forth protests from many writers.1 The controversy itself can be decided only by the practice of the States. The British Act quoted, the basis of which is, in my opinion, sound and reasonable, is a powerful factor in initiating such a practice; but as yet no common practice of the States can be said to exist.

Different from the question of jurisdiction over passing foreign merchantmen is the question of jurisdiction over such vessels when they cast anchor within the maritime belt, or enter a port.2 It is agreed that such vessels, and the persons thereon, fall under the jurisdiction of the littoral State in case peace and order outside the ship are disturbed, or persons other than crew or passengers are affected. But many writers maintain, and the practice of France and some other States supports their view, that the littoral State has no jurisdiction in case only the internal order of the ship is affected, or the relations between members of the crew or passengers are alone concerned. However, there is no rule of International Law which limits its jurisdiction to this extent, and it can therefore claim jurisdiction in all matters over such merchantmen, and the persons thereon, as have cast anchor within the maritime belt or entered a port. On the other hand, the littoral State is not compelled to exercise such jurisdiction, and many States have therefore by commercial and consular treaties 3 stipulated that in such cases as those in which the internal order of the ship is alone concerned, jurisdiction should be exercised, not by the littoral State, but by

1 See Perels, pp. 69-77. The Institute of International Law, which at its meeting at Paris in 1894 adopted a body of eleven rules regarding the maritime belt, gulfs, bays, and straits, voted against the jurisdiction of a littoral State over foreign vessels merely passing through the belt. See Annuaire, xiii. p. 328.

2 See Praag, Nos. 260-270, where details of the practice of the several States are given.

3 See Hall, § 58; Moore, ii. § 204208; Stoerk in Holtzendorff, ii. pp. 446-453; Bonfils, Nos. 625-628; Despagnet, Nos. 429-430; Nielsen in A.J., xiii. (1919), pp. 5-12. See also the American case of Wildenhus, (1886) 120 U.S. 1.

Zone for

and Sani

Laws.

the home State through its consul. But it should be mentioned that, even where a littoral State claims full jurisdiction over foreign merchantmen in its ports, this jurisdiction is to a certain small extent limited when the vessel has been compelled to enter a port in distress,1 because the ship must then in a small degree be regarded as exterritorial.

§ 190. Not to be confounded with the territorial mariRevenue. time belt is the zone of the open sea over which a tary littoral State extends the operation of its revenue and sanitary laws. The fact is that Great Britain and the United States, as well as other States, possess revenue and sanitary laws which impose certain duties not only on their own but also on such foreign vessels bound for one of their ports as are approaching, but not yet within their territorial maritime belt.2 Twiss and Phillimore agree in stating that in strict law these Municipal Laws have no basis, since every State is by the Law of Nations prevented from extending its jurisdiction over the open sea, and that it is only the Comity of Nations which admits tacitly the operation of such Municipal Laws as long as foreign States do not object, and provided that no measure is taken within the territorial maritime belt of another nation. I doubt not that in time special arrangements will be made as regards this point by a universal international convention. But I believe that, since Municipal Laws of the above kind have been in existence for more than a hundred hundred years and have not been opposed by other States, a customary

1 See Moore, ii. § 208, and the award in the case of The Enterprise in Moore, Arbitrations, p. 4349. See also above, § 144 n.

2 The matter is treated by Moore, i. § 151; Taylor, § 248; Twiss, i. § 190; Phillimore, i. § 198; Halleck, i. p. 157; Stoerk in Holtzendorff, ii. pp. 475-478; Perels, § 5, pp. 2528; Raestad, op. cit., pp. 118-120,

128-130, 142-143. See also Hall, Foreign Powers and Jurisdiction, $$ 108-109, and Annuaire, xiii. (1894), p. 135; the British so-called Hovering Acts (9 Geo. II. c. 35, and 24 Geo. III. c. 47) have been repealed, and the present English law on the subject is contained in the Customs Consolidation Act (1876) (39 & 40 Vict. c. 36), §§ 53, 147, 179, 181, 189.

rule of the Law of Nations may be said to exist which allows littoral States in the interest of their revenue and sanitary laws to impose certain duties on such foreign vessels bound for their ports as are approaching, although not yet within, their territorial maritime belt.

time Belt

houses in

§ 190a. Since the most important lighthouses are built No Marioutside the maritime belt of the littoral States, the around question arises whether a State can claim a maritime Lightbelt around its lighthouses in the open sea. Sir Charles the Sea. Russell, in the Behring Sea Seal Fisheries case (see below, § 284), answered it affirmatively as follows: 1 'I wish to point out that . . . if a lighthouse is built upon a rock, or upon piles driven into the bed of the sea, it becomes, as far as that lighthouse is concerned, part of the territory of the nation which has erected it, and, as part of the territory of the nation which has erected it, it has, incident to it, all the rights that belong to the protection of territory-no more and no less. . . . That point has never been doubted, and if it were, there is ample authority to support it. The right to acquire by the construction of a lighthouse on a rock in mid ocean a territorial right in respect of the space so occupied is undoubted.'

It is tempting to compare such lighthouses with islands, and argue in favour of a maritime belt around them; but I believe that such an identification is misleading, and that lighthouses must be treated on the same lines as anchored lightships. Just as a State may not claim sovereignty over a maritime belt around an anchored lightship, so it may not make such a claim in the case of a lighthouse in the open sea.2

1 See Moore, Arbitrations, i. pp. 900-901.

* See Westlake, i. pp. 119, 190, who agrees with me.

Terri

torial

Bays.

VII

GULFS AND BAYS

Grotius, ii. c. 3, § 8-Vattel, i. § 291-Hall, § 41-Westlake, i. pp. 187-196Lawrence, § 72- Phillimore, i. §§ 200-201a-Twiss, i. §§ 181-182— Halleck, i. pp. 170-174-Taylor, §§ 229-231-Walker, § 18—Hershey, No. 195-Wharton, i. §§ 27-28-Moore, i. § 153-Wheaton, §§ 181-189 -Bluntschli, §§ 309-310-Hartmann, § 58-Heffter, § 76-Stoerk in Holtzendorff, ii. pp. 419-428-Gareis, § 21- Liszt, § 9— Ullmann, § 88-Bonfils, No. 516-Despagnet, Nos. 405-406—Mérignhac, ii. pp. 394-398-Pradier-Fodéré, ii. Nos. 661-681-Nys, i. pp. 477-488-Rivier, i. pp. 153-157-Calvo, i. §§ 366-367-Fiore, ii. Nos. 808-815, and Code, Nos. 279-283-Martens, i. § 100-Perels, § 5-Fulton, The Sovereignty of the Sea (1911), pp. 586-589 and 717-734-Shücking, Das Küstenmeer im internationalen Rechte (1897), pp. 20-24-Barclay in Annuaire, xii. pp. 127-129-Charteris in Reports of the International Law Association, xxiii. (1907), pp. 103-132, and xxvii. (1912), pp. 107-127-Oppenheim in Z. V., i. (1907), pp. 579-587, and v. (1911), pp. 74-95-Salmond in the Law Quarterly Review, xxxiv. (1918), pp. 235-252.

§ 191. Such gulfs and bays as are enclosed by the Gulfs and land of one and the same littoral State, and have an entrance from the sea not more than six miles wide, are certainly territorial; those, on the other hand, that have an entrance too wide to be commanded by coast batteries erected on one or both sides of it, even though enclosed by one and the same littoral State, are certainly not territorial. These two propositions may safely be maintained. It is, however, controversial how far bays and gulfs encompassed by a single littoral State, and possessing an entrance more than six miles wide, yet not too wide to be commanded by coast batteries, can be territorial. Some writers1 state that no such gulf or bay can be territorial, and Lord Fitzmaurice declared in the House of Lords on February 21, 1907, in the

1 See Walker (§ 18), and Wilson and Tucker (5th ed. 1910, § 53). Westlake (vol. i. p. 191) cannot be cited in favour of it, since he distinguishes between bays and gulfs in such a way as is not generally done by international lawyers, and as is

certainly not recognised by geog raphy; for the very examples which he enumerates as gulfs are all called bays, namely those of Conception, of Cancale, of Chesapeake, nd of Delaware.

name of the British Government, that only bays with an entrance not more than six miles wide were to be regarded as territorial. But in the North Atlantic Coast Fisheries case, which was decided by the Permanent Court of Arbitration at the Hague in 1910, Great Britain disowned the declaration by Lord Fitzmaurice. The United States contended for its accuracy, but the Court refused to agree. Other writers maintain that gulfs and bays with an entrance more than ten miles wide, or three and a third marine leagues, cannot belong to the territory of the littoral State, and the practice of several States, such as Germany, Belgium, and Holland, accords with this opinion. But the practice of other countries, approved by many writers, goes beyond this limit. Thus France holds the Bay of Cancale to be territorial, although its entrance is seventeen miles wide, Great Britain holds the Bay of Conception in Newfoundland and the Bays of Chaleurs and Miramichi in Canada to be territorial, although the width between their headlands is twenty, sixteen, and fourteen miles respectively. Even the Hudson Bay in Canada, which embraces about 580,000 square miles, and the entrance of which is fifty miles wide, is claimed as territorial by Great Britain.2 Norway claims the Varanger Fiord as territorial, although its entrance is thirty-two miles wide. The United States claims the Chesapeake and Delaware Bays, as well as other inlets of the same character, as territorial, although the entrance to the one is twelve miles wide and to the other ten miles. The Institute of International Law has voted in favour of a twelve miles wide entrance, but admits the territorial character of such gulfs and bays with a wider entrance as have

3

1 See Oral Argument, part i. pp. 270-271.

2 But the claim is denied by the United States. See Balch in R.I., 2nd Ser. xiii. (1911), pp. 539-586,

xv. (1913), pp. 153-172, and in A.J., vi. (1912), pp. 409-459, vii. (1913), PP. 546-565.

See Taylor, § 229; Wharton, i. §§ 27 and 28; Moore, i. § 153,