De la propriété et de l'usage des rivages de la mer.

CHAP. 19: On the property and use of the shores of the sea.

The Roman jurists had established, relative to the sea and its shores, principles analogous to those they had adopted relative to rivers and the lands that formed their banks. They admitted that all rivers were public, and that everyone had the right to make use of them for fishing and navigation; from this they drew the consequence that everyone could make use of the banks to load or unload his boats, or to attach them to the trees that were placed there. In admitting that the use of the banks was public like the rivers themselves, they recognized that the property of these same banks belonged to the proprietors of the riparian holdings.

They likewise recognized that, by the nature of things, the seas belonged to all nations, and that every person had the right to navigate there and to engage in fishing [^154]. They concluded from this principle that the shores were equally common to all men, and that everyone could use them for the services of navigation and fishing [^155]. In recognizing that their use was common to everyone, they nevertheless claimed for their nation the property of those that were subject to its dominion [^156].

The rivers and streams belonging to all the members of the State, every citizen had the right to form there the establishments he judged suitable, on the condition of in no way hindering navigation, and of causing no damage to the properties of others. Likewise, the sea being common to all nations, every man could form, in the waters or on the shores, the constructions or the establishments he judged useful to his interests [^157]; but this was also on the condition that he would place no impediment to the right that belonged to all to navigate and to fish there [^158]. The property of a construction did not even entail the property of the soil; for, the establishment formed happening to disappear, the place on which it was situated reverted by full right to the rank of things whose use was common [^159].

The shores that were part of the empire, being considered as the property of the Roman people, although their use was common to all men for fishing and navigation, those who wished to make constructions there had to obtain the authorization of the praetor [^160]. The lack of authorization was not sufficient, however, to have works destroyed that harmed neither navigation nor fishing, and that caused no damage to others [^161]. The authorization appears to have had no other object than to establish the right of sovereignty of the Roman people over the coasts that were part of their territory.

Every citizen had the right to bring to justice him who had formed, on a river or a stream, an enterprise that harmed fishing or navigation, or that caused him any other damage; likewise, every person had an action against him who executed, in the sea or on the shore, works by means of which he infringed upon the right common to all to pass, navigate, or fish there [^162].

The Romans, in establishing rules on the enjoyment of the shores of the sea, had generally had in view only the coasts of the Mediterranean. Their dominion over some of the coasts of the Ocean had begun only very late, and as the peoples who inhabited these coasts were barely emerging from the savage state, there was little need to concern oneself with the establishments that were formed among them. Navigation, moreover, was not advanced enough for navigators to dare to venture across the Ocean to come and trade on the coasts subject to the empire, and possessed by half-barbarous peoples. Thus, to determine what properly forms the shore of the sea, the Roman jurists took into consideration only the Mediterranean, which has no tide. According to the Institutes of Justinian, the shore of the sea is understood, in effect, to be the land covered by the highest winter wave [^163]; whereas, on the coasts of the Ocean, we understand by shore all that the sea covers and uncovers during the new and full moons, and as far as the great March tide (the epoch of the highest tides) can extend over the strands [^164].

Modern peoples have adopted the opinion of the jurist Celsus, who thought that the shore subject to the empire of a nation is the property of that same nation; but they do not admit that men of all countries have the right to make use of it for the needs of navigation and fishing; they consider this part of their territory as a dependency of the public domain, whose use is regulated, not by the principles of international law, but by their particular laws. In France, the government considered the shores of the sea as forming part of the public domain long before having made an express declaration thereof. The Ordinance of the Navy of 1681, as has been seen, deems to be the edge and shore of the sea all that it covers and uncovers during the new and full moons, and as far as the great March tide can extend over the strands. It forbids all persons from building there, planting any stake there, or making any work that could be prejudicial to navigation, on pain of demolition of the works, confiscation of the materials, and an arbitrary fine [^165].

But although the shores of the sea form part of the public domain like the rivers, the fishing is not leased out for the profit of the State. The ordinance of 1681 declares, on the contrary, sea fishing to be free and common to all nationals, to whom it permits it both on the high seas and on the strands, by conforming to the rules it prescribes [^166]. These rules are neither very numerous nor very burdensome: for those who wish to go to the high seas, for the fishing of cod, herring, and mackerel, they consist in taking, for each voyage, a leave from the admiral; and, for those who wish to fish on the strands, in the bays, and at the mouths of navigable rivers, in giving to the mesh of their nets the dimensions determined by the ordinance. It is, moreover, forbidden for fishermen to construct weirs in which wood or stone would enter, on pain of demolition, and to undertake anything that could create an obstacle to navigation [^167]. The same ordinance forbids all governors, officers, and soldiers of the islands and forts, cities and castles built on the seashore, from placing any obstacle to fishing in the vicinity of their posts, and from demanding anything from the fishermen to permit it, on pain of dismissal against the officers, and of corporal punishment against the soldiers [^168].

The seaweed that grows on the seashore, and which is designated by the names of varech, vraicq, sar, or gouesmon, is not gathered for the profit of the State, although it grows on a part of the public domain. The ordinance of 1681 attributes it to the inhabitants of the parishes whose territory extends to the seashore; it wishes these inhabitants to assemble on the first Sunday of the month of January of each year, to regulate the days on which the cutting shall begin and end. It forbids them from cutting it during the night, and outside the determined period, and from selling it to outsiders, or from transporting it to other territories. As for the seaweed that the tide casts upon the strands, it is permitted for all persons to take it at all times and in all places, and to transport it wherever they see fit [^169].

The Ordinance of the Navy of 1681 therefore attributes exclusively to nationals the faculty of fishing on the shores of the sea, which are part of the territory of France, and of appropriating the seaweeds that grow there; it guarantees them moreover the faculty of introducing their vessels into the roadsteads, and this guarantee is extended to all the allies of the French people. We wish, says this ordinance, that the roadsteads be free to all vessels of our subjects and allies, within the extent of our dominion. We forbid all persons, of whatever quality and condition they may be, from causing them any trouble and impediment, on pain of corporal punishment [^170]. The rivers being public by the nature of things, the laws that have regulated their use have, in general, obliged the proprietors of the riparian lands to furnish a passage for the needs of fishing and navigation. The shores of the sea are equally public, and every Frenchman has the right to engage there, either in navigation or in fishing; but the ordinance that recognizes this right does not formally oblige the proprietors of the riparian holdings to furnish a passage to navigators or fishermen. However, as the shore, on the Mediterranean, consists solely in the part of the territory covered by the waters of the sea in the highest wave of winter, and as, on the Ocean, it consists only in that which the sea covers and uncovers during the new and full moons and as far as the greatest March tide can extend over the strands, it follows that, on both seas, there is always, in the year, an epoch when the shore is entirely under water, and that it is not possible to reach it by land, unless one passes over the neighboring holdings.

This necessity has determined some jurists to think that the properties situated on the seashore are subject, by the nature of things, to a servitude analogous to that which exists on all the holdings situated along navigable rivers or streams. If this servitude did not exist, it would often not be possible to exercise the right of fishing that belongs to all, to remove the seaweed that the waves cast upon the shore, and to provide for the safety of navigators. It would be equally impossible for the agents of the public treasury to prevent smuggling, since the smugglers, to introduce their merchandise fraudulently, would always seize the moment when the waves reach the private properties. Thus, on the coasts of Normandy, a long usage has established that the properties that border the sea owe a passage to all those who, for whatever motive, wish to travel its shore. The Roman laws supposed the existence of a path along the seashore, and forbade doing anything there that could hinder its use. They recognized, moreover, for every person the right to reach the sea to fish there [^171].

The law of 22 November 1790, which determined the goods of which the national domain is composed, declares that the shores, alluvion and dereliction of the sea, the ports, the harbors, and the roadsteads, are considered as dependencies of the public domain. The Civil Code has reproduced this disposition (art. 538), without bringing any modification to it; but it has not said in what the shores of the sea consist; nor has it determined the rights that private individuals could exercise there. One must therefore refer in this regard to the dispositions of the prior laws, that is to say, to the Roman laws, the customs, and the ordinance of 1681, which governed France [^172].

If one were to refer to the definition that the Roman laws and the ordinance of 1681 gave of the shore of the sea, one would believe that it ends, on the side of the sea, at the point where the ground ceases to be uncovered during the lowest waters, and that beyond it the men of all nations can freely engage in navigation and fishing. It is not so, however: all maritime peoples consider as forming part of their national territory a certain extent of the seas that bathe their coasts. The interest of their defense, of their industry, and of their commerce, and the necessity of ensuring the collection of the revenues of the treasury, have made it a law for them to carry their exclusive dominion well beyond what properly forms only the shores. The extent of this part of the sea, which each nation considers as its property, cannot be determined in a very precise manner, since it is not possible to place limits on the sea. It would be important, however, that it be well known, so that the magistrates of each country could know the distance to which their jurisdiction extends, and that, for their part, navigators would not be exposed to involuntarily violating the rules that nations establish in the part of the seas they consider as a dependency of their territory.

Some writers have claimed that the exclusive dominion of each people over the seas that bathe its territory should extend as far as the eye can see; but numerous objections have been made against this system. Where will one place oneself to fix the point to which the eye can reach? Will one stand on the shore at sea level, or will one ascend a mountain? Will one look with the naked eye or through a telescope? Will one choose the individual who has the longest sight, or will one take an average? Will it suffice to perceive the top of the mast of a warship, or will it be necessary to see a floating stick? The most serious objection that can be made against such a system is that it is founded on no good reason. One does not see, in effect, why one would take for a rule the range of sight rather than the range of sound. If the one varies like the winds, the other varies like the clouds.

A learned jurist has sought to rest on a more solid basis the dominion that each people means to exercise over the waters that bathe its territory. If the sea is not susceptible of being appropriated by occupation, like the land, this is principally due, according to him, to the fact that one cannot establish oneself on determined places, in a fixed and durable manner. It is, in effect, impossible to establish a permanent residence on points from which one can at any moment be driven by a gust of wind or by the violence of the waves. It would be hardly easier for a people to establish itself in the middle of the Ocean, and to attribute to itself a part of it, to draw its means of existence from it, than to establish itself in the air, and to live by means of the birds it would catch in passage. Occupation therefore requires a de facto taking of possession, and a durable establishment; it could confer no right, if it does not unite these conditions[^173].

But also, whenever a thing susceptible of producing sustenance or of ensuring other advantages to a people can be really and exclusively occupied, it becomes the property of the population that subjects it to its empire in a permanent manner, whatever its nature may be. A river is no less susceptible of occupation than a pasture or a land fit for cultivation; a seaport is for a nation a property that is no less incontestable than the lands by which it is surrounded.Thus, to determine how far the dominion of the peoples who possess the shores of the sea extends over it, one must know which part they can establish their empire over in a permanent and exclusive manner. Now, this part is determined by the range of their weapons; all that can be protected by land-based artillery must therefore be considered as belonging to the nation that is master of the shore. The sea only begins to be a common thing to all nations at the point where the dominion of the peoples who possess its shores ends [^174].

To this consideration another has been joined. If certain things are common to all nations, this is particularly because each can make use of them without in any way diminishing the enjoyment of others. The utility found therein being inexhaustible, there is no motive for some to attribute to themselves the exclusive disposition of them; this would be to do an evil from which no good would result. But the advantages that a nation draws from the sea, near the coasts, and which consist in the products of fishing for fish, shells, pearls, and amber, are far from being inexhaustible; on the contrary, they can easily be exhausted.

From this circumstance and from the necessity in which a nation finds itself to watch over its security, Vattel concludes that the dominion of a State over the sea that bathes a part of its territory goes as far as is necessary for its security, and as far as it can make it respected; on the one hand, he says, it cannot appropriate a common thing, such as the sea, except insofar as it needs it for some legitimate purpose; and, on the other hand, it would be a vain and ridiculous pretension to attribute to oneself a right that one would be in no state to enforce [^175].

The question of knowing how far the dominion of a people extends over the sea that bathes its coasts cannot, in all cases, be resolved by the same principles. If it is a matter of facts of internal police, one can consult only the laws and customs of the country: one is obliged to be governed by the principles of civil law. If it is a matter, on the contrary, of facts of external policy, it is to the principles or customs of international law that one must refer.

To decide, for example, whether such a fact is or is not punishable according to French laws, one must know if it took place under their empire, or if it was executed in a place where they were not obligatory; likewise, to decide whether such or such a magistrate has jurisdiction to take cognizance of such a fact, or to have such an act executed, one must know what, according to French law, is the extent of the jurisdiction of the one or the other.

But if it were a matter of deciding whether navigators have the right to station themselves or to fish at such or such a point of the sea, the question could no longer be resolved except by treaties between nations, or by the principles that regulate their mutual relations.

The magistrates of all maritime peoples may be called upon, either to judge facts that have occurred on the sea and near the coasts, or to have certain acts executed there; it has not, however, been thought suitable to fix, by laws, the points to which their jurisdiction would extend; it seems that among all nations, the vagueness and elasticity of the arbitrary have appeared more certain than the precision and inflexibility of the law [^176].

But although the laws are silent on the part of the sea that each people considers as a dependency of its coasts, it is certain, in fact, that there is always, among all nations, a certain extent that belongs to the public domain, like the shores; the savages themselves consider themselves the masters of the waters that furnish them with means of existence, and without which they could not preserve themselves.

The English have sometimes attributed to themselves the empire of the sea that surrounds their territory, all the way to the opposite coasts. According to Selden, most of the maritime nations of Europe admitted this pretension under the reign of Edward I [^177], and the republic of the United Provinces admitted it, at least as to the honors of the flag, by the treaty of Breda, of 1607; but France never subscribed to it.

One conceives, moreover, that the extent of sea that a nation attributes to itself relative to other nations cannot be invariable, and that it depends on the relative power of each people, and on the dangers one wishes to avert. France had formerly carried this extent, in the Mediterranean, to ten leagues from the coasts, for all the Barbary powers: the pirates of these nations would not have permitted themselves to make captures within this limit. This appropriation of a part of the sea was at least as profitable to the small states that could not make their flag respected, as to the French nation itself [^178].

From the fact that the waters that bathe the territory of a people are considered as its property, one must not conclude that other peoples are not permitted to navigate there. If the Ordinance of the Navy of 1681 authorizes friendly nations to navigate freely in French roadsteads as far as the dominion of France extends, they cannot be forbidden from passing over the waters that are subject to its empire. The only consequences that one can reasonably draw from this appropriation of a part of the sea are that the ships found there are subject to the laws and the police of the nation that has appropriated it, and that they thereby enjoy its protection. If they were attacked there, the people under whose empire they are placed could see in this aggression only a violation of its territory; its duty would be to repress it, and to make its independence respected.

The waters that surround the territory of a people, in whole or in part, are for it like a road intended to put into communication the various fractions into which it is divided; they render or can render, on the circumference of the territory, services analogous to those that rivers and canals render in the interior; they are, moreover, a means of watching over enemies, of preventing any surprise on their part, and of preventing or repressing smuggling; as in these various respects, all maritime nations have similar interests, it is equally important for all to adopt and to have the same principles respected [^179].

But, as it is in the interest of a people to open its territory to all men who submit to its laws, and who, without causing it any damage, come to supply its commerce, it is equally in its interest to allow all those to navigate in its waters who recognize the rules it has established, and who threaten neither its security, nor the laws intended to protect its industry, or to guarantee the collection of certain taxes.

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Notes

[^154]: Instit. lib. II, tit. I, §1.—Dig. lib. I, tit. VIII, leg. 2, § 1, leg. 4 (De divisione rerum). [^155]: Maris naturam littora sequuntur ac proindè ad littus maris cuivis accedere licet, navem eo appellare ac reficere, retia siccare, et casam, in quam tantisper se recipiat, ponere. Dig. lib. I, tit. VII, L. 4 (De divisione rerum).—Instit. lib. II, tit. I, § 5. [^156]: Littora in quæ populus romanus imperium habet, populi romani esse arbitror. Dig. lib. XLIII, tit. VIII, leg. 3.—This law appears contrary to law 14, tit. I, bk. XLI. [^157]: Dig. lib. XLI, tit. I, leg. 14, princ. et leg. 3a, § 4; eod. tit. lib. XLIII, tit. VIII, leg. 3, § I. [^158]: Dig. lib. XLIII, tit. VIII, leg. 2, §§ 8 et 'g. Tit. XII, leg. 1,817, eod. lib.—Lib. I, tit. VIII, leg. 2 (De divisione rerum et qualitate). [^159]: At enim qui locum ita in mari aut littore occupatur, non simpliciter et absolutè occupantis fit, sed duntaxat interea dum occupat, dum ædificium manet: nam, ædificio sublato, locus in pristinam causam quasi jure postliminii revertitur. Dig. lib. I, tit. VIII, leg. 6 et leg. 14, § 1 (De divisione rerum et qualitate). [^160]: Quamvis quod in littore publico, vel in mari, extruxerimus, nostrum fiat : tamen decretum prætoris adhibendum est, ut id facere liceat. Dig. lib. XLI, tit. I, leg. 50. [^161]: Dig. lib. XLI, tit. I,leg. 14;—lib. XLIII. tit. VIII, leg. 3; tit. XII, leg. 1, § 17. eod. lib. [^162]: Dig. lib. XLIII, tit. VIII, leg. 2, §9; — tit. XII, leg. 1, § 17, cod. lib. [^163]: Est autem littus maris, quatenus hibernus fluctus maximus excurrit. Instit. lib. II, tit. I, § 3. [^164]: Ordinance of the Marine of 1681, bk. IV, tit. VII, art. 1. [^165]: Bk. IV, tit. VII, art. 1 and 2.—The regulation of Charles VI, of the month of February 1415, contains analogous dispositions for the Seine and its tributaries (art. 680-683). These dispositions were extended to all navigable rivers by the ordinance on waters and forests of 1669. [^166]: Bk. V, tit. I, art. 1. [^167]: See tit. III of bk. V of the ordinance of 1682, art. 1, 2 and 8. [^168]: Ibid, art. 10. [^169]: Ordinance of the Marine of 1681, bk. II, tit. X, art. 1, 2, 3, 4 and 5. [^170]: Bk. IV, tit. VIII, art. 1. [^171]: Si in mari aliquid fiat, Labeo ait, competere tale interdictum ne quid in mari, inve littore quo portus, statio ITERVE navigio deterius fiat. Dig. lib. LIII, tit. II, leg. 1, § 17 (De Fluminibus). [^172]: The lands left by the receding sea, called relais, also form part of the public domain, as do the shores. Decrees of 11 Nivôse and 19 Prairial, an II (December 31, 1793 and June 7, 1794); Civil Code, art. 538. [^173]: Corn. van Bynkershoec, De Dominio maris. See also Vattel, Le Droit des gens, bk. 1, ch. XXII. [^174]: Quare omnino videtur rectius, eo potestatem terræ extendi quousque tormenta exploduntur eatenus quippe cum imperare tum possidere videmur. Loquor autem de his temporibus, quibus illis machinis utimur: alioquin generaliter dicendum esset, potestatem terræ finiri, ubi finitur armorum vis; et enim hæc, ut diximus, possessionem tenetur. Corn. van Bynkershoec, De Dominio maris, cap. II, vol. 1, p. 126-127. [^175]: Du Droit des gens, bk. I, ch. XXIII, § 289.—According to Bodin, a people's dominion over the sea that bathes its territory extends up to thirty leagues from the coasts. De la République, bk. I, ch. X. See Grotius, de jure belli ac pacis, lib. II, cap. III, § 8. Mare liberum. [^176]: "When a nation takes possession of certain parts of the sea," says Vattel, "it occupies the empire there, as well as the domain........ These parts of the sea are of the jurisdiction of the territory of the nation; the sovereign commands there, he gives laws and can repress those who violate them; in a word, he has there all the same rights that belong to him on the land, and in general all those that the law of the state gives him." Le Droit des gens, bk. I, ch. XXIII, § 235. [^177]: Mare clausum, lib. II, cap. XXVIII. [^178]: Institutions du droit de la nature et des gens, by Gérard de Rayneval, bk. II, ch. IX, § 10, p. 161, and note 26, p. 86. [^179]: The waters that bathe the coasts of Great Britain are, for the English nation, a powerful means of communication between the diverse fractions of which that nation is composed. In France, we have not yet known how to take advantage of this means.