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Territorial Waters as a Test of Codification

Published online by Cambridge University Press:  04 May 2017

Richard W. Hale
Richard W. Hale*
Affiliation:
Of the Boston Bar
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Extract

On March 13,1930, a conference will meet at The Hague to make progress in the codification of international law about territorial waters. Implicit in the plans for this meeting are two assumptions. The first, that it is better to codify the law rather than to follow the road traveled by the American Law Institute and “ restate” it. The second, that codification may more wisely be expressed in spatial than in causal terms. As to the first assumption, is it right? As to the second, it is submitted that, irrespective of whether one is drafting a custom or a code, the particular subject of territorial waters should be examined and set forth in causal rather than in spatial terms. It is submitted that the law of territorial waters has been, is, and in its nature must remain a thing of custom, not statute or treaty, and that any attempt to treat it differently will have the effect which thirtyfour years ago the late F. W. Maitlan prophesied was to be expected from the excesses of restricting by putting enactments into constitutions in the United States. “ First,” he said, “ you will get the effect of a dam,—and then you will get the effect of a flood.” Both have been seen.

Type
Research Article
Information
American Journal of International Law , Volume 24 , Issue 1 , January 1930 , pp. 65 - 68
Copyright
Copyright © American Society of International Law 1930

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References

1 No. C. 74. M. 39. 1929. V. Publication of League of Nations, May 15, 1929, gives the preparatory Bases of Discussion. Also in Supplement to this Journal, p. 25. In this Journal, Supp., April, 1929, is the report of Prof. George Grafton Wilson upon the subject, issued by the Harvard Law School Bureau of Research in International Law.

2 The phrase is from Judge Learned Hand in Ex parte Craig, 282 F. R. 138, 161. He was commenting upon the Toledo newspaper case and summed that decision up by saying: It finally determines that the test . . . is causal, not spatial. To put it a little differently, we may say that the contempt cases make it plain now that there is no three-mile limit outside of which one may obstruct justice. If causal interference exists, that is enough.

3 Orally to the writer.

4 So held in principle by John Marshall, Church v. Hubbart, 2 Cranch, 187 (1804).

5 Marshall, loc. cit.

6 The story is told by a distinguished French jurist in 31 H. L. E. 1064, 1077.

7 Valery, loc. cit

8 T. S. Perry to John T. Morse, Jr., Letters, 143.