All law, it is obvious, should be based on concepts of right, expressed and interpreted by reason. Anything which is set up as law, and particularly international law, that cannot be justified as being right and reasonable, is in truth not law at all although asserted to be such by the most powerful nation or nations of the earth. For with respect to international law, if the supreme authority, that is to say, the body of civilized nations, has no moral right to make the rule of action, then no one is under the slightest moral obligation to obey the pretended law so laid down. Of course it is recognized as a practical matter that whether or not the supreme authority which makes the rule of action is rightly entitled to pronounce the particular rule, that authority by reason of its force of arms on land or sea, may be able to compel obedience to anything which is asserted to be law no matter whether the thing so asserted is or is not in harmony with right or justice.

After all, no nation has the absolute authority to bind other nations of the world by its own declaration of what is international law and likewise no nation at the present time possesses the absolute power to do so. But historically, a few of the great nations have either individually, or in conjunction with each other, boldly asserted and maintained as international law certain things which suited their own convenience.

The country that comes nearest to having that power at the present time, at least with respect to the sea, is the Empire of Great Britain and as a result we find that down the centuries Great Britain has pronounced as the law of nations with respect to the sea, at one time one rule, and at another time another rule, and has through the power of its Navy, which has usually surpassed in strength any possible combination which might be brought against her, been able to enforce upon the other nations of the world that rule of action which, at the particular moment, Great Britain saw fit to solemnly pronounce as international law.

International law is not in reality a fixed and rigid body of rules which every nation must obey and observe, but only a mass of customs and claims which civilized nations have found it convenient to adhere to as a common rule of action. This body of customs, like all other things in the world, is subject to change from century to century and even from decade to decade; and necessarily so, for the obvious reason that a rule of action for the nations which may be convenient to be observed by civilized nations today, may run counter to the welfare or even to the safety of some of those nations a few years hence, and, therefore, the nations which feel themselves endangered by an outworn concept of what may have been theretofore regarded as international law will not hesitate, and rightly so, to refuse to be longer bound thereby.

However, our present discussion of international law concerns only jurisdiction of the marginal seas; that is to say, of the seas adjacent to the land masses of the earth. At the outset it may be well to observe that the jurisdiction seaward exercised by any nation may not be the same distance for all purposes. It may be sufficient for a nation to claim general and practically complete jurisdiction-perhaps sovereignty would be the better term-for only 3 or 4 or 10 or 12 miles, offshore, but equally necessary for the same nation to claim and exercise a more extensive jurisdiction for special purposes such as the

protection of the customs, or of the national fisheries, or for national defense.

Some of the law writers, some of the statesmen, and some of the jurists have referred to the minimum marginal belt over which all nations under all circumstances may exercise control as being within the "sovereignty" of the State and some have referred to the larger power which may be rightly exercised according to circumstance and condition for special purposes a greater distance from the shore as being an exercise of the "jurisdiction" of the bordering state. Nearly all, however, admit that even within the narrower belt, other nations have free right of passage for all except ships of war, so that it may be conceded that even within the narrower minimum belt, the riparian state does not exercise sovereignty in the full sense of that term, for if that were the case, the ships of other nations would not be permitted freedom of passage.

The standard definitions of jurisdiction and of sovereignty do not give much help, for jurisdiction, in international law, is generally thought to mean the rights exercisable by a State within the bounds of its sovereignty, and sovereignty as the equivalent of the power of the whole nation or society. It is simpler, perhaps, to say that the nation bordering on the sea is entitled to exercise jurisdiction-or power or authority-over the marginal waters for a certain minimum distance in all cases and for all purposes, except to prevent peaceful passage of the ships of other nations, and may exercise a larger jurisdiction over a broader belt for special purposes, such as the protection of the customs and of the fisheries.

The claims of nations over the seas adjacent to their coasts, have varied widely from time to time, and there never has been, and is not now, unanimity of opinion among the civilized nations of the earth with respect to the nature and extent of such jurisdiction. It was once the fashion to claim extensive jurisdiction over the high seas, so as to embrace most of the principal trade routes of the world. And at other times the claims of jurisdiction have shrunk to what is popularly known as the 3-mile limit. But at no time have all, or even a majority, of the civilized nations of the world acquiesced in the rigid application of the 3-mile limit rule except as a minimum distance over which territorial jurisdiction may be exercised for any and every purpose. At no time have all nations acquiesced in the greatly enlarged claims of jurisdiction to extend, for all purposes, hundreds and even thousands of miles over the high seas. And at the present time, while a number of powerful nations, under the leadership of Great Britain, may assert that the 3-mile limit is the only one recognized by international law, that claim is made upon the theory only that those nations by their control of the sea can make and enforce what they assert to be international law thereon, in other words, a claim of naked force.

From the earliest times it has been understood and commonly accepted that upon principles of natural right and justice, and that duty of self-defense and self-protection which is inherent in the societies of men as well as in human beings, that the authority of sovereignty or jurisdiction of the Nation did not end as its shores washed by the seas, but extended some distance beyond. If any principle may be said to have the authority of true international law, the principle which I have just now mentioned possesses that authority. Nowhere

has the general principle been expressed more lucidly than by Senator Elihu Root in his argument before the North Atlantic fisheries tribunal, wherein he said:

That is to say, these vague and unfounded claims disappeared entirely, and there was nothing of them left as the basis for any claim of ownership or sovereignty or jurisdiction over any portion of the sea beyond the line that adjoins the land. The sea became in general, as free internationally as it was under the Roman law. But the new principle of freedom, when it approached the shore, met with another principle the principle of protection; not a residuum of the old claim, but a new independent basis and reason for modification, near the shore, of the principles of freedom. The sovereign of the land washed by the sea asserted a new right to protect his subjects and citizens against attack threatening their peace, to protect their revenue, to protect their health, to protect their industries. That is the basis and the sole basis on which is established the territorial zone that is recognized in the international law of today. Warships may not pass without consent into this zone, because they threaten. Merchant ships may pass and repass, because they do not threaten. But merchant ships may not enter into the coast trade from port to port without consent, because they interfere with the industry of the people, the natural right of the people to carry on the intercourse between their own ports. Fishing ships may not come to engage in fishing, because they interfere with the natural industry of the people on the coast, the natural immemorial right of the dwellers on the sea. Back in the remotest times, in all times, whatever be the rule of freedom of the sea, however free it may be, it is deeply embedded in human nature that the men who dwell by the shore of the sea consider that they have a natural right to win their support from the waters at their doors; and they look with natural resentment at one coming from a distance to interfere with that right; and that immemorial, natural right of the coastal population to secure support from the sea is an object of the right of protection by the sovereign.

That is essentially a relation of sovereignty. Efforts have been made at times by monarchs in former days, when the old theory of ownership prevailed, to separate some portions of the opportunity and grant them to individuals or corporations special rights to fish, seldom, I think, out in the marginal seas or territorial seas, but in interior waters. However, those instances have been exceptional. The attempt unduly to restrict this great natural right of his subjects, and to create monopolies in particular places, was one of the great things that cost Charles I his head. Universally, now, the relation of the state to the fishing of its coastal population is the sovereign right of protection; and we are certified in this treaty that that is the relation of Great Britain, for in it she declares that this liberty which the inhabitants of the United States are to have forever is to be in common with the subjects of Great Britain.

Despagnet has stated the rule very accurately in the work which is already in the hands of the court. He says in section 411 of his work:

"But the reasons which justify the sovereignty of the state beyond the limits of its terrestrial territory are always the same."

Perels summarizes them in three principles:

"First. The security of the adjacent state requires that it shall have exclusive possession of its shores and that it may protect the approaches.

"Second. The surveillance of vessels which enter, leave, or sojourn in its territorial waters is imposed by the guaranty of efficient police and the advancement of its political, commercial, and fiscal interests.

"Third. Finally, the exclusive enjoyment of the territorial waters, e. g., for fishing and coastal trade, may be necessary to secure the existence of coastal populations."

The conclusions of the Institute of International Law at the meeting of 1894 contain what is supposed to be a correct statement of the relation of the state to this kind of right. The resolution adopted there is as follows:

The State has a right of sovereignty over a zone of sea which washes the shore, subject to the right of innocent passage reserved in article 5. This zone bears the name "territorial sea."

The President of the tribunal will perhaps remember that in the debate which took place at that meeting of the Institute of International Law the original report of this resolution was a little broader, and it took the form "a State has the right of sovereignty," and that was modified in the final resolution by substituting "a" for "the" so that it read "has the right of sovereignty."

It will be remembered that in making this argument Senator Root was pressing for a narrow delimitation of the territorial seas of Canada and Newfoundland in order to preserve, under treaties, the largest possible rights and privileges of American fishermen.

A modern authority, Dr. William E. Masterson, in the introduction of his work entitled "Jurisdiction in the Marginal Seas," has given a clear statement of the lack of any precise rule of international law, commonly so recognized with respect to the rights of any nation over the waters adjoining its coast and in this connection he makes the following observations:

The old claims of the maritime powers to dominion in the high seas were abandoned some 200 years ago. It has always been evident, however, that for some purposes, at least, it is necessary for the state to retain a certain measure of jurisdiction over the waters adjoining its coast: The nation's defense and safety must be secured; navigation must be made safe for vessels visiting its ports; health must be protected, the revenue safeguarded against smuggling craft, and the coast fisheries must be reserved for its nationals. The development of the idea of this jurisdiction in the coastal waters has not been without its difficulties. Especially has the maximum distance seaward to which certain laws may be enforced in these waters been a constant and fruitful source of controversy among nations; and so varied has been the practice and so divergent the views of government on this point that it may be safely said that there has not, as yet, emerged from the confusion a clearly defined and crystallized principle of international law, unless it may be said that 3 miles, or one league, must be allowed as the minimum distance.

A thorough treatment of the historical development of the law relating to jurisdiction in the marginal seas with respect to fisheries, neutrality, crime pilotage, collision, quarantine, salvage, revenue, and customs is beyond the scope of this volume. The laws passed to protect or regulate these various interests, or claims, involve different considerations, and they have, therefore, developed along different lines: laws securing or regulating a particular interest have been evolved from factors peculiar to such interest. They, thus, necessarily present distinct questions, and should, therefore, be dealt with separately in a study of the law pertaining to jurisdiction in the littoral seas. The attempt within recent years, on the part of some writers, judges, and governments, to fix a single zone beyond which the application or enforcement of them all is forbidden, thus treating them as a single problem, has cast this extremely difficult subject into hopeless confusion, and has littered the juristic literature on the subject with careless assertion. Such attempts are open veiled efforts to dodge the accurate solution of a perplexing problem. Assertion and hasty generalization have been handed on, copied and repeated until repetition has led to their acceptance by some as representing statements of a principle of international law. They have resulted in the belief by some English and American writers that no national interest may be safeguarded or regulated under international law, beyond a single zone of 3 miles from the shore.

THE 3-MILE LIMIT RULE

Many people, including judges, law-writers, and statesmen have in recent years made the large, and I believe unfounded, statement that the 3-mile limit of territorial waters has been established in international law and is, in fact, part and parcel of international law, indicating that any nation not recognizing the 3-mile limit rule is running counter to international law, if not actually transgressing it. It may be well, therefore, as a preliminary to determine just how the 3-mile limit theory arose and upon what it rests.

The first notable assertion which, afterward, without the knowledge or consent of the author, evolved into the 3-mile rule was that every nation had a right to claim territorial jurisdiction over so much of the sea adjoining its coast as could be protected and defended by cannon planted on the shore. There was reason in this. For a nation from its upland may actually defend and control and keep in its

armed possession, without leaving the shore, so much of the adjacent sea as could be traversed by its cannon shot when its cannon are planted on the shore on land under its unquestionable jurisdiction. This idea was set down by Hugo Grotius, a brilliant Dutch lawyer, in 1608 in his Mare Liberum, wherein the observed:

the empire of a portion of the sea is, it would seem, acquired in the same way as to the lordship, that is, as above stated, as belonging to a person, or as belonging to a territory; belonging to a person, when he has a fleet which commands that part of the sea; belonging to a territory, insofar as those who sail in that part of the sea can be compelled from the shore as if they were on land.

May I invite particular attention to the last clause of the quotation wherein Grotius says that the adjacent sea belongs to the state "insofar as those who sail in that part of the sea can be compelled from the shore as if they were on land."

A little later Cornelius van Bynkershoek, a judge of the Supreme Court of Appeal of Holland, in his De Dominio Maris Dissertatio, published in 1737, expressed Grotius' idea in an epigram which comes down to us with the same convincing force it had two centuries ago. With respect to jurisdiction of marginal seas, van Bynkershoek expressed his view thus:

Quare omnino videtur rectius, eo potestatem terrae extendi, quousque termenta exploduntur, eatenus quippe cum imperare, tum possidere videmur. Loquor autem de his temporibus, quibus illis machinis utimur; alioquin generaliter dicendum esset, potestatem terrae finiri, ubi finitur armorum vis: etenim haec, ut diximus, possessionem tuetur. Neque alia sentenia usi videntur Ordines foederati Belgii, qui anno MICCLXXI. 3 Jan. decreverunt, navium Praefecti ad oras externorum Principum in mari salutarent, quousque tormenta urbium & arcium exploduntur, prout Princeps ejus orae, qua de agitur, voluerit; ut autem resalutare velit, ejus arbitrio relinquendum hoc addito, esse quemque in ditione sua plenissime dominum & advenam quemque fubditum. Recte, si quid judico, non recte in hac specie alii Principes; sed de his nonnihil dicemus, ubi de occupatione maris exteri actum erit. (De Dominio Maris Dissertatio, Caput II, pages 364-365, C. van Bynkershoek; First Edition, 1702; Second Edition, 1744.)

Which may be fairly translated as follows:

Wherefore on the whole it seems a better rule that the control of the land (over the sea) extends as far as cannon will carry; for that is as far as we seem to have both command and possession. I am speaking, however, of our own times, in which we use those engines of war; otherwise, I should have to say in general terms that the control from the land ends where the power of men's weapons ends; for it is this, as we have said, that guarantees possession. This seems to have been the opinion followed by the Estates of the Belgic Confederation who decreed on the third of January 1671 that the commanders of vessels off the coast of foreign princes should salute at sea as far out as cannon will carry from their cities and forts, according as the prince of the shore in question might prescribe; as for his caring to return the salute, that must be left to him to decide. And they said further that every man is an absolute lord in his own domain, and every foreigner subject unto him. And they were right, in my judgment, though other princes have been wrong in this particular matter. But of these we shall have something to say, after we have discussed the occupation of the outer sea.

It will be observed that the important phrase used by van Bynkershoek is: "Potestatem terrae finiri, ubi finitur armorum vis" which, I suppose, substantially means in English: "The control from the land ends where the power of men's weapons ends.'

In a later work, his Quaestionum Juris Publici, Book I, chapter VII, page 59, Judge van Bynkershoek again observed: "Imperium terrae firniri, ubi finitu armorum potestas," which may be translated into: "The territorial dominion ends where the power of weapons terminates."