INVIOLABILITY OF NEUTRAL WATERS.

Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality.—Hague Convention XIII, 1907, Article 1..

Belligerent ships in a neutral port shall keep the peace, obey the orders of the authorities.

Institute, 1898, p. 155.

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The neutral State may require an indemnity from the belligerent whose ships have, either inadvertently or by violation of the order of the port, caused expense or damage.

Institute, 1898, p. 155.

Neutral ships admitted into belligerent ports shall submit to all visits necessary to ascertain the character of the personnel and the nature of the goods on board, and to all measures taken in the interest of the safety of the State to which the port belongs. In case of resistance, the execution of these measures may, if necessary, be secured by the use of force.

Institute, 1898, p. 156.

There is, then, no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful.

Dana's Wheaton, p. 524.

Neutral land and neutral territorial waters are sacred. No act of warfare may lawfully take place within them.

Lawrence, p. 608.

Exception.

Extreme necessity will justify a temporary violation of neutral territory. But the extremity ought to be very great, and explanation together with any reparation the case may demand ought to be tendered immediately to the aggrieved neutral. It is impossible to lay down beforehand an exact rule for cases the essence of which is that they are beyond rule. The nearest approach to a satisfactory formula is to be found in Mr. Webster's statement in the case of the Caroline, that it is necessary "to shew a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation." In this case Great Britain finally expressed regret for the absence of any explanation and apology at the time, and the

American government accepted these assurances. The incident may be held to show that temporary violations of neutral territory, resorted to under stress of a great emergency, and limited in point of time and magnitude to the warding off of the danger which caused them, are but technical offences, to be apologised for on the one hand and condoned on the other, but not regarded as serious wrongs for which substantial reparation is due.

Lawrence, pp. 609-610.

You will strictly conform to the prohibitions imposed upon belligerents by Convention XIII of the Hague of October 18, 1907, concerning the rights and duties of neutral Powers in case of naval war. For the application of this Convention you will consider territorial waters as never extending less than three miles from the coast, islands or fringing banks appertaining thereto, counting from low water mark, and never beyond the range of guns.

French Naval Instructions, 1912, secs. 22 and 23.

Article I, Hague Convention XIII, 1907, is substantially identical with section 121, Austro-Hungarian Manual, 1913.

HOSTILE ACTS IN NEUTRAL WATERS FORBIDDEN.

Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war-ships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden.-Hague Convention XIII, 1907, Article 2.

If a vessel of either party shall be attacked by an enemy within gunshot of the forts of the other, she shall be defended as much as possible. If she be in port, she shall not be seized or attacked when it is in the power of the other party to protect her;

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Treaty of Peace and Amity concluded between the United States and Tripoli, June 4, 1805, Article X.

If any vessel of either of the parties shall have an engagement with a vessel belonging to any of the Christian Powers, within gun-shot of the forts of the other, the vessel so engaged shall be defended and protected as much as possible, until she is in safety.

Treaty of Peace and Friendship, concluded between the United States and Morocco, September 16, 1836, Article X.

The right to take prize cannot be exercised except in the waters of a belligerent and on the high seas; it cannot be exercised in neutral waters nor in waters which are expressly protected from acts of war by treaty. Neither can a belligerent continue within the latter two classes of waters an attack already begun.

Institute, 1882, p. 47.

An attack, begun on the high seas and pursued in a neutral port or roadstead where a ship has taken refuge, is a violation of neutral territory. It must be checked by the territorial power, by the use of force if necessary, and may be grounds for an indemnity.

Institute, 1898, pp. 155, 156.

Belligerent ships in a neutral port shall all hostilities.

Institute, 1898, p. 155.

refrain from

1. Straits whose shores belong to different States form part of the territorial sea of the littoral States, which will exercise their sovereignty to the middle line.

2. Straits whose shores belong to the same State and which are indispensable to maritime communication between two or more States other than the littoral State, always form part of the territorial sea of such State, whatever the distance between the coasts.

3. Straits which serve as a passage from one open sea to another open sea can never be closed.

Institute, 1894, p. 115.

Definition of territorial waters.

The Institute,

Considering that there is no reason to confound in a single zone the distance necessary for the exercise of sovereignty and for the protection of coastwise fishing and that which is necessary to guarantee the neutrality of nonbelligerents in time of war;

That the distance most generally adopted of three miles from low water mark has been recognized as insufficient for the protection of coast wise fishing;

That this distance moreover does not correspond to the actual range of guns placed on the coast;

Has adopted the following provisions:

Article 1. The State has a right of sovereignty over a zone of the sea washing the coast, subject to the right of innocent passage reserved in Article 5.

This zone bears the name of territorial sea.

Article 2. The territorial sea extends six marine miles (60 to a degree of latitude) from the low water mark along the full extent of the coasts.

Article 3. For bays, the territorial sea follows the sinuosities of the coast, except that it is measured from a straight line drawn across the bay at the place nearest the opening toward the sea where the distance between the two sides of the bay is twelye marine miles in width, unless a continued usage of long standing has sanctioned a greater breadth.

Article 4. In case of war a neutral littoral State has the right to fix, by declaration of neutrality or by special notification, its neutral zone beyond six miles up to the range of coast artillery.

Institute, 1894, pp. 113, 114.

The rights of war can be exercised only within the territory of the belligerent powers, upon the high seas, or in territory belonging to no one. Hostilities cannot be lawfully exercised within the territorial jurisdiction of the neutral state which is the common friend of both parties. To grant any such right to one would be a detriment to the other, and to extend the privilege to both would necessarily make the neutral territory the theatre of hostile operations, and involve the state in the consequences of the war. Hence, every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful, and the party so trespassing is liable to be treated as an enemy, unless full satisfaction is made for such violation of neutral rights.

Halleck, p. 517.

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The armed cruisers of belligerents, while within the jurisdiction of a neutral state, are bound to abstain from any acts of hostility toward the subjects, vessels, or other property of their enemies; they can employ neither force nor stratagem to recover prizes, or to rescue prisoners in the possession of the enemy; nor can they use a

neutral port. or waters within neutral jurisdiction, either for the purpose of hindering the approach of vessels of any nation whatever, or for the purpose of attacking those which depart from the ports or shores of neutral powers. No proximate acts of war, such as a ship stationing herself within the neutral line, and sending out her boats on hostile enterprises, can, in any manner, be allowed to origi nate in neutral territory; nor can any measure be taken that will lead to immediate violence.

Halleck, p. 523.

The rights of war can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. Hence it follows, that hostilities can not lawfully be exercised within the territorial jurisdiction of the neutral State, which is the common friend of both parties.

Dana's Wheaton, p. 520.

Not only are all captures made by the belligerent cruisers within the limits of this jurisdiction [the maritime territorial jurisdiction of a neutral State] absolutely illegal and void, but captures made by armed vessels stationed in a bay or river, or in the mouth of a river, or in the harbor of a neutral State, for the purpose of exercising the rights of war from this station, are also invalid.

Dana's Wheaton, pp. 520, 521.

Extent of territorial waters.

When the maritime war commenced in Europe, in 1793, the American government, which had determined to remain neutral, found it necessary to define the extent of the line of territorial protection claimed by the United States on their coasts, for the purpose of giving effect to their neutral rights and duties. It was stated on this occasion, that governments and writers on public law had been much divided in opinion as to the distance from the sea-coast within which a neutral nation might reasonably claim a right to prohibit the exercise of hostilities. The character of the coast of the United States, remarkable in considerable parts of it for admitting no vessel of size to pass near the shore, it was thought would entitle them in reason to as broad a margin of protected navigation as any nation whatever. The government, however, did not propose, at that time, and without amicable communications with the foreign powers interested in that navigation, to fix on the distance to which they might ultimately insist on the right of protection. President Washington gave instructions to the executive officers to consider it as restrained, for the present, to the distance of one sea league, or three geographical miles, from the sea-shores. This distance, it was supposed, could admit of no opposition, being recognized by treaties between the United States, and some of the powers with whom they were connected in commercial intercourse, and not being more extensive than was claimed by any of them on their own coasts. As to the bays and rivers, they had always been considered as portions of the territory, both under the laws of the former colonial government and of the present union, and their immunity from belligerent operations was sanctioned by the general law and usage of nations.

Dana's Wheaton, pp. 529–530.