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 offense 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 3 miles from the coast. He appealed to the High Court of Justiciary, which, 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 recognizing that the Scotch Courts were bound by the Act of Parliament concerned, likewise recognized 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 3 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,2 1909, according to which no prosecution can take place for the exercise of prohibited fishing methods outside the 3 miles from the coast, but the fish so caught may not be landed or sold in the United Kingdom.3

§ 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. And navigation, cabotage excepted, must be open to merchantmen of all nations, but foreign men-of-war need not be admitted.

STRAITS.

$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

1 Mortensen v. Peters, The Scotch Law Times Reports, vol. 14, p. 227. 29 Edw. VIII, c. 8.

3 See Oppenheim in Z. J. V. (1911), pp. 74-95.

The Hague Convention concerning police and fishery in the North Sea, concluded on May 6, 1882, between Great Britain, Belgium, Denmark, France, Germany, and Holland reserves by its article 2 the fishery for subjects of the littoral States of such bays as have an entrance from the sea not wider than 10 miles, but reserves likewise a maritime belt of three miles to be measured from the line where the entrance is 10 miles wide. Practically the fishery is therefore reserved for subjects of the littoral State within bays with an entrance 13 miles wide. See Martens, N. R. G. 2nd Serics, vol. ix (1884), p. 556.

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. Thus the Lymoon Pass, the narrow strait which separates the British island of Hongkong from the continent, was half British and half Chinese as long as the land opposite Hongkong 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 emphasized that this right is contested, and I believe that Great Britain would now no longer uphold her former claim," at least the Territorial Waters Jurisdiction Act 1878 does not mention it.

3

§ 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, can not be excluded; foreign men-of-war must be admitted to such straits as form part of the highways for international traffic; 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

1 See $199.

2 See Phillimore. I, § 189, and above, § 191 (King's Chambers). Concerning the Bristol Channel, Hall (§ 41, p. 162, note 2) remarks: "It was apparently decided by the Queen's Bench in Reg. v. Cunningham (Bell's "Crown Cases," 86) that the whole of the Bristol Channel between Somerset and Glamorgan is British territory; possibly. however, the Court intended to refer only to that portion of the Channel which lies within Steepholm and Flatholm." See also Westlake, I, p. 188, note 3.

The claim of Russia-see Waultrin in R. G., vol. xv (1908), p. 410-to have a right to exclude foreign merchantmen from the passage through the Kara and the Yugor Straits is therefore unfounded. As regards the Kara Sea, see § 253, note 2.

4 As, for instance, the Straits of Magellan. These straits were neutralized in 1881see § 568, and vol. ii, § 72-by a treaty between Chile and Argentina. See Abribat, Le détroit de Magellan au point de vue international (1902); Nys, I, pp. 470-474; and Moore, I, § 134.

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 at present, and formerly the Bosphorus and the Dardanelles-foreign vessels can be excluded therefrom.

ORTOLAN: Règles Internationales et Diplomatie de la Mer. Second edition. Paris, 1853.

Volume 1, page 150.-The causes which interfere with the existence of the right either of property or of sovereignty are not found absolutely over all portions of the sea. There are certain parts close to the land partaking in some respects of its condition in which these causes cease more or less to exist and in which, consequently, these rights may exist in whole or in part.

In this connection, far from being exceptions to, they are confirmations of the principles which constitute the liberty of the open sea; the cause ceasing, the effect must cease.

Logically the recognition of maritime domains which are subject to the property or sovereignty of a nation is deduced from the very principles upon which the general liberty of the seas is based.

Property or domain must not be confused with sovereignty or the right of command or of jurisdiction. .

In this connection we must distinguish: first, ports and roadsteads: secondly, gulfs and bays; thirdly, certain straits and certain inclosed seas; fourthly, portions of the sea adjacent to the coast of the State up to a certain distance.

Ports and roadsteads are susceptible of possession and the proprietary State may use all the means incident to the right of possession.-. This proprietorship over ports and roadsteads does not prevent other nations from freely navigating or communicating with them.

The nation that is mistress of the port or roadstead may, at its pleasure, declare them closed, open, or free; that is to say, permit or forbid access to them, subject imports to certain fiscal laws, or permit free entry. Incoming ships may be subjected to such laws and regulations as it may please the State to establish. . . . Its prohibitions and permissions must merely be of a general character and common to all nations. It is within the power of the State having the sovereignty to dispose otherwise of these privileges, but

in arbitrarily excluding a certain nation it would render itself subject to legitimate and just complaints.

Page 156.—In stating the reasons which justify the rights of property over ports and roadsteads, we made reservation of certain necessities of general navigation to which these rights must yield under penalty of becoming contrary to the essential purposes of the seas, to the security of communication from people to people and under penalty of losing their legitimate character. These reserves are those of the right of entry by force majeure; that is, in cases of necessity. Custom and treaties recognize this right even as to closed ports.

We must classify under the same heading as roadsteads and ports, gulfs, and bays and all other indentations known by other denominations when these indentations made in the land of a single State do not exceed in width the double range of cannon or when the entrance may be controlled by artillery or when it is naturally defended by islands, banks, or rocks. In all of these cases it may truly be said that these indentations or bays are within the power of the State which is mistress of the territory which surrounds them. This State has the possession thereof; all the reasons which we have adduced with respect to roadsteads and ports may be repeated here.

Page 159.-With respect to certain interior seas the exclusive right of possession or sovereignty on the part of one nation is only incontestable to the extent that this sea is totally inclosed within its territory, forming an integral part of it and serving as a means of communication and commerce merely between the citizens of that State. Thus none of the causes which constitute an obstacle to ownership or dominion of the seas find any application, but from the moment that several different States possess the coast around this sea, no one of them can declare itself proprietor or sovereign to the exclusion of the others.

These general principles, which may serve to justify certain inadmissible or contested pretensions in the matter of straits or particular seas, are found applied more or less exactly over divers places either by custom or by international convention. Thus Denmark has exercised since time immemorial the right of exclusive surveillance over the Sound and the Great and Little Belt.

Page 163.-According to Martens, who sums up the situation with respect to the principal gulfs and straits of Europe, exclusive right is not contested in the following cases: first, of Great Britain over St. Georges Channel; secondly, of the King of Denmark over the Great and Little Belt and over the Sound; thirdly, of the Turks over the Archipelago and over the sea of Marmora and over the straits which lead to the Black Sea; fourthly, of the King of Naples since

1 Book 2, chap 1, sec. 42.

1815 over the Straits of Messina; fifthly, of Holland over the Zuyder Zee; sixthly, of the King of Sweden over the Gulf of Finland.

In spite of this high authority, we are far from admitting this assertion in all these points. Thus Pinheiro-Ferreira says with reason in his excellent notes that the Sound and Straits of Messina and those which form communication between the Black Sea and the Mediterranean Sea can not be placed in the same class as St. Georges Channel, the Zuyder Zee, and even the Gulf of Finland; that the use of the first could not be disputed to any nation by the people situated along their shores, because all are interested in enjoying it. As to the Archipelago, if it could be the object of the exclusive claims of Turkey, whose pretensions have never been set up de jure, it is no longer even possible that they subsist since the emanci pation of Greece and its erection into an independent kingdom.

Finally, with respect to the Gulf of Finland, it is true that before the cession of this province to Russia, Sweden possessed it uncontested; although to-day, according to Mr. Schmalz, it has not yet been decided to whom it belongs. It seems to us that if it should be the individual property of one State, this can only be Russia.

The security of a State and regard for its own defense make it a necessity to watch over its frontiers. In virtue of its right of absolute independence it may regulate, at its pleasure, the matter of allowing foreigners admission into its territory. Maritime frontiers by their nature are susceptible of an unforeseen attack and unforeseen invasion, and contraband and fraudulent commerce can be organized along them on a large scale. A nation should, then, exercise the most extended surveillance over vessels of all kinds which endeavor clandestinely to approach its coast and even those which come

too near.

The border of the sea which washes the coast of a State constitutes the natural maritime limits to that State, but for the protection and most effective defense of these natural limits the general custom of nations in accordance with public treaties, permits imaginary lines to be traced along the coast at a suitable distance following its sinuosities, which may be considered as the artificial maritime boundary. Every ship which finds itself inside of this line is said to be in the waters of the State whose right of sovereignty and jurisdiction it limits.

Pinheiro-Ferreira calls this imaginary line "the line of respect," within which, he says with reason, "the alien, even in the absence of force, must conduct himself as if he were upon the territory of the State, and undertake nothing which the government of that State would have the right to pronounce as infringing upon the ownership or security of the nation."