Navigational Servitudes

Navigational Servitudes

Navigational Servitudes Sources, Applications, Paradigms

Ralph J. Gillis

LEIDEN • BOSTON 2007

This book is printed on acid-free paper. A Cataloging-in-Publication record for this book is available from the Library of Congress.

ISBN 978 90 04 16155 9 Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

To Jane C. Gillis

Grotius And even if a man were to have dominion over the sea, still he could not take away anything from its common use, just as the Roman people could not prevent any one from doing on the shores of their dominions all those things which were permitted by the law of nations. And if it were possible to prohibit any of those things, say for example, fishing, for in a way it can be maintained that fish are exhaustible, still it would not be possible to prohibit navigation, for the sea is not exhausted by use. Grotius at 43. Selden But what is this to the Dominion of that thing, through which both Merchants and Strangers are to pass? Such a freedom of Passage would no more derogate from it, (if so bee it were without question free and open to all upon that accompt) then the allowing of an open waie for the driving of Cattel, or Cart, or passing through upon a journie, or any other Service of that nature, through another man’s Field, could prejudice the Ownership thereof. Selden at 123–24. Fulton It was admitted that the sea was free for commerce and innocent passage; but both might be refused if there was suspicion of danger, and that the imposition of tribute for fishing, convoy, or the maintenance of lights and beacons did not infringe the liberty of commerce. Fulton at 497. Allott In the sixteenth century, a critical question for the theologians and philosophers was the question of how there could be a law applying both to the nations of Europe and to the peoples of the lands which had been newly visited or revisited. It was necessary to reconsider the question, which had been familiar to ancient Greece and Rome and medieval Christendom, of whether there could be said to be a universal legal system. The idea was proposed, particularly in Spain and not for the first time in human history, that all humanity formed a sort of society and that the law governing the whole of humanity reflected that fact. Allott at 410.

Contents Acknowledgements ....................................................................... Preface .......................................................................................... Introduction .................................................................................

xi xiii 1

Chapter I Navigational Servitudes: Sources – Publicists & Prerogative ............................................................................... A. Territorial Sea as Fulcrum and Crucible .............................. B. North America and Shared Navigational Servitudes ............ C. Publicists and the 17th Century Jurisdictional Debate ........ D. Royal Prerogative Rights, Public Navigation and Fishing ....

5 5 12 17 34

Chapter II Navigational Servitudes: Transmittal, Consolidation & Merger .......................................................... A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights of Englishmen ....................................... B. British 18th Century Coastal Waters Belt Protective Jurisdiction ......................................................... C. United States 18th Century Coastal Waters Belt Protective Jurisdiction ......................................................... Chapter III Navigational Servitudes: Sources & Public Trust, Prerogative & Constitution ...................................................... A. Prerogative Public Trust ...................................................... B. Constitutional Public Trust ................................................. Chapter IV Navigational Servitudes: Parallels – Conventional Law of the Sea .......................................................................... A. 1958 Geneva Law of the Sea Conventions/Public Trust and Servitudes ........................................................... B. 1982 United Nations Law of the Sea Convention/Public Trust and Servitudes ...........................................................

49 50 66 84

97 97 122

149 150 157

x

Contents

C. The Common Heritage of Mankind/Public Trust and Servitudes ........................................................................... D. Marginal Sea Delimitations/Servitudes and Public Trusts .......................................................................

178

Chapter V Navigational Servitudes: Parallels – Historic Waters, Cases, Conferences & Publicists ............................................... A. The Crucible Focused ......................................................... B. Conventional and Historic Waters ...................................... C. Four Hundred Years of Publicists ........................................

205 205 226 239

168

Chapter VI Navigational Servitudes: Paradigm – Commerce in the Balance ........................................................................... 267 A. Marginal Sea Commerce and United States Practice ........... 267 B. Constitutional Commerce, Interstate and Foreign .............. 288 C. UNCLOS, Commerce and the Res Communis Public Trust .... 316 Chapter VII Navigational Servitudes: Public Trust of the Oceans ........................................................................... A. Jurisdictional Dichotomy of the Oceans ............................. B. Establishment of the Oceans Public Trust ........................... C. Whether United States UNCLOS Ratification Matters .......

321 322 338 352

Conclusion ...................................................................................

359

Table of Cases ...............................................................................

367

Bibliography .................................................................................

387

Index ............................................................................................

405

Acknowledgements As this volume comes to fruition two people substantially responsible for its development have passed away. The Honorable Edward S. Godfrey, III, former Associate Justice of the Maine Supreme Judicial Court, and Professor and Dean of the University of Maine School of Law, and the Honorable Sir Robert Jennings, Q.C., former President of the International Court of Justice and Whewell Professor of International Law at The University of Cambridge, have not seen the completion of this work which they both inspired and encouraged. Special acknowledgement also must be given to other professors of law and of political theory who spent time, hopefully not wasted, and applied their scholarship, direction, and kindly attention attempting to clear my fuzzy mind. Outstanding among these have been Professor Frank Harrison of St. Francis Xavier University, Nova Scotia, Professor L. Kinvin Wroth former Dean of the University of Maine Law School and former Dean of the Vermont Law School, Professor Dennis Driscoll of the University of Galway Law School, Ireland, and Professor Iain C. MacGibbon former Dean of The University of Edinburgh Law School. A great debt is owed to each and all of these good men, and to other numerous friends whose scholarly and professional advice over the years guided, encouraged and developed the author’s over-bright manner with patience. No blame is theirs for faults in this volume, but all credit is due them. Other members of the bar as well as academics have also shown patience, provided help and supplied encouragement with scholarship they would be reluctant to acknowledge, but which each of them holds. They have inspired me, and their comments, reviews, suggestions and restrained mirth when I was off track in areas of law and government so well known to them have made this a better work. In particular I would like to mention Dr. Geoffrey C. Harcourt and Peter R. Glazebrook, Esq., of Jesus College, Cambridge, as well as John Hopkins, Esq., of Downing College, Cambridge. An additional debt of gratitude also is due to the many librarians who, by their able and professional assistance, have greatly reduced my exertions in researching and collecting the materials for this volume. Many of these

xii

Acknowledgements

remain unknown to me except for their kindness, and for their very much appreciated assistance. For each of them my sincere “thank you” is extended, especially to the librarians and their assistants at The University of Cambridge Squire Law Library, The University of Cambridge Library, The University of Oxford Bodelian Law Library, the Scottish National Library, The University of Edinburgh Law Library, the British Public Record Office, the University of Maine Law School Garbrecht Law Library, the Harvard University Law Library, the Library of Harvard University, the Law Library of the United States Department of Justice, the Library of Congress, the United States Supreme Court Law Library and the Boston Social Law Library. Particular gratitude must of course be extended to The Lauterpacht Centre for International Law, especially to Professor James Crawford, Dr. Roger O’Keefe, Mrs. Anne Skinner, Ms. Karen Lee, Dr. Thomas D. Grant, Dr. John Barker and Ms. Katie Hargreaves, whose invitation, welcome and support during my time as a Visiting Fellow has been gratefully received. Appreciation also is due to U.S. Congressman William Delahunt and his staff, U.S. Senator Kerry and his staff, as well as the U.S. State Department and U.S. Commerce Department staffs, each and all of whom have been helpful, particularly in developing the last chapter. Editors, proof-readers and reviewers likewise have given valuable insight and input which has raised the quality of this volume and to each of them I am deeply indebted. Finally, as written in my Ph.D. dissertation of 1978, there is always at least one person without whom it would be fair to say “this would not have been done”. In this case it is Jane, my wife of more than 30 years, whose support and generous attention to the typescript and unending labor proof-reading have enabled this volume to be completed. Truly she is the co-author. It is with equal pride that I must thank Moira C. Gillis, Esq., my daughter, of the Fulbright & Jaworski, LLP, law firm and former articles and comments editor of the University of Pennsylvania Law School’s Journal of Economics and International Law, who has earned my deep appreciation for her editorial work on what my good friend, Professor Phillip Allott of Trinity College Cambridge would, with reason, term “macho American footnotes.” Ralph J. Gillis Visiting Fellow The Lauterpacht Centre Cambridge University

Preface The contents of this volume represent more than 30 years of thought and experience gained in a law practice dealing with international and municipal navigable waters issues. During the 1970s as a postgraduate law student the basic research reflected here was undertaken at various times in distinct aspects at the University of Edinburgh and later at the University of Cambridge. Good intentions always suggested that the dissertations researched and written then should be developed into a published work. Until now the requirements of practice have saved that folly from occurring, and hopefully the reader will find that time has supplied the experience necessary to review and evaluate the earlier research in an encouraging new light. Simply put, age has illuminated a perspective which youth would not have found. During two years spent as a Visiting Fellow at the University of Cambridge’s Lauterpacht Centre for International Law, the opportunity has been afforded for me to reflect on what initially appeared to be disparate bodies of international and municipal law governing navigable waters. The absence of a connecting theme or conceptual matrix for this body of apparently related laws and jurisdictions has continued to present itself over time as an issue requiring resolution. This has been perplexing. Moreover, the need for resolution appears not only in the difficulty of coordinating the various legal concepts pertaining to navigable waters for those entering the field, but also in the responsibility charged to practitioners and adjudicators for the development, application and enforcement of this complex body of law within the overarching and perhaps unique limits of the underlying public rights requirements for navigational freedoms as held in public trust. There is a common equitable theme. All navigable waters, whether international or national, high seas, marginal seas or inland waters, are governed by laws and regulations which evidence a common governance principle. This evident unitary principle is one of government equitable responsibility for protection and preservation of non-governmental yet public rights. This equitable principle is evident in certain juridical systems applying a body of municipal navigable waters law, where that municipal law is comparable to international law as interpreted and applied by that State within the high seas

xiv

Preface

regime. What is at hand is the perceived government responsibility toward ‘public rights’, both national and international, and such responsibility is one of ‘public trust’, the equitable principle where the governmental entity acts as ‘trustee’ of the non-governmental rights of its people both municipally and internationally. Reflection shows this trust to be apparent where a municipal government is the custodian constitutionally charged with protecting and preserving the use of navigable waters for its citizens, and where its participation in the international community extends such responsibility as a collective ‘municipal governments trust’ applied for protection and preservation of the high seas for res communis common use. Trustee municipal governments and the trustee collective community of governments cannot abandon their respective trust responsibility for those concomitant municipal and international public rights. While the fundamental public rights of navigation and its derivatives, such as communication, transportation and fishing, among others, are subject to jurisdictional administrative regulation, these public rights cannot be prohibited from being exercised as public rights on municipal, international or navigable waters. In the perhaps peculiar context of the United States as the North American successor to the United Kingdom these public trust navigation rights have evolved from and are of parallel development with those same public trust rights as evolved in contemporary international law. That is, the modern source of navigable waters public rights arises in the 17th century disputes among those advocating the writings and legal theories of Hugo Grotius for freedom of use of the high seas, as contrasted with those of John Selden for closure of certain seas surrounding England. Understanding this historic dialectic, both that it is the source of current international law high seas regime rights of navigational freedom and its derivatives, and that it continues to evolve bringing those same public rights forward for high seas, marginal seas and inland waters, is essential to understanding the law of navigable waters today. Admittedly many authors have reviewed these historical sources, but such attention does not detract from the significance today of the 17th and 18th century international law publicists as contributors to the foundation of the law of navigable waters and to the public trust for navigable waters as applied both by the community of nations and by the United States. Equally the protection afforded by 17th and 18th century English common law to the Royal Prerogative jus publicum public rights of fishing and navigation solidified the equitable concept of public trust within the municipal navigable

Preface

xv

waters concepts of those English publicists participating in the Grotius versus Selden debate. Today, for the United States, the evolved municipal law of navigable waters is manifest in the Federal Government’s Commerce Clause authority under the United States Constitution, and for international law is contained in the 1958 Geneva Conventions on the Law of the Sea and largely as customary law referenced in the provisions of the 1982 United Nations Convention on the Law of the Sea as well as State practice. For international law as interpreted and applied by the United States, much of the 1980 United Nations Law of the Sea Convention is contained either in the 1958 Geneva Conventions or in State practice as customary international law. The current melding of overlapping international and municipal jurisdictions within the marginal sea areas of coastal States underscores the importance of the emergent law of navigable waters. This volume attempts to pull together the parallel concepts of municipal and international law navigational rights to demonstrate a common underlying principle, that of navigational freedom as a public right held in both those municipal and international public trusts. There the trustee municipal governments and the trustee collective community of governments are obligated to protect and preserve the beneficial public use of navigable waters within the respective juridical regimes of international and municipal law according to equitable principles. If successful, the aspiration of this volume is that the municipal and international law public trusts over navigable waters will be recognized for the combined and coordinated achievement which they represent as an evolved equitable principle within the high seas regime as coordinated with the equitable principles of public trust under United States municipal law. And navigational freedom will be recognized for the common juridical principle of public right as protected and preserved in such public trusts.

Introduction Perhaps G.B. Shaw might have said, as he reputedly once did about trying to cross Ireland by any road without passing a pub, “the puzzle is to engage in commerce without passing navigable waters.” Commerce and navigation have been inseparable, probably since the first bead was carried in trade by curragh, canoe, pirogue, or even earlier by raft or ambitious swimmer. Over time navigation has moved from a consequence of commerce, a facilitator for those seeking trade, to an essential part of commerce and a vested public right. Indeed navigation has become the right of all peoples to the use of navigable waters for commerce and for the consumption of navigable waters resources in commerce. A subtle shift, perhaps, but between the 17th century with its Grotius versus Selden (Grotius/Selden) dispute over coastal waters juridical regimes, and the adoption of the 1789 United States Constitution that shift has meant all the difference, bringing navigation forth as a juridical right, not of governments but importantly and significantly of peoples. Navigation has become a common right, indeed a common juridical principle of “navigational freedom”. And here is the curious point, because the navigational principle is a common right, not “to own” but “to use” navigable waters, perforce the beneficiaries are reciprocal trustees for the interdependent rights of use, a reciprocity sufficient to exclude title acquisition by any one people or national government which would exclude use by other peoples or States. As a right of peoples navigational freedom is an a priori right which cannot be divested and which States are authorized to apply and exercise only in public trust. The public right to navigational freedom is exercised by the American People through their United States Constitution, whereby they reciprocally administer the public trust of the common a priori navigational freedom principle within national navigable waters. Internationally there are likewise both reciprocal beneficiaries and reciprocal trustees, where mankind is invested with the a priori interdependent beneficial interests for navigable waters usage under the navigational freedom principle, and the community of States applies that common juridical principle reciprocally under the high seas regime as a res communis, which is the res communis public trust. This

2

Introduction

has consequences. The “public trust” and the public right of navigation as protected and preserved in accordance with the common navigational freedom principle are, therefore, the point of this volume. There is an evolved principle of public trust which obligates governments, both singularly and in combination, to protect and preserve the common public right of navigation within waters subject to their respective jurisdictions or juridical regimes. The public right is one of usage; to use navigable waters for transportation, carriage, communication and harvesting of riparian and marine resources, unimpeded by conflicting governmental or private interests and activities other than in strict accordance with applicable law. This public right, usually referenced by the short-hand phrases, “freedom of navigation”, “navigation servitude”, or “freedom of the seas”, is a constant common principle of law, the “navigational freedom principle”, pursuant to which the public right of navigation is protected by municipal law for a people, and by international law for mankind. Notably it is the juridical application of this principle which forms the herein referenced “servitudes” over navigable waters, and reflection confirms that these servitudes apply in both municipal and international law for the juridical protection and preservation of navigable waters commerce. Use of the seas for navigation and its derivatives is now codified in the 1958 Geneva Conventions on Law of the Sea (Geneva Conventions) and the 1982 Law of the Sea Convention (UNCLOS). Thereby navigational freedom has become a principle of international law developed out of a customary law consensus formed by those States with an active interest in preserving unfettered high seas and coastal water navigation for trade, commerce and defense. Such formation has come to place States in a unique situation as reciprocal governmental custodians of public rights. In the present context the applicable public – not governmental – right is navigational freedom, benefiting both mankind on navigable waters forming the high seas, and the people of the respective littoral States within navigable waters which have become territorial seas, contiguous zones and exclusive economic zones consistent with the high seas regime requirements of international law. It is that common navigational freedom principle which also has come to be applied under United States municipal law for municipal navigable waters as derived from the English legal tradition. Here, therefore, the approach taken is one of refining, to render the international law and municipal law navigational freedom concepts in confirmation of the consistent juridical principle as both evident and at work. The focus is to confirm, (1) that there is a common juridical principle of navigational freedom; and (2) that the

Introduction

3

evolution of governmental and public navigational servitudes as applied by the United States are derived from that common principle beginning with the Grotius/Selden contest over European navigation as an international law high seas freedom in the 17th and 18th centuries. British interpretation and application of international law in the 17th and 18th centuries launched the navigation servitude as an a priori public right held in trust over coastal navigable waters and, ultimately, the juridical territorial sea. The United States inherited the British concept of navigation servitude so that after 1776 navigation in the United States continued as a primary public right for fishing, commerce, transportation, carriage, communication and other derivatives – an a priori right superior even to property rights of littoral estate holders. Importantly, and of particular interest, the United States extended this navigational freedom principle to its internal waters thereby establishing the “navigation servitude” as superior also to property rights of riparian estates. Consequently the United States municipal public trust responsibility and its custodial navigation servitude have been extended to rivers and lakes as well as to coastal waters, together forming the “navigable waters of the United States”. That trust and servitude are applied as well under international law, over high seas and marginal sea areas, to the point where they constitute the bulwark against maritime usurpations by national, private or individual interests acting in derogation of the interdependent public navigation rights. Simply put, there is a common principle of navigational freedom at work in these municipal and international laws contexts. For the United States both the international law and English-based municipal law aspects of the navigational freedom principle have been combined in a singular fashion under the constitutional structure of the Federal Government for the regulation of commerce. The concept of a public right to navigation under United States municipal law is inherited in particular from English law, especially as it stood in the 17th and 18th centuries when navigation was held within the Crown’s Royal Prerogative jus publicum as a public trust which could not be divested. The English juridical concept of navigation servitude eventually was subsumed within Federal Government authority under the 1789 United States Constitution, as a public right reserved to the American People under the Ninth Amendment and exercised in trust on their behalf under the Commerce Clause of that Constitution. The navigation servitude had passed through a complex history in the 17th and 18th centuries, during which time the high seas became established as a res communis, itself a reciprocal public trust of interdependent

4

Introduction

navigational usage rights, while the municipal navigational servitudes were forged in balance with international high seas regime servitudes over coastal waters areas. Today these servitudes for public navigation are a matter of both customary and conventional law as is apparent from the 1958 Geneva Conventions and the 1982 UNCLOS. It is submitted, therefore, that the public right to navigation now is present as an established legal principle of international law, usually referenced as “high seas freedoms.” Fascinatingly, like English and American municipal law, international law has evolved that legal principle as juridical navigational servitudes within the protection of a public trust concept. Equally fascinating is the realization that the concept of navigable waters is one of a priori public rather than an a posteriori governmental right of usage; the governmental interest – whether municipal or international – being limited to that of trustee or custodian of the common public rights. In either circumstance, it is the people acting through their government(s) who are the reciprocal trustees, and the people acting outside their government(s) who are the interdependent beneficiaries of the navigational freedom principle.

Chapter I Navigational Servitudes: Sources – Publicists & Prerogative Navigation is a public right. Navigation is not a governmental right. Those two concepts are key to understanding the navigational freedom principle. The public navigation right is held in public trust, as applied under municipal law (national) and international law both by trustee municipal governments (States) and by the international trustee collective community of governments. The source of this public right to navigation is intriguingly ancient, and became refined in international law beginning with the high seas regime debates of the 17th century publicists. That same public navigation right also is protected and preserved under English municipal law of the same era within the Royal Prerogative jus publicum. The interface of the public navigation rights under international law and English municipal law came about in the Selden/Grotius dispute over occupation and possession of maritime areas, which formed the fulcrum and crucible for development and evolution of the common navigational freedom principle as juridically manifest in navigational servitudes.

A. Territorial Sea as Fulcrum and Crucible Navigable waters are traditionally used for voyaging and its derivatives, including passage, trade, conveyance of cargo and passengers, research, exploration, communication and harvesting of organic and mineral natural resources among other navigation derivatives. These aspects of navigation point to a common conceptual principle underlying the various legal regimes protecting and preserving public navigation as usage servitudes. The common principle and such servitudes are applied today by the United States, both in its municipal law and in its interpretation and application of international law. That common principle is juridical and, simply put, is the non-governmental

6

Chapter I

Sources – Publicists & Prerogative

public right to freedom of navigation which is governmentally administered in public trust as the ‘navigation servitude’. Navigational freedom is often viewed by international law as a right of nations. But the right of nations is multiple and that of governmental trustees, in fact the communal right and responsibilities of reciprocal governmental trustees which administer the vested public beneficial interest of navigational freedom under equitable principles on behalf of all nationals – “peoples”. That arrangement as a public trust is manifest in the use of navigation in commerce as a matter of public right. The operational principle is navigational freedom, and it is applied as a proprietary servitude as well as by governmental regulations in the form of jurisdictional servitudes over all riparian and internal coastal areas within the territorial jurisdiction of the United States, as well as to the United States territorial waters and adjacent maritime zones held and administered under the high seas regime of international law. While the public navigational servitudes evident in these different areas of United States navigable waters may initially appear to be unrelated and disconnected, they coalesce in their respective implementations as aspects of the common and, thereby, uniting principle of navigational freedom. That common principle shows historic and well established juridical servitudes protecting and preserving the municipal and international public rights of voyaging in navigable waters – servitudes which are held by the United States on behalf of its citizens in public trust as a consequence of their English heritage. What is remarkable is the historical basis of this modern public right to navigational freedom, which results from the initial 17th century contests between the proponents of the respective arguments of mare clausum and mare liberum in the Grotius/Selden dispute. That dispute centers on high seas regime freedom of navigation and its interaction with the extension of littoral State navigational servitudes applied in marginal sea areas by exercises of protective jurisdiction. Even more remarkable is that the freedom of navigation principle has been held since the 17th century as an undeclared public trust by advocates of both the Grotian and the Selden positions, as well as in both modern municipal and international law. The concept of public trust responsibility for the maintenance of navigational freedom under United States municipal law arises initially in the context of 17th century English constitutional law pertaining to the establishment of its North American colonies. But the nascent source of the navigation freedom principle protected and preserved in that public trust is more ancient, growing out of the commerce of individuals rather than the custodial activities of States. State action was necessary initially not to create freedom of navigation but, rather,

A. Territorial Sea as Fulcrum and Crucible

7

to establish regulation for the protection and preservation of maritime commerce and of the public as engaged in commercial navigation. In effecting such regulation governments accepted the commercial activities of the parties and their commerce as matters of existing fact and, thereby, formed the beginning of a governmental trust over public navigation in commerce. This regulatory and nascent custodial role of governments toward the navigational freedom principle is evident in the medieval Rhodian Sea Laws,1 the laws of the Hanse Towns,2 and the Laws of Oleron,3 as well as the even earlier codes of Rome and Constantinople.4 These early laws and regulations reflect an initial stage in the continuing evolutionary dialectic between littoral State coastal waters jurisdiction and international high seas jurisdiction, a primary stage which importantly addresses actual and continuing navigation with general acceptance of shipping and trade as appropriate a priori public uses of coastal waters, marginal seas, and the high seas.5 Such pre-existing public usage not only is the point of regulatory focus but also the raison d’être for these early laws, which are not conceptual hypotheses concocted by jurists but, rather, practical requirements essential to the a priori public navigational use of maritime areas. The simple yet profound significance is that in the first instance littoral State governmental authority was extended seaward, over actual voyaging and other de facto navigational uses of maritime areas. And such regulatory authority was neither for the acquisition of territory nor for the assertion of sovereignty. Rather, the ancient regulation of navigation is administrative, extending over pre-existing and public commercial activities for the benefit of the involved commerce and its public participants. In this way de facto public navigation is accepted as a public right de jure and consequently provided with governmental custodial protection and preservation. The juridical effect

1

2

3 4

5

The Rhodian Sea–Law (Walter Ashburner, ed. & trans., The Lawbook Exchange 2001) (1909). See generally 1–4 The Black Book of the Admiralty (Travers Twiss, ed., The Lawbook Exchange 1999) (1871), the referenced work. The Rhodian Sea–Law, supra note 1 at xcvii–cxii. The Rhodian Sea Laws, the Laws of Oleron and comparable works represent “cross–national” contacts and are precursors to international law. Malcolm N. Shaw, International Law 19 (5th ed. 2003). There was resistance to British claims of sea sovereignty, and Sweden, Russia and Denmark took up the League of Armed Neutrality to counter British power exercised to search neutral vessels. Arthur Herman, To Rule the Waves  ().

8

Chapter I

Sources – Publicists & Prerogative

of that governmental regulatory act in essence reflects early acceptance of navigational freedom as a common though undeclared juridical principle. Public navigation has evolved into its contemporary form out of persistent jurisdictional struggles for littoral State governmental dominance over maritime areas dating from the 17th century. Routinely nations have put forward their respective maritime claims of exclusive control in various bodies of coastal waters, marginal seas and, from time to time, even broader maritime areas. These claims have been for exclusive jurisdiction, raising the issue as to whether littoral State governmental authority would apply municipal law over marginal sea areas superior to the navigational interests of other nations. In the English instance this control was asserted during the 17th century as a right of maritime ownership acquired through occupation and possession of the involved seas. But in fact public voyaging and sea use by peoples of many nations challenged all such governmental efforts taken by littoral States toward establishing exclusive navigational control, thus pressuring development of agreed regulatory protection for the preservation of actual commercial voyaging without regard to jurisdictional polemics. Commercial navigation, through usage, thereby came to be established during the 17th century as a prior juridical right or servitude over navigable waters, which not only preserved public voyaging but also set the parameters within which the concept of a territorial sea would meld and adjust the municipal and international public navigational rights and littoral State regulatory jurisdiction in accordance with the navigational freedom principle under both municipal and international law. United States law combines the public right of navigation and its multiple derivatives, such as fishing and carriage of cargoes and passengers, under the reference term ‘navigation servitude’, on a proprietary basis vesting an a priori interest in the public superior to that of any individual or governmental estate. Internal navigable waters, including rivers and lakes connecting to the sea, and closed coastal waters as well as the territorial sea are subject to this United States municipal law navigation servitude. In combination these internal and coastal maritime waters constitute the “navigable waters of the United States”, which has become the statutory term of art for waters subject to application of the United States municipal law navigation servitude and to its governmental maritime servitudes of extended protective jurisdiction. In addition the United States territorial sea is subject to the co-extensive high seas regime navigational servitudes pursuant to which foreign voyaging activities may be undertaken consistently with such servitudes as established in the 17th century and now applied under international law as the public

A. Territorial Sea as Fulcrum and Crucible

9

rights of innocent passage, force majeure, refuge and safe haven, each and all aspects of the high seas regime res communis public trust interface with the navigable waters public trust as administered by the littoral State. Such high seas regime voyaging rights also continue as juridical navigational servitudes over adjacent marginal sea areas, including the various offshore jurisdictional zones established for fishing, customs and resource management. These high seas regime servitudes are not encompassed by the usual United States municipal law “navigation servitude” term, and zones located seaward of the territorial sea are beyond the navigable waters of the United States. Nonetheless, the underlying common juridical concept of both United States municipal law and the high seas regime remains the protection and preservation of navigational freedom as a public right. Moreover, in both the United States municipal law context and the high seas regime context, that public navigational usage is the dominant right, a juridical servitude, and cannot be excluded by subservient private party, littoral State, or thirdparty State governmental interests or uses. While there is a jurisdictional balance of competing navigational servitudes in maritime areas, under the municipal law of the United States the navigation servitude is federal and is exercised by the Federal Government as superior to the governmental rights of member states and to the individual property rights of littoral and riparian property owners. That navigation servitude superiority also may be said to be present under international law where the high seas regime navigation rights remain dominant over littoral State territorial sea ownership rights. In both circumstances the dominant servitude protects the broadest public navigational right, which is in fact the Grotius/Selden balance achieved as the outcome of the maritime jurisdictional disputes between England and her Continental neighbors during the 17th century.6 This pertinent series of disputes – Anglo/Dutch Wars – came to establish the existence of limited littoral State exclusive maritime jurisdiction in a belt of coastal waters, though to an undefined extent seaward from the coast. Not until the close of the 18th century were the remaining contested issues resolved; i.e., whether such littoral State jurisdiction was based on occupation and possession of a res nullius, and whether marginal sea areas were subject to prior international law public rights consistent with the high seas

6

British charts enabled the rapid expansion of international navigation on the wide ocean commons. Herman, supra note 5, at 433. And British trade drove the concept of freedom of the seas. Id. at 438.

10

Chapter I

Sources – Publicists & Prerogative

regime. Those were the issues to be balanced against littoral State inclusion of closed coastal waters as internal, and littoral State extension of territorial seas from shorelines and artificial closing lines across bays and historic waters, so that the fulcrum for balancing littoral State and international community navigation rights became the territorial sea concept, and the crucible for the common navigational freedom principle was the achievement of an agreed territorial sea definition including international law servitudes for juridical baseline and maritime boundary delimitations. Evolution of the public right to navigational use of coastal waters and marginal sea areas, especially in the 17th century,7 reflects the unarticulated but nevertheless common navigational freedom principle. That principle is applied today as a juridical servitude for the application of the public right of navigation, and is accepted by United States municipal law as well as in customary and conventional international law of the sea. In the 17th century public navigation gave rise to competing fishing and associated commercial interests among European States and their subjects.8 The English, Dutch, French, Spanish, Danes and Swedes each asserted conflicting claims either to exclusion or of access to sea areas and resources.9 It is through resolution of these contested claims that the high seas came to achieve res communis status, rendering such maritime areas legally incapable of being subjected to occupation or possession by any State but also rendering them subject to the prior interdependent rights of all States to navigational usage by their citizens and State vessels – a reciprocal public trust. That prior right is twopart, first a governmental right of navigational usage held on behalf of its citizens and second, a high seas regime juridical servitude protecting and preserving such interdependent navigational usage from being usurped by any one or more States. In this way, as the legal status of the high seas became fixed, the public right to navigational usage likewise received emplacement through effective juridical servitudes, thereby confirming the freedom of navigation principle as an a priori public right under the high seas regime of international law.

7

8

9

The Dutch dominated the English in carriage of goods by sea at the beginning of the 17th century. Mark Kishlansky, A Monarchy Transformed, Britain –, 22 (1996). John Selden, Mare Clausum (Marchmont Needham trans., The Lawbook Exchange 2004) (1652), the referenced work. See The Black Book of the Admiralty, supra note 2.

A. Territorial Sea as Fulcrum and Crucible

11

Municipal law regulation over public navigational usage of coastal waters and marginal sea areas also became resolved, but around a concept other than occupation and possession of a res nullius, as argued by Selden and the British publicists. That underlying concept is apparent in extensions of municipal law “protective jurisdiction.” Protective jurisdiction is important to the development of the navigational freedom principle in both municipal and international law because it sets the parameters of the territorial sea crucible, the point for refining and defining the overlapping areas of governmental regulatory and public trust interests for municipal and international law. Because particular exercises of protective action could be identified, though not reflecting actual occupation and possession as argued by Selden, they did reflect actual contemporary applications of municipal law authority in marginal sea areas. Those municipal law jurisdictional exercises required balancing with international law public navigation rights established by prior usage in the same marginal sea areas. At first glance it seems odd that protective municipal regulation of navigational usage would come to refine and define the possession of marginal seas areas as expounded by Selden. Reflection however suggests that it was the dependence of Selden on the English constitutional requirements of the Royal Prerogative which drove the arguments for occupation and possession of the British Seas where only limited and occasional exercises of protective jurisdiction could be produced as evidence. The Royal Prerogative plays a key role for evolution of public trust and navigational freedom concepts as juridical servitudes over navigable waters, a role more significant than might at first be considered. The 17th century Grotius/Selden dispute sets the stage. During the first part of the 17th century protective jurisdiction appeared as a variety of accepted governmental regulatory servitudes, though not until the late 18th and even the early 19th century did international law accept that both the territorial sea and closed coastal waters claimed as internal or inland were occupied and possessed from or by the shore. This is where the conceptual balance was struck – this is why definition of the territorial sea served as the navigational freedom principle crucible. Ultimately, the navigational servitudes to be applied by the littoral State as exercises of protective jurisdiction weighed equally with navigational servitudes of the high seas regime continuing in coastal waters for the protection and preservation of public navigational usage in innocent passage, force majeure, refuge and safe haven. But the issues in contest during the 18th and 19th centuries and thereafter were: first, to define the seaward jurisdiction for littoral States in the preservation of governmental coastal water obligations

12

Chapter I

Sources – Publicists & Prerogative

for neutrality, defense and police authority; and, second, to resolve whether the servitudes for these governmental rights and obligations could be exercised “exclusively” where the high seas regime navigational servitudes were preserved. Completion of the juridical balancing begun in the 17th century took some time but, throughout, the evolution of a territorial sea concept and its balancing of navigational servitudes remained the crucible for the application of navigational freedom as a principle common to both municipal and international law. Ultimately the high seas regime navigational servitudes were refined and accepted by littoral States when made applicable within the marginal sea belt of coastal waters as a right of transit by foreign vessels in innocent passage. Customary international law likewise accepted littoral State governmental servitudes over such waters for control of neutrality, exclusive fisheries and customs zones as exercises of protective jurisdiction. The acceptance of a navigation servitude for innocent passage, as well as the corollary rights of force majeure, refuge and safe haven in coastal waters, preserved the international law high seas regime navigational freedom principle, but did so in accommodation with littoral State requirements manifest by governmental navigational servitudes for protective jurisdiction. Ultimately those littoral State navigational servitudes merged into the right of territorial sea ownership based on occupation and possession as an adjunct of littoral ownership. In this way evolution of the territorial sea concept, together with the concomitant protection and preservation of high seas regime innocent navigation, confirmed navigational freedom as a common juridical principle. The formation source was and remained commercial voyaging, domestic and international, dating from the Grotius/Selden disputes about claimed English “sovereignty of the seas” during the 17th century. Those disputes have given the United States, as a successor government to Great Britain, a shared pre-1776 juridical basis for the evolution of the navigation servitude under municipal and international law.

B. North America and Shared Navigational Servitudes Prior to July 4, 1776, indeed from the tenuous founding of the Virginia Colony in 1607, the North American Colonies were established in right of the English Royal Prerogative. This is a bit more complex than first appears because it was the constitutional authority of the Royal Prerogative which enabled the King to issue colonial Settlement Charters. However, the Royal

B. North America and Shared Navigational Servitudes

13

Prerogative could not be exercised through such charters beyond authorizing administrative functions. The constitutional role of the Royal Prerogative could not be abandoned, and there could be no colonial derogation from the English settlers’ constitutional rights to application of the common law or to fishing and navigation. Simply put, the interaction of common law concepts with the Royal Prerogative as affecting Selden’s understanding of the constitutional requirement for control of foreigners in marginal seas appertained as well to North America. And, Royal Prerogative governmental functions and jurisdictional exercises as understood by Selden in conjunction with the common law are thereby significant for United States municipal law. The particular significance is that fishing and navigation are public rights, not governmental rights, and are derived from those rights as protected and preserved under the Royal Prerogative jus publicum. Subsequent to 1776 these rights continued to be public, held by the former English People in North America as they became the American People. As public rather than governmental rights, fishing and navigation did not change with the change in governments, and they continued to be antecedent – a priori – to governmental rights. The public rights of Americans were carried forward and were protected and preserved by the respective member states of the Union under the 1781 Articles of Confederation and, since the 1789 adoption of the United States Constitution, have been applied as the “navigation servitude” over maritime and internal navigable waters of the United States. The Constitution contains a limited and specific delegated authority of government to be exercised by the Federal Government over interstate and foreign commerce, which forms the inherent public trust protecting and preserving the a priori public rights of navigation and fishing as the “navigation servitude”. How the navigation servitude protecting the public rights of navigable waters usage developed in England is a historical process which is essential to understanding the public navigation rights inherited by Americans and the way those rights have come to be held in public trust by the Federal Government. Specifically, how navigation and fishing are a priori public rights and protected within the Royal Prerogative jus publicum, as non-divestible public rights held by the Crown in the public trust, is key to understanding why that public trust and those public rights now are applicable to the navigable waters of the United States. Like it or not, history supplies the information necessary to understanding contemporary United States municipal law as well as the international law of the sea. To ignore the 17th century developmental history of the navigational freedom principle as received from the

14

Chapter I

Sources – Publicists & Prerogative

ancient laws of the Hanse Towns and Oleron, and implemented by England in the 17th and 18th centuries, is to invite confusion of thought in the 21st century. There is a surfeit of such confusion. The early sea laws collections of Oleron, Rhodes, Wisby and the Hanse Towns, and even earlier Roman sea laws of the Codex and Basilica,10 usually discuss navigation in terms of ancient admiralty law and the historic law merchant. Reflection suggests an additional significance to these ancient sea laws. Despite their comparative differences, those laws primarily regulate commercial navigation and its derivative uses. They provide rules for adjudication of individual rights pertaining to carriage of goods and passage by sea, as well as of rights arising from voyage-related risks including compensation for damage arising from delays in voyage commencement or completion, jettison, collision and shipwreck. The common regulatory focus patently is commerce; that is, the preservation of peaceful commercial navigation for the benefit of the regulator and its population. It is instructive to the commonality of the navigational freedom principle that the regulatory concepts contained in those laws were applied in disparate navigable waters including the Mediterranean Sea, the English Channel, the North Sea and the Baltic Sea among others. Such widely separate regulatory efforts evidence common recognition of navigation and its derivatives as the established non-governmental sea use.

10

See 1 L. Oppenheim, International Law, 36–40 (Robert Y. Jennings & Arthur Watts eds., 9th ed. 1996), which reads in pertinent part: Although Custom and treaties are in practice the principal sources of international law, they cannot be regarded as its only sources. The legal principles which find a place in all or most of the various national systems of law naturally commend themselves to states of application in the international legal system, as being almost necessarily inherent in any legal system within in the experience of states. Thus Article 38(1)(c) of the Statute of the International Court of Justice authorizes it to apply, in addition to treaties and custom, ‘the general principles of law recognized by civilized nations’. Id. at 36. Navigational servitude is not a “general principle of municipal jurisprudence” but, rather, refers to the aspects of the general law navigational freedom principle, a principle of jurisprudence with aspects present in both international and municipal law. But see id. at 36–37, 40, where the Statue of the International Court of Justice, Article 38(1)(c), is described as providing a source of international law to “fill gaps or weaknesses in the law”. Here the general law navigational freedom principle is understood to be the juridical principle, more than simply filling gaps or weaknesses. Compare with id. at 40. In this circumstance the general principle should be understood as being evidenced and established both by, “sufficient counterpart . . . in the international sphere” and “sufficient allowance in . . . abstracting the principles from the various municipal rules.” Id. at 37.

B. North America and Shared Navigational Servitudes

15

And that common recognition is organic, suggesting a reference point, if not a foundation or genesis point for the evolving common navigational freedom principle.11 Later that sea use would become manifest in aspects of the high seas regime navigational servitudes, and such use would reflect a public right – the right of peoples to use navigable waters for voyaging – an interdependent right of people protected and preserved by States in communal public trust – most importantly, an a priori right. The 17th century dispute between England and the United Provinces supplied the proving ground whereon the navigational freedom principle of the ancient law-merchant would be tested, refined and formed, emerging as a public right.12 At that time navigation as a sea use not only became a high seas regime servitude under the international law of the sea, but it also was applied by England in maritime coastal waters as a protected public right through the municipal law Royal Prerogative. As a result, evolution of navigational servitudes in international law has both paralleled and interfaced with the evolution of navigational servitudes in English municipal law. And in each instance the juridical servitudes preserve navigational freedom as an interdependent non-divestible public right; that is, a common principle, a right not to be lessened by the particular interests of States under international law, nor by those of political subdivisions or of individuals under municipal law. Intriguingly it is the 17th century Royal Prerogative and its application of the jus publicum which forms the essential element of the Commerce Clause public trust whereby the navigation servitude of United States municipal law is held and applied today. That may surprise lawyers, but it will not surprise historians.13

11 12

13

See supra note 10. Thomas Wemyss Fulton, The Sovereignty of the Sea (The Lawbook Exchange ) (), 378–516. It was not until the Seven Years War ended in 1759 that the English “national myth” of sea power had color. N.A.M. Rodger, The Command of the Ocean 283 (2004). Ultimately, Trafalgar with Nelson’s death, coupled with the end of the Napoleonic Wars in 1815 consolidated British command of the ocean, but without a “flag salute” and without claims to sovereignty, “which had embarrassed English diplomacy and troubled the peace of the Narrow Seas for 500 years”. Id. at 543, 583. The flag salute was “absurd”, and sea power a myth prior to 1759. Id. at lvx, 7, 12–13. There is no current international law basis for flag salutes or other acknowledgements of warships on the high seas unless a matter of specific treaty requirements between the respective sovereigns. Oppenheim, supra note 10, at 381. “History is a process rather than a story”. Kishlansky, supra note 7, at x.

16

Chapter I

Sources – Publicists & Prerogative

Beginning with assertions by James VI of Scotland, ascending the English throne as James I in 1603, political objectives were inserted into the navigational freedom principle. Scottish concepts of coastal sea ownership came along with James to England, but it is the application of the English common law concepts of occupation and possession – not Scottish law – which ultimately forced the interactive crucible of territorial sea evolution. This is when John Selden became the preeminent British publicist advocating that the coastal and marginal seas were occupied and possessed and thus owned.14 Selden, with skill, maintains that the undefined “British seas” or seas flowing around England and Scotland are part of the national territory, especially the English Channel where, since Roman times, the French shore marked the beginning of the British Seas within the domain of England.15 Needless to say this was not a position readily accepted by the littoral States of the North Sea community, nor by individuals of other nations whose vessels engaged in maritime commerce and navigated those seas.16 Nonetheless, the international law resolution of this coastal waters dispute accommodated littoral State extension of navigational protective jurisdiction while preserving the right of innocent passage for all vessels. The contemporary evidence supports the view that regardless of occupation arguments from Selden, the English in fact only acted to extend navigational protective jurisdiction rather than to achieve any acquisition of maritime territory. And arguments for that jurisdiction were designed to meet English constitutional requirements rather than international law requirements. For example, English efforts to regulate the North Sea herring fishery,17 or the English asserted requirement of a flag salute to English naval vessels18 whereby English vessels attempted, sometimes successfully, to require foreign vessels to lower topsails or display and dip colors, were largely ineffective. The effect was that such saluting vessels slowed, enabling inspection. The herring fishery regulatory efforts and the flag salute are touted by Selden

14 15 16

17 18

Selden, supra note 8. Id. at 204, 215. Fulton, supra note 12, at 378–516; N.A.M. Rodger, The Safeguard of the Sea 176–77, 188, 197, 251, 379–86, 412–23, (1998). See also Oppenheim, supra note 10, at 720–21. Fulton, supra note 12, at 209–45; Rodger, supra note 16, at 382–86. Fulton, supra note 12, at 112–17, 206, 212, 281, 405, 418; Rodger, supra note 16, at 350–51, 379–80, 412–13.

C. Publicists and the 17th Century Jurisdictional Debate

17

as examples of territorial dominion.19 But the herring fishery regulation and the flag salute neither then nor now equate with English acquisition of maritime territory through occupation and possession. Rather, the evidence demonstrates only the English exercise of navigational protective jurisdiction during this period, exercised for the suppression, capture and trying of maritime criminals, for the enforcement of customs requirements on maritime commercial activities, for compliance with obligations of neutrality toward foreign vessels, and for the general application of littoral State municipal law to preserve peace and good order in marginal sea areas,20 all subject to the international law navigational servitudes of innocent passage, force majeure, refuge and safe haven in neutral waters.21 But, that evidence adduced by Selden was fuel for the 17th century debate advocating either littoral State maritime sovereignty or international freedom of the sea, which debate has given us evidence of the underlying common navigational principle as well as implementation of the municipal and international juridical servitudes applied for the protection and preservation of navigational freedom.

C. Publicists and the 17th Century Jurisdictional Debate In the 17th century, and indeed into the 18th century, publicists were the principal source of compilations, statements, arguments, ideas, concepts and postulations considered to present contemporary international law. There were no conventions on law of the sea, no reliable determinations by the highest municipal courts, no established customs and usage, and no international court to adjudicate the claims raised by States to jurisdiction over marginal

19

20

21

Flag salutes are a matter of courtesy, of comity rather than legal obligation, and not legally binding. Shaw, supra note 4, at . Flag salute was rejected by the French. Kishlansky, supra note , at 121. Historically zones of special jurisdiction were loosely defined, but “in principle the maritime belt was high seas with restrictions in favour of the coastal state”. Ian Brownlie, Principles of Public International Law 186 (6th ed., 2003). “Ancient custom” supports the right of foreign vessels to seek access to ports and havens in “stress of weather or other danger to its safety”. Oppenheim, supra note 10, at 624. Fishing is a customary high seas freedom. Id. at 756. Piracy is a high seas crime punishable jure gentium, and within the territorial sea or inland waters piracy no longer involved high seas freedom of navigation and so is defined as a matter of coastal State law. Id. at 753.

18

Chapter I

Sources – Publicists & Prerogative

sea areas. Since many publicists wrote at the behest of their governments, and governments attempted to act accordingly, publicists’ writings shadow State action. In this vein, even the current Statute of the International Court of Justice, Article 38, gives credence to the writings of eminent jurists, and the wisdom of doing so is patent in the 17th century. It is in those writings pertaining to the Grotius/Selden dispute where contemporary international law of the sea begins to develop. The conceptual foundation for the juridical servitudes protecting and preserving the navigational freedom principle appears in the opposed concepts of mare liberum versus mare clausum. The concepts are simply one of high seas freedom of usage versus extended littoral State authority over marginal sea areas. The balanced product adjusting the concurrent application of these concepts in coastal waters and marginal sea areas would be the high seas regime acceptance of a territorial sea, enabling public use of the oceans with certain littoral State extended protective jurisdictions. The contesting concepts for regulation of maritime use met as English regulatory authority was asserted over the North Sea and English Channel; i.e., the Dutch jurist Hugo Grotius22 arguing for freedom of the seas versus the English lawyer John Selden23 arguing for occupation and possession of marginal seas, or, rather, the United Provinces of the Netherlands advocating freedom of the seas versus the Stuart claims to dominion over the “Four Seas” around England and Scotland.24 Selden and Grotius were the lawyers for their respective client-State’s interests, and those interests engendered development of the arguments met in the works of Selden and Grotius. Selden’s view of a mare clausum on its face purports to assert the municipal law of England as the basis for exclusive regulatory authority over public navigation in broad maritime areas.25 To a modern legal mind Selden’s position appears absurd as a starter, but Selden should not be quickly dismissed. Indeed it is Selden’s position which eventually becomes the basis for acceptance in international law of territorial sea occupation and possession by littoral States. Grotius in contrast to Selden argues that freedom of navigation is an international law right, applicable throughout the high seas and

22

23 24 25

Hugo Grotius, The Freedom of the Seas (James B. Scott ed., R.V. Magoffin trans., The Lawbook Exchange 2001) (1608), the referenced work. Selden, supra note 8. See generally Fulton, supra note , the referenced work. Selden, supra note 8, at 382–93.

C. Publicists and the 17th Century Jurisdictional Debate

19

not subject to littoral State restraint.26 The heart of the matter is achieving balanced application of the common navigational freedom principle, and that balance evolves by the 18th century with acceptance of littoral State jurisdiction in limited marginal sea areas – the concept of a territorial sea. But in the 17th century the Estates General viewed the “high seas” to be a res nullius, through incapable of possession, and to include the North Sea and English Channel. Therefore the Dutch asserted the views of Grotius against the English claims to maritime dominion reliant on Selden.27 In the absence of maritime resources, in the 17th century as now, there would be few disputes. But fisheries then as now are a resource worthy of dispute. Consequently, the 17th century fisheries disputes arose between the English and the Dutch. Although the position of Grotius prevailed for open seas and even broad marginal sea areas by the end of the 17th century,28 so that the high seas would come to achieve res communis status, Selden did not give up the field. Rather Selden’s view is a constitutionally based English understanding of requirements for acquisition of maritime territory – one which attempts to justify the English governmental authority of the Royal Prerogative to assert exclusive offshore jurisdiction over the valuable North Sea herring fishery. It is important to consider that Selden’s arguments for occupation and possession of the British Seas are consistent with his understanding of the common law, and with what would be fundamental to assertion of jurisdiction over foreigners.29 He simply applied the common law concept to the open sea which at the time was viewed as a res nullius, so that the issues really were whether the sea could be occupied and possessed, and whether there were means by which that could be achieved. The problem for Selden is that the contemporary common law was a territorially based jurisdiction, which stopped at low-water mark and was inapplicable outside the boundaries of counties. As a result exclusive English jurisdiction over navigable waters seaward of the realm (low-water mark) would have to be based on the Royal Prerogative. To a common law mind

26 27 28 29

Grotius, supra note 22, at 27, 30, 61. Fulton, supra note 12, at 338–77. Fulton, supra note 12, at 338–77. Arguments about the origin of British ownership of the seas worked to counter the Treaty of Tordesillas, Sept. 25, 1494, which received the approval of Pope Alexander VI in 1506 and purported to split the world outside Europe between Spain and Portugal. Id. at 92–93.

20

Chapter I

Sources – Publicists & Prerogative

that extended jurisdiction would necessitate underlying territorial ownership, imperium based on dominium, of the involved sea-area in order to apply the desired exclusive governmental authority. Therefore Selden and his fellow British publicists perforce prepared legal arguments which asserted the common law requirement of occupation and possession of the British Seas as an essential juridical component for the application of Royal Prerogative jurisdictional authority over foreign fishermen. And those seas, though vaguely defined if not undefined, apparently include the North Sea, the English Channel, the Irish Sea and St. George’s Channel.30 However, the only evidence offered for such actual maritime occupation and possession is the transient passage by merchant and fishing vessels, coupled with an ineffective and discontinuous presence of “naval” vessels, and an apocryphal and anecdotal history of Roman and Saxon claims.31 Amusing and creative as some of these arguments may appear, upon reflection they have the serious purpose of satisfying English constitutional requirements for Royal Prerogative territorial jurisdiction outside the realm which Selden and the British publicists evidently thought to be necessary before municipal regulations could be applied to foreigners and their vessels

30

31

Selden, supra note 8, at 355, 365, 429. Selden describes the seas occupied and possessed as follows: The Sea encompassing great Britain, which in general wee term the British sea, is divided into four Quarters of the World. On the West lie’s the Vergivian Sea, which also takes the name of the Deucaledonian, where it washeth the Coast of Scotland. And this Vergivian, wherein Ireland is scituate, the Irish Sea is recond to be a part, called in ancient time the Scythian Vale but now the Channel of St. George. So that aw well that which washeth the Western Coast of Ireland, as that which flowe’s between great Britain and Ireland, is to be called the British sea. . . . Towards the North this Sea is named the Northern Caledonian, and Deucaledonian Sea, wherein lie scatter’d the Orcades islands, Thule, and others, which being called British or Albionian Isles; yea, and Brittannides, gave name to the neighboring Sea. . . . Upon the Eastern Coast of Britain flows the German Sea (so called by Ptolomie, because it lie’s [sic] before the German Shore. On the South, flows that which is particularly noted by Ptolomie to be the British Sea. But all that was called also the British Sea, which extends itself like a half moon along the French Shore, through the Bay or Creek of Acquitain, unto the Northern Coast of Spain. Id. at 182–84. Fulton, supra note 12, at 1–24; Rodger, supra note 16, at 1–31; Selden, supra note 8, at 188–205.

C. Publicists and the 17th Century Jurisdictional Debate

21

in regulating the North Sea herring fishery.32 Simply put, Selden and the British publicists were producing make-weight arguments for governmental protective jurisdiction as extended into marginal sea areas, which efforts are significant in that they form the conceptual basis for the specific juridical servitudes over public navigational usage of the territorial sea and the other marginal sea zones with which we are familiar today. English navigable waters were not without governmental jurisdiction in the 17th century, regardless of how ineptly applied and exercised. Navigable waters as a juridical concept were outside common law territorial jurisdiction, but they were within the municipal law jurisdiction of the Royal Prerogative and, thereby, remained subject to the Royal Prerogative jus publicum. The significance is that the Royal Prerogative jus publicum includes English municipal public rights of fishing and navigation. That, however, was a matter between sovereign and subject involving “citizenship” jurisdiction, not sovereignty involving territorial jurisdiction and the exclusive control of foreigners. The significance, therefore, is apparent in that Selden and the British publicists who followed his understanding of English constitutional law considered that regulation of foreign nationals required juridical separation of the marginal sea area involved from the high seas regime where such regulation would be without basis. For the perceived English constitutional requirement, a separation of marginal seas from high seas must be sufficient to establish sovereign territorial rights under the Royal Prerogative. The issue of sufficiency is addressed in the argued acts of occupation and possession, and the achievement of such sufficiency in the broad marginal sea areas claimed by the Selden school is patently inadequate but, in what would become the territorial sea, the conceptual justification for separation from the high seas regime is met. The crucible is formed. That the jus publicum public rights of fishing and navigation create a juridically vested a priori servitude is manifest in that Crown property grants to individuals under exercises of the Royal Prerogative jus privatum could not impact the custodial jus publicum public rights of navigation and fishing. The constitutional responsibilities of the sovereign over property as well as over public rights were seised in the King; they are governmental rights and

32

Even after the “defeat” of the Spanish Armada in 1588, British control of its own marginal sea was so weak that Spain landed forces at Penzance, Newlyn and Mousehole to attack those towns. Herman, supra note , at 139. The Algerians likewise attacked fishing vessels and raided Cornwall for slaves. Id. at 145.

22

Chapter I

Sources – Publicists & Prerogative

responsibilities. Though the Royal Prerogative contains sometimes competing aspects of public and royal constitutional rights, those rights could not be exercised to efface one another. An example of the Royal Prerogative in application of these governmental rights is apparent in the treatment of fisheries. Thus, the public right to fishing extends to all navigable waters as well as marginal sea areas,33 whereas private rights to fisheries sometimes could be granted in navigable waters but were appended to the bottom soil.34 Such private fisheries were grants of the bottom soil in navigable waters under the jus privatum, or arose in inland (non-navigable) waters where the riparian owner also held title to the submerged bottom to the midline or thread of the stream, or beyond, as part of the upland estate. The exclusive right to fishery in inland waters was said to append to the estate because any grant of the estate would carry the stream bottom and any superjacent fishery.35 In navigable waters the public right to fishery was not appended to the bottom soil, so that the Royal Prerogative was dominant and jus privatum Crown grants of the bottom soil of harbors to the harbor towns were without effect on the jus publicum public right to fish in those navigable waters – the public trust could not be abandoned by the trustee.36 The test seems to be a practical one where the grant of a fishery could be made with reference to ascertainable areas, and in such cases the Crown’s jus privatum would be antecedent to or coincident with the public jus publicum right of fishing. This is suggested where a river was navigable in fact above the tidal flow. There riparian owners could sometimes establish a prescriptive fishery right based on ownership of the adjacent upland estate which included a right to exclusive quiet possession.37 Prescription, however, did not lie within the tidal flow against the public right to fish in arms of the

33

34 35

36

37

Warren v. Mathews, (1703) 91 Eng. Rep. 312 (K.B.); Warren v. Matthews, (1704) 87 Eng. Rep. 831 (K.B.). Smith v. Kemp, (1693) 91 Eng. Rep. 537 (K.B.). A separate fishery in non-navigable waters carried a presumption of ownership of the soil. Separate Fishery, (1722) 98 Eng. Rep. 695 (K.B.). A fishery could be prescribed in navigable waters by riparian property owners. Ward v. Creswell, (1741) 125 Eng. Rep. 1165, 1166–167 (C.P.). But in the case of such prescriptive fishery, the bed of a navigable river was presumed to be in the Crown. Carter v. Murcot, (1768) 98 Eng. Rep. 127, 128 (K.B.). Prescription presumes a grant prior to Sunday, 3 September 1189, continuously and exclusively held, or may be established by a continuous use for which ‘the memory of man runneth not to the contrary’. 12 Halsbury, infra note 67, at 546.

C. Publicists and the 17th Century Jurisdictional Debate

23

sea, harbors and havens, or beyond the tidal flow in the coastal sea. Indeed, the public right to fish in those navigable water bodies was so strong that private property could be crossed to gain access.38 Evidently the more navigable waters approached the public nature of the coastal sea the less common law was willing to allow private property rights to impede the public right to fish39 and the public trust of the Royal Prerogative jus publicum was strengthened over navigable waters. These public rights of navigation and fishing thereby formed a priori navigational servitudes which could be enforced at common law against royal or private encroachment. This has all the appearance of general versus particular usage rights achieving balance in English municipal law between protective jurisdiction and freedom of navigation in the territorial sea crucible. The juridical status of the Royal Prerogative jus publicum is significant in this context because as applicable outside the realm, in marginal seas or in North American colonies, it must be taken to be a part of the applicable English constitutional law facing Selden. Because the issue for Selden was not application of the jus publicum in regulation of English fishing, but in regulation of Dutch fishing – an assertion of jurisdiction over foreigners outside the realm and thus beyond the common law – it therefore was reasonable for Selden and his fellow publicists to take it that ownership of the “British Seas” or the “Four Seas” would be required if exclusive control of the area were to be imposed. This is what they argued to be implied by any exercise of Royal Prerogative authority over the involved sea-area. And, by pushing for such maritime ownership of marginal sea areas, Selden caused foreign publicists to push back with the effect that interdependent use of the high seas came to be agreed over the course of the 17th century. This point of territorial sea evolution within the high seas regime thereby prevented acquisition of the vast oceans while reserving the res nullius status of coastal waters as an open question. The importance today is that the Royal Prerogative jus publicum has become the basis for transmittal and preservation of the public rights of fishing and navigation applied by the United States as a public trust in internal waters and the territorial sea –

38

39

Littoral as opposed to riparian landowners could not prescribe a fishery, and their property remained subject to the public right of fishery even to the extent of the public crossing the real estate to access the fishery. Blundell v. Carterall, (1821) 106 Eng. Rep. at 1204 (K.B.). After Magna Carta exclusive fisheries could be created only by an act of Parliament (curia Regis) if the fishery were in tidal waters. 17 Halsbury, infra note , at 303.

24

Chapter I

Sources – Publicists & Prerogative

the “navigable waters of the United States”. The additional importance is that both Selden’s understanding of a marginal sea ownership requirement, and Grotius’ understanding of a freedom of the seas separate from littoral State authority accept and are based upon navigation as a juridical servitude – an a priori public right – and thereby witness the underlying navigational freedom principle as exercised for commercial purposes and inherited from the Hanse Towns, Wisby and Oleron. The evolution of a territorial sea definition melds these public rights in municipal law and international law public trusts consistently with the common navigational freedom principle because commercial navigational freedom is a right of people, not of governments. Other 17th century British publicists40 arguing for Crown ownership of the sea before Selden brought along both the jus publicum and the jus privatum municipal law rights of the Royal Prerogative as evidence of acquired ownership. Selden was presaged by British publicists Thomas Digges and Robert Callis both of whom were concerned for municipal law issues, not international law issues, whether sovereignty and dominion could be extended over marginal sea areas, the “British Seas”. Digges, who wrote in 1569 to support the claim of Queen Elizabeth I to Crown ownership of the foreshore around England, noted that the Crown held the seabed by Royal Prerogative right. The essence of Digges’ argument is that whereas the Crown held the seabed and subsoil by Royal Prerogative right, it so held the foreshore because of its intimate connection with the seabed.41 Digges assumes that occupation and possession of the sea and seabed are Royal Prerogative rights simply as a matter of municipal law – but not within the territorial common law – and that is important in coming to understand Selden. In 1622 Callis followed Digges’ theory of foreshore ownership and expanded the concept, asserting Crown rights to derelict lands and newly emerged islands, as well as confirming a general property interest for the Crown in the seabed ( jus privatum). Callis reasons that the Crown could possess the sea and seabed both because a “view” of real property is sufficient to pass ownership, and because common law accepted Crown possession of the seabed when only

40

41

The role of publicists in the 17th century was to supply opinions essential to the development of international law. Their importance for development of legal concepts lessened in the 18th century, but remained significant. Shaw, supra note 4, at 106. See Generally Thomas Digges, Arguments proving the Queens Maties propertye in the Sea Landes, and salt shores thereof, and that no subiect cann lawfully hould eny parte threof but by the Kinges especiall graunte (1659), the referenced work.

C. Publicists and the 17th Century Jurisdictional Debate

25

the sea could be viewed.42 Circularity is not unusual in the arguments of these publicists. It was sufficient for Digges that the Crown held the intent to take possession of the sea and seabed, because the seabed was beyond the territorial jurisdiction of common law and not subject to common law precepts. Again this is important to the position eventually developed and argued for by Selden. For evidence of the Royal Prerogative ownership of the sea Callis points to the Royal Prerogative right to wreck, royal fish, flotsam, jetsam and ligan. These jus privatum proprietary interests of the Crown meant for Callis that the sea and seabed were infra regnum Angliae and, thus, held as territory under Royal Prerogative right. That is, the Crown could not grant what it did not hold under Royal Prerogative right, ultimately a governmental right, and since it made these grants the Crown must have the underlying ownership of the marginal sea area involved. Though circular reasoning again, it followed easily for Callis that the Crown then would be the owner of the seabed and its soil which might be cast up and become foreshore, waste land or a newly emerged island.43 It is noteworthy that these arguments were made to support the jurisdiction of the Commissioner of Sewers over the foreshore, waste lands and other lands newly emerged from the sea, not over the sea itself. As cast up, these lands came within the territorial jurisdiction of common law which looked to the Royal Prerogative to determine prior ownership – again circular, and without involvement of foreigners. Relying on Digges, Callis argues that the Crown holds a prior property right to such lands continuing under the Royal Prerogative after passing from territory outside the realm, that is, the sea and seabed. Significantly these writings of Digges and Callis show why Selden argued for maritime ownership of the British Seas based on occupation and possession. There had to be a basis for the exercise of governmental authority and that had always been ownership of the underlying territory even when outside the realm as in the English North American Colonies. Occupation and possession were essential constitutionally for Royal Prerogative governmental power to be exercised over foreigners in maritime areas outside common law territorial jurisdiction.

42

43

Robert Callis, Upon the Statute of Sewers 39, 45, 57, 64, 76 (4th ed. 1824) (1647). Id. at 45–47, 64. Callis is correct that the Crown exercised authority over the seas as to its subjects, and Callis does not argue for general sea based authority over foreigners. In fact no friendly stranger was to be harmed in the British Seas, 13 Rich., c. 5 (1390).

26

Chapter I

Sources – Publicists & Prerogative

Initial arguments for Crown ownership of the sea in right of the Royal Prerogative came from publicists writing as required by James I and most strongly pursued by his successor, Charles I.44 These Stuart claims were first confronted in 1609 by Mare Liberum, the work of Grotius advocating freedom of the seas in the context of Dutch passage to the East Indies. Grotius insists that the seas are free to all, and because the sea is simply not capable of being possessed, no State could claim ownership. Evidently territorial ownership was also a focal point for Grotius, but in limiting the extension of littoral State authority Grotius argues that ownership would require exclusive possession, which could not be achieved because the sea has communal status making it subject to use by all States and incapable of being the possession or property of any one State. Grotius makes the important point that even should one element of the sea such as a fishery come into possession, once the arbitrary possession of that element is released it returns to res nullius status. For example, harvested fish could be possessed permanently but a fishery only for a time. Grotius requires “exhaustion” for possession and, whereas the sea could not be exhausted (used entirely by one State), it could not be possessed. Grotius apparently means that exclusive possession requires sustained control and something inexhaustible would not yield to such control. Grotius posits that certain high seas freedoms, such as navigation (common navigational freedom principle), could not be controlled at all and that the waters of the seas move beyond man’s influence and could not be demarcated, which consequence eliminates any possible littoral State

44

James I initiated the Stuart attempt to control Dutch activity in the North Sea herring fishery by asserting dominion and sovereignty over the British Seas. James I, Proclamation for the Restraint of Foreigners Fishing on the British Coasts, May 6, 1609, reprinted in Fulton, supra note 12, at 755. Later Charles I claimed ownership of the Seas and fishery, relying in part on Selden’s work. Report of the Admiralty to Charles I. As to the Employment of the Ship–Money Fleet in Wafting and Securing Foreign Merchants Passing through His Majesty’s Seas, and in Protecting Foreign Fishermen who Accept the King’s License, February 5, 1635, reprinted in Fulton, supra note 12, at 762. The Stuart and Commonwealth efforts to control Dutch North Sea fishing involved three wars during the 17th century and produced no acknowledgement of English occupation, possession, dominion, sovereignty or ownership of the North Sea. The efforts both to control fishing, and to enforce the flag salute were sporadic and overall ineffectual, as was the effort to control smuggling and piracy. Fulton, supra note 12, at 53–56; Rodger, supra note , at 343–46. In fact, the one thing England did not have was control of the British Seas, though the debate fostered evolution of navigational freedom as a common principle of law, applied in aspects of the navigation servitude by international and municipal law.

C. Publicists and the 17th Century Jurisdictional Debate

27

claims to ownership.45 Grotius’ position certainly fits with the concept of navigational freedom as a juridical principle and suggests, in meeting the Selden position, that the navigational test is whether the high seas regime controls as the applicable servitude or is controlled by the municipal law servitudes of a littoral State’s extended protective jurisdiction or territorial rights established over historic waters – which is the conceptual crucible for territorial sea definition. The British publicists’ response to Grotius first came from William Welwood (a Scot) in 1613 and from Sir John Boroughs in 1633. Welwood argues for occupation of maritime areas through fishery activities and offers regulation of those activities as evidence of British possession of marginal sea areas. Referring specifically to the ability to possess maritime areas, Welwood states that the sea is as traversable as land, and because ownership of the land does not include being everywhere at once neither does ownership of the sea. Welwood suggests that sea bounds are plentiful and present in landmarks such as islands and rocks which, used together with application of a compass, would enable a State to ascertain the location of its maritime dominion. The occupation and possession of the sea is achieved for Welwood both through delimiting its bounds and regulating fishing. Precision of delimitation apparently would not be required, or not required beyond geographical features and presently available technology. But even Welwood recognizes that ownership claims must be limited to sea areas where a governmental interest is present. Such interest suggests that any government’s use of those areas must have an accepted purpose, derivative of navigation, which would be satisfied by the exercise of protective jurisdiction. That interest also suggests the nascent concept of a municipal juridical servitude over navigation, an applicable rule for delimitation of closed coastal waters. Welwood moreover seems to agree with Grotius that mare vastum was by definition beyond the just bounds of any ownership interest.46 In contrast, Buroughs asserts that high seas freedom is a natural law theory made by Grotius but not substantiated by State practice. Boroughs therefore attempts 45 46

Grotius, supra note 22, at 7, 10–12, 22, 30, 36, 47. William Welwood, An Abridgement of All Sea–Lawes 188, 193, 219–23, 236 (1613). One author has pointed out that Welwood’s concept of sea possession is based on the inherent contiguity of the marginal sea to land. Johanna Katharina Oudendijk, Status and Extent of Adjacent Waters 58 (1970). The 17th century debate really is about the marginal sea, and the extent that the waters and seabed are subject to littoral State control as a consequence of contiguity.

28

Chapter I

Sources – Publicists & Prerogative

to push the legality of Stuart claims of ownership over unbounded seas as State practice based on “sovereignty” of the sea.47 Boroughs simply overreaches, while the stage is set for Selden. John Selden is the ultimate respondent to Grotian theories.48 When pressing claims against the Dutch for control of the North Sea herring fishery the Stuarts relied upon Selden’s Mare Clausum, written much earlier in 1618 as part of a legal brief but not published until 1635 when it received the approval of Charles I. Selden presents the case for British sovereignty over the English Channel as arising from English ownership of both shores which, thereby, effectuated occupation and possession of the maritime area by land bounds. Prior English control of several French duchies was the basis for the “dual shore” ownership argument, which in essence claims the Channel as a strait.49 And the absence of common law territorial jurisdiction was not an impediment to Selden’s argued occupation and possession of the English Channel, because common law’s territorial jurisdiction made no pretense to application beyond the boundaries of counties. But the seed for thought here is that possession of the bordering coasts, not surrounding land, gives rise to possession of the coastal sea. Later, in 1663, Richard Zouche followed this theory of Selden, asserting that jurisdiction would accrue over a channel when both shores were owned by the same State, but notably Zouche argues only for jurisdiction and not for sovereignty over the water.50 This is not necessarily a conflict of concepts because, though Selden argues for sovereignty over the seas, he does so for the focused purpose of supporting Stuart jurisdictional claims over the fisheries.51 It is submitted that this is why Selden argues for ownership of the seas based on control of the fisheries, rather than control of the fisheries based on ownership of the seas. Selden asserts that control over those fisheries reflects underlying dominium held by the Crown concluding that, Grotius to the contrary, this was the lawful custom of States. Selden relies upon the examples of Denmark and Norway receiving tolls for navigation of the

47

48 49 50

51

John Boroughs, Sovereignty of the British Seas 12, 20, 30–32, 81–85, 92 (1633). Selden, supra note 8, at 118. Id. at 284–304, 333–43. Richard Zouche, An Exposition of Fecial Law and Procedure, or of the Law between Nations, and Questions concerning the Same 74 (J.L. Brierly trans., Carnegie Institution, 1911) (1650). Selden, supra note 8, at 355, 365, 429.

C. Publicists and the 17th Century Jurisdictional Debate

29

straits of the Baltic Sea, Henry III of France receiving the crown of Poland with dominion of the sea, and the licenses given by France to Turkey allowing fishing and the removal of coral off the coasts of Tunis and Algeria.52 Regardless of the argument, or its purpose, each example raised by Selden merely shows extended navigational protective jurisdiction for control of fisheries or a particular aspect of navigation within a closed sea – aspects of municipal law navigational servitudes. That Selden argument would become the basis for extended littoral State jurisdiction in more limited marginal sea areas, and eventually for the juridical concept of a territorial sea. Selden continues his argument, offering that Great Britain held ownership of the British Seas, which could be identified as within boundaries and were subject to an active fishery as well as naval power.53 Like Welwood before him, Selden was looking for a delimitation rule, that is, an applicable juridical standard which would produce a basis for establishing maritime boundaries for applications of littoral State navigational servitudes. This is why Selden attempts to support the argument for sovereignty by describing the Crown’s efforts to force fishing licenses on the Dutch in the North Sea herring fishery from 1633 through 1635. That temporary and limited licensing effort was not

52 53

Id. at 119–26, 135–38, 355. See Fulton, supra note 12, at 118. Selden writes as follows: It is true indeed which an eminent man saith: That the Sea hath been enjoied by Occupation, not for this reason onely, because men had so enjoied the Land, nor is the Act or intent of the minde sufficient thereto; but that there is a necessities of som external Act, from whence this Occupation may bee understood. Therefore Arguments are not to bee derived altogether from a bare Occupation or Dominion of Countries, whose shores are washed by the Sea: But from such a private or peculiar use or enjoyment of the Sea, as consist’s in a setting forth ships to Sea, either to defend or make good the Dominion; in prescribing Rules of Navigation to such as pass through it, in receiving such Profits and Commodities as are peculiar to every kinde of Sea–Dominion whatsoever; and which is the principal either in admitting or excluding others at pleasure. Selden, supra note 8, at 188. Selden is arguing that dominion is the result of the intent to occupy followed by vessel activities, and that it is the control of those activities which proves the dominion. This is circular, and the best that can be said of vessel activities, especially for fishing, trade and passage, is that they temporarily occupy the sea space which they displace. These are not acts of State, and if the sea is to be subject to Crown dominion it must be occupied and possessed by Crown activities. Selden follows that logic and argues further that only the Crown could occupy and possess the sea because the common law does not extend there to establish individual ownership, but the prerogative right enables the Crown to do so.

30

Chapter I

Sources – Publicists & Prerogative

especially effective, nor continuing, as later international law would require for occupation and possession of a res nullius. This also is why Selden lists “homage to the flag” and enforcement of neutrality in the King’s Chambers as further evidence of underlying maritime sovereignty, but these again are recitals of instances of littoral State extended protective jurisdiction rather than of actual occupation and possession of the involved maritime areas. Moreover, the situation of the British navy in the 17th century hardly would have supported the claimed occupation and possession of the sea, and was ineffectual even in the control of smuggling and piracy in marginal sea areas within the four-league customs zone.54 Selden’s theory of occupation and possession of the sea is derived from protection of a national interest such as the herring fishery or neutrality obligations. Selden does not argue for exclusion of high seas regime freedom of navigation from the British Seas or marginal sea areas, except to the extent that they conflicted with the purpose of littoral State extended jurisdiction.55 This is the very definition of protective jurisdiction which represents the fulcrum where, by the end of the 17th century, the jurisdictional balance was struck between the high seas regime and the municipal law of navigable waters for preservation of the common navigational freedom principle. This conceptual sea change occurs certainly with Mathew Hale who, writing in 1667, argued for a restricted English sea-ownership over the “narrow seas” around the coasts. Hale does not repeat Selden’s arguments for ownership of the broad reaches of the North Sea, and rather posits the bases for acquisition of marginal sea ownership to be distinct from common law requirements. In addition, for broad sea reaches Hale understands that protective jurisdiction could be exercised without the need for occupation and possession.56 Hale’s approach is an evolutionary step forward from Selden, but not a departure because ownership of the marginal sea remains achievable. More to the point, Hale begins the process of melding a coastal waters juridical regime inclusive both of littoral State defensive and commercial needs, with that of occupation and possession of limited marginal sea areas. Like Callis before him, as well as Digges in the 16th century, Hale relies upon the Royal Prerogative to argue

54 55 56

Rodger, supra note , at 342–52, 361–62. Selden, supra note 8, at 123–24. Mathew Hale, De Jure Maris et Brachiorum Ejusdam iii–iv, vi–xi, xiv, xxxvi, xl–xli (circa 1663), reprinted in Robert Hall, On the Sea Shore (1830).

C. Publicists and the 17th Century Jurisdictional Debate

31

for Crown ownership of the seabed so as to claim title to newly emerged lands, but in doing so recognizes that the broad sea is not rendered subject to the Royal Prerogative jus privatum.57 That abandonment of ownership claims to the broad sea is an evolutionary change for the territorial sea crucible, and distinguishes between the jus publicum exercised for protective jurisdiction and the jus privatum which at best is patently inchoate until occupation and possession of the granted res truly can be accomplished. Sir Philip Medows wrote in 1689 positing what was to become the accepted role of the navigation servitude. Medows had been the Latin secretary to Cromwell’s Council and the Ambassador to Denmark and then to Sweden.58 He writes that the open or main sea is to be available to all States in the pursuit of commerce and communications, which he recognizes is possible only by a right of free navigation. Medows abandoned the occupation and possession arguments of Boroughs and Selden, asserting that a littoral State could have power over parts of the open sea without ownership,59 a definite move toward extended navigational protective jurisdiction and the reality of State practice, while leaving the coastal or marginal sea for further juridical development. Medows expresses the view earlier put

57

58 59

Hale, supra note 56. at xxxi–xxxiii, describes sea occupation and possession as coastal: The King of England hath the propriety as well as the jurisdiction of the narrow seas; for he is in a capacity of acquiring the narrow and adjacent sea to his dominion by a kind of possession which not compatible to a subject; and accordingly regularly the king hath the propriety in the sea: but a subject hath not no indeed cannot have that propriety in the sea, through a whole tract of it, that the king hath; because without a regular power he cannot possibly posses it. . . . The civilians tell us truly, nihil praseseribitur nisi quod possidetur. The king may prescribe the propriety of the narrow seas, because he may posses them by his navies and power. A subject cannot. But a subject may possess a navigable river, or creek or arm of the sea; because these may lie with the extent of his possession and acquest. Hale is developing Selden’s thought. Notice how he suggests acquisition by national prescription through governmental exercises of power, which in each instance is an extension of navigational protective jurisdiction. Fulton, supra note 12, at 397, 524. Philip Medows, Observations Concerning The Dominion And Sovereignty of the Seas 6, 14, 15 (1689). Another contemporary publicist agreed with Medows that the sea could be possessed in coastal waters, but not the main ocean, by active control. Alexander Justice, A General Treatise of the Dominion of the Sea 2–4, 11, 34–35 (1705).

32

Chapter I

Sources – Publicists & Prerogative

forward by Gerald Malynes.60 Thus Medows sees the littoral State as having property rights over its closed coastal waters, but makes no description of the basis for that title.61 There he probably is in agreement with Welwood and Selden that the littoral State is able to exert occupation and possession within delimited coastal water areas. The concept here is significant in that Medows views these closed coastal waters as beyond the usage of foreign states for navigation and, therefore, they remain a res nullius capable of occupation and possession by the littoral State. But, effective control must be exercised by the littoral State to protect and preserve its title.62 The hint in Medows is that interdependent usage of the high seas prevents effective exclusive control, occupation and possession, which would exclude such exclusive littoral State usage. But the transitional nature of the high seas to 60

61

62

Gerard de Malynes, Lex Mercatoria, Ancient Law–Merchant 124, 130, 132, 133 (1636). Malynes claimed a public right to navigation on the main sea, writing: No Man can be prohibited to sail in the main Sea, albeit in some places (Where the waters are as Royalties unto them) it be prohibited; as the Venetians do in the Adriatick Lake, and other Princes and Commonweals in their Jurisdictions and Commands, which hath be observed time out of mind, and is taken for the most ancient prescription. Id. at 124. Malynes sees the interruption of freedom of navigation as working a prescription, but significantly he understood navigational freedom as the common principle being balanced by coastal state prescription where interference with navigation is accepted. Medows writes: Whereby Sea is not to be understood, such a collective Body of Waters, singly and solely as Waters; for the moveable inconstant Waters, whether Sea or River barely as such, are not a capable Subject of Property; but as Waters contained within a fixed and certain boundary, and supported by a standing bottom. And in this later Sense, the Sea, as it is a solid Alveres, or Receptacle of Waters, contained within a certain boundary, is as truly and as properly territory as the land. Medows, supra note 59, at 5. Later, Medows writes: And yet ‘tis a thing undoubted, and never brought into Question by any; but that every Prince, whose country adjoins to the Sea, and whose Shores are indented with Bayes, Creeks, havens, And Rivers, has some portion of the sea belonging to him in property, as an accession of the land, or appendant to it, or rather incorporated with it like Veins and Arteries, integral part of the same Body. Id. at 42–43. Welwood also referenced use of soundings to delimit a maritime boundary. Welwood, supra note 46, at 68. Medows, supra note 59, at 9, 14–15, 41–42, 43. Importantly, Medows recognized that control was apparent in the right to control use of navigable waters by other states. Id. at 4. Selden also saw control of navigation as the indicator of occupation. Selden, supra note 8, at 188. Welwood also saw that passage over an occupied sea area was necessary to effect control. Welwood, supra note 46, at 67.

C. Publicists and the 17th Century Jurisdictional Debate

33

a res communis regime and effective public trust had not yet occurred for the British publicists of the 17th century. Occupation and possession of coastal waters by the littoral State is the operative concept which ultimately would yield the juridical territorial sea. What then of Selden’s arguments for occupation and possession of the British Seas? Hale supplies the apparent answer. It is submitted that Selden and the British publicists’ legal perspective does not include any concept of exclusive maritime jurisdiction without underlying territorial dominion until the close of the 17th century. This explains the early 17th century need for maritime territorial acquisition arguments – the constitutional theory of Royal Prerogative authority applying jurisdiction over foreigners required underlying territorial ownership. There could be no ownership without occupation and possession as a matter of English constitutional law. So, occupation and possession of the involved marginal sea area was an essential element to support any exertion of protective jurisdiction for regulation of public navigation involving foreigners, and such occupation and possession were patently a legal fiction. Simply put, the claims of British publicists to occupation and possession of coastal waters and marginal sea areas should be evaluated and weighed according to the proofs offered. Those proofs fail to show occupation and possession of broad sea areas having res nullius status, but they do show littoral State protective jurisdiction being extended to manage and control the herring fishery, to suppress pirates, to control smuggling and to meet neutral waters obligations, as well as to prevent damage ashore from combatant vessel encounters.63 These each and all are evidence that municipal navigational servitudes were being exercised as protective jurisdictions over, but not as acquisition of ownership of marginal sea areas to the exclusion of high seas servitudes for freedom of navigation. It is plain that the Selden64 versus Grotius65 dispute really is not one for and against territorial acquisition, despite the arguments, but one for

63

64

65

Fulton, supra note 12, at 118–22; Rodger, supra note , at xxv–xxvi, 198–200, 221, 245–46, 345–51, 384–88. Selden advocated the most extreme Crown position in the 1635 edition of his work as published under Crown auspices where the argument is that the sea has been occupied by ships setting forth “either to defend or make good the Dominion”. Such ships were mostly fishing vessels. Selden, supra note 8, at 188. Fulton, supra note 12, at 339–77; See generally Grotius, supra note 22, for his work.

34

Chapter I

Sources – Publicists & Prerogative

control of maritime resources, as well as for control of pirates and smugglers throughout the vaguely defined British Seas. The importance of that dispute for international law is the establishment of the high seas regime freedom of navigation as a juridical servitude, and for English municipal law is the establishment of the Royal Prerogative and its jus publicum with the public rights of navigation and fishing in the navigable waters of an occupied and possessed territorial sea. It is in this context that development of the territorial sea concept constitutes a crucible for development and application of the common navigational freedom principle as implemented by municipal and/or international law in marginal sea areas.

D. Royal Prerogative Rights, Public Navigation and Fishing The Crown’s prerogative authority as present in the 17th and 18th centuries is the flux in the Grotian/Selden controversy because it fixes the perceived need for the maritime occupation and possession arguments of Selden and the British publicists. Therefore the Royal Prerogative jus privatum and jus publicum as they came to exist in the 17th century require explanation, an explanation which will bear as well on the English colonies in North America. The jus privatum Royal Prerogative rights were those proprietary interests derived by the Crown from its status as sovereign; some aspects were governmental and others proprietary, and the proprietary rights were understood to be based on an a priori Crown property interest; i.e., ownership. There was little difference between governmental and proprietary aspects before 1689, except that the jus publicum pertained to rights which the Crown administered in a governmental capacity on behalf of the public, including the protection and preservation of the equally a priori public rights to navigation and fishing. The Crown held no proprietary interest in jus publicum rights, and the public rights were not dependant on common law but rather were rights of the English people held as a people; national public rights, enforceable at common law though also administered by the Crown outside the territorial jurisdiction of common law as in coastal waters, marginal seas and beyond the realm under the Royal Prerogative jus publicum authority. Under the jus publicum, public navigation and fishing rights apply to coastal navigable waters, but not to inland waters within the bodies of English counties. These navigable waters were outside or beyond common law jurisdiction which rendered the delimitation of common law jurisdiction an

D. Royal Prerogative Rights, Public Navigation and Fishing

35

important issue, coincidentally helping to identify inland and historic waters as distinct from navigable waters in a myriad of municipal law litigations. While public navigation and fishing were not rights arising at common law, they could be protected by an action brought at common law. Because these navigation and fishing rights originated and were applied as public rights in gross, outside common law’s limited territorial jurisdiction, the legal authority giving the underlying public rights protection and preservation had to rest constitutionally with the sovereign. This is why navigation and fishing are held by the Crown under the Royal Prerogative jus publicum, which authority could be applied to protect and preserve public navigation and fishing within a constitutional regime. Such constitutional responsibility was in effect a public trust, so that no a priori proprietary interest of the Crown could be exercised to defeat the a priori public rights of navigation and fishing. Crown property rights in coastal waters outside common law jurisdiction are evident in the application of the jus privatum prerogative right to assert ownership of waste lands and to ownerless goods found in navigable waters. These Crown property rights formed a superior governmental servitude over navigable waters and could not be defeated by local or private proprietary interests.66 This paramount status of the Crown prerogative rights renders the jus privatum superior to any conflicting common law private interests,67 and demonstrates why Selden and the 17th century British publicists understood and argued that the presence of such jus privatum rights evidenced an

66

67

Humbleton v. Bucke, (circa 1657) 124 Eng. Rep. 295 (C.P.). See also Dalzell Chalmers & Owen Hood Phillips, Constitutional Laws of Great Britain 166–67 (6th ed. 1946); and G. Staunford, An Exposition of the King’s Prerogative, in _. Fitzherbert, Abridgement of Justice (1577). The basis of the prerogative is in the common law. 7 Halsbury’s Laws of England 221, 226 (3d ed. 1952) [hereinafter Halsbury]. But prerogative right was not dependent on the common law. Proclamations (Anon.), (1611) 77 Eng. Rep. 1352, 1353–354 (K.B.). Prerogative right could not alter the common law. 16 Charles Viner, A General Abridgement of Law and Equity 561 (2d ed. 1793) [hereinafter Viner]. Blackstone defines prerogative as follows: By the word prerogative we usually understand that special pre-eminence, which the King hath, over and above all persons, and out of the ordinary course of the common law, in right of his regal dignity. . . . And hence it follows . . . that it can only be applied to those rights and capacities which the King enjoys alone, in contradistinction to others, and not to those which he enjoys with any of his subjects.  William Blackstone, Commentaries On The Laws Of England 232 (1765) [hereinafter Blackstone].

36

Chapter I

Sources – Publicists & Prerogative

underlying Crown ownership of the involved sea and seabed. Their rubric is simple and no pleonasm; the King could not grant what the King did not own. The primacy of jus privatum property rights became apparent in litigations concerning rights attaching to or vesting in littoral estates adjacent to navigable waters.68 The Crown is described in several adjudications involving claims by littoral estates to title over emerging derelict or waste lands as holding prior title to such lands under the Royal Prerogative right to the sea and seabed. The mere possibility of possession by the littoral estate owner was not sufficient to support the seisin required by common law for private ownership, so that the Royal Prerogative proprietary right had priority – the Crown property right was vested and not displaced by simple emersion. Thus, no individual could hold ownership over the sea and seabed because individual seisin of such areas was impossible at common law.69 Only the King could have occupation and possession under the Royal Prerogative jus privatum, and no reason ever arose for a challenge at common law to the asserted Crown Royal Prerogative jus privatum right over the sea or submerged seabed.70 Further, that jus privatum ownership is a faculty of and dependent upon the coincident jus publicum governmental authority over the involved area. That is the problem faced by Selden in developing his arguments for jurisdictional assertions over foreigners within the “British Seas” or the “Four Seas”. But, the Royal Prerogative occupation and possession of the sea and seabed was challenged by the arguments of Grotius, and indeed sunk to the extent that pervasive jus publicum authority based on dominium and imperium could not be established by the involved regulatory activities of proffered extended protective jurisdictions.

68

69 70

See Lowe v. Govett, (1832) 110 Eng. Rep. 317 (K.B.), where the Crown is stated to own the foreshore. See Gifford v. Yarborough, (1828) 4 Eng. Rep. 187 (H.L.), for a derelict lands case. See the grant of newly emerged lands in XIX Calendar of Treasury Books 96 [1704] (1961) [hereinafter XIX Calendar]. The Crown could grant the foreshore because it could be possessed by an individual. Capel v. Buszard, (1829) 130 Eng. Rep. 1237, 1242 (Exch.). For a salt marsh grant near Great Yarmouth, see State Papers, Domestic, Car. I, 371 [1636–1637]. Attorney General v. Richards, (1795) 145 Eng. Rep. 980, 982 (Exch.). See, e.g., Kirby v. Gibbs, (1668) 84 Eng. Rep. 183 (Ad.); Att’y Gen. v. Sir Edward Farmer, (1667) 83 Eng. Rep. 125 (Exch.); and John Constable’s Case, (circa 1664) 123 Eng. Rep. 367 (C.P.).

D. Royal Prerogative Rights, Public Navigation and Fishing

37

Interestingly and instructively individual “possession” of the seabed has an exception which occurs in the case of certain Royal Prerogative franchises for mineral extraction. While exceptions, these grants rather prove the rule and demonstrate the governmental role of the Royal Prerogative. Also these franchises evidence common law acceptance of the Crown’s seabed proprietary interest as understood by Selden. Nonetheless, as in the arguments of British Publicists at the time, the operative concept remains a rubric, circular and tautological, which is that something not owned cannot be granted. But the Crown actually granted Royal Prerogative jus privatum franchises allowing certain littoral estate owners to hold the right to extract seabed coal even before technology had sufficiently developed to do so.71 Notably the right is to “extract” the resource in the sense of “harvest”, not to the resource in situ for which there could be no individual possession within the understanding of common law seisin. Technology for such mining in fact did not develop until the late 18th century, but an informative 19th century litigation occurred concerning the baronial charter for the Estate of Grange in Scotland where the specific legal right to remove coal from the seabed was granted in 1643 “inter regalia”.72 The right was granted in the Firth of Forth within and without the tidal flow, that is, from under the foreshore and seaward through the seabed. Technology did not enable extraction under the Grange Grant in 1643,73 but it did in the 19th century when it was determined that the original grant of undersea coal was a valid and proper conveyance.74 The conveyance was validated because it was continued and made to subsequent grantees regardless that extraction was impossible until 1860. Grange was a Stuart era grant under the Scottish 71

72

73

74

See Campbell v. Leach, (1775) 27 Eng. Rep. 478 (Ch.). The King could make valid grants of legal rights even when the subject property rights were mere possibilities. Sir Edward Turner’s Case, (1678) 86 Eng. Rep. 968 (K.B.). Cadell MSS. Acc. No. 5381, box 8, folder 3, map entitled Coallierys of Barronstounness and Grange (1784) in Scottish National Library, Edinburgh, in special collections (depicting the boundary between mines stretching into the Firth of Forth) [hereinafter Cadell MSS]. Arms of the sea were within the boundaries of counties and rights recognized at common law were sustained. See Cremer v. Tookley’s, (1628) 78 Eng. Rep. 227 (K.B.); Towson v. Tourson, (1615) 81 Eng. Rep. 342 (K.B.). Cadell MSS., infra note 82, at box 8, folder 2, Joint Print of Documents Cadell v. Allen 13–14 (Oct. 17, 1903). Id. box 11, folder 1, The Opinion of George Dundas, Esq. 1–3 (Letter dated May 12, 1860).

38

Chapter I

Sources – Publicists & Prerogative

Crown, and though the conveyance was confirmed under Scots law, the grant shows the Scottish crown asserting dominion over navigable waters resources without actual or even possible possession except in the Royal Prerogative governmental context. Selden would see this as municipal law recognition that the common law seisin standard did not apply to the Crown occupation and possession of the British Seas, so that regulatory and policing measures applied by the Crown, though intermittent, would be sufficient “occupation and possession”, as defined by the nature of the area and conducted through the Royal Prerogative to give effect to English regulatory jurisdiction. This is an important point and suggests that for Selden occupation and possession also were concepts in development, a development which eventually produced the territorial sea. Two other 17th century seabed mining grants show a similar conveyance of seabed resources. One grant was at Culross, also located in Scotland, where seabed coal was extracted before 1625 from a mine extending almost a mile offshore and accessible from land or from an artificial offshore island. The mine ran below 5 fathoms of water and 40 fathoms of seabed and was drained by a horse-drawn chain of 36 buckets emptying a well. While this evidences a surprising technology it apparently was a unique venture in the 17th century.75 The other grant was the mine at Whitehaven, England, where, in the 18th century, Thomas Newcomen rented his recently invented steam pump to James Lowther to be installed at an undersea mine. The pump drained the Saltdom Mine which was sunk above high water in 1729, and by 1731 was at a depth of 436 feet extending seaward and extracting coal from beneath the Solway Firth. Like the mine at Culross, the Saltdom Mine apparently was unique during its period of operation76 and like Culross and Grange, Saltdom represents an actual occupation and possession of the seabed by the individuals pursuant to a Crown grant to extract the coal resource, but an occupation and possession by such individuals was equal at most to the circumference of the mine shaft rather than of the broad seabed where the shaft could be sunk or drifts run. That is consistent with the grant of a fishery in navigable waters when appendant to an identifiable area of the bottom soil, such as fishing weirs.

75

76

Archibald Cochrane, Description of the Estate and Abbey of Culross 127–28, 130–32 (1793). R.L. Galloway, A History of Coal Mining in Great Britain 95, 98 (2d ed. 1969); Daniel Hay, Whitehaven A Short History 47, 49–50, 52 (1966).

D. Royal Prerogative Rights, Public Navigation and Fishing

39

While it is coincidental that the coal at Culross and Saltdom ran under arms of the sea within the bodies of counties, the Crown grant did not limit the right to extract the coal resource to such bounds. Arguably if these mines like Grange had been beneath the open coast it is likely that the same grant would have been made because the Crown was not required to have possession in fact (seisin) within navigable waters, that is, outside the boundaries of counties. A Crown grant under the open coast would not, however, be probative of possession of either the sea or seabed.77 The most which could be demonstrated from such a grant was a license allocating property rights among citizens and controlling their resource extraction activities within navigable waters – all an exercise of protective jurisdiction preserving municipal law and private property interests of subjects or citizens. Notably Crown franchises were terminable, so that the underlying interest in navigable waters and the seabed remained in the Crown under the Royal Prerogative, meaning that the jus publicum public rights of navigation and fishing – the public navigational servitudes – could not have been impacted by jus privatum mineral grants or franchises. Nonetheless, the mineral grants reinforce the perceived need for arguments of Crown marginal sea ownership based on occupation and possession, and push the concept of exclusive littoral State jurisdiction in marginal waters as well as the development of an occupation and possession definition for the territorial sea. The Selden position obliges. The maritime seisin argued for by Selden is not that required of an individual at common law, but rather that of a governmental entity, the Crown, on a sui generis basis as achieved within a body of English constitutional law applicable through the jus publicum to determine governmental rights outside the realm. The key to Selden is that the argued Crown occupation and possession of the sea and seabed outside the realm are not fanciful, but simply a legal fiction consonant with the applicable constitutional right of the Royal Prerogative outside common law jurisdiction. The Royal Prerogative was a valid and important source of governmental maritime legal rights for Selden and, no doubt to his mind, reinforced the validity of his arguments for the Royal Prerogative a priori ownership of the British Seas. But Grotius in essence threw out Selden’s legal arguments based on the Royal Prerogative as simply irrelevant to the high seas not because the high seas were something

77

See The King v. Smith, (1780) 99 Eng. Rep. 283, 285 (K.B.); Blustrode v. Hall, (1664) 83 Eng. Rep. 1081 (K.B.); Le Roy v. Trinity House, (1663) 82 Eng. Rep. 986 (K.B.).

40

Chapter I

Sources – Publicists & Prerogative

other than a res nullius, but because they were incapable of acquisition by the Royal Prerogative legal fiction of occupation and possession. Nonetheless Selden’s thought is important for the navigation freedom principle as being implemented under the high seas regime as well as municipal law within the territorial sea definitional crucible, especially for the governmental jurisdiction and the public rights which eventually came to be accepted there. For example, the Crown jus privatum grants of derelict lands composed of formerly submerged soil which emerged along the coasts when the sea avulsively retreated reflects a municipal law mechanism for property acquisition which avoided ownership disputes. As a property right allocation mechanism such grants were an exercise of the Royal Prerogative applied as a governmental servitude on the acquisition of property interests. Because individuals could meet the seisin requirement once the lands permanently emerged, common law would preserve the individual property interest asserted based on a Crown grant or franchise because seisin in fact could be achieved. This also applied when offshore islands formed. Indeed, at one point these emerged lands came to particular Royal attention as is shown by the issuance of special commissions to encourage their discovery.78 Notably the prior right of the Crown to submerged lands was not contested by the common law, and the emerged lands remained within Crown prerogative control under the jus privatum even when made the object of grant to an individual. For Selden there was probably no question about prior Crown ownership of the sea and seabed. Indeed for the stability of land titles the a priori Crown jus privatum proprietary interest would have been essential and could simply have confirmed Selden in his view on underlying Crown ownership. Whether the Royal Prerogative controlled the ownership interest in emerging seabed lands was a common law question because the venue for adjudication was within common law territorial jurisdiction. Ownership rights to such lands at common law depended on the time involved in the emergent process. Slow imperceptible emergence, termed accretion, passed soil title to the upland estate because the Crown’s jus privatum interest could not be identified as a distinct emerged area. The reverse process, slowly immersing soil of the upland estate, is termed reliction, whereby ownership passes to the Crown as jus privatum owner of the adjacent seabed, again because the

78

See XIX Calendar, supra note 72, at 62. For a petition to lease emerged land in Aulkborough, Lincoln Co., see id.

D. Royal Prerogative Rights, Public Navigation and Fishing

41

submerged upland could not be identified as a distinct area. In contrast, the rapid addition or removal of soil is termed avulsion, in which circumstance title to the individual’s immersed upland or the Crown’s emerged seabed could be identified as a distinct parcel or area so that the initial ownership continued.79 Thus, where the original estate holder could demarcate avulsively submerged lands seisin continued and the Crown prerogative jus privatum title did not attach so that the individual’s common law ownership right prevailed.80 The effect of the Crown prerogative right as applied to the sea and seabed was to give the Crown a prior possessory interest to avulsively emerged lands, a governmental servitude over allocation of maritime resources, thereby preempting acquisition attempts by individuals. That required common law acceptance of a priori maritime area occupation and possession by the Crown regardless of whether fact or legal fiction because the interests allocated and acquired rested on underlying Crown ownership as well as overlying governmental authority. The point then becomes the degree of foreign navigation exclusion achieved by acts of occupation and possession. That is, whether complete foreign exclusion would come to define effective occupation and possession of inland waters, and whether foreign exclusion, subject to high seas regime innocent passage, force majeure, refuge and safe haven, would come to define effective occupation and possession of the territorial sea. As with real property, personal property rights could be obtained over objects and resources acquired and extracted in offshore areas,81 but again such rights were dependent on an underlying presumed or actual Crown

79

80 81

Hall, supra note , at 103–04. See also Whitaker v. Wife and the Lady Newburgh, (1672) 84 Eng. Rep. 479 (K.B.). The Crown held waste under prerogative right. Humbleton v. Bucke, (1370) 124 Eng. Rep. 737 (C.P.). When the sea submerged land so that it could no longer be identified or reclaimed, it became waste and passed to the Crown prerogative right. Wast. Inundation, (1564) 123 Eng. Rep. 276 (C.P.). Such land could no longer be possessed by an individual so it could not be granted. Att’y Gen. v. Richards, (1795) 145 Eng. Rep. 980 (Exch.). The exception is where the submerged land is close to shore on an open coast, or within arms of the sea and thus the body of a county. For example, fishing weirs erected pursuant to grants effected a limited occupation and possession of the submerged lands by a subject. See Francis Hargrave, A Collection of Tracts Relative to the Law of England 18–22 (1787), which contains a reprint of Hale, supra note 56. Huntley’s Case, (1370) 73 Eng. Rep. 736, 738 (Q.B.). Foxley’s Case, (1601) 77 Eng. Rep. 224 (K.B.); Case of Swans, (1572) 77 Eng. Rep. 435–36 (K.B.).

42

Chapter I

Sources – Publicists & Prerogative

franchise or grant to the claimant under an exercise of the Royal Prerogative because all objects in the coastal seas belonged to the Crown on an a priori basis as ownerless property within the jus privatum and a governmental extension of protective jurisdiction as an effective navigation servitude. The Crown jus privatum prerogative right as so applied extended not only to objects and resources in the sea but also to all resources on and in the seabed such as pearls and minerals. Prior to extraction, and to actual possession of the res, individuals could hold no property right in such items. This again highlights why Selden argues for Crown prerogative possession of the British Seas as an exclusive constitutional capacity of government, and suggests that the harvesting regulation of the resources gave fishermen no property right except in the catch.82 Fishing in navigable waters as a matter of English public right depended on the presence of the Royal Prerogative jus publicum, and fishing by foreigners could not effect occupation and possession over the maritime area involved because it was owned by the Crown under the Royal Prerogative right as a matter of English constitutional law. Selden is simply looking for a juridical basis in the Royal Prerogative sufficient to assert exclusive regulatory jurisdiction over foreigners on an a priori basis, and he patently considered that a prior possessory right in the Crown comparable to the holding of territory would be necessary. The Royal Prerogative jus privatum extended to fisheries using weirs,83 and to oyster beds, mussel beds, sand and gravel deposits, seaweed, flotsam, jetsam, ligan, wreck and royal fish. All these items were ‘royalties’ held by the Crown under prerogative right, and harvesting or ownership by individuals could only be a derivative right extant under a Crown grant or franchise, or in some cases by lease.84 Such franchises are best understood as licenses 82 83 84

The Case of the Admiralty, (1610) 77 Eng. Rep. 1461 (K.B.). Royall Piscarie de le Banne, (1610) 80 Eng. Rep. 540, 543 (K.B.). Flotsam, jetsam and ligan were held by the Crown as prerogative rights. Sir Henry Constable’s Case, (1601) 77 Eng. Rep. 218, 221 (K.B.). Wreck was also held by the Crown as a prerogative right. Wiggon v. Branthwaite, (1669) 88 Eng. Rep. 1306 (K.B.). Royal fish were held by the Crown under a prerogative right. Admiral of the Cinque Ports v. The King, (1831) 166 Eng. Rep. 304, 305–06 (Ad.). Oysters and coral were likewise held by the Crown prerogative. See State Papers, Domestic, Car. II, 541 (1673–1675); see also Scranton v. Brown, (1825) 107 Eng. Rep. 1140, 1148 (K.B.). Franchises of the foregoing Crown prerogative rights were of two types. First were rights newly created, such as to hold a fair or market. These franchises did not actually partake in the Crown prerogative right and were usually held in gross. Second were grants of existing rights, that is to actually partake in a Crown prerogative right. These were usually joined

D. Royal Prerogative Rights, Public Navigation and Fishing

43

to acquire objects and extract natural resources described in the grant. For example, a grant of fishery was not a grant of property in the fish as ferae naturae but a license to harvest and carry away the fish, sometimes on an exclusive basis. A typical example is the lease of an oyster bed where the holder merely had a right to harvest the oysters and held no property right in them until retrieved.85 And where the grant or franchise was for goods in the sea presumed to be ownerless, the common law protected an owner’s right to repossession within a year and a day,86 which reveals that the jus privatum right did not displace individual ownership in identified property while confirming that the Royal Prerogative could hold proprietary interests in the sea, seabed and items contained there, when beyond the legal capacity of individuals. Again this would have been understood by Selden, and would have both strengthened his understanding of the need for Crown ownership of the British Seas to regulate foreigners, and suggested the basis for his claim of occupation and possession – the Crown could not grant what it did not own. The obvious import of jus privatum based real and personal property rights and resource extraction or harvesting rights in navigable waters is that they were derived from a body of law which presumed underlying Crown ownership but did not involve possession in fact. Selden’s arguments about Crown control of the North Sea herring fishery when understood in this context make sense from a municipal law perspective, as well as from what

85

86

to a franchise, such as of a manor or to take wreck, and would be terminated with cancellation of the underlying franchise. See generally Ewelme Hospital v. Andover, (1684) 22 Eng. Rep. 460 (Ch.); Heddy v. Wheelhouse, (1597) 78 Eng. Rep. 834–35 (Q.B.); Item en. Quo Warrant, (1327–1377) 72 Eng. Rep. 309 (K.B.). Leasing of an oyster bed, in State Papers, Domestic, Car. II, 541 [1673–1675]. Leasing of derelict land and marshes, in XXIV Calendar of Treasury Books 321 [1710] (1961); and XXVIII Calendar of Treasury Books 447 [1707] (1961). Even newly emerged islands were leased. See XIX Calendar, supra note 68, at 96. The Crown held prerogative right to sundry types of ownerless property located within the coastal sea and retrieved by subjects. Silver bars lost off Cornwall belonged to the Crown. State Papers, Domestic, Jac. I, 97 [1619–1623]. As did vessels sunk below low-water mark. Kirby v. Gibbs, (1668) 84 Eng. Rep. at 183 (Ad.). The privilege to recover lost items sunk in the sea was granted by the Crown. State Papers, Domestic, Car. I, 536 [1627–1638]; State Papers, Domestic, Car. I, 313 [1625–1626]. Sir Henry Constable’s Case, (1601) 77 Eng. Rep. at 221 (K.B.). The King was entitled to the submerged soil and the water of the sea around the coasts of England according to municipal law. Att’y Gen. v. Chambers, (1854) 43 Eng. Rep. 486, 488–90 (Ch.).

44

Chapter I

Sources – Publicists & Prerogative

he would have understood as English constitutional requirements. That is, the effort to require the Dutch and others fishing in the British Seas to purchase a British license to harvest North Sea fish was at best a regulatory arrangement for protection of the resource, and indeed one of the points of sale was the protection to be extended to foreign licensees.87 Selden’s arguments about fishery regulation and control, when reduced to a fine point, are at best evidence only of a regulatory interest and, to the extent achieved, reflect only extended protective jurisdiction for preservation of navigation and its regulated derivative, fishing, rather than acquisition of territorial authority sufficient to affect a flat prohibition on either navigation or fishing.88 Further to the point, the English interest in the 17th century Dutch North Sea herring fishery was concerned with reversing an ongoing reduction in the number of English fishing vessels and trained crews available to be called upon to defend the nation, as well as with capturing the economic windfall accruing to the Dutch fishing industry in waters for the most part abandoned by English fishermen. These governmental interests were the driver behind Selden’s argument more than any actual occupation and possession of the marginal sea.89 But Selden’s position on the Royal Prerogative control of maritime areas is significant for the common navigational freedom principle and the territorial sea crucible. Navigation and fishing were rights vested in the public as a general body, the English People, much the same as Royal Prerogative rights were vested in the Crown, and neither the Crown nor individuals were able to place any unreasonable restriction upon the English public’s full enjoyment of either navigation or fishing.90 Such a priori public rights were protected and preserved by a juridical navigation servitude superior to private rights, including those granted under the jus privatum, and manifest the municipal law Royal Prerogative public trust for the navigational freedom principle, the governmental trustee responsibility of the Crown as sovereign. Public navigation was the highest priority right in the sea and coastal navigable waters under English municipal law. Although circumstances and usage might ultimately determine what might constitute navigable waters, 87

88 89 90

Fulton, supra note 12, at 141, 147–63; Rodger, supra note 16, at 383–84; Selden, supra note 8, at 151, 298, 355–62, 464. Selden, supra note 8, at 3. Fulton, supra note 12, at 115; Rodger, supra note 16, at 351. Blundell v. Carterall, (1821) 106 Eng. Rep. 1190, 1202–204, 1207 (K.B.).

D. Royal Prerogative Rights, Public Navigation and Fishing

45

coastal waters within the flux and reflux of the tide were prima facie navigable.91 Rivers were viewed as containing navigable waters below the first bridge or weir, which limitation was not followed in later more expansive United States practice. Navigable waterways were considered to be in the nature of a highway, and as a result all riparian and littoral owners of real property were subject to the exercise of the public navigation activities. Even when there was no public right to a towpath along littoral property at common law, the common law would protect such a right as developed through custom if essential to navigation.92 Likewise, ballast could be dug on the foreshore regardless of common law ownership of the area because this was a public activity essential to navigation and protected under prerogative right.93 This jus publicum predominant navigation right is the root of the United States public navigation servitude as applied to littoral and riparian upland estates adjoining navigable waters today.94 Navigation also was the basic public right, so that public fishing and even private fishing pursuant to a prerogative jus privatum grant could not interfere with navigation.95 Navigation was the a priori servitude. Encroachments which interfered with navigation were viewed as purprestures or nuisances, and by action at common law could be ordered to be abated by removal.96 Litigation usually arose with regard to removing weirs or other navigation obstacles located in the submerged bottom soil or the foreshore. What appears from such municipal law application of the navigation servitude is that the dominant public right of navigation was applied to all littoral property. Not only were individual littoral property owners subject to the municipal law navigation servitude, but no individual, group or town could place restrictions on navigation by way of tolls, harbor duties or other charges unless some reasonable benefit to the public right to navigation would be

91 92 93 94

95 96

Miles v. Rose, (1814) 128 Eng. Rep. 868 (C.P.). Ball v. Herbert, (1789) 100 Eng. Rep. 560 (K.B.). Mayor of Lynn Regis v. Taylor, (1684) 83 Eng. Rep. 629 (K.B.). The navigation servitude was potentially applicable to all riparian property. See Parmeter v. Att’y Gen., 3 Eng. Rep. 713 (H.L.). Gray v. Bond, (1821) 129 Eng. Rep. 1123 (C.P.). Encroachments on navigation, such as an obstacle created by a sunken vessel, could be ordered to be abated. 2 Richard Burn, Justice of the Peace and Parish Officer 384 (1764). The Admiralty Court had the authority to remove any nuisance obstructing the public right to navigation. No. 112, Admiral, (1665) 83 Eng. Rep. 1264 (K.B.).

46

Chapter I

Sources – Publicists & Prerogative

maintained by the proceeds. Examples are construction and maintenance of aids to navigation such as anchorage areas and beacons, as well as the placement of buoys.97 These public activities were under the aegis of the navigation servitude because the public good depended upon the unimpeded exercise of the public right to navigation. Once a public activity was connected with the public right to navigation, no private property right could hinder its exercise.98 The corresponding international law aspects of the navigation servitude are obvious in that the littoral State could extend navigational protective jurisdiction only insofar as the public international law rights to innocent passage, force majeure, refuge and safe haven remained dominant and available as high seas regime navigational servitudes, and that extent was the matter at issue in the Grotius/Selden dispute – the crucible of the evolving territorial sea concept. The territorial sea crucible balance here would follow the same path as the English mode, that is, the high seas regime rights for public use of navigable waters would be adjusted to meet the municipal law needs for extending particular governmental interests over marginal sea areas. The rubric is to balance the greater public interest with the lesser particular interest, and that produces the concept of a territorial sea as well as today’s seaward maritime zones. *

*

*

By the end of the 17th century navigation was an established public right of Englishmen, protected by the Crown within its constitutional authority under the Royal Prerogative jus publicum. That right appertained to the English North American Colonies, where navigation continued as a public right of the successor American People protected under the municipal law of the United States in the 18th century. The basis for the protection and preservation of the public right of navigation in the North American colonies,

97

98

Wharfage duty would be levied on vessels and their cargo distrained for payment of the service. See, e.g. Syeds v. Hay, (1791) 100 Eng. Rep. 1008 (K.B.). Anchors and sails of a vessel could be distrained until harbor duties were paid. Vinkestone v. Ebden, (1698) 91 Eng. Rep. 219 (K.B.). The restriction on such charges was that some benefit to navigation be created. Warn v. Prideaux, (1672) 84 Eng. Rep. 718 (K.B.). Blundell v. Carterall, (1821) 106 Eng. Rep. at 1203 (K.B.).

D. Royal Prerogative Rights, Public Navigation and Fishing

47

the public right of Englishmen, was the Royal Prerogative jus publicum, not the common law. Thus the public trust maintained as undiluted the public rights of fishing and navigation protected and preserved initially under the Royal Prerogative99 jus publicum, and sequentially under the United States Constitution of 1789.

99

The modern concept of Royal Prerogative is discussed in Philip Allott, Towards the International Rule of Law 109–35, 116 (2005) in relation to the common law, and the authority of the common law to change prerogative powers. Notably jus publicum rights of fishing and navigation are public rights, not government powers. Consequently while the trustee or the trustee’s power may change, the jus publicum pubic trust remains. Cf. Allott supra at 385–86.

Chapter II Navigational Servitudes: Transmittal, Consolidation & Merger The various littoral State extensions of governmental navigational servitudes preempting or regulating activities affecting navigation or navigable waters began to consolidate in a belt of marginal seas and to merge within a theory of “territorial waters” during the 18th century. The Royal Prerogative public rights of fishing and navigation, together with evolving governmental exercises of protective jurisdiction, came to define those zones of coastal waters wherein extended maritime jurisdiction strengthened to the point that administration of the public trust for navigational freedom largely passed to the littoral State. Only the high seas regime public navigation aspects of innocent passage, force majeure, refuge and safe haven remained where littoral State navigable waters were enclosed subject to the high seas regime, and that refinement was a product of the territorial sea definitional crucible. The 17th and 18th century English navigable waters concept, especially as inherited by the United States in 1776 and applied after adoption of the United States Constitution in 1789, contributed to the territorial sea definitional crucible. The English North American colonies were authorized by charters, or in some cases directly by Royal Prerogative action, and these assigned administrative aspects of the Royal Prerogative maritime jurisdiction which, together with emigrant Englishmen, brought along the common law and jus publicum public rights which led ultimately to production of the “navigable waters of the United States” as a juridical concept in the late 18th century. Not all navigable waters were encompassed in the high seas regime for territorial waters, but in the definitional process the territorial sea was to evolve as a mosaic, a product of competing municipal and international law jurisdictions where several abutting and sometimes overlapping jurisdictions tangled for maritime control in the 18th century.

50

Chapter II Transmittal, Consolidation & Merger

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights of Englishmen Colonial charters transmitted the recipe for structured administration and local government, while apart from the charters the English North American colonists brought their right to the common law as well as to fishing and navigation. The issuance of charters for settlement was an exercise of the Royal Prerogative, based on the prior title to territory having been obtained under discoveries achieved pursuant to earlier issued Royal Prerogative charters for exploration. The significance is that the Royal Prerogative and its attendant governmental and proprietary rights under the aspects of jus publicum and jus privatum were established in North America by those “Discovery Charters” before English settlements were authorized by the “Settlement Charters”. The public rights of fishing and navigation, therefore, were not dependant on the local colonial charter in North America but continued to be available in public trust under the Royal Prerogative jus publicum when Englishmen arrived. Fishing and navigation could be administered by the colonial government under the respective Settlement Charter, but those public rights were not dependant on the charter, so that the colonial administration must be consistent with the underlying Royal Prerogative and overarching laws of England. Similarly the Englishman’s right to the common law came to North America with him, and was held independently of colonial administration under any Charter. Common law’s jurisdictional dependence on territory and its bumptious relationship with admiralty law’s subject matter jurisdiction for instance, criminal and prize cases occurring on navigable waters outside that same territory, combined to reinforce the role of the Royal Prerogative for the protection and preservation of public navigation rights in public trust both in England and in North America. This interrelationship of the Royal Prerogative, admiralty and common law jurisdictions has been ignored, but is nonetheless also important because out of these jurisdictional encounters and contests English municipal law came to define juridical navigable waters and the landward extent of the high seas regime. It developed that not all navigable waters subject to the public rights of fishing and navigation were subject to the high seas regime, and how some navigable waters came to be enclosed as inland waters in this process is an instructive part of the territorial sea crucible. Thus English municipal law came to play a key role in the eventual development of a territorial sea as understood to be occupied and possessed from shore, especially where jurisdiction was limited to navigable

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights

51

waters outside the realm. The Royal Prerogative extra-realm occupation and possession of navigable waters as a matter of English municipal law, and the constitutional role of the Royal Prerogative as exercised for the establishment of colonial governments in North America form the source of navigational servitudes as they developed both for United States municipal law and for the high seas regime. Colonial Settlement Charters for North America were issued in the 17th century under the Royal Prerogative, without any act of Parliament. That is important for the constitutional development of these colonies and their understanding of navigable waters jurisdiction after 1776. Indeed the “special relationship” of the North American colonies with the King was a focal point which led to turmoil in the civil war and the eventual revolution of 1774–1783. Colonial charters present Royal Prerogative assignment of administrative and proprietary rights, some extending over open as well as closed coastal waters, as is apparent from the enumerated grants and franchises and governmental authorities contained in the charters. But the rights of Englishmen to the common law and to the jus publicum rights of fishing and navigation were not affected by the charters, though those charters supply evidence that these public rights were understood to be present in North America. The jus publicum rights remained the rights of Englishmen, not the rights of government – be it the Crown or the colonial governments – rights of the Englishmen settling North America as the colonial English People. The jus publicum rights were held by the settlers as Englishmen rather than as people of the respective colonies because the North American territory was held in right of the Royal Prerogative and the colonies there were subject to English law and to the residual and ultimate Royal Prerogative power to affect charter termination. Consequently the Royal Prerogative privileges and franchises set forth in colonial charters were local government administrative assignments at best, rather than the organic source of juridical rights of the settlers or the colonial governments. No rights of the colonial administrations were held independently of the Royal Prerogative. This meant that as a matter of English municipal law the North American belt of navigable waters was held by the Crown in right of the Royal Prerogative, as was the upland, which is to say pursuant to the right of discovery and subject to the public right of the English People to navigation and fishing protected and preserved with the jus publicum public trust. The North American colonial settlement process was a wholly municipal law event, and reflects the juridical basis for the Selden side of the Selden/

52

Chapter II Transmittal, Consolidation & Merger

Grotius dispute. Eventually the Royal Prerogative interests in the belt of coastal waters would be justified by international law recognition of possession from the shore, but the Royal Prerogative did not wait for that fiction and asserted exclusive control of fisheries and navigation as administered by the Crown or by the North American colonies on behalf of the Crown. Eventually this granting of franchise rights within marginal sea areas, together with continued pressure for establishment of Royal Prerogative ownership of the coastal sea and seabed, as argued by Selden in England, led to acceptance of extended protective jurisdictions into marginal sea areas subject to the high seas regime navigational servitudes for innocent passage, force majeure, refuge and safe haven. The colonial charters provide an uncluttered example of this acquisition process, and reveal much about how the Crown’s interests in marginal sea areas outside the realm were understood at the time. Issuance of North American charters begins in the 16th century, with instruments granted to adventurers set on exploration. These charters authorize discovery voyages and are designed to effectuate the Crown’s ownership over re nullius territory, that is, ownerless and unoccupied lands. Such “Discovery Charters” empowered the explorers to proceed as agents of the Crown, so that claims to newly discovered territories and resources made by them thereby became acts of the British nation under the Royal Prerogative jus publicum taken in occupation and possession of the res nullius area. Both the issuance of the Discovery Charters and the acquisition of the discovered territories are matters of Royal Prerogative governmental right pertaining to circumstances, events and locations outside the realm without the involvement of Parliament before 1689. In this regard the voyages of Sir Humphrey Gilbert, Sir Philip Sydney, Adrian Gilbert and Sir Walter Raleigh form the foundation upon which the Crown ultimately claimed ownership of the vast and unknown North American Continent.1 Discovery Charters were followed by “Settlement Charters”, employed by the Crown in the 17th

1

See Letter patent for Sir Humphrey Gilbert, in 8 Richard Hakluyt, The Principal Navigations Voyages Traffiques & Discoveries of the English Nation 18 (1589). See Charter for Sir Philip Sydney, in State Papers Colonial (Am. & W. Ind.), [–], Nos. 28–29, at 24–25 (1583). See Charter for Adrian Gilbert, in Hakluyt, supra, at 289–94; Charter for Sir Walter Raleigh, in Hakluyt, supra, at 375–76. That North America was actually occupied and possessed by native peoples was conveniently forgotten by the authorities granted in these discovery charters, or if countenanced such occupation and possession were explained as insufficient to achieve ownership. That curious circumlocution does not however bear on the present subject.

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights

53

and 18th centuries to populate the new lands with English emigrants and to exercise the Royal Prerogative in creation of English colonial governments.2 Except for Nova Scotia, granted to Sir William Alexander in 1621 under right of the Crown of Scotland, all British North American colonial charters were issued in the right of the Crown of England. That is significant because it is the English Royal Prerogative and its rights which were extended as franchises to the North American colonial charter governments, or were applied and administered by the Crown through direct government of Royal Colonies. These grants and the law of the Royal Prerogative jus publicum define the juridical basis for colonial regulation and control of marginal sea areas concomitant with such control by the Crown as was actually being achieved in England at the time. The English and North American juridical scenarios are parallel, which is why the English experience is essential to understanding the navigational servitudes applied, both governmental and public, as they have come to be exercised over the navigable waters of the United States. All North American Settlement Charters save one were issued in the 17th century. Indeed the earliest successful English settlement charter for North America was issued in 1607, just before the arguments of Selden and the English publicists for occupation and possession of marginal sea areas had their strongest influence. Intriguingly, these 17th century Settlement Charters make no claim to dominion or sovereignty over marginal seas, and are without any indications as to reservation of such dominion or sovereignty in the Crown. The charters could not have granted the Royal Prerogative, and that constitutional authority alone had juridical capacity to authorize and achieve occupation and possession of marginal seas under contemporary English law as argued by Selden. Reflection suggests that because the Settlement Charters were wholly dependent on the Royal Prerogative occupation and possession of the underlying territory and marginal sea areas as a matter of municipal law, such absence of a Royal Prerogative reservation is not surprising. Moreover the colonial charter holders held no independent legal capacity to occupy and possess the marginal seas. Further, the jus publicum

2

As an example of the transition from discovery charters to settlement charters see Charter for Richard Hakluyt, in State Papers, Colonial (Am. & W. Ind.), [–], No. 48, at 32 (1606); Charter for Sir Thomas Gates, in State Papers, Colonial (Am. & W. Ind.), [–], nos. 48–49, at 32, 34 (1606–1609). See Samuel E. Morison, The Northern Voyages, A.D. – (1971); see also 1 Blackstone 104–06.

54

Chapter II Transmittal, Consolidation & Merger

public rights of fishing and navigation could not be abandoned by the Crown, though their administration could be assigned with regard to marginal seas and coastal waters if there were underlying occupation and possession by the Royal Prerogative. Therefore the absence of grants of marginal seas and coastal waters in charter language does not evidence the absence of the Royal Prerogative or of the jus publicum rights of Englishmen, and rather confirms the presence of those rights as a matter of English constitutional law. There was no need to reserve from a colonial charter that which was not granted or, better, could not be granted, and upon which the grant ultimately was derived. Consequently the charters need to be considered as to the grants and franchises contained therein, and as to the legal implications and presumptions of the grant language, especially the Royal Prerogative jus privatum colonial grants to emerging seabed areas, as well as to ownerless property in maritime areas as evidence of extended protective jurisdiction in North American colonial waters. From Selden’s understanding, such grants were founded on English municipal law of the Royal Prerogative with its juridical capacity to occupy and possess marginal sea areas. The concept is that the Crown acquired prior title to ownerless goods based on occupation and possession of the maritime area, rather than that the Crown was governmentally sorting property rights among subjects without regard to underlying ownership. There are three types of English colonial Settlement Charters issued for North America, and they are referenced by the legal status of the grantee. First are colonies authorized to be established pursuant to “corporate charters” as issued to incorporated entities.3 Second are colonies created pursuant to “proprietary charters” as issued to individuals or unincorporated groups of individuals.4 Both corporate charters and proprietary charters were issued to profit making enterprises, although some proprietary charters were issued to those intent on forming colonies allowing a greater latitude of religious

3

4

For example, see Charter for New England, 1620, reprinted in 3 Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 1827 (1909) [hereinafter Thorpe]; Virginia Charter, 1606, reprinted in 7 Thorpe, supra, at 3783. For examples, see Charter for Maryland, 1632, reprinted in 3 Thorpe, supra note 3, at 1679; and Charter for the Province of Pennsylvania, 1681, reprinted in 5 Thorpe, supra at 3035.

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights

55

belief and practice than afforded to the proprietors in England; e.g., New Plymouth and Pennsylvania. Third, some “Royal Colonies” were created and governed directly by the Crown, either with or without charters. Corporate and proprietary colonies became Royal Colonies subsequent to the failure or revocation of their respective organic charters. Virginia is the prime example where, after revocation of the 1612 Charter for Virginia (its third charter), governors were appointed directly by the Crown.5 Each type of Settlement Charter contains a Royal Prerogative grant of governmental responsibility broadly couched and authorizing the charter grantee to conduct and hold enumerated activities, authorities, powers and property rights.6 These governmental interests are passed under general terms of grant as “franchises”, “jurisdictions” and “royalties”. Usually these words of general grant are located in the forepart of the charter, and the particular Royal Prerogative rights passing to the colonial government under the general words are set out elsewhere in specific language. The purpose of using the general words of grant, such as “franchises” and “royalties”, was to make clear that the charter was being issued by the Crown as a matter of Royal Prerogative right, subject to revocation; the Crown was not giving up its underlying occupation and possession of the particular part of its North American territory and marginal seas held in right of discovery. The particular language set forth later in the charter identified the franchise interest being delegated. Other than a quickly passing Elizabethan rule favoring grantees, royal grants were to be strictly construed in favor of the Crown and against the charter holder,7 which again is consistent with the underlying Crown right of territory and why it was not necessary to reserve franchises not granted; that is, nothing would be allowed to pass under a Crown grant by implication.8 This evaluation of grant language is important

5 6

7

8

1 Acts of the Privy Council (Col.) 69, 72, 79 (1624) (Eng.). Charters were required to be under the Great Seal because the franchise interest conveyed were those of the Royal Prerogative. 16 Viner 561, 563 (d ed., 1793); 17 Viner 69, 130, 134, 171. See Prerogative (Anon.), (circa 1547) 73 Eng. Rep. 913 (K.B.). 14 Viner 57–63; see W______ Nelson, Lex Testamentaria 304–06 (1728); 2 John Comyns, A Digest of the Laws of England 679 (1825); 4 Comyns, supra, at 156; 7 Comyns, supra, at 328; see also Matthew Bacon, A New Abridgement of the Law 161 (1813). The prohibition against the Elizabethan rule is contained in A Proclamation prohibiting use of any charter issued by Queen Elizabeth to achieve any monopolies, in 8 Calendar of State Papers (Dom.) (–) 7 (1603). Att’y Gen. v. Trustees of the British Museum, (1903) 2 Ch.; and see John Gould, A Treatise on the Law of Waters 48–49 (1883).

56

Chapter II Transmittal, Consolidation & Merger

to the determination whether the charters authorized extended navigational protective jurisdiction in marginal seas. In addition, that evaluation will show the Royal Prerogative jus publicum public rights of navigation and fishing came to form the basis for the navigation servitude over navigable waters of the United States after 1776. Generally colonial governments were empowered to make laws governing persons within their jurisdictions consistent with the laws of England and the common law, which remained the right of Englishmen even as emigrant colonists. The governing charter language, as it appears in the 1629 Charter for Carolina, is typical and dictates the nature and scope of laws which colonial governments could create and apply: [Y]et soe that the foresaid lawes and ordinances be consonant to reason and not repugnant or contrary but (as conveniently as may be done) consonant to lawes, statutes, customes and rights of our Realme of England.9

Certainly colonial governments from their inception were wholly creatures of their charter language and constitutionally subject to Royal Prerogative exercises of authority.10 This overarching control of English law is evident in the Settlement Charters for the northeastern region which include the 1620 Charter for New England issued to the Council for New England, and two charters issued thereunder, specifically the 1629 Charter for New Plymouth, and the 1629 Charter for Massachusetts Bay, as well as in the 1620 Charter for New Hampshire. Also the 1643 Charter for Rhode Island, the 1662 Charter for Connecticut, and the 1691 Charter for Massachusetts Bay are pertinent, though issued by the Crown after the 1635 revocation of the Council for New England’s 1620 Charter. The Council for New England was a corporate body charged under the 1620 Charter for New England with development of colonial laws consonant with those of England (Royal Prerogative constitutional rights and common law), and with establishing colonial courts and appointing colonial governors and their assistants. The Council’s authority over marginal sea areas was not a broad territorial authority, but rather a matter of special grant, limited to the right to pursue enemies across maritime areas –

9 10

Sir Robert Heath’s Patent for Carolina, 1629, reprinted in 1 Thorpe, supra note 3, at 69. See, e.g., Charter for Delaware, 1701, reprinted in 1 Thorpe, supra note 3, at 557–58.

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights

57

a protective jurisdiction.11 Typically colonial jurisdiction over marginal sea areas was granted by special charter language, and then provided only limited extensions of navigational protective jurisdiction to be exercised over pirates and to repel acts of war by enemies.12 Broader authority to apply extended protective jurisdiction was understood to be implied in the grants of authority to implement laws consonant with the laws of England. The 1620 Charter for New England sets the colonial territory as running “from Sea to Sea” rather than including the sea or any part of it, which is consistent with the common law concept of territorial jurisdiction. Acting under this 1620 Charter, the Council for New England proceeded to issue the 1629 Charter for New Plymouth to William Bradford with a right of fishing in adjacent seas.13 Notably that right is not a right to the seas involved, but evidences an understanding that the issuer had authority to administer fishing in the particular sea area. It is the right to administer fishing rather than the public right to fish which is granted, so that there must be an understood pre-existing right of English colonists to fish. The implication is that the Royal Prerogative jus publicum public rights of the English People to navigation and fishing are taken to be a priori applicable within these colonial coastal waters, so that the colonial government’s authority is implied as agent of the Crown to administer these public rights of Englishmen.14 The alternative is that the Crown would have taken action to block the fishing grant as ultra vires the Council for New England. Likewise the 1629 Massachusetts Bay Charter provides for a right of fishing offshore as well as control of harbors, creeks, ports and islands,15 which confirms that the grant of fishing rights was not accidental language and was considered implied in the Council for New England’s 1620 Charter. The unchallenged grant of fishing could only be a delegation of administrative or trust authority over the underlying jus publicum public right of all Englishmen to fish in the sea and in arms of the sea.16

11

12 13

14 15

16

Charter for New England, 1620, reprinted in 3 Thorpe, supra note 3, at 1827, 1829, 1833. Id. at 1833. Charter of the Colony of New Plymouth, 1629, reprinted in 3 Thorpe, supra note 3, at 1841. Id. at 1844. Charter for Massachusetts Bay, 1629, reprinted in 1 Thorpe, supra note 3, at 1846–847, 1850, 1859. Primary fishing areas at this time were on the Grand Banks east of Newfoundland. There was a cod fishery off New Hampshire and Maine, but it quickly disappeared. Fishing south

58

Chapter II Transmittal, Consolidation & Merger

This is consistent with the foregoing 1629 grant of territory to the Massachusetts Bay Colony, as running “from the Atlantick and Westerne Sea and Ocean on the east Parte, to the South Sea on the West Parts.” Neither dominion nor sovereignty over the adjacent sea, nor the public right to fish is conveyed by these charters, and such Royal Prerogative rights are not conveyed to the Council for New England in the 1620 Charter. The significance is that the “right to fishing” is not the “public right to fish” so that the grant of upland colonial territory in the 1620 Charter did not and could not change the English colonists’ jus publicum a priori public rights. As the Crown’s agent, the colonial government only could administer these jus publicum rights pursuant to the granted administrative authority and subject to the laws of England. In short, there would be no purpose, point or need for charter language to make a reservation of the coastal waters to the Crown when those waters could only be held by Royal Prerogative occupation and possession under the jus publicum consistent with the Selden position. In 1683, after the 1635 revocation of the Council for New England’s 1620 Charter, the 1629 Massachusetts Bay Charter was revoked by a writ scire facias, and later the 1691 Charter for Massachusetts Bay was issued with the usual grant of ports, havens, isles, commodities and jurisdictions. All islands within 10 miles of the shore are granted, and the right to sea fishing is confirmed, which would require underlying occupation and possession of the involved waters within the Royal Prerogative jus publicum.17 Indeed the grant of “islands” seems to confirm that the surrounding waters are navigable waters but are not conveyed, and that the Royal Prerogative jus publicum authority over fishing applied to those waters. The conveyance of coastal waters would have required words particularly passing that authority

17

of New England was not a significant part of the colonial economy, and came into dispute when southern colonists fishing vessels sailed into New England waters. See 1 Acts of the Privy Council (Col.) 40–41, No. 65 (1621). See Charter for Massachusetts Bay, 1691, reprinted in 3 Thorpe, supra note 3, at 1870–873, 1875–876, 1885. In addition, Maine became part of Massachusetts under this charter. Earlier Maine had been granted to Sir Ferdinando Gorges and John Mason, Esquire, by the Grant of the Province of Maine, 1622, reprinted in 3 Thorpe, supra note 3, at 1661; the Grant of the Province of Maine, 1639, reprinted in 3 Thorpe, supra note 3, at 1637; and the Grant of the Province of Maine, 1664, reprinted in 3 Thorpe, supra note 3, at 1637. Under these Maine grants laws were to comport with those of England, and islands were granted but no grant or reservation was made of coastal seas, and considering the indented nature of the Maine coastline that is significant as to whether coastal seas were included as territory.

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights

59

over the sea, and to the extent such waters were enclosed in ports and harbors they were conveyed. Otherwise only protective jurisdictions would be extended in marginal sea areas concomitant with the laws of England. Charters grant only administrative authority to apply English law, which would include jus privatum grants (franchises and privileges) and protection and preservation of jus publicum rights, both requiring the presence of the underlying territorial right of discovery and the overarching constitutional Royal Prerogative. Additional charters were issued by the Council for New England, among which is the 1629 Grant of New Hampshire to John Mason.18 Mason as proprietor of the colony received franchises to escheats, flotsam, jetsam, ligan and maritime jurisdiction together with “all the rights of the Council in the premises”. The Council’s charter rights include islands, which were granted within 5 miles of the coast as well as the adjoining sea.19 There are numerous coastal islands in the area, and the Isles of Shoals are located in the nearby adjoining sea, which islands the Council for New England held under its own charter. Arguably the Council might have held administrative authority over the sea between the Isles of Shoals and the Piscataqua River, and there was always a question whether all islands had been discovered. Nonetheless, this charter demonstrates that the Council considered it held administrative authority over coastal waters, which administrative authority perforce required an underlying Royal Prerogative right. At the time, as Selden and other 17th century English publicists argued, that administrative authority would be based on English municipal law; that is, on occupation and possession of the marginal sea area outside the realm and jurisdiction of the common law20 by the Royal Prerogative. 18

19

20

Grant of New Hampshire to Captain John Mason, 1629, reprinted in 4 Thorpe, supra note 3, at 2433; see also Grant of New Hampshire to John Wallaston, 1635, reprinted in 4 Thorpe, supra note 3, at 2437. Grant of New Hampshire to John Mason, 1629, reprinted in 4 Thorpe, supra note 3, at 2433–434. Compare with the Charter for Nova Scotia, 1621, issued under the right of the Scottish Crown to Sir William Alexander, a boundary line is supplied across the Bay of Fundy, not to demarcate territory in the sea but to delineate the seaward extent of islands conveyed by the charter. The charter language reads as follows: [H]ave, given, granted, and conveyed, and by the tenor of our present charter, do give, grant, and convey to the aforesaid Sir William Alexander, his heirs or assigns, hereditarily, all and single, the lands or the continent and islands situated, and lying in America, within the head or promontory commonly called Cape Sable, lying near the

60

Chapter II Transmittal, Consolidation & Merger

Because Mason’s rights were based on those of the Council for New England it became necessary for a new charter to be issued when the 1620 Charter for New England was revoked in 1635.21 The new 1635 Charter for New Hampshire again granted Mason the same mainland territory, isles and seas as were held under the 1629 Grant of New Hampshire.22 This was a Crown grant and the explanation of this grant, to the extent that it may have conveyed “seas” as well as islands, continues to be administrative delegation, so that the term “seas adjoining” suggests that these seas were understood not to be part of the New Hampshire colonial territory but reserved to the Royal Prerogative. Nonetheless, a grant of sea franchises required a prior right in the grantor, which means that the Royal Prerogative jus privatum and jus publicum were understood to be applicable to these colonial coastal waters, and that reflects occupation and possession of the upland territory as well as the coastal water areas as an English municipal law matter. The significance remains that such occupation and possession, as argued by Selden, ultimately would become the basis both for English and for American municipal law rights to the territorial sea, and application of the American proprietary “navigation servitude” to inland navigable waters. The Crown issued charters directly for Rhode Island and Connecticut. The 1643 Patent for Providence Plantation was replaced later by the 1663 Charter for Rhode Island and Providence Plantations. Both the original 1643

21

22

forty-third degree of north latitude or thereabouts; from this Cape stretching along the shores of the sea, westward to the roadstead of St. Mary, commonly called St. Mary’s Bay, and thence northward by a straight line, crossing the entrance or mouth of that great roadstead which runs toward the eastern part of the land between the countries of Suriqui and Etechmines, to the river generally known by the name of St. Croix, and the remotest springs, or source, from the western side of the same. . . . Charter in Favour of Sir William Alexander Knight, of the Lordship and Barony of New Scotland in America, Sept. 10, 1621, in Edmund F. Slafter, Sir William Alexander and American Colonization 129 (1873). Act of Surrender of the Great Charter of New England to His Majesty, 1635, reprinted in 3 F. Thorpe, supra note 3, at 1860; see also Order to the Attorney General to call in the patent for New England, 1 Acts of the Privy Council (Col.) 217 (1637). Grant of the Province of New Hampshire to John Mason, 1635, reprinted in 4 Thorpe, supra note , at 2443. Two settlements in New Hampshire under Mason acknowledged Charles I and were governed by the laws of England. See Agreement of the Settlers at Exeter in New Hampshire, 1639, reprinted in 4 Thorpe, supra note 3, at 2445; Combination of the Inhabitants Upon the Piscataqua River for Government, 1641, reprinted in 4 Thorpe supra note 3, at 2447.

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights

61

and the later 1663 Charters require colonial law to comply with the laws of England, which would include the common law and the Royal Prerogative jus privatum and jus publicum.23 Rhode Island received a grant of colonial jurisdiction over harbors, ports and islands, as well as offshore fishing. The adjoining seas were not included because the territory of Rhode Island is set as “bounded on the south by the ocean”. To grant jurisdiction over fishing, the Royal Prerogative jus publicum must have been considered to apply to the maritime area involved and, again, English municipal law required occupation and possession in capacity of the Royal Prerogative. There is no basis to consider the grant of fishing jurisdiction to be a usurpation of the jus publicum because the public rights could not be divested and the public trust could not be abdicated. Again, at most, administrative responsibility was passed and, whereas charters were subject to revocation, the Crown held ultimate Royal Prerogative responsibility not only for the charters but also for the public rights to fishing and navigation. The 1662 Charter for Connecticut contains governmental powers and franchises similar to those set forth in the other colonial charters: [T]ogether with all firm Lands, Soils, Grounds, Havens, Ports, Rivers, Waters, Fishing, Mines, Minerals, Precious Stones, Quarries, and all singular other Commodities, Jurisdictions, Royalties, Privileges, Franchises, Preheminences, and Hereditaments, whatsoever, within the said Tract Bounds, Lands, and Islands aforesaid or to any of them belonging.24

This language makes no grant of sovereignty or dominion over the marginal sea, and makes no pretension to reserve the same to the Crown. The Connecticut Charter contains a simple reiteration of the inter-colonial right of sea fishing, a jus publicum right, which precludes any colony from asserting exclusive sea fishing rights in marginal sea areas,25 except possibly New Hampshire. The Connecticut Charter implies that maritime jurisdiction may be exercised to exclude enemies, which is an example of navigational protective

23

24 25

Patent for Providence Plantations, 1643, reprinted in 6 Thorpe, supra note 3, at 3209–210; Charter for Rhode Island and Providence Plantations, 1663, reprinted in 6 Thorpe, supra note 3, at 3211–215, 3219, 3221. Theoretically Rhode Island did not have jurisdiction over its coastal waters even for protection because the right had been granted to New England and Virginia. See 3 Acts of the Privy Council (Col.) 38 (1722). Charter for Connecticut, 1662, reprinted in 1 Thorpe, supra note 3, at 529, 535–36. Id. at 529–30, 533–34, 535.

62

Chapter II Transmittal, Consolidation & Merger

jurisdiction and does not eliminate the jus publicum public rights of fishing and navigation. More to the point, the inter-colonial right of sea fishing reflects the jus publicum right of Englishmen rather than the establishment of any right of fishing as a new governmental right in any colonial administration or in the discrete population of any colony. The Royal Prerogative right of charter or grant revocation and termination confirms this view. In the central geographic region, including the present State of New York south to the State of Maryland, charters were issued by the Crown for Maryland in 1632, for New York in 1660, for New Jersey in 1664 and again in 1674, for Pennsylvania in 1681, and for Delaware in 1701. New York, originally a Dutch colony, was given by Charles II to James, Duke of York,26 after being acquired by conquest through armed venture emanating out of Massachusetts in 1664,27 and became a Royal Colony in 1685 when James, Duke of York, became James II. New York thereafter remained a Royal Colony, though the charter issued to James conveys islands, together with mainland territory,28 and is the source of other charters much as was the 1620 Charter for New England. Pennsylvania was a proprietary colony later granted by James, Duke of York, to William Penn in 1681.29 Pennsylvania was carved out of the territory conveyed under the Duke of York’s grant from Charles II, and patterned on the Duke of York’s charter grant. The Charter for Pennsylvania is concerned with neither sea dominion nor sea sovereignty. Indeed, Pennsylvania relinquished any seacoast claim by its grant of territory to the Delaware proprietors in 1701.30 The Delaware grant from Penn requires that the Delaware proprietors acknowledge the sovereignty of the Crown as a condition for the grant, which ultimately is based on the Duke of York’s grant from Charles II and would carry administrative responsibility for and be wholly dependent upon the Royal Prerogative jus publicum rights over coastal waters. 26

27

28 29 30

See Grant of the Province of Maine, reprinted in 3 Thorpe, supra note 3, at 1637 (including the Duke of York’s Grant); see also Samuel E. Morison, History of the American People 77–78 (1965). New York was settled by the Dutch in 1626 after Manhattan was purchased by Peter Minuit. On September 8, 1664, an English fleet, sailing from Boston, captured Manhattan accepting the surrender of Director General Peter Stuyvesant. Neither Boston nor New York has recovered as of this writing. See New Jersey v. Delaware, 291 U.S. 361, 365–68, 370–73, 378 (1934). Charter for Pennsylvania, 1681, reprinted in 5 Thorpe, supra note 3, at 3035–038. Charter for Delaware, 1701, reprinted in 1 Thorpe, supra note 3, at 557–58.

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights

63

New Jersey was established initially in two parts, first as East Jersey by the 1664 grant from the Duke of York to Lord Berkeley and Sir George Carteret,31 and second by grant of Charles II passing West Jersey to Carteret in 1674, incorporating the 1664 provisions from the East Jersey grant.32 The proprietors of East Jersey, originally organized under Lord Berkeley, adopted a “fundamental constitution” in 1683,33 and both the 1664 East Jersey Charter and the 1674 West Jersey Charter were surrendered to Queen Anne in 1702, creating at that time a single Royal Colony, New Jersey.34 The New Jersey proprietors retained their property rights as a condition of the surrender of their charter governance rights. Upon becoming a Royal Colony all governmental functions merged in the Crown, which would preserve the Royal Prerogative jus publicum rather than affect its extinguishment. Maryland also was a proprietary colony, established by the 1632 Maryland Charter issued to Lord Baltimore.35 As part of that grant, territory containing ports, bays, havens and straits as well as all islands within 10 leagues of the shore are conveyed, but the marginal sea is not conveyed.36 Also conveyed is the general right to sea fishing,37 which reflects the understood presence of the Royal Prerogative in navigable waters of the marginal sea and the sea fishing franchise as delegated administrative responsibility for the jus publicum rights of the English colonists. Thus, as with the other English North American colonies, governmental authority vested under the Maryland Charter is not to be exercised contrary to the laws of England.38 In the southern geographic region the Crown issued charters for Virginia in 1606, 1609 and 1612, for Carolina in 1663 and 1669, and for Georgia in 1732. The proprietors received the 1606 Charter for Virginia with a grant of all islands within 100 miles of the coast, together with ports and havens,

31

32

33

34

35 36 37 38

Duke of York’s Release to John Lord Berkeley and Sir George Carteret, 1664, reprinted in 5 Thorpe, supra note 3, at 2533. His Royal Highness’ Grant to the Lords Proprietors, Sir George Carteret, 1674, reprinted in 5 Thorpe, supra note 3, at 2546. The Fundamental Constitution for the Province of East New Jersey in America, 1683, reprinted in 5 Thorpe, supra note 3, at 2574. Surrender of the proprietors of East and West New Jersey, of Their Pretended Right of Government to Her Majesty, 1702, reprinted in 5 Thorpe, supra note 3, at 2585. Charter for Maryland, 1632, reprinted in 3 Thorpe, supra note 3, at 1679. Id. at 1679 (§ 4). Id. at 1679 (§ 16). Id. at 1679 (§ 22).

64

Chapter II Transmittal, Consolidation & Merger

as well as a right to offshore fishing. Again the grant of fishing was for administration of the Royal Prerogative jus publicum public rights, and would have required the prior occupation and possession of the involved coastal waters under English municipal law. That, of course, was achieved through the Royal Prerogative through territorial acquisitions authorized and achieved under the Discovery Charters. The marginal sea areas between islands and the coast are not conveyed by the 1606 Charter for Virginia, and the colonial boundary is set as “along the said coast”, indicating no grant of colonial territory over the marginal sea areas.39 The 1609 Virginia Charter grants essentially the same rights and interests as the 1606 Charter for Virginia, and describes the boundary as from “Sea to Sea”, but not as including the sea or any marginal sea area as colonial territory.40 The 1612 Charter for Virginia41 conveys all islands within 300 leagues, apparently to include Bermuda and any remaining undiscovered islands within the governmental administration of Virginia. The 1612 Charter for Virginia includes the usual injunction for colonial laws to be in accord with the laws of England,42 and as with the 1606 and 1609 Charters for Virginia no conveyance is made of sovereignty or dominion over marginal sea areas. The 1612 Charter for Virginia was revoked in 1623 by writ quo warranto,43 whereupon Virginia became a Royal Colony, and though a fourth charter was drafted in 1676 it was never issued, so that Virginia remained a Royal Colony under direct Crown governance until 1776. Robert Heath received the organic 1629 Charter for Carolina,44 with power and authority to establish courts having jurisdiction over cases arising by land and sea, to make war, to raise a militia and to pursue enemies by land and sea.45 These are clear authorizations to extend protective jurisdiction into marginal sea areas. Thus, the 1629 Carolina boundary runs “to the Ocean

39 40 41

42 43

44 45

Charter for Virginia, 1606, reprinted in 7 Thorpe, supra note 3, at 3783–784. Charter for Virginia, 1609, reprinted in 7 Thorpe, supra note 3, at 37909. Charter for Virginia, 1612, reprinted in 7 Thorpe, supra note 3, at 3802–3804, 3806– 807. Id. at 3806. Henderson v. Poindexter’s Lessee, 26 U.S. (12 Wheat.) 530, 533 (1837) (concerning revocation of the 1612 Charter for Virginia). The location of colonial boundaries was not an appropriate subject of inquiry for courts. Penn v. Lord Baltimore, (1750) 27 Eng. Rep. 1132, 1134–135 (Ch.). Patent for Carolina, 1629, reprinted in 1 Thorpe, supra note 3, at 69. Id. at 69, 70, 71, 73–75.

A. Royal Prerogative Colonial Charters, Public Fishing and Navigation Rights

65

upon the east side”,46 but does not encompass any marginal sea areas within colonial territory. Later, Clarendon became the proprietor under the 1663 Charter for Carolina,47 which grants ports, havens and harbors (closed coastal waters), but no adjacent marginal sea areas, as colonial territory.48 A 1665 Charter for Carolina was also issued, and it recites the right to grounds in the Virginia seas, but not to the seas.49 This right to grounds is simply a reference to colonial rights over islands which exist or over seabed areas which may arise in the adjacent marginal sea, not a present grant of the seabed. But it assumes Royal Prerogative rights to the seas and seabed involved. With the shifting sands of the Outer Banks islands, and the low coastal areas contained behind these barrier islands, it is easy to understand why this language was contained in the Charter for Carolina. The grant of such rising islands presumes a prior right in the grantor, and this reflects the Crown’s jus privatum proprietary interest based on the jus publicum occupation and possession of the involved coastal waters and seabed under the Royal Prerogative juridical capacity. Next Carolina adopted its 1669 “Fundamental Constitution of Carolina”, which neither conveys nor reserves any rights of sovereignty or dominion over marginal sea area.50 The proprietary rights to Carolina were surrendered to the Crown in 1729, and subsequently the two Royal Colonies of North Carolina and South Carolina were formed. The 1732 Charter for Georgia is the last English charter granted to a North American colony. The Georgia Charter is distinct from the earlier charters in that a temporary trusteeship was created. After the trusteeship terminated in 1756, Georgia became a Royal Colony. In the 1732 Charter for Georgia the colony received the usual franchise interests of property rights, authority to form courts and governmental powers. No dominion or sovereignty over the marginal seas is created, and the Georgia boundary is specified to run “along the sea coast”.51 The Crown purported to grant rights to resources and islands in or arising from the sea to the various colonial administrations in charters issued over

46 47 48 49 50 51

Id. at 75. Charter for Carolina, 1663, reprinted in 5 Thorpe, supra note 3, at 2743–744. Id. Charter for Carolina, 1665, reprinted in 5 Thorpe, supra note 3, at 2771–772. Fundamental Constitution of Carolina, reprinted in 5 Thorpe, supra note 3, at 2772. Charter for Georgia, 1732, reprinted in 2 Thorpe, supra note 3, at 675.

66

Chapter II Transmittal, Consolidation & Merger

an approximately 100-year period. At no time did it make grants of the sea or submerged seabed, but the Crown did make consistent Royal Prerogative grants to ownerless property in maritime areas and to administration of fishing. For the charters as well as the charter grants the Crown held a prior Royal Prerogative right, and for marginal sea areas that replicates English coastal waters. Notably the North American colonial charters served to align the rights of the emigrant English People with colonial administrations as a municipal law matter. Englishmen brought the public fishing and navigation rights to North America with them, and the Royal Prerogative brought governmental administration and the jus publicum public trust. The presence of the Royal Prerogative is pervasive in the colonial Settlement Charters, and that holds significance for the later constitutional organization of the United States. That is, Royal Prerogative rights over coastal waters and seabed always remained a national matter pertaining to the sovereign and the English People. Those jus publicum national rights remained a priori public rights and appertained when sovereignty passed in 1776 and colonial Englishmen in North America succeeded to their public rights of fishing and navigation as the sovereign American People. Eventually, in 1789 with the adoption of the United States Constitution, the Federal Government would become successor trustee to the Royal Prerogative for administration of the navigational freedom principle in public trust. The interesting twist appears in the American definition of navigable waters, which became expanded to include vast reaches of inland waters and historic waters, and that application draws ultimately on the Royal Prerogative and the Discovery Charters.

B. British 18th Century Coastal Waters Belt Protective Jurisdiction During the 17th and 18th centuries neither Great Britain nor its successor the United States asserted more than navigational protective jurisdiction within adjacent marginal sea areas. That, however, is not the entire story for the territorial sea crucible and the evolving concept of a high seas regime within marginal sea areas occupied and possessed by the littoral State. Both in England and in North America, as a municipal law matter before 1776, common law recognized the Crown’s ownership of the sea and seabed for purposes of the Royal Prerogative jus publicum and jus privatum. That municipal law concept of coastal waters acquisition was not abandoned, but simply did not become an issue in international law when the 18th century focused on navigational servitudes extended as protective jurisdictions over

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

67

coastal waters for law enforcement, customs, criminal acts, fishery allocation and piracy, as well as preservation of neutral waters to avoid conflicts and compensation claims from other States. This is more correctly understood as a time of consolidation of protective jurisdictional exercises within marginal sea areas, when the international high seas regime came to accept the need for exclusive littoral state jurisdiction and authority within a belt of coastal waters. Consolidation of extended governmental servitudes evolved in parallel with, rather than in exclusion of, Royal Prerogative navigable waters occupation and possession as relied upon by Selden in the 17th century. Great Britain had benefited greatly from maritime commerce in the 17th and 18th centuries, and therefore attempted to protect its own manufactures and control imports. Customs regulations were implemented to protect native industry and horticulture from importation of competitive foreign products, and prohibitions were placed on exportations of goods and technologies. Predictably substantial smuggling operations resulted, effective to the point of becoming a serious problem for the British Government. In response vessels were ordered to cruise the coast to discover smugglers,52 and “Hovering Acts” were passed extending municipal laws seaward in exercises of protective jurisdiction to control maritime activities directed at violation of customs levies or exclusions. Hovering Acts were special customs statutes first enacted in 1719.53 These customs laws prescribed certain defined activities within a specific distance from the coast, usually two or four leagues, which activities were considered to be per se violations of the English customs laws because they were part of continuous activities designed to contravene such laws.

52

53

William Masterson, Jurisdiction in Marginal Seas 3 (1929); see Broadfoot’s Case, (1743) 168 Eng. Rep. 76, 83 (Crown Cases); Rex v. Hampden (Ship Money Case), in Hargrave State Trials 826–1254 (1637). Liquor and tobacco were frequently smuggled, and the smugglers were both numerous and sometimes violent. D. Marshall, Eighteenth Century England 148 (1970). See Act of 1719, 6 Geo. 1, c. 21 §§ 29, 31 (1719) (Eng.) (preventing Frauds and Abuses in the publick Revenues or Excise, Customs, Stamp-duties, Post-office and House-money). For other examples see Act of 1784, 24 Geo. 3, c. 47 § 26 (1784) (Eng.) (providing for the more effectual Prevention of Smuggling in this Kingdom; Act of , 5 Geo. 3, c. 39 § 7 (1765) (Eng.) (attempting to more effectually preventing the Mischiefs arising to the Revenue and Commerce of Great Britain and Ireland, from the Illicit and Clandestine trade to and from the Isle of Man); Act of, 1762, 3 Geo. 3, c. 22 § 5 (1762) (Eng.) (providing for the further Improvement of his Majesty’s Revenue and Customs). The version of these statutes enacted for the American colonies is the Act of 1763, 4 Geo. 3, c. 15 § 33 (1763) (Eng.) (granting certain Duties in the British colonies and Plantations in America).

68

Chapter II Transmittal, Consolidation & Merger

For example, the acts of “breaking bulk” and of the transfer of goods from one vessel to another within four leagues of the coast were prohibited.54 The rationale for this prohibition was that such acts usually occurred only as part of a smuggling operation directed at violating English customs laws. Likewise, vessels “holing” customable goods not marked by customs officers and found at anchor or hovering, that is, cruising off the coast without proceeding on their voyages would be subject to seizure and condemnation of both the goods and the vessel.55 Not only were the goods and vessels subject to seizure without regard to citizenship, but a heavy fine could be assessed against the vessel’s captain.56 In these circumstances international law came to accept that vessels engaged in navigation hostile to the littoral State and directed at violating its laws would become subject to the littoral State jurisdiction without benefit of the high seas regime and its freedom of navigation. This is the nascent concept of innocent passage, whereby the high seas regime would not protect and preserve public navigation directed from coastal waters toward criminal acts within the littoral State. These customs laws are applied pursuant to a navigational protective jurisdiction as exercised in a defined belt of coastal waters within marginal sea areas and thus are a juridical servitude over the proscribed activities. They are also part of the ongoing balancing between the high seas regime and littoral State jurisdictions where both seek to protect and preserve the navigational freedom principle – the territorial sea crucible. The Exchequer Court dealt with customs violations whether occurring in port or within the defined statutory distances into the coastal sea. Primary customs jurisdiction in the Exchequer Court eliminated any secondary jurisdiction in the Admiralty Court or in the common law courts. If customable goods were taken to sea without payment of the applicable duty, the customs statutes were violated and the ownership of the goods was forfeited so that

54

55

56

Act of 1736, 9 Geo. 2, c. 35 § 23 (1736) (Eng.) (allowing for indemnifying Persons who have been guilty of Offenses against the Law made for securing the Revenues of Customs and Excise, and for enforcing those Laws for the future). Id. at §§ 6, 10, 13, 18, 25, and 27. See also Act of 1765, 5 Geo. 3, c. 43 §§ 7, 27 (1765) (Eng.) (providing for the better securing, and further Improvement, of the Revenue of Customs, Excise, and Inland and Salt Duties). Act of 1784, 24 Geo. 3, c. 47 § 26 (1784) (Eng.) (providing for the more effectual Prevention of Smuggling in this Kingdom); Act of 1719, 6 Geo. 1, c. 21 32 (1719) (Eng.) (preventing frauds and abuses in the publick Revenue of Excise, customs, stamp-duties, post-office, and house-money).

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

69

the goods took on the nature of flotsam, but only as a secondary matter would they thereby come within Admiralty jurisdiction. As a primary matter, when duty had not been paid on customable goods, the Exchequer Court jurisdiction appertained to the goods from the commencement of the voyage, and in that way had jurisdictional priority and was able to defeat both common law and admiralty jurisdictions.57 The Exchequer Court held exclusive subject matter jurisdiction over violations of the customs laws within a four-league custom zone, and this extension of protective jurisdiction over coastal waters applied as well from the foreign commencement of a voyage, and to hovering with the intent of violating customs laws on landing.58 Importantly, both Englishmen and foreigners were subject to these English customs laws, which evidences a conceptual change in asserted maritime protective jurisdiction, both by defining a seaward limit for littoral State extended protective jurisdiction and in recognizing that application of coastal State protective jurisdiction could be justified over foreigners when high seas activities were directed at violating municipal law. Note there is no evidence in the extension of customs jurisdiction that English law had abandoned the Royal Prerogative marginal sea occupation and possession concept, or the jus publicum public rights of navigation and fishing in navigable waters. But, importantly, this application of protective jurisdiction is a significant retrenchment from Selden’s ownership claim to the broad British Seas. On its face, extended application of customs laws became accepted under the high seas regime when the municipal navigational servitudes made applicable to foreigners involved passage through coastal waters which is no longer innocent, that is, noncompliant with municipal customs law. The customs “zone” concept considers the intent to engage in a criminal act, the evident means employed to affect that intent and the reasonable probability of achievement, all of which appears in the proscribed activities when performed within the customs zone enabling the littoral State to presume

57

58

Flotsam was exclusively in the Admiralty subject-matter jurisdiction. The Lady Windham’s Case, (1768) 86 Eng. Rep. 1081 (K.B.). The exchequer court asserted a prior jurisdiction when flotsam involved goods used in attempts to evade customs laws. Maria v. Hall, (1709) 127 Eng. Rep. 741 (C.P.); Pigeon v. Trent, (1675) 84 Eng. Rep. 426 (K.B.); Saunder’s Case, (1586) 72 Eng. Rep. 545 (Q.B.). Discharging goods out of a ship within a prohibited distance from shore was considered to be tantamount to placing the goods on land, and thereby raised the legal fiction of being infra corpus comitatus allowing municipal courts to assert jurisdiction. A Case of Custom, (1582) 77 Eng. Rep. 1299, 1300 (Exch.).

70

Chapter II Transmittal, Consolidation & Merger

confirmation of criminal intent directed toward its jurisdiction. All of which goes to a balance of littoral State protective interests and high seas regime navigational servitudes as ongoing within crucible of territorial sea definition. Exchequer Court rolls contain many reported adjudications for coastal water navigation activities determined to be sufficient evidence of intent to violate customs laws. For example, one vessel was caught illegally loading wine within four leagues of the coast and both goods and vessel were seized and forfeited.59 A second vessel, the Endeavor, was seized for failing to disclose an illegal cargo of proscribed goods, including muslin, china and earthenware, after reaching the first port in Great Britain. The Endeavor cargo had been loaded at a foreign port. The Exchequer Barons acknowledged this, but found the Endeavor in continuous violation of the illegal loading regulations from the time of entering customs waters at four leagues from the coast while headed for a British port on a voyage directed at violating the customs laws.60 The Exchequer customs jurisdiction was not territorially based in the marginal sea area, but rather is a clear example of extended navigational protective jurisdiction asserted over that marginal sea area to protect national laws where the intent to violate those laws within the upland territory becomes a presumption raised from activities undertaken within the outer limit of a coastal zone. A third vessel, the Uffro Anna, is described as “hovering within a port of this kingdom”. The Uffro Anna and her illegal cargo both were seized.61 Two additional cases of forfeited vessels also are instructive. The Willing Mind was declared forfeit when found at anchor (not proceeding on its voyage) with illegal goods on board within two leagues of shore,62 and the N.S. Concerio was caught in the act of smuggling rum.63 These customs laws and enforcements are designed to control navigation activities directed at violating the particular littoral State interests as defined by municipal law. Navigational protective jurisdiction, extended

59

60

61

62

63

The Happy Isabel, (1757) Ex. Ct. Memoranda Roll, 29–30 Geo. 2, Trinity Term, No. 24 (on file in the Public Record Office, London). The Endeavor, (1771) Ex. Ct. Memoranda Roll, 11 Geo. 3, Eas. Term, No. 108 (on file in the Public Record Office, London). The Uffro Anna, (1764) Ex. Ct. Memoranda Roll, 4 Geo. 3, Mich. Term, No. 222 (on file in the Public Record Office, London). The Willing Mind, (1773) Ex. Ct. Memoranda Roll, 13 Geo. 3, Eas. Term, No. 222 (on file in the Public Record Office, London). The N.S. Concerio, (1810) Ex. Ct. Memoranda Roll, 5 Geo. 3, Mich. Term, No. 222 (on file in the Public Record Office, London).

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

71

to encompass such activities, was accepted in the 18th century as not unreasonably interfering with the high seas regime freedom of navigation because the vessels involved had deviated from a general voyage to one directed at impacting the municipal law of the littoral State. No international law right associated with high seas freedoms would justify such pernicious deviation. In this way littoral State and high seas regime rights were consolidating in a navigable waters customs zone, and merging around the control of commerce under littoral State navigational servitude for protective jurisdiction, while respecting the highs seas freedom of navigational servitudes for innocent passage, force majeure, refuge and safe haven in marginal seas. The navigational freedom principle is the common point, and is protected and preserved by both municipal customs law and the high seas regime when general voyaging is not turned to violation of littoral State municipal law interests. In addition to the navigational servitude for customs jurisdiction, during the 17th and 18th centuries Great Britain applied admiralty jurisdiction for the preservation of persons, vessels and cargoes entitled to protection of English law.64 Admiralty jurisdiction was limited to matters having a “maritime essence” meaning that admiralty, like customs, was a subject matter jurisdiction extending over maritime matters without regard to underlying territorial jurisdiction – well almost. Unlike that of customs jurisdiction, the pertinence of admiralty jurisdiction for this volume is not where it applied, but where and why it did not apply. Common law jurisdiction was territorially constrained and not able to be extended into navigable waters outside the realm, that is, marginal sea areas. As a result admiralty law had a landward boundary fixed and enforced by common law, which boundary also served to become the baseline for the territorial sea, thereby demarcating the maximum landward application of high seas regime navigational freedom servitudes for general voyaging, that is, innocent passage. Admiralty subject matter jurisdiction applied to maritime torts and contracts, to maritime crimes and to prize cases. The torts and contracts cases are matters of English “instance” admiralty jurisdiction and of limited but important value as cumulative evidence showing littoral State rights

64

See 3 Blackstone 70; and John Godolphin, A View of the Admiral Jurisdiction 28, 61, 153 (1661). And see Letter Patent for Sir Thomas Salisbury, Admiralty Judge, in Reports of Cases Determined by the High Court of Admiralty 346–47 (R.G. Marsden ed., 1885).

72

Chapter II Transmittal, Consolidation & Merger

consolidating within the general voyaging concept as appeared in extended maritime customs jurisdiction. The Instance Admiralty Court took cognizance of all suits, exclusive of criminal acts and prize matters, arising from “all Sea-faring, and in all Sea-faring Causes”.65 Common law courts66 jealously protected their jurisdiction over matters of contract and tort (delict) and, when a possible – plausible – common law jurisdictional basis could be identified in a potentially maritime matter, a “prohibition” would be issued preventing the admiralty courts from holding or continuing to hold jurisdiction over a case.67 One example involves suits about contracts not dealing with the furtherance of a voyage and, therefore, non-maritime in nature. Such suits were not cognizable in admiralty and would be prohibited from being pursued in admiralty.68 Charter party contracts and insurance contracts are examples of agreements where maritime matters were involved but, because the essence of such contracts is not for the furtherance of a voyage, they, therefore, were subject to common law jurisdiction. Another example is when the Admiralty Court required majority owners to post a bond when minority owners objected to a jointly owned vessel proceeding on a hazardous voyage.69 If the vessel should be lost, enforcement of the bond would be at common law and prohibitions would be issued against any admiralty court attempting to enforce such bonds.70 The voyage began when the vessel crossed the line from the bodies of counties and territorial common law jurisdiction, leaving the realm, entering the navigable waters of the marginal seas outside the realm. Voyaging was the ultimate admiralty subject matter jurisdictional test. The place of contract execution and sealing determined admiralty jurisdiction only if it affected the nature of the contract.71 But, regardless that a contract 65 66

67 68

69 70

71

Zouche, supra c. i, note 50, at 17. Suit for seaman’s wages for work performed solely within a county. Didolph v. Bruce, (1699) 88 Eng. Rep. 1282 (K.B.). See supra note 63. Don Diego Serviente D’Acune v. Joliff, (circa 1724) 80 Eng. Rep. 228; and see Benzen v. Jeffries, (1697) 91 Eng. Rep. 994 (K.B.). Lambert v. Acretree, (1695) 91 Eng. Rep. 911 (K.B.). More v. Rowbothom, (1705) 87 Eng. Rep. 919 (Q.B.); and Knight v. Perry, (1690) 90 Eng. Rep. 373 (K.B.). Seamen’s wage contracts for a voyage against the vessel were within Admiralty jurisdiction regardless of being signed in port. The Peerless, (1860) 15 Eng. Rep. 182, 185 (P.C.); The Mariners Case, (1725) 88 Eng. Rep. 269 (K.B.); Sandys v. East–India Company, (1684) 90 Eng. Rep. 43 (K.B.); Mariners v. Jones, (1619)124 Eng. Rep. 7 (C.P.). But common law

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

73

was executed and sealed within the body of a county, admiralty jurisdiction would supersede common law jurisdiction if the contract were for furtherance of a voyage.72 If the parties executing a maritime contract outside the body of a county later came within the territorial jurisdiction of the common law, admiralty jurisdiction would still apply to the contract if it were for a voyage. For example, if a vessel were hypothecated on the high seas or in a foreign port out of necessity for the voyage (for example, to obtain monies for repairs or supplies), the vessel could later be libeled in admiralty in rem in the circumstance of a default when the vessel was found within the bounds of a county (port or harbor) regardless of common law territorial jurisdiction.73 It was the necessity of the contract for prosecution of the voyage which colored the contract and provided the jurisdictional basis for admiralty courts.74 Matters of contract which initially were not within the Admiralty Court’s instance jurisdiction, such as crewmen’s claims for wages or a shipwright’s claim for payment on work performed, remained subject to common law jurisdiction.75 At one time contracts without a maritime essence

72

73 74

75

could assert jurisdiction in personam when the owners were sued. Brown v. Benn, (1706) 92 Eng. Rep. 322 (K.B.). A seaman’s wage contract under seal was within common law jurisdiction. Mentone v. Gibbons, (1685) 100 Eng. Rep. 974 (K.B.). And seamen’s services rendered solely within a county were within common law jurisdiction. Ross & Walker, (1765) 95 Eng. Rep. 801, 802 (K.B.). See also Howe v. Napier, (1766) 98 Eng. Rep. 13 (K.B.); Day v. Searle, (1734) 93 Eng. Rep. 973 (K.B.); Buck v. Atwood, (1727) 93 Eng. Rep. 832 (K.B.); and Opy v. Child, (1693) 91 Eng. Rep. 33 (K.B.), giving additional examples where seamen’s labor came within common law jurisdiction. Seaman’s wage suit for services on the voyage, Osman v. Wells, (1705) 88 Eng. Rep. 864 (Q.B.); and for bottomry bond, The Royal Arch, (1857) 166 Eng. Rep. 1131 (Ad.). For examples of insurance contracts dealing with maritime matters see Michael Dalton, The Country Justice 232 (1665), discussing common law jurisdiction over insurance fraud for causing ship to founder. A contract to purchase a ship was within common law jurisdiction. Edwards v. Harben, (1788) 100 Eng. Rep. 315 (K.B.); Hook v. Morston, (1698) 91 Eng. Rep. 1165 (K.B.). Charter party contracts were within common law jurisdiction. Knight v. Perry, (1690) 90 Eng. Rep. 373 (K.B.). For cases dealing with common law jurisdiction over anchored vessels see Wood v. Hannah, _____ (1699), reprinted in 1 Arthur Browne, A Compendious View of the Civil Law 83 (1797). Contracts to be performed within a county came under the common law jurisdiction. Bidolph v. Bruce, (1699) 88 Eng. Rep. 1282 (K.B.). Johnson v. Shippin, (1703) 91 Eng. Rep. 37 (K.B.). Justin v. Bellam, (1702) 92 Eng. Rep. 38 (Q.B.); Mentone v. Gibbons, (1685) 100 Eng. Rep. 974 (K.B.); and Cossart v. Lawdley, (1607) 87 Eng. Rep. 159 (K.B.). A shipwright’s claim is made in Watkinson v. Bernardiston, (1726) 24 Eng. Rep. 769 (Ch.).

74

Chapter II Transmittal, Consolidation & Merger

but entered into “beyond seas” were within the jurisdiction of the Admiralty Court.76 However, that admiralty jurisdiction could be defeated when common law courts began to allow a fictional pleading of a contracting locus within a county rather than beyond seas.77 This is where admiralty subject matter jurisdiction began to develop with regard to a territorial boundary as pressed by common law jurisdictional assertions. Common law determined that enclosed coastal waters were within its territorial jurisdiction, that is, within the body of a county or the realm, so that the general voyage essential for admiralty subject matter jurisdiction would not apply because the voyage would not be underway until leaving the realm. When the vessel entered into marginal sea areas outside the body of a county it became subject to admiralty jurisdiction and high seas regime rights appertaining to navigable waters. Admiralty jurisdiction initially applied to all navigable waters, which were defined as coastal waters below the first bridges or weirs. That would have included enclosed areas of coastal waters, but that definition changed as common law courts extended territorial jurisdiction over rivers, harbors, bays, havens and estuaries said to be encompassed by counties and within the territory of the realm. There the announced common law territorial jurisdiction test became whether the coastal waters are contained behind projecting headlands, inter fauces terrae, and, therefore, are enclosed within the bodies of counties, infra corpus comitatus. A vessel would not be considered to have begun its voyage and come within admiralty jurisdiction until it left inland waters, that is, until it passed outside the body of a county into navigable waters (beyond the future territorial sea baseline). This did not affect the

76

77

Matters done on foreign soil but not of a “maritime nature” were excluded from Admiralty jurisdiction by the 18th century. Don Diego Serviente D’Acune v. Joliffe, (circa 1724) 80 Eng. Rep. 228 (Ad.). The Admiralty Court and the High Court of Chivalry took jurisdiction of such matters. The Isle of Man was outside the Kingdom of England. Isle of Mann Case, (1598) 123 Eng. Rep. 575 (C.P.). Likewise the Isle of Guernsey had its own law. Clugas v. Penaluna, (1791) 100 Eng. Rep. 1122 (K.B.). And the Isle of Jersey was classified as a foreign place. The Barbara, (1801) 165 Eng. Rep. 514 (Ad.). See discussion in Alan Harding, A Social History of English Law 162, 301 (1966). Contracts for ship supplies made inside a county, or outside a county but not required for furtherance of a voyage, were considered to be personal obligations of the owner and subject to common law jurisdiction. Coomes v. Jenkinson, (1673) 84 Eng. Rep. 788 (K.B.); Admiral, (1664) 83 Eng. Rep. 1088 (K.B.); The Spanish Ambassadour v. Buntish, (1615) 80 Eng. Rep. 1157 (K.B.). Morten v. Spencer, (1662) 83 Eng. Rep. 905 (K.B.); Houghton’s Case, (1610) 123 Eng. Rep. 789 (Ad.).

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

75

Royal Prerogative and the jus publicum rights of fishing and navigation in navigable waters, but it did come to define which coastal waters were inland, and where high seas regime servitudes would apply with littoral State extensions of protective jurisdiction. For example, a collision between vessels would not be within the admiralty jurisdiction unless occurring beyond such “enclosed” waters78 regardless of whether the situs was navigable in fact. Torts involving damages to persons, cargo or vessels caused in the course of a voyage were within the admiralty jurisdiction,79 but likewise not when the tort occurred within the body of a county because there it could not have been related to the furtherance of a voyage.80 And even when a voyage was underway, personal injury and torts not resulting from navigation of the vessel were not within the admiralty jurisdiction.81 Again, for example, assault and battery on the high seas came within the common law jurisdiction.82 The exercise of common law jurisdiction was achieved by fictional pleading of the event locus within the body of a county,83 not because the vessel is

78

79

80

81

82 83

Collision of vessels within the body of a county was within common law jurisdiction. Drewry v. Twiss, (1792) 100 Eng. Rep. 1174 (K.B.); Goodwin v. Tompkins, (circa 1669) 74 Eng. Rep. 110 (K.B.). Damages caused by a derelict vessel on the high seas could later be libeled in rem regardless of being located within the body of a county. Turner v. Smith, (1668) 82 Eng. Rep. 1161 (K.B.); Turner v. Neele, (1669) 83 Eng. Rep. 388 (K.B.); Duke of York v. Linstred, (1664) 83 Eng. Rep. 1169 (Ad.); Beak v. Thyrwhet, (1607) 87 Eng. Rep. 124 (K.B.). Damages from a derelict vessel in port were within common law jurisdiction. Le Seigneur Admiral v. Linsted, (1664) 82 Eng. Rep. 1042 (K.B.). Common law jurisdiction over anchored vessels and other vessels within the bodies of counties is discussed in Browne, supra note 72, at 83, app. See also Dorrington’s Case, (1619) 72 Eng. Rep. 995 (K.B.), showing that such vessels could be seized and attached at common law. Maria v. Hall, (1709) 127 Eng. Rep. 741 (C.P.); Polyxphen v. Branford, (1662) 83 Eng. Rep. 920 (K.B.). Actions at common law for high seas wrongful conversion of goods were not connected to the furtherance of a voyage and would lie in trover. Le Pool v. Tryan, (1655) 82 Eng. Rep. 871 (K.B.); and Caule v. Cooke, (1610) 84 Eng. Rep. 313 (K.B.). See Sparrow v. Caruthers, (1746) 93 Eng. Rep. 1153 (K.B.), for a common law case on damage to cargo placed in a lighter at the port of London. See Violet v. Blague, (1619) 79 Eng. Rep. 439 (K.B.). A defendant entitled to common law jurisdiction of a dispute could have an action for damages arising out of a libel filed with the Admiralty Court. Child v. Sands, (1693) 91 Eng. Rep. 33 (Ad.). Griffiths v. Dunnett, (1844) 135 Eng. Rep. 407 (C.P.). Because Admiralty jurisdiction was subject-matter based, and not based on location, it could not use the fictional locus pleading to defeat common law assertions of jurisdiction. Johnson v. Drake, (1611) 83 Eng. Rep. 1355 (Ad.); Admiralty, (1611) 77 Eng. Rep. 1355 (K.B.).

76

Chapter II Transmittal, Consolidation & Merger

“territory”. Indeed this concept of inland tidal coastal waters as territory within the body of a county eventually provided the demarcation point for territorial sea baseline segments as they would come to be delimited across bays, closed coastal waters and historic waters. Other maritime zones today are measured from that territorial sea baseline which for England, and the United States as its North American successor, began with the admiralty versus common law jurisdictional contest. Admiralty criminal jurisdiction was vested by commission under the great seal and extended to crimes committed outside the bodies of counties – within the coastal belt of marginal seas and the high seas. This criminal jurisdiction continued to work as a governmental navigational servitude. For example, murder and mayhem having a maritime essence came within admiralty jurisdiction even when occurring within the boundaries of counties – at least initially.84 But then, through the relentless aggrandizement of jurisdiction by the common law courts, admiralty criminal jurisdiction was slowly excluded, as had been admiralty instance jurisdiction.85 For example, in Lacy’s Case86 a murder committed on the foreshore in 1583 came within the exclusive admiralty court criminal jurisdiction because it occurred on the seabed, owned by the Crown under the Royal Prerogative, and was thereby outside the body of a county. By the 18th century common law had asserted jurisdiction over the foreshore as within the body of a county (from high-water mark down to low-water mark where today’s territorial sea baseline resides) and the coroner became empowered to investigate such deaths. In fact even when a death occurred aboard a man-of-war anchored in Portsmouth harbor in 1738, a criminal information was issued against the vessel’s captain for refusing to allow the coroner access to investigate.87 The harbor contained inland waters and was within the territorial jurisdiction of the common law –

84

85 86

87

Taking goods vi et armis on the high seas was within Admiralty jurisdiction as piracy. Don Diego Serviente D’Acune v. Joliff, (circa 1724) 80 Eng. Rep. 228 (Ad.). Admiralty criminal jurisdiction could extend within the bodies of counties for acts of murder and mayhem. The Eliza Jane, (1836) 3 Hag. Adm. 355; The Elleanor, (1805) 5 Ch. Rob. 39; King v. Marsh, (1615) 81 Eng. Rep. 23 (K.B.). And see Sandys v. East India Company, (1684) 90 Eng. Rep. 43 (K.B.). See Trial of Thomas Vaughan, (1696) 90 Eng. Rep. 1280 (K.B.). Lacy’s Case, (1583) 74 Eng. Rep. 246 (K.B.).Admiralty jurisdiction was first limited to “great ships”. The Eliza Jane, 3 Hag. Adm., supra note 183, at 355. King v. Solgard, (1738) 93 Eng. Rep. 1055 (K.B.).

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

77

the harbor was within the realm regardless that it contained navigable waters. These circumstances reflect foreshore and tidal areas of ports and harbors increasingly becoming considered as enclosed within counties – an internal waters concept consistent with today’s international law. Common law courts then began to push jurisdiction seaward by characterizing acts of piracy as felonies and asserting jurisdiction. Nonetheless the location of the crime within the navigable waters of a county was still essential, which was satisfied when a man received a fatal wound at sea but died from it within a county by placing the locus of the crime where the man died rather than where the wound was inflicted.88 It is extraordinary to consider that these applications of common law jurisdiction over time worked to delimit the landward extent of the high seas regime, but there it is. Goods taken from pirates present another example. When such goods were initially taken at sea by a piratical act, the Admiralty Court held jurisdiction.89 Piracy was a crime of a maritime nature and the involved goods took on the maritime nature of the crime. As a result the common law courts could not interfere with Admiralty Court jurisdiction even when the goods came ashore.90 But, if subsequent to landing the goods were sold in a market overt, the common law courts would assert jurisdiction to protect the buyer’s property rights acquired after sale.91 Moreover, goods taken by pirates within the bodies of counties, that is, on navigable waters such as the River Thames, could be characterized by the common law courts as goods taken by felony.92 Any attempt by the Admiralty Court to take jurisdiction over felony goods would result in issuance of a prohibition which would prevent the plaintiff party from proceeding in admiralty. Further, common law courts applied territorially based criminal jurisdiction to all persons regardless of citizenship. Common law applied to aliens both residing within the realm and simply traversing the realm. Aside from personal jurisdiction, such aliens were under an obligation of “local obedience” and aliens would be prosecuted for

88

89 90 91 92

The King v. Savage, (1648) 82 Eng. Rep. 542, 543 (K.B.); The Case of the Admiralty, (1610) 77 Eng. Rep. 1471 (K.B.). No. 1044, Piracy, (1605) 72 Eng. Rep. 886 (K.B.). Admiralty Jurisdiction, (1678) 86 Eng. Rep. 199 (K.B.). Queen v. Steer, (1696) 91 Eng. Rep. 832 (K.B.). Sheers v. Martyn, (1665) 83 Eng. Rep. 1244 (K.B.); Hildegrand, Brimston and Baker’s Case, (1616) 81 Eng. Rep. 488 (K.B.); Prinston v. Court of Admiralty, (1616) 81 Eng. Rep. 126 (K.B.); Opinion of the Justices, (1605) 73 Eng. Rep. 886 (Ch.); Spanish Ambassador v. Pauntes, (1616) 81 Eng. Rep. 381 (K.B.).

78

Chapter II Transmittal, Consolidation & Merger

violations of the common law from which they benefited while within the realm, that is, within common law territory.93 Admiralty and customs jurisdictions, however, not being based on territory, applied subject matter jurisdiction over criminal activities in marginal sea areas when the criminal act was directed against vessels, persons or property entitled to extended navigable waters protective jurisdiction. No general criminal jurisdiction was applied over coastal waters in the 17th or 18th century,94 showing that the “territory” of the territorial sea was one yet to evolve from Selden’s concept of maritime occupation and possession, and highlighting Selden’s understanding that a territorial base would be necessary for jurisdiction over foreigners. Vessels flying the British flag were thought to be within the admiralty jurisdiction as extensions of the sovereign’s territory outside the nation (bodies of counties).95 But the admiralty jurisdiction itself betrays this fiction of extended territory because, as a subject matter jurisdiction, admiralty was tied to transactions and events of a maritime nature, to voyages rather than to territory. Moreover, in three instances of murder on British vessels in 1709, 1799 and 1806, admiralty criminal jurisdiction was exercised to try the offenders, and in each case both the offender and the victim were aliens while the vessels were British.96 If the vessels were extended territory, common law jurisdiction would have applied, but it did not.97 Protective jurisdiction applied and admiralty took jurisdiction because the murders involved violated British admiralty law rather than British territory. Likewise acts of piracy subjected aliens to admiralty jurisdiction, even when perpetrated on other aliens far from British shores, because pirates were the enemies of all

93

94

95 96

97

“Local obedience” is discussed in Michael Foster, Crown Cases 185 (1762). See No. 188, (1641) 82 Eng. Rep. 434 (K.B.). Where parties and locus were all foreign jurisdiction would not be exercised. The Ida, (1860) 167 Eng. Rep. 3 (Ad.). Nonetheless, foreigners and their vessels were required to comply with local regulation for navigation, anchorage areas, pilots and liability for tort. King v. Neele, (1799) 101 Eng. Rep. 1367 (K.B.); King v. Lambe, (1792) 101 Eng. Rep. 44 (K.B.). See The Franconia (Queen v. Keyn), (1876) L.R. Ex. Div. 63 (Opinion of Lord Cockburn). And Calvin’s Case, (1557) 77 Eng. Rep. 384 (K.B.). The Peerless, (1860) 15 Eng. Rep. 182 (P.C.); 10 Halsbury at 319. Acow’s Case, (1806) 127 Eng. Rep. 741 (C.P.); Sauvajot’s Case, (1799) 127 Eng. Rep. 741 (C.P.); and Prevot’s Case, (1709) 127 Eng. Rep. 777, 778 (C.P.). Goods taken by pirates were considered to continue as the property of the subject, enabling common law to assert jurisdiction, while ignoring the ‘territoriality’ of the vessel. No. 188, (1641) 82 Eng. Rep. 434 (K.B.).

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

79

nations.98 Patently the admiralty jurisdiction as extended to try pirates was protective rather than territorial. Pirates could be executed and their property confiscated by admiralty courts holding commissions for criminal jurisdiction.99 Pirates seizing and holding a vessel and hostages for ransom would not necessarily have a maritime nature sufficient for admiralty jurisdiction but, because the ransom was tied to the ship, it became an admiralty matter. The hostage was allowed an admiralty action in rem against his ship, whereas the ransom paid was in furtherance of a voyage.100 Vice Admiralty courts in the American colonies also received commissions to try pirates, and did so consistently with civil law procedure (no jury) rather than common law.101 Statutes constricting admiralty jurisdiction or directing use of certain common law procedural rules102 were territorially based in England and did not apply in the North American colonies – regardless that the colonies patently were territory, but they were territory outside the realm and under exclusive constitutional authority of the Royal Prerogative before 1689. This became a sore point for certain governmental functionaries when Englishmen resident in the colonies were tried by Vice Admiralty Courts without juries – colonial juries usually acquitted!

98

99

100

101

102

Piracy was an international offence, and made sufficient to support a charge of treason. 1 Sir Edward Coke, Institutes of the Laws of England 134–37 (4th ed. 1797) [hereinafter Coke]. See also Act of 1745, 18 Geo. 2, c. 30 §§ 1, 2, 3 (1745) (Eng.) (amending an Act in the eleventh Year of the reign of King William the third, intituled an Act for the more effectual suppression of Piracy). Maritime essence was elemental to admiralty jurisdiction over criminal acts. Trial of Thomas Vaughan, (1696) 90 Eng. Rep. 1280 (K.B.). Ransom of a vessel or crewman, when of a maritime essence impacting the furtherance of a voyage, came within the admiralty criminal jurisdiction. Trantor v. Wilson, (1704) 87 Eng. Rep. 776 (Q.B.); No. 29 Anonymous, (1703) 88 Eng. Rep. 849 (Q.B.); Wilson v. Bird, (1695) 91 Eng. Rep. 911 (K.B.). Trials of pirates out of the realm were not restricted to common law rules, see Act of 1700, 11 & 12 W. & M., c. 7 (1700) (Eng.); An Act for the Effectual Suppression of Piracy; and Act of 1719, 6 Geo. 1, c. 19 (1719) (Eng.); and An Act making perpetual . . . An Act of the eleventh and twelfth years of the Reign of King Willis the Third, for the more effectual Suppression of Piracy, 6 Geo. 1, c. 19 (1719) (Eng.). Common law rules of procedure had been imposed on Admiralty Courts in the 16th Century. For Pirates, 28 Hen. 8, c. 15 (1536) (Eng.). Admiralty jurisdiction was as broad in the North American colonies as it had been in England. The Volunteer, 28 F. Cas. 1260, 1263–264 (C.C.D. Mass. 1834) (No. 16,991).

80

Chapter II Transmittal, Consolidation & Merger

Admiralty Court prize jurisdiction extended to all goods and vessels taken from an enemy in time of war or by authority of letters of marque and reprisal.103 The only prerequisite was that naval forces take the prize.104 Even a naval force operating by land was sufficient for application of admiralty prize jurisdiction. The prize jurisdiction was distinct from admiralty instance and criminal jurisdiction, but like them was a subject matter jurisdiction arising from authority over navigable waters events and activities, and navigable waters were largely coastal waters areas outside common law jurisdiction. Other nations applied similar prize court jurisdiction105 which confirms this authority as a littoral State servitude sufficient to control navigation and its derivatives especially in coastal waters among foreign nations at war. More to the point for the definition of inland waters and the crucible for territorial sea definition, neutral States prohibited the taking of prizes within their navigable waters because such actions impacted their neutrality, exposed the neutral littoral State to liability claims and were potentially harmful to the vessels, citizens and property of the neutral littoral State. The usual jurisdictional contest with common law was present, but for prize cases the territorial boundary was not the issue; it was the seaward boundary. Condemnation of a vessel, cargo or other res as a prize by the Admiralty Court affixed validity to the taking such that it could not be characterized

103

104

105

Smart v. Wolff, (1789) 100 Eng. Rep. 600, 610 (K.B.). Prize jurisdiction began to develop after 1520, and by 1616 was exclusive. Edward S. Roscoe, A History of the English Prize Court 18 (1924). Letters of marque were issued in the 17th and 18th centuries to private persons authorizing them to capture the vessels and cargos of an enemy, which letters preserved the actors from being charged as pirates. Captured vessels and goods were brought before the Admiralty Prize Court where condemnation as a valid prize vested ownership in the captor. Edward P. Statham, Privateers and Privateering 7, 9 (1910). But common law courts would prevent the Admiralty prize jurisdiction from being applied contrary to common law property rights acquired in those goods. Home v. Earl Camden, (1790) 126 Eng. Rep. 295 (K.B.). And common law allowed only its legal theories to establish property rights. Thompson v. Smith, (1667) 84 Eng. Rep. 99 (K.B.). Morris v. Bercley, (1699) 84 Eng. Rep. 277 (K.B.); Broom’s Case, (1697) 91 Eng. Rep. 34 (Ad.). Admiralty prize jurisdiction applied a distinct body of law. Le Caux v. Eden, (1781) 99 Eng. Rep. 375, 386 (K.B.). International law was applied, so long as consistent with municipal law. Huges v. Cornelius, (1684) 90 Eng. Rep. 38 (K.B.). See F.L. Wiswall, Jr., Development of Admiralty Jurisdiction and Practice Since , 22–23 (1970). See The Walsingham Packet, (1799) 165 Eng. Rep. 244, 246–47 (Ad.).

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

81

as an act of piracy, and that the littoral State obligations of neutrality were not violated in times of war. The enemy’s property interest terminated at the time of capture,106 and vested in the captors on condemnation by an admiralty court of the res as prize. But conflict among captors as to their respective moiety interests was at common law, not admiralty, because moiety ownership was not connected to the act of capture107 unless ancillary to the condemnation proceedings.108 Goods and vessels coming within admiralty prize jurisdiction remained there even when landed and sold.109 If the captors sold the prize goods in a market overt before condemnation then common law jurisdiction would attach, but not otherwise.110 And admiralty jurisdiction would deny condemnation to a prize taken in neutral waters.111 That is, the capture had to be on the high seas, outside and beyond the neutral waters of the littoral State. This effectively created an additional extension of littoral State protective jurisdiction as a neutral zone within the coastal sea belt, though internal waters were also involved in the neutrality obligation. This reveals why the territorial boundaries of counties were important; they enclosed neutral waters in ports, harbors, rivers, estuaries, and formed the baseline from which neutral areas of the marginal sea were delimited. The 17th century “King’s Chambers” were declared by James I to be such neutral waters, but the chambers were not claims to maritime territory. The King’s Chambers were coastal waters areas of extended protective jurisdiction declared to be neutral for the prohibition of hostilities which could endanger citizens and their property.112 This is consistent with the preservation

106

107 108

109 110

111

112

The Reynard, (1778) 165 Eng. Rep. 51, 52 (Ad.); and Verdale v. Marten, (1673) 84 Eng. Rep. 787 (K.B.). Beake v. Tirrell, (1690) 90 Eng. Rep. 379 (K.B.). Broom’s Case, (1697) 91 Eng. Rep. 34 (Ad.); Case 40, (1692) 88 Eng. Rep. 1135 (K.B.); and Somer’s Case, (1590) 74 Eng. Rep. 461 (C.P.). Radly v. Whitwell, (1672) 84 Eng. Rep. 524 (K.B.). Smart v. Wolffe, (1789) 100 Eng. Rep. 600 (K.B.); Sir John Watt’s Case, (1611) 123 Eng. Rep. 797 (Ad.). See Playes Case, (1663) 83 Eng. Rep. 1025 (K.B.). See Roscoe, supra note 103, at 12, 13. See also Twee Gebroeders (No. 1), (1800) 165 Eng. Rep. 422, 423 (Ad.); Twee Gebroeders (No. 2), (1801) 165 Eng. Rep. 485 (Ad.), applying customs laws. James I caused a map to be published delimiting a seaward neutral waters boundary, using a straight baseline method, drawn from headland to headland around England. Coastal pockets of water which were thereby enclosed were called the “King’s Chambers” and declared to be neutral, free of all hostile actions by warring vessels. Fulton, supra

82

Chapter II Transmittal, Consolidation & Merger

and protection of freedom of navigation as a governmental navigational servitude on coastal waters of littoral noncombatant States.113 Another 17th century example of extended protective jurisdiction is the earlier mentioned “flag salute”, a key component of Selden’s argument for occupation and possession of the “narrow seas”. This involved requiring vessels to slow for the king’s ships pending examination as to hostile or piratical purpose, and had no utility as evidence of occupation and possession of coastal waters. The flag salute is of question-able value even as evidence of extended protective jurisdiction. At best the flag salute may have served for the Estates General, as a republic, to acknowledge the flag of a royal government, England, or for a man-o-war to salute another man-o-war in tribute to its peacekeeping voyage, and thereby avoid errant hostilities. The French claimed the right of flag salute in the same waters as England, and the Dutch did not supply the salute in any acknowledgement of British dominion over the narrow seas or elsewhere.114 The flag salute argument was of no consequence in North America.

113

114

c. i, note 12, at 119, 222–23, 228. The following mistakenly understood the King’s Chambers to be territorial: Thomas A. Walker, The Science of International Law 171 (1893); H. Maine, International Law 80 (1884); F_____ Perels, Manuel De Droit Maritime International 44 (1884); Phillimore, infra c. v, note 169, at 178, 285; Creasey, infra c. v, note 167, at 232–33; Halleck, infra c. v, note 167, at 132; and Wheaton, infra, c. v, note 162, at 322–23, 326–28. See Reports of Cases Determined by the High Court of Admiralty, supra note 64, at 231–33. See also Act of 1400, Hen. 4, c. 11 (1400) (Eng.) (providing a Remedy for him who is wrongfully pursued in the Court of Admiralty); Act of 1391, 15 Rich. 2, c. 3 (1391) (Eng.) (assessing what places the Admiral’s Jurisdiction doth lie); Act of 1389, 13 Rich., 2, Stat. 1, c. 5 (1389) (Eng.) (detailing what things the Admiral and his Deputies shall meddle). Selden, supra c. i, note 8, at 118, describes the flag salute as follows: It was accounted Treason, if any Ship whatsoever had not acknowledged the Dominion of the King of England in his own Sea, by Striking Sail. And, they were not to be protected upon Account of Amitie, who should in any wise presume to do the contrarie. Penalties also were appointed by the King of England in the same manner as if mention were made concerning a crime committed in Territorie of his Island. It must be remembered that Selden wrote in preparation of a legal brief, which writing was later taken up by Charles I as the political position of England. Nonetheless, Selden should be viewed to be writing as an advocate overstating his case. However, Selden’s description is consistent with Sir Leoline Jenkins charge to the grand jury at Southwark Admiralty Sessions, February 18, 1680, dealing with charges involving the flag salute: Now the second part of your enquiry is of transgressions against the ancient laws and customs of the admiralty, such as are those relating to the flag; and in this enquiry you are to be careful, for thereon depends the honour of the nation, and if this be lost, all

B. British 18th Century Coastal Waters Belt Protective Jurisdiction

83

It is perhaps surprising that the common law played a key role in the definitional evolution of inland and coastal navigable waters. The running jurisdictional joust between common law and admiralty instance and criminal jurisdictions came to delimit the landward extent of maritime protective navigational servitudes and international law jurisdictions. At the same time admiralty prize jurisdiction and Exchequer customs jurisdiction were merging within a consolidated zone of coastal waters measured from the common law jurisdictional boundary at low-water mark and enclosed inland coastal waters. The seaward extent of littoral State jurisdictions was worked out later, but the common law baseline for exclusive territorial jurisdiction merely effectuated the landward bounds for governmental navigational servitudes to be applied seaward for admiralty and especially prize and maritime customs jurisdiction all participating in the crucible for territorial sea definition. Common law set the test for inland or internal waters as the point of territorial exclusion of high seas regime jurisdiction, evidenced by the absence there of any high seas regime public rights of innocent passage, force majeure, refuge and safe haven, or of admiralty (instance, criminal and prize) and maritime customs jurisdictions. That bumptious contest of English jurisdictions pertaining to navigable waters versus inland waters is, it is submitted, the precursor to juridical definition of historic waters and the delimitation of territorial sea baselines as now contained in the Geneva Conventions and the 1982 UNCLOS. The effect is to separate littoral State territory, including juridical inland waters and historic waters, from marginal sea areas where the high seas regime applies for the benefit of the navigational freedom principle and innocent passage.

sovereignty and dominion will be lost and consequently trade; and thereupon you are to enquire whether commanders do their duty in requiring respect to the King’s flag. Reports of Cases Determined in the High Court of Admiralty, supra note 64, at 255. Note that the charge is regarding whether “commanders do their duty”, and not whether some foreigner has transgressed English law by failure to salute. In practical application the flag salute did not prove much, and patently depended on which vessel had the larger armament. See Fulton, supra c. i, note 12, at 7, 9, 39, 478–81, 495–97; Rodger, supra c. i, note 16, at 350–51, 380, 383. Little is shown by way of territorial occupation and possession of the sea, but much is shown about the need for flag salute when slower naval vessels approached smaller vessels suspected of piracy or smuggling. Failure to salute created a presumption of illegal activity and justified the application of extended navigational protective jurisdiction.

84

Chapter II Transmittal, Consolidation & Merger

C. United States 18th Century Coastal Waters Belt Protective Jurisdiction The American People succeeded to the Royal Prerogative jus publicum rights of Englishmen, the public rights of navigation and fishing, on July 4, 1776, and these continue today as the “navigation servitude”. The United States government likewise succeeded the Crown as governmental trustee for these public rights in 1789, but other servitudes in the form of protective jurisdictions also were extended seaward by the new United States Government. The 18th century saw the consolidation and merger of these governmental navigational servitudes with the navigation servitude for public fishing and navigation. This would bundle such servitudes in the definitional crucible and come to produce the high seas regime territorial sea concept in the 19th century. The crucible forged a merger of the Selden/Grotius dispute contesting jurisdictions with the extended exercises of admiralty and customs protective jurisdiction. Ultimately the crucible accepted a limited distance occupation and possession of the coastal waters belt as a juridical adjunct of holding the upland littoral territory. Selden, to that extent, would prevail, and it is fair to say that Selden is the father of the high seas regime territorial sea. After 1789, as a government of delegated powers, the United States applied constitutionally-based navigational servitudes to regulate governmental and private activities and uses of inland and coastal navigable waters. Today that municipal law navigation servitude protecting the public rights of fishing and navigation is the basis for federal enrollment and licensing of fishing, commercial and recreational vessels of the United States, and for regulation of navigation on rivers, harbors and the Great Lakes. In addition the United States applies its municipal law “navigation servitude” to govern construction of port improvements, harbor works, saltwater barriers, groins and jetties, channel dredging, and the erection of aids to navigation on riparian and littoral shores, all in protection and preservation of the public right to navigation. The navigation servitude likewise provides the legal basis for construction of federal locks and dams and other navigation related structures on riverbeds and flood plains, as well as for the federal licensing of non-federal hydropower projects.115 It is an important and often unrecognized point that

115

Federal Power Act of 1935, 16 U.S.C. §§ 791a, 797e (2000); Magnuson-Stevens Fishery Conservation Act, 16 U.S.C. 1 §§ 801 (2000); Navigable Waters Construction Act, 33

C. United States 18th Century Coastal Waters Protective Jurisdiction

85

English public rights of navigation and fishing, rights of the English People rather than the government, rights held by the emigrant Englishmen who settled North America, are today present in the navigation servitude over the navigable waters of the United States. Additionally the United States applies its governmental navigational servitudes for protective jurisdiction to regulate foreign vessels in maritime areas subject to its jurisdiction, and to enforce its municipal laws against such vessels consistently with its international law obligations. The short time span between the adoption of the Constitution in 1789 and the beginning of the 19th century witnessed the United States succeeding to the exercise of national rights over the North American continental territory from Maine to Georgia. This period was one of significant development for governmental navigational servitudes as greater littoral State authority came to be exercised over coastal waters and the activities of both domestic and foreign vessels voyaging there. The merger of protective jurisdictions leading toward a territorial sea concept was occurring, bringing together protective interests and assertions within narrow belts of the marginal sea adjacent to the English and North American coasts. During the latter half of the 18th century the United States participated in this juridical consolidation process by applying the protective governmental navigational servitudes of defense, neutrality and customs in coastal waters. What took place evolved into a recognized and accepted occupation and possession of coastal waters, as Selden had argued, without elimination or restraint on the prior and parallel application of the municipal law public right to fishing, as well as the high seas regime public rights of general navigation within the coastal waters belt. British law and practice for marginal sea areas which had developed from about 1600 continued to be applied by the United States for the preservation and protection of navigation and its derivatives. After 1789 the coastal waters of the new United States continued to be controlled through national regulation of commerce and naval operations. This authority was assumed by the Federal Government under the United States Constitution through the establishment of exclusive jurisdiction over admiralty and maritime U.S.C. § 401 (2000); Navigable Waters Dumping Act, 33 U.S.C. § 419 (2000); Deepwater Ports Act, 33 U.S.C. § 1504 (2000); Vessel Registration Act, 46 U.S.C. §§ 1, 11 (2000); Vessel Documentation Act, 46 U.S.C. §§ 4, 11 (2000). See New England Electric Power Company v. New Hampshire, 455 U.S. 331 (1982).

86

Chapter II Transmittal, Consolidation & Merger

matters,116 and came to be exercised consistently to protect and preserve the common navigational freedom principle under United States municipal law. Early Congressional enactments show protective jurisdiction being applied to enumerated crimes such as murder, robbery, piracy, barratry and other felonies. These navigable waters crimes were rendered federally jurisdictional whether occurring in rivers, basins, bays or havens, or in coastal waters and the high seas outside the territory of any state; that is, beyond the then territory of the United States.117 Crimes on foreign vessels, not involving Americans and not directed toward the United States, were subject to the jurisdiction of a vessel’s flag nation which is consistent with the earlier British practice. United States laws did not purport to assert federal jurisdiction over foreign vessels for incidents unrelated to United States territory or people, which implies early recognition of the high seas regime servitude for a right of innocent passage in coastal waters. United States customs, admiralty and prize laws were applied to citizens, residents and foreign persons and vessels consistently with international law.118 Each such body of law could be exercised separately as protective or extended protective jurisdiction, but as a bundle their 18th century exercise begins to look more like full governmental dominium and imperium established over the coastal seas. This

116

117

118

U.S. Const. art. III, § 2, which reads, in pertinent, part as follows: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; . . . – to all Cases of admiralty and Maritime jurisdiction . . . . U.S. Const. art. I, § 8, which reads, in pertinent part. as follows: The Congress shall have Power To Define and punish Piracies and Felonies committed on the high seas and Offenses against the Law of Nations . . . . See for example, Act of 1794, 1 Stat. 381 (1794) (amending the Sedition Act of 1790); The Sedition Act, 1 Stat. 112 § 8 (1790) (providing for the punishment of certain crimes against the United States). See generally Act of 1796, 1 Stat. 489 (1796) (providing passports for ships and vessels of the United States); Act of 1793, 1 Stat. 305 (1793) (establishing the process for enrolling and licensing ships or vessels to be employed in the coasting and fisheries, and for regulating the same); Act of 1789, 1 Stat. 94 (1789) (explaining an Act, entitled An Act for registering and clearing Vessels, regulating the Coasting trade, and for other purposes); and Act of, 1789, 1 Stat. 55 (1789) (providing for the registering and clearing vessels, regulating the coasting trade, and for other purposes. Admiralty and maritime jurisdiction of the federal district courts is contained in the Judiciary Act, 1 Stat. 73 (1789). Prize jurisdiction was exercised by the federal district court where the prize was first brought. See The Abby, 1 F. Cas. 26–27 (C.C. Mass. 1818) (No. 14).

C. United States 18th Century Coastal Waters Protective Jurisdiction

87

effect of protective jurisdiction consolidation became especially strengthened because the United States coast is geographically remote from Europe, and consequently most North American voyaging would have taken place near that American coast rather than seaward in the broad Atlantic Ocean. Thus competing jurisdictions of other littoral States were not encountered, but the high seas regime was certainly present. For the United States the 18th century was a developmental period. The territorial sea concept was not only emerging but being defined along with the municipal law relationship between constituent state governments and the Federal Government – especially as to juridical authority over navigable waters. The 1789 United States Constitution provides the Federal Government with authority to collect taxes, duties and tariffs as well as to regulate international commerce.119 Beginning in the 18th century that authority over commerce was applied within the territorial United States, as well as seaward, over all persons and vessels navigating to or conducting commerce with the United States. Admiralty jurisdiction was likewise applied at this time for the protection of navigation and its derivative uses in navigable waters within and beyond the national territory. The traditional admiralty law of English courts, prior to 1776,120 formed the basis for that law applied later by American courts – as a subject matter jurisdiction over domestic and foreign persons and vessels without regard to whether there was underlying territorial sovereignty and dominion.121 Because the navigable waters of the United States include inland or internal waters, the common law boundary effect of English municipal law did not arise to restrict the landward extent of American admiralty instance jurisdiction. In contrast, federal admiralty law prize jurisdiction became especially pertinent for the identification and enforcement of a belt of neutral waters. It is in this aspect, where admiralty law became significant for consolidation of a measured marginal sea

119

120

121

U.S. Const. art. I, § 8, which reads in pertinent part as follows: The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . . Hale, supra c. i, note 56, at 18–22. See also Cremer v. Tookley, (1615) 78 Eng. Rep. 342 (K.B.); Towson v. Tourson, (1615) 81 Eng. Rep. 342 (K.B.). Admiralty jurisdiction applied as a federal matter without regard to state jurisdiction. See Gelson v. Hoyt, 16 U.S. (3 Wheat.) 246, 303, 311 (1818); Bains v. The James and Catherine, 2 F. Cas. 410, 412, 415–16 (C.C.D. Pa. 1832) (No. 756); see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 363, 386, 389, 403–04 (1793).

88

Chapter II Transmittal, Consolidation & Merger

jurisdiction that the United States undertook to enforce its declared neutrality during the 18th century wars among Great Britain, France and Spain. These early encounters with prize law and neutrality obligations brought the United States directly into the Selden/Grotius dispute as to whether coastal waters had been occupied and possessed by the littoral United States. Admiralty prize jurisdiction is perhaps the best 18th century example of international law working with municipal law for preservation and protection of navigation. Capture of hostile foreign vessels and cargos required adjudication to determine whether all was according to international law, and sometimes involved application of treaty provisions. The point at issue would be whether the capture had been in compliance with the law of war and without violations of littoral State neutrality, which neutrality could be lost if not defended – a matter of some importance to the United States. When adjudication was undertaken a municipal prize court conducted the session, and the significance of the prize law is evident in that even before adoption of the Constitution in 1789 the United States relied on a Congressional Committee and later on the Court of Capture Appeals to exercise that jurisdiction.122 After 1789, prize jurisdiction was vested in and exercised by the United States District Courts as part of their admiralty and maritime jurisdiction vested under the Constitution and the 1789 Judiciary Act, and extending over navigable waters without regard to underlying dominion but within the band of neutral coastal waters later equated with the territorial sea of the United States.123 Though prize law was not based on territorial jurisdiction, as in England prize law came to partake in defining the seaward extent of national jurisdiction by eschewing the legality of captures within neutral waters. In the circumstance of the United States this resulted in defense of American neutrality within coastal waters, a protective jurisdictional extension with which the United States became comfortable. The United States District Courts and the Court of Capture Appeals applied traditional 18th century international prize law essentially as it had been enforced by England through the then Admiralty Prize Court before 1776. In the latter part of the 18th century, Great Britain, France and Spain were at war. Vessels of these nations visited American ports and frequented American marginal seas at that time and, sometimes, engaged in capture

122

123

See the Committee of Congress for review of prize decision appeals from state courts, 7 J. Cont. Cong. 75. See 1 Stat. 73 (1789), for federal court prize jurisdiction beginning in 1789.

C. United States 18th Century Coastal Waters Protective Jurisdiction

89

events. This resulted in Thomas Jefferson, then Secretary of State, announcing the American position denying prize awards to those vessels violating American neutral waters and, thus, extending United States protective jurisdiction. Among Jefferson’s concerns was that combatant nations could have compensation claims against the United States for their vessels illegally captured in navigable waters subject to American neutrality jurisdiction.124 Jefferson’s concept was that American neutral waters should be enforced as far seaward as the Gulf Stream,125 indicating both that there was no traditional extension of North American coastal waters protective jurisdiction to that extent, and that any such jurisdiction would be based on specific protective purposes rather than any territorial concept. Alexander Hamilton likewise argued that the United States should extend jurisdiction over the coastal seas, but did not specify any distance, signifying both that there was neither historical nor contemporary extension of such jurisdiction, and that the breadth of jurisdictional extension under international law was undefined at the time.126 The Royal Prerogative coastal waters authority during the colonial period was not referenced for defining and maintaining United States navigable waters neutrality, which may simply be attributable to the as yet evolving understanding of Federal Government authority under the 1789 Constitution. Ultimately the United States acted to extend navigational protective jurisdiction, not territorial acquisition, for neutral waters zones extending seaward one-marine-league at the order of President George Washington.127 That same marine league came to measure the extent of the United States territorial sea into the late 20th century, and evidences the effectiveness of the prize law contribution to the ongoing consolidation process of littoral State protective jurisdictions extending over a belt of coastal waters. The extension of navigational protective jurisdiction for the preservation of neutrality placed

124

125

126

127

See the opinions of Justice Story in De Lovio v. Boit, 7 F. Cas. 418 (C.D.C. Mass. 1815) (No. 3,776); and see The Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825). See also Kynoch v. The S.C. Ives, 14 F. Cas. 888 (D.C.N.C. Ohio 1856) (No. 7,958). Letter from Thomas Jefferson to George Hammond, British Minister (Sept. 3, 1793), annexed to Treaty of Amity, Commerce and Navigation, Nov. 19, 1794, U.K.–U.S., 8 Stat. 116 (1794). Letter from Thomas Jefferson to George Hammond, British Minister (Nov. 8, 1793), in 1 J. Moore, Digest of International Law 702–04 (1906) (discussing the views of Alexander Hamilton). Id.

90

Chapter II Transmittal, Consolidation & Merger

an international law obligation on the United States to protect persons and vessels entering and leaving its ports and traversing its marginal seas. Captures could not be made by any belligerent nations against the vessels of any other nation, especially combatants within the new one-marine-league (three nautical or geographic miles) extension of neutral waters. Belligerents committing acts of war within those neutral waters were no longer owed any obligation of neutrality by the littoral State or by any other State, and could be taken as prize.128 Not only belligerent vessels but also neutral vessels could lose the benefit of the littoral State obligation to maintain neutral waters protection if they violated the international laws of neutrality. An example of neutral waters violation would be carriage of contraband by the vessels of one neutral into the waters of another.129 Neutral waters violations were viewed as an assault on the integrity of the littoral State, and the international law freedom of navigation servitude would be inapplicable because the voyage involved would not be general or innocent.130 United States District Courts exercised a non-territorial subject matter jurisdiction in prize disputes, which in the late 18th century meant suits wherein both the captor and the prize were foreign vessels. In that circumstance the courts could elect to adjudicate the prize taking, or refuse adjudication on a nascent forum non conveniens concept when Americans or their goods and vessels were not involved. Once jurisdiction was taken, refusal to award the prize was an option where the United States neutral waters status was compromised within a marine league of the coast.131 The significance is that a defined coastal waters area was being subjected to exclusive United States authority

128

129

130

131

There could be no valid capture of prizes in neutral waters. The Joseph, 12 U.S. (8 Cranch) 451, 455 (1814); Johnson v. Twenty-one Bales, 13 F. Cas. 855, 861 (C.C.D.N.Y. 1814) (No. 7,417). When a vessel illegally took a prize in neutral waters, restitution was required. Moxon v. The Fanny, 17 F. Cas. 942, 946–47 (D.C.D. Pa. 1793) (No. 9,895). Keane v. The Brig Gloucester, 2 Dall. 36 (Fed. Ct. of Capture Appeals 1782); and Miller v. The Ship Resolution, 2 Dall. 19, 21 (Fed. Ct. of Capture Appeals 1781). See Letter from Henry Clay, Sec’y of State, to __.Vaughan (Feb. 18, 1828), in 2 John Moore, Digest of International Law (U.S.G.P.O. 1906). See Mason v. Ship Balireau, 5–6 U.S. (2 Cr.) 177, 184 (1804). Suits for seamen’s wages by foreigners were usually heard, see e.g., The Jerusalem, 13 F. Cas. 559, 561–63 (C.C.D. Mass. 1814) (No. 7,293); and see Willendson v. Forsoket, 29 F. Cas. 1283–284 (D.C.D. Pa. 1801) (No. 17,682). Municipal jurisdiction over foreigners, such as pirates, see Talbot v. Jansen, 3 U.S. (3 Dall.) 105, 12–28 (1795); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 97, 104 (1820); and United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818).

C. United States 18th Century Coastal Waters Protective Jurisdiction

91

controlling the activities of foreign nationals and their vessels, sometime their naval vessels, for the protective purpose of preserving unimpeded general navigation in those neutral waters. The high seas freedoms of innocent passage, force majeure, refuge and safe haven were enforced because prizes could not be captured in the neutral waters zone by combatants. Littoral State maintenance of neutral waters protecting and preserving general navigation was an application of the common navigational freedom principle in the crucible coming to define the high seas regime territorial sea. The United States concern for enforcement of maritime neutrality obligations is akin to its early demonstrated concern with defense of coasts and harbors and the protection of commerce.132 President John Adams delivered a Special Session message to Congress in 1797 requesting adequate naval power to protect the young nation’s more than 2,000 miles of coastline.133 The national economic interests in the fisheries, as well as in interstate and international commerce, were enumerated as justification for establishing such protection. Again in 1798 President Adams addressed Congress, requesting naval power sufficient to act against depredations by French privateers in United States neutral waters.134 President Adams pointed out that the United States was helpless to fulfill its neutral waters obligations and that attacks by French privateers were occurring even within American harbors. Yet again, in 1800, President Adams addressed Congress, urging that the navy be strengthened and coastal fortifications be increased, arguing that protection was needed to preserve interstate and foreign commerce.135 All during this time contemporaneous treaty provisions required that neutral waters protection be afforded by the United States within a marine league of its coast,136 so that establishment of coastal protection seemed an obvious

132

133

134 135 136

See Act of 1798, 1 Stat. 561 (1798) (attempting to more effectively protect commerce and the coasts of the United States); Act of 1794, 1 Stat. 345 (1794) (providing for the defense of certain ports and harbors in the United States). James D. Richardson, A Compilation of the Messages and Papers of the Presidents 1789–1797, 136 (1896). Id. Id. at 307. See Treaty of Amity and Commerce, U.S.–Prussia, the Hague, art. 2, Sept. 10, 1785, in 2 Treaties and Other International Acts of the United States of America 163 (Hunter Miller ed., 1931), [hereinafter Treaties]; and Treaty of Amity and Commerce, Swed.–U.S., The Hague, art. 20, separate art. 2, Apr. 3, 1783, in 2 Treaties supra, at 140, 14–46.

92

Chapter II Transmittal, Consolidation & Merger

need. In addition, between 1778 and 1800 the United States became party to 14 relevant treaties, which are mostly bilateral agreements and generally include a grant of “most favored nation” status to the opposite party with regard to United States duties and tariffs. These treaties contain obligations of the United States to afford protection for foreign vessels in American waters as well as recognition of exclusive American fishing rights within its own coastal waters, of American fishing rights on the Grand Banks off Newfoundland, of reciprocal neutral vessel passports, of assistance to shipwrecked mariners, and of protection from piratical attacks in adjacent seas.137 The idea of littoral State exclusive governmental interests within coastal waters was taking hold. The treaty illuminating most clearly the nature of British and American littoral State jurisdictions in marginal sea areas at this time is the 1783 Treaty of Paris ending the War of the American Revolution 1776–1783. The Treaty of Paris in pertinent part identifies certain marginal sea rights off the United States coast.138 United States ownership of islands is confirmed within 20 leagues of its coastline, as depicted on the now famous “King George Map”, a Mitchell map appended to the treaty with the 20-marine-league line inscribed. The purpose of the 20-marine-league line was to preserve British ownership of Bermuda and the Bahamas from anticipated American claims, not to represent any claim of the former colonies or the United States to territorial rights in the broad marginal seas. It was not certain that all offshore islands had been discovered, and Great Britain did not want to pass inadvertently any islands it could retain. The Treaty of Paris as a whole confirms the evolved understandings of Great Britain and the United States that navigational protective jurisdiction had been and could be extended in marginal seas for the preservation of navigation and its derivative uses, especially fishing, without accompanying extraordinary claims of dominion and maritime territory as in the 17th century. Recognition of such continued American fishing rights is consistent with the governmental public trust

137

138

Examples are the Treaty of Amity and Commerce, U.S.–Neth., The Hague, arts. 5, 16, Oct. 8, 1782, in 2 Treaties, supra note 136, at 59, 64, 73; and Treaty of Amity and Commerce, Paris, Fr.–U.S., arts. 3, 7–13, 21, Feb. 6, 1778, in 2 Treaties, supra note , at 5–13, 17. Examples are the Treaty of Amity and Commerce, U.S.–Neth., The Hague, arts. 5, 16, Oct. 8, 1782, in 2 Treaties, supra note 136, at 59, 64, 73; and Treaty of Amity and Commerce, Paris, Fr.–U.S., arts. 3, 7–13, 21, Feb. 6, 1778, in 2 Treaties, supra note , at 5–13, 17.

C. United States 18th Century Coastal Waters Protective Jurisdiction

93

responsibility previously exercised by Great Britain. The Crown could not give by treaty what it did not possess already by law, which understanding confirms that Royal Prerogative jus publicum applied in colonial coastal waters, as evidenced by grants and franchises in colonial charters – Selden’s argument for occupation and possession of the British Seas reduced to its proper municipal law context. Further, the Treaty of Paris shows the navigational freedom principle to underlie the parallel public trusts of extended governmental protective jurisdictions and high seas regime innocent passage, again pointing toward the consolidated balance of jurisdictional rights within a marginal sea coastal waters belt – the territorial sea crucible in action. The extent of coastal waters belts came to be defined for the United States largely by neutrality obligations. Contemporary 18th century United States treaties with the Barbary States are instructive. These Barbary Treaties ended de facto states of war, and evidence the United States understanding as to the applicable breadth of neutral coastal waters, as do contemporary British treaties also concluded with the Barbary States. Morocco agreed in 1786 to extend neutral waters privileges to the United States within cannon shot of her ports.139 Tripoli and Algiers similarly agreed in 1797,140 and again Tripoli in 1797, to a reciprocal arrangement for such neutral waters rights.141 In this context, the 1794 treaty between the United States and Great Britain142 likewise contains mutual pledges requiring the vessels of each state to accord full respect to the municipal laws of the other in that party’s ports and waters. In 1795 the United States negotiated a neutral waters treaty with Spain and, in a 1799 supplemental treaty, Prussia makes neutral waters privileges reciprocal with the United States.143 Even France, which had been involved in a quasi-war with the United States, agreed by 1800 to accord neutral status 139

140

141

142

143

Treaty of Peace and Friendship, with additional article, U.S.–Morocco, Morocco, additional art., June 28, 1786, in 2 Treaties, supra note , at 217. Treaty of Peace and Friendship, U.S.–Tripoli, ___, art. 8, Jan. 3, 1797, in 2 Treaties, supra note , at 365; Treaty of Peace and Friendship, U.S.–Algiers, Algiers, art. 8, Jan. 3, 1797, in 2 Treaties, supra note , at 365. Treaty of Peace and Friendship, Tunis–U.S., Tunis, art. 10, Aug. 28, 1797, in 2 Treaties, supra note , at 256, 261. Treaty of Amity, Commerce and Navigation, G.B.–U.S., London, arts. 13, 23, Nov. 19, 1794, in 2 Treaties, supra note , at 256, 261. See Treaty of Amity and Commerce, July 11, 1799, Prussia–United States, Berlin, arts. 2, 3, 7, in 2 Treaties, supra note , at 434–35, 438; Treaty of Friendship, Limits, and Navigation, U.S.–Spain, San Lorenzo el Real, art. 6, Oct. 27, 1795, in 2 Treaties, supra note , at 323.

94

Chapter II Transmittal, Consolidation & Merger

to American vessels on the high seas, and each agreed to stay clear of the other’s coastal fisheries.144 These neutral waters and fishery provisions reflect acceptance by the United States and other nations that littoral States had recognizable legal interests in exclusive marginal seas fishery resources, as well as in meeting obligations of coastal waters neutrality respecting neutral vessels.145 The United States followed the British practice146 and, as reflected by these treaties, exercised only navigable waters protective jurisdictions over foreign vessels and citizens. Comparable navigational protective jurisdiction was exercised again by the United States in the 20th century, and again over British vessels, but this time as a customs law matter referencing liquor smuggling into the United States during prohibition.147 The littoral State jurisdiction agreed in these treaties is extended navigational protective jurisdiction. The apparent purpose is to protect and preserve general navigation and its derivative uses of marginal sea areas as well as the high seas consistent with the high seas regime. That protection and preservation evidences the common navigational freedom principle being received in international and in municipal law. The evidence appears in the acceptance of littoral State municipal law protective jurisdictions, and the public rights of fishing and navigation under the navigation servitude, together with the acknowledgement of high seas regime public navigational servitudes. For the territorial sea crucible the significance is identification of a seaward limit for extended protective jurisdiction by the littoral State; three nautical miles. This merger and consolidation process worked to enable the English Royal

144

145

146

147

Convention, Fr.–U.S., Paris, arts. 18, 27, Sept. 30, 1800, in 2 Treaties, supra note , at 472, 47. The United States was first to adopt a three mile belt of neutral waters. See Soult v. L’Africaine, 22 F. Cas. 805 (D.C.S.C. 1804) (No. 13,179). The three-mile territorial sea was a 19th century development. Henry S. Maine, International Law 55 (1888). The United States adopted the concept of a territorial sea, more than a neutral waters belt, in the 19th century. Cunard S.S.Co. v. Melon, 262 U.S. 100, 122–23 (1922). The similarity of British and American customs laws at this time is apparent in Woodruff v. The Levi Dearborne, 30 F. Cas. 525, 527 (C.C.D. Ga. 1811) (No. 17,988). The Fame, 8 F. Cas. 984–85 (D. Me. 1822) (No. 4,634). In contrast to the three mile belt of neutral waters reflected in The Fame, Delaware Bay was considered historic inland waters. See Opinion of the Att’y Gen. to the Sec’y of State, May 14, 1793, in Opinions of the Attorneys General (1791–1838) 13–14 (1851). Customs jurisdiction extended one league seaward of the coastline, except that it extended to vessels hovering even beyond one league. See The Antelope, 23 U.S. (10 Wheat.) 66, 124–25 (1825); The Appollon, 22 U.S. (9 Wheat.) 362, 370 (1824).

C. United States 18th Century Coastal Waters Protective Jurisdiction

95

Prerogative based concept of navigable waters occupation and possession to consolidate with littoral State exercises of protective jurisdiction within the coastal waters belt, while the high seas regime rights of innocent passage, force majeure, refuge and safe haven continued in marginal sea areas also contained within the coastal belt but seaward of common law territorial jurisdiction. Consolidation and merger of jurisdictions and navigation rights within that coastal waters belt was the crucible which ultimately became the Selden/Grotius solution with production of a territorial sea concept, achieving juridical balance between English municipal law assertions of maritime dominium and international law public rights to general navigation. Both protect and preserve the common navigational freedom principle as public rights held in public trust for the people of a littoral State in the high seas regime territorial sea and for mankind as a res communis public trust. *

*

*

In the 21st century municipal law application of the navigational servitudes encounters competing uses from a variety of governmental and non-governmental sources, including among others environmental interests, fishing and wildlife habitat advocates, recreational boaters, recreational fishermen, sportsmen, waterfront property owners, marinas, and private docks and wharves. These uses sometimes impact each other, and certainly may conflict with the purposes for which the navigation servitude has been, or is being, exercised. Importantly the operative general law formulation is that competing uses of navigable waters are restrained by the a priori public right to navigation held in public trust over those waters, so that the navigation servitude remains the ultimate arbiter of such competing uses. “Navigational servitudes as public rights” is a critical concept for both United States municipal law and international law of the sea, as now developing in parallel consistently with the common navigational freedom principle.

Chapter III Navigational Servitudes: Sources & Public Trust, Prerogative & Constitution The navigational freedom principle was carried to colonial North America by emigrant Englishmen as their public rights to fishing and navigation protected at common law,1 and held in constitutional public trust under the Royal Prerogative jus publicum2 rather than the jus privatum.3 Those rights, as evolved into servitudes applicable to navigable waters within the coastal belt, became implemented in colonial North America through both the Royal Prerogative and the colonial charter requirements for application of the laws of England.4 The jus publicum public rights to navigation and fishing eventually came to be continued in public trust for the American People under the Commerce Clause of the 1789 United States Constitution. Thus the concept of public trust under the Royal Prerogative jus publicum is critical to understanding how the federal navigation servitude exists today over the navigable waters of the United States.

A. Prerogative Public Trust The Royal Prerogative is both a complex subject and the governmental template for the organization of public and legal rights in colonial North 1

2

3

4

“From the first the colonists in America claimed the benefit and protection of the common law.” Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 23 (1883). For a discussion about the colonists and the common law, see id. at 21, 24. Jus publicum refers to the Crown’s governmental function to protect and preserve public rights and property. Jus privatum refers to the Crown’s individual rights, including property, as distinguished from its governmental functions. See supra pp. 122–27.

98

Chapter III

Sources & Public Trust, Prerogative & Constitution

America. The rights of colonial governments to govern, to enjoy benefits, privileges and franchisees, and the rights of emigrant Englishmen to the common law and to the public rights of fishing and navigation, each and all involve the Royal Prerogative. That is, the Royal Prerogative as ultimate and non-divestible governmental executive authority vested in the King, a governmental office, separate from but the source of local administrative authority assigned to colonial governments. This nascent federal arrangement later set the stage for the evolution of federal and state governments and the structure for resource management within the United States federal system,5 because local colonial administrative authority established by the Royal Prerogative affected a bifurcation between the national government and the colonial administrations. After 1776 the state governments, as successors to colonial administrative predecessors, held “police powers”,6 whereby state governments may recognize public navigation as a right of its citizens. But state governments hold no authority to preserve or to act on behalf of that right outside the police powers for establishing peace, order and good government; that is, there must be a police power issue for state government regulatory action over navigable waters. There is no state “navigation servitude” creating an a priori public navigation right as a matter of state common law. As a result, state exercise of the police powers on behalf of navigation are solely governmental regulatory servitudes and must have a public purpose, and will require compensation to the owners of affected riparian or littoral estates. In contrast, the jus publicum public right of navigation was always a national a priori right of the English People, not a right of colonial governments. As such the jus publicum public rights passed neither to the state governments nor to the people forming their resident populations. The reformation of colonial governments into member state governments of the United States could not change these public rights of navigation and fishing as being held by the national population and, therefore, the rights of the English People to navigation and fishing both remained and became the national public rights of the successor American People. Those national public rights now are protected and preserved by the Federal Government under its constitutional authority over commerce. The a priori public right of the American People to fishing and navigation,

5 6

Story, infra note 122, at 22. See infra pp. 128, 141.

A. Prerogative Public Trust

99

expressed as the “navigation servitude”, has been expanded to apply over the navigable waters of the United States including inland waters, such as rivers and harbors within state territory, as well as over closed coastal waters and the marginal sea belt now forming the territorial sea.7 Under the 1789 Constitution of the United States the concept of “navigable waters” has been applied within the Commerce Power to apply not only to tidal waters and high seas but to all waters used in national and international commerce.8 But this expansion is complex and, as historically derived from the Royal Prerogative public trust as well as the constitutional organization of the United States, requires explanation. The concepts of Royal Prerogative and public trust are ancient and constitutional. Understanding the public trust requires understanding the constitutional role of the Royal Prerogative in the government of England. That role is almost by definition a public trust, a caretaker arrangement, because it vests the Crown with responsibility for the administration of a priori public rights among the beneficiary English citizens, both as custodian for jus publicum public rights to fishing and navigation, and as legal owner of real and personal properties to be granted under the jus privatum by franchise or licenses for particular private beneficiaries. The distinction with navigation and fishing is that the public, not the Crown, ultimately held those rights a priori, while the Crown administered them by extending constitutional protection and preservation under the jus publicum. The Crown in contrast ultimately held the jus privatum property rights a priori. The English colonies in North America were chartered and established by the King through the application of Royal Prerogative authority – not by parliamentary action. The 17th and 18th century juridical concept of the Royal Prerogative is that of a repository of residual governmental executive power. A written constitution would probably have assigned the Royal

7

U.S. Const., art. I, § 8, cl. 3, which reads as follows: Clause 1. The Congress shall have the power . . . *

8

*

*

Clause 3. To regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes; . . . See infra pp. 144–46. Erwin Chemerinsky, Constitutional Law 2401–441; L___ Friedman, A History of American Law 258–59 (1973).

100

Chapter III

Sources & Public Trust, Prerogative & Constitution

Prerogative to the executive branch of government and supplied some benchmark definition of extent and application. However, without such written instrument the contemporary English constitution defined the concept of “Royal Prerogative”9 largely in terms of particular applications exercising the power of “kingship”;10 that is, its incidents. Over time those accumulated incidents came to reflect the evolving governmental executive power of the King,11 and after the Glorious Revolution of 1688–1689, which saw the abdication of James II and the accession of William & Mary to the throne, that power was limited by the expansion of parliamentary power through the Kings’ ministers.12 Simply, the Royal Prerogative should be understood as referencing the executive power of the national government vested in the office of King,13 and charged with governmental responsibilities among which are protection and preservation of jus publicum public rights. Moreover, that executive power was applied to require colonial governments to comply with their respective charter terms, and particularly English law. This is the executive power of the national government exercised both to grant colonial charters for governance in accord with the laws of England, and to protect and preserve the national non-governmental public rights of Englishmen to navigation and fishing under the jus publicum. The first written statement on the Royal Prerogative, Parerogativa Regis (Edward I or Edward II), is of obscure origin, which obscurity gave rise to a dispute continuing through to the reign of Henry VII as to whether Parerogativa Regis was either a memorandum noting some incidents or elements of a governmental Royal Prerogative or a statute establishing certain prerogative rights.14 The dispute was one about defining the King’s executive power, and does not seem to have had much practical effect on the Royal Prerogative as understood by the North American Colonies and their emigrant Englishmen in 1776. For present purposes the dispute is resolved by recognition that the Royal Prerogative, regardless of the statutory status of

9 10 11 12 13 14

Frederic W. Maitland, The Constitutional History of England 343 (1908). C.H. McIlwain, The High Court of Parliament 304 (1910). Id. J__ DeLome, The Constitution of England 217, 219, 227, 231 (1776). Albert Venn Dicey, The Law of the Constitution 351, 353, 355 (1886). See generally Margaret McGlynn, The Royal Prerogative and the Learning of the Inns of Court (2003).

A. Prerogative Public Trust

101

Praerogativa Regis, is accepted and protected at common law.15 The Royal Prerogative is constitutionally based, and though not derived from common law it is a governmental executive authority recognized and enforceable at common law; hence the usual reference to its being “part of the common law”. This has caused confusion in the United States where the common law passed to the states, not to the Federal Government. Thus the Federal Government is a creature of delegated powers, powers derived from the American People as a nation, which people continue to hold juridical rights independent of the delegated constitutional authority, as plainly stated in the Ninth Amendment to the Constitution of 1789. Simply put, the American People, not the Federal Government, are sovereign and the constitutional authority of the Federal Government depends on the ultimate sovereign right of the American People to implement and continue a particular form of government. Thus the rights of the American People are not a creation of the Constitution of 1789 nor of any prior governmental organic instrument, but rather are held as extra-constitutional juridical rights as plainly stipulated by them in the 1776 Declaration of Independence.

15

Writers of the 16th to 18th centuries consistently identify the Royal Prerogative as part of the common law, with the result that the common law protects and preserves the Royal Prerogative as well as the public rights. Notably the issues of the 17th century leading to the Glorious Revolution of 1688–1689 examined the Royal Prerogative in terms of the King’s political power to deal with Parliament before the Commonwealth, and whether the King could act independently of Parliament after the Restoration and then the Glorious Revolution. See Timothy D. Brecknock, Droit Le Roy 15–16, 32 (1764); John Brydall, A New Years Gift For The Anti-Prerogative Men, 17, 19 (1682); David Jenkins, The Works of the Eminent Judge Jenkins 12, 20, 61 (1648); Staunford, supra c. i, note 66, at fol. 38 cap. II. Ultimately the King’s ability to take political or constitutional action under the Royal Prerogative came to be through his Cabinet of ministers as Members of Parliament. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th ed. 1915); J___ Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England 1–4 (2d ed.)(1849); I Abbott Lawrence Lowell, the Government of England 18, 26 (1917); II Abbott Lawrence Lowell, the Government of England 18, 26 (1917); and W. Ivor Jennings, the Law and the Constitution 85, 87 (5th ed. 1967). The question of the Royal Prerogative is distinct, and does not involve the jus privatum rights of the Crown to ownerless property, Royal fish, waste, demesne lands, dedoands, et cetera. See Robert Constable, Praerogativa Regis xiv, xiviii (S___Thorne ed., 1949); O. Hood Phillips, Constitutional and Administrative Law 304, 306, 308–09 (8th ed. 2001).

102

Chapter III

Sources & Public Trust, Prerogative & Constitution

Constitutionally, the executive authority of national government is delegated – not passed – to the Federal Government, but how that delegation is exercised in public trust for the purpose of the preservation and protection of the public rights to navigation and fishing requires consideration of the Royal Prerogative prior to 1776. The Royal Prerogative executive authority encompasses functions as broad as national defense16 and as narrow as the feudalbased allocation of ownerless property. The Royal Prerogative is the King’s empowerment to effect peace, order and good government through the executive authority of the State. Blackstone17 writes that the Royal Prerogative

16

17

For example, defense of the realm was a key responsibility of the King under the Royal Prerogative, and could be exercised as a “purveyance” to take certain private property for public purposes such as the prerogative right to take saltpeter (saltpetre). Purveyance did not constitute a present property right to a res, but only right to take the res on an “as needed” basis for such national governmental purposes. As a purveyance exercise, the King could afforest woods of individuals, subjecting them to the special forest laws, and take supplies coming to an individual, but only with appropriate compensation because there was no present property right in the King. Jennings v. Rocke, (1620) 81 Eng. Rep. 994 (K.B.). In this way timber and wines could be taken for the public benefit and provender of the King. 16 Viner 563. Compulsory purveyance was abolished by the first half of the 16th century. Susan Brigden, New Worlds, Lost Worlds 184 (2000). Further, as part of the prerogative applied for defense of the realm, the King had authority to impress seamen, and the King could grant authority to exercise this prerogative right to the Admiralty – but compensation was paid to the seaman. Because this prerogative right of impressment is grounded on immemorial usage in the King it carried the same weight as statutory law, Broadfoot’s Case, (1743) 168 Eng. Rep. 76, 83–84 (Crown Cases), which parallels the common law jus publicum status of the immemorial public law rights to navigation and fishing. Purveyances are contrasted with other Royal Prerogative incidents, also held for national governmental purposes, which constitute a present or pre-existing property right in a particular type of res, such as silver and gold mines – a subject may dig saltpeter for his own use, but not gold and silver. The Case of the King’s Prerogative in Saltpeter, (1606) 77 Eng. Rep. 12295 (K.B.). Rather than a feudal base, this power as exercised by either the United States or the several states would be based in the concept of a government eminent domain right, to so act in taking private rights for the public benefit and purpose. Unlike the other prerogative rights, the King could never acquire the jus publicum public rights of navigation and fishing, but only the administration of them, which is the basis for the “trust” that exists today under the United States Constitution. As to the significance of publicist writing in formation of the common law see Cooley, supra note 1, at 52, where he writes: “The evidence of the common law consisted in part of the declaratory statutes we have mentioned, in part of the commentaries of such men learned in the law as had been accepted as authority, but mainly in the decisions of the courts applying the law to actual controversies.”

A. Prerogative Public Trust

103

is a “special pre-eminence, which the king both hath, over and above all other persons, and out of the course of the common law, in right of his regal dignity.”18 (Emphasis added.) Translated this means the term “king” reflects an office of government vested with certain rights or responsibilities which neither are held by any other individual, nor vested in any other office.19 “King” is a constitutional and juridical concept, historically evolved from the 1066 establishment of royal authority by William I to the concept of the “King in Parliament” which evolved after the 1688–1689 Glorious Revolution. The King exercising that Royal Prerogative constitutional power is the governmental source of North American colonial charters issued prior to 1688 without the involvement of Parliament. There was a meaningful juridical distinction between governmental executive authority exercised as the “King out of Parliament”, compared with the post-1689 concept of executive authority based on the high seas regime rights appertaining to navigable waters subject to “King in Parliament”.20 That distinction is reflected in the application and exercise of the Royal Prerogative both as contained in the pre-1689 colonial charters (King out of Parliament), and as applied by the King through direct royal government for the North American colonies (King in Parliament) following the revocation of most charters after 1744.21 That revocation brought Parliamentary authority to North America through the King’s ministers and Parliament’s legislation, so that governmental action after 1689 took place as the acts of the “King in Parliament.”22 This intrusion of Parliament, as applied to the internal affairs of North American colonial governments in the 18th century, was not accepted by the resident and emigrant Englishmen. To be clear, while the role of the King in Parliament and its relationship to colonial government is central to the dispute of the 1776 American Revolution, it is not central to the Royal Prerogative jus publicum whether administered pursuant to the King’s colonial charters or through

18 19 20

21

22

1 Blackstone 232. McGlynn, supra note 14, at 101, 225, 229. C. H. McIlwain, The American Revolution, 1–2 (1923). The “King in Parliament” acted for matters within the Realm, which did not include North America. The “King out of Parliament” acted under the executive authority of the Royal Prerogative, and issued charters for the North American colonies containing certain grants and franchises reminiscent of a manorial grant. Id. Only the charters of Connecticut and Rhode Island were extant as of 1776, and in fact became their state constitutions. “King in Parliament” as discussed supra, note 20.

104

Chapter III

Sources & Public Trust, Prerogative & Constitution

direct Royal governors. That is, the jus publicum containing the public rights of navigation and fishing in navigable waters – the national public rights of Englishmen protected at common law – was a public trust and remained unaffected by the revolutionary events of 1688–1689. The North American colonial experience is a clear application of this royal responsibility outside the realm under the constitutional executive power of the King – the Royal Prerogative – whether “in” or “out” of Parliament. There is a mix here of common law and constitutional authority. Common law conceived of the King as having a “body politic” and a “body natural”, with the royal estate and dignity contained in the body politic and including the body natural.23 In other words, “King” is a constitutional office vested with an undefined residuum of executive power, as described by a 1340 opinion: The King cannot dispose of his crown by his testament, though it be under the great seal; nor of the ports of the kingdom, nor of the jewels of the crown; nor of power to pardon treason or felony within this kingdom; nor of power to make judges, justices of the peace, or sheriffs; nor of the year, day and waste of persons attainted of felony; nor of such things which concern government in a high degree; of all these the King can neither make a grant nor a testament. The King may grant goods and chattels by the word of his mouth; he may grant the lands which he has in jurae coronae, by his letters patent, or by his will under the great seal. By all the judges.24

Lands held “jurae coronae”[sic] or jura regalia, included those areas of North America later made subject to patents and charters for the settlement of English colonists and the institution of colonial governments within which the King’s Royal Prerogative rights and responsibilities would appertain. Those rights and responsibilities are the foundation for the development of local legislatures and courts which maintained colonial governments on behalf of the King. This dual layer of government formed by colonial administration subject to national authority of the Royal Prerogative,25 it is submitted, is 23 24 25

Dutchy of Lancaster Case, (1561) 75 Eng. Rep. 325, 327 (Q.B.). Anon. No. 55, (1340) 145 Eng. Rep. 56 (Exch.). O_ Brownsen, The American Republic, its Constitution, Tendencies, and Destiny. 10506 (1865), which reads in pertinent part as follows: The English common law was recognized by the colonial courts, and in force in all the colonies not by virtue of colonial legislation, but by virtue of English authority, as express in English jurisprudence. The colonists were under the common law, because

A. Prerogative Public Trust

105

the foundation of the federal system which came into being under the 1789 United States Constitution. Query whether there would have been a 1776 revolution – which at inception was a civil war – had this de facto federal government been recognized for its utility in holding together disparate governmental interests in a dispersed empire. The colonists were familiar with a strong national government, and were not fond of the effects occasioned by Parliamentary intrusion ignoring this de facto federal structure after 1689. Nonetheless, the North American colonists understood themselves to be Englishmen and continuously asserted their common law rights as Englishmen – not as colonists – and that is important for inclusion of the navigation servitude under the commerce power of the United States Constitution. The Royal Prerogative executive authority over jurae coronae lands had enabled the King to issue Exploration Charters and Settlement Charters to individuals and corporations for occupation and possession of North America, as discussed in Chapter II. Those Settlement Charters contain grants of governmental authority, including but not limited to the right to establish courts and to provide local administration, but all subject to appeal and to the King’s revocation right under the Royal Prerogative. Such grants did not divest the national government, the King, of its Royal Prerogative authority, and allowed the grantee to participate in the benefits of the Royal Prerogative incidents, though always subject to the ultimate right and executive authority of the nation through the office of King. The point frequently missed is that the charters were not the underlying source of the colonists’ legal rights. Rather they were the source only of the charter grantee’s governmental administrative rights and proprietary franchises, be the grantees proprietors, individuals or corporations. Thus, the colonists remained Englishmen, and as such were entitled to their vested common law rights and

they were Englishmen, and subjects of the English sovereign. This proves that they were really one people with the English People, though existing in a state of colonial dependence, and not a separate people having nothing politically in common with them but the accident of having the same royal person for their king. The union with the mother country was national. . . . The people of the several colonies being really one people before independence, in the sovereignty of the mother country, must be so still, unless they have since by some valid act, divided themselves or been divided into separate and independent states. Id.

106

Chapter III

Sources & Public Trust, Prerogative & Constitution

to common law protection of their public rights under the laws of England, neither of which the colonial charters and charter grantees could impact. When all but the Connecticut and Rhode Island charters were revoked by 1744 the colonists largely came under the direct rule of Royal Governors appointed by the King pursuant to further exercise of the Royal Prerogative. Those Royal Governors could not, and did not, attempt to extinguish the public rights of Englishmen protected by common law, including the jus publicum rights of navigation and fishing. Nor could Parliament restrict the public rights of these colonial Englishmen – the ultimate point of North American colonial dispute in 1776. It is essential to understand that the jus publicum public rights protected by the Royal Prerogative were extant only as the colonists were Englishmen, and not as they were residents of a particular colony, nor as the King may have become constrained after 1689 to act as the “King in Parliament”. The existence, protection and preservation of jus publicum public rights were constitutional matters of public trust. Because of its feudal origins writers addressing Royal Prerogative incidents prior to 1688 were concerned generally with the King’s developing relationship to Parliament,26 and especially with the King’s right of primer seisin in feudal titles, mesnalty revenues and wardship rights (money for the Crown).27 Nonetheless, throughout the evolution of the Royal Prerogative and its incidents, the jus publicum public trust continued to preserve navigation and fishing as non-divestible public rights which were not subject to the King’s jus privatum grants.28 An example is contained in Parmeter v.

26

27 28

McIlwain, supra note 20, at 337 writes, “[T]he fact remains that the King was recognized by the people as the proper centre of the state, but that they also regarded the King and people as dependent on each other, both parts of the whole–the ‘commonwealth.’” See generally McGlynn, supra note 14. The public right of fishing in navigable waters could be subjected in certain circumstances to a Royal Prerogative grant of a several fishery, but fisheries either public or several could not be conducted so as to constitute an obstruction to navigation. The King was responsible for maintaining unimpeded navigation in navigable rivers as well as along the coast. The maintenance of navigation included buoying and clearing channels, not only of discarded ballast but also of permanent fishing equipment such as weirs, both stone and wattle, as well as sluices. See John Brydall, Jura Coronae 98, 109 (1653); Robert Hall, An Essay on Rights of the Crown in the Sea-Shores of the Realm 3–4, 46, 72, 75, 97 (1830); S. Moore & H. Moore, The History and Law of Fisheries xxxviii–xliii, 89, 91, 166 (1903); Henry S. Theobald, the Law of the Land 1–3, 13, 22–25, 56–58, 61–64, 68–71, 73–76; and see Edward Coke, The Twelfth Part of the Reports of Sir Edward Coke 88–89 (1677); Grant of Balastage and Buoyage to Trinity House, 36 E. 130.

A. Prerogative Public Trust

107

Attorney General where in 1813 the public right of navigation is deemed superior to a Royal franchise issued to authorize the erection of a wharf on the foreshore.29 The foreshore was within the King’s Royal Prerogative jus privatum, but subject to the jus publicum public rights of navigation and fishing.30 Another example is that the King could grant a several (individually held right) fishery in non-navigable waters out of the jus privatum, either “in gross” or “appurtenant to a manor”, but the right to the navigable waters fishery remained in the public jus publicum and could not be affected by private interests created under jus privatum grants. The one exception for a navigable waters several fishery, whether granted or prescribed, is where the grantee could effect an occupation demonstrating possession (seisin), as where a grant of the submerged soil was involved. A several fishery could also be granted by the King or be based on a prescription in navigable waters, which presumed a grant from the King from time immemorial ante-dating or of coincident origin with the public right. The King’s right to grant a several fishery in navigable waters is often a point of confusion because of the coincident public fishing right in those waters, but they are distinct rights, and several fisheries were ultimately dependent on the legal capacity of the grantee to achieve seisin of the involved area. Thus, grants and franchises of jus privatum rights enabled an individual or an entity to participate in the exercise and enjoyment of the particular prerogative incident or right granted,31 without creating an independent right in the grantee apart from the King. The jus publicum public fishing and navigation rights were independently held by Englishmen apart from the King, and in contrast even ancient jus privatum franchises again merged in the King when extinguished. Once merged in the King those jus privatum rights and any property held under them required specific words32 to be granted again.33 Importantly, the jus publicum rights always remained in the public

29 30 31

32 33

Parmeter v. Attorney General, (1813) 3 Eng. Rep. 713 (H.L.). Id. Prerogative rights of kingship and tenurial obligations are explained in McGlynn, supra note 14. She examines the readings of “serjeants” on the Prerogativa Regis, dating from the reign of Edward I or Edward II, and listing certain prerogative rights either as a statute or as a memorandum of certain common law prerogative incidents. Id. at 258, and generally. This developmental period largely predates the 17th and 18th century basis for the exercise of prerogative right to charter North American colonies under the English Crown. Anonymous No. 3, (1327–1377) 72 Eng. Rep. 309 (K.B.). Anonymous No. 1, (1327–1377) 72 Eng. Rep. 308, 309 (K.B.); Queen and Broadfoot’s Case, (1583) 74 Eng. Rep. 240 (K.B.); Cromer v. Cranmer, (1566) 74 Eng. Rep. 247 (K.B.).

108

Chapter III

Sources & Public Trust, Prerogative & Constitution

to be administered by the King or his colonial government on behalf of the public, this, it is submitted, is a public trust. 34 Frequently privileges, liberties and franchises were contained by specific words in the grant of a manor by the King, and they could be held independently of the manor grant, thereby surviving extinguishment of a coincident manor,35 but not achieving independent existence comparable to jus publicum public rights. Also, the Royal Prerogative could be exercised to authorize a fair, market, leet or hundred, and these could be granted in gross rather than appending to a manor, but though independent of the manor grant they were not independent of the King as were jus publicum public rights, and such grants remained jus privatum matters.36 In this regard the constitutional concept of Royal Prerogative jus privatum merger is significant because it evidences the underlying right granted as continuing in the ultimate governmental executive authority – the ultimate reversioner or remainderman is the constitutional national executive authority of the King.37 This applied to the colonial charters. Likewise the jus publicum executive authority remained with the King, but as applied to fishing and navigation it was custodial, a public trust. The member states of the United States, not the Federal Government, succeeded to those jus privatum rights of Royal Prerogative governmental authority within their respective territorial jurisdictions as expressed in the prior colonial charters, such as ownership of the foreshore and the beds of inland navigable waters. But to the extent that rights other than those of government were involved, such as the jus publicum public rights of Englishmen to navigation and fishing, they passed to the American People as heirs of the English People, to be administered ultimately in public trust by the Federal Government in delegation under the Constitution.38 As under the

34

35 36 37

38

Att’y Gen. v. Trustees of the British Museum, [1903] 2 Ch. 598, 613. Franchises which were not part of the flowers of the Crown, such as a right to hold a fair, ceased to exist when resumed. Id. Abbot of Strata Mercella’s Case, (1591) 77 Eng. Rep. 765, 769 (K.B.). Cf. Whistler’s Case, (1613) 77 Eng. Rep. 1021, 1023 (K.B.). In Wiggon v. Branthwait, (1699) 91 Eng. Rep. (K.B.), the court held that Crown resumption of a manor, with right to wreck by prescription, would merge the manor and the prescription again in the Crown “jurae coronae,” [sic] because the prerogative right is superior. United States v. Curtis-Wright Export Corporation, 299 U.S. 304, 316 (1936). The concept of public trust became implemented over public lands and waters by the Federal Government with force of law during the administration of President Theodore Roosevelt.

A. Prerogative Public Trust

109

Royal Prerogative, in all cases the original jus publicum public right to navigation remains superior to any jus privatum right as may now be exercised by any state governments for management of natural resources. Prerogative grants present issues as to whether the incident involved is susceptible of grant, and whether there are implied rights which also pass. For example, while the King could not give up the right to make judges ( jus publicum), he could grant a subject the right to receive fines collected by the King’s courts, as when malpractice fines were paid to the College of Physicians ( jus privatum).39 The King could enlarge the boundaries of any city by charter without any Act of Parliament,40 and grant a town to Burgesses with all its appurtenances within the Realm,41 and in such cases the issue for dispute became what was encompassed by the patently broad underlying grant and was anything granted by implication. Predictably such disputes as to prerogative grants caused construction rules to develop with grants to be construed narrowly, against the grantee, for the obvious purpose of guarding and protecting jus privatum prerogative rights of the King from over-reaching grantees or would-be grantees. An exception occurred under two Elizabethan statutes which were repealed,42 and the construction rule pertinent here is that nothing will pass by implication in a grant of prerogative rights; indeed, such grants were to be issued under the Great Seal and recorded.43 Similarly Royal Prerogative rights are protected from infringement by general words in

39 40 41 42 43

President Roosevelt understood the Federal Government to hold a “stewardship” responsibility for those national natural resources, including the development of hydropower. Theodore Roosevelt, An Autobiography 665–67, 671–73 (1913). President Roosevelt defines that stewardship as one where “public resources . . . were handled frankly and openly for the public welfare under the clear-cut and clearly set forth principle that the public rights come first and private interest second.” Id. at 665. Groenvelt’s Case, (1697) 91 Eng. Rep. 1038 (K.B.). Rex v. City of Norwich, (1719) 93 Eng. Rep. 458 (K.B.). Brett v. Beales, (1829) 173 Eng. Rep. 1208 (N.P.). Heddy v. Wheelhouse, (1597) 78 Eng. Rep. 834, 835 (Q.B.); 17 Halsbury at 311. 17 Viner 69, 94; 16 Viner 563; (explaining that the rights of the Crown were jealously guarded and general words passed nothing); 17 Viner 130. The exception seems to be for chattels, but otherwise the rule is: “A patent in generalities without restriction, as if the king grants omnes terras suas, or maneria sua, or releases all demands, is a void patent, dolus versatu in generalibus.” Id. at 134. Colonial settlement charters routinely granted governmental rights including particular rights in maritime areas consistent with the public right to navigation and fishing. Surrender of a settlement charter must be of record and before the proper authority, such as the Chancellor. 16 Viner 561; 17 Viner 171.

110

Chapter III

Sources & Public Trust, Prerogative & Constitution

Acts of Parliament, so that even after the 1688–1689 Glorious Revolution any Parliamentary restriction would be through express words.44 Parameters were established at that time limiting the Royal Prerogative in some of its executive powers, for example the jurisdiction of ancient courts could not be enlarged, with the result that the granting or annulling of commissions of oyer and terminer remained a prerogative right but could not be used to affect the application of substantial justice between subjects. Likewise private property interests were not subject to unilateral variations or alterations by the King, as they would have been as demesne lands or as rights under feudal tenures before 1688. Nonetheless, in a dispute where the King’s title and that of a subject were concurrent, the King would prevail.45 The point is, “Every thing for the benefit of the King shall be taken largely, as everything against the King shall be taken strictly. . . .”46 This rule limiting grants by implication protected the administration of jus publicum public navigation and fishing rights from being inadvertently or duplicitously granted – such jus publicum rights could not be prescribed against. One important case in this regard for the interpretation of colonial settlement charters is Doddington’s Case, where the Court writes: [W]hen the general words of the patent do not comprehend content, number, nature, quality, certain name, nor any convenient certainty of the land, but the town is the principle [sic] thing which restrains the generality of the grant, and reduces it to a certainty, it would be dangerous to extend the same out of the town comprised in the grant, by any construction upon the said statute. But it is otherwise, when any grant doth comprehend any convenient certainty, as of a manor, farm, land know by a certain name, or containing so may acres, & c. so as there may appear in the letters patent some convenient certainty of the thing which the King intended to pass, for there the said Act doth remedy it, and the King cannot in such case be deceived.47

Simply, grants of the Royal Prerogative rights must be specific, and would not pass by implication.48 A grant of “franchises”, and a grant of “lands, strays,

44 45

46 47 48

16 Viner 561, 563. Id. at 566–67. The common law recognition and protection of the Crown prerogative seems to have been generally accepted. McGlynn, supra note 260, at 2, 234–35. Sir Edward Coke’s Case, (1624) Godb. 295 (Pasch. 21 Jac.). Doddington’s Case, (1594) 76 Eng. Rep. 484, 489 (C.P.). Buckland v. Fowler, (1486) 77 Eng. Rep. 965 (1486), discussed in The Case of Sutton’s Hospital, 77 Eng. Rep. 961 (K.B.), Buckland holding that construction or implication will

A. Prerogative Public Trust

111

chattels” did not pass a franchise in treasure trove because it was not listed by specific words.49 A charter for the City of London granting the Thames River did not pass the riverbed, so a second charter had to be issued to enable the collection of wharfage from owners of piers fixed in the riverbed.50 A grant of fines to the residents of Peterborough did not include those paid to the coroner, viscount, commissioner or justice of the peace, because those fines would not pass without special words.51 Even a grant of all the rights the King held in the earth would pass nothing without particular words specifying what so passed.52 Likewise the colonial charters contain specific words of grant which in no way abdicated or could have abdicated the jus publicum public trust over fishing and navigation. Notably, reference to specific words in a prior grant could supply the necessary certainty in a later instrument,53 which was useful for colonial charters. A grant “juba regalia” would probably pass nothing unless to pass the jura regalia of a county palatine; which are ascertainable, and include all the franchises which the King might grant.54 The point is that the grant of administrative authority in a manor or colonial charter reflects an underlying municipal law right in the grantor, be it issued under either the Royal Prerogative jus privatum for governmental administration or the jus publicum for proprietary interests. That, as discussed in Chapter II, is important in considering the governmental power and authorities delegated in colonial charters, and makes clear that whereas the jus publicum was a right of the Crown, that right was constitutionally governmental and precisely constitutes the Crown to be a trustee of those jus publicum aspects, specifically navigation and fishing, which are the public rights of Englishmen. Yet again, that which the Crown did not own it could not grant, so that the fishing referenced under colonial

49 50 51

52 53 54

not pass what was not intended. See also Englefield’s Case, (1591) 77 Eng. Rep. 428, 433 (Exch.), ruling that even the power to transfer a lease must be set out with special words. See Aldermen of Chesterfield’s Case, (1584) 78 Eng. Rep. 301 (K.B.). Att’y Gen. v. Trustees of the British Museum, [1903] 2 Ch. 598, 612. Royall Piscarie de le Banne, (1610) 80 Eng. Rep. 540, 541–42 (K.B.). Count of Exeter’s Case, (1613) 81 Eng. Rep. 297 (K.B.). It does not lessen a grant to a corporation or town of particular franchise rights, such as “a warren, forest, park, chase or piscary”, that only a few denizens may be empowered to exercise it. Cf. Burgesses of Parliament Case, (1614) 80 Eng. Rep. 165 (K.B.). Knight’s Case, (1588) 72 Eng. Rep. 530 (K.B.). Whistler’s Case, (1613) 77 Eng. Rep. 1021, 1024 (K.B.). Dyke v. Walford, (1846) 13 Eng. Rep. 557, 580 (P.C.).

112

Chapter III

Sources & Public Trust, Prerogative & Constitution

charters constitutes no more than a delegated right of administration, while the underlying rights of fishing and navigation remained the a priori vested public rights of Englishmen. The idea of the Royal Prerogative jus privatum is to ascribe to the King ownership over items for which there was no owner, or for which no owner could be identified, or the physical limitations of which prevented individual acquisition. In this regard the jus privatum was part of a legal framework designed to impose order and preserve legal interests in property. It has the earmarks of the Crown being the ultimate custodian or even trustee of the involved rights. In the colonial context this was achieved through charter delegations of jus privatum rights as part of the granted administrative responsibility over lands held by the King in right of discovery in North America. Such “national” land ownership was among the incidents of the Royal Prerogative, and the consequential jus privatum rights granted for such undistributed lands in colonial charters, such as treasure trove, strays, royal mines,55 Royal fish and escheats, were wholly dependent on the underlying Royal Prerogative title obtained pursuant to the Discovery Charters. Thus the King’s lands included “ancient demesne lands”, as well as “lands subsequently acquired by prerogative right, e.g. by escheat or forfeiture, the foreshore and lands formed by avulsion”, and of course by discovery. This is evident with “treasure trove” located in all such lands which remained within the Royal Prerogative right as lost property, and could consist of “money, coin, bullion, plate, silver, or gold hidden in the earth or some secret place. . . .” It was a misdemeanor to conceal the discovery of treasure trove. Likewise estrays or strays were “beasts” of value (domesticated) of undetermined ownership found wandering within the bounds of a manor. They too would belong to the King if no owner could be found within a year and a day after their impoundment. Similarly waifs, which were goods discarded by a felon during pursuit and flight from justice,56 came to the King. Interestingly the Royal Prerogative right in waifs does not arise until the item is seized by someone other than the owner, and not taken as a bailment.57 Where shipwreck was concerned the King’s right to shipwrecked goods was preeminent 55

56 57

Chalmers & Philips, supra c. i, note 66, at 168. Only the King could own royal mines. Queen v. Earl of Northumberland, (1567) 75 Eng. Rep. 472 (K.B.); see generally Instructions for John Jackson, Receiver–General of Rights of the Admiralty, (circa 1776) 165 Eng. Rep. 17 (Adm.), discussing the Admiralty jurisdiction; and Warram’s Case, (1587) 72 Eng. Rep. 553–54 (K.B.). Foxley’s Case, (1601) 77 Eng. Rep. 224 (K.B.). Dickenson’s Case, (1627) 124 Eng. Rep. 346, 1201 (C.P.).

A. Prerogative Public Trust

113

and initially the year and a day rule was inapplicable. The shipwreck rule later was modified where one person escaped from the shipwreck alive, and then to where one person or beast was found alive.58 The King had the Royal Prerogative right to mines of silver and gold, but not to base metals.59 Thus Royal Prerogative rights to royal mines superseded the concurrent private property rights of individuals, though payment would be made by the King for the base metals contained in such a mine.60 Waste lands emerging from the sea also came to the King’s jus privatum ownership through the theory of this right to ownerless property in navigable waters.61 The Prerogative Right to ownerless property also appertained to flotsam, jetsam and ligan.62 Similarly Royal fish (sturgeons and whales)63 were within the jus privatum prerogative right, though the activity of fishing was a right common to all Englishmen within the jus publicum.64 Swans likewise belonged to the King by prerogative right, and where made subject to a jus privatum franchise may be marked as private property. To have a “swan mark” required a grant of the King which was transferable.65 Each and all of these foregoing Royal Prerogative incidents would be administered in North America under the colonial charters, or by Royal Governors and, to the extent compassed within the jurisdiction and territory of the respective colonies, would adhere to their new state governments after 1776. These incidents demonstrate the national ownership of the North American continent made subject to colonial charters with such franchises, grants and reservations to the King. Further, such prerogative jus privatum rights evidence a fundamental comprehension that an a priori Royal

58 59

60 61

62 63

64 65

1 Blackstone 280–81. While the tin of Cornwall was not subject to Crown prerogative, the Stannery Courts which adjudicated rights in the Cornwall mines were prerogative courts. This government right to mineral rights, especially gold and silver, continued after the Revolution, with the United States Government retaining gold, silver, copper and lead as grants were made to private parties in western lands not then incorporated into any State. See Ordinance of 1785, Journals of the Continental Congress (May 20, 1785); see also Friedman, supra note , at 232. Chalmers & Philips, supra c. i, note 66, at 167. Id.; ____, Constitutional Laws of Great Britain 166–67 (6th ed. 1946); 16 Viner 563–64, 594–96, 598. Sir Henry Constable’s Case, (1601) 77 Eng. Rep. 218, 223 (K.B.). For a humorous treatment of Royal Fish see Tinrib, Rumble, and Others v. The King and Queen (Fish Royal), in A.P. Herbert, Uncommon Law (1988). See McGlynn supra note 14, at 240. Case of Swans, (1592) 77 Eng. Rep. 435–36, 438 (K.B.).

114

Chapter III

Sources & Public Trust, Prerogative & Constitution

Prerogative right of the King underlies a particular grant or assignment of a jus privatum right. This points to marginal seas and coastal waters as being held by the King in Royal Prerogative, as evidenced by jus privatum charter grants to property found in the sea or emerging from the sea, as well as by charter grants of jus publicum administrative authority or agency for fisheries regulation – both, as a mater of English municipal law, consistent with Selden’s arguments for Royal Prerogative ownership of the British Seas. In addition to Royal Prerogative grants some proprietary interests were alleged to be based on prescription, in the sense of a property right acquired through immemorial usage and possession.66 Prescription must be “in pais”, that is, factual and undisturbed when without record of grant, allowance or confirmation.67 Because Royal Prerogative rights of the King were as ancient in origin as any individual prescription effort the Prerogative Rights were viewed to antedate and thereby to be superior to any individual’s prescriptive acquisition.68 This includes the jus publicum rights of fishing and navigation, against which prescription would not prevail. But prescription in the sense of immemorial usage and possession would lie to support a franchise claim based on the presumption that there had been an ancient unrecorded Royal Prerogative grant of franchise. Any “prescription” of a prerogative incident thus requires a presumed ancient jus privatum grant from the King held in pais (fact), but because there could be no grant of the jus publicum such prescription would not lie against the public rights of navigation and fishing.69 Moreover, even immemorial prescription as might be allowed against jus privatum incidents could not pass the underlying Royal Prerogative right which always remained in the King as jus publicum. The consequence in

66 67

68

69

See McGlynn, supra note 14, at 240. Id. at 771, 773; Whistler’s Case, (1613) 77 Eng. Rep. 1021–022 (K.B.); see also  Coke 114a & b, 119.a.n.(1). Prescription could not divest the Crown of rights that must pass as a matter of record, such as the prerogative to forfeiture of felon’s goods. Harris v. Parker, (1702) 1 Eng. Rep. 247, 249 (H.L.): Wiggon v. Branthwait, (1699) 91 Eng. Rep. 1215 (K.B.). See McGlynn, supra note 14, at 52. 1 Coke 261a, n.1, reads, in pertinent part, as follows: As to the high seas and their soil; the right of fishing in the sea and its creeks and arms is originally lodged in the crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord; the king has therefore, of common right, the primary right of fishing; – yet the people of England have also, by common right, a liberty of fishing in the sea and its creeks or arms, as a public common of piscary. Yet, in some cases, the king may enjoy a proprietary exclusion of their common piscary. He also may grant it to a subject and consequently a subject may be entitled to it by prescription.

A. Prerogative Public Trust

115

colonial North America is that not only would the public rights to fishing and navigation be unaffected by the issuance of the colonial charters, but even private rights or colonial charter rights could not have been acquired in several fisheries independent of a Royal Prerogative grant. The patent reason is that “time out of mind” had not passed since the discovery and founding of the colonies and that time lapse period is essential to support a prescriptive claim. Notably jus privatum grants as well as jus publicum administrative authority could be revoked by Royal Prerogative authority – so that there was no vested interest in the grantee. The difference for public rights of fishing and navigation is that they were not vested in the King, but rather were public rights vested in the emigrant Englishmen in North American so that public fishing and navigation could not be impacted by charter provisions for colonial administrative authority. Therefore in 1776 the jus privatum property rights and jus publicum administrative rights of colonial administrations passed to the successor state governments, but the public rights of Englishmen became the public rights of the American People and are held by them as sovereign, not by constituent state governments or their respective populations within the federal organization. Indeed, as navigation and fishing are public rights and not governmental rights, they were not and could not be delegated by the American People to the Federal Government any more than they could be delegated by Englishmen to the Royal Prerogative jus privatum. As a result, like the Royal Prerogative jus publicum executive authority, the United States government became the trustee for protection and preservation of those rights through constitutional provision and public trust. The sovereign American People continue to hold those rights and are not dependent on the Constitution for them. That is the basis for the commerce power as applied for protection and preservation of the “navigation servitude”. Participations in the colonial charter jus privatum interests are of three types: (1) an actual interest in an object which was already subject to the proprietary interest of the King, such as Royal fish (whales, sturgeons) and lands held jura regalia; (2) an interest in a prerogative right which would give the holder a property interest once items were identified as within that right, such as fines and amercements; and (3) an interest in “choses in action” such as forms of debt.70 These and other prerogative jus privatum interests were transferred under a variety of means, including grants of manors, 70

17 Viner 84, 91, 135.

116

Chapter III

Sources & Public Trust, Prerogative & Constitution

commissions, franchises, liberties, colonial charters, letters patent and others. A commission or grant of a manor or colonial charter could have franchises appendant to it, which upon manor revocation or termination returned to the King and were again merged in the jus privatum prerogative, so that those franchises would not pass under a new grant of the manor unless specified. The exception would be where a successor grant referenced and incorporated the franchises of the prior grant, so that general words would be sufficient in the second grant because the particular franchises could be identified from the first grant.71 This occurred in some colonial charters such as those for New Jersey. Revocation of a grant could only be by operation of law pursuant to a writ quo warranto or scire facias proceeding because the grantee held a present property interest in the grant, but not in the underlying aspect or incident of the Royal Prerogative.72 Usually a second grant of a recorded franchise interest would be void without revocation of the prior grant because the King could only grant franchises as a matter of record, not because of any loss of or impact on the King’s ultimate or residual ownership by the initial grant. When a franchise granted under the Royal Prerogative was surrendered or revoked the legal character of the interest holder determined what actually was relinquished. This is important because a franchise may be terminated while an underlying colonial charter government is untouched.73 For example, revocation of corporate charter liberties and franchises did not destroy colonial entities which had governmental functions to perform, regardless that such surrender could mean corporate dissolution because the organizational purpose failed.74 A 17th or 18th century corporation would dissolve if all or its essential members disappeared, or the corporate charter were surrendered, or upon forfeiture of the corporate charter upon issuance of a scire facias or quo warranto writ. But where a corporation was seized by the King under a writ scire facias it seems only to have suspended corporate rights which could be revived as stated in a successor charter.75 A writ scire facias to repeal royal letters patent (charter) ran only in Chancery and, where the patent was for land or an office, the suit for repeal would

71 72 73 74 75

Id. at 82. Id. at 114, 177. Id. at 118, 165. 9 William Holdsworth, A History of English Law 62, 64, 67 (3d ed. 1966). Id. at 64–65.

A. Prerogative Public Trust

117

be based on a breach of an express condition or forfeiture. The Chancellor would receive the surrender of the letters patent and of grants subject to merger in the Royal Prerogative and thereby the King’s further action, if any. A quo warranto writ ran against subjects claiming franchises or liberties. Such a quo warranto writ issued against subjects in the Virginia Colony, but not against the Virginia Company – the charter holder. The Virginia defendants apparently were not able to establish that they held the liberties claimed and judgment was entered against them on a demurer by the King, but not against the corporation which held the charter, which was not made a party to the proceedings.76 Patents were to be construed so that they were good, and where the grant was ex certa scientia and ex mero motu they were to be construed against the King; but if the King were deceived the grant would be void. An example would be where a grant of “mines” did not carry rights to royal mines of silver or gold.77 The King began to employ a clause “non obstante” when granting franchises in order to pass specific interests and not have the grant fail for uncertainty. But even this was insufficient to pass a Royal Prerogative jus

76 77

17 Viner 121, 125, 168. Alton Wood’s Case, (1600) 76 Eng. Rep. 89, 101, 105–07, 120 (K.B.). See Rex v. Mussary, (1738) 1 Web. Pat. Cas. 41, in [1669] English & Emp. Digest 643, which in pertinent part reads: Respecting patents, the following general rules have been laid down: (a) every false recital in a thing not material will vitiate the grant if the King’s intention is manifest and apparent; (b) if the King is not deceived in his grant by the false suggestion of the party, but from his own mistake upon the surmise and information of the party, it shall not vitiate or avoid the grant; (c) although the King is mistaken in point of law or matter of fact, if that is not part of the consideration of the grant it will not avoid it; (d ) where the King grants ex certa scienta et mero motu, those words occasion the grant to be taken in the most liberal and beneficial sense, according to the King’s intent & meaning expressed in his grant; (e) although in some cases the general words of grant may be qualified by the recital, yet of the King’s intent is plainly expressed in the body of the grant the intent shall prevail & take place. (2) A writ sci. fa. to repeal letters patent lies in three cases: (a) when the King doth grant by several letters patent one & the self-same thing to several persons, the first patentee shall have a sci. fa. to repeal the second; (b) when the King doth grant a thing upon a false suggestion he, prerogative regis, may by sci. fa., repeal his own grant; (c) when the King doth grant any thing which by law he cannot grant. (3) Where a patent is granted to the prejudice of a subject, the King of right is to permit him upon his petition to use his name for the appeal of it.

118

Chapter III

Sources & Public Trust, Prerogative & Constitution

privatum grant without specific or particular words.78 Prerogative rights are both general and special, and general words will not pass special prerogative rights where general prerogative rights fulfill the grant.79 Thus the King was deceived where the grant was implemented outside its terms, thereby rendering the grant void.80 When the grant was of a franchise which could not be granted, and the King was not deceived, the construction of the grant most beneficial to the King would be taken.81 Whereas the King could not derogate from his own grant, all clauses of non obstante are thereby rendered of questionable utility,82 and a prior holder of the King’s outstanding grant could bring a scire facias action. This happened where the King granted identical printing rights first to a printer and then to the University of Cambridge, where the court found the same grant cannot be made at the same time to two persons, nor the profit to one and the franchise to another.83 Recitation of a prior grant was effected through use of the phrase “tot, talia, tanta,” but these words were not sufficient to pass prerogative franchises in the absence of identifying the particular prior grant.84 Non-use or neglect could be the basis for loss of a franchise,85 and the surrender of a recorded prior lease could

78 79

80 81 82

83 84

85

17 Viner 63, 92; and Sir E. Farmen’s Case, (1688) 2 Lev. 171 (Trin. 28 Car. 2). Basket v. University of Cambridge, (1758) 96 Eng. Rep. 59, 64 (K.B.) where the report of Basket reads in pertinent part as follows: In this, the King’s grant differs from that of a private person; but to illustrate this rule: 1. If under a general name, a grant comprehends things of a Royal and of a base nature; the base only shall pass: 2. If the thing expressly granted cannot pass, without implying something not granted; it shall be void rather than operate to two intents: e.g. a grant of lands to an alien born shall not make him a denizen, by implication; or, if to a felon, shall not amount to an implied pardon. . . . If two things are mentioned in the King’s grant, equally in his power to grant, and it is dubious which was intended; it is void for uncertainty . . .; and therefore also, by a grant for no certain estate, nothing, not even and estate at will shall pass; . . . But this case stand on different grounds, for If the general words comprehend two things, no equally in the King’s power to grant, that which is in his power shall pass. Alcock v. Cooke, (1829) 130 Eng. Rep. 1092, 1095–096 (C.P.). Earl of Rutland’s Case, (1608) 77 Eng. Rep. 555, 557 (K.B.). Ewelme Hospital v. Andover, (1684) 23 Eng. Rep. 460 (Ch.); Brook v. Goring, (1630) 79 Eng. Rep. 773 (K.B.). Basket v. University of Cambridge, (1758) 96 Eng. Rep. 59, 61, 63 (K.B.). King v. White, (1617) 81 Eng. Rep. 244 (K.B.). And see Grabham v. Geales, (1619) 81 Eng. Rep. 995 (K.B.). King v. Amery, (1788) 100 Eng. Rep. 278, 305 (K.B.). Words in a prior charter may be restricted by specific words in a later charter. Rex. v. London Corporation, (1834) 149 Eng. Rep. 968 (Exch.); and Delassus v. United States, 34 U.S. (9 Pet.) 117 (1835).

A. Prerogative Public Trust

119

be part consideration for issuance of the successor new lease, especially if the surrender is recited in the successor document.86 Usually a sealed and written deed would be required to effect surrender87 and to establish the record and avoid adverse prescription, especially in colonial charters where immemorial usage was not applicable. Importantly the King could not be deceived into granting the jus publicum and, thereby, relinquish the public rights to navigation and fishing because administration was the King’s only right. The foregoing incidents of the Royal Prerogative give definition to the executive power as exercised and delegated by the King to the North American colonies. The Royal Prerogative executive authority was always present in the North American colonies as the primary source of government. The United States Government formed in 1776 and, as thereafter revised until the advent of the 1789 Constitution, replaced the Royal Prerogative role for the formerly disunited colonies, thereafter united under the national government of the United States. As the King had exercised the Royal Prerogative in North America, colonial unity was not required, but the national governmental role of the Royal Prerogative was essential. Perhaps Holdsworth, an admirer of Lord Hale, describing a public trust for the administration of the law, said it best in The History of English Law where he writes: The prerogative belonged to the King. He cannot grant it out to any one else. In the language of the sixteenth and seventeenth centuries, they were ‘inseparable’ from his person. We have seen that this idea of an ‘inseparable’ prerogative played some part in the arguments of the prerogative lawyers in the seventeenth century. They argued that, because the prerogative was inseparable, it could not be taken away even by Parliament. This conclusion was negated by the Great Rebellion and the Revolution. But there is an element of truth in this inseparability. Powers granted to an official for a particular purpose cannot be alienated to another, for profit or otherwise, if such alienation would frustrate the purpose for which the powers were given. This principle is especially applicable to that complex of powers included under the term prerogative, which is entrusted to the King; for upon the existence and prudent exercise of these powers the safety of the state may depend.88

86

87 88

Bret v. Johnson, (1605)145 Eng. Rep. 249, 260–61 (Exch.). Acceptance of a successor lease for a lesser term cancelled the prior lease. Case of the Churchwardens, (1613) 77 Eng. Rep. 1025 (K.B.). Case of the Churchwardens, supra note 86, at 1027. X Holdsworth, supra note 74 (1938). Holdsworth’s description of Lord Hale’s breadth of knowledge and involvement with the Exchequer gives substance to why Hale’s views found ultimate acceptance. VI Holdsworth, supra note 74, at 585–88 (3d ed. 1922).

120

Chapter III

Sources & Public Trust, Prerogative & Constitution

Holdsworth’s view appears not only with regard to the jus publicum appertaining to navigation, but also with regard to those 17th century writers of the Glorious Revolution era who viewed the King as being vested by the people with the preservation of the common law as a trust.89 Thus, the King

89

See Jenkins, supra note 15, at 20; Brecknock, supra note 15, at 32. The “Power that is lodged in the Crown is only a Trust, and nothing more. . . .” The Judgment of Whole Kingdoms and Nations Concerning The Rights, Powers, and Prerogative of Kings 10 (6th ed. 1710)(1st ed. 1689). The author of the foregoing writes further: Tis time that the executive Part of the Government’s, both by our Common and Statute Laws convey’d unto, and vested in the King, but at the same time there is sufficient Provision made, both in the Terms of our Constitution, and in our Parliamentary Acts, to prevent this from being hurtful unto us, unless our Sovereign become guilty both of the highest Treachery, and withal make an Invasion upon, and endeavour the Subversion of the whole Government. A Right of overseeing the Execution of the Laws, being a Prerogative inseparable from the Office of the supreme Magistrate, because the very ends to which he is cloathed with rectoral authority, and for which he is designed and established, are the conservation of the Publick Peace, and the Administration of Justice towards and among the Members of the Body Politick. All that could be expected from the Wisdom of our Ancestors, or practicable by them, either upon the first Institution of civil Government, or upon their after Improvements and for further Regulation of it, was direct, limit, and restrain his executive Power committed to the Sovereign, and to make him and his subordinate Ministers accountable in case they should deny, delay, or pervert Justice, or be found chargeable with Male-Administration of the Laws. Now, never were a People more provident as to all these, than our Predecessors and Ancestors have been. For they have left nothing to the King’s private Discretion, much less to his arbitrary Will, but have assign’d him the Laws as the Rule and Measures he is to govern by; so they not only delegated it unto him, as a trust he is to swear faithfully to perform, but they always preserv’d a Liberty, Right and Power unto themselves of inspecting his Administration, making him responsible for it, and of abdicating him from the Sovereignty upon universal and egregious Failures in the Trust that had been credited and consign’d unto him. Id. at 7. The foregoing marks the perspective after the Glorious Revolution, but Vincenzi points out that in reality very little changed as to the King’s practical power even through the reign of George I because legislation was not the main focus of government. In the established colonies individual rights matched those of England, and local legislatures controlled in the absence of a direct action by Parliament. Whereas the Royal Prerogative never included a right to legislate for the subjects, colonial charters authorized the establishment of legislature and courts to apply justice consistent with the common law. See Christopher Vincenzi, Crown Powers, Subjects and Citizens 7, 12, 14, 152, 240–42, 245–46 (1998). Earlier the Long Parliament had also seen itself as a representative body vested with trust responsibility. See Francis Wormuth, The Royal Prerogative –, 47, 54–55, 59, 108 (1939).

A. Prerogative Public Trust

121

held responsibility for his dominions, having established them by charter and provided for a legislature, though the King could not legislate for them. Chitty, writing in 1820, had the advantage of perspective after the American Revolution as to the King’s relationship with the remaining British colonies.90 Notably he points out that revocation or surrender of colonial charters affects only the individual, proprietors or corporation holding the particular charter, and not the right of colonists to government. Even when the King assumes direct Royal rule through an appointed Governor, “the laws of England are the birthright of the people thereof ”.91 This is the public trust concept of the Royal Prerogative. Significantly, in this context Chitty writes, describing what is in effect a public trust over navigable waters to be exercised as a navigation servitude; that the submerged soil of the sea is vested in the King but subject to the “jura publica or communia” of the public right to fish. That the Royal Prerogative power of the King over the seas within his dominions is vested in the King “as the protector of his people, and guardian of their rights to trade or fish” for Chitty means that the King is responsible for removing nuisances to navigation in the seas and rivers, and has the responsibility of erecting “beacons and lighthouses in such places as his wisdom may deem most convenient for the preservation of ships and mariners” even on “land of a subject without his consent”.92 This is government exercising navigational servitudes in public trust for the protection and preservation of the public rights to fishing and navigation, as well as applying the Royal Prerogative for the occupation and possession of maritime and adjacent littoral areas sufficient to order and limit the real property interests of citizens. Revocation of colonial charters simply removed a layer of delegated administration, and the Crown then directly exercised the Royal Prerogative over jus privatum grants and jus publicum exercises of

90

91

92

Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown 2, 4, 6–7, 25, 29–37, 142–45, 173–76 (1820). Id. at 7, quoting 12 & 13 W.3 c.2, and he writes: “Wherever an Englishman goes he carries with him as much of English law and liberty as the nature of his situation will allow.’” Id. at 30. Once a charter is granted, the rights vested there in individuals remain even though the charter be revoked. Id. at 32. And “it cannot be doubted that the King’s prerogatives in the colony are precisely those prerogatives which he may exercise in the mother country” which would include the jus publicum public rights of navigation and fishing. Id. Id. at 144–45, 173, 176. See also the Second Great charter, King Henry III (1217), requiring water ways to be kept clear. Richard Thompson, An Historical Essay on the Magna Charta of King John 124 (1829).

122

Chapter III

Sources & Public Trust, Prerogative & Constitution

colonial governance. There is a clue here in the role of delegation with regard to the administration of public rights of the sovereign American People. Though arcane, as seen in the foregoing discussion, the consistent perspective of the Royal Prerogative is that of a public trust relationship with the assets being within the realm and beyond. In North America, as of 1776, the North American English beneficiaries re-wrote this public trust in their new identity as the sovereign American People, delegating certain national governmental as well as public trust responsibilities to the new Federal Government. The concurrent assignment of local governmental powers to state governments in a federal system has its own points of confusion for public navigation and fishing. Nonetheless, the public navigation servitude over navigable waters was established in the United States as a national public right, and by the later part of the 18th century the governmental protective jurisdiction servitudes for customs and neutrality also were being applied within defined zones of coastal waters. The English experience of Royal Prerogative jus publicum public trust provided the juridical experience and the constitutional basis for the new United States public trust.

B. Constitutional Public Trust The dispute whether Parliament could adopt laws for the North American colonies led to the so-called American Revolution of 1776–1783.93 The heart of that dispute centered on the Royal Prerogative, with the Parliamentary view being that the King had agreed to act with Parliament in adopting laws for the colonies as a result of the oaths taken by succeeding monarchs after the 1688–1689 Glorious Revolution. In contrast the Americans viewed their constitutional relationship to be with the King directly, not through Parliament. Therefore the Americans understood that Parliament held no authority over internal colonial governance – a sort of “grandfather” approach viewing the Royal Prerogative colonial establishment to be unaffected by 93

“[M]onarchy was revealed as a system of government rather than the reign of a king”. Kishlansky, supra c. i, note 7, at 223. And the Whigs and Tories emerged as people went to the polls over the course of the 17th century. Id. at 318. The dominion of a monarch with authority over the lives and property of the kingdom’s subjects evolved into a constitutional monarchy at the end of the 17th century, Id. at 34. “Liberties” of the subjects emerged, and balanced the monarch’s authority. Id. at 38. The 17th century contains the period of process defining those liberties of subjects. Life and property were “absolute rights” of subjects protected by the common law. Id.

B. Constitutional Public Trust

123

the Glorious Revolution without the consent of the emigrant Englishmen regardless of charter revocations.94 The American perspective was not limited, as suggested by Maitland, to the matter of colonial taxation by Parliament, but included any Parliamentary enactment affecting the colonial “polity”.95 Notably by 1774 all but the Connecticut and Rhode Island charters had been revoked, resulting largely in direct Crown governance of the colonists under appointed Royal Governors. Nonetheless, the colonists continued to be of the mind that their underlying constitutional rights as “Englishmen”96 were not affected by the revocation of charter franchises, a view which included their rights to establish courts and legislatures subject only to the King under the

94

95

96

McIlwain supra note , at 1–2, 6, 116, 132, 194. Importantly the Americans assured George III that they did not wish any “diminution” of the Royal Prerogative, that their constitutional contest was with Parliament. Id. at 2. Parliament saw its authority as extending to any British citizen, regardless of location, and attempted to displace the colonial government of Massachusetts with the Massachusetts Government Act. Id.; see also Cooley, supra note 1, at 5. McIlwain, supra note 20, at 2. Taxation without consent had been an issue since the Peasants’ Revolt of 1381 and before that. Brigden, supra note 17, at 27. The right of subjects not to be taxed without their consent evolved during the 16th century as Queen Elizabeth I of England resorted to Parliament for the subsidy needed to support the safety of the kingdom. Kishlansky, supra c. i, note , at 61. Otherwise the monarch was expected to “live on his own” from the revenues of the various prerogative rights such as wards, demesne lands and franchises. Cf. id. at 83. Maitland, supra note 9, at 337, unintentionally states the colonists dispute in terms of the rights of “Englishmen” brought to a new colony: When a new country is colonized by Englishmen, they are conceived to carry with them all such part of the English common law and all such existing statutes as are applicable to their circumstances; to distinguish what is and what is not applicable is the work of the courts which they may establish among them, and appeal lying from those courts to the King in Council. The king cannot legislate for them; on the other hand, king and parliament can legislate for them; but the presumption is that a statute applies only to the United Kingdom, it does not extend to the colonies unless they are mentioned or it is plain that the statute was meant for them. Certainly the North American colonists would have agreed that the rights of Englishmen, including the common law, were brought with them. Those colonists denied the right of Parliament to legislate for them, a point they established by revolution, though they would not see it as revolution because there was no constitutional authority for Parliament to legislate for them. McIlwain, supra note 20, at 1–2. Importantly, Maitland above confirms that Englishmen carried the common law with them, and the Royal Prerogative is part of the common law, so that ultimate adoption of the common law as it existed in 1789 brought the public rights of the Royal Prerogative into the United States Constitution.

124

Chapter III

Sources & Public Trust, Prerogative & Constitution

Royal Prerogative.97 This point of English constitutional dispute resulted in what initially was really a civil war and raises two issues for the 1789 United States Constitution: (1) whether the Royal Prerogative98 preservation of jus publicum public rights passed to the sovereign people of the United States, or to the states in their several sovereignties; and (2) whether those public rights continue today, being ultimately protected and preserved in public

97

98

McIlwain provides the following useful insight: The struggle did not touch the prerogative till after George III’s Proclamation of Rebellion of August 23, 1775, and in fact can hardly be stated earlier than the formal declaration of the Virginia Convention on June 29, 1776, that ‘the government of this country as formerly exercised under the crown of Great Britain, is totally dissolved’ or Congress’s resolution of May 15, 1776, recommending to the various colonies the adoption of popular constitutions, with its famous preamble which declares that ‘it appears absolutely irreconcilable to reason and good Conscience for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all of the powers of government exerted under the authority of the people of the colonies’. The point is not to reignite the flames of dispute for the merits of the respective constitutional positions, but is to underscore that government by the ‘crown of Great Britain’ is rejected – Parliament is not viewed as part of the government. The colonists never accepted that Parliament had any governmental authority over them, and even viewed cooperation with the Navigation Acts as a matter of comity rather than a requirement. McIlwain, supra note , at 119. Maitland’s injunction to define “Crown” is exemplified for both sides in this dispute. Maitland, however, understated the breadth of colonial disagreement with the governmental authority of Parliament; it was not limited to taxation. Maitland, supra note 9, at 338. McIlwain, supra note , at 94, is clear that the colonists saw British government as consisting largely of the Royal Prerogative: The alleged inability of Parliament to legislate in any manner for any colony of course precludes all parliamentary taxation. It leaves the royal prerogative as the only imperial authority over the dominions acknowledged as legal, and charters are merely the pacts between the King and his dominions by which he has engaged that the prerogative will not be abused. Maitland does not capture the colonial concept, reflected even in the thought of Alexander Hamilton, that Parliament had no authority over the colonies. Ron Chernow, Alexander Hamilton 60 (2004). For the colonist, the point is clear that colonial allegiance is to the King in his royal person, not to the crown as a governmental entity. McIlwain, supra note 20, at 132. Again Maitland’s injunction encompasses the basis for the dispute in the undefined concept of “Crown” government. Maitland, supra note 9, at 338. See supra note 15.

B. Constitutional Public Trust

125

trust under the United States Constitution.99 It is in this context that the Royal Prerogative becomes the root source and foundation for the evolving Federal Government of 1776–1789, and provides the basic formulation for the public trust over the public rights of navigation100 and fishing under the Commerce Clause of the United States Constitution. The key to transition is that the constitutional Royal Prerogative rights of the jus privatum and the jus publicum are not derived from but, rather, are protected by the common law.101 Englishmen brought that common law with them as colonists102 and continued to hold those jus publicum public rights of navigation and fishing as Englishmen without regard to whether

99

100

101

102

Donna R. Christie, Coastal and Ocean Management Law in a Nutshell 34 (1994), makes the following pertinent observation: “The navigation servitude, because of its link to navigable waters and the protection of navigation is often confused with the public trust doctrine. The navigation servitude, however, is a paramount federal servitude on navigable waters based on the commerce power rather than an ownership or trust responsibility.” Well, almost. There is a Commerce Clause public trust. Navigation servitude is defined in Black’s as follows: [N]avigation servitude. 1. An easement allowing the federal government to regulate commerce on navigable water without having to pay compensation for interference with private ownership rights. 2. An easement, based on the state police power or public trust doctrine that allows a state to regulate commerce on navigable waters and provide limited compensation for interference with private ownership rights. The state servitude is inferior to the federal servitude. Black’s Law Dictionary 1051 (B.W. Garner, ed. 7th ed. 1999) [hereinafter Black’s]. Mathew Hale, De Jure Maris (“De Portibus Maris”), in F____ Hargrave. A Collection of Tracts Relative to the Law of England 84 (1787). Maitland, supra note , at 337, where he writes as follows: When a new country is colonized by Englishmen, they are conceived to carry with them all such part of the English common law and all such existing statutes as are applicable to their circumstances; to distinguish what is and what is not applicable is the work of the courts which the king may establish among them, an appeal lying from those courts to the King in Council. Cooley, supra note 1, at 52, where he writes: From the first the colonist in America claimed the benefit and protection of the common law. . . . The opening of the war of the Revolution is the point of time at which the continuous stream of the common law became divided, and that portion which had been adopted in America flowed on by itself, no longer subject to change from across the ocean, but liable still to be gradually modified through changes in the modes of thought and of business among people as well as through statutory enactments.

126

Chapter III

Sources & Public Trust, Prerogative & Constitution

the respective colonial charter grants remained extant.103 It is significant that the very people who benefited from the national jus publicum rights of fishing and navigation as Englishmen, and who asserted those rights of Englishmen in 1774, 1775 and 1776, now as a sovereign American People104 hold those rights protected and preserved under the Ninth Amendment105

103

104

105

See Staunford, supra c. i, note 66, at fol. 38, cap. II; Brecknock, supra note 15, at 71–79; see also 49(2) Halsbury at 683–88 (4th ed. reissue, 1997). As of 1776 only two of the original colonial charters issued in right of the Crown of England, Connecticut and Rhode Island, were extant, the rest having been revoked and the colonies being ruled directly under royal governors. Cooley, supra note 1, at 55. Cooley, supra note 1, at 56 writes: The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it power of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to be exercised at all. The Ninth Amendment reads as follows: “The enumeration in the Constitution, or certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment is coordinated with the Tenth Amendment, reserving all rights to the people of the United States not delegated by them to the Federal Government, or reserved by them to their state governments. This is a restraint on the Federal Government designed by James Madison. Griswold v. Connecticut, 381 U.S. 479, 488 (concurring opinion, Goldberg) (1965); John Ely, Democracy and Distrust a Theory of Judicial Review 34, 35–41 (1980). Justice Story consistently indicates that the Ninth Amendment was a control to prevent the inclusion of rights enumerated in the Bill of Rights (Amendments 1–10) from being determined a closed list. The Constitution of the United States of America, 92 Cong., 2d Sess., at 1257, Sen. Doc. 92–82 (1972) [hereinafter Constitution]. In the past this has presented a problem because “right” is an undefined term in the Constitution. For present purposes of the “public rights” to navigation and fishing there is a ready definition in the jus publicum, and in the 1774 Declaration of Rights reserving the common law rights of Englishmen. Other “unalienable rights” are identified in the Declaration of Independence. The Supreme Court has found “rights” as necessary through the application of “penumbra” analysis to the rights contained in the First through Eighth Amendments. Griswold v. Connecticut, 381 U.S. at 484–85 (1965); United Public Workers of America v. Mitchell, 330 U.S. 75, 94–95 (1947). The point is to prevent the Federal Government from intruding on vested public rights. Reno v. Flores, 507 U.S. 292, 301–03 (1993); Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 143–44 (1939); Ashwander v. TVA, 297 U.S. 288, 329–30. A key concern requiring constitutional control is taxation, Citizens Savings and Loan Association of Cleveland, Ohio v. Topeka City, 87 U.S. (20 Wall.) 655 (1875), and another is the exercise of eminent domain power, Calder v. Bull, 3 U.S. (3 Dall.) 386, 387 (1798), especially where a public trust is breached, cf. Calder, 3 U.S. at 388. See Ware v. Hylton,

B. Constitutional Public Trust

127

to their 1789 United States Constitution – a federal right superior to the rights of the several states or their populations. The rights of the sovereign American People are extra-constitutional, and have been exercised to delegate rights of government to a non-sovereign entity, which entity cannot act in derogation of the American People’s sovereign rights. That delegated form of American constitutional government as a whole is a public trust, and in case of navigation and fishing is a particular and identified public trust held for the American People. No confirmatory or derogatory legislative act of Congress is efficacious as to the existence of those public rights. The Federal Government holds only those national powers of government delegated by the American People under the Constitution. Governmental rights not enumerated in the Constitution are reserved by the people to the states under the Tenth Amendment.106 It is the jus privatum rights which are delegated to the several states, as appears in their respective constitutions. In contrast, public rights are not delegated to either the Federal Government or the state governments, and to the extent not explicitly reserved to the people in the first eight amendments, those public rights are retained generally by the American People under the Ninth Amendment. Governmental power thereby does not encompass the public rights, with the result that the public rights of navigation and fishing remain the rights of the public, the American People, not the Federal Government nor of any state government. Among the governmental rights delegated by the people of the United States under the Constitution is the power to regulate interstate and foreign commerce. The administration of the public navigation and fishing rights has been determined to be within the scope of this power. But, whereas the rights remain in the public, the Federal Government is charged by that commerce power to be the governmental trustee over the public trust much as the King had been under the Royal Prerogative jus publicum. This circumstance

106

3 U.S. (3 Dall.) 158 (1796); McIlvaine v. Coxe’s Lessee, 8 U.S. (4 Cranch) 208 (1808). The Ninth Amendment is not a source of Constitutional guarantees, but it is the redoubt of fundamental rights of the people of the United States such as navigation and fishing, which cannot be derived directly or as penumbras from the provisions of the Bill of Rights protecting the individual rights of the people. Cf. The Constitution of the United States of America supra, at 1259. The Tenth Amendment reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

128

Chapter III

Sources & Public Trust, Prerogative & Constitution

of navigation and fishing administered under the commerce power is consistent with the nature and origin of those public rights as commercial activities.107 Confusion has arisen as to the source of the public rights to navigation and fishing and the nature and extent of the public trust protecting and preserving those rights. The confusion is one resulting from federalism, where constituent state governments and public interest groups would like to expand the navigation servitude to encompass state actions under the police power or the eminent domain power.108 Without the prior public right of navigation as a servitude under state law such state action requires compensation to be paid to littoral and riparian estate owners where there is a taking of their property for the involved public purpose. Similarly some public interest groups would like state governments to expand the public trust for navigation and fishing to include flora and fauna conservation as well as public beach access. But the state governments’ police and eminent domain powers do not benefit from the navigation servitude, which is a national a priori public right rather than either a delegated state governmental right or a right of the residents of a particular state. Interestingly the eminent domain power is a contemporary expression of the Royal Prerogative rights which enabled the exercise of governmental executive authority for the national need, but did not assume any a priori title or servitude in the government of the public over affected property interests. As a result compensation was required to be paid for the “taking” of private property rights.109 And where littoral or riparian private property rights are impacted by state action the Fifth and Fourteenth Amendments to

107 108

109

Cooley, supra note 1, at 7. For a historical description of eminent domain jurisprudence see Brownsen supra note 25, at 6, 19–20, 36, 41, 103. See also the description of eminent domain as an inherent power of government and exercisable under the Supremacy Clause, Constitution, art. VI, clause 2, by the Federal Government over State property. Kohl v. United States, 91 U.S. (1 Otto.) 367 (1876); Cherokee Nation v. Southern Kansas Railway Company, 135 U.S. 641, 653, 656–57 (1890). “The proper view of the right of eminent domain seems to be, that it is a right belonging to a sovereignty to take private property for its own public uses, and not for those of another.” Kohl, 91 U.S., at 367. In Cherokee Nation, 135 U.S. at 656, the Supreme Court followed Kohl writing as follows: The fact that the Cherokee Nation holds these lands under patents from the United States is of no consequence in the present discussion; for the United States may exercise the right of eminent domain, even within the limits of the several States, for purposes necessary to the general government by the Constitution. See supra notes 59–60.

B. Constitutional Public Trust

129

the 1789 Constitution require such compensation to be paid to the affected estate holders. Likewise the Federal Government is required to pay compensation under the Fifth Amendment when it engages in a taking of or impact on real property, unless it does so for the benefit of navigation pursuant to the colloquially termed “federal navigation servitude”. Navigation is an a priori property interest in the public – the former jus publicum right – and as such constitutes a prior proprietary servitude over littoral and riparian estates. Consequently there is no taking of a property interest when the federal navigation servitude is exercised and, therefore, no compensation is due. The contrast is that state governments are not charged with the public trust over the national public rights of navigation and fishing and, therefore, cannot benefit from acting as trustees to apply or exercise the a priori servitude over navigable waters as administered by the Federal Government under the Commerce Clause.110 But the concept of preserving navigation, regardless of whether acting either as trustee under the Commerce Clause of the Constitution, or pursuant to state police and eminent domain powers, is a consistent theme highlighting the navigational freedom principle as a common juridical concept. A compounding factor in the confusion in understanding the public trust and its navigable waters administration is the persistent reference to navigation and fishing as common law rights. They in fact are “public rights” which arose from public activities “time out of mind” in navigable waters outside the territorial jurisdiction of the common law. As such they are not common law-derived rights but, rather, are common law-protected rights, administered in public trust under the Royal Prerogative jus publicum, which likewise is not common law-derived but is a common law-protected constitutional authority. The importance is that these public rights were held independently of the common law by the English People and, though the common law

110

U.S. Const. art. V, para. 2, reads as follows: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and any Thing in the Constitution of Laws of any state in the Contrary not withstanding. The supremacy of federal law was early confirmed. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 179 (1803); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819); Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1871). In case of conflict, state law and rights must give way to federal law and constitutional power. United States v. Lanza, 260 U.S. 377, 382 (1922).

130

Chapter III

Sources & Public Trust, Prerogative & Constitution

passed to the colonial governments and the successor state governments, these jus publicum rights remained in the emigrant English People in their new capacity as the American People. Whereas public rights of the American People were not delegated to the Federal Government, which exists only under the Constitution and only as an entity of delegated “governmental” rights and powers, they remain in the sovereign American People, and as such are not in the people of the several states.111 In short, as the United States Supreme Court writes in Erie Railroad Co. v. Tompkins,112 “There is no federal general common law”.113 Consequently, the navigation servitude cannot be common law-derived so that the public rights of navigation and fishing must have their juridical situs somewhere, and that “somewhere” is in the ultimate sovereignty of the American People which is not dependent on the 1789 Constitution. Because the Federal Government exists only under the United States Constitution, as a creature of powers delegated to it and not prohibited to it, only the states were said to “have the common law”. Writers therefore moved to the conclusion that the navigation servitude must be derived from state law because common law was adopted at that governmental level in 1776.114 That conclusion is inaccurate, both because the navigation servitude

111

112 113

114

Free speech in Parliament was an ancient right of subjects. Kishlansky, supra c. i, note 7, at 101–02. Sir Edward Coke drew up a Parliamentary Petition of Right tacked to a subsidy bill which asserted the rights of subjects to include “freedom from arbitrary arrest, non-Parliamentary taxation, from the free billeting of troops, and from being governed by martial law.” Id. at 112. Freedom of religion was not part of the package. Id. at 341. The 1689 Bill of Rights presented to William and Mary was descried to be declarative of existing rights, but those were declared for subjects and Parliament. Importantly subjects had the “right to bear arms, to hold free elections, and to have frequent parliaments in which members could speak openly.” Id. at 293. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The jus publicum was a public trust of rights of Englishmen to navigation and fishing, never held by the colonies or states. Though there is no federal common law, and the states succeeded to the common law, the states are incapable of being the repository of rights of the people of the United States, which remain rights of those people both as Englishmen and as Americans through the colonial period as well as the periods of the continental Congress, Confederation, and now under the Ninth Amendment and the Commerce Clause of the United States Constitution. The jus publicum is not part of the jus privatum, and it is the police power, not the navigation servitude, by which state governments now act over navigable waters within their territories. But see Benjamin Longstreth, Protecting The Wastes of the Foreshore, 102 Colum. L. Rev. 471, 475, 480, 483–84, 488–89, 500 (2002) (otherwise an excellent article on the public trust doctrine). For example Bonnie J. McCay, Oysters Wars and the Public Trust 43 (1998).

B. Constitutional Public Trust

131

is not based on common law and because the states never were independent sovereigns115 and, therefore, never could have the capacity to hold the rights of the American People.116 Upon issuance of the Declaration of Independence on July 4, 1776, the United States became a sovereign nation composed of member states which were independent and sovereign as to each other in that union and not separate.117 A national government – not the American People – evolved, first, from the 1775 Congress of United Colonies established at the Second Continental Congress,118 second, to the Congress of the United States with the July 4, 1776, Declaration of Independence, third, to Congress under the Articles of Confederation, effective from 1781, and, fourth, to the Federal Government under the United States Constitution, effective as of 1789. The United States arguably began as a nation, as the American People, even as early as the 1774 Declaration of Rights prepared by the First Continental Congress,119 and certainly by acting as the United Colonies in 1775 at the Second Continental Congress when Georgia joined the other 12 colonies the American People had formed as sovereign.120 And through each and all of these iterations it has been the American People acting to form governments which has occurred rather than the American People acting under governments. The American People eventually adopted the 1789 Constitution, forming their Federal Government, and neither the states nor the people of the respective states took that constitutive national action. The very text of the Constitution reads “We the people of the United States . . .”, so that it is the sovereign American People who are forming the national government, not the states or their respective resident populations. Those same people of the United States continue to hold their public rights of fishing and navigation, and that is why the navigation servitude is applied

115

116

117

118 119 120

Brownsen, supra note 25, at 104; Cooley, supra note 1, at 9; and Story infra note 122 at 22. Cooley, supra note 1, at 5. The novel concept of a sovereign people delegating certain governmental rights to the Federal Government and retaining certain governmental rights in the respective State governments, while reserving the national nongovernmental rights of persons in the sovereign people, is ably described in 2 Michael O’Brien, Conjectures Of Order 825–36 (2004). The Constitution of the United States of America –, 92d Cong., 2d Sess., Sen. Doc. 92–82 (1972). Cooley, supra note 1, at 6. Story, infra note 122, at 26–27. Id.

132

Chapter III

Sources & Public Trust, Prerogative & Constitution

only under the Constitution as a public trust within the delegated constitutional commerce power.121 Almost to be expected the best description of the Commerce Clause as the repository for the navigation and fishing as public rights of the American People is supplied by Justice Story.122 Justice Story’s views are significant in early United States constitutional development, and in the present context draw the clear connection between constitutional power over commerce and the national navigation servitude – doing so within the context of the common navigational freedom principle. In pertinent part, Justice Story writes: Commerce is undoubtedly traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation; which shall be silent on the admission of vessels of one nation to the ports of another; and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or barter. If commerce does not include navigation, the government of the union has no direct power over the subject, and can make no law prescribing, what

121

122

Id. where he writes: The government of the United States is the existing representation of the national government which has always in some form existed over the American States. Before the Revolution, the powers of government, which were exercised over all the colonies in common, were so exercised either as pertaining to the Crown of Great Britain or to the parliament; but the extent of those powers, and how far vested in the Crown and how far in the Parliament, were questions never definitely settled, and which constituted subjects of dispute between the mother country and the people of the colonies, finally resulting in hostilities. That the power over peace and war, the general direction of commercial intercourse with other nations, and the general control over such subjects as fall within the province of international law, were vested in the home government, and that the colonies were not, therefore, sovereign States in the full and proper sense of that term, were propositions never seriously disputed in America, and indeed were often formally conceded. . . . See also id. at 28; and see United States v. Curtis-Wright Export Corp., 299 U.S. 304, 315–18 (1936), for a discussion of the transition of sovereignty from Great Britain to the people of the United States.  Joseph Story, J. Commentaries on the Constitution of the United States. 4 (3d ed., 1858). Cooley supra note 247, at 7–8, 863. The courts have been left with the task of determining whether state action interferes with commerce. Southern Pacific Co. v. Arizona, 325 U.S. 761, 770 (1945); Gus, Leisy & Co. v. Hardin, 135 U.S. 100, 119 (1890).

B. Constitutional Public Trust

133

shall constitute American vessels, or requiring that they shall be navigated by American seamen; yet this power has been exercised from the commencement of the government; it has been exercised with the consent of all America; and it has always been understood to be a commercial regulation. The power over navigation, and over commercial intercourse, was one of the primary objects, for which the people of America adopted their government; and it is impossible, that the conventions should not so have understood the word ‘commerce’ as embracing it. Indeed, to construe the power, so as to impair its efficacy, would defeat the very object, for which it was introduced in the Constitution; for there cannot be a doubt, that to exclude navigation and intercourse from its scope would be to entail upon us all the prominent defects of the confederation, and subject the union to the ill-adjusted systems of rival states, and the oppressive preferences, of foreign nations in favor of their own navigation.123

Justice Story determines navigation and Commerce Clause authority to be applicable to navigable waters throughout the United States. This tie with commerce rather than with the presence of tidal flow is a significant expansion of the basic law navigational freedom principle and connects the delegated commerce power of the Federal Government with the reserved national public rights to navigation and fishing. It also returns to the original purpose of navigation and its regulation under the Laws of Oleron and the Hanse Towns, that is, commerce rather than tidal flows, as the basis for jurisdiction. As Justice Story further writes:124 It may, therefore, be safely affirmed, that the terms of the constitution have at all times been understood to include a power over navigation, as well as trade, over intercourse, as well as traffic; and that, in the practice of other countries; and especially in our own, there has been no diversity of judgment or opinion. During our whole colonial history, this was acted on by the British Parliament as an uncontested doctrine. That government regulated not merely our traffic with foreign nations, but our navigation and intercourse, as unquestioned functions of the power to regulate commerce.125

A point here is that the Commerce Clause is broader than the navigation servitude, and as well empowers the Federal Government to license and enroll vessels in the coastwise trade and fisheries.126 In short, as Justice Story

123 124 125 126

Story, supra note 122, at 7–8. Id. at 5. U.S. Const., art. I, § 9, cl. 6; § 10, cls. 1 & 3. Id. at 5–6. See Douglas v. Seacoast Products, Inc., 425 U.S. 949 (1976), aff’d 431 U.S. 265 (1977). The basic navigational freedom principle of the jus publicum public rights to navigation and fishing are contained within the Commerce Clause, U.S. Const., art. I, § 8, cl. 3.

134

Chapter III

Sources & Public Trust, Prerogative & Constitution

would argue, there is no point regulating navigation, trade and fishing under the Commerce Clause if there is no public right of the American People to engage in navigation, trade and fishing.127 Regulation of commerce is the delegated governmental power, and it is not a power pointlessly given. Regulation of navigation and fishing as aspects of commerce subject to the public trust is consistent with those public rights reserved to the people of the United States under the Ninth Amendment to the Constitution. This is reminiscent of the colonial charters and of Selden’s understanding that jus privatum grants and franchises cannot be made without underlying Royal Prerogative jus publicum authority. Though Congressional government was sufficient to conduct a war in 1776, it otherwise proved ineffectual both before and under the Articles of Confederation of 1781,128 which ultimately necessitated its replacement by the Constitution in 1789 and the establishment of a Federal Government with delegated powers.129 Under the 1789 Constitution the Executive power130

127 128

129

130

There is the authority to regulate commerce, as well as other interstate and international commerce matters and responsibilities supported by the “necessary and proper” powers, id. at art. I, § 8, cl. 18. This commerce power has been exercised to “define and punish Piracies and Felonies committed on the high seas,” id. at art. I, § 8, cl. 10, to “Promote and maintain a Navy,” id. at art. I, § 8, cl. 13), to prevent any preferences in “Regulation of Commerce or Revenue to the Ports of one state over those of another; nor shall Vessels bound to, or from, one state, be obliged to enter, clear or pay Duties in another,” id. at art. I, § 9, cl. 6), and “No State shall . . . grant letters of Marque and Reprisal,” id. at art. I, § 10, cl. 1), or impose tonnage duties on imports or exports (id. at art. I, § 10, cl. 3), and to exercise judicial authority over “cases in admiralty and maritime Jurisdiction,” id. at art. III, § 1, cl. 1. The combined effect is a dominant power over interstate and foreign commerce, including navigation as a dominant servitude on the navigable waters of the United States. Cf. Story supra note 122, at 5. Brownsen, supra note 25, at 108; 1 James V. Bryce, The American Commonwealth 29–20 (1888); Chemerinsky supra note 8, at 9; Max Farand, The Framing of the Constitution 7 (1913); James Madison, The Federalist No. 42, reprinted in James Madison Writings 238 (R____ Rakove, ed., 1999). The sovereign people of the United States, not the residents of the states, adopted the Constitution as organic law but their national sovereignty preceded the law perforce. Brownsen, supra note 25, at 39, 73, 76, 101, 106–07, 111, 121. “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. The powers are balanced and Presidential power under and consistent with the Constitution cannot be restricted. Cf. Goldwater v. Carter, 481 F. Supp. 949 (D.D.C. 1979), rev’d, 617 F.2d 697 (D.C. Cir. 1979), vacated by 444 U.S. 996 (1979); Meyers v. United States, 272 U.S. 52, 177 (1926) (Oregon Postmasters Case).

B. Constitutional Public Trust

135

is separate from the Legislative power131 so that there is no “President in Congress”, but rather a President with a legislative role for enacting legislation as well as an executive role for implementing and enforcing legislation.132 It is “Congress with the President” which exercises the Commerce Clause protective responsibility over the public right to navigation as a servitude over the navigable waters of the United States; a combined executive and legislative power parallel to that of the “King in Parliament” and subject to the same public trust responsibility. The judicial role is to determine cases or controversies, including cases in “admiralty and maritime jurisdiction”,133 as well those arising under the Constitution and laws of the United States. The Judicial Branch is thereby involved with the President and Congress in protecting, preserving and enhancing the public right to navigation consistent with the delegated power of the Commerce Clause. And it is the judiciary rather than the President or Congress which proceeded to fledge the basic law navigational freedom principle for United States municipal law.134 In the 1938 Erie135 decision the Supreme Court writes that there is “no federal general common law,” which is helpful when the complete Eire statement about common law and the Constitution is read: Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law.136

131

132

133

134

135 136

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” U.S. Const., art. I, § 1. “Every Bill which shall have passed the House of Representatives and the senate, shall before it become a Law, be presented to the President of the United States; If he approve he shall sign it; but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large in their Journal, and proceed to reconsider it.” Id. art. I, § 8, cl. 1. “The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their authority; * * * __to all Cases of admiralty and maritime Jurisdiction . . . .” Id. art. VIII, § 2, cl. 1. Morris D. Forkosch, Constitutional Law 222 (1969); Friedman, supra note 8, at 260–61. John E. Nowak & Ronald D. Rotunda, Constitutional Law 157 (2000). 304 U.S. 64, 78 (1938). 304 U.S. at 78. In Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.)

136

Chapter III

Sources & Public Trust, Prerogative & Constitution

Federal courts in “diversity of citizenship” cases had been divining and applying some notional national common law if the State legislatures had not already acted. Erie ends that practice,137 but it also confirms that “[e]xcept in matters governed by the Federal Constitution” (emphasis added ) the state law applies, and that there is no “federal general common law”.138 The common law passed to the state governments as the right of their respective resident peoples, while the jus publicum public rights of navigation and fishing remained with the people of the United States, and the administration of these national public rights is delegated to the Federal Government.139 The people’s delegation of governmental authority as contained in the Commerce Clause, to the extent exercised over the public rights of navigation and fishing, can only be applied in trust for the national public benefit.140 The jus publicum navigation and fishing rights thereby remained reserved to the people of the United States under the Ninth Amendment, and they neither were nor are dependent for their existence on common law. The very concept of the national government as trustee of the laws, a concept of the Royal Prerogative as established in 1689 by the rubric of the

137

138

139

140

518, 564 (1851), citing Whenton & Donaldson v. Peters, 34 U.S. (8 Pet. 658) (1836), explains that there is no federal common law because it was never delegated to the Federal Government under the Constitution. Likewise, the states never held the national common law rights of Englishmen, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” U.S. Const., art. I, § 1. The Supreme Court was reversing the earlier approach under Swift v. Tyson, 41 U. S. (16 Pet.) 1 (1842). James Madison, Report to the Legislature of Virginia (Jan. 7, 1800), reprinted in James Madison Writings, supra note 128, at 634–41. Brownsen, supra note 25, at 32 writes as follows: The impact, then, cannot be formed or pretended, for the only rights individuals could delegate or surrender to society to constitute the sum of the rights of government are hers already, and those which are not hers are those which cannot be delegated or surrendered, and in the free and full enjoyment of which, it is its duty, the chief end of government to protect each and every individual. The Supreme Court in United States v. Curtis-Wright Export Corp. notes that sovereignty always resides somewhere, and that powers of sovereignty are not dependent on the Constitution, being its antecedents, so that responsibilities of British sovereignty such as the jus publicum public trust remain with the people of the United States for the protection and preservation of the public rights to navigation and fishing consistent with the Ninth and Tenth amendments to the Constitution. 299 U.S. 304, 315–18 (1936). See also International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).

B. Constitutional Public Trust

137

“King in Parliament”, is stated clearly in Chae Chan Ping v. United States where the Supreme Court writes: The powers of Government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered when need for the public good, by any considerations of private interest. The exercise of the public trust is not the subject of barter or contract.141 (Emphasis added.)

The United States is both a federal government and a limited government. This combination establishes: (1) that the powers of the Federal Government are no more than those delegated and not prohibited to it in the Constitution,142 (2) that dual internal governmental sovereignty is created between the Federal Government and the respective state governments,143 (3) that the “American People” are citizens both of their respective states144 where they are resident successors to the common law benefits formerly administered there under colonial charters or Royal governments, and of the United States145 where they are successors to the national public rights of the jus publicum administered on behalf of the English People by the King or the King in Parliament as sovereign,146 and (4) that the basic navigational 141 142

143

144

145

146

130 U.S. 581, 609 (1889). “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. Chemerinsky, supra note 8, at 230. John F. Dillon, The Laws and Jurisprudence of England and America 155–56 (1894). “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2. For a discussion of the American theory of dual citizenship (federal & state) see The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873). U.S. Const. art. IV, § 2. The Preamble to the Constitution is clear that the national people are sovereign under the Constitution and the government established thereby: We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (Emphasis added.) It is not the “people” of the several states, but of the United States. Penhalow v. Doane’s Adm’r, 2 U.S. (2 Dall.) 54, 90–91 (1793). See also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) (parenthetical). While British, the colonies, later states of the Union, were separate but subject to a common national sovereign. The citizens of one state were foreigners to one another before the Articles of Confederation. Congress before the articles of Confederation derived its power from the “people of each province

138

Chapter III

Sources & Public Trust, Prerogative & Constitution

freedom principle has been expanded from tidal waters and the territorial sea under a broad national power147 over commerce to be applied to all such navigable waters of the United States together with harbors, rivers and lakes involved in interstate and foreign commerce.148 In Illinois Central Railroad Company v. Illinois the Supreme Court followed the approach of its earlier decision in Gibbons v. Ogden and determined that there is a fundamental distinction between navigable waters in the United States and those of Great Britain. The Supreme Court then determined that the navigation servitude extended over the rivers and waters of the United States flowing to the oceans, while at the same time preserving state sovereignty over those navigable waters for intrastate matters which do not impact the national right.149 The circumstances which produced the Gib-

147 148

149

in the first instance.” With adoption of the Constitution the “legislative, executive or judicial acts of the United States” are “acts of the people of the United States, in those respective capacities.” Penhalow, 2 U.S. at 54, 90–94. Penhalow v. Doane’s Adm’r, 2 U.S. (2 Dall.) at 90–91 (1793). In Gibbons v. Ogden, 23 U.S. (10 Wheat.) 1, 195 (1824), Chief Justice Marshall writes the following classic statement of the navigable waters concept: But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several states. It would be a useless power if it could not cross those lines. The commerce of the United States with foreign nations is that of the whole United States. Every district has a right to participate in it. The deep streams of which penetrate our country in every direction pass through the interior of almost every state in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the states, if a foreign voyage may commence or terminate within a state, then the power of Congress may be exercised within a state. In United States v. Rands, 389 U.S. 121, 122 (1967), the Supreme Court writes that “[t]he Commerce Clause confirms a unique position upon the Government in connection with navigable waters. “The power to regulate commerce comprehends the control for that purpose, and to the extent necessary of all the navigable waters of the United States . . . . For this purpose they are the public property of the Nation, and subject to all the requisite legislation by Congress.” Gilman v. Philadelphia, 3 Hall. 713, 724–25. This power to regulate navigation confers upon the United States a “dominant servitude”, FPC v. Niagara Mohawk Power Corp. 347 U.S. 239, 249, which extends to the entire “stream and the stream bed below ordinary high water mark.” Illinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892). Following on the concept in Gibbons, that the rivers of the United States are affected with commerce and, thereby, subject to the navigation servitude, the distinction was clearly drawn between the navigable waters of the United States and those of Great Britain in Illinois Central Railroad Company, 146 U.S. at 435–36 (1892), where the Supreme Court writes:

B. Constitutional Public Trust

139

bons v. Ogden decision are the best example of the federal commerce power being exercised for the benefit of the public right – the national public right to navigation. In Gibbons the Supreme Court prevented state regulation which purported to control public navigation. The issue arose when New York attempted to exclude a ferry vessel enrolled in the coastwise trade as a vessel of the United States from the state’s navigable waters.150 The New York effort failed, and the resulting evolution in constitutional thought accepted the commerce power as encompassing public navigation and fishing and extending for national commercial purposes to waters providing commercial access between states and foreign nations.151 This approach conjointly picks up the jus publicum public rights to navigation and fishing as well as the public right to use non-tidal navigable waters as highways.152 It thereby

It is settled law in this country that the ownership and dominion and sovereignty over lands by tide waters, within the limits of the several states, belong to the respective states within which they are found with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states. *

150 151 152

*

*

At one time the existence of tide waters was deemed essential in determining the admiralty jurisdiction of courts in England. That doctrine is no repudiated in this country as wholly inapplicable to our condition. In England the ebb and flow of the tide constitute the legal test for navigability of waters. There no waters are navigable in fact, at least to any great extent, which are not subject to the tide. There, as said in The Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 445, ‘tidewaters and navigable waters are synonymous terms, and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers as contradistinguished from private ones;’ and writers on the subject of admiralty jurisdiction ‘took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the character of the river. Hence the established doctrine in England, that the admiralty jurisdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable waters.’ But in this country the case is different. Some of our rivers are navigable for great distances, above the flow of the tide; indeed for hundreds of miles, by the largest vessels used in commerce. See Gibbons, 23 U.S. (10 Wheat.) 1 (1824), and discussion supra note 149. Madison, supra note 128, at 716. Kaiser Aetna v. U.S., 444 U.S. 164, 177 (1979). Cooley supra note 1, at 861 writes: Navigable waters are also a species of public highway, and as such come under the control of States. The term ‘navigable,’ at the common law, was only applied to those

140

Chapter III

Sources & Public Trust, Prerogative & Constitution

brought the navigation servitude inland as an a priori right applicable to riparian estates and state uses of the respective inland waterways. This is consistent with the underlying Royal Prerogative and its national right to all colonial territory based on discovery. Such application and extension of the Commence Clause authority over inland waters is limited to national commercial purposes, and is consistent with the States retaining “police power” to regulate navigable waters within their respective jurisdictions.153 This is significant for the navigational freedom principle because the states act to regulate pilotage154 and to license vessels not enrolled by the United States, as well as health, welfare and safety matters involving navigable waters, all within the police power over intrastate or local matters.155 The Constitutional navigation servitude recognizes that the several States own the beds of their streams, rivers and lakes up to high water mark, together with the water contained there, and restricts that ownership with the a priori federal navigation servitude which is manifest only where and

153

154 155

waters where the tide ebbed and flowed, but all streams which were of sufficient capacity to for useful navigation, though not called navigable, were public, and subject to the same general rights which the public exercised in highways by land. * * * In this country there has been a very general disposition to consider all streams public which are useful as channels for commerce wherever they are found of sufficient capacity to float to market the products of the mines, of the forests, or the tillage of the country through which they flow. See the discussion of navigable waters as highways in Cooley, supra note 1, at 589, and in Friedman supra note 8, at 259–60. The State’s right to regulate and control tide-waters and the land under them is the same as that of the Crown in England. Hardin v. Jordan, 140 U.S. 371, 382 (1891). There is no doubt that a state can for the benefit of commerce and navigation regulate harbors and navigable waters if not inconsistent with any law of Congress. Prosser v. The N. Pac. R.R. Co., 152 U.S. 59, 64 (1894). Improvements to navigation by a state may not pose a nuisance or impediment to navigation. Huse v. Glover, 119 U.S. 543 (1886); Sands v. Manistee River Improvement Co., 123 U.S. 288, 298 (1887); Keokuk N. Lake Packet Co. v. City of Keokuk, 95 U.S. 80 (1886); Licensing Cases, 51 U.S. (5 How.) 504, 574, 582–83 (1847); New York v. Miln, 36 U.S. (11 Peters) 102, 137, 139 (1837). And see Phillips Petroleum Co. v. Miss. and Saga Petroleum U.S., Inc., 484 U.S. 469, 476, 479 (1988); Borax Consol., Ltd. v. City of Los Angeles, 296 U.S. 10, 15 (1935); Opinion of the Justices, 313 NE2d 561, 565, 568 (1974). Nowak & Rotunda, supra note 134, at 159, 163. Cooley v. Board of Port Wardens, 58 U.S. (12 How.) 299, 313–15 (1851). Enrollment and licensing as a vessel of the United States would not exempt it and its operation from the “operation of valid laws of a state”. Smith v. Maryland, 59 U.S. (18 How.) 71 (1855).

B. Constitutional Public Trust

141

when Congress has acted to regulate.156 Such state ownership is sufficient to support the exercise of police power jurisdiction over navigable waters of the United States within the respective states territory.157 Nonetheless, as the Supreme Court writes in United States v. Appalachian Electric Power Company, state and private interests in navigable waters of the United States are subject to the paramount national public right: The power of the United States over its waters which are capable of use as interstate highways arises from the commerce clause of the Constitution. * * * It was held early in our history that the power to regulate commerce necessarily included power over navigation. To make its control effective the Congress may keep the ‘navigable waters of the United States’ open and free and provide by sanctions against any interference with the country’s water assets. It may legislate to forbid or license dams in the waters; its power over improvements for navigation in rivers is ‘absolute’ . . . . The states possess control of the water within their borders ‘subject to the acknowledged jurisdiction of the United States under the Constitution in regard to commerce and the navigation of the waters of rivers’.158

The Federal Government power over navigable waters is “the sovereign power of the Union, the Nation’s right that its waterways be utilized for the interests of commerce of the whole country.”159 The sovereign power is that delegated by the sovereign American People as the “nation’s right”. That right, evident in part as the navigation servitude exercised in trust for the public benefit, is a dominant interest160 which subjects both state governmental and private property interests to the paramount authority of the United States.161

156

157 158

159 160 161

United States v. River Rouge Improvement Co., 269 U.S. 411, 419 (1926); Wilson v. The Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 251–52 (1829). Where the federal navigation servitude applies there is no compensation due in a taking of private interests for navigational purposes, but in the absence of a navigational purpose there is a taking compensable under the U.S. Const., amend. V. See United States v. Rands, 389 U.S. 121, 123 (1967). And see United States v. Gerlach Live Stock Co., 339 U.S. 725, 737 (1950); Palm Beach Isles Associates v. United States, 208 F.3d 1374, 1380–382, 1385 (2000); United States v. 50–Foot Right Of Way, 337 F.2d 956, 959–60 (3d Cir. 1964). Cooley supra note 1, at 591. 311 U.S. 377, 404 (1941). The navigation servitude applies to waters which may not now be navigable but which could in the future be improved or otherwise assist navigation. Id. at 407–08. Appalachian, supra note 158, at 405. United States v. Virginia E. & P. Co., 365 U.S. 624, 627 (1961). The title of a riparian or littoral owners is different in kind and subject at all times to the navigation servitude. Scranton v. Wheeler, 179 U.S. 141, 160–63 (1900). The Supreme

142

Chapter III

Sources & Public Trust, Prerogative & Constitution

The extent of the federal power over navigable waters is described by the Supreme Court, in terms resonant with the jus publicum responsibility of the Royal Prerogative, as follows in Parkersburgh and Ohio River Transp. Co. v. City of Parkersburgh: The States retain the general sovereignty and jurisdiction over all local matters within their limits; but the United States, through Congress is invested with supreme and paramount authority in the regulation of commerce with foreign Nations and among the several States. This has been held to embrace the navigable waters of the United States, of which the Ohio River is one. In the exercise of this authority over navigable waters, Congress has, from the commencement of the government, erected light-houses, break-waters and piers, not only on the sea coast but in the navigable rivers of the country; and has improved the navigation of rivers by dredging and cleaning them, and making new channels and jetties, and adopting every other means of making them more capable of meeting the growing and extending demands of commerce.162

As to each other the states are co-equal, and jurisdictional disputes have arisen as to the boundaries between them in adjoining areas of navigable waters. The United States applies international law for delimitation of these disputed state navigable waters, which include not only rivers and lakes but now coastal areas as well. Coastal areas became involved because the Federal Government transferred federal authority over the living and non-living resources of the territorial sea and seabed to the littoral states. This area of state interest extends out to three geographic miles from the territorial sea baseline within today’s 12-geographical-mile territorial sea, and remains subject to paramount federal authority including the navigation servitude public trust. Seaward boundary litigations between the states, and between the states and the Federal Government,163 have not resulted in any impact on the public trust responsibility of the Federal Government.164 As with the

162 163 164

Court writes in United States v. Kansas City Life Ins. Co., 339 U.S. 799, 808 (1950), in pertinent part, as follows: When the Government exercises this servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone. The owner’s use of property riparian to a navigable stream long has been limited to the right of the public to use the stream in the interest of navigation. 107 U.S. 691, 700 (1883). Submerged Lands Act, 43 U.S.C. § 1301 (2000). Mathews v. Bay Head Imp. Ass’n, 471 A.2d 355, 363 (1984). The federal concept of public trust is the apparent basis for the state application of the doctrine. Neptune City v. Avon, 294 A.2d 47, 51–55 (1972). In Neptune the court writes:

B. Constitutional Public Trust

143

Royal Prerogative jus publicum of the 17th and 18th centuries, that responsibility therefore remains the delegated charge of the Federal Government to which the public trust label was applied in the 19th century. The Supreme Court first put the “public trust” label to the King’s “dominion and property in navigable waters” in its 1842 decision, Martin v. Waddell’s Lessee.165 Martin applies the “public trust” concept in the context of a government being entrusted with the laws for their application in the public benefit (delegated government), the very concept which had evolved in English law by the time of the 1688–1689 Glorious Revolution.166 In Martin the Supreme Court clearly outlines that colonial letters patent referenced the North American territory to be held as a matter of discovery by the King “in his public and regal character as the representative of the nation, and in trust for them.”167 These “discovered” lands in North America were vacant lands and the King held title to all vacant lands.168 Thus the people “became themselves sovereign” at the time of the Revolution and “hold absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general Government.”169 Martin addresses fishery concerns under the New Jersey Charters issued to the Duke of York and subsequently to the New Jersey proprietors in 1664 and 1674, and makes the telling point that all rights in New Jersey returned to the Crown for the public benefit with surrender

165 166 167 168 169

We prefer, however, not to treat the case on this basis, but rather, as we indicated at the outset, to approach it from the more fundamental viewpoint of the modern meaning and application of the public trust doctrine. That broad doctrine derives from the ancient principle of English law that land covered by waters belonged to the sovereign, but for the common use of all the people. Id. Whereas states entering the Union after the original 13 did so “on an equal footing” they succeeded to the public trust responsibility over the submerged lands within their jurisdiction. Bell v. Town of Wells, 557 A.2d 168, 171–73, 176–79 (1989). The “equal footing” doctrine is based on the U.S. Const., art. IV, § 3, which reads, in pertinent part, that “New states may be admitted by Congress into the Union”. The Supreme Court has always interpreted this to mean with equal sovereign rights under the Constitution. For example Pollard V. Hagan, 44 U.S. (3 How.) 212, 221, 223 (1845); Coyle v. Smith, 221 U.S. 559, 567 (1911). 41 U.S. (16 Pet.) 367 (1842). Id. at 409. Id. at 409. Id. at 409. Id. at 410.

144

Chapter III

Sources & Public Trust, Prerogative & Constitution

of the charters, until the Revolution “when the people of New Jersey took possession of the reigns of government, and took into their own hands the powers of sovereignty, the powers and regalities which before belonged to either the crown or the Parliament, became immediately and rightfully vested in the State.”170 Martin is focused on the rights acquired by the states over navigable waters, and Chief Justice Taney focuses there on developing the rights of the states in the federal system. This follows on Justices Story and Marshall whose decisions address strengthening the role of the Federal Government. In the earlier Gibbons v. Ogden decision, authored by then Chief Justice Marshall, the Supreme Court had already clarified that navigation in interstate and international commerce on the navigable waters of the United States was subject to federal authority, so that state is subject to national authority established by the people as a whole.171 The point for the public trust concept is that, insofar as the King held the jus publicum for the people as a whole, the people of the United States succeeded to that power and interest. In pertinent part Gibbons reads: The genius and character of the whole government seem to be, that its action is applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state which do not affect other states, and with which it is not necessary to interfere, for the purposes of executing some of the general powers of the government.172

170 171

172

Id. at 416; see also Johnson v. M’Intosh, 22 U.S. (8 Wheat.) 543, 595 (1823). 23 U.S. (10 Wheat.) 1, 187 (1824). In Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724; 18 L. Ed. 99 (1865), the Supreme Court writes: Commerce includes navigation. The power to regulate commerce comprehends the control, for that purpose and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. [Cites omitted] This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and the punishment of offenders. For these purposes, Congress possess all the powers which existed in the States before the adoption of the National constitution and which have always existed in the Parliament of England. 23 U.S. (10 Wheat.) at 195.

B. Constitutional Public Trust

145

The concept of a national public trust over navigable waters for the public right of navigation follows a bifurcated path which can be understood in terms of 20th century tidelands litigation.173 There it has been clarified that, while the states succeeded to the Royal Prerogative rights within their jurisdictions and the American People transferred administration of certain of those rights in trust to the Federal Government, administration of the sovereign rights in coastal waters below low-water mark has always remained with the national government, be it the Congress of the United Colonies, the Congress of the Article of Confederation, or the Federal Government of the 1789 Constitution.174 The significance for the navigational freedom principle is that under both state and federal law over navigable waters public navigation is held as a public right in public trust175 as now expanded under the Constitution to be a public right for the commercial use of navigable waters of the United States with benefit of the a priori navigation servitude. Two decisions of the Supreme Court near the end of the 19th century round out the development of the constitutional “public trust” concept. In Illinois Central Railroad Co. v. Illinois the evolved concept of state navigable waters jurisdiction and ownership of submerged lands is confirmed, but as subject to “the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce”, and extends this doctrine to the Great Lakes.176 Importantly Illinois Central Railroad, Co. goes on to describe the title of the states to submerged lands as “a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed

173

174 175

176

United States v. California, 381 U.S. 139 (1965); supplemental decree 382 U.S. 448 (1966). See infra p. 267. The states did not grant jurisdiction over fisheries in state navigable waters under the Constitution. McCready v. Virginia, 94 U.S. (4 Otto) 391, __; 24 L.Ed. 248, 249 (1877). But under the Commerce Clause the Federal Government does control fisheries in navigable waters of the United States outside inland waters subject to state sovereignty. Douglas v. Seacoast Products, 431 U.S. 265, 272–82 (1977). And the public trust concept has been applied to the role of the United States in holding territory subject to formation as new states, so that federal grants of proprietary interests below high water mark in state jurisdictional navigable waters are outside the trust authority and do not stand upon entry to statehood. Pollard v. Hagan, 44 U.S. (3 How.) 221, 230 (1844). 146 U.S. 387, 435 (1892).

146

Chapter III

Sources & Public Trust, Prerogative & Constitution

from the obstruction of interference of private parties.”177 The trust and trust responsibility described in Illinois Central Railroad Co. are patently parallel with the trust held by the Federal Government over the navigable waters of the United States and submerged lands outside state jurisdiction. That is a public trust which cannot be abandoned, and which may always reassert title after a license to private interests (the Royal Prerogative power to revoke a grant). In pertinent part the Illinois Central Railroad Co. decision reads: The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for purposes of the trust can never be lost, except as to such purposes as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.178

The second decision is Shively v. Bowlby where the Supreme Court addresses a federal grant of lands below high-water mark in the Columbia River, which area at the time was held by the Federal Government outside any state, though subsequently the area became incorporated within the new State of Oregon.179 Shively reviews the United States position on sovereign navigable waters rights, beginning with, “[b]y the common law, both title and dominion of the sea, and of the rivers and arms of the sea, where the tide ebbs and flows, and all of the lands below high water mark, within the jurisdiction of the Crown of England, are in the King.”180 Lord Hale is quoted at length as the authority for navigable waters rights, and states that the English possessions in America were held in right of discovery, so that “having been discovered by subjects of the King of England, and taken possession of in his name, by his authority or with his assent, they were held by the King as the representative of and in trust for the nation.”181

177 178 179 180 181

Id. at 452. Id. at 452–53. 152 U.S. 1 (1894). Id. at 10–11. Id. at 14; see also Hall, supra note 28, at 3–4, 46. Hall is helpful in understanding some of the fishery issues between fisheries in navigable and non-navigable waters, and the King’s right of fishery versus the public right of fishery operating conjointly as jus privatum and jus publicum rights respectively in navigable waters. But importantly for the concept of the basic navigational freedom principle, Hall writes:

B. Constitutional Public Trust

147

The balancing of competitive state and federal jurisdictions over navigable waters of the United States is paralleled by the balancing of municipal and international competing jurisdictions for which the fulcrum is the territorial sea, which conceptual crucible levels the opposing weights of international interests in general commercial navigation and municipal protective interests in defense as well as commercial regulation. The point is that the public trust concept first articulated by the Long Parliament and carried through the 1688–1689 Glorious Revolution continues to protect the jus publicum public right of navigation, so that state governmental action cannot intrude to obstruct that enjoyment of navigable waters of the United States. As the basic navigational freedom principle continues to evolve from the Laws of Oleron, Wisby the Hanse Towns and earlier sea codes, that is, for the commerce of persons, goods and communications, as recognized even by Selden, through the 17th and 18th centuries North Sea fisheries disputes between the Dutch and the English, and through the evolution of contemporary United States municipal law, there is a manifest concordance with the public international law high seas regime and freedom of navigation as preserved in res communis public trust within the territorial sea, marginal sea zones and over high seas resources, rights and jurisdictions. The patent public trust parallel also exists with the Seabed Authority responsibility for administration of seabed resources as the common heritage of mankind under the 1982 United Nations Convention on the Law of the Sea. *

*

*

Nothing really has changed: All Merchants shall have safety and security in coming into England, and going out of England, and in staying and in travelling through England, as well by land as by water, to buy and sell, without any unjust extractions, according

The use of the sea, as a great highway, for the transportation of merchandise, or any other purpose for which its waters can be usefully navigate, is also a liberty or privilege belonging of common right to the people of England, by the same title as the fishery [the jus publicum]. Id. at 46 See also Moore & Moore, supra note , at xxxviii–xliii, 89, 91 (1903); Theobal, supra note 28 at 1–3, 13, 22–25, 56–61, 68–71, 73–6 (1929) (rather ironic that perhaps the best books on the subject of waters should bear Theobal’s title).

148

Chapter III

Sources & Public Trust, Prerogative & Constitution

to ancient and right customs excepting in the time of war, and if they be of a country at war with us: and if such are found in our land at the beginning of a war, they shall be apprehended without injury to their bodies and goods, until it be known to us, or to our chief justiciary, how the Merchants of our country are treated who are found in the country at war against us; and ours be in safety there, the others shall be in safety in our land.

The Great Charter of King John (XLII.33), Granted June 15, 1215.182

182

Thompson, supra note 92, at 63, 83. This charter provision was largely repeated in the Second Great Charter of King Henry III (1217), reprinted in id. at 118, 127.

Chapter IV Navigational Servitudes: Parallels – Conventional Law of the Sea The Selden/Grotius dispute has produced parallel equitable principles for public trusts as protecting and preserving the navigational freedom principle. In doing so beneficial interests are balanced by servitudes applied to achieve the broadest public benefit, consistent with the applicable navigational interests involved. This has been the function of the territorial sea crucible. Ultimately the Grotian high seas regime was conventionally established in the 20th century, but the interface of littoral State extended protective jurisdictions and high seas regime freedom of navigation remains an international law work-in-progress. Indeed that progress began with codification efforts for the 1930 Hague Codification Conference.1 And through to the 1958 Geneva Conventions on the Law of the Sea2 the balancing of jurisdiction requirements or ambitions of littoral States with high seas regime freedoms has continued. Notably the 1958 Geneva Conventions are a significant step forward and show the evolving international law res communis public trust.3 Later, in 1982, the provisions of the United Nations Convention on the Law

1 2

3

See infra pp. 232–35. Convention on Fishing and Conservation of the Living Resources of the High Seas, Geneva, April 29, 1958, 1958, 17 U.S.T. 138; 559 U.N.T.S. 286 (hereinafter Geneva Conventions, 17 U.S.T. ___), ratified May 26, 1960, 17 U.S.T. 138; Convention on the Territorial Sea and Contiguous Zone, Geneva, Apr. 29, 1958, 15 U.S.T. 606; 516 U.N.T.S. 206 (hereinafter Geneva Conventions, 15 U.S.T. ____), ratified May 26, 1960, 15 U.S.T. 606; Convention on the Continental Shelf, Geneva, Geneva, Apr. 29, 1958, 15 U.S.T. 472, 499 U.N.T.S. 311 (hereinafter Geneva Conventions, 15 U.S.T. ___), ratified April 12, 1961, 12 U.S.T. 471; Convention on the High Seas, Geneva, April 29, 1958, 13 U.S.T 2314; 450 U.N.T.S. 82 (hereinafter Geneva Conventions,13 U.S.T. _____), ratified May 26, 1960, 13 U.S.T. 2312. “Public Trust” is “The principle that navigable waters are preserved for the public use, and that the state is responsible for protecting the public’s right to the use.” Black’s at 1246.

150

Chapter IV

Parallels – Conventional Law of the Sea

of the Sea (UNCLOS)4 carried the navigational freedom principle further in the ongoing process of balancing international law with municipal law extensions of protective jurisdiction. But the achievement of a high seas regime territorial sea definition for general navigation in innocent passage has not been the final crucible. The United States views UNCLOS in large part to reflect the custom and usage of States,5 and the significance of UNCLOS regardless of whether eventually ratified by the United States is its major contribution to the development of the res communis public trust – the next crucible.

A. 1958 Geneva Law of the Sea Conventions/Public Trust and Servitudes The 1958 First United Nations Conference on Law of the Sea produced four conventions,6 the Convention on the High Seas, the Convention on the Territorial Sea and Contiguous Zone, the Convention on the Continental Shelf, and the Convention on Fishing and Conservation of the Living Resources of the High Seas. Each of the Geneva Conventions provides for preservation of certain high seas uses, and together they purport to regulate those uses both within high seas waters (including superjacent airspace, water column, seabed and subsoil) and on the continental shelf, as well as within the territorial sea and contiguous zone. The provisions of the 1958 Geneva Conventions in fact establish navigational servitudes for particular high seas usages, applied to aspects of the underlying navigational freedom principle inherited from the 17th century Selden/Grotius dispute. Those high seas regime servitudes are balanced in the territorial sea crucible with littoral State navigational servitudes as extended for protective jurisdiction. It is the acceptance of littoral State extended protective jurisdiction which provides the international law basis for acceptance of occupation and possession of closed coastal waters and the territorial sea 4

5

6

UNCLOS A/CONF.62/122 (Oct. 7, 1982); I. No. 31363, 1833 U.N.T.S. 397 (1982) (hereinafter UNCLOS, 1833 U.N.T.S. __). See infra pp. 158–59, 201. United States criminal law is extended to the territorial sea and contiguous zone as with the “special maritime and territorial jurisdiction of the United States.” 18 U.S.C. § 7 (2000). United States jurisdiction over piracy is contained in 18 U.S.C. § 1651 (2000). See supra note 2.

A. 1958 Geneva Law of the Sea Conventions/Public Trust and Servitudes

151

with which the public rights to fishing and navigation are merged within the navigable waters of the United States. Notably it is the international law acceptance of the municipal law navigation servitude aspects which points to the commonality of the navigational freedom principle and the strength of the high seas regime navigational servitudes, even in marginal sea areas, because they provide the broadest public benefit. The Convention on the High Seas sets forth the freedom of navigation principle, prescribing in Article 2 that: The High Seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-littoral States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.7

This Article 2 language postulates a public trust. “Freedom of the high seas” is the res communis public trust. The trust res or corpus is the common legal principle, “freedom of high seas navigation usage rights”, as protected and preserved under the terms of the High Seas Convention and administered by the member States as reciprocal governmental trustees for a priori and interdependent mutual beneficial interests of their people.8 The consequence is that the public right, navigational freedom and its derivatives cannot be usurped by any one or more States, which is parallel to the inalienability of the public rights of fishing and navigation under the Royal Prerogative jus publicum and the navigation servitude of the Commerce Clause of the United States Constitution. The direct effect of the Convention on the High Seas is to prevent any member State or group of States, whether acting directly or indirectly, from asserting sovereignty over the high seas through discriminatory activities impacting or excluding usage by other States.9 Therefore the meaning of a

7

8 9

Geneva Conventions, supra note 2, 13 U.S.T. at 2314. The 1960 Second UN Conference on law of the Sea produced no agreements. See infra 153–55. Geneva Conventions, supra note 2, art. 2, 13 U.S.T. at 2314.

152

Chapter IV

Parallels – Conventional Law of the Sea

high seas juridical regime is patently a public trust, with all the minerals, flora and fauna therein contained subject to the non-exclusive use of all States. Thereby Grotius’ principle of high seas freedom is achieved; there is a true res communis with no State being excluded from beneficial uses such as fishing and harvesting non-living resources of the water column, seabed and subsoil. And the common freedom of navigation principle is evident, applied, protected and preserved for all States in that res communis public trust. Articles addressing shipping, proscription of slavery, piracy, pipeline discharges and dumping of radio-active materials, as well as allowing hot pursuit of offenders,10 further identify conventional high seas navigational servitudes akin to the governmental protective jurisdictions of littoral States. The significance is that these high seas conventional navigational servitudes enable an ordering of the oceans pursuant to enforceable and nondiscriminatory res communis public trust provisions. Importantly the Convention on the High Seas does not directly address the seabed and subsoil resources, but Article 26 does preserve the right of all States to lay cables and pipelines on the seabed.11 Nonetheless the seabed and subsoil are subject to the res communis public trust under the high seas regime of customary international law and, under certain circumstances similar to the Royal Prerogative grant of a several fishery in navigable waters, such high seas resource extraction has been lawful.12 This has raised contemporary issues concerning susceptibility of the seabed and subsoil to occupation and possession13 through resource extraction, and thereby the potential for discriminatory exclusion of other States. The United Nations Law of the Sea Convention (UNCLOS) addresses this concern with the “common heritage of mankind” concept, and that, in essence, is a refining of the res communis public trust of customary international law and of the 1958 Geneva Conventions. The res communis regime excludes occupation and possession of the high seas, its superjacent air space, seabed, subsoil, living and non-living

10 11

12 13

Id., arts. 4, 13–21, 23–25, 15 U.S.T. at 1606–609. Geneva Conventions, supra note 2, 13 U.S.T 2314; UNCLOS, supra note 4, 1833 U.N.T.S. 442. See supra c. i, note 79. “[O]ccupation . . . 2. The possession, control, or use of real property; . . . .” Black’s at 1107. “[P]ossession. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; . . . .” Id. at 1183.

A. 1958 Geneva Law of the Sea Conventions/Public Trust and Servitudes

153

resources, by any State or group of States. No State has, nor group of States have, the legal capacity under customary or conventional international law to exclude other States from the high seas freedoms protected by the juridical regime of the res communis public trust, which perforce must give the broadest application to the navigational freedom principle. The Convention on the Territorial Sea and Contiguous Zone addresses the issue of territorial sea baseline delimitation and outer limits to be measured from the baseline, as well as the rights of the littoral State within the territorial sea and the application there of certain high seas freedoms.14 At heart in delimitations is the issue of discriminatory extension of jurisdiction by the littoral State, and whether the high seas res communis15 is a public trust sufficient to protect and preserve nondiscriminatory usage by all States as beneficiaries in marginal sea areas. The Convention codifies resolution of this concern by providing: (1) a conventional navigation servitude over the territorial sea which preserves the international law right of all States to proceed in innocent passage through waters formerly constituting high seas areas, but later agreeably encompassed within territorial seas through measurements from baseline delimitations including ordinary low-water mark, closing lines for bays and fringing islands,16 and (2) a conventional navigation servitude over the territorial sea which renders municipal law as applied to that marginal sea area “subject to these articles and to other rules of international law”.17 This is acceptance of littoral State territorial sea ownership,18 sovereignty, subject to reserved a priori high seas regime freedoms. This is also a contest on a “fulcrum”, where “balance” protects and preserves the common navigational freedom principle from both, and either, the littoral State and international law perspectives. The result is preservation of the res communis public trust within the territorial sea when the involved navigation is general and not directed to impact the municipal law of the littoral State; that is, innocent passage, force majeure, refuge and safe haven remain high seas regime rights of the res communis public trust which continue to apply in the coastal belt of marginal sea areas.19 The equation is 14 15 16 17 18 19

Geneva Conventions, supra note 2, arts. 16, 19, 15 U.S.T. 1610. See supra pp. 17–34. Geneva Conventions, supra note 2, art. 4, 14–15, 17, 15 U.S.T. 1608, 1610–611. Id., art. 1, 15 U.S.T. 1608. Geneva Conventions, supra note 2, arts. 14–19, 15 U.S.T. 1610–611. Innocent passage applies through straits from one part of the high seas to another, or to the territorial sea of a third State. Id., art. 16.4, 15 U.S.T. 1611.

154

Chapter IV

Parallels – Conventional Law of the Sea

that passage innocent among non-warring nations on the high seas remains innocent within the territorial sea and contiguous zone. Thereby, submarines as “innocent” are required to run surfaced and show their flags, as must other “innocent” naval vessels identify themselves. “Innocent” means non-hostile to the littoral State; it is defined in reference to the littoral State, and in that way balances high seas regime navigational freedom with littoral State protective jurisdiction servitudes.20 The right for such innocent passage is founded in both conventional and customary international law subject to the littoral State’s governmental servitudes for protective jurisdiction over customs, immigration, law enforcement and shipping rules, but otherwise is an inextinguishable a priori right antedating even territorial sea sovereignty based on Selden’s occupation and possession. Whereas the territorial sea regime does exclude res communis usages, other than innocent passage and its derivatives, balance is achieved. Littoral State sovereignty extended over the territorial sea historically has been for provision of public order, navigational safety and general good government (policing) – all matters of extended protective jurisdiction. Customs law, however, presents a need for extension and application of protective jurisdiction even beyond the territorial sea, which is recognized by the Convention on the Territorial Sea and Contiguous Zone. There a custom zone is conventionally accepted for littoral States as “a zone of high seas contiguous to its territorial sea”. This zone is to be extended no more than 12 nautical miles from the territorial sea baseline, wherein a littoral State may exercise “control” of high seas navigation for the prevention of “infringement of its customs, fiscal, immigration or sanitary regulations within its territory”.21 The idea is a zone seaward of but contiguous to the outer boundary of the territorial sea. The allowed control is not based on territorial sovereignty, and indeed this 1958 contiguous zone is reminiscent

20 21

Id., art. 2, 15 U.S.T. 1608. Id., arts. 16, 19, 15 U.S.T. 1611, 1612. A contiguous zone is simply an area of coastal waters adjacent to a particular littoral State where navigational protective jurisdiction is exercised for limited purposes such as resource management and customs. For example see the Contiguous Fisheries Zone Act of 1966, 16 U.S.C. § 1091 (repealed P.L. 94-265 § 402(a) 1976); Magnuson-Stevens Fishery Conservation Act of 1995, 16 U.S.C. § 1802(11); and Marine Mammal Protection Act of 1972, 16 U.S.C. § 1362(15). Contiguous zones are applied in maritime areas subject to the high seas regime outside territorial waters. See for example The Reidun, 14 F. Supp. 771, 773 (1936), a 12-geographical mile customs zone enforcement case.

A. 1958 Geneva Law of the Sea Conventions/Public Trust and Servitudes

155

of the protective jurisdiction customs zone applied by Great Britain during the 17th and 18th centuries.22 It evidences both the fundamental and continuing acceptance in international law of the need for protective jurisdiction as a governmental navigation servitude beyond the territorial sea. In short, activities directed at violations of littoral State security and laws, as well as those of international law, are not protected navigation under the high seas regime of the res communis public trust. The Convention on the Continental Shelf memorializes a 20th century development in law of the sea which initially was announced for customary international law in the 1945 Truman Proclamation on the Continental Shelf.23 That is, the concept of a juridical regime over the submerged coastal shelf feature, including the geological shelf, slope and rise, as geomorphologic prolongations of the coast and distinct from the abyssal plain of the deep seabed.24 This continental shelf juridical regime appertains “to the seabed and subsoil of the submarine areas adjacent to the coast but outside the territorial sea”, and extending to the 200-meter isobath or beyond to where the depth admits of exploitation.25 The superjacent high seas water column is excluded from the continental shelf regime and remains within the high seas regime res communis public trust. But the littoral State protective jurisdiction extending within the 12-mile contiguous zone under the Convention on the Territorial Sea and Contiguous Zone is applicable to both the superjacent water column and the underlying continental shelf within the contiguous zone. On the continental shelf the littoral State protective jurisdiction is asserted over the living and non-living resources to the exclusion of any prior res communis interest of other States.

22 23

24 25

Id., art. 24, 15 U.S.T. 1612. Id., 15 U.S.T. 472. President Harry S. Truman, by Presidential Proclamation No. 2667, September 28, 1945, __ Fed. Reg. ___; 59 Stat. 884, proclaimed that: The United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In 1953 Congress passed the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 (2000), Section 3(a) of which declares: T]he subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this Act. 43 U.S.C. §1332(1). Geneva Conventions, supra note 2, art. 15 U.S.T. 472. Id., art. 1, 15 U.S.T. 473.

156

Chapter IV

Parallels – Conventional Law of the Sea

As codified in the Convention, a littoral State does not acquire “sovereignty” over the shelf, with the attendant occupation and proprietary interests but rather acquires “sovereign rights”, “for the purposes of exploring it and exploiting its natural resources”.26 Such sovereign “rights” are “exclusive” and may not be exercised by any other State regardless of whether the littoral State acts or has acted on its rights.27 These sovereign rights do not depend on occupation and possession of a res nullius nor on any express littoral State proclamation.28 They are both customary and conventional and exclusively encompass the exploitable natural resources including non-living resources as well as biota.29 The effect is a juridical formula which balances the discriminatory effect of such extended littoral State exclusive jurisdiction by ascribing a continental shelf ab initio to each and every littoral State. The discriminatory use of the continental shelf is reciprocal and, thereby, apparently provides a compensatory offset to each littoral State for its exclusion from the continental shelf resources of other littoral States.30 Other States continue to have the right to lay cables on the littoral State’s continental shelf, and exploration of the continental shelf may not impact navigation, nor fishing or other high seas regime activities derivative of navigational freedom.31 The point for the Convention on the Continental Shelf is that continental shelf resources are not subject to either a particular or an undivided littoral State proprietary interest in minerals, shelf creatures or flora in situ, but such resources are only subject to the exclusive use of the littoral State by exploration and exploitation. This is consonant with the supporting res communis public trust from which the continental shelf customary and conventional navigational servitudes are drawn. Once extracted, the issue of property rights in mineral, flora and fauna resources of the seabed and subsoil of the continental shelf is a municipal law matter. The Convention on Fishing and Conservation of the Living Resources of the High Seas recognizes that “all States have the right for their nationals to engage in fishing on the high seas”32 and have a duty to “adopt or co-operate

26 27 28 29 30 31 32

Geneva Conventions, supra note 2, art. 2.1, 15 U.S.T. 473. Id., art. 2.2, 15 U.S.T. 473. Id., art. 2.4, 15 U.S.T. 473. See supra p. 155. Geneva Conventions, supra note 2, art. 5, 15 U.S.T. 473. Id., art. 4, 15 U.S.T. 473. Id., art. 5.1, 15 U.S.T. 473.

B. 1982 United Nations Law of the Sea Convention

157

with other States in adopting” conservation measures for living resources.33 Special recognition is given to the interest of the littoral State in the high seas living resources proximate to its territorial sea, and provision also is made for inclusion of littoral States in the development and implementation of any conservation plan.34 Further provision is made for fisheries conducted by equipment fixed in the seabed outside the territorial sea, excluding “areas where such fisheries have by long usage been exclusively enjoyed by” nationals of the littoral State.35 The concept of the Convention on Fishing and Conservation of Living Resources of the High Seas is custodial, with exclusive property rights only in harvested resources36 and, like the Convention on the Continental Shelf, establishing high seas regime navigational servitudes to protect and preserve the resource within an agreed juridical arrangement under enforceable regulation.37 Patently this custodial conservation scheme is a res communis public trust within the high seas regime.

B. 1982 United Nations Law of the Sea Convention/Public Trust and Servitudes The Third United Nations Law of the Sea Conference (UNCLOS III) met from 1976 through 1982, producing the United Nations Law of the Sea Convention (UNCLOS) which further codifies the relationship of navigational servitudes, both municipal and international, for the States parties. UNCLOS enhances the res communis38 public trust with important new aspects pertaining to land-locked States39 as well as to extraction and harvesting of mineral and living resources of the high seas including the seabed and subsoil. UNCLOS identifies the minerals of the seabed and subsoil beyond the continental shelf as the “common heritage of mankind”

33 34 35 36 37 38

39

Id., art. 1.1, 17 U.S.T. 140. Id., art. 1.2, 17 U.S.T. 140. Id., art. 6, 7, 17 U.S.T. 141. Id., art. 13.1, 17 U.S.T. 143–44. UNCLOS, supra note 432, Part XI, 1833 U.N.T.S. at 443. “RES COMMUNIS (L): things that are owned by no one, but available for the use of all.” James R. Fox, Dictionary of International & Comparative Law 378 (1992). “[R]es publicae . . . . Things that cannot be individually owned because they belong to the public, such as the sea, navigable waters, and highways.” Black’s at 1314. Id., Part XI, 1833 U.N.T.S. at 445.

158

Chapter IV

Parallels – Conventional Law of the Sea

while otherwise preserving the res communis40 public trust and the high seas juridical regime over the water column and superjacent airspace. The seabed and subsoil mineral resources in situ, as the common heritage of mankind, present intriguing consequences in the evolution of international law by establishing a declared clear public trust41 relationship and reciprocal responsibility for the community of States over such resources within the traditional res communis public trust. The high seas regime issue of course is whether there are or could be any proprietary rights in the seabed and subsoil, and the a priori status of such resources within the res communis public trust certainly excludes such attachment, as it has for the continental shelf regime. However, the terms of this public trust “indenture” came to be a significant sticking point in 1982. UNCLOS III negotiations began in 197642 and rendered a final inclusive law of the sea document on December 10, 1982, at Montego Bay, Jamaica.43 The 1982 Montego Bay document did not enter into force until November 16, 1994,44 and such lengthy production and implementation time periods combine to signal the contentiousness of contemporary law of the sea issues as contained in this vital convention. The territorial sea and contiguous zone, the continental shelf, the high seas and high seas fisheries continue to be focal points for conventional navigational servitudes under UNCLOS, and largely continue to reflect customary law and provisions similar to the widely accepted 1958 Geneva Conventions.45 Nonetheless, the seven-year

40

41

42 43 44 45

The common heritage concept has been compared with res communis, and distinguished in that res communis permits unrestricted use, whereas common heritage as applied to the seabed does not. This comparison is supplied in the context of considering whether the common heritage is a new territorial concept. Shaw, supra note , at 454–55, 485, 491, 561–63. Rather than a new territorial concept, what is apparent is a new public trust concept where the applicable use involves extraction of a non-renewable resource which, without limitation, would defeat the beneficial interest of other States in that resource as a common heritage. The work of UNCLOS III was at most de lege ferenda and its negotiating texts and Draft UNCLOS are not law. Fisheries Jurisdiction Case (U.K. v. Ice.), 1974 I.C.J. 3, 23–24, and the Fisheries Jurisdiction Case (F.F.G. v. Ice.), 1974, I.C.J. 190, 192, 198. The Special Court of Arbitration made this same observation in the English Channel Arbitration, 54 I.L.R. 40, ¶ 47 (1977); 18 I.L.M. 1249. See supra note 4. UNCLOS, supra note 4, 1833 U.N.T.S. 397. See supra note 4. See supra note 2.

B. 1982 United Nations Law of the Sea Convention

159

negotiating period together with the 12-year implementation period for UNCLOS underscores that new balances are being attempted between municipal law protective jurisdictional interests and international high seas regime interests of the res communis public trust. Those efforts have continued after UNCLOS implementation, but the United States has not been satisfied due to the intrusion of non-law of the sea political objectives promoting collateral matters.46 For the United States the result to date is Senate inaction toward ratification of UNCLOS, though UNCLOS has been signed by the United States, filed with the Senate for ratification and referred to the Senate Foreign Relations Committee, where testimony supporting ratification was supplied by the Department of State.47 Pending penultimate re-report

46

47

Issues surrounded provisions contained in the various negotiating texts, the Draft UNCLOS and ultimately UNCLOS, for wealth transfer to lesser developed states, both from the outer continental shelf and from the deep seabed, with controversial voting control mechanisms giving the lesser developed States control of seabed and subsoil resources. From the United States perspective these issues may be resolved. See infra, note 52. See generally Edward Miles, Global Ocean Politics (1998). Hearings on Ratification of the United Nations Law of the sea Conference, before the Senate Comm. on Foreign Relations, 108th Cong. 1st Sess. __ (2003)(testimonies of William H. Taft, Legal Adviser, U.S. Dept. State, and John F. Turner, Ass’t Sec., Bureau of Oceans & Environmental & Scientific Affairs, U.S. Dept. of State). Supporting governmental testimony for ratification of UNCLOS also was filed in the foregoing hearings on behalf of (1) the Homeland Security Department, United States Coast Guard, by John E. Crowley, Jr., Rear Admiral, (2) the Administration and the Department of Defense, by Frank T. Esper, Dep. Ass’t Sec. Defense for Negotiations Policy, and (3) the Administration and the United States Navy by Michael G. Mullen, Admiral, Vice Chief Naval Operations, U.S.N. Supporting industry and public interest group testimony also was filed in the foregoing hearings (1) by David G. Burney, U.S. Tuna Foundation, Joseph D. Cox, President, Chamber of Shipping of America, (3) Paul L. Kelly, Senior Vice President Rowan Companies, Inc., on behalf of American Petroleum Institute, and Roger Rufe, President, The Ocean Conservancy. The original United States UNCLOS III Delegation apparently intended to delay sending UNCLOS to the Senate for ratification until about 1985 when the Authority would have worked out rules and regulations. Letter from John Norton Moore, President, Oceans & International, to Mr. David Abshire, Center for Strategic and international Studies (Dec. 2, 1980) (on file with author). The 1994 Title XI Agreement, infra note 121, seems to have met the Delegation concerns and those of industry. Carl L. Raulston, Senior Vice President, Communications, National Mining Association, informs Ralph J. Gillis by an email transmission dated Oct. 12, 2004, that “I am not aware of any NMA member companies with positions on this matter.” In addition, James D. Watkins, Chairman, United States Commission on Ocean Policy, in a Statement dated April 20, 2004, states that the Administration announced its support for UNCLOS ratification on March 23, 2004. And,

160

Chapter IV

Parallels – Conventional Law of the Sea

out of committee and ultimate Senate ratification,48 UNCLOS may yet see United States participation – but then, maybe not.49 UNCLOS is a complex document comprised of 17 Parts and 9 Annexes.50 Part II addresses the territorial sea and contiguous zone, in large measure following provisions contained in the Geneva Convention on the Territorial Sea and Contiguous Zone.51 UNCLOS sets a 12-nautical-mile outer limit is set for the territorial sea,52 expanding the marginal sea area subject to littoral

48 49

50 51 52

Senator Richard Lugar, Senate Foreign Relations Committee, has announced his support for UNCLOS ratification in the April 2004 edition of Global Issues, available at http:// usinfor.state.gov/journals/itgic/0404/ijge/ijge0404.htm (last visited April 21, 2006). The Department of State also directly communicated its support for UNCLOS ratification. Hearings before the Senate Foreign Relations Comm., Exec. Rept. 108–10, 108th Cong. (Oct. 21, 2003) (Testimony of John F. Turner, Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs). Testimony supporting and opposing ratification has been submitted in more recent hearings in the House of Representatives. Hearing before the House Committee on International Relations, 108th Cong., 2nd Sess. ___ (May 12, 2004) (Testimony of John Norton Moore, Professor, University of Virginia, supporting ratification), and Testimony of Dr. Peter M. Leitner, Senior Strategic Trade Advisor in the Office of the Secretary of Defense appearing as a private citizen in opposition to ratification). The U.S. Commission on Ocean Policy, established under the Oceans Act of 2000, 33 U.S.C. § 857 (2000), submitted its An Ocean Blueprint for the 21st Century Final Report of the U.S. Commission on Ocean Policy, part VIII, 8, (Sept. 30, 2004), to the President recommending ratification of UNCLOS. This is the constitutionally required process. U.S. Const. art. II, § 2, cl. 2. The change of political control in the Senate for the 100th Congress, First Session, in January 2007, opens a new chapter on whether action will be taken to give advice and consent to UNCLOS and the 1994 Title XI Agreement. This is discussed further in Chapter VII hereafter. UNCLOS, supra note 4, 1833 U.N.T.S. 397. Geneva Conventions, supra note 2, 15 U.S.T. 1606. UNCLOS, supra note 4, art. 3, 1833 U.N.T.S. 400. The United States extended its territorial sea from three to 12 miles by Presidential Proclamation No. 5928, 54 Fed. Reg. 777 (1988), reprinted in 43 U.S.C.A. § 1331 (West 1986, Supp. 2005). The Territorial Sea Proclamation extends United States sovereignty as follows: The territorial sea of the United States is a maritime zone extending beyond the land territory and internal waters of the United States over which the United States exercises sovereignty and jurisdiction, a sovereignty and jurisdiction that extend to the airspace over the territorial sea, as well as to its bed and subsoil. Though UNCLOS had not as of the Proclamation date become effective, and regardless that the United States neither ratified nor signed UNCLOS, the Proclamation recognized the provisions for innocent passage through this newly extended territorial sea, as follows:

B. 1982 United Nations Law of the Sea Convention

161

State occupation and possession. More detail is provided in UNCLOS on the elements of territorial sea innocent passage53 and clarification is supplied on littoral State rights to enforce municipal law where passage is inconsistent with such law and, therefore, no longer innocent.54 The Contiguous Zone is expanded to 24 nautical miles as measured from the territorial sea baseline,55 an increase of that navigation servitude from the 12 nautical miles provided under the Convention on the Territorial Sea and Contiguous Zone.56 The

53

54 55

56

In accordance with international law, as reflected in the applicable provisions of the 1982 United Nations Convention on the Law of the sea, within the territorial sea of the United States, the ships of all countries enjoy the right of innocent passage and the ships and aircraft of all countries enjoy the right of transit passage through international straits. Reprinted at 43 U.S.C.A. § 1331 (West 1986, Supp. 2005). Under United States law the member states are authorized to extend their coastal boundaries three miles into the territorial sea. Submerged Lands Act, 43 U.S.C. §§ 1301, 1312 (2000). UNCLOS, supra note 4, arts. 17–26, 1833 U.N.T.S. 404–07. The strength of innocent passage as an aspect of the navigational freedom principle is shown in the preservation of that right in areas enclosed as inland waters through expanded territorial baselines. See Oppenheim, supra c. i, note 10, at 610. UNCLOS, supra note 4, arts. 17–32, 1833 U.N.T.S. 405–10. Id., art.33, 1833 U.N.T.S. 409. The United States extended its contiguous zone from 12 to 24 miles by Presidential Proclamation No. 7219, 64 Fed. Reg. 48701 (1999), reprinted in 43 U.S.C.A. § 1331 (West 1986, Supp. 2005). The Contiguous Zone Proclamation extends the United States protective jurisdiction as “control,” and reads in pertinent part as follows: The contiguous zone of the United States is a zone contiguous to the territorial sea of the United States, in which the United States may exercise the control necessary to prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea, and to punish infringement of the above laws and regulations committed within its territory or territorial sea. Though UNCLOS had not as of the Proclamation date become effective, and regardless that the United States neither ratified nor signed UNCLOS, the Proclamation recognized the provisions for innocent passage through this newly extended territorial sea, as follows: In accordance with international law, reflected in the applicable provisions of the 1982 Convention on the Law of the Sea, within the contiguous zone of the United States the ships and aircraft of all countries enjoy the high seas freedoms of navigation and overflight and the laying of submarine cables, and other internationally lawful uses of the sea related to those freedoms, such as those associated with the operation of ships, aircraft, and submarine cables and pipelines and compatible with the other provisions of international law reflected in the 1982 Convention on the Law of the Sea. Reprinted at 43 U.S.C.A. § 1331 (West 1986, Supp. 2005). Geneva Conventions, supra note 2, art. 24, 15 U.S.T. 1612–613.

162

Chapter IV

Parallels – Conventional Law of the Sea

UNCLOS–authorized littoral State “control” within the now 24-mile contiguous zone is that governmental extended protective jurisdiction “necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; [and] (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.”57 UNCLOS, Part VI, contains continental shelf provisions which also follow on those navigational servitudes of the Convention on the Continental Shelf, and again provide more detail in delimiting the outer or seaward shelf boundary of the geomorphologic coastal shelf prolongation, including for the continental margin (shelf, slope and rise), extending beyond the 200-meter isobath. A maximum seaward extension for the continental shelf is set at 350 nautical miles from the territorial sea base line.58 Selden and Grotius are balancing yet. A significant continental shelf regime addition is contained in UNCLOS, Article 82, where a payment–in–kind extraction fee is imposed as a high seas regime navigation servitude for the States parties on continental shelf resources removed from beyond the 200-meter isobath and within the 350nautical mile maximum extension for continental shelf jurisdiction.59 This imposition is a limit on customary sovereign rights stated in the Truman Proclamation, as well as on conventional sovereign rights as contained the Convention on the Continental Shelf. Query whether full Congressional action is constitutionally required for such an abatement of United States sovereign rights on the outer shelf, or whether the reserved res communis status of the shelf aside from continental shelf rights is sufficient to assess the fee and has no impact on national rights. The importance for present purposes is that the Article 82 severance fee is to be covered to The Authority60 for application and distribution “on the basis of equitable sharing criteria, taking into account the interest and needs of developing States, particularly the less developed and the land-locked among them.”61 Key here is that The Authority is to receive and distribute those revenues, so that the majority voting control of The Authority will define “equitable sharing criteria” which may raise an issue if there is no meaningful oversight for discriminatory

57 58 59 60 61

Geneva Conventions, supra note 2, art. 24, 15 U.S.T. 1612–613. Id., art. 76.6, 1833 U.N.T.S. 428–29. Id., 1833 U.N.T.S. 431. UNCLOS, supra note 4, arts. 151–53, 156–85, 1833 U.N.T.S. 452–55, 457–75. Id., art. 82, 1833 U.N.T.S. 431.

B. 1982 United Nations Law of the Sea Convention

163

distributions or fiduciary malefactions. But voting aside, the prescribed role of The Authority for the UNCLOS States parties is certainly that of a trustee, a conventional public trust administrator with management responsibility for use of seabed and subsoil resources within the high seas regime and the overarching res communis public trust.62 The conventionality of this public trust and its accumulation of wealth is significant, in that the fees involved are without basis for application as a tax, whether conventionally or customarily applied. Calculation and collection of such fees must represent the severance value of the resource to the community of States rather than a quasi-governmental “charge” for harvesting. Part of the continental shelf, within the area measured as 200 nautical miles from the territorial sea baseline,63 comes within the new juridical regime of the UNCLOS exclusive economic zone (EEZ) for superjacent waters. The EEZ has become a matter of customary law as has continental shelf jurisdiction, and on that juridical basis an EEZ has been implemented by the United States.64 Under UNCLOS the EEZ apparently no longer contains “high seas” but does preserve certain high seas regime navigational servitudes,65 while being established as a distinct juridical regime of littoral

62

63 64 65

Id., art. 77.3, 1833 U.N.T.S. 429–30. UNCLOS, supra note 4, art. 77, 1833 U.N.T.S. 429–30. Id., art. 76, 1833 U.N.T.S. 428–29. Id., Part V, 1833 U.N.T.S. 418–28; Id., art. 58, 1833 U.N.T.S. 419. The United States asserted an exclusive economic zone by Presidential Proclamation No. 5030, 48 Fed. Reg. 10601 (1983), reprinted in 16 U.S.C.A. § 1453 (West 2000, Supp. 2005). The Exclusive Economic Zone Proclamation extends United States sovereign rights and jurisdiction 200 miles seaward as follows: The Exclusive Economic Zone of the United States is a zone contiguous to the territorial sea of the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands (to the extent consistent with the Covenant and the United Nations Trustee Agreement), and United States overseas territories and possessions. The Exclusive Economic Zone extends to a distance of 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. In cases where the maritime boundary with a neighboring State remains to be determined, the boundary of the Exclusive Economic Zone shall be determined by the United States and other State concerned in accordance with equitable principles. Within the Exclusive Economic Zone the United States has, to the extent permitted by international law, (a) sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, both living and non-living, of the seabed and subsoil and the superjacent waters and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the

164

Chapter IV

Parallels – Conventional Law of the Sea

State and conventional navigational servitudes.66 The UNCLOS EEZ regime accords the littoral State “sovereign rights” for the purpose of exploring and exploiting the living and non-living resources of the water column, seabed and subsoil within the zone,67 while preserving the high seas regime servitude within the EEZ for nondiscriminatory freedom of navigation for all States,68 as well as for over-flight, the laying of submarine pipeline and cables, and “other internationally lawful uses of the sea related to these freedoms.”69 The obvious bargain here is a trade-off by the States parties of the nonjurisdictional continental shelf water column to littoral States in exchange for the severance fee on continental shelf resource extractions beyond 200 nautical miles, with The Authority taking jurisdiction for collections. This is yet again littoral State and high seas regime jurisdiction balancing in the crucible territorial (marginal) sea areas which has been going forward since the 17th century and the Selden/Grotius dispute. UNCLOS high seas provisions otherwise generally follow those of the Convention the High Seas, all as listed in the UNCLOS, Article 87, definition of high seas freedoms together with undefined “other rules of international law”.70 The point is that balancing between high seas navigational servitudes and increasing extensions of littoral State governmental navigational servitudes in marginal sea areas remains an ongoing evolutionary process. Selden is gaining on Grotius in the 21st century.71

66 67 68

69 70 71

water, currents and winds; and (b) jurisdiction with regard to the establishment an due of artificial islands, and installations and structures having economic purposes, and the protections and preservation of the marine environment. UNCLOS, supra note 4, art. 55, 1833 U.N.T.S. 418. Id., art. 56, 1833 U.N.T.S. 418. Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International law of the Sea (1990). See also R-J Dupuy & D. Vignes, Traite du Nouveau Droit de la Mer, 692 (1985), writing as follows: La Liberté de navigation se concrétiez, comme on l’a vu, dans les droits et des obligations des Etats. Ce sont ces derniers, et non les navires arborant leur pavillon, qui ont le droit d’Exiger de ne pas avoir à subir d’interférences. Le navires n’en sont pas moins les moyens par lesquels s’exerce la liberté de navigation, les objets à propos desquels les Etats sont en droit de faire valoir leur prétention. UNCLOS, supra note 4, art. 58.1, 1833 U.N.T.S. 418. Id., art. 87, 1833 U.N.T.S. 432. There is an apparent calculus at work where the conceptual rights of high seas navigation and fishing under the navigational freedom principle interface with new coastal state limits on exploitation of high seas resources within the exclusive economic zones, contiguous

B. 1982 United Nations Law of the Sea Convention

165

UNCLOS apparently is consistent with the high seas navigational servitudes of customary law and the Convention on the High Seas. Nondiscriminatory use of the high seas for peaceful purposes, non-acquisition or extension of sovereignty in contiguous zones and the continental shelf, landlocked access, affirmative duty to prevent slavery and piracy, and expanded navigation rules for vessels are each and all contained in the UNCLOS high seas regime provisions72 along the same lines as with the Convention on the High Seas73 but more detailed. The additional UNCLOS provisions for conservation of high seas living resources apply the “maximum sustainable yield” standard for fishery conservation measures74 consistently with beneficial resource management of the res communis public trust. Fishing is a recognized nondiscriminatory high seas freedom, a navigation servitude of the high seas regime which is contained in the Convention on Fishing and Conservation of the Living Resources of the High Seas.75 The significance of the UNCLOS provisions is that they evidence a growing perceived need for custodial management of high seas resources, an evolved res communis public trust moving into active resource management for conservation of the living resources which could only occur within the nondiscriminatory reciprocal responsibility of the community of States, because no individual State has a right in situ to the high seas ferae naturae or to their management. Access to and conservation of those living resources of the high seas within the res communis public trust is a law of the sea derivative of high seas freedom of navigation and taken consistent with that aspect of the navigational freedom principle. UNCLOS contains useful new conventional navigational servitudes for the ongoing balancing of archipelagic States’ extended protective jurisdictions. In particular the concept of transit passage through straits used in

72 73 74

75

zones and territorial seas extending beyond three nautical miles, a calculus with its roots in the contest between Grotius’ proposition of high seas freedom versus Selden’s assertion of British sovereignty over the British Seas, the Four Seas, and the Narrow Seas at various periods. See Oppenheim, supra c. i, note 10, at 721–22, 812–14. Id., arts. 88–90, 94, 99, 100, 1833 U.N.T.S. 433–36. Geneva Conventions, supra note 2, 13 U.S.T. 2314. Id., art. 2, 17 U.S.T. 141, has an “optimum sustainable yield” standard. Both the UNCLOS and the 1958 Geneva standards are to conserve the living resources and assert no property interest in the fish of the sea on behalf of States parties or member States. Geneva Conventions, supra note 2, art. 1, 17 U.S.T. 140.

166

Chapter IV

Parallels – Conventional Law of the Sea

international navigation (Part III)76 has been developed to balance the acceptance of island States’ extended sovereignty over archipelagic waters (Part IV)77 as delimited by enclosing baselines while reserving the a priori high seas regime right of innocent passage,78 together with a regime for islands which cannot support habitation or economic life of their own (Part VIII),79 and a regime for bays and enclosed or semi-enclosed seas bordered by multiple States (Part IX),80 each and all reflecting the growing breadth of high seas regime navigational servitudes and the ongoing balance being achieved within the res communis public trust under both customary and conventional law of the sea. Protection of the marine environment also is provided in UNCLOS (Part XII),81 and new high seas navigational servitudes are supplied for conservation of highly migratory species (Part XIII and Annex I).82 These UNCLOS conventional provisions are terms of public trust, describing how the member States will act conventionally to preserve and protect the res communis public trust status of maritime areas and resources through implementation and application of balanced and agreed navigational servitudes. The res communis public trust of Grotius is expanding and evolving in balance with the littoral State navigational servitudes of Selden for protective jurisdiction. An effective res communis public trust is emerging from this jurisdictional interfacing within the new high seas regime crucible, which is essential for the common and interdependent beneficial interests of all States and peoples. UNCLOS contains two major conceptual developments for the navigational freedom principle as applicable to States parties: First, it expands the details for high seas access by land-locked States,83 and, second, its creates The

76

77 78 79 80 81 82 83

UNCLOS, supra note 4, art. 119.1(a), 1833 U.N.T.S. 441; Geneva Conventions, supra note 2, art. 2, 17 U.S.T. 141. The United States follows the maximum sustainable yield standard under its Fishery Conservation and Management Act, 16 U.S.C. §§ 1801, et seq. (2000). UNCLOS, supra note 4, art. 38, 1833 U.N.T.S. 411. Id., art. 49, 1833 U.N.T.S. 415–16. Id., art. 52, 1833 U.N.T.S. 416. Id., art. 122, 1833 U.N.T.S. 442. Id., 1995 U.N.T.S. at 477–94; UNCLOS, supra note 4, art. 45, 1833 U.N.T.S. 449. UNCLOS, supra note 4, art. 64, 1833 U.N.T.S. 423. Id., arts. 122, 123, 1833 U.N.T.S. 442–43.

B. 1982 United Nations Law of the Sea Convention

167

Authority with trustee responsibility and jurisdiction over seabed resources,84 as discussed hereafter. Both are extraordinary developments for international law of the sea. First, Article 125 imposes a navigation servitude on “transit States” in favor of “land-locked States”, “for the purpose of exercising rights provided in this Convention including those relating to freedom of the high seas and the common heritage of mankind.”85 This is a clear statement both as to the vested right in all States to participate in the high seas regime res communis public trust, and to enjoy the beneficial interests of that trust as set up for the protection and preservation of seabed resources. It is extraordinary in that aspect alone, but secondly is even more significant because not only is the beneficial right of all States acknowledged, but the sovereign territory of transit States is subjected to the exercise of that beneficial right as implemented to avoid discrimination. States parties to UNCLOS have the right to separately agree to or except from this navigation servitude, which is not the typical a priori navigational servitude because arguably it could not be imposed without consent.86 Nonetheless, if transit passage is not an a priori right, UNCLOS would make it a conventional right applicable where there is no customary law to apply. Query whether United States constitutional law would require full Congressional action rather than simple Senate ratification for such a servitude to be implemented over its territory.

84 85

86

Id., arts. 151, 152, 1833 U.N.T.S. 452–55. Id., art. 125, 1833 U.N.T.S. 444. Article 125 reads as follows: RIGHT OF ACCESS TO AND FROM THE SEAS AND FREEDOM OF TRANSIT 1. Land-locked states shall have the right of access to and from the sea for the purpose of exercising rights provided in this Convention including those relating to freedom of the high seas and the common heritage of mankind. To this end, land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport. 2. The terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States concerned through bilateral, sub regional or regional agreements. 3. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests. Id., art. 3.2, 13 U.S.T. 2315.

168

Chapter IV

Parallels – Conventional Law of the Sea

C. The Common Heritage of Mankind/Public Trust and Servitudes The deep seabed mining provisions of UNCLOS achieve a conventional law breakthrough by delivering a complete trust instrument indenturing the high seas seabed and subsoil waters to the management responsibility of a conventional rather than a governmental public trust entity, namely the International Seabed Authority (The Authority).87 While The Authority is a remarkable law of the sea development in the abstract, UNCLOS provisions for The Authority have been both highly controversial, and among the reasons the United States did not ratify UNCLOS in 1982 or thereafter. Perhaps the most contentious issue for UNCLOS negotiators has been the structuring of an appropriate seabed resources trust, one without built-in conflicts of interest and consonant with the re communis public trust high seas regime rights of all States under the navigational freedom principle. This aspect of UNCLOS is a template study in the development of trust provisions and requirements among reciprocal fiduciaries with conflicting and disparate political agendas. The need for a seabed resources trust entity is apparent on review of the Convention on the High Seas, which left regulation of the highs seas seabed and subsoil for future development within the res communis public trust under the high seas regime.88 The technological achievement of seabed mining, beginning with the initial resource exploration and extraction activities in the 1970’s and 1980’s, was viewed as sufficient to warrant regulation for nondiscriminatory seabed resource access. However, seabed mining is market-driven and, at this date, has not proven commercially viable. Nonetheless, the UNCLOS provisions and the circumstances surrounding their drafting are useful to understand how a written declaration of trust is conventionally implemented, and to consider the problems incurred with achieving fiduciary responsibility for such a trust. UNCLOS employs the equitable principle of nondiscrimination in its stipulated intent and terms, but facets of the 1982 Montego Bay document from the perspective of the United States do not achieve consonance with such equitable principle. Indeed an unvarnished cartel is presented through

87 88

Id., arts. 151–52, 1833 U.N.T.S. 452–55. Geneva Conventions, supra note 2, arts. 1–2, 13 U.S.T. 2314.

C. The Common Heritage of Mankind

169

unacceptable voting mechanisms89 which on their face breach the nondiscrimination equitable principle of the res communis public trust, thereby rendering the trustee incapable of reliable reciprocal fiduciary performance as essential for equitable fairness. A mechanism set up for discriminatory control of high seas regime resources is a usurpation of the involved usage and contradicts application of the navigational freedom principle as the fundamental navigation servitude. The seabed resources involved are potato-sized aggregations of metal oxides located on the abyssal ocean floor.90 Vessels and lift systems are specifically designed for the particular mining activity, which requires substantial investments by mining consortia and, therefore, a stable legal regime sufficient for investment recovery and adequate returns. Thus, commitments of capital and labor are required both to develop equipment and technology, and to locate and identify commercially viable mining sites. Current United States municipal law, the Deep Seabed Hard Mineral Resources Act of 1980, provides an initial response to such security requirements for municipal purposes, and anticipates a reliable future international regime91 regardless 89

90

91

Cf. Ralph J. Gillis, Exploration for and Exploitation of Deep Seabed Hard Mineral Resources: A Deep Seabed Mining Industry Perspective, in Deep Seabed Mining and Freedom of the Seas 44, passim (Frederick Chen. ed. 1981). The average metal content of nodules is 24.4% manganese, 14.0% iron, 1.9% nickel, 0.5% copper and 35% cobalt. Trace amounts of over 20 other metals are also present. Congressional Research Service, Ocean Manganese Nodules 7 (1975). 30 U.S.C. §§ 1401 (a)(4), 1412,1418, 1419,1421–1423, 1428 (2000). See regulations for the Seabed Act, 15 C.F.R. 970; 49 Fed. Reg. 48205 (1984); 49 Fed. Reg. 44938 (1984); 52 Fed. Reg. 37490 (1987); 52 Fed. Reg. 38504 (1987); 53 Fed. Reg. 5868 (1988). Provision is made for reciprocal recognition of comparable seabed mining legislation adopted by other States. Such recognition is patterned in a variety of United States statues dealing with everything from immigration to law suit bonds. See provisions for bonds, 7 U.S.C. § 18 (2000); for immigration, 8 U.S.C. § 1184a (2000); for arbitration, 9 U.S.C. § 304 (2000); for marine fishing, 16 U.S.C. § 1821(f ) (2000); for semi–conductors, 17 U.S.C. § 902(a)(2) (2000); for manufacturers excise tax, 26 U.S.C. § 4221(e)(1) (2000); for radio stations and licenses, 47 U.S.C. §§ 303(l)(1), 305, 310(c) (2000); see also The Scotia, 81 U.S. (14 Wall.) 170 (1871), where the United States Supreme Court notes that similar legislation pertaining to navigation when enacted by many nations points to a “general obligation” of the “law of Nations”. The United States does not view the various “negotiating texts” produced at UNCLOS III to reflect customary law on seabed issues. Those texts were for “negotiating” and were not “negotiated”. Title IV of the Seabed Act is known as the Deep Seabed Hard Mineral Removal Tax Act of 1979, 29 U.S.C. § 4995 (2000), and contains the formula for United States taxation

170

Chapter IV

Parallels – Conventional Law of the Sea

that the United States is not a party to UNCLOS. A balancing situation again has developed between the res communis public trust and extended littoral State protective jurisdiction. As a conventional matter, UNCLOS, Part XI, begins by defining a seabed zone, called “The Area”, and applying a special public trust regime there over “all solid, liquid or gaseous mineral resources” including “poly-metallic nodules” (collectively “minerals”) of the high seas seabed or its subsoil.92 The legal status of The Area resources is that of “the common heritage of mankind”,93 which is consistent with the 1958 Convention on the High Seas and customary law for the high seas regime res communis public trust because the vested rights of all States can be the exclusive right of no one State. Such beneficial interests as rights derivative of the navigational freedom are perforce interdependent. Indeed, under UNCLOS (as well as under customary law) no State may gain sovereignty over The Area, nor over any portion of it, nor its resources, nor may any State appropriate those resources in situ. “All rights” in the resources are vested in “mankind as a whole”, and The Authority is directed to act on mankind’s “behalf ”.94 This, simply put, is a declared indenture of trust with The Authority as trustee, the UNCLOS document as a trust instrument,95 and the seabed and subsoil as the trust res

92 93 94 95

of seabed mining by United States citizens. These tax revenues are to be covered into the Deep Seabed Revenue Sharing Trust Fund, 30 U.S.C. § 1472 (2000), with the intention to transfer the fund balance to the Authority or its equivalent. Customs and tariffs laws of the United States continue to apply, 30 U.S.C. § 1473 (2000). In Jones v. United States, 137 U.S. 202 (1890), the defendant was tried for murder on the Island of Navassa over which the United States claimed sovereignty for purposes of resource exploitation. This island had been claimed in 1857 by Peter Duncan, a citizen of the United States, and in the name of the United States, pursuant to the Guano Islands Act, Aug. 18, 1856; c. 164, R.S. Secs. 5570–578. That Act provides for the occupation of unclaimed and uninhabited islands containing guano deposit. On December 18, 1959, the Secretary of State made the necessary express recognition of Duncan’s claim. Jones, 137 U.S. at 206. In contrast, the Seabed Act makes an explicit disclaimer of any sovereign right to the seabed or its resources which might be argued as a result of seabed mining activities. 30 U.S.C. § 1402a (2000). Gillis, supra, note 89, at 44–48. UNCLOS, supra note 4, art. 133, 1833 U.N.T.S. 445; id. art. 136, 1833 U.N.T.S. 446. Id., arts. 137, 140, 1833 U.N.T.S. 446–47. Cf. Oppenheim, supra c. i, note , at 813, which reads in pertinent part as follows: The principle which inspires this regime is that, ‘The Area and its resources are the common heritage of mankind’. The concomitants of this principle are spelled out in the immediately following article, where it is provided that: ‘no State may claim or exercise

C. The Common Heritage of Mankind

171

or corpus. The Authority is organized along the lines of a corporate trustee charged with acting on “behalf of mankind as a whole”96 – the putative beneficiaries. (Emphasis added.) “The Area” renders the seabed and subsoil a res subject to trust, so that the resource in situ is both unalienable by beneficiary States and incapable of occupation and possession by any State or its nationals; a true “res communis” public trust. But that status exists as a matter of customary law, with the difference being the application of the conventional trust arrangement to secure shared extraction benefits for all States and their respective populations. All States may participate in seabed mining directly or through The Authority, but mining recovery extraction activities are to be managed by The Authority through its organs: The Assembly, The Council and The Secretariat.97 The Assembly membership is comprised of each State party to UNCLOS, and The Assembly elects the 36 members of The Council.98 The Council has two commissions, the Economic Planning Commission and the Legal and Technical Commission. Both commissions have 15 members elected by The Council. Importantly, The Authority is able to participate directly in the seabed mining activities under The Area regime through its organ The Enterprise.99 Mining activities of The Authority are conducted through The Enterprise and are contemplated to be on behalf of those States which for whatever reason do not participate directly in seabed mining. Consistently with its trustee role The Authority must apply its mining revenues within the terms of the trust. The “sea change” occurring here is not the UNCLOS conventional provisions for The Area or management of resources, but rather it is the establishment of The Authority as a named and designated trustee representing the reciprocal fiduciary responsibility of the

96 97 98 99

sovereignty or sovereign rights over any part of the Area of its resources, nor shall any such claim, exercise or appropriation be recognized; that ‘all rights in the resources are vested in mankind as a whole, on whose behalf the Authority shall act’ (and there is to be non-alienation of recovered resources except in accordance with ‘this Part’ and ‘the rules, regulations, and procedures of the Authority’); and, further, that no state or national or juridical persons shall claim, acquire or exercise rights over minerals from the area, except in accordance with this Part. This, it is submitted, is a “public trust” – a “spendthrift” public trust. UNCLOS, supra note 4, art. 153, 156–85, 1833 U.N.T.S. 455, 457–75. Id., art. 158.1, 1833 U.N.T.S. 458. Id., art. 161, 1833 U.N.T.S. 461. Id., arts. 158.2, 170, 1833 U.N.T.S. 458.

172

Chapter IV

Parallels – Conventional Law of the Sea

respective States parties. That is an important step for the high seas regime and for general international law. However, the conventional authorization for The Authority to become a mining participant is not based in customary or prior conventional law of the sea. As a traditional matter as well as under the conventional Statute of the International Court of Justice, Article 38, seabed resource extraction and harvesting are within the res communis high seas regime freedoms and “international custom, as evidence of a general practice accepted as law”.100 As a matter of customary law the resources of the seabed traditionally have been open for exploration and exploitation within the res communis public trust. Since time-out-of-mind oysters and chank, sponge and coral, pearls, coal and sand have been extracted and removed from the technologically accessible seabed.101 Such exploitation has been accepted by other States as complying with the opinio juris.102 Indeed in United States v.

100

101

102

Article 38, Statute of the International Court of Justice, available at http://www.icj-cij. org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm#Article1, last visited 21 Oct. 21, 2005; U.N. Charter, Annex containing Statute of International Court of Justice, reads as follows: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules easily recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.” The following were harvested: chank, Palk Bay and Gulf of Manar; coal, Scotland; coral, Tunisia; pearls, Ceylon; sponge, Florida; sand, Puerto Rico See Gillis supra note 89 at 49. See, e.g., Fulton, supra c. i, note 12, at 696–98 (1911); Philip Jessup, The Law of Territorial Waters and Maritime Jurisdiction 14–16 (1927); John Westlake, I International Law 186 (1904); Emmerich Vattel, The Law of Nations or The Principles of International Law 107 (C. Fenwick trans. 1916); see also, L.F.E. Goldie, A General International Law Doctrine for Seabed Regimes, 7 Int’l Lawyer 796, at 797–98 (1973); Cecil J.B. Hurst, Whose is the Bed of the Sea?, 4 Brit. Y.B. Int’l L. 34, 42–3 (1923–1924); Hersch Lauterpacht, Sovereignty over Submarine Areas, 27 Brit. Y.B. Int’l L. 376, 402, 414–31 (1950); Humphrey Waldock, The Legal Basis of Claims to the Continental Shelf, 36 Grot. Soc’y 115, 116–42 (1951).

C. The Common Heritage of Mankind

173

Maine, involving disputed ownership over the United States east coast continental shelf, the United States Supreme Court’s Special Master writes: Prior to the Truman Proclamation, it was the accepted doctrine of international law, as we have seen, that to be recognized as valid, claims to exclusive rights to the resources of the seabed at least beyond the territorial sea must be based on long enjoyment (prescription) or on actual exploitation (occupation).103

Until this century most seabed resource exploitation took place in shallow waters. Extraction of hydrocarbon and hard mineral resources from deep water, and even the abyssal ocean floor, became possible only in recent years which has increased anxiety on the part of some States that the high seas seabed and subsoil resources might be occupied and possessed, effecting a shift from a high seas res communis back to a 17th and 18th century res nullius regime subjecting seabed areas and resources to claims of occupation and possession. Such a reversion is juridically impossible without the unanimous consent of all States whose beneficial interests have become vested in the res communis public trust. Also, deep seabed exploration, in contrast to exploitation, has been underway for some time – even during the 19th century, as witnessed by Darwin’s 1831–1836 voyage on The Beagle, and Edinburgh University’s 1873–1875 expedition voyage on The Challenger. In fact, it was during the Challenger expedition that manganese nodules were first removed from the seabed. These explorations have served to identify the assets of the high seas regime public trust and eliminate discriminatory acquisition by any one or more States under any high seas regime legal theory. Notably the Convention on the High Seas enumerates four high seas freedoms, and states that additional reasonable uses of the high seas which do not interfere with the reasonable use of the high seas by others are protected freedoms.104 This is the nondiscrimination principle for a res communis public trust, enabling the “voyaging use” and navigational freedom principle derivatives rather than authorizing the “territorial acquisition” of the oceans or the seabed and its subsoil. The Convention on the High Seas reflects this conceptualization and indeed follows International Law Commission

103

104

United States v. Maine, 420 U.S. 515 (1973). Report of Albert B. Maris, Special Master 69, filed in United States v. Maine, 420 U.S. 515 (1975); see also Lassa Oppenheim, International Law, 628–29 (H. Lauterpacht ed., 8th ed. 1955). Geneva Conventions, supra note 2, 2 U.S.T. 2312.

174

Chapter IV

Parallels – Conventional Law of the Sea

(ILC) reports,105 so that competing high seas uses will be balanced to avoid discrimination of access.106 The requirement of such balanced use is a high seas regime navigational servitude which protects and preserves the res communis public trust and its nondiscriminatory application, as in regard to extraction of the seabed nodules. The juridical balance must maintain high seas navigational public uses sufficient to provide meaningful participation among competing stakeholders and their nationals. Between 1949 and 1956 the ILC undertook the preparatory work for the First United Nations Conference on the Law of the Sea. In its 1956 Report, submitted to the United Nations General Assembly describing Article II of the Convention on the High Seas, the ILC writes: The list of freedoms of the high seas contained in this article is not restrictive; the Commission has merely specified four of the main freedoms. It is aware that there are other freedoms, such as freedom to explore or exploit the subsoil of the high seas and freedom to engage in scientific research therein. It is evident that in the high seas covering a continental shelf, the latter freedoms can only be exercised subject to any rights over that shelf which the littoral State can invoke.”107 (Emphasis added.)

Relying on the ILC report, it can be safely stated that deep seabed mining is within those high seas regime navigational freedoms preserved and protected by the res communis public trust. The continental shelf and the abyssal seabed were not distinguished as separate areas of jurisdiction before the 1945 emergence of an evolved continental shelf doctrine, so that the earlier rights of exploration and exploitation, which appertain to the seabed and subsoil in general, have not been displaced from the abyssal ocean floor by either the Truman Proclamation108 or the 1958 Convention on the Continental Shelf. The seabed and subsoil have not been changed from a res communis status to that of a res nullius susceptible of exclusive occupation and possession, nor could they be. The high seas freedom to explore for and exploit seabed

105 106

107

108

Int’l L. Comm’n. reports infra notes 107, 109. Cf. UNCLOS, supra note 4, art. 152.1, 1833 U.N.T.S. 455, reads as follows: Exercise of powers and functions by the Authority 1. The Authority shall avoid discrimination in the exercise of its powers and functions, including the granting of opportunities for activities in the area. Int’l L. Comm’n Rept. to G.A., Supp. No. 9, at 3, U.N.Doc.A/2934 (1955), reprinted in (1955) Y.B. Int’l L. Comm’n 21–22, U.N. Doc. A/CN.4/Ser. A/1956/Add 1. Supra note 101.

C. The Common Heritage of Mankind

175

resources simply had not matured in 1956 as further described by the ILC in that Report to the General Assembly where it writes: The Commission has not made specific mention of the freedom to explore or exploit the subsoil of the high seas. It considered that apart from the case of the exploitation or exploration of the soil or subsoil of a continental shelf – a case dealt with separately in section III below – such exploitation has not yet assumed sufficient practical importance to justify special regulation.109

The ILC saw seabed resource extraction as an activity to be regulated by the Convention on the High Seas or a supplemental protocol at some future point in time, reflecting an understanding of the seabed and subsoil as res communis within the high seas regime and not susceptible of preemptory exclusive occupation and possession by any one or more States. That, it could be argued, includes The Authority. The seabed and seabed resources assets of the high seas regime res communis public trust were described by Ambassador Pardo of Malta as the “common heritage of mankind” in a 1967 speech to the First Committee when delivering a treaty proposal for seabed resource exploration and exploitation.110 That concept became the prime mover for ultimately calling UNCLOS III into session. Indeed, between 1967 and 1974 the topic of seabed mining was assigned to the First Committee by the United Nations General Assembly. The First Committee then established a 35-member Ad Hoc Committee to study seabed issues. No final proposal was produced by the Ad Hoc Committee, so eventually the First Committee was presented with several national proposals. In 1968 the First Committee set up a Standing Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor to deal with consideration of those national proposals.111 The First Committee also agreed that seabed exploitation “should be carried out for the benefit of mankind as a whole . . . taking into account the special interests and needs of the developing countries.”112 But the Sea-Bed Committee failed to make

109

110

111 112

Int’l L. Comm’n Report to G.A., 11 U.N. GAOR, Supp No. 9, at 24, U.N. Doc. A//3159 (1956), reprinted in (1956) 2 Y.B. Int’l L. Comm’n, 278 U.N. Doc. A/CN.4/Ser. A/1956/Add 1. Edward D. Brown, Sea-Bed Energy and Minerals: The International Legal Regime 3, 14–15, 277 (2001). G.A. Res. 2467, (XXIII), U.N. Doc. A/RES/ 2467 (XXIII), Dec. 21, 1968. Id.

176

Chapter IV

Parallels – Conventional Law of the Sea

substantial headway, passing only resolutions about (1) peaceful uses of the seabed,113 (2) a balanced statement of principles,114 and (3) a study of mechanisms for regulation of seabed exploitation.115 Between 1967 and 1969 the most overt attempt by non-potential seabed mining States to block commercial mining by other States was presented in Resolution 2574D (XXIV) declaring a moratorium on exploitation of the seabed beyond the limits of national jurisdiction.116 That Moratorium Resolution would have violated the res communis public trust equitable principle of nondiscriminatory access being designed into The Authority arrangements. Ultimately the Moratorium Resolution did not prevail and the United States’ response to the Moratorium Resolution correctly dismissed it as being without legal effect.117 Later, in 1970, a General Principles Resolution 2749 (XXV) was adopted by the General Assembly, with 108 votes for, none against, and 14 abstentions.118 This Resolution 2749 (XXV) states

113 114 115 116

117

118

G.A. Res. 2574A (XXIV), U.N. Doc. A/RES/2574A (Dec. 15, 1969). G.A. Res. 2574B (XXIV), U.N. Doc. A/RES/2574B (Dec. 15, 1969). G.A. Res. 2574C (XXIV), U.N. Doc. A/RES/2574C (Dec. 15, 1969). G.A. Res. 2574D (XXIV), U.N. Doc. A/RES/2574D (Dec. 15, 1969) was adopted by the First committee by 52 votes for, 27 against and 35 abstentions-hardly a consensus. Any intent that the resolutions of the General Assembly should be considered as binding was rejected during negotiation of the Charter. 13 U.N.C.I.O. Docs. 754 (1945). G.A. Res. 2749(XXV), U.N. Doc. A/PV 1833, 1 Dec. 17, 1970), which in pertinent part reads: It is not enough to say that the prohibition which the draft resolution contains is without binding effect; that is the case with almost any General Assembly resolution; and it certainly is the case for any General Assembly resolution purporting to prescribe standards of conduct for States in the oceans. The United States’ position on the Moratorium Resolution and the General Principles Resolution has been consistently stated as follows: The Executive Branch continues to hold the view that deep seabed mineral exploration constitutes a reasonable use of the high seas and is presently permitted under international law. We have made this position clear to other nations on many occasions. In this connection, the United Sates has repeatedly expressed its position that the so-called moratorium resolution is without binding legal effect. Some states have suggested that it is possible to interpret the ‘Declaration of Principles’ (General assembly Resolution 2749 of December 17, 1970) as legally prohibiting the exploitation of the deep seabed until the new international regime and machinery for that exploitation come into effect. These states derive this interpretation from their understanding of the common heritage of mankind concept. The United States, however, has consistently maintained that its interpretation of the ‘Declaration of Principles’ does not permit the derivation of a ‘moratorium effect’ from this resolution.

C. The Common Heritage of Mankind

177

(1) that the seabed “Area” should be reserved for peaceful purposes, and (2) that the international machinery for regulating seabed exploration should be developed. Most important is the Resolution’s additional proposition that seabed resources are “the common heritage of mankind” and that the Area is not subject to national appropriation, which is consistent with the high seas regime res communis public trust. Resolution 2749 further posits that rights to the resources in the Area could not become incompatible with a future seabed regime. Developed States with industry capable of engaging in deep seabed mining viewed Resolution 2749 as allowing them to proceed so long as appropriate means of transition to an international regime are provided and, as seen, United States legislation in the Seabed Act is modeled on this view.119 Other States, usually the lesser developed States, see the term “common heritage” as defining property rights, that is an undivided ownership interest in seabed resources in situ sufficient to prevent any exploitation by other States.120 Simply stated, there was no common understanding of “common heritage”, but the seabed and subsoil resources in situ remain protected by the res communis public trust and were never at risk of appropriation in situ through occupation and possession or prescription. Responding to concerns about the UNCLOS, Title XI, seabed provisions, a 1994 General Assembly resolution121 adopted the “Agreement relating to the implementation of Part XI of the United Nations Convention of the law of the Sea of 10 December 1982”122 (1994 Title XI Agreement). The 1994 Title XI Agreement is the product of informal consultations among States and contains significant amendments to the UNCLOS Title XI seabed provisions. Specifically, the United States would hold a permanent seat on The Council,123 and to the extend the Assembly does not accept actions of The Council, The Authority cannot act on its own but must return the

119 120 121

122 123

Hearings before the Senate Committee on Interior and Insular Affairs, Sub. Comm. On Minerals, Materials, and Fuels, 78th Cong. 2nd Sess. 994 (_____ __, 1974). 30 U.S.C. § 1401 (2000). Theodore Kronmiller, The Lawfulness of Deepsea Mining 21, 349–54 (1979). G.A. Res No. 31364, A/RES/48/263 (August 17 1994); 1836 U.N.T.S. 42 (1994) (hereinafter 1994 Resolution, 1836 U.N.T.S. ____). Id., 1836 U.N.T.S. 48. Id., 1836 U.N.T.S. annex, §3.15(a).

178

Chapter IV

Parallels – Conventional Law of the Sea

matter to The Council.124 The Council voting is by two-thirds majority on matters of substance,125 subject to a veto if any one Chamber objects. There are four permanent members of the Chamber where the United States would sit as one permanent member.126 These amendments must be considered as going a long way toward curing the United States’ fundamental concerns with the original UNCLOS voting mechanism. Other salutary provisions are those urging action in the first instance by consensus and those for economic control of The Authority and participation by the Enterprise through joint ventures rather than funding by States parties.127 Importantly the 1994 Title XI Agreement moves The Authority concept ahead, mitigating overt political/economic imbalances which retarded fiduciary performance of the community of States as reciprocal and communal trustees, while accurately reflecting that trusteeship responsibility vested in The Authority for seabed and seabed resources as the “common heritage of mankind” consistently with the high seas regime res communis public trust.

D. Marginal Sea Delimitations/Servitudes and Public Trusts Extended littoral State territorial sea baselines, expanded territorial seas and contiguous zones, extended protective jurisdiction zones and exclusive economic zones compete with each other as well as with high seas regime servitudes in the new res communis crucible. Littoral States with opposite or adjoining territorial seas, contiguous zones, exclusive economic zones and continental shelves have been engaged in ongoing boundary delimitation contests for which the rules became codified in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, the

124 125 126 127

Id., 1836 U.N.T.S. annex, § 3.4. Id., 1836 U.N.T.S. annex, § 3.3. Id., 1836 U.N.T.S. annex, § 3.15(a). Id., 1836 U.N.T.S. annex, § 2.2. In contrast to the 1994 Title XI Agreement, under UNCLOS the funds necessary for the Enterprise to explore and exploit a mine site would be provided in interest free loans up to one half the necessary amount by States members “in accordance with the scale of assessments for the United Nations regular budget.” This means that the United States for the most part would have provided the loans to fund the Enterprise, with questionable repayment. The other half of the fund required would be “guaranteed by all States Parties in accordance with the same scale”, which means the United States would again bear the economic burden. This financing concept is transparently political and part of the transfer of wealth political issues.

D. Marginal Sea Delimitations

179

1958 Geneva Convention on the Continental Shelf, and 1982 UNCLOS. There conventional international law has been applied to effect navigational servitudes as customary and conventional delimitation rules, ultimately falling back on the application of equitable concepts and principles where agreement of the parties is not reached. The point of such delimitations is not simply to mark off control areas or assign juridical responsibility, but to preserve the broadest application of the navigational freedom principle consistently with the high seas regime in marginal sea areas, as had been the case for the territorial sea crucible in the 17th and 18th centuries. Boundary delimitations effect regional assignments for certain exclusive jurisdictional applications within the marginal sea area as well as for protection and preservation of the navigation freedom principle within high seas regime servitudes. Where States cannot agree on delimitations according to the conventional rules, delimitations are achieved or are to be achieved through the application of equitable principles without inequitable usurpations causing discriminatory limitations on navigational freedom.128 Boundary

128

Discussed infra pp. 197–99. The following useful description of equitable principles is supplied in Barbara Kwiatkowska, Equitable Maritime Boundary Delimitation – A Legal Perspective, in Law of the Sea (Hugo Caminos ed. 2000), where she writes: In the light of the case law of the International Court of Justice and arbitral tribunals, the doctrine of equitable principles is the fundamental norm of customary international law governing maritime boundary delimitation and provides for effecting delimitation by agreement, in accordance with equitable principles, taking account of all the relevant circumstances, so as to arrive at an equitable result. Equity operates in this case strictly within the law, and there is consequently no question of any decision ex aequo et bono. *

*

*

As to the nature of equitable principles, it clearly follows from the Court’s jurisprudence, that they have the character of general guiding principles. Id. at 243, 244. Failure to apply equitable principles, by strict appliance of the applicable rule of law may produce hardship. Cf. Eastern Extension Arbitration (U.K. v. U.S.), 6 U.N.R.I.A.A. 112 (1923). Equitable principles have been applied for some time in delimitation contests. Island of Timor Arbitration (Neth. v. Port.), 1 Scott 354 (1941). For examples of decisions reached ex aequo et bono see The Chaco Arbitration (Bol. v. Para.), 3 U.N.R.I.A.A. 1817 (1938); and Georges Pinson (Fr. v. United Mexican States), 5 U.N.R.I.A.A. 327 (1928). For decisions exemplifying the use of equitable considerations as a supplement for legal rules see the Trail Smelter Arbitration (U.S. v. Can.), 3 U.N.R.I.A.A. 1907–1908, 1936 (1941); Diversion of Water From the Meuse (Neth. v. Bel.), 4 Hudson 172, 196 (1937)

180

Chapter IV

Parallels – Conventional Law of the Sea

delimitation is a process of balancing governmental protective jurisdictions and high seas regime navigational freedom. That is wholly confirmatory of the involved public trust responsibilities because such equitable principles are derived from the protection and preservation of the interdependent interests of all littoral States under the high seas regime res communis public trust. Littoral State ambitions are paring away at the high seas regime navigational freedoms. Application of equitable principles, therefore, takes on a new dimension from the perspective of the common navigation freedom principle, and that is twofold: (1) the consistent application of international high seas freedoms within the zones and territorial seas as an a priori navigation servitude within the res communis public trust, and (2) consistent application by the littoral States of extended jurisdiction navigational servitudes not only for governmental jurisdictions but also, in the case of the United States, for the protection and preservative of the municipal law public rights to fishing and navigation. Interestingly, this has come to mean that the res communis public trust delimitation rules themselves are a navigation servitude which contains and restrains the seaward as well as lateral extensions of territorial sovereignty and the navigational protective jurisdictions of littoral States, all as measured from the territorial sea baseline which also is determined by applying the equitable principles of the res communis public trust. Ergo, delimitations must ultimately be free of inequitable results. Marginal sea jurisdictional delimitations involve the initial step of fixing a littoral State territorial sea baseline, followed by rendering the coastline projection seaward, then by delimiting the outer boundary for that projection by measuring the breadth of the zone from the baseline, and adjusting the projection for interfaces with inequitable consequences where opposite or adjacent littoral State prolongations meet. Setting the zonal limits of littoral State extended maritime sovereignty, jurisdiction, control and sovereign rights effectuates the navigational freedom principal as between those States. Marginal sea boundary delimitation therefore is significant both for conventional delimitation distinctions between extended navigational protective jurisdictions, especially where States are opposite or adjacent, and for the preservation of high seas regime navigational servitudes of the res communis public trust applicable to and continuing within the territorial sea and contiguous zone, continental shelf and

(Separate Opinion of Judge Hudson at 231–33, 234); Damages to Portuguese Colonies Arbitration (Port. v. Ger.), 2 U.N.R.I.A.A. 1111, 1116 (1928); and Norwegian Shipowners Claims Arbitration (U.S. v. Nor.), 1 U.N.R.I.A.A. 307, 331, 339 (1922).

D. Marginal Sea Delimitations

181

EEZ regimes of the marginal sea area. The high seas regime res communis public trust by definition requires application of equitable principles129 in boundary delimitations to be non-discriminatory and demonstrably free of inequity.

129

Gulf of Maine (Can. v. U.S.), 1984 I.C.J. 246, [hereinafter Gulf of Maine Case] would change “equitable principles” to “equitable criteria” because “principles” and “rules” refer to international law. One author views this as the Court attempting to find a term “below the level of rules or principles of law”. See Levi E. Clain, Gulf of Maine – A Disappointing First in the Delimitation of a Single Maritime Boundary, 25 Va. J. Int’l L. 529, 569 (1985). The Court’s wordsmith approach is not adopted here because equitable considerations are “principles” of a different kind with sufficient legal status to adjust the mandatory effects of legal principles or rules of law in boundary delimitations. Cf. id. at 328. Criteria are elements of a principle, but they are not the principle. Treating equitable principles as “criteria” is more than avoiding common terms. Id. 290, It mitigates the obligation to meet the equitable principle and renders the “criterion” or “criteria” in search of a matrix outside equity where only rules of law or legal principle remain. All are agreed that equitable principles are not legal principles and, further, that equitable principles do not have the force of customary international law. Id. Equitable principles do have force within international law, whether customary, conventional, general or special, sufficient to alter unreasonable legal consequences and that, it is submitted, is more than the effect of an ambient criterion. It is submitted further that because equitable principles require judgmental exercise by the adjudicator, thereby avoiding discrimination contrary to the general law navigational freedom principle by applying elements of reasonableness and fairness to legal rule applications, equitable principles are not thereby rendered less significant than legal principles. Maritime Boundary Case (Qatar v. Bahrain), 2001 I.C.J. __ (Slip Op. ¶¶. 173, 217–19), 40 I.L.M. 847 (2001); Denmark v. Norway , 1993 I.C.J. 38, 61–63 [hereinafter Jan Mayen Case]; Tunisia v. Malta, 1985 I.C.J. 13, 46–49, 51; North Sea Continental Shelf Boundaries Cases, 1969 I.C.J. 4, 50. Compare the Delimitation of the U.K. and France Continental Shelf (English Channel Arbitration), 54 I.L.R. 6; 18 I.L.M. 427 (1977) [hereinafter English Channel Case]. The function of equity is described in the English Channel Case, id. at 123–24, as not being the refashioning of geography, nor to create “a situation of complete equity where nature and geography have established an inequity”. The English Channel Case decision reads that “what equity calls for is an appropriate abatement of ” disproportionate effects; that abatement, it is submitted, is the nondiscriminatory preservation of the res communis public trust navigation servitude for delimitation of interfacing extended navigational protective jurisdictions according to equitable principles. The significance is that the justice achieved by the abatement is consistent with the public trust responsibility for application of the navigation servitude under the navigational freedom principle. Cf. id. at 66–68, 124. The delimitation to be achieved does not effect a revision of geography but, rather, a delimitation of the interfacing jurisdictions by accounting for territorial sovereignty represented by geographical features – it is a legal regime delimitation for construction of a juridical line – not construction of a wall.

182

Chapter IV

Parallels – Conventional Law of the Sea

Pursuit of delimitations which are essentially fair has required development of equitable principles for delimitations consistent with the navigational freedom principle.130 The International Court of Justice describes the delimitation process as one applying such equitable principles (not municipal law equity) to achieve a reasonable division of the maritime areas between opposite and adjacent States – adjusting the initial delimitation line to compensate for inequities, special circumstances and relevant circumstances.131 Specifically, and informatively, in Canada v. United States (The Gulf of Maine Case) the Court writes as follows: As has been shown, that norm is ultimately that delimitation, whether effected by direct agreement or by the decision of a third party, must be based on the application of equitable criteria and the use of practical methods capable of ensuring an equitable result.132

The Gulf of Maine Case goes on to describe equitable principles as having no definitions,133 and not constituting the law, but achieving “the balance of different criteria, appearing to be most appropriate to the concrete situation”.134 Further, examination of the Gulf of Maine Case confirms the essential

130 131

132 133 134

Gulf of Maine Case, 1984 I.C.J. 246, 321–13. The Court’s decision in the Gulf of Maine Case, 1984 I.C.J. at 339–40, in pertinent part, reads as follows: The fundamental rule of general international law governing maritime delimitations, the rule which provided the Chamber with its starting-point for the reasoning so far followed, requires that the delimitation line be established while applying equitable criteria to that operation, with a view to reaching an equitable result. It is precisely by the adoption of a basic criterion whose equitable character is generally admitted and has been sanctioned by the authority of the Court, and by also resorting, where necessity arose, to auxiliary criteria which are also equitable, and, finally, by putting those criteria into practice through the methods judged most appropriate to that end, that the Chamber has succeeded in drawing the delimitation line requested of it by the Parties. Its last remaining task before formulating its final decision will be to ascertain whether the result thus arrived at may be considered as intrinsically equitable, in the light of all the circumstances which may be taken into account for the purposes of that decision. See also Arbitration between Newfoundland and Labrador and Nova Scotia Concerning Portion of the Limits of Offshore areas, Award (March 26, 2002) [hereinafter Newfoundland Case, ___ I.L.R. __]. Gulf of Maine Case, 1984 I.C.J. at 300. Id. at 312–13. Id. at 313.

D. Marginal Sea Delimitations

183

points: (1) that maritime boundary delimitations are within the res communis public trust, requiring nondiscrimination135 in seaward extensions of littoral State territory or protective jurisdiction regardless of whether for territorial sea, contiguous zone, EEZ or continental shelf demarcation;136 (2) that the 135

136

Consistently with the navigational freedom principle, the equitable principle of nondiscriminatory access to navigation servitude aspects is evident in discussions about “disproportionality” where boundary delimitation proportions discriminate against one or another State. Qatar v. Bahrain, 2001 I.C.J. at ___ (Slip Op. ¶¶ 219, 246) (2002); Jan Mayen Case, 1993 I.C.J. 38, 66–68; Tunisia v. Libya (Continental Shelf Case), 1982 I.C.J. 18, 43–44. Compare Guinea v Guinea-Bissau (Maritime Delimitation Case), 77 I.L.R. 636, 676 (1985). It is important to note the “disproportionality” is the inequitable effect to be identified. Compare Gulf of Maine Case, 1984 I.C.J. at 291–92, 334–25. The Gulf of Maine Case attempts to achieve an “equal” division of the Gulf of Maine, rather than to cure inequities in the area of jurisdictional overlap measured from territorial sea baselines. Id. at 327–28, 31–32. This “equality” equals “equity” approach had been applied in the Cayuga Indians Arbitration (U.K. v. U.S.), 6 U.N.R.I.A.A. 173 (1926), but fails to indicate that equity is not always equality. Compare Jan Mayen Case, 1993 I.C.J. 38, at 67–69; and Newfoundland Case, _I.L.R. __; Slip Op. at 22–24, 74 (2002). The coastlines of the Bay of Fundy, which contain no salient base points for the Gulf of Maine, are immaterial and should have no effect on the contemplated delimitation but were included in the Gulf of Maine coast for calculation of a pointless ratio. The ICJ offers no rationale for this approach, supplying only the gloss that the Bay of Fundy is part of the Gulf of Maine without noting that the Bay of Fundy has no effect on the boundary delimitation except as devised in the decision. Id. at 336. Delimitations with inequitable results are arbitrary, and it is essential that the relevant circumstances include only the relevant coastlines. Compare Qatar v. Bahrain, 2001 I.C.J. ___, ___ (Slip Op. ¶ 248); Tunisia v. Libya (Continental Shelf ), 1982 I.C.J. 18, 84–85; Eritrea v. Yemen, P.C.A., 40 I.L.M. 983, 1005 (2001); Canada v. France (St. Pierre & Miquelon Case), 95 I.L.R. 645, 660–63 (1992); Guinea v. Guinea-Bissau, 77 I.L.R. 635, 676. The Newfoundland Case states it most succinctly, as follows: What the Tribunal for its part seeks in the definition of the relevant coasts is guidance as to those coasts which may effect the actual delimitation, i.e., that contribute to the delimitation in some sense.” Slip Op. at 74. The coastline of the Bay of Fundy contributes in no way to the Gulf of Maine delimitation. See also criticism of the Gulf of Maine decision in Oppenheim, supra c. i, note , at 806. The Gulf of Maine Case, 1984 I.C.J. 246, 299–300, in pertinent part, reads as follows: What general international law prescribes in every maritime delimitation between neighbouring States could therefore be defined as follows: (1) No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result. Where,

184

Chapter IV

Parallels – Conventional Law of the Sea

res communis public trust applies equitable principles to prevent alienation or limiting of access to high seas regime navigational servitudes (innocent passage, force majeure, refuge and safe haven) within the delimited zones; (3) that equitable principles are to be applied in protection and preservation of littoral State and high seas regime navigational servitudes, which is demonstrative of res communis public trust responsibility for the protection and preservation of the navigational freedom principle; and (4) that application of equitable principles when there is no agreement is totally consistent with the res communis public trust protection and preservation of the navigational freedom principle.137

137

however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence. [300] (2) In either case, delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result. The Gulf of Maine Case, 1984 I.C.J. 246, notes that the delimitation involves fishery zones and continental shelves, and will have an effect on the EEZ boundaries under UNCLOS which had not yet gone into effect in 1984. Id. at 291. The Gulf of Maine Case correctly declines to adopt the “median line” or the “equidistance principle” used for constructing a median line as rules of law. Id. at 299–300. The equidistance principle is correctly recognized as one of numerous equitable principles which might be applied in the peculiar circumstance of any given delimitation proceeding, and that the median line reflects only a particular construction method. Id. at 288–91, 329–30. Compare Qatar v. Bahrain, 2001 I.C.J. ___ (Slip Op. ¶¶. 173, 176); with Tunisie c. Libyenne (Demande en Revision), 1985 I.C.J. 192, 210. The utility of proceeding first with a median line measured from salient coastal points is to identify areas of overlap and issues of inequitable results, and then adjusting the line to eliminate results or to account for “special circumstances” or “relevant circumstances,” as is evident whether for continental shelf, EEZ, fisheries or a single maritime boundary. Jan Mayen Case, 1993 I.C.J. 38, 61–62, 68-69. Principles governing delimitations of territorial waters and the continental shelf should be the same. [1953] 1 Y.B. Int’l L. Comm’n, 134–35, U.N. Doc. A/CN.4/SER.A/1953 (1959). See Jan Mayen Case, 1993 I.C.J. at 58–59. The Gulf of Maine Case Court divides the area of overlapping jurisdictional prolongations by using an adjusted median line (lateral bifurcation). 1984 I.C. J. at 246, 328–33. The adjustment is based on a ratio constructed from artificial coastline lengths from areas outside and irrelevant to the penumbra of overlapping jurisdictional projections measured from the applicable geography. Id. at 335. This inclusion of extraneous coastlines was admittedly to assign “equal” portions, an approach which has not been followed. The applicable equitable principles are “land dominates the sea”, and “maritime rights derive from the coastal State’s sovereignty over the land”. Qatar v. Bahrain, 2001 I.C.J. at ___ (Slip Op. ¶ 185); Greece v. Turkey (Aegean Sea Case), 1978

D. Marginal Sea Delimitations

185

Inland of the territorial baseline the littoral State holds and exercises sovereignty over navigable waters in the “internal sense”, described by J.E.S. Fawcett as the “power and authority of the state over all persons, things and territory within its reach”.138 The navigation freedom principle is manifest there through governmental navigational servitudes as well as by the public navigation right as under United States municipal law.139 Thereby one littoral State is not to be disproportionately advantaged over another in seaward extensions of territorial seas or protective jurisdiction zones – the required application of equitable principles is by definition a high seas regime servitude.140 The United States has an extensive history of international law of

138 139 140

I.C.J. 3, 36; North Sea Continental Shelf Cases, 1969 I.C.J. 4, 22, 25. It is the coastal geography, the base points which must be accounted to scope the areas of overlapping jurisdictional interests – especially for a single maritime boundary. Qatar v. Bahrain, 2001 I.C.J at ___ (Slip Op. ¶.185); Jan Mayen Case, 1993 I.C.J. at 43–44, Coastal geographical features, therefore, manifest the inherent value of equidistance applied through the median line method in the first instance, adjusted for “special circumstances” “relevant circumstances” and inequities in the area of overlapping jurisdictions. Qatar v. Bahrain, 2001 I.C.J. ___ (Slip Op. ¶¶ 176, 209, 217, 226–30, 231, 233–34; Jan Mayen Case, 1993 I.C.J. at 66–8; Tunisia v. Libya, 1982 I.C.J. at 78–79; North Sea Continental Shelf Cases, 1969 I.C.J. at 23. The geography of coastal fronts cannot be ignored, especially in single maritime boundary delimitations. Jan Mayen Case, 1993 I.C.J. at 68–69; Libya v. Malta, 1985 I.C.J. at 49, 55. In Libya v. Malta, 1985 I.C.J. at 39, the Court writes: Thus the justice of which equity is an emanation, is not abstract justice but justice according to the rule of law; which is to say that its application should display consistency and a degree of predictability; even though it looks with particularity to the peculiar circumstances of an instant case, it also looks beyond it to principles of more general application. See John Charney, Progress in International Maritime Boundary Delimitation, 88 Am. J. Int’l L. 227 (1994). J.E.S. Fawcett, The Law of Nations 3 (1968). See infra pp. 267–316. The equitable principles applied in the Gulf of Maine Case, 1984 I.C.J. 246, in pertinent part, are as follows: At this point, accordingly, the Chamber finds that it must finally confirm its choice, which is to take as its starting-point the above-mentioned criterion of the division – in principle, equal division – of the areas of convergence and overlapping of the maritime projections of the coastlines of the States concerned in the delimitation, a criterion which need only be stated to be seen as intrinsically equitable. However, in the Chamber’s view, the adoption of this starting-point must be combined with the parallel and partial adoption of the appropriate auxiliary criteria in so far as it is apparent that this combination is necessitated by the relevant circumstances of the area concerned,

186

Chapter IV

Parallels – Conventional Law of the Sea

the sea delimitations for its territorial sea and coastal zones, as measured from the territorial sea baseline located within its coastal member states. These delimitations have involved seaward extensions of coastal state and have interfaced with comparable extensions by other opposite and adjacent states. As an international matter such delimitation issues arose as between the United States and Canada and resulted in the adjudication which produced the 1984 Gulf of Maine Case. The involved marginal sea area extensions began for the United States with the Submerged Lands Act of 1953,141 under which the United States initially claimed ownership of the territorial sea and seabed as measured seaward from its coastlines out to three geographical miles, and transferred all rights to the seabed, seabed resources and water column resources with their respective seaward prolongations to the coastal member states, while reserving to the United States all sovereign rights in the outer continental shelf.142 The pertinent statutory language reads as follows: The United States retains all its navigational servitude and rights in and powers of regulation and control of said [submerged] lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership, or the right of management, administration, leasing, use, and development of the lands and natural resources which are specifically recognized, confirmed, established, and vested in and assigned to the respective States and others by section 1311 of this title.143 (Emphasis added.)

Complementary legislation is contained in the Outer Continental Shelf Lands Act of 1953144 where the United States asserts control of the continental shelf pursuant to the 1945 Truman Proclamation:145

141 142 143 144 145

and provided they are used only to the extent actually dictated by this necessity. By this approach the Chamber seeks to ensure the most correct application in the present case of the fundamental rule of international law here applicable, which requires that any maritime delimitation between States should be carried out in accordance with criteria that are equitable and are found more specifically to be so in relation to the particular aspects of the case under consideration. Id. at 328. The foregoing, it is submitted, is by definition the public trust navigation servitude applied to boundary delimitation. 43 U.S.C. §§ 2301, et seq. (2000). 43 U.S.C. § 1311(a) (2000). 43 U.S.C. § 1314 (2000). 43 U.S.C. §§ 1331, et seq. (2000). Supra note 23.

D. Marginal Sea Delimitations

187

The term ‘outer Continental Shelf ’ means all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 1301 of this title, and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.146

Importantly the Outer Continental Shelf Lands Act is explicit that “[i]t is hereby declared to be the policy of the United States that . . .the outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public.”147 (Emphasis added.) The Submerged Lands Act and the Outer Continental Shelf Lands Act are consistent with the public trust for public navigation rights, rights protected by the navigation servitude as administered by the United States under its Commerce Clause authority. Moreover the United States has extended its territorial seas, contiguous zones and continental shelf jurisdiction consistent with the 1958 Geneva Conventions on the Law of the Sea,148 and, indeed, the United States Supreme Court has adopted the definitions of the 1958 Geneva Conventions149 for interpretation of both the Submerged Lands Act and the Outer Continental Shelf Lands Act.150 The commonality of navigational freedom is patent as both the common juridical principle and the measure for application of equitable principles. In addition the United States extended its exclusive fisheries jurisdiction within a zone first measuring to a breadth of 12 geographical miles under the Bartlett Act,151 then out to a 24-geographical-mile contiguous fisheries zone under the Magnuson Act152 and, most recently, out to 200 geographical miles under the Magnuson-Stevens Fisheries Conservation and Management Act of 1976.153 As an international law matter this is the implementation of a governmental navigation servitude for protective jurisdiction, and as a

146 147 148 149

150 151

152

153

43 U.S.C. § 1331 (2000). 43 U.S.C. § 1332 (2000). Supra note 2. United States v. California, 381 U.S. 139, 165 (1965). Compare New Hampshire v. Maine, 532 U.S. 742 (2001); New Hampshire v. Maine, 434 U.S. 1 (1977); Texas v. Louisiana, 426 U.S. 465 (1976); New Hampshire v. Maine, 426 U.S. 366 (1976); and United States v. Louisiana (Texas Boundary Case), 394 U.S. 1 (1969). Id. Bartlett Act, 78 Stat. 194; 16 U.S.C. §§ 1801, et seq. (2000); Bartlett Act, 80 Stat. 908; 16 U.S.C. §§ 1091, et seq. (2000). Magnuson–Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801, 1811 (2000). 16 U.S.C. §1801 (2000).

188

Chapter IV

Parallels – Conventional Law of the Sea

United States municipal law matter it applies the navigation servitude for the protection and preservation of the public rights to fishing and navigation even beyond the navigable waters of the United States. Presidential Proclamations followed, establishing a 200-geographical-mile EEZ in 1983, extending the territorial sea to 12 geographical miles in 1988, and extending the contiguous zone to 24 geographical miles in 1999.154 In addition the United States exercises jurisdiction over criminal acts directed toward its territory or territorial sea under its Special Maritime Jurisdiction.155 The Submerged Lands Act uses “coastline” as the term for baseline, and specifies that the coastline is to be the ordinary low-water mark where there is direct contact with the open sea, and elsewhere is to be the line marking the seaward limit of inland waters.156 That line includes segments of closing lines across juridical bays and river mouths, along fringing islands, as well as historic waters. While demarcating such baseline location involves far more complexities than finding low-water mark, it would be an erroneous perception to view this as the first step in a mechanical exercise of cartographic geometry.157 The concept of delimitation as a high seas regime navigation servitude applying equitable principles consistent with the res communis public trust begins with an element of essential fairness. The benefits for littoral States in marginal sea area delimitations are the extensions of protective jurisdictions, or of sovereignty, or of sovereign rights, which must be balanced both as to each other, reflecting respective territories or zones and rights of access to the high seas, and by preservation of the navigational freedom principle for all other States in high seas regime marginal sea navigation. The result is that equitable principles are brought into boundary construction methods and judgmental adjustments of “reasonableness” are made to select a starting principle and applicable method as well as to cure identified delimitation inequities.158 This is the new high seas regime crucible at work. Delimitations can be contentious and contested, especially where extended navigational protective jurisdictions meet, where high seas areas are constricted or where natural resources such as fisheries or hydrocarbons are

154 155 156 157 158

Supra notes 52, 55, 65. 18 U.S.C. § 1651 (2000). 43 U.S.C. § 1301(c) (2000). Compare with the Gulf of Maine Case, 1984 I.C.J. 426, 332–33. Id. at 328.

D. Marginal Sea Delimitations

189

present, all as in the Gulf of Maine Case. Initially the res communis public trust principle of nondiscrimination is manifest with application of the “equidistance principle”, applied in delimitations through construction of a median line intended to supply an initial and basic equitable allocation of adjoining or overlapping littoral State maritime areas for navigational servitudes.159 A median line is comprised of connected turning points measured from salient features on the respective territorial sea baselines.160 The corollary is that the resulting median line delimitation should be adjusted further by

159

160

See discussion supra note 137. Since 1976 numerous States have chosen to rely on strict application of the equidistance principle for territorial sea, continental shelf, 200-mile fishery or economic zones, and comprehensive “maritime boundaries.” See for example Maritime Boundary: Maritime Claims and Boundaries: Uruguay, Limits in the Seas, No. 123 (Nov. 27, 2000); Maritime Boundary: U.S.-Niue, Limits in the Seas, No. 119 (July 30, 1997); Maritime Boundaries in the Caribbean: U.S.-U.K., Limits in the Seas, No. 115 (Apr. 11, 1994); Maritime Boundary: Cuba-U.S., Limits in the Seas, No. 110 (Feb. 2, 1990); Maritime Boundary: Cuba-Mex. (Yucatan Channel), Limits in the Seas, No. 104 (Sept. 10., 1985); Maritime Boundary: Burma-Thail., Limits in the Seas, No. 102 (Jan. 30, 1985); Maritime Boundary: Costa Rica-Pan., Limits in the Seas, No. 97 (Dec. 6, 1982); Maritime Boundary: France (Reunion)-Mauritius, Limits in the Seas, No. 95 (Apr. 16, 1982); Continental Shelf Boundary: India-Indon.Thail., Limits in the Seas, No. 93 (Aug. 17, 1981); Maritime Boundary: U.S.-Venez., Limits in the Seas, No. 91 (Dec. 16, 1980); Continental Shelf Boundary: Italy-Spain, Limits in the Seas, No. 90 (Mar. 14, 1980); Maritime Boundary: Federal Republic of Germany–German Democratic Republic, Limits in the Seas, No. 74 (Oct. 5, 1976); and Braz.–Uru. Limits in the Seas, No. 73 (Sept. 30, 1976). Application of the equidistance principle is simplified in some cases by deleting certain “tri-junction” or turning points. See for example Maritime Boundary: and United States-Cook Islands and United States–New Zealand (Tokelau), Limits in the Seas, No. 100 (Dec. 30, 19830; and Maritime Boundaries: Colombia–Panama, Limits in the Seas, No. 79 (Nov, 3, 1978). In other cases the equidistance line is modified to account for special circumstances. See for example Continental Shelf Boundaries: The Persian Gulf, Limits in the Seas, No. 94 (Sept. 11, 1981); Continental Shelf Boundary: Italy–Tunisia, Limits in the Seas, No. 89 (Jan. 1, 1980); and Continental Shelf Boundary: Finland-Sweden, Limits in the Seas, No. 71 (June 16, 1976). Equidistance has been applied also in certain negotiated delimitations. See for example Jamaica’s Maritime Bounds and Claims, Limits in the Seas, No. 125 (Feb. 5, 2004); Maritime Boundary: Cuba-Mexico (Yucatan Channel), Limits in the Seas, No. 104 (Sept. 10, 1985); and Territorial Sea and Continental Shelf Boundaries: Australia-Indonesia-Papua New Guinea, Limits in the Seas, No. 87 (Aug. 20, 1979). The significance here is that “equidistance” has value as a primary equitable principle when subject to adjustment by “auxiliary equitable principles” for inequitable effects and the presence of special circumstances. See supra note 137.

190

Chapter IV

Parallels – Conventional Law of the Sea

application of equitable principles as needed to cure apparent inequities and to accommodate “special circumstances” and “relevant circumstances”. Adjusting the initial equidistance line location further by application of “auxiliary” equitable principles is intended to eliminate initial apparent inequities and, especially, to account for the presence of special circumstances and relevant circumstances.161 These equitable adjustors are the “auxiliary principles” so labeled in the Gulf of Maine Case.162 Inequities are to be cured particularly where underlying maritime uses and interests are evident and impacted in the delimitation area, including among others access to fisheries, hydrocarbons and historic waters.163 Balance in delimitation is the conceptual key, and jurisdictional balance is reflected in the premise that, as between opposite and adjacent States, each is entitled to fair division of the penumbra wherein its interests overlap in seaward extension for the territorial sea baseline. Note that “fair” does not mean “equal” but “balance” does mean that each State has an equal beneficial interest in the navigational freedom principle of the res communis public trust and, therefore, a right to fair treatment regarding maritime navigational usage. The res communis public trust effectuates a governing navigation servitude for delimitations which is consistent with the fundamental status of a trust as an equitable concept and requires application of equitable principles to effectuate its delimitation responsibilities for interacting maritime jurisdictions. Jurisdictional overreaching would be both discriminatory – that is, inequitable – and adverse to and inconsistent with the res communis public trust.164 There must be an extended juridical balance with the municipal jurisdictions as well as with the high seas regime res communis navigation servitude and its derivatives. The Gulf of Maine Case points out that in delimitation of a single (unified) maritime boundary, where the features of the territorial sea, contiguous zone, EEZ and continental shelf present a mix of factors for evaluation under equitable criteria, the delimitation starting point would not be the application of the equidistance principle with the median line construction method necessarily. Indeed in the Gulf of Maine

161 162 163

164

The Gulf of Maine Case, 1994 I.C.J. at 246, 313–14. Id. at 246, 328, 335. Application of the equidistance principle and various bases for modification are described generally in Aaron L. Shalowitz, 1 Shore and Sea Boundaries (1964). See supra note 137. Id. at 335.

D. Marginal Sea Delimitations

191

Case a simplified equidistance-based construction method is employed to delimit an initial line and, thereafter, the resulting line is adjusted to correct for coastal proportionality and to effect an “equal” division.165 That last step of an “equal” division to be justified by “proportionately” has proven problematical, because the equitable principle is proportionality, not equal division, suggesting that the Gulf of Maine Case delimitation reflects an underlying result-driven delimitation. Before embarking on the simplified method, the Gulf of Maine Case explains why the equidistance principle with a median line construction method is not used, and points out as well that the decision is unique and based on unique circumstances.166 Regardless, delimitation under the high seas regime navigation servitude must meet the res communis public trust requirement of nondiscrimination among beneficiaries.167 Therefore the point and purpose of adjudications applying equitable principles must be that the resulting delimitation does not disproportionately advantage one littoral State’s extension of navigational protective jurisdiction over that of its neighbor creating an inequitable circumstance. It is submitted that in delimitation adjudications the adjudicator has a trustee role and owes

165

166 167

The Gulf of Maine Case, 1984 I.C.J. at 195, adopts an “equal division” as the equitable basis for delimitation within the Gulf. The Court writes in pertinent part, as follows: To return to the immediate concerns of the Chamber, it is, accordingly, towards an application to the present case of criteria more especially derived from geography that it feels bond to turn. What is here understood by geography is of course mainly the geography of coasts, which has primarily a physical aspect, to which may be added, in the second place, a political aspect. Within this framework, it is inevitable that the Chamber’s basic choice should favour a criterion long held to be as equitable as it is simple, namely that in principle, which having regard to the special circumstances of the case, one should aim at an equal division of areas where the maritime projections of the coasts of the States between which delimitation is to be effected converge and overlap. Adjustment of a boundary based on equal sharing has not been followed. Qatar v. Bahrain, 2001 I.C.J. ___ (Slip Op. ¶¶ 233, 234); Jan Mayen Case, 1993 I.C.J. 64, 66, 69. The Jan Mayen Case reads, in pertinent part, as follows: Thus the law does not require a delimitation based upon an endeavour to share out an area of overlap on the basis of comparative figures for the length of the coastal fronts and the areas generated by them. The task of a tribunal is to define the boundary line between the areas under the maritime jurisdiction of two States; the sharing-out of the area is therefore the consequence of the delimitation, not vice versa.” Id. at p. 67. 1984 I.C.J. at 265, 315, 327. See supra note 129.

192

Chapter IV

Parallels – Conventional Law of the Sea

fiduciary loyalty to the res communis public trust and the nondiscriminatory application of its associated equitable principles. The Gulf of Maine Case goes to some length to argue that fisheries and water column resources are not dependent on the land, so that the role of geography would be reduced for a unified maritime boundary delimitation as opposed to a continental shelf boundary.168 On its face that reasoning also is conclusion driven. All boundaries are political, and it is political interests manifest as extended protective jurisdiction over resources – not isolated sea-farms – which are being delimited. Simply put, it is the upland territory of States which engenders the maritime beneficial interests to be delimited; of course geography is significant. Nondiscriminatory delimitations of such maritime political interests are essential to avoid simplistic constructs with inequitable results.169 Acceptance of the equidistance principle as the res communis delimitation starting point for boundaries between opposite or adjoining States is apparent from its adoption in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone170 and the 1958 Geneva Convention on the Continental Shelf,171 as well as in the 1982 UNCLOS provisions for the territorial sea.172 The premise in these conventional provisions, as well as comparable provisions contained in UNCLOS for the EEZ and continental shelves of opposite or adjoining States, is that there first should be agreement of the parties173 and, failing that, equitable principles will be applied to achieve a

168

169 170

171 172

173

The Gulf of Maine Case, 1994 I.C.J. 246, 340, 342–44. Contra see supra notes 129, 135, explaining the tie between territorial sovereignty and extended navigational protective jurisdiction. The Gulf of Maine Case, 1994 I.C.J. at 93–94. Id., 1984 I.C.J. at 313–14, dismisses the applicability of the 1958 Convention on the Territorial Sea and Contiguous Zone, (Apr. 29, 1958), arts. 12(1) & 24, 15 U.S.T. 1607, 1610, 1612, as well as of the 1958 Convention on the Continental Shelf, (Apr. 29, 1958), art. 6, 15 U.S.T. 474, supra note 2, as being inapplicable treaty law. The Court could have as easily recognized the provisions of these conventions as reflective of customary law concepts. Compare with approach taken in the Jan Mayen Case, 1993 I.C.J. 38, 58–59. The concept of customary law is described in Passage Over Indian Territory (Portugal v. India), 1960 I.C.J. 6; and United States Nationals in Morocco (Fr. v. U.S.), 1952 I.C.J. 199. 1958 Convention on the Continental Shelf, supra note 2, art. 6, 15 U.S.T. 472, 474. UNCLOS, supra note 440, art. 15, 1833 U.N.T.S. 403. Cf. Qatar v. Bahrain, 2001 I.C.J. at __ (Slip Op. ¶ 167); 40 I.L.M. 847, 882 (2001). Examples of boundaries resulting from “agreement of the parties”, from negotiation, without reference to a “method of construction” or the applicable “equitable principles”

D. Marginal Sea Delimitations

193

delimitation. Under the 1958 Geneva Conventions, failing agreement, a median line is set as the nominal fall-back containment line for the opposing or adjacent territorial seas and continental shelves,174 and that approach continues in UNCLOS for the territorial sea.175 UNCLOS adopts a distinct approach for opposing and adjacent continental shelves and EEZ’s, apparently because UNCLOS has automatic referral to a dispute resolution mechanism in the absence of agreement “to achieve an equitable solution”, and thus does not require an efficacious equitable fall-back solution to a contested boundary.176 The automatic dispute resolution mechanism purportedly will apply equitable principles and, therefore, unlike the 1958 Convention on the Continental Shelf, does not require a pre-selected equitable principle and construction method. This UNCLOS approach is referenced in the Gulf of Maine Case and described as reflecting the need for more than a fall-back line based on one equitable principle because the large geographic areas involved require that all equitable principles, known and evolving, should be available in addition to the equidistance principle.177 All equitable principles are of course available under the 1958 Geneva Conventions, the difference being that when negotiations fail and adjudication is not agreed a fall-back solution

174

175 176 177

including “equidistance, are as follows: Maritime Boundaries: Colombia-Dominican Republic and Netherlands (Netherlands Antilles)-Venezuela, Limits in the Seas, No. 105 (Jan. 22, 1986); Maritime Boundary: The Gambia-Senegal, Limits in the Seas, No. 85 (March 23, 1979); Maritime Boundary: Colombia-Costa Rica, Limits in the Seas, No. 84 (Feb. 15, 1979); Fisheries Agreement: China-Japan, Limits in the Seas, No. 70 (April 6, 1976); and Territorial Sea and Continental Shelf Boundary: Guinea Bissau-Senegal, Limits in the Seas, No. 68 (March 16, 1976). Other boundaries simply use an extension seaward of the territorial boundary, which seems to be most useful where a line of latitude is followed and sometimes is identified as an equidistance line. See for example Maritime Clams and Boundaries: Uruguay, Limits in the Seas, No. 123 (Nov. 27, 2000); Continental Shelf Boundary: Turkey-U.S.S.R., Limits in the Seas, No. 109 (Sept. 29, 1988); Maritime Boundary: Costa Rica-Panama, Limits in the Seas, No. 97 (Dec. 6, 1982); Continental Shelf Boundary: The Persian Gulf, Limits in the Seas, No. 94 (Sept. 11, 1981); Maritime Boundary: Ecuador-Peru, Limits in the Seas, No. 88 (Oct. 2, 1979); Maritime Boundary: Chile-Peru, Limits in the Seas, No. 86 (July 2, 1979); Maritime Boundary: Brazil-Uruguay, Limits in the Seas, No. 73 (Sept. 30, 1976); and Maritime Boundary: Colombia-Ecuador, Limits in the Seas, No. 69 (April 1, 1976). Convention on the Territorial Sea and Contiguous Zone, Art. 12.1, 15 U.S.T. 1610; Convention on the Continental Shelf, Art. 6.1 and .2, 15 U.S.T. 474. UNCLOS, supra note 4, arts. 15, 74, 83; 1833 U.N.T.S. 403, 421, 431. UNCLOS, supra note 4, arts. 74, 83, 1833 U.N.T.S. 427–28, 431. The Gulf of Maine Case, 1994 I.C.J. 246, 328.

194

Chapter IV

Parallels – Conventional Law of the Sea

is implemented. It is worth noting, however, that the Gulf of Maine Case came back to use the equidistance principle in the first instance because of the inherent value of the equidistance as an equitable principle in achieving an initial presumptively fair – not equal – division.178 For the res communis public trust there is a clear point here: delimitation has to start somewhere, according to some equitable principle, and the principle required is fairness as achieved through discrimination avoidance. The equidistance principle may be taken to avoid discrimination in the first instance and, as adjusted to cure apparent inequities, to provide the needed starting point for equitable maritime boundary delimitation simply by beginning with construction of a median line from which inequities should become manifest. It is frequently desirable to vary the location of a median line boundary because of exaggerated line convolutions or vectors which may result when the principle of equidistance is applied in the presence of rocks, islets, islands, promontories, peculiar coastal indentations or other special circumstances179 or relevant circumstances180 which would cause location shifts in the territorial sea baseline and thereby the coordinates of median line turning points. In the circumstance of median line exaggerations there is justification for adjustment designed to moderate any substantial disproportionate delimitation or inequitable effect caused by coastal features.181 As 178 179

180

181

Id.. at 328–29. See supra note 130. See The Convention on the Territorial Sea and Contiguous Zone, supra note 438, arts. 4, 10, 11, 15 U.S.T. 1608–610; and see the Convention on the Continental Shelf, supra note 2, art. 6, 15 U.S.T. 474. The International Law Commission considered that historic claims could be made over coastal waters as territorial seas, as well as inland waters, which would present a relevant circumstance. Juridical Regime of Historic Waters, Including Historic Bays, [1963] 1 Y.B. Int’l L. Comm’n 23, U.N. Doc. A/CN.4/143. Historic fisheries (sponges, weirs, pearl banks) were determined not to be relevant circumstance sufficient to require delimitation adjustments in Tunisia v. Libya, 1982 I.C.J. 18, 72–77, 76–77; or pearl banks in Qatar v. Bahrain, 2001 I.C.J.____ (Slip Op. ¶¶ 235–36); 40 I.L.M. at 893 (2001). The Gulf of Maine Case, 1984 I.C.J. 246, 334–37. See Newfoundland Case, ___ I.L.R. ____; ___ I.L.M. ___; Slip Op. at 22 (2002), which reads in pertinent part as follows: Geographical factors were of fundamental importance because sovereignty over the coast was the basis of title. The first step was to identify, on the basis of the notion of frontal projection, the seaward extension of the coasts, which were the areas directly in front of those coasts. The ‘principle of non-encroachment’ required that the delimitation should accord to each Party its own ‘natural prolongation’ or seaward extension of its coast and avoid any ‘cut-off’ effect on the seaward extension of the other Party. An equitable delimitation would give proportionate effect to the coastal geography and avoid the

D. Marginal Sea Delimitations

195

used in the 1958 Convention on the Continental Shelf, Article 6, the term “special circumstances” is intentionally undefined.182 Along with “special circumstances”, the term “justified” also is left undefined, though its ordinary definition183 confirms the need for fairness or equity between the parties to a boundary delimitation as well as to other States, particularly in agreeing whether special circumstances exist or whether areas previously regarded as high seas are encompassed within the territorial sea, or another zone of littoral State extended governmental protective jurisdiction, or even within inland waters.184 Other than for the territorial sea, UNCLOS does not use a median fall-back line, so that there is no reference to “special circumstances” or “justified” for the continental shelf or EEZ. The applicable UNCLOS standard is “international law”, which throws the parties back onto customary law or other treaty arrangements between them.185 But what is the

182

183

184

185

potentially distorting effects of incidental features. Proportionality – the relationship between the coastal lengths and the maritime entitlements – was a critical factor both in the selection and application of the method of delimitation to be used and as an ex post facto means of testing, by reference to proportionality between coastal lengths and offshore areas, the equitable character of the delimitation. Id. at 22. See 3 United Nations Conference on Law of the Sea Official Records (Committee ) 189–93 (1958) [U.N. Doc. A/Conf. 13/39]; 6 United Nations Conference on Law of the Sea Official Records (Committee ) 91–95 (1958) [U.N. Doc. A/Conf. 13/42]. Black’s at 870, reads as follows: “Justifiable. Capable of being legally or morally justified, exercisable, defensible.” See Statement of Sir Gerald Fitzmaurice, United Kingdom delegation, 3 United Nations Conference on Law of the Sea Official Records (Committee ) 189 (1958) [U.N. Doc. A/Conf. 13/39]. For a discussion of equity as essential fairness, see North Sea Continental Shelf Cases, 1969 I.C.J. 4. UNCLOS, supra note 4, arts. 74, 83, 1833 U.N.T.S. 431. See for example Norway-Sweden Boundary, Limits in the Seas, No. 2 (Jan. 22, 1970); Italy-Yugoslavia Boundary, Limits in the Seas, No. 9 (Feb. 20, 1970); Norway-United Kingdom Boundary, Limits in the Seas, No. 10 (revised June 14, 1974); Denmark–United Kingdom Boundary, Limits in the Seas, No. 10 (revised June 14, 1974); Bahrain-Saudi Arabia Boundary, Limits in the Seas, No. 12 (March 10, 1970); Norway-Soviet Union Boundary, Limits in the Seas, No. 17 (May 27, 1970); Iran-Qatar Boundary, Limits in the Seas, No. 25 (July 9, 1970); Finland-Soviet Union Boundary, Limits in the Seas, No. 56 (Oct. 19, 1973); Canada-France (St. Pierre and Miquelon) Boundary, Limits in the Seas, No. 57 (Sept. 12, 1974); Indonesia-Singapore Boundary, Limits in the Seas, No. 60 (Nov. 11, 1974); India-Indonesia Boundary, Limits in the Seas, No. 62 (Aug. 15, 1975), and Canada-Denmark (Greenland) Boundary, Limits in the Seas, No. 72 (Aug. 4, 1976).

196

Chapter IV

Parallels – Conventional Law of the Sea

basis for requiring “fairness” other than that there is a res communis public trust involved requiring application of equitable principles – the equation of interdependent usage and reciprocal public trust with the extension of littoral State protective jurisdiction. Whether the equidistance principle is viewed as an equitable principle approved for application under a rule of customary international law,186 or as an equitable principle available under international conventional law, since 1958 equidistance has been the primary equitable principle of the res communis public trust relied upon for boundary delimitations. Its use confirms its reliability when applied to immutable geographical facts. For example, Canada and France have delimited their territorial sea boundary between Newfoundland and the two offshore French islands of St. Pierre and Miquelon according to the equidistance principle together with “negotiated positions”.187 India and Sri Lanka have relied, in part, on the equidistance principle to delimit their international boundary through the historic waters of Palk Bay.188 And, recently, Newfoundland and Nova Scotia entered into an arbitration which delimited their continental shelf boundary according to the equidistance principle, adjusted to correct inequities.189 Numerous other boundary delimitations have perceived the utility of the equidistance principle as a starting point, and applied it subject to adjustment of inequities and to account for the presence of special circumstances.190 Equidistance remains the equitable principle which should be evaluated first,191 and is tested under a navigation servitude of the high seas regime res communis public trust for essential fairness as demonstrated by the absence of inequitable effects. Littoral State practice and the 1958 Geneva Conventions as well as UNCLOS evidence general recognition that equidistance is a “starting point” rather than an “auxiliary” equitable principle, and that, while median

186 187 188 189 190

191

See supra note 137. Limits in the Seas, No. 57 (Sept. 12, 1974). Limits in the Seas, No. 66 (Dec. 12, 1975). Newfoundland Case, ___ I.L.R ___; ___ I.L.M. ___; Slip Op. at __ (2002). See supra notes 137, 184; And see generally 1–4 John Charney & Lewis Alexander, International Maritime Boundaries (1991). Boundary arbitration hearings are ongoing between Guyana and Surinam. Also, the equidistance principle starting point has recently been applied in the single maritime boundary arbitration between Barbados and Trinidad and Tobago, established under an UNCLOS tribunal as reported by David Colson, Esquire, in 45 I.L.M. 798 (July, 2006). See supra note 137; see also Boggs, infra notes 628, 630.

D. Marginal Sea Delimitations

197

line construction is a common delimitation method utilizing a geometric technique and the equidistance principle, it neither is, nor should become, a rule of law.192 Indeed, there is no customary international law which would require parties to construct an international boundary using the equidistance principle. Any dividing line may be negotiated according to any principle or with no guiding principle at all193 so long as the beneficial interests of other States are not implicated, and that is the fundamental servitude of the equitable principle that there be no inequitable result from delimitation. The essential fairness equitable principle of the res communis public trust supports nondiscrimination and avoidance of disproportionate or exclusionary delimitations within the res communis public trust concept. The common equitable principle of that public trust is navigational freedom, applied in protection and preservation of the broadest possible public access to and usage of maritime areas, that is, for commerce conducted consistently with applicable municipal and international laws and regulations. The value of the equidistance principle is as an equitable principle, rather than as a rule of law, because an equidistance delimitation is subject to judgmental adjustment.194 Agreement of the parties, as the fundamental and first applicable rule of law to boundary delimitations,195 points to the “balance” sought in the rule of law for extended navigational protective jurisdictions between

192

193 194

195

See Cdr. R. Kennedy, Brief Remarks on Median Lines and Lines of Equidistance and on the Methods Used in their Construction (Apr. 2, 1958) (unpublished memorandum distributed at the First United Nations Law of the Sea Conference by the British delegation) (on file with author). See supra note 173. No one method of delimitation could possibly accommodate all equities in all circumstances, so the equidistance principle cannot be a rule of law. Germany-Denmark, Germany Netherlands (North Sea Boundaries Cases), [1969] I.C.J. 1, 35, 41. Brierly describes customary law as a “usage . . . felt to be obligatory”, which status the equidistance principle has not achieved. James L. Brierly, The Law of Nations 59 (Humphrey Waldock ed., 6th ed. 1963). But, rather than a delimitation designed to accommodate all equities the equidistance approach as applied in English Channel Arbitration, [1977] 18 U.N.R.I.A.A____, 54 I.L.R. 6; 18 I.L.M. 427 (1977), is to test the modified equidistance line for the presence of inequities. Convention on the Territorial Sea and Contiguous Zone, supra note 2, art. 12, 15 U.S.T. at 1610; Convention on the Continental Shelf, supra note 2 art. 6, 15 U.S.T. 74, 83; UNCLOS, supra note 4, arts. 74, 83, 1833 U.N.T.S. 403, 427–28, 431. J.P.A. François, Report of the Second Committee, in 3 League of Nations Conference For the Codification of International Law [] 825, 836 (Shabtai Rosenne ed. 1975).

198

Chapter IV

Parallels – Conventional Law of the Sea

opposite and adjacent States. Balance is essential fairness; delimitation without undue weight. Consequently, boundaries achieved through agreement should take into account the most serious concerns of the parties including geographical circumstances, navigational and derivative usages of the area, defense and political concerns, as well as the above listed and other numerous potential special circumstances. Agreement, therefore, is the ultimate equitable principle for delimitation. UNCLOS provisions for the continental shelf and the EEZ set the standard of boundary negotiation to be “agreement on the basis of international law . . . in order to achieve an equitable solution.”196 (Emphasis added.) In short, the international law framework for application of equitable principles and delimitation adjustments reflects interactions for a number of equitable principles, all within the context that the res communis public trust is the overarching delimitation servitude. Good faith is critical to the fundamental operative requirement for delimitation by agreement, that is, fairness. But the presence of political reality preventing the achievement of agreement does not necessarily mean bad faith, though it may mean agreement is impossible and confirm the need for adjudication.197 This approach is followed in the Convention on the Continental Shelf and in UNCLOS, where failed agreement initiates referral to a dispute settlement process rather than fall back to a default median line. The UNCLOS language apparently would have the adjudicator “achieve an equitable solution” but, notably, the precise language of the UNCLOS provision sets the “equitable solution” standard for the parties but specifies none for the adjudicator,198 suggesting the possibility of ex aequo et bono delimitations and raising a concern for the United States which typically avoids mandatory dispute settlement, and certainly any delimitation of navigational rights without the servitude of a juridical standard. The need for fairness, the utility of equidistance and the avoidance of disproportionality, all as applied to achieve nondiscriminatory delimita-

196

197 198

UNCLOS, supra note 4, art. 74, 1833 U.N.T.S. 427–28. Gulf of Maine Case, 1984 I.C.J. 246, 49. UNCLOS, supra note 4, arts. 74.3, 83.3, 300, 1833 U.N.T.S. 428, 431, 516. UNCLOS, supra note 4, arts. 74, 83, 1833 U.N.T.S. 427, 431. No standard for adjudication or delimitation is provided. Parties in disagreement are merely pushed to Part XV Dispute Settlement, where again no standard applies besides “international law.” It has to be assumed, and watched by parties, that the adjudicator applies the “equitable solutions” standard.

D. Marginal Sea Delimitations

199

tions, are equitable principles which the res communis public trust requires by definition; high seas regime navigational servitudes. The high seas regime navigational servitudes, customary and conventional, are applied to protect and preserve the common navigational freedom principle of that res communis public trust. The conventional response implements navigational servitudes over marginal sea areas for assurance of balanced delimitations among competing littoral State and high seas navigational uses. This is the concept crucible begun with the Selden/Grotius dispute in the 17th century, evolved into the res communis definitional crucible, and in this process fairness requires cognizance of, and delimitation adjustment for, special circumstances.199 The importance of the res communis public trust equitable principles applied to avoid discriminatory delimitations is replete in the history of conventional maritime boundary provisions. The records of the 1930 Hague Codification Conference and its Preparatory Committee indicate that the involved jurists were aware of the equidistance principle and its utility when boundary delimitation by agreement failed.200 Notably, use of low-water mark as the normal baseline from which to measure the territorial sea had been proposed in 1930 by S.W. Boggs, a member of the United States delegation to the Conference and other writers concurred with Mr. Boggs’ baseline suggestion, which was generally accepted by States participating in the Conference.201 In 1949 the United Nations International Law Commission received the assignment to prepare a draft code for the law of the sea. The cumulative result of the ensuing work is contained in the 1958 Geneva Conventions. At an early stage the Commission apparently accepted the principle of equidistance as the method to be employed for some boundary

199

200

201

Geneva Conventions, supra note 2, 15 U.S.T. 1610. R. Hodgson and L. Alexander, Towards an Objective Analysis of Special Circumstances 1 [Law of the Sea Institute, U.R.I.] (Occasional Paper No. 13, April 1972). UNCLOS, supra note 4, art.15, 1833 U.N.T.S. 403. 2 League of Nations Conference for the Codification of International Law [], 277 (Shabtai Rosenne ed. 1975). See James E. Reeves, The Codification of the Law of Territorial Waters, in 24 A.J. Int’l L. 486 (1930). J.P.A. François, Report of the Second Committee, 3 League of Nations Conference for the Codification of International Law (1958) 836 (S. Rosenne ed. 1975). See S.W. Boggs, Delimitation of the Territorial Sea, in 24 Am. J. Int’l L. 541 (1930); see also J.O.J.M., International Law–National Waters-Territorial Waters-Fauces Terrae, 3 Camb. L.J. 277, 279 (1929); Temple Grey, Territorial Waters, 42 L.Q. Rev. 350 (1926).

200

Chapter IV

Parallels – Conventional Law of the Sea

delimitations. Equidistance was considered with reference to an international boundary separating adjacent areas of continental shelf under an arm of the sea shared by opposite states.202 This usage of equidistance is reminiscent of the 1930 Conference recommendation by the Committee of Experts for straits which also shared a continental shelf between opposite states. Indeed, S.W. Boggs wrote in 1951 to explain the utility of a modified median boundary for delimitation of adjoining maritime zones.203 The Yearbooks of the International Law Commission, containing debates of the Commission and reports by its Special Rapporteur, J.P.A. François, also evidence that as early as 1951 the use of the equidistance principle was being discussed by the Commission as applied in a median line construction for a continental shelf shared between two littoral States.204 The 1958 Geneva Conventions continue to be the applicable conventional law for the United States, but UNCLOS has replaced the 1958 Conventions for many littoral States and is viewed by the United States as containing much customary law. The development of UNCLOS between 1976 and 1982 also supplies a history supportive of the equidistance principle. The

202 203

204

See infra note 203. S.W. Boggs, Delimitation of Seaward Areas Under National Jurisdiction, 45 Am. J. Int’l L. 240 (1951). See J.P.A. François, Regime of the High Seas, [1953] 2 Y.B. Int’l L. Comm’n, 4, U.N. Doc. A/CN.4/SER.A/1953/Add.1 (1959); J.P.A. François, Regime of the Territorial Sea, [1952] 2 Y.B. Int’l L. Comm’n, 38, U.N. Doc. A/CN.4/SER.A/1952/Add.1 (1952); [1952] 1 Y.B. Int’l Comm’n, 180–81, U.N. Doc. A/CN.4/SER.A/1952 (1958); and [1951] 1 Y.B. Int’l L. Comm’n, 411, U.N. Doc. A/CN.4/SER.A/1951 (1957). Regarding preference for the equidistance principle over other delimitation methods see J.P.A. François, Regime of the Territorial Sea, [1952] 2 Y.B. Int’l L. Comm’n, 38, U.N. Doc. A/CN.4/SER.A/1952/Add.1 (1958). J.P.A. François, Regime of the Territorial Sea, [1953] 2 Y.B. Int’l L. Comm’n 57, 77–9, U.N. Doc. A/CN.4/SER.A/1953/Add.1 (1959); J.P.A. François, Regime of the Territorial Sea, [1954] 2 Y.B. Int’l L. Comm’n , 1–6, U.N. Doc. A/CN.4/SER.A/1954/Add.1 (1960); Regime of the Territorial Sea, [1954] 1 Y.B. Int’l L. Comm’n, 64–65, 67, U.N. Doc. A/CN.4/SER.A/1954 (1959); Report of the International Law Commission, [1955] 2 Y.B. Int’l L. Comm’n, 19, 38, U.N. Doc. A/CN.4/SER.A/1955 (1960). Articles 14 and 15 were adopted unanimously. See [1955] 1 Y.B. Int’l L. Comm’n, 253, U.N. Doc. A/CN.4/SER.A/1955 (1960). Low-water mark as the ordinary territorial sea baseline also was adopted unanimously. Id. at 249. 3 United Nations Conference on Law of the Sea Official Records (Committee ), 91, 186, 189–93, U.N. Doc. A/Conf.13/39 (1958). And see Comment of the Drafting Committee, in id. at 257.

D. Marginal Sea Delimitations

201

best evidence appears in the work of the UNCLOS III Second Committee. Four documents from that conference present the equidistance principle as perceived by the Committee Chairmen: (1) the Second Committee’s Main Trends, issued after the 1974 session in Caracas; (2) the Informal Single Negotiating Text, published in May, 1975; (3) the Revised Single Negotiating Text, published in May 1976, and (4) the Informal Composite Negotiating Text, published in July 1977.205 UNCLOS was adopted at Montego

205

The “unclassified” United States Delegation Report, filed after the first session in New York, August 2–September 17, 1976, reads as follows: The major outstanding questions involve whether the primary method of delimitation should be according to equity, or by the application of the equidistance line, and it is generally agreed that the solution is to be achieved by agreement between the parties . . . *

*

*

The present text provides for agreement according to equitable principles taking into account, where appropriate, the median or equidistance line. Since the underlying problems are essentially bilateral, the debates have been confused and involved. No agreement was reached on how the text might be amended. Id. at 13. See also the “unclassified” United States Delegation Report (filed after the sixth session of United Nations Law of the Sea Conference, New York) (May 25–Jul. 15, 1977); Navarro M. Aguilar, Report 2nd Comm., 8–9 [for the 5th Sess. of UNLOS III, N.Y.] (Aug. 2-Sept. 17, 1976) [U.N. Doc. A/Conf. 62/L. 17]. Main Trends, (Comm. II), U.N. Doc. A/Conf.62/C.2/WP.1 (1974). Delimitation rules for boundaries are contained in Provision 21, id. at 16–17. Formulas A and B specify equidistance, while Formula C leaves delimitation to agreement of the parties. Provision 4, Formula A uses low-water mark as the normal territorial sea baseline. Id. at 12. Formula B would allow a state to use its own methods such as tide lines or coastal topographic features. Provision 2 allows historic waters to extend the baseline seaward. Id. at 12. Provision 21, Formula A, allows modification of a median boundary due to historic title or other special circumstances. Formulas B and C mention neither historic title nor special circumstances. Id. at 16–17. Provision 17, Formula A, and Provision 5, Formulas A and B, and Provision 6, recognize straight baselines as a special circumstance which may modify a normal territorial sea baseline. Id. at 12–13, 15. Main Trends, supra, Provision 48, Formulas A & B at 31; Provision 49, at 31; Provision 82, Formulas A B & C, at 47–48. Formulas B and C provide for agreement based on equitable principles, and Formula C notes that the equidistance principle is not “necessarily the only method of delimitation.” Main Trends, supra, Provision 116, Formulas A, B, C & D, id. at 72. Formula A simply would require delineation of adjoining areas according to “international law”; Formula B would use the equidistance principle to delimit a boundary; and Formula C would require agreement based on equitable principles taking into account geological and geomorphologic structures of the continental shelf. Formula D would develop a line based on equitable principles, not necessarily a

202

Chapter IV

Parallels – Conventional Law of the Sea

Bay on December 10, 1982, and went into force on November 16, 1994, for the ratifying States upon deposit of the 60th ratification.206 While the United States has not yet ratified UNCLOS,207 UNCLOS, Articles 15, 33, 74, and 83 follow the approach taken in the Main Trends, ISNT, RSNT and ICNT, demonstrating that the equidistance principle continues as an accepted method for construction of a median boundary for the territorial sea. But that median line is a default line only for the territorial sea because overreaching must be curtailed in those narrow waters and because dispute settlement is provided for continental shelf and EEZ boundary delimitation impasses.208 All of the foregoing developmental history of equidistance as an applicable equitable principle in boundary delimitations confirms the role of equitable principles, of essential fairness, of balance, in application of navigational servitudes for preservation of high seas regime freedoms within the res communis public trust. The particular significance of that history is that equitable principles are not singular. Rather they gather and apply in a coordinated fashion for the purpose of achieving fairness. Delimitation elements, characteristics and requirements seeking to achieve “fairness” and “justice”, through the application of “equitable principles” for “special circumstances” and “relevant circumstances” reflect more than customary or conventional rules for boundary delimitations. These severally or in combination evidence an equitable standard, a high seas navigation servitude over marginal seas, to preserve nondiscrimination and achieve balance in extension of governmental navigational servitudes with concomitant preservation of high seas regime navigational servitudes. Balance is fairness, and the equal beneficial interests of all States in the navigational freedom principle contained in the res communis public trust concept require the application of equitable principles. Delimitations under customary and conventional law are – it is submitted –

206

207

208

delimitation according to the equidistance principle. Provision 117 indicates that the 200-mile economic zones should not be affected by seabed boundaries. Id. UNCLOS went into force November 16, 1994, with deposit of the 60th instrument of ratification. At that time the convention was ratified largely by Third World States. Ratifications, 33 I.L.M. 309 (1994). One of the major impediments for the United States has been seabed mining contained in UNCLOS, supra p. 178, Title XI. Much of that concern was abated with conclusion of the Agreement Relating to the Implementation of Part XI, A/RES/48/263 17 August 1994; 33 I.L.M. 1309 (1994); [hereinafter Part XI]. See supra notes 201, 203.

D. Marginal Sea Delimitations

203

prime evidence that the res communis public trust protects and preserves common navigational freedom as an equitable principle of nondiscriminatory access and use within the high seas regime navigational servitudes. *

*

*

One referenced supplemental segment in the territorial sea baseline delimitation is for containment of historic waters or historic bays. These are inland or internal bodies of water, contained within the littoral State as territory, where the establishment of closing lines for such water bodies either antedates the conventional navigational servitudes for delimitations, or constitutes a prescriptive acquisition which equitable principles will not undo because of State acquiescence. Equitable principles of fairness and nondiscrimination justify application of closing lines for such coastal waters as such supplement segments, but the greater significance of historic waters is their role as the non-conventional side of the territorial sea crucible as navigational servitudes evolved and in many ways came to bear on the conventional delimitation servitudes eventually agreed at Geneva in 1958 and UNCLOS at Montego Bay in 1982.

Chapter V Navigational Servitudes: Parallels – Historic Waters, Cases, Conferences & Publicists In the era before agreement and implementation of conventional baseline delimitation rules the enclosure of closed coastal waters and bays as inland or internal waters became an individualized matter. This has given us the evolved concept of historic waters which references titles achieved through a historic acquisition process antedating conventional juridical bays and now recognized by the delimitation servitudes as eventually agreed at Geneva in 1958 and Montego Bay for UNCLOS in 1982. The driving issue, of course, is occupation and possession. In this context the Grotius/Selden dispute came to fix the landward bounds for high seas regime navigational servitudes.

A. The Crucible Focused The territorial sea regime governs an area of transitional control where overlapping high seas navigational servitudes interface and, over time, have adjusted in mutual accommodation with littoral State extended navigational protective jurisdiction. This has been a melding process since before the Selden/Grotius dispute of the 17th century. The high seas regime and its res communis public navigation requirements became balanced with the littoral State territorial sea regime for extended protective jurisdictions as governmental navigational servitudes – a process which may have matured with UNCLOS and supporting customary law. Customary law, together with the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, and the 1982 UNCLOS preserve the high seas regime freedom of innocent passage as an a priori navigational

206

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

servitude1 within the territorial sea, while equally recognizing littoral State sovereignty over the territorial sea, water column, seabed and subsoil.2 Both municipal and high seas regime navigational servitudes are applied within the territorial sea so that the littoral State controls navigation as necessary for governmental, criminal, regulatory, defense and economic purposes – protective jurisdiction – as well as holds underlying sovereignty based on occupation and possession from shore. But littoral State sovereignty landward of the territorial sea is complete, absolute and exclusive of any high seas regime servitudes over enclosed coastal waters. Establishing the baseline separating such enclosed territorial or inland coastal waters from the territorial sea is a significant part of the definitional crucible for the territorial sea. International law does not protect navigation hostile to municipal jurisdiction of littoral States, and limits that territorial sea sovereignty of the littoral State only for high seas regime non-hostile general voyaging uses by other States. In balance, the high seas regime right of innocent passage is preserved where international use of the marginal seas as well as the high seas is needed for commercial navigation, a use established and antedating the acquisition of littoral State territorial sea sovereignty.3 Importantly, and a reflection of the juridical evolutionary process under way, the concept of a territorial sea is one of international law rather than municipal law. That is why the littoral State extensions of protective jurisdiction are subject to the high seas regime a priori rights of innocent passage and its derivatives. So delimitation of the territorial sea baselines should be understood as within the high seas regime servitudes and therefore must meet the equitable principles standard of the res communis public trust. The territorial baseline sets the landward extent for application of high seas regime navigational servitudes, including marginal sea delimitation requirements, and marks the beginning of international high seas navigational servitudes. Landward of that territorial sea baseline, control of all navigation and its derivative navigable waters uses passes to the littoral State. Importantly

1

2

3

The International Court of Justice confirmed the right of innocent passage in The Corfu Channel Case (U.K. v. Albania), 1949 I.C.J. 4, 22, 28. Convention of the Territorial Sea and Contiguous Zone, Geneva Conventions, supra c. ii, note 2, arts. 1, 14–17, 15 U.S.T. at 1608–611; UNCLOS, supra c. iv, note 4, arts. 2, 17–26, 1833 U.N.T.S. at 400, 404–06. Supra pp. 150–67. Queen Elizabeth I understood the use of the sea and the air to be free to all. Susan Brigden, New Worlds, Lost Worlds 275 (2000).

A. The Crucible Focused

207

the location of the territorial sea baseline drives or pushes seaward all other marginal sea area zones and delimitations measured from it, and encloses as internal those waters which otherwise might be within the coastal waters belt and subject to the high seas regime servitudes. Efforts at such inclusions are ancient, as for example the English neutral waters proclaimed in the 17th century for the King’s Chambers and the English common law assertions of territorial jurisdiction over bays and arms of the sea as contained inter fauces terrae to the exclusion of admiralty jurisdiction. When coastal waters are subjected to exclusive littoral State control, with the acquiescence of foreign nations whose voyaging is involved, over time they cease to be subject to the high seas regime and pass into the status of internal waters. This process requires historic duration unless subsumed in conventional international law for geometric baseline construction. The process is one of customary international law demonstrating acceptance of certain closed coastal waters as inland or internal to the littoral State, either through a historic consolidation process or through a more contemporary process of prescriptive acquisition. Claims of such historic title to inland waters are tested for both the assertion of littoral State sovereignty and the demonstration of exclusive control of all navigation by the littoral State. These claims are then measured against the acquiescence of other States, for actual or implied acknowledgement of the absence of prior high seas regime servitudes – innocent passage, force majeure, refuge and safe haven. Prescriptive claims look to acknowledgements confirming the relinquishment by affected States of territorial sea regime servitudes for the servitudes of high seas regime navigation rights. The interplay and balancing of high seas regime and municipal protective jurisdictions at the boundary of the territorial sea – the baseline – is, therefore, a prime focus for the crucible process. Without conventional geometric criteria for demarcation of closed coastal waters the resolution and transition point between high seas regime navigational servitudes and exclusive littoral State governmental navigational servitudes is the territorial sea baseline. Where delimitation demarcates the seaward extent of historic waters, its determination thereby becomes the ultimate application of the controlling res communis public trust protecting the navigational freedom principle in marginal sea areas through the high seas regime navigational servitudes. Customary law governs the actual historic waters title acquisition events and evaluates the weight of relevant and material evidence. This assures that waters not subject to littoral State historic titles remain subject to the

208

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

high seas regime navigational servitudes. The heart of evidence necessary to separate coastal waters from the territorial sea by historic or prescriptive titles is international acquiescence – the implied agreement of affected States in respect of their own res communis beneficial interests and as surrogates for other States not directly affected. Perforce equitable principles apply. Customary and conventional international laws have established ordinary low-water mark as the baseline for measurement of the breadth of the territorial sea,4 contiguous zone and EEZ, supplemented by closing lines across the mouths of rivers and bays,5 as well as by low-tide elevations within the territorial sea, and by harbor works, together with straight baselines where there are fringing islands or a deeply indented coastline. Closing lines are achieved for the most part by geometrical constructions, involving issues

4

5

The normal baseline is the low-water mark as it follows the sinuosities of the coast. Convention on the Territorial Sea and Contiguous Zone, Geneva Conventions, supra c. iv, note 2, Art. 3, 15 U.S.T. 1608. When a closing line is drawn between the headlands of a bay it becomes a segment in the territorial sea baseline. Id., article 7(4), 15 U.S.T. 1609. Although historic bays are excepted from the geometric criteria (Art. 7(6)), closing line separating historic inland waters from the territorial sea also form segments in the territorial sea baseline. Id., arts. 3, 5(1), 7(6), 12(2), 15 U.S.T. at 1608–610. See generally G. Pearcy, Measurement of the U.S. Territorial Sea” in Department of State Bulletin 1 (June 29, 1959); and see United States v. Louisiana, 394 U.S. 11, 71–72 (1969). The geometric criteria for bay closing lines took up much of the law of the sea discussions during the 19th century. Initially the maximum allowable geometric closing line was considered to be six nautical miles, or double the width of the territorial sea for bays presumed to contain inland water. This expanded to ten nautical miles, which remained the legal position of the United States and Great Britain until the 24-mile rule was established under the Convention on the Territorial Sea and Contiguous Zone, Geneva Conventions, supra c. iv, note 2, art. 7, 15 U.S.T. at 1609. See 4 Whitman 218 (1965). See letter from Bayard, Sec. of State, to Manning, Sec. of Treas. (May 28, 1886), in John Moore, 1 International Law Digest 718–21 (1906) (hereinafter Moore). The ten-mile closing line practice is confirmed in the 1910 North Atlantic Coast Fisheries Arbitration, 1 Scott Hague Reports 191 (Perm. Ct. Arb. 1916) (hereinafter Scott). For a report on the utility of the ten-mile closing line across bays see J.P.A. François, Report of the second Committee, in 3 League of Nations Conference For the Codification of International Law () 833 (S. Rosenne ed. 1975). For use of the six-mile closing line by the United States and Great Britain see Report of the Halifax Commission of 1877, H.R. Exec. Doc. No. 89, 45th Cong., 2d Sess. 121–22, 166 (18__). For the United States use of a ten-mile closing line see Manchester v. Massachusetts, 139 U.S. 240 (1891). For application of state jurisdiction over fisheries under United States municipal law see also Bennett v. Boggs, 3 F. Cas. 221 (No. 1,319) (C.C.D. N.J. 1830); and The Martha Anne, 16 F. Cas. 868 (No. 9,146) (D.C.S.D. N.Y. 1843).

A. The Crucible Focused

209

such as what constitutes a headland enclosing coastal waters (the United States has used a maximum 45o angle), whether the enclosed waters meet the semi-circle test for bays, whether the maximum 24-mile closing line is exceeded at the mouths of overlarge bays requiring use of a 24-mile “fall back line”, whether bays with multiple mouths formed by screening islands have closing segments limited to an aggregate 24 geographic miles, and whether straight baselines should exceed 24 nautical miles.6 In contrast, the non-geometrical historic waters baseline supplemental segment depends on whether there is territorial sovereignty factually present, determinable according to the circumstances of each case as tested by the exclusive application of municipal navigational servitudes to the area for control of foreign navigation.7 Since at least the 17th century the juridical status of any bay or other partially closed area of coastal waters has been a function of the authority exercised there by the littoral State. The geometrically constructed territorial sea baselines of the 20th century conventions avoids any need to demonstrate exclusive exercise of littoral State sovereignty over the navigable waters thereby contained; sovereignty is presumed without historical investigation. In contrast, historic waters require substantiation, that is, both evidence of acquisition and evidence of acceptance of littoral State exclusive jurisdiction are required, that is, applied sovereignty. The evidence is apparent in the application of municipal navigational servitudes to the exclusion of high seas regime navigational servitudes. Thus the question whether historic inland waters are present usually arises in one of two ways; either all the waters of an over-large bay (more than 24-nautical-mile entrance width) are claimed as inland waters, or closed coastal waters are claimed as inland which somehow are bordered in part by land, though not in a way which meets any of the geometric criteria for juridical bays. The issue, therefore, is whether any of the ordinarily understood modes of title acquisition have been satisfied; be

6

7

Convention of the Territorial Sea and Contiguous Zone, Geneva Conventions, supra c. iv, note 2, art. 7, 15 U.S.T. 1609; UNCLOS, supra c. iv, note 4 arts. 5–14, 1833 U.N.T.S. 401–03. Id., Geneva Conventions art. 7(6), 15 U.S.T. at 1609; UNCLOS, art. 10(6), 1833 U.N.T.S. at 402.

210

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

it occupation and possession,8 prescription9 or immemorial usage,10 and by what means. Satisfactory evidence may not be available for the particular mode when the acquisition took place in the historic past, and even the applicable mode may be obscure and subject to supposition. Therefore the concept of historic waters gives particular attention to the process of consolidating a legal right in the littoral State by meeting the acquisition criteria of a particular mode during the passage of a significant time period usually described as historic.11 The efficacy of the intent to acquire, and the exercise of the claimed right pursuant to that intent must be measured against the “intertemporal law” for such acquisition as of a “critical date”. The process

8

9

10

11

Occupation of territory is described as follows: Occupation is a means of acquiring territory not already forming the part of the dominions of any state . . . . [It is a] . . . . well-established principle that occupation, in order to create a title to territory, must be followed up by action, such as, in a simple case, the planting of a settlement or the building of a fort, which shows that the state not only desires to, but can and does, control the territory claimed. (Emphasis added.) Brierly, supra c. iv, note 194, 163–64. See L___ Brilmayer & N___ Klein, Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator, 33 N.Y.U.J. Int’l L. & P. 703 (2001). Acquisition of title by prescription is described as follows: The rules of prescription and of historic right are not so much principles by which title to territory is established as a means of proving that title: they operate in a way as a rule of evidence. Prescription is well known on every system of law. It is a principle of social order, by which the holder of property, which he has peaceably occupied with the knowledge and the acquiescence of the owner, will after a sufficient period of time displace the owner. (Emphasis added.) Fawcett, supra c. iv, note 138 59 (1968). Protests from alternative claimants may displace an asserted occupancy. See Symmons, C., The Rockall Dispute Deepens: An Analysis of Recent Danish and Icelandic Actions, 35 Int’l & Comp. L. Q. 344 (1986). Immemorial possession or usage is described as follows: Prescription as a title to territory is ill defined and some writers deny its recognition altogether. International law does appear however, however, to admit that, by a process analogous to prescription of municipal law, long possession may operate to confirm the existence of a title the precise origin of which cannot be shown or to extinguish the prior title of another sovereign. Brierly, supra c. iv, note 194, at 167. C. De Visscher, Theory And Reality In Public International Law 200–02, 215 (P. Corbett trans. 1957).

A. The Crucible Focused

211

is one of consolidation over time, demonstrable at the critical date, and maintained thereafter in compliance with contemporary law.12 A persistent problem for historic title claims is demonstration of “acquiescence”. That is, whether the other States recognize that the littoral State has historically satisfied the acquisition criteria. Where States in the past witnessed acquisition of the claimed area, and did not protest, it is presumed that the applicable “intertemporal” law was satisfied. However, acquiescence also has been described as necessary because the littoral State holds historic internal waters “contrary to law”. That is inaccurate, and a bit hysterical. Historic and even prescriptive titles are not contrary to law, but are achieved in accord with law and accepted as valid under applicable customary or conventional criteria.13 Reflection suggests that the “acquiescence” required is not condonation of an illegal act by the littoral State but, rather, evidence of compliance with intertemporal law through the absence of objection from States affected – the equitable principle of preclusion. There is no apparent inequity in such acquiescence, nor is there in the presumed acquisition under intertemporal law, so that the res communis public trust principles of fairness and balance are not jeopardized. The evidence of acquiescence depends on the mode of title acquisition applied. Acquisition of title by prescription in the absence of “acquiescence” would not extinguish high seas freedoms which are inalienable under the res communis public trust in the absence of consent from the affected beneficiary States. Consequently, “acquiescence” in the case of prescription means actual or constructive consent from States impacted by the extinguishment of their beneficial interests, not simply toleration. Titles based on occupation and possession or immemorial usage must have been achieved before any high seas regime navigation right attached to the involved waters. The claimed area must have been a res nullius and high seas regime navigational servitudes must not have become applicable there. The needed acquiescence for occupation and possession as well as for immemorial possession is “toleration”. That is, the toleration of other States as witnesses to littoral State compliance with international law as implied from the absence of objection, especially from those States whose interests would otherwise be impacted by the claim. All

12

13

The critical moment is the precise time after which positions of the parties could not improve – at least positive acts to strengthen the claim are irrelevant. Island of Palmas Case (United States v. Netherlands), 1 Scott 83, 100 (Perm Ct. Arb. 1932). Leo Bouchez, The Regime Of Bays In International Law 281 (1965).

212

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

of which suggests that the status of the acquired area prior to acquisition indicates the probable acquisition mode and whether toleration or acquiescence is the required evidence at the critical date for the balancing of littoral State coastal waters territorial inclusion with high seas regime navigational servitudes applicable within the territorial sea. For coastal waters the debate has persisted from at least the 17th century Selden/Grotius dispute as to whether marginal sea areas could be occupied and possessed as a res nullius. If historic waters are held as internal, as part of the territory as much as a lake or river, then such areas of the marginal sea must be subject to occupation and possession effected by the surrounding terra firma. But where the marginal sea area acquired is very large, the question arises whether occupation of the surrounding land is sufficient to occupy and possess the involved marginal sea waters. Large coastal sea areas claimed as historic waters may well encounter high seas regime navigable waters and, after the development of the high seas res communis juridical status in the 19th century, such areas could not be acquired without consent. Moreover, a public right to navigation may have developed as a servitude over the involved coastal waters even before the high seas res communis public trust evolved as a high seas regime. Thus, established foreign navigation must be excluded from closed coastal waters by the littoral State to demonstrate a historic title regardless of whether the res communis status has become applicable to the area. Acceptance of that exclusion, express or implied, is the essential acquiescence. In the 20th century a body of arbitral and case law began to develop setting out what would be required to support a littoral State’s claim to historic title over territory, especially historic waters. The Permanent Court of International Justice (PCIJ) rendered the first relevant decision in the 1933 Legal Status of Eastern Greenland (Denmark v. Norway)14 case. The Legal Status of Eastern Greenland arose in regard to competing claims to sovereignty where originally at least part of Greenland had been held by Norway. This area was subsequently lost to Norway when the joint Norway/Denmark Kingdom divided. Since both States asserted that they had maintained a continuous display of authority over Eastern Greenland, the PCIJ focused on the exercise of that authority over time as evidence of sovereignty consolidation. Notably there was never any issue as to whether the territory had been acquired, only as to which State had consolidated its title. The PCIJ

14

1933 P.C.I.J. Ser. A/B, No. 53.

A. The Crucible Focused

213

determined that when a continuous display of authority is offered to support a claim of sovereignty, two elements must be shown: (1) “the intention and will to act as sovereign”, and (2) “some actual exercise or display of such authority”.15 Each sovereignty claim is weighed against competing claims16 to determine the stronger, and the measure is evidence by manifestation of sovereign intent and activities pursued to establish sovereign territorial rights. When consolidation of a historic right is involved, the stronger claim must be based on the oldest evidence for usage of sovereign rights in the area. The PCIJ writes that, “little in the way of actual exercise of sovereign rights” is required to support the claimant with the more historic exercise of those rights.17 It is the antecedence of the Denmark claim, followed by continuous though admittedly weak exercises of sovereignty, which enabled Denmark to prevail. Norway’s exercise of sovereignty may have been stronger qualitatively, but it could not demonstrate such continuity of exercise from antiquity. The absence of continuity might have enabled the PCIJ to find that Demark had abandoned its claim, but the implicit rule of the Legal Status of Eastern Greenland decision is, if title is not secured by the first to exercise sovereign rights through occupation, an inchoate title is nonetheless put in place to be consolidated by subsequent continuous exercise of sovereign acts which will prevail unless abandoned. Acquisition of the inchoate title by any mode was not in question but, rather, history witnessed the continuity of the Danish claim as superior to that of Norway; the role of history was to bear witness to title consolidation. Prior to the Legal Status of Eastern Greenland decision the important 1909 arbitral award in Grisbadarna Case (Norway v. Sweden)18 had allocated certain coastal waters between competing claims to maritime territory. The

15 16 17

18

Id. at 45. Id. The Danish Government claimed Greenland based on acts of occupation dating from 1721. Id., at 59. Denmark’s effort at occupation antedated Norway’s effort and was subsequently continuously maintained. Id. at 45, 59, 64. See also the “Observations” of Judges Schucking and Wang, in id. at 96. Little was necessary to support and earlier occupation and avoid a presumption of abandonment. Id. at 46–47. Contra see the dissent by Judge Vogt, in id. at 97. For the nature of the terrain as a determining factor in what must be done to effect and maintain sovereignty compare The Honduras Borders Case (Guatemala v. Honduras), 2 U.N.R.I.A.A. 1308, 1330 (1933); 7 I.L.R. 115 (1933). 1 Scott 121 (Perm. Ct. Arb. 1913).

214

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

Grisbadarna Case issue involves delimitation of an offshore lateral boundary between termini established under an earlier treaty. There was no question whether title had been established, simply whether one or the other state had consolidated its rights under a 1658 treaty pursuant to which Norway ceded sovereignty to Sweden over certain territory adjoining both States. The Hague Court of Arbitration (HCA) found that the transfer of sovereignty over land conveyed as well the appurtenant maritime territory.19 In the absence of a treaty governing delimitation, the usage of the parties was viewed as the best evidence of their understanding as to the boundary location resulting from the conveyance. Relevant usage was found in the activities of the parties and their inhabitants reflecting underlying control, that is, in the municipal navigational servitudes applied by the parties. Fishing activities were examined and given weight in accord with the extent and the period during which they had been exercised on the Grisbadarna Banks. Emplacement of aids to navigation, such as beacons, publications of charts with soundings and the installation of a lifeboat stations, also were weighed as evidence. The result was a finding of consolidation by Sweden, with Norway doing little to support its claimed title.20 The HCA seemed more impressed with the absence of Norwegian activities than the quality of Swedish activities, and those Swedish activities witnessed successful consolidation only because they were coupled with an announced territorial claim to exclusive sovereignty over the area. No comparable action was taken by Norway, nor did it object to the Swedish activities, producing both a constructive abandonment by, and preclusion of Norway in the face of, Swedish title consolidation.21 Usage establishes the status quo which, when set as consolidation of title over time, is difficult to upset in the face of inactivity or protest. Almost an equitable principle of laches is operating here against the inactive or discontinuous party. The HCA rendered a second decision in 1910, the North Atlantic Coast Fisheries Arbitration (Great Britain v. United States),22 which supplied the precedent relied upon later in 1917 by the arbitrator in the Gulf of Fon-

19 20 21 22

Id., at 127. Id., at 130. Id. The North Atlantic Coast Fisheries Arbitration (Great Britain v. United States), 1 Scott 141, 185–86, 195, 199 (Perm. Ct. Arb. 1916). See discussion of this case in C. Anderson, The Final Outcome Of The Fisheries Arbitration, in 7 Am. J. Int’l L. 1, 9, 13 (1913).

A. The Crucible Focused

215

seca Case.23 The North Atlantic Coast Fisheries Arbitration involved three very large Canadian bays which Great Britain asserted contained historic inland waters; the Bay of Chaleurs, Miramichi Bay, and Conception Bay.24 The issue was whether high seas regime navigational servitudes had been excluded. Americans had traditionally fished in these bays, but that past activity was unavailing because they did so under right of an 1813 treaty which is consistent with consent of the other party. Treaty-based activity in fact suggests that foreign vessels would not have had the right to fish in such closed coastal waters absent the treaty. The HCA discusses these three bays as “historic waters” claims, and the British enforcement of sovereignty there in terms of municipal “statutes and otherwise”. The HCA explains that each case of historic waters was a separate circumstance, though each individual historic waters issue could be tested by pertinent circumstances, namely, (1) the geographic configuration of the land, (2) the need to defend the area, (3) the economic relationship of the shore-based inhabitants to the area, and (4) the distance the area is secluded from the “highways of nations on the open sea” (enclosure from general navigation). Evidence of municipal law enforcement would confirm the continuity of asserted sovereignty, but there must be a national claim of such sovereignty which in the North Atlantic Coast Fisheries Case was not acquiesced in by the United States.25 Overt 23

24

25

11 Am. J. Int’l L. 674 (1917). The issue in the North Atlantic Coast Fisheries Arbitration is whether, through the obligations agreed upon in treaty provisions and usage over time, American fishermen were to be entitled to conduct certain fishery activities except within “bays, creeks or harbours” along the shores of Eastern Canada. The relevant treaty dated from 1813 and set out certain of these fishing rights, but is ambiguous as to “bays” from which the American fishermen were to be excluded. Convention between the United States and Great Britain on the Fisheries Boundary and Restoration of Slaves, Oct. 20, 1818, 8 Stat. 248. The Court found that there is no customary law as to the maximum entrance width to bays. See Dr. Drago’s dissent, in North Atlantic Coast Fisheries Arbitration, supra note 22, at 198. It was a matter dependent on the usage of States and in the instant proceeding the parties were held to their practices; a ten-mile closing line was adopted. See id. at 185, 186, 188. Conception Bay was determined to be a historic bay containing inland waters in Direct United States Cable Co., Ltd. v. Anglo-American Telegraph Co., Ltd., 2 App. Cas. 394 (1877). The tribunal writes, in pertinent part, as follows: But the tribunal while recognizing that conventions and established usage might be considered as the basis for claim in a territorial those bays which on this ground might be called historic bays, and that such claims should be held valid in the absence of any principle of international law on the subject, nevertheless is unable to apply this,

216

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

sovereign acts would be sufficient to assert sovereignty in the absence of a declaration, and those acts would have been the control of foreign vessels as being within sovereign territory so that the high seas regime right of innocent passage would not apply.26 The dissenting opinion of Dr. Luis Drago describes “historical bays” to be like Delaware and Chesapeake Bays, which form a class distinct and apart from “common” bays. These historical bays belong to the littoral State based on the exercise of sovereignty regardless of the relationship between the entrance width and the embayment penetration of the land. The justification for inclusion as inland waters for Drago also involved the circumstances described by the majority, including “geographical configuration, immemorial usage and above all the requirements of self-defense.”27 Dr. Drago recognizes the consolidation process, and for both the majority and Dr. Drago the test for historic bays is the consolidation of title by continuous exercise of sovereignty over time. Neither the majority nor Dr. Drago specifies acquiescence as an element of consolidation. Rather, acquiescence is seen as a witness to (evidence of ) consolidation instead of constituting an element of a mode for title acquisition.28 It is difficult to see where immemorial usage could have applied to historic waters acquisition in North America such as Chesapeake and Delaware Bays due to the short period elapsing from discovery, but it is a fair question whether large areas of enclosed coastal waters were effectively part of the land and, thereby, a res nullius subject to occupation and possession before the res communis public trust applied in the late 18th and early 19th centuries.

26

27

28

a contrario, so as to subject the bays in question to the three-mile rule, as desired by the United States. Because Great Britain has during this controversy asserted a claim to these bays generally, and has enforced such claim specifically in statutes or otherwise, in regard to the more important bays such as Chaleurs, Conception and Miramichi; Because neither should such relaxations of this claim, as are in evidence, be construed as renunciations of it; nor should omissions to enforce the claim in regard to bays as to which the controversy arose, be so construed. North Atlantic Coast Fisheries Arbitration, 1 Scott at 186, 187. See id., at 183–84, for a discussion of the role of vital interests in justifying a claim over a bay as internal waters. See also id. at 187, explaining where the control of navigation is evidence of an underlying claim of exclusive sovereignty. Dr. Drago’s dissent in the North Coast Atlantic Fisheries Arbitration, id., at 195; Dr. Drago’s statement on historic bays is in id., at 195–200. Iain MacGibbon, Customary International Law and Acquiescence, 33 Brit Y.B. Int’l L. 115 (1958).

A. The Crucible Focused

217

The 1917 Gulf of Fonseca Case (El Salvador v Nicaragua)29 was rendered pertaining to contested rights of usage of the Gulf of Fonseca as a “historic bay”. The Gulf of Fonseca is bordered by El Salvador, Honduras and Nicaragua, and the sovereign rights of each State are derivatives of uti possedetis – allowing former colonies to succeed to the rights established by the prior colonial State.30 These three States were at first provincial or administrative regions created by the Government of Spain as part of its original 16th century occupation of the area, during which the Gulf of Fonseca was held as inland waters and, thereby, precluded the attachment of international law high seas regime rights such as innocent passage. Each of these States eventually succeeded to the full sovereign rights of Spain, with decolonization, and the result was that El Slavador, Honduras and Nicaragua jointly held the Gulf of Fonseca as internal or inland waters after independence.31 The arbitrator found that each State had “notoriously affirmed their peaceful possession in the Gulf ” as evidenced by the absence of “protest or contradiction by any nation” and by actual recognition from certain States. The notorious affirmation was found in municipal legislation adopted for purposes of “national security” and for “health and fiscal regulations”. The arbitrator also noted the geography of the Gulf of Fonseca with its narrow entrance leading to a large embayment, and of the commercial use of the enclosed waters by the local inhabitants.32 Consolidation was achieved through the exclusive application

29 30

31

32

The Gulf of Fonseca Case (El Salvador v. Nicaragua), 11 Am. J. Int’l L. 674 (1917). Uti possedetis is a constitutional principle adopted by former Spanish colonies in Central (1822) and South America (1810). It also was adopted for the African continent. See Oppenheim (9th ed.), supra c. i, note 10 at 670; and see Burkina Faso and Mali Frontier Dispute, 1986 ICJ 554, 565–67, 568. The Gulf of Fonseca Case, 11 Am. J. Int’l L. at 700. Uti possedetis is explained in the Honduras Borders Case (Guatemala v. Honduras), 2 U.N.R.I.A.A. 1308, 1325 (1933); and Questions De Limits (Colombia v. Venezuela), 1 U.N.R.I.A.A. 226, 228 (1922). See F.C. Fischer, The Arbitration of the Guatemalan-Honduran Boundary Dispute, 27 Am. J. Int’l L. 403, 415, 418–19 (1933). Exclusive territorial sovereignty was claimed over the Gulf of Fonseca for over 400 years. Gulf of Fonseca Case, 11 Am. J. Int’l L. at 700. The geographic configuration and economic use of the waters are discussed in id. at 705, 707. The arbitrator couched his decision as follows: It is clearly deducible from the . . . preceding paragraphs that the Gulf of Fonseca belongs to the special category of historic bays and is the exclusive property of El Salvador, Honduras and Nicaragua; this on the theory that it combines all the characteristics or conditions that the text writers on international law, the international law institutes

218

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

of municipal navigational servitudes during the historic period. Interestingly the littoral State uti possedetis rights were again the subject of litigation in 1992 as the three States involved attempted to carve up the Gulf of Fonseca in Honduras v. Nicaragua (Land and Sea Boundary Case).33 The ICJ again addressed the sovereignty over the Gulf of Fonseca which now meets the geographical criteria for a geometric bay, but continues to be surrounded by three States and, therefore, continues as a historic bay under the uti possedetis theory.34 The 1992 litigation seems to add the concept of historic “condominium” to the category of historic waters, but adds nothing to the definitional criteria for historic title. In 1928 the sovereignty of the Island of Miangas or Palmas was resolved in the Island of Palmas Case (United States v. Netherlands),35 where the United States claimed ownership of the island based on conquest and possession as successor to the Spanish claim. The Dutch claim, like the Spanish, was based on original discovery followed by occupation and possession. Ultimately the arbitrator found in favor of Dutch “territorial sovereignty”, but he does not state whether the title is based on occupation and possession, or on extinguishment of the United States claim through prescription, or upon succession by the Netherlands after the constructive abandonment (laches) by Spain.36 Although the Island of Palmas Case is not one about historic

33 34 35

36

and the precedents have prescribed as essential to territorial waters to wit, secular or immemorial possession accompanied by animo domino both, peaceful and continuous and by acquiescence on the part of other nations, the special geographical configuration that safeguards so many interests of vital importance to the economic, commercial, agricultural and industrial life of the riparian States and the absolute, indispensable necessity that those States should possess the Gulf as fully as required by those primordial interests and the interest of national defense. Gulf of Fonseca Case, 11 Am. J. Int’l L. at 705. The application of municipal law and its relation to territory is discussed in Case of the “S.S. Lotus”, 2 World Court Reports (Hudson) 23, 25, 38, 40 (P.C.I.J. 1927). 1992 I.C.J. 351. 1992 I.C.J. at 601. The Island of Palmas Case (United States v. Netherlands), 1 Scott 83 (Perm. Ct. Arb. 1932). See discussion of this case in Philip Jessup, The Palmas Island Arbitration, in 22 Am. J. Int’l L. 735 (1928). The Island of Palmas was passed to the United States as one of the Philippine Islands at the end of the Spanish-American War (Feb. 15, 1898, to July 30, 1898). Morison, supra note 671, at 800–08 (1965). Judge Huber based his decision only on the continuous exercise of severing rights and avoided the issue of constructive abandonment enabling occupation and possession. Island of Palmas Case, 1 Scott 92–93.

A. The Crucible Focused

219

waters, it is about historic title, and the arbitrator, Judge Huber, finds that the exercise of the functions of a State over territory not part of another State is the evidence to be examined for acquisition of territorial sovereignty. All the elements of the acquisition mode must be consolidated through the continuous peaceful display of territorial sovereignty, by usage as territory.37 Abandonment would be an issue where continuous exercise of sovereign rights is not maintained,38 and for Judge Huber “continuous” also means pervasive.39 Judge Huber added to the theory of historic title, specifying that the “intertemporal law” is to be applied to test validity of the acquisition and subsequent maintenance,40 and an unperfected inchoate right of discovery will not carry against sovereignty continuously asserted and exercised.41

37

38

39

40

41

Island of Palmas Case, 1 Scott at 92–93. Usage must establish the sovereignty by the critical date, and later usage shows only continuity. See Argentine-Chile Frontier Case (Argentina v. Chile), 16 U.N.R.I.A.A. 109, 166 (1966). Compare with the Walfish Bay Dispute (Great Britain v. Germany), 9 U.N.R.I.A.A. 267, 306 (1911). See C. Waldock, Disputed Sovereignty in the Falkland Island Dependencies, in 25 Brit. Y.B. Int’l L. 311, 313, 315, 317, 320, 325–26, 335, 337 (1948). Judge Huber writes as follows as to the maintenance of sovereignty: It seems therefore, natural that an element which is essential for the constitution of sovereignty should not be lacking in its continuation. So true is this, that practice, as well as doctrine, recognizes – though under different legal formulas and with certain differences as to the conditions required that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as title. Island of Palmas Case, 1 Scott at 92–93. Title once acquired must be maintained. Island of Palmas Case, 1 Scott at 93. It does not have to be exercised in every part of the territory claimed at every minute. Id. at 94. The applicable law to title acquisition is that of the time-frame examined for the acquisition. Id. at 100. The display of title must have been peaceful. Id. at 93, 114, 128. Compare the Chamizal Case (Mexico v. United States), 11 U.N.R.I.A.A. 316, 318–28 (1911). Judge Huber writes, in pertinent part, as follows: Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of territory. The intermittence and discontinuity compatible with the maintenances of the right necessarily differ according as inhabited or uninhabited regions are involved or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas. Island of Palmas Case, 1 Scott at 94. Spain acquired an inchoate title by discovery in the 15th century. When 16th century international law required that discovery be followed up by effective occupation and possession, Spain did not comply. The inchoate title was not perfected and maintained.

220

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

Acquiescence is evidenced by the peaceful exercise of sovereignty, unchallenged by other States. Judge Huber did not view acquiescence to constitute a title veto, but rather to evidence whether the acquisition had been concluded successfully in accord with the requirements of intertemporal law. In the 1931 Affaire de l’Île de Clipperton (Mexique v. France)42 the dispute involves Clipperton Island, located 600 nautical miles southwest of Acapulco on Mexico’s southwest coast. France had proclaimed sovereignty before any right arose in Mexico, and no evidence supported actual or constructive abandonment by France of its claim.43 France had historically maintained occupation and possession of the island, and had not ceased to consolidate its right. The arbitrator indicates that the French title to Clipperton Island is based on immemorial usage – strange considering that such usage could only have begun in the 17th century at the earliest. The French consolidation activities are establishment of administrative and judicial authority asserting exclusive sovereignty. It is submitted the better view would be that France had achieved an inchoate title by discovery of a res nullius and pursued that occupation and possession with historic consolidation antedating Mexican claims.44 This approach would be consistent with Judge Huber in the Island of Palmas Case as well as with the Legal Status of Eastern Greenland Case to the effect that sovereignty does not have to be exercised every minute over every part of the claimed area. However, when challenged, the sovereign must respond to avoid preclusion, as in the later Temple of Preah Vihear Case,45 and in the circumstance of historic waters sovereignty must be exercised sufficiently to demonstrate the municipal navigational servitudes being applied exclusively as evidenced by control of foreign navigation. Acquisition of historic waters sovereignty is the acquisition of inland waters and, therefore, of sovereignty over closed coastal waters as territory. The modes of territorial acquisition are apt for such acquisitions, including

42 43 44 45

Island of Palmas Case, 1 Scott at 100–01. There is a difference between the creation of rights and the existence of rights, so that continuity requires manifestation in accord wit the evolution of law. Id. or a discussion of the need to perfect a title by effective occupation, see the Guiana Boundary Case (Great Britain v. Brazil), 11 U.N.R.I.A.A. 21–22 (1904); compare with Affaire De L’Île De Clipperton, infra note 760. And see C.R. Symmons, Legal Aspects Of The Anglo-Irish Dispute Over Rockall, in 26 N. Ire. Legal Q. 65 (1975). 2 U.N.R.I.A.A. 1105 (1931). Id., at 1110–111. Id. Infra note 57.

A. The Crucible Focused

221

prescription. The question of a prescriptive title is presented in the context of the straight baselines concept. While UNCLOS, the 1958 Geneva Conventions and customary international law now recognize the use of straight baselines as geometrical supplemental segments in the territorial sea baseline,46 it is important to realize that the first application of straight baselines was prescriptive and occurred with Norway’s traditional use of that geometrical delimitation technique. Norway asserted title to coastal waters contained behind straight baselines connecting fringing islands along its deeply indented coast. In the 1951 Fisheries Case (United Kingdom v Norway)47 the International Court of Justice (ICJ) viewed Norway’s straight baselines as connecting islands forming a geographical “fringe” behind which Norway traditionally asserted sovereignty.48 Ultimately the ICJ agreed that Norway’s historic usage of the straight baseline system, in the absence of objection from other States, effectively acquired the waters between the islands and the coast as inland waters. The ICJ seems to have taken a cue from the Gulf of Fonseca Case, as well as from Dr. Drago’s dissent in the North Atlantic Coast Fisheries Case, and justified the use of straight baselines both on the geographic relationship of the fringing islands to the coast, which form an enclosure, as well as on the economic dependence of the local inhabitants on the fishery within the enclosed area. The Gulf of Fonseca Case put substantial emphasis on such economic involvement of the closed area with the littoral State population, which is really an examination for evidence of local navigational usage of the claimed waters. It is submitted that in this way the Fisheries Case begins to examine the littoral State’s sovereignty assertion in terms of equitable principles.49 Thus, Norway’s inland waters claim was not confirmed on 46

47

48

49

UNCLOS, supra c. iv, note 4, art. 7, 1833 U.N.T.S. at 401; Convention on the Territorial Sea and Contiguous Zone, Geneva Conventions, supra c. iv, note 2, art. 4, 15 U.S.T. at 1608. United Kingdom v. Norway (Fisheries Case), [1951] I.C.J. 116. See __ Johnson, The Anglo-Norwegian Fisheries Case, 1 Int’l & Comp. L.Q. 145, 149–51, 163, 156–66, 179–80 (1952). Fisheries Case, [1951] I.C.J. at 125–28. A customary rule of law cannot be enforced against a State which has always rejected it. Colombia-Peru Asylum Case, [1950] I.C.J. 6, 39–40; and see United States Nationals in Morocco, [1950] I.C.J. 199–201. Fisheries Case, [1951] I.C.J. at 138, 143. The use of straight baselines was justified because of the geographical configuration of the coast. Id. at 132–33. Reliance, not simply use, of the coastal population on the fishery resource was also seen as a justification for employing straight baselines. Id. at 127. See Contre-Memoir of Norway, North Sea Fishery, 1 Plead-

222

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

evidence of sovereignty continuously exerted over the entire enclosed water area. Rather it was the traditional use of the straight baseline delimitation system which the ICJ accepted. The evidence adduced was of the declared and maintained seaward boundaries for the claimed area sufficient to establish a supplemental territorial sea baseline.50 As with the boundary line in the Temple of Preah Vihear Case, the applicable equitable principle is preclusion evidenced by acquiescence, and the pertinent preclusion is of the high seas regime and its attendant res communis equitable principles. The first evidence of the Norwegian claim was an 1835 municipal statute51 and, at that time, the intertemporal law would have applied the high seas res communis regime to much of the enclosed area. The exclusion of foreign navigation exercised by Norway applying straight baseline jurisdiction could only have been prescriptive as of that critical date. Such prescription terminated the high seas navigational servitudes of the res communis public trust, especially the right of innocent passage held by all other States over the Norwegian territorial sea measured from low-water mark on the mainland and islands. Norway had achieved a prescribed title to inland waters with the acquiescence of all affected States in the sense of “consent” as determined by the ICJ from the absence of objection by other States. It is not simply the baseline “technique” which served to establish the territorial title. Rather, it is

50

51

ings, Oral Arguments, Documents 214. Other States used straight baselines (Fisheries Case, [1951] I.C.J. at 129–30), but Norway’s were justified (id. at 133, 143) and without objection from other States (id. at 136, 138) and use of straight baselines gave support to control over the area (cf. id. 142). Straight baselines which are not justified constitute an encroachment, and effect a discrimination against other States, thereby constituting an inequitable circumstance. Bernard Oxman, Drawing Lines in the Sea, 18 Y. J. Int’l L. 663 (1993). The United Kingdom argument that use of straight baselines was in derogation of international law, or at least exceptional was rejected. Fisheries Case, [1951] I.C.J. at 130–31. The Court said there is an international aspect to sea area delimitation (picked up by the United States Supreme Court in United States v. Alaska, 422 U.S. 184, 202–03 (1975). Compare the “Separate Opinion of Judge Hsu Mo”, where it is argued that Norway has deviated from international law. Fisheries Case, [1951] I.C.J. at 154. Compare the “Dissenting Opinion of Sir Arnold McNair”, wherein he writes that an historic right can support the use of the Norwegian straight baselines, but arguments about economic and social considerations are unacceptable. Id. at 15, 169. Sir Arnold seems to be concerned about the “vital bays” theory. Fisheries Case, [1951] I.C.J. at 138. The origin of Norwegian straight baseline usage and the 1835 fishery law are discussed in the Fisheries Case, [1951] I.C.J. at 125.

A. The Crucible Focused

223

the point and purpose of that straight baseline delimitation which served to establish the title and that was to exclude high seas regime navigation. Importantly, and balancing the Norwegian actions, the ICJ also found constructive consent by the United Kingdom (the plaintiff) and other States whose actual use of the area was terminated52 and who failed to raise a timely protest. Without acquiescence there would have been no reason to find preclusion. In prescription the quality of consent is determined by the significance or importance of the prescribed right and whether a large number of States are involved. The necessary quality was found by the ICJ in the period of the Norwegian straight baseline claim, which was sufficient to allow a presumption of constructive consent53 and that worked the preclusion. The straight baselines were not a historic title, but rather a prescriptive title established as consolidated over time, as attested by evidence of acquiescence. The ICJ again addressed title acquisition in the Minquiers and Ecrehos Case (United Kingdom v. France),54 resolving disputed sovereignty over two small groups of “Channel islands” lying within several miles of the coast of France. The peculiar local history involving, among other things, wars, the comings and goings of various kings, and feudal duties evidences sovereign rights and titles going back to the 12th century. The islands were not a res nullius according to the compromis and, it was stipulated, belonged either to the United Kingdom or to France. The issue was whether the claimed right of sovereignty had been consolidated, which the ICJ determined by looking for the “critical date” when usage pointed to the historic establishment of sovereignty. Evidence of the continuing exercise of sovereignty after the critical date did not weigh on whether sovereignty had been consolidated as

52

53 54

The Court found that the straight baseline system had been relied upon consistently from 1869 until the dispute arose. Id., at 138. The Court writes that the United Kingdom had reason to know, as follows: The Court is then led to conclude that the method of straight baselines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast, that even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law. Id. at 139. Id. [1953] I.C.J. 47. See A____ Rocke, The Minquiers And Ecrehos Case, 25–28, 79 (1959). See also E.C. Wade, The Minquiers and Ecrehos Case, 40 Grot. Soc’y Trans. 97, 98–99 (1955); and R. St. J. MacDonald, The Minquiers and Ecrehos Case, 1 McGill L.J. 277, 278–79 (1953).

224

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

of that date. Post-critical-date exercises of sovereignty only bore on whether the acquired title had been abandoned, maintained or successfully prescribed by the claimant State.55 The ICJ found that while the ancient Norman possession antedated the French possession, the actual critical date was 1886 because the dispute arose at that time and the issue then became whether the French had achieved a successful prescription against the United Kingdom since 1886. France was found to have done little to support its claim, and the United Kingdom’s claim to sovereignty maintained withstood French prescription.56 The Temple of Preah Vihear Case (Cambodia v. Thailand),57 decided by the ICJ in 1962, involves the issue of a prescription with pertinent points on the role of acquiescence and preclusion as equitable principles applicable to title acquisition modes. Cambodia, while a French colony and Thailand (Siam) had signed a 1904 treaty to establish their frontiers along a watershed line located in part near the Temple of Preah Vihear. A Mixed Joint Boundary Commission was set up which assigned a French survey team to delimit the boundary. The delimitation was printed and published on maps by a reputable Paris firm and, then, a series of 11 such maps were delivered to Thailand’s representatives. The maps represent the final decision of the Joint Boundary Commission, a decision to which Thailand did not object, so that the maps became part of the 1904 treaty.58 Thailand in fact asked for additional copies of the maps and used them in a Second Mixed Com-

55

56

57

58

The two island groups, Minquiers and Ecrehos, are situated between the Isle of Jersey and the French shore. Minquiers and Ecrehos Case, [1953] I.C.J. at 53. The critical date was between 1856 and 1888, when the dispute arose. A flexible critical date is acceptable when it reflects when the claim crystallized. Argentine-Chile Frontiers Case (Argentina v. Chile), 16 U.N.R.I.A.A. 109, 167 (1966). The Court writes as follows with respect to French activities: The Court does not find that the facts, invoked by the French Government, are sufficient to show that France has a valid title to the Minquiers. As to the above mentioned acts from the nineteenth and twentieth centuries in particular, including the buoying outside the reefs or the groups, such acts can hardly be considered as sufficient evidence of the intention of the government to act as sovereign over the islets; nor are those acts of such a character that they can be considered as involving a manifestation of State authority in respect to the islets. Minquiers and Ecrehos Case, [1953] I.C.J. at 71. Cambodia-Thailand (Temple of Preah Vihear Case), [1962] I.C.J. 6. Compare the Western Sahara Advisory Opinion, [1975] I.C.J. 12, 39, 43. Temple of Preah Vihear Case, [1962] I.C.J. at 29–30.

A. The Crucible Focused

225

mission as well as in the development of geographic sciences in Thailand.59 But the French survey team had, for whatever reason, reputable bien sûr, deviated from the watershed line and included the Temple of Preah Vihear in Cambodia rather than in Thailand. This deviation is contained in the boundary line depicted on the maps. The ICJ found that Thailand’s conduct in accepting the maps was binding, including the deviation, because both States had the authority to accept the deviated boundary.60 From the perspective of the prescriptive title acquisition mode the point was not the authority of the States to agree,61 but the acquiescence of Thailand in failing to object in the face of good reason to know of the erroneous deviation. That failure to act on its rights later precluded Thailand from objecting.62 The point of preclusion is stability and finality, and reflects the development of equitable principles by the ICJ as correlatives of legal rules; in effect “preclusion” is laches.63 Preclusion is significant for the acquisition of historic titles both because it is evidence of acquiescence or consent, and because it gives certitude as of the critical date. In the Temple of Preah Vihear Case certitude was obtained both for the title and for the finality of the ICJ adjudicatory process. The significance for the res communis public trust is that the requirements for acquisition of title through occupation and possession of a res nullius, immemorial possession or prescription, each look to evidence of consolidation. That evidence appears largely in the action or inaction by States whose high seas regime rights are excluded or extinguished in the maritime acquisition process. Such action or inaction balances the equitable principles of high seas regime usage of marginal seas for protection and preservation of general navigation with those for the acquisition of territory. Such balancing is the landward cusp of the crucible for definition of the territorial sea, so that the establishment of historic waters moves the territorial sea

59 60 61 62

63

Id., at 16–17, 21–22, 24. Id., at 17, 22–24. Id. at 23, passim. Id., at 22–23. See “Separate Opinion of Vice President Alfaro”, id. at 39–40. A State will be bound by its inaction where its rights are infringed, and it has reason to know about the infringement. See Honduras Borders Case (Guatemala v. Honduras), 2 U.N.R.I.A.A. 1308, 1327 (1933). See Temple of Preah Vihear Case, [1962] I.C.J. at 52, 62 (Separate Opinion of Sir Gerald Fitzmaurice). See Argentine-Chile Frontier Case (Argentina v. Chile), 16 U.N.R.I.A.A. 109, 164 (1966).

226

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

baseline seaward, much as common law moved admiralty jurisdiction outside fauces terrae in the 17th and 18th centuries. Where the beneficial interest of States in the navigational freedom principle is involved, the historic waters concept brings the equitable principles of acquiescence and preclusion into the crucible to evaluate asserted sovereignty and exclusion of the high seas regime navigational servitudes. The entire process is one of high seas regime equitable principles application in the res communis public trust and that is wholly consistent with the ultimate equitable principle here, that both the high seas regime and the municipal law public trusts protect and preserve the common navigational freedom principle.

B. Conventional and Historic Waters The international community diligently attempted to formulate a conventional solution to resolve such unsettled issues as those pertaining to delimitation of bays and closed coastal waters – to take the matter from judgmental application of equitable principles to an agreed juridical rule. The first important effort resulted in the 1882 North Sea (Police) Fishery Convention,64 which was followed by the 1930 Hague Codification Conference, and then by the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone. In addition private groups such as the International Law Association and the Institut de Droit International produced proposed law of the sea codifications dealing with historic waters in the 1890s, which were updated in 1926–1928 in preparation for the 1930 Hague Codification Conference. Also in preparation for the 1930 Hague Codification Conference pertinent work was undertaken by the League of Nations Committee of Experts as well as by the Conference Preparatory Committee. Preparations for the later 1958 Law of the Sea Conference were undertaken by the International Law Commission (ILC) and set out in 1955 as draft articles.65 Following the 1958 Geneva Conference the ILC published the 1962

64

65

See “Correspondence Respecting the Conference At The Hague And The Convention Of The 6th May, 1882, Relative To The Police Of The Fisheries In The North Sea”, LXXII Parl. Pap. [1882] c. 3238 p. 160 (hereinafter Correspondence). For a discussion of the 1882 Convention by the French delegation see 11 Archives Diplomatiques, 129, 138 (2d series, 1884). Correspondence, supra note 64, at p. 198.

B. Conventional and Historic Waters

227

Secretariat Study on the meaning of “historic bays” or “historic waters”.66 Each and all of these efforts demonstrate the elusiveness of a historic waters juridical definition because, it is submitted, equitable principles applied under the res communis public trust are judgmental standards, and history is a required period for such title consolidation. The 1882 North Sea (Police) Fishery Convention is the product of governmental representatives meeting at the Hague in 1881 and 1882. Most European States fronting the North Sea were represented, including, among others, the United Kingdom, France, Germany and Norway. The purpose was to regulate both the conduct of fishermen, and the conduct of those who were selling liquor to fishermen at sea in exchange for their catches.67 The relevance for historic title to closed coastal waters is that in order to delimit the part of the North Sea where the Convention would apply it was necessary to determine the territorial sea baselines, and not all bays where littoral States exclusively applied the municipal navigational servitudes fit within the geometrical closing lines considered for common or juridical bays.68 The French and Germans both understood that some bays with entrances

66 67 68

Id., at p. 208. Id., at pp. 459, passim. See Procès Verbaux in id., at 548–49, 563, 565, 569, 573. The texts of Articles I and II are as follows: Article I Les dispositions de la présente convention, qui a pour objet de régler la police de la pêche dans la Mer du Nord, en dehors des eaux territoriales, sont applicables aux nationaux de Hautes Parties Contractantes. Article II Les pêcheurs nationaux jouiront du droit exclusif de pêche dans le rayon de 3 milles, a partir de la laisse de basse mer, le long de toute l’étendue des cotes de leurs pays respectifs, ainsi que iles et des bancs qui en dépendent. Pour les baie, le rayon de 3 milles sera mesure a partie d’un ligne droite, tirée entraver de la baie, dans la partie la plus rapproche de l’entrée, au premier point ou l’ouverture n’excédera pas 10 milles. Le présent Article ne porte aucune atteinte a la libre circulation reconnue aux bateaux de pêche, naviguant ou mouillant dans les eaux territoriales, a la charge par eux de se conformer aux règles spéciales de police édictées par les Puissance Riveraines. Id. at 631.

228

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

larger than ten nautical miles were internal waters subject to littoral State sovereignty. The Germans had referred to the River Elbe estuary, and the French alluded to the Baie de Granville where an exclusive oyster fishery had been claimed since France had signed an 1839 treaty with Great Britain. The Germans or the French both considered each foregoing large embayment as containing their respective internal waters subject to their respective exclusive sovereignty, though the point was not discussed.69 In preparation for the 1930 Hague Codification Conference the Institut de Droit International (Institut) and the International Law Association (ILA), both representing individual jurists rather than States, followed the work of the 1882 North Sea (Police) Fishery Convention. In the Règles eventually adopted by the Institut the prescribed closing line for juridical bays is understood to be a 2:1 ratio using the maximum breadth of the territorial sea.70 Such juridical bays were presumed to contain inland waters, but the baseline could be supplemented as well by closing lines across waters subject to continuous usage by the littoral State as part of its inland waters. Such usage would be demonstrated through exclusive application of the governmental navigational servitudes. The ILA, which in some instances shared a common membership with the Institut, adopted draft articles for a proposed law of

Article IV reads as follows: Article IV Il est défendue a tout bateau de pêche de mouiller, entre le coucher et le lever du soleil, dans les parages ou se troublent établis de pêcheurs aux filets dérivants.

69

70

Toutefois, cette défense ne s’applique pas à des moulages qui auraient lieu par suite d’accidents ou de toute autre circonstance de force majeure. Correspondence, supra note 64, at 631 (Procès Verbaux). See Correspondence, supra note 64, at 548. As a result of the alleged aggression by French vessels against British fishing vessels in the waters of the Baie de Granville it became necessary to reach some accord. Cf. 1 Parl. Paps. 75–80 (1839). The result was the Convention Between France and Great Britain for Defining the Limits of Exclusive Fishing Rights, Paris, Aug. 2, 1839, 89 Parry 222–23 (1969). Under the provision of Article II the oyster fishery is reserved to British fishermen within three miles of Jersey. Article III specifies that outside three miles the oyster fishery is common to British and French fishermen, except that Article IX reserved exclusive French fishing rights within three miles of the French coast and in the Baie de Granville behind a line drawn between Cape Cateret and Point Meinga, and a ten-mile closing line was adopted for other bays. Id. at 222–23. See 13 Ann. Inst’t De D. Int’l –, 329; and 17 Int’l L. Ass’n [] 109. for discussion on adoption of a 12-mile closing line instead of a ten-mile closing line see 13 Ann. Inst’t De D. Int’l, 144–47, 158.

B. Conventional and Historic Waters

229

the territorial sea at its 1895 general meeting in Brussels.71 Not surprisingly, Article 3 of the 1895 draft is identical with “Règle 3” adopted by the Institut in 1894. Article 3 describes the normal baseline for the territorial sea as following the coastline, supplemented by 12-nautical-mile closing lines across presumed juridical bays. Importantly, longer supplemental closing lines could be drawn across the entrances to larger bays forming a part of the littoral State through continuous usage as internal waters.72 Several points present in Article/Règle 3 bear mentioning. First, the maximum closing line distance is specified as 12 nautical miles, evidencing the developing perceived need of littoral States to enclose increasingly greater areas of coastal concavities under presumptive sovereignty – greater even than the old three-nauticalmile or “2:1” concepts would have allowed. Second, bays presumed to be juridical and those which must be demonstrated to be juridical internal waters (historic or prescribed titles) are addressed jointly without either title being viewed as an exception to international law rules. Third, claims to a larger than geometric bay must be based on “usage continu et séculaire”, that is, a continuous time-honored usage of the embayment as internal waters by the littoral State. Notably but two categories of juridical bays were evolving, one geometric applying the juridical rule for common bays, and the other historic based on usage through exclusive application of the navigational servitudes municipal law aspects.73 Acquiescence is not identified as an element for either bay category. This parallel evolution of rules for geometric bays and historic bays should be kept in mind when later writers attempt to characterize historic bays as illegal or defective, and demonstrates the international effort consistent with the res communis public trust to balance littoral State

71

72

73

The most important personage of the “shared-membership” was T. Barclay, who drafted Article 3 and secured its adoption in 1894 and 1895. The published records are at 13 Ann. Inst’t De D. Int’l –, 125, passim. 13 Ann. Inst’t De D. Int’l –, 329; and 17 Int’l L. Ass’n [] 109. Article 3 reads in pertinent part as follows: Pour les baies, la mer territoriale suit les sinuosités de la cote, sauf qu’elle est mesurée a partir d’un ligne droite tirée en travers de la baie dans la partie la plus rapprochée de l’ouverture vers la mer, ou l’écart entre les deux cotes de la baie est de douze milles marine de largeur, a moins qu’un usage continu et séculaire n’ait consacre une largeur plus grande. 35 Ann. Inst’t De D. Int’l , 641; 1 Ann. Inst’t De D. Int’l , 5; and Int’l L. Ass’n 1921, 6, 42.

230

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

rights while maintaining navigational freedom principle by defining the high seas regime measure of the territorial sea. The ILA met in 1926 at the Peace Palace (Friedenspalast), Vienna, and produced a proposed convention for use at the 1930 Hague Codification Conference titled “Laws of Maritime Jurisdiction in Time of Peace”, of which Article 7 reads in pertinent part as follows: With regard to bays and gulfs, territorial waters shall follow the sinuosities of the coast, unless an established usage has sanctioned a greater limit.74

Note that no geometrical closing lines are specified, though one arguably would result where the bay entrance was equal to or more narrow than double the width of the territorial sea; the concept includes no juridical bays of presumed sovereignty. Rather usage is the test to establish sovereignty, and “established usage” points to a continuous effective exclusive jurisdiction over the claimed area. The Institut met in 1927 producing a draft Article 3 and inserted a requirement of acquiescence for acquisitions of larger bays.75 The “usage incontesté ” inserted in the 1927 draft articles was removed from the 1928 draft above by a special vote of the assembled jurists.76 The effect and intent of that removal are unclear, but “usage” must certainly have remained an element for them. The “incontesté ” does relate to the problematic concept of “acquiescence”. The American Institute of International Law proposed that some maximum width for bays be adopted and that the coastal waters so enclosed should have the status of internal waters, with the closing line being a segment in

74

75

76

Int’l L. Ass’n , 43. Summary of the debate on territorial sea breadth is in 1 Ann. Inst’t De D. Int’l , 75–76. 1 Ann. Inst’t De D. Int’l , 99; 35 Ann. Inst’t De D. Int’l , 755. L’entendue de la Mer Territoriale est de trois milles marins. Un usage international peut justifier la reconnaissance d’une entendue plus grande ou moins grande que trois milles. L’étendue de la Mer Territoriale se compte, de cotes, a partir de laisse de la bassemarée; de ports, a partir de l’extrémité vers le large de leur ouvrage fixe le plus avance; pour les baies et les golfes appartenant au même Etat, a partir d’une droit tirée en travers de la partie la plus rapprochée de l’ouverture de la mer ou l’écart entre les deux cotes n’excédé pas dix milles marine, a moins qu’un usage international n’ait consacre une largeur plus grande. “Incontesté ” was removed from the draft articles, as was the need for a specific geographic configuration. 35 Ann. Inst’t De D. Int’l , 641–42.

B. Conventional and Historic Waters

231

the territorial sea baseline, and with closing lines for larger bays being so included when “a greater width shall have been sanctioned by continued and well established usage.”77 Professor Manley O. Hudson of the Harvard University Law School organized another group of jurists who published their work on the territorial sea in 1929 as Research in International Law (Harvard Research), produced as preparatory work for the 1930 Hague Codification conference.78 The Harvard Research includes an Article 5 which presents the geometric rule for a ten-nautical-mile embayment closing line while in Article 12 it accepts larger areas based on “established usage”. The “Comment” to this Article 12 is significant, making it clear that the purpose of the “established usage” provision is to protect “historic claims” which are acquiesced in by other States. Historic claims are described as a “usage which has been established before this convention comes into force”.79 Limiting historic claims to those so temporally established would eliminate new historic claims and restrict the urge to assert sovereignty over broad areas of the marginal sea. The 1930 Hague Codification Conference received official preparatory work from two bodies of experts; initially from the League of Nations Committee of Experts, and then from its successor, the Preparatory Committee of the Conference. Whereas the Hague Conference did not produce a convention the preparatory work did not result in codification, but it nonetheless remains a source of evidence for developing international law.80 In the preparatory work juridical bays met an impasse with disagreement over the

77

78

79 80

20 Am. J. Int’l L. 318 (Supp. 1926). Article 26 of the American Institute of International Law proposed code reads as follows: For bays extending into the territory of a single American Republic the territorial sea follows the sinuosities of the coast, except that it is measured from a straight line drawn across the bay at a the point nearest the opening into the sea where the two coasts are separated by a distance of ___ marine miles unless a greater width shall have been sanctioned by a continued and well-established usage. Id. 1 Research In International Law, Harvard Law School 262, 265, 295 (M. Hudson, director 1929). Id. at . The reasons for failure are described in J.P.A. François, 3 League Of Nations Conference For The Codification Of International Law [] 752–57 (Shabtai Rosenne ed. 1975).

232

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

maximum breadth for geometric juridical bays.81 Ultimately the delegates fell back on “usage” and the process of consolidation to support acquisition of sovereignty over closed coastal waters. The Committee of Experts’ deliberations reflect the uncertainty about the maximum width of geometric juridical bays, but a memorandum filed by Professor Shucking confirms that large bays were considered capable of being held by littoral States on the basis of “historic rights”.82 Another member of the Committee of Experts, Barbosa De Maggales, wanted to expand the acquisition of sovereignty over large bays beyond the historical basis to include bays held by “absolute necessity” based on defense neutrality, maintenance of aids to navigation and the exercise of police power services.83 This is the theory of “vital bays” which did not require historic consolidation and which did not develop.84 Acquisition requires consolidation, if only by implication from exercise of exclusive governmental navigational servitudes even in the circumstance of a prescriptive title, and vital bays would not meet this test. The Committee of Experts produced a Draft Convention recognizing that both presumed sovereignty based on geometric juridical bays and established sovereignty based on historic title could be achieved over closed coastal waters.85 Then the Preparatory Committee produced a “Schedule of Points” which was circulated in an attempt to widen the background, perspective 81

82

83

84

85

See J.P.A. François, 3 League Of Nations Conference For The Codification Of International Law [] 58–59, 63, 65–66, 68, 70–71. The majority opinion in the North Atlantic Coast Fisheries Arbitration, 1 Scott at 188, states there is no customary rule. The uncertainty as to a maximum distance closing line is discussed in M____ Fromageot, 1 League Of Nations Committee Of Experts For The Progressive Codification Of International Law [–] 30 (Shabtai Rosenne ed. 1972). See “Memorandum by Schucking” in id. at 55, 56, 67. See “Observations of Barbosa De Maghales”, in 1 League Of Nations Committee Of Experts For The Progressive Codification Of International Law [–] , . Compare “Observations of Mr. Wickersham”, wherein historic rights are supported. Id. at 94, 97. There was much interest at the time in making ports available to as many States as possible to spur commerce. League Of Nations, Second General Conference On Communications And Transit, Doc. No. c. 377. m. 170 (1923) VIII. Schucking acted as Rapporteur for the Committee of Experts work on the territorial sea. The draft of Article 4 is contained in Memorandum by Schucking, supra note 82, at 66–67. See also “Draft Convention Amended by Schucking”, in 1 League Of Nations Committee Of Experts For The Progressive Codification Of International Law [–] .

B. Conventional and Historic Waters

233

and input for those attempting to formulate another draft convention for the Hague Conference. Point I postulates that the littoral State holds a right of sovereignty “over a belt of sea around its coasts”, and that such sovereignty is limited by international law high seas rights of innocent passage and force majeure – navigational servitudes of the high seas regime public trust.86 Point IV(b) references the two categories of bays, first those with a geometric maximum width and, second, “historic bays”.87 Responses received to the Schedule of Points88 were included in a paper entitled “Bases for Discussion” wherein Number 8 provides for both geometric juridical bays and historic juridical

86

87

“Schedule of Points Drawn Up By the Preparatory Committee For Submission To The Governments”, 3 Doc. No. c. 44. m. 21 (1928) V. Id. The text of Points IV, VIII and IX are as follows: IV. Determination of the base line for calculation of the breadth of territorial waters. (a) Along the coasts. Is the line of the low tide following the sinuosities of the coast; or a line drawn between the outermost points of the coast, islands, islets, or rocks; or some other line? Is the distance between islands and the coast to be taken into account in this connections? (b) In front of bays. Breadth of the bay to be taken into account. Historic bays, Bays whose coasts belong to two or more States. (c) In front of ports. * * *

88

VIII. Line of demarcation between inland waters, and territorial waters. A port. A bay. The mouth of a river. IX. Obligations of the coastal State in regard to innocent passage of foreign ships though its territorial waters. Rights of passage: (a) of merchant ships; (b) or warships; (c) of submarines. Anchoring in territorial waters exercising the right of innocent passage. Anchoring in case of distress. Id. The Canadian response was by letter of May 27, 1929, indicating that Canada claims a three-mile territorial sea and that no grounds are admitted for greater breadth. Canada claimed as territorial bays waters which could be entered only through territorial waters. The idea was to encompass large bays fronted by screening islands, and this is before the screening islands concept evolved in 1958. See League of Nations, Replies Made By The Governments To The Schedule Of Points: Replies Of Canada 2 Doc. No. c. 74(a). m. 39(a). (1929) V. Canada also noted that historic and vital bays could be claimed as inland waters. Id. For the United States response by Letter of March 16, 1929, in 2 League Of Nations Conference For The Codification Of International Law [] 1381 (Shabtai Rosenne ed. 1972).

234

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

bays89 and that the littoral State has the onus of proving its exclusive authority.90 The Hague Codification Conference itself entrusted the task of drafting the territorial sea provisions to the Second Committee, where the meaning of “usage” was discussed for acquisition of historic title. The Japanese delegate asked that “usage” be limited to include only “long established and universally recognized” usage which would anticipate and curtail unilateral claims of exclusive sovereignty over closed coastal waters.91 Sir Maurice Gwyer of the United Kingdom delegation supported the Japanese position and thought “usage” was too restricted a means of acquisition.92 The Second Committee adopted language that “the littoral State is able to establish a claim by usage, prescription, or otherwise, that the waters of the bay are part of its national waters.”93 Sir Maurice then offered further that a historic bay must be a geographic bay that had been made subject to the exclusive dominion of the littoral State. This was not accepted because historic waters claims involved closed coastal waters areas which are not geographic bays, such as Norway’s closed coastal waters contained behind fringing islands. The United States delegate, Mr. Miller, entered into a dialogue with Sir Maurice at the conclusion of which both agreed historic waters could include areas not contained in geographic bays.94 That is important for the status of Long Island Sound as internal waters of the United States; Long Island is an oceanic island and not a riverine island which would constitute an arm of the mainland enclosing Long Island Sound. Long Island Sound is held as historic waters not as a bay. The work of the 1930 Hague Conference confirms the parallel development of two rules of law for the acquisition of exclusive territorial sovereignty over closed coastal waters. First is the development of geometrical criteria 89

90 91 92

93 94

“Bases of Discussion Volume II, – Territorial Waters”, Doc. No. c. 74. m. 39 (1929) V. & Supp. (a) & (b), in League of Nations Conference For The Codification Of International Law [] 754–55 (Shabtai Rosenne ed. 1972). “Bases of Discussion Volume II, – Territorial Waters”, supra note 89 at 1381. Id. at 1305. Id. at 1306. Sir Maurice describes a historic bay as follows: An historic bay is a piece of water more or less enclosed by land which, for one reason or another, the coastal State regards as a part of its interior territory. Id. Id. at 1306. Id. See remarks of Mr. Miller and of Sir Maurice Gwyer in id. at 1309, 1313. 3 League Of Nations Conference For The Codification Of International Law [] 754–55, 752 (Shabtai Rosenne ed. 1972).

B. Conventional and Historic Waters

235

for closing lines based on territorial sea width. Second is in regard to large bays and other closed coastal waters where that right of sovereignty could be established through historic consolidation. Such consolidation of title would be by continuous usage as internal waters as evidenced by the exercise of full sovereign authority over the closed coastal water area claimed. The rubric would be: an inordinate consolidation requires an inordinate passage of time, plus an inordinate exclusion of high seas regime navigational servitudes. The effect is that “vital bays” are rejected, but prescriptive acquisition consolidated over time in the absence of protest and with actual or constructive consent would continue as a valid title acquisition mode. The 1958 Geneva Convention on the Law of the Sea received preparatory work from the ILC which avoided defining “historic bays”, “historic waters”, or “historic title” over closed coastal waters, and it is apparent that historic title over closed coastal waters was only included with reticence in the 1955 Draft Convention as supplied to the Conference.95 One ILC member, Garcia Amador, wanted a provision for the acquisition of large bays regardless of any historic exercise of sovereignty.96 Maggales and Gianni had voiced the same concern at the 1930 Hague Conference and, as in 1930, this “vital bays” concept again died. Only two categories of juridical bays appertain: those geographic bays which meet conventional geometrical criteria and those closed coastal waters over which the littoral State has consolidated a historic or a prescriptive title. The 1955 Draft Convention, Article 7, adopts this two-category approach to juridical bays, first with a 25-nautical-mile closing line, applicable as a 25-nautical-mile fall-back line in over-large bays, and second with recognition of “so-called ‘historical bays’”, which are not indicated to be contrary to rules of law.97 The missing definition of 95

96 97

For a discussion of J.P.A. François’ reluctance to include a provision for historic title in the Draft Convention, see “Juridical Regime Of Historic Waters, Including Historic Bays”, in 2 Y.B. Int’l L. Comm’n [] 2. Compare “Statement” by J.P.A. François to the Plenary Session of the Conference, in 2 United Nations Conference On The Law Of The Sea, First Committee, Doc. No. A/Conf. 13/39 (1958). Amador’s remarks are in 1 Y.B. Int’l L. Comm’n [1955] 211. The history of the published documents on historic bays is in the following: 1 Y.B. Int’l L. Comm’n [] 282; “Regime of the Territorial Sea”, in United Nations, Int’l L. Comm’n 10, Doc. No. A/CN.4/C.54 (13 May 1955); 1 Y.B. Int’l L. Comm’n [1955] 251; 2 Y.B. Int’l L. Comm’n [] 140, 155; J.P.A. François, “Third Report on the Regime of the Territorial Sea”, in United Nations, Int’l L. Comm’n 1, 10–11, Doc. No. A/CN.4/77 (4 Feb. 1954); J.P.A. François, “Second Report on the Report of the Territorial Sea”, in United Nations, Int’l L. Comm’n 30, 34, Doc. No. A/CN.4/61;

236

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

“historical bays” was left by the ILC to be developed under customary international law. Additional preparatory work came from the Secretariat which produced a 1957 Memorandum entitled “Historic Bays”, that contains an anthology of publicists with little analysis. Nonetheless the Secretariat Memorandum contains confirmation that the ILC had purposefully provided for a category of historic bays apart from geographically geometric bays.98 Further, in the small discussion of historic title over closed coastal waters the Secretariat Memorandum makes the following points: (1) the development of the territorial sea concept requires dealing with the juridical rights of a littoral State in all bays regardless of size, and (2) the concept of a maximum closing line restricts the number of coastal cavities within which the littoral State may assert territorial sovereignty, but this attempted limitation failed because littoral States claimed some very large bays as territory.99 The Secretariat Memorandum also confirms that no right of innocent passage is available in internal waters, and that “historical bays” are internal waters. According to the 1957 Secretariat Memorandum the objective of the original theory of historic title was to exempt from geometric criteria the category of “bays whose status had already been settled by history.”100 The issue of acquiescence is side-stepped while the Secretariat Memorandum notes that some States say national usage is sufficient to support historic title, and that other States insist historic title must be “recognized in one form or another”.101 This is really the concept of a historic title contrasted against that of a historically consolidated prescriptive title. And, perhaps more to the point, title to historic bays by definition antedates geometric

98

99 100 101

J.P.A. François, “Addendum to the Second Report on the Regime of the Territorial Sea”, 5–7 in id.; “Report of the Committee of Experts on Technical Questions Concerning the Territorial Sea” [including Mr. Boggs & Commander Kennedy] 2, 6, Doc. No. A/CN.4/61/Annex, in id.; 1 Y.B. Int’l L. Comm’n [] 144, 148. “Historic Bays” [1957] in 1 United Nations Conference On The Law Of The Sea, Preparatory Documents 1–2, Doc. No. A/Conf.13/37 (1958). J.P.A. François found that this memorandum, though “excellent”, did not “provide us with the material needed for a thorough study of this question”. 3 United Nations Conference On The Law Of The Sea, Plenary Meetings 69, doc. No. A/Conf.13/38/. “Historic Bays”, supra note 98, at 2–3. Id., at 21–23, 28, 35. Id., at 28.

B. Conventional and Historic Waters

237

embayment criteria, so that historic bays or historic waters as juridical exceptions is hardly the applicable concept. The 1958 United Nations Law of the Sea Conference continued to be clear that no precise definition of historic title over closed coastal waters would be agreed, due largely to an inability to define “acquiescence”, and thereby specify whether acquiescence is an element of historic title acquisition. Manningham-Buller, a United Kingdom delegation member sitting with the First Committee which dealt with territorial sea questions stated, (1) that all bays traditionally treated as inland waters should be included under the rule for historic bays, and (2) that whether closed coastal waters were historically inland waters depends on whether a sufficient period of treatment as internal or inland waters had elapsed with the acceptance of other States.102 In addition, J.P.A. François, who had acted as a Rapporteur for the ILC’s preparatory work on law of the sea, filed a “Statement” with the conference touching in part on the matter of historic bays which he saw as “the whole problem of acquisition by prescription” and recommended that it be left to the ICJ to define historic waters.103 At the Conference plenary meetings Article 7 of the Convention on the Territorial Sea and Contiguous Zone was adopted by the overwhelming vote of 63 to 6, with 5 abstentions.104 Thereby the two categories of bays, geometric and historical, were established as juridical while the definition of historic waters was left to future agreement or adjudication. However, pursuant to a resolution proposed by India and Panama, a study was directed to be conducted on the “regime of historic bays”,105 and this resulted in the important 1962 Secretariat Study titled “Juridical Regime of Historic Waters, Including Historic Bays” (1962 Secretariat Study).106

102

103

104

105

106

Remarks of Sir Reginald Manningham-Buller, in 3 United Nations Conference On The Law Of The Sea, First Committee 9, Doc. No. A/Conf. 13/39. “Statement”, 3 United Nations Conference On The Law Of The Sea, First Committee, Doc. No. A/Conf.13/c.1/L.10, at 68, 69. The vote is reported in 2 United Nations Conference On The Law Of The Sea, Plenary Meetings 63, Doc. No. A/Conf.13/38/. See 2 United Nations Conference On The Law Of The Sea, Plenary Meetings 118, Doc. No. A/Conf.13/38/. Study prepared by the Secretariat, Juridical Regime Of Historic Waters, 2 Y.B. Int’l L. Comm’n [1962] 1, [hereinafter 1962 Secretariat Study].

238

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

The main objective of the 1962 Secretariat Study is to establish, correctly, that historic titles are not exceptions to or deviations from international law. Title by prescription is distinguished appropriately from title by immemorial possession, but prescription is characterized as having a legally defective basis which, therefore, cannot be historic. According to the Secretariat Study “recognition” is required for prescriptive titles to remove the necessity of showing that the title is accepted through continuous usage over a historical period.107 Obviously actual recognition of a prescriptive title would remove the historic element as suggested by the Secretariat Study, but constructive acquisition could well depend on cumulative evidence of consolidation over a historic period. It is also difficult to see prescription, a valid legal basis for title, described as “defective” or somehow outside the rule of law when, patently, prescriptive title is a legally valid acquisition mode involving the equitable concept of preclusion where an affected State fails to protest. The Secretariat Study also would exclude from historic titles those based on occupation and possession antedating the development of high seas freedoms. These are viewed as “ancient titles” fortified by “usage” but excluded from historic titles.108 The Secretariat Study correctly identifies “acquiescence” as the stumbling block to a historic title definition, which apparently engendered its attempt to pare away titles which nonetheless are historic. While a valiant effort, the Secretariat Study misses because “historic title” is not a mode of title acquisition but, rather, a means of adducing evidence to prove title acquisition which can only be established by consolidated sovereign usage in accord with intertemporal law over time from a critical date as shown by circumstantial evidence. The acquiescence required, toleration or consent, actually depends on the underlying mode of acquisition presumed, but acquiescence is presumptive evidence of the consolidation process whether for a title based on discovery with occupation and possession, or for immemorial titles, or for a title secured by prescription over a historic period.109

107 108

109

Id. at 7, 10–12. Presumed consent as an element to transfer of a right through prescription, see J.E.S. Fawcett, The Law Of Nations 59–60 (1968). Ancient title is discussed in Juridical Regime Of Historic Waters, supra note 106 at 7, 12. 1962 Secretariat Study, supra note 106, at 15–16, 23. Brierly, supra note c. iv, note 194, at 168–69.

C. Four Hundred Years of Publicists

239

The process of extending littoral State navigational protective jurisdiction into closed coastal waters is fully achieved where the municipal navigational servitudes control all navigation to the exclusion of the high seas regime navigational servitudes such as innocent passage and force majeure. The beneficial interests of all States are protected and preserved by application of equitable principles testing for abandonment, preclusion, acquiescence, toleration, peaceful usage and prescription to identify any inequitable result arising from such title consolidation. There is irony here in that the matter is not whether historic titles are defective as compared with juridical bays, but whether juridical bays reflect and depend upon a rule of law which distinguishes equitable interests in the res communis coastal waters consistently with the titles acquired under the historic consolidation. If anything, it is geometrical bays which are defective because they eliminate the judgmental role in application and balancing with equitable principles, and absent the judgmental application of case-specific equitable principles in fact constitute the equitable principles’ counterpoint of immutable pre-judgment. Moreover, without the occupation and possession, or prescription of closed coastal waters as inland territory there would be no basis in customary law for acceptance of common bays as inland waters. Juridical bays advocates asserting historic waters as defective titles have turned the application of equitable principles in the res communis public trust on their head. Absent equitable principles as applied for historic inland waters determinations, there would be no conceptual basis apparent in control of foreign general and commercial navigation which would support codified definitions for juridical bays. Indeed such codification is at root simply a conventional agreement of the parties, which is no more than the application of an equitable principle in itself. Such agreement has no greater validity than the other equitable principles applied to balance the ultimate equitable principle of public trusts, jus publicum (Commerce Clause) and res communis (high seas regime) for protection and preservation of the common navigational freedom principle meeting at the territorial sea baseline.

C. Four Hundred Years of Publicists The writings of publicists continue to be a valuable source of international law, especially in the 17th and 18th centuries where case law is absent. By the 17th century questions of ownership and jurisdictional rights over coastal waters

240

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

were already time-worn.110 It is with the arrival of Grotius (1583–1645)111 in 1609 that the debate begins in earnest,112 producing not only the concepts of a high seas regime subject to freedom of navigation, though not a res

110

111

112

Much of the modern law of nations is an outgrowth of Roman law. James Mackintosh, Roman Law In Modern Practice 94, 96 (1934). In Roman law an ownerless thing, a res nullius, is acquired by occupatio, that is, taking possession of the thing with the intent to become the owner. Robert W. Lee, The Elements Of Roman Law 112, 125 (3d ed. 1952). The occupation and possession of the res allowed a right of dominium. Id. at 111 (4th ed. 1956). Such dominium is the right argued by Selden for occupation of the British Seas. This was also referred to as “sovereignty” where economic interests are concerned. The element of imperium associated with exclusive power over persons and things, closer to contemporary territorial sovereignty, is not generally used in reference to the sea, though it may be for closed coastal waters subject to control. Dictionnaire De La Terminologies Du Droit International 535, 578 (Union Académique International) (1960); Wyndham L. Walker, Territorial Waters: The Cannon Shot Rule, in 22 Brit. Y.B. Int’l L. 210, 212 (1945). Mediterranean publicists such as Bartolus (1313–1359) had advocated littoral State extended jurisdiction to control the predatory activities of pirates, but did not view that jurisdiction as also conferring ownership of the Adriatic Sea. P.T. Fenn, The Origins Of The Rights Of Fishery In Territorial Waters 98 104 (1926). Fenn also describes the legal theories of Baldus (1327–1400), as being similar to those of Bartolus, his master. Id. at 105–07. Fenn writes that before the Glossators, who commented on the Roman codes immediately prior to the time of Bartolus, they had no concept of territorial jurisdiction. There was, however a property right to bays and smaller indentations along the coast. P.T. Fenn, Origins Of The Theory Of Territorial Waters, 20 Am. J. Int’l L. 465, 460–69 (1926). The issue for them was to preserve navigation as a public servitude over the entire sea in order to counter efforts by some littoral States, such as Venice or Genoa, to exert exclusive authority over wide Mediterranean Sea areas. Albericus Gentilis (1552–1608) is closely connected in thought with Bartolus and Baldus, and eventually became a professor at Oxford. Biographical materials in De La Pradelle, infra note 111, at 93–99. Gentilis, like Grotius who followed, accepted that the open sea was common for the use of all States, and that littoral State jurisdiction could be extended over the open sea provided that the right of navigation by other States was not foreclosed. Albericus Gentilis, De Jure Belli Libri Tres 90–1 (J. Scott ed., J. Rolfe trans. 1933) (1612). Later in life Gentilis became involved as an advocate for the interests of Spain in English courts and argued for a 100–mile extension of “territorial jurisdiction” to enforce neutrality. Albericus Gentilis, Hispanicae Advocationis Libri Duo 35, 38, 61 (J. Scott ed., F. Abbot trans. 1921) (1661). Biographical materials are in A__ de La Pradelle, Maitres Et Doctrines Du Droit Des Gens 71–92 (1950). Selden thought that a State could acquire portions of the sea by excluding other States. Grotius disagreed. Hugo Grotius, De Jure Praedae Commentarius 231 (J. Scott ed., G. Williams and W. Zeydel, trans 1950) (1604); Selden, supra c. i, note 8.

C. Four Hundred Years of Publicists

241

communis until the 19th century, but also a territorial sea regime subject to innocent passage in commerce with eventual acceptance of territorial occupation and possession. Grotius, our starting point, takes the position inMare Liberum (1609) (part of De Jure Praedae Commentarius) and in De Jure Belli Ac Pacis Libri Tres (1625)113 that the sea and its shores are subject to the common use of all States and could not be the objects of any State’s exclusive authority. In his later work Grotius agrees that some bays could be owned by and thereby included within the territory of a littoral State.114 Writing with regard to the seas and marginal sea areas of Europe,115 Grotius argues that the open sea is a res nullius116 available for the common use of all States. Grotius understood two maritime areas be of res nullius status, one being the open seas, which were incapable of reduction to ownership, and the other being capable of reduction to ownership such as an “inlet of the sea” which “may become the property of the person occupying it, so far as possible without impeding its common use” after a declaration and effective occupation by the local population through navigation activities such as fishing.117 The roots of today’s high seas and territorial waters regimes are apparent in Grotius’ “common use” thought, which is commerce and general navigation, even in the face of littoral State acquisition. This, it is submitted, reflects the navigational freedom principle developing through the res communis public trust.118 Indeed internal waters are accepted by Grotius in harbors and river mouths where the occupier precludes use by other States,119 with the ensuing debate being, (1) whether and where foreign navigation had been or could be excluded from coastal waters, (2) how occupation and possession could

113

114 115

116

117 118

119

Grotius, supra note 112, at 231; Hugo Grotius,  De Jure Belli Ac Pacis Libri Tres 208 (____). Grotius, supra note 112 at 231; and see  Grotius, supra c. i, note 8, at 208. The evolution of Grotius’ work from that of an advocate for the Dutch East India Company is explained in F__ De Pauar, Grotius And The Law Of The Sea 75–76 (R.J. Arthen trans. 1965). A res nullius is acquired by control of the claimant with assertion of the intent to possess as owner. Daniel O’Connell, 1 International Law 465–66 (1965). Grotius, supra note 112, at 231–32, 234–35, 238. The development of 16th to 18th century international law jurisprudence is described as turning from universal law based on natural law concepts to a Grotius separation of the law of nations from natural law, cemented by Vattel’s view that natural law had been subsumed in a law of nations emanating from agreement of States. Philip J. Allott, The Health Of Nations 410–18 (2002). Grotius, supra note 112, at 227, 231–32, 236.

242

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

be achieved if such waters were a res nullius or a res communis, and (3) what would constitute satisfactory evidence that such waters had been acquired as part of the surrounding land territory. The issue for Grotius is whether occupation and possession had been or in fact could be achieved. This inter-temporal view is important for historic waters presumably so acquired120 because their acquisition is not based on prescription but rather on occupation and possession and, therefore, may be evidenced by acquiescence in the sense of toleration over the historic period.121 High seas navigation did not appertain where internal waters had been established,122 but it did in the marginal sea area regardless of whether it was of res nullius status.123 Importantly Grotius denied the physical, not the legal, capacity to occupy and possess the sea, which is the key to his

120

Id., at 96, 227. Samuel Rachel was a contemporary of Grotius and the 17th century writers such as Selden and Zouche. Rachel’s contribution to international law is his development of the theory of “arbitrary” (positive) law and of customary law established by agreement among equal nations as the basis for the law of Nations rather than the natural law relied upon by Grotius. 2 Samuel Rachel, Dissertations on the Law of Nature and of Nations 157, 182, 205 (J. Scott, ed., J. Bate, trans.) (1916) (1676). Rachel writes in addition as follows: I said that the building force of the Law of Nations depends on agreements. * * * That consenting may take place in more than one way; it may be Express, or Tacit, or Presumptive. * * * The agreements, accordingly, upon which the Law of Nations is based are either Express or Tacit, so that herein consent is rendered abundantly certain and clear by means either of presumptions or of more cogent indications. Id. at 163. Of certain matters belonging to the Law of Nations I have said that it is manifest, assent. Now their bindingness is induced by Usage and Custom gradually, and is not openly promulged nor at one and the same moment, but acquires strength, and, so to say, makes growth, slowly and imperceptibly; and so the beginning of the certainty which can in the earliest stage be had about the rise of that obligation seems to rest o a Presumption. But when nations give evidence of their assent, and maybe testify to it by their conduct, we become quite sure that an obligation has been set up binding them. Id. at 181–82. What Rachel is describing is the very process which is submitted herein as the development of navigable waters rights based on the navigational freedom principle manifest in aspects of municipal law and the high seas regime as navigational servitudes. 122 Grotius, supra note 112, at 235. 123 Grotius, supra note 112, at 230–31, 233–34. Grotius’ theory that closed coastal waters could be owned because the enclosing land was owned, rather than that the water was actually occupied, is discussed in Johanna K. Oudendijk, Status And Extent Of Adjacent Waters 41–43 (1970). 121

C. Four Hundred Years of Publicists

243

thought.124 The beginning of the res communis concept as an equitable principle is apparent in Grotius’ view that usage of the res nullius open seas was a right of all States without ownership of any State. Use of the seas as a “common” is an interdependent beneficial right, and in his final work, De Jure Belli Ac Pacis Libri Tres, Grotius notes that occupation and possession of coastal waters is possible where one State holds both shores of a strait as territory,125 but innocent transit of the open sea may not be impeded.126 This means that commercial navigation from one area of high seas to another, or to a third-party State, could not be eliminated without prescription, as evidenced by actual or constructive consent regardless that the area is a res nullius. This acquisition is more akin to the territorial sea concept as it evolved in the 18th century, subject to innocent passage in straits as under today’s high seas regime navigational servitudes. But for historic titles over closed coastal waters Grotius is especially significant, in that his concept of occupation is achieved is through “enclosure” by land. Grotius’ concept also shows the idea of sufficient “use” as able to establish a prior juridical right over a res nullius and significantly confirms the effect of interdependent uses as preventing occupation and possession of the underlying res nullius. Ergo, here is the basis for the seas being encompassed within a high seas regime res communis reciprocal public trust with the community of States as communal trustees. William Welwood, John Boroughs and of course John Selden were British publicists of the Grotian era preoccupied with supporting the maritime claims of James I and Charles I over the North Sea herring fishery.127 Welwood,

124 125 126 127

Grotius, supra note 112, at 238. Id. at 208, 210–11. Id., at 208, 212–13. The major jurisdictional extension over the adjacent sea in the 17th century is James I’s Proclamation of the “Kings Chambers”, printed in Fulton, supra c. i, note 12, at 119, 222–23, 228 (1911). Also printed in Fulton is the Proclamation of James I For the Restraint Of Foreigners Fishing On The British Coasts, May 6, 1609, id. at 755. And see De Pauar, supra note 115 at 9; and C. Wilson, Profit And Power A Study Of England And The Dutch Wars (1957), about the inability of England to enforce its maritime claims. And see Report of the Admiralty to Charles I As to the Employment of the Ship-Money Fleet in Wafting and Securing Foreign Merchants Passing Through His Majesty’s Seas, and in Protecting Foreign Fishermen Who Accept the King’s License, dated Feb. 5, 1635, in Fulton supra c. i, note 12, at 762. Opposition to the British claims appear in writings such as L’Abbe de Mably,  Le Droit Pubic De L’Europe Fonde Sur Les Traites 361–62 (4th ed. 1764).

244

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

a lecturer at St. Andrews University128 who followed James VI to London, writes concerning the fisheries along Scottish coasts using a two-step process for holding coastal waters where first the bounds must be delimited, and second acts of occupation must then occur. The sea is bounded by the shore, and for Welwood offshore landmarks such as rocks and islands could supply additional bounds, as could compass courses. This is a nascent theory of closed coastal waters, and perhaps even of the territorial sea as it came to be accepted that high seas regime navigational servitudes would not prevent occupation and possession by the littoral State. But Welwood’s control over the maritime area possessed must be continuous and protected from disruption.129 Sir John Boroughs was Keeper of the Records in the Tower, and in 1633 he wrote The Sovereignty of the British Seas, later published in 1651. In contrast to Grotius, Boroughs understood prescription to be the basis for sovereign authority over coastal areas and enclosed waters such as bays, havens, harbors, ports, estuaries and river mouths. The prescription involved is the termination of foreign commercial navigation,130 and apparently occu-

128

129

130

Similarly British customs laws were extended over the adjacent sea in the 17th century. William E. Masterson, Jurisdiction In Marginal Seas 3 (1929). These laws were improved in the 18th century. See An Act For The More Effectual Prevention Of Smuggling In This Kingdom, 24 Geo. 3, c. 47, 26 (1784) (Eng.); and An Act For Preventing Frauds And Abuses In The Publick Revenue Of Excise, Customs, Stamp-Duties, Post Office, And House Money, 6 Geo. 1. c. 21, 32 (1719) (Eng.). F. De Pauar, supra note 115, at 9; Philip Medows, Observations Concerning The Dominion and Sovereignty Of The Seas B1 (1689). Biographical materials in Fulton, supra c. i, note 12, at 352. Welwood’s work is described in W____ Senior, Early Writers On Maritime Law, in 37 L.Q. Rev. 323 (1921). William Welwood, An Abridgement Of All Sea-Laws, supra c. i, note 46, at 62, 67–68, 72. See also William Welwood, De Dominio Maris 4, 5, 8–9, 11, 20 (circa 1615), where he writes about proximity as the basis for closed coastal waters to form part of the State, as follows: Mare ergo terrae proximu eiusdem terrae proximae dominum agnoscere cogetur: pars ctenium ila maris proxima, sic terrae proximae copulatur, & ut sic loquar incorporantur, ut re Principe doninoue illus terrae regnine, vel partecialemm, usumae alienare aut locare licet magis quam regnum ipsum regnique partimonium. Welwood’s idea is not dissimilar for the concept of contiguity. 1 Daniel O’Connell, International Law 484 (1965). Welwood also referenced the use of sounding to identify the closed coastal waters area. See Welwood, supra c. i, note 46, at 68. J. Boroughs, The Sovereignty Of The British Seas 43, 56, 76–77, 82–83 (T. Wade ed. 1920) (1633). Boroughs equates property in the seas with a property right to the sovereignty of the sea rather than holding the seas as territory. Boroughs writes, in pertinent part, as follows:

C. Four Hundred Years of Publicists

245

pation and possession would occur once the prescription had been effected. This suggests the real focal point for early acquisition concepts, that coastal waters were a res nullius susceptible of occupation and possession except where a prior right of usage in general navigation had been established. No one wanted to exclude foreign vessel access to closed coastal waters such as ports; trade was important, so balancing occupation and possession with prescription of foreign navigation became the conceptual problem of the age. John Selden131 followed Welwood and Boroughs and, as noted earlier, Selden properly should be known as the “father of the territorial sea”, not simply because of his support for Stuart claims to occupation and possession of marginal sea areas, but also because of his understanding as to inland waters forming the landward extent of the territorial sea – the baseline for high seas regime navigational usage. Selden argued that straits and creeks could be occupied and possessed, for which he cites Grotius. Possession of closed coastal waters for Selden is through containment of the sea by the land (straits and creeks) where promontories held the sea as it penetrated the land,132 which again accords with Grotius133 and demonstrates the

131 132

133

That Princes may have an exclusive property in the Soveraignte of the severall parts of the Sea, and in the passage fishing & shores thereof, is so evidently true by way of fact, as that no man that is not desparately imprudent can deny it. And for the point of right, though some of lat have endeavored by way of argument to prove the contrary, affirming them to be not only publich but common, yet the notorious practice of all Maritime Countries, the necessity of Order in mutuall commerce, and the safety of mens persons goods & lives, had taught even the most barborous Nations to know, by the light of human reason, that lawes are as equally necessary for the government and preservation of such as frequent the Seas, as of those that trade and negotiate on firm land. Id. at 43–44. Biographical materials in Fulton, supra c. i, note 12, at 25, 28, 364. J. Selden, supra c. i, note 8, at 135–38, 175. Selden writes as follows of coastal waters possessed by the land: The Sea and Land mutually imbrace one another with crooked windings and turnings, this with Penisula’s and Promontories butting forth, and Creeks bending inward, that working up its waves about all the Passages of its vast Bodie. Thus it is evident that the one indifferently set’s the Bounds to the other, no otherwise than Banks, and Lakes, or Rivers; which also appears more evident in the Caspian Sea that is encompassed by Land. Id. at 136–37. 2 Grotius, supra note 112, at 208–09. Richard Zouche (1590–1600), an Oxford

246

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

common law as Selden’s ultimate reference point for territorial jurisdiction over coastal waters when inter fauces terrae. The ongoing issues were what waters were “closed”, how were they “closed”, and what did it take to close them. Continental publicists responded negatively to Selden’s major thesis on occupation and possession of the sea, but tended to agree with his concept that coastal enclaves could be occupied and possessed by the littoral State. There is no perception in these publicists that such coastal enclave acquisition involves prescription.134 Samuel Pufendorf (1632–1694) was a professor at Heidelberg and Lund135 and published Elementorum Jurisprudentiae Universalis Libri Duo in 1672, describing the uncertainty which had arisen regarding acquisition of coastal seas, wherein he viewed international commerce and littoral State control of commerce as competing interests.136 Pufendorf understood closed coastal waters, small bays almost surrounded by land, to be subject to the full authority of the littoral State where innocent passage would be excluded. Writing in 1688, in De Jure Naturae Et Gentium Libri Duo, Pufendorf states that bays and straits “belong to” the State whose shores they wash.137 Pufendorf constitutes a turning point where publicists generally come to agree that the right to use marginal seas for navigation is presumed in all States – an a priori high seas regime navigation servitude for innocent

134 135 136

137

professor, wrote in Juris Et Judici Fecialis Sive Juris Inter Gentes that the ownerless sea could be occupied and possessed within coastal enclaves, and that the State holding dominion over both shores of a strait held the strait. The strait arguments are designed to support a particular and unsuccessful English claim to maritime occupation and possession – that is, sovereignty and dominion over the English Channel. Claude Morisoto, Orbis Maritimi 446–47, 453–54, 457–58, 463, 470 (1643). Biographical materials in De La Pradelle, supra note 111, at 117–22. 2 S. Pufendorf, Elementorum Jurisprudentiae Universalis Libri Duo 27–28 (J. Scott ed., W. Oldfather trans. 1931) (1662). Samuel Pufendorf, De Jure Naturae Et Gentium Libri Octo (1688 ed.) 560–65, 566–67. In this work Pufendorf describes ownership over closed coastal waters as follows: From what has been said it is clear that at this day, when all that pertains to the art of navigation has been brought to a very high degree of development, any maritime people which has any use of navigation is master of the sea which washes its shores, insofar as it is held to serve as a defense, and especially of ports or places where an easy land can be made. Bays also regularly belong to that nation whose territory encloses any particular one, the same being true also of straits. Id. at 565.

C. Four Hundred Years of Publicists

247

passage – though exercised subject to a littoral State’s extended navigational protective jurisdiction. The developing 17th century British view accords with that of the continental publicists. Thus, Sir Philip Medows, Latin Secretary to Cromwell’s Council and Ambassador to Denmark and then Sweden,138 writes in Observations Concerning The Dominion And Sovereignty Of The Sea that the open or main sea is free to all states in the pursuit of commerce and communications as part of free navigation, and bays, havens and creeks form part of the littoral State’s territory.139 The idea of closed coastal waters being part of the littoral State territory without prescription, by occupation and possession, was accepted for common bays, but what of the larger closed coastal water areas and the means of their acquisition? By the 18th century the range of cannon provided an effective and recognized practical means for occupation and possession of closed coastal waters and a means of excluding high seas regime navigational servitudes.140

138 139

140

Biographical materials in Fulton, supra c. i, note 12, at 239. Philip Medows, Observations Concerning the Dominion and Ownership of the Sea 6, 14–15 (1689). In addition to Medows, Justice agrees with the concept that coastal waters cold be possessed, but not the main ocean where possession would interfere with navigation by other States. Alexander Justice, A General Treatise On The Dominion Of The Sea –4, 11, 34–35 (2d ed. 1705). Interestingly Justice sees the “area” of the coastal sea as the object of possession, and not the water. Possession of the closed coastal waters area requires exercise of control. Id. at 34–35. Writing before Medows, Maylnes thought navigation could be regulated by prescription, but not prohibited on the open sea. Gerald Maylnes, Ancient Law-Merchant 124, 139, 132, 133 (London 3d ed. 1686). Maylnes confirms the right of navigation on the open seas as follows: No Man can be prohibited to sail in the main Sea, albeit in some places (Where the waters are as Royalties unto them) it be prohibited; as the Venetians do in the Adriatick Lake, and other Princes and Commweals in their Jurisdictions and Commands, which hath be observed time out of mind, and is taken for the most ancient prescription. Id. at 124. Use of cannon range to delimit control over adjacent coastal waters developed in the Mediterranean with regard to preservation of neutrality and required the actual emplacement of cannon. Great Britain entered into several treaties with Mediterranean States which relied on the range of cannon for the enforcement of neutral rights. For example Treaty of Peace, Gr. Br.-Tripoli, July 19, 1716, art. 24, 29 Parry Treaty Series 499 (hereinafter Parry); Treaty of Peace, and Commerce, Gr. Br.-Tunis, Oct. 19, 1751, art. 11, 39 Parry 350; and Treaty of Peace, Gr. Br.-Algiers, May 14, 1762, arts. 2 and 3, 42 Parry 162. France and the United States also used cannon range then adopting a three-mile belt of neutral waters, which apparently had begun as a State practice with northern European States such as Denmark and Norway. See Walker, supra note 110, at 210 (1945); and see

248

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

Cornelius van Bynkershoek141 brought the range of cannon concept forward as a means of control to achieve ownership of coastal waters142 in 1702 with his De Dominio Maris Dissertatio,143 arguing for littoral State control of navigtion from shore.144 For Bynkershoek, ownership of an enclosed coastal area of navigable waters depends on the littoral State being able to exert control from opposite shores – possession in fact.145 This would of course

141

142

143

144

145

H.S. Kent, The Historical Origins Of the Three-Mile Limit, 48 Am. J. Int’l L. 537 (1954). Compare Baty, infra note 182. The cannon range “rule” was used in the 1610 English dispute with the Dutch, and Bynkershoek either made the conceptual union between the cannon shot and a marginal belt or described an existing union. Cf. W. Walker, supra note 746, at 723. Biographical materials in De La Pradelle, supra note 111, at 107–55. See also 1 Oppenheim, supra c. iv, note 103 at 94, 865. Cornelius Van Bynkershoek, De Dominio Maris Dissertatio [2nd ed. 1744] 44 (J. Scott ed., R. Magaffin trans. 1923). Bynkershoek writes, in pertinent part, as follows: Wherefore on the whole it seems a better rule that the control of the land extends as afar as a cannon will carry; that is as far as we seem to have both command and possession. Id. at 44. The command referenced is regarding control of an area with intent to possess. Bynkershoek thought that innocent passage could be controlled. Cf. id. at 55–57. Bynkershoek did not understand full control to be exercisable by the coastal State beyond the range of cannon. Id. at 42–44, 47, 57. He viewed shore-based control as superior to the transient control of passing vessels. Id. at 44, 46. The possession of the sea within sight of shore is supported in the ancient Scottish concept of “land kenning”. See Fulton, supra c. i, note 12, at 222–45. Pufendorf also had described the concept of sea possession from the shore. Pufendorf, supra note 773, at 563–64. Gentilis and Bartolus thought that the sea could be possessed out to 100 miles for various purposes. See respectively Gentilis, supra note 110, at 35; and Fenn, supra note 110, at 104 (1926). Pufendorf writes, in pertinent part, as follows: Thence it follows that, although otherwise the use of travel by sea is a matter of innocent and inexhaustible utilization (and it would be a matter of the utmost humanity to deny or to charge such things to any one, unless something else induced one to do so), still, for the aforesaid reason of defense, a certain people can rightly prevent any outsider from coming within a definitive distance from its own shores, except by a previous announcement and with the consent of that same people, or else by giving a definite sign that the approach or passage is friendly. Pufendorf, supra note 136, at 28. See Oppenheim, supra c. iv, note 103, at 585; and Charles H. Wilson, Profit And Power A Study Of England And The Dutch Wars 37 (1957). Bynkershoek, supra note 142, at 43. Bynkershoek did not view vessels as effecting occupation, but they could give command or authority. Id. at 53–54.

C. Four Hundred Years of Publicists

249

depend on the cannon being used, its coastal elevation and range, the inconsistency of which in application would not have been a major issue at the time. Bynkershoek’s ownership arguments were responded to by R.-J. Valin, a French admiralty official during the Seven Years War (1756–1763), who countered with a 1746 monograph, Nouveau Commentaire sur l’Ordonance de la Marine, du Mois d’Août 1681, asserting therein a right of navigation for all States in coastal seas and access to ports except in times of war.146 Again this points to commercial navigation and its access to ports in trade as a major sticking point in littoral State acquisition of closed coastal waters. Christian Wolff, a Halle University professor147 writing in the 1764 edition of his Jus Gentium Methods Scientifica Pertractatum, agrees with Bynkershoek that the coastal sea was a res nullius which could be owned through occupation and possession from shore and that the right of innocent passage did not apply.148 Emerich de Vattel followed, and is by far the most important publicist on law of the sea in the 18th century, due both to his acceptance by other jurists149 and to the weight accorded his views in both American and British judicial opinion. It is fair to state that Vattel represents the shared view of the United States and Great Britain on bays during the 18th century. Vattel specified that bays as well as the coastal sea could be occupied and possessed by emplacement of cannon, thereby enclosing coastal waters with widths of up to twice the range of cannons by mounting cannons on

146

147

148

149

1 R.-J. Valin, Nouveau Commentaire Sur L’Ordonance De La Marine, Du Mois D’Août 1681 626–27 (1746); 2 Valin at 447, 571, 575. Biographical materials in W. Walker, supra note 746, at 210. See the discussion of Wolff in R____ Redslob, Traité De Droit Des Gens 24–25 (1950). Christian Wolff, Jus Gentium Methods Scientifica Pertractatum (1764 ed.) (J. Scott ed., J. Drake trans. 1934). For Wolff ownership of the sea was comparable to that of a river, and occurred where there are bays or other coastal enclaves. Id. at 73, 183–84. Coastal waters occupied as territory could exclude foreign fishing, but not the high seas where there is freedom of fishing. Id. at 69, 71, 72–73, 183–84. Such ownership of coastal waters also is described by Pufendorf, supra note 136, at 27 and Bynkershoek, supra note 142, at 43. See A. Pearce Higgins, The Growth Of International Law: Maritime Rights And Colonial Titles 1648–1763, in 1 Cambridge History Of The British Empire 538, 541 (1929). Biographical materials in de La Pradelle, supra note 111, at 123–66.

250

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

opposing shores.150 Notably occupation and possession of large bays would require acquiescence by other States according to Vattel because the high seas regime navigational servitudes applicable therein would be prescribed by the littoral State outside the range of its cannon.151 Apparently within the range of cannon there would be no high seas regime navigation servitude for innocent passage or general navigation and, hence, no prescription of that right. What is significant here is that Vattel sets the issue which confounds jurists into the 21st century; how to define “acquiescence” and what “acquiescence” is required to acquire ownership. What seems to be occurring here is that maritime areas, especially coastal waters, were understood to be a res nullius and that their common use in commercial navigation had been established, though possibly not within closed coastal waters used exclusively by the littoral State. Consequently if waters to be occupied and possessed were used for foreign commerce and general navigation, that foreign use would have to be prescribed to complete the acquisition of the underlying res nullius by occupation and possession. The corollary is that, absent such foreign navigational use, there could be exclusive littoral State use achieving occupation and possession, but only to the extent that occupation and possession could be achieved. Two publicists of note followed, Georges Frederick de Martens, a Göttingen University professor who wrote in 1783,152 and Azuni, a member of the commercial court at Nice and of the Academies of Science in Turin and Florence.153 Marten believed that a State held its lakes and rivers as part of

150

151

152

153

Emmerich De Vattel, Le Droit Des Gens [1758] 106, 107–08, 109–10 (J. Scott ed., G. Gregory trans. 116). See also Grotius, supra note 112, at 212–13; and see Medows, supra note 139, at 39–40. See Pufendorf, supra note 772, at 27. Also, Vattel writes as follows: But it can happen that a non-user may take on the character of consent, or implied agreement, and thus become a title in favor of one Nation as against another. When a Nation is alone in exercising the right of navigating and fishing in certain waters, and claims an exclusive right, if they obey the prohibition with sufficient signs of acquiescence they impliedly renounce their right in favor of the other Nation and give it an exclusive right which it may lawfully maintain against them in the future, especially when that right is confirmed by long usage. Vattel, supra note 150, at 107. See biographical materials in De La Pradelle, supra note 111, at 171–81. See also Oppenheim, supra c. iv, note 103 at 97. Biographical materials in Fulton, supra c. i, note 12, at 565.

C. Four Hundred Years of Publicists

251

its territory and could exclude foreigners, and that this acquisition could exist over bays and gulfs where control could be exercised from shore.154 Azuni continued the argument that bays could be occupied and possessed as property of the littoral State, but did not limit this to bays controlled from headlands. Azuni’s limit on acquisition of bays was that large bays which were in fact seas, like Hudson’s Bay, could not be owned.155 At the close of the 18th century publicists had moved to the position that closed coastal waters could be held as inland by the littoral State, and if foreign commercial navigation were present that it must be prescribed. The remaining issues were to separate the modes of acquisition and the evidence establishing achievement of title by their application. There is a significant change in approach to coastal waters juridical issues in the 19th century, due in large part to common agreement that coastal waters could be occupied and possessed by the littoral State as a matter of international law. Surprisingly it is a 17th century publicist, Jean-Jacques Burlamqui (1694–1748), who forms the conceptual nexus between legal thought of the 18th century and that of the 19th century, as appears in the 1820 edition of his Principes du Droit de la Nautre et des Gens. There littoral State ownership is accepted for a portion of the marginal seas and closed coastal waters through construction of bridges and forts, as well as the presence of vessels continuously guarding possession – reminiscent of Welwood.156 The nexus is in Burlamqui’s “1820” edition arguments about whether there is or could be possession of closed coastal waters based on occupation and possession

154

155

156

Georg F. De Martens, Précis Du Droit Des Gens Moderne De L’Europe 121, 123–24 (3d ed. Paris 1831) (1st ed. 1788). De Martens did not believe any right could be held over vast oceans to the exclusion of other States. Id. at 128. Dominico A. Azuni, Droit Maritimi De L’Europe 274–76, 286–87, 300, 305 (1805). Azuni describes the occupation of bays and closed coastal waters as follows: Ce même principe doit s’appliquer avec encore, plus de raison au domaine de baies, des détroits et des ports, comme plus susceptibles d’être occupés, et comme intéressants d’avantage la sûreté d’un pays. On reste on ne comprend ici, que les baies et les détroits qui ont peu d’entendue, et non de grands espaces de mer auxquels on donne souvent ce nom, comme le baie d’Hudson e le détroit de Magellan, sur la totalité desquels on ne peut prétendre d’empire et encore moins de propriété. Id. at 276. 3 J.-J. Burlamqui, Principiés Du Droit De La Nature Et Des Gens 172–74 (M. Dupin ed., 2d ed. 1820).

252

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

of a res nullius.157 There Burlamqui sets the evidence required as exercises of littoral State jurisdiction over foreign vessels.158 This concept recognizes that exclusive littoral State jurisdiction exercised over foreign vessels has to be based on underlying sovereign exclusive authority over the involved maritime area; otherwise innocent general navigation would be wrongfully impeded, as in the belt of coastal waters and straits. Consequently, for Burlamqui, foreign vessels are subject to sovereign authority of the littoral State within its closed internal waters regardless of innocent passage or commercial purpose. Burlamqui strikes the navigation servitude balance by preserving the high seas regime navigation servitude for innocent passage within the territorial sea, but subjecting it to sovereign authority of the littoral State in closed coastal waters as manifest through the governmental navigational servitudes for protective jurisdiction. The issues of adducing evidence of such control over foreign vessels, and the acquiescence in such control by the impacted flag States, remained unresolved. The 19th century publicists did not cease altogether examining whether sufficient control could be exercised to actually possess a coastal water area. Jean-Louis Kluber (1762–1836), a University of Erlanger professor, writes in Droit des Gens Moderne de l’Europe that continuous possession with an intent to possess is the key, regardless of whether the title is based on occupation or prescription.159 That seems tautological. Both Kluber and Theodor Ortolan, writing in Règles Internationales et Diplomatics de la Mer, accept the idea that closed coastal waters could involve large bays within the regime of internal

157

158

159

3 Burlamqui, supra note 156, at 174, 175–76; and 4 Burlamqui, supra note 792, at –. See Oppenheim, supra note 777, at 83. 3 Burlamqui, supra note 156, at 280. Burlamqui writes as follows about the control of other States navigating inland waters: A l’égard des portions de la mer qui sont voisines des terres, elles son censées appartenir au souverain du pays dont elles baignent les côtes; et les golfes et détroits appartiennent au peuple dans les terres duquel ils sont enclavés. Car comme il est aussi aisé à ces peuples de s’emparer et de garder ces portions de mer, que quelque territoire; pourquoi ne law appartiendraient-elle pas? Et pourquoi ne pouvaient-ils empêcher les autres d’y naviguer, d’y pêcher, et de s’en prévaloir pour eux seuls? Id. at 74. 1 J.-L. Kluber, Droit Des Gens Moderne De L’Europe 207 (1831). Biographical material in De La Pradelle, supra note 111, at 183–93.

C. Four Hundred Years of Publicists

253

waters through application of jurisdiction and control exerted from vessels and islands.160 This marks the acceptance of delimited bays being held as inland waters, but leaves uncertainty as to any maximum closing line lengths for acquisition of littoral State sovereignty. Other important publicists of this period are Richard Wildman, a barrister of the Inner Temple, and Henry Wheaton (1785–1848), a lawyer and diplomat for the United States. Wildman sees occupation of the land as carrying with it occupation of coastal sea areas.161 In contrast attorney Wheaton offers a new approach to the evidence of occupation and possession and points out that a State could exercise “in rem” jurisdiction only within its territory.162 For that reason Wheaton understood that a vessel in innocent passage would not be subject to in rem jurisdiction while transiting the territorial sea, but would become subject to that jurisdiction upon entering internal waters where there is no high seas regime right of innocent passage.163 This approach is conceptually consistent

160

161 162

163

1 Theodore Ortolan, Règles Internationales Et Diplomatique De La Mer 145 (4h ed. 1864) (1st ed. 1844). Ortolan writes as follows: On droit ranger sur la même ligne que les rades et les ports les golfes et les baies et tous les enfoncements connus sous d’autres dénominations, lorsque ces enfoncements formés par les terres d’un même Etat, ne dépassant pas en largeur la double portée du canon, ou lorsque l’entrée peut en être gouvernée par l’artillerie, ou qu’elle est défendue naturellement par des îles, par des bancs ou par de roches. Id. at 145. Ortolan also describes the coastal state’s rights in closed coastal waters as follows: La nation maîtresse d’un port ou d’une rade puent, à son gré, les déclarer fermés, ouverts ou francs; c’est-à-dire en permettre ou en défendre l’accès, y soumettre les importations à certain lois fiscales ou les en affranchir; elle peut y assujettir les bâtiments étranges à tels droits, à tels règlements qu’il lui plaît d’établir. En cela, elle exerce son droit de propriété et de souveraineté, sans mettre obstacle aux communications des autres peuples, puis-qu’il ne s’agit que ses propres port et rades. C’est à elle à voir si ces mesures sont nuisibles ou favorable à ses relations, à sa prospérité industrielle et commerciale, à ses intérêts de toute nature. Id. at 141. 1 Richard Wildman, Institutes Of International Law 69–70, 74–75 (1849). Henry Wheaton, Elements Of International Law 280–346 (W. Lawrence ed., 2d ed. 1863). Biographical data in De La Pradelle, supra note 111, at 201–10. Fed. R. Civ. P., Ad. & Mar. Rules, C(2), describes innocent passage for United States municipal law as follows: The right of innocent passage is to be understood fairly literally. ‘Passage’ means movement along the coast or to or from a coastal port, and excludes ‘hovering’, and stopping

254

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

with the common law versus admiralty jurisdiction applied to determine the territorial extent of the common law inter fauces terrae. Essentially the idea is that the application of jurisdiction related to territory proves the presence of territory. This is the same approach used by Selden for the occupation and possession of the high seas and has the weakness of induction and circularity. But, for Wheaton there is a difference, because he understands that large areas of closed coastal waters could be owned by the littoral State of ancient right, even where control from headlands was not possible, while control at the headlands gave a presumption of possession for smaller bays.164 This period suggests acknowledgement that various modes of title acquisition could be asserted over closed coastal waters, and that they all required maintenance through control of foreign navigation. Similarly the presence of foreign commerce and general navigation in coastal waters suggests the presence of a priori high seas regime navigational servitudes for innocent passage established before any littoral State occupation and possession. But the high seas remained a res nullius, and the issue for historic or ancient titles was whether rights of general navigation were present. For a common law conceptual parallel, the littoral State acquired the territorial sea as white acre, and acquired historic waters as black acre. In the second half of the 19th century publicists agreed that “absolute territorial jurisdiction” could be exercised over bays, estuaries and other internal waters, which included the right to control innocent passage.165 H.W. Halleck, a Major-General of the United States Army, is important as the first to identify what would later be called a “historic bay”. In his 1861 work entitled International Law, Halleck references ownership of straits through “immemorial possession” or “prescription”.166 Immemorial possession, of course,

164

165

166

except in an emergency of navigation. ‘Innocent’ means broadly without disturbance, or threat of disturbance, of the peace, order or security of the coastal state. . . . See also Fawcett, supra c. iv, note 138 at 75–76 (1968); Brierly, supra c. iv, note 194, at 237–38. Wheaton, supra note 162, at 320, 326–28. Most exercises of authority outside cannon range are not territorial. Id. at 214, 216 nn. 108, 217. Brierly points out that absolute jurisdiction is not really absolute, it just admits of fewer forms of exceptions. Brierly, supra c. iv, note 194, at 222. See  Marjorie Whiteman, Digest of International Law 14–18, 216, 501–07 (1965) (hereinafter Whiteman). Henry W. Halleck, International Law 134, 171 (San Francisco 1861). Halleck notes that criminal and in rem jurisdiction exist over foreign persons and vessels only in internal waters.

C. Four Hundred Years of Publicists

255

merely reflects lawful title acquired through an unidentified mode, and that again left open the question of acquiescence and the evidence required to prove the title to be lawful. Creasy followed Halleck in 1876 with the First Platform Of International Law, where juridical or legal bays are described as landlocked areas forming part of the territory of the adjacent State and, therefore, subject to its full territorial jurisdiction.167 Bays are subject to that littoral State territorial authority where exclusive jurisdiction, sovereignty, is exercised behind a closing line.168 This idea of a “closing line” is consistent with the idea of a maximum geometric width for common bays which was evolving contemporaneously, and goes to the idea that for all closed coastal waters there must be some seaward limit before the res communis public trust imposed the high seas regime navigational servitude of innocent passage. Nonetheless the modes of acquisition for closed coastal waters continued to be identified, and regardless of prior occupation and possession, Phillimore argues that possession of bays could occur through prescription against high seas navigation.169 It appears that Phillimore was looking for the concept of actual or constructive consent, “acquiescence”, in the absence of which there could be no prescription. But what of the “acquiescence” evidencing immemorial possession, or occupation and possession? The controversy is in the details! In Elements of International Law, first appearing in 1887, George B. Davis writes that the possession of bays with remote headlands is not yet resolved. Further, that the practice of the local State, if equitable and acquiesced in by other nations, establishes the juridical status of the enclosed waters.170 The equitable portion of the Davis position goes to the issue whether there is acquiescence in the sense of “toleration” if based on occupation and possession or immemorial usage, and “consent” if based on prescription. This reasoning of Davis’ is significant because the essence of acquisition is that it is

167 168

169

170

Edward Creasy, First Platform Of International Law 232 (1876). Halleck, supra note 166, at 293. Creasy notes that twice the range of cannon shot is a common bay closing line, but that the “present tendency of writers on the subject is to extend the privilege to much ampler bays.” Creasy, supra note 167, at 23, 327–39. 1 R. Phillimore, Commentaries Upon International Law 250, 284 (3d ed. 1879). Phillimore understood geometrical and prescribed bays. Id. at 284. Biographical materials in Oppenheim, supra c. iv, note 103, at 85. George B. Davis, The Elements Of International Law 45 [1st ed. 1887] (3d ed. 1908). General acceptance of six miles is discussed in David D. Field, Outlines Of An International Code 5 (2d ed. 1876); and Lawrence, infra note 171, at 140.

256

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

equitable, or is without apparent inequities. This applies equitable principles to the mode of acquisition, and does so in a confirmatory manner, that is, as evidence of the validity of the acquisition. The only reason for doing so would be to assure that any right of innocent passage established under the evolving res communis public trust would not be wrongfully terminated, but does not confirm that a right of innocent passage is present to be terminated. Davis presents a major step forward in the concept of historic waters acquisition for large bays, and is consistent with other authors of the time who acknowledge that large bays could be owned by the littoral State, such as Delaware and Chesapeake Bays in the United States, the Bay of Fundy and Conception Bay in Canada, and the Zuyder Zee in the Netherlands.171 This shows the developing distinction in the minds of publicists between common bays and the fewer large bays and closed coastal waters areas such as Long Island Sound. That geographical size is where the idea of historic titles as defective or even illegal began to form, but in doing so that idea misses the point that common bays are such only because of agreement – the agreement is that they are occupied and possessed upon a presumption, and otherwise necessary evidence of exclusion of any foreign innocent passage is waived. Large bays and closed coastal waters simply were not within the scope of presumption or common agreement. The 20th century publicists writing between 1900 and 1930 pushed the idea of title acquisition by historic consolidation. William E. Hall writes in his A Treatise On International Law that littoral States have the legal power to acquire absolute ownership peacefully over territory, meaning land and contained waters, “by any means not inconsistent with the rights of other States”, and the means understood are occupation and possession as well as prescription.172 Hall indicates that effective control yields occupation and it must be continuous to hold title, which is consistent with the concept of 171

172

For example see T____ Lawrence, the Principles of International Law 140–41 (R. Winfield ed., 7th ed. 1930) (1st ed. 1884). Lawrence captures the issue of closed coastal waters writing as follows: The claims of states to large tracts of marginal waters – claims which are themselves relics of yet wider claims to dominion over oceans and seas – increase the difficulty of the question. Id. at 41. See _____ Davis, supra note 170, at 58; and Maine, supra c. ii, note 145, at 80–81 (2d ed. 1884). William E. Hall, A Treatise On International Law 52, 70, 125, 143, 195–97 (A. Higgins ed., 8th ed. 1924).

C. Four Hundred Years of Publicists

257

consolidation.173 An actual theory of historic waters was framed in 1901 by Hannis Taylor in A Treatise On International Law based on the view that it is an established practice for littoral States to acquire ownership of large bays while all States hold a presumed right to use such waters.174 It is elimination of the presumed right in all States which is the trick, and raises the issue of “acquiescence”. In contrast to Taylor’s approach Frederick E. Smith (Lord Birkenhead) wrote in 1903 that a historic bay could have been occupied as a res nullius and that ownership would continue into the present with appropriate acts to maintain the ownership (consolidation). That is the heart of historic title acquisition.175 Professor John Westlake supports Smith’s position, and in the 1904 edition of International Law Westlake describes the now familiar two categories of bays, those presumed (geographic and geometrical) and those demonstrable by “immemorial usage” (consolidation). Westlake writes that “only in the case of a true gulf ” could “the possibility of occupation be so real as to furnish a valid ground for the assumption of sovereignty”176 (enclosures by land, which is closed coastal waters). Professor Lassa Oppenheim, writing in the pre-1910 edition of International Law A Treatise, also agrees that there are two categories of bays and that the larger bays such as Conception, Delaware and Chesapeake Bays have been rendered subject to littoral State sovereignty by State practice,177 which means their acquisition is not illegal but leaves unanswered how such title is achieved and by what evidence. Chesapeake and Delaware Bays also drew the attention of George C. Wilson, a Brown University professor, and George F. Tucker, Reporter to the Supreme Judicial Court of Massachusetts, in their 1910 treatise, International Law, not as historic bays but as bays established on “special grounds”.178 This “special grounds” standard points to the failed “vital bays” concept then being advanced on behalf of States claiming large bays but without historic consolidation.179 A more serious 1913 effort to secure a definition of historic bays is made in La

173 174 175

176 177 178 179

Id., at 125–27. Hannis Taylor, A Treatise On International Law 277–78 (1901). Frederick E. Smith (Lord Birkenhead), International Law 61–62, 65 (2d ed. 1903). John Westlake,  International Law 187 (1904). Oppenheim, supra c. i, note 10, 246–47, 249 (1905). George G. Wilson & George Fox Tucker, International Law 117 (5th ed. 1910). Vital bays are discussed at Leo Bouchez, supra note 13, at 277–78.

258

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

Mer Territoriale where Arnold C. Raestad writes that bays as well as waters enclosed by a string of fringing islands could be held as internal waters by the littoral State when consolidated through occupation and possession and maintained through continuous usage.180 This of course is fair enough, since Long Island is a “fringing island” which contains waters acquired by occupation and possession derived from an inchoate title established by an early 17th century colonial charter. The point is that title over “enclosed” waters, not simply large or uncommon bays, was beginning to be recognized for consideration in the historic titles debate. Frederick Smith (Lord Birkenhead) came back to the discussion to offer valuable assistance in his 1927 International Law, therein supplying the “reasonable man” approach to historic bays which centered on the concept of long usage and ignored acquiescence as a requirement.181 Confusion about whether acquiescence is an element for historic title acquisition occurred because publicists began to think of such tittles as not being within the closing lines agreement or State practice for common bays. The point missed until the later 20th century is that historic title is not a mode of acquisition, but a process of consolidation for the traditional modes of acquisition. This is apparent in Philip C. Jessup’s 1927 book, The Law Of Territorial Waters And Maritime Jurisdiction. Jessup served as the United States judge on the Permanent Court of International Justice (PCIJ), and as a professor of law at Columbia University. He addresses historic title as based on “special circumstances”, which usually, though not always, arise through acquisition by prescription. The “not always” is critical, so that rights based on occupation and possession and of immemorial usage were also within the ambit of Jessup’s special circumstances concept.182 Special circumstances for Jessup are a devia-

180

181 182

Arnold Raestad, La Mer Territoriale 171–72 (1913). Raestad writes as follows: Quant aux baies, y compris embouchures des grands fleuves, et au fiords ainsi qu’aux parties de la mer enfermées par des îles et des îlots (skjaergaarden), c’est une question d’historie de savoir jusqu’a à quelle mesures ils auront été occupés par l’état riverain: ca il s’agit là vraiment de parcelles de la mer faisant partie intégrante du corps de l’Etat. Id. at 171. Smith, supra note 175, at 105. Philip Jessup, The Law Of International Waters And Maritime Jurisdiction 395 (1927). Jessup writes the following: Unlike territorial waters in general, it is not believed to be possible to lay down a general rule by which one may determine in all cases whether a particular gulf or bay or other

C. Four Hundred Years of Publicists

259

tion from the rule, but he failed to note that deviation from the rule depends on agreement as to the rule! The better approach is supplied by Amos S. Hershey, a professor at Indiana University, who attempted a broad approach to historic title and would exclude acquisitions of the more recent past based on prescription (rather the reverse approach to the 1962 Secretariat Study). Hershey sets out a strict test in his 1927 The Essentials of International Public Law and Organization, where he writes that the only basis for historic title is “immemorial custom”.183 Antonio Bustamante Y’Sirven, also a judge on the PCIJ, and a professor of law at the University of Havana, writes in his The Territorial Sea that the littoral State must intend to own and possess the area, and act upon that intention by exercising paramount authority to control all usage of the area.184 Y’Servin did not see acquiescence as an element of acquisition for a historic title – it is evidence.185 Y’Servin is right on point. The point is that the acquisition mode employed determines the acquiescence evidence to be required by affected States sufficient to confirm the achievement of title. Acquiesence is evidence, not an element, of title. Between 1931 and 1958 several noteworthy perceptions were brought to the historic waters debate. D.H.N. Johnson, a London University professor, offers a controversial position in a 1950 British Yearbook of International Law article where he attempts to merge the concept of “immemorial use”

body of water which forms an indentation in the coast is to be considered in whole or in part a portion of the territory of the state. *

183

184 185

*

*

[I]n a multitude of instances the rights of a particular state in regard to a given body of water have been determined by special considerations and the title of the state to such a body of water rests, therefore, not upon any general rule of intentional law, but upon the rights which are usually of a prescriptive nature. Id. Baty also saw the title to Delaware and Chesapeake Bays as an “exceptional prescription” based on a relic of a prior age. Thomas Baty, The Canons Of International Law 76–78 (1930). Amoss Hershey, The Essentials Of International Public Law An Organization 301 (2d ed. 1927). Over-large bays containing inland waters seem to have the “sanction of the law of Nations, provided they are based on immemorial custom.” Id. Antonio S. Bustamante Y Sirven, The Territorial Sea 100 (1930). Id. at 99–100. See Iain MacGibbon, Some Observations On The Part Of Protest In International Law, 30 Brit. Y.B. Int’l L. 293 (1954), for a discussion of the problems of formal acquiescence.

260

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

or “immemorial possession” with that of prescription, which Johnson labels “acquisitive prescription”.186 Ian Brownlie, an Oxford professor of particular renown, disagrees with the utility of this merger and, likewise, Westlake who distinguishes “immemorial possession” from “true prescription” because it does not involve the transfer of a right with actual or constructive consent, which consent is more than simple absence of protest.187 Johnson restricts the acquisition of historic title to a “prescriptive” basis because, whereas international law has laid down the system for delimiting the maritime belt including the measurement of bays, any deviation would usurp the rights of other States.188 This is of course an assumed conclusion and does not address title established consistently with inter-temporal law for occupation and possession, nor titles based on immemorial possession as established and consolidated before the 1800s. Also, publicists writing before Johnson do not share his enthusiasm for prescriptive historic titles. Gilbert C. Gidel, a professor at the University of Paris, writes in his 1934 Le Droit International Public de la Mer that historic title is acquired through the exercise of control over the use of the water, soil and sub-soil of the claimed area. Gidel is consistent with Y’Sirven and Smith (Lord Birkenhead), especially because no requirement of acquiescence is listed, nor is acquisition limited to any one mode.189 In 1945 Charles C. Hyde, a professor at Columbia University and former Legal Adviser to the United States Department of State, wrote in International Law Chiefly As Interpreted And Applied By The United States that historic bays are ordinarily contained by land in such a way as to cause them to

186

187

188

189

D.H.N. Johnson, Acquisitive Prescription In International Law, 27 Brit. Y.B. Int’l L. 332, 334–35 (1950). Johnson attempts to distinguish “acquisitive prescription” from “extinctive prescription”. Ian Brownlie, Principles Of Public International Law 143–49 (1966); Westlake, supra note 176, at 92–93. Johnson, supra note 186, at 322, 349. Johnson writes as follows: Only through prescription – a form of acquiring territory which, as we have seen, requires the acquiescence of other states – and not though occupation can a state establish a claim to a maritime belt wider than that allowed by international law. Only through prescription – and therefore the acquiescence of other states – can a state establish a claim to a system of delimiting its maritime belt different from that laid down by international law. Similarly, only through prescription – and therefore with the acquiescence of other states – can a state establish a claim to ‘historic bays’ or ‘historic waters’ generally. Id. at 349. Gilbert Gidel,  Le Droit International Public De La Mer 625 (1934).

C. Four Hundred Years of Publicists

261

be of little consequence to navigation and communication interests of other States.190 That is an important point because res nullius areas not used for navigation by other States would not have the res communis beneficial interest established for high seas regime innocent passage. Waters not subject to use by other States, therefore, could be acquired by occupation and possession without prescription. This could be adduced by factual examination as to the presence of foreign commerce and general navigation, as well as the intent of the littoral State to occupy and possess the closed water as sovereign. Again this points to use in commerce as the key to navigable waters res communis status and the embedding of public navigation rights. Along this line of thought George Schwarzenberger, a barrister of Gray’s Inn, sees historic title as based on the immemorial exercise of rights over coastal water areas regardless of width in his 1947 A Manual Of International Law, and does not indicate a requirement of acquiescence.191 Two articles by Sir Gerald Fitzmaurice appearing in the British Year Book of International Law discuss the ICJ’s development of the laws of historic waters. Fitzmaurice was an ICJ judge and his points are, (1) that inter-temporal law provides the sole standards to evaluate the critical date validity of a historic acquisition, (2) that current validity of a historically acquired right requires upkeep in accord with changing legal requirements, and (3) that a historic right is prescriptive because it requires normalization of an exceptional situation, but the acquiescence required is unclear under the North Sea Fisheries Case.192 The point of historic titles being exceptions to the law parallels the 1962 Secretariat Memorandum and is not helpful because an exception to the law could not produce an acceptable and lawful title – rather the inter-temporal validity of an acquisition confirms its legality rather than its exception or defect. The broader theory of historic title, almost incidentally mentioned in the North Sea Fisheries Case, has been developed by Charles deVisscher, a

190

191 192

Charles C. Hyde, International Law Chiefly As Interpreted And Applied By The United States 468–69 (1945). Hyde does not see historic bays as exceptions to international law. Id. at 469. Georg Schwarzenberger, A Manual Of International Law 52 (1947). Gerald Fitzmaurice, The Law And Procedure Of The International Court Of Justice, 1951– 1954: General Principles And Sources Of Law, in 30 Brit. L. B. Int’l L. 6, 27, 32–33, 39 (1953). Gerald Fitzmaurice, The Law And Procedure Of The International Court Of Justice, 1951–1954: Points Of Substantive Law. – I, in 34 Brit. L. B. Int’l L. 381–82, 400 (1954).

262

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

professor at the University of Louvain, a judge and then president of the PCIJ, and later a judge of the ICJ at the time of the North Sea Fisheries Case decision in 1951. DeVisscher writes in his 1957 Theory And Reality In International Law that the basis for acceptance of “consolidation of historic title” is the stability of the existing order of things, quieta non movere.193 DeVisscher sees acquiescence as essential, not just in the form of consent, but at a minimum it must be “a sufficiently prolonged absence of opposition . . . in maritime waters, on the part of the generality of States.”194 Historic title is seen by DeVisscher as almost a form of local custom195 which means a historically consolidated usage. Likewise Maurice Bourquin writes a 1952 article entitled “Les Baies Historiques”, presenting what must be considered the modern theory of historic waters as a title acquired in the past, through long usage, and maintained in the present regardless that the legal norms for acquiring such title may have changed in the interim. This, it is submitted, is again the process of historic consolidation, and like Y’Sirven, Smith (Lord Birkenhead) and Gidel, Bourquin does not limit historic titles to any one mode of acquisition. The essential elements for Bourquin are continuous usage and maintenance of the right after acquisition.196 Iain C. MacGibbon, professor of law at the University of Edinburgh, wrote a 1958 article entitled “Customary International Law and Acquiescence”, which classifies historic rights and prescriptive rights acquired over a considerable time as specific customary rights which arise with tacit acquiescence, toleration, by all States. When such usage is accepted as the controlling condition, then it has been consolidated and it becomes a customary right.197 Acquiescence for

193

194

195 196

197

Charles DeVisscher, Theory and Reality In Public International Law 200–01 (P. Corbett trans. 1957). Id., at 200–01. Also see Charles DeVisscher, Problèmes De Confins En Droit International Public 134 (1969), where he writes as follows: Le long usage, qui est l’élément essential de la consolidation historique, n’est tenu pour établi que si, au fil des années, il s’est traduit pas des actes d’appropriation que ne peuvent s’interpréter que comme des actes de souveraineté. Les simples prétentions a l’existence d’un intérêt vital’, quand elles ne sont accompagnées d’un exercice effectif, n’y suffisant pas. C’est l’existence internationalement reconnue d’un tel intérêt qui a fait reconnaître a certaines baies un caractère historique. DeVisscher, supra note 193, at 215. M____ Bourquin, Les Baies Historiques, in Mélanges Georges Sauser-Hall 37, 38, 42–45 (1952). Iain MacGibbon, Customary International Law And Acquiescence, 33 Brit. Y. B. Int’l L. 115, 120–22 (1958).

C. Four Hundred Years of Publicists

263

MacGibbon is evidence of the custom having formed and not a requirement for its formation – indeed with a historic title, acquiescence may be the only evidence of consolidation, and consolidation is the key. Myres McDougal, professor of law at Yale University, and William T. Burke, Washington State University, authors of The Public Order Of The Oceans A Contemporary International Law Of The Sea, reiterate the absence of innocent passage and long time interest of inhabitants as among six of the acknowledged characteristics for closed coastal waters to be claimed as internal by the adjacent littoral State.198 Leo J. Bouchez addresses the historic waters problem in his seminal 1960 monograph, The Regime Of Bays In International Law where he defines historic title over coastal waters in a way which highlights the definitional difficulty, as follows: Historic waters are waters over which the littoral State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercise sovereign rights with the acquiescence of the community of states.199

This “contrary” gets to the point because the meaning is not that historic bays are “exceptions”, “illegal” or “defective” as to international law, but rather as to the “generally applicable rules” which are matters of ongoing definition and agreement – apples and oranges. Thus, following Bouchez, Hershey has pointed out that the assertion of historic claims has been the practice of States, which as State practice is customary law and thereby disposes of arguments that historic titles are an exception to applicable law.200 Acquiescence is the continuing unresolved issue, about which the confusion of publicists has been injected into the decisions of the ICJ (Norwegian Fisheries Case) and of the United States Supreme Court (United States v. Alaska).201

198

199 200

201

Myres MacDougal & William Burke, the Public Order Of the Oceans A Contemporary International Law of the Sea 329, 340 (1962) And see Fitzmaurice, supra note 192, at 381–82, 400 (1954). Bouchez, supra note 13 at 281 (1963). Hershey, supra note 183, at 302. See also M____ Strohl, The International Law Of Bays 269 (1963). No agreement on historic titles definition. See Bouchez, supra note 13, at 237, 255. “Acquiescence” is an issue of fact. Where there is acquiescence in fact, there is no disagreement among states. Such absence enables consolidation, which reflects recognition of the particular right acquired. See Bourquin, supra note 832 at 45. Hence, acquiescence is the factual method to demonstrate the acquisition of the right, in the case of occupation it is

264

Chapter V

Parallels – Historic Waters, Cases, Conferences & Publicists

DeVisscher noted that acquiescence is not an element of historic title, but is a requirement only for titles based on prescription,202 as confirmed by Y’Servin who warned that acquiescence viewed as an element of historic titles is a potential source of confusion.203 Malcolm Evans has perhaps best described the situation of historic titles as “a further exception to the ‘normal’ rule’”204 where the “convention regime is inapplicable to ‘historic bays’, these being part of the littoral State as a part of its internal waters on the basis of a long-standing claim, assertion of jurisdiction, and acquiescence by others”.205 That, it is submitted, is the irony of juridical bays: Juridical bays exist by conventional agreement. Rather than historic waters, it is juridical bays which are the exception to the general rules for title acquisition with application of equitable principles for preservation of high seas regime navigational servitudes and demarcation of

202

203 204

205

simply the absence of objection to the acts of occupation, and in the case of immemorial possession it is in the exercise of the right without objection. See generally Y.Z. Blum, Historic Titles In International Law 99–102 (1965). See DeVisscher, supra note 193, at 200–01. Bouchez acknowledge that occupation and possession produced a title which is not contrary to law. Bouchez, supra note 13, at 257–58. See Bustamante Y Sirven supra note 184, at 99–110. Malcolm D. Evans, The Law of the Sea, in The Law of The Sea 623, 627 (Malcolm D. Evans ed., 2003). Id. at 627–28, 949. See John O’Brien’s chapter in Evans, where O’Brien writes: The criteria for existence of an historic bay have been examined on a number of occasions by the United States Supreme Court and it would seem that the criteria are: (i) the actual exercise over the bay for a considerable period of time; (ii) that such an exercise of sovereignty must have been open, effective and continuous, (iii) during the period of the exercise of sovereignty must have been acquiesced in by other states; (iv) there should be evidence of the exclusion of foreign vessels and control of navigation. These requirements were impliedly accepted by the International Court of Justice in the Land, Island and Maritime Frontier Case [1992 I.C.J. 351]. Id. at 929. The Supreme Court has modified the fourth element in its Mississippi Sound Case. See infra p. 275. Compare the similarity between the foregoing elements and the 1676 requirements of Rachel for a customary law to develop. Supra note 121. With respect to bays included as internal waters, Churchill and Lowe point out that, “[i]nternational law has always recognized that bays have a close connection with the land and that it is more appropriate that they should be considered as internal waters than as territorial sea.” Robin Churchill & A.V. Lowe, The Law Of The Sea 41 (1999). The connection is more than geography, though geography may be the reason for the navigational servitudes being applied to bays exclusively through municipal law aspects. Cf. id.

C. Four Hundred Years of Publicists

265

the boundary between public trusts for protection and preservation of the navigational freedom principle. *

*

*

Overall, both conventional delimitations for juridical geographic bays and historic waters requirements for titles to closed coastal waters are an integral part of the high seas regime. The point is one of perspective, so that rather than viewing the acquisition of inland waters as an extension of littoral state sovereignty, the process should be viewed as one to determine landward extension of the high seas regime navigational servitudes. It is not municipal law which governs this delimitation process, but rather law of the sea, and as such the delimitation perspective is within the territorial sea definition crucible. Notably the process has been discussed in terms of innocent general navigation and commercial use, but what appears from the foregoing is that the actual delimitation process of inland waters from the territorial sea is conducted pursuant to high seas regime rules as an additional navigation servitude. At stake are the protection and preservation of the common navigational freedom principle separating municipal law territorial interests and protective jurisdictions of the littoral State from impacting both the high seas regime res communis public trust, and the complex territorial interests and competing jurisdictions of neighboring littoral States.

Chapter VI Navigational Servitudes: Paradigm – Commerce In The Balance The interdependent beneficial interests of the common navigational freedom principle constitute the essence of a resulting high seas regime reciprocal public trust, the res communis. Navigation and its derivative maritime uses of oceans and coastal waters cannot be held in an individual capacity by any one State or people, with the simple definitional consequence that they must be held communally, each for all. Evolution of those beneficial interests arose through the use of navigable waters for commerce, eventually forming high seas regime servitudes protecting and preserving the various aspects of navigational usage. This public right in the form of Royal Prerogative jus publicum navigation and fishing also arose for Englishmen and has been succeeded to by the American People; likewise held for them in public trust. Littoral States are municipal law parallel trustees of the common navigational freedom principle within their respective jurisdictions, and as members of the Community of States are reciprocal trustees under their respective high seas regime communal responsibility for protection and preservation of the res communis. The United States has acted to undertake the parallel trustee role both in regard to marginal sea exercises of protective jurisdiction, as well as to administer the Royal Prerogative jus publicum public rights to fishing and navigation under the Commerce Clause of the 1789 United States Constitution.

A. Marginal Sea Commerce and United States Practice Beginning in 1947, and continuing until 1985, the United States engaged in a series of territorial sea litigations, known as the “tidelands cases”, with several of its member states. The initial phase of these disputes addressed location of the juridical “coastline”, which the United States Supreme Court has

268

Chapter VI

Paradigm – Commerce In The Balance

indicated is to be determined under the provisions of the 1958 Convention on the Territorial Sea and Contiguous Zone; provisions which, as ratified by the United States Senate, have the status of law under the United States Constitution.1 Importantly, while the treaty power of the Federal Government has been employed to enter into the Convention, it is the federal commerce power which is applied under the substance of the Convention both for delimitations of navigational freedom within the high seas regime servitudes, and for determination of historic waters and the implementation there of the municipal servitudes for navigational freedom. This is the municipal law side of the equation as evolved from the territorial sea concept crucible, but the navigational freedom principle remains common. The opening or first phase of the tidelands litigation in 1947 determined that the littoral states neither held nor hold a proprietary rights to the seabed and subsoil below low-water mark. That ownership belongs to the nation as a whole. As a result Congress adopted the 1953 Submerged Lands Act granting proprietary and governmental rights to the littoral states within three geographical miles of the juridical coastline.2 This Submerged Lands Act grant, coupled with the baseline delimitation effects of the 1958 Convention on the Territorial Sea and Contiguous Zone, provided sufficient reasons for initiation of the second litigation phase. The juridical coastline being the territorial sea baseline, any possible seaward movement of that baseline (coastline) became a potential source for net seaward internal waters expansion for the littoral states as well as for their Submerged Lands Act grants on the continental shelf. Geometrical baseline delimitations as codified in the Convention on the Territorial Sea and Contiguous Zone largely curtailed such state ambitions but did not foreclose state efforts to establish historic waters claims under United States municipal law. By proving historic title over

1 2

U.S. Const. art. II §2, art. VI. 43 U.S.C. § 1311(a) (2000). The statutory reference to “coast line” is at 43 U.S.C. § 1312 (2000). The statutory definition of “coast line” also appears in 43 U.S.C. § 1301(c) (2000), which reads as follows: The term ‘coast line’ means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. . . . See also G. Swarth, “Offshore Boundary Problems”, 6 Lands & Nat’l Res. D. J. 405, passim (U.S. Dept. Justice, Nov. 1968); and George Swarth, “Offshore Submerged Lands, An Historic Synopsis” in id. at 109 (April, 1968). Swarth was formerly Chief, Marine Resources Section, Lands & Natural Resources Division, U.S. Department of Justice.

A. Marginal Sea Commerce and United States Practice

269

closed coastal waters littoral member states could force the United States to enclose additional maritime areas, and in doing so effect seaward movement of the territorial sea outer boundary as measured from that adjusted territorial sea baseline. The potential gains both of internal waters and of territorial sea movement gave impetus to these “tidelands” litigations, especially as they pertained to large closed coastal water areas alleged to contain historic waters – read living and non-living natural resources, especially hydrocarbons. The exercise of United States authority to regulate commerce within its navigable waters provides the evidence necessary to show inclusion of such waters as inland, when applied exclusive of high seas regime navigational servitudes. Consequently the determination of historic waters sea boundaries as territorial baseline segments became the focal point to test whether the territorial sea definition crucible was achieving the appropriate balance of interests consistent with the common navigational freedom principle. As a baseline segment, historic waters affected the seaward measurement of the outer boundaries for the territorial sea, contiguous zone, customs zones, exclusive economic zone (EEZ) and the continental shelf, with consequences for the high seas regime servitudes as well as for extended neighboring littoral jurisdictions. It is these effects of baseline delimitation according to high seas regime requirements which give historic waters context for the res communis public trust navigational servitudes. This is why the United States applies international law in delimitation not only of its territorial sea and maritime zones, but also in litigations with and among its member states which could affect those national delimitations and thereby United States compliance with the high seas regime navigational servitudes.3 The 1947 Supreme Court decision in United States v. California,4 is seminal. The issue there is whether the littoral member states originally held the proprietary rights to the seabed and subsoil of the territorial sea and the continental shelf. California’s position was that it held those rights

3

4

Federal, state and international law are applied “as required” to suits between the states, which has produced a body of decisions suggesting an interstate common law. Connecticut v. Massachusetts, 282 U.S. 660, 670, 671 (1931); Kansas v. Colorado, 206 U.S. 46, 96 (1907). See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Colorado v. Kansas, 320 U.S. 383, 391, 392 (1943); New Jersey v. New York, 283 U.S. 336, 346 (1937); New York v. Illinois, 274 U.S. 488, 489 (1927). Nonetheless ultimate navigable waters authority remains with the Federal Government. Kansas v. Colorado, 206 U.S. 46, 85 (1907). 332 U.S. 19 (1947).

270

Chapter VI

Paradigm – Commerce In The Balance

under the “equal footing” doctrine of the United States Constitution because the original 13 states held and carried marginal sea and seabed rights into statehood in 1776. The 1947 California decision rejects this argument. The Supreme Court found that the original 13 colonies do not hold proprietary rights to the seabed and subsoil and that navigational rights over open coastal waters are a matter of international law, so that national rights are “paramount” to states’ rights.5 Thus the Supreme Court found that the original 13 colonies were never separate nations, and that any rights asserted in North American coastal waters during the 17th and 18th centuries were based upon the national sovereign status of Great Britain. California then argued that, unlike the original 13 colonies, California and Texas had both been independent sovereigns. However because of the constitutional “equal footing” doctrine, the Supreme Court found that when California entered the Union it abandoned any such national proprietary rights with the relinquishment of national status.6 The Supreme Court went on to note that the powers of national defense and conduct of foreign affairs delegated under the Constitution vested the Federal Government with the exclusive authority to set national boundaries; consequently the state governments had no power to unilaterally enclose portions of the territorial sea or high seas as inland waters.7 This paramount authority of the Federal Government was confirmed later in two 1950 decisions, United States v. Louisiana8 and United States v.

5

6

7 8

Id. at 31, 34–35. All states enter the Union as equal sovereigns, on an “equal footing”. United States v. Maine, et al., 420 U.S. 515 (1975). California, 332 U.S. at 33–34, 35, 37, 440. The “equal footing” doctrine is set out in Sterns v. Minnesota ex rel. Mar, 179 U.S. 223, 245 (1900), and discussed in the context of coastal water rights in United States v. Texas, 339 U.S. 707, 715–16. Governmental and proprietary interests over inland navigable waters and their beds were not transferred to the United States and are held by the several states in their sovereign capacity. Cf. Pollard v. Hagan, 3 How. 212, 224 (1845). The Supreme Court has ruled that when a state enters the Union it receives the governmental and proprietary rights over navigable waters and their submerged subsoil as incident to their municipal sovereignty. Likewise, the national sovereignty of the United States vests those governmental and proprietary rights in the Federal Government seaward of inland waters. Consequently the United States’ rights over coastal waters are paramount to any police power interests of the coastal states in the exploration for and exploitation of resources within that area. United States v. Texas, 339 U.S. 707, 717 (1950). California, 332 U.S. at 34, 35. 339 U.S. 699 (1950).

A. Marginal Sea Commerce and United States Practice

271

Texas,9 which led to the enactment in 1953 of the Submerged Lands Act enabling littoral states to enjoy the United States’ proprietary rights of the seabed, subsoil and resources of the water column within the territorial sea adjacent to their shores.10 That delegation of proprietary rights was upheld in the 1953 Alabama v. Texas case as within the power of Congress over federal property.11 Then, in 1960, the Supreme Court rendered United States v. Florida12 and United States v. Louisiana, et al.,13 confirming the validity of a peculiar provision of the Submerged Lands Act which granted territorial sea and continental shelf rights to the seabed, and subsoil out to three marine leagues (nine geographical miles) for states which could demonstrate their historic enjoyment of such benefits within that broader area. At the time the United States claimed a one-marine-league or three-geographical-mile territorial sea. Here Florida benefited from its congressionally approved postCivil War (1860–1865) state constitution which specified a three-marineleague boundary in the Gulf of Mexico. Likewise Texas was able to establish a historic three-marine-league territorial sea as a former Spanish colony and as an independent sovereign nation before Texas joined the Union in 1848.14 The importance of the 1960 Florida and 1960 Louisiana decisions is that, while the Executive Branch opposed any proprietary interests vesting in those states beyond the territorial sea, the Supreme Court has been willing to find historic rights when the evidence is adduced. The effect is that in the Gulf of Mexico Texas and Florida enjoy these continental shelf and water column benefits within their Submerged Lands Act grants to the extent available to the United States under international law of the sea. California’s second effort to acquire proprietary rights in the continental shelf seaward of the territorial sea outer boundary was raised on the basis of California’s alleged historic use of straight baselines. This failed in the 1965 California decision where California’s arguments for the presence of historic straight baselines in San Pedro and Santa Monica Bays were rejected by the Supreme Court, noting that it was within the defense15 and foreign

9

339 U.S. 707 (1950). 43 U.S.C. §§ 1301, et seq. (2000). 11 347 U.S. 727 (1953). See also Rhode Island v. Louisiana, 347, 272, 273 (1953). 12 363 U.S. 121, 125 (1960). 13 363 U.S. 1, 34–35, 51 (1960). 14 Compare United States v. Louisiana (Texas), 389 U.S. 155, 160–61 (1967). 15 United States Constitution, Art. I, sec. 8; Art. II, sec. 2. See also infra, note 863. 10

272

Chapter VI

Paradigm – Commerce In The Balance

affairs16 powers of the Executive Branch under the Constitution to decide whether to use straight baselines and that, while a denial of historic use of such straight baselines by the Executive Branch is not conclusive, contrary evidence would be required which is “clear beyond doubt”.17 The contrary evidence would have to be in regard to control of commercial activities. Notably the 1965 California decision points out that such power to expand national boundaries does not include the power to constrict those boundaries, so that an established historic straight baseline could not be abandoned by the Executive Branch without Congressional action once established. Such abandonment would be within the constitutionally reserved authority of Congress under its power to dispose of public property.18 Then in the 1973 United States v. Alaska decision the Supreme Court made clear that, “[t]he adequacy of a claim to historic title, even in a dispute between a State and the United States, is measured as an international, rather than a purely domestic claim.”19 That is confirmation of the dominant 16 17

18 19

United States Constitution, Art. II, sec. 2. See infra, note 863. United States v. California, 381 U.S. 139, 168 (1965). Regarding a disclaimer the Supreme Court writes as follows: The United States disclaims that any of the disputed areas are historic inland waters. We are reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic waters evidence was clear beyond doubt. Id. at 79. Cf. 381 U.S. at 167–68. 422 U.S. 184, 196–97, 202–03 (1975). Alaska effectively overrules United States v. The Kodiak, 53 F. 126, 128 (1892) regarding the juridical status of Cook Inlet waters; and see United States v. Louisiana, 394 U.S. 11, 77–78 (1969). The Supreme Court has recently rendered Sosa v. Alvarez-Machain, 542 U.S. ___ (2004); 159 L. Ed. 718, 752 (2004), writing, in pertinent part, as follows: Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. See, e.g., Sabatino, 376 U.S. at 423 (‘[I]t is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances’); The Paquette Habana, 175 U.S., at 700 (‘International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination’); The Nereide, 9 Cranch 388, 423 (1815) (Marshall, C.J.) (‘[T]he Court is bound by the law of nations which is a part of the law of the land’); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) (recognizing that ‘international disputes implicating . . . our relations with foreign nations’ are one of the ‘narrow areas’

A. Marginal Sea Commerce and United States Practice

273

role for the res communis public trust in application of the high seas regime navigational servitudes for marginal sea area delimitations, especially territorial sea baselines. Intriguingly this Supreme Court determination in essence finds that the actions of constitutive governments and political subdivisions of the United States constitute actions of the United States if known by the Federal Government and no alternative or corrective action is taken by the dominant political authority. The evidentiary test, the standard of proof, for such littoral state claims in the face of a federal disclaimer would remain “clear beyond doubt”, but the elements of the acquisition mode to be applied would be those of international law; that is, occupation and possession, immemorial possession or prescription. The territorial sea area again is the interface and focal point for balancing between municipal and high seas regime navigational servitudes. It further is evidence of the navigational freedom principle as common both to international law and to United States municipal law, and identifies the crucible territorial sea in an application paradigm – it is the respective res communis and jus publicum public trust responsibilities in the balance, not the navigational freedom principle. The 1965 California decision, requires the traditional assertion and maintenance of dominion “with the acquiescence of foreign nations”20 to establish inclusion of coastal waters as historic internal waters of the United States. The assertion and maintenance of dominion over such coastal waters are to be established through governmental navigational servitudes applied in exclusion of high seas regime navigational servitudes, particularly innocent passage. For its historic waters claims to San Pedro and Santa Monica Bays, California had attempted to show compliance with the 1962 Secretariat Study by submitting evidence of its state legislation asserting jurisdiction over gambling operations and other criminal activities on vessels permanently anchored in these two “bays” more than three geographical miles from shore. That is, California argued it could not have exercised such jurisdiction in that maritime area without historic straight baselines having constituted territorial sea baseline segments and, thus, enclosed the bays within California’s territorial sea jurisdiction – somewhat reminiscent of Selden’s arguments for ownership of the British Seas. Seaward movement

20

in which ‘federal common law’ continues to exist). It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals. 381 U.S. 139, 164–65 172 (1965).

274

Chapter VI

Paradigm – Commerce In The Balance

of the territorial sea baseline using such a historic baseline segment would have enclosed portions of the marginal sea as internal waters and extended seaward the outer boundary of the territorial sea, as California argued. California adduced only one law enforcement event, and that was in 1939 against an American vessel – not a foreign vessel. The late date discounts any evidentiary value of the enforcement action for the presence of historic title through “continuous assertion of dominion”. Moreover, there had been no “further active and continuous assertion of dominion over the waters” since adoption of the 1821 state constitution even if either San Pedro and Santa Monica Bay waters were a “bay” under the pertinent provisions of that document.21 Other evidence included dismissal by a United States District Court to a California state court of a criminal prosecution for “piratical activities” on a gambling ship located three geographical miles from shore in the disputed coastal waters. The Supreme Court writes that it is difficult to “see this dismissal as an assertion of dominion.”22 Criminal jurisdiction over pirates is not based on territory and, perhaps more to the point, expansion of the national boundaries could not be read into such a dismissal.23 It appears that California attempted to reach and control offshore commercial activities – gambling – by characterizing them as piratical, and later attempted to bootstrap this extended protective jurisdiction into a territorial claim for criminal jurisdiction; inductive reasoning again, as well as the inverse

21 22

23

1962 Secretariat Study, supra c. v, note 106. See California 1965, 381 U.S. at 172, 174. The Santa Monica Bay enforcement action is People v. Stralla, 96 Ca.2d 941, 948 (1939). Control of an American vessel under state pollution laws in Santa Monica Bay is at Ocean Industries, Inc. v. Greene, 15 F.2d 862 (1926), was rejected by Special Master Davis (Nov. 10, 1952), as were those for Crescent City and San Luis Obispo Bays. See 4 Whiteman 242–48 (1965). The California claims to these bays are now moot under the Convention on the Territorial Sea and Contiguous Zone because they qualify as geometrical bays. For a discussion of the ten-nautical-mile closing line applied by the United States before that 1958 Convention was ratified see United States v. Alaska, 236 F. Supp. 389 (1964). See California 1965, 381 U.S. at 174. The case relied upon by California is United States v. Carillo, 13 F. Supp. 121 (1935). Another case cited by California and often relied upon to show territoriality is Borax Consolidated v. City of Los Angeles, 296 U.S. 10 (1935). However, Borax does not deal with the waters or submerged lands within the bay, but was a dispute as to the “foreshore” or “tidelands” between high and low water marks, which is admittedly property of the adjacent coastal state. Id. at 15, 22–3. Cf. Pollard v. Hagan, 3 How. 212, 228–30 (1845).

A. Marginal Sea Commerce and United States Practice

275

approach from that used by common law prosecutors attempting to assert felony jurisdiction over pirates in England before 1776. The 1965 California decision never reaches the issue of “acquiescence”, because there is no enforcement of state municipal navigational servitudes against a foreign vessel to evidence the presence or occurrence of such acquiescence either directly or indirectly.24 Interestingly, a 1790 treaty between Spain and Great Britain cited by California shows only “jurisdiction” within ten leagues of the coast, and that is based on agreement of the parties and wholly ambiguous as to any territorial claim or whether such territorial claim could be effective.25 Without consolidation and exclusion, exercise of protective jurisdiction is no evidence of territory and the high seas regime navigational servitudes continue to give broad protection to the res communis public trust. This 1965 California decision became the benchmark for the succeeding series or third phase of “tidelands” litigations asserting historic waters claims. Since then the presence of historic waters has been an issue litigated in United States v. Louisiana (1975),26 United States v. Alaska (1975),27 United States v. Florida (1976),28 and United States v. Louisiana (Alabama v. Mississippi)29 (Mississippi Sound Case).30

24

25

26 27 28 29 30

Foreign Affairs power is vested in the Executive Branch under the United States Constitution, Article II, sec. 2. See United States v. Curtis-Wright Export Corp., 299 U.S. 304, 319 (1936). See also Louis Henkin, Foreign Affairs And The Constitution 91975). The defense power is shared by the Executive Branch and the Congress under the United States Constitution, Article I, sec. 8, and Article II, sec. 2. See generally Morris D. Forkosch, Constitutional Law 279–80 (2d ed. 1969). Both the foreign affairs and defense powers are the basis for authority to set the national boundaries. California 1965, 381 U.S. at 168. Congress authorized the Supreme Court to select definitions for the Submerged Lands Act, so that selection of the definitions contained in the ratified Convention on the Territorial Sea and Contiguous Zone is not outside judicial power. See 43 U.S.C. § 1301 (2000); and 15 U.S.C. § 1607 (2000). California’s 1821 constitution describes “bays” as within California, which is the alleged basis for jurisdiction in Carrillo, 13 F. Supp. at 121, Stralla, 96 Cal.2d at 941; and Ocean Industries, Inc., 15 F.2ds at 862. The treaty between Spain and Great Britain is discussed in Stralla, 96 Cal.2d at 943. See Convention, between Great Britain and Spain, Escurial, Oct. 28, 1790, art. 4, in 51 Parry 69. 420 U.S. 529 (1975). 422 U.S. 184 (1975). 425 U.S. 791 (1976). 470 U.S. 93 (1985). Id. See United States v. California, 381 U.S. 172 (1965); United States v. Louisiana, 420 U.S. 529, 530 (1975) (and Report of Walter P. Armstrong, Jr., Special Master 13–14 (July

276

Chapter VI

Paradigm – Commerce In The Balance

Louisiana’s coastline had been established under an 1895 Act of Congress. The issue there became whether the Submerged Lands Act grant for Louisiana should be measured from the historic 1895 coastline rather than the contemporary 1965 territorial sea baseline. Arguments for the 1895 coastline were rejected in the 1965 Louisiana case where the Supreme Court confirms the criteria of the 1965 California decision and reiterates the requirement that, for a measurement from a historic coastline, there must be a traditionally asserted and maintained dominion with the acquiescence of foreign States in the area claimed as measured from the historic coastline.31 The Supreme Court writes that “reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters”, especially when the government exercising such authority denies “any territorial reach” by its actions.32 The Supreme Court then notes that the international law of historic waters is “without universal accord” and as a legal concept is “still relatively imprecise”.33 The dispute was assigned to a Special Master to take further evidence and the subsequent Special Master’s Report is affirmed in the United States v. Louisiana decision of 1975.34 The Special Master’s Report indicates that the evidence of Louisiana activities (municipal law navigation servitude exercises), including leasing continental shelf areas for oyster fisheries and mineral extraction as well as application of Louisiana laws for pollution control and fisheries and wildlife management, all occurred within three geographical miles of the 1975 coastline. That evidence of commercial activities regulation is consonant with Louisiana’s acknowledged territorial sea interests under the Submerged Lands Act as measured from the contemporary coastline and, thus, was insufficient to support the claimed 1875 coastline as a historic baseline. Louisiana was able to produce only one 1947 case of fisheries law enforcement against a foreign national and vessel (Mexican) more than three geographical miles from the 1975 coastline. That enforcement was reported to be insufficient evidence of either continuity

31 32 33 34

31, 1974)); United States v. Alaska, 422 U.S. 184, 187, 199–200 (1975); and United States v. Florida, 425 U.S. 791 (1976) (and Report of Albert B. Maris, Special Master 39 (Jan. 18, 1974)). Louisiana, 394 U.S. at 22. Louisiana, 394 U.S. at 24, 26. Louisiana, 394 U.S. at 75–76, 78. 420 U.S. 529 (1975). In a per curiam opinion the Supreme Court adopted the Special Master’s Report and rejected the exceptions of the United States and Florida. Louisiana, 420 U.S. at 530.

A. Marginal Sea Commerce and United States Practice

277

or acquiescence.35 It appears that in the absence of assertion by the United States, indeed in the face of a disclaimer by the United States, the adequacy of historical evidence for exclusive commercial activity regulation to support a historic waters claim will be difficult to establish.36 The 1975 United States v. Alaska37 decision involves Alaska’s claim to Cook Inlet as historic waters and presents a more thorough discussion of historic title by the Supreme Court than supplied in the 1965 California opinion.38 Geographically, Cook Inlet is 47 miles wide at its entrance and penetrates into the surrounding land mass for 150 miles. Though initiated in the Alaska state courts, the United States Supreme Court took jurisdiction of the case because of “a substantial question concerning the proof necessary to establish a body of water as a historic bay”. The Supreme Court writes, in pertinent part, as follows: [A]t least three factors are significant in the determination of historic bay status: (1) The claiming nation must have exercised authority over the area; (2) that exercise must have been continuous; and (3) foreign states must have acquiesced in the exercise of authority.39

That succinct statement captures the essence of the historic waters concept, while avoiding the entrapment of ascribing the requirements of a particular territorial acquisition mode. The evidence adduced by Alaska reached back to show Russian activities in the area (19th century), but the Supreme Court gives little weight to the establishment of a few minor land-based settlements as acquiring a right to the vast waters of Cook Inlet. Further, and critically, those settlements were part of a private trading company’s commercial venture and were not accepted as representing state claims to territory – they were not government chartered colonies as were the English North American colonies. In addition, a Russian “ukase” offered as evidence and asserting broad jurisdiction over the Pacific Ocean from the Alaskan shore held small probative value because of the engendered protests from both the United States and the United Kingdom. As a result, that ukase was withdrawn and it is no evidence of “acquiescence” supporting the jurisdiction asserted, nor

35

36 37 38 39

See Report of Walter P. Armstrong, Jr., Special Master, pp. 18–19, 21, filed in Louisiana, 420 U.S. 529. Louisiana, 420 U.S. at 20–21, 22. United States v. Alaska, 422 U.S. 184 (1975). California 1965, 381 U.S. at 168. Alaska, 422 U.S. at 189.

278

Chapter VI

Paradigm – Commerce In The Balance

is it evidence of any sovereignty being established over Alaskan terra firma. Extinguishment of established high seas navigational servitudes would have required a substantial prescription with “acquiescence” as evidenced by consent, and withdrawal of the ukase in the countenance of protest shows abandonment of the claim rather than acquiescence in it. With the protests from the United States and the United Kingdom, the affected States, the necessary consent was unavailable under inter-temporal legal requirements.40 Importantly the 1975 Alaska decision notes that the exercise of governmental authority necessary to support a historic title must be sufficiently broad to exclude foreign vessels from the claimed area.41 The evidence of

40

41

Russian settlements are discussed in Alaska, 422 U.S. at 190–91. The “ukase” and the necessary “acquiescence” are discussed in Alaska, 422 U.S. at 190, 199–200. The Supreme Court does not foreclose that there may be claims of historic title where acquiescence is not necessary. Alaska is limited to the facts of the case and notes the uncertainty of the role of acquiescence in the 1962 Secretariat Study. Alaska, 422 U.S. at 199–200. However, the United States did claim protective jurisdiction over the Bering Sea fur seal population as successor to Russia. Bering Sea Fur Seal Arbitration, [1893] 1 Moore 759, 821. In an enforcement action the court found British acquiescence in this protective jurisdictional exercise. Ex Parte Cooper, 143 U.S. 472 (1892). Alaska, 422 U.S. at 196–98. See also Report of Walter P. Armstrong, Jr., Special Master, 19–22 (July 31, 1974) filed in United States v. Louisiana, 420 U.S. 529. The scope of authority exercised must be sufficient to exclude the international law navigation rights of other States, so that force majeure and innocent passage cannot apply. See generally Kate A. Hoff v. The United Mexican States, 23 Am. J. Int’l L. 860, 862–63 (1929); and see The Louise F., 293 F. 933, 935 (D.C.S.D. Fla. 1923). Enforcement against United States vessels does not establish territoriality because the United States asserts jurisdiction over its citizens regardless of territory. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948); The Appolon, 9 Wheat. 362, 370 (1824). The component states of the United States have similar jurisdiction over their citizens. Toomer v. Whitsell, 33 U.S. 385 (1948). The United States does not object to the enforcement of state laws in offshore waters against the citizens of other states within the three-nauticalmile belt of coastal waters unless it interferes with a federal regulatory scheme. Alaska v. Artic Maid, 366 U.S. 199, 203 (1961). The United States does object to such enforcement against citizens of other states outside three nautical miles. Brief Amicus Curiae for the United States, Alaska v. Uri, et al., No. 2435, S. Ct. of Alaska (1975). See also the United States Memorandum of Law in Support of Motion for Preliminary Injunction, filed in United States v. Florida, Civ. Act. No. 1672 (D.C.N.D. Fla. Dec. 18, 1970) (Tallahassee Div.) where the United States argues successfully as follows: However the ‘domestic purposes’ of the Submerged Lands Act only extend to relations between Florida and its own citizens, other States and their citizens, and the United States. Rights of aliens on the high seas are an international rather than a domestic matter;

A. Marginal Sea Commerce and United States Practice

279

exclusion would appear either in enforcement activities against foreign vessels, or enactment of legislation asserting that enforcement right, or both. Then, looking at the evidence since 1867, when Alaska became a territory of the United States, the Alaska decision rejects fish and wildlife regulation as evidence of underlying historic title because foreign vessels were not excluded. Where a statute is ambiguous as to its breadth of application the Supreme Court indicates that the pattern of enforcement would be examined.42 Turning to the role of “acquiescence” the Supreme Court indicates that there must be actual acquiescence or, if constructive, there must be a showing of actual knowledge of a foreign State concerned or evidence that such State “reasonably should have known” of the claim of sovereignty or authority being asserted and affecting its rights.43 The point of the Supreme Court “acquiescence” discussion is that applied governmental navigational servitudes must be shown to exclude high seas regime navigational servitudes, especially innocent passage involving non-governmental vessels or general navigation. Such evidentiary showing of acquiescence, meaning consent, could appear in the knowledge or “reason to know” of States impacted by the municipal law provisions. The contents of published legislative provisions affecting foreign vessels in closed coastal waters should be sufficient to ascribe actual or reasonable knowledge to the impacted States. However, the inter-temporal law of the 19th century would allow only the prescriptive acquisition mode because there was insufficient history to support any other, and therefore the “acquiescence” discussed in Alaska should be understood in the context of the prescriptive title acquisition mode. More recently the Supreme Court decided United States v. Florida44 in 1976, and United States v. Louisiana (Alabama v. Mississippi) in 1985.45 In the 1976 Florida case a Special Master was appointed to take the evidence of Florida’s historic waters claim to Florida Bay. The Special Master’s Report was submitted to the Supreme Court in 1974 and addresses whether Florida Bay contains historic waters contained behind a line drawn from the Dry Tortugas to Cape Romano on the mainland – more than 100 geographical

42 43 44 45

and with respect to foreign nations and nationals, Florida’s boundary must be understood to remain no farther seaward than the national boundary, at the three-mile limit. Id. at 5. Alaska, 422 U.S. at 199–200. Id. 420 U.S. 531 (1975); final decree 425 U.S. 791 (1976). 470 U.S. 93 (1985).

280

Chapter VI

Paradigm – Commerce In The Balance

miles. The 1976 Florida decision adopts the Special Master’s Report, thereby accepting the Special Master’s finding that no historic waters are present based on the evidence adduced when tested by the 1975 Alaska standard for historic waters.46 The United States made no claim to Florida Bay as inland waters, so that in fact the high seas regime navigational servitudes continued to apply within Florida bay and had not been excluded by any governmental navigational servitudes. Evidence both of state and of federal law enforcement outside the territorial sea has been acceptable as evidence of such exclusion, but Florida adduced none.47 The most recent Supreme Court decision on historic waters, rendered in 1985, is United States v. Louisiana (Alabama v. Mississippi) (Mississippi Sound Case).48 This decision found that Mississippi Sound contains historic internal waters of the United States and explains that there does not have to be actual exclusion of foreign navigation by the coastal State, simply the asserted right to do so as evident by claiming territorial sovereignty.49 If the area has little interest to foreign navigation, then little or no actual enforcement against foreign vessels is required.50 As discussed in Chapter V that is a common theme from the 19th century. The decision goes on to restate the United States municipal law on historic waters,51 and indicates that where the United States has established a historic waters title the Executive Branch cannot abandon it, and that an

46

47

48 49 50 51

Report of Albert B. Maris, Special Master, 41 (Jan. 18, 1974), filed in United States v. Florida (Florida Bay Case), 420 U.S. 531 (1975), final decree entered 425 U.S. 791 (1976). Report of Albert B. Maris, supra note 46, at 41–42, 45. Special Master Maris describes the test for showing historic title as the assertion of power to exclude all foreign navigation, to one of “special control” and “often” the “prohibition of navigation by foreign vessels and of fishing by foreign nationals.” Id. at 43. The Supreme Court comment in Alaska indicates that giving equal treatment to foreign and American vessels is not of any great evidential weight. Alaska, 422 U.S. at 198. The Supreme Court adopts international law to determine these maritime boundary disputes. United States v. Louisiana (Texas Boundary Case), 394 U.S. at 77–78. This theme is repeated in the 1975 Alaska case where the Supreme Court writes as follows: The adequacy of a claim of historic title, even in a dispute between a State and the United States, is measured primarily as an international, rather than a purely domestic claim. Alaska, 422 U.S. at 202–03. 470 U.S. 93 (1985). 470 U.S. 102–03. 470 U.S. 113–14. 470 U.S. at 101–02.

A. Marginal Sea Commerce and United States Practice

281

Executive Branch disclaimer is not dispositive.52 That is consistent with the role of Congress described in the 1965 California decision to the effect that it is solely within the power of Congress to abandon territory. Declarations of the United States prior to 1971 claimed Mississippi Sound as internal waters, and those prior national claims of exclusive sovereignty were of material assistance to Mississippi’s argument for the presence of historic internal waters.53 The national declarations also probably supplied the turning point in the Supreme Court’s reasoning.54 Apart from tidelands litigations, the United States has acted directly to assert exclusive sovereignty on the basis of historic title over the large coastal waters contained within Chesapeake55 and Delaware56 Bays, as well as Long

52 53 54 55

56

470 U.S. at 106–07, 111–12. 470 U.S. at 111. 470 U.S. at 112. See “Opinion of Edmund Randolph, Atty. Gen., to the Secretary of State”, May 14, 1793, in 1 Ops. Atty. Gen. 32, 33, 37–38. See also letter from T. Jefferson, Sec. of State, to Mr. Morris (Aug. 16, 1793), I American State Papers, Foreign Relations 148, 167, 169. Both discuss the territoriality of Chesapeake Bay and the violation of neutrality by L’Ambuscade. For the opinion of the Alabama Claims Commission in following the logic of Gen. Randolph’s Opinion, see Stetson, infra note 56, at 4341. “The Second Charter of Virginia – 1609”, in 7 F. Thorpe, The Federal And State Constitutions, Colonial Charters, And Other Organic Laws Of The States, Territories, And Colonies Now Or Heretofore Forming the United States Of America 3790 (1909) [hereinafter F. Thorpe]. See also “The Charter of Maryland–1632” in F. Thorpe, at 1677; and “The Second Charter of Virginia – 1609”, F. Thorpe, at 3783, 3790, 3820. The territory of the original 13 colonies was acquired by occupation and possession, or acquired from those, such as the Dutch, who occupied and possessed the area. Shively v. Bowlby, 152 U.S. 1, 14 (1894). The common law of England governed the holding of this territory. Id. See also Martin v. Waddell, 16 Pet. 367, 409 (1843), and see generally Pollard v. Hagan, 3 How. 212 (1845), for this colonial history. The “Third Charter Of Virginia – 1611/12” was repealed by a writ quo warranto as described in Henderson v. Poindexter’s Lessee, 26 U.S. (12 Wheat.) 530, 533 (1837). For a discussion of the London Company’s failure in America see S. Morison, The Oxford History Of The American People 49–54 (1965). The occupation and possession of Delaware Bay begins with Lord Baltimore’s grant. 3 F. Thorpe, supra note 55, at 1637, 1641, 1678. Today that part of Maryland is called the “Delmarva” Peninsula, a colloquial name for the three states which share its territory, namely Delaware, Maryland, and Virginia. The issue of whether Delaware Bay contained inland waters was thereafter raised in Stetson v. United States (The Alleganean), 4 Moore Int’l Arb. 4333, 4339 (circa 1862). The history of Delaware Bay occupation includes

282

Chapter VI

Paradigm – Commerce In The Balance

Island Sound. In the past Chesapeake and Delaware Bays were claimed as historic bays containing inland waters, but under the criteria of the Convention on the Territorial Sea and Contiguous Zone they qualify as geometric juridical bays meeting both the “semi-circle test” and the “24-geographical-mile maximum entrance width” tests.57 The entrance to Chesapeake Bay measured from Cape Henry to Cape Charles is approximately 12 geographical miles, and the waters of the bay penetrate inland for 170 miles to the mouth of the Susquehanna River. The entrance to Delaware Bay measured from Cape Henlopen to Cape May is approximately 10 geographical miles and the waters of the bay penetrate inland for 40 miles to the mouth of the Delaware River. Consequently the exclusion and regulation of foreign commerce in these bays is no longer an issue. In contrast, Long Island Sound is distinct, both because it continues to contain historic waters rather than being either a historic or geometric juridical bay, and because, simply put, Long Island Sound is not a bay. Long Island Sound is comprised of closed coastal waters, but not enclosed coastal waters such as in a bay. The distance from the Long Island Sound east entrance at Montauk Point, to the west entrance at the East River is about 100 miles with an approximate width of 20 miles. The East River, at the head of Long Island Sound, is in fact an oceanic strait with a tidal flow rendering Long Island an oceanic rather than a riverine island and, thereby, separating Long Island from the mainland. This precludes use

57

the expulsion of the Dutch, as discussed in New Jersey v. Delaware, 291 U.S. 361, 365 (1934). See also Morison, supra note 55, at 77–78. See the examination of the Duke of York’s Grant in Martin v. Waddell, 16 Pet. 367, 408, 410–13 (1843). And see “The Duke of York’s Release to John Lord Berkley, And Sir George Carteret, 24th of June 1664”, in 5 F. Thorpe, supra note 896, at 2533, 2534. For the Duke of York’s conveyance of the Lower Counties to William Penn see New Jersey, 291 U.S. at 366. The continuous possession of Delaware over the lands granted to William Penn is described in Pea Patch Island, 30 F. Cas. 1123 (Jan. 15, 1848) (No. 18,311). The authorization for self government which Penn issued to the Lower Counties is the “Charter of Delaware – 170” which appears in 1 F. Thorpe, supra note 55 at 370, 372–74, 377–78, 385. In delimiting the baseline for the territorial sea the Interagency Coastline Committee responsible for that work has relied primarily upon the geometric criteria of the Convention on the Territorial Sea and Contiguous Zone. Only when necessary is a historic title relied upon. See Dept. State Memorandum, from B. Oxman to L.O.S. Executive Group, re: Committee on the Delimitation of the United States Coastline (May 26, 1971) [attachment p. 1 – unclassified]. The claim to Long Island Sound appears on Chart 1211, “Block Island Sound and Approaches”, U.S. Coast & Geodetic Survey, 15th ed. Aug. 2, 1969. The geography of Delaware and Chesapeake Bays is described in 4 Whiteman 235, 237.

A. Marginal Sea Commerce and United States Practice

283

of Montauk Point as headland for a bay containing the waters of the sound as internal under the provisions of the Territorial Sea and Contiguous Zone,58 or UNCLOS,59 as interpreted and applied by the United States. Islands in a river are “riverine” and as part of the mainland territory may form headlands for a bay enclosing coastal waters. Islands which are marine or oceanic do not form part of the mainland because they are surrounded by marginal sea waters, with the result that they by definition cannot form a territorial or mainland headland to enclose coastal waters as internal. The exception for enclosures of such waters is historic title or application of straight baselines connecting oceanic islands to the mainland. It is probable that in colonial times, when so little of North American geography was known, Long Island Sound was meant to be included in the 1620 Charter for New England, issued by James I to the Plymouth Company, by the phrase “with all the Seas . . . within the Degrees, Precincts, and the Limitts of the said Latitude and Longitude”, the charter reading in pertinent part as follows: [G]rant, ordaine and establish, that all that Circuit, Continent, Precincts, and Limitts in Degrees of Northerly Latitute, from the Equinoctall Line, to Fourty-eight Latitude, and in length by a ll the Breadth aforesaid, throughout the Main Land, from Sea to Sea, with all the Seas, Rivers, Islands, Creeks, Inletts, Ports, and Havens, within the Degrees, Precincts, and Limitts, of the said Latitude and Longitude, shall be the Limitts, and Bounds, and Precincts of the Second Colony. . . .60

The 40th degree of latitude is near the southern boundary of Pennsylvania and passes through New Jersey, and the 48th degree of latitude passes through Newfoundland – this was a broad grant. Long Island Sound is next included in the 1662 Charter for Connecticut, where the southern boundary is described as “the sea”, and islands adjoining the coast “from the

58

59 60

Article 7, Convention on the Territorial Sea and Contiguous Zone, supra c. iv, note 2, 15 U.S.T. 1609, requires that a geometric bay, presumed to contain inland waters, be a “well-marked indentation” of the coast. As such, headlands which cause waters to be contained in a “bay” to be “landlocked” must be part of the coast in order to be part of the indentation. Hence, Long Island, separated from the mainland by the East River having an oceanic tidal flow, is not geographically part of the mainland and cannot be used as a headland for a geometrical bay. UNCLOS, Art. 10(2), 1833 U.N.T.S. at 402. “The Charter of New England – 1620”, in 3 F. Thorpe, supra note 55, at 1827, 1829.

284

Chapter VI

Paradigm – Commerce In The Balance

said Narragansett Bay on the east, to the South Sea on the West Part”. The term “South Sea” refers to the Atlantic Ocean, which is on the south side of Long Island. Like Chesapeake Bay in the case of the Alleganean, it seems reasonable that Long Island Sound as one of the few known and significant geographic features would have been used as a boundary if so intended.61 Not using Long Island Sound as a boundary suggests its inclusion within the colonial charter grant rendering those res nullius waters occupied and possessed as internal and an integral part of the colonial territory. Long Island Sound almost certainly came within the language of the Duke of York’s 1664 and 1674 Grants from Charles II, where Long Island is singled out as part of the territory passing to the Duke of York, seemingly to sever Long Island from the Connecticut Charter grant because the Duke received all territory west of the Connecticut River in 1664 and 1674;62 the Connecti-

61

62

Stetson v. United States (The Alleganean), 4 Moore Int’l Arb. 4333, 4339–341 (circa 1862). The Stetson case arose out of the damage caused in the American Civil War, 1860–1865, when a boarding party from a British-built Confederate States vessel crossed overland and then, using small boats, approached and boarded The Alleganean within Chesapeake Bay at a point four miles from shore. Chesapeake Bay was found to be in United States waters, and the arbitrators determined that if Chesapeake Bay had not been intended to be occupied under the original charters, it is a sufficiently significant geographic feature that it would have used as a boundary. In prize cases it is important to distinguish where coastal waters had become inland waters within the littoral State’s territory. Sir Walter Scott in The Anna, 165 Eng. Rep. 809, 814–16 (1805) found that a Spanish vessel taken by a British vessel during the Napoleonic Wars at the entrance to the Mississippi River, was taken in violation of American “neutral territory”. The location of The Anna was within the coastal belt, but not within inland waters when taken. See Letter from T. Jefferson to G. Hammond (Sept. 5, 1793), annexed to Treaty of Amity, Commerce and Navigation, Great Britain-United States, Nov. 19, 1794, 8 Stat. 116. Jefferson references Washington’s order to claim one marine league from the shore as neutral territory. See also Soult v. L’Africaine, 22 F. Cas. 805 (D.C.S.C. 1804) (No. 13, 179). But the neutral territory was not as comprehensive a jurisdiction as the territorial sea, which was not claimed by the United States until the 19th century. Cunard S.S. Co. v. Melon, 262 U.S. 100, 122–23 (1922). See also Henry Bourguignon, Incorporation of the law of Nations During the American Revolution – the Case of the San Antonio (unpublished typescript, University of Toledo Law School, Ohio). For a discussion of American prize law see Glass v. Sloop Betsey, 3 U.S. (3 Dall.) 5 (1794). “The Charter of Connecticut – 1662” in 1 F. Thorpe, supra note 55, at 529. The Connecticut Charter, in pertinent part, reads as follows: And know Ye further, That we, of Our abundant Grace, certain Knowledge, and mere Motion, have Given, granted, and confirmed, and by theses Presents for Us, our Heirs

A. Marginal Sea Commerce and United States Practice

285

cut River flows through New Haven, Connecticut, into the eastern end of Long Island Sound. However it was not until Congressional approval of an interstate boundary between New York and Connecticut passing through Long Island Sound that the dispute caused by the Duke of York’s 1664 and 1674 Grants was ended by an equitable division of the waters between the littoral states, thereby confirming Long Island Sound as containing internal waters of the United States.63 The only state litigation which mentions Long Island Sound is the 1866 New York State Court of Appeals decision in Mahler v. Transportation Co.64 And the significance of that case is not what it decided, but that objection was not made by the United States to the Mahler court’s finding that Long Island Sound contains internal waters – as is pointed out by Dr. Marjorie

63

64

and Successors, do give, grant and confirm unto the said Governor and Company, and their Successors, all that Part of Our Domain in New England in America, bounded on the East by the Naragansett River, commonly called Naragansett-Bay, where the said River falleth into the Sea; and on the North by the Line of the Massachusetts-Plantation; and on the South by the Sea; and in Longitude as the Line of the Massachusetts-Colony, running from East to West, That is to say, from the said Naragansett-Bay on the East, to the South Sea on he West part, with the Islands thereunto adjoining. . . . Id. at 535. The ambiguities of the Connecticut Charter raise questions not only about inclusion of Long Island Sound, but also about the location of the Massachusetts boundary. See Rhode Island v. Massachusetts, 4 How. 591 (1847). One strong indication that “Sea” does not mean Long Island Sound is the 1632 Maryland Charter use of “Ocean” while ignoring “Chesapeake Bay”. For the Duke of York’s Grants in 1664 and 1674 see 3 F. Thorpe, supra note 55 at 1637, 1641. Note that recitation in a later charter was a method used by the Crown to memorialize its intent to revoke the prior grant in whole or in part. This would explain the Duke of York’s Grant severing the western portion of the prior Connecticut charter, including Long Island Sound. The Congressionally approved boundary for Long Island Sound, dividing it between New York and Connecticut, is at 21 Stat. 351 (Feb. 26, 1881, 46 Cong., 2d Sess.). Such approval of an interstate boundary is territorial as confirmed in the Submerged Lands Act, 43 U.S.C. § 1312 (2000). The power of the Crown to grant territory in the colonies and dismember their governments at will is discussed in Johnson & Graham’s Lessee v. M’Intosh, 8 Wheat. 543, 579, 580 (1823). For identification of the “South Sea” as the Pacific Ocean see W. Hubbard, “A General History of New England” [circa 1682], printed in 15–16 Collections of the Massachusetts Historical Society 1 (1815). Mahler v. Transportation Co., 35 N.Y. 352 (1866). See also Chappell v. Jardine, 51 Conn. 64 (1883); and Elphick v. Hoffman, 51 Conn. 335 (1881).

286

Chapter VI

Paradigm – Commerce In The Balance

Whiteman in her Digest of International Law written under State Department auspices.65 Dr. Whiteman’s comment supports the view that failure of the United States to object constitutes acquiescence in the acquisition of historic title by state governmental action.66 Such inaction is not ambiguous as was some of the evidence presented in the 1975 Alaska case.67 In 1985 the Supreme Court addressed the issue again and determined that Long Island Sound does indeed constitute historic waters and, as a result, a closing line drawn from Montauk Point on the eastern end of Long Island across Block Island Sound to Watch Hill, Rhode Island, encloses inland waters and the territory of the United States.68 This suggests correctly that it is not physical geography but juridical geography which must be the subject of boundary

65

4 Whiteman 237. The Supreme Court has refused to change an interstate boundary established through usage over time regardless of the documentary evidence. See Maryland v. West Virginia, 217 U.S. 1, 46 (1910). As between a state and the United States, the failure of the United States to act will not cause a termination of those rights. Lake Berryessa Tenants’ Council v. United States, 588 F.2d 267, 270–71 (9th Cir. 1978). Where a state claims acts sufficient to establish a historic title in the face of a United States disclaimer, the evidence must be “clear beyond doubt”. California 1965, 381 U.S. at 174; Louisiana 1969, 394 U.S. at 77–8. The states in this context would be acting as agents for the United States. Cf. Jones v. United States, 137 U.S. 202 (1890). In the case of Long Island Sound the waters were discussed as territorial in 1927. See The J. Duffy, 18 F.2d 755 (1927). The J. Duffy was a British vessel arrested in a liquor smuggling incident. Notably all the waters of Long Island Sound are within 12 miles of the shore, and thus within the 1927 customs jurisdiction of the United States in the belt of coastal waters without reference to territorial jurisdiction so that The J. Duffy case is not a clear finding of inland waters in Long Island Sound. Contra see 3 Ann. Dig. Pub. Int’l L. Cas. 125–26. 67 United States v. Alaska, 422 U.S. 184, 2002–03 (1975). 68 United States v. Maine (Long Island Sound Case) 469 U.S. 504, 506, 509 (1985). The Supreme Court notes that marine islands which are not part of the territory cannot form headlands. Id. at 516, 518, 524–25. The Supreme Court writes in pertinent part as follows: Such a treatment of islands beyond the natural entrances points of an indentation finds no support in the Convention or in any of the scholarly treatises. Id. at 524. 66

B. Constitutional Commerce, Interstate and Foreign

287

delimitations, especially as to baseline segments incorporating historic waters behind sui generis containment lines.69

69

Compare with the Gulf of Maine Case where the ICJ ignored Cape Cod as a geographical feature without acknowledging that it contained inland waters behind a juridical closing line which should have made this peninsula a substantial feature for any delimitation, which was not conclusion driven. See supra c. iv, notes 137, 181. Compare also cases involving delimitation of British North American bays based on usage, The Washington [1853], 4 Moore 4342, 4343–344; and The Argus [1854], 4 Moore 4344. A 20th Century case, Re Dominion Coal Co. and County of Cape Breton, 40 D.L.R. 2d 593 (1963), dealt with a historic bay question at a location south of Saint Ann’s Bay on Cape Breton Island, Nova Scotia. The issue in Re Dominion Coal is whether coal mining equipment under Sydney Harbor and Spanish Bay forming the entrance to the harbor could be taxed by the County of Cape Breton. The case decides that the equipment under the harbor is within the county and can be taxed, but that under Spanish Bay is not within the county and cannot be taxed. Re Dominion Coal Co. 40 D.L.R. at 549. Chief Justice Isley speaking for the Supreme Court of Canada states, “[i]n the present case there is no evidence of any usage indicating that Spanish Bay has ever been treated as part of Cape Breton County”. Re Dominion Coal Co. 40 D.L.R. at 600. Justice Patterson pointed out that there are no pronounced headlands, or “contours” of the coast which would suggest “that Spanish Bay is an inland water”. Re Dominion Coal Co. 40 D.L.R. at 646. In Movat v. McFee, 5 S. Ct. Can. 66 (1880), the waters of the Bay of Chaleurs were found to be inland waters contained behind a statutorily set territorial boundary between Quebec and New Brunswick (14 & 15 Vic., c. 63). Movat, 5 S. Ct. Can. at 79. This would be a title based on occupation and possession as explained in the North Atlantic Coast Fisheries Arbitration, 1 Scott at 185–86. In Gavin v. The Queen, 3 D.L.R. 2d 547 (1956), the Supreme Court of Canada found that there is no common law rule to identify which bays are inland and within counties, so that common law alone could not be relied upon to extend the “territorial jurisdiction of the Realm”. Gavin, 3 D.L.R. at 552–53. Common law can however recognize when bodies of water are within a county, and custom and usage seem to be sufficient evidence. Cf. Regina v. Cunningham, Bells’ Crown Cases 72 (1859). Compare Varanger Fijord Case, Ann. Dig. Int’l L. 1933–1934 (no. 51) 137 (1934). See the discussion in Brownlie, supra c. i, note 20 at 42. Compare the collision of The Eclipse and The Saxonia in the Solent, a strait between the Isle of Wight and the Hampshire coast, involving a German vessel, The Saxonia, and a British vessel, The Eclipse. The point of collision was about three or four miles east of Yarmouth. Sir John Romily, speaking for the Court, indicates that the Solent is “high seas”, at least where the collision occurred, and that because the Isle of Wight is part of the County of Southampton does not make the Solent inland waters. The Eclipse & The Saxonia, 15 Eng. Rep. 493, 495 (1861). This is precisely the problem faced by the United States with Long Island Sound. Compare The Fagerness, 43 T.L.R. 746, 748–50 (1927). As late as 1968 it was explained that as a matter of common law there is no rule for

288

Chapter VI

Paradigm – Commerce In The Balance

Chesapeake and Delaware Bays and Long Island Sound have a common feature, in that a navigable river connects to the headwaters of, respectively, the Potomac, Susquehanna, Delaware and Hudson Rivers. These rivers are not international waterways connecting to another State, and the territory of no other coastal State touches the shores of the waters contained in these bays and the sound. Consequently neither these bays, the sound, nor these rivers were subject to the needs of international general navigation during the 16th century, the 17th century or the 18th century, at which time res nullius titles to them were perfected through occupation and possession by Great Britain and later succeeded to by the United States before any res communis public trust navigation rights appertained. But municipal law public navigation rights of the jus publicum are applicable to those navigable waters today, though not the high seas regime navigational servitudes, as the balancing of the territorial sea crucible continues to evolve, balancing littoral State and international jurisdictional responsibilities in protection and application of the navigational freedom principle.

B. Constitutional Commerce, Interstate and Foreign Selden and Grotius have come full circle. Commerce has become the defining purpose for the navigational freedom principle in all navigable waters, as it was for Oleron, the Hanse towns and Wisby. Commerce as the essence of navigational freedom is manifest in the application of the respective governmental and high seas regime navigational servitudes. For the United States, interstate and foreign commerce are the constitutional bases for municipal implementation of the navigational freedom principle public trust through

identifying a bay containing inland waters. See Post Office v. Estuary Radio, [1968] 2 Q.B. 740. It does appear that a large body of coastal waters may be subjected to other than territorial jurisdiction. See Mortensen v. Peters, 43 S.L.R. 872, 876 (1906). And see Direct United States Cable Co., Ltd. v. Anglo-American Cable Co., Ltd., 2 App. Cas. 394, 415–16, 421, 430 (1877), regarding historic inland waters status of British Bays in North America (Newfoundland). In Adams v. Bay of Islands County, [1916] N.Z.L.R. 65, the Court addresses the issue whether an island within the Bay of Islands is subject to the taxing authority where the entrance to the bay is about ten miles wide. the Court indicates that the old rule of Lord Hale, of being able to see the opposite shore, could no longer be regarded as the sole test for inland waters. Id. at 71.

B. Constitutional Commerce, Interstate and Foreign

289

the governmental navigational servitudes.70 Importantly, and distinct from the English colonial model, for regulation of commerce the United States has extended the legal status of “navigable waters” internally, above the flow of tides, to include rivers and lakes which flow to the sea. This juridical expansion of United States municipal navigational servitudes is in parallel to the international law of the sea, which likewise has invested the commercial paradigm of the navigational freedom principle to regulation of a myriad of high seas commercial uses within the res communis public trust. The underlying navigational servitudes, both governmental protective jurisdictions and high seas regime, have come to provide the anchor and the means for implementation of all municipal and international commercial uses of oceanic, marginal sea, coastal, bays, estuaries and riverine navigable waters. The juridical seat of United States navigation servitude public trust responsibility is the Commerce Clause of the United States Constitution.71

70

71

The concept of government as a public trust, and the rights of navigation and fishing as being held in a public trust, seem well established. Longstreth, supra c. iii, note 113 at 471, 480. The Supreme Court writes about the public trust in Stone v. Mississippi, 101 U.S. (11 Otto) 814 (1880), as follows: But the power of governing is a trust committed by the People to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. And the non-defeasible public trust again is explained in Bonnelli Cattle Co. v. Arizona, 414 U.S. 313, 321–25 (1973). Such public trust is precisely what seems to be evolving, if not already evolved, under UNCLOS, though one writer sees such as more an administrative matter than a true English trust because there is no means to control the trustee. W___ Friedman, The Contribution Of English Equity To The Idea Of An International Equity Tribunal 65–84 (1935). State regulation of fisheries and natural resource within their respective territories is recognized in Commonwealth v. Manchester, 152 Mass. 230 (1890); Dunham v. Lamphere, 69 Mass. (3 Gray) 268 (1855); Douglas v. Seacoast Products, 431 U.S. 265, 277 (1977). And see Bullock v. The Lamar, 4 F. Cas. 654 (No. 2,129) (C.C.D. Ga. 1844); and The City of Panama, 101 U.S. 453 (1880), discussing concurrent federal and state jurisdiction. States are sovereign within their territories subject to the United States Constitution. Parker v. Brown, 317 U.S. 341, 359–60 (1943). State criminal jurisdiction extends throughout the territorial sea, Westel W. Willoboughy, 3 The Constitutional Law Of The United States 1339, 1346 (1929), and citizens of a state remain subject to its jurisdiction even on the high seas seaward of the territorial sea for “local activities” such as fishing, so long as there is no conflict with federal law. Skiriotes v. Florida, 313 U.S. 69, 75–77, 78–79 (1941). See also Alaska Packers Assoc. v. Industrial Acci. Comm’n, 294 U.S. 532, 541 (1935); and Alaska v. Artic Maid, 366 U.S. 199, 203 (1961). The significance of

290

Chapter VI

Paradigm – Commerce In The Balance

Because navigation is commerce, this Commerce Clause authority has been determined to be the source of the Federal Government’s power to exercise the navigational freedom principle, that is the public trust72 protecting and

72

commerce and its protection has been apparent from the beginning, as noted in President George Washington’s Proclamation of Neutrality, April 22, 1793, in J___ Richardson 1 A Compilation of the Messages and Papers of the Presidents – 156–57 (1896). President John Adams followed on the theme with his Special Session Message to Congress, May 16, 1797, id. at 236–37, urging protection of United States Commerce at home and on the seas: The commerce of the United States has become an interesting object of our attention, whether we consider it in relation to the wealth and finances of the strength and resources of the nation. With a seacoast of nearly 2,000 miles in extent, opening a wide field for fisheries, navigation, and commerce, a great portion of our citizens naturally apply their industry and expertise to these objects. Any serious and permanent injury to commerce would not fail to produce the most embarrassing disorders. To prevent it from being undermined and destroyed it is essential that it receive an adequate protection. President Adams repeated the commerce and navigable waters theme in his Special Message to Congress of February 5, 1798, id. at 262, noting that the French had burned an English merchant ship in Charleston Harbor, again showing the need for Executive Authority to resist violations of American neutrality. Again in his Fourth Annual Address to Congress, Nov. 22, 1800, id. at 307, President Adams called for the development of defenses of “our shores” and waters for the Protection of “our property committed to the ocean”. Notably this exercise of defensive jurisdiction over navigable waters is explained in a letter from Thomas Jefferson to George Hammond, dated Sept. 5, 1793, and annexed to the Treaty of Amity, Commerce and Navigation, Between His Britanic [sic] Majesty and the United States of America, by their President, with the Advice and Consent of their Senate, November 19, 1794; 8 Stat. 116, which reads in pertinent part as follows: We are bound by our treaties with three of the belligerent nations, by all the means in our power, to protect and defend their vessels and effects in our ports, or waters, or on the seas near our shores, and to recover and restore the same to the right owners when taken from them. If all the means in our power are used, and fail in their effect, we are not bound by our treaties with those nations to make compensation. Navigable waters have been termed the “property of the nation”. Wyandotte Transportation Company v. United States, 389 U.S. 191, 201 (1967). In the Northwest Territories waters connecting to the Mississippi and St. Lawrence Rivers were preserved as “highways” forever in the Northwest Ordinance of July 13, 1787, 1 Stat. 51. Economy Light & Power Company, v. United States, 256 U.S. 113 (1921). “All navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways.” Reclamation Act, 1 Stat. 468 (1796); 43 U.S.C. 931 (2000). In United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 690, 700–01 (1899), the Supreme Court writes, “[n]ow, the obligation of the United States to preserve for their own citizens the navigability of its navigable waters is certainly as great as any arising by treaty or international law to other nations or their citizens”. There can be no abandonment of such navigable waters because

B. Constitutional Commerce, Interstate and Foreign

291

preserving the public “navigation servitude” within navigable waters of the United States as well as maritime areas outside the territorial sea where littoral State jurisdiction applies the commerce power.73 This point bears repetition –

73

they are held in public trust and there is no delegated authority under the Commerce Clause sufficient to allow abandonment of the public right. Cf. United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 706–07 (1987). The commerce power is in Congress, not the President. Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579, 588–89 (1952). The commerce power includes authority under the Commerce Clause over surface, water and air transportation. Chicago and Southern Airlines, Inc. v. Waterman Steamship Corporation, 333 U.S. 103, 107–08 (1949). From the beginning legislation was enacted for licensing vessels of the United States, regulating the fisheries, providing aids to navigation and defending commerce. As some examples from the initial period of government under the Constitution, beginning in 1789, see the following enactments in chronological order of adoption showing the heightening marginal sea area interest: An Act for the establishment and support of Lighthouses, Beacons, Buoys, and Public Piers, Sec. 1, 1 Stat. 53–54 (1789); An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes, Sec. 23, 1 Stat. 55, 61 (1792); An Act to explain an Act, intituled “An Act for registering and clearing Vessels, regulating the Coasting Trade, and for other purposes, Sec. 1, 1 Stat. 94 (1789); An Act to amend the act for the establishment and support of Lighthouses, beacons, buoys, and public piers, 1 Stat. 137 (1790); An Act, authorizing the Secretary of the Treasury to finish the Lighthouse on Portland Head, in the District of Maine, 1 Stat. 184 (1790); An Act to continue in force the act therein mentioned, and to make for the provision for the payment of Pensions to Invalids, and for the support of lighthouses, beacons, buoys, and public piers, Sec. 3, 1 Stat. 218 (1791); An Act concerning certain Fisheries of the United States, and for the regulation and government of the Fishermen employed therein, 1 Stat. 229 (1792); An Act for finishing the Lighthouse on Baldhead at the mouth of Cape Fear river in the State of North Carolina, 1 Stat. 246 (1792); An Act supplementary to the act for the establishment and support of lighthouses, beacons, buoys, and public piers, 1 Stat. 251 (1792); An Act to erect a Lighthouse on Montok Point in the State of New York, 1 Stat. 251 (1792); An Act for enrolling and licensing ships or vessels to be employed in the coasting and fisheries, and for regulating the same, 1 Stat. 305 (1793); An Act supplementary to the act for the establishing and support of lighthouses, beacons, buoys, and public piers, 1 Stat. 339 (1793); An Act to provide for the Defense of certain Ports and Harbors in the United States, 1 Stat. 345 (1794); An Act to provide for placing buoys on certain rocks off the harbor of New London, and in Providence river, and other places, 1 Stat. 353 (1794); An Act supplementary to An act to provide for the Defense of certain Ports & Harbors in the United States, 1 Stat. 367 (1794); An Act to erect a Lighthouse on the headland of Cape Hatteras; and a lighted Beacon on Shell Castle Island in the harbor of Occacock in the State of North Carolina, 1 Stat. 368 (1794); An Act to continue in force for a limited time, the act supplementary to the act for the establishment and support of lighthouses, beacons, buoys, and public piers, 1 Stat. 393 (1794); An Act authorizing the erection of a Lighthouse neat the entrance of Georgetown harbor, in the State of South Carolina, 1 Stat. 418 (1795); An Act to cessions

292

Chapter VI

Paradigm – Commerce In The Balance

under United States municipal law the rights to navigation and fishing remain in the American People as public rights reserved to the public under the Ninth Amendment of the Constitution. These public rights are not and have not been delegated to the Federal Government by the provisions of the Constitution, nor could they be;74 they are not governmental rights.

74

of jurisdiction in places where lighthouses, beacons, buoys and public piers have been, or may hereafter be erected and fixed, 1 Stat. 426 (1795); An Act authorizing the erection of a Lighthouse on Baker’s Island in the State of Massachusetts, 1 Stat. 452 (1796); An Act authorizing the erection of a Lighthouse on Cape Cod, in the State of Massachusetts, 1 Stat. 464 (1796); An Act providing Passports for the ships and vessels of the United States, 1 Stat. 1796); An Act to prevent citizens of the United States from Privateering against nations in amity with, or against citizens of the United States, 1 Stat. 520 (1797); An Act to provide for the further Defense of the Ports and Harbors of the United States, 1 Stat. 521 (1797); An Act for the erection of a Lighthouse, and placing Buoys at the several places therein mentioned, 1 Stat. 540 (1798); An Act for erecting Lighthouses, and placing buoys and stakes at the places therein mentioned, 1 Stat. 563 (1798); An Act supplementary to the act providing for the further defense of the ports and harbors of the United States, 1 Stat. 554 (1798); An Act more effectually to protect the Commerce and Coasts of the United States, 1 Stat. 561 (1798); An Act in addition to the act more effectually to protect the Commerce and Coasts of the United States, 1 Stat. 574 (1798); An Act further to protect the Commerce of the United States, 1 Stat. 578 (1798); An Act for erecting a Lighthouse at Gay-head, on Martha’s Vineyard; and for other purposes, 1 Stat. 607 (1798); An Act to erect a beacon on Boon Island, 1 Stat. 730 (1799); An Act to continue in force the act intituled [sic] “An Act to authorize the defence [sic] of the merchant Vessels of the United States against the French depredation, 2 Stat. 39 (1800); and An Act to provide for rebuilding the Lighthouse at New London; for the support of a Lighthouse at Clarks’ Point; for the erection and support of a Lighthouse at Wigwam Point, and for other purposes, 2 Stat. 57 (1800). The Constitution guarantees personal rights and liberties of Americans. Andrew P. Napolitano, Constitutional Chaos x (2004). Judge Napolitano writes that natural law, not positive law, is the basis for the rights of people. Id. at xii. Legislatures cannot interfere with a natural right. Id. at xiv. The Declaration of Independence is the “anchor of our liberties”, where Jefferson argues for the natural law origin of American liberties. Id. at xv. The Constitution, and Bill of Rights, recognizes rather than grants these natural law rights. Id. Rights are specific constitutionally granted freedoms, but liberties are more general and may not be impacted without due process. Id. A compelling state interest is required to override a fundamental right. Id. at 36. The inalienable rights of life, liberty and the pursuit of happiness cannot be taken from an American without due process. Id. at 43. Fundamental rights are guaranteed by the Bill of Rights. The 14th Amendment applies the Bill of Rights to the states. Id. at 55. Some rights are stated by placing a limitation on the 14th Amendment which applies the Bill of Rights to the states. Id. at 55. Some rights are stated by placing a limitation on the excise of certain governmental powers such as eminent domain. Id. at 66. Compare Ruppert v. Caffery, 251, U.S. 264 (1920).

B. Constitutional Commerce, Interstate and Foreign

293

The Federal Government only holds the delegated Commerce Clause public trust responsibility for administrative exercise of public rights as the federal navigation servitude. The public trust responsibility is inherent in the Commerce Clause national authority, is co-extensive with it and, as under the predecessor Royal Prerogative jus publicum, that public trust responsibility is held and applied consistently with the navigational freedom principle. As protected and preserved public rights, navigation and fishing have a priori status over littoral and riparian estates. As a governmental power, regulation of commerce delegated by the “people of the United States” to the Federal Government in the 1789 Constitution extends to all matters of interstate and foreign commerce. As applied under the Commerce Clause, the United States “navigation servitude” is not limited to navigable waters within the tidal flow, but rather extends to all waters used or which may be used in commerce and, thereby, changes their legal status to “navigable waters of the United States”.75 In addition, the commerce power is jurisprudentially

75

“The power to regulate navigation is the power to prescribe rules in conformity with which navigation must be carried on”. Cooley v. Board of Wardens, 53 U.S. (12 How.) 300, 316 (1851). “[T]he jurisdiction of the general government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of the navigable waters courses of the country even against any State action”. United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 690, 703 (1899). Navigability cannot be obstructed or diminished. United States v. Republic Steel Corp., 362 U.S. 482, 489 (1960). Determinations by Congress, that its actions are in furtherance of navigation, involve matters for Congress alone to evaluate. United States v. Twin City Power Company, 350 U.S. 222, 224 (1956); United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company, 312 U.S. 592, 596 (1940). Whether a stream is navigable is a federal question. Alaska v. Ahtna, 891 F.2d 1401, 1404 (9th Cir. 1989), cert. denied 495 U.S. 919 (1990). The United States applies its municipal law to citizens within the navigable waters of the United States as well as in the various coastal maritime zones and on the high seas, and equally applies that law to vessels which have been documented as United States vessels. 106 Stat. 4309; 46 U.S.C. § 12101 (2000). Notably documentation certificates are endorsed indicating the licensing of the vessel in the coastwise trade, fisheries or recreational enrollment categories. 46 U.S.C. §§ 12103–12109. In Douglas v. Seacoast Products, 431 U.S. 265 (1977), such documentation and enrollment in the fisheries prevent the State of Virginia from discriminatorily excluding out-of-state vessels of the United States from the menhaden fishery within the United States territorial sea. Id. at 277. Seacoast Products is the “fisheries side” of Gibbons. Id. at 280. The Supreme Court writes: While appellant may be correct in arguing that at earlier times in our history there was some doubt whether Congress had the power under the Commerce Clause to regulate the taking of fish in State waters, there can be no question today that such

294

Chapter VI

Paradigm – Commerce In The Balance

broader than the public navigation servitude, so that real property which is neither littoral nor riparian may be used or taken for national purposes, but only the use or taking which is pursuant to the navigation servitude for the benefit of navigation is constitutionally non-compensable. The intriguing aspect of the Commerce Clause is that the law merchant and the voyaging uses of the high seas, both appearing in the ancient Laws of Oleron, Wisby and the Hanse Towns, as well as throughout the Stuart efforts to control the narrow seas, or British Seas, or the King’s Chambers, all recognize that the point, purpose and essence of the navigational freedom principle is commerce76 – as does the Commerce Clause of the United States Constitution.77 The commercial basis of navigation is perhaps best captured by Justice Marshall writing for the United States Supreme Court in Gibbons v. Ogden: The subject to be regulated is commerce; and our constitution being, as aptly said at the bar, one of enumerations, and not definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce undoubtedly is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on in that intercourse. The mind can scarcely conceive of a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels on one nation into the ports of another, and be confined to prescribing rules for the conduct of individuals in the actual enjoyment of buying and selling, or of barter.78

76 77 78

power exists where there is some effect on interstate commerce. Perez v. United States, 402 U.S. 146 (1971); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Wickard v. Filburn, 317 U.S. 111 (9142). The movement of vessels from one State to another in search of fish, and back again to processing plants, is certainly activity which Congress could conclude affects interstate commerce. Cf. Toomer v. Whitsell, 334 U.S. 385, 403, 406 (1948). Id. at 282–83. The Coast Guard administers the documentation program. 63 Stat. 500; 14 U.S.C. § 81 (2000), as well as emplacing and maintaining aids to navigation and adopting navigation rules for waters subject to United States jurisdiction. 63 Stat. 501; 14 U.S.C. § 85 (2000). Such rules include those for inland waters. 28 Stat. 672; 33 U.S.C. § 151 (2000). Bridges, snags, debris, wrecked vessels and other items constituting impediments or obstructions to navigation on the navigable waters of the United States are subject to Coast Guard authority and may be removed. 33 U.S.C. §§ 415, 7018. See supra pp. 13–15, 24. See supra pp. 122–48. Gibbons, 22 U.S. (9 Wheat.) 1, 189 (1824). Gibbons also recognizes that Congress can

B. Constitutional Commerce, Interstate and Foreign

295

The constitutional power over commerce is plenary.79 The commerce power is broad, and encompasses not only all commerce, but the instrumentalities of commerce, and even intrastate activities which impact or may impact

79

adopt State police power regulations of commerce under the Commerce Clause authority. That is the case for pilotage which is state regulated today. Id. at 207–08. The concept of federal police power was discussed in United States v. Darby, 312 U.S. at 114. See also the discussions of state pilotage regulation in Koch v. Board of River Port Pilot Comm’rs, 330 U.S. 552, 558 (1947), reh’g denied, 331 U.S. 864 (1947); The Swift Arrow, 292 F. 651 (D. Mass. 1923); Leech v. Louisiana, 214 U.S. 175 (1909); and The Glenearne, 7 F. 604, 607 (D. Ore. 1881). States are acknowledged to have regulatory police power jurisdiction over the navigable waters within their territories for the purposes of health, welfare and public safety. California v. Thompson, 313 U.S. 109, 115 (1941); Boyd v. Alabama, 94 U.S. (4 Otto) 645 (1876); Parker v. Brown, 317 U.S. 341, 359 (1843). When Congress acts over those navigable waters within the Commerce Power, state police power regulations are excluded. See Wilson v. Black Bird Creek Marsh Company, 27 U.S. (2 Pet.) 245, 251 (1829), where a state authorization for construction of a dam on navigable waters is upheld until Congress acts to determine that it is an obstruction. The states cannot impede the free flow of commerce, and it is a matter of ongoing definition as to the areas where states can act. Southern Pacific Company v. Arizona, 325 U.S. 761, 767, 768 (1945). Where state regulation takes private property there must be compensation. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). When the United States acts under the Commerce Clause to preserve unobstructed navigation no compensation is due, regardless of whether state authority initially authorized the obstruction. Monongahela Bridge Company v. United States, 216 U.S. 177 (1910); Union Bridge Company v. United States, 204 U.S. 364, 399, 400 (1907); Newport and Cincinnati Bridge Company v. United States, 105 U.S. (15 Otto) 470, 475, 483–484 (1882). National League of Cities v. Usery, 426 U.S. 833, 840 (1976). See also United States v. Darby, 312 U.S. 100, 109, 114 (1941); United States v. Carolene Products Co., 304 U.S. 144, 147 (1938) (Citing Gibbons that the power of Congress over commerce is complete). And see Mulford v. Smith, 307 U.S. 38, 48 (1939). “Under the power to regulate commerce provision has been made by law for the improvement of harbors, the establishment of observatories, the erection of lighthouses, breakwaters and buoys, the registry, enrollment, and instruction of ships, and a code has been enacted for the government of seamen”. Knox v. Lee (Legal Tender Cases), 79 U.S. (12 Wall.) 457 (1871). When the commerce power is exercised outside the navigational servitude, and state or private property is taken for a public use in conjunction with some exercise of federal power over navigable waters, compensation is required by the 5th Amendment to the United States Constitution. Kaiser Aetna v. United States, 444 U.S. 164, 173 (1979); Bauman v. Ross, 167 U.S. 548, 563 (1897); United States v. Gettysburg Electric Ry Co., 160 U.S. 668, 679–81, 684 (1896). Such “taking” of state or private property is an exercise of the eminent domain power inherent in government. United States v. Cormack, 329 U.S. 230, 236 (1947); United States v. Lynch, 188 U.S. 45, 465 (1903). Thomas Merrill and Thomas W. Merrill Danna’s Property Takings 1–5, 68, 74, 116–17, 132 (2002).

296

Chapter VI

Paradigm – Commerce In The Balance

interstate and foreign commerce.80 Moreover the commerce power is not static, and continues to evolve as described in Pensacola Telegraph Company v. Western Union Telegraph Company: The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known and in use when the Constitution was adopted, but they keep pace with the progress of the country, and adopt themselves to the new developments of time and circumstances. They existed from the horse with its rider to the stage-coach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were entrusted to the General Government for the good of the nation, it is not only the right but the duty of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation.81

Such commercial connection with the basic navigational freedom principle today provides the matrix for developing international and littoral state jurisdictional zones and overlapping resource conservation and extraction rights as a matter of both United States municipal law and international law of the res communis public trust as interpreted and applied by the United States.82

80

81

82

United States v. Lopez, 514 U.S. 549, 632–37, 642 (1995); Heart of Atlanta Motel, 379 U.S. 241, 256, 261 (1964); Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 446 (1827). Some matters of interstate and foreign commerce have been left to the states for regulation because the states are in a better position to exercise governmental authority, such as quarantine and pilotage matters. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 316, 318 (1851). But there are constitutional limits which the state police power cannot cross. Edwards V. California, 314 U.S. 160, 172–74 (1941). And there are subject matters which are exclusively within the commerce power of the Federal Government regardless of whether Congress has acted. Gus, Leisy & Company v. Hardin, 135 U.S. 100, 108–09, 122 (1890). Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U.S. (6 Otto) 1, ____; 24 L. Ed. 708, 710 (1878). Zabel v. Tabb, 430 F.2d 199, 203 (5th Cir., 1970); cert. denied 401 U.S. 910 (1971). In Zabel the Court writes as follows: The starting point here is the Commerce Clause and its expansive reach. The test for determining whether Congress has the power to protect wildlife in navigable waters and thereby regulate the use of private property for this reason is whether there is a basis for the Congressional judgment that the activity regulated has a substantial effect on interstate commerce. Wickard v. Filburn, 1942, 317 U.S. 1111, 125, 63 S. Ct. 82, 89, 87 L.Ed. 122, 135. That this activity meets this test is hardly questioned. In this time

B. Constitutional Commerce, Interstate and Foreign

297

The Commerce Clause as applied to interstate and foreign commerce in the 20th century became the backbone of United States authority exercised over inland and coastal navigable waters as governmental navigational servitudes.83 Thus, the United States exercises governmental protective jurisdiction over maritime waters consolidating the occupation and possession of the territorial sea and extending jurisdiction throughout the various coastal zones, which is consistent with Selden’s view of Royal Prerogative action. Criminal law jurisdiction is the ultimate expression of such sovereign authority, and the United States quickly expanded the 1789 Constitutional delegation of admiralty and maritime authority84 to encompass criminal activity as “special maritime” jurisdiction. Such navigational servitude is an exercise of protective jurisdiction for the preservation of commerce on navigable waters of the United States. In the 1790 Act for Certain Crimes Against the United States federal maritime jurisdiction is applied as a governmental servitude over piracy, barratry, murder and other crimes on navigable waters, whether on the high seas or in rivers, harbors or other internal waters outside the jurisdiction of a state.85 This followed the 1789 Judiciary Act which implements federal maritime jurisdiction as a governmental servitude on all waters within the respective judicial districts that are “navigable from the sea”, as well as on the “high seas” for crimes, and “all civil causes of admiralty and maritime jurisdiction” and, perhaps most

83

84 85

of awaking to the reality that we cannot continue to despoil our environment and yet exist the nation knows, if courts do not, that the destruction of fish and wildlife in our estuarine waters does have a substantial, and in some areas devastating, effect on interstate commerce. Landholders do not do not contend otherwise. Nor is it challenged that dredge and fill projects are activities which may tend to destroy the ecological balance and thereby affect commerce substantially. Because of these potential effects Congress has the power to regulate such projects. Justice Marshall’s opinion in Gibbons, 22 U.S. (9 Wheat.) at 189–93, 196–97, confirms the Supreme Court’s understanding of commerce as “commercial intercourse” to mean transactions with a monetary element but not necessarily profit, but movement of every kind. Constitution, supra c. iii, note , at 143. Today that commercial power, couple with the “necessary and proper” clause (U.S. Const. art. II, § 8, cl. 18) extends to all transactions and activities of an interstate nature not prohibited to the Federal Government by the Constitution. Id. at 149–50. Commerce has “self-operating dimensions”. Ely, supra c. iii, note 105, at 83. U.S. Const. art. III, § 2, cl. 1. Sec. 8, 1 Stat. 112 (1790). See also An Act for the punishment of certain crimes against the United States, Sec. 8, 1 Stat. 112 (1790); An Act in addition to the act for the punishment of certain crimes against the United States, Sec. 6, 1 Stat. 381 (1794).

298

Chapter VI

Paradigm – Commerce In The Balance

importantly, for the basic navigational freedom principle, “exclusive” original jurisdiction over “all seizures under the laws of impost, navigation, and trade of the United States.”86 The 1789 Judiciary Act follows on the constitutional grants of exclusive Federal Government judicial authority over “all Cases of admiralty and maritime jurisdiction” and legislative authority “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”87 Congress drafted the 1789 Judiciary Act in terms of “navigable waters” and included therein “waters navigable from the sea” – the initial and important extension of juridical navigable waters from the colonial era leaving behind English admiralty law, which was limited to waters with the flow and reflow of the tide for both criminal jurisdiction and instance jurisdiction.88 Today piracy remains a high seas crime under federal law,89 and federal criminal jurisdiction is applied within the “special admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State”

86 87 88

89

Sec. 9, 1 Stat. 73, 76–77 (1789). U.S. Const. art. II, § 8, cl. 10. The jurisdiction of colonial admiralty courts became a sore point as criminal trials were moved there to avoid acquittals by colonial juries. See L. Kinvin Wroth, The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction, 6 A. J. Legal Hist. 250, 257–58 (1962). Pirates captured within the territories of colonies could be tried by colonial courts and executed. Nixes Mate, an island in Boston harbor, became a public reliquary for display of their hanging, chained and disintegrating remains, to serve as warning to would-be fellow travelers. Edward R. Snow, The Islands of Boston Harbor 79–86 (reprinted 2002) (1935). Crimes committed on the high seas were considered within the federal admiralty jurisdiction from the beginning. Opinion of Charles Lee, Attorney General, to T. Nelson, United States District Attorney, Sept. 20, 1798, in Opinions of the Attorneys General [–] 49 (1851) (hereinafter Opinions). States could issue letters of marque, which protected the holder from charges of piracy. Keane v. The Brig Gloucester, 2 Dall. 36 (Fed. Ct. of Capture App.) (1782). For State authority over pirates see The Speedwell, 2 Dall. 40 (Fed. Ct. of Capture App.) (1740). State authority over pirates passed to the Federal Government with adoption of the Articles of Confederation. United States v. Peters, 9 U.S. (5 Cr.) 115, 140 (1809). Customs levies and enforcement were removed from state jurisdiction. Sanneborn Bros. v. Cureton, 262 U.S. 506 (1923); and Qui Tam v. The Ship Anna, 1 Dall. 197 (Ct. of Pleas of Phila. City) (1787). The states have territorial jurisdiction over internal waters. United States v. Bevans, 16 U.S. (3 Wheat.) 336, 386 (1818); Van Horne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304–05, 397 (1795). See United States v. Grush, 5 Mason 290 (1st Cir. 1829). 18 U.S.C. § 1651 (2000); and an Act for Suppression of Piracy, 33 U.S.C. § 382 (2000); R.S. 4293; 12 Stat. 315.

B. Constitutional Commerce, Interstate and Foreign

299

including the “Great Lakes, or any of the waters connecting them, or upon the St. Lawrence River where the same constitutes the international boundary line.”90 That special admiralty and maritime jurisdiction for criminal acts thereby follows the post-colonial, commerce-based navigable waters admiralty jurisdiction test, leaving local law enforcement on navigable waters to the respective states within their territories under the police power.91 The freedom of navigation principle is manifest in the United States special admiralty and maritime criminal jurisdiction applied as a governmental navigational servitude to protect and preserve the exercise of such freedom in pursuit of commercial purposes. Admiralty non-criminal jurisdiction is applicable both outside and within state territories based on admiralty subject matter jurisdiction as vested in the Federal Government by the Constitution.92 Admiralty jurisdiction is defined by the geographical circumstance of navigable waters and the relationship of maritime matters to voyaging. As such Admiralty benefits from the commerce-based inclusion of rivers and the Great Lakes as navigable waters of the United States. Admiralty is a traditional and statutory body of municipal law concerning commercial matters of shipping, carriage of goods by sea, labor, contracts, marine insurance and maritime torts, among other items – all facilitating navigable waters commercial uses consistent with the freedom of navigation principle. Admiralty jurisdiction looks to the use of navigable waters as its underlying jurisdictional test, both as a body of commerce-related law and as a governmental servitude over the commercial uses of jurisdictional navigable waters and related commercial activities. This is not the Commerce Clause power, but rather is the separate constitutionally delegated authority over maritime and commercial matters and provides regulation of the public navigation right within the context of admiralty subject mater jurisdiction. The common point is commerce as the juridical basis both for the Commerce Clause public trust navigation servitude and the admiralty instance and criminal jurisdiction.

90 91

92

18 U.S.C. § 7 (2000). Commerce power is applied to interstate matters, and only certain defined federal crimes are recognized to have interstate impacts. U.S. Const. art. III, § 2, cl. 1, which reads as follows: Clause 1: The judicial power shall extend to all Cases, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their authority; . . . to all cases of admiralty and maritime jurisdiction. . . .

300

Chapter VI

Paradigm – Commerce In The Balance

The 19th century judicial determinations solidly established Federal Government control of the inland navigable waters of the United States under the commerce power,93 and did so almost in parallel with the developing concept of federalism under the equal footing doctrine. The 1851 decision in The Genessee Chief 94 caps this era, where the Supreme Court defines navigable waters by commercial use rather than tidal flow: It is evident that a definition that would at this day limit public rivers in this country to tide-waters is utterly inadmissible. We have thousands of miles of public navigable water, including lakes and rivers in which there is no tide. And certainly there can be no reason for admiralty power over a public tide water, which does not apply with equal force to any other public water used for commercial purposes and foreign trade. The lakes and waters connecting them are undoubtedly public waters; and we think are with the grant of admiralty and maritime jurisdiction in the Constitution of the United States. *

*

*

The jurisdiction is here made to depend upon the navigable character of the water, and not upon the ebb and flow of the tide. If the water was navigable

93

94

The expanded possibilities of the Commerce Clause developed largely in the 20th century. Chemerinsky supra c. iii, note 8, at 230. Justice Taney in The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 454 (1851), writes as follows: The Union is formed upon the basis of equal rights among the States. Courts of admiralty have been found necessary in all commercial countries, not only for the safety and convenience of commerce, and the speedy decision of controversies, where delay would often be ruin, but also to administer the laws of nations in a season of war, and to determined the validity of captures and questions of prize or no prize in a judicial proceeding. And it would be contrary to the first principle upon which the Union was formed to confine these rights to the States bordering the Atlantic, and the tidewater rivers connected with it, and to deny them to the citizens who border on the lakes, and the great navigable streams which flow through the western States. * * * That equality does not exist if the commerce on the lakes and on the navigable waters of the West are denied the benefits of the same courts and the same jurisdiction for its protection which the Constitution secures for the States bordering on the Atlantic. Justice Taney also finds that ignoring the location of ports of entry on navigable waters above the tidal flow is arbitrary, though acceptable and accurate at the time of the adoption of the Constitution in 1789 when the English rule of admiralty jurisdiction applied; but the Constitution is not bound by the English rule. Id. at 455–56, 458. Cf. Douglas v. Seacoast Products, 431 U.S. 265, 285 (1977).

B. Constitutional Commerce, Interstate and Foreign

301

it was deemed to public; and if public, was regarded as within the legitimate scope of the admiralty jurisdiction conferred by the Constitution.95

The United States held sovereignty over a traditional three-geographic-mile territorial sea from the 19th century into the 20th century96 through paramount national power, as confirmed by the 1947 California decision, where the Supreme Court makes it clear that the states hold no rights to the seabed or subsoil below low-water mark in right of the respective states prior colonial existence.97 As discussed earlier, Congress responded by adopting the 1953 Submerged Lands Act, (1) by assigning to the littoral states the navigable waters as well as “title to and ownership” of lands beneath navigable waters within their territory, both tidal and non-tidal, and (2) by ceding to the states the submerged lands and waters within the then three-geographic-mile outer boundary of the territorial sea.98 The interesting point is not the grants, but the Submerged Lands Act reservation of rights to the United States:

95

96

97 98

The Genesee Chief, 53 U.S. (12 How.) at 457. The Supreme Court in The Genesee Chief overruled earlier decisions limiting admiralty jurisdiction to tidal waters, finding that the 1789 and 1845 Judiciary Acts appropriately gave admiralty jurisdiction over non-tidal waters involved in interstate or international commercial use – and although generally referring to “admiralty jurisdiction” in one instance refers to “admiralty power”, which appropriately is the delegated source of the jurisdiction and hence consistent with moving beyond the English and prior American practice limiting the application of that power by the narrow tidal definition of navigable waters. Notably the waters encompassed within the “navigable waters of the United States” now apparently include those not even connecting ultimately to an ocean. Utah Div. of State Lands v. United States, 482 U.S. 193, 195, 198 (1987), and the navigable waters test for use in commerce now includes recreation where there a recreational industry involved. Alaska v. Ahtna, 891 F.2d at 1405. Cunard S.S. Co. v. Melon, 262 U.S. 100 (1922). The Supreme Court in Cunard S.S. Co. writes, “[i]t is now settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and control, the ports, harbors, bays and other enclosed arms of the sea extending from the coastline outward a marine league, or three geographic miles”. Id. at 122. 1947 California, 332 U.S. 19 (1947). 43 U.S.C. §§ 1301(a), (b), 1302, 1311(a), (d), 1312–1314 (2000). States’ rights to waters within their territories are described in Bonnelli Cattle Company v. Arizona, 414 U.S. 313 (1973). Florida has a nine-geographical-mile seaward boundary in the Gulf of Mexico above the Dry Tortugas, United States v. Florida, 361 U.S. 121 (1960), and Texas has a nine-geographical-mile seaward boundary in the Gulf of Mexico, United States v. Texas, 339 U.S. 707 (1950).

302

Chapter VI

Paradigm – Commerce In The Balance

The United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include a proprietary right of ownership, or the rights of management, administration, leasing, use, and developments of the lands and natural resources which are specifically recognized, confirmed, established, and vested in and assigned to the respective States. . . .99 (Emphasis added.)

The navigation servitude over these navigable waters of the United States is thereby maintained, and is consistent with the navigation servitude of the Commerce Clause public trust, the inherited jus publicum. The United States’ rights over the continental shelf beyond the outer boundary of the territorial sea are not asserted as incidents of territorial sovereignty as within the territorial sea under the Submerged Lands Act. Rather, under the Outer Continental Shelf Lands Act the seabed and subsoil100 of the continental shelf are said to be subject to United States “jurisdiction and control”, which it stipulates to include the “power of disposition”, without impact on the character of the supervening waters as high seas or fishing.101 Importantly, and consistently with navigable waters jurisdiction derived from commerce, the outer continental shelf is described as a “vital natural resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.”102 (Emphasis added.) The United States has proceeded further to adopt additional commerce-derived language for the development of the territorial sea and continental shelf

99

100

101 102

43 U.S.C. § 1314 (2000). But the Act is clear that all structures and improvements constructed by the United States “in exercise of its navigational servitude” are exempt from state authority. 43 U.S.C. § 1313(c) (2000). Further, the Act provides that: Nothing in this subchapter or subchapter I of this chapter shall affect the use, development, improvement, or control by or under the constitutional authority of the United States of said lands and waters for the purpose of navigation or flood control or the production of power. 43 U.S.C. § 1311(d) (2000). 43 U.S.C. §§ 1331(a), 1332(1) (2000). See also Convention on the Continental Shelf, supra note 430, art. 2, 15 U.S.T. 473. 43 U.S.C. § 1332(1) (2000). 43 U.S.C. § 1332(3) (2000).

B. Constitutional Commerce, Interstate and Foreign

303

resources in the Deepwater Ports Act of 1975,103 the Outer Continental Shelf Resource Management Act of 1978104 and the Thermal Energy Act of 1980.105 It is important to bear in mind that the regulated participants in these commercial activities are the public and, while these activities are appropriately regulated by the United States, they nonetheless are pursued as matters within the constitutional commerce power. Fisheries jurisdiction is within the jus publicum responsibility of the Commerce Clause public trust for protection and preservation of the public right, and as a commercial activity. Under the Constitution it is the connection of the public right and the constitutional right to regulate commerce, coupled with the constitutional treaty-making power, which enables municipal law navigational servitudes for fisheries regulation to be applied to foreign vessels and persons consistent with customary, treaty and conventional international law. Due to pressure from foreign fishing activities the United States adopted the Bartlett Act106 in 1964 asserting exclusive jurisdiction for management and exploitation of fisheries in a zone contiguous to the territorial sea and initially measuring three geographic miles seaward from the territorial sea baseline. Fisheries, both as a commercial activity and as a jus publicum public right, may be said to be per se in commerce within the Federal Government’s Commerce Clause public trust responsibility. Two years later the Bartlett Act was amended to extend 12 geographic miles from the territorial sea baseline.107 Continued foreign fishing pressure on

103

104

105

106 107

The act regulates and licenses the construction, ownership and operation of deepwater ports facilities for the better regulation of vessel traffic and economic means of safely bringing continental shelf oil to the “United States mainland” as a matter of foreign commerce. 33 U.S.C. §§ 1501(a), 1503(a) (2000). The act, as a matter of foreign commerce, provides for the management of oil and natural resource development on the Outer Continental Shelf “in order to achieve national economic and energy policy goals, assure national security, reduce dependence on foreign sources, and maintain favorable balance of payment in world trade.” 43 U.S.C. §§ 1801, 1802, 1812–1814 (2000). The act requires a license for enrolled vessels of the United States engaged in thermal energy conversion within the territorial sea, part of which is within state jurisdiction but the act applies under the commerce power over vessels of the United States engaged in foreign commerce. 42 U.S.C. §§ 9111, 9112, 9141 (2000). Registry and documentation of vessels (enrollment and licensing) as vessels of the United States is governed by 46 U.S.C. § 11 (2000), and administered by the Coast Guard. 16 U.S.C. § 1081 (2000). 16 U.S.C. §§ 1091–1094 (2000).

304

Chapter VI

Paradigm – Commerce In The Balance

the coastal fisheries resulted in the adoption of exclusive fisheries jurisdiction within a fisheries zone extending over the water column 24 geographic miles out from the territorial sea baseline with the Magnuson Act of 1976,108 and seaward over the continental shelf creatures. Domestic pressure in the fisheries resulted in the Magnuson–Stevens Fishery Conservation and Management Act of 1996, which revised the earlier Magnuson Act, extended exclusive fisheries jurisdiction over the water column out to the area within the 200-geographic-mile EEZ (formerly the 200-geographic-mile exclusive fishery zone), and beyond that over anadromous species and the creatures of the outer continental shelf.109 Environmental concerns similarly resulted in the adoption of the Coastal Zone Management Act of 1972110 pursuant to which the United States, in cooperation with the states, is acting to preserve the economic value (commerce) of coastal areas, and that coordination is required because the coastal zones are within the respective state territories but are impacted from interstate and foreign activities (commerce) in the territorial sea, EEZ and continental shelf.111 In addition, through a series of 20th century proclamations the United States has extended its municipal jurisdiction into coastal waters areas forming new zones of littoral state jurisdiction and management for maritime resources: (1) the 1945 Truman Proclamation claims the right to manage the resources of the continental shelf;112 (2) the three-geographic-mile territorial sea113 is extended by a 1988 proclamation to 12 geographic miles within which the United States exercises sovereignty and jurisdiction;114 (3) an Exclusive Economic Zone (EEZ) is adopted by a 1983 proclamation, contiguous with the outer boundary of the territorial sea and measuring 200 geographic miles seaward from the territorial sea baseline, within

108 109 110 111 112 113

114

Magnuson Conservation and Fishery Act, 16 U.S.C. §§ 1801, et seq. (2000). 16 U.S.C. § 1811 (2000). 16 U.S.C. § 1450 (2000). 16 U.S.C. § 1451 (2000). Truman Proclamation, supra c. iv, note 23. The three-nautical-mile limit had been based on the British practice and the succession of the United States to the British national interests off its coasts initially referencing the cannon-shot rule. Opinion of the Attorney General to the Secretary of State, May 14, 1793, in Opinions, supra note , at 13. The jurisdiction within the territorial sea was considered equal to that on land. Opinion of Charles Lee, Attorney General, to the President, March 11, 1799, in id. at 51. Proclamation No. 5928; 54 Fed. Reg. 777; 43 U.S.C.A. 1331 (West 1986, Supp. 2005), footnote (Dec. 27, 1988).

B. Constitutional Commerce, Interstate and Foreign

305

which the United States asserts “sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, both living and non-living, and the superjacent waters and with regard to other economic activities for the economic exploration and exploration of the zone”;115 and (4) a 24-geographic-mile contiguous zone, extending from the territorial sea baseline, replaces the earlier 12-geographic-mile contiguous zone116 by a 1996 proclamation, within which zone the United States exercises the control necessary to prevent infringement of its customs, fiscal, immigration, or sanitary laws or regulations within its territory or territorial sea.117 Each of these reflects governmental navigational servitudes as exercises of protective jurisdiction working with the municipal and high seas regime navigational servitudes under the commercial paradigm for protection and preservation of the navigational freedom principle – in a working relationship with the res communis public trust implementing the navigational freedom principle. The United States has enacted legislation controlling persons and vessels subject to its jurisdiction in the Contiguous Zone, the EEZ, on the Continental Shelf and on the high seas by entering into conventions related to pollution control, and it exercises that jurisdiction over citizens and vessels of the United States, as well as over those of other States when there is a threat to United States’ interests. Notably each of these enactments makes some reference to “navigation” or “economic” harm (commerce) to the United States, which is essential for Federal Government actions outside the United States territory, especially toward non-nationals and non-United States vessels within the contiguous zone or territorial sea or on the high seas. Specifically, the Ocean Dumping Act of 1974 applies to solid waste disposal which “endangers human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities”, which links the national police power118 with the constitutionally based power over foreign commerce and the treaty power.119 The persons and vessels affected include

115

116

117

118 119

Proclamation No. 5030; 48 Fed. Reg. 10601; 16 U.S.C.A. 1453 (West 2000), footnote (March 10, 1983). In addition university-based research centers were authorized for continental shelf and seabed research under the Marine Minerals Resource Research Act, 30 U.S.C. §§ 1901, et seq. (2000). Tariff Act of 1930, 19 U.S.C. § 1401(j) (2000); and Convention on the Territorial Sea and Contiguous Zone, Geneva Conventions, supra c. iv, note 2, art. 24, 15 U.S.T. 1606. Proclamation No. 7219; 64 Fed. Reg. 48701; 43 U.S.C.A. 1331 (West 1986, Supp. 2005), footnote (Aug. 2, 1996). 33 U.S.C. § 1401 (2000). United States v. Darby, 312 U.S. 100, 114 (1941).

306

Chapter VI

Paradigm – Commerce In The Balance

especially those voyaging from outside United States navigable waters into such waters, and the Act implements the Convention on the Prevention of Marine Pollution by dumping of Wastes and Other Matter.120 Also in 1974 the Pollution Casualties on the High Seas Act121 was adopted implementing the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution,122 and the 1973 Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other than Oil.123 This Marine Pollution Act jurisdiction is asserted based on “a grave and imminent danger to the coastline or related interests of the United States from pollution . . . which may reasonably be expected to result in major or harmful consequences”.124 Commercial impacts are subsumed in this broad language. The Prevention of Pollution from Ships Act follows this same legislative pattern to control disposal of garbage and solid waste by vessels within the navigable waters of the United States or waters subject to its jurisdiction including the EEZ and the Antarctic.125 This is again the Commerce Clause public trust protecting and preserving the navigational freedom principle by applying municipal navigational servitudes through extended protective jurisdiction. High seas marine fisheries and marine mammal protection on the high seas present another area where the United States has implemented international conventions controlling the commercial activities of its nationals under the Commerce Clause public trust.126 Fishing is of course per se within the commerce power, and halibut, tuna and salmon fishing agreements have

120 121 122 123 124 125

126

26 U.S.T. 2403; TIAS 8165; 1046 U.N.T.S. 121 (Dec. 29, 1972). 33 U.S.C. § 1471 (2000). 26 U.S.T. 765; TIAS 8068; 327 U.N.T.S. 3 (November 29, 1969). ___ U.S.T. ___; TIAS 10561; 1313 U.N.T.S. 3 (Nov. 2, 1973). 33 U.S.C. § 1472 (2000). 33 U.S.C. § 1901 (2000). This Act implements the 1973 International Convention for the Prevention of Pollution from Ships, London, (Dec. 29, 1972), ____ U.S.T. ______; TIAS ______; 1340 U.N.T.S. 184, as wells as the 1978 MARPOL Protocol, London, (Feb. 17, 1978), ___ U.S.T. ____; TIAS _____; 1340 U.N.T.S. 61, and the Antarctic Protocol, (Dec. 1, 1959), 12 U.S.T. 794; TIAS 4780; 402 U.N.T.S. 72. In the Atlantic Ocean the Northwest Atlantic Fisheries Convention Act, 16 U.S.C. § 5601 (2000), implements the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Washington, 1 U.S.T. 478; TIAS 2089; ratified Aug. 17, 1949. In the Pacific Ocean the North Pacific Anadromous Stocks Conventions Act, 16 U.S.C. § 5001 (2000), implements the 1952 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, Tokyo, 4 U.S.T. 380; TIAS 2786; 205 U.N.T.S. 71; ratified July 4, 1952.

B. Constitutional Commerce, Interstate and Foreign

307

been a primary focus.127 International cooperation has become essential to management and conservation of pelagic species such as tuna. Consequently the United States entered into the 1949 Convention for the Establishment of an International Commission for the Scientific Investigation of Tuna with Mexico,128 and the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Convention with Costa Rica,129 pursuant to which two commissions were established. Implementing legislation applied United States jurisdiction to vessels of the United States and to “any person” within the fisheries jurisdiction of the United States.130 In the Atlantic Tunas Convention131 the United States implementing legislation extends to fishing vessels subject to United States jurisdiction, including the EEZ,132 which

127

128 129 130 131 132

The United States and Canada entered into the 1953 Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, 5 U.S.T. 5; TIAS 2900; 222 U.N.T.S. 77, and 1979 Protocol, 32 U.S.T. 2483; TIAS 9855, to regulate the halibut fishery harvest and preserve the stock with implementing legislation extending to vessels within the United States EEZ and to “any person subject to the jurisdiction of the United States.” North Pacific Halibut Fishing Act, 16 U.S.C. §§ 773, 773a, 773e (2000). Salmon fishing is regulated under the 1982 Convention for the Conservation of Salmon in the North Atlantic Ocean, which as implemented by the United States prohibits salmon fishing within the EEZ and extends to “any person, or any vessel, subject to the jurisdiction of the United States.” North Atlantic Salmon Fisheries Act, 16 U.S.C. §§ 3601, 3606 (2000). In the Pacific Ocean 1985 Treaty between the United States and Canada Concerning Pacific Salmon as implemented by the United States again restrains and regulates salmon fishing and extends “to any person or vessel subject to the Jurisdiction of the United States.” Pacific Salmon Fishing Act, 16 U.S.C. §§ 3631, 3637 (2000). The United States’ ultimate seaward jurisdiction over its Commerce Clause fishing authority occurs with the implementation of the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (TIF April 24, 2003) where the United States limits high seas fishing to vessels permitted under the Act, which are documented vessels enrolled and licensed in the high seas fishery, and prohibits “any person subject to the jurisdiction of the United States” from high seas fishing without a permit or in contravention of FAO conservation and management rules within the Act. High Seas Fishing Compliance Act, 16 U.S.C. §§ 5501, 5504, 5505, 5520 (2000). Finally, the Marine Sanctuaries Act, 16 U.S.C. §§ 1431, 1432, 1435 (2000), enables the designation of certain offshore areas within United States jurisdiction for designation as sanctuaries where fish harvesting is excluded to assist other species or to preserve or restore the ecology of the area or habitat. Jan. 25, 1949, 1 U.S.T. 491; TIAS 2094. May 31, 1949, 1 U.S.T. 230; TIAS 2044. Tuna Conventions Act, 16 U.S.C. §§ 951, 959(d)(1) (2000). Rio De Janeiro, May 14, 1966, 20 U.S.T. 2887; TIAS 6767; 673 U.N.T.S. 63. Atlantic Tunas Convention Act, 16 U.S.C. §§ 971, 971d (2000).

308

Chapter VI

Paradigm – Commerce In The Balance

means foreign vessels regardless of whether parties to the convention. The 1983 Eastern Pacific Ocean Tuna Fishing Agreement133 is implemented by legislation extending authority over “any person” subject to the jurisdiction of the United States,134 which includes citizens, vessel owners and persons of States parties and non-party states within the EEZ and the territorial sea. And, in the South Pacific, the 1987 Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America135 has been implemented by again extending the statutory provisions to “any person” subject to the jurisdiction of the United States.136 Comparably, marine mammal protection appearing in the 1946 International Convention for the Regulation of Whaling137 has been implemented by the United States and extends “to any person” subject to the jurisdiction of the United States, which jurisdiction has geographically expanded to include the EEZ.138 The 1972 Marine Mammal Protection Act comprehensively addresses the circumstance of endangered marine mammals of all species,139 including a prohibition on taking whales,140 and significantly prohibits the taking of marine mammals on the high seas by persons subject to United States jurisdiction,141 or by any vessel or person within the territorial sea or EEZ.142 It is noteworthy that, whereas this statute does not regulate fisheries, which by the public trust responsibility would be per se within the commerce power, Congress in the Marine Mammal Protection Act finds that “marine mammals and marine mammal products either – (A) move in interstate

133 134 135 136 137 138

139 140 141 142

16 U.S.C. § 972 (2000). 16 U.S.C. §§ 972, 972f (2000). 26 I.L.M. 1048 (1987). 16 U.S.C. §§ 973, 973c (2000). 62 Stat. 1716; Washington, May 31, 1949, 1 U.S.T. 230; TIAS 1849; 161 U.N.T.S. 72. Whaling Convention Act, 16 U.S.C. §§ 916, 916c (2000). Congress has directed further research on whales within the EEZ. Whale Conservation and Protection Act, 16 U.S.C. § 917 (2000). The same approach is taken for implementing legislation under the 1957 Interim Convention on the Conservation of North Pacific Fur Seals where a Commission is established and the statutory provisions applied to “any person or vessel subject to the jurisdiction of the United States.” Fur Seal Management Act, 16 U.S.C. §§ 1151, 1152 (2000). 16 U.S.C. § 1361 (2000). 16 U.S.C. § 1372(d)(2)(f ) (2000). 16 U.S.C. § 1372(a)(1) (2000). 16 U.S.C. § 1372(a)(2)(A) (2000).

B. Constitutional Commerce, Interstate and Foreign

309

commerce, or (B) affect the balance of marine ecosystems in a manner which is important to other animals and animal products which move in interstate commerce, and that the protection and conservation of marine mammals and their habitats is therefore necessary to insure the continuing availability of those products which move in interstate commerce.”143 The constitutional ability of the Federal Government to act by implementing governmental navigational servitudes to regulate commercial activities both within the public trust and under the broader Commerce Clause responsibility patently is manifest in the Constitutional delegation of authority over “interstate and foreign commerce”. The point is that regulation in public trust for the protection and preservation of the navigational freedom principle and its associated navigable waters commerce is congruent and consistent with the public rights of the American People. Historically navigation was regulated as an incident of commerce,144 and over time moved from a subject matter regulation to a jurisdictional contest between littoral State defensive jurisdiction and high seas freedom of navigation, marked by the Grotius/Selden dispute of the 17th century, which had a municipal law parallel in the English contest between admiralty and common law jurisdiction, with the remarkable circumstance that the Royal Prerogative jus publicum public rights of navigation and fishing in navigable waters were enforceable at, but not derived from, common law.145 Indeed the applicable jurisdiction for “navigable waters” was not common law but admiralty, initially demarcated as applying landward over navigable waters

143 144 145

16 U.S.C. § 1361(5)(A) (2000). See Chapter I. Note that the Royal Prerogative is not the basis for the public rights to navigation and fishing; those rights were in the public, while the Royal Prerogative held them in public trust. That Royal Prerogative obviously did not carry over to the United States, but the public rights are retained under the Ninth Amendment to the Constitution consistent with the Supreme Court’s Statement that, “[e]very nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own government, and not according to the government ceding it.” Pollard v. Hagan, 44 U.S. (3 How.) 212, 225 (1845). Equally the power over foreign affairs was never held by the states, and thus could not be delegated by them, but it could be delegated by the people, who also held the rights of navigation and fishing from trust of the same prior sovereign, Britain. Cf. United States v. Curtis-Wright Export Corporation, 299 U.S. 304, 315–18 (1936). It is the non-delegated foreign affairs power which is the root of executive power to enter into Executive Agreements without the constitutional consent of the Senate as required for treaties. Id. at 3318.

310

Chapter VI

Paradigm – Commerce In The Balance

within the ebb and flow of the tide. For the United States, the return to commerce as the defining element of navigable waters jurisdiction begins with the adoption of the 1789 Constitution and its implementation of Commerce Clause public trust and associated authority over navigable waters arising from their involvement in interstate or international commerce rather than the presence of a tidal flow.146 One important contemporary exercise of the Federal Government’s commerce power implemented within the national territory best reflects the next stage for protection and preservation of the basic navigational freedom principle as evolved from the Selden/Grotius dispute hydropower.147 Exercising

146

147

The opinion of Justice Field in The Steamer Daniel Ball v. United States, 77 U.S. (10 Wall.) 557 (1877), is frequently quoted on this point, though the reason for the tidal flow test of navigable waters had nothing to do with navigation of English rivers and a lot to do with the disputed jurisdiction between admiralty and the common law: Upon the first of the questions we entertain no doubt. The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all as to the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide-water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide-water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. [Citations omitted.] A different tact must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the Acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. The point on navigable rivers in the United States is patent in Peyroux v. Howard, 32 U.S. (7 Pet.) 324, 343 (1833). And see The Montello, 78 U.S. 411 (1870). There is no private property right in falling water because it is subject to the navigation servitude and subject to the action of Congress regarding navigation under the Commerce Power. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913). Individuals and states owning the beds of streams and lands below high water mark do so subject to the federal navigation servitude, such that there is no compensation due

B. Constitutional Commerce, Interstate and Foreign

311

the Commerce Clause authority over navigable waters of the United States the Federal Government began a program of rivers and harbors improvements148 and eventually authorized the installation of federal hydropower generating facilities at federal dams149 as well as the federal licensing of private hydropower generating facilities to be constructed on those navigable waters of the United States.150 The power generated at the federal dams is sold by the United States with preference for municipalities and cooperatives.151 The production and sale of hydropower were challenged as beyond the Federal Government’s navigation servitude responsibility and, therefore,

148

149

150

151

to them when the servitude is exercised. United States v. Cress, 243 U.S. 316, 319–20 (1917). Stream flow is a riparian right, but is subject to the power of the Federal Government in the navigation servitude. United States v. Twin City Power Company, 350 U.S. 222, 224 (1956). But where fast lands above high water mark are taken, it is the eminent domain power being exercised, even when in conjunction with purposes of commerce and use of navigable waters, so that compensation must be paid under the Fifth Amendment. Id. at 328; United States v. Virginia Electric and Power Company, 365 U.S. 624, 627–28 (1961). The “guiding principle” is to put the property owner in as “good a position pecuniarily [sic] as if his property had not been taken”, with regard to upland property not subject to the navigation servitude. Id. at 633. See also United States v. Willow River Power Company, 324 U.S. 499, 502, 506, 510–11 (1945); and for non-compensable takings below high water mark see Palm Beach Isles Associates v. United States, 208 F.3d 1374, 1382. 1384 (5th Cir. 2000); reh’g denied 231 F.3d 1365 (2000). The Federal Government need only pay “for what is taken, but for all that the Government takes it must pay.” United States v. Dickenson, 331 U.S. 745, 750 (1947). See Ronald Allen, Federal Evaluation of Riparian Property; Section 111 of the Rivers and Harbors Act of 1970, 24 Me. L. Rev. 175 (1972), discussing the navigation servitude. Rivers and Harbors Act, 62 Stat. 1171 (1948); Rivers and Harbors act, 59 Stat. 11 (1945); and Rivers and Harbors Act, 30 Stat. 1151 (1899); 33 U.S.C. §§ 401, 403, 407, 409 (2000). Today rather than “Rivers and Harbors Acts” Congress attempts to enact a Water Resources Development Act biannually. See for example legislation authorizing the installation of federal hydropower at Sam Rayburn Dam on the Angelina River in East Texas, Rivers and Harbors Act of 1948, Sec. 104, 62 Stat. 1171, 1174. And see Reclamation Projects Act, 43 U.S.C. § 371 (2000); Grand Coulee Dam (Columbia Basin Project) Act, 16 U.S.C. §§ 835, 835j (2000); Bonneville Project Act, 16 U.S.C. §§ 832, 832a (2000); Mississippi River Commission Act, 33 U.S.C. § 644 (2000); Tennessee Valley Authority Navigation and Flood Control Act, 16 U.S.C. §§ 831, 831h–1, 831i (2000); Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. § 837 (2000). Federal Power Act of 1920, 41 Stat. 1063 (1920); Federal Power Act of 1935, Part I, 16 U.S.C. §§ 791a, et seq. (2000). Flood Control Act of 1944, 16 U.S.C. § 825s (2000); Department of Energy Organization Act of 1977, 42 U.S.C. § 7101 (2000).

312

Chapter VI

Paradigm – Commerce In The Balance

ultra vires its commerce power authority. The Supreme Court addresses these arguments with a telling opinion in Ashwander v. TVA, writing: The Government acquired full title to the dam site, with all riparian rights. The power of falling water was an inevitable incident of the construction of the dam. That water power came into the exclusive control of the Federal Government. The mechanical energy was convertible into electrical energy, and the electrical energy thus produced, constitute property belonging to the United States. [Citations omitted.]152

Ashwander identifies hydropower as “electricity” and equates it with other federal property, such as coal, silver, lead, oil. The importance is that Ashwander describes such hydropower as an equally disposable federal property.153 Authority to dispose of federal property constitutionally acquired by the United States is expressly granted to the Congress under the Constitution, § 3 of Article 4. It is the interplay of the commerce power and the navigation servitude which is instructive. The navigation servitude may be applied by the Federal Government for construction of dams on navigable waters of the United States, but the installation of hydropower generating facilities is not an exercise of the navigation servitude. Rather, as explained in Ashwander, hydropower may be developed due to the presence of the federal property right in the dam constructed pursuant to exercise of the

152

153

Ashwander v. TVA, 279 U.S.288, 338–40 (1936). See also Tennessee Elec. P. Co. v. T.V.A., 306 U.S. 118 (1939); and New England Power Co. v. New Hampshire, 455 U.S. 331, 338 (1982). Ashwander, 279 U.S. at 336. Such disposition of federal hydropower is at the terms fixed by the Federal Government. Id. at 338–39. By disposing of such federal property the Federal Government is not entering into any “industry of business”. Id. at 340. Notably the Federal Government is without authority to acquire or dispose of hydropower except “in the operation of works constructed in the exercise of some power delegated to the United States.” Id. Sale of federal property in competition with private interests is constitutional. Tennessee Electric Power Co. v. TVCA, 306 U.S. 118, 143–44 (1939). That power of course belongs to the United States as an incident of the stream flow appertaining to the riparian owner United States v. Twin City Power Company, 350 U.S. 222, 224 (1956), but more to the point the Federal Government has the authority to construct facilities in navigable waters for the purposes of protecting and preserving navigation, and with such facilities may advantage the associated rights of mechanical falling water conversion to electrical energy disposed of as federal property. United States v. Chandler-Dunbar Water Power Company, 229 U.S. 53, 60, 69–70, 72 (1912). The construction of facility unrelated to the navigation servitude is not relevant to the exercise of that power. Twin City Power Company, 350 U.S. at 224.

B. Constitutional Commerce, Interstate and Foreign

313

navigation servitude.154 The sale of the hydropower output (electricity) therefore does not impact the Commerce Clause public trust responsibility for navigable waters, and is appropriate and constitutionally based as a sale of federal property obtained by the conversion of mechanical energy to electrical energy using federal facilities. The absence of the navigation servitude in the production and sale of federal hydropower is confirmed in that unilateral changes in federal contracts for sale of hydropower implemented by the Federal Government constitute a taking of private property outside the navigation servitude for which compensation must be paid equal to the hydropower purchaser’s lost contract value. Thus, as explained in Ashwander, the sale of federal property is not subject to the navigation servitude, and does not benefit from the navigation servitude’s a priori non-compensable application.155 The Federal Government’s commerce power also extends to

154

155

Ashwander, 297 U.S. at 330–31, 338–39; Arizona v. California, 283 U.S. 423, 456–57 (1931); Oklahoma v. Guy F. Atkinson Company, 313 U.S. 508, 525, 527, 530, 534 (1941). The Federal Government is governed generally by the laws of contract applicable to individuals. Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. __; 147 L.Ed.2d 528, 534 (2000). The Federal Government cannot contract away its sovereign powers. Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240, 307 (1935). In such circumstance as the exercise of war powers there is no compensation to individuals for damage resulting from destroyed property or property impacted by regulatory exercise because there has been no taking. United States v. Central Eureka Mining Company, 357 U.S. 155, 157 (1958); United States v. Catex (Philippines), Inc., 344 U.S. 149, 153–56 (1952). Taking is distinguished from destroyed by lawful action, and a taking for public use requires compensation under the Fifth Amendment. Omni Commercial v. United States, 261 U.S. 502, 508–11 (1923); Chappell v. United States, 160 U.S. 499 (1896). Taking must be for a constitutional public purpose, which would include exercise of the navigation servitude on related fast lands for the benefit of navigation but with compensation. United States v. Kansas City Life Insurance Company, 339 U.S. 799 (1950); Jacobs v. United States, 290 U.S. 13, 17 (1933); United States v. Gettysburg Electric Railway Company, 160 U.S. 668, 679–81 (1896). When there is a taking the compensation standard is market value. United States v. General Motors, 323 U.S. 373, 379 (1945). Takings must be for pubic use. Missouri Pacific Railway Company v. Nebraska, 164 U.S. 403, 417 (1896). In contrast, the Federal Government must be a reliable contract partner, and where a contract right for the purchase of federal property is breached, compensation is due to the non-government party; payment of compensation is not the surrender of a sovereign power. United States v. Winstar Corp., 518 U.S. 839, 995–97 (1996). Intangible rights are property (Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003–004, 1005, 1007 (1984)), and it is the protection of such claims upon which people must rely (Board of Regents of State College v. Roth, 408 U.S. 564, 577

314

Chapter VI

Paradigm – Commerce In The Balance

the use of federal dams as water storage facilities for irrigation and municipal and industrial water supplies, which, like hydropower, are not navigation servitude related uses of federal property and would require both payment of full construction and production cost to the Federal Government and compensation payment from the Federal Government for unilateral reduction in associated contract benefits for commerce power related purposes; for example, to move project benefits to a third party.156 Perhaps one of the clearest statements of Congressional authority over the navigable waters of the United States under the constitutional commerce power appears in the Federal Power Act of 1935, which provides for licensing non-federal development of hydropower on the navigable waters of the United States and reads, in pertinent part, as follows: [N]avigable waters means those parts of streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, and which either in their natural or improved condition notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce, including therein also such interrupting falls, shallows, or rapids, together with such other parts of streams as shall have been authorized by Congress for improvement by the United States or shall

156

(1972)), so that where Federal Government regulations or contract provisions provide for the payment of compensation if a contract is breached in a “taking” by the exercise of sovereign rights, damages should be paid accordingly (Amino Brothers Company, Inc. v. United States, 372 F.2d 485 (Ct. Cl. 1967)). States likewise may contract with the Federal Government. United States v. Bekins, 304 U.S. 27, 52 (1938). For a discussion of the difficult distinction between a compensable “taking” and a non-compensable regulatory consequence see Armstrong v. United States, 364 U.S. 40, 48–49 (1960). It is a consequence of riparian or littoral ownership that the navigation servitude eliminates the need for compensation when there is what would otherwise be a taking. Gibson v. United States, 166 U.S. 269, 276 (1897); Federal property is not subject to the navigation servitude, and federal hydropower sales contracts require compensation to be made when the contract or contract benefits are taken for a public purpose. Substantial or permanent changes in hydropower operations for navigation related objectives are in reality inverse condemnations of property value, and adjustments are required. Thompson v. Con. Gas, 300 U.S. 55, 79 (1937). Cf. First Lutheran Church v. Los Angeles County, 482 U.S. 304, 305, 315, 318 (1987). Contracts are a traditionally recognized property right. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 wheat.) 518, 650 (1891). ER 1105–2–100, Sec. 4–32(d) (Dec. 28, 1990); EP 1165–2–1, Sec. 18–2 (Feb. 15, 1996).

B. Constitutional Commerce, Interstate and Foreign

315

have been recommended to Congress for such improvement after investigation under its authority.157

Licenses are issued by the Federal Energy Regulatory Commission,158 successor to the Federal Power Commission,159 to non-federal entities for the construction of hydropower facilities on such navigable waters of the United States pursuant to the Federal Power Act,160 which reserves the Federal Government’s right to take over the facilities, but equally acknowledges that such facilities are private property for which compensation must be paid.161 The significance of this arrangement is that while the Federal Power Act licenses reflect an exercise of the navigation servitude permitting construction of such non-federal hydropower facilities on the navigable waters of the United States, it is the national eminent domain authority which applies when such facilities are taken by the Federal Government and, therefore, such takings are subject to the compensation requirements of the Fifth Amendment. The apparent reason is that while the “license” to build the dam would be noncompensable when taken because it is a “license” subject to the navigation servitude, acquisition of the hydropower facilities constructed pursuant to that license would not be pursuant to the navigation servitude and would constitute a compensable taking unless the facilities are an obstruction to navigation and so ordered removed.162 The Federal Power Act provides for compensation reflecting the exercise of the eminent domain power, which for the navigational freedom principle means that the Commerce Clause public trust and its navigational servitude are consistently applied, sometimes in

157 158 159 160 161 162

16 U.S.C. § 796(8) (2000). 42 U.S.C. §§ 7171–7177 (2000). 42 U.S.C. § 7172 (2000). 16 U.S.C. § 792 (2000). 16 U.S.C. § 807(a) (2000). 16 U.S.C. §§ 799, 822 (2000). The license seems to be in the nature of a contract, with “right” obtained as defined in the Act, which looks more like a lease. Cf. FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 246–47 (1954). Nonetheless, once the license expires the hydropower project remains liable to removal as an obstruction to navigation, if the license is not renewed. Cf. Henry Ford & Son v. Little Falls Fire Company, 280 U.S. 369, 378–79 (1930). Ultimate authority for the preservation of navigability is with the Secretary of the Army to the extent not delegated to another agency, such as under the Federal Power Act. 33 U.S.C. § 1 (2000). Congress declares what waters are non-navigable. 33 U.S.C. § 12 (2000).

316

Chapter VI

Paradigm – Commerce In The Balance

conjunction with the eminent domain power, on navigable waters of the United States for protection and preservation of the public right to navigation.163 United States municipal law clearly reflects the navigation servitude as exercised as the inherited jus publicum public trust under the Commerce Clause of the 1789 Constitution. That is, the common navigational freedom principle is applied as evolved in balance with the res communis high seas regime of the territorial sea crucible and the constitutional law of the United States, both giving a priori right for the public use of navigable waters in commerce. The evolution is wholly in parallel width the latest developments for the res communis public trust as presented in UNCLOS.

C. UNCLOS, Commerce and the Res Communis Public Trust The United States Senate is considering ratification of UNCLOS following the current State Department request to the Senate for advice and consent on UNCLOS and the 1994 Title XI Agreement.164 Whereas UNCLOS and

163

164

P.U.D. v. Seattle, 382 F.2d 666 (9th Cir. 1967), cert. denied 396 U.S. 803 (1969); FPC v. Niagara Mohawk Power Corp., 347 U.S. 239 (1954); and Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359 (1948). See discussion of these cases and compensation in Allen, supra note 147, at 175. Nonetheless, the ultimate rule remains, the privileges and interests of States and individuals on navigable wasters “is subject to the paramount power of the United States to control it for purposes of navigation.” Arizona v. California, 298 U.S. 558, 569 (1936). Cf. Arizona v. California, 283 U.S. 423, 455–56 (1931), where the Supreme Court writes as follows: As the river is navigable and the means which the act provides are not unrelated to the control of navigation [cite omitted] the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. Whether the particular structures proposed are reasonably necessary, is not for this court to determine. [Cites omitted.] And the fact that purposes other than navigation would also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power. See supra c. 4, n. 121; see infra pp. 319–20. The Status of Senate ratification of UNCLOS is unclear. There has been opposition to the Administration’s efforts moving UNCLOS forward for Senate ratification. International Oceans, Environment, Health and Aviation Law, 99 A.J.I.L. 498–500 (Crook, J. ed. 2005). The refusal, to date, of the United States Senate to ratify the 1982 UNCLOS, even with the 1994 Protocol on seabed mining, may, as Brownlie suggests, be the basis for a consistent objector status to a customary rule. Brownlie, supra c. i, note 20, at 275. But, the enactment of municipal legislation pertaining to such exploitation and recognition of the international interest equally

C. UNCLOS, Commerce and the Res Communis Public Trust

317

the 1994 Title XI Agreement protect and preserve the navigational freedom principle in res communis public trust, consistently with international law as interpreted and applied by the United States, a positive Senate response has been anticipated. There are, however, constitutional issues as discussed in this volume which may cause continued delay until resolved. Nonetheless, UNCLOS reflects the consistent development of the navigational freedom principle in international law in parallel with United States municipal law. This paradigm of a common principle manifest in the public right to navigation and its derivatives, held in public trust, is plainly set out in UNCLOS, where the Preamble indicates that States party to the convention are addressing the needs of the people of the world and the heritage of mankind. It reads: The States Parties to this Convention, Prompted by the desire to settle, in a spirit of mutual understanding and co-operation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world, . . . . Bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of Mankind as a whole and, in particular, the special interests and needs of the developing countries, whether coastal or land-locked, Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 – in which the General Assembly of the United Nations solemnly declare inter alia that the area of the sea-bed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of Mankind the exploration and exploitation of which shall be carried out for the benefit of Mankind as a whole, irrespective of the geographical location of States, . . . .165

165

affirms the emergent principle of law that the seabed and its resources are a public trust, and that indeed the res communis regime is a public trust. Interestingly, for a moribund industry there may be new developments for seabed mining as signaled by a contract between Germany and The Authority, dated July 19, 2006, “regarding the exploration of polymetallic nodules in an area in the Pacific Ocean.” Oceans and Law of the Sea, General Assembly A/RES/61/122 at 2 (Dec. 20. 2006). 1833 U.N.T.S. at 397–98. The Preamble also recognizes the desirability of establishing an international order for the “uses” of the seas, including “equitable and efficient utilization of their resources, the conservation of the living resources, and the study, protection and

318

Chapter VI

Paradigm – Commerce In The Balance

This lengthy quotation is supplied as clear evidence in the paradigm shift of international law from the “rights of States” and the “jurisdiction”, “sovereignty” and “sovereign rights of States” to a focus on the independent and inherent beneficial rights of the peoples of the earth apart from the separate, combined or conjoint governmental rights of any States or international entities. But this is a potential point for confusion. While it is being realized that the right holder is not the State, nor the community of States, but the “People” or “Mankind”, it is the State and the community of States which act as reciprocal trustees for the protection and preservation of the interdependent beneficial interests of their respective people in the common navigational freedom principle. That is, the existence of a common heritage in Mankind as an a priori non-derivative right is insufficient to overcome the established participation of Mankind’s respective peoples in the benefits of navigational freedom through their governments acting in a conventional res communis medium to exercise the collective communal responsibility of public trustees. That UNCLOS understands the navigational freedom right of Mankind to be a matter of res communis public trust appears in the provisions pertaining to the Seabed Authority and deep seabed mining, and as implied in Article 116 which stipulates that “[a]ll States have the right for their nationals to engage in fishing on the high seas”.166 Such a right held on behalf of another is pursuant to an equitable principle, a trust by any definition. Interestingly the UNCLOS provisions pertaining to deep seabed mining have been revised by the 1994 Protocol (Title XI Agreement), but the Title XI Agreement addresses implementation and administrative issues while leaving the underlying jurisprudence untouched. This is evidenced by the Preamble to the Title XI Agreement. It reads: The States Parties to this Agreement, Recognizing the important contribution of the United Nations Convention on the Law of the Sea of 10 December 1982 . . . to the maintenance of peace, justice, and progress for all peoples of the world,

166

preservation of the marine environment.” 1833 U.N.T.S. 397. That language is reminiscent of the expanded Commerce Clause jurisdiction being applied by the United States over its citizens and other persons subject to its jurisdiction, as well as its vessels. The Preamble also expresses belief that the UNCLOS codification of law of the sea “will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter, . . . .” 1833 U.N.T.S. 398. 1836 U.N.T.S. 438.

C. UNCLOS, Commerce and the Res Communis Public Trust

319

Reaffirming that the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (herein referred to as ‘the Area’), as well as the resources of the area, are the common heritage of Mankind, . . . .167

Consistently with the restated confirmation of the seabed and subsoil as the common heritage of Mankind, the Preamble also posits recognition that UNCLOS is an “important contribution . . . to the . . . peace, justice and progress for all peoples of the world” – not for States Parties as such, but for the combined populations of the States Parties and those peoples of the world resident in non-party States.168 As enthusiastic as this sounds it must be remembered that UNCLOS is a convention, not a constitution, and as a convention with aspects of a trust indenture UNCLOS must address the fundamental issue of fiduciary responsibility as tested by the equitable principle of nondiscrimination. The 1994 Title XI Agreement is a reiteration of the res communis public trust responsibility described and contained in UNCLOS, Title XI,169 where unequivocally Article 136 stipulates that, “The Area and its resources are the common heritage of Mankind.”170 Not simply the natural resources of the Area are asserted to be the common heritage of Mankind, but also the archaeological and historical objects found there are to “be preserved or disposed of for the benefit of Mankind as a whole.”171 This clear language again shows the high seas regime res communis public trust responsibility for a beneficiary outside the concepts of State or State Party, that is, for Mankind. And the “activities in the Area”172 likewise are “to be carried out for the benefit of Mankind as a whole”173 so that it may be reliably stated that “Mankind” or the “people of the world” have a juridical status as beneficiaries of the res communis public trust. The activities in the area are of course the commercial ones of deep seabed hard mineral mining, but the regulated interests of the States Parties include also fostering “healthy development of the world economy and balanced growth of international trade”.174

167 168 169 170 171 172 173 174

1836 U.N.T.S. 42 (1994). 1836 U.N.T.S. 42 (1994). Part XI, 1833 U.N.T.S. 445. Art. 136, 1833 U.N.T.S. 446 (1994). Art. 149, 1833 U.N.T.S. 450 (1994). Art. 140, 1833 U.N.T.S. 447 (1944). Art. 150, 1833 U.N.T.S. 451 (1994). Id.

320

Chapter VI

Paradigm – Commerce In The Balance

*

*

*

For the United States the Commerce Clause responsibility extends to preservation and protection of navigable waters as used in interstate and international commerce, and the attendant public trust responsibility for the protection and preservation of fishing and navigation as high seas freedoms derived from the Selden/Grotius dialectic. Ratification of the 1994 Title XI Agreement would activate UNCLOS for the United States, wherein is codified much of what has become customary law, including application of equitable principles to protect and preserve the high seas regime navigational servitudes in parallel and in cooperation with municipal law governmental navigational servitudes – the res communis and jus publicum (Commerce Clause) public trusts paradigm for the common navigational freedom principle.175 But what is the status of the high seas regime res communis public trust concept with only the partial activation of UNCLOS?

175

The concept of “common property” described by Patricia Birnie & Allan Boyle, International Law & The Environment 608, (2d ed. 2002), almost jumps off the page to suggest the rights of States to living and non-living resources in a res communis are held in a resulting public trust where each is the trustee for the others, and where a State engaged in harvesting or extracting those resources must do so without impact on the remainder in situ. Public trust is the equitable principle of international law requiring sustainable yield of living resource, the equitable right of all beneficiary States, is not denied by violation of the commons but rather is highlighted as the basis for a necessary formalization of trust and preservation of the res. Id. at 648–50. The public trust requires the equitable utilization of common resources identified by Birnie & Boyle. Id. at 548. While the common heritage concept of the 1982 UNCLOS has not received later universal adoption, it has nonetheless been a touchstone indicating the emergence of an equitable principle of common rights under a resulting public trust. Id. at 559, 605, 651–52. For example, in an instance noted by Birnie & Boyle, the public trust is the “legal concept which recognizes the unity of the global atmosphere and the common interest of all States in its protection.” Id. at 502–03.

Chapter VII Navigational Servitudes: Public Trust of the Oceans This chapter title is not used in parody but in humility and respect for the work of Professors Myres McDougal and William T. Burke. The overall order which Professors McDougal and Burke describe in Public Order of the Oceans is that of a public trust.1 All of the navigation aspects and the respective derivatives discussed by Professors McDougal and Burke are the evolved public rights of the Grotius/Selden dispute as now developed under the high seas regime res communis public trust. That res communis public trust reflects the commonality of Mankind’s interests in high seas usages together with the collective community of States’ responsibility for protection and preservation of those usages in accord with equitable principles. Apart from the various extended jurisdictions of littoral States this res communis responsibility has evolved during the 20th and into the 21st century largely in the area of multilateral conventions and regional agreements addressing navigation, safety of life and property at sea, pollution, assistance to developing State populations and fishing. Navigational freedom remains the common underlying principle, equitably maintained under these agreements. But something more has and is occurring. A framework has evolved to which such agreements relate either as subsets of particular conventional arrangements, or as coordinated conventional parallels designed to achieve the oceans’ protection and preservation responsibility of res commuis and the navigational freedom principle overall. This conventional framework is truly an administrative Oceans Public Trust and includes such significant conventional structures as UNCLOS and various United Nations agencies. The overarching public trust remains the

1

Myres McDougal, Public Order Of The Oceans: A contemporary International Law of the Sea (1965), the referenced work.

322

Chapter VII

Public Trust of the Oceans

fundamental res communis and its common navigational freedom principle, but the evolutionary point has expanded to include not only customary law but also these many conventional solutions in protection and preservation of navigational freedom within the equitable responsibility of the public trust. The fundamental equitable principle of navigational freedom remains at all times applicable in the administrative framework of an “Oceans Public Trust” as applied for the regulation of and access to the living and nonliving resources of the sea, the seabed and the subsoil, as well as to the usages of the oceans and their foundations. How then is the evolutionary definition of the high seas regime res communis public trust proceeding to move forward in the 21st century? The residual point of development remains with the conventional organizations and organs established to administer and address the public needs for use of the oceans, which achieve multiple layers of agreed navigational servitudes on topical navigational usages within the res communis. The common navigational freedom principle is clearly the guiding consideration, highs seas freedoms as res communis public rights, so that things common to all can be appropriated by none, such as “light, air and the sea”.2 For the high seas beyond littoral State jurisdiction Grotius needs to prevail over Selden and the particular interests of littoral States as the Oceans Public Trust becomes the new crucible defining administration of equitable responsibility for the collective community of States in custody of the high seas regime res communis.

A. Jurisdictional Dichotomy of the Oceans Within the high seas regime provisions for littoral State extended jurisdiction in marginal sea areas located seaward of the territorial sea, such as the 200-mile EEZ, the United States has recently moved forward legislatively to address the ongoing issue of critical fisheries protection and preservation subject to its marginal sea jurisdictions in areas out to 200 nautical miles. The Magnuson-Stevens Fish Management Reauthorization Act of 2006 (2006 Magnuson Amendments) has been implemented to require conservation

2

Black’s at 1308.

A. Jurisdictional Dichotomy of the Oceans

323

plans3 and to address complex issues of sustainable fisheries. The importance is that Congress has not abandoned its responsibility to legislate for such management, although the continuing presence of competing ideologies confuses definition of the national public trust obligation for Commerce Clause servitudes protecting and preserving public fishing.4 The 2006 Magnuson Amendments address both coastal waters issues of the United States and its dependent territories, but also international responsibilities of the United States as a natural resources steward.5 The United States’ concept of stewardship6 is wholly consistent with the high seas regime res commuis and the administrative framework of the Oceans Public Trust. The 2006 Magnuson Amendments remain municipal law but also serve to highlight the intimate relationship between littoral State marine resource management in marginal sea areas and on the high seas with furtherance of res communis public trust responsibilities, both unilaterally and in coordination with the conventional components of the Oceans Public Trust administrative framework. The EEZ remains the marginal sea area of most intense resource management, especially because much of the living resource habitat is located there. And habitat has become the principal focal point for marine living resource management as shown by recognition that ecosystems should be integrated into the fisheries management process.7 But the

3

4 5

6 7

The 2006 Magnuson Amendments were adopted as an enrolled bill after unanimous consent by floor action on S. 2012 by the Senate (S. Con. Res. 123) as reported to the House. Cong. Rec. H8988, H9206 (Dec. 8, 2006). H.R. 5946 as enrolled was signed by the President and became law. P.L. 109-479; ___ Stat. ____ (Jan. 12, 2006). Cf. Manu Raju, Fisheries Bill Clears After Compromise, CQ Weekly 3297 (Dec. 4–8). Congressman William Delahunt has described the Revised Magnuson Stevens Act of 2006, in pertinent part, as follows: In recent months, the Congress has been unable to resolve differences over numerous competing interests and provisions dealing with fishing quotas and how to rebuild groundfish stocks. Most observers were pessimistic that the gridlock would end. However, several controversial provisions were dropped over the past two days which made it easier for all sides to embrace the final bill. Press Release, Congressman William Delahunt, (December 15, 2006), on file with the Office of Congressman William Delahunt, 2454 Rayburn House Office Building, Washington, D.C. 20515. HR 5946, supra note 3, Sections 109, 117. 2006 Magnuson Amendments, Section 3(a), P.L. No. 109-479; ___ Stat. ___ (Jan. 15, 2007).

324

Chapter VII

Public Trust of the Oceans

integration is broader than marine resources, and includes human resources dependent on the involved fishery.8 Littoral State fisheries management is of particular concern to the high seas fisheries interests of all States when highly migratory species are involved. The 2006 Magnuson Amendments make especial reference to “international fisheries agreement[s]” and require that the formal plan for restoration of a depleted or overfished stock be put forward where international or regional fisheries organizations have not addressed the issue.9 Perhaps more to the point for EEZ fisheries, while the allowance of foreign fishing is to remain discretionary, such fishing is not to be allowed where there is adequate or excess domestic capacity.10 Certainly this servitude on fisheries regulation and access is consistent with applicable municipal and international law, and is wholly attuned to the Selden approach where the littoral State’s interests are acknowledged to be dominant in certain marginal sea areas. From this perspective the territorial sea crucible has simply continued defining those areas into the 21st century, and the issue remains one of balancing the navigational servitudes of the littoral State with those of the high seas regime and its a priori public right of res communis navigational freedom. But the concept of “stewardship” sheds a new light on State responsibility. The 2006 Magnuson Amendments for fishery conservation and management are contained in Title 1 where management plan requirements and limited access programs are to be revised or implemented within an environmental review process, with the material standards of stainable fisheries set as the regulatory goal.11 Additional provisions address the role of recreational

8

9

10 11

Id., Section 3(b)(1). The limited access system is established to redress the impacts on local fishermen from sometimes stringent management actions. Id., Section 3(b)(2)and (3). Id. Section 4. It has been reported by the Rhode Island Saltwater Anglers Association (RISAA) that the President has delivered a Memorandum to Secretary of State Condoleezza Rice and Carlos Gutierrez, Secretary of Commerce, confirming that the United States is opposed to destruction of seamount ecosystems, corals and sponges, and continues to support sustainable fisheries for commercial and recreational use, and will work with other States to implement new Regional Fishery Management Organizations to monitor illegal fishing, the particular area of interests is the high seas where management and conservation measures are absent consistent both with the Magnuson-Stevens Fishery Conservation and Management Act, and with the United Nations Fish Stocks Agreement. Destructive Bottom Trawling, News Letter 12 (December 2006), available at http://www.risaa. org/newsletter/1206/1206_12.pdf, last visited Jan. 3, 2007. Id. Section 5. 2006 Magnuson Amendments, Sections 104–107; P.L. No. 109-479; ___ Stat. ___ (Jan. 15, 2007).

A. Jurisdictional Dichotomy of the Oceans

325

fishing, the regulation of several species and requirements for restoration studies.12 Magnuson Act Amendments of pertinence here are those which direct research on deep sea coral and the expansion of requirements for turtle excluder devices (TEDs) for shrimp fisheries.13 Then the 2006 Magnuson Amendments, Title IV, turn to international provisions governing United States participation in conservation and management of the high seas living resources. Those Title IV provisions authorize the Secretary of Commerce to “undertake activities to promote improved monitoring and compliance for high seas fisheries, or fisheries governed by international fishery management agreements”.14 In particular Title IV recognizes that “international

12 13 14

Id. Sections 117, 206, 315. Id. Sections 201, 205–06, 210–11. Id. Section 401(a), containing new Section 207, which because of its significance in manifesting the United States direction for high sea regime living resource management is set forth in pertinent part from Section 401(b), as follows: (b) SPECIFIC AUTHORITIES. – In carrying out subsection (a), the Secretary may, (1) share information on harvesting and processing capacity and illegal, unreported and in regulated fishing on the high seas, in areas covered by international fishery management agreements, and by vessels of other nations within the United States exclusive economic zone, with relevant law enforcement organizations of foreign nations and relevant international organizations; (2) further develop real time information sharing capabilities, particularly on harvesting and processing capacity and illegal, unreported and regulated fishing; (3) participate in global and regional efforts to build an international network for monitoring, control, and surveillance of high seas fishing and fishing under regional or global agreements; (4) support efforts to create an international registry or database of fishing vessels, including by building on or enhancing registries developed by international fishery management organizations; (5) enhance enforcement capabilities through the application of commercial or governmental remote sensing technology to locate or identify vessels engage in illegal, unreported, or unregulated fishing on the high seas, including encroachments into the exclusive economic zone by fishing vessels of other nations; (6) provide technical or other assistance to developing countries to improve their monitoring, control, and surveillance capabilities; and (7) support coordinate international efforts to ensure that all large-scale fishing vessels operating on the high seas are required by their flag State to be fitted with vessel monitoring systems no later than December 31, 2008, or earlier if so decided by the relevant flag State or any relevant international fishery management organization.”

326

Chapter VII

Public Trust of the Oceans

cooperation is necessary to address illegal, unreported, and unregulated fishing”.15 A report to Congress is required as to United States and international compliance with fisheries laws, agreements, treaties and conventions, and the strengthening of fisheries enforcement, the identities of violators, and the steps taken at the international level to prohibit and control illegal practices.16 There is particular interest in strengthening international fishery management organizations “in conserving and managing fish stocks” and a certification procedure is authorized to track vessel and shipper compliance.17 And the Secretary of Commerce is required to request a National Research Council “study of the acidification of the oceans”.18 The United States appears to be moving in the right direction with regard to littoral States’ navigational servitudes to protect and preserve the common navigational freedom principle within its particular jurisdictions, as well as to coordinate for protection and preservation of that principle through participation and support for high seas regime efforts within the res communis public trust. Nonetheless there is a remaining weakness in the 2006 Magnuson Amendments, and that, as in the past, is the opportunity for the Secretary’s regulatory efforts to be revised by litigation, especially where private interests are implemented through consent arrangements which bypass the transparent regulatory process excluding other public interest groups, as well as the regulated fishermen. The risk in any regulatory process, municipal or international, is the desire of the regulator to satisfy political inputs rather than statutory standards for fishery management plans. Especially in the international context, as much as in municipal regulatory development, implementation and application processes need to occur in the context of international fishery organizations in transparent and wholly inclusive proceedings. Fishery regulation at the municipal law and international law levels is not a matter of special interest groups, but rather a matter of the responsible steward, or collective States’ trustee or trustees acting in the res communis interests of the high seas regime and of Mankind under the coordinated framework of the Oceans Public Trust. Governments, not private interest 15 16 17

18

Id. Section 402. Id. Section 403. Id. Section 403, containing new sections 607–10. The Western and Central Pacific Fisheries Convention as implemented for municipal law in the 2006 Magnuson Amendments, Title V, and provisions for the Pacific Whiting fishery are contained in Title VI. 2006 Magnuson Amendments, Section 701; P.L. No. 109-479; ___ Stat. ___ (Jan. 15, 2007).

A. Jurisdictional Dichotomy of the Oceans

327

groups, are the responsible parties and must act the part for long-term effective and respected regulation of marine living and non-living resources. While private interests groups often play a responsible and significant role in the provision of information, especially scientific information to regulatory bodies,19 that input is appropriately considered only in the transparent context of the assigned process for regulatory development – but not insofar as that participation achieves ex parte results. Enthusiasm and ambition for protection and preservation of the navigational freedom principle for oceans and seas must be tempered, and will yield long-term protection and preservation solutions only if a reliable and transparent adjudicatory review process is established and maintained. That requires discipline not only from interested parties, but also and especially from the adjudicators. Seaward of the marginal seas a pressing issue has met the high seas regime res communis public trust in regard to the preservation of deep sea and deep seabed life.20 Carlos Rodriguez, Environment Minister, Costa Rica, and recipient of the First Annual Global Ocean Conservation Award, has said in this regard that: The ocean as a living system can not realistically be viewed in terms of political boundaries drawn on maps. * * * Healthy ecosystems and productive ocean industries will only be maintained through a holistic view of ocean management based on cooperation among States to address issues on the scale of large marine ecosystems.21

And the immediacy of the ecosystem impact on marine living resources is apparent in deep sea bottom trawling on sea mounts,22 which apparently is

19

20

21

22

See for example The World Conservation Union and The Commission on Protected Areas, http://www.iucn,org/themes/wcpa/biome/marine/highseas/about.html, last visited Jan. 3, 2007; Conservation International, http://www.conservation.org, last visited Jan. 3, 2007; and The Deep Sea Conservation Coalition, http://www.savethehighseas.org, last visited Jan. 3, 2007. The Conundrums of the Deep Dark Sea, The Economist, Dec. 16, 2006, at 59–60. Any number of deep sea species are under pressure for survival. See for example Sea Turtle Conservation, Conservation International (___, 200_), available at http://www.conservation. org/xp/CIWEB/programs/turtlesflagship, last visited Jan. 3, 2007. Press Release, First Annual Global Ocean Conservation Award Announced On World Ocean Day (June 8, 2005), available at http://www.conservation.org/xp/news/press_ releases/2005/060805a-eng.xml, last visited Jan. 3, 2007. The United Nations Environment Programme (UNEP) has described sea mounts as follows:

328

Chapter VII

Public Trust of the Oceans

causing havoc in the form of long-lasting ecosystem damage. That trawling damage is the issue, and coral evidently serves as an indicator of overall reef and ecosystem diversity, so that the impact from the “orange roughy, alfonsino, roundnose grenadier and Patagonian toothfish” bottom trawl fisheries on coral evidences the ecosystem impacts.23 The actual impact is described by Ben Bradshaw, Fisheries Minister, United Kingdom, as follows: A single bottom trawl can scoop up several tons of sponges, corals, fish and other marine life. Precious biodiversity that has taken thousands of years to develop is destroyed in seconds. The fish species caught in the deep oceans are often slow maturing and, once depleted, take much longer to recover than species in shallower waters.

23

A seamount is an elevation of the seabed with a summit of limited extent that does not reach the surface. Seamounts are prominent and ubiquitous geological features, which occur most commonly in chains or clusters, often along the mid-ocean ridges, or arise as isolated features from the seafloor. Generally volcanic in origin, seamounts are often conical in shape when young, becoming less regular with geological time as a result of erosion. Seamounts often have a complex topography of terraces, canyons, [pinnacles, crevices and craters: tell-tale signs of the geological processes which formed them and of the scouring over time by the currents which flow around and over them. Infra note 46 at 1. James Randerson, Scientists Call For Deep-Sea Trawling Ban, Guardian Unlimited (Nov. 15, 2006), available at http://www.environment.guardian.co.uk/conservation/ story/0,,1948037,00.html, last visited Jan. 3, 2007. The United Nations Environment Programme (UNEP) has described the involved fish in its draft summary of Seamounts, Deep-Sea Corals And Fisheries, as follows: The distribution of four of the most important seamount fish species (for either their abundance or commercial value) are as follows: 1. ORANGE ROUGHY is widely distributed throughout the North and South Atlantic Oceans, the mid-southern Indian Ocean, and the South Pacific: it does not extend into the North Pacific. It is frequently associated with seamounts for spawning or feeding, although it is also widespread over the general continental slope. 2. ALFONSINO has global distribution, being found in all the major oceans. It is a shallower species than orange roughy, occurring mainly at depths of 400m to 600m. It is associated with seamount and bank habitat. 3. AROUNDNOSE GRENADIER, is restricted to the North Atlantic, where it occurs on both sides, as well as on the Mid-Atlantic Ridge, where aggregations appear over the peaks of the ridge. 4. PATAGONIAN TOOTHFISH has a very wide depth range and is sometimes associated with seamounts, but also found on general slope and bank features. Infra note 46 at 5.

A. Jurisdictional Dichotomy of the Oceans

*

*

329

*

Some bottom trawling takes place in territorial waters, where it is regulated and easier to control. But the Deep Sea Conservation Coalition (DSCC) – an umbrella group of non-governmental organizations – estimates that 95% of the world’s destructive bottom trawling takes place on the high seas. The governance and enforcement of rules on the high seas are weak and patchy.24

Negotiations at the United Nations failed to reach agreement on prohibition of bottom trawling,25 apparently due to a group led by Iceland.26 The United States27 and certain other States have supported efforts to adopt a ban on deep sea bottom trawling, yet some other States with an economically important bottom trawl fishery have not been supportive, or have been but only reluctantly so. This conflict exposes the fundamental problem for the high seas regime res communis public trust, as well as for the Oceans Public Trust, because States are

24

25

26

27

Ben Bradshaw, Only A United Sea Change Will Save Our Ocean Floors, Guardian Unlimited (Nov. 15, 2006), available at http://www.environment.guardian.co.uk/conservation/story/0,,1947460,00.html, last visited Jan. 3, 2007. Press Release, The Deep Sea Conservation Coalition (Dec. 19, 2006), available at http:// www.savethehighseas.org/display.cfm?ID=150, last visited Jan. 3, 2007. The Coalition reports as follows: At the close of the debate, the UNGA formally adopted two Resolutions, one of which included controversial measures for high seas bottom trawling. A number of countries as well as conservation organizations expressed disappointment that the UN General Assembly has failed to adopt a moratorium on this devastating practice, particularly in the unregulated areas of the high seas. The negotiations were widely criticized for their lack of transparency and the ability of a few countries to undermine stronger measures favoured by the majority. Id. Press Release, Effective Action On Bottom Trawling Scuttled In The Final Hours Of Negotiations (Nov. 23, 2006), available at http://www.savethehighseas.org/display.cfm?ID=148, last visited Jan. 3, 2007 ; Press Release, Deep Sea Conservation Coalition (Nov. 23, 2006), available at http://www.savethehighseas.org/display.cfm?ID=149, last visited Jan. 3, 2007; Evidently there was a significant amount of negotiation, bringing around even the Canadians who respond to fishing industry interests, when Iceland brought any agreement down. Press Release, Iceland Harpoons Deep-Sea Protection, Greenpeace (Nov. 23, 2006), available at http://oceans.greenpeace.org/en/the-expedition/news/iceland-harpoons-hsbt, last visited 3 Jan. 2007. Karen Barrett, United Nations Considering Interim Moratorium On Bottom Trawling (Oct. 4, 2006) (on file with the author).

330

Chapter VII

Public Trust of the Oceans

charged with the collective responsibility for protection and preservation of the resource, and as fiduciaries they must act in that regard even when it goes against the particular interests of the local population. How to achieve that fiduciary responsibility in practice is patently a matter of municipal politics, requires courage and a broader understanding of State responsibility, and no doubt will be worked out as the effects of protection and preservation measures become added elements with local socio-economic impacts in the Oceans Public Trust crucible. It is that crucible of negotiated agreement which will ultimately achieve the balancing of all interests in the res communis usages of the high seas, much as had and is the territorial sea crucible for marginal sea areas. Simply put, it takes time, good faith, patience, politics, selfrestraint and accommodation in accord with equitable principles designed to achieve both resource access sustainability and economic impact mitigation. Bottom trawling presents an excellent example of the Oceans Public Trust crucible in operation. Bottom trawling involves the socio-economic interests of discrete fishing populations as they collide with the general resource protection and preservation interests for the involved marine area. Bottom trawling has been, to say the least, a controversial topic where the scientific evidence is that serious harm is occurring to the marine benthic habitat and ecosystem as a result of the fisheries operations.28 The situation has been reported by the British Broadcast Corporation as resulting in “immense

28

Press Release, Institute of Zoology, Unique Seamount Ecosystems Destroyed By Trawling (Nov. 15, 2006) (on file with the author); Press Release, Deep Sea Conservation Coalition, Momentum In Support Of A Moratorium On High Seas Bottom Trawling Continues To Grow (Feb. 2006) (on file with the author); Patricia Reaney, Deep-sea Trawling Destroying Underwater Mountains, Reuters UK (Nov. 15, 2006), available at http://www.today. reuters.co.uk/news/articlenews/aspx?type=scienceNews&storyID=2006-11-1, last visited Jan. 3, 2007; Ben Bradshaw, Only A United Sea Change Will Save Our Ocean Floors, Guardian Unlimited (Nov. 15, 2006), available at http://www.environment.guardian. co.uk/conservation/story/0,,1947460,00.html, last visited Jan. 3, 2007; James Randerson, Scientists Call For Deep-Sea Trawling Ban, Guardian Unlimited, available at http://www. environment.guardian.co.uk/conservation/story/0,,1948037,00.html, last visited Jan. 3, 2007; Greenpeace, Creatures Call On United Nations To Establish Moratorium On High-Seas Bottom Trawling (Nov. 20, 2006), available at http://www.oceans.greenpeace. org/en/press-centre/press-release/deep-sea-creatures-around-the, last visited Jan. 3, 2007; Press Release, New Research Reveals Clear Scientific Reasons For The Bottom Trawling To Stop (Nov. 15, 2006), available at http://www.savethehighseas.org/display.cfm?ID=147, last visited Jan. 3, 2007.

A. Jurisdictional Dichotomy of the Oceans

331

damage to the ecosystems around seamounts, or underwater mountains” from nets using “steel weights or heavy rollers”.29 Significant damage is said to be caused by about 200 vessels worldwide, producing about “0.2% of the world catch” by “ripping corals and sponges from the sea-floor – removing the habitats on which fish and other diverse organisms depend.”30 Information contained in a United Nations UNCLOS Report of the Conferees “calls bottom trawling a particular concern”.31 Keeping in mind the political interests crafting report language, it is significant, though often undecipherable by minds uninitiated to the subliminal, that the Report made the following references to the bottom trawling issue: Fishing practices that might impact sensitive environments, such as bottom trawling, were highlighted by some delegations as an issue of particular concern. One delegation stated that the issue has been dealt with by the General Assembly and should not be the focus of the Review Conference. Another delegation highlighted the need for precautionary action to address unregulated bottom trawling and proposed, for areas not covered by any regional fisheries management organization, an interim prohibition on bottom trawling until such an organization was established and effective conservation and management measures were adopted. For areas within the competence of existing regional organizations, it was proposed that those organizations be allowed some time to institute effective conservation and management measures on their own. A moratorium on bottom trawling in the high seas was supported by another delegation.32

But the rub here is that, while the communal responsibility of the high seas regime public trust is apparent, the commonality of beneficial interests within management of the trust assets are not. Thus the Report states:

29

30 31

32

BBC News, Case For Ban ‘Overwhelming’, BBC News (Nov. 15, 2006), available at http://www.newsnote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/1/hi/sci/ tech/6147896.s, last visited Jan. 3, 2007. Id. Report of the Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, G.A., U.N. Doc. A/CONF.210/2006/15 at 12; Press Release, U.N. Review Shows Need To Halt Destructive Fishing Practice (July 17, 2006), available at http://www.conservation.org/xp/news/press_releases/2006/071706.xml, last visited Jan. 3, 2007. Report, supra note 31 at 12–3.

332

Chapter VII

Public Trust of the Oceans

Several delegations highlighted the need to strengthen international cooperation and institutions that worked on a regional basis and to increase the coverage of the regional fisheries management organizations to encompass not only the conservation and management of high-seas fisheries resources but also the interactions between fisheries and the environment as a whole.33

Yet the Report also describes the point of disenchantment which has permeated law of the sea issues at least since the 1976 commencement of the Third United Nations Law of the Sea Conference, and that is mitigation of harm to the disadvantaged without impact on the communal trust asset (the Oceans Public Trust crucible at work balancing competing interests): A number of developing countries stressed that any measure to reduce capacity within regional fisheries management organizations must not be detrimental to States where fisheries were still being developed, as that would perpetuate the situation of inequality in favour of traditional fishing countries.34

So what to do within the Oceans Public Trust which maintains and supports the human element of fisheries in balance with the maintenance of the public trust asset as a sustainable fishery? Certainly the activities of the United Nations, Oceans and Law of the Sea, Division for Ocean Affairs and the Law of the Sea, present a consultative review process on fishery management, development, conservation and sustainability consistent with the Oceans Public Trust since 1991.35 But how does this process play out in the context of the administrative framework of the Oceans Public Trust? The most recent action of the General Assembly in responding to the Report is clear evidence of a cooperative process in place, although that process is political and involves typical political trading with involvement of issues unrelated to fisheries or to protection and preservation of high seas resources – the crucible effect of balancing. The Report does not contain the advocated ban on bottom trawling,36 and the subsequent General Assembly Resolution on Sustainable Fisheries37 does not implement such a ban. But for 33 34 35

36 37

Id. at 13. Id. at 12. General Assembly Resolutions and Decisions, Oceans and Law of the Sea in the General Assembly of the United Nations, Division for Oceans and the Law of the Sea, available at http://www.un.org./depts/los/general_assembly/general_assembly_resolutions.htm, last visited Jan. 3, 2007. Report supra note 31, the referenced work. Oceans and Law of the Sea: Sustainable Fisheries, Including through the 1995 Agreement for the implementation of the Provisions of the United Nations Convention on the

A. Jurisdictional Dichotomy of the Oceans

333

present purposes, the Resolution on Sustainable Fisheries does address overcapacity and under-capacity for harvesting, and illegal and underreported harvesting, as well as impact from drift-nets, the shark fisheries, by-catch and discards,38 and calls upon States signatories which have not yet ratified the 1995 Agreement for the Implementation of the Provision of the United Nations Convention on the Law of the Sea of December 10, 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks to do so forthwith.39 While the “sign-up” injunction is intriguing, and suggests that the absence of certain States may be an issue, the point for the administrative framework of the Oceans Public Trust is the harmonization of State legislation with the acts of the 1995 Agreement40 especially as to flag State vessel compliance with regional and subregional fishery management and conservation measures.41 This is the developing framework of the Oceans Public Trust, and it also reflects the need to balance the high seas regime res communis public trust with the impacts on participatory States and local populations of Mankind. The public trust recognition aspects of the Resolution on Sustainable Fisheries are contained in the preamble, where cooperation in the conservation and management of living marine resources, and the importance of coordination and cooperation at the “global, regional and sub regional was well as national levels” is noted as the “obligation of all States”.42 That obligation could only be grounded in the public interest for navigational freedom within the equitable obligations of the collective community of States to protect and preserve the res communis high seas as a communal asset. Following this theme of communal responsibility the Resolution goes on to posit the need to apply “ecosystem approaches to oceans management and the need to integrate such approaches into fisheries conservation and management”.43 The communal responsibility for public trust management impacts, as well as for balancing management with variegated public interests,

38 39 40 41 42 43

Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments, G.A. Res. 61/105, U.N. Doc. A/RES/61/105 (Dec. 8, 2006). Id. at 9, 13–14. Id. at 7. Id. Id. at 7–8. Id. at 3. Id.

334

Chapter VII

Public Trust of the Oceans

is called to the attention of States by the Resolution’s statement as to the communal need to be addressed: [T]he circumstances affecting fisheries in many developing States, in particular African States and small island developing States, and recognizing the urgent need for capacity-building, including transfer of marine technology and in particular fisheries-related technology, to enhance the ability of such States to meet their obligations and exercise their rights under international instruments, in order to realize the benefits from fisheries resources.44

From the public trust perspective there is additional significance in the Resolution, and even more so in the process by which the community of States proceeded to proposal and adoption of the Resolution. The point is that there is a process, and the presence of the process evidences a framework of understanding for identifying, addressing and resolving issues. But, even more, that process reflects a purpose in being, and that is the undeclared understanding of States that there is a collective responsibility for the protection and preservation of marine assets within the navigational freedom principle – a public trust is in operation and the process is its administration. Protection and preservation of fisheries, habitat and ecosystems are manifest by the Resolution as part of the res communis responsibility of the collective States trustees. That process for exercise of trustee responsibility has been established and followed not only in administration, but also in definition of these benthic public trust resources and in implementation of protective and preservation measures, as is apparent in the example of the bottom trawling issue. The whole circumstance here is developmental, where the conventional administration process meets the reality which eventually will evolve within the conventional framework of the Oceans Public Trust. That administrative process, reflected in design and adoption of the Resolution, and its involvement in the dispute concerning the identity and treatment of public trust high seas regime assets, is of major importance for evolution of the Oceans Public Trust framework. This is movement forward. Indeed the Deep Sea Conservation Coalition apparently also has recognized that the essential conservation administrative process is developing. After the United Nations General Assembly had failed to adopt a resolution containing bottom trawling prohibitions in December, 2006, the Coalition reports as follows:

44

Id.

A. Jurisdictional Dichotomy of the Oceans

335

Despite this, many states [sic] nonetheless agreed that an important first step has been taken. The 16 Pacific Island States, which had supported a full moratorium, stated that: ‘This year’s resolution goes much further that that of 2004, as it clearly sets the standard for management of bottom fishing activities and their impact on vulnerable marine ecosystems. . . . We urge flag states [sic] in particular to ensure that their vessels and national fish responsibly and in accordance with conservation and management measures. . . .’ * * * Representing a significant advance in the approach to oceans management, the Resolution calls on fisheries management organizations to close areas of the high seas to bottom fishing where cold-water corals and other vulnerable deep sea species are known or likely to occur. The resolutions also call on fishing nations to only allow their fleets to engage in deep-sea fishing on the high seas in areas where they are certain that no damage will be done to vulnerable deep-sea ecosystems. But it is in the unregulated areas of the high seas where no fisheries management organizations exist that the resolution falls short, leaving it to the discretion of flag States to regulate their vessels and implement the resolution.45

The Resolution has delivered an education for all players in res communis public trust responsibility where collective fiduciary participation in reciprocal benefits administration mandates cooperative communal action. The salutary point here is that in order for the collective trustees to act there must be a focal point for discussion, agreement on and identification of the issues to be discussed, as well as evaluation of and action on those issues. This apparently has taken a significant step forward with the design and adoption of the Resolution, in that the General Assembly, as the particular Oceans Public Trust focal point, took each and all of these steps and ultimately acted. For the process it is not material that all players were not satisfied with the content of the final Resolution. The importance is that there was discussion of an issue which by agreement required discussion, within the communal forum, and resulted in collective action for the protection and preservation of the navigational freedom aspect involved. That is a public trust, that is in part the framework of the Oceans Public Trust, and because there is a process for the trustee to act there is every reason to anticipate that

45

Press Release, UN General Assembly Calls For Action On Bottom Trawling; Conservation Organizations Pledge: We Will Be Watching!, The Deep Seas Conservation Coalition (Dec. 8, 2006), available at http://www.savethehighseas.org/display.cfm?ID=150, last visited Jan. 3, 2007.

336

Chapter VII

Public Trust of the Oceans

the collective States trustees may act again and differently in the future based on further information, inputs and discussion. Such combined and coordinated action in the exercise and application of the collective States trustees’ responsibility may not always yield the result desired by any one group, but the trustee is acting both within fiduciary custodial responsibility and as a responsible administrator gathering information and participants’ inputs. That is both the definition of trustee fiduciary responsibility and the exercise of that responsibility as currently evolved for collective state action under a variety of conventional agreements and in a variety of fora but all within the crucible of the Oceans Public Trust framework of the 21st century. The frustration of participants, especially those who on any given issue perceive a crisis, is largely a result of the time involved for the collective trust administrative process to occur. But in the end that process is the only means of reliable exercise for the communal trust responsibility over time. That exercise will involve coming to understand how the navigational freedom principle is being and is to be maintained and applied now and in the future, not only for the common access and use of States to high seas regime resources, but also for Mankind. This by definition mandates conservation as more than a corollary, indeed conservation is an integral part of the navigational freedom principle as ultimately protected and preserved in the high seas regime res communis public trust. Progress toward more comprehensive resolutions of public trust issues is in the works as evident in the United Nations Environment Programme (UNEP), where a draft summary of its report on Seamounts, Deep-Sea Corals and Fisheries has been released. There the Executive Summary contains the following pertinent information: A large number of video observations have not only documented the rich biodiversity of deep-sea ecosystems such as cold-water coral reefs, but also gathered evidence that many of these biological communities had been impacted or destroyed by human activities, especially by fishing such as bottom trawling. In light of the concerns raised by the scientific community, the United Nations General Assembly has discussed vulnerable marine ecosystems and biodiversity in areas beyond national jurisdictions at its sessions over the last four years [2003–2006], and called, inter alia, ‘for urgent consideration of ways to integrate and improve, on a scientific basis, the management of risks to the marine biodiversity of seamounts, cold water coral reefs and certain other underwater features.’46

46

Seamounts, Deep-Sea Corals And Fisheries 1, Draft Summary Regional Seas, UNEP, (Oct. 2006), available at http://www.unep-wcmc,org, last visited Jan. 3, 2007.

A. Jurisdictional Dichotomy of the Oceans

337

In short UNEP views the interactive circumstances between deep sea bottom trawling and sea mount ecosystems to have reached a crisis. The draft Summary goes on to suggested a recommend plan of action to address the perceived issues, and that recommendation is coordinated management of the high seas areas outside individual littoral State jurisdiction.47 That is precisely the level of State cooperation and agreement which the Oceans Public Trust framework must produce to encompass the collective responsibility of States for the protection and preservation of the res communis navigational freedom principle aspects, and to do so within a coordinated arrangement which involves their individual jurisdictions. The point is that although individual State administrative interests applied through municipal navigational servitudes are enforced within a marginal sea area outside the territorial sea, there remains the underlying a priori high seas regime res communis pubic trust to be administered and balanced in coordination with local populations and those littoral State extended protective jurisdictions. This indeed is an Oceans Public Trust crucible. The Oceans Public Trust is materializing as a multi-faceted framework administered at a variety of levels by a variety of international organizations, including States, and is one protecting and preserving the high seas regime common navigational freedom principle through protection and preservation of the public beneficial interests in marine assets as well as in conservation and continued sustainability of assets and benefits, all flowing from the high seas navigational freedom principle, with particular attention to participatory usage of dependent local populations. Importantly, it is apparent that while navigational freedom is a common principle, its derivative applications are not static and in the context of evolution, especially as agreements are reached on framework aspects of the Oceans Public Trust, those applications, though fungible, are changeable and will vary in intensity of application. That is the nature of the crucible process and suggests that application of protection and preservation measures will require particular and evolving considerations, including not only equitable access and usage consistent with the navigational freedom principle but also, and equally importantly, Mankind’s relationship to those usages as determined by geography and socio-economic interests, particularly among dependent populations.

47

Id. at 7.

338

Chapter VII

Public Trust of the Oceans

B. Establishment of the Oceans Public Trust The concept of trust inherently includes terms, provisions and conditions of fiduciary responsibility, an indenture, which set the performance understandings of both the public trustee and the public beneficiaries.48 In the 21st century those responsibilities are quickly becoming encapsulated in conventional arrangements organizing within the administrative framework of the Oceans Public Trust. While the public trust apparent in the UNCLOS Seabed Authority has not come to fruition with any actual seabed commercial resource extraction of manganese nodules, other conventional public trust arrangements are patent in the high seas regime communal governance contained in UNCLOS. In addition, several international organizations have established discreet responsibilities or foci on high seas regime matters, as recently described by Churchill and Lowe,49 but perhaps the best example of an international organization both addressing such matters and antedating UNCLOS is the Convention on the Intergovernmental Maritime Consultative Organization,50 as amended in 1975 to be the Convention on the International Maritime Organization (IMO).51 The IMO is a reliable example of the pre-UNCLOS development of conventional arrangements as now beginning to organize within the framework of the Oceans Public Trust, especially in consideration of IMO’s structure, governance and regulatory responsibility within the high seas regime for protection and preservation of usage of the res communis communal property of the oceans as well as the therein contained living and non-living resources. In fact the IMO is perhaps best understood as the contemporary successor to the laws of Wisby and the Hanse Towns because its principal focus is on the commercial aspects of shipping, safety of life at sea and marine pollution. Established initially as a consultative organ of the United Nations in 1958, the IMO has evolved into a functioning specialized agency of the United Nations which reports that that 90 percent of the world’s trade is carried

48

49 50

51

Professor Philip Allott, Trinity College, Cambridge, addressed this point in his Alec Roche Lecture given at New College, Oxford, November 15, 2006. R.R. Churchill and A.V. Lowe, The Law Of The Sea 23–24 (3d ed. 1999). Convention on the Intergovernmental Maritime Consultative Organization, 9 U.S.T. 621; TIAS 4044; 289 U.N.T.S. 48 (Geneva, March 6, 1948), entered into force March 17, 1958. Amendment, 34 U.S.T. 497; TIAS 10374 (Nov. 14, 1975) effective May 22, 1982.

B. Establishment of the Oceans Public Trust

339

by ships.52 The concept of the IMO is to adopt international standards to regulate shipping and, through a comprehensive body of conventions, regimes are established for liability and compensation, marine pollution prevention and control, maritime distress, search and rescue, as well as for security, safety of life and property at sea.53 IMO is best considered from the text of its organic document, which reads in pertinent part as follows: [T]o provide machinery for cooperation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships.54

The point being IMO’s role as a facilitator for government cooperation in shipping has evolved along public trust lines, facilitating the collective States trustees in their design and adoption of coordinated regulations affecting shipping. It is within that role that IMO undertook the oversight of maritime conventions at its inception, and the development of amendments and adoption of new conventions.55 Of particular interest is the coordination of IMO regulations for shipping within Marine Protected Areas (MPAs).56 But in all iterations IMO is a conventional arrangement with an administrative objective focused on the protection and preservation of certain high seas usages. The coordination developing among United Nations agencies in addition to IMO is apparent in their common focus on protection and preservation of the high seas regime usages. The most current report of high seas issues and “players” is contained in the Oceans and the Law of the Sea

52 53 54 55

56

About IMO, Introduction to IMO, available at http://www.imo.org/. Id. IMO Convention, art. 1(a), supra note 50, 289 U.N.T.S. 48. The process of developing new conventions is described at http://www.imo.org/Conventions/mainframe.asp?topic_id=148, last visited Jan. 3, 2007. See also UN Atlas of the Oceans, International Maritime Organizations (Jan. 1,2000), available at http://www. oceansatlas.org/servlet/CDServlet?status=ND0xNDMzMyZjdG5faW5mb19, last visited Jan. 3, 2007. Internationally Designated MPAs, UN Atlas of the Oceans (Jan. 1, 2000), available at http://www.oceansatlas.org/servlet/CDSServlet?status=ND0xODU3OCY2PWVuJjMz PS, last visited Jan. 3, 2007.

340

Chapter VII

Public Trust of the Oceans

Resolution57 where the General Assembly describes its perception of UNCLOS in language significant for the high seas regime res communis public trust as evolving through agreements within the framework of the Oceans Public Trust: Emphasizing also the universal and unified character of the Convention, and reaffirming that the Convention sets out the legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector, and that its integrity needs to be maintained. . . .58

Following this description the General Assembly Resolution goes on to acknowledge that the public trust res and associated “problems of ocean space are closely interrelated and need to be considered as a whole through an integrated, interdisciplinary and intersectoral approach”, with action of the collective States trustees “to improve cooperation and coordination at the national, regional and global levels”.59 And this collective trustee response to protection and preservation of the high seas regime re communis public trust assets is to be participatory, “to support and supplement the efforts of each State in promoting the implementation and observance of the Convention, and the integrated and sustainable development of the oceans and seas.”60 Such communal responsibility is reiterated by the General Assembly as: [T]he essential need for cooperation, including through capacity-building and transfer of marine technology, to ensure that all States, especially developing countries, in particular the least developed countries and small island developing States, as well as coastal African States, are able both to implement the Convention an to benefit from the sustainable development of the oceans and seas, as well as to participate fully in global and regional forum and process dealing with oceans and law of the sea issues.61

The Resolution goes on at length to describe capacity-building, meetings of the States Parties, and other matters arising under UNCLOS.62 What is apparent in this Resolution is that the Oceans Public Trust framework is evolving conventionally to encompass all facets of responsibility for the high

57

58 59 60 61 62

Division for Oceans and Law of the Sea, G.A. Res 61/222, U.N. Doc. A/RES/61/222 (Dec. 20, 2006). Id. at 2. Id. Id. Id. Id.

B. Establishment of the Oceans Public Trust

341

seas regime res communis public trust by the States parties, both customary and conventional facets. Of equal importance are the evolving identity and operational fora of the collective States trustees within UNCLOS, even for non-Party States and States responding to perceived evolutions in customary law, such as the United States. In particular the Food and Agriculture Organization (FAO) is making a coordinated and substantial contribution, and the General Assembly has charged the FAO “to cooperate in achieving sustainable aquaculture”, which includes evaluation and assessment of socio-economics and biodiversity.63 The FAO role is described as “critical” in providing technical advice, assisting policy and management, and “in collection and dissemination of information on fisheries-related issues.”64 The FAO is commended for its “work on the management of deep sea fisheries” and is asked to have its Committee on Fisheries develop data collection and dissemination standards for “vulnerable marine ecosystems and the impacts of fishing on such ecosystems”, all leading to production of “an international plan of action”, which is yet again the collective States trustees’ definition evolving within the Oceans Public Trust administration crucible.65 The comprehensive approach anticipated by the General Assembly for the FOA is plainly stated as: Welcoming also the work of the Food and Agriculture Organization of the United Nations and its Committee on Fisheries and the 2005 Rome Declaration on Illegal, Unreported and Unregulated Fishing, adopted by the Ministerial Meeting on Fisheries of the Food and Agriculture Organization of the United Nations on 12 March 2005, which calls for effective implementation of the various instruments already developed to ensure responsible fisheries, and recognizing that the Code of Conduct for Responsible Fisheries of the Food and Agriculture Organization of the United Nations (‘the Code’) and its associated international plans of action set out principles and global standards of behaviour for responsible practice for conservation of fisheries resources and the management and development of fisheries, . . . .66

The FAO has taken a three-pronged approach to fisheries issues including encouragement of responsible sector management, promotion of responsible

63 64 65 66

Sustainable Fisheries Resolution supra note 37 at 17. Id. at 18–9. Id. Id. at 2. The FAO’s Major Programme on Fisheries is available at http://www.fao/org/fi/ default.asp, last visited Jan. 3, 2007. The Rome Declaration and other FAO declarations on fisheries are available at http://www.fao.org/fi/agreem/agreem.asp, last visited Jan. 3, 2007.

342

Chapter VII

Public Trust of the Oceans

fisheries to enhance and supplement world food supply, and global monitoring of fisheries.67 Most pertinent for present purposes is adoption of the FOA Code of Conduct68 which in its preface acknowledges that, “[f ]rom ancient times, fishing has been a major source of food for humanity and a provider of employment and economic benefits to those engaged in this activity.”69 That statement is wholly consistent with the navigational freedom principle as evolving for all navigation derived activities and associated benefits from before the Grotius/Selden dispute of the 17th century. More to the point for the contemporary development of the Oceans Public Trust is the Code’s recognition that “aquatic resources, although renewable, are not infinite and need to be properly managed if their contribution to the nutritional, economic and social well-being of the growing world’s population is to be sustained.”70 The Oceans Public Trust administrative framework in fact provides a basis for the communal trust responsibilities conventionally exercised through UNCLOS over the oceans and seas as well as the therein contained living and non-living marine resources. Indeed the FOA Code is adopted in response to the insufficiency of extended littoral State regulatory jurisdiction as navigational servitudes under the EEZ provisions of UNCLOS.71 The FOA Code, therefore, sets out its custodial purpose as follows: Fisheries, including aquaculture, provide a vital source of food, employment, recreation, trade and economic well being for people throughout the world, both for present and future generations and should therefore be conducted in a responsible manner. This Code sets out principles and international standards of behaviour for responsible practices with a view to ensuring the effective conservation, management and development of living aquatic resources, with due respect for the ecosystem and biodiversity. The Code recognizes the nutritional, economic, social, environmental and cultural importance of fisheries, and the interests of all those concerned with the fishery sector. The Code takes into account the biological characteristics of the resources and their environment and the interest of consumers and other users.72

The FOA Code, simply put, is an instrument implementing the conventional provisions of voluntary public trust for marine fishery resources and

67 68

69 70 71 72

Id. Code of Conduct for Responsible Fisheries, available at http://www.fao.org/DOCREP/005/ v9878e/v9878e00.htm, last visited Jan. 3, 2007. Id. at 1. Id. Id. at 1–3. Id. at 2–3.

B. Establishment of the Oceans Public Trust

343

the requirements for implementing the trust responsibility on behalf of the beneficiaries in terms of social, economic and cultural impacts, which is to say the beneficiaries are Mankind and its local populations as resident in particular States.73 In addition, the World Health Organization (WHO) has implemented regulations for health onboard vessels as well as for shipping, and currently is reviewing those regulations for possible revision.74 Also the United Nations Environmental Program (UNEP) is addressing high seas issues and presents an outstanding summary of the evolving legal regime in its document entitled, 2006 Ecosystems and Biodiversity in Deep Waters and High Seas.75 Both the WHO and UNEP provide fora for the collective States trustee to act within the administrative framework of the Oceans Public Trust. Indeed UNEP’s report recognizes the “urgent need” to “manage human activities to protect, restore and maintain ocean life”,76 and goes on to describe the high seas role: The oceans provide many essential services with substantial socio-economic benefits that are often taken for granted. Recent studies have revealed that oceans are the very fabric of life: they provide oxygen, modulate weather, drive planetary temperatures and chemistry, and absorb substantial amounts of CO2. Oceans also harbor most of the water and biological diversity on Earth. The variety and abundance of marine life is essential to the health and resilience of the oceans, for balanced ecosystems are better able to respond to changing conditions, both natural and human wrought.77

But these environmental effects are not vacuum-packed, and exist within the collective State trustees’ responsibilities under the high seas regime re communis public trust. The UNEP report takes due note of the incomplete but 73

74

75

76 77

Id. The equitable principles inherent in a trust relationship are presented in the Code by reference to aiding developing countries (id. at 5–6), State control of fishing vessels to prevent impacts on common resources (id. at 7–8), and a long term emphasis on management and conservation measures protecting and preserving the fisheries resources for the future (id. at 11). Current International Health Regulations, WHO, available at http://www.who.int/csr/ ihr/current/en/, last visited Jan. 3, 2007; Revised International Health Regulations Review Questionnaire, WHO, available at http://www.who.int/csr/ihr/revisionprocess/en/Panamaenglish2004_06_09.pdf, last visited Jan. 3, 2007. UNEP, Regional Seas and Studies, Report No. 178, 33–42 (2006), available at http://www. unep.org/pdf/EcosystemBiodiversity_DeepWaters_20060616.pdf, last visited Jan. 3, 2007. Id. at 6. Id.

344

Chapter VII

Public Trust of the Oceans

evolving legal regime,78 which patently is based on the common navigational freedom principle: What has become clear is that the evolution of the legal system governing these areas has not kept pace with scientific and technological advances and man’s expanding footprint on the oceans. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) commits countries to protect and preserve the marine environment, and to conserve and wisely use marine resources – regardless of whether these are within or beyond national jurisdiction. While countries are concentrating on ecosystem-based management and networks of marine protected areas in their coastal waters and exclusive economic zones, areas beyond national jurisdiction – representing approximately 64% of the ocean’s surface – lack the intuitions, rules and enforcement mechanisms to ensure that similar considerations and precautionary approaches are applied.79

The legal regime is conventional; the Oceans Public Trust framework of agreements. Further, there is an important juridical point raised by the UNEP report, indeed a seminal point where UNCLOS is described as being, “often referred to as the Constitution for the Oceans, the legal framework applicable to all activities in the oceans and seas.”80 While hyperbole, if not hyperbolic, the point is that UNCLOS is a conventional arrangement which establishes an agreed legal framework for management and control of certain activities within the ambit of that agreement. UNCLOS certainly is a reference81 point for many of the oceans-related agreements which have been implemented since 1982, and before, but UNCLOS itself did not come into force until 1994, which hardly evidences unvarnished constitutional acceptance. Moreover there is likely to be substantial push-back from an UNCLOS which is considered to be a constitution in any sense. UNCLOS is an international organization established by convention, not a constitution, and is rendered effective only by the ratifying actions of States Parties. UNCLOS is not the consensual action of Mankind establishing a governmental organic instrument, which would be a revolutionary understanding of that entity and its constitutive document. Indeed, that UNCLOS is established by the consensual actions of States in a conventional agreement vitiates its possible implementation as a constitution. Rather, UNCLOS and the agreements

78 79 80 81

Id. at 33–42. Id. at 7. Id. at 33. Id. at 33–42.

B. Establishment of the Oceans Public Trust

345

dependent on that consensual action, as well as those parallel to it, all come under the aegis of and are dependent upon the high seas regime and its res communis public trust for the common navigational freedom principle. Such agreements, including UNCLOS, are at best agreements for jurisdictional servitudes over navigation and its derivatives, which are prescriptive acts designed to protect various navigational usages beyond national jurisdiction. Such conventions and agreements are the constituent administrative accounts – not the constitution – of the Oceans Public Trust,82 which ultimately is the framework for administration of the high seas regime re communis public trust by the collective community of States. Inefficient perhaps, a public trust for sure, but in no way a constitution of government. What has become clear, as the high seas regime res communis public trust continues to evolve in the crucible conceptual process, melding interests of individual States in a variety of political circumstances and producing eventual compromises, is that in the 21st century protection and preservation of the res communis navigational freedom principle will be substantially within the conventional framework of the Oceans Public Trust; perhaps along the lines of the Strategy Statement published by Conservation International: The vision includes enhancing the stewardship of the abundance and diversity of fish and other marine wildlife in the seascapes as well as using the experience and example of the seascapes to reinforce and improve the legal and policy authorities for marine conservation. Successfully addressing the global threats to marine biodiversity will require planning and implementing seascapes – significantly larger protection regimes that spread across regions and ecosystems, ensure sustainable resource use, and maintain the ecosystem services and functions upon which we depend.83

82

83

For examples of such “accounts” and management of the high seas both as a parallel United Nations agreement see The State of the Ocean Climate, UNESCO (2006), available at http://ioc3.unesco.org/oopc/state_of_the_ocean/, last visited Jan. 3, 2007; and as a parallel Nongovernmental Organization see International Council for Exploration of the Sea, available at http://www.ices.dk/indexfla.asp, last visited Jan. 3, 2007. Conservation International’s Marine Strategy (____, 200_), available at http://www. conservation.org/xp/CIWEB/regions/priorityareas/marine/strategy.xml, last visited Jan. 3, 2007. The management intended by the seascape approach is further described as follows: Seascapes move beyond the conservation of individual species toward the effective management of entire ecosystems. Seascape boundaries are determined by natural science as well as socioeconomic and political considerations. As such, people are central components of ecosystems. The wide variety of human uses of and impacts on marine ecosystems must be managed at the appropriate scale. No single local or national

346

Chapter VII

Public Trust of the Oceans

Various conventions have been adopted regarding the management of vessels and derivative navigational usages of the high seas, with particular attention to pollution control84 and vessel safety.85 Taken together these international agreements and arrangements evidence a concerted and ongoing

84

85

government can achieve effective ecosystem management alone. Resource users and non-government and other organizations’ combined efforts in helping to prevent extinctions and to conserve species and their habitats, will allow for a variety of long-term uses for people. In addition, given that seascapes may cross political borders, seascapes management supports participating governments and stakeholders in coordinating efforts to share responsibilities and costs of marine ecosystem management, both in formally protected areas and in the waters that link them. Key Marine Regions, Conservation International ___, 200_), available at http://www. conservation.org/xp/CIWEB/regions/priorityareas/marine/seascapes.xml, last visited Jan. 3, 2007. The obvious question is where are the international mutual trustees of the high seas regime res communis public trust, the Oceans Public Trust, and why are they not in the lead on this as well as many other issues? The United States, acting though the National Oceanic and Atmospheric Administration and the Department of the Interior, has implemented a similar program within its constituent jurisdictions with National Marine Protected Areas (MPA), such as National Marine Sanctuaries, and National Parks and Wildlife Refuges, and fishery management closures. U.S. Marine Protected Areas, http://www.mpa.gov, last visited Jan. 3, 2007. The international effort is also underway in the World Commission on Protected Areas working with the IUCN to coordinate globally networked MPA’s within the WMPA’s within the ICUN Global Programme on Protected Areas. For example International Convention for the Prevention of the Pollution of the Sea by Oil with Annexes, 12 U.S.T. 2989; TIAS 4900; 3 U.N.T.S. 3 (London, May 12, 1954) entered into force July 26, 1958, and for the United States, Dec. 8, 1961; International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Causalities, with Annex, 26 U.S.T. 765; TIAS 8068 (Brussels, Nov. 29, 1969) entered into force May 6, 1975; Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter, with Annexes, 26 U.S.T. 2403; TIAS 8165; 1046 U.N.T.S. 120 (Washington, London, Mexico City, and Moscow, Dec. 29, 1972, entered into force Aug. 30, 1975; Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances Other than Oil, TIAS 10561 (London, Nov. 2, 1973, entered into force March 30, 1983; Protocol of 1978 Relating to the International Convention for the prevention of Pollution From Ships, TIAS ___ (London, Feb. 17, 1978), entered into force Oct. 2, 1983; Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, with Annex, TIAS 11085 (Cartagena, March 24, 1983), entered into force Oct. 11, 1986; International Convention on Oil Pollution Preparedness, Response and Co-operation, TIAS __ (London, Nov. 30, 1990), entered into force May 13, 1995. Convention on the Unification of Certain Rules of Law with Respect to Assistance and Salvage at Sea, 37 Stat. 1658; TS 576, 1 Bevans 780 (Brussels, March 1, 1913); International

B. Establishment of the Oceans Public Trust

347

effort during the 20th century to approach high seas navigation-related issues in a cooperative manner for the protection and preservation of navigational usage consistent with the res communis public trust. And there has been an

Convention for the Unification of Certain Rules Relating to Bills of Lading for the Carriage of Goods by Sea, with Protocol, 51 Stat. 233; TS 931; 2 Bevans 430 (Brussels, Aug. 25, 1924); Agreement Regarding Financial Support of the North Atlantic Ice Patrol, 7 U.S.T. 1969, TIAS 3597, 256 U.N.T.S. 171 (Washington, Jan 4, 1956), entered into force July 5, 1956; International Convention on the Safety of Life at Sea, 16 U.S.T. 185; TIAS 5780; 536 U.N.T.S. 27 (London, June 17, 1960), entered into force May 26, 1965; Procès-Verbal of Rectification of Annexes to the International Convention for the Safety of Life at Sea, 18 U.S.T. 1289; TIAS 6284 (London, Feb. 15, 1966); Inter-American Convention on Facilitation of International Waterborne Transportation, with Annex, TIAS 12064 (Mar del Plata, June 7, 1963); Convention for the International Council for the Exploration of the Sea, 24 U.S.T. 1080; TIAS 7628; 652 U.N.T.S. 237 (Copenhagen, Sept. 12, 1964) entered into force July 22, 1968; Convention on Facilitation of International Maritime Traffic, with Annex, 18 U.S.T. 411; TIAS 6251; 591 U.N.T.S. 265 (London, April 9, 1965), entered into force March 5, 1967, for the United States May 16, 1967; International Convention on Load Lines, 18 U.S.T. 1857; TIAS 6331; 640 U.N.T.S. 133 (London, April 5, 1966), entered into force July 21, 1968; Procès-Verbal for Rectification of the International Convention on Load Lines, 20 U.S.T. 17; TIAS 6720 (London, Jan. 30, 1969); International Convention on Tonnage Measurement of Ships, with Annexes, TIAS 10490 (London, June 23, 1969), entered into force July 18, 1982, for the United States Feb. 10, 1983; Convention on the International Regulations for Preventing Collisions at Sea, 28 U.S.T. 3459; TIAS 8587 (London, Oct. 20, 1972), entered into force July 15, 1977; International Convention for the Safety of Life at Sea, 32 U.S.T. 47; TIAS 9700 (London, Nov. 1, 1974), entered into force May 25, 1980; Procès-Verbal of Rectification to the International Convention for the Safety of Life at Sea, TIAS 10626 (London, Dec. 22, 1982); Protocol of 1978 Relating to the International Convention for the Safety of Life at Sea, 32 U.S.T. 5577; TIAS 10009 (London, Feb. 17, 1978), entered into force May 1, 1981; International Convention on Standards of Training and Watchkeeping for Seafarers, TIAS ___ (London July 7, 1978), entered into force April 28, 1984, for the United States Oct. 1, 1991; International Convention on Marine Search and Rescue, with Annex, TIAS 11093 (Hamburg, April 27, 1979) entered into force June 22, 1985; Convention for the Suppression of Unlawful Acts against the Safety of Marine navigation, TIAS ___ (Rome, March 10, 1988), entered into force March 1, 1992, for the United States March 6, 1995; Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, TIAS ___ (Rome, March 10, 1988), entered into force March 1, 1992, for the United States March 6, 1995; Protocol of 1988 Relating to the International Convention on Load Lines, with Annexes, TIAS ___ (London, November 11, 1988), entered into force Feb. 3, 2000; Protocol of 1988 Relating to the International Convention for the Safety of Life at Sea, TIAS ___ (London, Nov. 11, 1988), entered into force Feb. 3, 2000; and International Convention on Salvage, TIAS ___ (London, April 28, 1989), entered into force July 14, 1996.

348

Chapter VII

Public Trust of the Oceans

unstated but subliminal point through this process which surfaces in the United Nations Framework Convention on Climate Change,86 and that is the concept of “intergenerational equity” applied in terms of a “precautionary principle”.87 Such intergenerational responsibility is itself an equitable principle inherent in the point and purpose of the res communis public trust, giving ultimate purpose to the high seas regime res communis under the collective responsibility of all States for the communal oceans assets regardless of conventional participation or enrollment. The Convention on Biological Diversity,88 to which the United States is not a party, rather proves this point, as described by the United States Department of Commerce, National Ocean Service: Because of its comprehensive environmental stewardship mission, the National Ocean Service (NOS) has the potential to make remarkable changes in the way the world’s coastal areas are managed. The NOS contribution to national and international efforts geared towards preservation and sustainable use of coastal and marine biological resources relies on its in-depth coastal area management experience and leading expertise in establishing, managing, and operating marine and coastal protected areas.89

The commitment to “sustainable use” is in fact the commitment to the future in accord with the intergenerational equitable principle and that, simply put, is a public trust within the high seas regime context of res communis, and also conventionally applied through the administrative framework of the Oceans Public Trust. Although the United States is not a party to the Convention on Biological Diversity it nonetheless participates within the scope of its res communis public trust responsibilities as it has with regard to the International Coral Reef Initiative.90 Such participations must be understood 86

87

88

89

90

United Nations Framework Convention on Climate Change, with Annexes, TIAS ___ (New York, May 9, 1992), entered into force March 21, 1994. The United Nations Framework Convention on Climate Change (FCCC), National Ocean Service, available at http://international.nos.noaa.gov/conv/fccc.html., last viewed Dec. 22, 2006. Convention on Biological Diversity, 1760 U.N.T.S. 79 (Rio de Janerio, June 5, 1992), entered into force Dec. 29, 1993. The Convention on Biological Diversity (CBD), Rio De Janeiro, 1992, International Treaties, Conventions, and Agreements, National Ocean Service (last viewed Dec., 2006), available at http://international.nos.noaa.gov/conv/cbd.html, last visited Jan. 3, 2007. International Coral Reef Initiative, International Treaties, Conventions, and Agreements, National Ocean Service, available at http://international.nos.noaa.gov/conv/icri.html, last

B. Establishment of the Oceans Public Trust

349

as involving State responsibility exercised and applied in the context of the res communis public trust in coordination with conventional arrangements, which is the very identity of the administrative Oceans Public Trust. The myriad conventions, treaties and agreements addressing maritime issues can be overwhelming, especially when attempting to parse through and distill the underlying concepts or implication of the res communis public trust. One however stands out and, like the UNCLOS Seabed Authority, is demonstrably a declaration and indenture of trust, which instrument undertakes responsibility for the protection91 of the world’s oceans and marine resources among other assets within the common heritage and communal responsibility of Mankind. That is the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention). Article 2 of the World Heritage Convention addresses the “cultural heritage” concept as defined in part by “sites” where the “combined works of nature and man . . . are of outstanding universal value from the historical . . . point of view.”92 If this volume has achieved anything it should be the perception of the high seas as a ‘site of historical value’ in development and evolution of the navigational freedom principle, and the

visited Jan. 3, 2007. NOS describes the reef impacts and the plan for States Parties and States Non-Parties to render communal response in protection of the marine resource: The International Coral Reef Initiative emerged out of the recognition that the coral reefs and related ecosystems found in tropical and sub-tropical regions are facing serious degradation, primarily due to anthropogenic stresses. Global estimations are that 10 percent of the Earth’s coral reefs have already been seriously degraded and a that [sic] much greater percentage of coral reefs is under serious threat. Damaged or destroyed reefs can be found in more that 93 countries, with the coral reefs in South and Southeast Asia, East Africa, and the Caribbean facing the greatest risk. * * *

91

92

In the summer of 1995, an international ICRI workshop was held at Dumaguete City, the Philippines. The workshop provided a forum for governments, donors and funding agencies, development organizations, NGO’s, the research community and the private sector to work together in order to develop a develop a [sic] consensus framework for achieving sustainable management of coral reef ecosystems. Id. General Conference of UNESCO (Nov. 16, 1972); 27 U.S.T. 37; TIAS 8226, came into force Dec. 17, 1975. There are 183 States parties as of Oct. 23, 2006. World Heritage Convention, 27 U.S.T. 27 U.S.T. 37; 1037 U.N.T.S. 151.

350

Chapter VII

Public Trust of the Oceans

concept of protection and preservation of that valuable principle within the res communis public trust as for the benefit of Mankind. Article 2 addresses the “natural heritage” as likewise within the convention’s protection (Article 4), and offers the following definition: Natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; Geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants or outstanding universal value from the point of view of science or conservation; Natural sites are precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.93

In addition each State Party to the World Heritage Convention is charged by Article 5 with developing a general policy and services for the protection and conservation of cultural and natural heritage.94 Then, most importantly for this work, Article 6 stipulates that designated “sites” are “a world heritage for whose protection is the duty of the international community as a whole to co-operate.”95 This, as with the language of the Seabed Authority, is a clear statement of trust, a nomination of collective States trustees, and identification of the res and of a process for applying the trust and providing donation of the res through an expanding inclusion of trust assets. Insofar as The World Heritage Convention is understood as a public trust, and is applicable to the high seas, it is consistent with and gives definition to the already established high seas regime res communis public trust by further protecting and preserving the navigational freedom principle as an agreement within the Oceans Public Trust framework. That is achieved by application of res communis equitable principles forbidding exclusionary or discriminatory heritage access, and most significantly by undertaking to consider waste of the trust assets through State or individual activities as impacting the derivative navigational usages of the high seas as a res communis. The World Heritage Convention provides a matrix for combination or linking of nature and cultural conservation as well as global habitats.96 There 93 94 95 96

Id., art. 2 at 27 U.S.T. 41. Id., art. 5 at 27 U.S.T. 41. Id., art. 6 at 27 U.S.T. 42. International Treaties, Conventions, and Agreement, National Ocean Service (____, 200_), available at http://www.international.nos.noaa.gov/conv/heritage.html, last visited Jan. 3, 2007. The United States had joined 108 other States Parties in adopting the Global

B. Establishment of the Oceans Public Trust

351

is a General Assembly which meets biannually and a World Heritage Committee which evaluates requests for site designation as “World Heritage” sites. Notably the World Conservation Union (IUCN) is an advisory body to the Committee and has had substantial input on oceans and marine affairs. And the United Nations Educational, Scientific and Cultural Organization (UNESCO) has adopted a mission for the Convention’s mandated responsibilities to be carried out through its World Heritage Centre: The World Heritage Marine Programme mission is to safeguard the world’s marine cultural and natural heritage by assisting States Parties with the nomination of marine properties and with the effective management of these sites. This will ensure that these precious marine areas will be maintained and thrive for generations to come. All Marine areas of ‘outstanding universal value’ will be inscribed as World heritage thus leading to a better protection of marine biodiversity. All marine World heritage sites will be exemplary models for effective and results-based management benefiting coastal communities around the world. The marine environment is under increasing threat from a variety of sources including over-fishing, inappropriate fishing practices, coastal development and pollution. Relatively intact marine ecosystems are becoming scarcer, and with less than 0.5% of marine areas worldwide under any form of protection, urgent actions are needed to establish a globally comprehensive network of representative and ecologically important marine protected areas. The World Heritage Convention is uniquely positioned to make an important contribution for the protection of marine protected areas. Its international profile, legal status, site-based orientation and its comprehensive natural heritage criteria provide a practical approach to strategically enhance marine conservation worldwide.97

The idea of the World Heritage Marine Programme is described as directed toward promotion of marine conservation ultimately through networks of protected areas as well as facilitating “collaboration between governments and stakeholders for the conservation of networks of marine protected areas,

97

Programme of Action for the Protection of the Marine Environment from Land-Based Activities at the United Nations Environment Programme Conference, November 3, 1995, Global Program of Action for the Protection of the Marine Environment from Land-Based Activities, National Ocean Survey, available at http://international.nos.noaa. gov/conv/gpa.html, last visited Jan. 3, 2007. World Heritage Marine Programme, World heritage Centre (____, 200_), available at http://www.whc.unesco.org/en/marine, last visited Jan. 3, 2007.

352

Chapter VII

Public Trust of the Oceans

using the prestige of the World Heritage Convention to leverage support.”98 Patently this adds to the Oceans Public Trust framework of coordinated and interrelated agreements and conventions of States, but what of an instrument for the Oceans Public Trust framework as itself?

C. Whether United States UNCLOS Ratification Matters The 1973 International Convention for the Prevention of Pollution from Ships was modified in 1978 by the Protocol generally referenced as “MARPOL”.99 The significance of the MARPOL protocol is that it creates an overarching convention which has been frequently amended and which contains a variety of annexes which are themselves agreements.100 This was achieved within the IMO, which was charged with administration and coordinated application of a variety of agreements pertaining to the common subject of marine pollution from ships. Also, the amendment process for MARPOL is one largely initiated and achieved by IMO through its Marine Environment Protection Committee, which proposes changes that are implemented in the absence of objection from an agreed number of States Parties. Alternatively conferences of the States Parties may adopt amendments. This entire arrangement presents an administrative framework model, where disparate maritime conventions are coordinated and administered through one overarching collective trustee, IMO. This is not inconsistent with the UNESCO approach for the World Heritage Convention, nor with the approach taken in UNCLOS. The IMO framework model is expanded by UNCLOS, which tracks IMO marine pollution provisions in Article 22 providing for sea lanes in

98

99

100

Id. The United States has contributed support through the National Oceanic and Atmospheric Administration, as have the “ICUN World Commission on Protected AreasMarine, Conservation International, the Nature Conservancy, the UN Foundation, the MacArthur Foundation, and the Governments of France, Italy, Netherlands, Spain and Finland.” World Marine Heritage Programme, available at http://whc.unesco.org. Protocol Relating to the International Convention for the Prevention of Pollution from Ships, 1973, with annexes and protocols, TIAS ___ (Feb. 17, 1978); KAV 2327; ___ U.S.T. ___; 17 I.L.M. 546, entered into force for the United States Oct. 2, 1983. MARPOL maintains a website available at http://www.imo.org/Conventions/contents. asp?doc_id=678&topic_id=258#2.

C. Whether United States UNCLOS Ratification Matters

353

territorial waters where vessels in innocent passage present a pollution issue,101 in Article 194 prescribing State action to adopt and implement measures to reduce and control marine pollution,102 in Article 195 providing for the non-transfer of marine pollution damage,103 in Articles 197 through 201 providing for global and regional cooperation of States as appropriate to implement regulations for the “protection and preservation” of the marine environment,104 in Article 204 providing for the monitoring of pollution effects,105 in Articles 207 through 212 providing for States to adopt rules and regulations preventing land-based pollution, seabed activities pollution, seabed mining pollution, dumping and pollution from vessels as well as pollution through the atmosphere,106 in Articles 213 through 222 providing for enforcement,107 and in Article 237 which, for present purposes, establishes the intention of using UNCLOS as a framework instrument and reads as follows: 1. The provisions of this Part are without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention. 2. Specific obligations assumed by States under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.108

UNCLOS is designed to overarch the IMO agreements and to set principles which may not be those agreed to in MARPOL or in the other IMO administered conventions. That presents a conundrum, especially as States parties to the IMO conventions such as the United States are not necessarily parties to UNCLOS. From the concept of an administrative framework for high seas regime conventions UNCLOS goes a long way. But, until the collective responsibility of all States is administered within the conventions of the Oceans Public Trust, and until the communal interests and benefits of

101 102 103 104 105 106 107 108

UNCLOS, art. 22, supra c. iv, note 4, 1833 U.N.T.S. at 397. Id., art. 194, 1833 U.N.T.S. at 478. Id., art. 195, 1833 U.N.T.S. at 479. Id., arts. 197–201, 1833 U.N.T.S. at 470–80. Id. art. 204, 1833 U.N.T.S. at 481. Id., arts. 207–212, U.N.T.S. at 481–85. Id., arts. 213–232, 1833 U.N.T.S. at 485–93. Id. art. 237, 1833 U.N.T.S. at 494.

354

Chapter VII

Public Trust of the Oceans

Mankind in the res communis aspects of the navigational freedom principle are wholly included – meaning the interests of Mankind’s local populations resident in all States and not simply those with voting control at a conference – the Oceans Public Trust and its navigational servitudes for protection and preservation of the high seas will remain inapplicable to substantial populations and States whose participation will remain an unsatisfied aspiration of the law of the sea. The penultimate question for the law of the sea as addressed in this volume, therefore, is whether ratification of UNCLOS by the United States matters. That question has two parts: first, as to the United States in its individual capacity; and, second as to the United States participating with other States as collective trustees in administration of the high seas regime res communis public trust and its communal asset of navigational freedom and derivatives. Those answers obviously are to be determined by the United States Government, involving issues and concerns far beyond those addressed here, but from the perspective of the Oceans Public Trust as a crucible the answer to both parts may be a brutal one; that is to say, “probably not”. Much of the material addressed by UNCLOS has become customary law. The mandatory dispute requirements are perhaps important to the States Parties, but that importance does not involve United States ratification. Deep seabed mining would likely not become an issue absent commercial viability, and in that circumstance the 1994 Title XI Agreement109 on mining probably would be implemented by the United States as a separate protocol consistent with the Deep Seabed Mining Act.110 And any continuing Defense Department concerns largely seem to have been addressed by customary international law as interpreted and applied by the United States. The main effect achieved by United States non-participation is that the input of a littoral State with substantial maritime interests and responsibilities as collective trustee for the res communis public trust is not included within the conventional mechanisms addressing law of the sea issues and concerns. United States absence from the group of collective States trustees acting in conventional coordination under UNCLOS impacts achievement of the UNCLOS purposes. It also limits United States inputs on matters of concern as addressed within the UNCLOS fora. Nonetheless, the absence of

109 110

Title XI Agreement, supra c. iv, note 121. Deep Seabed Hard Mineral Resources Mining Act of 1980, supra c. iv, note 91.

C. Whether United States UNCLOS Ratification Matters

355

the United States ratification avoids subordination of certain constitutional provisions which may be impacted by certain UNCLOS provisions. The ultimate question remains, and that is whether the United States participation by ratification of UNCLOS is essential for administration of the conventional framework of the Oceans Public Trust. The point here is simply that UNCLOS is itself a super indenture of trust governing the public order of the oceans following on the 1958 Geneva Conventions. Such a document has value especially once implemented by full participation. But, again, it is the process of adopting the document text for the trust indenture, and the process of applying the textual provisions and conditions to real world circumstances, and the process of the real world coming to view the document as a reference point for its actions and expectations, that remains more significant than the subject matter. And those processes address subject matter already contained in conventions other than UNCLOS, not all of which have been ratified by the United States, so that the crucible definition for an overarching Oceans Public Trust remains out of reach. Or does it? The high seas regime res communis public trust is a communal venture, and as such the major constituents need to participate as its collective State trustees. Constituents here are defined not simply by status as a State, but also by geographical location, socio-economic dependency on ocean resources, defense requirements, common heritage conservation, preservation and participation issues, and placement in the global economy. The experience of the 1976 Third United Nations Law of the Sea Conference was disappointing for the United States and other developed States in the failed balance of maritime interests resulting from the injection of unrelated and arbitrary concepts and approaches in the various committees. It took six years to produce the UNCLOS text in 1982, but it did not go into effect for another 12 years – in 1994. Patently the controversy delaying production of the draft convention and its delayed implementation color this convention as questionable. Such is not the stuff for an instrument of sufficient stature to serve for coordination of the administrative framework under the Oceans Public Trust. Indeed, regardless that the United States signed the UNCLOS document in 1982, it was not thereafter ratified by the Senate and remains to be again reviewed by the Senate Committee on Foreign Relations. But at this stage in the development of customary law, to what purpose would ratification serve in the Oceans Public Trust crucible? It was not until 1994 that essential fixes were negotiated by the United States with the intent of resolving issues

356

Chapter VII

Public Trust of the Oceans

with unacceptable treatment for its interests under the UNCLOS text.111 But both UNCLOS and the 1994 Agreement yet languish at the Senate Foreign Relations Committee in 2007 after favorable action by that Committee on a vote of 19–0 sending UNCLOS to the Senate floor and recommending action by the full Senate giving advice and consent on February 25, 2004.112 No action was taken at that time in the 108th Congress, and no action was taken in 2005–2006 during the 109th Congress, and the whole process must start again with a vote in the Foreign Relations Committee of the 110th Congress beginning in January, 2007.113 Whatever the interests in opposition to UNCLOS and the 1994 Title XI Agreement may be, they have been sufficient to block the State Department’s efforts to move the United States into UNCLOS and the 1994 Title XI Agreement. Defense concerns have been mentioned, as well as dissatisfaction with dispute settlement, the continental shelf provisions, and the amendment process under UNCLOS114 but, whatever the interest or interests, it or they have patently been sufficiently significant. At this point there is substantial experience with UNCLOS in the world community, and given the continuing dissatisfaction of the United States and other States, even among those which are parties to UNCLOS, it is suggested that the best approach now would be to convene the Fourth United Nations Law of the Sea Conference with the particular charge to maintain

111

112

113 114

1994 Agreement Relating to the Implementation of Part XI of the U.N. Convention, S. Ex. Rept. 108–10 (March 11, 2004); see supra c. iv, note 121. The U.N. Law of The Sea Convention And The United States: Developments Since October 2003 1, C.R.S., RS21890 (Jan. 27, 2006). Advice and consent of the Senate are required before the President may sign UNCLOS and deliver the ratified convention for deposit. U.S. Const. art. II, § 2, ¶ 2. Under Senate procedure additional hearings on UNCLOS are not required, through given the number of new Foreign Relations Committee members hearings in the 110th Congress are likely before another Committee vote sending UNCLOS for full Senate action. It remains problematical whether UNCLOS will see a floor vote even with the change in leadership due to the substantial opposition to UNCLOS provisions which are seen as impacting American sovereignty. This alone suggests that an updated UNCLOS may be the reasonable approach for so important a subject, especially as the United States is not alone in its concerns about the provisions of the current convention. It is likely that a Fourth United Nations Convention on the Law of the Sea may be the course forward. Id. at 1, 6. Id. at 2–6. For the issues and State Department responses see http://www.state.gov/g/ oes/rls/rm/2004/30723pf/htm.

C. Whether United States UNCLOS Ratification Matters

357

the navigational freedom principle within the high seas regime res communis public trust for the purpose of designing and securing administrative coordination through defining the Oceans Public Trust. Such a Fourth United Nations Law of the Sea Convention would be an appropriate forum for the Oceans Public Trust crucible to secure reasonable balances addressing the interests of all participants and beneficiaries, States, Mankind and national or regional populations. Altruism is not required, and economic impacts must be considered in equilibrium with resource conservation for sustainable yield on a continuing basis. Perhaps the basic point, the issue which the Selden/Grotius dispute of the 17th century brings home best to us in the 21st century, is that the multiplicity of views presented are not inherently evil or self-aggrandizing, so that contending interests must be understood within the crucible, as have the competing State and international interests which melded into the definition of the territorial sea and are now expanding as protective jurisdictional zones within marginal sea areas beyond the territorial sea. Perhaps a strange place to find a concept for building the administrative structure of the Oceans Public Trust, within the principle of high seas regime res communis public trust and the common principle of navigational freedom, has been suggested in a paper addressing the development of democracy in the Middle East. There Lee Kuan Yew, Minister Mentor of Singapore, recently outlined the steps which should be followed to implement democracy in a tumultuous context of competing and conflicting interests, both governmental and socio-economic, and those steps have equal application to the collective States trustees in formation of the Oceans Public Trust. Lee Kuan Yew writes as follows: A better start would be to concentrate on education, the emancipation of women, and the creation of economic opportunity. Next should come a focus on implementing the rule of law, strengthening the independence of the courts, and building up the civil-society intuitions necessary for democracy. Only then will free elections lead to a more democratic order.115

The elements to this approach are (1) education, (2) beneficial non-discriminatory participation by an entire population, (3) a respected process for adopting and implementing regulations, (4) a respected process for enforcing

115

Lee Kuan Yew, The United States, Iraq, And the War On Terror, Foreign Affairs 4–5 (Jan.–Feb., 2007).

358

Chapter VII

Public Trust of the Oceans

regulations, (5) the emplacement of services globally sufficient to protect and preserve the trust assets, and (6) the communal participation of all populations through their collective State trustee. Thus, paraphrased for the Oceans Public Trust, the prescription for drafting the trust indenture document might well read: The place to start would be to concentrate on education, the definitions of the beneficiary as Mankind and the trustee as the community of States, with the trustees as fiduciaries charged to equitably protect and preserve living and nonliving marine resources through management and conservation of the oceans and seas for Mankind of the present and future according to the principle of sustainability. Next should be a focus on implementing the rule of law, strengthening the independence and transparency of regulatory administration, and building up littoral State, regional and global asset management facilities in parallel consistent with the res communis public trust and its application of the common navigational freedom principle.

It is time for Grotius and the common navigational freedom principle applied under Oceans Public Trust navigational servitudes within res communis public trust of the high seas regime to guide development, care and custody, protection and preservation of the oceans and seas.116 If UNCLOS is unacceptable, it is time to proceed and within the responsibility of collective States trustees to develop that which is acceptable.

116

As this volume is completed Professor Bernard Oxman has published an article addressing some of these very points, and in pertinent part writing: The outcome will depend in some measure on how governments behave in the multilateral regulatory system through which the LOS Convention effects its implementation, be it in a global organization like the IMO or in a regional fishery management organization. Making such a system work requires some accommodation of substantive preferences to the broader interests in the success of the multilateral process that is the key to stability and ordered change in the law of the sea. Bernard H. Oxman, The Territorial Temptation: A Siren Song at Sea, in 100 Am. J. Int’l L. 830, 851 (2007); Professor Oxman makes the further very pertinent observation that “[r]eflexive negativism in multilateral institutions is likely to yield perverse effects”. Id. at 851. Time to move on and forward.

Conclusion Extended municipal protective jurisdictions and high seas regime freedoms of the 21st century are juridical navigational servitudes which have developed in parallel from a common source, the Grotius/Selden dispute of the 17th and 18th centuries. This source is organic, and has produced navigational freedom as a common principle for equitable application as a res communis within the high seas regime. By default as well as by design that equitable concept of a res commuis contains the additional equitable principle of a public trust administered by the collective community of States for the reciprocal communal benefit of navigational freedom and its derivatives. It is the evolution of municipal law and high seas regime navigational servitudes over the past 300 years which has set the conditions and provisions of public trust protecting and preserving that cross-generational communal interest and benefit. As Great Britain applied municipal navigational servitudes by extending protective jurisdiction from inland coastal waters seaward into marginal sea areas during the 17th century it encountered Dutch arguments and armaments offered in support of freedom of the high seas. British interpretation and application of international law for the high seas and marginal sea areas matured in that age of Grotius/Selden, with the surprise that their dispute produced a juridical crucible not only yielding formation of the territorial sea concept, but also refining and accepting the English law concept of a coastal waters belt as territory subject to the Royal Prerogative jus publicum. The jus publicum public rights of fishing and navigation have been inherited by Americans as the “rights of Englishmen”, applied in North America not only over maritime areas but also over streams, rivers and lakes which drain to the sea. For the American People this is achieved under the commerce power delegated to their Federal Government in the 1789 United States Constitution. The further surprise is that each and all of these navigation servitudes are derived from the ancient commercial use of navigable waters in trade, transportation, communication and harvesting of living and nonliving resources, as exemplified by the laws of Wisby, Oleron and the Hanse Towns. Indeed, as Justice Story writes in Gibbons v. Ogden, navigation ultimately is commerce.

360

Conclusion

The Selden/Grotius dispute has been misunderstood. While publicists have argued about sovereignty of the sea versus high seas freedom, the crucible in fact was working a juridical balance within the territorial sea between littoral State navigational servitudes asserted for protective jurisdiction purposes and the high seas regime servitude for freedom of navigation. Coastal waters is where littoral State governmental servitudes were established through evolution and ultimately by accommodation of the high seas regime navigational servitudes for innocent passage, force majeure, refuge and safe haven. That juridical balance of the territorial sea was achieved to meet the real dispute of the 17th and 18th centuries, that is, control of commerce and commercial activities centering on coastal marine resources. It is in this context that the ultimate issue for Selden/Grotius became defined, by forcing the query whether littoral State applications of navigational servitudes through extended protective jurisdictions would be territorially based. That basis eventually became accepted within the concept of a territorial sea, a marginal sea belt subject to municipal law navigational servitudes for extended governmental protective jurisdiction and yet subject to the continuing high seas regime navigation servitude for innocent passage. How far the territorial seas could extend remained a divisive, but never more than a derivative issue – the concept was there, and they were only talking breadth. The modern issue has been to determine where the territorial sea begins. This is significant for both municipal jurisdiction and the high seas regime because establishment of the territorial sea baseline has a direct effect on the location of offshore juridical zones under contemporary evolving international law, both customary and conventional. Consequently as law of the sea adopted geometrical requirements for juridical bays, littoral State practice continued to maintain territorial sovereignty over certain bays exceeding the geometrical criteria, as well as over certain closed coastal waters. These bays were nonetheless juridical and the bases for such assertions of exclusive sovereignty (exclusive of high seas regime innocent passage applicable in the territorial sea) have been claims of historic or prescriptive title evidenced by the exclusion of foreign vessels as consolidated over time. Historic waters and prescriptive titles constitute the involved closed coastal waters and form the landward side or bounds of the Selden/Grotius dispute for extended maritime sovereignty. Such historic waters and historic bays are neither illegal nor deviations from international law. Rather, historic waters and historic bays exist as internal waters of littoral States and are consistent with juridical principles, and so recognized by international law and the law of the sea in particular.

Conclusion

361

When the law of the sea is narrowly interpreted it ignores historic titles to closed coastal waters as having a juridical situs; that is, an applicable rule of law. Arguments about the legality of historic titles occur because each historic title to a maritime area is unique. Historic titles bring certain closed coastal waters within the internal waters of the littoral State without compliance with later-developed formulistic rules of enclosure. The geometric criteria are conventional, and as such are agreements which eliminate the need to produce evidence proving particular claims and thus obfuscate the underlying consolidation process. In contrast, historic waters claims do not benefit from an agreed geometric presumption. Each historic waters claim is tested for evidence of excluded foreign navigation and for application of exclusive littoral State sovereignty over the involved area. Claims of historic waters titles in essence are an assertion of municipal navigational servitudes as sufficiently consolidated to challenge the presence of navigation servitudes otherwise applicable in navigable waters under the high seas regime. Testing the sufficiency of such assertions reveals the critical elements of the territorial sea crucible balance. Where the evidence shows the presence of high seas regime navigational servitudes, the crucible balance implements the territorial sea regime. That evidence addresses whether the high seas regime rights of innocent passage, force majeure, refuge and safe haven are protected and preserved within the involved coastal waters. The juridical role of high seas regime navigation servitudes has evolved to delimit both the seaward extent of littoral State sovereignty and the landward extent of the high seas regime. It is in this delimitation of high seas regime landward extent, an often ignored aspect of the historic waters/territorial sea juridical parameter, where the concept of balancing between municipal navigation servitudes for littoral State protective jurisdiction patently interfaces with high seas regime navigation servitudes applicable in the territorial sea. Historic waters’ supplemental baseline segments also set the legal criterion for baselines delimitations for high seas regime jurisdictional zones to be delimited between opposite or adjoining States when applying equitable principles to contesting territorial seas, contiguous zones, continental shelves and exclusive economic zones. Those jurisdictional zones are established consistently with the international law of the sea, both customary and conventional, and as such constitute navigational servitudes for the benefit of particular littoral States while protecting and preserving the high seas freedom of navigation servitude for the benefit of Mankind. It is in this context that the territorial sea concept derived from the Grotius/Selden dispute of the 17th and 18th centuries became and continues to be the crucible for formation and

362

Conclusion

application of governmental and public navigation servitudes as well as high seas regime navigation servitudes applicable in marginal seas. The role of the Royal Prerogative jus publicum and jus privatum in formulation of the territorial sea concept, as well as protection and preservation of the public rights to fishing and navigation within a public trust is, similarly, often missed. Selden’s arguments provide a window into the English law and thought process connecting the Royal Prerogative, territorial sea and jus publicum public trust with public non-governmental rights to fishing and navigation in maritime areas. Selden began to advocate the Stuart position for control of the “Four Seas” or “British Seas” from a conceptually constricted position. There was an almost absent body of international law at the time, but the well developed bodies of common law and Royal Prerogative juridical rights were firmly established. Both confirmed for Selden that the King as sovereign could occupy and possess the marginal seas around England, and indeed had done so. This is a constitutional formulation whereby municipal law ascribed to the national sovereign the ownership of maritime areas adjacent to the realm which no subject could acquire within common law standards, and such maritime areas were outside the territorially based common law jurisdiction. Ultimately perseverance in this position produced the occupied and possessed territorial sea as an adjunct of upland territorial sovereignty. That is, the law of the Royal Prerogative rather than common law ultimately provided the governmental concept required for extension of protective jurisdiction over coastal belts of the marginal sea area through governmental navigational servitudes, which concomitantly for municipal law brought along the jus publicum public rights to navigation and fishing in navigable waters. The territorial sea became subject to the public rights of navigation and fishing under the Royal Prerogative and, together with the Grotian freedom of the sea theories, melded in the territorial sea concept to produce navigational freedom as the common juridical principle. Common law recognized Royal Prerogative jus publicum and jus privatum rights in navigable waters, and provided a forum for the protection of licenses and grants for delegated exercise of such rights, particularly for the North American colonies where they continued to be asserted and exercised as the “rights of Englishmen”. Colonial charters confirm the application of jus publicum navigational and fishing rights in North America. In 1776 these North American Englishmen became the “people of the United States”, succeeding to historic waters and municipal navigational servitudes previously exercised by Great Britain. Further these North American Englishmen

Conclusion

363

acting as the American People expanded the prior English municipal law of navigable waters by delegating the authority to regulate commerce to the Federal Government under their 1789 United States Constitution, which came to provide the basis for extension of the municipal navigation servitude in Commerce Clause public trust to all rivers and streams flowing to the sea and used or potentially to be used in interstate and international commerce. The Royal Prerogative jus publicum public trust for the English public rights of navigation and fishing indeed was succeeded by the public trust resulting under the Commerce Clause of the Constitution, providing Federal Government authority as trustee over all navigable waters of the United States, and retaining therein the public rights of the American People to fishing and navigation as a beneficial public interest and the “navigation servitude”. In the United States common law applied to the people in their respective states and state governments, but there is no common law delegated to the Federal Government – a juridical creation limited to delegations of governmental rights in its organic document, the 1789 United States Constitution. Consequently, the jus publicum public rights of navigation and fishing are administered by the Federal Government on behalf of the people of the United States under the Commerce Clause of the Constitution (in public trust and not as delegated rights of government). This is consistent with the pre-1776 administration of those jus publicum public rights, and the 1789 reservation of public rights to the people of the United States under the Ninth Amendment of the Constitution. The notable exception or addition is that the pre-1776 public right to navigation was applicable only in “navigable waters” beyond common law territorial jurisdiction, but under the Constitution the navigation servitude is applied today over all navigable waters of the United States, including both maritime areas and inland waters draining to the sea. That extended application of the public right to navigation is the direct result of Justice Story’s perception that navigation is commerce and, therefore, the commerce power applies to all waters which can be navigated and were held under the Royal Prerogative in consequence of the Discovery Charters whereby the King held sovereign rights of territorial occupation and possession in North America. The irony arising with inclusion of such inland waters within the juridical status of navigable waters is that whereas common law previously defined the landward boundary of navigable waters through containment of admiralty jurisdiction, in the United States admiralty jurisdiction has become applicable to all navigable waters of the United States, inland and marine, under the Commerce Clause and the Supremacy

364

Conclusion

Clause of the Constitution. Common law as applied by the several states was not able to exclude admiralty jurisdiction from the internal navigable waters of the United States. Grotius has made it to the beach, or at least to the territorial sea baseline, establishing high seas regime navigations servitudes for Mankind as contained in the 1958 Geneva Conventions on Law of the Sea, the 1982 United Nations Law of the Sea Convention, and customary international law. Selden has provided the Royal Prerogative as the juridical basis for occupation and possession of the marginal sea as well as for extension of governmental navigation servitudes applying protective jurisdiction into the territorial sea and marginal sea jurisdictional zones subject to municipal law navigational servitudes for the benefit of the littoral State population. This is all accepted now as part of the high seas regime and the municipal law of the United States. In short, the Selden/Grotius dispute has come not only to define the high seas regime navigation servitudes in the 21st century, but also to apply them to marginal sea areas for non-discriminatory delimitation of national baselines and opposite and adjacent States’ maritime boundaries, while maintaining innocent passage, force majeure, refuge and safe haven, and thereby protecting and preserving commercial navigation of the high seas and marginal seas. The jus publicum public trust concept for public rights of navigation has become the model for municipal and international public trust responsibility of the common navigational freedom principle. Indeed, conventional law of the sea has evolved to the point where the 1982 United National Law of the Sea Convention explicitly establishes the Seabed Authority in terms which can only be described as a jus publicum-type public trust, and does that through a patent prescriptive assertion of conventional navigational servitudes. Selden and Grotius are resolved as to the existence of the territorial sea and the res communis status of the high seas, yet their understandings continue to evolve together in the territorial sea conceptual crucible as additional shared zones of jurisdiction are established in marginal sea areas and measured from the territorial sea baseline. Further the interdependent public navigational rights which they espoused for the jus publicum or the high seas now are held in public trusts by municipal governments and the international collective States trustees. Moreover, it is coming to be realized that the public, be it of a particular state or Mankind, is the ultimate source of juridical rights administered in these public trusts, and that their representative reciprocal States trustees have collective obligations of fiduciary responsibly beyond political objectives. Likewise it is the reciprocal responsibility of the collective

Conclusion

365

States trustees to insist on the loyalty of their opposite-number fiduciaries and to contest any and all efforts to effect discriminatory benefits from these public trusts. Public trust is the ultimate juridical paradigm, tested by its assertion and application of navigation servitudes for the protection and preservation of the common navigational freedom principle. In the 21st century the implementation of the high seas regime res communis public trust remains an ongoing process, but one now being brought forward out of the Grotius/Selden dispute through multiple conventional arrangements. While the theme of these agreements is consistently the protection and preservation of the high seas, they nonetheless supply a fractured and sectionalized approach to administration of the res communis public trust. The next major point of development is hinted at by the concept of “framework”, and that suggests the need for coordination and balancing of agreements within the conventional Oceans Public Trust. Within that 21st century juridical crucible for the high seas regime res communis public trust the Oceans Public Trust remains the ultimate objective for conventional law of the sea protection and preservation of the non-discriminatory navigation freedom principle and its application consistent with equitable principles.

Table of Cases International Affaire De L’Isle De Clipperton (Mexique v. France), 2 U.N.R.I.A.A. 1105 (1931), c. v, nn. 42–44 Aegean Sea Case (Greece v. Turkey), [1978] I.C.J. 3, c. iv, n. 137 The Argentine–Chile Frontier Arbitration (Argentina v. Chile), 16 U.N.R.I.A.A. 109 (1966), c. v, n. 37 The Argus, 4 Moore 4344 (1854), c. vi, n. 69 Asylum Case (Colombia v. Peru), [1950] I.C.J. 266, c. v, n. 48 Bering Sea Fur Seal Case, 1 Moore 759 (1893), c. vi, n. 40 Canada v. France (St. Pierre & Miquelon Case), 95 I.L.R. 645 (1992), c. iv, n. 135 Cayuga Indians Arbitration (Great Britain v. United States), 6 U.N.R I.A.A. 173 (1926), c. iv, n. 135 Chaco Case (Bolivia v. Paraguay), 3 U.N.R.I.A.A. 1817 (1938), c. iv, n. 128 Chamizal Case (Mexico v. United States), 11 U.N.R.I.A.A. 316 (1911), c. v, n. 39 Continental Shelf Case (Tunisia v. Libya), [1982] I.C.J. 18, c. iv, nn. 135, 137, 180 Corfu Channel Case (U.K. v. Albania), [1949] I.C.J. 4, c. 5, n. 1 Damages to Portuguese Colonies Arbitration (Portugal v. Germany), 2 U.N.R.I.A.A. 1111 (1928), c. iv, n. 128 Diversion of Water from the Meuse Case (Netherlands v. Belgium), 4 Hudson 172 (1937), c. iv, nn. 128, 137 Eastern Extension Case (Great Britain v. United States), 6 U.N.R.I.A.A. 112 (1923), c. iv, n. 128 Eritrea v. Yemen, [2000] P.C.A. ___, 40 I.L.M. 983 (2001), c. iv, n. 135 The English Channel Arbitration (United Kingdom v. France), 18 I.L.M. 1249, c. iv, nn. 41, 129, 194 Fisheries Case (United Kingdom v. Norway), [1951] I.C.J. 116, c. v, nn. 47–53

368

Table of Cases

Fisheries Jurisdiction Case (F.R.G. v. Iceland), [1974] I.C.J. 190, c. iv, n. 41 Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] I.C.J. 3, c. iv, n. 41 Frontier Dispute (Burkina Faso v. Mali), [1986] I.C.J. 554, c. v, n. 30 Georges Pinson (France v. United Mexican States), 5 U.N.R.I.A.A. 327 (1928), c. iv, n. 128 Grisbadarna Arbitration (Norway v. Sweden), 1 Scott 121 (Perm. Ct. Arb. 1915), c. 5, nn. 18–21 Guiana Boundary Arbitration (Great Britain v. Brazil), 11 U.N.R.I.A.A. 21 (1904); in J. Ralston, 1 The Law and Procedure of International Tribunals, 67 (2d ed. 1926), c. v, n. 41 Guinea v. Guinea–Bissau (Maritime Delimitation Case), 77 I.L.R. 636 (1985), c. iv, n. 135 Gulf of Fonseca Case (El Salvador v. Nicaragua), 11 Am. J. Int’l L. 674 (1917), c. v, nn. 23, 29–32 Gulf of Maine Case (Canada v. United States), [1984] I.C.J. 300, c. iv, nn. 129–37, 140, 157–58, 161–62, 165–69, 181, 196; c. vi, n. 69 Honduras Borders Arbitration (Guatemala v. Honduras), 2 U.N.R.I.A.A. 1308, c. v, n. 31 Island of Palmas Arbitration Case (United States v. Netherlands), 1 Scott 83 (Perm. Ct. Arb. 1932), c. v, nn. 12, 35–41 Island of Timor Arbitration (Netherlands v. Portugal), 1 Scott 354 (1941), c. iv, n. 128 Jan Mayen Case (Denmark v. Norway), [1993] I.C.J. 38, c. iv, nn. 129, 135, 137, 165, 170 Kate A. Hoff v. United Mexican States, 23 Am. J. Int’l L. 860 (1929), c. vi, n. 41 Land and Sea Boundaries Case (Honduras v. Nicaragua), [1962] I.C.J. 351, c. v, nn. 33–34 Legal Status of Eastern Greenland Case, [1933] P.C.I. J. Ser. A/B, No. 53, c. v, nn. 14–17 Libya v. Malta, 1985 ICJ 13, c. iv, nn. 29, 137 Maritime Boundary Case (Qatar v. Bahrain), [2001] I.C.J. __ (Slip Op. ¶ 173); c. iv, nn. 129, 135, 171 The Minquiers and Ecrehos Case (United Kingdom v. France), [1953] I.C.J. 47, c. v, nn. 54–56 Newfoundland v. Nova Scotia Arbitration, __ I.L.R. ___ (2002), c. iv, nn. 131, 181, 189

Table of Cases

369

North Atlantic Coast Fisheries Arbitration (Great Britain v. United States), 1 Scott 191 (Perm. Ct. Arb. 1916), c. v, nn. 4, 22–23, 25–27, 81; c. vi, n. 69 North Sea Continental Shelf Boundaries Cases (Germany–Denmark–Netherlands), [1969] I.C.J. 4, c. iv, nn. 129, 137, 194 Norwegian Shipowners Claims Arbitration (United States v. Norway), 1 U.N.R.I.A.A. 307 (1922), c. iv, n. 128 Passage Over Indian Territory (Portugal v. India), [1960] I.C.J. 6, c. iv, n. 170 Qatar v. Bahrain, 2001 I.C.J. ___, (Slip. Op.) (2002), c. iv, nn. 135, 137, 165, 172, 180 Question De Limits (Colombia v. Venezuela), 1 U.N.R.I.A.A. 226 (1922), c. v, n. 31 S.S. Lotus Case, 2 Hudson 23 (Perm. Ct. Int’l L. 1927), c. v, n. 32 Stetson v. United States (The Alleganean), 4 Moore 4332 (18__), c. vi, nn 56, 61 Temple of Preah Vihear Case (Cambodia v.Thailand), [1962] I.C.J. 6, c. v, nn. 57–63 Trail Smelter Arbitration (United States v. Canada), 3 U.N.R.I.A.A. 1907 (1941), c. iv, n. 128 Tunisia v. Libya (Continental Shelf ), 1982 ICJ 18, c. iv, n. 135 Tunisia v. Malta, [1985] I.C.J. 13, c. iv, n. 129 Tunisie c. Libyenne (Demande en Révision), [1985] I.C.J. 192, c. iv, n. 137 United States Nationals in Morocco (France v. United States), [1952] I.C.J. 199, c. iv, n. 170; c. v, n. 48 Varanger Fjord Case, Ann. Dig. Int’l L. 1933–1934 (No. 51) 137 (1934), c. vi, n. 69 Walfish Bay Dispute (Great Britain v. Germany), 9 U.N.R.I.A.A. 267 (1911), c. v, n. 37 The Washington, 4 Moore 4342 (1853), c. vi, n. 69 Western Sahara Advisory Opinion, [1975] I.C.J. 12, c. v, n. 57

United Kingdom and Commonwealth Abbot of Strata Mercella’s Case, (1591) 77 Eng. Rep. 765 (K.B.), c. iii, n. 35 Acow’s Case, (1806) 127 Eng. Rep. 741 (C.P.), c. ii, n. 96

370

Table of Cases

Adams v. Bay of Islands County, [1916] N.Z.L.R. 65, c. vi, n. 69 Alcock v. Cooke, (1829) 130 Eng. Rep. 1092 (C.P.), c. iii, n. 80 Admiral, (1664) 83 Eng. Rep. 1088 (K.B.), c. ii, n. 76 Admiralty, (1611) 77 Eng. Rep. 1355 (K.B.), c. ii, n. 83 Admiral of the Cinque Ports v. The King, (1831) 166 Eng. Rep. 304 (Ad.), c. i, n. 84 Admiralty Jurisdiction, (1678) 86 Eng. Rep. 199 (K.B.), c. ii, n. 90 Aldermen of Chesterfield’s Case, (1584) 78 Eng. Rep. 301 (K.B.), c. iii, n. 48 Alton Wood’s Case, (1600) 76 Eng. Rep. 89 (K.B.), c. iii, n. 77 The Anna, (1805) 165 Eng. Rep. 809 (Ad.), c. vi, n. 61 Anon. #1, (1327–1377) 72 Eng. Rep. 308 (K.B.), c. iii, n. 33 Anon. #3, (1327–1377) 72 Eng. Rep. 309 (K.B.), c. iii, n. 32 Anon. #55, (1340) 145 Eng. Rep. 56 (K.B.), c. iii, n. 24 Attorney General v. Chambers, (1854) 43 Eng. Rep. 486 (Ch.), c. i, n. 86 Attorney General v. Sir Edward Farmer, (1667) 83 Eng. Rep. 125 (Exch.), c. i, n. 70 Attorney General v. Richards, (1795) 145 Eng. Rep. 980 (Exch.), c. i, nn. 69, 79 Attorney General v. Trustees of the British Museum, (1903) 2 Ch. 598, c. ii, n. 8; c. iii, nn. 34, 49 Ball v. Herbert, (1789) 100 Eng. Rep. 560 (K.B.), c. i, n. 92 The Barbara, (1801) 165 Eng. Rep. 514 (Ad.), c. ii, n. 76 Basket v. University of Cambridge, (1758) 96 Eng. Rep. 59 (K.B.), c. ii, nn. 79, 83 Beak v. Thyrwhet, (1607) 87 Eng. Rep. 124 (K.B.), c. ii, n. 79 Beake v. Tirrell, (1690) 90 Eng. Rep. 379 (K.B.), c. ii, n. 107 Benzen v. Jefferies, (1697) 91 Eng. Rep. 999 (K.B.), c. ii, n. 68 Bidolph v. Bruce, (1699) 88 Eng. Rep. 1282 (K.B.), c. ii, n. 72 Blundell v. Carterall, (1821) 106 Eng. Rep. 1190 (K.B.), c. i, nn. 38, 90, 98 Blustrode v. Hall, (1675) 83 Eng. Rep. 1081 (K.B.), c. i, n. 77 Bret v. Johnson, (1605) 145 Eng. Rep. 249 (Exch.), c. iii, n. 86 Brett v. Beales, (1829) 173 Eng. Rep. 1208 (Nisi Prius), c. iii, n. 41 Broadfoot’s Case, (1743) 168 Eng. Rep. 76 (K.B.), c. ii, n. 52; c. iii, n. 16 Brook v. Goring, (1630) 79 Eng. Rep. 773 (K.B.), c. iii, n. 82 Broom’s Case, (1697) 91 Eng. Rep. 34 (Ad.), c. ii, nn. 104, 108 Brown v. Benn, (1706) 92 Eng. Rep. 322 (K.B.), c. ii, n. 71 Buck v. Atwood, (1727) 93 Eng. Rep. 832 (K.B.), c. ii, n. 71

Table of Cases

371

Buckland v. Fowler, (1486) 77 Eng. Rep. 965 (K.B.), discussed in The Case of Sutton’s Hospital, (1613) 77 Eng. Rep. 961 (K.B.), c. iii, n. 48 Burgesses of Parliament Case, (1614) 80 Eng. Rep. 165 (K.B.), c. iii, n. 51 Calvin’s Case, (1557) 77 Eng. Rep. 384 (K.B.), c. ii, n. 94 Campbell v. Leach, (1775) 27 Eng. Rep. 478 (Ch.), c. i, n. 71 Capel v. Buszard, (1829) 130 Eng. Rep. 1237 (Exch.), c. i, n. 68 Carter v. Murcot, (1768) 98 Eng. Rep. 127 (K.B.), c. i, n. 36 The Case of the Admiralty, (1610) 77 Eng. Rep. 1461 (K.B.), c. i, n. 82; c. ii, n. 88 A Case of Custom, (1582) 77 Eng. Rep. 1299 (Exch.), c. ii, n. 58 Case of the Churchwardens, (1613) 77 Eng. Rep. 1025 (K.B.), c. iii, nn. 86–87 Case of the King’s Prerogative, (1606) 77 Eng. Rep. 1294 (K.B.), c. iii, n. 16 Case 40, (1692) 88 Eng. Rep. 1135 (K.B.), c. ii, n. 108 Case of Swans, (1592) 77 Eng. Rep. 435 (K.B.), c. i, n. 81; c. iii, n. 65 Caule v. Cooke, (1670) 84 Eng. Rep. 313 (K.B.), c. ii, n. 80 Child v. Sands, (1693) 91 Eng. Rep. 33 (Ad.), c. ii, n. 81 Cinque Ports v. The King, (1831) 166 Eng. Rep. 304 (Ad.), c. i, n. 84 Clugas v. Penaluna, (1791) 100 Eng. Rep. 1122 (K.B.), c. ii, n. 76 Coomes v. Jenkinson, (1673) 84 Eng. Rep. 788 (K.B.), c. ii, n. 76 Cossart v. Lawdley, (1607) 87 Eng. Rep. 159 (K.B.), c. ii, n. 74 Count of Exeter’s Case, (1613) 81 Eng. Rep. 297 (K.B.), c. iii, n. 51 Creamer v. Tookley, (1626) 82 Eng. Rep. 339 (K.B.), c. i, n. 72; c. ii, n. 120 Cromer v. Cranmer, (1566) 74 Eng. Rep. 247 (K.B.), n.____; cited in Queen and Braybrooks’s Case, (‘583) 74 Eng. Rep. 246 (K.B.), c. iii, n. 33 Day v. Searle, (1734) 93 Eng. Rep. 973 (K.B.), c. ii, n. 71 Didolph v. Bruce, (1699) 88 Eng. Rep. 1282 (K.B.), c. ii, n. 66 Dickenson’s Case, (1627) 124 Eng. Rep. 346 (C.P.), c. iii, n. 57 Direct United States Cable Co. v. Anglo–American Cable Co., Ltd., L.R. (1877) 2 App. Cas. 394, c. v, n. 24; c. vi, n. 69 Doddington’s Case, (1594) 76 Eng. Rep. 484 (C.P.), c. iii, n. 47 Don Diego Serviento D’Acuno v. Jolliff, (circa 1724), 80 Eng. Rep. 228 (Ad.), c. ii, nn. 68, 76, 84 Dorrington’s Case, (1619) 72 Eng. Rep. 995 (K.B.), c. ii, n. 79 Drewry v. Twiss, (1792) 100 Eng. Rep. 1174 (K.B.), c. ii, n. 78 Duke of York v. Linstred, (1664) 83 Eng. Rep. 1169 (Ad.), c. ii, n. 79

372

Table of Cases

Dutchy of Lancaster Case, (1561) 75 Eng. Rep. 325 (Q.B.), c. iii, n. 23 Dyke v. Walford, (1846) 13 Eng. Rep. 557 (P.C.), c. iii, n. 54 Sir E. Farmen’s Case, (1677) 2 Lev. 171 (Trin. 28 Car. 2), c. iii, n. 78 Earl of Rutland’s Case, (1608) 77 Eng. Rep. 555 (K.B.), c. iii, n. 81 The Eclipse and The Saxonia, (1861)15 Eng. Rep. 493 (P.C.), c. vi, n. 69 Sir Edward Coke’s Case, (1624) GODB 295 (Pash. 21 Jac.), c. iii, n. 46 Sir Edward Turner’s Case, (1678) 86 Eng. Rep. 968 (K.B.), c. i, n. 71 Edwards v. Harben, (1788) 100 Eng. Rep. 315 (K.B.), c. ii, n. 72 The Eliza Jane, (1836) 3 Hag. Adm. 355, c. ii, nn. 84, 86 The Elleanor, (1805) 5 Ch. Rob. 39, c. ii, n. 84 The Endeavor, Ex. K.R. Memoranda Roll, 11 Geo. III, Easter Term, No. 108 (1771) [P. Rec. Off., London], c. ii, n. 60 Englefield’s Case, (1591) 77 Eng. Rep. 428 (Exch.), c. iii, n. 48 Ewelme Hospital v. Andover, (1684) 23 Eng. Rep. 1260 (Ch.), c. i, n. 84; c. iii, n. 82 The Fagerness, (1927) 43 L.T. 746 (Adm.), c. vi, n. 69 Foxley’s Case, (1601) 77 Eng. Rep. 224 (K.B.), c. i, n. 81; c. iii, n. 56 The Franconia (Queen v. Keyn), [1876] L.R. Exch. Div. 63, c. ii, n. 94 Gavin v. The Queen, (1956) 3 D.L.R. 2d 547, c. vi, n. 69 Gifford v. Yarborough, (1828) 130 Eng. Rep. 1023 (H.L.), c. i, n. 68 Goodwin v. Tomkins, (circa 1669) 74 Eng. Rep. 1110 (K.B.), c. ii, n. 78 Gray v. Bond, (1821) 129 Eng. Rep. 1123 (C.P.), c. i, n. 95 Grabham v. Geales, (1619) 81 Eng. Rep. 995 (K.B.), c. iii, n. 84 Griffiths v. Dunnett, (1844) 135 Eng. Rep. 407 (C.P.), c. ii, n. 82 Groenvelt’s Case, (1697) 91 Eng. Rep. 1038 (K.B.), c. iii, n. 39 The Happy Isabel, Ex. K.R. Memoranda Roll, 29–30 Geo. II, Trinity Term, No. 24 (1757) [P. Rec. Off., London], c. ii, n. 59 Harris v. Parker, (1702) 1 Eng. Rep. 247 (H.L.), c. iii, n. 68 Heddy v. Wheelhouse, (1597) 78 Eng. Rep. 834 (Q.B.), c. i, n. 84; c. iii, n. 42 Sir Henry Constable’s Case, (1601) 77 Eng. Rep. 218 (K.B.), c. i, nn. 84, 86; c. iii, n. 62 Hildegrand, Brimston & Baker’s Case, (1616)81 Eng. Rep. 488 (K.B.), c. ii, n. 92 Home v. Earl Camden, (1790) 126 Eng. Rep. 295 (K.B.), c. ii, n. 103 Hook v. Moreton, (1698) 91 Eng. Rep. 1165 (K.B.), c. ii, n. 72 Houghton’s Case, (1610) 123 Eng. Rep. 789 (Ad.), c. ii, n. 77 Howe v. Napier, (1766) 98 Eng. Rep 13 (K.B.), c. ii, n. 71

Table of Cases

373

Hughes v. Cornelius, (1684) 90 Eng. Rep. 28 (K.B.), c. ii, n. 105 Humbleton v. Bucke, (1370) 124 Eng. Rep. 295, 309 (C.P.), c. i, nn. 66, 79 Huntley’s Case, (1370) 73 Eng. Rep. 736 (Q.B.), c. i, n. 80 The Ida, (1860) 167 Eng. Rep. 3 (Ad.), c. ii, n. 93 Instructions for John Jackson, Receiver–General, of the Rights of the Admiralty, (circa 1778) 165 Eng. Rep. 17 (Ad.), c. iii, n. 55 Isle of Mann Case (LX), (1598) 123 Eng. Rep. 575 (C.P.), c. ii, n. 76 Item en. Quo Warrant, (1327–1377) 72 Eng. Rep. 309 (K.B.), c. i, n. 84 Jennings v. Rocke, (1620) 81 Eng. Rep. 994 (K.B.), c. iii, n. 16 John Constable’s Case, (circa 1664) 123 Eng. Rep. 367 (C.P.), c. i, n. 70 Sir John Watt’s Case, (1611) 123 Eng. Rep. 797 (Ad.), c. ii, n. 110 Johnson v. Drake, (1662) 83 Eng. Rep. 884 (Ad.), c. ii, n. 83 Johnson v. Shippin, (1703) 91 Eng. Rep. 37 (K.B.), c. ii, n. 73 Justin v. Ballam, (1702) 92 Eng. Rep. 38 (Q.B.), c. ii, n. 74 King v. Amery, (1788) 100 Eng. Rep. 278 (K.B.), c. iii, n. 85 King v. Lambe, (1792) 101 Eng. Rep. 44 (K.B.), c. ii, n. 93 The King v. Marsh, (1615) 81 Eng. Rep. 23 (K.B.), c. ii, n. 84 King v. Neale, (1799) 101 Eng. Rep. 1367 (K.B.), c. ii, n. 93 The King v. Savage, (1684) 82 Eng. Rep. 542 (K.B.), c. ii, n. 88 The King v. Smith, (1780) 99 Eng. Rep. 283 (K.B.), c. i, n. 77 King v. Solgard, (1738) 93 Eng. Rep 1055 (K.B.), c. ii, n. 87 King v. White, (1617) 81 Eng. Rep. 244 (K.B.), c. iii, n. 84 Kirby v. Gibbs, (1668) 84 Eng. Rep. 183 (Ad.), c. i, nn. 70, 85 Knight v. Perry, (1690) 90 Eng. Rep. 373 (K.B.), c. ii, nn. 70, 72 Knight’s Case, (1588) 72 Eng. Rep. 530 (K.B.), c. iii, n. 52 Lacy’s Case, (1583) 74 Eng. Rep. 246 (K.B.), c. ii, n. 86 The Lady Wyndham’s Case, (1675) 86 Eng. Rep. 1081 (K.B.), c. ii, n. 57 Lambert v. Acretree, (1695) 91 Eng. Rep. 1045 (K.B.), c. ii, n. 69 Le Caux v. Eden, (1781) 99 Eng. Rep. 375 (K.B.), c. ii, n. 105 Le Pool v. Tryan, (1655) 82 Eng. Rep. 871 (K.B.), c. ii, n. 80 Le Roy v. Trinity House, (1663) 82 Eng. Rep. 986 (K.B.), c. i, n. 77 Lowe v. Govett, (1832) 110 Eng. Rep. 317, (K.B.), c. i, n. 68 Maria v. Hall, (1709) 127 Eng. REp. 741 (C.P.), c. ii, nn. 57, 79 The Mariners Case, (1725) 88 Eng. Rep. 269 (K.B.), c. ii, n. 71 Mariners v. Jones, (1619) 124 Eng. Rep. 7 (C.P.), c. ii, n. 71 Mayor of Lynn Regis v. Taylor, (1684) 83 Eng. Rep. 629 (K.B.), c. i, n. 93

374

Table of Cases

Mentone v. Gibbons, (1789) 100 Eng. Rep. 568 (K.B.), c. ii, nn. 71, 74 Miles v. Rose, (1814) 128 Eng. Rep. 868 (C.P.), c. i, n. 91 Moffat v. McFee, [1880] S. Ct. Can. 66, c. vi, n. 69 More v. Rowbotham, (1705) 87 Eng. Rep. 919 (Q.B.), c. ii, n. 70 Morris v. Bercley, (1669) 84 Eng. Rep. 277 (K.B.), c. ii, n. 104 Morten v. Spencer, (1662) 83 Eng. Rep. 905 (K.B.), c. ii, n. 77 Mortensen v. Peters, (1906) 43 S.L.R. 872 (H.L.), c. vi, n. 69 No. 29, Anonymous, (1703) 88 Eng. Rep. 849 (Q.B.), c. ii, n. 100 No. 112, Admiral, (1665) 83 Eng. Rep. 1264 (K.B.), c. i, n. 96 No. 188, (1641) 82 Eng. Rep. 434 (K.B.), c. ii, n. 97 No. 1044, Piracy, (1605) 72 Eng. Rep. 886 (K.B.), c. ii, n. 89 The N. S. Concerio, Ex. K. R. Memoranda Roll, 50 Geo. 111, Michaelmas Term, No. 222 (1810) (P. Rec. Off. London), c. ii, n. 63 Opinion of the Justices, (1605) 73 Eng. Rep. 886 (Ch.), c. ii, n. 92 Opy v. Child, (1693) 91 Eng. Rep. 33 (K.B.), c. ii, n. 71 Osman v. Wells, (1705) 88 Eng. Rep. 864 (Q.B.), c. ii, n. 72 Parmeter v. Attorney-General, (1813) 3 Eng. Rep. 713 (H.L.), c. i, n. 94; c. ii, nn. 29–30 The Peerless, (1860) 15 Eng. Rep. 182 (P.C.), c. ii, nn. 71, 95 Penn v. Baltimore, (1750) 27 Eng. Rep. 1132 (Ch.), c. ii, n. 43 Pidgeon v. Trent, (1685) 84 Eng. Rep. 926 (K.B.), c. ii, n. 57 Playes Case, (1663) 83 Eng. Rep. 1025 (K.B.), c. ii, n. 110 Polyxphen v. Branford, (1662) 83 Eng. Rep. 920 (K.B.), c. ii, n. 79 Post Office v. Estuary Radio, [1968] L.R. 2 Q.B. 740, c. vi, n. 69 Prerogative (Anon.), (circa 1547) 73 Eng. Rep. 913 (K.B.), c. ii, n. 6 Prevot’s Case, (1709) 127 Eng. Rep. 777 (C.P.), c. ii, n. 96 Prinston v. Court of Admiralty, (1616) 81 Eng. Rep. 126 (K.B.), c. ii, n. 92 Proclamations (Anon.), (1611) 77 Eng. Rep. 1352 (K.B.), c. i, n. 67 Queen and Broadfoot’s Case, (1583) 74 Eng. Rep. 240 (K.B.), c. ii, n. 33 Queen v. Earl of Northumberland, (1568) 75 Eng. Rep. 472 (K.B.), c. ii, n. 55 Queen v. Steer, (1696) 91 Eng. Rep. 832 (K.B.), c. ii, n. 91 Radly v. Whitwell, (1672) 84 Eng. Rep. 524 (K.B.), c. ii, n. 109 Re Dominion Coal Co. and County of Cape Breton, 40 D.L.R. 2d 593 (1963), c. vi, n. 69 Regina v. Cunningham, [1859] Bell’s Crown Cases 72, c. vi, n. 69 Regina v. Keyn, [1876] L.R. (2 Ex. D.) 63, c. ii, n. 94

Table of Cases

375

The Reynard, (1778) 165 Eng. Rep. 51 (Ad.), c. ii, n. 106 Rex v. City of Norwich, (1719) 93 Eng. Rep. 458 (K.B.), c. iii, n. 40 Rex v. Hampden (Ship Money Case), (1637) 3 Hargrave, State Trials 826, c. ii, n. 52 Rex v. London Corporation, (1834)149 Eng. Rep. 968 (Exch.), c. iii, n. 85 Rex v. Mussary, 1 Wet. Pat. Cas. 41 (1738), c. iii, n. 77 Ross & Walker, (1765) 95 Eng. Rep. 801 (K.B.), c. ii, n. 71 The Royal Arch, (1858) 166 Eng. Rep. 1131 (Ad.), c. ii, n. 72 Royall Piscarie de le Banne, (1610) 80 Eng. Rep. 540 (K.B.), c. i, n. 83; c. iii, n. 50 Sandys v. East-India Company, (1684) 90 Eng. Rep. 43 (K.B.), c. ii, nn. 71, 84 Saunders Case, (1586) 72 Eng. Rep. 545 (Q.B.), c. ii, n. 57 Sauvajot’s Case, (1799) 127 Eng. Rep. 741 (C.P.), c. ii, n. 96 Scranton v. Brown, (1825) 107 Eng. Rep. 1140, 1141 (K.B.), c. i, n. 84 Le Seigneur Admiral v. Linsted, (1664) 82 Eng. Rep. 1042 (K.B.), c. ii, n. 79 Separate Fishery, (1772) 98 Eng. Rep. 696 (K.B.), c. i, n. 35 Sheers v. Martin, (1665) 83 Eng. Rep. 1244 (K.B.), c. ii, n. 92 Smart v. Wolff, (1789) 100 Eng. Rep. 600 (K.B.), c. ii, nn. 103, 110 Smith v. Kemp, (1693) 91 Eng. Rep. 537 (K.B.), c. i, n. 34 Somer’s Case, (1590) 74 Eng. Rep. 461 (C.P.), c. ii, n. 108 The Spanish Ambassadour v. Buntish, (1615) 80 Eng. Rep. 1157 (K.B.). c. ii, n. 76 Spanish Ambassador v. Pauntes, (1616) 81 Eng. Rep. 381 (K.B.), c. ii, n. 92 Sparrow v. Caruthers, (1746) 93 Eng. Rep. 1153 (K.B.), c. ii, n. 81 Syeds v. Hay, (1791) 100 Eng. Rep. 1008 (K.B.), c. i, n. 97 Thompson v. Smith, (1667) 84 Eng. Rep. 99 (K.B.), c. ii, n. 103 Towson v. Tourson, (1615) 81 Eng. Rep. 342 (K.B.), c. i, n. 72; c. ii, n. 120 Trantor v. Wilson, (1704) 87 Eng. Rep. 776 (Q.B.), c. ii, n. 100 Trial of Thomas Vaughan, (1696) 90 Eng. Rep. 1280 (K.B.), c. ii, nn. 85, 100 Turner v. Neele, (1680) 83 Eng. Rep. 388 (K.B.), c. ii, n. 79 Turner v. Smith, (1668) 82 Eng. Rep. 1161 (K.B.), c. ii, n. 79

376

Table of Cases

Twee Gebroeders (No. 1), (1800) 165 Eng. Rep. 422, 423 (Ad.), c. ii, n. 111 Twee Gebroeders (No. 2), (1801) 165 Eng. Rep. 485 (Ad.), c. ii, n. 111 The Uffro Anna, Ex. K.R. Memoranda Roll, 4 Geo. III, Michaelmas Term, No. 222 (1764), [P. Rec. Off. London], c. ii, n. 61 Verdale v. Marten, (1673) 84 Eng. Rep. 787 (K.B.), c. ii, n. 106 Vinkestone v. Ebden, (1698) 91 Eng. Rep. 219 (K.B.), c. i, n. 97 Violet v. Blague, (1619) 79 Eng. Rep. 439 (K.B.), c. ii, n. 81 The Walsingham Packet, (1799) 165 Eng. Rep. 244 (Ad.), c. ii, n. 105 Ward v. Cresswell, (1741) 125 Eng. Rep. 1165 (C.P.), c. i, n. 36 Warn, v. Prideaux, (1672) 84 Eng. Rep. 718 (K.B.), c. i, n. 97 Warram’s Case, (1587) 72 Eng. Rep. 553 (K.B.), c. iii, n. 55 Warren v. Mathews, (1703) 91 Eng. Rep. 312 (K.B.), c. i, n. 33 Warren v. Mathews, (1704) 87 Eng. Rep. 831 (K.B.), c. i, n. 33 Wast. Inundation, (1564) 123 Eng. Rep. 276 (C.P.), c. i, n. 79 Watkinson v. Bernadiston, (1726) 24 Eng. Rep. 769 (Ch.), c. ii, n. 75 Whistler’s Case, (1613) 77 Eng. Rep. 1021 (K.B.), c. iii, nn. 36, 53, 67 Wiggon v. Branthwait, (1700) 91 Eng. Rep. 1215 (K.B.), c. i, n. 84; c. iii, nn. 37, 68 The Willing Mind, Ex. K.R. Memoranda Roll, 13 Geo. III, Easter Term, No. 222 (1773) [P. Rec. Off. London], c. ii, n. 62 Wilson v. Bird, (1695) 91 Eng. Rep. 911 (K.B.), c. ii, n. 100 Wood v. Hannah, ________ cited in A. Browne, A Compendius View of the Civil Law (1797), c. ii, n. 72

United States The Abbey, 1 F. Cas. 26 (No. 14) (C.C. Mass. 1818), c. ii, n. 118 Alabama v. Texas, 347 U.S. 727 (1953), c. vi, n. 11 Alaska v. Ahtna, 891 F.2d 1401 (9th cir. 1989), cert. denied 495 U.S. 919 (19__), c. vi, nn. 75, 95 Alaska v. Arctic Maid, 366 U.S. 199 (1961), c. vi, nn. 41, 71 Alaska Packers Assoc. v. Industrial Acci. Comm’n, 294 U.S. 532 (1935), c. vi, n. 71 Alaska v. Uri, et al., No 2435, S. Ct. of Alaska (1975), c. vi, n. 41 Amino Brothers Company, Inc. v. United States, 372 F.2d 485 (Ct. Cl. 1967), c. vi, n. 155 The Antelope, 23 U.S. (10 Wheat.) 66 (1825), c. ii, n. 147

Table of Cases

377

The Apollon, 22 U.S. (9 Wheat.) 66 (1825), c. ii, n. 147; c. vi, n. 41 Arizona v. California, 283 U.S. 423 (1931), c. vi, n. 163 Arizona v. California, 298 U.S. 558 (1936), c. vi, nn. 154, 163 Armstrong v. United States, 364 U.S. 40 (1960), c. vi, n. 155 Ashwander v. TVA, 279 U.S. 288 (1936), c. iii, n. 105; c. vi, nn 152–54 Bains v. The James and Catherine, 2 F. Cas. 410 (No. 756) (C.C.D. Penn. 1832), c. ii, n. 121 Banco National De Cuba v. Sabbatino, 376 U.S. 398 (1964), c. vi, n. 19 Bauman v. Ross, 167 U.S. 548 (1897), c. vi, n. 79 Bell v. Town of Wells, 557 A.2d 169 (1989), c. iii, n. 164 Bennett v. Boggs, 3 F. Cas. 221 (No. 1,319) (C.C.D. N.J. 1830), c. v, n. 5 Board of Regents v. Roth, 408 U.S. 564 (1972), c. vi, n. 155 Bonnelli Cattle Company v. Arizona, 414 U.S. 313 (1973), c. vi, nn. 70, 98 Boyd v. Alabama, 94 U.S. (4 Otto) 645 (1876), c. vi, n. 78 Borax Consolidated v. City of Los Angeles, 296 U.S. 10 (1935), c. iii, n. 153; c. vi, n. 23 Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), c. vi, n. 80 Bullock v. The Lamar, 4 F. Cas. 654 (No. 2,129) (C.C.D. Ga. 1844), c. vi, n. 71 Calder v. Bull, 3 U.S. (3 Dall.) 385 (1798), c. iii, n. 105 California v. Thompson, 313 U.S. 109 (1941), c. vi, n. 78 Chae Chan Ping v. United States, 130 U.S. 581 (1889), c. iii, n. 141 Chappell v. Jardine, 51 Conn. 64 (1883), c. vi, n. 64 Chappell v. United States, 160 U.S. 499 (1896), c. vi, n. 155 Chicago and Southern Airlines, Inc. v. Waterman Steamship Corporation, 333 U.S. 103 (1949), c. vi, n. 72 Chisholm v. Georgia, 2 U.S. (2 Dall.) 363 (1793), c. ii, n. 121 Cherokee Nation v. Southern Kansas Railway Company, 135 U.S. 641 (1890), c. iii, nn. 108–09 Citizens Savings and Loan Association of Cleveland, Ohio v. Topeka City, 87 U.S. (20 Wall.) 655 (1875), c. iii, n. 105 The City of Panama, 101 U.S. 453 (1880), c. vi, n. 71 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), c. iii, n. 146 Colorado v. Kansas, 320 U.S. 383 (1943), c. vi, n. 3 Commonwealth v. Manchester, 152 Mass. 230 (1890), c. vi, n. 71 Connecticut v. Massachusetts, 282 U.S. 660, 670–71 (1931), c. vi, n. 3 Cooley v. Port Wardens, 53 U.S. (12 How.) 299 (1851), c. iii, n. 154; c. vi, nn. 75, 80

378

Table of Cases

Coyle v. Smith, 221 U.S. 559 (1911), c. iii, n. 164 Cunard S.S. Co. v. Melon, 262 U.S. 100 (1922), c. ii, n. 145; c. vi, nn. 61, 96, 145 Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977), c. iii, nn. 126, 175; c. vi, nn. 71, 75, 94 Delassus v. United States, 34 U.S. (9 Pet.) 117 (1835), c. iii, n. 85 De Lovio v. Boit, 7 F. Cas. 418 (No. 3,776) (C.D.C. Mass. 1815), c. ii, n. 124 Dunham v. Lamphere, 69 Mass. (3 Gray) 268 (1855), c. vi, n. 71 Economy Light & Power Company v. United States, 256 U.S. 114 (1921), c. vi, n. 72 Edwards v. California, 314 U.S. 160 (1941), c. vi, n. 80 Elphich v. Hoffman, 51 Conn. 335 (1883), c. vi, n. 64 Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938), c. iii, nn. 112, 135–36; c. iv, n. 54 Ex Parte Cooper, 143 U.S. 72 (1892), c. vi, n. 40 The Fame, 8 F. Cas. 984 (No. 4, 634) (C.C.D. Me. 1822), c. ii, n. 147 First Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987), c. vi, n. 155 FPC v. Niagara Mohawk Power Corp., 347 U.S. 239 (19___), c. iii, n. 148; c. vi, nn. 162–63 Gelson v. Hoyt, 16 U.S. (3 Wheat.) 246 (1818), c. ii, n. 121 Gibbons v. Ogden, 23 U.S. (10 Wheat.) 1 (1824), c. iii, nn. 148, 150, 172; c. vi, nn. 78–79, 83 Gibson v. United States, 116 U.S. 269 (1897), c. ii, n. 6; c. vi, n. 155 Gilman v. Philadelphia, 70 U.S. (3 Hall) 713 (1865), c. iii, nn. 148, 171 Glass v. Sloop Betsey, 3 U.S. (3 Dall.) 5 (1794), c. vi, n. 59 The Glenearne, 7 F. Cas. 604 (D. Ore. 1881) (No. _____), c. vi, n. 78 Goldwater v. Carter, 444 U.S. 996 (1979), c. iii, n. 130 Grand River Dam Authority v. Grand–Hydro, 335 U.S. 359 (1948), c. vi, n. 163 Griswold v. Connecticut, 381 U.S. 479 (1965), c. iii, n. 105 Gus, Leisy & Company v. Hardin, 135 U.S. 100 (1890), c. iii, n. 122; c. vi, n. 80 Hardin v. Jordan, 140 U.S. 371 (1891), c. iii, n. 153 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), c. vi, nn. 75, 80 Henderson v. Poindexter’s Lessee, 25 U.S. (12 Wheat.) 530 (1837), c. ii, n 43; c. vi, n. 55

Table of Cases

379

Henry Ford & Son v. Little Falls Fire Company, 280 U.S. 369 (1930), c. vi, n. 162 Huse v. Glover, 119 U.S. 543 (1886), c. iii, n. 153 Illinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892), c. iii, nn. 149, 176–78 International Soc’y for the Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), c. iii, n. 140 The J. Duffy, 18 F. 2d 755 (1927), c. vi, n. 66 Jacobs v. United States, 290 U.S. 13 (1933), c. vi, n. 155 The Jerusalem, 13 F. Cas. 559 (No. 7,293) (C.C. Mass. 1814), c. ii, n. 131 Johnson & Graham’s Lessee v. McIntosh, 8 Wheat. 543 (1823), c. vi, n. 63 Johnson v. M’Intosh, 22 U.S. (8 Wheat.) 543 (1823), c. iii, n. 170 Johnson v. Twenty-One Bales, 13 F. Cas. 855 (No. 7,417) (C.C.D. N.Y. 1814), c. ii, n. 128 Jones v. United States, 137 U.S. 202 (1890), c. iv, n. 91; c. vi, n. 66 The Joseph, 12 U.S. (8 Cr.) 451 (1814), c. ii, n. 128 Kaiser–Aetna v. United States, 444 U.S. 164 (1979), c. iii, n. 152; c. vi, n. 79 Kansas v. Colorado, 206 U.S. 46 (1907), c. vi, n. 3 Keane v. The Brig Gloucester, 2 Dall. 36 (Fed. Ct. of Capture App.) (1782), c. ii, n. 129; c. vi, n. 88 Keokuk Northern Lake Packet Company v. City of Keokuk, 95 U.S. 80 (1886), c. iii, n. 153 Keyser v. Coe, 142 F.Cas. 442 (C.C.D. Conn. 1871) (No. 7,750), c. ii, n. 138 Knox v. Lee, 78 U.S. (12 Wall.) 457 (1870), c. vi, n. 79 Koch v. Board of River Pilots Comm’rs, 330 U.S. 552 (194_); rehearing denied 331 U.S. 864 (1947), c. vi, n. 78 Kohl v. United States, 91 U.S. (1 Otto) 367 (1876), c. iii, nn. 108–09 Kynoch v. The S.C. Ives, 14 F. Cas. 888 (No. 7,958) (D.C.N.C. Ohio 1856), c. ii, n. 124 Lake Berryessa Tenants’ Council v. United States, 588 F.2d 267 (9th Cir. 1978), c. vi, n. 66 Leech v. Louisiana, 214 U.S. 175 (1909), c. vi, n. 79 Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457 (1871), c. iii, n. 110 Licensing Cases, 51 U.S. (5 How.) 504 (1847), c. iii, n. 153 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), c. vi, n. 78

380

Table of Cases

The Louise, 293 F. 933 (1923), c. vi, n. 41 Mahler v. Transportation Co., 35 N.Y. 352 (1866), c. vi, n. 64 Manchester v. Massachusetts, 139 U.S. 240 (1891), c. v, n. 5 Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1807), c. iii, n. 110 Mason v. Ship Balireau, 5 (2 Cr.) 177 (1804), c. ii, n. 131 The Martha Anne, 16 F. Cas. 868 (No. 9,146) (D.C.S.D. N.Y. 1843), c. v, n. 5 Martin v. Waddell’s Lessee, 16 Pet. 367 (1843), c. iii, nn. 165–70; c. vi, nn. 55–56 Maryland v. West Virginia, 217 U.S. 1 (1910), c. vi, n. 66 Mathews v. Bay Head Imp. Ass’n, 471 A.2d 355 (1984), c. iii, n. 164 McCready v. Virginia, 94 U.S. 391 (1877), c. iii, n. 175 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), c. iii, nn. 110, 145 McIlvaine v. Coxe’s Lessee, 8 U.S. (4 Cr.) 208 (1808), c. iii, n. 105 Meyers v. United States (Oregon Postmasters Case), 272 U.S. 52 (1926), c. iii, n. 130 Miller v. The Ship Resolution, 2 Dall. 19 (Fed. Ct. of Capture App. 1781), c. ii, n. 129 Missouri Pacific Railway Company v. Nebraska, 164 U.S. 403 (1896), c. vi, n. 155 Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. __ (2000); 147 L. Ed.2d 528 (2000), c. vi, n. 155 Monongohela Bridge Company v. United States, 216 U.S. 177 (1910), c. vi, n. 78 The Montello, 78 U.S. 411 (1870), c. vi, n. 146 Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (D.C.D. Penn. 1793), c. ii, n. 128 Mulford v. Smith, 307 U.S. 38 (1939), c. vi, n. 79 National League of Cities v. Usery, 426 U.S. 833 (1976), c. vi, n. 79 Nebraska v. Wyoming, 325 U.S. 336 (1937), c. vi, n. 3 Neptune City v. Avon, 294 A.2d 47 (1972), c. iii, n. 164 The Nereide, __ U.S. (9 Cr.) 388 (1815), c. vi, n. 19 New England Electric Power Co. v. New Hampshire, 455 U.S. 331 (1982), c. ii, n. 115; c. vi, n. 152 New Hampshire v. Maine, 532 U.S. 742 (2001), c. iv, n. 149 New Hampshire v. Maine, 434 U.S. 1 (1977), c. iv, n. 149 New Hampshire v. Maine, 426 U.S. 366 (1976), c. iv, n. 149 New Jersey v. Delaware, 291 U.S. 361 (1934), c. ii, n. 28; c. vi, n. 56

Table of Cases

381

New Jersey v. New York, 283 U.S. 336 (1937), c. vi, n. 3 New York v. Illinois, 274 U.S. 488 (1927), c. vi, n. 3 New York v. Miln, 36 U.S. (11 Pet.) 102 (1837), c. iii, n. 153 Newport and Cincinnati Bridge Company v. United States, 105 U.S. 470 (1882), c. vi, n. 78 Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240 (1935), c. vi, n. 155 Ocean Industries v. Greene, 15 F. 2d 862 (1926), c. vi, nn. 22–25 Oklahoma v. Guy F. Atkinson Company, 313 U.S. 508 (1941), c. vi, n. 154 Omni Commercial v. United States, 261 U.S. 502 (1923), c. vi, n. 155 Opinion of the Justices, 313 NE2d 561 (1974), c. iii, n. 153 Palm Beach Isles Associates v. United States, 208 F.2d 1374 (2000), c. iii, n. 156; c. vi, n. 147 Parker v. Brown, 317 U.S. 341 (1943), c. vi, nn. 71, 78 Parkersburgh and Ohio Transp. Co. v. City of Parkersburgh, 107 U.S. 691 (1883), c. iii, n. 162 The Paquette Habana, 175 U.S. __ (____), c. vi, n. 19 Pea Patch Island, 30 F.Cas. 1123 (Jan. 15, 1848) (No. 18,311), c. vi, n. 56 Penhallow v. Doane’s Admr, 3 U.S. (3 Dall.) 54 (1795), c. iii, nn. 146–47 Pennsylvania v. Wheeling and Belmont Bridge Company, 54 U.S. (13 How.) 518 (1851), c. iii, n. 136 People v. Stralla, 96 Ca.2d 941 (1939), c. vi, nn. 22, 25 Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U.S. 1 (1878), c. vi, n. 81 Perez v. United States, 402 U.S. 146 (1971), c. vi, n. 75 Peyroux v. Howard, __ U.S. (7 Pet.) 324 (1833), c. vi, n. 146 Phillips Petroleum Co. v. Mississippi and Saga Petroleum U.S., Inc., 484 U.S. 469 (1988), c. iii, n. 153 Pollard v. Hagan, 3 How. 212 (1845), c. iii, nn. 164, 175; c. vi, nn. 6, 23, 55, 145 The Propeller Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 454 (1851), c. vi, nn. 94–95 Prosser v. N. Pac. R.R. Co., 152 U.S. 59 (1894), c. iii, n. 153 P.U.D. v. Seattle, 382 F.2d 666 (9th Cir. 1967); cert. denied 396 U.S. 803 (1969), c. vi, n. 163 Qui tam v. The Ship Anna, 1 Dall. 197 (Ct. of Pleas. of Phila. City) (1787), c. vi, n. 88 The Reidun, 14 F. Supp. 771 (1936), c. iii, n. 21

382

Table of Cases

Reno v. Flores, 507 U.S. 292 (1993), c. iii, n. 105 Rhode Island v. Louisiana, 347 U.S. 272 (1953), c. vi, n. 11 Rhode Island v. Massachusetts, 4 How. 591 (1847), c. vi, n. 63 Ruckelshaus v. Monsanto, Co., 467 U.S. 986 (1984), c. vi, n. 155 Ruppert v. Caffery, 251, U.S. 264 (1920), c. vi, n. 74 Sands v. Manistee River Improvement Company, 123 U.S. 288 (1887), c. iii, n. 153 Sanneborn Bros. v. Cureton, 262 U.S. 506 (1923), c. vi, n. 88 The Scotia, ___ U.S. (14 Wall.) 170 (1871), c. iv, n. 90 Scranton v. Wheeler, 179 U.S. 141 (1900), c. iii, n. 161 Shively v. Bowlby, 152 U.S. 1 (1894), c. iii, nn. 179–81; c. vi, n. 55 Skiriotes v. Florida, 313 U.S. 69 (1941), c. vi, n. 71 Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873), c. iii, n. 144 Smith v. Maryland, 59 U.S. (18 How.) 71 (1855), c. iii, , n. 155 The Speedwell, 2 Dall. 40 (Fed. Ct. of Capture App.) (1784), c. vi, n. 88 The Steamer Daniel Ball, 77 U.S. 557 (1870), c. vi, n. 146 Stearns v. Minnesota ex. rel. Marr, 179 U.S. 223 (1900), c. vi, n. 6 Sosa v. Alvarez–Maclain, __ U.S. __, __ (2004); ___ L.Ed. ___, ___ (2000), c. vi, n. 19 Soult v. L’Africaine, 22 F. Cas. 805 (No. 13,179) (DCSC 1804), c. ii, n. 145; c. vi, n. 61 Southern Airlines, Inc. v. Waterman Steamship Corporation, 333 U.S. 103 (1949), c. vi, n. 72 Southern Pacific Company v. Arizona, 325 U.S. 761 (1945), c. iii, n. 122; c. vi, n. 78 Stone v. Mississippi, 101 U.S. (11 Otto) 814, c. vi, n. 70 Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), c. iii, n. 137 The Swift Arrow, 292 F. 651 (D. Mass. 1923), c. vi, n. 78 Talbot v. Jansen, 3 U.S. (3 Dall.) 105 (1795), c. ii, n. 131 Tennessee Electric Power Co. v. TVA, 306 U.S. 118 (1939), c. iii, n. 105; c. vi, nn. 152–53 Texas v. Louisiana, S. Ct. No. 36, 426 U.S. 465 (1976), c. iv, n. 149 The Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825), c. ii, n. 124 Thompson v. Con. Gas., 300 U.S. 55 (1937), c. vi, n. 155 Toomer v. Witsell, 33 U.S. 385 (1948), c. vi, nn. 41, 75 Trustees of Dartmouth College v. Woodward, __ U.S. (9 Wheat.) 518 (1891), c. vi, n. 155 Union Bridge Company v. United States, 204 U.S. 364 (1907), c. vi, n. 78

Table of Cases

383

United Public Workers of America v. Mitchell, 330 U.S. 75 (1947), c. iii, n. 105 United States v. Alaska, 422 U.S. 184 (1975), c. v, n 50; c. vi, nn. 27, 30, 37, 39–43, 67 United States v. Alaska, 236 F. Supp. 389 (1964), c. vi, n. 22 United States v. Appalachian Electric Power Company, 311 U.S. 377 (1941), c. iii, nn. 158–59 United States v. Bekins, 304 U.S. 27 (1938), c. vi, n. 155 United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818), c. vi, n. 88 United States v. California, 381 U.S. 139 (1965), c. iii, nn. 173–74; c. iv, n. 149; c. vi, nn. 17–18, 20, 22–24, 38, 66 United States v. California, 332 U.S. 19 (1947), c. vi, nn. 4–7, 97 United States v. Caroline Products Co., 304 U.S. 144 (1938), c. vi, n. 79 United States v. Carrillo, 13 F. Supp. 121 (1935), c. vi, nn. 23, 25 United States v. Catex (Philippines), Inc., 344 U.S. 149 (1952), c. vi, n. 155 United States v. Central Eureka Mining Company, 357 U.S. 155 (1958), c. vi, n. 155 United States v. Chandler––Dunbar Water Power Co., 229 U.S. 53 (1913), c. vi, nn. 147, 153 United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987), c. vi, n. 72 United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company, 312 U.S. 592 (___), c. vi, n. 75 United States v. Cormack, 329 U.S. 230 (1947), c. vi, n. 79 United States v. Cress, 243 U.S. 316 (1917), c. vi, n. 147 United States v. Curtis-Wright Export Corp., 229 U.S. 304 (1936), c. ii, n. 38; c. iii, nn. 121, 140; c. vi, nn. 24, 145 United States v. Darby, 312 U.S. __ (19__), c. vi, nn. 78–79 United States v. Dickenson, 331 U.S. 745 (1847), c. vi, n. 147 United States v. 50-Foot Right of Way, 337 F.2d 956 (3d Cir. 1964), c. iii, n. 156 United States v. Florida, et al., 363 U.S. 121 (1960), c. vi, nn. 12, 96 United States v. Florida (Florida Bay Case), 425 U.S. 791 (1976), c. vi, nn. 28, 30, 34, 44, 46 United States v. Florida (Florida Bay Case), 420 U.S. 531 (1975), c. vi, nn. 44, 46–47 United States v. Florida, Civ. No 1672 (DCND F Dec. 18, 1970) (Tallahassee Div.), c. vi, n. 41

384

Table of Cases

United States v. General Motors, 323 U.S. 373 (1945), c. vi, n. 155 United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), c. iii, n. 156 United States v. Gettysburg Electric Ry Co., 160 U.S. 668 (1896), c. vi, nn. 79, 155 United States v. Grush, 5 Mason (CA1) 290 (1829), c. vi, n. 88 United States v. Kansas City Life Insurance Company, 339 U.S. 799 (1950), c. iii, n. 161; c. vi, n. 155 United States v. The Kodiak, 53 F. 126 (1892), c. vi, n. 19 United States v. Lanza, 260 U.S. 377 (1922), c. iii, n. 110 United States v. Lopez, 514 U.S. 549 (1995), c. vi, n. 80 United States v. Lynch, 188 U.S. 45 (1903), c. vi, n. 79 United States v. Louisiana, 339 U.S. 699 (1950), c. vi, n. 8 United States v. Louisiana, et al., 363 U.S. 1 (1960), c. vi, n. 13 United States v. Louisiana (Texas), 389 U.S. 155 (1967), c. vi, n. 14 United States v. Louisiana (Texas Boundary Case), 394 U.S. 11 (1969), c. iv, n. 149; c. v, n. 3; c. vi, nn. 19, 31–33, 47, 66 United States v. Louisiana, 420 U.S. 529 (1975), c. vi, nn. 26, 30, 34–36, 41 United States v. Louisiana (Alabama v. Mississippi) (Mississippi Sound Case), 470 U.S. 93 (1985), c. vi, nn. 29, 45, 48–54 United States v. Maine, et al. (Long Island Sound Case), 469 U.S. 504 (1985), c. vi, n. 68 United States v. Maine, et al., 420 U.S. 515 (1975), c. vi, nn. 5, 102, 148 United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818), c. ii, n. 131 United States v. Peters, 9 U.S. (5 Cr.) 115 (1890), c. vi, n. 88 United States v. Rands, 389 U.S. 121 (1967), c. iii, nn. 148, 156 United States v. Republic Steel Corp., 362 U.S. 482 (1960), c. vi, n. 75 United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 690 (1899), c. vi, nn. 72, 75 United States v. River Rouge Improvement Company, 269 U.S. 411 (1926), c. iii, n. 156 United States v. Texas, 339 U.S. 707 (1950), c. vi, nn. 6, 9, 98 United States v. Twin City Power Company, 350 U.S. 222 (1956), c. vi, nn. 75, 147, 153 United States v. Virginia E. & P. Co., 365 U.S. 24 (1961), c. iii, n. 160; c. vi, n. 147 United States v. Willow River Power Company, 324 U.S. 499 (1945), c. vi, n. 147

Table of Cases

385

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820), c. ii, n. 131 United States v. Winstar, 518 U.S. 839 (1996), c. vi, n. 155 Utah Div. State Lands v. United States, 482 U.S. 193 (1987), c. vi, n. 95 Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, c. vi, n. 88 Vermilya–Brown Co. v. Connell, 335, U.S. 377 (1948), c. vi, n. 41 The Volunteer, 28 F. Cas. 1260 (No. 16, 991) (C.C.D. Mass. 1834), c. ii, n. 102 Ware v. Hylton, 3 U.S. (3 Dall.) 158 (1796), c. ii, n. 105 Whenton & Donladson v. Peters, __ U.S. (8 pet.) 658 (18__), c. iii, n. 136 Wicard v. Filburn, 317 U.S. 111 (1942), c. vi, nn. 75, 82 Willendson v. Forsoket, 29 F. Cas. 1283 (No. 17,682) (D.C.D. Penn. 1801), c. ii, n. 131 Wilson v. The Black Bird Creek Marsh Company, 27 U.S. (2 Pet.) 245 (1829), c. iii, n. 156; c. vi, n. 78 Woodruff v. The Levi Dearborne, 30 F. Cas. 525 (No. 17,988) (C.C. D. Ga. 1811), c. ii, n. 146 Wyandotte Transportation Company v. United States, 389 U.S. 191 (1967), c. vi, n. 72 Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579 (1952), c. vi, n. 72 Zabel v. Tab, 430 F.2d 199 (5th Cir. 1970); cert. denied 401 U.S. 910 (1971), c. vi, n. 82

Bibliography Unpublished Materials Allott, P. “Alec Roche Lecture” given at New College, Oxford, November 15, 2006. Bourguignon, H. “Incorporation Of The Law of Nations During The American Revolution – The Case Of The San Antonio” (unpublished typescript), University of Toledo Law School, Ohio, 1976. Gillis, R.J. “Seventeenth Century And Eighteenth Century Bases For The Exercise Of Protective Jurisdiction In The Marginal Sea Area” (unpublished LL.M. dissertation in the University of Edinburgh Library), Scotland, 1975. ——. “Sea Boundaries In The Gulf Of Maine” (unpublished Ph.D. dissertation in the University of Cambridge Library) England, 1978. Kennedy, R. “Brief Remarks On Median Lines And Lines Of Equidistance And The Methods Used In Their Construction” (unpublished paper, distributed by the U.K. delegation to the 1958 U.N. Law of the Sea Conference), April 2, 1958. Marston, G. “The Marginal Seabed And Subsoil In United Kingdom Practice” (unpublished Ph.D. dissertation in the Faculty of Laws, University of London) England, 1973.

Periodicals Akehurst, M. “Equity and General Principles of Law”, 25 Int’l Comp. L. Q. 801 (4th ser.), 1976. Alexander, L.M. “Regionalism and the Law of the Sea: The Case Of Semi-Enclosed Seas”, 2 Ocean Dev. & Int’l L.J. 151. New York: Crane, Russak & Co., 1974. ——. “Offshore Claims and Fisheries in North-West Europe”, 14 Y.B. Wld Aff ’rs 236 (Institute of World Affairs). New York: Crane, Russak & Co., 1960. Anderson, C.P. “The Final Outcome of the Fisheries Arbitration”, 7 Am. J. Int’l L. 1. New York: Baker, Voorhis & Co., 1913. Balch, T.W. “Is Hudson Bay a Closed or Open Sea?”, 6 Am. J. Int’l L. 409. New York: Baker, Voorhis & Co., 1912. Baty, T. “The Three-Mile Limit”, 22 Am. J. Int’l L. 503. Concord, NH: The Rumford Press, 1928. Boggs, S.W. “Delimitation of Seaward Areas Under National Jurisdiction”, 45 Am. J. Int’l L. 240. Lancaster, PA: Lancaster Press, 1951. ——. “Delimitation of the Territorial Sea”, 24 Am. J. Int’l L. 541. Concord, NH: The Rumford Press, 1930. Bower, G. “Territorial Waters”, 7 J. Soc’y Comp. Leg. & Int’l L. (3d ser.) 137. London: Hazell, Watson & Viney Printers, 1925.

388

Bibliography

Bowett, D.W. “The Second United Nations Conference on the Law of the Sea”, 9 Int’l & Comp. L.Q. 415. London: The Society of Comparative Legislation (1960). ——. “Estoppel Before International Tribunals And Its Relation To Acquiescence”, 33 Brit. Y.B. Int’l L. 176. London: Oxford U. Press, 1957. Brierly, J.L. “The General Act of Geneva”, 11 Brit. Y.B. Int’l L. 119. London: Oxford U. Press, 1930. Brilmayer, L. & Klein, N, “Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator”, 33 N. Y. U .J. Int’l L. & P. 703. New York: N.Y.U.L.S., 2001. Brown, P.M. “Protective Jurisdiction”, 34 Am. J. Int’l L. 112. Rumford, NH: The Rumford Press, 1940. Butler, W. “The Legal Regime of Territorial Waters”, 62 Am. J. Int’l L. 51. Lancaster, PA, Lancaster Press, Inc., 1968. Buzan, B., and Johnson, B. “Canada at the Third Law of the Sea Conference”, O. Paper No. 29 (Law of the Sea Institute). Kingston, RI.: U.R.I. Press, 1975. Charteris, A.H. “The Seaward Limits of Territorial Jurisdiction”, 18 Jurid. Rev. 288. Edinburgh: Green & Sons, 1907. ——. “Comments by Governments”, 2 Y.B. Int’l L. Comm. [1956] U.N. Doc. No. A/CN.4/ SER.A/1956/Add.1. Charney, J., “Entry into Force of the 1982 Convention on the Law of the Sea”, 35 VA. J. INT’L L. 381. Charlottesville, VA: V.J. Int’l L. Ass’n, 1995. ——. “Progress in International Maritime Boundary Delimitation”, 88 Am. J. Int’l L. 227. Washington, D.C.: Am. Soc’y Int’l L., 1994. Cheng, B. “General Principles of Law as a Subject for International Codification”, 4 Current Legal Problems 35. London: Stevens & Sons Limited, 1951. Clain, L. “Gulf of Maine – A Disappointing First in the Delimitation of a Single Maritime Boundary”, 25 Va. J. Int’l L. 521. Charlottesville, VA: V.J. Int’l L. Ass’n, 1985. Dickinson, E.D. “Jurisdiction at the Maritime Frontier”, 40 Harv. L. Rev. 1. Cambridge, MA: H.L. Rev., 1926. Evans, M. “Delimitation of the Common Maritime Boundary”, 64 Brit. Y.B. Int’l L. 283. Oxford: Clarendon Press, 1993. Fenn, Jr., P.T. “Origins of The Theory of Territorial Waters”, 20 Am. J. Int’l L. 465. Concord, NH: The Rumford Press, 1926. Fisher, F.C. “The Arbitration of the Guatemalan-Honduran Boundary Dispute”, 27 Am. J. Int’l L. 465. Concord, NH: The Rumford Press, 1933. Fitzmaurice, G. “The Law and Procedure of the International Court of Justice, 1951–1954: Questions Of Jurisdiction Competence And Procedure”, 34 Brit. Y.B. Int’l L. 1. London: Oxford U. Press, 1958. ——. “The Law and Procedure of the International Court Of Justice, 1951–1954: Points of Substantive Law. – I”, 31 Brit. Y.B. Int’l L. 376. London: Oxford U. Press, 1954. ——. “The Law and Procedure of the International Court of Justice, 1951–1954: General Principles And Sources Of Law”, 30 Brit. Y.B. Int’l L. 1. London: Oxford U. Press, 1953. François, J.P.A. “Regime of the Territorial Sea”, 2 Y.B. Int’l L. Comm’n [1954], U.N. Doc. No. A/CN.4/Ser. A/19544/Add.1. ——. “Regime of the Territorial Sea”, 2 Y.B. Int’l L. Comm’n [1952], U.N. Doc. No. A/ CN.4/SER.A/1952/Add.1.

Bibliography

389

——. “Regime of the High Seas”, 2 Y.B. Int’l L. Comm’n [1953], U.N. Doc. No. A/CN.4/ SER.A/1953/Add.1. Frank, J. “Historical Bases of the Federal Judicial System”, 13 L. & Contemp. Prob. 3. Durham, SC: Freeman Printers, Inc., 1948. Friedman, W. “The Use of General Principles in the Development of International Law”, 57 Am. J. Int’l L. 279. Lancaster, PA: ___, 1963. Hurst, J.B. “Whose is the Bed of the Sea”, in 4 Brit. Y.B. Int’l L. 34. London: Henry Frowle & Hodder & Stoughton, 1923–1924. Garner, J.W. “Limitations on National Sovereignty in International Relations”, 19 Am. Pol. Sci. Rev. 1. Washington, D.C.: American Political Science Ass’n, 1925. Goldie, L.F.E. “The North Sea Continental Shelf Cases – A Ray Of Hope For The International Court?”, 16 N.Y.L.F.. 322. London: Cavendish Publishing, 1970. Green, L. “General Principles of Law and Human Rights”, 8 Current Legal Problems 162. London: Stevens & Sons Limited, 1955. Gregory, C.N. “Jurisdiction Over Foreign Ships in Territorial Waters”, 2 Mich. L. Rev. 333. Ann Arbor, Mich.: U. Michigan Press, 1904. Grey, T. “Territorial Waters”, 43 L.Q. Rev. 350. London: Stevens & Sons, 1926. Gross, A.M. “The Maritime Boundaries of the States”, 64 Mich. L. Rev. 639. Ann Arbor, Mich.: U. Michigan Press, 1966. Hale, R.W. “Territorial Waters as a Test of Codification”, 24 Am. J. Int’l L. 65. Concord, NH: The Rumford Press, 1930. Hodgson, R. and Alexander, L. “Towards an Objective Analysis of Special Circumstances”, O. Paper No. 13 (Law of the Sea Institute). Kingston, RI: U.R.I. Press, 1972. Jessup, P.C. “The Palmas Island Arbitration”, 22 Am. J. Int’l L. 735. Concord, NH: The Rumford Press, 1928. Johnson, D.H.N. “The Anglo-Norwegian Fisheries Case”, 1 Int’l & Comp. L.Q. 145. London: The Eastern Press, 1952. ——. “Acquisitive Prescription in International Law” 27 Brit. Y.B. Int’l L. 332. London: Oxford U. Press, 1951. “Juridical Regime Of Historic Waters, Including Historic Bays”, 2 Y.B. Int’l L. Comm’n [1962], U.N. Doc. No. A/CN.4/143. Katz, S.R. “Issues Arising in the Icelandic Fisheries Case”, 22 Int’l & Comp. L. Q. 83. London: Brit. Institute of International and Comparative Law, 1973. Kelly, G.M. “The Temple Case in Historical Perspective”, 39 Brit. Y.B. Int’l L. 462. London: Oxford U. Press, 1965. Kent, H. “The Historical Origins of the Three-Mile Limit”, 48 Am. J. Int’l L. 537. Lancaster, PA: The Lancaster Press, 1954. La Forrest, G.V. “Canadian Inland Waters of the Atlantic Provinces and the Bay of Fundy Incident”, 1 Can. Y.B. Int’l L. 149. Victoria, BC: Canadian Branch International Law Association, 1963. Lambeth, B. “Protecting ‘The Wastes of the Foreshore’ ”, 102 Col. L. Rev. 471. New York: Columbia U. Press, 2002. Lauterpacht, H. “The Grotian Tradition in International Law”, 23 Brit. Y.B. Int’l L. 1. London: Oxford U. Press, 1946. Lumb, R.D. “Sovereignty and Jurisdiction Over Australian Local Waters”, 43 Aust. L.Q. 421. Sydney, N.S.W.: The Law Book Company, 1969.

390

Bibliography

M., J.O.J. “International Law – National Waters – Territorial Waters – Fauces Terrae”, 3 Camb. L.J. 277 (case note). London: Stevens & Co., Ltd., 1929. MacDonald, R. St.-J. “The Minquiers and Echrehos Case”, 1 McGill L. J. 277. Montreal: Law Undergraduate Society, 1953. MacGibbon, I.C. “Estoppel in International Law”, Int’l Comp. L. Q. 468. London: The Society Of Comparative Legislation, 1958. ——. “Customary International Law and Acquiescence”, 33 Brit. Y.B. Int’l L. 115. London: Oxford U. Press, 1958. ——. “Some Observations on the Part of Protest in International Law”, 30 Brit. Y.B. Int’l L. 293. London: Oxford U. Press, 1954. MacKenzie, N.A.M. “Legislative Jurisdiction within Territorial Waters”, 7 Can. Bar. Rev. 736. Toronto: Carswell Co., 1929. Marquis, R.S. “Territorial Waters – Baselines – British Courts have Jurisdiction Over Pirate Stations”, 4 Tex. Int’l L.F. 239. Austin, TX: Texas International Law Forum, 1968. “Mémorandum présenté par le Secrétariat”, 2 Y.B. Int’l L. Comm’n [1950], U.N. Doc. No. A/CN.4/SER.A/1950/Add.1. Mendelson, M. “The Curious Case of Qatar v. Bahrain in the International Court of Justice”, 72 Brit. Y.B. Int’l L. 183. Oxford: Clarendon Press (2002). Morin, J.-Y. “Les eaux territoriales du Canada au regard du Droit International”, 1 Can. Y.B. Int’l L. 303. Victoria, B.C.: Canadian Branch International Law Association, 1973. O’Connell, D.P. “The Judicial Nature of the Territorial Sea”, in 45 Brit. Y.B. Int’l L. 303. London: Oxford U. Press, 1971. ——. “The Federal Problem Concerning the Maritime Domain in Commonwealth Countries”, 1 J. Mar. L. & Comm. 389. New York: Jefferson Law Book Co., 1970. Pearcy, G. “Measurement of the U.S. Territorial Sea”, Department Of State Bulletin. Washington: USGPO, 1929. Phillimore, G.G. “The Freedom of the Seas”, 2 J. Soc’y Comp. Leg. & Int’l L. (3d ser.) 306. London: Hazel, Watson & Viney Printers, 1920. Putnam, H. “How the Federal Courts Were Given Admiralty Jurisdiction”, 10 Cornell L. Q. 460. Ithaca, N.Y., Cornell U. Press, 1925. Ralston, J.H. “Prescription”, 4 Am. J. Int’l L. 133. New York: Baker, Voorhis & Co., 1910. Reeves, J.S. “The Codification of the Law of Territorial Waters”, 24 Am. J. Int’l L. 486. Concord, NH: The Rumford Press, 1930. “Report of the International Law Commission”, 2 Y.B. Int’l L. Comm’n [1955], U.N. Doc. No. A/CN.4/SER.A/1955/Add.1. Rozakis, C. “The Greek-Turkish Dispute Over the Aegean Continental Shelf ”, Oc. Paper No. 27 (Law of the Sea Institute). Kingston, RI: U.R.I. Press, 1975. Schucking, M. “Memorandum, Report of the Subcommittee”, 20 Am. J. Int’l L. (Supp.) 64. Concord, NH: The Rumford Press, 1926. Senior, W. “Early Writers on Maritime Law”, 37 L.Q. Rev. 323. London: Stevens & Sons, Ltd., 1921. Shalowitz, A.L. “Boundary Problems Raised by Submerged Lands Act”, 54 Colum. L.Rev. 1021. New York: Columbia L. Rev., 1954. Stone, J. “Non Liquet and The Function of Law in the International Community”, 35 Brit. Y.B. Int’l L. 124. London: Oxford U. Press, 1959.

Bibliography

391

Strupp, K. “Le Droit De Juge International De Statuer Selon L’Equité”, 35 Brit. Y.B. Int’l L. 124. Paris: Sirey, 1959. Swarth, G. “Offshore Submerged Lands, an Historical Synopsis”, 6 Land & Nat’l Res. Div. J. (U.S. Dept. Justice) 109. Washington, D.C: U.S.D.O.J., 1968. ——. “Offshore Boundary Problems”, 6 Land & Nat’l Res. Div. J. (U.S. Dept. Justice) 405. Washington, D.C.: U.S.D.O.J., 1968. Symmons, C., “The Rockall Dispute Deepens: An Analysis of Recent Danish and Icelandic Actions”, 35 Int’l & Comp. L.Q. 344. Oxford: Brit. Institute of Int’l & Comp. L., 1986. Symmons, C.R. “Legal Aspects of The Anglo-Irish Dispute Over Rockall”, 26 N. Ir. L.Q. 65. Banbridge, N. Ire.: Banbridge Chronicle Press, 1975. Wade, E.C. “The Minquiers and Ecrehos Case”, 40 Grot. Soc’y Trans. 97. London: The Grotius Society, 1956. Waldock, C.H.M., “The Legal Basis of Claims to the Continental Shelf ”, 36 Grot. Soc’y Trans. 115. London: Longmans and Co. 1951. ——. “Disputed Sovereignty in the Falkland Islands Dependencies”, 25 Brit. Y.B. Int’l L. 311. London: Oxford U. Press, 1948. Walker, W.L. “Territorial Waters: The Cannon Shot Rule”, 22 Brit. Y.B. Int’l L. 210. London: Oxford U. Press, 1948. Watson, A. “The Prerogative of the Crown to Delimit Britain’s Maritime Boundary”, 89 L.Q. Rev. 364. London: Stevens & Sons, Ltd., 1973. Winthrop, T. “The Seashore and the People”, 10 Cornell L.Q. 303. Ithaca, NY: Cornell U. Press (1925). Wright, Q. “Territorial Propinquity”, 12 Am. J. Int’l L. 519. New York: Oxford U. Press, 1918. Wroth, K. “The Massachusetts Vice Admiralty and the Federal Admiralty Jurisdiction”, in 6 Am. J. L. Hist. 250. Philadelphia: Temple U. School of Law, 1962. Yates, G.T. “International Law and the Delimitation Of Bays”, 49 N. Car. L. Rev. 943. Chapel Hill, N.C.: N.C.L. Rev., 1971. Young, R. “The International Law Commission and the Continental Shelf ”, 46 Am. J. Int’l L. 123. Lancaster, PA.: The Lancaster Press, 1952.

General Works Adens, J.T. The Founding Of New England. Boston, MA: Little, Brown & Co., 1930. Allott, P. The Health Of Nations. Cambridge: Cambridge U. Press, 2002. Bawlf, S. The Secret Voyage Of Sir Francis Drake. New York: Walker & Company, 2003. Bergreen, L. Over The Edge Of The World. New York: Harper Collins, 2003. Beveridge, D. Culross and Tulliallan. Edinburgh: Blackwood, 1885. Brigden, S. New Worlds, Lost Worlds. New York: Viking Penguin, 2000. Chernow, R. Alexander Hamilton. New York: The Penguin Press, 2004. Craven, W. 1. The Southern Colonies In The Seventeenth Century 1607–1689. Baton Rouge, LA: L.S.U. Press, 1949. Galloway, R. A History Of Coal Mining In Great Britain. (2d ed.). Newton Abbot, U.K.: David & Charles, 1969.

392

Bibliography

Darwin, C. The Origin Of Species (1906) and The Voyage Of The Beagle (1928). (Combined single edition). New York: Alfred Knopf, 2003. [Everyman’s Library]. Hay, D. Whitehaven A Short History. Beckernet, U.K.: Michael Moon, 1966. Harding, A. A Social History Of English Law. Harmondswoth, U.K.: Penguin, 1966. Herman, A. To Rule The Waves. New York: HarperCollins, 2004. Hubbard, W. 15 & 16. A General History Of New England [circa 1682], in Collections Of The Massachusetts Historical Society. Boston, MA: The Society, 1815. Hutchinson, T. The History Of The Colony And Province Of The Massachusetts Bay. Cambridge, MA: Harvard U. Press (L. Mayo ed.), 1936. Kishlansky, M. A Monarchy Transformed, Britain 1603–1714. ___, England: Penguin Press, 1996. Marshall, D. Eighteenth Century England. London: The Longman Group, 1962. McCullough, D. John Adams. New York: Simon & Shuster, 2001. McIlwain, The American Revolution: A Constitutional Interpretation. New York: The MacMillan Company, 1923. [Legal Classics Library, 2004]. McManis, D. Colonial New England A Historical Geography. New York: Oxford U. Press, 1975. Menzies, G. 1421 The Year China Discovered America. (1st U.S. ed.). New York: Harper Collins, Am. Printing, 2003. Morison, S.E. The European Discovery Of America: The Southern Voyages. New York: Oxford U. Press, 1974. ——. The European Discovery Of America: The Northern Voyages. New York: Oxford U. Press, 1971. O’Brien, M. Conjectures Of Order Intellectual Life And The American South 1810–1860. (Vols. 1 & 2) London: U. of North Carolina Press, 2004. Osgood, H. 3. The American Colonies In The Seventeenth Century. New York: Macmillan, 1926. Palfrey, J.G. A History Of New England. Boston: Little, Brown & Co., 1892. Philbrick, N. Sea Of Glory. New York: Viking, The Penguin Group, 2003. Phillimore, J. Principles And Maxims Of Jurisprudence. London: John W. Parker and Son, 1856. Pike, L. 2. A History Of Crime In England. London: ___, 1876. Plucknett, T. A Concise History Of The Common Law. Boston, MA: Little Brown, 1956. Plumb, J.H. England In The Eighteenth Century. Harmondsworth, U.K.: Penguin, 1972. Shaw, M. International Law. Cambridge; Cambridge U. Press (5th ed.), 2003. Snow, E. The Islands Of Boston Harbor. Beverly, MA: Commonwealth Editions (1935, reprinted 2002). Sorley, W. Mining Royalties And Their Effect On The Iron And Coal Trades. London: H. Frowde, 1889. Thomas, N. The Extraordinary Voyages Of Captain James Cook. New York: Walker & Company, 2003. Vincent, E. Nelson Love & Fame. New Haven, CT: Yale U. Press, 2003. Williamson, W.D. The History Of The State Of Maine. Hallowell, ME: Glazier, Masters & Smith, 1839.

Bibliography

393

Collections and Digests Blackstone, W. 1–4. Commentaries On The Law Of England. Oxford: Clarendon Press, 1765. [Legal Classics Library 1983]. Coke, E. 1 & 2. The First Part Of The Institutes Of The Laws Of England. London: Clarke, Pheney, and Brooke (C. Butler ed. 18th ed.), 1823. [Legal Classics Library, 1985]. ——. The Third Part Of the Institutes Of The Laws Of England. London: Brooke (7th ed.), 1797. ——. The Fourth Part Of The Institutes Of The Laws Of England. London: Brooke (7th ed.), 1797. Comyns, J. 2. A Digest Of The Laws Of England. London: Strahan (1st Am. ed.) 1825. ——. A Digest Of The Laws Of England. London: Strahan (5th ed.), 1822. ——. 2. Documents And Record Of The Province Of New Hampshire (1868). Elliot, J. Debates In The Several State Conventions On The Adoption Of The Federal Constitution.(Vol. 1). Philadelphia: J.B. Lippincott & Co. (2nd ed.), 1941. Fitzpatrick, J. ed. The Writings Of George Washington. Washington, D.C.: U.S. Gov’t Printing Office, 1938. Foster, M. Crown Cases. Oxford: Clarendon Press, 1762. Habicht, M. Post-War Treaties for the Pacific Settlement Of International Disputes. Cambridge, MA: Harvard U. Press, 1931. Halsbury’s Laws Of England. Edinburgh: Butterworth & Co. Ltd. (3d ed.), 1952. Halsbury’s Laws Of England. London: Butterworth’s (4th ed., reissue), 1997. Hawke, D. U.S. Colonial History Readings and Documents. Indianapolis, IN: Bobbs-Merrill, 1966. Journals Of The House Of Representatives, in Collections of the Massachusetts Historical Society. Boston, MA: Boston: The Society, 1919. League Of Nations Conference For The Codification Of International Law [1930]. Dobbs Ferry, NY: Oceana (S. Rosenne ed.), 1975. League Of Nations Committee Of Experts For The Progressive Codification Of International Law [1925–1928]. Dobbs Ferry, NY: Oceana (S. Rosenne ed.), 1972. Marsden, R. ed. Reports Of Cases Determined By The High Court Of Admiralty. London: W. Clowes and Sons 1885. Myres, D. Manual Of Collections Of Treaties And Of Collections Relating To Treaties. Cambridge, MA: Harvard U. Press, 1922. New England Historical And Genealogical Register. Boston, MA: The Society, 1927. Miller, H., ed. Treaties And Other International Acts Of The United States of America. Washington, D.C.: U.S.G.P.O., 1931. Moore, J. Digest Of International Law. Washington, D.C.: U.S.G.P.O., 1906. Moore, J.B. Collected Papers. New Haven, CT: Yale U. Press, 1944. Opinions Of The Attorneys General (1791–1838). Washington, D.C.: USGPO, 1851. Parry, C. Consolidated Treaty Series. Dobbs Ferry, NY: Oceana Publications, 1969. 2. Publications Of The Colonial Society Of Massachusetts. Boston, MA: The Society, 1913. Richardson, J. A Compilation Of The Messages And Papers Of The Presidents 1789–1897. (Vol. 1). New York: Bureau of National Literature, 1968.

394

Bibliography

Records Of The Colony Of New Plymouth. Boston, MA: White (D. Pulsifer ed.), 1861. Records Of The Governor And Company Of The Massachusetts Bay In New England. Boston, MA: White (N. Shurtleff ed.), 1853. Records Of The Virginia Company Of London. Washington, D.C.: USGPO (S. Kingsbury ed.), 1933. 1 & 2. Research In International Law. Cambridge, MA: Harvard L. School (M. O. Hudson dir.), 1929. Roosevelt, T. An Autobiography. New York: Penguin Putnam Inc., ____ [Library of America, 2004]. Rosenne, S. ed. League Of Nations Committee Of Experts For The Progressive Codification Of International Law [1925–1928]. Dobbs Ferry, NY: Oceana, 1972. ——. ed. League Of Nations Conference For The Codification Of International Law [1930]. Dobbs Ferry, NY: Oceana, 1975. Thorpe, F. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now of Heretofore Forming the United States of America. (4 vols.). Washington, D.C.: U.S.G.P.O., 1909. Viner, C. A General Abridgment of Law and Equity. Aldershot: ___ (2d ed.), 1793. Wroth, K, and Zobel, H. 2. Legal Papers of John Adams. Cambridge, MA: Belknap Press of Harvard U. Press, 1965. Winfield, P. The Chief Sources Of English Legal History. Cambridge, MA: Harvard U. Press, 1925.

Articles Bouchez, L.J. “The Freedom of the High Seas: A Reappraisal”, The Future Law Of The Sea. The Hague: Sijhoff, 1973. Bourquin, M. “Les Baies Historiques”, Mélanges Georges Saucer-Hall. Paris: Delachaux et Nietle, 1952. Brown, E. Sea-Bed Energy and Minerals: The International Legal Regime. The Hague: Martinus Nijhoff, 2001. Dupy, R.J. & Piquemal, A. “Les Appropriations Nationales De Espaces Maritimes”, Actualités Du Droit De La Mer. Paris: Pedone (Société Française Pour Le Droit International), 1972. Emery, K. “Geological Aspects of Sea-Floor Sovereignty”, The Law Of The Sea: Offshore Boundaries And Zones. ___, Ohio: State U. Press (L. Alexander ed.), 1967. Gillis, R.J. “Exploration for and Exploitation of Deep Seabed hard Mineral Resources: A Deep Seabed Mining Industry Perspective”, Proceedings Of Conference On Deep Seabed Mining And Freedom Of The Seas. Bridgeport, CT: Grotius Society of International Law, et al. (F. Tse-Shyang Chen ed.), 1981. Goldie, L. “Remarks”, Symposium on the Geneva Conventions and the Need For Future Modifications”, The Law Of The Sea: Offshore Boundaries And Zones. ___, Ohio: State U. Press (L. Alexander ed.), 1967. Higgins, H.P. “The Growth of International Law, Maritime Rights and Colonial Titles”, 1. Cambridge History Of The British Empire. Cambridge: Cambridge U. Press, 1929.

Bibliography

395

Kwiatkowska, B. “Equitable Maritime Boundary Delimitation – A Legal Perspective”, Law of the Sea. Aldershot, U.K.: Ashgate (H. Camios, ed.), 2000. de La Lozere, P. “Du Droit Du Visite”, La Revu Des Deux Mondes. Paris: Fournier, (Jan. 15), 1843. Smith, J. “Administrative Control in the Courts of the American Plantations”, in Essays on the History of Early American Law. (D. Flaherty ed.), Chapel Hill, NC: U.N.C. Press, 1969.

Treatises Adamiyat, F. Bahrain Islands A Legal And Diplomatic Study Of The British-Iranian Controversy. New York: Praeger, 1955. Adams, G. Constitutional History Of England. London: Jonathan Cape, 1921. Allen, J. Inquiry Into The Rise And Growth Of The Royal Prerogative In England. London: Longman, Brown, Green, and Longman’s, 1849. Allott, P. Towards The International Rule Of Law. London: Cameron May (2005). Andrews, C. 2 & 4. The Colonial Period Of American History. New Haven, CT: Yale U. Press, 1934. Antieau, C. 2. Modern Constitutional Law. Rochester, NY: Lawyers Cooperative Publishing, 1969. Ashley, M. England In The Seventeenth Century. Harnsworth, U.K.: Pelican (3d ed.), 1972. Aylmer, G.E. The Struggle For The Constitution. London: Blanford Press (3d ed.), 1971. Azuni, D. A. Droit Maritime De L’Europe. Paris: Renouard, 1805. Ashburner, W., ed. & trans. The Rhodian Sea-Law. (1909 ed.) [Union, NJ: The Lawbook Exchange (reprinted), 2001.] Bacon, F. The Elements Of The Common Laws Of England. London: More, 1639. Bacon, M. 4. A New Abridgment Of The Law. ___: ___ (1st American ed. from 6th London ed.), 1873. ——. A New Abridgement Of The Law. London: Strahan (7th ed.), 1832. Bacon, N. An Historical And Political Discourse Of The Laws And Government Of England. London: Browne, 1739. Barbeyrac, J. trans. Traduction De Hugo Grotius, Le Droit De La Guerre Et De La Paix. ___: ___, (1724). Baty, T. The Cannons Of International Law. London: Murray, 1930. Bayshaw, E. The Rights Of The Crown Of England. London: Simon Miller, 1660. Benedict, E. 4. The Law of American Admiralty. New York: Mathew Bender (6th ed.), 1940. Bernier, I. International Legal Aspects Of Federalism. Gatehead, U.K.: Northumberland Press, 1973. Birnie, P. & Boyle, A. International Law & The Environment. New York: Oxford U. Press, Inc. (2nd ed.), 2002. Black, C.E. & Falk, R.A. 4. The Future Of The International Legal Order. Princeton, NJ: Princeton U. Press, 1972. Blount, T. A Law-Dictionary And Glossary. London: Nutt (3d ed.), 1717. Blum, Y.Z. Historic Titles In International Law. The Hague: Nijhoff, 1965.

396

Bibliography

Bluntschli, M. Le Droit International Codifie. Paris: Librairie Guillaumin (M. Lardy trans., 3d Fr. ed.), 1881. Boroughs, J. The Sovereignty Of The British Seas. [1633] Edinburgh: Green & Sons (T. Wade ed., 1920). Bouchez, L.J. The Regime Of Bays In International Law. Leiden: Nijhoff, 1963. Brecknock, T. Droit De Roy. London: W. Griffin, 1764. Brierly, J.L. The Law Of Nations. Oxford: Oxford U. Press (H. Waldock ed., 6th ed.), 1963. Brown, E. Sea-Bed Energy And Minerals: The International Legal Regime. The Hague: Martinus Nijhoff, 2001. Brownlie, I. Principles Of Public International Law. Oxford: Clarendon Press (6th ed.), 2003. ——. Principles Of Public International Law. Oxford: Clarendon Press, 1966. Brownsen, O. The American Republic, Its Constitution, Tendencies, And Destiny. New York: P. O’Shea, 1865. [Delanco, NJ: Legal Classics Library (reprinted), 2005]. Bryce, J. 1 The American Commonwealth. London: MacMillan and Co., 1888. [Ney York: Legal Classics Library (reprinted), 1987]. Brydall, J. A New Years Gift To The Anti-Prerogative Men. London: John Fish, 1682. Burlamqui, J.J. Principes Du Droit De La Nature Et Des Gens. Paris: Librairie De La Cour Royale (M. Dupin ed., 2nd ed.), 1820. Burrage, H.S. The Beginnings Of Colonial Maine 1602–1658. Portland, ME: Marlas Printing House, 1914. Butler G. & Maccoby, S. The Development Of International Law. London: Longmans, Green & Co., 1928. Callis, R. Reading On The Statute Of Sewers. London: Leak, 1647. Calvo, M.C. Le Droit International Théorique Et Pratique. Paris: Rosseau (5th ed.), 1896. Chemerinsky, E. Constitutional Law. New York: Aspen, (2nd ed.), 2002. Cheng, B. General Principles Of Law As Applied By International Courts And Tribunals. London: Stevens & Sons Limited, 1953. Chitty, J. A Treatise On The Law Of The Prerogative Of The Crown. London: Butterworth, 1820. Churchill, R. & Lowe, A. The Law Of The Sea. Manchester: Manchester U. Press (3d ed.), 1999. Clark, C. The Eastern Frontier. New York: Knopf, 1970. Cooley, T. A Treatise On The Constitutional Limitations Which Rest Upon The Legislative Power Of The States Of The American Union. Boston, MA: Little, Brown and Company (7th ed.), 1903. Colombos, C.J. The International Law Of The Sea. London: Longman (6th ed.), 1972. ——. Le Tunnel Sous Le Manche Et Le Droit International. Paris: Rosseau, 1917. Constable, R. Praerogativa Regis 11 H. 7. S. Thorne, ed. New Haven, CT: Yale U. Press, 1949. Constitution Of The United States Of America: Analysis And Interpretation. Washington, D.C.: U.S.G.P.O., 1953 and 1964. Constitution Of The United States Of America. 92d Cong., 2d Sess., Sen. Doc. 92–82. Washington, D.C.: U.S.G.P.O., 1972.

Bibliography

397

Cooke, J. ed. The Federalist. ___: ___, 1962. Corbett, P.E. The Growth Of World Law. Princeton, N.J.: Princeton U. Press, 1971. Creasy, E.S. First Platform Of International Law. London: Van Voorst, 1876. Dalton, M. Office And Authority Of Sherifs. London: Company of Stationers, 1662. ——. The Country Justice, London: Company of Stationers, 1655. [New York: Legal Classics Library (reprinted), 1996]. Davis, D.B. The Elements Of International Law. New York: Harper & Bros. (3d ed.), 1908. DeBustamante Y Sirven, A.S. The Territorial Sea. New York: Oxford U. Press, 1930. DeFerron, O. Le Droit International De La Mer. Paris: Minard, 1958. DeFuniack, W.Q. Handbook Of Modern Equity. Boston: Little, Brown & Co. (2nd ed.), 1956. DeLome, J. The Constitution Of England. Dublin: W. Wilson 1776. [Delanco, NJ: Legal Classics Library (reprinted), 2002]. DeMartens, F. 1–3 Traité De Droit International. Paris: Librairie Maresq Aine (A. Leo trans.), 1883. ——. 1 & 2. Précis Du Droit Des Gens Moderne De L’Europe. Paris: Aillaud (3d ed.), 1831. DeVisscher, C. Problèmes De Confins En Droit International. Paris: Pedone, 1969. ——. Theory And Reality In Public International Law. Princeton, NJ.: Princeton U. Press (P. Corbett trans.), 1957. DeVittoria, F. Law Of Nations. [1532]. Oxford: Clarendon Press (J. Scott ed.), 1934. Dicey, A. Introduction To The Study Of The Constitution. Indianapolis, IN: Liberty Classics (8th ed.), 1915 (reprinted 1982). ——. The Law Of The Constitution. London: MacMillan and Co., 1886. [Delanco, NJ: Legal Classics Library (reprinted), 1999]. Dillon, J. The Laws And Jurisprudence Of England And America. Boston, MA: Little, Brown and Company, 1894. [New York:Legal Classics Library, (reprinted) 1994]. Dinh, N. Droit International Public. Paris: Librairie Générale de Droit et de Jurisprudence, E.I.A. (5th ed.), 1994. Dupuy, R.-J. & Vinges, D. Traité Du Nouveau Droit De La Mer. Paris: Economica, 1985. Elliot, C.W. The New England History. London: Trubner & Co., 1857. Ely, J. Democracy And Distrust A Theory Of Judicial Review. Cambridge, MA: Harvard University Press, 1980. [Delanco, NJ: Legal Classics Library, reprinted, 2004]. Evans, M. International Law. Oxford: Oxford U. Press, 2003. Exton, J. The Maritime Dicaeologie Or Sea-Jurisdiction of England. London: Richard Hodgkinson (2nd ed.), 1664. Farand, M. The Framing Of The Constitution. New Haven, CT: Yale U. Press, 1913. [Legal Classics Library, 2002]. Fauchille, P. 1 & 2. Traité De Droit International Public. Paris: Rosseau, 1925. Fawcett, J.E.S. The Law Of Nations. London: The Penguin Press, 1968. Fenn, P. The Origins Of The Right Of Fishery In Territorial Waters. Cambridge, MA: Harvard U. Press, 1926. Field, D.D. Outlines Of An International Code. London: Trubner & Co. (2nd ed.), 1876. Finch, H. Law, Or A Discourse Thereof . London: Society of Stationers, 1613. Fiore, P. International Law Codified And Its Legal Sanction. New York: Baker, Voorhis & Co. (E. Borchard trans.) (from the 5th Italian ed.), 1918.

398

Bibliography

Forkosch, M. Constitutional Law. Mineola, New York: Foundation Press (2d ed.), 1969. Fortescue, J. De Laudibus Legum Angliae. (2d ed.) 1741, in S. Chrimes, Sir John Fortescue. Cambridge: Cambridge U. Press (1949). ——. De Laudibus Legum Angliae. [Written 1468–1471, printed 1545–1546]. Cambridge: Cambridge U. Press (in S. Chrimes, Sir John Fortescue), 1949. Foster, M. Crown Land. Oxford: Clarendon Press, 1762. Foulke, R.R. A Treatise On International Law. (2 vols.). Philadelphia: Winston Co., 1920. Friedman, L. A History Of American Law. New York: Simon & Schuster, 1973. Freidman, W. International Law. ___: ___, 1965. ——. The Contribution Of English Equity To The Idea Of An International Equity Tribunal. London: Constable & Co. Ltd., 1935. [New Commonwealth Institute Monographs]. Fulton, T. W. The Sovereignty Of The Sea. Edinburgh: W. Blackwood and Sons, 1911. [Clark, NJ: The Lawbook Exchange (reprinted), 2002.] Funk-Bretano, Th. & Sorel, A. Précis Du Droit Des Gens. Paris: Plon, 1877. Gardiner, R. International Law. Harlow, U.K.: Pearson Education Limited, 2003. Gentilli, A. Hispanicae Advocationis Libri Duo. [1661]. New York: Oxford U. Press (J. Scott ed., F. Abbot trans.), 1921. [Carnegie Classics Of International Law]. ——. De Jure Belli Libri Tres. [1612]. Oxford: Clarendon Press (J. Scott ed., J. Rolfe trans.), 1933. [Carnegie Classics Of International Law]. Gidel, G. 1–3. Le Droit International Public De La Mer. Chateauroux, France: Mellottee, 1932–1934. Gilmore, G., and Black, C. The Law Of Admiralty. Brooklyn, N.Y.: Foundation Press, 1957. Godolphin, J. A View Of The Admiral Jurisdiction. London: Dawes, 1685. ——. A View Of The Admiral Jurisdiction. London: W. Godbid for E. Paxton, 1661. Goldfarb, W. Water Law. Chelsea, MI: Lewis Publishers, Inc. (2nd ed. 1988, 3rd printing), 1991. Gould, J. A Treatise On The Law Of Waters. Chicago: Callaghan & Co., 1891. ——. A Treatise On The Law of Waters. Chicago: Callaghan & Co., 1883. ——. Grammar Of The Law. London: Joseph Rickerby, 1839. Grotius, H. De Jure Belli Ac Pacis Libri Tres. [1646]. New York: Oceana (J. Scott ed., F. Kelly trans.), 1964. [Carnegie Classics of International Law]. ——. De Jure Praedae Commentarius. [1604]. Oxford: Clarendon Press (J. Scott ed., G. Williams & W. Zeydel trans), 1950. [Carnegie Classics of International Law]. ——. On The Freedom Of The Seas (1635). New York: Carnegie Div. of Int’l Pubs. (19__) [Carnegie Classics Of International Law]. ——. The Freedom Of The Seas. [1608]. New York: Oxford U. Press (Magoffin, R., trans., J.B. Scott ed.), 1916. [Carnegie Endowment For International Peace). Reprinted, Clark: N.J.: The Lawbook Exchange, Ltd., 2003. Guggenheim, P. Traité De Droit International Public. Genève: La Tribune de Genève, 1953. Guerreo, J. La Codification Du Droit International. Paris: Pedone, 1930. Gutteridge, H. Comparative Law. Cambridge: Cambridge U. Press, 1946. Hakluyt, R. The Principal Navigations Voyages Traffiques & Discoveries of the English Nation. [1589]. Glasgow: James MacLehouse and Sons, 1904. Hale, M. De Jure Maris et Brachiorum Ejusdem. [circa 1667]. Reprinted in R. Hall, On The Sea Shore. London: W. Walker 1830.

Bibliography

399

——. A Treatise In Three Parts. Reprinted in F. Hargrave. A Collection Of Tracts Relative To The Law Of England. Dublin: Lynch, 1787. ——. A History Of The Common Law Of England. [1713]. Chicago: U. Chicago Press (C. Gray ed.), 1971. Hall, J. Practice and Jurisdiction of the Court of Admiralty. Baltimore, MD: ___, 1809. Hall, R. A Treatise On International Law. Oxford: Clarendon Press (A. Higgins ed., 8th ed.), 1924. ——. An Essay On The Rights Of The Crown In The Sea-Shores Of The Realm. London: Saunders & Benning, 1830. ——. An Essay On The Rights Of The Crown And The Privileges Of The Subject In The Sea-Shores Of The Realm. London: W. Walker, 1830. ——. On The Sea Shore . London: Stevens & Haynes (2d ed.), 1875. Halleck, H.W. International Law. San Francisco: Bancroft, 1861. Hart, H. and Weschler, H. The Federal Courts and the Federal System. Mineola, NY: Foundation Press, 1953. Hatschek, J. An Outline Of International Law. London: G. Bell & Sons, Ltd. (C. Manning. trans.), 1930. Heffter, A.G. Le Droit International De L’Europe. Paris: Cotillon (J. Bergson trans.), 1883. Henkin, L. Foreign Affairs And The Constitution. New York: Foundation Press, 1975. Hershey, A.S. The Essentials Of International Public Law And Organization. New York: Macmillan (2nd ed.), 1927. Herczegh, G. General Principles Of Law And the International Legal Order. Budapest: Akademiai Kiado, 1969. Holdsworth, W. A History Of English Law. (1st., 3d and 7th eds). London: Methuen & Co. Ltd./Sweet and Maxwell, 1966. Hudson, M.O. The Permanent Court Of International Justice 1920–1942. New York: Macmillan, 1943. L’Huillier, J. Eléments Du Droit International Public. Paris: Editions Rousseau, 1950. Hurst, C. The Collected Papers Of Sir Cecil Hurst. London: Stevens & Sons, Ltd., 1950. Hyde, C.C. International Law Chiefly As Interpreted And Applied By The United States. Boston, MA: Little, Brown & Co., 1945. Jenkins, D. The Works Of The Eminent Judge Jenkins. London: Samuel Roycroft, 163__. Jenks, C.W. The Prospects Of International Adjudication. London: Stevens & Sons, Ltd., 1964. Jennings, I. The Law And The Constitution. London: University of London Press (5th ed.), 1967. Jennings, R.Y. The Acquisition of Territory in International Law. Manchester, U.K.: Manchester U. Press, 1963. Jennings, R.Y. & Watts, A. eds. 1. Oppenheim’s International Law. (9th ed.). New York: Longman, 1996. Jerwood, J. Dissertation on the Rights to the Sea Shores. London: Butterworth, 1850. Jessup, P. Law of Territorial Waters and Maritime Jurisdiction. New York: Jennings Co., 1927. ——. The Judgment Of Whole Kingdoms And Nations Concerning The Rights, Powers, And Prerogative Of Kings. London: T. Harrison (6th ed.), 1710 (1st ed. 1689). Justice, A. General Treatise on the Dominion and Laws of the Sea. London: S. & J. Sprint 1705.

400

Bibliography

——. General Treatise On The Dominion and Laws Of The Sea. London: Leach (2nd ed.), 1705. Kavenagh, K. ed. 1 & 2. Foundations Of Colonial America. New York: Chelsea House, 1973. Keith, A. 1. Responsible Government In The Dominions. Oxford: Clarendon Press, 1928. Kelsen, H. Principles Of International Law. New York: Holt, Rinehart & Winston (R. Tucker, ed., 2d ed.), 1966. Kent, J. Commentary On International Law. Cambridge, MA: Deighton, Bell & Co. (J. Abbey ed., 2d ed.), 1866. King, C. ed. The Life and Correspondence of Rufus King, Comprising The Letters, Private and Official, His Public Documents And His Speeches. New York: G.P. Putnam’s Sons, 1894–1900. Kluber, J.L. 1 & 2. Droit Des Gens Modernes De L’Europe. Paris: Chez J.-P. Aillaud Libraire, 1831. Lambarde, W. Archion, Or A Commentary Upon The High Courts Of Justice In England. [Written 1591, printed 1635]. Cambridge, MA: Harvard U. Press. (H. McIlwain & P. Ward eds.) 1957. de LaPradelle, A. Maîtres Et Doctrines Du Droit Des Gens. Paris: Les Editions Internationales (2nd ed.), 1950. Lauterpacht, H. Private Sources And Analogies Of International Law. London: Longman, Green and Co. Ltd., 1927. ——. The Collected Papers Of Hersh Lauterpacht. Cambridge: Cambridge U. Press (E. Lauterpacht, ed.), 1970. ——. The Development Of International Law By The International Court. London: Stevens & Sons, Ltd., 1958. ——. The Function Of Law In The International Community. Oxford: The Clarendon Press, 1933. Lawrence, T.J. The Principles Of International Law. London: Macmillan (P. Winfield ed., 7th ed.), 1930. Lediard, T. The Naval History of England. London: John Wilson & Oliver Payne, 1735. Lee, R.W. The Elements Of Roman Law. London: Sweet & Maxwell, Ltd. (3d ed.), 1952. Leopold, R. The Growth Of American Foreign Policy. New York: Knopf, 1969. Loccenii, J. De Jure Maritimo et Navali. ___: ___ (2d ed.), 1652. Lowell, A. I The Government Of England. New York: The MacMillan Company, 1917. Lucchini, L. Droit De La Mer. Paris: Edition A. Pedrone, 1990. Mackintosh, J. Roman Law In Modern Practice. Edinburgh: Green & Son, Ltd., 1934. Madison, J. Records Of Debates In The Federal Convention Of 1787. Washington, D.C.: U.S.G.P.O., 1927. [Legal Classics Library, 1989]. Maine, H. International Law. London: Murray (2d ed.), 1894. ——. International Law. London: John Murray, 1888. Maitland, F. The Constitutional History Of England. Cambridge: Cambridge U. Press, 1908. [Legal Classic Library, 2000]. Malby, L’Abbé de. Le Droit Public De L’Europe D’Fonde Sur Les Traités. (3 vols.). Genève: Compagnie de Libraires (4th ed.), 1768. Malynes, G. Ancient Law-Merchant. London: Basset (3d ed.), 1688.

Bibliography

401

——. Lex Mercatoria of the Ancient Law Merchant. London: Basset & Chiswell, 1686. Manning, W.O. Commentaries On The Law Of Nations. London: Sweet, 1839. Marsden, R. 1 & 2. Law and Custom of the Sea. London: Navy Records Society, 1915– 1916. Masterson, W. Jurisdiction In Marginal Seas. New York: Macmillan, 1929. Matte, N.M. De La Mer Territoriale A L’Air “Territorial”. Paris: Pedone, 1965. McDougal, M. & Burke, W.T. The Public Order Of The Oceans, A Contemporary International Law of the Sea. New Haven, CT: Yale U. Press, 1962. McGlynn, M. The Royal Prerogative And The Learning Of The Inns Of Court. Cambridge: Cambridge U. Press, 2003. McIlwain, C. The American Revolution. New York: The MacMillan Company, 1923. Reprinted Legal Classics Library 2004. ——. The High Court of Parliament. New Haven: Yale U. Press, 1910. Medows, P. Observations Concerning The Dominion And Sovereignty Of The Seas. London: Jones, 1689. Merignhac, A. Treatise De Droit Public International. (2 vols.). Paris: Librairie Générale De Droit & De Jurisprudence, 1907. Meyer, C.B.V. The Extent Of Jurisdiction In Coastal Waters Illustrated By State Practice And The Opinions Of Publicists. Leiden: Sijthoff (C. Meyer trans.), 1937. Miles, E. Global Ocean Politics. The Hague: Martinus Nijhoff Publishers, 1998. Mochot, J. Le Régime Des Baies Et Des Golfes. Paris: Librairie Nizet, 1938. Moller, A. 1. International Law In Peace And War. London: Stevens & Sons, Ltd. (H. Pratt trans.), 1931. Moore, S. A History of the Foreshore And The Law Relating Thereto. London: Stevens & Sons (3d ed.), 1888. Moore, S.A. & Moore, H.S. The History And Law Of Fisheries. London: Stevens and Haynes, 1903. Morisoto, C. Orbis Maritimi. Diuione, France: Petram Palliot, 1643. Mouton, M. The Continental Shelf. The Hague: M. Nijhoff, 1952. Nielson, F.K. International Law Applied To Reclamations. Washington, D.C.: Byrne & Co., 1933. Nelson, W. Lex Testamentaria. ___: ___, 1728. Ngantcha, F. The Right Of Innocent Passage And the Evolution Of The International Law Of The Sea. London: Printer Publishers, 1990. Nys, E. 1–3. Le Droit International. Paris: Frontmoing, 1904–1906. ——. Le Droit Romain, Le Droit des Gens. Bruxelles: M. Weissenbruch 1910. ——. Guerre Maritime. Bruzelles: C. Muquardt, 1881. ——. L’Historie Littéraire & Dogmatique. Brussels: C. Muquardt, 18__. O’Brien, J. International Law. London: Cavendish Publishing Limited, 2001. O’Connell, D.P. International Law. London: Stevens & Sons (2d ed.), 1970. Oppenheim, L. 1 & 2. International Law A Treatise. London: Longmans, Green & Co. (H. Lauterpacht ed., 7th ed), 1948. ——. 1 & 2. International Law A Treatise. London: Longmans, Green & Co., 1905. Ortolan, M.T. Règles Internationales Et Diplomatiques De La Mer. Paris: Plon (4th ed.), 1864.

402

Bibliography

——. Towards A National Ocean Policy, 1976 And Beyond. Washington: U.S.G.P.O., 1976. ——. Perspectives On Ocean Policy. Washington: U.S.G.P.O., 1974. Oudendijk, J. Status And Extent Of Adjacent Waters. Leiden: Sijthoff, 1970. de Pauw, F. Grotius And The Law Of The Sea. Bruxelles: U. Bruxelles Institut de Socialogie (P. Arthur trans.), 1965. Perels, F. Manuel De Droit Maritime International. Paris: Guillaumin, 1884. Perleger, C. Judicial Interpretation Of International Law In The United States. New York: Macmillan, 1928. Phillimore, R. Commentaries Upon International Law. (4 vols.). London: Butterworth (3d ed.), 1879. Phillips, O., Jackson, P., & Leopold, P. Constitutional And Administrative Law. (8th ed.) London: Sweet & Maxwell, 2001. The Planters Plea. London: Jones, 1630. Reprinted in Traites And Other Papers. (Vol. 2). New York: Smith (P. Forece ed.), 1947. Pollock, F. Jurisprudence And Legal Essays. London: MacMillan & Co. Ltd., 1961. Pufendorf, S. Elementorum Jurisprudentiae Universalis Libri Duo. [1672]. Oxford: Clarendon Press (J. Scott ed., W. Oldfather trans.), 1931. [Carnegie Classics of International Law]. ——. De Jure Naturae Et Gentum Libri Octo. [1688]. Oxford: Clarendon Press. (J. Scott ed., C. Oldfather & W. Oldfather trans.), 1934. [Carnegie Classics of International Law]. Rachel, S. De Jure Naturae Et Gentium Dissertationes. [1676]. Baltimore: The Lord Baltimore Press (J. Scott ed., J. Bate trans.), 1916. [Carnegie Classics of International Law]. Raestad, A. La Mer Territoriale. Paris: Pedone, 1913. Rakove, J., ed. James Madison Writings. New York, N.Y.: Library of America, 1999. Raleigh, W. An Essay On Ways And Means. London: ___ [15__]. (H. Sheers ed.), 1701. Ralston, J. The Law And Procedure Of International Tribunals. (Vol. 1). Stanford, CA: Stanford U. Press (2d ed.), 1926. Redslob, R. Traité De Droit Des Gens. Paris: Librairie du Recueil Sirey, 1950. Reiff, H. The United States And The Treaty Law Of The Sea. Minneapolis, MN: U. Minnesota Press, 1959. Robertson, D. Admiralty And Federalism. Mineola, NY: Foundation Press, 1970. Robinson, G. Handbook Of Admiralty Law. St. Paul, MN: West Publishing Co., 1939. Roche, A.G. The Minquiers And Ecrehos Case. Genève: Librairie Dros, 1959. Rodger, N.A.M. The Command of the Ocean. London: Allen Lane, 2004. ——. The Safeguard Of The Sea. London: W.W. Norton & Co., 1997. ——. The Wooden World. Annapolis, MD: Naval Institute Press, 1986. Roscoe, E. A History of the English Prize Court. London: Stevens 1932. Rosenne, S. The World Court What It Is And How It Works. Leiden: Sijthoff (3d ed.), 1973. Rousseau, C. Droit International Public. Paris: Recueil Sirey, 1953. ——. Principes Généraux Du Droit International Public. Paris: ____, 1944. Rymer, T. 8. Foedera. London: George Eyre & Andrew Strahan, 1820. St. Germain, C. Doctor And Student. [1518]. London: Strahan (W. Muchall ed.), 1787. Saurez, F. 2. De Legibus, Ac Des Legislatore. (in Selections From Three Works. [1612]. Oxford: Clarendon Press (J. Scott. Ed., G. Williams, et al., trans.), 1944. [Carnegie Classics of International Law].

Bibliography

403

Schwarzenberger, G. International Law. London: Stevens & Sons, 1949. ——. A Manual Of International Law. London: Stevens & Sons, 1947. Selden, J. Of The Dominion, Or, Ownership Of The Sea. London: Du-Guard (M. Needham trans.), 1652. [The Lawbook Exchange, 2004]. ——. Mare Clausum. (M. Needham, trans.) [1652]. ___: London (___ ed., ___ trans.), ___. [Carnegie Classics of International Law]. Schwartz, B. A Commentary On The Constitution Of The United States. (Vol. 1). New York: Macmillan, 1963. Shalowitz, A.A. 1. Shore And Sea Boundaries. Washington, D.C.: U.S.G.P.O., 1962. Smith, F.E. (Lord Birkenhead). International Law. London: Dent & Sons, Ltd. (6th ed.), 1927. ——. (Lord Birkenhead). International Law. London: Aldin House (2nd ed.), 1903. Smith, J. 2. A Description Of New England [18 June 1616], in 2 Tracts And Other Papers. New York: Smith (P. Force ed.), 1947. Starke, J.G. An Introduction To International Law. London: Butterworth (3d ed.), 1954. Staundforde, G. An Exposition Of The King’s Prerogative – Collected From Fitzherbert’s Abridgement of Justice. London: Richarde Tottle, 1577. Stephen, J. A History of the Criminal Law of England. London: Macmillan, 1883. Story, J. 1 & 2 Commentaries On The Constitution Of The United States. __:___, 3d ed., 1858. ——. A Familiar Exposition Of The Constitution Of The United States. New York: American Book Company, 1840. [Legal Classics Library, 1992]. Stratham, E. Privateers and Privateering. London: Hutchinson & Co., 1910. Strohl, M. The International Law Of Bays. The Hague: Martinus Nijhoff, 1963. Strupp, K. Legal Machinery For Peaceful Change. London: Constable & Co., 1937. Suarez, F. Treatise on Law and God the Lawgiver. [1612]. Oxford: Clarendon Press (J. Scott ed., W. Gwladys trans.) 1944 [Carnegie Classics of International Law]. Sullivan, J. History Of The District Of Maine. [1789 ed.]. Augusta, ME: State Museum (reprint), 1970. Sunkin, M. & Payne, S. The Nature Of The Crown. Oxford: Oxford U. Press, 1999. Swartztrauber, S.A. The Three-Mile Limit Of Territorial Sea. Annapolis, MD: Naval Institute Press, 1972. Swift, R.N. International Law Current And Classic. New York: Wiley & Sons, Inc., 1969. Taswell-Langmead, T. English Constitutional History. London: Sweet & Maxwell (T. Plucknett ed., 11th ed.), 1960. Taylor, H. A Treatise On International Public Law. London: Sweet & Maxwell, 1902. Textor, J. Synopsis Juris Gentium. Oxford: Clarendon Press (J. Scott ed., J. Bate trans., 1916), 1680. [Carnegie Classics of International Law]. Theobald, H. The Law Of The Land. London: The Saint Catherine Press, 1929. Thomason, R. A Historical Essay On The Magna Charta Of King John. London: John Major, Fleet Street (1829). [The Legal Classics Library, 2002]. Twiss, T. The Law Of Nations Considered As Independent Political Communities. Oxford: Clarendon Press (2nd ed.), 1884. ——. ed. The Black Book Of The Admiralty. (4 vols.). London: Longman & Co., 1871. Reprinted Clark, N.J.: The Lawbook Exchange, Ltd., 1999.

404

Bibliography

Vali, F.A. Servitudes Of International Law. London: Stevens & Sonos (2nd ed.), 1958. Valin, Reni-Josué. 2 Nouveau Commentaire Sur L’Ordonance De La Marine, Du Mois D’Août 1681. La Rochelle: L.J. Lequier, 1746. Van Bynkershoek, C. De Domino Mares Dissertatio. (2d ed.) [1744] New York: Oxford U. Press (J. Scott ed., R.. Magaffin trans.), 1923. [Carnegie Classics of International Law]. Vattel, E. The Law Of Nations Or The Principles of Natural Law. [1758]. Washington, D.C.: Carnegie Institute – Classic Series (C. Fenwick trans.), 1916. [Carnegie Classics of International Law]. ——. Le Droit Des Gens. [1758]. Oxford: Clarendon Press (J. Scott ed., G. Gregory trans.), 1916. [Carnegie Classics of International Law]. Verzijl, J.H. 1 & 2. International Law In Historical Perspective. Leiden: Sijthoff, 1970– 1971. Vincenzi, L. Crown Powers, Subjects And Citizens. ___: London and Washington: ___, 1998. Walker, T.A. The Science Of International Law. London: Clay & Sons, 1893. Warren, C. The Supreme Court and Sovereign States. Princeton, N.J.: Princeton U. Press (reprint of the 1924 ed.), 1972. Welwood, W. De Dominio Maris. Amsterdam: Theatrum Orbis Terraum, 1615. ——. An Abridgment of All Sea-Lawes. London: Man, 1613. ——. The Sea Law Of Scotland. [1590]. New York: DaCapo Press, 1969. Westlake, J. The Collected Papers Of John Westlake On Public International Law. Cambridge: Cambridge U. Press (L. Oppenheim ed.), 1914. ——. 1 & 2. International Law. Cambridge: Cambridge U. Press, 1904. ——. Chapters On The Principles Of International Law. Cambridge: Cambridge U. Press, 1894. Wheaton, H. History Of The Law Of Nations In Europe And America. New York: Gould, Banks & Co., 1845. Wheaton, L. Elements Of International Law. London: Low & Son (2d ed.), 1863. Wildman, R. 1. Institutes Of International Law. London: Bennign & Co., 1849. Wilson, C. Profit And Power A Study Of England And The Dutch Wars. London: Longmans, Green & Co., 1957. Wilson, G.G. & Tucker, G.F. International Law. London: Harrap & Co. (5th ed.), 1910. Wilson, W. Congressional Government In American Politics. Boston, MA: Houghton, Mifflin and Company, 1885. [Legal Classics Library, 1993]. Windeyer, W. Lectures In Legal History. Sydney: Law Book Co. of Australasia (2d revised ed.), 1957. Wiswall, F.L. Development of Admiralty Jurisdiction and Practice Since 1800. Cambridge: Cambridge U. Press, 1970. Wolff, C. Jus Gentium Methodo Scientica Pertractatum. [1764]. Oxford: Clarendon Press (J. Scott ed., J. Drake trans.) 1934. [Carnegie Classics of International Law]. Wormuth, F. The Royal Prerogative 1603–1649. Port Washington, NY: Kennikat Press, 1939. Zouche, R. The Jurisdiction of the Admiralty Court of England Asserted. ___: ___, 1663. ——. An Exposition Of Fecial Law And Procedure Or Of Law Between Nations, And Questions Concerning The Same. [1650]. (J. Brierly trans.), 1911. [Carnegie Classics of International Law].

Index Admiralty Courts British, 71 British flag vessels, 78–79 common law competition, 74–76, 83 criminal, 76–78 jurisdiction, 71–74 prize and neutrality, 80–82 Colonial, Vice Admiralty Courts, 79 procedure, 79 juries, 79 US, 88, 299 prize, 88–89 neutrality, 90–92 Admiralty jurisdiction common law exclusion, 73–75, 76, 83 criminal, 76–78, 86, 297 instance, 71, 86 prize, 71–76, 78–82, 86, 88–92 voyaging, 72 Alexander, 52 American 18th century neutrality, 89 American people, 130, 142 see also Rights of Englishmen fishing and navigation, 99–100, 115, 291, 293 a priori rights, 98 extra-constitutional juridical rights, 101 jus publicum rights, 84, 87 outer continental shelf, 301 sovereigns, 101, 108, 126–27, 130 Ancient Law Merchant, 15, 293 Anglo–Dutch wars, 15 Ancient titles, 114 Anglo–Dutch Wars, 15 Articles of Confederation 1781, 12, 145 Barbary Treaties, 93–95 Bartlett Act, 303 Bays see Territorial Sea British seas, 16, 36 Chesapeake Bay, 281, 286 Churchill, 338

Chitty, 21–22 Coastal waters, 33, 75–76 see also Territorial Sea English basis U.S. jurisdiction, 49 hostile navigation, 206 jurisdictional merger, 85, 94–95 occupation and possession, 205 oceanic islands, 283 riverine islands, 283 Coastal Zone Management Act, 304 Court of Capture Appeals, 88 Colonial Charters, 50 corporate charters, 54 discovery charters, 50–53, 105, 140 Gilbert, A., 52 Gilbert, H., 52 Raleigh, 52 Sydney, 52 governmental authority, 56 no derogation of Crown proprietary rights, 105–06 no derogation of Englishmen’s’ right to common law, 105–6 no derogation of Royal Prerogative governmental authority, 105–06 proprietary charters, 54 revocation, 116–17 right to common law, 50 rights of Englishmen, 51 no separate nations created by charters, 270 royal colonies, 55 rules of construction, 55, 117–19 no derogation of royal interests, 110 special words, 111 settlement charters, 51, 53, 105 administrative authority, 50 surrender, 116–17 Colonies Carolina, 63, 64–65 Connecticut, 56, 60–62, 106 Delaware, 62 East Jersey, 63 Georgia, 63, 65 Maine, 58–59 n. 18

406

Index

Maryland, 62, 63 Massachusetts Bay, 56, 57, 58 New Hampshire, 56, 59–60 New England, 56–57 New York, 62 New Jersey, 62, 63 North Carolina, 65 Nova Scotia, 59 n. 18 Alexander, 52 Pennsylvania, 62 New Plymouth, 56 Rhode Island and Providence Plantations, 56, 60, 106 South Carolina, 65 Virginia, 63–64 West Jersey, 63 Commerce and navigation, 1, 5–8, 14–15, 309 Oleron, 6, 14, 147, 287 Basilica, 14 Codex, 14 Hanse towns, 6, 14, 24, 147, 287 Rhodian sea laws, 6, 14, 24, 147, 287 Wisby, 6, 14, 24, 147, 287 Commerce, interstate and foreign, 287, 294 fisheries, 303–04 Common heritage of Mankind, 157 Common law states as successors, 108 Common law jurisdiction, 71 inter fauces terrae, 74 inter corpus comitatus, 74 colonies, 50 territory, 50 Common principle of law see also Navigational Freedom Principle navigational freedom, 2 Congressional Committee on Captures, 88 Constitution–US admiralty and maritime, 297 commerce clause, 3, 15, 87, 132–34, 138, 144, 289–90, 293–96, 299–300, 320 economic effects and impacts, 305 federal hydropower, 310–312 federally licensed hydropower, 311–15 marine pollution acts and treaties, 306 navigational freedom principle, 296 pelagic fisheries acts and treaties, 307 public trust, 292, 309 plenary power, 295

common law, 135 criminal maritime jurisdiction, 294 delegated powers, 127, 130–32, 138, 292 equal footing, 269–70, 300 Fifth amendment, 128, 315 eminent domain power, 128–29 fisheries, 303–04 Fourteenth Amendment, 128 international law applied, 269 national boundaries, 272, 280–81 national ownership, 268 Ninth Amendment, 3, 101, 125–27, 134 powers, 134–39 public trust, 1 state action biding U.S., 269, 273, 285–86 state authority, 142 Constitution–English jus publicum outside realm, 23 Crown sea and seabed possession, 37, 39–40, 41, 43 Contiguous zone, 161 Continental shelf breadth, 162 geomorphology, 155, 162 sovereign rights, 156 200 meter isobath, 155 Convention on Biodiversity, 348 Customary law, 2, 207, 354 Customs laws British, 67, 69–71 hovering acts, 67 U.S., 236 Deepwater Ports Act, 303 Delaware Bay, 281, 286 Equitable principles, 180 Exchequer Court, 68, 70 Federal Power Act 1935, 314–15 Fisheries North Sea, 17, 19, 21, 28, 43–44 ownership, 28 oysters, 43 several, 42, 107 weirs, 42 zones, 303–04 Fishing see also Royal Prerogative American people, 98

Index

public, 8–9, 16, 22, 66 navigation and fishing, 125, 127–28, 129 rights in North America, 115 Flag salute, 16–17, 82 Four seas, 36 Fourth United Nations Convention on Law of the Sea, 356–57 Franchises, jurisdictions and royalties, 37, 55, 107–12 revocation and surrender, 116–17 effective grants, 118 François, 237 Gilbert, 52 Great Lakes, 299 Grotius high seas res nullius, 9, 26 control, 26 Grotius/Selden see Selden/Grotius Dispute Hague Codification Conference 1930, 200, 226–34 American Institute of International Law, 230 Harvard Research, 231 historic waters, 226 Institut de Droit International, 228–29, International Law Associations, 228–30 Preparatory Committee, 200, 231–34 High seas commercial uses, 10 high seas freedoms, 4 occupation and possession, 10 res communis public trust, 1, 151–57, 275, 345, 347 Historic waters, 205, 207 baseline segment, 269 clear beyond doubt, 272 closed coastal waters, 222 condominium, 218 Draft 1958 Convention, 235 historic bays, 216 historic low-water mark, 276 illegal or defective, 229, 239 juridical exception, 237 municipal law exclusive control, 209 uti possedetis, 217–18 Secretariat Memorandum 1957, 236 Secretariat Study 1962, 227, 238, 273 Holdsworth, 119

407

Hydropower, 310–12 International Court of Justice Art. 38, 18, 172 Isles of Shoals, 59 Judiciary Act 1789, 298 Jurisdictions citizenship, 54 local obedience–foreigners, 77 King’s Chambers, 81, 207 King in Parliament, 104, 106, 122–23, 134, 137 Littoral property rights, 3, 9 Long Island Sound, 282, 286 Lowe, 338 Magnuson Fishery Acts, 304 Magnuson Act, 188 Magnuson Stephen Fishery Conservation Act, 188 Magnuson Act Amendment 2006, 188, 322–26 Mare clausum, 6 Mare liberum, 6, 26 Marginal seas common law, 20 delimitations, 179, 199 agreement, 198 auxiliary principles, 190 dispute resolution, 198 equitable principles, 181–86, 226–27 proportionality, 192 relevant circumstances, 190 special circumstances, 190, 195 equidistance principle, 192–94, 196, 200–01, 203 jurisdictional expansions, 180, 187 jurisdictional consolidation, 150 occupation and possession, 33, 233, 234, 239 vital bays, 232, 257 Marine Mammal Protection Act, 306, 308–09 Marshall, 294 Montego Bay, 158 Narrow seas, 82 National Oceans Service, 349 National rights navigable waters, 87

408

Index

paramount, 270 proprietary rights, 271 seabed and subsoil, 268 Navigable waters dams, 141 flux and reflux of the tide, 45 highways, 140 hydropower, 141–42 Judiciary Act, 298 uses, 5 Navigable waters of the US, 8, 23, 138, 284, 298 Navigation public right, 5, 44–45 public trust, 5 commercial activities, 6 common right, 1 17th century, 10 Navigation servitude, 3–4, 5, 8, 12, 23, 45, 84, 98, 126, 129, 141, 290, 301, 315 Rivers and harbors improvements, 311–12 hydropower licenses, 315 Navigational freedom see also UN Geneva Conventions a priori right, 1, 6, 44, 98 public right, 9, 44–45 right of nations, 6 Navigational freedom principle, 6, 97, 149, 166–67, 273, 299, 322 see also Public Trust Navigational Servitudes governmental, 5, 76 high seas regime, 11, 206–07 jurisdictional servitudes, 6 U.S. governmental navigational servitudes, 85 Neutral waters, 90–91 North Sea Fishery Convention 1882, 226–28 Ocean Dumping Act, 305 Oceans Public Trust, 321, 337, 340–41, 345 administrative process, 335–36 bottom trawling, 327–30 conventional framework, 321, 337, 346 crucible, 330, 332, 358 elements, 357–58 establishment, 338 evolving indenture, 340, 345 FAO, 341–42 IMO, 339–40, 352

MARPOL, 352–53 issues resolution process, 334 jurisdictional dichotomy, 322 Mankind, 322–54 navigational freedom principle, 336 overarching template, 321–22 public trust management, 333 resource dependent populations, 337 States cooperation, 326, 340, 348 communal responsibility, 331–32, 339–40, 348 stewardship, 326, 327, 345 sustainable resources, 333, 348 UN organs, 332–33 focal point for discussion, 335 Framework for climate change, 348 Resolution on Sustainable fisheries, 333–34 UNEP, 337, 343–44 UNCLOS, 338, 352–53 WHO, 343 Outer Continental Shelf Lands Act, 187, 301–02 public benefit, 302 Ownerless property, 42, 66, 69 Peoples’ rights, 6 Piscataqua River, 59 Police powers colonial, 98 federal, 305–06 state, 98, 129, 140–41 vital bays, 232 Praerogativa Regis, 101 Protective jurisdiction, 11–12, 21, 28–29, 33, 44, 66–67, 69, 84–95, 150, 179–80, 187 customs, 67–71 neutral waters, 90–91 U.K. basis for U.S., 84–86 Public trust Constitutional, 122, 124–25, 143, 145–47 conventional, 315–320 common law protection, 125, 129 governmental administrator, 1–2, 7, 14–15 American, 129, 132, 136–38, 143, 146–47 English, 119, 143–44 states, 288 public right of usage, 2

Index

res communis public trust, 147–48, 151–57, 166, 173, 199, 207, 321–22 essential fairness, 189–91, 198 equidistance principle, 200, 203 consolidation, 225 17th century British concept, 3 18th century U.S. concept, 3 Publicists 16th century Digges, 24, 30 17th century Boroughs, 27, 243, 244–45 Callis, 24, 30 De LaPradelle, 240 n. 110 Gentillis, 240 n. 110 Grotius, 18, 26, 241–43 Rachel, 242 n. 121 Selden, 18, 28–31, 243, 245–46 Malynes, 32 Medows, 31–33, 247 Morisoto, 246 n. 134 Pufendorf, 246–47 Welwood, 27, 243–44 Zouche, 28 18th century Azuni, 250–251 Burlamqui, 251 Bynkershoek, 248–49 deMartens, 250–51 Vattel, 249–250 Valin, 249 Wolff, 249 19th century Creasy, 255 n. 167 Davis, 255 Field, 255 n. 170 Hall, 256 Halleck, 254–55 Kulber, 252 Lawrence, 256 n. 171 Ortolan, 252–53 Phillimore, 255 Wheaton, 253–54 Wildman, 253–54 20th century Allott, 241 n. 118 Birkenhead (Smith), 257, 258, 260 Brownlie, 260 Bouchez, 263 Bourquin, 262 Burke, 263 DeVisscher, 261, 264 Evans, 264

409

Fitzmaurice, 261 Gidel, 260 Hershey, 259, 263 Hyde, 260 Jessup, 258 Johnson, 259 MacGibbon, 262–63 McDougal, 263 Oppenheim, 257 Raestad, 258 Schwarzenberger, 261 Taylor, 257 Tucker, 257 Westlake, 257 Wilson, 257 Y’Servin, 259 Raleigh, 52 Res communis, 3, 10 see also Oceans Public Trust IMO, 338 public trust, 151–57, 225–26, 261, 267, 273 communal beneficial interests and responsibility, 267, 351 collective trustees, 354 evolving trust, 345 reciprocal public trust, 151, 156, 157–58, 166, 173, 180, 184, 189, 200, 204, 267 Res nullius, 22, 156 seabed and subsoil, 152 Rights of Englishmen, 84, 85, 97–98, 105, 108, 123–24, 126 birthright, 21 colonists’ rights, 105 common law, 97, 100–01, 125 English laws, 21 Glorious Revolution 1689, 100, 120 rights of local government, 123 Riparian property rights, 3, 8 Royal Prerogative, 3 see also Fisheries and Fishing constitutional authority, 12, 34, 99– 101, 102–104, 119–122 colonial government, 98–99, 104, 105 nascent federalism, 98 defined by incidents, 100, 119 demesne lands, 112 derelict lands, 40 discovery charters, 12, 52–53 executive authority of government, 102, 108

410

Index

fishing and navigation, 49, 125 franchises, 37 colonial marginal seas, 52 infra regnum Angliae, 25 jura regalia, 104, 105 jurae coronae, 104 jus privatum, 21, 31, 34–36, 66, 112–13 jus publicum, 3, 21, 31, 34–36, 66 colonial application, 53 merger, expiration and revocation, 107, 115–116 ownerless property, 112 royal fish, 113 royal mines, 113 shipwreck, 113 swans, 113 treasure trove, 112 prescription, 114 private fishery, 22–23 property rights, 35 public trust ancient, 99 public rights not Crown rights, 99 settlement charters, 12, 57–65 special relationship colonies, 51, 66 Royal Prerogative public trust, 97, 99, 123–25 no abandonment, 53 Saint Lawrence River, 299 Sea boundaries see also Res Communis balance, 190 delimitation rules, 179, 181 disproportionality, 199 essential fairness, 198 equidistance principle starting point, 192–94, 196, 201 inequitable results, 180 juridical servitudes, 179, 191 Seabed mining, 37–39 Selden citizenship jurisdiction, 21 common law jurisdiction, 19 constitutional requirements sea and seabed, 16, 28–30, 33 occupation and possession coastal waters, 85 Selden/Grotius Dispute, 1, 6, 18, 205, 212, 240, 287, 309–10, 321 see also Grotius/Selden Dispute public trust, 6

Statue of Sewers, 25 Story, 132–33 Submerged Lands Act, 186, 268 public benefit, 302 Smuggling, 68 Sydney, 52 Territorial sea see also Coastal Waters baseline, 207, 208 coastline, 188, 267–68 evolution, 71, 76, 83, 150–51 harbor works, 208 low tide elevation, 208 ordinary low-water mark, 208 prime focus, 201 bays, 229–38 geometrical, 209, 233, 239 juridical, 205, 232 territorial jurisdiction, 254 control foreign navigation, 254 breadth, 90, 94, 142–43, 155, 160, 235 closing lines, 228–29, 231–35, 255 codification efforts, 149 dominium and imperium, 53, 61 hostile navigation, 205–06 international not municipal law governs, 206 juridical servitudes, 24 jurisdictional consolidation, 49, 84, 87–88, 94, 150 littoral State sovereignty, 154, 161 straight baselines, 221 usage force majeure, 9, 41, 153 innocent passage, 9, 41, 154, 161 safe haven, 9, 41 refuge, 9, 41 territorial waters, 49 treaties, 91–94 Territorial sea crucible, 5, 9, 11–12, 18, 46, 84, 205–06, 208, 225–26, 239, 265 Territory discovery, 13 occupation and possession, 10, 39 Tidelands cases, 267, 269–81 Title acquisition acquiescence, 211, 220, 237, 258, 274, 277 reason to know, 279 acquisitive prescription, 260 abandonment, 220, 277–78

Index

constructive, 218 affirmation of possession–peaceful, 217 appurtenant maritime territory, 214 consent, 211 consolidation, 213–14, 218–20, 223, 262 continuity, 215, 231 control, 212–13 critical date, 210, 223–24 duration, 20 evidence determined by mode, 211 exclusion and acceptance, 212 immemorial possession or usage, 114, 210, 260 intertemporal law, 210, 219 occupation and possession, 8–9, 11, 210 pertinent circumstances, 215 preclusion, 220, 224–25 prescription, 114, 210, 218, 221, 260 straight baselines, 221 historic straight baselines, 271–72 res nullius, 284 sovereign rights–continuous and pervasive, 219 State action, 277, 280 time passage, 210 toleration, 211, 230, 273–74 Truman Proclamation, 155, 304 Trustee collective community of States, 5 municipal governments, 5 UN Conferences on Law of the Sea First 1958, 174 Draft Articles 1955, 226, 235 International Law Commission Reports, 174–175, 200 Secretary’s Memorandum 1957, 236 Second 1960, 150 Third 1976/1982, 157 Preparatory Committees, 176 UN Convention on the Law of the Sea 1982, 4, 149, 158–59, 179, 193, 316–20 archipelagic States, 165 bays, 166 common heritage of mankind, 157, 168, 170, 175 no common understanding, 176 Congress, 159–60 contiguous zone, 162 customary law, 165

411

exclusive economic zone, 163, 304, 308 customary law, 188 high seas regime freedoms, 165 Mankind, 171, 175–76, 318–20 Pardo, 175 Preparatory Committees, 201–03 public trust, 315–320 resource extraction fee–continental shelf, 162 seabed, 158 seabed mining, 158, 168–70, 173–74 Voyage of the Beagle, 174 Voyage of the Challenger, 174 sovereign rights, 164 territorial sea, 160 The Area, 170 The Assembly, 172 The Authority, 162, 167, 171 trustee conflicts of interest, 169 trust indenture, 163, 170 inherent conflicts of interest, 178 UN Convention on Law of the Sea 1982 US ratification, 352, 354 signed, 159 customary law, 354 Oceans Public Trust, 355 UN Convention on Law of the Sea 1994 Title XI Protocol, 317–320 UN Geneva Conventions 1958, 149, 179, 187, 193 Convention on the Continental Shelf, 149, 155–56, 195 sovereign rights not sovereignty, 156 Convention on Fishing and Conservation of the Living Resources of the High Seas, 149, 156–57 custodial responsibility (public trust), 157 Convention on the High Seas, 149, 151–53 equitable principles, 174 Convention on the Territorial Sea and Contiguous Zone, 149, 153–55, 268 coastal waters juridical servitudes, 153 contiguous zone, 154 protective jurisdiction, 154 International Law Commission Prepatory Work, 174–75 Conventions as U.S. law, 187, 268 UN Resolutions

412

Index

General Principles Resolution 2749, 176–78 Moratorium Resolution 2574D, 176 United States governmental trustee, 84 international fisheries cooperation, 306 international pollution cooperation, 307 UNCLOS constitutional issues, 316–17

Vessels enrollment and licensing, 84 regulate rivers, 84 World Heritage Convention, 349–352 Mankind, 350 natural heritage, 350