the configuration of Chesapeake Bay, the fact that its headlands are well marked and but 12 miles apart; that it and its tributaries are wholly within our own territory; that the boundary lines of adjacent States encompass it, that from the earliest history of the country it Eas been claimed to be territorial waters and that the claim has never been questioned; that it can not become the pathway from one nation to another; and remembering the doctrines of the recognized authorities upon international law, as well as the holdings of the English courts as to the Bristol Channel and Conception Bay, and bearing in mind the matter of the brig Grange and the position taken by the Government as to Delaware Bay, we are forced to the conclusion that Chesapeake Bay must be held to be wholly within the territorial jurisdiction and authority of the Government of the United States and no part of the "high seas" within the meaning of the term as used in section 5 of the act of June 5, 1872. (Moore. International Arbitrations, Vol. IV, p. 4341.)

Opinion of Azuni.—Azuni, whose work had great authority in the early nineteenth century, showed clearly the opinion at that time:

It is already established among polished nations that in places where the land by its curve forms a bay or a gulf we must suppose a line to be drawn from one point of the inclosing land to the other or along the small islands which extend beyond the headlands of the bay, and that the whole of this bay or gulf is to be considered as territorial sea, even though the center may be in some places at a greater distince than 3 miles from either shore. (Maritime Law of Europe, ed. 1806, vol. 1, p. 206.)

This opinion of Azuni was an expression of the ideas which had been developing since the conception of any limits had arisen, generally following Grotius and Bynkershoek, to the effect that a state should have jurisdiction over such bodies of water, because it could exercise dominion over them from the shore.

Far as the s vereign can defend his sway,
Extends his empire o'er the wat'ry way;
The shot sent thundering to the liquid plain
Assigns the limits of his just domain.

-(Azuni, Maritime Law, vol. 1, p. 194.)

Opinion of Prof. Westlake.-Prof. Westlake, who died in 1913, one of the leading English authorities, said:

As to bays, if the entrance to one of them is not more than twice the width of the littoral sea enjoyed by the country in question that is, not more than 6 sea miles in the ordinary case, 8 in that of Norway, etc.-there is no access from the open sea to the bay except through the territorial water of that country, and the inner part of the bay will belong to that country, no matter how widely it may expand. The line drawn from shore to shore at the part where, in approaching from the open sea, the width first contracts to that mentioned, will take the place of the line of low water, and the littoral sea belonging to the state will be measured outward from that line to the distance, 3 miles or more, proper to the state. But although this is the general rule, it often meets with an exception in the case of bays which penetrate deep into the land and are called gulfs. Many of these are recognized by immemorial usage as territorial sea of the states into which they penetrate, notwithstanding that their entrance is wider than the general rule for bays would give as a limit to such appropriation. Examples are the Bay of Conception in Newfoundland, penetrating 40 miles into the land and being 15 miles in average breadth, which is wholly British;

VIEW OF INSTITUTE OF INTERNATIONAL LAW.

41

Chesapeake and Delaware Bays, which belong to the United States; and the Bay of Cancale, 17 miles wide, which belongs to France. Similar exceptions to those admitted for gulfs were formerly claimed for many comparatively shallow bays of great width-for example, those on the coast of England from Orfordness to the North Foreland and from Beachy Head to Dunnose, which, together with the whole of the Bristol Channel and various other stretches of sea bordering on the British Isles, were claimed under the name of the King's Chambers. But it is only in the case of a true gulf that the possibility of occupation can be so real as to furnish a valid ground for the assumption of sovereignty, and even in that case the geographical features which many warrant the assumption are too incapable of exact definition to allow of the claim being brought to any other test than that of accepted usage. It is sometimes said and may be historically true that all sovereignty now enjoyed over the littoral sea or certain gulfs is the remnant of the vast claims which, as we have seen, were once made to sovereignty over the open sea, and which it is held have been gradually reduced to a tolerable measure through such intermediate stages as that of the King's Chambers; and the impossibility of putting the claim to gulfs in a definite general form may be thought favorable to that view. None the less, however, the rights which are now admitted stand on a basis clear and solid enough to distinguish and support them. (International Law, Vol. I, p. 187.)

Institute of International Law, 1894.-At the session of the Institute of International Law in 1894, the reporter of the commission having in charge the matter of regulations for maritime jurisdiction favored a 10mile limit for distance between headlands of closed bays. The institute, however, by a large vote adopted 12 miles as the proposed limit, the argument being that if 6 miles was the limit for marginal sea, that logically twice this distance would be the proper limit between headlands of bays.

The proposed regulation of 1894 took the following form:

ART. 3. Pour les baies, la mer territoriale suit les sinuosités de la côte, sauf qu'elle est mesurée à partir d'une ligne droite tirée en travers de la baie dans la partie la plus rapprochée de l'ouverture vers la mer, où l'écart entre les deux côtes de la baie est de douze milles marins de largeur, à moins qu'un usage continu et séculaire n'ait consacré une largeur plus grande. (XIII Annuaire, 1894 5. p. 329.)

It was clear that there was no consensus of opinion upon the subject in 1894, either among authors or among the governmental officials.

Roadstead. The idea of a roadstead seems to have been clear, even in early times. It was well understood in the early part of the nineteenth century:

Quand l'ordonnance parle de rade, elle entend parler de tous les lieux d'ancrage qui sont à quelque distance de la côte où les vaisseaux trouvent fond, pour pouvoir y demeurer à l'ancrage; et où ils mouillent ordinairement, en attendant le vent ou la marée, pour entrer dans le port, ou pour faire voile; la rade, comme dit la loi 1, § 13, ff., de fluminibus, est locus minimè portuosus, sed in quo naves in salo esse et commorari queunt. Mais on doit observer les formalités prescrites à ce sujet, tant aux Français qu'aux étrangers: de sorte que s'ils y manquoient, ils ne pourroient pas se plaindre des poursuites qui pourroient être faites contre eux, comme d'un trouble et d'un empêchement. (Boucher, Institution au droit maritime, 1803, p. 707.)

Straits. The extension of maritime jurisdiction to 6 or more miles would have a decided bearing upon the jurisdiction over straits. Some of the most important straits of the world are not twice 6 miles wide, but are more than twice 3 miles wide. It is recognized that straits not more than twice 3 miles in width are under the jurisdiction of the adjacent states, but that free passage between open seas may not be impaired under ordinary circumstances. In time of war it may be doubted whether a state if under stress may not temporarily bar a strait not more than 6 miles wide if it has jurisdiction of both shores. If the limit is extended to 12 miles the conditions are changed in a ratio which does not seem similar to that in case of extension of jurisdiction in the open sea. For this reason some who have favored extension of marginal sea jurisdiction have not favored it for straits. A strait is, however, an extension of the sea in most instances and no plan seems to have been suggested for determining when the marginal sea jurisdiction shall be reduced to the limits of the proposed jurisdiction for straits.

Straits connecting open seas.-As in claims of jurisdiction over the marginal sea, so in claims of jurisdiction

STRAITS CONNECTING OPEN SEAS.

43 over straits, there has been a relaxation of extreme pretensions. The English claim to exclusive jurisdiction over the North, Bristol, and St. Georges Channels would probably no longer be maintained. While claims to exclusive jurisdiction over wide channels and straits were gradually waived or allowed to lapse, claims over narrow straits were maintained.

Straits which connected open seas, even though narrow, were gradually opened, and a general right of innocent passage was recognized. One of the longest controversies was in regard to the passage of the Danish Sounds. The so-called "sound dues" were levied for many years upon vessels passing through these waters. The United States maintained that such a tax upon passage between open seas was contrary to the principles of freedom of navigation. The powers of Europe were opposed to the continued payment of such a tax, and finally an indemnity was paid to Denmark, in 1857, for relinquishing its claim to collect these dues. The United States, not recognizing the right of Denmark, made a treaty in 1858 by which, in consideration of the payment of a lump sum, the Sounds and Belts should be made free to American vessels, and the means of convenient navigation should be maintained at the cost of Denmark. The United States had maintained the contention of many writers that the freedom of the sea would be a fiction if the passage between the different seas was closed.

Strait of Magellan.-In a letter of the American minister to Argentine to the Secretary of State of June 12, 1879, it was stated that a convention was pending which provided that "the Strait of Magellan is to be considered neutral and open to the flags of all nations, and neither Government is to exercise jurisdiction in its waters, which are to be considered an open or free sea." (Foreign Relations U. S., 1879, p. 23.)

The treaty of July 23, 1881, between the Argentine Republic and Chile, in article 5 provided:

The Strait of Magellan is neutralized, and free navigation thereon insured to the flags of all nations. With a view to guaranteeing

« ПредыдущаяПродолжить »