general principles, that in case of no special restrictions, river navigation is free, subject to such regulations as the state Confirmation of rules by conventions. having jurisdiction may deem necessary, and that the privilege of navigation carries with it the use of the river banks, so far as is necessary for purpose of navigation.1 Jurisdiction on 53. Jurisdiction of Enclosed Waters (a) The rule in regard to waters wholly within the territory of a state such as lakes, etc., is that the jurisdiction is exclusively in that state. The decisions of the waters wholly United States Supreme Court have sometimes regarded the Great Lakes as "high seas," though treaties, opinions, and practice have generally been such as would find sanction only in exclusive jurisdiction.2 enclosed. (b) Gulfs, bays, and estuaries are regarded as within the jurisdiction of the state or states enclosing them, provided the mouth is not more than six miles in width. Jurisdiction over gulfs, bays, A line drawn from headland to headland on and estuaries. either side of the mouth is considered as the coast line of the state, and for purposes of maritime jurisdiction the marine league is measured from this line. Waters having wider openings into the sea have been claimed on special grounds, as the claim of the United States to territorial jurisdiction over the Chesapeake and Delaware bays. France and Germany claim jurisdiction over gulfs having outlets not over ten miles in width. Between states parties to treaties special claims have been made and allowed. These treaty stipulations do not necessarily bind states not parties to the treaty, e.g. treaty between Great Britain and France, 1839. "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fishing upon the 'Justinian, "Institutes," 2, t. 1, §§ 1-5. 2 United States v. Rodgers, 150 U. S. 249. coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland." 1 More recent tendency is toward the acceptance of the ten-mile limit of width of mouth, though there is a reasonable claim that some ratio should be fixed for very large interior water areas to which the entrance, though more than ten miles, is yet relatively narrow. Jurisdiction over straits. (c) Straits less than six miles in width are within the jurisdiction of the shore state or states. In case two shores are territory of different states, each state has jurisdiction to the middle of the navigable channel. Where a state owns both shores of a strait which does not exceed six miles in width, the strait is within its territorial jurisdiction, though other states have the right of navigation. This right of navigation is in general conferred upon both merchant and war vessels of states at peace with the territorial power. These vessels must, however, comply with proper regulations in regard to navigation. The claim to exclusive jurisdiction over such narrow straits has been abandoned. The claim of the king of Denmark to jurisdiction over the Danish Sound and the Two Belts, which entitled him to levy tolls upon vessels passing through, was based on prescription and fortified by treaties as early as the one with the Hanse towns in 1368. Against these tolls, as an unjust burden upon commerce, the United States protested in 1848, at the same time maintaining that Denmark had not the right of exclusive jurisdiction. The European states in 1857 paid a lump sum in capitalization of the sound dues. The United States, refusing to recognize the right of Denmark to levy tolls, paid $393,011 in 1857 in consideration of Denmark's agreement to keep up lighthouses, etc. Jurisdiction over the Danish sounds. 11 Moore, § 153. The Bosphorus and Darda nelles. The navigation of the Bosphorus and Dardanelles has been a subject of discussion and treaty since 1774, when Russia compelled Turkey to open these straits to the passage of merchant vessels. War vessels were excluded till 1856 when, by convention attached to the Treaty of Paris, such vessels were admitted for special purposes of service to the embassies at Constantinople and protection of improvements on the Danube waterway. By the Treaty of 1871 the Sultan may admit other war vessels, if necessary for carrying out terms of the Treaty of Paris. The United States has never acknowledged that the Sultan had the right to exclude its war vessels, though always asking permission of the Sultan to pass the Dardanelles. As a generally accepted principle the law may be stated as follows: straits connecting free seas are open to the navigation of all states, subject of course to reasonable jurisdiction of the territorial power. (d) Canals connecting large bodies of water have been regarded as in most respects subject to jurisdiction similar to that of straits. Yet as these canals are constructed at a cost, they must also be given exemptions from certain restrictions which Jurisdiction over canals. properly apply to natural channels. The position of the Suez Canal as an international waterway gives some indication of existing practice. It is to be noted, (1) that the canal is an artificial waterway; (2) that M. de Lesseps, a foreigner, in 1854, under authorization of the Viceroy, undertook its construction as a business venture; (3) that it is wholly within the territory of Egypt. The Suez The case is then one of an artificial waterway, constructed by private capital, wholly within the territory of a state. The negotiations continued from 1869, when the canal was opened, to 1888, when a convention was signed by the Six Great Powers, and by the Netherlands, Spain, and Turkey, by which the status of the canal was defined. By Article I of the Conventional Act, "The Suez Maritime Canal shall always be free and open, in the time of war as in the time of peace, to every vessel of commerce or of war, without distinction of flag. Consequently, the High Contracting Parties agree not in any way to interfere with the free use of the Canal, in time of war as in time of peace. "The Canal shall never be subjected to the exercise of the right of blockade." By Article IV, the canal is not to become the base of hostile action. The marine league is to be respected in the action of foreign vessels. The twenty-four hour period is to elapse between the sailing of hostile vessels. By Article VII, the powers may keep two war vessels in the "ports of access of Port Said and Suez," though "this right shall not be exercised by belligerents." By Article X, the territorial jurisdiction for general administrative purposes is affirmed, and likewise for sanitary measures in Article XV.1 This Suez Canal of such great international importance is by this convention within the jurisdiction of Egypt, but the powers have assumed to provide that this jurisdiction shall not be exercised in such a way as to prevent innocent passage. The Hay-Pauncefote Treaty of 1901, setting aside the Clayton-Bulwer Treaty of 1850, leaves to the United States large jurisdiction over such canal as it may determine to construct across the Central American Isthmus, and it is also provided that the canal shall be neutralized substantially as in the manner set forth in the Convention in regard to the Suez Canal. The Panama 'Parl. Papers, 1889, Commercial, No. 2; Holland, "Studies in International Law," p. 270. The canal at Corinth, shortening somewhat the route to the Black Sea and Asia Minor, was opened in 1893. This canal does not, like the Suez, greatly change the current of the world's intercourse, and is entirely within the jurisdiction of Greece. Corinth and Similarly the canal at Kiel, opened in 1896, is wholly within the jurisdiction of Germany. origin of the principle. 54. The Three-mile Limit (a) One of the most generally recognized rules of international law is that the jurisdiction of a state extends upon the Statement and open sea to a distance of three miles from the low-water mark. In the words of the Act of Parliament passed in consequence of the case of the Franconia,1 1878 (41 and 42 Victoria, c. 73), "The territorial waters of Her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from lowwater mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." The three-mile limit became more and more generally recognized after the publication of Bynkershoek's "De Dominio Maris," in which he enunciates the principle that the territorial jurisdiction ends where the effective force of arms ends, which being approximately three miles from shore at that time, has since been usually accepted. (b) For special purposes a wider limit of jurisdiction is maintained and sometimes accepted by courtesy, though it 1See Regina v. Keyn, 2 L. R. (Exch. Div.), 63; Scott, 154. |