The case must also be mentioned of a privateer or man-of-war which after the conclusion of peace or the termination of war by subjugation and the like continues to commit hostile acts. If such vessel is not cognisant of the fact that the war has come to an end she cannot be considered as a pirate. Thus the Confederate cruiser Shenandoah, which in 1865, for some months after the end of the American Civil War, attacked American vessels, was not considered a pirate[558] by the British Government when her commander gave her up to the port authorities at Liverpool in November 1865, because he asserted that he had not known till August of the termination of the war, and that he had abstained from hostilities as soon as he had obtained this information.

It must be emphasised that the motive and the purpose of such acts of violence do not alter their piratical character, since the intent to plunder (animus furandi) is not required. Thus, for instance, if a private neutral vessel without Letters of Marque during war out of hatred of one of the belligerents were to attack and to sink vessels of such belligerent without plundering at all, she would nevertheless be considered as a pirate.[559]

§ 274. The crew or the whole or a part of the passengers who revolt on the Open Sea and convert the vessel and her goods to their own use, commit thereby piracy, whether the vessel is private or public. But a simple act of violence alone on the part of crew or passengers does not constitute in itself the crime of piracy, at least not as far as International Law is concerned. If, for instance, the crew were to murder the master on account of his cruelty and afterwards carry on the voyage, they would be murderers, but not pirates. They are pirates only when the revolt is directed not merely against the master, but also against the vessel, for the purpose of converting her and her goods to their own use.

§ 275. The object of piracy is any public or private vessel, or the persons or the goods thereon, whilst on the Open Sea. In the regular case of piracy the pirate wants to make booty; it is the cargo of the attacked vessel which is the centre of his interest, and he might free the vessel and the crew after having appropriated the cargo. But he remains a pirate whether he does so or kills the crew and appropriates the ship, or sinks her. On the other hand, it does not matter if the cargo is not the object of his act of violence. If he stops a vessel and takes a rich passenger off with the intention to keep him for the purpose of a high ransom, his act is piracy. It is likewise piracy if he stops a vessel for the purpose of killing a certain person only on board, although he may afterwards free vessel, crew, and cargo.

That a possible object of piracy is not only another vessel, but also the very ship on which the crew and passenger navigate, is an inference from the statements above in § 274.

§ 276. Piracy is effected by any unauthorised act of violence, be it direct application of force or intimidation through menace. The crew or passengers who, for the purpose of converting a vessel and her goods to their own use, force the master through intimidation to steer another course, commit piracy as well as those who murder the master and steer the vessel themselves. And a ship which, through the threat to sink her if she should refuse, forces another ship to deliver up her cargo or a person on board, commits piracy as well as the ship which attacks another vessel, kills her crew, and thereby gets hold of her cargo or a person on board.

The act of violence need not be consummated to constitute the crime of piracy. The mere attempt, such as attacking or even chasing only for the purpose of attack, by itself comprises piracy. On the other hand, it is doubtful whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed a single act of violence.[560]

§ 277. Piracy as an "international crime" can be committed on the Open Sea only. Piracy in territorial coast waters has quite as little to do with International Law as other robberies on the territory of a State. Some writers[561] maintain that piracy need not necessarily be committed on the Open Sea, but that it suffices that the respective acts of violence are committed by descent from the Open Sea. They maintain, therefore, that if "a body of pirates land on an island unappropriated by a civilised Power, and rob and murder a trader who may be carrying on commerce there with the savage inhabitants, they are guilty of a crime possessing all the marks of commonplace professional piracy." With this opinion I cannot agree. Piracy is, and always has been, a crime against the safety of traffic on the Open Sea, and therefore it cannot be committed anywhere else than on the Open Sea.

§ 278. A pirate and his vessel lose ipso facto by an act of piracy the protection of their flag State and their national character. Every maritime State has by a customary rule of the Law of Nations the right to punish pirates. And the vessels of all nations, whether men-of-war, other public vessels, or merchantmen,[562] can on the Open Sea[563] chase, attack, seize, and bring the pirate home for trial and punishment by the Courts of their own country. In former times it was said to be a customary rule of International Law that pirates could at once after seizure be hanged or drowned by the captor. But this cannot now be upheld, although some writers assert that it is still the law. It would seem that the captor may execute pirates on the spot only when he is not able to bring them safely into a port for trial; but Municipal Law may, of course, interdict such execution. Concerning the punishment for piracy, the Law of Nations lays down the rule that it may be capital. But it need not be, the Municipal Law of the different States being competent to order any less severe punishment. Nor does the Law of Nations make it a duty for every maritime State to punish all pirates.[564]

That men-of-war of all nations have, with a view to insuring the safety of traffic, the power of verifying the flags of suspicious merchantmen of all nations, has already been stated above (§ 266, No. 2).

§ 279. The question as to the property in the seized piratical vessels and the goods thereon has been the subject of much controversy. During the seventeenth century the practice of several States conceded such vessel and goods to the captor as a premium. But during the eighteenth century the rule pirata non mutat dominium became more and more recognised. Nowadays the conviction would seem to be general that ship and goods have to be restored to their proprietors, and may be conceded to the captor only when the real ownership cannot be ascertained. In the first case, however, a certain percentage of the value is very often conceded to the captor as a premium and an equivalent for his expenses (so-called droit de recousse[565]). Thus, according to British Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of the pirate.

§ 280. Piracy, according to the Law of Nations, which has been defined above (§ 272) as every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel, must not be confounded with the conception of piracy according to the different Municipal Laws.[567] The several States may confine themselves to punishing as piracy a narrower circle of acts of violence than that which the Law of Nations defines as piracy. On the other hand, they may punish their subjects as pirates for a much wider circle of acts. Thus, for instance, according to the Criminal Law of England,[568] every English subject is inter alia deemed to be a pirate who gives aid or comfort upon the sea to the King's enemies during a war, or who transports slaves on the High Seas.

However, since a State cannot on the Open Sea enforce its Municipal Laws against others than its own subjects, no State can treat such foreign subjects on the Open Sea as pirates as are not pirates according to the Law of Nations. Thus, when in 1858, before the abolition of slavery in America, British men-of-war molested American vessels suspected of carrying slaves, the United States objected and rightly complained.[569]

VI FISHERIES IN THE OPEN SEA

Grotius, II. c. 3, § 4—Vattel, I. § 287—Hall, § 27—Lawrence, §§ 86 and 91—Phillimore, I. §§ 181-195—Twiss, I. § 185—Taylor, §§ 249-250—Wharton, II. §§ 300-308—Wheaton, §§ 167-171—Moore, I. §§ 169-173—Bluntschli, § 307—Stoerk in Holtzendorff, II. pp. 504-507—Gareis, § 62—Liszt, § 35—Ullmann, § 103—Bonfils, Nos. 581-582, 595—Despagnet, Nos. 411-413—Mérignhac, II. p. 531—Pradier-Fodéré, V. Nos. 2446-2458—Rivier, I. pp. 243-245—Nys, II. pp. 165-169—Calvo, I. §§ 357-364—Fiore, II. Nos. 728-729, and Code, Nos. 995-999—Martens, I. § 98—Perels, § 20—Hall, "Foreign Powers and Jurisdiction" (1894), § 107—David, "La pêche maritime au point de vue international" (1897)—Fulton, "The Sovereignty of the Seas" (1911), pp. 57-534.

§ 281. Whereas the fisheries in the territorial maritime belt can be reserved by the littoral State for its own subjects, it is an inference of the freedom of the Open Sea that the fisheries thereon are open[570] to vessels of all nations. Since, however, vessels remain whilst on the Open Sea under the jurisdiction of their flag State, every State possessing a maritime flag can legislate concerning the exercise of fisheries on the Open Sea on the part of vessels sailing under its flag. And for the same reason a State can by an international agreement renounce its fisheries on certain parts of the Open Sea, and accordingly interdict its vessels from exercising fisheries there. If certain circumstances and conditions make it advisable to restrict and regulate the fisheries on some parts of the Open Sea, the Powers are therefore able to create restrictions and regulations for that purpose through international treaties. Such treaties have been concluded—first, with regard to the fisheries in the North Sea and the suppression of the liquor trade among the fishing vessels in that Sea; secondly, with regard to the seal fisheries in the Behring Sea; thirdly, with regard to the fisheries around the Faröe Islands and Iceland.

§ 282. For the purpose of regulating the fisheries in the North Sea, an International Conference took place at the Hague in 1881 and again in 1882, at which Great Britain, Belgium, Denmark, France, Germany, Holland, and Sweden-Norway were represented, and on May 6, 1882, the International Convention for the Regulation of the Police of the Fisheries in the North Sea outside the territorial waters[571] was signed by the representatives of all these States, Sweden-Norway excepted, to which the option of joining later on is given. This treaty contains the following stipulations:[572]—

(1) All the fishing vessels of the signatory Powers must be registered, and the registers have to be exchanged between the Powers (article 5). Every vessel has to bear visibly in white colour on black ground its number, name, and the name of its harbour (articles 6-11). Every vessel must bear an official voucher of her nationality (articles 12-13).

(2) To avoid conflicts between the different fishing vessels, very minute interdictions and injunctions are provided (articles 14-25).

(3) The supervision of the fisheries by the fishing vessels of the signatory Powers is exercised by special cruisers of these Powers (article 26). With the exception of those contraventions which are specially enumerated by article 27, all these cruisers are competent to verify all contraventions committed by the fishing vessels of all the signatory Powers (article 28). For that purpose they have the right of visit, search, and arrest (article 29). But a seized fishing vessel is to be brought into a harbour of her flag State and to be handed over to the authorities there (article 30). All contraventions are to be tried by the Courts of the State to which the contravening vessels belong (article 36); but in cases of a trifling character the matter can be compromised on the spot by the commanders of the special public cruisers of the Powers (article 33).

§ 283. Connected with the regulation of the fisheries is the abolition of the liquor trade among the fishing vessels in the North Sea. Since serious quarrels and difficulties were caused through bumboats and floating grog-shops selling intoxicating liquors to the fishermen, an International Conference took place at the Hague in 1886, where the signatory Powers of the Hague Convention concerning the fisheries in the North Sea were represented. And on November 16, 1887, the International Convention concerning the Abolition of the Liquor Traffic among the fishermen in the North Sea was signed by the representatives of these Powers—namely, Great Britain, Belgium, Denmark, France, Germany, and Holland. This treaty[573] was, however, not ratified until 1894, and France did not ratify it at all. It contains the following stipulations:[574]—

It is interdicted to sell spirituous drinks to persons on board of fishing vessels, and these persons are prohibited from buying such drinks (article 2). Bumboats, which wish to sell provisions to fishermen, must be licensed by their flag State and must fly a white flag[575] with the letter S in black in the middle (article 3). The special cruisers of the Powers which supervise the fisheries in the North Sea are likewise competent to supervise the treaty stipulations concerning bumboats; they have the right to ask for the production of the proper licence, and eventually the right to arrest the vessel (article 7). But arrested vessels must always be brought into a harbour of their flag State, and all contraventions are to be tried by Courts of the flag State of the contravening vessel (articles 2, 7, 8).

§ 284. In 1886 a conflict arose between Great Britain and the United States through the seizure and confiscation of British-Columbian vessels which had hunted seals in the Behring Sea outside the American territorial belt, infringing regulations made by the United States concerning seal fishing in that sea. Great Britain and the United States concluded an arbitration treaty[576] concerning this conflict in 1892, according to which the arbitrators should not only settle the dispute itself, but also (article 7) "determine what concurrent regulations outside the jurisdictional limits of the respective Governments are necessary" in the interest of the preservation of the seals. The Arbitration Tribunal, which assembled and gave its award[577] at Paris in 1893, imposed the duty upon both parties of forbidding their subjects to kill seals within a zone of sixty miles around the Pribilof Islands; the killing of seals at all between May 1 and July 31 each year; seal-fishing with nets, firearms, and explosives; seal-fishing in other than specially licensed sailing vessels. Both parties in 1894 carried out this task imposed upon them.[578] Other maritime Powers were at the same time asked by the United States to submit voluntarily to the regulations made for the parties by the arbitrators, but only Italy[579] has agreed to this.

Experience has shown that the provisions made by the Arbitration Tribunal for the purpose of preventing the extinction of the seals in the Behring Sea are insufficient. The United States therefore invited the maritime Powers whose subjects are engaged in the seal fisheries to a Pelagic Sealing Conference which took place at Washington in 1911, and produced a convention[580] which was signed on July 7, 1911, by which the suspension of pelagic sealing for fifteen years was agreed upon.

[No further details of this Convention are as yet known, and it has not yet been ratified.]

§ 285. For the purpose of regulating the fisheries outside territorial waters around the Faröe Islands and Iceland, Great Britain and Denmark signed on June 24, 1901, the Convention of London,[581] whose stipulations are for the most part literally the same as those of the International Convention for the Regulation of the Fisheries in the North Sea, concluded at the Hague in 1882.[582] The additional article of this Convention of London stipulates that any other State whose subjects fish around the Faröe Islands and Iceland may accede to it.

VII TELEGRAPH CABLES IN THE OPEN SEA

Bonfils, No. 583—Despagnet, No. 401—Pradier-Fodéré, V. No. 2548—Mérignhac, II. p. 532—Nys, II. p. 170—Rivier, I. pp. 244 and 386—Fiore, II. No. 822, and Code, Nos. 1134-1137—Stoerk in Holtzendorff, II. pp. 507-508—Liszt, § 29—Ullmann, § 103—Lauterbach, "Die Beschädigung unterseeischer Telegraphenkabel" (1889)—Landois, "Zur Lehre vom völkerrechtlichen Schutz der submarinen Telegraphenkabel" (1894)—Jouhannaud, "Les câbles sous-marins" (1904)—Renault, in R.I. XII. (1880), p. 251, XV. (1883), p. 17. See also the literature quoted below, vol. II., at the commencement of § 214.

§ 286. It is a consequence of the freedom of the Open Sea that no State can prevent another from laying telegraph and telephone cables in any part of the Open Sea, whereas no State need allow this within its territorial maritime belt. As numerous submarine cables have been laid, the question as to their protection arose. Already in 1869 the United States proposed an international convention for this purpose, but the matter dropped in consequence of the outbreak of the Franco-German war. The Institute of International Law took up the matter in 1879[583] and recommended an international agreement. In 1882 France invited the Powers to an International Conference at Paris for the purpose of regulating the protection of submarine cables. This conference met in October 1882, again in October 1883, and produced the "International Convention for the Protection of Submarine Telegraph Cables" which was signed at Paris on April 16, 1884.[584]

The signatory Powers are:—Great Britain, Argentina, Austria-Hungary, Belgium, Brazil, Colombia, Costa Rica, Denmark, San Domingo, France, Germany, Greece, Guatemala, Holland, Italy, Persia, Portugal, Roumania, Russia, Salvador, Servia, Spain, Sweden-Norway, Turkey, the United States, and Uruguay. Colombia and Persia did not ratify the treaty, but, on the other hand, Japan acceded to it later on.

§ 287. The protection afforded to submarine telegraph cables finds its expression in the following stipulations of this international treaty:—

(1) Intentional or culpably negligent breaking or damaging of a cable in the Open Sea is to be punished by all the signatory Powers,[585] except in the case of such damage having been caused in the effort of self-preservation (article 2).

(2) Ships within sight of buoys indicating cables which are being laid or which are damaged must keep at least a quarter of a nautical mile distant (article 6).

(3) For dealing with infractions of the interdictions and injunctions of the treaty the Courts of the flag State of the infringing vessel are exclusively competent (article 8).

(4) Men-of-war of all signatory Powers have a right to stop and to verify the nationality of merchantmen of all nations which are suspected of having infringed the regulations of the treaty (article 10).

(5) All stipulations are made for the time of peace only and in no wise restrict the action of belligerents during time of war.[586]

VIII WIRELESS TELEGRAPHY ON THE OPEN SEA

Bonfils, Nos. 53110, 11—Despagnet, 433quater—Liszt, § 29—Ullmann, § 147—Meili, "Die drahtlose Telegraphie, &c." (1908)—Schneeli, "Drahtlose Telegraphie und Völkerrecht" (1908)—Landsberg, "Die drahtlose Telegraphie" (1909)—Kausen, "Die drahtlose Telegraphie im Völkerrecht" (1910)—Rolland in R.G. XIII. (1906), pp. 58-92—Fauchille in Annuaire, XXI. (1906), pp. 76-87—Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.

§ 287a. To secure radio-telegraphic[587] communication between ships of all nations at sea and the continents, a Conference met at Berlin in 1906, where Great Britain, Germany, the United States of America, Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Chili, Denmark, Spain, France, Greece, Italy, Japan, Mexico, Monaco, Norway, Holland, Persia, Portugal, Roumania, Russia, Sweden, Turkey, and Uruguay were represented, and where was signed on November 3, 1906, the International Radio-telegraphic Convention.[588] This Convention, which consists of twenty-three articles, is accompanied by a Final Protocol, comprising six important articles, and by Service Regulations, embodying fifty-two articles. The more important stipulations of the Convention are the following:—Coast Stations and ships are bound to exchange radio-telegrams reciprocally without regard to the particular system of radio-telegraphy adopted by them (article 3). Each of the contracting parties undertakes to cause its coast stations to be connected with the telegraph system by means of special wires, or at least to take such other measures as will ensure an expeditious exchange of traffic between the coast stations and the telegraph system (article 5). Radio-telegraph stations are bound to accept with absolute priority calls of distress from ships, to answer such calls with similar priority, and to take the necessary steps with regard to them (article 9). An International Bureau shall be established with the duty of collecting, arranging, and publishing information of every kind concerning radio-telegraphy, and for some other purposes mentioned in article 13.

§ 287b. To secure radio-telegraphic communication between such ships at sea as possess installations for wireless telegraphy, an Additional Convention[589] to that mentioned above in § 287a was signed on November 3, 1906, by all the Powers who signed the forementioned Convention except by Great Britain, Italy, Japan, Mexico, Persia, and Portugal. According to this additional Convention all ships at sea which possess radio-telegraphic installations are compelled to exchange radio-telegrams reciprocally at all times without regard to the particular system of radio-telegraphy adopted.