man and its ability to conform to the navigation laws of the country whose waters it seeks to enter. These laws are universally framed upon the theory of surface navigation. If, therefore, a submarine, assuming a merchantman status, enters the territorial waters of a foreign state in time of peace or war, that state may properly require of it that it remain upon the surface while and as long as it is in such waters, so that it may conform to the accepted standards of safety to navigation. The littoral state has the right and the duty to protect its territorial waters from dangerous usages and any navigation below the surface of the water is, at least at the present time, such a usage, as was shown by the refusal of the Deutschland to take on a pilot and its collision with a tug off New London with consequent loss of life.

The United States has minute regulations for the navigation of its territorial waters. A motor-boat of sixteen-foot length must be provided with starboard and port lights and be otherwise equipped in the interest of safety. That a state would be within its rights in requiring surface-navigation of its territorial waters in time of peace is unquestioned. Obedience to such requirements would be the duty of all vessels, national or foreign, public as well as private. As to this the Institute of International Law, at the same Paris meeting, laid down the following proposition:

Ships traversing territorial waters must conform to special regulations of the littoral state in the interest and for the security of navigation and maritime police.

More important, however, for the present purpose is the question of the indirect security of a littoral state during war because of the positive duties of neutrality. "Innocent passage" of belligerent cruisers through neutral waters is not a fancy nor an abstraction. The gist of the idea is that any activity having immediate strategic value by a belligerent warship in territorial waters compromises the neutrality of the littoral state. This is the underlying principle which controls all the questions involving entry into and departure from neutral ports. The "line of respect" does not rest upon the same basis as does the line of jurisdiction over the territorial sea for the purposes of commerce, navigation, and fisheries. While it has its origin in the right of the littoral state to be secure from belligerent acts directly endangering its coasts and coastwise shipping, with the development of the doctrine of positive neutral duties it has come to

include an area within which no belligerent acts of strategic purpose are to occur and within which the neutral state is bound to see that none takes place.

It is in this connection that the doctrine of innocent passage requires consideration. A further resolution adopted by the Institute of International Law in 1895 stated:

All vessels without distinction have the right of innocent passage through the territorial sea, reserving to belligerents the right to regulate, and, for the purposes of defense, to bar the passage of all vessels from such waters, and reserving to neutrals the right to regulate the passage within such waters of the warships of all nationalities.

In other words, it is for the neutral littoral state to decide as to what constitutes innocent passage in time of war with reference to belligerent warships. It will be noted that the Institute decided that such regulations might be made either at the outbreak of war, in the declaration of neutrality, or during the progress of the war by special regulations. Attention is called to this distinction to meet the objection sometimes raised that any change in the policy of a neutral toward belligerents during war is a violation of neutral duties.

To be innocent, the passage is not merely to be innocuous so far as the littoral's immediate property interests, or the property interests of its nationals, are concerned, but inoffensive in the sense that it does not compromise the positive neutrality of the littoral state. a neutral state is bound not to suffer or permit one belligerent to make use of its ports or waters as the base of naval operations against another belligerent, its positive duties become more onerous and exacting with the development of every new instrument of maritime warfare. A measure of precaution sufficient to prevent sailing vessels from making use of territorial waters as a base was not a sufficient standard for the treatment by a neutral of belligerent steam ironclads. What is enough to prevent surface operating steam vessels from making territorial waters a base may not be a sufficient standard when submarines are involved. In each case the neutral state is bound to reexamine the question of innocent passage and to regulate the use of its waters accordingly.

New neutral duties growing out of submarine navigation were. implied by the notes of the Allies to the neutral Powers in August. last. A memorandum from the French Embassy to the Department of State, dated August 29, 1916, warned neutrals against allowing

belligerent submarines, regardless of their use (i.e., either "merchant" or war submarines), to avail themselves of neutral waters roadsteads and harbors:

In the case of submarines the application of the principles of international law offers features that are as peculiar as they are novel, by reason, on the one hand, of the facility possessed by such craft to navigate and sojourn in the seas while submerged and thus escape any supervision or surveillance, and, on the other hand, of the impossibility to identify them and determine their national character, whether neutral or belligerent, combatant or innocent, and to put out of consideration the power to do injury that is inherent in their very nature.

It may be said, lastly, that any submarine war vessel far away from its base, having at its disposal a place where it can rest and replenish its supplies, is afforded, by mere rest obtained, so many additional facilities that the advantages it derives therefrom turn that place into a veritable basis of naval operations.

Therefore the Allied Governments held that all submarines should be excluded from neutral waters or, having entered them, they should be interned.

The United States declined to accede to any such sweeping general doctrine, but stated that

So far as the treatment of either war or merchant submarines in American waters is concerned, the Government of the United States reserves its liberty of action in all respects and will treat such vessels as, in its opinion, becomes the action of a Power which may be said to have taken the first steps toward establishing the principles of neutrality and which for over a century has maintained those principles in the traditional spirit and with the high sense of impartiality in which they were conceived.

Since then the German U-boat 53 has followed the Deutschland to American waters with results known to all the world.

Norway took an essentially different position in answer to the memorandum of the Allies. It declared that it had the right to prohibit submarines designed for war purposes and belonging to belligerents from passing through Norwegian territorial waters (i.e. to a distance of four miles) or sojourning in them, but that it did not conceive it to be its duty as a neutral absolutely to interdict such passage and sojourn. The right to regulate such passage being included in the larger right, the Norwegian Government by a royal decree, . dated October 13 last, "forbade belligerent submarines to traverse Norwegian waters except in case of emergency, when they must remain upon the surface and fly the national flag." Merchant submarines are by the same decree to be allowed in Norwegian waters

only in a surface position in full daylight and when flying the national colors. Whether or not Norway can enforce this decree is problematical, not because of the questions of law involved, but because the belligerent most affected may be able to use force against Norway, a relatively weak Power.

So far the exploit of the U-53 is a unique incident. It is to be hoped that it will remain so. Its repetition might go far toward compromising the neutrality of the United States. As a single incident, it forcibly emphasizes the wisdom of the resolution adopted by the Institute of International Law at the same session Article IV:

In case of war the neutral littoral state has the right by the declaration of neutrality or by special notification to fix its neutral zone beyond six miles to the range of a cannon-shot from its shores.

Absolutely to interdict under-surface navigation in territorial waters by all foreign submarines in war or peace, and to insist upon "innocent passage" that is really innocent in coastal waters as far from the coast as the range of the most modern ordnance, would go far toward preventing the waters adjacent to the neutral being made a base of belligerent maritime operations. It would render difficult submarine operations begun by submerging in coastal waters and consummated in the open sea dum fervet opus.

J. S. REEVES

SAFE CONDUCT FOR ENEMY DIPLOMATIC AGENTS

ON September 8, 1915, the Secretary of State requested the recall of the Austrian Ambassador because of his proposed plans to instigate strikes in American manufacturing plants engaged in the production of munitions of war. The request was complied with, and on October 5, 1915, Dr. Dumba left the United States, the Department of State securing for him a safe-conduct. Count Adam Tarnowski von Tarnow, after an interval of some thirteen months, has been appointed Austrian Ambassador to the United States, and just as his predecessor wished a safe-conduct to return to his native land, he was apparently anxious to receive a safe-conduct for himself and his suite from the shores of Europe to Washington. About the middle of November the United States informed Great Britain and France that Count Tarnowski had been appointed Ambassador to the United States and the question of a safe-conduct for the Austrian

Ambassador and his suite was broached. Shortly before the end of November Great Britain and France are understood - for the correspondence has not been published to have expressed an unwillingness to furnish the Ambassador and his suite with a safe-conduct, and, leaving aside the question whether international law permits a belligerent to take an ambassador of the enemy destined to a neutral country from the vessel upon which he is proceeding on the high seas to his post, the Allies are reported to have contended that the activity of diplomatic agents of the enemy in the United States was such that they did not care to facilitate their arrival in the United States; that by the purchase of supplies and of contraband in the neutral country they injured the Allies, and by their activity in general in the United States they rendered services to the enemy country which it was the right and the duty of the Allies to prevent if they could; and that they could not be expected to aid the Ambassador and his suite to reach the United States, even if they did not remove him from the vessel on which he was traveling.

The United States, it is understood, protested against this attitude of the Allied Governments on the ground that it has a right to maintain diplomatic relations with any and every country according to its pleasure; that the Allied Powers should recognize this right and should not throw obstacles in the way of its realization; and that the United States expected the Allied Governments to reconsider their action and to assure it that Count Tarnowski and his suite would not be molested during his passage from Europe to the United States to take up the duties of his post.

On December 15th, as the JOURNAL goes to press, a statement appears in the newspapers that the Allied Governments have reversed their original attitude, apparently out of courtesy and as a mark of their respect for the United States.

The question is apparently simple in principle, although it appears to be somewhat embarrassing in practice. Count Tarnowski was not asking permission to pass through belligerent countries to his neutral post. This would have raised the question squarely whether the belligerent was bound out of courtesy and respect to the neutral to allow the diplomatic agent of the enemy to pass through its territory. Count Tarnowski was endeavoring to reach his post by way of the high seas, which cannot be regarded, today at least, as the patrimony of any one country. Upon a neutral vessel he should be immune