§ 187. Theory and practice agree upon the following principles with regard to fisheries, cabotage, police, and maritime ceremonials within the maritime belt:—

(1) The littoral State can exclusively reserve the fishery within the maritime belt[336] for its own subjects, whether fish or pearls or amber or other products of the sea are in consideration.

(2) The littoral State can, in the absence of special treaties to the contrary, exclude foreign vessels from navigation and trade along the coast, the so-called cabotage,[337] and reserve this cabotage exclusively for its own vessels. Cabotage meant originally navigation and trade along the same stretch of coast between the ports thereof, such coast belonging to the territory of one and the same State. However, the term cabotage or coasting trade as used in commercial treaties comprises now[338] sea trade between any two ports of the same country, whether on the same coasts or different coasts, provided always that the different coasts are all of them the coasts of one and the same country as a political and geographical unit in contradistinction to the coasts of colonial dependencies of such country.

(3) The littoral State can exclusively exercise police and control within its maritime belt in the interest of its custom-house duties, the secrecy of its coast fortifications, and the like. Thus foreign vessels can be ordered to take certain routes and to avoid others.

(4) The littoral State can make laws and regulations regarding maritime ceremonials to be observed by such foreign merchantmen as enter its territorial maritime belt.[339]

§ 188. Although the maritime belt is a portion of the territory of the littoral State and therefore under the absolute territorial supremacy of such State, the belt is nevertheless, according to the practice of all the States, open to merchantmen of all nations for inoffensive navigation, cabotage excepted. And it is the common conviction[340] that every State has by customary International Law the right to demand that in time of peace its merchantmen may inoffensively pass through the territorial maritime belt of every other State. Such right is correctly said to be a consequence of the freedom of the Open Sea, for without this right navigation on the Open Sea by vessels of all nations would in fact be an impossibility. And it is a consequence of this right that no State can levy tolls for the mere passage of foreign vessels through its maritime belt. Although the littoral State may spend a considerable amount of money for the erection and maintenance of lighthouses and other facilities for safe navigation within its maritime belt, it cannot make merely passing foreign vessels pay for such outlays. It is only when foreign ships cast anchor within the belt or enter a port that they can be made to pay dues and tolls by the littoral State. Some writers[341] maintain that all nations have the right of inoffensive passage for their merchantmen by usage only, and not by the customary Law of Nations, and that, consequently, in strict law a littoral State can prevent such passage. They are certainly mistaken. An attempt on the part of a littoral State to prevent free navigation through the maritime belt in time of peace would meet with stern opposition on the part of all other States.

But a right of foreign States for their men-of-war to pass unhindered through the maritime belt is not generally recognised. Although many writers assert the existence of such a right, many others emphatically deny it. As a rule, however, in practice no State actually opposes in time of peace the passage of foreign men-of-war and other public vessels through its maritime belt. And it may safely be stated, first, that a usage has grown up by which such passage, if in every way inoffensive and without danger, shall not be denied in time of peace; and, secondly, that it is now a customary rule of International Law that the right of passage through such parts of the maritime belt as form part of the highways for international traffic cannot be denied to foreign men-of-war.[342]

§ 189. That the littoral State has exclusive jurisdiction within the belt as regards mere matters of police and control is universally recognised. Thus it can exclude foreign pilots, can make custom-house arrangements, sanitary regulations, laws concerning stranded vessels and goods, and the like. It is further agreed that foreign merchantmen casting anchor within the belt or entering a port,[343] fall at once and ipso facto under the jurisdiction of the littoral State. But it is a moot point whether such foreign vessels as do not stay but merely pass through the belt are for the time being under this jurisdiction. It is for this reason that the British Territorial Waters Jurisdiction Act of 1878 (41 & 42 Vict. c. 73), which claims such jurisdiction, has called forth protests from many writers.[344] The controversy itself can be decided only by the practice of the States. The British Act quoted, the basis of which is, in my opinion, sound and reasonable, is a powerful factor in initiating such a practice; but as yet no common practice of the States can be said to exist.

§ 190. Different from the territorial maritime belt is the zone of the Open Sea, over which a littoral State extends the operation of its revenue and sanitary laws. The fact is that Great Britain and the United States, as well as other States, possess revenue and sanitary laws which impose certain duties not only on their own but also on such foreign vessels bound to one of their ports as are approaching, but not yet within, their territorial maritime belt.[345] Twiss and Phillimore agree that in strict law these Municipal Laws have no basis, since every State is by the Law of Nations prevented from extending its jurisdiction over the Open Sea, and that it is only the Comity of Nations which admits tacitly the operation of such Municipal Laws as long as foreign States do not object, and provided that no measure is taken within the territorial maritime belt of another nation. I doubt not that in time special arrangements will be made as regards this point by a universal international convention. But I believe that, since Municipal Laws of the above kind have been in existence for more than a hundred years and have not been opposed by other States, a customary rule of the Law of Nations may be said to exist which allows littoral States in the interest of their revenue and sanitary laws to impose certain duties on such foreign vessels bound to their ports as are approaching, although not yet within, their territorial maritime belt.

VII GULFS AND BAYS

Vattel, I. § 291—Hall, § 41—Westlake, I. pp. 183-192—Lawrence, § 72—Phillimore, I. §§ 196-206—Twiss, I. §§ 181-182—Halleck, I. pp. 165-170—Taylor, §§ 229-231—Walker, § 18—Wharton, I. §§ 27-28—Moore, I. § 153—Wheaton, §§ 181-190—Bluntschli, §§ 309-310—Hartmann, § 58—Heffter, § 76—Stoerk in Holtzendorff, II. pp. 419-428—Gareis, § 21—Liszt, § 9—Ullmann, § 88—Bonfils, No. 516—Despagnet, Nos. 405-406—Mérignhac, II. pp. 394-397—Pradier-Fodéré, II. Nos. 661-681—Nys, I. pp. 441-447—Rivier, I. pp. 153-157—Calvo, I. §§ 366-367—Fiore, II. Nos. 808-815, and Code, Nos. 278-279—Martens, I. § 100—Perels, § 5—Schücking, "Das Küstenmeer im internationalen Recht" (1897), pp. 20-24—Barclay in Annuaire, XII. pp. 127-129—Oppenheim in Z.V. I. (1907), pp. 579-587, and V. (1911), pp. 74-95.

§ 191. It is generally admitted that such gulfs and bays as are enclosed by the land of one and the same littoral State, and whose entrance from the sea is narrow enough to be commanded by coast batteries erected on one or both sides of the entrance, belong to the territory of the littoral State even if the entrance is wider[346] than two marine leagues, or six miles.

Some writers maintain that gulfs and bays whose entrance is wider than ten miles, or three and a third marine leagues, cannot belong to the territory of the littoral State, and the practice of some States accords with this opinion. But the practice of other countries, approved by many writers, goes beyond this limit. Thus Great Britain holds the Bay of Conception in Newfoundland to be territorial, although it goes forty miles into the land and has an entrance more than twenty miles wide. And the United States claim the Chesapeake and Delaware Bays, as well as other inlets of the same character, as territorial,[347] although many European writers oppose this claim. The Institute of International Law has voted in favour of a twelve miles wide entrance, but admits the territorial character of such gulfs and bays with a wider entrance as have been considered territorial for more than one hundred years.[348]

As the matter stands, it is doubtful as regards many gulfs and bays whether they are territorial or not. Examples of territorial bays in Europe are: The Zuider Zee is Dutch; the Frische Haff, the Kurische Haff, and the Bay of Stettin, in the Baltic, are German, as is also the Jade Bay in the North Sea. The whole matter calls for an international congress to settle the question once for all which gulfs and bays are to be considered territorial. And it must be specially observed that it is hardly possible that Great Britain would still, as she formerly did for centuries, claim the territorial character of the so-called King's Chambers,[349] which include portions of the sea between lines drawn from headland to headland.

§ 192. Gulfs and bays surrounded by the land of one and the same littoral State whose entrance is so wide that it cannot be commanded by coast batteries, and, further, all gulfs and bays enclosed by the land of more than one littoral State, however narrow their entrance may be, are non-territorial. They are parts of the Open Sea, the marginal belt inside the gulfs and bays excepted. They can never be appropriated, they are in time of peace and war open to vessels of all nations including men-of-war, and foreign fishing vessels cannot, therefore, be compelled to comply with municipal regulations of the littoral State concerning the mode of fishing.

An illustrative case is that of the fisheries in the Moray Firth. By article 6 of the Herring[350] Fishery (Scotland) Act, 1889, beam and otter trawling is prohibited within certain limits of the Scotch coast, and the Moray Firth inside a line drawn from Duncansby Head in Caithness to Rattray Point in Aberdeenshire is included in the prohibited area. In 1905, Mortensen, the captain of a Norwegian fishing vessel, but a Danish subject, was prosecuted for an offence against the above-mentioned article 6, convicted, and fined by the Sheriff Court at Dornoch, although he contended that the incriminating act was committed outside three miles from the coast. He appealed to the High Court of Justiciary, which,[351] however, confirmed the verdict of the Sheriff Court, correctly asserting that, whether or not the Moray Firth could be considered as a British territorial bay, the Court was bound by a British Act of Parliament even if such Act violates a rule of International Law. The British Government, while recognising that the Scotch Courts were bound by the Act of Parliament concerned, likewise recognised that, the Moray Firth not being a British territorial bay, foreign fishing vessels could not be compelled to comply with an Act of Parliament regulating the mode of fishing in the Moray Firth outside three miles from the coast, and therefore remitted Mortensen's fine. To remedy the conflict between article 6 of the above-mentioned Herring Fishery (Scotland) Act, 1889, and the requirements of International Law, Parliament passed the Trawling in Prohibited Areas Prevention Act,[352] 1909, according to which no prosecution can take place for the exercise of prohibited fishing methods outside the three miles from the coast, but the fish so caught may not be landed or sold in the United Kingdom.[353]

§ 193. As regards navigation and fishery within territorial gulfs and bays, the same rules of the Law of Nations are valid as in the case of navigation and fishery within the territorial maritime belt. The right of fishery may, therefore, exclusively be reserved for subjects of the littoral State.[354] And navigation, cabotage excepted, must be open to merchantmen of all nations, but foreign men-of-war need not be admitted.

VIII STRAITS

Vattel, I. § 292—Hall, § 41—Westlake, I. pp. 193-197—Lawrence, §§ 87-89—Phillimore, I. §§ 180-196—Twiss, I. §§ 183, 184, 189—Halleck, I. pp. 165-170—Taylor, §§ 229-231—Walker, § 17—Wharton, §§ 27-29—Wheaton, §§ 181-190—Moore, I. §§ 133-134—Bluntschli, § 303—Hartmann, § 65—Heffter, § 76—Stoerk in Holtzendorff, II. pp. 419-428—Gareis, § 21—Liszt, §§ 9 and 26—Ullmann, § 88—Bonfils, Nos. 506-511—Despagnet, Nos. 415-417—Pradier-Fodéré, II. Nos. 650-656—Nys, I. pp. 451-474—Rivier, I. pp. 157-159—Calvo, I. §§ 368-372—Fiore, II. Nos. 745-754, and Code, Nos. 280-281—Martens, I. § 101—Holland, Studies, p. 277.

§ 194. All straits which are so narrow as to be under the command of coast batteries erected either on one or both sides of the straits, are territorial. Therefore, straits of this kind which divide the land of one and the same State belong to the territory of such State. Thus the Solent, which divides the Isle of Wight from England, is British, the Dardanelles and the Bosphorus are Turkish, and both the Kara and the Yugor Straits, which connect the Kara Sea with the Barents Sea, are Russian. On the other hand, if such narrow strait divides the land of two different States, it belongs to the territory of both, the boundary line running, failing a special treaty making another arrangement, through the mid-channel.[355] Thus the Lymoon Pass, the narrow strait which separates the British island of Hong Kong from the continent, was half British and half Chinese as long as the land opposite Hong Kong was Chinese territory.

It would seem that claims of States over wider straits than those which can be commanded by guns from coast batteries are no longer upheld. Thus Great Britain used formerly to claim the Narrow Seas—namely, the St. George's Channel, the Bristol Channel, the Irish Sea, and the North Channel—as territorial; and Phillimore asserts that the exclusive right of Great Britain over these Narrow Seas is uncontested. But it must be emphasised that this right is contested, and I believe that Great Britain would now no longer uphold her former claim,[356] at least the Territorial Waters Jurisdiction Act 1878 does not mention it.

§ 195. All rules of the Law of Nations concerning navigation, fishery, and jurisdiction within the maritime belt apply likewise to navigation, fishery, and jurisdiction within straits. Foreign merchantmen, therefore, cannot[357] be excluded; foreign men-of-war must be admitted to such straits as form part of the highways for international traffic;[358] the right of fishery may exclusively be reserved for subjects of the littoral State; and the latter can exercise jurisdiction over all foreign merchantmen passing through the straits. If the narrow strait divides the land of two different States, jurisdiction and fishery are reserved for each littoral State within the boundary line running through the mid-channel or otherwise as by treaty arranged.

It must, however, be stated that foreign merchantmen cannot be excluded from the passage through territorial straits only when these connect two parts of the Open Sea. In case a territorial strait belonging to one and the same State connects a part of the Open Sea with a territorial gulf or bay, or with a territorial land-locked sea belonging to the same State—as, for instance, the Strait of Kertch[359] at present, and formerly the Bosphorus and the Dardanelles[360]—foreign vessels can be excluded therefrom.

§ 196. The rule that foreign merchantmen must be allowed inoffensive passage through territorial straits without any dues and tolls whatever, had one exception until the year 1857. From time immemorial, Denmark had not allowed foreign vessels the passage through the two Belts and the Sound, a narrow strait which divides Denmark from Sweden and connects the Kattegat with the Baltic, without payment of a toll, the so-called Sound Dues.[361] Whereas in former centuries these dues were not opposed, they were not considered any longer admissible as soon as the principle of free navigation on the sea became generally recognised, but Denmark nevertheless insisted upon the dues. In 1857, however, an arrangement[362] was completed between the maritime Powers of Europe and Denmark by which the Sound Dues were abolished against a heavy indemnity paid by the signatory States to Denmark. And in the same year the United States entered into a convention[363] with Denmark for the free passage of their vessels, and likewise paid an indemnity. With these dues has disappeared the last witness of former times when free navigation on the sea was not universally recognised.

§ 197. The Bosphorus and Dardanelles, the two Turkish territorial straits which connect the Black Sea with the Mediterranean, must be specially mentioned.[364] So long as the Black Sea was entirely enclosed by Turkish territory and was therefore a portion of this territory, Turkey could exclude[365] foreign vessels from the Bosphorus and the Dardanelles altogether, unless prevented by special treaties. But when in the eighteenth century Russia became a littoral State of the Black Sea, and the latter, therefore, ceased to be entirely a territorial sea, Turkey, by several treaties with foreign Powers, conceded free navigation through the Bosphorus and the Dardanelles to foreign merchantmen. But she always upheld the rule that foreign men-of-war should be excluded from these straits. And by article 1 of the Convention of London of July 10, 1841, between Turkey, Great Britain, Austria, France, Prussia, and Russia, this rule was once for all accepted. Article 10 of the Peace Treaty of Paris of 1856 and the Convention No. 1 annexed to this treaty, and, further, article 2 of the Treaty of London, 1871, again confirm the rule, and all those Powers which were not parties to these treaties submit nevertheless to it.[366] According to the Treaty of London of 1871, however, the Porte can open the straits in time of peace to the men-of-war of friendly and allied Powers for the purpose, if necessary, of securing the execution of the stipulations of the Peace Treaty of Paris of 1856.

On the whole, the rule has in practice always been upheld by Turkey. Foreign light public vessels in the service of foreign diplomatic envoys at Constantinople can be admitted by the provisions of the Peace Treaty of Paris of 1856. And on several occasions when Turkey has admitted a foreign man-of-war carrying a foreign monarch on a visit to Constantinople, there has been no opposition by the Powers.[367] But when, in 1902, Turkey allowed four Russian torpedo destroyers to pass through her straits on the condition that these vessels should be disarmed and sail under the Russian commercial flag, Great Britain protested and declared that she reserved the right to demand similar privileges for her men-of-war should occasion arise. As far as I know, however, no other Power has joined Great Britain in this protest. On the other hand, no protest was raised when, in 1904, during the Russo-Japanese war, two vessels belonging to the Russian volunteer fleet in the Black Sea were allowed to pass through to the Mediterranean, for nobody could presume that these vessels, which were flying the Russian commercial flag, would later on convert themselves into men-of-war by hoisting the Russian war flag.[368]

IX BOUNDARIES OF STATE TERRITORY

Grotius, II. c. 3, § 18—Vattel, I. § 266—Hall, § 38—Westlake, I. pp. 141-142—Twiss, I. §§ 147-148—Taylor, § 251—Moore, I. §§ 154-162—Bluntschli, §§ 296-302—Hartmann, § 59—Heffter, § 66—Holtzendorff in Holtzendorff, II. pp. 232-239—Gareis, § 19—Liszt, § 9—Ullmann, § 91—Bonfils, Nos. 486-489—Despagnet, No. 377—Pradier-Fodéré, II. Nos. 759-777—Mérignhac, II. p. 358—Nys, I. pp. 413-422—Rivier, I. § 11—Calvo, I. §§ 343-352—Fiore, II. Nos. 799-806, and Code, Nos. 1040-1049—Martens, I. § 89—Lord Curzon of Kedleston, "Frontiers" (Romanes lecture of 1907).

§ 198. Boundaries of State territory are the imaginary lines on the surface of the earth which separate the territory of one State from that of another, or from unappropriated territory, or from the Open Sea. The course of the boundary lines may or may not be indicated by boundary signs. These signs may be natural or artificial, and one speaks, therefore, of natural in contradistinction to artificial boundaries. Natural boundaries may consist of water, a range of rocks or mountains, deserts, forests, and the like. Artificial boundaries are such signs as have been purposely put up to indicate the way of the imaginary boundary-line. They may consist of posts, stones, bars, walls,[369] trenches, roads, canals, buoys in water, and the like. It must, however, be borne in mind that the distinction between artificial and natural boundaries is not sharp, in so far as some natural boundaries can be artificially created. Thus a forest may be planted, and a desert may be created, as was the frequent practice of the Romans of antiquity, for the purpose of marking the frontier.

§ 199. Natural boundaries consisting of water must be specially discussed on account of the different kinds of boundary waters. Such kinds are rivers, lakes, landlocked seas, and the maritime belt.

(1) Boundary rivers[370] are such rivers as separate two different States from each other.[371] If such river is not navigable, the imaginary boundary line runs down the middle of the river, following all turnings of the border line of both banks of the river. On the other hand, in a navigable river the boundary line runs through the middle of the so-called Thalweg, that is, the mid-channel of the river. It is, thirdly, possible that the boundary line is the border line of the river, so that the whole bed belongs to one of the riparian States only.[372] But this is an exception created by treaty or by the fact that a State has occupied the lands on one side of a river at a time prior to the occupation of the lands on the other side by some other State.[373] And it must be remembered that, since a river sometimes changes its course more or less, the boundary line running through the middle or the Thalweg or along the border line is thereby also altered. In case a bridge is built over a boundary river, the boundary line runs, failing special treaty arrangements, through the middle of the bridge. As regards the boundary lines running through islands rising in boundary rivers and through the abandoned beds of such rivers, see below, §§ 234 and 235.