POLYNATIONAL. 1874-Declaration by Spain, the United States, Germany, Austria, Italy, Denmark, Holland, and Belgium that if the limit of the territorial sea should be determined by an international agreement three sea leagues should be the minimum.1 1881, October 10.-Excerpt from the proceedings of the Conference held at The Hague October 8-29, 1881, and May 4-6, 1882, to formulate regulations for the police of the North Sea fisheries.2 The principle of the existence of a territorial sea is admitted. meters. The French delegates prefer miles, a measure more in conformity with naval usage. It is agreed to retain the definition by geographical miles, of sixty to a degree, as in the draft of the Anglo-French Convention of 1867. In regard to the determination of the territorial limits in bays, the French delegates are agreed that the rules contained in the draft of the convention on this subject should not be applied to the North Sea, for these rules apply exclusively to oysters, which are not found in the North Sea. They propose to adopt the three geographic miles, which should follow the configuration of the coast and to extend from the lowwater mark. The German delegates raise objections concerning the mouth of the Elbe, which portion of the sea is exclusively German. The English delegates made similar observations. The president proposed to make an exception in this respect and to insert a clause formulated as follows: "that the police outside the territorial seas shall not enforce laws which might have pertinence to special States," or, indeed, "that the bays shall continue to belong to the State which has owned them." The delegate from Norway, Mr. E. Bretteville, could not accept the determination of territorial limits at three miles, especially as pertaining to bays; he maintained also that the international police should only enforce laws which might have pertinence to special States, and that the bays should continue to be under the jurisdiction of the State to which they belong at present. 1 See Schücking, ante, p. 427. Translation. For the French text, see Martens, Nouveau recueil de traités, 2d series, vol. 9, p. 510. The Belgian delegate, Mr. Orban, proposes that the Convention do not define the territorial sea, whereupon M. Rahusen objects, presenting the difficulties which would arise from such limitation for the cruisers of the various nations charged with the police duties. The English delegates are agreed that the question of the bays constitutes a question of principle and that for the present they are unable to agree as to an expression of an opinion in this matter. Upon their proposal, the question is reserved for a future meeting. The French delegates finally formulated their opinion in the following manner: "In the North Sea the limit of the region called the territorial sea is fixed following the configuration of the land at three miles from low-water mark, along the coasts of "It is finally agreed that no modification should be made of the laws concerning the various border States as to certain parts of the coast," or indeed: "It is finally agreed that the present Convention modify in no manner the laws which a Government has made regarding the bays outside the three-mile limit." 1882, May 6.-Convention between Great Britain, Germany, Belgium, Denmark, France, and the Netherlands, for regulating the police of the North Sea fisheries.-Signed at The Hague.1 ARTICLE 2. The fishermen of each country shall enjoy the exclusive right of fishery within the distance of 3 miles from low-water mark along the whole extent of the coasts of their respective countries, as well as of the dependent islands and banks. As regards bays, the distance of 3 miles shall be measured from a straight line drawn across the bay in the part nearest the entrance, at the first point where the width does not exceed 10 miles. . . . ARTICLE 3. The miles mentioned in the preceding article are geographical miles whereof sixty make a degree of latitude. ... 1885, March 7.-Protocol between Great Britain, Germany, and Spain, respecting the sovereignty of Spain over the Sulu Archipelago.2 ARTICLE 3. The Spanish Government renounces, as far as regards the British Government, all claims of sovereignty over the territories of the continent of Borneo, which belong, or which have belonged in the past to the Sultan of Sulu (Joló), and which comprise the neighboring islands of Balambangan, Banguey, Malawali, as well as all those comprised within a zone of three maritime leagues 1 Foreign Relations of the United States, 1887, p. 439. 2 Translation. Hertslet, Commercial Treaties, vol. 17, p. 1017. from the coast, and which form part of the territories administered by the company styled the "British North Borneo Company." 1888, October 29.-Convention between Great Britain, Austria-Ilungary, France, Germany, Italy, the Netherlands, Russia, Spain, and Turkey, respecting the free navigation of the Suez Maritime Canal-Signed at Constantinople. 4. The Maritime Canal remaining open in time of war as a free passage, even to the ships of war of belligerents, ac ording to the terms of Article 1 of the present Treaty, the High Contracting Parties agree that no right of war, no act of hostility, nor any act having for its object to obstrut the free navigation of the Canal, shall be committed in the Canal and its ports of access, as well as within a radius of three marine miles from those ports, even though the Ottoman Empire should be one of the belligerent Powers. 1907, September 17.-Report to the Third Commission of the Second Hague Peace Conference." In Articles 2 to 5 the regulations proceed to determine the places. where anchored automatic contact mines may be laid-Articles 2 and 3 have reference to placing such mines as a defense for coasts: Article 4 relates to attack, that is, to the anchored mines that the belligerent places before the coasts of his adversary; Article 5 deals with the possibility of making use of anchored mines even beyond such limits, in the sphere of the immediate activity of the belligerents. Indeed, if a limitation as to area of the use of unanchored automatic contact mines would not sensibly reduce the dangers they present, and if to realize this aim we had to have recourse to the prohibition in paragraph 1 of Article 1, for anchored automatic contact mines such a limitation as to area seems necessary from several points of view. Anchored mines concealed in the water and intended to serve for a long time constitute a permanent danger for ships assuming risks in the regions where they have been placed: it would therefore be necessary to forbid their use where peaceful shipping has the right to move freely. Nevertheless, here again the principle of the 1 Hertslet, Commercial Treaties, vol. 18, p. 370. 2 Scott, Reports to the Hague Conference of 1899 and 1907, p. 661. The eighth convention concluded at the Second Hague Peace Conference relative to the laying of automatic submarine contact mines contains no provisions regarding the extent of the marginal sea. However, the draft convention prepared by the committee of examination and submitted to the Third Commission contained articles on the subject of the width of the marginal zone in which the laying of mines is permissible. The discussions in which these articles were evolved are summarized in the above report submitted to the Commission. free use of the sea is in opposition with the inflexible necessities of national defense or of war, and a compromise again seems needful Considerations of this kind had led the Institute of International Law to desire to prohibit the laying of mines on the high seas while permitting belligerents to lay them in their own waters as well as in the waters of their adversaries, and leaving to neutrals the option of laying mines in their own waters to prevent the violation of neutrality. It is this same idea that inspired the original proposition, in which a very clear distinction was made in the same sense between the high seas and territorial waters. A single exception to this rule was contained in the British proposition: The zone of coastal waters-and in this report we thus term waters washing the coasts of a State without reference to limit-in which the laying of anchored mines was not prohibited, "could be extended up to a distance of ten miles before fortified war ports, with the responsibility, nevertheless, for the belligerent which places mines to give notice thereof to neutrals and to take the steps that circumstances permit in order to prevent, so far as possible, merchant ships that could not have received this notice from being exposed to destruction.” After a thorough discussion the committee, while taking as a general point of departure the distinction between coastal waters and the sea beyond these limits, decided to fix upon a distance from the coast beyond which the use of anchored mines would only be permitted under certain restricted conditions (Article 5). These conditions would not apply to anchored mines placed with the distance fixed (Articles 2-4). On the other hand, after long deliberation, a provision advanced at the beginning of the debate by the delegation of the Netherlands was rejected. Among the original Netherland proposals was one establishing a prohibition "to bar straits uniting two open seas.” In a formula presented later the sense of this prohibition was thus specified: "In any case," read the formula presented to the committee of examination, "the communication between two open seas can not be barred entirely, but passage will be permitted only on conditions which are indicated by the competent authorities." His Excellency Vice Admiral Röell explained to the subcommission that the proposal had reference only to the right which should be reserved to neutrals to traverse straits uniting two high seas, straits which ought not to be entirely barred. He pointed out that, except where special conventions govern the situation of certain straits, no one in theory contested the obligation to allow passage through straits joining two open seas; but it is important that this principle be fixed by a conyentional stipulation clearly stating that straits can not be barred so as not to leave open communication for peaceful shipping. 1 Scott, Resolutions of the Institute of International Law (New York, 1916), p. 166. 1 It would be well understood that the bordering State might lay down conditions for passage, especially by having the ships that wish to pass guided by a pilot. In speaking of straits joining two open seas all the interior seas of a State would naturally be excluded. “A rule," concluded the Vice Admiral, " is necessary. If we do not formulate one the situation will be untenable, and the absence of any stipulation will give rise to complaints and disputes, which from every point of view we must try to avoid." In order to bring out the sense of the prohibition clearly there was added, after a preliminary exchange of views in the committee, to the rules proposed by the delegation of the Netherlands a second paragraph stating that "these provisions have no effect upon rules established by existing treaties nor upon rights of territorial sovereignty. In fact, notwithstanding the explanations given, the proposal of the Netherlands met objections drawn from rights of territorial sovcreignty as well as from conventional stipulations existing on the subject of certain straits. It would be necessary, it was said, that these reservations appear in the very text of the arrangement in order to cover the declarations made on several sides on the subject of existing conventional stipulations, as well as on the subject of straits whose shores belong to the same State. The declaration made in the name of the delegation of Japan at one of the sessions of the subcommission was recalled. His Excellency, Mr. Tsudzuki, while declaring that he had no objection if the rule were applied only to neutral countries, had remarked, on behalf of the delegation of Japan, that "the Netherland amendment to Article 4 of the British proposal could, in his opinion, perhaps be adapted to the geographical conditions of continental States but not always to those of insular Powers. By reason of the particular configuration of Japan, of the great number of straits separating the islands (straits which are an integral part of its territory, but which, nevertheless, would fall within the definition as written in the said amendment), the Japanese delegation could not adhere to this provision." However, even with the above-stated addition, the proposed formula concerning straits did not carry. A declaration worded more broadly, so as to include also the laying of mines in straits by neutrals, was made in the committee on behalf of the Japanese delegation by Rear Admiral Shimamura; but this delegation at the same time added that it would be improbable that the straits between Japanese islands would ever be entirely barred to neutral navigation, and he said that he was ready to accept a provision to the effect that It is desirable that communication between two open seas be not entirely barred by automatic mines. Nevertheless, passage be subjected to conditions to be decreed by the competent authorities. |