BAYS

[§ 185 The International Joint Commission which was duly established, fulfilled with success its function with respect to problems of diversion referred to it.1

The terms of the convention gave proof that both the United States and Canada perceived that the diversion of waters on either side of the boundary was a matter of common interest, requiring regulation through a common agency, and that in spite of reservations in favor of each territorial sovereign, there was a distinct mutual advantage derivable from a reciprocal arrangement in restraint of acts serving to impede navigation by lowering the natural level of the boundary waters.

§ 185. Bays.

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Over all bays within its territory a State may exercise exclusive control.2 As such waters do not form channels of communication between open seas, foreign powers possess no rights of navigation therein save as incidental to the privilege of access to local ports, and except for purposes of refuge for vessels in distress.3 should be referred from time to time to the Commission for examination and report, whenever either the Government of the United States or that of the Dominion should so request. In the event of a reference, the Commission was, after making the requisite examination, to make its reports with conclusions and recommendations (subject to special restrictions imposed by the terms of reference). Such reports were not to be regarded as decisions or to possess the character of arbitral awards. The Commission was to make a joint report to both Governments in cases where a majority agreed. Provision for minority reports was made. In the event of an even division separate reports were to be made by the commissioners on each side to their own Government.

By Art. X it was agreed that "any questions or matters of difference arising between the High Contracting Parties involving the rights, obligations, or interests of the United States or of the Dominion of Canada, either in relation to each other or to their respective inhabitants", might be referred for decision to the Commission by the consent of those parties. Provision was made for the scope of the authority and functions of the Commission in cases so referred to it. The power of a majority to render a decision was acknowledged. In case of an equal division of opinion, or of inability of the Commission to render a decision or finding, the parties agreed to have recourse to arbitration.

1

As illustrative of its work, see International Joint Commission, Application of the Government of the United States for Approval of Certain Contemplated Improvements in the St. Clair River at Port Huron, Mich., Order and Opinion, Washington, 1917; International Joint Commission, Application of the St. Lawrence River Power Company, Interim Order and Opinion, Ottawa, 1918.

As illustrative of its work as referee of questions submitted to it by the Governments of the United States and of the Dominion of Canada, under the provisions of Art. IX of the treaty, see Final Report of the International Joint Commission on the Lake of the Woods Reference, Washington, 1917.

2A. H. Charteris, "Territorial Jurisdiction in Wide Bays", Int. Law Association, Proceedings, 23d Conference, Berlin, 1906, 103, 107.

Art. I of the treaty between the United States and Great Britain of Oct. 20, 1818, prohibiting American fishermen from enjoying fishing privileges

Such access is, however, commonly accorded foreign vessels of commerce. The use of bays by foreign vessels of war is regarded as dependent upon the consent of the territorial sovereign. That consent is doubtless to be presumed in seasons of peace, at least when such use is sought for the purpose of enabling such ships to enter a local port.2 No rule of law serves to prevent the territorial sovereign from closing at will particular bays. Their use for its own distinctive military purposes may impel it to take such a step, likewise special considerations pertaining to the safety of the State, or the interest of the public health.

Within bays, as elsewhere within its waters, the fisheries are subject to the exclusive control of the territorial sovereign.

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§ 186. Lakes and Enclosed Seas.

A lake or land-locked sea which forms a part of the domain of a single State is subject to its exclusive control. Although, like Lake Michigan, it connects with and constitutes a part of a system of water communications forming an international boundary and emptying into the ocean, no right of navigation is possessed by any foreign State. It has been observed that by virtue of the Canadian boundary convention of January 11, 1909, rights of navigation in that lake were extended to the inhabitants and vessels of Canada.3

Where a lake forms a part of the territorial waters of two or more States, a common right of navigation is enjoyed by the several proprietors. Thus, Lakes Ontario, Erie, Huron and Superior, and their water communications, are treated as "international waters, being dedicated in perpetuity to the common navigation of all the inhabitants" of the countries on both sides of the boundwithin certain British bays, provided, however, that such fishermen might enter such bays for the purpose of shelter and of repairing damages therein, of purchasing wood and of obtaining water. See Malloy's Treaties, I, 631-632.

1 See reciprocal agreement relative to the stationing of coaling vessels in the waters of Mexico (Magdalena Bay) and the United States, as set forth in correspondence in For. Rel. 1907, II, 845-846. Also, Rev. Gén., XV, 436-439.

See Preliminary Provisions of Regulations Concerning the Legal Status of Ships and Their Crews in Foreign Ports, adopted by the Institute of International Law in 1898, Annuaire, XVII, 273, J. B. Scott, Resolutions, 144. 2 Access to Ports, infra, § 187; also Naval War College, Int. Law Topics, 1914, 35-67.

3 Charles' Treaties, 40; The Navigation of Rivers, The St. Lawrence, supra, § 162.

See provisions of Art. IV of treaty of June 5, 1854, Malloy's Treaties, I, 671; Art. XXVIII of the treaty of May 8, 1871 (which was subsequently terminated), id., 711; also documents in Moore, Dig., I, 670-691.

ACCESS TO PORTS

[§ 187 ary. Such a right of navigation is not enjoyed by States other than those to which the waters may be said to belong. Moreover, the bordering States possess the exclusive right to control and utilize the fisheries within their respective territorial waters.2

$187. Access to Ports.

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As no civilized State: appears to be regarded as having the right to isolate itself wholly from the outside world or to remain aloof from all commercial or economic intercourse with it, there would seem to be a corresponding obligation imposed upon each maritime power not to deprive foreign vessels of commerce of access to all of its ports. The territorial sovereign possesses, nevertheless, the broadest right to determine which of them shall be open to commerce, as well as to regulate access thereto. In the absence

1 See statement in Moore, Dig., I, 675, where it is added: "It may be superfluous to remark that this common right of navigation does not embrace the respective coasting trade of the contracting parties, a limited participation in which was reciprocally conceded by Article XXX of the Treaty of Washington of May 8, 1871."

Mr. Uhl, Acting Secy. of State, to Messrs. Laughlin, Ewell and Houpt, May 23, 1894, 197 MS. Dom. Let. 118, Moore, Dig., I, 672, 674; Mr. Gresham, Secy. of State, to Mr. Hooker, Jan. 2, 1895, 200 Dom. Let. 121, Moore, Dig., I, 675, note; Mr. Bayard, Secy. of State, to Mr. Chipman, M. C., Feb. 2, 1889, 17 MS. Report Book, 327, Moore, Dig., I, 675, note.

LIMITATION OF NAVAL FORCE ON THE GREAT LAKES: By an exchange of notes April 28 and 29, 1817, an agreement was concluded between the United States and Great Britain limiting the naval force of each Government on the Great Lakes to one vessel on Lake Ontario, to two on the upper Lakes, and to one on Lake Champlain, each vessel not to exceed in burden 100 tons, and in armament one 18-pound cannon. All other armed vessels were to be "forthwith dismantled" and no other vessels of war were to be "there built or armed." The arrangement was to be terminable on six months' notice. Am. State Pap., For. Rel., IV, 205-206, Moore, Dig., I, 692. Concerning the negotiation of this agreement and its subsequent interpretation by the high contracting parties, see statement in Moore, Dig., I, 692–698, and documents there cited, particularly the report of Mr. John W. Foster, Secy. of State, to the President, Dec. 7, 1892, Sen. Ex. Doc. No. 9, 52 Cong., 2 Sess. This report was published by the Carnegie Endowment for International Peace, Division of International Law, as Pamphlet No. 2, Washington, 1914.

"The government of the United States had, in 1852, the right to insist upon Japan entering upon such treaty relations as would protect travellers and sailors from the United States visiting or cast ashore on that island from spoliation or maltreatment, and also to procure entrance of United States vessels into Japanese ports.' Moore, Dig., V, 740, citing Mr. Conrad, Asst. Secy. of State, to Mr. Kennedy, Nov. 5, 1852, MS. Notes, Special Missions, III, 1. Concerning Commodore Perry's successful mission to Japan, id., V, 736-740.

Mr. Monroe; Secy. of State, to the Chevalier de Onis, Spanish Minister, Jan. 19, 1816, Am. State Pap., For. Rel., IV, 424, 426, Moore, Dig., II, 269; Mr. Conrad, Acting Secy. of State, to Mr. Barringer, Oct. 28, 1852, MS. Inst. Spain, XIV, 369; Moore, Dig., II, 269, Mr. Blaine, Secy. of State, to Mr. Douglass, Minister to Haiti, July 2, 1890, For. Rel. 1890, 530, Moore, Dig., II, 270.

These prescribed the methods by which vessels might cross a defensive sea area, the entrance to which was prohibited save after authorization by the so-called Harbor Entrance Patrol. It was declared that no permission would be granted to other than a public vessel of the United States to cross such an area between sunset and sunrise, nor during the prevalence of weather conditions that rendered navigation difficult or dangerous. It was announced that a vessel arriving off such an area after sunset should anchor or lie-to at a distance of at least a mile outside its limits until the following sunrise, and that vessels discovered near the limits of such areas at night might be fired upon.1

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Air Space over the National Domain

§ 188. In General.

(a)

The various opinions as to the nature and extent of the right of a State to control the air space above its territory were put to the test by The World War.2 Events of that conflict served to

Stat. 1194. Later Executive Orders, Nos. 2597 and 2898 extended the scope of defensive sea areas to additional waters. Cf. Official Bulletin, May 11, 1917, p. 3; id., July 2, 1918, p. 1.

See, also, Executive Order establishing defensive sea areas for Panama Canal Terminal Ports, Aug. 27, 1917, Official Bulletin, Sept. 5, 1917, p. 8.

§ 806, Chap. 463, Act of Sept. 8, 1916, authorizing the President to withhold the clearance of vessels of a belligerent country refusing to accord to American ships or American citizens any of the facilities of commerce which such vessels or citizens of that belligerent country might enjoy in the United States or its possessions, or in case American ships or citizens were not accorded by such belligerent equal privileges or facilities of trade with vessels or citizens of any nationality other than that of such belligerent, until that belligerent should restore to such American vessels and American citizens reciprocal liberty of commerce and equal facilities of trade.

The same Act gave to the President the alternative power to direct that similar privileges and facilities, if any, enjoyed by vessels or citizens of such belligerent in the United States or its possessions be refused to vessels or citizens of such belligerent.

See, also, Title II of the so-called Espionage Act of June 15, 1917, 40 Stat. Part I, 220.

2 "On this point, broadly speaking, there are two main schools of thought: 1. Those who maintain that the air space is of its nature free; this theory being that of the freedom of the air space. 2. Those who maintain the theory of the sovereignty of the subjacent State in the air space above its territory. "The first school may again be subdivided into partisans of:

(a) Air freedom without restriction.

(b) Air freedom restricted by some special rights (not limited as regards height) of the subjacent State.

(c) Air freedom restricted by a territorial zone.

"Those who maintain the sovereignty theory may also be subdivided into partisans of:

IN GENERAL

[§ 188 make clear the significance of certain factors to be reckoned with in applying theory to the formulation of rules for general guidance; first, the effect of the operation of the law of gravity upon all bodies heavier than air passing over the subjacent land; secondly, the indispensability of the air itself to the inhabitants of the earth, and thirdly, the practical importance of transportation and communication through air space over foreign territory.

It has been perceived that the relationship which the air space (a) Full-sovereignty without any restriction.

(b) Full sovereignty restricted by the right of innocent passage for aërial navigation.

(c) Full sovereignty up to a limited height only.

"The various parties holding these separate views have never yet come to any agreement between themselves." Report of Committee upon Aviation, Int. Law Association, Mr. E. S. M. Perowne, reporter, Proceedings, 28th Conference, Madrid, 1913, 529, 530.

For bibliographies of the extensive literature on this subject see BonfilsFauchille, 7 ed., 360-362; A. S. Hershey, Int. Law, 235, note; J. F. Lycklama Nijeholt, Air Sovereignty, Appendices, The Hague, 1910; Harold D. Hazeltine, Law of the Air, London, 1911. The last two works contain a discussion of the several theories advanced.

Cf., also, Enrico Catellani, Le Droit Aérien (translated from the Italian by Maurice Bouteloup), Paris, 1912; A. E. Denton, "Law Governing Air Space and Aviation", MS. Thesis for Master's Degree, Northwestern University, 1916; Paul Fauchille, Le domaine aérien et le régime juridique des aérostats, Paris, 1901; Grünwald, Das Luftschiff in völkerrechtlicher und strafrechtlicher Beziehung, Hanover, 1908; Léon Lalande, La réglementation de la circulation aérienne internationale en temps de paix, Toulouse, 1913; Sir H. Erle Richards, Sovereignty Over the Air, Oxford, 1912.

See, also, Simeon E. Baldwin, "Law of the Airship", Am. J., IV, 95; Blewett Lee, "Sovereignty of the Air", id., VII, 470; A. K. Kuhn, "The Beginnings of an Aërial Law", id., IV, 109; "Aerial Navigation in its Relation to International Law", Am. Pol. Sc. Assn., Proceedings, 1908, 83; G. G. Wilson, "Aërial Jurisdiction", Am. Pol. Sc. Rev., V, 171; J. E. G. de Montmorency, "Air-Space Above Territorial Waters' Jour. Comp. Leg., N. S., XVII, Part 3, p. 172; G. D. Valentine, "The Air A Realm of Law", Jurid. Rev., XXII, 16 and 85; H. D. Hazeltine, "Law of Civil Aerial Transport", Jour. Comp. Leg., 3 ser., I, Part I, 76; A. Mérignhac, "Le domaine aérien privé et public, et les droits de l'aviation en temps de paix et de guerre”, Rev. Gén., XXI, 205.

Cf. Proceedings of Institute of International Law in Annuaire, XIX, 19-26 (concerning legal status of aircraft); J. B. Scott, Resolutions, 170-171; Annuaire, XXI, 76-87 (Report of Paul Fauchille on wireless telegraphy); Annuaire, XXIV, 23-104 (Report of Paul Fauchille); id., 105-155, embracing Paul Fauchille's Project of a Convention Respecting Aerial Law, the text of which is contained also in J. B. Scott, Resolutions, 243-256; and L. von Bar's proposed code on aircraft in war, id., 256, Annuaire, XXIV, 127-133.

See Int. Law Assn., Proceedings, 27th Conference, Paris, 213-281; Proceedings 28th Conference, Madrid, 222–245 (embracing Report of Committee upon Aviation); Hague Papers, 1914, embracing Report of the Aerial Law Committee, E. S. M. Perowne, convener; Proceedings, Premier Congrès du Comité Juridique International de L'Aviation, Paris, 1911; Proceedings, Deuxième Congrès, Geneva, 1912.

See Proceedings of the First International Juridical Congress for the Regulation of Aerial Locomotion at Verona, 1910; also Rev. Gén., XVII, 410; "An Act to Regulate Commerce by Airship", embraced in Report of Committee on Jurisprudence and Law Reform of American Bar Association, 1911, Reports of American Bar Association, XXXVI, 379, 381.