ferent countries, and to establish by common consent the limits to be observed on the different coasts. An agreement thus reached would put an end to a period of uncertainty and agitation.

Maritime jurisdiction in civil and criminal matters is, in its present aspect, a creation of the nineteenth century. It will, therefore, save inconsiderable exceptions, be subject to the rule of the 3-mile limit, which is intimately connected with its very introduction into the law of nations. On the other hand, as the jurisdiction of the riparian. nation usually offers more advantages than inconveniences to foreign nations and their citizens, its extension beyond 3 miles will perhaps not, in this connection, arouse serious objections. It is in this domain, really the most important, that it will be easiest, when the special questions relating to fisheries and neutrality are gradually settled, to bring about an international agreement concerning the extension of the territorial sea, which extension is advocated by the vast majority of modern jurists. Conformably to the interests which are at stake, the nations will probably consent here to a differentiation, either in accordance with the matters regulated or according to the nationalities of the persons and ships had in view. In these questions of a purely practical character, the reciprocity of treatment granted on each side will often suffice to satisfy the nations, and respect for legitimate interests will permit considerable mutual concessions. In dealing with special matters it will furthermore be possible to frequently take as a basis the peculiar rules connected with customs and sanitary surveillance, which is itself a detached part of maritime jurisdiction.

The rules of customs and sanitary surveillance are very different according to the various countries. Sanitary surveillance is even exercised in certain countries within a narrower zone than 3 miles. Most frequently the zone of customs and sanitary surveillance exceeds the 3-mile limit. By virtue of commercial treaties, different rules are sometimes applicable to different countries. Save contractual stipulations, each country will be justified in extending the zone to the widest limit generally recognized by jurisprudence. The limits employed in these connections will not fail to exert a considerable influence along the line of the progressive increase of the extent of maritime jurisdiction in general. The final limit is not yet reached. Perhaps development will not stop short of the median line that ancient limit of a more vague and more narrowly selfish jurisdiction.

It is important, finally, to note in this connection that maritime Powers engaged in a war will be warranted in extending their territorial waters for the needs of military supervision. Thus Turkey, in

1 In Italy the limit of sanitary surveillance is 5 kilometers only.

1911, on the occasion of her war with Italy, declared through a notice to the Powers that a 5-mile zone off the Ottoman coasts, as well as Salonica Bay, should be considered, as regards military operations, as forming part of the territorial waters of Turkey. It is in some respects equivalent to declaring martial law at sea; and, in order to determine the maximum extent of the zone subject to martial law, the zone of customs and sanitary surveillance should rather be taken as a guide than the zone of general jurisdiction. In Italy the law of June 16, 1912, gives the limit in this connection as ten nautical miles. In the absence of contractual stipulations contemplating more especially a state of war,' one is even obliged to admit that the nations which control the two shores of an international strait will have a right, in case of hostilities, to supervise peaceful navigation and neutral ships more closely than the rules prevailing with respect to international straits permit in time of peace. If useless vexations are caused neutrals by officers of a belligerent Power, the neutral nation shall of course be entitled to interfere in behalf of its citizens, having recourse if necessary to the international prize court when the latter shall have gone into operation. It would not even be possible to declare in advance, in an absolute way, that any closing of an international strait in case of war were illegal from the standpoint of international law as now constituted. However, in order to be legal or permissible, the closing would have to be called forth by the needs of military operations, by necessity of war; it could not be employed as a means of facilitating or even of suppressing military surveillance. At all events, the Powers which proceeded, under the pressure of the necessities of war, to close an international strait would be bound to indemnify the neutral nations for the inconveniences resulting therefrom, which obligations would naturally make the belligerent Powers reflect if contemplating the adoption of such a measure.2

It is therefore necessary, in my opinion, to contemplate the possibility of a progressive differentiation of the rights which nations exercise at sea. But in consequence of the very complexity of these rights, and at least up to the extent indicated by the right whose radius of exercise is the smallest, the territorial sea will remain the maritime territory in the sense which this term acquired during the course of the nineteenth century. The maritime sovereignty of a nation will in no wise be diminished even by the most complete differentiation of the rights which compose it.

1 As is the case with the Suez and Panama Canals, declared neutral by international treaties.

2 See the declarations of the French Admiral Germinet in l'Echo de Paris of September 3, 1912, in regard to the possible closing, in case of war, of the Straits of Dover by the riparian powers, France and England, and the discussion aroused by these declarations. The reply of Mr. den Beer Poortugael in Het Vaderland, under date of September 16, 1912, does not seem to take sufficiently into account the exigencies of a state of var at sea.

1

RALSTON: International Arbitral Law and Procedure. Boston, 1910.

Page 207.—433. National sovereignty over territorial waters, as is well understood, "is determined by the range of cannon measured from the low-water mark," as was said by Mr. de Martens, arbitrator, in the Costa Rica Packet case (Moore, 4952), he adding "that on the high seas even merchant vessels constitute detached portions of the territory of the state whose flag they bear, and, consequently, are only justiciable by their respective national authorities for acts committed on the high seas."

434. In the case of the schooner Washington (Report of BritishAmerican Claims Commission of 1853, 170, 172), Upham, American Commissioner, said, referring to the jurisdiction of Great Britain over the Bay of Fundy:

The law of nations does not, as I believe, give exclusive jurisdiction over any such large arms of the ocean. Rights over the ocean were originally common to all nations, and they can be relinquished only by common consent. For certain purposes of protection and proper supervision and collection of revenue, the dominion of the land has been extended over small inclosed arms of the ocean, and portions of the open sea, immediately contiguous to the shores. But beyond this, unless it has been expressly relinquished by treaty or other manifest assent, the original right of nations still exists of free navigation of the ocean, and a free right of each nation to avail itself of its common stores of wealth or subsistence (Grotius, book ii, chap. ii, sec. 3; Vattel, book i, chap. xx, secs. 282, 283).

Mr. Hornby, the British commissioner, did not agree with this general view, but on reference to the umpire, Mr. Bates (Moore, 4344), the latter said:

The Bay of Fundy is from sixty-five to seventy-five miles wide and one hundred and thirty to one hundred and forty miles long. It has several bays on its coasts. Thus the word bay, as applied to this great body of water, has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume the sovereignty. The conclusion is, therefore, in my mind irresistible that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word as used in the treaties of 1783 and 1818.

435. The question of the right of a nation to pursue merchant vessels suspected of committing a municipal offense beyond the limits of its territorial sea, was considered by Mr. Asser in the case of the C. H. White, coming before him as arbitrator (Whaling Claims

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against Russia, Foreign Relations of 1902, Appendix I, 462), he saying:

. .

That the seizure of the schooner took place, according to the party claimant, at about twenty, and according to the defendant party at about eleven or twelve, miles from Russian Territory, and that even if the latter version be the true one, it results that the act was perpetrated outside the Russian territorial waters, which is moreover admitted by both parties: that the system of the defendant party, according to which a war ship of a state would be permitted to pursue even beyond the territorial sea any vessel whose crew was guilty of an illegal act in territorial waters or on territory of that state, could not be recognized as conforming to the principles of international law, since the jurisdiction of a state does not extend beyond the limits of the territorial sea, unless that rule has been derogated by a special convention.

He did not therefore think it necessary to examine as to whether the claimants had been guilty of illegal sealing in Russian territorial

waters.

Page 308.-672. We have seen under the head of "Government" the extent to which a nation may claim dominion over the waters of the ocean. We have found in discussing the question of sovereignty that the war ships of a state would not be permitted to pursue beyond the territorial sea any vessel whose crew was guilty of an illegal act in territorial waters or on the territory of that state, except it be by stipulated convention (C. H. White case, Whaling Claims Arbitration, Foreign Relations of 1902, Appendix I, 462).

The majority of the Fur Seal Arbitral Tribunal decided that under the treaty of 1825 between Great Britain and Russia the Bering Sea was included in the phrase "Pacific Ocean" as therein used; that all rights of Russia as to seal fisheries in the Bering Sea passed to the United States, but that the United States had no right of protection of or property in fur seals frequenting their islands in the Bering Sea where the seals were found outside the ordinary 3-mile limit.

RIVIER: Principes du Droit des Gens. Paris, 1896.

Volume I, page 145.-The Littoral Sea.-The territory embraces also that part of the sea or ocean which is nearest the shore of a State, either mainland or island. It is called the littoral or territorial sea (the word "territorial" being taken in a specialized sense,) as well as adjacent sea (mare proximum).

The term "territorial sea" is applied to all seas or portions of the sea which belong to the territory-to the littoral sea, the interior sea, in the various acceptations of this word, to gulfs, to straits. It is the general legal term, while the others are rather physical or geographical. The term "littoral sea" has the advantage of being special. It is also called " jurisdictional sea," according to one of the elements of its legal position.

The principle that the littoral sea is a part of the territory is justified by the requirement of the preservation of the State from a military, sanitary, and fiscal point of view, as well as from that of the interests of industry, particularly fishing. The result is that for the coast and land the littoral sea has the character of an accessory, which can not be acquired independently of the coast.

The principle itself is incontestable, but its extent and application give rise to divers questions.

While a part of the territory, the littoral sea is also a part of the sea. It follows, therefore, that it can not be under the control merely of the interior laws of the State, but it is also governed by maritime law.

What is the extent of the littoral sea? It appears rational, in view of its purpose and accessory nature, to say that it extends so far from the coast as the territorial power can be defended and maintained; that is, to the range of a cannon shot. This ought to be calculated from high-water mark. It is necessary to erect on the land permanent establishments for the purpose of dominating the sea and coast batteries protected from the tide. It matters little whether these batteries are erected or not. It suffices that they can be. We take account of normal tides, not exceptional ones, such as a tidal wave. This is the rule of the common law, although some derogations on various points are admitted.

Some recent conventional legislative or judicial acts have replaced the range of cannon, variable on account of the progress in the art of ballistics, by fixing a distance of a marine league-that is, 3 marine miles, or one-twentieth of a degree of latitude. This distance, calculated from low-water mark, corresponds to what recently was the It is perceptibly less now and consequently in

cannon range.

sufficient.

Certain States maintain a fixed but greater distance. Norway, for whom the question is of prime importance, by reason of its fishing, establishes it at one-fifteenth of a degree; Spain extends it to 6 leagues [miles].

Divers States claim a customs territory of much wider extent by reason of their right of self-preservation and to prevent frauds. For the English and Americans it is 4 marine leagues—that is, 12 marine miles. It is undoubtedly correct that by virtue of the liberty of the