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TITLE II.

EXTRA-TERRITORIAL ACTION.

CHAPTER VI. Navigation.

VII. Discovery.

VIII. Exploration and Colonization.

IX. Fisheries.

X. Piracy.

CHAPTER VI.

NAVIGATION.

ARTICLE 53. Freedom of the "high seas."

54. Navigation of the high seas and other waters.

55. Rivers communicating with the sea.

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Freedom of the "high seas."

53. The high seas are the ocean, and all connecting arms and bays or other extensions thereof, not within the territorial limits of any nation whatever.

No part of the high seas is the subject either of property, or of exclusive jurisdiction.'

1 Ortolan, Régles Int. et Dipl. de la Mer, v. 1, pp. 112, 120.

Navigation of the high seas and other waters.

54. The right to navigate the high seas and all other navigable waters not within the territorial limits of any nation whatever,' is common to all nations and their members; and except as provided in this Code, can be abridged or renounced only by actual consent.'

2

1 See Ortolan, above cited: and Bluntschli, §§ 304-307, 314, 316.

1 Phill. Int. Law, § CLXXIV.; Heffter, § 74, p. 148.

Doubted by Hautefeuille, Droit des Nations Neutres, v. 1, p. 222. As to tacit consent arising from disuse, see Lawrence's Wheaton, 339-346, § 10. Rivers communicating with the sea.

55. A nation, and its members, through the territory of which runs a navigable river, have the right to navigate the river to and from the high seas, even though passing through the territory of another nation; subject, however, to the right of the latter nation to make necessary or reasonable police regulations for its own peace and safety.

Message of President Grant to the Congress of the United States, December, 1870; and treaties there cited.

Inland waters.

56. The right to navigate inland waters not communicating with the ocean by a natural channel, is common to every nation, whose territory borders thereon, and to its members.

Bluntschli, Droit International Codifié, § 316; 1 Phill. Int. Law, § CCIV. See provisions as to RIGHTS OF OCCUPATION, in the articles of Section II. of Chapter XXV., entitled PERSONAL RIGHTS OF FOREIGNERS.

Menacing armaments.

57. A nation may refuse to allow menacing armaments of another nation to enter or remain within its territorial limits.

Ortolan, Rég. Int. et Dipl. de la Mer, vol. 1, pp. 143, 145.

Some treaties fix a number as a limit,-three, four, five, or six ships at a time.

Military ports.

58. A nation may refuse to allow public or private ships of another nation to enter its purely military ports.

Ortolan, Reg. Int. et Dip. de la Mer, vol. 1, p. 145.

Public vessels may refit in port.

59. Subject to the last two articles, public ships of one nation, whether armed or unarmed, and private ships, may enter, remain and refit in any port of another, which is open to the commerce of any nation whatever.

Suggested by treaty of friendship, commerce and navigation between France and San Salvador, January 2, 1858, Art. XVII., 7 De Clercq, 362. Qualifications in the case of war are contained in Book Second of this Code.

Restrictions.

60. The right of navigation must be exercised subject to the regulations for avoiding collisions, usually observed by ships where it is exercised,' and those prescribed by Chapter XXXII., entitled RULES OF NAVIGATION, [LAW OF THE ROAD AT SEA,] and subject to such reasonable police and military regulations in respect of the territorial waters of another nation, as the latter may prescribe,' and to Chapter X., relative to PIRACY.

1 Bluntschli, §§ 330-332. This has been lately held by Judge Blatchford, American Admiralty Judge in 6th District.

See, to the contrary, the Saxonia, Lushington's Rep., 414; 15 Moore's Privy Council Rep., (N. S.,) 682.

? Dana's Wheaton, § 180, note 108. The practice of America and England authorizes seizures for revenue offenses, etc., beyond this limit. 1 Phill. Int. Law, § CXCVII.

False colors and signals.

61. The displaying of false colors, or the making of false signals by a ship, with intent to mislead any ship, public or private, of another nation, is a public offense.

Ortolan, Rég. Int. et Dip. de la Mer, vol. 1, p. 254.

Right of approach.

62. A ship, whether public or private, has a right to approach another on the high seas, if it can, and to hail or speak it, and to require it to show its colors; the approaching ship first showing its own.

Ortolan, Rég. Int. et Dip. de la Mer, vol. 1, p. 233, &c.

"Visitation" defined.

63. "Visitation" is the boarding of a ship.

Right of visitation.

64. No ship is subject to visitation by a ship of another nation,' except in the following cases:

1. A private or other unarmed ship within the territorial limits of the nation by whose public ship the visitation is made;

2. On the high seas, in the cases provided in the next article."

1 Ortolan, above cited; Fiore, Nouv. Dr. Int., vol. 2, p. 489, &c.; Halleck, Int. Law, p. 593, § 1. See Lawrence's Wheaton, pt. 4, ch. 3, § 18.

The territorial limits will be extended by article 28, to three marine leagues; and it does not seem necessary to recognize the right of pursuit beyond that distance.

3 The effect of these rules will be to require ships to show their true colors at sea, and to allow armed ships to visit in case of a breach of this rule, confining the visitation, however, to the purpose of ascertaining the character of the offender, and its identity. See the subject discussed in Ortolan, Régles Int. et Dipl. de la Mer, vol. 1, p. 233, &c. Visitation in time of War is provided for in Book Second.

Visitation on the high seas.

65. If a private or other unarmed ship, being upon the high seas, not under convoy of an armed ship of its nation,' does not show its colors in response to an armed ship of another nation duly requiring it, or if there be probable cause for believing that it shows false colors with intent to mislead an armed ship of another nation, it may be compelled to submit to visitation.

1 The presence of the convoying ship is a sufficient assurance of nationality. Wildman, Int. Law, vol. 2, p. 121. Perhaps this should be extended to armed ships; and if so, the clause as to convoy will be omitted.

Mode of visitation.

66. In the case of a visitation upon the high seas, the visiting ship must give distinct and intelligible warning of its visit.' If a gun be fired, warning must first be given by a blank shot, and then, after reasonable opportunity for submission, by a shot ahead;' and no more force must be used than is necessary to

ascertain the nationality and the identity of the offend

ing ship.3

1 The warning may be by hailing. See Halleck, p. 610, § 15.

2 Ortolan, Régles Int. et Dipl. de la Mer, vol. 1, p. 253.

3 Halleck, p. 606, § 10.

Salutes.

67. An armed ship entering a fortified port or roadstead of a foreign nation must salute it, and must be saluted in return.' But ships of small armament may omit the salute, communicating the reasons to the authorities of the port.2

Beyond this, a salute is not required between ships and fortifications, or between ships themselves."

p. 316.

1 For the controversies on the right of salute, see Ortolan, vol. 1, The only sufficient object of making a salute obligatory is to give notice to the authorities of the arrival of an armed foreign ship.

2 Guide Pratique des Consulats, vol. 2, p. 38.

3 Halleck (p. 118, § 29,) says, a salute should be returned gun for gun. To refuse an exchange of salutes is regarded as evidence of a want of friendship and good will, which justifies the other party in asking explanations; but it cannot in itself be considered an offense or an insult, sufficient to justify hostilities. Id., p. 110, § 21.

Searches forbidden.

68. Subject to article 85, a ship of one nation, on the high seas, is not subject to search by a ship of another nation.

Flag and documents.

69. Every ship navigating waters beyond the territory of its nation is bound to carry the flag of its nation, and to have on board documentary evidence of its national character.1

The documentary evidence of the character of a public armed ship is the commission of its commander, or the written order of his government.

That of a private or other unarmed ship must be in the form prescribed by the article entitled Contents of Passport, in Chapter XX., entitled NATIONAL CHARACTER OF SHIPPING.

De Cauchy Dr. Mar. Int., vol. 1, p. 47; Bluntschli, § 326; 1 Phill., § CCIII. 1 See provisions of Chapter XX., on NATIONAL CHARACTER OF SHIPPING.

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