Abstract
The late Professor Brierly wrote:
The line from which territorial waters1 are measured ceases to follow the sinuosities of the coast when it reaches a bay or other indentation in the coast, both shores of which belong to the same state, and it crosses the waters of the bay from shore to shore. So much is generally admitted, but two important questions remain: (i) what is the character of the waters on the landward side of this imaginary line drawn across the bay? and (ii) where is the line to be drawn?2
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
In order to resolve ambiguity in terminology, this writer will substitute the words “marginal belt” for “territorial waters” when referring to a State’s coastal waters which are to seaward of the base line and through which a right of innocent passage is normally accorded by International Law. In some instances writers have called these waters “territorial” waters, e.g., Brierly; some have called inland waters “territorial”, while others have applied the term ‘territorial waters’ to both the marginal belt and to inland waters. Examples of the ambiguity: (1) Jessup writes: “There can be no question that such bays are included within the territorial waters of the State.” The Law of Territorial Waters and Maritime Jurisdiction, p. 358. (2) Moore, in discussing the ten mile line, writes of “the transgression of an encroachment upon territorial waters,” 13 Annuaire de L’Institut de Droit International (1894–95), p. 146. (3) Cressy writes: “The waters within this three mile limit from the coast are called by Dr. Twiss a State’s Jurisdictional Waters; and the term is convenient as distinguishing them from the parts of the sea that are within its ports, havens, and landlocked gulfs, which may be quite correctly called its territorial waters,” First Platform of International Law, p. 237. Hyde is careful to distinguish the terms, International Law Chiefly as interpreted and applied by the United States, 2nd Ed., p. 451, 468. A clearly phrased distinction is contained in Resolution I adopted by the Institute of International Law at its session of Amsterdam, 18–27 Sept. 1957, reprinted in 52 American Journal of International Law (Jan. 1958), at pp. 103–5.
James L. Brierly, The Law of Nations, An Introduction to the International Law of Peace, 4th Ed., (1949), p. 166.
Lord Chief Justice Hale, A Treatise Relating to the Maritime Law of England, p. 10.
Sir Cecil Hurst, “The Territoriality of Bays,” British Yearbook of International Law, 1922–23, p. 42.
See also: A. L. Shalowitz, U. S. Coast and Geodetic Survey, “The Concept of a Bay as Inland Waters,” 13 Surveying and Mapping (Oct.-Dec. 1953), pp. 432–40.
n1, supra. This term will be used by the writer when referring to those waters of a bay which are to landward of the closing line. This is the term used in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone. Care should be exercised not to confuse the term “internal waters” in the context of this book with the term “inland waters” as used by mariners entering United States coastal waters, where in certain localities they are required to operate under what are called Inland Rules of the Road. United States legislation uses the term “Inland Waters” in specifying where such rules apply. Public Law 232, 83rd Congress (67 Stat. 497). The boundary lines for “Inland Waters” within the meaning of United States Inland Rules of the Road do not necessarily coincide with the base lines delimiting the regime of internal waters as understood in general international law. United States v. Newark Meadows Improvement Co. 173 Fed. 426 (1909). Boundary lines delimiting U.S. inland waters for purposes of rules of the road are shown in CAPT Raymond F. Farwell USNR, The Rules of the Nautical Road, Rev. Ed. by LT Alfred Prunski USCG (1954), pp. 391–6. See also, A. L. Shalowitz, “Where are our Seaward Boundaries ?” 83 U. S. Naval Institute Proceedings (June 1957), pp. 616–627). Certain French writers have applied the adjective “national” to describe these waters, e.g. Doctor Jean Mochot uses “la mer national” in Le Régime des Baies et des Golfes en droit International (1938). Doctor Romée de Villeneuve uses les eaux nationales’, in La Ligne séparative des Eaux nationales et de la Mer Territoriale (1914). Professor Gidel uses the term “les eaux intérieures” in Le Droit International Public dela Mer (1934).
Hyde, op. cit., p. 468.
Myres S. McDougal and William T. Burke, “Crisis in the Law of the Sea: Community Perspectives versus National Egoism,” 67 Yale Law Journal (Feb. 1958), p. 551.
Provision for an exception to the general rule appears in Part I, Art. 5(2) of the Convention on the Territorial Sea and Contiguous Zone (Geneva, 1958) (Hereinafter referred to as the 1958 Geneva Convention) which reads: “Where the establishment of a straight baseline in accordance with Article 4 has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage, as provided in Articles 14 to 23, shall exist in those waters.” 52 American Journal of International Law (1958), p. 835. This provision was recommended by the United Nations International Law Commission in its final draft on the law of the territorial sea. U.N. General Assembly, nth Session, 6th Committee. Reference Guide to the Articles concerning the Law of the Sea adopted by the International Law Commission as its Eight Session, A/C.6/L.378 of 25 Oct. 1956. The Commentary on this recommended provision, contained in General Assembly, Official Records: Eleventh Session, Supplement No. 9 (A/3159), at p. 14, indicates that it was entered to safeguard the rights of foreign States to continued passage after a State has altered its system of baselines, which the commission seemed to conclude was permissible as a result of the decision in United Kingdom v. Norway. See International Court of Justice Reports 1951, pp. 129–130.
Infra, Chapters 4 and 5.
Infra, Chapter 5. See also UN Doc. A/C.6/1.378, and Eric Suy, “Les Golfes et les Baies en Droit International Public,” 54 Friedens-Warte (Nov. 2, 1957), pp. 108–111.
Infra, Chapter 2.
Art. 3 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone reads: “Except where otherwise provided in these Articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state.” It may be observed that differences in the range of tides and beach gradients in various parts of the world are, in the interest of establishing a general rule, necessarily ignored. Likewise ignored are differences in showing low-tide marks, or “reference planes,” as among the several charting systems in use in the world today: Mean low water, mean lower low water, and mean low water springs. Hill, Utegaard and Riordan, Dutton’s Navigation and Piloting (1958), p. 203. Detailed comments on this matter were received by the preparatory committee for the 1930 Hague Codification Conference, 24 American Journal of International Law, Supplement (1930), p. 30. The 1958 Geneva Conference, on the recommendation of the International Law Commission, considered that detailed provisions could be omitted inasmuch as it was not believed that such omission would induce governments to shift low-water lines on their charts unreasonably. UN Committee of Experts Report, A/CN.4/61/Add.1; UN Doc. A/3159, p. 13; UN Doc. A/C6/L.378, pp. 24–5;
Gidel, in Le Droit international public de la Mer (1934), Tome III, discusses the matter of tidal differences in some detail at pages 517 to 521. At page 520 he includes a table showing the chart reference planes of various maritime States. In connection with the clause, “on large-scale charts officially recognized by the coastal state,” Sub-Committee No. II of the 1930 Hague Conference reported: “Not every State, it is true, possesses official charts published by its own hydrographic services but every Coastal State has some chart adopted as official by the State authorities.” The UN Committee of Experts recommended that, “if no detailed charts of the area have been drawn, which show the low-water line, the shore line (high-water line) should be used.” It may fairly be conjectured that if a coastal State has any interest at all in its seaward boundary, it will take appropriate steps to measure the low-water mark and adopt an “Official” chart.
Art. 4 of 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone.
Art. 5 of 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone.
In the various Meetings of the United Nations International Law Commission, efforts were made — and then abandoned — to apply an arithmetic rule to the establishment of base lines. The Committee of Experts recommended a maximum length of ten miles. UN Doc. A/6N.4/61/Add. 1. For a discussion of the rationale (limit of vision) behind a 10-mile rule, see Chapter 5. infra. In its Third Meeting, the Commission adopted the recommendation and further agreed that every such line should be drawn within five miles of the coast. UN Doc. A/CN.4/77, p. 7. UN Doc. A/C.6/L.378, p. 30. Subsequently, the Commission recommended, and the Geneva Conference adopted, rules more in line with the opinion in United Kingdom v. Norway.
International Court of Justice Reports 1951, pp. 129–130.
See infra, Chapter 5, for a discussion of the development of this formula, and efforts at codification.
Ibid. The apparent need for such criteria was evident in the North Atlantic Coast Fisheries Arbitration of 1910. In that case, the tribunal was directly confronted with the problem of defining a bay. The tribunal, in its opinion, said that it was “unable to understand the term ‘bays’…. in other than its geographical sense, by which a bay is to be considered as an indentiation of a coast, bearing a configuration of a particular character easy to determine specifically, but difficult to describe generally.” There followed in the opinion descriptive language which can be interptered, not inaccurately, as saying that a bay is something shaped like a bay. One of the tribunal, Dr. Luis Drago, dissented vigorously, saying, in part, “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 as such. There lies the whole contention, and the whole difficulty….” Vol. I, Senate Document No. 870, 61st, Congress, 3rd Session, pp. 93–112.
Reply of the United Kingdom, I.C.J. Reports, 1951, Vol. II, p. 416.
See Section B., Origins, infra, pp. 8–10.
I.C.J. Reports, 1951, Vol. II, p. 416. The United Kingdom Government requested the Court to make certain precise pronouncements in its decision, including a 10-mile ruling on the closure line for bays. This the court declined to do. One can discuss at great length, and without much productive result, the likely motives behind this request and the long run value of making it at all. Superficially, a positive ruling by the court, has some merit. It has great appeal to those who seek neat, tidy, solutions: Dr. Rommée de Villeneuve wrote in his 1914 thesis: “On ne concevrait plus, de nos jours, un État qui ne soit pas fixé sur un territoire nettement délimité.” La Ligne separative des Eaux nationales et de la Mer territoriale, p. 9. From here, the argument on borders and the obsolescence of the system of nation state territorial sovereignty can proceed indefinitely. De Lapradelle wholly understated the situation when he wrote: “Le phénomène politique de la frontière n’est pas un phénomène simple.” Paul G. de Lapradelle, La Frontière (1928 doctoral thesis, University of Paris) p. 14.
Judge de Visscher wrote further: “Authors, who, like Professor Schücking, have taken a different position have been guided less by objective observation of the state of the law in force than by a spirit of generalization that pushed them to codify the matter.” Theory and Reality in Public International Law, Tr. by P. E. Corbett (1957), p. 215. The Professor Schücking, to whom Judge de Visscher refers, prepared the draft convention for the 1930 Codification Conference. UN Memorandum on Historic Bays, A/Conf.13/1, p. 44; League Publication V, Legal, 1927, V. 1, p. 58.
When applied to the social field of law, the adjective, “scientific,” appears to refer to a method of analysis combining precise observation and objective reasoning. Harriett Martineau, The Positive Philosophy of Auguste Comte (1853), Vol. I, p. 16;
Will Durant, The Story of Philosophy (1926), p. 352;
Julius Stone, The Province and Function of Law, (1946), pp. 401–2;
Hans Kelsen, General Theory of Law and State (1949), p. 438. Obviously, the social fields seldom pose problems yielding solutions having the finality of euclidean geometry.
Jean Mochot, Le Régime des Baies et des Golfes en Droit international (1938).
Like Mochot, this writer has drawn his conclusions largely from a study of: du Mont, Corps universel diplomatique du Droit des Gens contenant un Recueil des Traités (1731) and (Un ancien) Diplomate, Le Régime des Capitulations, son Histoire, son Application, ses Modifications (1898). The conclusion is fortified by the comments of a number of authors cited hereinafter. 2 pp. 5–6, supra.
International Court of Justice Reports 1951, Vol. II, p. 309.
Sir Henry Maine, International Law (1888), p. 75. This view seems to be shared by Professor Percy Corbett in a much more recent wotk. Law in Diplomacy (1959), Ch. IV.
I.C.J. Reports, 1951, Vol. II, p. 312.
Hugo Grotius, The Freedom of the Seas, first published in 1608. The version here is the Magoffin translation, published by the Carnegie Endowment for International Peace in 1916.
G. F. Von Martens, A Compendium of the Law of Nations, Tr. William Cobbett (1802), p. 160.
John Seiden, Mare Clausuni; the Right and Dominion of the Sea, Tr. by J. H., Gent, (1663). All page references hereinafter are to this edition of Selden’s work;
M. Huet, Histoire du Commerce et de la Navigation des Anciens (1773), pp. 7–11. These authors refer to the Book of Genesis, Chs. 8–10.
LCDR John Forsyth Meigs USN (RET), The Story of the Seaman, (1912) pp. 3–10;
Frank C. Bowen, The Sea, Its History and Romance (1924) Vol. I.;
A. Du Sein, Histoire de la Marine de Tous les Peuples (1879) Vol. I. The Meigs work shows evidence of protracted and careful scholarship by a devoted American officer whose promising naval career was cut short by physical infirmity.
Sir Henry Maine, Early History of Institutions (1888); pp. 378–382;
B. Malinowski, Crime and Custom in Early Society (1926), pp. 50–59;
E. Adamson Hoehl, The Law of Primitive Man (1954), pp. 121–3;
I. Shapera, Government and Politics in Tribal Societies (1956), p. 2;
Sir Henry Maine, Ancient Law (1888) Holt Edition, p. 124;
Julius Stone, The Province and Function of Law (1946) pp. 451–7.
Maine, Ancient Law, Ch. VIII; Maine, Early History of Institutions; Lauterpacht, Private Law Sources and Analogies of International Law (1927), pp. 91–106, concerning analogy between law of property and territorial sovereignty.
Meigs, The Story of the Seaman, (1912) pp. 6–9.
H. A. Calahan, The Sky and the Sailor, A History of Celestial Navigation (1952), Ch. I. The Calahan book is one written for the general reading public.
Hewitt, Ruling Races in Prehistoric Times (1894–5), p. 140. Pariset, Histoire de la Soie, p. 121.
James Reddie, Researches Historical and Critical in Maritime International Law (1844), pp. 23–4;
Huet, Researches Historical and Critical in Maritime International Law (1844), pp. 12–18;
Seiden, Researches Historical and Critical in Maritime International Law (1844), pp. 17–42;
Mauritius Müller-Jochmus, Geschichte des Völkerrechts im Altertum (1848), pp. 17–20;
Domenico A. Azuni, The Maritime Law of Europe (1806), pp. 1–8;
Voltaire, A Philosophical Dictionary (English Edition of London, 1824) Vol. V, pp. 240–2;
Charles Malloy, A Treatise of Affairs, Maritime and Commerce, 3rd Ed. (1682), pp. 29–38.
The writer is especially indebted to the work of Henry A. Ormerod, whose work, Piracy in the Ancient World (1924), is a scholary and thoroughly documented book indicating research that would be difficult to equal.
Sir Henry Maine writes: “The closing of seas meant delivery from violent depradation at the cost of or by the exertion of some power or powers stronger than the rest.” International Law, p. 77. This is an obvious conclusion to be drawn from Plutarch’s life of Cimon, Plutarch’s Lives (Modern Library Edition) pp. 577–592; Müller-Jochmus, Piracy in the Ancient World (1924), pp. 236–8, citing Herodotus, Bk. VII, and Aristotle, Bk. II.
Coleman Phillipson, The International Law of Ancient Greece and Rome (1911) Vol. II, p. 367;
John Seiden, The International Law of Ancient Greece and Rome (1911) Chs. 6, 10;
Pitman B. Potter, The Freedom of the Seas in History, Law and Politicus (1924), p. 11.
Naval architecture of the antiquity has been quite thoroughly studied as is evident by the plethora of carefully written books on the subject and by the number of reproductions of ancient ships that have been constructed. Homer describes the ships in some detail in the Oddysey. For comments on their lack of seaworthiness, see: LeRoy, La Marine des Anciens Peuples (1777), pp. 28–35;
J. L. Torr, Ancient Ships (1894), p. 5 et seq; Arthur MacCartney Shepard, Sea Power in Ancient History (1924), p. 12.
Levin Goldschmidt, “Universalgeschichte des Handelsrechts,” Part I, Tr. John H. Wigmore, Primitive and Ancient Legal Institutions (1915), Albert Kocourek and John H. Wigmore, Eds., p. 411. Goldschmidt writes “… as the art of seamanship developed, and the observation of the heavens increased their knowledge of astronomy (amounting in Babylon to a veritable science), voyages on the high seas were made as early as the Phoenician period.” Frederick J. Pohl and CAPT Leonard B. Loeb USNR (Ret) write that as early as 146 to 126 B. C., Hiparchos, the Greek astronomer on the island of Rhodes, established the geographical system of latitude and longitude, “Americo Vespucci, Pioneer Celo-Navigator and Geographer,” 83 U.S. Naval Institute Proceedings (Apr. 1957), p. 399ff. But Meigds, op. cit., Chs. 1–2; and Bowen, op. cit., Vol. I, who have related their studies to the whole body of the maritime arts, lead one to the conclusion that high seas navigation and sailing were much slower to eventuate in general practice than some of the accomplishments of early astronomers and the recorded histories of some adventurers would suggest. See also: Per Collinder, A History of Marine Navigation (1954), Chs. I–III; Baron de Montesquieu, The Spirit of Laws, Tr. Thomas Nugent (1900), Vol. I, pp. 334–349;
Bowditch, American Practical Navigator, 1958 Edition, pp. 15–29.
Ormerod, American Practical Navigator, 1958 p. 154.
Azuni, American Practical Navigator, 1958 pp. 24–32;
Seiden, American Practical Navigator, 1958 bk i, ch. 3.
M. Huet, Histoire du Commerce et de la Navigation des Anciens, (1716), Ch. VII;
Pardessus, Us et Coutumes de la Mer (1847) Ch. I;
Justice, A General Treatise of the Dominion of the Sea (1710), pp. 16–24. Within these pages, Justice has prepared a sort of brief digest on sea sovereignty, complete with references to ancient writers.
Professor Pitman B. Potter, The Freedom of the Seas in History Law, and Politics (1924), p. 15.
Mauritius Müller-Jochmus, Geschichte des Völkerrechts im Altertum (1848), p. 237.
John Seiden, Geschichte des Völkerrechts im Altertum (1848), pp. 4–5, 127–135.
He cites the Book of Genesis I: 2, 28 in which it is written that after the Great Flood, the Lord permitted Noah to divide the earth and the seas into dominions over which his sons were to rule. Apparently, this Divine guidance was, in the eyes of Seiden, sufficient to quash any argument against possession of the sea by reason of its nature. Huet also uses this argument, commencing his historical analysis with the abatement of the Great Flood.
Cornelius van Bynkershoek, “De Domínio Maris Dissertatis,” Tr. R. V. Magoffin. The Classics of International Law, James B. Scott, Ed., p. 43.
Numbers 34: 10; Joshua 15–20; Psalm 95: 15 reads, inter alia, “The sea is his, for He made it”; Psalm 115: 16 reads, inter alia, “but the earth He has given to the sons of men.” Of passing interest is the fact that the word bay is mentioned four times in the King James version of the Bible as follows: Joshua 15: 2, 5: Joshua 18: 19 and Acts 27: 39. References in the Book of Joshua concern the termination of a land boundary at a bay in the Dead Sea. A reference in the Book of Acts concerns a bay used as shelter during a voyage of the apostle Paul; John W. Ellison, Nelson’s Complete Concordance of the Revised Standard Version Bible (1952), p. 133.
Abdullah Yosuf Ali, The Holy Qur’an, Text, Translation and Commentary, 2 vols (1946). According to Majid Khadduri, Muslim law defines the status of the territory with respect to the Muslim community, not the status of the Muslim in relation to territory. Since the allegiance of the dwellers in a community appears to be the basis of territorial sovereignty under Muslim law, it would appear illogical for Muslim law to provide for sovereignty over other than land areas. War and Peace in the Law of Islam (1955), pp. 154–8.
“The History of Herodotus,” Bk. II, Sect. 179. Great Books of the Western World, Vol. 6, p. 87.
Phillipson, op. cit., p. 70.
Philip K. Hitti, Lebanon in History (1957), p. 99. citing Strabo, Bk. XVI, Ch. 23.
Julius Caesar, Gallic Wars, Bk. III, Ch. 8, cited by John Seiden, op. cit., p. 76.
Regretfully, the author does not have a reading knowledge of Latin or Greek, and was thus prevented from verifying all citations.
Seiden, op. cit., p. g3.
Plutarch, “Cimon,” Plutarch’s Lives (Modern Library Edition), p. 587. Instead of “galleys or vessels of war,” Selden’s own translation reads “a ship built long or beaked.” According to LeRoy (op. cit., p. 84) long or beaked vessels were, characteristically, warships.
Müller-Jochmus, op. cit., p. 243.
Pitman Potter, op. cit., p. 18.
e.g. Herodotus, VI.; Thycidides, VII; Shepard, op. cit.; Meigs op. cit., G. Grote. History of Greece (1864), Vols. II, V;
Dr. Ernest Curtius, The History of Greece (1883), Vols. II, III;
George W. Cox, The Tale of the Great Persian War (1861);
ADM Sir Reginald distance, Royal Navy, War at Sea, Modem Theory and Practice (1919).
Dr. William Smith, A Dictionary of Greek and Roman Geography (1878), Vol. I, pp. 424–606.
National Geographic Society Plate 47 of Jan 1959; “Lands of the Eastern Mediterranean.”
Curtius, A Dictionary of Greek and Roman Geography (1878), Vol. II, p. 454. Giuseppina Lombardo interpreted the Greek writing as meaning “three-days’ journey” by road. See n.41, infra.
Actually, the treaty was the objective of the Embassy of an Athenian citizen, Callias, to the court of Artaxerxes, King and heir of his father who commanded the Persian invading forces. Curtius writes that Artaxerxes would have felt no compulsion to sign the treaty and that it is highly unlikely that he would have so acceded to the wishes of the Greeks. Curtius, op. cit., p. 455. In Cimon, Ricostruzione della Biographica e Discussioni Storografiche (1934), Signorina Giuseppina Lombardo attempts to unravel the strands of the treaty story, and concludes that it is unlikely that such a treaty was signed (pp. 128–138).
Curtius, op. cit., Vol. I, p. 454.
Plutarch’s Lives, “Pericles,” p. 197.
Pitman Potter, op. cit., p. 15.
L. B. Hautefeuille, Histoire des Origines, des Progrès, et des Variations du Droit maritime international (1858), p. 83.
George Ténékides, “Droit international et Communautés fédérales dans la Grèce des Cités” 90 Recueil des Cours de l’Académie de Droit international de la Haye (1956), vol. II, pp.475–636.
Phillipson, “Droit international et Communautés fédérales dans la Grèce des Cités” 90 Recueil des Cours de l’Académie de Droit international de la Haye (1956), vol. II, p. 376.
Pitman Potter, “Droit international et Communautés fédérales dans la Grèce des Cités” 90 Recueil des Cours de l’Académie de Droit international de la Haye (1956), vol. II, p. 25.
Baron Malouet, Considérations historiques sur l’Empire de la Mer chez les Anciens et les Modernes (1810), p. 7.
Plutarch described Cimon’s performance as a sea commander thus: “He made the Aegean a free sea.” Plutarch, “Cimon” p. 587.
Friedrich Ratzel, Das Meer als Quelle der Völker grösse. Eine Politisch-geographische Studie (1900); RADM Alfred T. Mahan USN (RET), The Interest of America in Sea Power, Present and Future (1918);
James A. Field Jr., “Sea Power and Military Strategy Today,” VIII U.S. Naval War College Review (Apr. 1956), pp. 21–39.
Henry A. Ormerod, Piracy in the Ancient World, p. 140.
Ibid.
Reddie, op. cit., pp. 27–9; Plybius, Bk. 3, Ch. 3; von Scala. op. cit., p. 85; Azuni, op. cit., p. 49.
Angelo Piero Sereni, The Italian Conception of International Law (1943), p. 70.
Müller-Jochmus, The Italian Conception of International Law (1943), p. 252;
Arnold Raestad, La Mer Territoriale (1913), pp. 8–9, 51–52.
Digest XLIII, 3, 8.
It is believed to be much beyond the scope of this study to discuss in further detail the question of the sea in Roman law, since, as Raestad explains, it has primarily to do with interpretations of what was understood and intended by the Romans in their written law and practice with respect to jurisdiction on the high seas. Raestad points out the use by the Roman jurisconsults of the terms communia and publia. One must agree with Raestad that the jurisconsults did not always distinguish the two terms with nicety. But it appears that communia was generally applied to the sea, in a manner juris gentium, while publia or a public thing, that is belonging to Roman people, was applied to rivers and ports. Raestad, op. cit., pp. 1–10. But one must fairly conclude that the distinction here was one of degree rather than of legal concept. It is the considered opinion of this author that one puts a strain upon Roman history and law if one attempts to utilize them in arguments concerning freedom of the sea. It does not appear that in Roman times, freedom of the sea was a matter of formal International Law. Pitman Potter, Droit international et Communautés fédérales dans la Grèce des Cités’ 90 Recueil des Cours de l’Académie de Droit international de la Haye (1956), vol. II, pp. 33–5;
Percy E. Corbett, Law in Diplomacy (1959), p. 116;
See also, Arthur Nussbaum, A Concise History of the Law of Nations (1954), p. 10, on Juris gentium.
See Azuni, A Concise History of the Law of Nations (1954), pp. 54–76, for a concise account of Roman operations for control of the sea.
James R. Schlesinger, “The Perspective of Economics,” National Security Studies 1957, U.S. Naval War College. Doctor Schlesinger cites the oft-quoted statement of the British Professor Lionel Robbins: “Economics is the science which studies human behavior as a relationship between ends and scarce means which have alternative uses.”
Paul A. Samuelson, Economics, 4th Ed. (1959), p. 16.
World population is estimated currently at 2.6 billion persons. The rate of increase is estimated to be 1.3 percent annually. This will lead to an estimated world population of nearly 5 billion by 2000 A.D. and nearly 7 billion by 2050 A.D. United Nations Publication, The Determinants and Consequences of Population Trends, ST/SOA/Ser. A/17 (1953), pp. 10–14;
Brown, Bonner and Weir, The Next Hundred Years (1937), Ch. 7;
Sir E. John Russell, World Population and World Food Supplies (1954), pp. 17–23; UN FAO Stat. Year Book, 1951.
The exceptation is Antarctica, and even here the United States is the principal great power refusing to recognize a number of claims to sovereignty over parcels of land in that barren continent.
See infra, Ch. 4. Professor Riesenfeld writes that legal solutions of economic controversies and legal adjustments of conflicting interests are seldom furnished by simple formulas. He stresses the difficulty in ascertaining the law. Protection of Coastal Fisheries under International. Law (1942), p. 2. The North Atlantic Fisheries Arbitration case exemplifies the absence of then prevailing positive rules, although the tribunal’s opinion does not reflect any consideration of relative economic interests; Scott, Hague Reports, p. 146ff. In 1933, Lauterpacht struggled to suggest some means of settling economic conflicts and suggested, in a not altogether satisfying fashion, that States might resort to conciliation, The Function of Law in the International Community, pp. 366–371. Stone concludes: “To seek to transfer notions of justice automatically from the municipal to the international sphere is to sow strange seeds in unprepared soil, and reap little harvest.” Legal Controls of International Conflict, p. 56. While this is perhaps true, we have only the choices of growing unrest, politically inspired charity, or sowing the seed. It would appear that in the interim between 1910 and 1951, some of the seeds have been sown. It is to be observed, however, that if disputes in an increasingly complex world are to be settled on the basis of notions of justice rather than on abstract right resting in an insufficiently developed law, then basic understanding of the complex causes of issues must proceed apace.
Excellent examples, among a vast wealth of materials, are explained in George N. Halm, Economic Systems, A Comparative Analysis (1951);
Robert W. Davies, Development of the Soviet Budgetary System (1957),
Holland Hunter, The Soviet Transportation System (1956). The latter work is especially significant for its explanation of the 2-year rail transport crisis of 1930–2 in the Soviet Union.
See pp. 3–4, supra, for distinction between internal waters and the marginal belt.
What is involved here is the dynamics of economic change, the extreme variability and inefficiency of some markets and the oft-opposing pressures of dynamism and stability in a field where all factors are interrelated, but where the degree of relationship itself may not be clearly understood. Tibor Seitovsky, Welfare and Competition (1951), Ch. XXI;
Lorie Tarshis, Introduction to International Trade and Finance (1935), pp. 8–14;
Gottfried Haberler, A Survey of International Trade Theory (1955), pp. 17–25.
The classic example is the domestic debate in the United States over commercial policy. On this, even American economists who are primarily academicians can differ rather fundamentally, e.g., Charles P. Kindleberger, “Statement on Imports, the Tariff, and the Need for Adjustment,” Compendium of Papers on U.S. Foreign Trade Policy, U.S. House of representatives Committee on Ways and Means (1957), pp. 73–8;
and Seymour Harris, International and Interregional Economics (1957), pp. 324–328. In the U.S. domestic field per se, the great and well-known example is the farm subsidy program.
ICJ Reports, 1951, pp. 127, 128, 133.
Excluded from this discussion, of course, is the continental shelf, the sea-bed, and the sub-soil except insofar as it is concerned with sedentary fisheries. It is of interest to note, however, that if a state exercises sovereignty over a large bay in which are located structures for the extraction of minerals from the sub-soil, such State would not appear bound to observe rules of international law such as are proposed in Artivle 5 of the 1958 Geneva Convention on the Continental Shelf. 52 American Journal of International Law (Oct. 1958), p. 859. In this connection one must observe that Article 15 of the 1958 Convention on the Territorial Waters and the Contiguous Zone requires the coastal State to give appropriate publicity to any dangers to navigation, of which it has knowledge, within its territorial sea. ibid., p. 838. This provision does not extend to internal waters except under an appropriate interpretation of Article 5(2) of the latter Convention. ibid., 835.
Although both juridical bays and ports embrace internal waters, and the jurisdictional rights permitted the coastal state by International Law are substantially alike, they are handled separately by most publicists, e.g. Oppenheim and Hyde. While all except man-made harbors are located in some sort of bay or coastal indentation, it hardly follows that every bay has potential value as a harbor. For an excellent discussion of what characteristics are prerequisite for a commercial harbor, see Klimm, Starkey and Hall, Introductory Economic Geography (1937), pp. 278–283. While the legal status of a harbor as internal waters has seldom been doubted, the territoriality of bays has had a more mixed history (See Chapter 4). As late as 1955, Lauterpacht maintained that in bays, navigation must be open, Oppenheim, 8th Ed., p. 510, but this is a highly doubtful proposition not supported in the 1958 Geneva Conference. It appears that separate treatment of harbors and bays is something of an anachronism and as a practical matter the distinction is lost on the mariner.
There appears to be a thorny problem of interpretation of this provision which will be commented upon (along with other drafting matters) in Chapter 5.
William H. Dean, Jr., The Theory of Economic Activities, with Special Reference to Historical Change, Unpublished PhD dissertation, Harvard University 1938, p. 103.
Percy M. Roxley, “What is a natural region?”, IV Geographical Review (1908). p, 127.
A. Waerkof, “La Géographie de l’alimentation humaine,” XX La Géographie (1909), pp. 225–240, 281–286.
M. Aronsseau, “The Distribution of Population: A Constructive Problem,” XI Geographical Review (1921), pp. 579–80;
A. P. Usher, “The History of Population and Settlement in Eurasia,” XX Geographical Review (1930), pp. 110–132.
Rachel Carson, The Sea Around Us (1950), p. 25.
Robert Morgan, World Sea Fisheries (1956), Chs. I, II. In the foreword to his work, Doctor Morgan says it is his intention to make a survey of the sea fisheries of the world as a whole and to isolate the most significant features and trends from the mass of detail in official statistics. Written on the assumption that not all of its readers are familiar with fishery matters, this book commends itself to those re-qui ring a good general orientation.
One must hasten to add, however, that there are sea areas containing a super-abundance of fish upon which no significant neighboring population ashore is economically dependent. One such area is the Bristol Bay region off the Alaskan coast. In this area all major fishing has been done by American, Canadian or Japanese companies based in their home countries. L. Larry Leonard, International Regulation of Fisheries (1944), pp. 3–5;
H. E. Gregory and K. Barnes, North Pacific Fisheries (1939), p. 11.
W. Gordon East and A. E. Moodie, The Changing World (1956), p. 43;
W. V. Blanchard and S. S. Visser, Economic Geography of Europe (1931), pp. 35–6.
Encyclopedia Britannica World Atlas, Plates 19 through 32; Jean Braun, Human Geography (1920),
Ch. I. Friedrich Ratzel, Politische Geographie (1908), pp. 122–7;
Ellsworth Huntington, Civilization and Climate (1915), Ch. XIII;
Eric Dardel, L’Homme et la Terre (1952), Ch. II. For some of the insight contributing to the few paragraphs immediately above, the author is especially indebted to the lectures of Dr. Saul Cohen, Professor of Geography at Boston University.
A concrete example is succinctly described on a single page of the record of United Kingdom v. Norway. See International Court of Justice, Reports, 1951, Vol. II, p. 309.
Derwent Whittlesey, The Earth and the State (1944), War Department Education Manual (EM 234) Edition, p. 32.
Derwent Whittlesey, The Earth and the State (1944),
James Anderson, Observations on the Means of Exciting a Spirit of National Industry (1775), pp. 466–498. When compared with the modern works of Mason, Nurkse and Kindle-berger on economic development, Anderson has left little unsaid except reduction of the problems to a generalized theory.
Edward S. Mason, Economic Planning in Undeveloped Areas (1958);
Ragnar Nurkse, Problems of Capital Formation in Undeveloped Countries (1957);
Charles P. Kindleberger, Economic Development (1958).
Dean, Economic Development (1958), p. 106.
Technical reference books used by the author are: Hill, Utegaard and Riordan, Dutton’s Navigation and Piloting (1958);
CDR R. S. Crenshaw Jr. USN, Naval Shiphandling (1955);
Kells, Kern and Bland, Piloting and Maneuvering of Ships (1943),
and Bowditch, American Practical Navigator, 1958 Edition. Although navigation principles are universally the same, methods vary widely with the equipment available, the professional acumen of the mariner, and the requirements of private and public institutions governing their activities. The author believes that in the United States, sea navigation practice can be divided into three broad classifcations: The U.S. Navy, merchant mariners and fishermen, and yachtsmen. Needless to say, much that is written in this section is founded upon the author’s own experience as a seagoing naval officer in various waters of the world.
A term sometimes used for such friction in international case law is “Post-judicial Consequences,” of which the Moray Firth case of 1906 in Scotland is perhaps the best known example in the law of bays. Mortensen v. Peters, 14 Scots Law Times Rep. 227; Fulton, Sovereignty of the Sea (1911), p. 717ff;
Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), pp. 430–6; Ralph H. Jones, The Context of International Law (unpublished U.S. Naval War College manuscript) contains the entire report of the court’s opinion in this case, as well as the complete report of the ensuing debates in the House of Lords.
LCDR Robert May USMS and LT Leland Pearson USMS “Landfall, The Navigator’s Tensest Moment,” 15 Sperryscope (2nd Qtr. 1959), pp. 12–16. This is an excellent article depicting the problem from the point of view of the mariner in a small vessel.
Robert May USMS and LT Leland Pearson USMS “Landfall, The Navigator’s Tensest Moment,” 15 Sperryscope (2nd Qtr. 1959), pp. 12–16.
Definitions of technical equipment mentioned in this paragraph: (a) Self Synchronous Alidade: A small motor driven telescope mounted over a gyroscope compass repeater pelorus. When set to any bearing or landmark on shore, this instrument will remain fixed in the true direction of that landmark until reset, despite any motion of the ship. (b) Pelorus: A dumb compass set at a convenient point, such as the wing of the bridge, in order that the navigator may have a clear view in a number of directions, usually through about 180°. (c) Gyroscopic Compass Repeater: Usually a ship contains only one gyroscopic compass, and for best maintenance and operation, this is located deep in the interior of the ship. This compass, called the master, runs on electric power and seeks to align its axis with that of the earth. The repeater (of which there may be a large number) operates to show direction by electrically transmitted indications from the master. (d) Magnetic Compass: One of the oldest navigation instruments in the world. It depends for its directive force on the earth’s magnetic field. Accuracy of readings depends upon corrections made in advance (called compensation or adjustment) and those made on the occasion of each reading. Corrections made upon reading are for Ship’s heading, Deviation, and Variation. This has to be a rapid arithmetic computation, usually accomplished under awkward physical and psychological conditions. Of passing interest to the political science scholar is the formula for correction whose symbols are memorized by every American midshipman through the use of the phrase: Can Dead Men Vote Twice ? Variation is the error brought about by the normal lack of coincidence between magnetic and geographical meridians. Deviation is the divergence between the axis of the magnetic compass card and a magnetic meridian and is brought about by the magnetic properties of the ship in which a magnetic compass is mounted. Bowditch, Chapter VI.
An outstanding example, in the author’s experience is Mount Vesuvius which is useless for accurate navigation in the Bay of Naples. Such southeast coast of Spain.
In mariners’ parlance this is called “horizon dip.” Hill, et al., p. 148. Bowditch, The American Practical Navigator (1958 Ed.), Table 8.
See Chapter 2, for definitions of the nautical mile. The distance of the horizon for a twenty foor height of the observer’s eye is 5.1 miles.
Study of navigational charts of Iceland, Norway, Newfoundland, Japan, Alaska and British Columbia will quite easily substantiate this conclusion. In view of the recent Anglo-Icelandic dispute concerning violations of the Icelandic marginal belt, the author has made a close study of the navigational aids of the Icelandic coast. He was compelled to conclude that mariners are unlikely to intrude unwittingly upon Iceland’s marginal belt (12 miles, with many straight base lines) by reason of the paucity or inefficiency of the navigational aids ashore. Materials used are: MacChesney, U.S. Naval War College Intemalional Law Situation and Documents (1956), pp. 466–472; British Admiralty Chart No. 75; Sailing Directions, East Greenland and Iceland, U.S. Navy Hydrographic Office Publication No. 75 (1951), Chs. 5–8; and List of Lights Vol. 5, U.S. Navy Hydrographic Office Publication No. 34 (1954), pp. 486–512.
Infra, Chapter 5.
United Kingdom v. Norway, 1951 (Commonly referred to as the Anglo-Norwegian Fisheries Case).
Infra, Chapter 5.
Norway in the Fisheries Case, and the Soviet Union in the case of Peter the Great Bay. See Chapter 8, infra.
Infra, Chapter 4.
Discussion with officers, 1st Coast Guard District, Boston, Mass., 1959. Actual statistics for recent construction not available. Opinions appear confirmed by Frederick A. Talbot, Lighthouses and Lightships (1913), Chs. II, III;
and, Thomas Stevenson, Lighthouse Construction and Illumination (1881).
In the U.S. Navy, radar equipment capable of very long range detection (200 miles plus) and very high accuracy has been perfected. Such equipment is very costly to develop and to maintain; it is also quite heavy and bulky. It may be expected that as development proceeds and as longer range equipment is released for commercial production, costs of production and manufacturer’s prices will drop significantly. Interview with officials of Raytheon Manufacturing Co., 10 September 1959.
For a detailed discussion of radar and radar navigation, see: COMO Ralph S. Went-worth USN (Ret.) and CDR John V. Noel, Jr., USN, Knight’s Modem Seamanship, 12th Ed., (1953), pp. 96–9;
Hill, et al Knight’s Modem Seamanship, 12th Ed., (1953), pp. 238–249;
Orrin E. Dunlap Jr., Radar (1948);
John S. Hall Jr., Radar Aids to Navigation (1947), Ch. 9;
and J. Francis Reintjes and Godfrey T. Coate, Principles of Radar (1952).
Alvin Moscow, Collision Course, (1959).
Radar reflectors are large metallic structures erected to increase the electronic reflecting properties of a target or landmark. Hall, Collision Course, (1959), p. 324ff, discusses in detail the construction of these reflectors. A more elaborate device is the radar beacon which transmits an identification signal when a radar beam strikes it. This signal will be observed on the radar equipment’s visual indicator.
Hall, Collision Course, (1959), pp. 322–3. See also, Radar Beacons, Vol. 3 of Massachusetts Institute of Technology Radiation Laboratory Series.
RADM Ira H. Nunn USN, “Admiralty Law and its Relation to Command at Sea,” VI Naval War College Review (Dec. 1953), pp. 1–29.
These Rules were revised by the International Conference on Safety of Life at Sea, London 1948. Treaties and Other International Acts Series (TIAS) No. 2495. B4unson Mac-Chesney, U.S. Naval War College International Law Situation and Documents 1956, p. 509. Another such conference is scheduled to convene in i960.
Grant Gilmore and Charles L. Black, Jr., The Law of Admiralty (1957), p. 422; Anglo-Saxon Petroleum Co. v. U.S. 88 Fed. Supp. 158, 160, 1950 A.M.C. 631 (D. Mass. 1950).
The Medford, 65 F. Supp. 622, 1946 A. M. C. 795 (E.D.N.1/. 1946) U.S. v. The Australia Star 172 F. 2nd 472, 1949 A.M.C. 423 (2nd Cir. 1949) certiori denied 338 U.S. 823.
Chesapeake and Ohio Ry. Co. v. Cleveland Tankers, 121 F. Supp. 830, 1954 A.M.C. 1921 (E. D. Mich. 1954).
It appears that the current attitude of Marine Insurance underwriters in the United States, as well as of Lloyd’s, is not one of assessing lower rates for vessels equipped with radar and other electronic aids, but of refusal to insure vessels not so equipped. It is believed that this attitude is the single greatest factor militating toward shipowners’ installing radar in their vessels. Author’s interview with General Manager, Marine Department, Insurance Company of North America, 5 August 1959.
CCA NY, 60 Fed (2nd) 737 (1931).
A very simple radar can now be purchased for about $ 350.00, plus installation costs. One quite satisfactory for a medium-sized fishing vessel can be purchased for about $ 1,800 plus installation. A radar set with a bridge repeater suitable for use in an ocean merchant vessel can be purchased for $ 3,500 plus about $ 800 installation cost. Interview with Boston manager of Sperry Gyroscope Company Sales, 3 August 1959; Interview with Raytheon Manufacturing Company officials, 10 September 1959. See also: New York Times, 6 November 1959, p. 38, cols. 7, 8. This article mentions that the Sperry Mk. 5 radar now sells for $ 1,495. Other equipment and prices mentioned: Sperry Loran D, $ 1,495; small transistor radio direction finder, $ 249; electronydraulic automatic pilot, $ 1,289; and Mk. 22 Gyro Compass, $ 2,986.
About $ 250. There is even a brisk second-hand market in loran equipment.
Construction, maintenance and manning of U.S. Stations are a responsibility of the U.S. Coast Guard. A number are on isolated islands. They require about 12 men for each master and slave station. Construction costs have been as high as $ 4. million. Discussion with officers at Headquarters, ist Coast Guard District, Boston, Mass., 10 September 1959.
Hill et al., op. cit., p. 254.
The exceptation exists in bays surrounded by high landmasses. These tend to blank out loran signals.
World War I saw the accelerated development of the Radio Direction Finder and the Radio Compass, a striking parallel to the accelerated development of radar and loran in World War II. In 1924, there were 48 radio direction finder stations on the coasts of the continental United States. CDR Charles W. Harrison, Jr., USN and James E. Blower, “Electronics — Your Future,” 62 Journal of the American Society of Naval Engineers (Feb. 1950), pp. 99–137. Like the Stockholm-Andrea Doria collision and the evidently faulty use of radar, there was a major marine disaster resulting from human error in the use of radio direction finding equipment; nine U.S. destroyers ran aground on 8 September 1923 at Point Honda, California.
LCDR Richard B. Hadaway USNR, “Course Zero Nine Five,” 83 U.S. Naval Institute Proceedings (Jan. 1957), pp. 40–48.
Hill, et al., op. cit., pp. 234–8. See also, U.S. Navy Hydrographic Office Publication No. 205. Radio Navigational Aids.
RADM William L. Rodgers USN, “What Parts of International Law may be codified ?,” 20 American Journal of International Law (1926), pp. 437–443. One cannot fail to be impressed with the pertinent remarks of a much more famous authority,
S. Whittemore Boggs, in his article “Delimitation of Seaward Areas under National Jurisdiction,” 45 American Journal of International Law (1951). At p. 243, he writes: “The writer never theorizes verbally in these water boundary matters but tries out hypotheses on actual coasts and therefore on hydro-graphic charts, because the real geographic situations are more varied than one can imagine.” In a footnote, he adds: “While engaged in writing this article the writer spent several days on surveying ships off the coasts of New Jersey and New York,… to be sure he had escaped the office-desk viewpoint, to observe the means used in obtaining positions with latitude and longitude shown on sailing charts and to objects visible on shore, and to get the criticism of the ships’ commanders regarding the principles and techniques presented in this article, then in draft form.”
Henry Reiff, The United States and the Treaty Law of the Sea, (1959), Pp. 227–238.
The increasing complexity, size, and costliness of all classes of commercial ships appears to be a post-World War II phenomenon of seemingly limitless proportions. Fishing Companies, shipping firms and petroleum companies appear to share the common conviction that larger, faster, and better equipped ships give a larger return on investment and operating costs. Obviously, loss or damage to any one ship represents a correspondingly greater loss of earnings to the owner. Insurance costs and safety requirements rise proportionately. CAPT E.B. Perry USN (RET), “The U.S. Merchant Marine and Obsolescence” 70 Journal of the American Society of Naval Engineers, (May 1958), pp. 354–8;
Herbert Solow, “Those Resourceful Greek Shipping Men,” 48 Fortune (Oct. 1953), p. 14211.; Interview with General Manager, Marine Department, Insurance Company of North America, 6 August 1959.
Although there is no multilateral convention directly defining a warship, Hague Convention VII (1907), by enumerating the conditions to be satisfied in order to convert a merchant vessel into a warship, indirectly defines the latter. Such a vessel must be under the direct authority, control and responsibility of the State whose flag it flies. It must bear the external marks distinguishing the warships of that State. (Some States have special national ensigns designed specifically for men of war, e.g. the United Kingdom White Ensign). (Commissioned vessels of the U.S. Navy and U.S. Coast Guard, fly what is called a “commission pennant”). The Commander of the vessel must be in the service of the State, duly commissioned, and listed among the officers of the fighting fleet (most of the world’s Navies publish an annual Navy List (United Kingdom) or Register of Commissioned Officers (United States). The crew must be subject to naval discipline, and the vessel must observe in its operation the laws and customs of war. U.S. Navy Department, The Law of Naval Warfare, Art. 500c; Robert W. Tucker, U.S. Naval War College International Law Studies (1955), pp. 38–9;
Higgins and Colombos, International Law of the Sea, 2nd Ed. by C. John Colombos (1951), p. 350. It will be observed that outward appearance above does not distinguish a warship, nor does size. Articles 21 and 22 of the Geneva 1958 Convention on the Territorial Sea and Contiguous Zone specify that government ships, whether operated for commercial or noncommercial purposes, shall be subject to the rules applicable to merchant ships, although nothing in such rules shall affect the immunities they enjoy under other rules of international law.
United Nations. Reference Guide to the Articles concerning the Law of the Sea adopted by the International Law Commission at its Eighth Session. A/C.6/L.378 of 25 October 1956, pp. 86–92; United Nations, Report of the International Law Commission Covering the work of its Eighth. Session. Supp. No. 9 (A/3159), 1956, pp. 22–3.
Oct. 14 (6) of 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.
Convention for the Regulation of Aerial Navigation of 1919, Hudson, Int. Legislation, No. 9, p. 359ff; Lauterpacht, Oppenheim’s International Law, Vol. I., 8th Ed., (1955), pp. 519–521.
The doctrine in The Schooner Exchange v. McFaddon, 7 116, appears to be upheld, universally, on the position of State ships. Lauterpacht-Oppenheim, op. cit., p. 852m
Ibid., p. 853. Lauterpacht writes that this is controversial, citing Westlake, International Law Vol. I., p. 196 and Hall, International Law, 8th Ed., by Higgins. In this author’s mind, there appears little controversy, if any. It appears that States at the present time consider it their absolute right to exclude foreign warships except under force majeure. It is believed that naval powers accept this proposition and that it has crystallized into customary law. From the tenor of the writing in Westlake and Hall, it is the conjecture of this author, that Lauter-pacht’s statement that the matter is controversial results from the earlier authors’ broadly classing all waters as territorial. For ships of the U.S. Navy, the manifestation of the right of the foreign State to exclude is in the elaborate procedure for obtaining “clearance” for a visit, the various classifications of visits: Operational, courtesy, or diplomatic, the “Naval Visit Agreements,” and the prompt and unquestioned acquiescence when the foreign State suddenly declares a planned visit “inconvenient.” Commander Burdick H. Brittin, U.S. Navy, International Law for Seagoing Officers (1956), pp. 86–7. Except under that old provision of International Law concerning protection of nationals, it is virtually inconceivable in this author’s eyes that a warship of any State would enter the internal waters of another without prior permission. (Straits, canals, force majeure are exceptions.)
Implied in Articles 16 (2) and 23 of the 1958 Geneva Convention on The Territorial Sea and Contiguous Zone.
Provided for in Article 23 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.
See, infra, Ch. 4 on the problems of neutrals.
A list of such areas and their limits is compiled in United Nations International Law Commission, Second Report on the Regime of the Territorial Sea, A/CN.4/61 at pp. 11–17.
Bays currently so included by U.S. Executive order are: Pearl Harbor and Kaneohe Bay in Hawaii; Kodiak, and Whittier, in Alaska; Guantanamo Bay, Cuba; and all bays and harbors in the following areas: Kiska, Unalaska and Kodiak Islands, Alaska; Guam, Palmyra, Johnston and Midway Islands; Kingman Reef; and Culebra Island. MacChesney, op. cit., pp. 603–4. There are various specific security reasons for closing these bays, and few would have any great commercial interest to other states. Culebra is closed primarily because most of the island serves as a target for practice gunfire from U.S. Navy ships.
The fact that the United States dismantled its Coast Artillery Installations and abolished the Coast Artillery Corps after World War II, does not necessarily invalidate this statement. The measure was a calculated one and some other States who evaluate their own military situations differently continue to maintain such organizations, e.g. the Soviet Union, Sweden, Turkey and the Netherlands. It may be recalled that it was a Norwegian artillery battery that sank the German cruiser Blücher in World War II. VADM Friedrich Ruge, Federal German Navy, Der Seekrieg, Tr. CDR. M. G. Saunders, Royal Navy (1957), p. 90.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1963 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
Strohl, M.P. (1963). The Problem of Bays in the Law of the Sea. In: The International Law of Bays. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0967-1_1
Download citation
DOI: https://doi.org/10.1007/978-94-015-0967-1_1
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-015-0381-5
Online ISBN: 978-94-015-0967-1
eBook Packages: Springer Book Archive