The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial WatersFulton, Thomas Wemyss
History
The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters
Fulton, Thomas Wemyss
Fisheries -- Great Britain; Great Britain. Royal Navy -- History; Sea-power; Territorial waters -- Great Britain -- History
But this admission that the law of nature does not preclude
appropriation of a relatively small part of the sea by the neighbouring
state, he qualifies in a general way by saying that there are many
things tolerated by the law of nature which the law of nations, by
common consent, might prohibit; and where this law of nations was in
force and is not repealed by common consent, the most inconsiderable
part of the sea, although almost enclosed by the shores, can never be
the property of a particular people. And in places where the law of
nations was not received, or was afterwards abolished, it does not
follow that the people merely because they possess the lands also
possess the sea enclosed by them; the taking possession must be made
by an overt act, and signified and made known. And if the possession
thus gained by the right of prior occupation is afterwards abandoned,
the sea returns to its original nature--namely, to the common use of
mankind. Further, he who possesses any part of the sea cannot lawfully
hinder unarmed ships, giving no room to apprehend danger, from sailing
there, in the same way that he cannot justly prohibit innocent passage
through his lands. Grotius goes on to explain that it is more easy to
take possession of the jurisdiction (_imperium_) alone over part of
the sea than of the right of property, and that it is not contradicted
by the law of nations; and he points to a number of instances among
the ancients.[627] He admits that sovereignty or jurisdiction may
be acquired on the sea either in regard to persons or in regard to
territory (_ratione personarum et ratione territorii_),--in regard
to persons, as when a fleet, which is a maritime army, is maintained
in any part of the sea; in regard to territory, as when those who
sail along the coasts may be compelled from the land, as if they were
actually on the land.[628]
The latter statement of Grotius contains the germ of the idea
subsequently adopted by almost all the writers on international law,
that the extent of the adjoining sea over which the neighbouring state
is entitled to exercise dominion is limited by the range of guns from
the land. Grotius does not mention the means by which compulsion was to
be made effective, but there is little or no doubt of what was in his
mind.[629] It remained for Bynkershoek, at the beginning of the next
century, to give the doctrine precise expression.
Public-domain text, read in full here on John Shaqi.
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