The Laws of the Sea

August 1 1929

The Laws of the Sea

August 1 1929

The Laws of the Sea

Both in peace and in war, says this writer, Canada is vitally interested in sea power

A RECENT “naval incident” in the Gulf of Mexico has reminded Canada that she is by destiny a maritime Power. The reminder was necessary. It is one of the curious facts of national psychology that peoples are impressed far more by incidents than by the growth of institutions and tendencies. For half a century or more, Canada has been building up great maritime interests by force of natural circumstances and by the enterprise of her citizens; but there has been little corresponding national growth of sea consciousness, or recognition of the responsibilities which follow the growth of those interests. But an injury to a little ship flying the Canadian flag suddenly makes Canadians, to some extent at least, aware that they have ships and overseas trade and are concerned with the laws of the sea.

To some extent aware, yes: fully aware, I doubt. Have the majority of Canadians today in their minds the facts that in the sphere of their Dominion there are two of the world’s greatest fisheries—Newfoundland in questions of world politics and economics must be counted as part of Canada and the present separation of their administrations as only temporary; that Canada has the greatest potential system of inland water traffic of the world; and that one Canadian shipping company is the world’s greatest international transport organization? If the little ship I’m Alone—which in tonnage, quality of crew and the nature of its work makes so curiously exact a parallel with the sloops of Francis Drake’s days—prompts a young nation to take stock of its future, it will have, done better work than ever came within the imagination of its master.

Canada Must Look to the Sea

CANADA, carrying on a considerable portion of her inland trade by waterways, flanking the two great oceans of the world, and developing on each of them a quickly expanding trade and pfjat fishing industries, must as a nation look to^he sea; |nd as a nation has by heredity/ the instinct to make good at sea, since her population has been chiefly derived from the British Islands and from that province of France which has been.richly;productive of good sailors.

That her mercantileUfreet will grow with the years is as certain as that her manufacturing industries and her population will grow.

Equally certain it is that her overseas trade will greatly expand. Already her manufactures have considerable European markets, and a rich share of the growing Pacific markets in Asia, Australasia and South America must fall naturally to her lot, presuming a vigorous and enterprising policy on her part.

With great mercantile fleets and with great overseas trade there will come in the natural order of things a share of the responsibility for the policing of the seas. In peace or at war Canada must exercise influence in sea affairs.

She has had present reminder of this in being called upon to take up the I’m Alone affair, not merely as representing Canadian interests but also British Empire and international interests in the freedom of the seas. In the future, much more important issues will knock at the doors of her government. What if a European power succeeded, where Germany failed, in securing hegemony of the European continent and put Great Britain in the position of a threatened outpost in the Atlantic of the Empire of which Canada is the central nation?

Or if an Asiatic power, or a power working from an Asiatic base sought dominance of the Pacific Ocean? Neither is an impossible contingency ; indeed, one of them might almost be called probable. Canada could not be disinterested in either event, Canada whose maritime interests both in the Atlantic and the Pacific Oceans are just as importants are those of her southern neighbor on the American continent. Clearly,

the discussions which are now proceeding, or coming near to open discussion, between the British and the United States governments on questions of sea power and sea law are matters of such vital interest to the Canadian nation that her voice must be heard.

Regarding sea power there is little need for discussion. The issues are crystal clear. If the British Empire allows her sea power to become inferior to that of any other national organizations, however friendly, then the British Empire cannot expect to have her special dependence on the sea allowed any special recognition; and it follows that all the nations of the Empire should cooperate with the best means at their disposal in maintaining sea power. I shall not refer further to this matter except to note, in passing, that there is a common misconception which should not go without challenge, that Canada’s naval share in the World War was insignificant. As a matter of fact, it was considerable, calculating, as all sensible naval strategists calculate, the work of her Mercantile Marine.

But regarding sea law there is much confusion of thought, and a brief, non-technical statement of the issues which come under this heading will, I believe, be useful to the readers of a Canadian national magazine.

Sea Law in Peace

OEA LAW has to be considered under conditions of ^ peace and of war. Its rules under conditions of peace can be, naturally, more clearly formulated and more generally enforced than under conditions of war when, as the ancient aphorist said, “all laws are apt to be silent.”

Sea law under conditions of peace has been in the process of definition since the sixteenth century, and Grotius, a Dutch jurist, has the honor of bringing it into “practical politics” with his thesis claiming that the high seas in peace times should be free to all nations. What is generally agreed among nations in the present age is that in times of peace the high seas are “neutral territory”; that no nation can claim dominance of them; but that every nation can claim as its territorial waters and under its domestic control, a strip of the high seas bordering its shores— usually three miles outward from the coastline. On the high seas a ship is part of the territory of the nation where it has its port of registry and is subject to the laws of that nation. It carries its nationality under its flag without fetter on the high seas; when it enters territorial waters of a foreign country it comes to a certain extent under the laws of that country.

Various legislation passed by international agreement provides for a fairly effective police control of actions on the high seas. A ship leaving a port must have its clearance papers, its “passport,” and these are checked at any other port at which it calls, such clearance papers being vised to give her the right to leave that port.

There are some flaws in the perfection of these police arrangements—as in all other human arrangements. The enactment of prohibition in the United States has put these flaws under a searchlight. A friendly government, such as that of Canada or Great Britain, may agree to help the United States government in its domestic policy of prohibition as far as that is possible, but it cannot interfere in times of peace with the clearances of Canadian or British or foreign ships carrying liquor to places contiguous to the United States; nor can there be any check on these ships transshipping their cargoes on the high seas to United States smuggling craft. Once such smuggling craft enter United States territorial waters, sea law has no more concern with them; they are under United States domestic control.

The government of the United States, in its zeal to enforce its domestic legislation, has in this and other matters sometimes forgotten the laws of nations. For example—concerned by the smuggling of watches, jewellery, and other articles of like nature into the United States from Europe, that government recently sought to establish customs posts in England, France, Switzerland and other countries, and to give these customs posts the authority to examine the books of traders in those countries to see what goods they had sold to United States customers. That, of course, would represent an actual invasion of the territory of friendly countries and could not be sanctioned; methods that can be applied to Cuba or Nicaragua or Honduras cannot apply to the rest of the world. But both Canada and Great Britain have followed a policy of helping the United States, in so far as international law allowed, to enforce their prohibition laws. Thus the British Government has agreed, regarding British ships, to what is in effect an extension of the three mile limit of United States territorial waters. The wisdom of this is doubted in some quarters. But it is important to remember that it does not generally invalidate international sea law. All that it does is to say in effect: “Though a British ship on the high seas is British territory and must not be invaded, we are prepared to abandon British sovereignty on British ships within a certain distance of the United States coast.” No other nation, of course, is bound by this agreement unless it chooses to adhere to it. The reason why the wisdom of the agreement is questioned is that it undoubtedly opens a narrow breach in the bulwark which sea law has raised against the intolerable abuses of the past, as, for example, when the Portuguese Empire sought to close the Indian Ocean to all but Portuguese trading ships in times of peace. Even the three mile “territorial water” rule has its inconveniences in practice; for example, it puts access to the great Belgian port of Antwerp under the control of Holland. But it is agreed to be, on the whole, sound.

Now, without much doubt, the United States would like to extend generally the territorial water limit. She has, indeed, passed domestic legislation to provide for this; but this domestic legislation is not valid internationally: it may be

ignored by other nations. It is for the Canadian nation to consider whether their interests in peace are to be best served by jealously guarding the freedom of the seas or by supporting the policy of their neighbor which is directed toward lessening the freedom of the seas and—though this is not, probably, their conscious intent—moving back toward old times when a power would claim a trading monopoly in some part of the world.

There should be separated from this question that of national monopolies in “coast traffic,” though some authorities seek to join the two. For a nation to legislate that passengers and goods from one of its ports may not proceed to another of its ports except by a ship flying its flag may be bad policy; but it is not, strictly speaking, an interference with the freedom of the high seas. Every nation has on its own territory, and in transit from one part of its territory to another, full sovereignty over its own nationals and its own goods, and a certain degree of sovereignty over foreign visitors and foreign goods.

Canada’s voice in international councils on sea law in times of peace would, I hope, be cast always for the greatest degree of freedom possible. But it is neither my purpose nor my right to put forward any advice on that point: to urge only that she must have a voice and that her interests demand that her statesmen and citizens should have clear knowledge of the issues.

Sea Law In War Time

HPO DISCUSS sea law in time of war, is to sail from clear air and well-charted waters to fog and shoal conditions. Sea law in time of war is more, perhaps, for academic than for practical discussion since there is, unfortunately, more than a probability that in war a nation will use its sea power for what it considers its best advantage, quite irrespective of any rules to which it has agreed. To illustrate historically: In recent times the British Empire, having supremacy at sea, maintained that ÍQ war time it had the right to use this supremacy to prevent goods going to an enemy country—not only goods going directly to that country, but goods going to a neighboring neutral country whence they might find their way to the enemy. The United States always contested this view and it was not popular in other foreign countries. The British government, which between 1908 and 1914 was very conciliatory in its foreign relations, agreed to what was known as the Declaration of London, which modified sea law in war time to benefit the interests of neutrals by restricting the rights of belligerents. This Declaration of London had to be submitted to the British Parliament for confirmation. The House of Commons accepted it; the House of Lords rejected it, and it accordingly lapsed. Nevertheless, when the World War broke out in 1914, the British government followed for a time the Declaration of London and allowed neutrals a degree of freedom of trade on the high seas which was distinctly advantageous to the German Powers. Soon it was found impossible to continue this and the British Empire began to use its sea power on the old lines to prevent, as far as possible, any goods reaching Germany. This policy was strongly contested by the United States which claimed the right to send its goods to neutral countries even though clearly they were destined ultimately for Germany. On this point the late Mr. President Wilson’s attitude became at one stage almost threatening.

When, however, the United States entered the war, their government adopted and helped the enforcement of the policy of stopping all supplies to neutral countries which could be of assistance to Germany.

This illustrates my point that the discussion of what sea law will be in time of war is largely academic: that a nation will be inclined then to shape its view of sea law on the one issue as to whether it is a belligerent or a neutral. If it is a belligerent it will want to stop all trade that can help the enemy. If it is a neutral it will want to have freedom to trade with both belligerents. It may be said without undue cynicism that might, not right, decides sea law in war time.

In the discussion during peace of sea law in war time, nations which are weak at sea are prone to seek for declarations limiting the use of sea power, calculating that, even if these are not observed, at least a power will have the odium of breaking agreements which it has made. On this point it may be remarked that it is a mistake—a mistake made by many responsible British newspapers—to think that the United States naval authorities are now anxious for a revision of sea law in war time with a view to the safeguarding of neutral rights. That was the position prior to 1914 when the United States Navy was inferior in strength to the British Empire Navy. Today, when the United States aims at a navy at least equal to that of the British Empire, the view of the great Republic is to leave the question open, so that in the event of another war the United States may be able to use to the full its naval strength to support the policy most useful to a belligerent, or that most useful to a neutral, according to their own position in the war. The effect of this would be that if the British Empire were at war and the United States neutral, the United States would object to any interference with neutral trade: if the United States were belligerent and the British Empire neutral, the United States would do their utmost to prevent any British Empire trade with their enemy.

The facts about sea law in time of war are, indeed, such as to satisfy the most gloomy pessimist. They are in brief: that nowadays everything is a “war supply,” the old limitations of contraband of war having vanished; and that consequently the attempted stoppage of all trade in some quarter or another is bound to be the objective of one or other of the belligerents; that we have for the first time for over a century two approximately equal naval powers—the British Empire and the United States—and that a great contest in which one was belligerent and the other neutral would cause a clash of interests.

But difficult positions do not dismay wise men; rather do they inspire them to diligent action. Canada, in shaping her policy regarding sea law in the event of war, has this basis to work upon: That there would be no greater calamity to mankind than a clash of interests between the British Empire and the United States Republic: That there are no imaginable circumstances under which the British Empire would wish to interfere with any legitimate interest of the United States: That the British Empire would be united in maintaining the legitimate interests of any of its partner nations against any Power. Accepting those three principles it should not be difficult for men of good will and commonsense to seek a way out of a difficulty which it is, in my opinion, bad policy to ignore, for it is the seed from which may spring a disastrous naval armaments competition.

A Possible Way Out

' I '0 SEEK a way out by an international L declaration formulating sea law in time of war is, in my view, not very hopeful for the reasons stated above. There are two other possible paths. One would be through the League of Nations if the United States became a member. While she is not, it is a closed path. The other, and at the moment the most promising path, is that of seeking an agreement between the nations of the British Empire and the United States, defining and solemnly pledging themselves to the view that they would mutually support sea law in time of war as regards neutral trading rights. Instead of both waiting for a war to see what policy would best suit their individual interests, both would agree on a policy regardless of whether, in the unhappy event of a future war, that policy would be advantageous or disadvantageous to their individual interests.

Such an agreement would be no easy matter to reach. There would be some valid objections to it. It would not be generally welcomed by other powers, for it would raise the bogey of “Englishspeaking dominance,” though I believe it would be welcomed by those smaller nations whose one interest is peace and quietness, and who have had long ago to reconcile themselves to the fact that they must always suffer in some degree when their big neighbors fall out. There is, too, the contingency that such an agreement might break under the stress of war. But that contingency, we may hope, is remote. Though the United States, between 1914-18, could, and did, maintain at different times two utterly antagonistic views of the rights of neutrals, it is surely inconceivable that they would break a treaty solemnly entered into in peace time with full knowledge that the treaty might be advantageous and might be disadvantageous but was good for the peace of the world. When consideration is given to the possible alternative of the two great naval powers of the world finding themselves plunged suddenly into serious conflict of interests, the difficulties of seeking such an arrangement should not be allowed to turn the scales adversely.

Canada at any rate must give the matter thought. She is the central nation of the British Commonwealth and daily growing in maritime importance. With power comes responsibility.