was discussed before the World War, whether, not only maritime States, but also States with no sea-coasts could claim a maritime flag. At that time no State without a seaboard actually had a maritime flag, and all vessels belonging to its subjects sailed under the flag of a maritime State. The question was discussed, in particular, in Switzerland. In 1864, 1874, 1889 and 1891, Swiss merchants in foreign ports applied to the Swiss Bundesrath for permission for their vessels to sail under the Swiss flag; but the Swiss Government refused to have a maritime flag,1 though it had no doubt that it had a claim to such flag, because it was aware of the difficulties arising from the fact that, as Switzerland had no seaports of her own, vessels sailing under her flag would in many points have to depend upon the goodwill of the maritime Powers.2 The author did not doubt that the freedom of the open sea involved a claim of any State to a maritime flag; and since the World War, by the Treaties of Peace, the High Contracting Parties have agreed to recognise the flag flown by the vessels of an Allied or Associated Power having no sea-coast, but registered at a place within its territory serving as a port of registry. Such States as have a maritime flag as a rule have a war flag different from their commercial flag; some States, however, have one and the same flag for both their navy and their mercantile marine. But it must be mentioned that a State can by an international convention be restricted to a mercantile flag only, such State being prevented from having a navy. This was 1 See Huber, Die rechtlichen Verhältnisse einer Schweizerischen Meeresschiffahrt unter Schweizer Flagge (1918), pp. 3-5. The question is discussed by Calvo, i. § 427; Twiss, i. §§ 197 and 198; Westlake, i. p. 169; and thoroughly by Huber, op. cit., PP. 5-21. 3 See Huber, op. cit., pp. 5-11, who agreed, and Westlake, i. p. 169, who dissented. 4 e.g. Treaty of Peace with Germany, Article 273. for the Freedom of the formerly the position of Montenegro 1 according to Article 29 of the Treaty of Berlin of 1878. The Dominions of Canada, Australia, and New Zealand have a maritime flag which is a modification of the British flag.2 Open Sea. open sea. 3 Rationale § 259. Grotius and many writers who follow 3 him establish two facts as the reason for the freedom of the They maintain, first, that a part of the open sea could not be effectively occupied by a navy, and could not therefore be brought under the actual sway of any State; secondly, that nature does not give a right to anybody to appropriate such things as may inoffensively be used by everybody and are inexhaustible, and, therefore, sufficient for all. The last argument has nowadays hardly any value, especially for those who have freed themselves from the fanciful rules of the so-called Law of Nature. And the first argument is now without basis in face of the development of the modern navies, since the number of public vessels which the different States possess at present would enable many a State to occupy effectively one part or another of the open sea. The real reason for the freedom of the open sea is represented in the motive which led to the attack against maritime sovereignty, and in the purpose for which such attack was made-namely, the freedom of communication, and especially commerce, between the States which are severed by the sea. The sea being an international highway which connects distant lands, it is the common conviction that it should not be under the sway of any State whatever. It is in 1 See above, § 127, but it was doubtful before the World War whether this restriction was still in existence, since Article 29 was, after the annexation of Bosnia and Herzegovina by Austria in 1908, modified by the Powers, so that the port of Antivari and the other Montenegrin waters were no longer closed to menof-war of all nations. See R.G., xvii. (1910), pp. 173-176. 2 See above, $§ 94a, and Ewart in A.J., vii. (1914), pp. 780-783. 3 See, for instance, Twiss, i. § 172, and Westlake, i. p. 160. See Grotius, ii. c. 2, § 3. the interest of free intercourse 1 between the States that the principle of the freedom of the open sea has become universally recognised and will always be upheld.2 IV JURISDICTION ON THE OPEN SEA Vattel, ii. § 80-Hall, § 45-Westlake, i. pp. 170-180-Lawrence, § 100Halleck, p. 438-Taylor, §§ 262-267-Walker, § 20-Hershey, Nos. 207210-Wheaton, § 106-Moore, ii. §§ 309-310-Bluntschli, §§ 317-352Heffter, §§ 78-80-Stoerk in Holtzendorff, ii. pp. 518-550-Liszt, § 26— Bonfils, Nos. 578-580, 597-613-Despagnet, Nos. 422-430-Mérignac, ii. pp. 536-553-Pradier-Fodéré, v. Nos. 2376-2470-Rivier, i. § 18Nys, ii. pp. 178-215-Calvo, i. §§ 385-473-Fiore, ii. Nos. 730-742, and Code, Nos. 1006-1032-Martens, ii. §§ 55-56-Perels, § 12-Testa, pp. 98-112-Ortolan, Diplomatie de la Mer (1856), i. 254-325-Hall, Foreign Powers and Jurisdiction of the British Crown (1894), §§ 106-109. tion on mainly with § 260. Jurisdiction on the open sea is in the main Jurisdicconnected with the maritime flag under which vessels the Open sail. This is the consequence of the fact stated above 3 Sea that a certain legal order is created on the open sea connected through the co-operation of rules of the Law of Nations Flag. with rules of the Municipal Laws of such States as possess a maritime flag. But two points must be emphasised. The one is that this jurisdiction is not jurisdiction over the open sea as such, but only over vessels, persons, and goods on the open sea. And the other is that jurisdiction on the open sea is, although mainly, not exclusively connected with the flag under which vessels sail, because men-of-war of all nations have, as will be seen, certain powers over merchantmen of all nations. The points which must therefore be here discussed singly are: the claim of vessels to sail under 1 See above, § 142. 2 Connected with the reason for the freedom of the open sea is the merely theoretical question whether the vessels of a State could, through an international treaty, be prevented from navigating on the whole or on certain parts of the open sea. 3 See above, § 255. See below, § 266. Claim of Vessels to Flag. a certain flag, ship papers, the names of vessels, the connection of vessels with the territory of the flag State, the safety of traffic on the open sea, the powers of men-of-war over merchantmen of all nations, and, lastly, shipwreck. § 261. The Law of Nations does not include any sail under rules regarding the claim of vessels to sail under a certain a certain maritime flag, but imposes the duty upon every State having a maritime flag to stipulate by its own Municipal Laws the conditions to be fulfilled by those vessels which wish to sail under its flag. In the interest of order on the open sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the open sea is freedom for such vessels only as sail under the flag of a State. But a State is absolutely independent in framing the rules concerning the claim of vessels to its flag. It can in particular authorise such vessels to sail under its flag as are the property of foreign subjects; but such foreign vessels sailing under its flag fall thereby under its jurisdiction. The different States have made different rules concerning the sailing of vessels under their flags.1 Some, as Great Britain 2 and Germany,3 allow only such vessels to sail under their flags as are the exclusive property of their citizens or of corporations established on their territory. Others, as Argentina, allow vessels which are the property of foreigners. Others again, as France,3 allow vessels which are only in part the property of French citizens. 4 1 See Calvo, i. §§ 393-423, where the respective Municipal Laws of most countries are given. 2 See § 1 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), and §§ 51 and 80 of the Merchant Shipping Act, 1906 (6 Edw. VII. c. 48). 3 At any rate, before the World War. 4 The Institute of International Law adopted, at its meeting at Venice-see Annuaire, xv. (1896), p. 201-in 1896, a body of ten rules concerning the sailing of merchantmen under the maritime flag of a State under the heading: 'Règles relatives à l'Usage du Pavillon national pour les Navires de Commerce.' But no State can allow a vessel to sail under its flag which already sails under the flag of another State. A vessel sailing under the flags of two different States, like a vessel not sailing under the flag of any State, does not enjoy any protection whatever. Nor is protection enjoyed by a vessel sailing under the flag of a State which has no maritime flag.1 Vessels belonging to subjects of such a State must obtain authority to sail under the flag of another State, if they wish to enjoy protection on the open sea.1 And any vessel, although the property of foreigners, which sails without authority under the flag of a State, may be captured by the men-of-war of such State, prosecuted, punished, and confiscated.2 § 262. All States with a maritime flag are by the Ship Law of Nations obliged to make private vessels sailing under their flags carry on board so-called ship papers, which serve the purpose of identification on the open sea. But neither the number, nor the kind, of such papers is prescribed by International Law, and the Municipal Laws of the different States differ much on this subject.3 They do, however, agree to the following papers: (1) An official voucher authorising the vessel to sail under its flag. This voucher consists of a Certificate of Registry, in case the flag State possesses, like Great Britain and Germany for instance, a register of its mercantile marine; in other cases the voucher consists of a Passport, Sea-letter, Sea-brief, or of some other document serving the purpose of showing the vessel's nationality. (2) The Muster Roll.-This is a list of all the members of the crew, their nationality, and the like. 1 But see above, § 258. 2 See the case of The Steamship Maori King, [1909] A.C. 562, and §§ 69 and 76 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60). 3 See Holland, Manual of Naval Prize Law, §§ 178-194, where the papers required by the different maritime States are enumerated. Papers. |