Chapter I: State Territory (1)

I

ON STATE TERRITORY IN GENERAL

Vattel, II. §§ 79-83--Hall, § 30--Westlake, I. pp.
84-88--Lawrence, §§ 71-72--Phillimore, I. §§ 150-154--Twiss, I. §§
140-144--Halleck, I. pp. 150-156--Taylor, § 217--Wheaton, §§
161-163--Moore, I. § 125--Bluntschli, § 277--Hartmann, §
58--Holtzendorff in Holtzendorff, II. pp. 225-232--Gareis, §
18--Liszt, § 9--Ullmann, § 86--Heffter, §§ 65-68--Bonfils, No.
483--Despagnet, Nos. 374-377--Pradier-Fodéré, II. No.
612--Mérignhac, II. pp. 356-366--Nys, I. pp. 402-412--Rivier, I.
pp. 135-142--Calvo, I. §§ 260-262--Fiore, I. Nos.
522-530--Martens, I. § 88--Del Bon, "Proprietà territoriale degli
Stati" (1867)--Fricker, "Vom Staatsgebiet" (1867).

[Sidenote: Conception of State Territory.]

§ 168. State territory is that definite portion of the surface of the globe which is subjected to the sovereignty of the State. A State without a territory is not possible, although the necessary territory may be very small, as in the case of the Free Town of Hamburg, the Principality of Monaco, the Republic of San Marino, or the Principality of Lichtenstein. A wandering tribe, although it has a Government and is otherwise organised, is not a State before it has settled down on a territory of its own.

State territory is also named territorial property of a State. Yet it must be borne in mind that territorial property is a term of Public Law and must not be confounded with private property. The territory of a State is not the property of the monarch, or of the Government, or even of the people of a State; it is the country which is subjected to the territorial supremacy or the _imperium_ of a State. This distinction has, however, in former centuries not been sharply drawn.[270] In spite of the _dictum_ of Seneca, "Omnia rex imperio possidet, singuli dominio," the _imperium_ of the monarch and the State over the State territory has very often been identified with private property of the monarch or the State. But with the disappearance of absolutism this identification has likewise disappeared. It is for this reason that nowadays, according to the Constitutional Law of most countries, neither the monarch nor the Government is able to dispose of parts of the State territory at will and without the consent of Parliament.[271]

[Footnote 270: And some writers refuse to draw it even nowadays, as, for instance, Lawrence, § 71.]

[Footnote 271: In English Constitutional Law this point is not settled. The cession of the Island of Heligoland to Germany in 1890 was, however, made conditional on the approval of Parliament.]

It must, further, be emphasised that the territory of a State is totally independent of the racial character of the inhabitants of the State. The territory is the public property of the State, and not of a nation in the sense of a race. The State community may consist of different nations, as, for instance, the British or the Swiss or the Austrians.

[Sidenote: Different kinds of Territory.]

§ 169. The territory of a State may consist of one piece of the surface of the globe only, such as that of Switzerland. Such kind of territory is named "integrate territory" (_territorium clausum_). But the territory of a State may also be dismembered and consist of several pieces, such as that of Great Britain. All States with colonies have a "dismembered territory."

If a territory or a piece of it is absolutely surrounded by the territory of another State, it is named an "enclosure." Thus the Republic of San Marino is an enclosure of Italy, and Birkenfeld, a piece of the territory of the Grand Duchy of Oldenburg situated on the river Rhine, is an enclosure of Prussia.

Another distinction is that between motherland and colonies. Colonies rank as territory of the motherland, although they may enjoy complete self-government and therefore be called Colonial States. Thus, if viewed from the standpoint of the Law of Nations, the Dominion of Canada, the Commonwealth of Australia, New Zealand, and the Union of South Africa are British territory.

As regards the relation between the Suzerain and the Vassal State, it is certain that the vassal is not, in the strict sense of the term, a part of the territory of the suzerain. Crete and Egypt are not Turkish territory, although under Turkish suzerainty. But no general rule can be laid down, as everything depends on the merits of the special case, and as the vassal, even if it has some footing of its own within the Family of Nations, is internationally for the most part considered a mere portion of the Suzerain State.[272]

[Footnote 272: See above, § 91.]

[Sidenote: Importance of State Territory.]

§ 170. The importance of State territory lies in the fact that it is the space within which the State exercises its supreme authority. State territory is an object of the Law of Nations because the latter recognises the supreme authority of every State within its territory. Whatever person or thing is on or enters into that territory, is _ipso facto_ subjected to the supreme authority of the respective State according to the old rules, _Quidquid est in territorio, est etiam de territorio_ and _Qui in territorio meo est, etiam meus subditus est_. No foreign authority has any power within the boundaries of the home territory, although foreign Sovereigns and diplomatic envoys enjoy the so-called privilege of exterritoriality, and although the Law of Nations does, and international treaties may, restrict[273] the home authority in many points in the exercise of its sovereignty.

[Footnote 273: See above, §§ 126-128.]

[Sidenote: One Territory, one State.]

§ 171. The supreme authority which a State exercises over its territory makes it apparent that on one and the same territory can exist one full-Sovereign State only. Two or more full-Sovereign States on one and the same territory are an impossibility. The following five cases, of which the Law of Nations is cognisant, are apparent, but not real, exceptions to this rule.

(1) There is, first, the case of the so-called _condominium_. It happens sometimes that a piece of territory consisting of land or water is under the joint _tenancy_ of two or more States, these several States exercising sovereignty conjointly over such piece and the individuals living thereon. Thus Schleswig-Holstein and Lauenburg from 1864 till 1866 were under the _condominium_ of Austria and Prussia. Thus, further, Moresnet (Kelmis), on the frontier of Belgium and Prussia, is under the _condominium_ of these two States[274] because they have not yet come to an agreement regarding the interpretation of a boundary treaty of 1815 between the Netherlands and Prussia. And since 1898 the Soudan is under the _condominium_ of Great Britain and Egypt. It is easy to show that in such cases[275] there are not two States on one and the same territory, but pieces of territory, the destiny of which is not decided, and which are kept separate from the territories of the interested States[276] under a separate administration. Until a final settlement the interested States do not exercise each an individual sovereignty over these pieces, but they agree upon a joint administration under their conjoint sovereignty.

[Footnote 274: See Schröder, "Das grenzstreitige Gebiet von Moresnet" (1902).]

[Footnote 275: The New Hebrides are materially likewise under a _condominium_, namely, that of Great Britain and France, although article 1 of the Convention of October 20, 1906--see Martens, N.R.G. 3rd Ser. I. (1909), p. 523--speaks only of "a region of joint influence" with regard to the New Hebrides. See Brunet, "Le Régime International des Nouvelles-Hebrides" (1908), and Politis in R.G. XIV. (1907), pp. 689-759.]

[Footnote 276: As regards the proposed _condominium_ over Spitzbergen, see Waultrin in R.G. XV. (1908), pp. 80-105, and Piccioni in R.G. XVI. (1909), pp. 117-134.]

(2) The second case is that of the administration of a piece of territory by a foreign Power, with the consent of the owner-State. Thus, since 1878 the Turkish island of Cyprus has been under British administration, and the then Turkish provinces of Bosnia and Herzegovina were from 1878 to 1908 under the administration of Austria-Hungary. In these cases a cession of pieces of territory has for all practical purposes taken place, although in law the respective pieces still belong to the former owner-State. Anyhow, it is certain that only one sovereignty is exercised over these pieces--namely, the sovereignty of the State which exercises administration. On the other hand, however, the fact that in these cases pieces of territory have for all practical purposes been ceded to another State does not empower the latter arbitrarily to annex the territory without the consent of the State owning it in law. Austria-Hungary had therefore no right to annex, in 1908, without the previous consent of Turkey, the provinces of Bosnia and Herzegovina.[277]

[Footnote 277: See above, § 50.]

(3) The third case is that of a piece of territory leased or pledged by the owner-State to a foreign Power. Thus, China in 1898 leased[278] the district of Kiauchau to Germany, Wei-Hai-Wei and the land opposite the island of Hong-Kong to Great Britain, and Port Arthur to Russia.[279] Thus, further, in 1803 Sweden pledged the town of Wismar[280] to the Grand Duchy of Mecklenburg-Schwerin, and the Republic of Genoa in 1768 pledged the island of Corsica to France. All such cases comprise, for all practical purposes, cessions of pieces of territory, but in strict law they remain the property of the leasing State. And such property is not a mere fiction, as some writers[281] maintain, for it is possible that the lease comes to an end by expiration of time or by rescission. Thus the lease, granted in 1894 by Great Britain to the former Congo Free State, of the so-called Lado Enclave, was rescinded[282] in 1906. However this may be, as long as the lease has not expired it is the lease-holder who exercises sovereignty over the territory concerned.

[Footnote 278: See below, § 216.]

[Footnote 279: Russia in 1905, by the Peace Treaty of Portsmouth, transferred her lease to Japan.]

[Footnote 280: This transaction took place for the sum of 1,258,000 thaler, on condition that Sweden, after the lapse of 100 years, should be entitled to take back the town of Wismar on repayment of the money, with 3 per cent. interest per annum. Sweden in 1903--see Martens, N.R.G. 2nd Ser. XXXI. (1905), pp. 572 and 574--formally waived her right to retake the town.]

[Footnote 281: See, for instance, Perrinjaquet in R.G. XVI. (1909), pp. 349-367.]

[Footnote 282: By article 1 of the Treaty of London of May 9, 1906; see Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 454.]

(4) The fourth case is that of a piece of territory of which the use, occupation, and control is in perpetuity granted by the owner-State to another State with the exclusion of the exercise of any sovereign rights over the territory concerned on the part of the grantor. In this way[283] the Republic of Panama transferred, in 1903, to the United States of America a ten-mile wide strip of territory for the purpose of constructing, administrating, and defending the so-called Panama Canal. In this case the grantor retains only in name the property of the territory, the transfer of the land concerned is really cession all but in name, and it is certain that only the grantee exercises sovereignty there.

[Footnote 283: See below, § 184, and Boyd in R.G. XVII. (1910), pp. 614-624.]

(5) The fifth case is that of the territory of a Federal State. As a Federal State is considered[284] a State of its own side by side with its single member-States, the fact is apparent that the different territories of the single member-States are at the same time collectively the territory of the Federal State. But this fact is only the consequence of the other illogical fact that sovereignty is divided between a Federal State and its member-States. Two different sovereignties are here by no means exercised over one and the same territory, for so far as the Federal State possesses sovereignty the member-States do not, and _vice versa_.

[Footnote 284: See above, § 89.]

II

THE DIFFERENT PARTS OF STATE TERRITORY

[Sidenote: Real and Fictional parts of Territory.]

§ 172. To the territory of a State belong not only the land within the State boundaries, but also the so-called territorial waters. They consist of the rivers, canals, and lakes which water the land, and, in the case of a State with a seacoast, of the maritime belt and certain gulfs, bays, and straits of the sea. These different kinds of territorial waters will be separately discussed below in §§ 176-197. In contradistinction to these real parts of State territory there are some things that are either in every point or for some part treated as though they were territorial parts of a State. They are fictional and in a sense only parts of the territory. Thus men-of-war and other public vessels on the high seas as well as in foreign territorial waters are essentially in every point treated as though they were floating parts of their home State.[285] And the houses in which foreign diplomatic envoys have their official residence are in many points treated as though they were parts of the home States of the respective envoys.[286] Again, merchantmen on the high seas are for some points treated as though they were floating parts of the territory of the State under whose flag they legitimately sail.[287]

[Footnote 285: See below, § 450.]

[Footnote 286: See below, § 390.]

[Footnote 287: See below, § 264.]

[Sidenote: Territorial Subsoil.]

§ 173. The subsoil beneath the territorial land and water[288] is of importance on account of telegraph and telephone wires and the like, and further on account of the working of mines and of the building of tunnels. A special part of territory the territorial subsoil is not, although this is frequently asserted. But it is a universally recognised rule of the Law of Nations that the subsoil to an unbounded depth belongs to the State which owns the territory on the surface.

[Footnote 288: As regards the subsoil of the Open Sea, see below, §§ 287_c_ and 287_d_.]

[Sidenote: Territorial Atmosphere.]

§ 174. The space of the territorial atmosphere is no more a special part of territory than the territorial subsoil, but it is of the greatest importance on account of wires for telegraphs, telephones, electric traction, and the like; further on account of wireless telegraphy and of aviation.

(1) Nothing need be said concerning wires for telegraphs and the like, except that obviously the territorial State can prevent neighbouring States from making use of its territorial atmosphere for such wires.

(2) As regards wireless telegraphy,[289] the "International Radiographic Convention," signed at Berlin on November 3, 1906, represents an agreement[290] of the signatory Powers concerning the exchange of radio-telegrams on the part of coast stations and ship stations, but it contains no stipulation respecting the question in general whether the territorial State is compelled to allow the passage over its territory of waves emanating from a foreign wireless telegraphy station. There ought to be no doubt that no such compulsion exists according to customary International Law, and that therefore the territorial State can prevent the passage of such waves[291] over its territory.

[Footnote 289: See Meili, "Die drahtlose Telegraphie, &c." (1908); Schneeli, "Drahtlose Telegraphie und Völkerrecht" (1908); Landsberg, "Die drahtlose Telegraphie" (1909); Kausen, "Die drahtlose Telegraphie im Völkerrecht" (1910); Rolland in R.G. XIII. (1906), pp. 58-92; Fauchille in Annuaire, XXI. (1906), pp. 76-87; Bonfils, Nos. 531{10} and 531{11}; Despagnet, No. 433 _quater_; Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.]

[Footnote 290: See below, §§ 287_a_, 287_b_, and 582, No. 4.]

[Footnote 291: The Institute of International Law--see Annuaire, XXI. (1906), p. 328--proposes by art. 3 of its "Régime de la Télégraphie sans fil" to restrict the power of the territorial State to exclude such waves from passing over its territory to the case in which the exclusion is necessary in the interest of its security.]

(3) The space of the territorial atmosphere is of particular importance with regard to aviation, but no customary or conventional rules of International Law are as yet in existence which settle the very much controverted[292] matter. An international conference for the purpose of agreeing upon an international convention concerning aviation met in 1910 at Paris, but did not produce any result. The fact is that, since aviation is still in its infancy, practical experience is lacking concerning many questions which can only be settled when aviation has been more developed. It is tempting to apply the rules concerning the maritime belt and the Open Sea analogously to the space of the atmosphere, and, therefore, to distinguish between a zone of a certain height, in which the territorial State can exercise sovereignty, and, on the other hand, the atmosphere beyond that height, which is to be considered free like the Open Sea. This comparison between the atmosphere and the sea is, however, faulty for two reasons. Firstly, the Open Sea is an international highway that connects distant lands between which, except by sea, no communication would be possible, whereas the atmosphere is not such an indispensable highway. Secondly, navigation on the Open Sea comprises no danger whatever to the security of the different States and the lives and property of their inhabitants, whereas aviation threatens such danger to a great extent. The chief question at issue is, therefore, whether the territorial State should or should not be considered to exercise sovereignty over the space of the atmosphere to an unbounded height, and to have the power to prevent the passage of foreign aviators altogether, or to enact stringent rules with which they have to comply. It would probably be best for the States in conference to adopt such rules concerning the whole space of the atmosphere as are similar to those valid by customary International Law for the maritime belt, that is:--to recognise, on the one hand, sovereignty of the territorial State over the space of its atmosphere, but, on the other hand, to give a right to foreign States to demand from the territorial State that foreign private--but not public!--air-vessels may pass through its atmosphere, provided they comply with the rules enacted by the territorial State for the aerial traffic.[293]

[Footnote 292: The literature on aviation is abundant, see Holtzendorff, II. p. 230; Lawrence, § 73; Bonfils, Nos. 531{1}-531{9}; Despagnet, Nos. 433 _bis_ and 433 _ter_; Mérignhac, II. pp. 398-410; Nys, I. pp. 523-532; Grünwald, "Das Luftschiff, &c." (1908); Meili, "Das Luftschiff, &c." (1908); Meurer, "Luftschiffahrtsrecht" (1909); Meyer, "Die Erschliessung des Luftraums und ihre rechtlichen Folgen" (1909); Magnani, "Il diritto sullo spazio aereo e l'aeronautica" (1909); Leech, "The Jurisprudence of the Air" (1910), a reprint from the _Journal of the Royal Artillery_, vol. XXXVII.; Lycklama à Nijeholt, "Air Sovereignty" (1910); Hazeltine, "The Law of the Air" (1911); Bielenberg, "Die Freiheit des Luftraums" (1911); Catellani, "Il diritto aereo" (1911); Sperl, "Die Luftschiffahrt, &c." (1911); Loubeyre, "Les principes du droit aérien" (1911); Fauchille in Annuaire, XIX. (1902) pp. 19-114, XXIV. (1911), and in R.G. VIII. (1901), pp. 414-485, XVII. (1910), pp. 55-62; Zitelmann in the _Zeitschrift für internationales Privat- und Öffentliches Recht_, XIX. (1909), pp. 458-496; Baldwin and Kuhm in A.J. IV. (1910), pp. 95-108, 109-132; Baldwin in Z.V. V. (1911), pp. 394-399.]

[Footnote 293: The Institute of International Law is studying the question of aviation, and passed, in 1911, at its meeting in Madrid, some rules concerning the "Régime juridiques des Aéronefs"; see Annuaire, XXIV. (1911).]

Aviation through the atmosphere above the Open Sea will require special regulation on account of the dangers to the vessels of all nations traversing the sea, as will also aviation in general in time of war.

[Sidenote: Inalienability of Parts of Territory.]

§ 175. It should be mentioned that not every part of territory is alienable by the owner-State. For it is evident that the territorial waters are as much inseparable appurtenances of the land as are the territorial subsoil and atmosphere. Only pieces of land together with the appurtenant territorial waters are alienable parts of territory.[294] There is, however, one exception to this, since boundary waters[295] may wholly belong to one of the riparian States, and may therefore be transferred through cession from one to the other riparian State without the bank itself. But it is obvious that this is only an apparent, not a real, exception to the rule that territorial waters are inseparable appurtenances of the land. For boundary waters that are ceded to the other riparian State remain an appurtenance of land, although they are now an appurtenance of the one bank only.

[Footnote 294: See below, § 185.]

[Footnote 295: See below, § 199.]

III

RIVERS

Grotius, II. c. 2, §§ 11-15--Pufendorf, III. c. 3, § 8--Vattel,
II. §§ 117, 128, 129, 134--Hall, § 39--Westlake, I. pp.
142-159--Lawrence, § 92--Phillimore, I. §§ 125-151--Twiss, I. §
145--Halleck, I. pp. 171-177--Taylor, §§ 233-241--Walker, §
16--Wharton, I. § 30--Moore, I. §§ 128-132--Wheaton, §§
192-205--Bluntschli, §§ 314, 315--Hartmann, § 58--Heffter, §
77--Caratheodory in Holtzendorff, II. pp. 279-406--Gareis, §
20--Liszt, §§ 9 and 27--Ullmann, §§ 87 and 105--Bonfils, Nos.
520-531--Despagnet, Nos. 419-421--Mérignhac, II. pp.
605-632--Pradier-Fodéré, II. Nos. 688-755--Nys, I. pp. 438-441,
and II. pp. 109-131--Rivier, I. p. 142 and § 14--Calvo, I. §§
302-340--Fiore, II. Nos. 755-776, and Code, §§ 283-285 and
976-982--Martens, I. § 102, II. § 57--Delavaud, "Navigation ...
sur les fleuves internationaux" (1885)--Engehardt, "Du régime
conventionnel des fleuves internationaux" (1879), and "Histoire du
droit fluvial conventionnel" (1889)--Vernesco, "Des fleuves en
droit international" (1888)--Orban, "Etude sur le droit fluvial
international" (1896)--Berges, "Du régime de navigation des
fleuves internationaux" (1902)--Lopez, "Regimen internacional de
los rios navigables" (1905)--Huber in Z.V. I. (1906), pp. 29 and
159--Hyde in A.J. IV. (1910), pp. 145-155.

[Sidenote: Rivers State property of Riparian States.]

§ 176. Theory and practice agree upon the rule that rivers are part of the territory of the riparian State. Consequently, if a river lies wholly, that is, from its source to its mouth, within the boundaries of one and the same State, such State owns it exclusively. As such rivers are under the sway of one State only and exclusively, they are named "national rivers." Thus, all English, Scotch, and Irish rivers are national, and so are, to give some Continental examples, the Seine, Loire, and Garonne, which are French; the Tiber, which is Italian; the Volga, which is Russian. But many rivers do not run through the land of one and the same State only, whether they are so-called "boundary rivers," that is, rivers which separate two different States from each other, or whether they run through several States and are therefore named "not-national rivers." Such rivers are not owned by one State alone. Boundary rivers belong to the territory of the States they separate, the boundary line[296] running either through the middle of the river or through the middle of the so-called mid-channel of the river. And rivers which run through several States belong to the territories of the States concerned; each State owns that part of the river which runs through its territory.

[Footnote 296: See below, § 199, and Huber in Z.V. I. (1906), pp. 29 and 159.]

There is, however, another group of rivers to be mentioned, which comprises all such rivers as are navigable from the Open Sea and at the same time either separate or pass through several States between their sources and their mouths. Such rivers, too, belong to the territory of the different States concerned, but they are nevertheless named "international rivers," because freedom of navigation in time of peace on all of those rivers in Europe and on many of them outside Europe for merchantmen of all nations is recognised by International Law.

[Sidenote: Navigation on National, Boundary and not-National Rivers.]

§ 177. There is no rule of the Law of Nations in existence which grants foreign States the right of admittance of their public or private vessels to navigation on national rivers. In the absence of commercial or other treaties granting such a right, every State can exclude foreign vessels from its national rivers or admit them under certain conditions only, such as the payment of a due and the like. The teaching of Grotius (II. c. 2, § 12) that innocent passage through rivers must be granted has not been recognised by the practice of the States, and Bluntschli's assertion (§ 314) that such rivers as are navigable from the Open Sea must in time of peace be open to vessels of all nations, is at best an anticipation of a future rule of International Law, it does not as yet exist.

As regards boundary rivers and rivers running through several States, the riparian States[297] can regulate navigation on such parts of these rivers as they own, and they can certainly exclude vessels of non-riparian States altogether unless prevented therefrom by virtue of special treaties.

[Footnote 297: See below, § 178_a_.]

[Sidenote: Navigation on International Rivers.]

§ 178. Whereas there is certainly no recognised principle of free navigation on national, boundary, and not-national rivers, a movement for the recognition of free navigation on international rivers set in at the beginning of the nineteenth century. Until the French Revolution towards the end of the eighteenth century, the riparian States of such rivers as are now called international rivers could, in the absence of special treaties, exclude foreign vessels altogether from those parts of the rivers which run through their territory, or admit them under discretionary conditions. Thus, the river Scheldt was wholly shut up in favour of the Netherlands according to article 14 of the Peace Treaty of Munster of 1648 between the Netherlands and Spain. The development of things in the contrary direction begins with a Decree of the French Convention, dated November 16, 1792, which opens the rivers Scheldt and Meuse to the vessels of all riparian States. But it was not until the Vienna Congress[298] in 1815 that the principle of free navigation on the international rivers of Europe by merchantmen of not only the riparian but of all States was proclaimed. The Congress itself realised theoretically that principle in making arrangements[299] for free navigation on the rivers Scheldt, Meuse, Rhine, and on the navigable tributaries of the latter--namely, the rivers Neckar, Maine, and Moselle--although more than fifty years elapsed before the principle became realised in practice.

[Footnote 298: Articles 108-117 of the Final Act of the Vienna Congress; see Martens, N.R. II. p. 427.]

[Footnote 299: "Règlements pour la libre navigation des rivières"; see Martens, N.R. II. p. 434.]

The next step was taken by the Peace Treaty of Paris of 1856, which by its article 15[300] stipulated free navigation on the Danube and expressly declared the principle of the Vienna Congress regarding free navigation on international rivers for merchantmen of all nations as a part of "European Public Law." A special international organ for the regulation of navigation on the Danube was created, the so-called European Danube Commission.

[Footnote 300: See Martens, N.R.G. XV. p. 776. The documents concerning navigation on the Danube are collected by Sturdza, "Recueil de documents relatifs à la liberté de navigation du Danube" (Berlin, 1904).]

A further development took place at the Congo Conference at Berlin in 1884-85, since the General Act[301] of this Conference stipulated free navigation on the rivers Congo and Niger and their tributaries, and created the so-called "International Congo Commission" as a special international organ for the regulation of the navigation of the said rivers.

[Footnote 301: See Martens, N.R.G. 2nd Ser. X. p. 417.]

Side by side with these general treaties, which recognise free navigation on international rivers, stand treaties[302] of several South American States with other States concerning free navigation for merchantmen of all nations on a number of South American rivers. And the Arbitration Court in the case of the boundary dispute between Great Britain and Venezuela decided in 1903 in favour of free navigation for merchantmen of all nations on the rivers Amakourou and Barima.

[Footnote 302: See Taylor, § 238, and Moore, I. § 131, pp. 639-651.]

Thus the principle of free navigation, which is a settled fact as regards all European and some African international rivers, becomes more and more extended over all other international rivers of the world. But when several writers maintain that free navigation on all international rivers of the world is already a recognised rule of the Law of Nations, they are decidedly wrong, although such a universal rule will certainly be proclaimed in the future. There can be no doubt that as regards the South American rivers the principle is recognised by treaties between a small number of Powers only. And there are examples which show that the principle is not yet universally recognised. Thus by article 4 of the Treaty of Washington of 1854 between Great Britain and the United States the former grants to vessels of the latter free navigation on the river St. Lawrence as a revocable privilege, and article 26 of the Treaty of Washington of 1871 stipulates for vessels of the United States, but not for vessels of other nations, free navigation "for ever" on the same river.[303]

[Footnote 303: See Wharton, pp. 81-83; Moore, I. § 131, p. 631, and Hall, § 39.]

However this may be, the principle of free navigation embodies the rule that vessels of all nations must be admitted without payment of any dues whatever. Yet this principle does not exclude the levy of dues from all navigating vessels for expenses incurred by the riparian States for such improvements of the navigability of rivers as embankments, breakwaters, and the like.[304]

[Footnote 304: As regards the question of levying dues for navigation of the rivers Rhine and Elbe, see Arndt in Z.V. IV. (1910), pp. 208-229.]

I should mention that the Institute of International Law, at its meeting at Heidelberg in 1888, adopted a _Projet de Règlement international de navigation fluviale_,[305] which comprises forty articles.

[Footnote 305: See Annuaire, IX. p. 182.]

[Sidenote: Utilisation of the flow of rivers.]

§ 178_a_. Apart from navigation on rivers, the question of the utilisation of the flow of rivers is of importance. With regard to national rivers, the question can not indeed be raised, since the local State is absolutely unhindered in the utilisation of the flow. But the flow of not-national, boundary, and international rivers is not within the arbitrary power of one of the riparian States, for it is a rule of International Law[306] that no State is allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State. For this reason a State is not only forbidden to stop or to divert the flow of a river which runs from its own to a neighbouring State, but likewise to make such use of the water of the river as either causes danger to the neighbouring State or prevents it from making proper use[307] of the flow of the river on its part. Since, apart from special treaties between neighbouring countries concerning special cases, neither customary nor conventional detailed rules of International Law concerning this subject are in existence, the Institute of International Law, at its meeting at Madrid[308] in 1911, adopted the following "_Réglementation internationale des cours d'eau internationaux au point de vue de leur force motrice et de leur utilisation industrielle ou agricole_":--

I. When a stream of water forms the frontier of two States,
neither State may, without the consent of the other, and in the
absence of a special and valid legal title, make any changes
prejudicial to the bank of the other State, nor allow such changes
to be made by individuals, societies, &c. Moreover, neither State
may on its own territory utilise the water, or allow it to be
utilised, in such a manner as to cause great damage to its
utilisation by the other State or by the individuals, societies,
&c., of the other.

The foregoing conditions are also applicable when a lake is
situated between territories of more than two States.

II. When a stream of water traverses successively the territories
of two or of several States:--

(1) The point at which this stream of water traverses the
frontiers of the two States, whether natural or from time
immemorial, may not be changed by the establishments of one of the
States without the assent of the other.

(2) It is forbidden to make any alteration injurious to the
water, or to throw in injurious matter (coming from factories,
&c.).

(3) Water may not be withdrawn by the establishments (especially
factories for the working of hydraulic pressure) in such a
quantity as to modify greatly the constitution, or, in other
words, the utilisable character or the essential character, of the
stream of water on its arrival at the territory nearer the mouth
of the river.

The right of navigation by virtue of a title recognised by
International Law cannot be restricted by any usage whatever.

(4) A State farther down the river may not make, or allow to be
made, in its territory any constructions or establishments which
might cause danger of flooding a State farther up the river.

(5) The foregoing rules are applicable in the same way to the case
in which streams of water flow from a lake, which is situated in
one territory, into the territory of another State or the
territories of other States.

(6) It is recommended that the States concerned appoint common
permanent Commissions which may give decisions, or at least may
give their advice, when such new establishments are built, or when
such modifications are made in the existing establishments, as may
influence the flow of the stream of water situated on the
territory of another State.

[Footnote 306: See above, § 127.]

[Footnote 307: See, for instance, the treaty of Washington of January 11, 1909--Martens, N.R.G. 3rd Ser. (1911), p. 208--between Great Britain and the United States concerning the utilisation of the boundary waters between the United States and Canada.]

[Footnote 308: See Annuaire, XXIV. (1911). See also Bar in R.G. XVII. (1910), pp. 281-288.]

IV

LAKES AND LAND-LOCKED SEAS

Vattel, I. § 294--Hall, § 38--Phillimore, I. §§ 205-205A--Twiss,
I. § 181--Halleck, I. p. 170--Moore, I. §§ 135-143--Bluntschli, §
316--Hartmann, § 58--Heffter, § 77--Caratheodory in Holtzendorff,
II. pp. 378-385--Gareis, §§ 20-21--Liszt, § 9--Ullmann, §§ 88 and
106--Bonfils, Nos. 495-505--Despagnet, No. 407--Mérignhac, II.
587-596--Pradier-Fodéré, II. Nos. 640-649--Nys, I. pp.
447-450--Calvo, I. §§ 301, 373, 383--Fiore, II. Nos. 811-813, and
Code, Nos. 279 and 1000--Martens, I. § 100--Rivier, I. pp.
143-145, 230--Mischeff, "La Mer Noire et les détroits de
Constantinople" (1901)--Hunt in A.J. IV. (1910), pp. 285-313.

[Sidenote: Lakes and land-locked seas State Property of Riparian States.]

§ 179. Theory and practice agree upon the rule that such lakes and land-locked seas as are entirely enclosed by the land of one and the same State are part of the territory of this State. Thus the Dead Sea in Palestine is Turkish, the Sea of Aral is Russian, the Lake of Como is Italian territory. As regards, however, such lakes and land-locked seas as are surrounded by the territories of several States, no unanimity exists. The majority of writers consider these lakes and land-locked seas parts of the surrounding territories, but several[309] dissent, asserting that these lakes and seas do not belong to the riparian States, but are free like the Open Sea. The practice of the States seems to favour the opinion of the majority of writers, for special treaties frequently arrange what portions of such lakes and seas belong to the riparian States.[310] Examples are:--The Lake of Constance,[311] which is surrounded by the territories of Germany (Baden, Würtemberg, Bavaria), Austria, and Switzerland (Thurgau and St. Gall); the Lake of Geneva, which belongs to Switzerland and France; the Lakes of Huron, Erie, and Ontario, which belong to British Canada and the United States; the Caspian Sea, which belongs to Persia and Russia.[312]

[Footnote 309: See, for instance, Calvo, I. § 301; Caratheodory in Holtzendorff, II. p. 378.]

[Footnote 310: As regards the utilisation of the flow of such lakes and seas, the same is valid as that concerning the utilisation of the flow of rivers; see above, § 178_a_.]

[Footnote 311: See Stoffel, "Die Fischerei-Verhältnisse des Bodensees unter besonderer Berücksichtigung der an ihm bestehenden Hoheitsrechte" (1906).]

[Footnote 312: But the Caspian Sea is almost entirely under Russian control through the two treaties of Gulistan (1813) and Tourkmantschai (1828). See Rivier, I. p. 144, and Phillimore, I. § 205.]

[Sidenote: So-called International Lakes and Land-locked Seas.]

§ 180. In analogy with so-called international rivers, such lakes and land-locked seas as are surrounded by the territories of several States and are at the same time navigable from the Open Sea, are called "international lakes and land-locked seas." However, although some writers[313] dissent, it must be emphasised that hitherto the Law of Nations has not recognised the principle of free navigation on such lakes and seas. The only case in which such free navigation is stipulated is that of the lakes within the Congo district.[314] But there is no doubt that in a near future this principle will be recognised, and practically all so-called international lakes and land-locked seas are actually open to merchantmen of all nations. Good examples of such international lakes and land-locked seas are the fore-named lakes of Huron, Erie, and Ontario.

[Footnote 313: See, for instance, Rivier, I. p. 230; Caratheodory in Holtzendorff, II. p. 378; Calvo, I. § 301.]

[Footnote 314: Article 15 of the General Act of the Congo Conference. (See Martens, N.R.G. 2nd Ser. X. p. 417.)]

[Sidenote: The Black Sea.]

§ 181. It is of interest to give some details regarding the Black Sea. This is a land-locked sea which was undoubtedly wholly a part of Turkish territory as long as the enclosing land was Turkish only, and as long as the Bosphorus and the Dardanelles, the approach to the Black Sea, which are exclusively part of Turkish territory, were not open for merchantmen of all nations. But matters have changed through Russia, Roumania, and Bulgaria having become littoral States. It would be wrong to maintain that now the Black Sea belongs to the territories of the four States, for the Bosphorus and the Dardanelles, although belonging to Turkish territory, are nevertheless parts of the Mediterranean Sea, and are now open to merchantmen of all nations. The Black Sea is consequently now part of the Open Sea[315] and is not the property of any State. Article 11 of the Peace Treaty of Paris,[316] 1856, neutralised the Black Sea, declared it open to merchantmen of all nations, but interdicted it to men-of-war of the littoral as well as of other States, admitting only a few Turkish and Russian public vessels for the service of their coasts. But although the neutralisation was stipulated "formally and in perpetuity," it lasted only till 1870. In that year, during the Franco-German War, Russia shook off the restrictions of the Treaty of Paris, and the Powers assembled at the Conference of London signed on March 13, 1871, the Treaty of London,[317] by which the neutralisation of the Black Sea and the exclusion of men-of-war therefrom were abolished. But the right of the Porte to forbid foreign men-of-war passage through the Dardanelles and the Bosphorus[318] was upheld by that treaty, as was also free navigation for merchantmen of all nations on the Black Sea.

[Footnote 315: See below, § 252.]

[Footnote 316: See Martens, N.R.G. XV. p. 775.]

[Footnote 317: See Martens, N.R.G. XVIII. p. 303.]

[Footnote 318: See below, § 197.]

V

CANALS

Westlake, I. pp. 320-331--Lawrence, § 90, and Essays, pp.
41-162--Phillimore, I. §§ 399 and 207--Moore, III. §§
336-371--Caratheodory in Holtzendorff, II. pp. 386-405--Liszt, §
27--Ullmann, § 106--Bonfils, Nos. 511-515--Despagnet, No.
418--Mérignhac, II. pp. 597-604--Pradier-Fodéré, II. Nos.
658-660--Nys, I. pp. 475-495--Rivier, I. § 16--Calvo, I. §§
376-380--Fiore, Code, Nos. 983-987--Martens, II. § 59--Sir Travers
Twiss in R.I. VII. (1875), p. 682, XIV. (1882), p. 572, XVII.
(1885), p. 615--Holland, Studies, pp. 270-298--Asser in R.I. XX.
(1888), p. 529--Bustamante in R.I. XXVII. (1895), p.
112--Rossignol, "Le Canal de Suez" (1898)--Camand, "Étude sur le
régime juridique du Canal de Suez" (1899)--Charles-Roux, "L'Isthme
et le canal de Suez" (1901)--Othalom, "Der Suezkanal"
(1905)--Müller-Heymer, "Der Panamakanal in der Politik der
Vereinigten Staaten" (1909)--Arias, "The Panama Canal"
(1911)--Hains, Davis, Knapp, Wambough, Olney, and Kennedy in A.J.
III. (1909), pp. 354 and 885, IV. (1910), p. 314, V. (1911), pp.
298, 615, 620.

[Sidenote: Canals State Property of Riparian States]

§ 182. That canals are parts of the territories of the respective territorial States is obvious from the fact that they are artificially constructed waterways. And there ought to be no doubt[319] that all the rules regarding rivers must analogously be applied to canals. The matter would need no special mention at all were it not for the interoceanic canals which have been constructed during the second half of the nineteenth century or are contemplated in the future. And as regards two of these, the Emperor William (Kiel or Baltic) Canal, which connects the Baltic with the North Sea, and the Corinth Canal, which connects the Gulf of Corinth with the Gulf of Ægina, there is not much to be said. The former is a canal made mainly for strategic purposes by the German Empire entirely through German territory. Although Germany keeps it open for navigation to vessels of all other nations, she exclusively controls the navigation thereof, and can at any moment exclude foreign vessels at discretion, or admit them upon any conditions she likes, apart from special treaty arrangements to the contrary. The Corinth Canal is entirely within the territory of Greece, and although the canal is kept open for navigation to vessels of all nations, Greece exclusively controls the navigation thereof.

[Footnote 319: See, however, Holland, Studies, p. 278.]

[Sidenote: The Suez Canal.]

§ 183. The most important of the interoceanic canals is that of Suez, which connects the Red Sea with the Mediterranean. Already in 1838 Prince Metternich gave his opinion that such a canal, if ever made, ought to become neutralised by an international treaty of the Powers. When, in 1869, the Suez Canal was opened, jurists and diplomatists at once discussed what means could be found to secure free navigation upon it for vessels of all kinds and all nations in time of peace as well as of war. In 1875 Sir Travers Twiss[320] proposed the neutralisation of the canal, and in 1879 the Institute of International Law gave its vote[321] in favour of the protection of free navigation on the canal by an international treaty. In 1883 Great Britain proposed an international conference to the Powers for the purpose of neutralising the canal, but it took several years before an agreement was actualised. This was done by the Convention of Constantinople[322] of October 29, 1888, between Great Britain, Austria-Hungary, France, Germany, Holland, Italy, Spain, Russia, and Turkey. This treaty comprises seventeen articles, whose more important stipulations are the following:--

[Footnote 320: See R.I. VII. pp. 682-694.]

[Footnote 321: See Annuaire, III. and IV. vol. I. p. 349.]

[Footnote 322: See Martens, N.R.G. 2nd, Ser. XV. p. 557. It must, however, be mentioned that Great Britain is a party to the Convention of Constantinople under the reservation that its terms shall not be brought into operation in so far as they would not be compatible with the transitory and exceptional condition in which Egypt is put for the time being in consequence of her occupation by British forces, and in so far as they might fetter the liberty of action of the British Government during the occupation of Egypt. But article 6 of the Declaration respecting Egypt and Morocco signed at London on April 8, 1904, by Great Britain and France (see Parliamentary Papers, France, No. 1 (1904), p. 9), has done away with this reservation, since it stipulates the following:--"In order to ensure the free passage of the Suez Canal, his Britannic Majesty's Government declare that they adhere to the stipulations of the Treaty of October 29, 1888, and that they agree to their being put in force. The free passage of the canal being thus guaranteed, the execution of the last sentence of paragraph 1 as well as of paragraph 2 of article 8 of that treaty will remain in abeyance." (See Holland, Studies, p. 293, and Westlake, I. p. 328.)]

(1) The canal is open in time of peace as well as of war to merchantmen and men-of-war of all nations. No attempt to restrict this free usage of the canal is allowed in time either of peace or of war. The canal can never be blockaded (article 1).

(2) In time of war, even if Turkey is a belligerent, no act of hostility is allowed either inside the canal itself or within three sea miles from its ports. Men-of-war of the belligerents have to pass through the canal without delay. They may not stay longer than twenty-four hours, a case of absolute necessity excepted, within the harbours of Port Said and Suez, and twenty-four hours must intervene between the departure from those harbours of a belligerent man-of-war and a vessel of the enemy. Troops, munitions, and other war material may neither be shipped nor unshipped within the canal and its harbours. All rules regarding belligerents' men-of-war are likewise valid for their prizes (articles 4, 5, 6).

(3) No men-of-war are allowed to be stationed inside the canal, but each Power may station two men-of-war in the harbours of Port Said and Suez. Belligerents, however, are not allowed to station men-of-war in these harbours (article 7). No permanent fortifications are allowed in the canal (article 2).

(4) It is the task of Egypt to secure the carrying out of the stipulated rules, but the consuls of the Powers in Egypt are charged to watch the execution of these rules (articles 8 and 9).

(5) The signatory Powers are obliged to notify the treaty to others and to invite them to accede thereto (article 16).

[Sidenote: The Panama Canal.]

§ 184. Already in 1850 Great Britain and the United States in the Clayton-Bulwer Treaty[323] of Washington had stipulated the free navigation and neutralisation of a canal between the Pacific and the Atlantic Ocean proposed to be constructed by the way of the river St. Juan de Nicaragua and either or both of the lakes of Nicaragua and Managua. In 1881 the building of a canal through the Isthmus of Panama was taken in hand, but in 1888 the works were stopped in consequence of the financial collapse of the Company undertaking its construction. After this the United States came back to the old project of a canal by the way of the river St. Juan de Nicaragua. For the eventuality of the completion of this canal, Great Britain and the United States signed, on February 5, 1900, the Convention of Washington, which stipulated free navigation on and neutralisation of the proposed canal in analogy with the Convention of Constantinople, 1888, regarding the Suez Canal, but ratification was refused by the Senate of the United States. In the following year, however, on November 18, 1901, another treaty was signed and afterwards ratified. This so-called Hay-Pauncefote Treaty[324] applies to a canal between the Atlantic and Pacific Oceans by whatever route may be considered expedient, and its five articles are the following:--

[Footnote 323: See Martens, N.R.G. XV. p. 187, and Moore, III. §§ 351-365. According to its article 8 this treaty was also to be applied to a proposed canal through the Isthmus of Panama.]

[Footnote 324: See Moore, III. §§ 366-368.]

Article 1

The High Contracting Parties agree that the present Treaty shall
supersede the aforementioned Convention of April 19, 1850.

Article 2

It is agreed that the canal may be constructed under the auspices
of the Government of the United States, either directly at its own
cost, or by gift or loan of money to individuals or corporations,
or through subscription to or purchase of stock or shares, and
that, subject to the provisions of the present Treaty, the said
Government shall have and enjoy all the rights incident to such
construction, as well as the exclusive right of providing for the
regulation and management of the canal.

Article 3

The United States adopts, as the basis of the neutralisation of
such ship canal, the following Rules, substantially as embodied in
the Convention of Constantinople, signed October 29, 1888, for the
free navigation of the Suez Canal, that is to say:--

1. The canal shall be free and open to the vessels of commerce and
of war of all nations observing these Rules, on terms of entire
equality, so that there shall be no discrimination against any
such nation, or its citizens or subjects, in respect of the
conditions or charges of traffic, or otherwise. Such conditions
and charges of traffic shall be just and equitable.

2. The canal shall never be blockaded, nor shall any right of war
be exercised or any act of hostility be committed within it. The
United States, however, shall be at liberty to maintain such
military police along the canal as may be necessary to
protect[325] it against lawlessness and disorder.

[Footnote 325: This does not mean that the United States have a
right permanently to fortify the canal. Such a right has likewise
been deduced from article 23 of the Hay-Varilla Treaty of November
18, 1903, which runs:--"If it should become necessary at any time
to employ armed forces for the safety or protection of the canal,
or of the ships that make use of the same, or the railways and
auxiliary works, the United States shall have the right, at all
times in its discretion, to use its police and its land and naval
forces or to establish fortifications for these purposes."
However, it would seem that by this article 23 only temporary
fortifications are contemplated. On the other hand, if read by
itself, article 3 of the Hay-Varilla Treaty, according to which
the Republic of Panama grants to the United States all the rights,
power, and authority which the United States would possess and
exercise if she were the sovereign of the territory concerned,
could be quoted as indirectly empowering the United States to
fortify the Panama Canal permanently. But the question is whether
article 3 must not be interpreted in connection with article 23.
The fact that article 23 stipulates expressly the power of the
United States temporarily to establish fortifications would seem
to indicate that it was intended to exclude permanent
fortifications. The question of the fortification of the Panama
Canal is discussed by Hains (_contra_) and Davis (_pro_) in A.J.
III. (1909), pp. 354-394 and pp. 885-908, and by Olney, Wambough,
and Kennedy in A.J. V. (1911), pp. 298, 615, 620.]

3. Vessels of war of a belligerent shall not revictual nor take
any stores in the canal except so far as may be strictly
necessary; and the transit of such vessels through the canal
shall be effected with the least possible delay in accordance with
the regulations in force, and with only such intermission as may
result from the necessities of the service.

Prizes shall be in all respects subject to the same rules as
vessels of war of belligerents.

4. No belligerent shall embark or disembark troops, munitions of
war, or warlike materials in the canal, except in case of
accidental hindrance of the transit, and in such case the transit
shall be resumed with all possible despatch.

5. The provisions of this article shall apply to waters adjacent
to the canal, within three marine miles of either end. Vessels of
war of a belligerent shall not remain in such waters longer than
twenty-four hours at any one time except in case of distress, and
in such case shall depart as soon as possible; but a vessel of war
of one belligerent shall not depart within twenty-four hours from
the departure of a vessel of war of the other belligerent.

6. The plant, establishments, buildings and all works necessary to
the construction, maintenance, and operation of the canal shall be
deemed to be part thereof, for the purposes of this Treaty, and in
time of war, as in time of peace, shall enjoy complete immunity
from attack or injury by belligerents, and from acts calculated to
impair their usefulness as part of the canal.

Article 4

It is agreed that no change of territorial sovereignty or of the
international relations of the country or countries traversed by
the before-mentioned canal shall affect the general principle of
neutralisation or the obligation of the high contracting parties
under the present Treaty.

Article 5

The present Treaty shall be ratified by his Britannic Majesty and
by the President of the United States, by and with the advice and
consent of the Senate thereof; and the ratifications shall be
exchanged at Washington or at London at the earliest possible time
within six months from the date hereof.

In faith whereof the respective Plenipotentiaries have signed this
Treaty and thereunto affixed their seals.

Done in duplicate at Washington, the 18th day of November, in the
year of Our Lord 1901.

(Seal) PAUNCEFOTE.
(Seal) JOHN HAY.