The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

CHAPTER XIV
TERRITORIAL WATERS

191. (1) The Marginal Sea. -- The territory of a State bordering on the open sea also includes the Territorial or Marginal Sea, which is usually held to be a marine league measured from the low-water mark.1

192. History of the Marine League. -- The three-mile limit, or marine league, was originally based upon the principle first clearly enunciated by Bynkershoek 2 in the early part of the eighteenth century that the territorial sovereignty or jurisdiction of the State is limited by its power to defend its seacoast by force of arms -- imperium terræ finiri ubi finitur armorum vis, i.e. quousque tormenta exploduntur. The range of the cannon of that day seems to have been about a marine league or three nautical miles, and this distance became the generally recognized limit of the marginal sea in. the course of the eighteenth century. During the nineteenth century the rule of the marine league

____________________
1
That the jurisdiction of a State over its littoral or marginal sea is based upon territorial sovereignty is denied by some good authorities on what appear to be insufficient grounds. For a criticism of their views, see especially Heilborn, system des Völkerrechts ( 1896), 37-58; 1 Oppenheim, § 185; Schücking, Das Küstenmeer ( 1897), 14-20; and 1 Westlake, 195-96. For a review of the various theories, see 1 (2 Pt.) Fauchille, Nos. 4921-10.

For the argument against the doctrine of territorial sovereignty as applied to territorial waters, see De Lapradelle, in 5 R. D. I. P. ( 1898), 264 ff. For the views of leading authorities on this point, see De Lapradelle, op. cit., 271-72. For an English translation of this brilliant but not convincing article, see Crocker, Extent of the Marginal Sea ( 1919), 183-236.

Jurisdiction over territorial waters may, of course, include property rights, but it is not essentially based upon property, as many of the older authorities supposed.

The low-water mark is usually taken as the starting point for the measurement of the marine league, but there is a considerable variety of opinion on this point. See, e.g. Latour, La mer territoriale ( 1889), 20 ff.; 1 Nys, 502-05; and 1 Oppenheim, § 186. The low-water mark has the sanction of many treaties, the British Territorial Waters Jurisdiction Act of 1876, and of the Institute of International Law.

2
De dominio maris ( 1702), c. 2. Cf. the vaguer statements of Grotius (lib. II, cap. 3, §§ 13 and 14), and Vattel (liv. I, ch. 23, § 289).

-295-

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