The Maintenance of Public Order at Sea and the Nationality of Ships*

Mybes S. McDougal; William T. Burke; Ivan A. Vlasic

doi:10.2307/2195096

The Maintenance of Public Order at Sea and the Nationality of Ships*

Published online by Cambridge University Press: 28 March 2017

Mybes S. McDougal ,

William T. Burke and

Ivan A. Vlasic

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Mybes S. McDougal: Affiliation:
Of the Board of Editors
William T. Burke: Affiliation:
Yale Law School
Ivan A. Vlasic: Affiliation:
Yale Law School

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Most comprehensively viewed, the international law of the sea comprises two very different sets of principles. One set of principles, establishing certain basic, overriding community goals, prescribes for all states the widest possible access to, and the fullest enjoyment of, the shared use of the great common resource of the oceans. The other set of principles, commonly described as jurisdictional, expresses certain implementing policies designed economically to secure the basic community goals of shared use by establishing a shared competence among states in a domain largely free from the exclusive public order of any particular state.

Type: Research Article
Information: American Journal of International Law , Volume 54 , Issue 1 , January 1960 , pp. 25 - 116

DOI: https://doi.org/10.2307/2195096 [Opens in a new window]
Copyright: Copyright © American Society of International Law 1960

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Footnotes

This article is a by-product of research aided by the Rockefeller Foundation, for whose assistance the authors express their thanks.

References

1 Fulton, The Sovereignty of the Sea 537-603 (1911); Gidel, Le Droit International Public de la Mer (3 vols., 1932-1934); Smith, The Law and Custom of the Sea (3d ed., 1959); Colombos, International Law of the Sea (3d ed., 1954); Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927).

The theme of complementarity in the prescriptions of the international law of the sea is developed in McDougal and Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” 64 Yale Law J. 648, 655-661 (1955); McDougal and Burke, “Crisis in the Law of the Sea: Community Perspectives versus National Egoism,” 67 ibid. 539, 558-567 (1958).

The principles expressing the basic, overriding community policies about shared use may be observed, further, to exhibit their own special subordinate complementarities. The degree of shared use established by international law is the outcome of a weighing process which explicitly seeks, in the common interest of all states, appropriately to protect and balance both the inclusive interests of the general community of states and the exclusive interests of particular states in protecting their internal value processes. This accommodation of the two types of interests is implemented by complementary prescriptions which both state the broad community policies of protection and point to and weight the specific, detailed factors in the processes of use and claim which must be taken into account for rational balancing in particular contexts. For further discussion and illustration, see the articles cited above.

2 See, generally, sources cited above, note 1.

3 The distinction between decision that a state's attribution of national character is irrelevant and decision denying a state's competence to attribute nationality is sometimes confused by confusing two different references of the word “nationality.” The word may be given both a factual reference and a “legal consequence” reference. See Silving, “Nationality in Comparative Law,” 5 A. J. Comp. Law 410 (1956).

The factual reference is, of course, to the act, the authoritative decision, of a state in its attribution of national character. The legal consequence reference is to the responses which authoritative decision-makers later make to this fact upon problems of access to the oceans, the application of coercion to vessels, labor relations, taxation, and so on. Thus, by reference to legal consequences the same vessel could be said to have many different “nationalities” for many different purposes—one nationality for access, another for the purposes of application of coercion, another for labor problems, another for taxation, and so on.

The employment of the word “nationality” in the second reference, to legal consequences, leads, we suggest, to unutterable confusion in discussion and encourages the invocation of wholly irrelevant contexts and decisions in argument and policy applications. It has all the vices which are elsewhere categorized as “normative-ambiguity.” See Lasswell and McDougal, “Legal Education and Public Policy: Professional Training in the Public Interest,” 52 Yale Law J. 203 (1943).

In this article we shall use the word “ nationality “ to refer to the fact that a state attributes its national character to a vessel. The legal consequences which other authoritative decision-makers attach to this fact we propose to explore in a series of carefully delimited problems, raising in very different degree the policy relevance of this fact.

4 Our reference in this article is only to ‘’ recognized'’ states. The special difficulties arising with respect to unrecognized states are so complex as to require separate treatment. Some of these difficulties appear in The Maret, 145 F. 2d 431 (1944). See also Briggs, , “Non-Recognition in the Courts: The Ships of the Baltic Republics,” 37 A.J.I.L. 585 (1943).Google Scholar

5 Thus Professor A. P. Higgins states: “ L a nationalité du navire est 1 ‘une des garanties fournies par le droit international pour la liberté de la navigation, et tout bâtiment naviguant en haute mer doit avoir un caractère national et être en mesure d'en établir la preuve. La possession d'une nationalité sert de base au contrôle et à la protection exercés par l'Etat du pavilion; c'est aussi une garantie pour les autres Etats au point de vue de la répression des torts dont peuvent se rendre coupables les gens qui sont à bord. Les conditions fixées par les Etats pour 1 ‘acquisition de la nationalité ont pour objet d'assurer la possibilité ou d'accroître la facilité et l'efflcacité du contrô1e, en perniettant de reconnaître à distance la qualité, la nationalité des navires.’ “ Higgins, “ Le régime juridique des navires de commerce en haute mer en temps de paix , “ 30 Hague Academy Recueil des Cours 5, at 20 (1929, V).

6 Jessup, op. cit. note 1 above; 3 Gidel, op. cit. note 1 above; Colombos, op. cit. note 1, above; Rienow, The Test of the Nationality of a Merchant Vessel (1937); Potter, The Freedom of the Seas (1924); United Nations Secretariat, Memorandum on the Regime of the High Seas, U.N. Doc. A/CN.4/32 (1950).

7 Rienow appropriately emphasizes the rôle of the state: “ To impress effectively its nationality on vessels and to be assured that such nationality will be respected, a State must take certain established steps intended to make other States cognizant of certain particulars: that the vessel has met to the satisfaction of the State all the statutory conditions; that the State considers the vessel one of its own. These are the points which the practice of the United States, and that of foreign States, has consistently exemplified.” Rienow, cited above, at 116.

8 This conclusion is confirmed by almost any source to which one turns. Thus, half a century ago, Westlake wrote: “The conditions on which different states admit ships to their register, or otherwise grant them the right to carry their mercantile flag, are very various … [b]ut with such conditions international law has no concern: it suffices that, for whatever reasons, a state accepts the authority and responsibility which result from the ship's nationality.” 1 International Law 169 (2d ed., 1910).

The Italian scholar Fedozzi expressed this unilateral competence in even stronger language: “Tout les Etats maritimes déterminent dans la plénitude de leur autonomie, les conditions de la reconnaissance ou de la concession de leur nationalité aux navires marchands et les documents nécessaires pour la preuve de la nationalité elle-même.”

“ La condition juridique des navires de commerce,” 10 Hague Academy Recueil des Cours 5, at 49-50 (1925, V).

Professor Sørensen puts it this way: “International law has traditionally left each state free to determine under what conditions it will register and thereby confer its nationality upon a ship.” Sørensen, The Law of the Sea 202 (International Conciliation, Pamphlet No. 520, 1958).

9 See Rienow, op. cit. note 6 above, at 16.

10 U.N. Conference on the Law of the Sea, Official Records, Vol. II , Plenary Meetings, p. 135; 52 A.J.I.L. 842 (1958). (Hereinafter references to this convention are made merely by citing the relevant article where that is appropriate; otherwise no citation will be given.)

11 Sørensen, note 8 above, at 203. Professor J. H. W. Verzijl's speculation about genuine link indicates even more clearly the possibilities of chaos. After alleging that the “genuine link” is “now denned as to its main purport” and noting that the convention provides no sanction, Professor Verzijl declares that:

“However, under these conditions international tribunals, municipal legislatures and municipal courts would seem to have been given a free hand to attach to the general requirement of ‘genuine link’ the legal consequences they deem fit and proper.” Verzijl, “The United Nations Conference on the Law of the Sea, Geneva 1958,” 6 Nederlands Tijdschrift voor Internationaal Recht 115, 118 (1959).

12 Nottebohm Case (second phase), Judgment of April 6, 1955, [1955] I.C.J. Rep. 4; 49 A.J.I.L. 396 (1955).

13 Jessup, , ‘’ The United Nations Conference on the Law of the Sea,'’ 59 Columbia Law Rev. 234, at 256 (1959).Google Scholar

14 Watts, , “The Protection of Merchant Ships,” 33 Brit. Yr. Bk. Int. Law 52, at 84 (1957).Google Scholar

15 Ibid, at 68, 73, 67.

16 Compare below, p. 108, for potential requirements relating to labor conditions, a statement by Mr. Jenks, the I.L.O. representative at the Geneva Conference.

17 International Labour Conference, 41st Session, 1958, Flag Transfer in Relation to Social Conditions and Safety 5 (1957).

18 New York Times, Nov. 15, 1958, p. 40. More recently it was reported that the aim of the American unions is to obtain for seamen serving on “runaway” ships the American wage scales “ … in most eases double and frequently treble those of European Maritime nations… . “ Ibid., Aug. 19, 1959, p. 58.

19 Ibid., Nov. 15, 1958, p. 40.

20 Ibid., Nov. 30, 1958, p. 48.

21 F. W. Roevekamp, The Christian Science Monitor, Dec. 2, 1958, p. 2.

22 Loc.cit. note 8 above, at 203. (Emphasis added. Throughout this article emphases are ours unless indicated otherwise.)

In 1949, the International Dockers’ and Seafarers’ Conference adopted a resolution in which it was stated:

“Having heard reports from Britain, Holland, Norway and Sweden about the sale to Panamanian registry of ships which are obsolete or uneconomic or which could not continue operation under their original flags because they no longer satisfy the survey, safety and other requirements of those countries …

“Condemns the practice as menacing the established standards of the shipping industry and calculated to place the traditional maritime countries at a serious disadvantage.” I.L.O., Conditions in Ships Flying the Panama Flag 46 (1950).

Invited to elaborate on these charges by the I.L.O. Committee of Enquiry, especially established to investigate the matter, Mr. Oldenbroek, General Secretary of the International Transport Workers’ Federation, described the conditions of, and in, these ships as “ chaotic , “ “very old,” “lacking discipline” and with low standards of safety. Requested by the I.L.O. Committee of Enquiry to supply “more specific and detailed information on the charges brought by the I.T.F . , “ Mr. Oldenbroek promised to comply within a fortnight. However, “despite repeated requests,” the Committee was compelled to report with ‘’ regret ‘’ that ‘’ except for one or two vague and meagre documents, none of the information in question was received from the I.T.F . “ Ibid. at 4, 5 and 7.

23 Quoted in New York Times, April 6, 1958, p. 78, col. 1. Apparently the reference, unavailable to us, is to “Study on the Expansion of the Flags of Convenience Fleets and Various Aspects Thereof,” O.E.E.C. Doc. C (57), Jan. 28, 1958, cited in Sørensen, loc. cit. note 8 above, at 203, note 9.

24 New York Times, Aug. 31, 1958, § 5, p. 11.

25 Ibid.

26 Mr. Robert D. Ropner in New York Times, Nov. 20, 1958, p. 70. Lord Winster's list of complaints is even longer. Here are some samples:

(1) “For instance, there is the question of subsidies.”

(2) “The trouble is that the depreciation allowed for taxation purposes is not proportionate to current replacement rates; and that fact, coupled with inflation, makes it difficult, if not impossible, for shipowners to replace ships out of earnings.'’

(3) “Freight rates have fallen catastrophically…. ”

(4) “ … there is today far too much tonnage in existence for too little cargo.”

(5) “ I n shipbuilding, costs continue to rise.”

(6) “An allied handicap to our shipping is flag discrimination… . The evil is on the increase.” 208 Parliamentary Debates, House of Lords 323-330 (March 20, 1958).

It should not be supposed that the pot and the kettle are any more distinguishable here than in other contexts. Thus Viscount Runciman conceded:

“Indeed, I think it would be quite difficult for us in this country to complain unduly of people using other flags than their own for the purpose of reducing their costs of operation. I have only to remind your Lordships of the considerable volume of Canadian-owned tonnage which is registered in this country at present for precisely that reason—a fact of which I do not think any of us is likely to complain. After all, to a certain point we must recognise that ‘fair's fair.’ “ 208 Parliamentary Debates, House of Lords 341 (March 20, 1958).

27 5 Business Law Rev. 62-63 (1958). This statement, as far as it concerns the alleged abuses of safety by the vessels flying the flags of convenience, finds its most eloquent corroboration in the following words of the chairman of the American Bureau of Shipping, where the majority of these vessels are classified:

“The inference has frequently been drawn that the ships of these fleets are substandard with respect to design, maintenance, safety equipment, et cetera… .

“ It can be truthfully said with respect to those ships classed by the bureau that any such implications are unwarranted. From the standpoint of original design, maintenance and safety, the ships of these fleets compare most favorably with the fleets of any other of the maritime nations in which the bureau has active participation.

“There is in some quarters a belief that the fleets of Liberian and Panamanian registry are comprised largely of older ships sold out from under the flags of original registry as they are replaced by newer and more modern ships. Such beliefs are completely unfounded.!’ New York Times, Jan. 28, 1959, p. 61.

Similarly, in a major address in the House of Lords, Lord Winster stated: “Sometimes people speak to me as if this tonnage under flags of convenience were comparable with the kind of second-hand motor car that one sees for sale outside garages on the Great West Road. It is not second-hand tonnage at all. The greater part of it is new and efficient tonnage. Some 35 percent, of the tonnage under these flags is under five years old. Our comparative figure is 22 percent., so we must not imagine that this is second-hand tonnage.” 208 Parliamentary Debates, House of Lords 329 (March 20, 1958).

28 It was reported that some Geneva Conference ‘’ observers'’ interpreted the meaning of the genuine link standard as follows: “ A nation unfriendly to the United States could, by applying the genuine link criterion, refuse to recognize the nationality of a Liberian ship owned by United States interests” and “delay the ship, refuse to admit her to port, or at worst, seize the ship and her cargo.” New York Times, April 9, 1958, p. 66.

29 Loc. cit. note 8 above, at 205.

30 Addressing the meeting of the representatives of the United States and nine West European nations held in June, 1959, in Washington, D. C, Under Secretary of State Dillon said:

“To the extent that there is actual tax avoidance through the use of tax havens, it seems to me that this is, first and foremost, a problem for the tax authorities in the particular country whose taxes are being avoided. This is obviously a complex problem with ramifications far beyond the shipping field. As a practical matter, if differences in national tax policies cause difficulties for shipowners, it would appear that the solution, at least in the short run, may have to be found by the individual country which considers that its own shipowners are operating at a competitive disadvantage.” 41 Dept. of State Bulletin 14 (1959).

Viscount Simon, a former President of the British Chamber of Shipping, in a debate on merchant marine in the House of Lords, described the causes of the ills which burden the British shipping industry very realistically:

“ I think it is perfectly clear that there are only two things which are really responsible for this languishing position. One is unavoidable. It is the fact that shipping is an international business in which the British shipping industry is in competition with the whole world, and therefore the rate of reward must be less than the rates in more sheltered industries. And because the reward is less, it is more difficult to attract capital… . The other difficulty under which we languish is the burden of tax. It is not merely the level of taxation but the system as applied to industry… .

“The position would clearly be serious enough, even if there were not the matter of flags of convenience, to which reference has been made.” 208 Parliamentary Debates, House of Lords 356-357 (March 20, 1958).

31 5 Business Law Rev. 63 (1958). In citing this stricture for our purpose we are not to be taken as approving the distinction between law and polities.

32 Thus, during a single year, the Greek merchant fleet gained 955,083 gross register tons, much of which “has been attracted to the Greek flag by the revision of the nation's maritime legislation.'’ New York Times, Sept. 8, 1959, p. 56.

33 U.N. General Assembly, 11th Sess., Official Records, Agenda Item 53, Annexes, p. 29 (1956-1957).

34 Loc. cit. note 14, at 52.

35 Loc. cit. note 8, at 204.

36 Mr. Waite, speaking in the Second Committee. United Nations Conference on the Law of the Sea, Official Records, Vol. IV, Second Committee (High Seas: General Regime), p. 65, U.N. Doc. A/CONF. 13/40 (1958) (hereinafter cited as Official Records with appropriate volume number).

37 [1955] I.C.J. Rep. 4, 17.

38 Ibid.

39 Ibid, at 24-26.

40 Ibid, at 22.

41 On many problems, international practice has of course attributed a very high degree of conclusiveness to a state's attribution of nationality to an individual. Briggs, The Law of Nations 471 (2d ed., 1952); Parry, “The Duty to Recognise Foreign Nationality Laws,” 19 Zeitschrift für Ausländisches Recht und Völkerrecht 337 (1958); Weiss, Nationality and Statelessness in International Law 200 et seq. (1956) ; Silving, “Nationality in Comparative Law,” 5 A.J.Comp. Law 410 (1956). This policy reinforces the policy we recommend for vessels.

The special difficulty with respect to individuals is, as indicated in the text, that an individual may lawfully acquire more than one nationality. In such instances, when different states make competing claims to the same individual, a tribunal must choose between claims and, if the decision is to be a “reasoned” decision in terms of community policy, must necessarily establish some criteria of choice. In establishing such criteria, the policies so vaguely adumbrated in the concept “genuine link” could perhaps be elaborated by appropriate operational indices to serve community purposes.

With respect to vessels, however, this necessity for establishing criteria for choice between competing claimant states does not arise. The insistent requirements of public order upon the high seas have forced states to establish a simple rule of priority in time: the first attribution of national character to a vessel precludes all later attributions. To superimpose upon this clear and easily applicable policy any further requirements, which states may use at their unilateral discretion, to the genuineness of the first attribution would be entirely to defeat this policy.

42 [1955] I.C.J. Rep. 4, at 22.

43 Ibid. at 23.

44 The Court placed great emphasis upon ‘’ special circumstances'’ under which the change of Nottebohm's nationality had been obtained and in no doubtful terms expressed its conviction that the real purpose of the change was “ t o enable him to ‘substitute for his status as a national of a belligerent state that of a national of a neutral state.” Ibid, at 26. “Guatemala is under no obligation to recognize a nationality granted in such circumstances,” concluded the Court. Ibid.

Throughout its decision the Court stresses the importance of allegiance, motivation spiritual association and similar mental processes—all of which are quite obviously inapplicable to inanimate vessels. To read the Nottebohm decision as supporting the “genuine link” doctrine with respect to vessels indeed requires both great imagination and disregard for some all-important physical and legal factors.

45 “ One cannot, however, view with much confidence the development of an international jurisprudence on the basis of the link theory without any reference to the criteria in the light of which it is to be applied. Whatever these criteria may be they must certainly result in the creation of fresh, and potentially large, classes of unprotected persons. The effects of judicial ‘legislation’ in the sphere of municipal law can be limited or corrected by true legislation; in the international field this is not possible.” Jones, “The Nottebohm Case,” 5 Int. and Comp. Law Q. 230, at 244 (1956). See also Parry, ,'’ Some Considerations upon the Protection of Individuals in International Law,'’ 90 Hague Academy Recueil des Cours 657, at 705 et seq. (II, 1956)Google Scholar; Simpson and Fox, International Arbitration 107 (1959).

46 [1955] I.C.J. Rep. 4, Dissenting Opinion of Judge Bead, p. 46. Article 1 of the Convention Concerning Certain Questions relating to the Conflict of Nationality Laws, signed at The Hague on April 12, 1930, provides: “ It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.” 5 Hudson, International Legislation 364 (1936).

47 Upon many problems, such as those said to relate to the ‘’ internal affairs” of a business enterprise, international practice has accorded a very high degree of importance to the fact of a state's attributing its national character to the enterprise. 2 Babel, Conflict of Laws 74-80 (1947); American Law Institute, Restatement, Conflict of Laws § 197 (1934); Gower, The Principles of Modern Company Law 62 (1954). The policies underlying these decisions we may appropriately invoke in support of our recommendation with respect to vessels.

The representatives of a business enterprise may, however, operate within the exclusive public order domains of many different states and more than one state may lawfully attribute its national character to the enterprise. The impacts of the peripatetic activities of the representatives of business may be felt in many different states and the factors which may affect a rational allocation of competence among states for prescribing and applying policy to such activities may include many more items than the facts of attribution of national character. The policy relevance of different attributions of national character thus varies from problem to problem. Most importantly, few of the problems have much in common, policywise, with the problems of maintaining full access to, and shared enjoyment of, a common resource such as the oceans.

Note, further, the high degree of immunity that a state may confer upon a business enterprise by clothing it in a governmental corporation. Brandon, “Sovereign Immunity of Government Owned Corporations and Ships,” 39 Cornell Law Q. 425 (1954).

48 4 Official Records 29.

49 In fairness, we mean only those observers with a certain sense of consistency.

50 208 Parliamentary Debates, House of Lords 369 (March 20, 1958).

51 4 Official Records 11-12.

52 The Geneva Convention on the High Seas explicitly provides for such a possibility in Article 7, which reads:

“The provisions of the preceding articles do not prejudice the question of ships employed on the official service of an intergovernmental organization flying the flag of the organization.”

53 See, for illustration, McDougal, and Burke, , “Crisis in the Law of the Sea: Community Perspectives Versus National Egoism,” 67 Yale Law J. 539, at 569-570 (1958).Google Scholar

54 For a more systematic statement of these conditioning factors see ibid, at 556.

55 Gidel's three-volume work, Le Droit International Public de la Mer (1932-1934), is still the most authoritative treatment of this process of decision; see also, Colombos, International Law of the Sea (3d ed., 1954); Potter, Freedom of the Sea (1924).

56 Such as the introduction of the ‘’ genuine link'’ requirement in the Geneva Convention on the High Seas.

57 It will be recalled that comparable demands were made by some of the protagonists in “Animal Farm.“

58 U.N. Secretariat, Memorandum on the Regime of the High Seas 10, U.N. Doc. A/CN. 4/32 (1950); McDougal and Burke, loc. cit. note 53, at 559.

59 Yntema, , ‘’ The Objectives of Private International Law,'’ 35 Canadian Bar Rev. 721, 735 (1957)Google Scholar; Katzenbach, , “Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law,” 65 Tale Law J. 1087, 1107-1109 (1956).Google Scholar

60 The degree of consensus on this is evident in the emphasis on national character in Gidel:

“ L'attribution aux navires de mer d'une identité et d'une nationalité est le corollaire du principe du libre usage de la haute mer. Grâce à cette réglementation … les navires peuvent être surveillés, contrôlés: les abus que pourrait entraîner le principe de la liberté des mers se trouvent limités si l'on n'admet à 1'usage de ces mers que les navires pouvant justifier d ‘une nationalité.'’ 1 Gidel, Le Droit International de la Mer 73 (1932).

61 ‘’ This is the undisputed right of each State: to set up such prerequisites for the assumption of its nationality as its concept of national welfare dictates. There are apparently no limits on the positive exactions of States in this regard. Theoretically, a State may, by the harshness of its rules, prevent any vessel from sailing under its flag.” Rienow, The Test of the Nationality of a Merchant Vessel 214 (1937).

62 This historical tradition has been described by a noted French commentator in these words: “ … en ce qui coneerne la nationalité des navires, le droit pour 1 ‘Etat de la conférer est affirmé depuis longtemps avec une particulière netteté.” Cavaré, Le Droit International Public Positif 231 (1951).

63 The Muscat Dhows Case (France and Great Britain), Award of the Tribunal, The Hague, Aug. 8, 1905. Scott, Hague Court Reports 95, 96 (1916).

64 Ibid, at 99.

65 2 Moore, Digest of International Law 895 (1906).

66 11 U.S. (7 Cranch) 116 (1812).

67 Special Message to Congress of Jan. 5, 1874. 2 Moore, Digest of International Law 901 (1906).

68 Rienow, op. cit. note 61 above, at 17, quoting from 2 Foreign Relations 1207-1208 (1875-1876).

69 The Court could not, of course, have reached the question of immunity if it had not accepted the French nationality of the vessel. Counsel for libelants “admitted that the commission, the flag, and the possession were sufficient evidence of the public character of the vessel.” 11 V. S.(7 Cranch) 116, 121 (1812).

The necessities of minimal order certainly require that states honor each other's authoritative attribution of nationality to state vessels. As we see in The Schooner Exchange v. McFaddon, mutual deference, in the interests of harmonious intercourse, may be carried to the extreme of conferring upon state vessels complete immunity from local jurisdiction.

Complete immunity from the jurisdiction of other states, questioned even with respect to state vessels today, obviously is neither necessary nor desirable for non-state ships. The same policies which require unquestioned mutual deference to attributions of national character to state ships would appear, however, to be equally relevant with respect to non-state ships, especially in days when state and non-state ships increasingly compete for the same world trade.

70 Chief Justice Marshall apparently had little doubt about the truth of the claims of the libelants:

“ In the present state of the evidence and proceedings, the Exchange must be considered as a vessel, which was the property of the libellants, whose claim is repelled by the fact, that she is now a national armed vessel, commissioned by, and in the service of the Emperor of France.” Ibid, at 146.

71 345 U.S 571, at 584 (1953); digested in 47 A.J.I.L. 711 (1953). The principal issue in this case concerned the application of the Jones Act to claims by a Danish seaman who was injured in the course of his employment upon a Danish ship in Havana harbor.

72 Rienow, op.cit. note 61 above, at 19.

73 Art. XIX, 8 U.S. Treaties and Other International Agreements 2043; T.I.A.S., No. 3942. For a more detailed exposition of the relevant U. S. practice, see Walker, , “Modern Treaties of Friendship, Commerce and Navigation,” 42 Minn. Law Rev. 805 (1958).Google Scholar

74 Rienow, op. cit. note 61 above, at 218-219. The opening lines in Article 5 of the 1958 Convention on the High Seas read: “Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly.” The first sentence could conceivably be interpreted to incorporate historic policy with respect to the conclusiveness of the attribution of nationality and to preserve registration as the best evidence of that attribution. The second sentence, however, appears to reject registration as conclusive evidence of nationality, and the sentence which immediately follows introduces the requirement of genuine link. Further consideration is given to genuine link below, p. 104 et seq.

75 Watts, , “The Protection of Merchant Ships,” 33 Brit. Yr. Bk. Int. Law 52, 66 (1957)Google Scholar, citing as a prime example the Nottebohm decision. The interests which states are protecting are their inclusive interests in the common enjoyment of the oceans. It is fantastic to suggest, as Mr. Watts does, that, while states have jurisdiction over their ships, they have no right to protect them. Protection is, of course, of the most inclusive concern, inclusive concern for the protection of both the inclusive and exclusive interests of states. One principal purpose of a state's making attribution of national character to a vessel is to preclude other states from unauthorized assertions of authority for exclusive reasons.

76 Ripert, for example, states: “La nationality du navire determine lea autorit6s compétentes pour exercer sur ce navire la surveillance et la protection.'’ 1 Ripert, Droit Maritime 322 (4th ed., 1950).

With respect to aircraft, see Kamminga, The Aircraft Commander in Commercial Air Transportation 30-31 (1953). Kamminga writes: “An aircraft used for international transportation must be under the control of a State, which will see to it that the aircraft in question fulfills its obligations while in other States; this task devolves upon the State of origin of the aircraft. At the same time, however, this State naturally acts as protector of the rights of the aircraft concerned.” Ibid, at 30. “Nationality is therefore of importance for the aircraft commander because it means that all over the world he is subject to the control of the State where his aircraft is registered, and also because he can count on protection by this State if the rights granted to his aircraft are infringed.” Ibid, at 31.

77 2 Moore, Digest of International Law 900 (1906).

78 (1933), 29 A.J.I.L 326 (1935); 3 Rep. Int. Arb. Awards 1611 (1949).

79 Ibid, at 1618.

80 In his effort to replace nationality as a basis for protection of ships, Mr. Watts, understandably enough, finds the decision in the I'm Alone case embarrassing. He therefore offers the following explanation of the “ paradox “ : “ … the Claims Commission, invested with jurisdiction over any claims in respect of a ‘British vessel’ for compensation, took jurisdiction, thus considering the I'm Alone a British vessel for jurisdictional purposes, but held the I'm Alone not to be a British vessel for purposes of protection.'’ Watts, loc. cit. note 75 above, at 67.

81 Rienow, op. cit. note 61 above, at 104-105.

82 [1917] 2 K.B. 873.

83 See 34 A.J.I.L. Supp. 162 et seq. (1940).

84 McNair, , ‘’ Problems Connected with the Position of the Merchant Vessel in Private International Law, with Particular Reference to the Power of Requisition,” 31 Grotius Society Transactions 30, 36 (1946).Google Scholar

85 Rienow, op. cit. note 61 above, at 4.

86 Art. 1, 3 Hudson, International Legislation 1848 (1931). A more recent example of the importance accorded to records kept in the state of national character is provided by the Convention on International Recognition of Rights in Aircraft, the purpose of which is, among other things, the protection of secured creditors and “facilitation of the transfer of aircraft from one nationality to another.” For an analysis see Wilberforce, “The International Recognition of Rights in Aircraft,” 2 Int. Law Q. 421, 424 (1948).

87 46 U.S.C. §808 (1952).

88 2 Hackworth, Digest of International Law 763-764 (1941).

89 For comparable policy with respect to land recording, see McDougal and Brabner- Smith, “ Land Title Transfer: A Regression,” 48 Yale Law J. 1125 (1939); McDougal, “ Title Registration and Land Law Reform: A Reply,” 8 U. Chicago Law Rev. 63 (1940).

90 For a comprehensive and critical survey, see Gilmore and Black, The Law of Admiralty, Ch. IX (1957).

91 “ There are apparently no limits to this power, and the State in applying it is answerable to no other.” Rienow, op. cit. note 61 above, at 7.

92 “State Immunity and the Requisition of Ships during the Spanish Civil War,” Part II, 36 A.J.I.L. 37, 55 (1942); for a review of British cases involving Spanish vessels, see, by the same author, Part I of the above article in 35 ibid. 263-281 (1941).

93 The Broadmayne, [1916] P. 64, at 67, cited with approval by Finlay, L. J., in The Arantzazu Mendi, [1939] P. 37, at 53.

94 [1942] 2 K. B. 202.

95 Ibid., at 216.

96 Compañía Española de Navegación Maritima v. The Navemar, 17 F. Supp. 495; ibid. 647 (1936); 18 F. Supp. 153; 90 F.2d 673 (1937); cert, granted, 302 U. S. 669 (1937); The Navemar, 303 U. S. 68 (1938), 32 A.J.I.L. 381 (1938); 24 F. Supp. 495 (1938); 102 F.2d 444; and supplemental opinion in 103 F.2d 783 (1939).

97 102 F.2d 444, at 449.

98 McNair, loc. cit. note 84 above, at 46; for an even more forcefully expressed view, see Rienow, op. cit. note 61 above, at 185 and 103-104.

99 Hall, International Law 178-190 (8th ed., Higgins, 1924); Lauterpacht, , “Sovereignty over Submarine Areas,” 27 Brit. Yr. Bk. Int. Law 376, 403-405 (1950)Google Scholar; Gidel dates the defeat of the notion of sovereignty over the high seas from the 17th century, in U. N. Secretariat, Regime of the High Seas, U. N. Doc. A/CN. 4/32, p. 3 (1950) ; Potter, The Freedom of the Seas 85-89 (1924); 1 Oppenheim, International Law 582- 587 (8th ed., Lauterpacht, 1955).

100 Lauterpacht, loc. cit. above, at 403-407; TJ. N. Secretariat, cited above, at 3; 1 Oppenheim, op. cit., at 587-592.

101 U.N. Secretariat, op. cit. note 99, at 3-4.

102 International Law Commission Report, Art. 27, Commentary, U.N. General Assembly, 11th Sess., Official Records, Supp. No. 9, p. 24 (A/3159) (1956); 51 A.J.I.L. 205 (1957).

103 The Lotus, P.C.I.J., Ser. A, No. 10, p. 25 (1927).

104 Thus, e.g., Smith, The Law and Custom of the Sea 33 (3d ed., 1959); Sørensen, The Law of the Sea 200 (International Conciliation Pamphlet, No. 520, 1958). Contra, Colombos, The International Law of the Sea 129 (3d ed., 1954).

105 Treaty of Friendship, Commerce and Navigation between the United States of America and the Federal Republic of Germany, Oct. 29, 1954, Art. XX (1), 7 U. S. Treaties and Other International Agreements 1839; T.I.A.S., No. 3593. Almost identical words can be found in corresponding treaties concluded by the United States with The Netherlands (March 27, 1956); Japan (Aug. 29, 1953); Greece (Aug. 3, 1951); and Italy (Feb. 2, 1948).

106 Convention of Commerce and Navigation with Greece, of March 11, 1929, Art. 26. Similar provisions may be found in treaties concluded by France with the Belgium- Luxembourg Economic Union (Feb. 23, 1928), Art. 17; Estonia (March 15, 1929), Art. 30; Yugoslavia (Jan. 30, 1929), Art. 25, and with other states. Niboyet-Goulé, Recueil de Textes Usuels de Droit International, Supplément, 1929 (1930).

107 In a book based on an extensive analysis of treaty provisions “of a type that recur in the more basic and relatively long-term treaties of commerce, navigation, and establishment,” Professor Hawkins states: “ … the usual treaty practice is to identify as national vessels those registered under the respective laws of the parties. From 1920 to 1940, forty-four states concluded 151 agreements in which this standard of national laws and registry was used, and only four countries defined vessels of the contracting parties in a vague or different manner.” Hawkins, Commercial Treaties & Agreements 6 (1951).

108 2 Hackworth, Digest of International Law 207-208 (1941).

109 The waterways to which we are referring are those administered under special agreements, such as the Suez Canal and the Panama Canal. It will be recalled that Art. 1 of the Convention of Constantinople, 1888, explicitly provides that the Suez Canal “shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag.” 3 A.J.I.L. Supp. 123 (1909); Hallberg, The Suez Canal 407 (1931). The obligation of the United States with respect to the Panama Canal is somewhat less explicit. See Padelford, The Panama Canal in Peace and War 92 (1942), and 3 A.J.I.L. Supp. 128, 137 (1909).

If inquiry is extended to straits, then the decision in the Corfu Channel Case becomes relevant. It will be remembered that the decision of the International Court of Justice suggests that a condition of unfriendly relations short of war would not be sufficient to authorize the coastal state to deny access to foreign warships. Judgment of April 9, 1949, [1949] I.C.J. Rep. 4; 43 A.J.I.L. 558 (1949).

110 Hallberg and Padelford, op. cit. above, give the most detailed discussions of the two most important canals. See also Schonfield, The Suez Canal in World Affairs 128- 129 (1953).

111 Gross, , “Passage through the Suez Canal of Israel-Bound Cargo and Israel Ships,” 51 A.J.I.L. 530 (1957)Google Scholar.

112 Ibid.

113 Account of disputes involving the major fisheries of the world may be found in Fulton, The Sovereignty of the Sea (1911); Innis, The Cod Fisheries (rev.ed.,1954); Leonard, International Regulation of Fisheries (1944); Oda, “New Trends in the Regime of the Seas,” 18 Zeitschrift fur Ausländisches Öffentliches Recht und Völkerrecht 61, 68-86 (1957); Tomasevich, International Agreements on Conservation of Marine Resources (1943); Gregory and Barnes, North Pacific Fisheries 281-302 (1939).

114 Fulton, op. cit. above, at 728; see also Leonard, op. cit. above, at 48-55; Briggs, The Law of Nations 52-57 (2d ed., 1952).

115 Phleger, ‘’ Some Recent Developments Affecting the Regime of the High Seas,'’ 32 Dept. of State Bulletin 934 (1952); U.S. Naval War College, International Law Situation and Documents 1956, 289-294 (1957).

116 Although The Economist mistakenly, but perhaps understandably, concluded that the “resulting situation is an international lawyer's nightmare,” the multiple connections in the case were pithily described: ‘’ An Argentine citizen, of Greek origin, resident in Trance, and whose ships fly a Panamanian flag and carry German crews and British insurance, has been attacked at sea by Peru, which is supported by Ecuador and Chile.'’ The Economist, Nov. 27, 1954, p. 715.

117 2 Official Records 139; 52 A.J.I.L. 852 (1958). Art. 1, par. 1, provides in full: “All States have the right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal States as provided for in this Convention, and (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas.“

118 Art. 14. 2 Official Records 141; 52 A.J.I.L. 856 (1958).

119 Art. 7 of the convention permits unilateral adoption of conservation measures by a coastal state if negotiations with other states concerned have not produced agreement within six months. Provision is made for challenging the validity of these measures according to specified criteria, but the conservation program remains in force pending conclusion of the procedure provided for settling the dispute. 2 Official Records 140; 52 A.J.I.L. 853 (1958).

120 2 Official Records 141.

121 U.N. Legislative Series, Laws and Regulations on the Regime of the High Seas 251 (U.N. Doc. ST/LEG/SER. B/l) (1951); Wilson, Submarine Telegraphic Cables in Their International Relations 12-13 (1901) (Lectures delivered at the U. S. Naval War College).

122 Text of the note is in 40 Dept. of State Bulletin 555 (1959).

123 Arts. 27 and 28. 2 Official Records 138; 52 A.J.I.L. 849 (1958).

124 Art. 2 (4) of the Convention on the High Seas states, in summary of accepted customary law, that freedom of the high seas embraces inter alia “ freedom to fly over the high seas.” On the other hand, ICAO's “Rules of the Air“—pursuant to Article 12 of the Chicago Convention, the only standards of flight and maneuver in force over the high seas—prescribe: “The Rules of the Air shall apply to aircraft bearing the nationality and registration marks of a Contracting State . “ Rules of the Air, Annex 2, 2d ed., April, 1952, 2.1.

125 Convention on International Civil Aviation, signed at Chicago, Dec. 7, 1944. I.C.A.O. Doc. 7300; IT. S. Dept. of State Pub. 2282 (Conf. Ser. 64). The U. S. Federal Aviation Act of 1958, 72 Stat. 731 (Public Law 85-726, 85th Cong., S.3880), provides in Sec. 501 (a) for compulsory registration of aircraft. Par. (f) of the same section reads: “Such certificate of registration shall be conclusive evidence of nationality for international purposes… . “

126 There is, of course, a great body of prescriptions uniquely applicable when outbreaks of comprehensive violence occur, and the slogan ‘’ freedom of the seas ‘’ for many decades was most frequently used in such a context. See Potter, The Freedom of the Seas 81-96 (1924). See also Tucker, The Law of War and Neutrality at Sea (1957); Stone, Legal Controls of International Conflict (1954) ; 2 Oppenheim, International Law (7th ed., Lauterpacht, 1952).

It may be remembered, however, that the policies and factors relevant for determining the “enemy character” of ships and goods in time of war are very different from those relevant for determining the nationality of ships. The two types of problems have very little in common. Rienow, op. cit. note 61 above, at 130, and sources there cited; Mc- Nair, “The National Character and Status of Corporations,” 4 Brit. Tr. Bk. Int. Law 44-56 (1923-1924); see also The Unitas, [1950] A.C. 536.

127 See note 100 above.

128 For exposition and analysis, see McDougal, and Feliciano, , ‘’ Legal Regulation of Resort to International Coercion: Aggression and Self-Defense in Policy Perspective,” 68 Yale Law J . 1057 (1959).Google Scholar

129 The problem here is not that some other state's national character ought to be impressed upon a vessel, but that the flag state cannot be permitted to shift responsibility for the acts of its vessels. Tucker, The Law of War and Neutrality at Sea 38-41 (1957).

130 In The Jessie, The Thomas F. Bayard and the Pescawha, a case involving claims by Britain on behalf of British sealing vessels, the actions of the American vessel in stopping and searching the vessels on the high seas were not done with the authorization of the XT. S. Government, but the United States was held responsible. 6 Rep. Int. Arb. Awards 57 (1955); also reported in Briggs, Law of Nations 327-328 (2d ed., 1952); and see authorities cited ibid, at 328-330.

131 Corfu Channel Case, Judgment of April 9, 1949, [1949] I.C.J. Rep. 4 ; 43 A.J.I.L. 558 (1949).

132 40 Dept. of State Bulletin 558 (1959).

133 Thus, in another context requiring identification, Colombos states: ‘’ The nationality of a ship is one of the guarantees offered by international law for the freedom of navigation, and every ship which sails the high seas must possess a national character and be in a position to provide evidence of it. The possession of a nationality is the basis for the intervention and protection by a State; it is also a protection for other States for the redress of wrongs committed by those on board against their nationals.” International Law of the Sea 216 (3rd ed., 1954). Compare also 1 Gidel, Le Droit International Public de la Mer 74 (1932).

Professor Van Bogaert of the University of Ghent, noting that international law requires that every ship which navigates the high seas have a national character, states: “Cette obligation est basée sur la considération qu'un navire doit être soumis à un régime juridique determine, qui règle les relations à bord du navire, qui assure la protection éventuelle de la part de l'Etat du pavilion et qui rend cet Etat responsable envers les autres Etats pour les infractions eommises contre les règles du droit international public maritime.” “Le droit que possède l'Etat pour déterminer les conditions d'après lesquelles les navires ont le droit d'arborer son pavilion,” 35 Revue de Droit International et de Droit Comparé 485 (1958).

134 See Harvard Research in International Law, Piracy, 26 A.J.I.L. Supp. 739, at 757 (1932).

135 “ It is of considerable importance that there be no confusion about the significance of the proposition that pirates jure gentium are hostes humani generis. Is the jurisdiction universal because they are hostes humani generis, or are they said to be hostes “humani generis because the jurisdiction is universal? Does the proposition state a prerequisite or a consequence? Does it describe a constituent element of the offense of piracy or only a reprehensible quality or characteristic which the law attributes to pirates? It is evident that the applicability of the law of piracy to modern marauders on the sea, including the ‘hi-jackers,’ for example, may depend much upon the correct answers to these questions.” Dickinson, , “ Is the Crime of Piracy Obsolete?”, 38 Harvard Law Rev. 334, 351 (1924-1925).Google Scholar

136 Le Louis, [1817] 2 Dodson 210, 244.

137 18 U. S. (5 Wheat.) 153, 161 (1820). Similarly Mr. Justice Johnston in United States v. Bowers, ibid. 190 (1820), especially at 193, 194-195.

138 Report of the Sub-Committee of the Committee of Experts for the Progressive Codification of International Law 117 (League of Nations Pub. No. C. 196. M. 70. 1927. V; 20 A.J.I.L. Spec. Supp. 224 (1926)). See also Harvard Research in International Law, Jurisdiction with Respect to Crime, Art. 9, 29 A.J.I.L. Supp. 435 (1935) ; Johnson, “Piracy in Modern International Law,” 43 Grotius Society Transactions 63 (1959).

139 But Professor A. Pearce Higgins, stressing the “jurisdictional competence” of the state of national character over its ships on the high seas, seems to imply that even piracy does not constitute a derogation of this “general rule “ because it is, in fact, “denationalization” of the pirate ship which has become a hostis humani generis. Higgins, “ Le Régime juridique des navires de commerce,” 30 Hague Academy Recueil des Cours 5, at 18 (1929, V).

140 [1948] A.C. 351; 42 A.J.I.L. 953 (1948).

141 [1948] A.C. 351, at 369.

142 Ibid. at 369-370.

143 Rienow, The Test of the Nationality of a Merchant Vessel 15 (1937).

144 52 A.J.I.L. 844 (1958). See also note 140 above, and accompanying text.

145 Our criticism here is parcel of our more comprehensive criticism of the convention's emphasis upon documentation and flag rather than registration as indications of the attribution of national character. See below, pp. 101-103.

It may be added that in this context the word “ or “ in “save in the case of a real transfer of ownership or change in registry” probably is not to be interpreted as meaning “ that is to say.” For the ambiguities of this term, see Allen, “Toward a Procedure for Detecting and Controlling Syntactic Ambiguity in Legal Discourse,” An International Conference for Standards on a Common Language for Machine Searching and Translation, Cleveland, Ohio, Western Reserve University, Sept. 6-12, 1959; “ And / or , “ 18 A.B.A.J. 456 (1932); Note, “ In Defense of ‘And/or,’ “ 45 Yale Law J. 918 (1936).

146 For a brief summary of the United States attitude towards the establishment of an international penal jurisdiction with respect to suppression of slave-trading, see McDougal and Arens, “ The Genocide Convention and the Constitution,” 3 Vanderbilt Law Rev. 683, at 698-700 (1950); and Wilson, “Some Principal Aspects of British Efforts to Crush the African Slave Trade, 1807-1929,” 44 A.J.I.L. 505 (1950).

147 3 Hudson, International Legislation 2010 (1931).

148 Relevant articles are in U.N. Legislative Series, Supplement to Laws and Regulations on the Regime of the High Seas and Laws Concerning the Nationality of Ships 70 (U.N. Doc. ST/LEG/SEE. B/8) (1959).

149 Art. 13. See also Colombos, op. cit. note 133 above, at 341-345.

150 Even before the advent of explicit agreements, there were widely accepted uniform rules for regulating navigation upon the high seas. See The Scotia, 81 U. S. (14 Wall.) 170 (1871).

151 The most important multilateral agreements with respect to safety of navigation are the International Convention for the Safety of Life at Sea, 1948, in force since Nov. 19, 1952, the International Load Line Convention, 1930, and some of the I.L.O. conventions relating to the adequacy and competence of the crew and labor conditions on ships. As of Jan. 1, 1954, ocean navigation is regulated by the new International Regulations for Preventing Collisions at Sea, agreed upon at the 1948 International Conference on Safety of Life at Sea and attached to the Final Act of the conference as Annex B, commonly called the International Rules of the Road. These Rules have been adopted by more than fifty states, among them all the principal maritime Powers, including the U.S.S.R. “Most maritime countries follow the basic International Rules in their local waters as well as on the high seas, adding special rules to supplement the International Rules when local conditions so demand.'’ Farwell and Prunski, The Rules of the Nautical Road 11 (rev. ed., 1959). See also Reiff, The United States and the Treaty Law of the Sea 227 et seq. (1958). For a general survey of the maritime sessions of the International Labor Organization during the past four decades, see “Seven Maritime Sessions of the International Labour Conference,” 78 Int. Labour Rev. 429- 460 (1958). For texts of I.L.O. maritime conventions, see 1 International Labour Code 1951, Bk. IX (1952).

In addition to the above, the following agreements bear more importantly upon the safety of ocean navigation: International Code of Signals, Agreement concerning Maritime Signals, 1930; Convention for the Unification of Certain Rules of Law with respect to Assistance and Salvage at Sea, 1910 (Art. 11 in particular); and Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, 1910 (Art. 8 in particular).

152 Arts. 10 and 12.

153 U.N. Legislative Series, op. cit. note 148 above, at 33. The Geneva Convention on the High Seas contains some very general prescriptions on problems of pollution by nuclear materials. See the JAG Journal, April, 1959, for a useful survey of the legal problems involved in the use of nuclear-powered ships, including submarines.

154 Thus, for example with slight modifications, Arts. II, III, V, VII and X.

155 Art. X (1). Art. X (2) further provides: “Upon receiving such particulars the latter Government [i.e., of ship's nationality] shall investigate the matter, and may request the former Government to furnish further or better particulars of the alleged contravention. If the Government in the territory of which the ship is registered is satisfied that sufficient evidence is available in the form required by law to enable proceedings against the owner or master of the ship to be taken in respect of the alleged contravention, it shall cause such proceedings to be taken as soon as possible… . “

156 See, e.g., British Oil in Navigable Waters Act, 1955, Art. 14 (1). U.N. Legislative Series, op. cit. note 148 above, 37 at 39-40.

157 McDougal, and Schlei, , “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” 64 Tale Law J. 648 (1955)Google Scholar, establishes the case for the lawfulness of the hydrogen bomb tests in terms of the law of the sea. For other views see Margolis, “The Hydrogen Bomb Experiments and International Law,” ibid. 629; Gidel, “Explosions Nucléaires Expérimentales et Liberté de la Haute Mer,” in Grundprobleme des Internationalen Eechts: Festschrift für Jean Spiropoulos 173 (1957), commented upon in MeDougal and Burke, “Crisis in the Law of the Sea: Community Perspectives versus National Egoism,” 67 Yale Law J. 539, 547, note 28 (1958).

158 McDougal and Schlei, loc. cit. above, at 694-695.

159 By distinguishing between events which affect the public order of the ship and those which do not, we intend only to emphasize the special interest of the flag state in certain events. The events on board a ship on the high seas are components of larger community processes, and states other than the flag state may be concerned with their impact, as, for example, upon their nationals. Thus, such states may in appropriate eases reasonably assert a concurrent competence even with respect to events primarily affecting the public order of the ship. Our distinction merely seeks to secure that the unique character and impacts of events on board ship be given appropriate policy consideration.

The famous case which is associated with recognition of this concurrent competence is, of course, that of The Lotus, decided by the Permanent Court, P.C.I.J., Ser. A, No. 10 (1927). Art. 11 of the Convention on the High Seas reverses the specific holding of the Lotus Case, but does not disturb its more general significance.

160 While rejecting the usefulness of the “fiction of territoriality” of merchant vessels, Professor Higgins nevertheless states: “ II y a done des liens fitroits entre le naviro et l'Etat dont il acquiert la nationalité et ces liens entraînent comme conséquence 1'application aux navires de la législation du pays du pavilion. C'est en vertu de cette législation que le capitaine exerce son autorité et qu'il la fait respecter. Le navire peut être un objet mobilier, un bien meuble, mais il est régi par des lois spéciales, et il est universellement admis qu'en haute mer, il doit échapper à tout contrôle autre que celui des autorités du pays du pavilion.” Loc. cit. note 139 above, at 18. See also St. Clair v. United States, 154 U. S. 134, at 152 (1894).

161 U.N. Legislative Series, Laws Relating to Jurisdiction over Crimes Committed Abroad or on the High Seas (U.N. Doc. ST/LEG/SEE. B/2) (1952), and Supplement (U.N. Doc. ST/LEG/SEE. B/8) (1959).

162 See, e.g., Colombos, op. cit. note 133 above, at 222; Smith, The Law and Custom of the Sea 61 (3d ed., 1959); Fenwick, International Law 311 (3d ed., 1948).

A most recent confirmation of the competence of a state to apply its authority to events occurring on board vessels having its national character is provided by the decision in E. v. Governor of H. M. Prison Brixton, ex parte Minervini, [1958] 3 All E.E. 318; digested in 53 A.J.I.L. 447 (1959). An Italian national serving on board a Norwegian vessel murdered a fellow crewman during a voyage of the vessel and was subsequently arrested in England. In the ensuing proceedings, following a request by Norway for extradition on the basis of the Treaty of Extradition between the two countries, Lord Parker, C.J., ruled that the word “ territory “ as applied in the treaty should be interpreted as meaning “jurisdiction,” and consequently Minervini's crime should be dealt with as if it had been committed in Norway. In conclusion, Lord Parker said: “Accordingly, it seems to me that it matters not in this case whether the ship was in the middle of the North Sea, in the territorial waters of Norway, in the territorial waters of this country or in the territorial waters of any other Power; the Norwegian government had jurisdiction, and that is sufficient to enable these proceedings to be brought.” [1958] 3 All E.E. at 321.

With respect to aircraft Kamminga observes: “ With regard to breaches of discipline on board the aircraft, it is fairly generally agreed that these must be judged solely by the State whose nationality the aircraft possesses.” The Aircraft Commander in Commercial Air Transportation 34 (1953). For more detail see pp. 136, 146 et seq.

163 Restatement, The Foreign Relations Law of the United States (Tentative Draft No. 2), § 17 at 43 (1958). The relevant provisions of the Restatement read: “17. A state has jurisdiction to prescribe rules governing: (a) The conduct of all persons aboard national vessels while under the control of their commanding officer; … “ (Ibid, at 42.) “ 1 8 . A state has jurisdiction to enforce rules governing the conduct of persons: (a) Aboard its national vessels while under the control of their commanding officer; … “ (Ibid, at 44.)

164 1 Hyde, International Law 800-801 (2d rev. ed., 1945).

165 120 U.S. 1, 18 (1887). When the public order of a vessel upon the high seas is threatened by a member of the crew or a passenger, the captain may immediately apply authority in order to protect life and property entrusted to him. In The Condor, Judge Hand stated with respect to the rô1e of the captain: “Discipline on the sea is not like that on the land in ordinary industrial employments. The relations between master and men require an authority which is not necessary when both parties have immediate recourse to constituted authority. No doubt countless misery and brutality has arisen from the exercise of master's authority; but the substance of that authority still remains in civilized countries, and must remain, if men are put to sea for weeks, out of reach of the usual methods of keeping order.” 196 Fed. 71, 74 (1912). For a more comprehensive coverage of this question see 1 Norris, Law of Seamen 82 et seq., Chs. 23 and 25 (1951).

166 For an excellent survey of such relevant factors, see Lauritzen v. Larsen, 345 U. S. 571 (1953), and Romero v. International Terminal Operating Co., 358 U. S. 354 (1959). For a thoughtful discussion of the problem, consult Bickel, “The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty,” 35 Cornell Law Q. 12 (1949); Gilmore and Black, The Law of Admiralty 46-47 (1957). See also 2 Babel, Conflict of Laws 346-351 (1947).

167 Colombos, op. cit. note 133 above, at 234. See also 1 Beale, A Treatise on the Conflict of Laws 287-288 (1935).

168 Reference is made to the I'm Alone Case and the events connected with exclusion of trawling from Moray Firth, discussed above, pp. 62, 70.

169 It is generally agreed that coastal states have full authority to prescribe and apply policy to events on board vessels in ports, except as agreements may limit coastal discretion. See Jessup, The Law of Territorial Waters and Maritime Jurisdiction 144- 194 (1927), and the numerous works there cited; Wildenhus’ Case, 120 II. S. 1 (1887); for more recent practice see 2 Hackworth, Digest of International Law 208-224 (1941); The Lone Star, 1947 Annual Digest 84-90 (1951); Master Amiruzzaman and Others v. The Crown, 1953 Int. Law Rep. 171-172 (1957); Silberwacht v. Attorney General, ibid. at 153, 154-155; and American Law Institute, Restatement, op. cit. note 163 above, $ 34.

170 Provision for competence over events on board foreign merchant vessels in port is commonly made in consular agreements. For illustrative provisions see U. S. agreements with the Philippines, Costa Rica, and the United Kingdom in 45 U.N.T.S. 38 (1949), 70 ibid, at 50 (1950) and 165 ibid, at 152-154 (1953).

171 See sources cited in note 169 above.

172 Denial of access may be absolute, as in denial of innocent passage, or qualified, as in denial of passage that is allegedly non-innocent, but we do not differentiate these claims here because policy for present purposes is unaffected by the difference. For prescriptive formulations see Art. 14 and Art. 16(3) of the Convention on the Territorial Sea and Contiguous Zone, in 2 Official Records 133-134; 52 A.J.I.L. 837, 838 (1958).

173 The most important and authoritative secondary sources customarily used for reference upon territorial sea problems are: Fulton, The Sovereignty of the Sea (1911); Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Bustamante, The Territorial Sea (1930); 3 Gidel, Le Droit International Public de la Mer (1934); Raestad, La Mer Territoriale (1913); and the compilation in Crocker, The Extent of the Marginal Sea (1919).

174 Selak, , “Fishing Vessels and the Principle of Innocent Passage,” 48 A.J.I.L. 627 (1954).Google Scholar

175 Jessup, The Law of Territorial Waters and Maritime Jurisdiction 137-141 (1927); 1 Oppenheim, International Law 495 (8th ed., 1955, Lauterpacht); Restatement, cited note 163 above, § 36 (2) and Comment (c) to § 36 at 111 and 113.

176 The International Convention Relating to the Arrest of Seagoing Ships, opened for signature on May 10, 1952, has been ratified by a few states, and relates to the arrest of vessels “flying the flag of a Contracting State in the jurisdiction of any Contracting State” for certain specified maritime claims. For text see U. S. Naval War College, International Law Situation and Documents 1956, 566 (1957); 53 A.J.I.L. 539 (1959).

177 The general conception prevailing among international lawyers is that the coastal state is not authorized to arrest a vessel passing through the territorial sea except “in respect of obligations or liabilities assumed or incurred by the ship itself in the course of or for the purpose of its voyage through the waters of the coastal State.” Convention on the Territorial Sea and Contiguous Zone, Art. 20(2), 2 Official Records 134. The 1952 Convention, if interpreted to extend to ships in passage, would permit arrests for a much broader category of claims.

178 Compañía de Navegación Nacional (Panama) v. United States, in Report of B. L. Hunt, American and Panamanian General Claims Arbitration 765 (1934) (Dept. of State Arbitration Series, No. 6); 6 Rep. Int. Arb. Awards 382 (1955); 28 A.J.I.L. 596 (1934); Jessup, , “Civil Jurisdiction over Ships in Innocent Passage,” 27 A.J.I.L. 747 (1933).Google Scholar

179 Art. 19 of the Convention on the Territorial Sea and Contiguous Zone is the most recent authoritative formulation on this point. Art. 19 provides for coastal competence which is more limited than that which states claim in ports. Compare the provisions of Art. 19 with the sources cited above, note 169.

180 Jessup, op. cit. note 175 above, 211-238, reviews some of the counterclaims; and see Jones, The Eighteenth Amendment and Our Foreign Relations (1933).

181 Jessup, op. cit. note 175 above, at 241-276.

182 See Arts. 1, 2, 3, 5 and 6 of the Chicago Convention on International Civil Aviation. For details, see Wassenbergh, Post-War International Civil Aviation Policy and the Law of the Air (1957).

183 Jessup, op. cit. note 175 above, passim; Riesenfeld, The Protection of Coastal Fisheries under International Law (1942); Leonard, International Regulation of Fisheries 9-11 (1944).

184 Leonard, op. cit. above, at 12-34.

185 Fulton, op. cit. note 173 above, 721-728.

186 Notes 203 and 204 below, and accompanying text.

187 For review of policies and controversies consult 3 Gidel, op. cit. note 173 above, at 361-489; McDougal and Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” 64 Yale Law J. 648, at 666-681 (1955); Yntema, “Validity of Hovering Legislation in International Law,” in Hearings before the House Committee on Ways and Means on H. E. 5496, 74th Cong., 1st Sess., pp. 82-124 (1935).

188 See note 78 above.

189 The Commissioners noted three potential effects upon the Canadian claim of “indirect ownership and control” by American citizens: “whether it would be an answer to the Claim under the Convention, or whether it would go to mitigation of damages, or whether it would merely be a circumstance that should actuate the claimant Government in refraining from pressing the claim in whole or in part . “ 3 Rep. Int. Arb. Awards 1611, 1614 (1949).

190 Ibid. at 1617-1618.

191 This case has been interpreted to stand for the proposition that the state may not extend “protection” where ownership and control rests in the hands of citizens of another state. See Watts, loc. cit. note 75 above. The confusion which led to this misunderstanding of the I'm Alone Case appears to arise from failure to note that the Tribunal, in refusing to require payment for the loss of the vessel and cargo, was merely giving effect to its finding of U. S. ownership and control by mitigating damages, as it suggested it could do in its Interim Report, but was not suggesting that Canada should refrain from pressing the claim, an alternative the Commissioners also thought might follow from this fact. Indeed, the requirement of payment to the Canadian Government would seem to underscore the right of that state to assert claims on behalf of vessels of its national character, irrespective of ownership. In any event, if the fact of American ownership and control had been thought to warrant denial of Canada's right to press a claim against the United States, as Mr. Watts suggests the Commissioners decided, it is reasonable to suppose that the Commissioners could have found a better way to express this conclusion than in requiring the United States to pay Canada $25,000 for sinking the I'm Alone.

192 Brazil and Yugoslavia (U. S. Naval War College, International Law Situation and Documents 1956, 444, 500-501 (1957)); the claims of Chile, Ecuador and Peru are also illustrations, if one accepts the contention of these states that their 200-mile claims were not efforts to widen the territorial sea. 1 Verbatim Record of Debate in the 6th Committee of the General Assembly 32 (U.N. Doc. A/Conf.13/19) (1957). And see 2 Official Records 6-7, 32-33, 61-62, for statements by representatives of these states seeking to emphasize the ‘ ‘ limited'’ authority claimed in the 200-mile zones.

193 See Report of the First Committee, 2 Official Records 115.

194 U.N. Doc. A/Conf. 13/L.29, in 2 Official Records 125-126. In Plenary Session this proposal received 45 affirmative votes, with 33 against, and 7 abstentions. 2 Official Records 39. The Canadian proposal, also providing for an exclusive fishing zone beyond the territorial sea but without mentioning a limit for the latter, was approved in the First Committee, and in Plenary Session received 35 favorable votes, with 30 against, and 20 abstentions. Ibid.

195 Hurst, “Whose is the Bed of the Sea ? “ 4 Brit. Yr. Bk. Int. Law 34 (1923- 1924); Monton, The Continental Shelf 138-161 (1952); “Waldock, “ The Legal Basis of Claims to the Continental Shelf,” 36 Grotius Society Transactions 115, 118 (1951). See also Art. 2, Convention on the Continental Shelf, 2 Official Records 142; 52 A.J.I.L. 858 (1958).

196 The Proclamation of Sept. 28, 1945, perhaps made limited assertion of exclusive competence, since the U. S. offered to establish conservation zones by agreement with the states where fishing “activities have been or shall hereafter be legitimately developed by nationals of the United States and nationals of other States… . “ The exclusive claim seems to reside in the instance where the fishing activities had been maintained solely by Americans, and others later sought to enter the same fishery. For text, see U. S. Naval War College, International Law Situation and Documents 1956, 434-435 (1957); 40 A.J.I.L. Supp. 46, 47 (1946). See Bingham, “The Continental Shelf and the Marginal Belt , “ 46 A.J.I.L. 173 (1946).

197 Convention on Fishing and Conservation of the Living Resources of the High Seas, 2 Official Records 139; 52 A.J.I.L. 851 (1958).

198 Leonard, International Regulation of Fishing (1944); Fulton, The Sovereignty of the Sea 604-649, 694-698 (1911); Tomasevich, International Agreements on Conservation of Marine Resources (1944).

199 Tomasevich, op. cit. at 87; Leonard, op. tit. at 49, 90, 104-106.

200 U.N. Secretariat, Memorandum on the Regime of the High Seas 44 (U.N. Doc. A/CN.4/32) (1950).

201 Leonard, op. cit. note 198 above, at 38-39, 91, 111-112.

202 2 Official Records 141.

203 Judgment of Dec. 18, 1951, [1951] I.C.J. Rep. 116; 46 A.J.I.L. 348 (1952). Waldock, “ T h e Anglo-Norwegian Fisheries Case,” 28 Brit. Yr. Bk. Int. Law 114, 117- 124 (1951), outlines the historical background of interference by Norway with foreign vessels.

204 Indeed, practically all objections to exclusive fishing claims relate to the boundary problem. See Riesenfeld, op. cit. note 183 above, at 146, 157; Fulton, op. cit. note 173 above, at 650-740. The North Atlantic Fisheries Case and the Anglo-Norwegian Fisheries Case both dealt principally with delimitation of sea boundaries. Difficulties over disputed extensions of the territorial sea so affected American fishermen that legislation was adopted in 1954 for reimbursing fines imposed upon them when the United States did not recognize the rights asserted by the claiming state. 68 Stat. 883.

Desirable community policy concerning the width of the territorial sea, with detailed examination of factors relevant to policy with respect to exclusive fishing rights, is discussed in McDougal and Burke, “ The Community Interest in a Narrow Territorial Sea: Inclusive versus Exclusive Competence over the Oceans,” 45 Cornell Law Quarterly, No. 2 (Winter, 1960).

205 Wolff, , Private International Law 64-72 (2d ed., 1950); Dicey's Conflict of Laws 213-214 (7th ed., gen. ed., Morris, 1958).Google Scholar

206 Jessup, “Civil Jurisdiction over Ships in Innocent Passage,” 27 A.J.I.L. 747 (1933). Art. 20(2) of the 1958 Convention on the Territorial Sea and Contiguous Zone provides for a very limited coastal competence to levy execution upon or to arrest a ship for a civil proceeding while it is merely passing through the territorial sea between outside points. 2 Official Records 134; 52 A.J.I.L. 839 (1958).

207 Wolff, op. cit. note 205 above, at 54, 60-61; Coffey, , ‘’ Jurisdiction over Foreigners in Admiralty Courts,” 13 Calif. Law Rev. 93, 99 (1925).Google Scholar

208 Wolff, op. cit. note 205 above, at 74; Robinson, Admiralty Law 14-20 (1939); Coffey, loc. cit. above, at 94.

209 Coffey, loc. cit.

210 Gilmore and Black, The Law of Admiralty 46-47 (1957).

211 Wolff, op. cit. note 205 above, at 74; Dicey, op. cit. note 205 above, at 213-214; Coffey, loc. cit. note 207 above, at 94.

212 Arts. 1 and 8. The text of the treaty is in U. S. Naval War College, International Law Situation and Documents 1956, 566 (1957), and 53 A.J.I.L. 539 (1959).

213 More specific illustration would mention, for instance, the effects of contracts and torts occurring within another territorial community, taxation of nationals and nonnationals, labor-management relations, and entry of persons and goods.

214 This involves a claim not only to apply policy but also a claim to decide that it is local policy which is applicable. The general subject matter embraces all of private international law. See, generally, Wolff, op. cit. note 205 above; Katzenbach, “Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law , “ 65 Yale Law J . 1087 (1956); Ehrenzweig, Conflict of Laws (1959).

215 Comment, “ ‘ A c t of State’ Immunity,” 57 Yale Law J.108 (1947-1948); Wolff, op. cit. note 205 above, at 249-274; Comment, “ The Jurisdictional Immunity of Foreign Sovereigns,” 63 Yale Law J.1148 (1954); Katzenbach, 65 Ibid. at 1128-1132 (1956).

216 Yntema, , “The Objectives of Private International Law,” 35 Canadian Bar Rev. 721, 741 (1957).Google Scholar

217 Ibid, at 735.

218 345 U.S. 571, 582 (1953); 47 A.J.I.L. 711 (1953). For discussion generated by this decision, see Gilmore and Black, The Law of Admiralty 386-394 (1957). See also 2 Norris, The Law of Seamen 348-361 (1952) and 1958 Cumulative Supp. 147-149.

219 79 S. Ct. 468, 486; 358 U. S. 354, 384 (1959). The impact of the genuine link requirement upon application of American labor legislation to foreign flag vessels is being contested by labor and ship-owning groups. See Memorandum to the Department of State and to the General Counsel of the National Labor Relations Board from the American Committee for Flags of Necessity, Oct. 30, 1959. See, for reply to this Memorandum, Reply Brief of Charging Party in West Indies Fruit and Steamship Company, Inc. and Seafarers’ International Union of North America, Atlantic and Gulf District, AFL-CIO, N.L.E.B. Case No. 15-CA-1454, dated Dec. 10, 1959.

For an excellent, comprehensive inquiry into the problem of American labor laws and flags of convenience, with explicit weighing of inclusive and exclusive interests, see Comment, “ The Effect of United States Labor Legislation on the Flag of Convenience Fleet: Regulation of Shipboard Labor Relations and Remedies Against Shoreside Picketing,” 69 Tale Law J. 498 (1960).

220 “with respect to state vessels, those engaged in commerce are, of course, registered, whereas warships are recorded in special naval lists.

221 Williams, “Function of Evidence in Roman Law,” 20 Law Magazine & Review 73 (4th ser.), quoted in Rienow, op. cit. note 143 above, at 155.

222 Abbott, A Treatise on the Law Relative to Merchant Ships and Seamen 35, note (c) (1822); Desjardins, Introduction historique à l'étude du droit commercial maritime 157 (1890). For details with respect to these Navigation Acts see Reeves, History of the Law of Shipping and Navigation (1792). A critical appraisal of the human and other factors behind this British experiment is provided by Harper, The English Navigation Laws (1939).

223 The current text provides: ‘’ Vessels registered pursuant to law and no others, except such as shall be duly qualified according to law for carrying on the coastal or fishing trade, shall be deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels … “ 46 U.S.C. § 221 (1952).

In the Merritt Case, the Supreme Court of the United States unequivocally declared: “The Merritt is not a vessel of the United States [T]hat she was owned by citizens of the United States did not make her a vessel of the United States. By the statute of 1792 only ships which have been registered in the manner therein prescribed shall be denominated or deemed vessels of the United States, entitled to the benefits or privileges appertaining to such ships. There is no allegation that the Merritt had been so registered.” 84 U. S. (17 Wall.) 582, 585 (1873).

224 70 U. S. (3 Wall.) 566, at 571 (1865).

225 Thus Higgins observes: “ La seule condition qui soit généralement exigée dans tous les pays, c'est 1'inscription du navire sur le registre tenu par les autoritfis designees à cet effet… . “ Higgins, ‘’ Le Régime Juridique des Navires de Commerce,'’ 30 Hague Academy Recueil des Cours 21 (1929, V). Similarly, Diena, at one time “Vice Chairman of the League of Nations Committee for the Codification of International Law, “Principes du Droit International Privé Maritime,” 51 Hague Academy Recueil des Cours 409. at 426 (1935, I ) .

226 United Nations Legislative Series, Laws Concerning the Nationality of Ships (U.N. Doc. ST/LEG/SER.B/5) (1955), and Supplement to Laws and Regulations on the Regime of the High Seas and Laws Concerning the Nationality of Ships 113 et seq. (U.N. DOC. ST/LEG/SER.B/8) (1959).

Similarly aviation statutes of numerous countries require registration. Thus the Air Transport Act (Luftfahrgesetz) of Austria of Dec. 2, 1957, provides in Art. 15 ( 1 ): “Sont de nationalité autrichienne tous les aeronefs civils enregistres au registre des aéronefs (§ 16) ‘ainsi que tous les aéronefs de l'Armée fédérale. lis doivent porter les signes distinctifs autrichiens.” 12 Rev. Françhise de Droit Aérien 358, 362 (1958).

227 It will be recalled that countless international treaties of commerce and navigation accept the ascription of the party's nationality to a vessel as conclusive. However, in some postwar American commercial agreements there is a clause which allows the contracting parties to deny the benefits of the agreement to companies in which the controlling interest belongs to nationals of a third country, not a party to the agreement. Commenting upon the meaning of such a clause, Mr. Walker, an official of the Department of State, observes: “ I t cannot be invoked in a manner to deny recognition of nationality and legal existence, or of access to courts, regardless of the dominant real interests in the company.” Walker, “Provisions on Companies in United States Commercial Treaties,” 50 A.J.I.L. 373, 388 (1956). Mr. Walker even suggests that the policy of conclusiveness has proved so advantageous with respect to ships that it might be appropriately employed in greater degree with respect to companies.

228 5 Hudson, International Legislation 639 (1936).

229 Jenks, , ‘'Nationality, the Flag and Registration as Criteria for Demarcating the Scope of Maritime Conventions,” 19 Journal of Comp. Leg. and Int. Law 245 (1937).Google Scholar

230 Ibid.

231 Ibid. at 252.

232 Laws Concerning the Nationality of Ships, op. cit. note 226 above, at 162-163. The Chinese Shipping Registration Act of 1930 (as amended in 1946 and 1947) is even more explicit:

“Article 2. A ship shall be registered by the shipping office of its home port. “Article 3. All matters relating to the preservation, creation, transfer, variation, limitation, disposal or extinction of the following interests in ships shall be registered:

(a) Ownership;

(b) Charges;

“Article 4. A registerable claim relating to a ship shall not lie against a third party unless it has been registered.” Ibid, at 24.

Compare also corresponding acts of Finland (p. 50), Greece (p. 68), Ethiopia (p. 47), Norway (p. 124).

233 4 Official Records 67. It is possible that the International Court of Justice may give an opinion on the significance of registration for national character in connection with the decision of the Inter-Governmental Maritime Consultative Organization (IMCO) on constituting its Maritime Safety Committee. The IMCO decided at its inaugural session in 1959 that for purposes of membership on this Committee the requirement of its constitution that at least eight members must be the “largest shipowning nations” was not to be interpreted to refer to the amount of tonnage registered but rather to the amount of tonnage owned by a state or its nationals. The practical effect of this decision was to exclude Panama and Liberia from membership on the Committee. The IMCO then agreed to ask the International Court for an advisory opinion on the question whether the Committee had been constituted in accordance with the IMCO Convention. See Jessup, “ T h e United Nations Conference on the Law of the Sea,” 59 Columbia Law Rev. 234, 257 (1959).

234 2 Chalmers, A Collection of Treaties between Great Britain and Other Powers 13-14 (1790).

235 2 ibid, at 404.

236 1 Gidel, op. cit. note 173 above, at 89-90.

237 81 r j . S. (17 Wall.) 582, 587 (1873).

238 Art. 6 of the Shipping Act of Japan of 1899, amended to 1954, contains a typical provision: “ … no Japanese ship may wear the Japanese national flag or be operated before the certificate of nationality … has been applied for and obtained.” Laws Concerning the Nationality of Ships, op. cit. note 226 above, at 91.

239 l Gidel, op. cit. note 173 above, at 84. In Badger v. Gutierez, Mr. Justice Miller said: “ It is to be understood that every vessel of the United States, which is afloat, is bound to have with her, from the officers of her home port, either a register or an enrolment… . If found afloat, whether by steam or sail, without one or the other of these, and without the right one with reference to the trade she is engaged in, or the place where she is found, she is entitled to no protection under the laws of the United States, and is liable to seizure for such violation of the law, and in a foreign jurisdiction or on the high seas, can claim no rights as an American vessel.” III U. S. 734, at 736-737 (1884).

240 Colombos, op. cit. note 133 above, at 221; Fedozzi, “ L a Condition Juridique des Navires de Commerce,” 10 Hague Academy Recueil des Cours 5, 49-50 (1925, V ) ; 1 Oppenheim, op. cit. note 175 above, at 596.

241 One of the reasons for the high reliability of ship's documents is the severe penalties which national shipping laws provide for fraudulently obtaining and falsifying such documents. 18 U.S.C. § 507 (1958); 46 U.S.C. $ 60 (1952).

242 1 Oppenheim, op. cit. note 175 above, at 595; see also decision in the Montijo dispute between the United States and Colombia, 2 Moore, Digest of International Arbitrations 1421 (1898), discussed below, p. 113.

243 Laws Concerning the Nationality of Ships, op. cit. note 226 above, at 86.

244 Thus, Higgins says: “ Le pavilion n ‘est que le signe evident de la nationalité du navire, il ne sufflt pas pour la prouver.'’ Higgins, loc. cit. note 225 above, at 20.

245 Laws Concerning the Nationality of Ships, op. cit. note 226 above, at 184.

246 Colombos, International Law of the Sea 218 (3rd ed., 1954).

247 Art. 30(2), Shipping Act, 1878. Laws Concerning the Nationality of Ships, op. cit. note 226 above, at 20.

248 l Oppenheim, op. cit. note 175 above, at 597.

249 François, Report on the High Seas 6 (U.N. Doe. A/CN.4/17) (Report to Int. Law Commission, 1950).

250 François, Second Report on the High Seas 4 (U.N. Doe, A/CN. 4/42) (1951).

251 Ibid, at 7-8.

252 U.N. General Assembly, 11th Sess., Agenda Item 53, p. 29 (1956-1957).

253 ‘'Article 5. Right to a Flag. Each State may fix the conditions for the registration of ships in its territory and the right to fly its flag. Nevertheless, for purposes of recognition of its national character by other States, a ship must either:

1. Be the property of the State concerned; or

2. Be more than one-half owned by:

(a) Nationals or persons legally domiciled in the territory of the State concerned and actually resident there; or

(b) A partnership in which the majority of the partners with personal liability are nationals of or persons legally domiciled in the territory of the State concerned and actually resident there; or

(c) A joint stock company formed under the laws of the State concerned and having its registered office in the territory of that State." International Law Commission Eeport, IT.N. General Assembly, 10th Sess., Official Eecords, Supp. No. 9 at 4 (U.N. Doc. A/2934) (1955); 50 A.J.I.L. 190, at 196 (1956).

254 International Law Commission Report, U.N. General Assembly, 11th Sess., Official Records, Supp. No. 9, at 24 (U.N. Doc. A/3159) (1956); 51 A.J.I.L. 154, at 168 (1957).

255 We cite page numbers in the text from 1 International Law Commission Yearbook 1956 (Sales No.: 1956, V. 3. Vol. 1).

256 As an indication of the confusion, the principal commentator on this aspect of the work of the Commission, Mr. Watts, apparently interpreted the Commission's references to a genuine link as meaning ‘'ownership.'’ Thus, rejecting the nationality of ships as the “basis for protection,” he concluded: “Since the right of a State to protect a vessel depends upon its owner being a person whom that State may protect, any particular question concerning the right to protect a given ship can only be answered by considering the exact standing of its owner.” Watts, , “The Protection of Merchant Ships,” 33 Brit. Yr. Bk. Int. Law 79 (1957).Google Scholar

257 Voted upon separately, the requirement of genuine link received in the Commission 9 affirmative votes against 3 negative ones and 3 abstentions. 1 Yearbook, op. cit. note 255 above, at 72.

258 4 Official Records 26.

259 lbid. 34-35.

260 Ibid. 62.

261 Ibid. 64.

262 Ibid. Another recent exercise in interpretative frustration with respect to the content of genuine link is provided in Brajkovic and Pallua, “Les conditions dans lesquelles les Etats accordent aux navires le droit d'arborer le pavilion national,” International Academy of Comparative Law, Vth International Congress of Comparative Law, Sec. IV. C. 1, General Report, Bruxelles (1958). Having established that the genuine link formula requires “comparative investigation” (p. 7), the authors, referring to the vagueness of the available and suggested criteria, note: “Le fait qu'on n'a pas limites défini façon stricte permet une assez grande liberty de choix des critères admissibles.” Ibid, at 16.

263 4 Official Records 64-65.

264 Sørensen, The Law of the Sea 204 (International Conciliation, Pamphlet No. 520, 1958).

265 Ibid, at 205.

266 Ortolan, Règies internationales et diplomatie de la mer 167 (4th ed., 1864). For a modern statement with respect to these policies see Van Bogaert, “ L e Droit que Possede l ‘ Etat pour Determiner les Conditions d'apres Lesquelles les Navires ont le Droit d'Arborer son Pavilion,” 35 Rev. de Droit International et de Droit Comparé 485, at 486-487 (1958).

267 Rienow, The Test of the Nationality of a Merchant Vessel 116 (1937).

268 Hawkins, Commercial Treaties and Agreements 6 (1951). Writing on the same subject, Walker states: “ A vessel, by definition, is deemed to have the nationality of the country whose flag it lawfully flies, without reference to such questions as who owns it or where it was built … “ Walker, “Provisions on Companies in United States Commercial Treaties,” 50 A.J.I.L. 373, at 382 (1956).

269 1 Hyde, International Law 810 (2d rev. ed., 1945).

270 An 18th-century author had this to say with respect to the policies which were to be promoted by the enactment of the British Navigation Act of 1651: “The great object of jealousy at the time of passing this Act was the immense carrying trade possessed by the Dutch… . The portion of the carrying trade with our colonies, which the Dutch had obtained, was the most serious grievance, and that which the nation bore with least patience… . The ordinance sets out with a regulation that was to strike at this abuse.” Reeves, History of the Law of Shipping and Navigation 37 (1792). See also a more recent appraisal, Chorley and Giles, Shipping Law 3 (3d ed., 1952).

271 Thus Professor Smith writes: “English law requires the complete legal ownership to be vested in British subjects, but this requirement is of less value than might appear, since it does not exclude ownership by a British company in which the controlling interest is held by foreigners.” The Law and Custom of the Sea 64 (3d ed., 1959). Higgins puts it this way: “Lorsque, comme c'est souvent le cas, le navire est la propriété d'une société, il n'est pas toujours aisé de déterminer la nationalité de cette société .” Loc. cit. note 225 above, at 21.

272 Quoted in Rienow, op. cit. note 267 above, at 92.

273 Ibid, at 24-49.

274 See 46 U.S.C. §11 (1952). However, foreign-built vessels may be registered but are not allowed to engage in United States coastwise trade. Ibid. With respect to both France and Portugal, the statutes of these countries which require national construction contain escape-clauses making this requirement rather illusory. For France, see 1 Ripert, Droit Maritime 301 (4th ed., 1950); for Portugal, compare Arts. 2 and 3(1) of the Shipping Act of 1863, in Laws Concerning the Nationality of Ships, op. cit. note 226 above, at 145-146.

275 Rienow, op. cit. note 267 above, at 73.

276 The Montijo, 2 Moore, Digest of International Arbitrations 1421 (1898) (Decision of the Umpire of July 25, 1875).

277 Ibid, at 1433.

278 ibid, at 1434.

279 Annuaire 202 (1896) (translation from U.N. General Assembly, Official Records, Agenda Item 53, at 29).

280 A foretaste of the wide possibilities for abuse which the doctrine of genuine link provides is afforded by a news item reporting the first concrete application of this innovation. The report states that the U.S.S.R. has issued an order which imposes upon all ships flying supposed flags of convenience harbor fees approximately three times higher than those applicable to vessels of traditional maritime countries. New York Times, Aug. 31, 1958, § 5, p. 11. Since it is commonly known that some 40 percent of these ships are owned by American corporations, it is easy to see that the genuine link's first practical test has taken place on the cold-war battlefield.

281 Some degree of recognition of the perils inherent in the ‘'genuine link'’ doctrine is to be seen in the outcome of the vote taken in the Plenary Session of the Geneva Conference upon the words “for purposes of recognition of the national character of the ship by other States.” These words received the support of only 15 states, whereas 30 states voted against them, and 17 abstained, out of a total of 86 states attending the conference. 2 Official Records 20.

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