Clear In stances of Strait of Kertch, was not according to the Law of Nations open to vessels of all nations, since the Sea of Azoff is less a sea than a mere gulf of the Black Sea.1 The character of the Inland Sea of Japan 2 is doubtful. Its three entrances, which are less than three miles wide, are indeed in practice open to merchantmen of all nations, but it is not known whether this practice is based upon comity only, or upon a customary rule of International Law. Moreover, geographically considered, this sea is more like a vast bay. The claim of Japan to its territorial character would therefore, perhaps, not be disputed by other States. § 253. It is not necessary or possible to particularise Parts of every portion of the open sea. It is sufficient to give the Open instances which clearly indicate its extent. Sea. To the open sea belong, of course, all the so-called oceansnamely, the Atlantic, Pacific, Indian, Arctic, and Antarctic. But the branches of the oceans, which go under special names, and, further, the branches of these branches, which again go under special names, belong likewise to the open sea. Examples of these branches are the North Sea, the English Channel, and the Irish Sea; the Baltic Sea, the Gulf of Bothnia, the Gulf of Finland, the Kara Sea,3 and the White Sea; the Mediterranean and the Ligurian, Tyrrhenian, Adriatic, Ionian, Marmora, and Black Seas; the Gulf of Guinea; the Mozambique Channel; the Arabian Sea and the Red Sea; the Bay of Bengal, the China Sea, the Gulf of Siam, and the Gulf of Tonking; the Eastern Sea, the Yellow Sea, and the Sea of Okhotsk; the Behring Sea; the Gulf of Mexico and the Caribbean Sea; Baffin's Bay. 1 So say Rivier, i. p. 235, and 2 See tal Steam Navigation Co., [1895) A.C. 644, and Piggott, Nationality, p. 29. 3 The assertion of some Russian publicists that the Kara Sea is Russian territory is refuted by Martens, i. § 97. It will be remembered that it is doubtful as regards many gulfs and bays whether they belong to the open sea or are territorial.1 III THE FREEDOM OF THE OPEN SEA Hall, § 75—Westlake, i. pp. 164-170-Lawrence, § 100-Twiss, i. §§ 172-173 -Moore, ii. §§ 309-310-Taylor, § 242-Wheaton, § 187-Hershey, Nos. 203-206-Bluntschli, §§ 304-308-Heffter, § 74-Stoerk in Holtzendorff, ii. pp. 483-498-Ullmann, § 101—Bonfils, Nos. 572-577-PradierFodéré, ii. Nos. 874-881-Rivier, i. § 17-Nys, ii. pp. 178-205-Calvo, i. § 346-Fiore, ii. Nos. 724, 727, and Code, Nos. 933-935-Martens, i. § 97-Perels, § 4-Testa, pp. 63-66-Ortolan, Diplomatie de la Mer (1856), i. pp. 119-149-De Burgh, Elements of Maritime International Law (1868), pp. 1-24-Castel, Du Principe de la Liberté des Mers (1900), pp. 37-80.. 2 of the 'Freedom of the Sea.' § 254. The term 'Freedom of the Open Sea' indi- Meaning cates the rule of the Law of Nations that the open sea Term is not, and never can be, under the sovereignty of any State whatever. Since, therefore, the open sea is not Open the territory of any State, no State has as a rule a right to exercise its legislation, administration, jurisdiction, or police 3 over parts of the open sea. Singe, further, the open sea can never be under the sovereignty of any State, no State has a right to acquire parts of the open sea through occupation, for, as far as the acquisition of territory is concerned, the open/sea is what Roman 3 1 See above, § 191. As regards jurisdiction in cases of collision and salvage on the open sea, see below, §§ 265 and 271. * See, however, above, § 190, concerning the zone for Revenue and Sanitary Laws. 'Following Grotius (ii. c. 3, § 13) and Bynkershoek (De Dominio Maris, e. 3), some writers (for instance, Phillimore, i. § 203) maintain that any part of the open sea covered for Legal Provisions for the Law calls res extra commercium.1 But although the § 255. Apart from the rules contained in the conventions regarding salvage, assistance, collisions and Open Sea. safety of life at sea, which are discussed below,3 this legal order is created through the co-operation of the Law of Nations and the Municipal Laws of such States as possess a maritime flag. The following rules of the Law of Nations are universally recognised, namely: first, that every State which has a maritime flag must lay down rules according to which vessels can claim to sail under its flag, and must furnish such vessels with some official voucher authorising them to make use of its flag; secondly, that every State has a right to punish all such foreign vessels as sail under its flag without being authorised to do so; thirdly, that all vessels with their persons and goods are, whilst on the open sea, considered under the sway of the flag State; fourthly, that every State has a right to punish piracy 1 But the subsoil of the bed of the open sea can, through driving mine and piercing tunnels from the coast be acquired by a littoral State. See above, § 221, and below, §§ 287c and 287d. 2 The assertion of Stier - Somlo, op. cit., p. 59, that this rule is not one of customary International Law, but only a rule of comity, is absolutely unfounded. * See §§ 265, 271, 594. on the open sea even if committed by foreigners, and that, with a view to the extinction of piracy, men-of-war of all nations can require all suspect vessels to show their flag. These customary rules of International Law are, so to say, supplemented by Municipal Laws of the maritime States comprising provisions, first, regarding the conditions to be fulfilled by vessels for the purpose of being authorised to sail under their flags; secondly, regarding the details of jurisdiction over persons and goods on board vessels sailing under their flags; thirdly, concerning the order on board ship and the relations between the master, the crew, and the passengers; fourthly, concerning punishment of ships sailing without authorisation under their flags. of the § 256. Although the open sea is free, and is not the Freedom territory of any State, it may nevertheless, in its whole Open Sea extent, become the theatre of war, since the region and War. of war is not only the territories of the belligerents, but likewise the open sea, provided that one of the belligerents at least is a Power with a maritime flag.1 Men-of-war of the belligerents may fight a battle in any part of the open sea where they meet, and they may capture all enemy merchantmen they meet on the open sea. And, further, the jurisdiction and police of the belligerents become, through the outbreak of war, in so far extended over vessels of other States, that belligerent men-of-war may now visit, search, and capture neutral merchantmen for breach of blockade, contraband, and the like. However, certain parts of the open sea can become neutralised, and thereby be excluded from the region of war. Thus the Black Sea became neutralised in 1856 through Article 11 of the Peace Treaty of Paris 1 Concerning the distinction between theatre and region of war, see below, vol. ii. §170. Naviga tion and Cere on the stipulating: La Mer Noire est neutralisée ouverte à la marine marchande de toutes les nations, ses eaux et ses ports sont formellement et à perpétuité interdits au pavillon de guerre, soit des puissances riveraines, soit de toute autre puissance.' Yet this neutralisation of the Black Sea was abolished1 in 1871 by Article 1 of the Treaty of London, and no other part of the open sea is at present neutralised. § 257. The freedom of the open sea involves perfect freedom of navigation for vessels of all nations, whether monials men-of-war, other public vessels, or merchantmen. It Open Sea. involves, further, absence of compulsory maritime ceremonials on the open sea. According to the Law of Nations, no rights whatever of salute exist between vessels meeting on the open sea. All so-called maritime ceremonials on the open sea 2 are a matter, either of courtesy and usage, or of special conventions and Municipal Laws of those States under whose flags vessels sail. In particular, no State has any right to require a salute from foreign merchantmen for its men-of-war.3 Claim of States to The freedom of the open sea involves likewise freedom of inoffensive passage 4 through the maritime belt for merchantmen of all nations, and also for men-of-war of all nations, in so far as the part of the maritime belt concerned forms a part of the highways for international traffic. Without such freedom of passage, navigation on the open sea by vessels of all nations would be a physical impossibility. § 258. Since no State can exercise protection over vessels that do not sail under its flag, and since every vessel must, in the interest of the order and safety of the open sea, sail under the flag of a State, the question 1 See above, § 181. 2 But not within the maritime belt 3 That men-of-war can on the open merchantmen to show their flags has nothing to do with ceremonials, but with the supervision of the open sea in the interest of its safety. See below, § 266. See above, § 188. |