OPINION OF PROFESSOR HOLLAND.

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Les moyens d'obtenir la consécration de ces principes par le droit internati nal conventionnel doivent être soigneusement étudiés au point de vue de l'action de l'Union interparlementaire. III. Certains cas particuliers, qui par leur caractère exceptionnel constituent un sérieux empêchement à l'adoption de règles générales plus complètes, ont besoin, par leur complexité, d'une étude plus longue et de nouvelles discussions.

La c opération des groupes nationaux dans l'étude de ces questions servira beaucoup à les éclairer et aidera puissamment la Commission.

Opinion of Prof. Holland.-Prof. Holland, of Oxford University, writing of the international position of the Suez Canal, and referring to canals in general, said:

In time of peace the territorial power is, according to modern usage, obliged to allow "innocent passage," under reasonable conditions as to tolls and the like, to the vessels of other powers. Whether the passage of ships of war would be "innocent" is a question of some doubt, but should probably be answered in the affirmative.

In time of war the territorial power, if belligerent, may of course deal with the ships of the enemy as it pleases. It will endeavor to capture them, be they public or private, within the straits as elsewhere. The enemy will similarly exercise his belligerent rights within the straits as well as outside of them. Should the territorial power be neutral, the channel, as neutral territorial water, will probably be open, as in time of peace, for the innocent passage of all ships, public as well as private, although it has been suggested that the territorial power, if neutral, might be called upon, as such, by either belligerent to close the channel to the warships of the other. The straits will be, of course, closed to belligerent operations, the occurrence of which within them the territorial power is not only entitled, but obliged, to prevent. (Studies in International Law, p., 278.)

These words are from a lecture delivered in 1883, but Prof. Holland had apparently found no reason to modify these statements when the lecture was added to and published in 1898.

The Suez Canal was, according to Article I of the convention of 1888, to be free and open:

The Suez Maritime Canal shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag.

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Consequently, the high contracting parties agree not in any way to interfere with the free use of the canal, in time of war as in time of peace.

The canal shall never be subjected to the exercise of the right of blockade.

Great Britain made a reservation which caused the convention to be regarded as not in "practical operation" as regards Great Britain till April 8, 1904, by the declaration of Great Britain and France respecting Egypt and Morocco.

Suez and Panama Canal.-By many the Suez and Panama Canals are regarded as in a class by themselves. The reason for this is that they unite great bodies of water in such manner as to materially change the course of the commerce of the world, and in such manner as to create a dependence upon their use similar to that of the open sea. Some have used the argument that so far as these canals are filled with the waters of the sea, the rights of other states in the open sea flow in with the waters. This argument can easily be shown to have little weight. The fact is that the areas through which these two great canals pass are practically under the jurisdiction of the two great English-speaking states, and the jurisdiction of the states earlier in nominal control of these areas is at an end. The regulation of the use of these canals has, therefore, become the subject of conventional agreement.

In a general way the attitude of the United States toward the Panama Canal seems to have changed from time to time and may be divided into three periods. During the period of the nineteenth century before 1850 the idea of internationalization of the canal was common. From 1850 to 1880 the doctrine of neutralization received approval. Since 1880 there has been a growing sentiment in favor of nationalization. In certain respects there are similarities between the Panama and Suez Canals.

The Suez Canal is an artificial waterway, the use of which has been regulated by conventional agreement to which a considerable number of states are parties, and the United States is not of this number. The use of the

Panama Canal is regulated by an agreement to which the United States and Great Britain are parties and to which other states are not parties.

In other respects there are many and striking parallels in the physical and historical aspects of the two waterways. These have often been pointed out and have received much discussion. Both canals are practically under control of English-speaking powers; they are within the area of comparatively weak states; they have been constructed by foreign enterprise and capital; they are of great stragetic importance; they have great importance for the world commerce; they both form means of communication with great seas and shorten by many miles the route between these seas.

The conventional rules for the regulation of the use of the two waterways are also similar in many respects. Conclusion.-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.

General conclusion.-It is evident that there is wide. diversity in the ideas as to maritime jurisdiction. This diversity had led to an increasing number of complications in recent years because of the development of closer international relations and the more general use of the area under maritime jurisdiction. The ancient rules do

not seem adapted to modern conditions. The policies and practices of the leading maritime states have often been inconsistent. The maritime states are beginning to seek for a sound basis for exercise of jurisdiction over neighboring waters. This basis may be limited in some degree by the changing range of cannon, but ultimately must have a more substantial basis in the reciprocal well being of the shore state and of the states which use the waters. This latter idea has more and more entered into the recent propositions in regard to defining maritime jurisdiction. While belligerents have rights upon the open sea and in their own waters, these rights are conditioned by the rights of neutrals, and the reverse may be equally true. It is necessary that regulations recognize this reciprocity of rights as well as the practice and precedents. The following regulations seem to embody the broad principles coming to be generally recognized in regard to maritime jurisdiction in time of war.

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 by 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 upon 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.