The Franconia Sails On: Revisiting the Intellectual History of the Territorial Sea in the United States, Canada and Australia

• Published in: Oxford University commonwealth law journal Vol. 13; no. 2; pp. 347 - 377
• Main Author: Miles, Cameron A
• Format: Journal Article
• Language: English
• Published: Routledge 31.12.2013
• Subjects: 19th century; Australia; Canada; Common law; Courts; Jurisdiction; Municipal law; Territoriality; U.S.A
• ISSN: 1472-9342; 1757-8469
• DOI: 10.5235/14729342.13.2.347

The purpose of this article is to revisit the intellectual history of the modern conception of the territorial sea and its bed, as well as the way in which ideas developing within the international legal space were received in municipal law in the 19th century. More particularly, the article demonstrates how episodes of miscomprehension at the interface between international and municipal law may have profoundly impacted the present allocation of sovereignty through an examination of the decision of the Court of Crown Cases Reserved in R v Keyn (the Franconia) and the consequent conceptualisation of the territorial sea and its bed in the federal common law jurisdictions of the United States of America, Canada and Australia. In each of these jurisdictions, misunderstanding of the decision in R v Keyn arguably resulted in a fundamental misallocation of sovereignty over the territorial sea and its bed as between the Union, Dominion and/or Commonwealth on the one hand and the various federal units on the other. Reprinted by permission of Hart Publishing