Chapter I: State Territory (2)

On November 18, 1903, the so-called Hay-Varilla Treaty[326] was concluded between the United States and the new Republic of Panama, according to which, on the one hand, the United States guarantees and will maintain the independence of the Republic of Panama, and, on the other hand, the Republic of Panama grants[327] to the United States in perpetuity for the construction, administration, and protection of a canal between Colon and Panama the use, occupation, and control of a strip of land required for the construction of the canal, and, further, of land on both sides of the canal to the extent of five miles on either side, with the exclusion, however, of the cities of Panama and Colon and the harbours adjacent to these cities. According to article 18 of this treaty the canal and the entrance thereto shall be neutral in perpetuity, and shall be open to vessels of all nations as stipulated by article 3 of the Hay-Pauncefote Treaty.

[Footnote 326: See Martens, N.R.G. 2nd Ser. XXXI. p. 599.]

[Footnote 327: That this grant is really cession all but in name, was pointed out above, § 171 (4); see also below § 216.]

VI

MARITIME BELT

Grotius, II. c. 3, § 13--Vattel, I. §§ 287-290--Hall, §§
41-42--Westlake, I. pp. 183-192--Lawrence, § 187--Phillimore, I.
§§ 197-201--Twiss, I. §§ 144, 190-192--Halleck, I. pp.
157-167--Taylor, §§ 247-250--Walker, § 17--Wharton, § 32--Moore,
I. §§ 144-152--Wheaton, §§ 177-180--Bluntschli, §§ 302,
309-310--Hartmann, § 58--Heffter, § 75--Stoerk in Holtzendorff,
II. pp. 409-449--Gareis, § 21--Liszt, § 9--Ullmann, § 87--Bonfils,
Nos. 491-494--Despagnet, Nos. 403-414--Mérignhac, II. pp.
370-392--Pradier-Fodéré, II. Nos. 617-639--Nys, I. pp.
496-520--Rivier, I. pp. 145-153--Calvo, I. §§ 353-362--Fiore, II.
Nos. 801-809, and Code, Nos. 271-273, 1025--Martens, I. §
99--Bynkershoek, "De dominio maris" and "Quaestiones juris
publici," I. c. 8--Ortolan, "Diplomatie de la mer" (1856), I. pp.
150-175--Heilborn, System, pp. 37-57--Imbart-Latour, "La mer
territoriale, &c." (1889)--Godey, "La mer côtière"
(1896)--Schücking, "Das Küstenmeer im internationalen Recht"
(1897)--Perels, § 5--Fulton, "The Sovereignty of the Seas" (1911),
pp. 537-740--Barclay in Annuaire, XII. (1892), pp. 104-136, and
XIII. (1894), pp. 125-162--Martens in R.G. I. (1894), pp.
32-43--Aubert, _ibidem_, pp. 429-441--Engelhardt in R.I. XXVI.
(1894), pp. 209-213--Godey in R.G. III. (1896), pp.
224-237--Lapradelle in R.G. V. (1898), pp. 264-284, 309-347.

[Sidenote: State Property of Maritime Belt contested.]

§ 185. Maritime belt is that part of the sea which, in contradistinction to the Open Sea, is under the sway of the littoral States. But no unanimity exists with regard to the nature of the sway of the littoral States. Many writers maintain that such sway is sovereignty, that the maritime belt is a part of the territory of the littoral State, and that the territorial supremacy of the latter extends over its coast waters. Whereas it is nowadays universally recognised that the Open Sea cannot be State property, such part of the sea as makes the coast waters would, according to the opinion of these writers, actually be the State property of the littoral States, although foreign States have a right of innocent passage of their merchantmen through the coast waters.

On the other hand, many writers of great authority emphatically deny the territorial character of the maritime belt and concede to the littoral States, in the interest of the safety of the coast, only certain powers of control, jurisdiction, police, and the like, but not sovereignty.

This is surely erroneous, since the real facts of international life would seem to agree with the first-mentioned opinion only. Its supporters rightly maintain[328] that the universally recognised fact of the exclusive right of the littoral State to appropriate the natural products of the sea in the coast waters, especially the use of the fishery therein, can coincide only with the territorial character of the maritime belt. The argument of their opponents that, if the belt is to be considered a part of State territory, every littoral State must have the right to cede and exchange its coast waters, can properly be met by the statement that territorial waters of all kinds are inalienable appurtenances[329] of the littoral and riparian States.[330]

[Footnote 328: Hall, p. 158. The question is treated with great clearness by Heilborn, "System," pp. 37-57, and Schücking, pp. 14-20.]

[Footnote 329: See above, § 175. Bynkershoek's ("De Dominio Maris," c. 5) opinion that a littoral State can alienate its maritime belt without the coast itself, is at the present day untenable.]

[Footnote 330: The fact that art. I. of Convention 13 (Neutral Rights and Duties in Maritime War) of the second Hague Peace Conference, 1907, speaks of sovereign rights ... in neutral waters would seem to indicate that the States themselves consider their sway over the maritime belt to be of the nature of sovereignty.]

[Sidenote: Breadth of Maritime Belt.]

§ 186. Be that as it may, the question arises how far into the sea those waters extend which are coast waters and are therefore under the sway of the littoral State. Here, too, no unanimity exists upon either the starting line of the belt on the coast or the breadth itself of the belt from such starting line.

(1) Whereas the starting line is sometimes drawn along high-water mark, many writers draw it along low-water mark. Others draw it along the depths where the waters cease to be navigable; others again along those depths where coast batteries can still be erected, and so on.[331] But the number of those who draw it along low-water mark is increasing. The Institute of International Law[332] has voted in favour of this starting line, and many treaties stipulate the same.

[Footnote 331: See Schücking, p. 13.]

[Footnote 332: See Annuaire, XIII. p. 329.]

(2) With regard to the breadth of the maritime belt various opinions have in former times been held, and very exorbitant claims have been advanced by different States. And although Bynkershoek's rule that _terrae potestas finitur ubi finitur armorum vis_ is now generally recognised by theory and practice, and consequently a belt of such breadth is considered under the sway of the littoral State as is within effective range of the shore batteries, there is still no unanimity on account of the fact that such range is day by day increasing. Since at the end of the eighteenth century the range of artillery was about three miles, or one marine league, that distance became generally[333] recognised as the breadth of the maritime belt. But no sooner was a common doctrine originated than the range of projectiles increased with the manufacture of heavier guns. And although Great Britain, France, Austria, the United States of America, and other States, in Municipal Laws and International Treaties still adhere to a breadth of one marine league, the time will come when by a common agreement of the States such breadth will be very much extended.[334] As regards Great Britain, the Territorial Waters Jurisdiction Act[335] of 1878 (41 and 42 Vict. c. 73) specially recognises the extent of the territorial maritime belt as three miles, or one marine league, measured from the low-water mark of the coast.

[Footnote 333: But not universally. Thus Norway claims a breadth of four miles and Spain even a breadth of six miles. As regards Norway, see Aubert in R.G. I. (1894), pp. 429-441.]

[Footnote 334: The Institute of International Law has voted in favour of six miles, or two marine leagues, as the breadth of the belt. See Annuaire, XIII. p. 281.]

[Footnote 335: See above, § 25, and Maine, p. 39.]

[Sidenote: Fisheries, Cabotage, Police, and Maritime Ceremonials within the Belt.]

§ 187. Theory and practice agree upon the following principles with regard to fisheries, cabotage, police, and maritime ceremonials within the maritime belt:--

(1) The littoral State can exclusively reserve the fishery within the maritime belt[336] for its own subjects, whether fish or pearls or amber or other products of the sea are in consideration.

[Footnote 336: All treaties stipulate for the purpose of fishery a three miles wide territorial maritime belt. See, for instance, article 1 of the Hague Convention concerning police and fishery in the North Sea of May 6, 1882. (Martens, N.R.G. 2nd Ser. IX. p. 556.)]

(2) The littoral State can, in the absence of special treaties to the contrary, exclude foreign vessels from navigation and trade along the coast, the so-called cabotage,[337] and reserve this cabotage exclusively for its own vessels. Cabotage meant originally navigation and trade along the same stretch of coast between the ports thereof, such coast belonging to the territory of one and the same State. However, the term cabotage or coasting trade as used in commercial treaties comprises now[338] sea trade between any two ports of the same country, whether on the same coasts or different coasts, provided always that the different coasts are all of them the coasts of one and the same country as a political and geographical unit in contradistinction to the coasts of colonial dependencies of such country.

[Footnote 337: See Pradier-Fodéré V. Nos. 2441, 2442.]

[Footnote 338: See below, § 579, where the matter is more amply treated.]

(3) The littoral State can exclusively exercise police and control within its maritime belt in the interest of its custom-house duties, the secrecy of its coast fortifications, and the like. Thus foreign vessels can be ordered to take certain routes and to avoid others.

(4) The littoral State can make laws and regulations regarding maritime ceremonials to be observed by such foreign merchantmen as enter its territorial maritime belt.[339]

[Footnote 339: See Twiss, I. § 194.]

[Sidenote: Navigation within the Belt.]

§ 188. Although the maritime belt is a portion of the territory of the littoral State and therefore under the absolute territorial supremacy of such State, the belt is nevertheless, according to the practice of all the States, open to merchantmen of all nations for inoffensive navigation, cabotage excepted. And it is the common conviction[340] that every State has by customary International Law the _right_ to demand that in time of peace its merchantmen may inoffensively pass through the territorial maritime belt of every other State. Such right is correctly said to be a consequence of the freedom of the Open Sea, for without this right navigation on the Open Sea by vessels of all nations would in fact be an impossibility. And it is a consequence of this right that no State can levy tolls for the mere passage of foreign vessels through its maritime belt. Although the littoral State may spend a considerable amount of money for the erection and maintenance of lighthouses and other facilities for safe navigation within its maritime belt, it cannot make merely passing foreign vessels pay for such outlays. It is only when foreign ships cast anchor within the belt or enter a port that they can be made to pay dues and tolls by the littoral State. Some writers[341] maintain that all nations have the right of inoffensive passage for their merchantmen by usage only, and not by the customary Law of Nations, and that, consequently, in strict law a littoral State can prevent such passage. They are certainly mistaken. An attempt on the part of a littoral State to prevent free navigation through the maritime belt in time of peace would meet with stern opposition on the part of all other States.

[Footnote 340: See above, § 142.]

[Footnote 341: Klüber, § 76; Pradier-Fodéré, II. No. 628.]

But a right of foreign States for their men-of-war to pass unhindered through the maritime belt is not generally recognised. Although many writers assert the existence of such a right, many others emphatically deny it. As a rule, however, in practice no State actually opposes in time of peace the passage of foreign men-of-war and other public vessels through its maritime belt. And it may safely be stated, first, that a usage has grown up by which such passage, if in every way inoffensive and without danger, shall not be denied in time of peace; and, secondly, that it is now a customary rule of International Law that the right of passage through such parts of the maritime belt as form part of the highways for international traffic cannot be denied to foreign men-of-war.[342]

[Footnote 342: See below, § 449.]

[Sidenote: Jurisdiction within the Belt.]

§ 189. That the littoral State has exclusive jurisdiction within the belt as regards mere matters of police and control is universally recognised. Thus it can exclude foreign pilots, can make custom-house arrangements, sanitary regulations, laws concerning stranded vessels and goods, and the like. It is further agreed that foreign merchantmen casting anchor within the belt or entering a port,[343] fall at once and _ipso facto_ under the jurisdiction of the littoral State. But it is a moot point whether such foreign vessels as do not stay but merely pass through the belt are for the time being under this jurisdiction. It is for this reason that the British Territorial Waters Jurisdiction Act of 1878 (41 & 42 Vict. c. 73), which claims such jurisdiction, has called forth protests from many writers.[344] The controversy itself can be decided only by the practice of the States. The British Act quoted, the basis of which is, in my opinion, sound and reasonable, is a powerful factor in initiating such a practice; but as yet no common practice of the States can be said to exist.

[Footnote 343: The Institute of International Law--see Annuaire, XVII. (1898), p. 273--adopted at its meeting at the Hague in 1898 a "_Règlement_ sur le régime légal des navires et de leurs équipages dans les ports étrangers" comprising seven rules.]

[Footnote 344: See Perels, pp. 69-77. The Institute of International Law, which at its meeting at Paris in 1894 adopted a body of eleven rules regarding the maritime belt, gulfs, bays, and straits, voted against the jurisdiction of a littoral State over foreign vessels merely passing through the belt. See Annuaire, XIII. p. 328.]

[Sidenote: Zone for Revenue and Sanitary Laws.]

§ 190. Different from the territorial maritime belt is the zone of the Open Sea, over which a littoral State extends the operation of its revenue and sanitary laws. The fact is that Great Britain and the United States, as well as other States, possess revenue and sanitary laws which impose certain duties not only on their own but also on such foreign vessels bound to one of their ports as are approaching, but not yet within, their territorial maritime belt.[345] Twiss and Phillimore agree that in strict law these Municipal Laws have no basis, since every State is by the Law of Nations prevented from extending its jurisdiction over the Open Sea, and that it is only the Comity of Nations which admits tacitly the operation of such Municipal Laws as long as foreign States do not object, and provided that no measure is taken within the territorial maritime belt of another nation. I doubt not that in time special arrangements will be made as regards this point by a universal international convention. But I believe that, since Municipal Laws of the above kind have been in existence for more than a hundred years and have not been opposed by other States, a customary rule of the Law of Nations may be said to exist which allows littoral States in the interest of their revenue and sanitary laws to impose certain duties on such foreign vessels bound to their ports as are approaching, although not yet within, their territorial maritime belt.

[Footnote 345: See, for instance, the British so-called _Hovering Acts_, 9 Geo. II. c. 35 and 24 Geo. III. c. 47. The matter is treated by Moore, I. § 151; Taylor, § 248; Twiss, I. § 190; Phillimore, I. § 198; Halleck, I. p. 157; Stoerk in Holtzendorff, II. pp. 475-478; Perels, § 5, pp. 25-28. See also Hall, "Foreign Powers and Jurisdiction," §§ 108 and 109, and Annuaire, XIII. (1894), pp. 135 and 141.]

VII

GULFS AND BAYS

Vattel, I. § 291--Hall, § 41--Westlake, I. pp. 183-192--Lawrence,
§ 72--Phillimore, I. §§ 196-206--Twiss, I. §§ 181-182--Halleck, I.
pp. 165-170--Taylor, §§ 229-231--Walker, § 18--Wharton, I. §§
27-28--Moore, I. § 153--Wheaton, §§ 181-190--Bluntschli, §§
309-310--Hartmann, § 58--Heffter, § 76--Stoerk in Holtzendorff,
II. pp. 419-428--Gareis, § 21--Liszt, § 9--Ullmann, § 88--Bonfils,
No. 516--Despagnet, Nos. 405-406--Mérignhac, II. pp.
394-397--Pradier-Fodéré, II. Nos. 661-681--Nys, I. pp.
441-447--Rivier, I. pp. 153-157--Calvo, I. §§ 366-367--Fiore, II.
Nos. 808-815, and Code, Nos. 278-279--Martens, I. § 100--Perels, §
5--Schücking, "Das Küstenmeer im internationalen Recht" (1897),
pp. 20-24--Barclay in Annuaire, XII. pp. 127-129--Oppenheim in
Z.V. I. (1907), pp. 579-587, and V. (1911), pp. 74-95.

[Sidenote: Territorial Gulfs and Bays.]

§ 191. It is generally admitted that such gulfs and bays as are enclosed by the land of one and the same littoral State, and whose entrance from the sea is narrow enough to be commanded by coast batteries erected on one or both sides of the entrance, belong to the territory of the littoral State even if the entrance is wider[346] than two marine leagues, or six miles.

[Footnote 346: I have no reason to alter the above statement, although Lord Fitzmaurice declared in the House of Lords on February 21, 1907, in the name of the British Government, that they considered such bays only to be territorial as possessed an entrance _not_ wider than six miles. The future will have to show whether Great Britain and her self-governing colonies consider themselves bound by this statement. No writer of authority can be quoted in favour of it, although Walker (§ 18) and Wilson and Tucker (5th ed., 1910, § 53) state it. Westlake (vol. I. p. 187) cannot be cited in favour of it, since he distinguishes between bays and gulfs in such a way as is not generally done by international lawyers, and as is certainly not recognised by geography; for the very examples which he enumerates as _gulfs_ are all called _bays_, namely those of Conception, of Cancale, of Chesapeake, and of Delaware. In the North Atlantic Coast Fisheries case, between the United States and Great Britain, which was decided by the Permanent Court of Arbitration at the Hague in 1910, the United States--see the official publication of the case, p. 136--also contended that only such bays could be considered territorial as possessed an entrance not wider than six miles, but the Court refused to agree to this contention.]

Some writers maintain that gulfs and bays whose entrance is wider than ten miles, or three and a third marine leagues, cannot belong to the territory of the littoral State, and the practice of some States accords with this opinion. But the practice of other countries, approved by many writers, goes beyond this limit. Thus Great Britain holds the Bay of Conception in Newfoundland to be territorial, although it goes forty miles into the land and has an entrance more than twenty miles wide. And the United States claim the Chesapeake and Delaware Bays, as well as other inlets of the same character, as territorial,[347] although many European writers oppose this claim. The Institute of International Law has voted in favour of a twelve miles wide entrance, but admits the territorial character of such gulfs and bays with a wider entrance as have been considered territorial for more than one hundred years.[348]

[Footnote 347: See Taylor, § 229; Wharton, I. §§ 27 and 28; Moore, I. § 153.]

[Footnote 348: See Annuaire, XIII. p. 329.]

As the matter stands, it is doubtful as regards many gulfs and bays whether they are territorial or not. Examples of territorial bays in Europe are: The Zuider Zee is Dutch; the Frische Haff, the Kurische Haff, and the Bay of Stettin, in the Baltic, are German, as is also the Jade Bay in the North Sea. The whole matter calls for an international congress to settle the question once for all which gulfs and bays are to be considered territorial. And it must be specially observed that it is hardly possible that Great Britain would still, as she formerly did for centuries, claim the territorial character of the so-called King's Chambers,[349] which include portions of the sea between lines drawn from headland to headland.

[Footnote 349: Whereas Hall (§ 41, p. 162) says: "England would, no doubt, not attempt any longer to assert a right of property over the King's Chambers," Phillimore (I. § 200) still keeps up this claim. The attitude of the British Government in the Moray Firth Case--see below, p. 264--would seem to demonstrate that this claim is no longer upheld. See also Lawrence, § 87, and Westlake, I. p. 188.]

[Sidenote: Non-territorial Gulfs and Bays.]

§ 192. Gulfs and bays surrounded by the land of one and the same littoral State whose entrance is so wide that it cannot be commanded by coast batteries, and, further, all gulfs and bays enclosed by the land of more than one littoral State, however narrow their entrance may be, are non-territorial. They are parts of the Open Sea, the marginal belt inside the gulfs and bays excepted. They can never be appropriated, they are in time of peace and war open to vessels of all nations including men-of-war, and foreign fishing vessels cannot, therefore, be compelled to comply with municipal regulations of the littoral State concerning the mode of fishing.

An illustrative case is that of the fisheries in the Moray Firth. By article 6 of the Herring[350] Fishery (Scotland) Act, 1889, beam and otter trawling is prohibited within certain limits of the Scotch coast, and the Moray Firth inside a line drawn from Duncansby Head in Caithness to Rattray Point in Aberdeenshire is included in the prohibited area. In 1905, Mortensen, the captain of a Norwegian fishing vessel, but a Danish subject, was prosecuted for an offence against the above-mentioned article 6, convicted, and fined by the Sheriff Court at Dornoch, although he contended that the incriminating act was committed outside three miles from the coast. He appealed to the High Court of Justiciary, which,[351] however, confirmed the verdict of the Sheriff Court, correctly asserting that, whether or not the Moray Firth could be considered as a British territorial bay, the Court was bound by a British Act of Parliament even if such Act violates a rule of International Law. The British Government, while recognising that the Scotch Courts were bound by the Act of Parliament concerned, likewise recognised that, the Moray Firth not being a British territorial bay, foreign fishing vessels could not be compelled to comply with an Act of Parliament regulating the mode of fishing in the Moray Firth outside three miles from the coast, and therefore remitted Mortensen's fine. To remedy the conflict between article 6 of the above-mentioned Herring Fishery (Scotland) Act, 1889, and the requirements of International Law, Parliament passed the Trawling in Prohibited Areas Prevention Act,[352] 1909, according to which no prosecution can take place for the exercise of prohibited fishing methods outside the three miles from the coast, but the fish so caught may not be landed or sold in the United Kingdom.[353]

[Footnote 350: 52 and 53 Vict. c. 23.]

[Footnote 351: Mortensen _v._ Peters, "The Scotch Law Times Reports," vol. 14, p. 227.]

[Footnote 352: 9 Edw. VII. c. 8.]

[Footnote 353: See Oppenheim in Z.V. V. (1911), pp. 74-95.]

[Sidenote: Navigation and Fishery in Territorial Gulfs and Bays.]

§ 193. As regards navigation and fishery within territorial gulfs and bays, the same rules of the Law of Nations are valid as in the case of navigation and fishery within the territorial maritime belt. The right of fishery may, therefore, exclusively be reserved for subjects of the littoral State.[354] And navigation, cabotage excepted, must be open to merchantmen of all nations, but foreign men-of-war need not be admitted.

[Footnote 354: The Hague Convention concerning police and fishery in the North Sea, concluded on May 6, 1882, between Great Britain, Belgium, Denmark, France, Germany, and Holland reserves by its article 2 the fishery for subjects of the littoral States of such bays as have an entrance from the sea not wider than ten miles, but reserves likewise a maritime belt of three miles to be measured from the line where the entrance is ten miles wide. Practically the fishery is therefore reserved for subjects of the littoral State within bays with an entrance thirteen miles wide. See Martens, N.R.G. 2nd Ser. IX. (1884), p. 556.]

VIII

STRAITS

Vattel, I. § 292--Hall, § 41--Westlake, I. pp. 193-197--Lawrence,
§§ 87-89--Phillimore, I. §§ 180-196--Twiss, I. §§ 183, 184,
189--Halleck, I. pp. 165-170--Taylor, §§ 229-231--Walker, §
17--Wharton, §§ 27-29--Wheaton, §§ 181-190--Moore, I. §§
133-134--Bluntschli, § 303--Hartmann, § 65--Heffter, § 76--Stoerk
in Holtzendorff, II. pp. 419-428--Gareis, § 21--Liszt, §§ 9 and
26--Ullmann, § 88--Bonfils, Nos. 506-511--Despagnet, Nos.
415-417--Pradier-Fodéré, II. Nos. 650-656--Nys, I. pp.
451-474--Rivier, I. pp. 157-159--Calvo, I. §§ 368-372--Fiore, II.
Nos. 745-754, and Code, Nos. 280-281--Martens, I. § 101--Holland,
Studies, p. 277.

[Sidenote: What Straits are Territorial.]

§ 194. All straits which are so narrow as to be under the command of coast batteries erected either on one or both sides of the straits, are territorial. Therefore, straits of this kind which divide the land of one and the same State belong to the territory of such State. Thus the Solent, which divides the Isle of Wight from England, is British, the Dardanelles and the Bosphorus are Turkish, and both the Kara and the Yugor Straits, which connect the Kara Sea with the Barents Sea, are Russian. On the other hand, if such narrow strait divides the land of two different States, it belongs to the territory of both, the boundary line running, failing a special treaty making another arrangement, through the mid-channel.[355] Thus the Lymoon Pass, the narrow strait which separates the British island of Hong Kong from the continent, was half British and half Chinese as long as the land opposite Hong Kong was Chinese territory.

[Footnote 355: See below, § 199.]

It would seem that claims of States over wider straits than those which can be commanded by guns from coast batteries are no longer upheld. Thus Great Britain used formerly to claim the Narrow Seas--namely, the St. George's Channel, the Bristol Channel, the Irish Sea, and the North Channel--as territorial; and Phillimore asserts that the exclusive right of Great Britain over these Narrow Seas is uncontested. But it must be emphasised that this right _is_ contested, and I believe that Great Britain would now no longer uphold her former claim,[356] at least the Territorial Waters Jurisdiction Act 1878 does not mention it.

[Footnote 356: See Phillimore, I. § 189, and above, § 191 (King's Chambers). Concerning the Bristol Channel, Hall (§ 41, p. 162, note 2) remarks: "It was apparently decided by the Queen's Bench in Reg. _v._ Cunningham (Bell's "Crown Cases," 86) that the whole of the Bristol Channel between Somerset and Glamorgan is British territory; possibly, however, the Court intended to refer only to that portion of the Channel which lies within Steepholm and Flatholm." See also Westlake, I. p. 188, note 3.]

[Sidenote: Navigation, Fishery, and Jurisdiction in Straits.]

§ 195. All rules of the Law of Nations concerning navigation, fishery, and jurisdiction within the maritime belt apply likewise to navigation, fishery, and jurisdiction within straits. Foreign merchantmen, therefore, cannot[357] be excluded; foreign men-of-war must be admitted to such straits as form part of the highways for international traffic;[358] the right of fishery may exclusively be reserved for subjects of the littoral State; and the latter can exercise jurisdiction over all foreign merchantmen passing through the straits. If the narrow strait divides the land of two different States, jurisdiction and fishery are reserved for each littoral State within the boundary line running through the mid-channel or otherwise as by treaty arranged.

[Footnote 357: The claim of Russia--see Waultrin in R.G. XV. (1908), p. 410--to have a right to exclude foreign merchantmen from the passage through the Kara and the Yugor Straits, is therefore unfounded. As regards the Kara Sea, see below, § 253, note 2.]

[Footnote 358: As, for instance, the Straits of Magellan. These straits were neutralised in 1881--see below, § 568, and vol. II. § 72--by a treaty between Chili and Argentina. See Abribat, "Le détroit de Magellan au point de vue international" (1902); Nys, I. pp. 470-474; and Moore, I. § 134.]

It must, however, be stated that foreign merchantmen cannot be excluded from the passage through territorial straits only when these connect two parts of the Open Sea. In case a territorial strait belonging to one and the same State connects a part of the Open Sea with a territorial gulf or bay, or with a territorial land-locked sea belonging to the same State--as, for instance, the Strait of Kertch[359] at present, and formerly the Bosphorus and the Dardanelles[360]--foreign vessels can be excluded therefrom.

[Footnote 359: See below, § 252.]

[Footnote 360: See below, § 197.]

[Sidenote: The former Sound Dues.]

§ 196. The rule that foreign merchantmen must be allowed inoffensive passage through territorial straits without any dues and tolls whatever, had one exception until the year 1857. From time immemorial, Denmark had not allowed foreign vessels the passage through the two Belts and the Sound, a narrow strait which divides Denmark from Sweden and connects the Kattegat with the Baltic, without payment of a toll, the so-called Sound Dues.[361] Whereas in former centuries these dues were not opposed, they were not considered any longer admissible as soon as the principle of free navigation on the sea became generally recognised, but Denmark nevertheless insisted upon the dues. In 1857, however, an arrangement[362] was completed between the maritime Powers of Europe and Denmark by which the Sound Dues were abolished against a heavy indemnity paid by the signatory States to Denmark. And in the same year the United States entered into a convention[363] with Denmark for the free passage of their vessels, and likewise paid an indemnity. With these dues has disappeared the last witness of former times when free navigation on the sea was not universally recognised.

[Footnote 361: See the details, which have historical interest only, in Twiss, I. § 188; Phillimore, I. § 189; Wharton, I. § 29; and Scherer, "Der Sundzoll" (1845).]

[Footnote 362: The Treaty of Copenhagen of March 14, 1857. See Martens, N.R.G. XVI. 2nd part, p. 345.]

[Footnote 363: Convention of Washington of April 11, 1857. See Martens, N.R.G. XVII. 1st part, p. 210.]

[Sidenote: The Bosphorus and Dardanelles.]

§ 197. The Bosphorus and Dardanelles, the two Turkish territorial straits which connect the Black Sea with the Mediterranean, must be specially mentioned.[364] So long as the Black Sea was entirely enclosed by Turkish territory and was therefore a portion of this territory, Turkey could exclude[365] foreign vessels from the Bosphorus and the Dardanelles altogether, unless prevented by special treaties. But when in the eighteenth century Russia became a littoral State of the Black Sea, and the latter, therefore, ceased to be entirely a territorial sea, Turkey, by several treaties with foreign Powers, conceded free navigation through the Bosphorus and the Dardanelles to foreign merchantmen. But she always upheld the rule that foreign men-of-war should be excluded from these straits. And by article 1 of the Convention of London of July 10, 1841, between Turkey, Great Britain, Austria, France, Prussia, and Russia, this rule was once for all accepted. Article 10 of the Peace Treaty of Paris of 1856 and the Convention No. 1 annexed to this treaty, and, further, article 2 of the Treaty of London, 1871, again confirm the rule, and all those Powers which were not parties to these treaties submit nevertheless to it.[366] According to the Treaty of London of 1871, however, the Porte can open the straits in time of peace to the men-of-war of friendly and allied Powers for the purpose, if necessary, of securing the execution of the stipulations of the Peace Treaty of Paris of 1856.

[Footnote 364: See Holland, "The European Concert in the Eastern Question," p. 225, and Perels, p. 29.]

[Footnote 365: See above, § 195.]

[Footnote 366: The United States, although she actually acquiesces in the exclusion of her men-of-war, seems not to consider herself bound by the Convention of London, to which she is not a party. See Wharton, I. § 29, pp. 79 and 80, and Moore, I. § 134, pp. 666-668.]

On the whole, the rule has in practice always been upheld by Turkey. Foreign light public vessels in the service of foreign diplomatic envoys at Constantinople can be admitted by the provisions of the Peace Treaty of Paris of 1856. And on several occasions when Turkey has admitted a foreign man-of-war carrying a foreign monarch on a visit to Constantinople, there has been no opposition by the Powers.[367] But when, in 1902, Turkey allowed four Russian torpedo destroyers to pass through her straits on the condition that these vessels should be disarmed and sail under the Russian commercial flag, Great Britain protested and declared that she reserved the right to demand similar privileges for her men-of-war should occasion arise. As far as I know, however, no other Power has joined Great Britain in this protest. On the other hand, no protest was raised when, in 1904, during the Russo-Japanese war, two vessels belonging to the Russian volunteer fleet in the Black Sea were allowed to pass through to the Mediterranean, for nobody could presume that these vessels, which were flying the Russian commercial flag, would later on convert themselves into men-of-war by hoisting the Russian war flag.[368]

[Footnote 367: See Perels, p. 30.]

[Footnote 368: See below, vol. II. § 84.]

IX

BOUNDARIES OF STATE TERRITORY

Grotius, II. c. 3, § 18--Vattel, I. § 266--Hall, § 38--Westlake,
I. pp. 141-142--Twiss, I. §§ 147-148--Taylor, § 251--Moore, I. §§
154-162--Bluntschli, §§ 296-302--Hartmann, § 59--Heffter, §
66--Holtzendorff in Holtzendorff, II. pp. 232-239--Gareis, §
19--Liszt, § 9--Ullmann, § 91--Bonfils, Nos. 486-489--Despagnet,
No. 377--Pradier-Fodéré, II. Nos. 759-777--Mérignhac, II. p.
358--Nys, I. pp. 413-422--Rivier, I. § 11--Calvo, I. §§
343-352--Fiore, II. Nos. 799-806, and Code, Nos.
1040-1049--Martens, I. § 89--Lord Curzon of Kedleston, "Frontiers"
(Romanes lecture of 1907).

[Sidenote: Natural and Artificial Boundaries.]

§ 198. Boundaries of State territory are the imaginary lines on the surface of the earth which separate the territory of one State from that of another, or from unappropriated territory, or from the Open Sea. The course of the boundary lines may or may not be indicated by boundary signs. These signs may be natural or artificial, and one speaks, therefore, of natural in contradistinction to artificial boundaries. _Natural_ boundaries may consist of water, a range of rocks or mountains, deserts, forests, and the like. _Artificial_ boundaries are such signs as have been purposely put up to indicate the way of the imaginary boundary-line. They may consist of posts, stones, bars, walls,[369] trenches, roads, canals, buoys in water, and the like. It must, however, be borne in mind that the distinction between artificial and natural boundaries is not sharp, in so far as some natural boundaries can be artificially created. Thus a forest may be planted, and a desert may be created, as was the frequent practice of the Romans of antiquity, for the purpose of marking the frontier.

[Footnote 369: The Romans of antiquity very often constructed boundary walls, and the Chinese Wall may also be cited as an example.]

[Sidenote: Boundary Waters.]

§ 199. Natural boundaries consisting of water must be specially discussed on account of the different kinds of boundary waters. Such kinds are rivers, lakes, landlocked seas, and the maritime belt.

(1) Boundary rivers[370] are such rivers as separate two different States from each other.[371] If such river is not navigable, the imaginary boundary line runs down the middle of the river, following all turnings of the border line of both banks of the river. On the other hand, in a navigable river the boundary line runs through the middle of the so-called _Thalweg_, that is, the mid-channel of the river. It is, thirdly, possible that the boundary line is the _border line_ of the river, so that the whole bed belongs to one of the riparian States only.[372] But this is an exception created by treaty or by the fact that a State has occupied the lands on one side of a river at a time prior to the occupation of the lands on the other side by some other State.[373] And it must be remembered that, since a river sometimes changes its course more or less, the boundary line running through the middle or the _Thalweg_ or along the border line is thereby also altered. In case a bridge is built over a boundary river, the boundary line runs, failing special treaty arrangements, through the middle of the bridge. As regards the boundary lines running through islands rising in boundary rivers and through the abandoned beds of such rivers, see below, §§ 234 and 235.

[Footnote 370: See Huber in Z.V. I. (1906), pp. 29-52 and 159-217.]

[Footnote 371: This case is not to be confounded with the other, in which a river runs through the lands of two different States. In this latter case the boundary line runs across the river.]

[Footnote 372: See above, § 175.]

[Footnote 373: See Twiss, I. §§ 147 and 148, and Westlake, I. p. 142.]

(2) Boundary lakes and land-locked seas are such as separate the lands of two or more different States from each other. The boundary line runs through the middle of these lakes and seas, but as a rule special treaties portion off such lakes and seas between riparian States.[374]

[Footnote 374: See above, § 179.]

(3) The boundary line of the maritime belt is, according to details given above (§ 186), uncertain, since no unanimity prevails with regard to the width of the belt. It is, however, certain that the boundary line runs not nearer to the shore than three miles, or one marine league, from the low-water mark.

(4) In a narrow strait separating the lands of two different States the boundary line runs either through the middle or through the mid-channel,[375] unless special treaties make different arrangements.

[Footnote 375: See Twiss, I. §§ 183 and 184, and above, § 194.]

[Sidenote: Boundary Mountains.]

§ 200. Boundary mountains or hills are such natural elevations from the common level of the ground as separate the territories of two or more States from each other. Failing special treaty arrangements, the boundary line runs on the mountain ridge along with the watershed. But it is quite possible that boundary mountains belong wholly to one of the States which they separate.[376]

[Footnote 376: See Fiore, II. No. 800.]

[Sidenote: Boundary Disputes.]

§ 201. Boundary lines are, for many reasons, of such vital importance that disputes relating thereto are inevitably very frequent and have often led to war. During the nineteenth century, however, a tendency began to prevail to settle such disputes peaceably. The simplest way in which this can be done is always by a boundary treaty, provided the parties can come to terms.[377] In other cases arbitration can settle the matter, as, for instance, in the Alaska Boundary dispute between Great Britain (representing Canada) and the United States, settled in 1903. Sometimes International Commissions are specially appointed to settle the boundary lines. In this way the boundary lines between Turkey, Bulgaria, Servia, Montenegro, and Roumania were settled after the Berlin Congress of 1878. It sometimes happens that the States concerned, instead of settling the boundary line, keep a strip of land between their territories under their joint tenure and administration, so that a so-called _condominium_ comes into existence, as in the case of Moresnet (Kelmis) on the Prusso-Belgian frontier.[378]

[Footnote 377: A good example of such a boundary treaty is that between Great Britain and the United States of America respecting the demarcation of the international boundary between the United States and the Dominion of Canada, signed at Washington on April 11, 1908. See Martens, N.R.G. 3rd Ser. IV. (1911), p. 191.]

[Footnote 378: See above, § 171, No. 1.]

[Sidenote: Natural Boundaries _sensu politico_.]

§ 202. Whereas the term "natural boundaries" in the theory and practice of the Law of Nations means natural signs which indicate the course of boundary lines, the same term is used politically[379] in various different meanings. Thus the French often speak of the river Rhine as their "natural" boundary, as the Italians do of the Alps. Thus, further, the zones within which the language of a nation is spoken are frequently termed that nation's "natural" boundary. Again, the line enclosing such parts of the land as afford great facilities for defence against an attack is often called the "natural" boundary of a State, whether or not these parts belong to the territory of the respective State. It is obvious that all these and other meanings of the term "natural boundaries" are of no importance to the Law of Nations, whatever value they may have politically.

[Footnote 379: See Rivier, I. p. 166.]

X

STATE SERVITUDES

Vattel, I. § 89--Hall, § 42*--Westlake, I. p. 61--Phillimore, I.
§§ 281-283--Twiss, I. § 245--Taylor, § 252--Moore, I. §§ 163-168,
II. § 177--Bluntschli, §§ 353-359--Hartmann, § 62--Heffter, §
43--Holtzendorff in Holtzendorff, II. pp. 242-252--Gareis, §
71--Liszt, §§ 8 and 19--Ullmann, § 99--Bonfils, Nos.
340-344--Despagnet, Nos. 190-192--Mérignhac, II. pp.
366-368--Pradier-Fodéré, II. Nos. 834-845, 1038--Rivier, I. pp.
296-303--Nys, II. pp. 271-279--Calvo, III. § 1583--Fiore, I. §
380, and Code, Nos. 1095-1097--Martens, I. §§ 94-95--Clauss, "Die
Lehre von den Staatsdienstbarkeiten" (1894)--Fabres, "Des
servitudes dans le droit international" (1901)--Hollatz, "Begriff
und Wesen der Staatsservituten" (1909)--Labrousse, "Des servitudes
en droit international public" (1911)--Nys in R.I. 2nd Ser. VII.
(1905), pp. 118-125, and XIII. (1911), pp. 312-323.

[Sidenote: Conception of State Servitudes.]

§ 203. State servitudes are those exceptional and conventional restrictions on the territorial supremacy of a State by which a part or the whole of its territory is in a limited way made perpetually to serve a certain purpose or interest of another State. Thus a State may by a convention be obliged to allow the passage of troops of a neighbouring State, or may in the interest of a neighbouring State be prevented from fortifying a certain town near the frontier.

Servitudes must not be confounded[380] with those general restrictions upon territorial supremacy which, according to certain rules of the Law of Nations, concern all States alike. These restrictions are named "natural" restrictions of territorial supremacy (_servitutes juris gentium naturales_), in contradistinction to the conventional restrictions (_servitutes juris gentium voluntariae_) which constitute the State servitudes in the technical sense of the term. Thus, for instance, it is not a State servitude, but a "natural" restriction on territorial supremacy, that a State is obliged to admit the free passage of foreign merchantmen through its territorial maritime belt.

[Footnote 380: This is done, for instance, by Heffter (§ 43), Martens (§ 94), Nys (II. p. 271), and Hall (§ 42*); the latter speaks of the right of innocent use of territorial seas as a servitude.]

That State servitudes are or may on occasions be of great importance, there can be no doubt whatever. The vast majority[381] of writers and the practice of the States accept, therefore, the conception of State servitudes, although they do not agree with regard to the definition and the width of the conception, and although, consequently, in many cases the question is disputed whether a certain restriction upon territorial supremacy is or is not a State servitude.

[Footnote 381: The conception of State servitudes is rejected by Bulmerincq (§ 49), Gareis (§ 71), Liszt (§§ 8 and 19), Jellinek ("Allgemeine Staatslehre," p. 366).]

The theory of State servitudes has of late been rejected by the Permanent Court of Arbitration at the Hague in the case[382] (1910) of the North Atlantic Coast Fisheries between Great Britain and the United States, chiefly for the three reasons that a servitude in International Law predicated an express grant of a sovereign right, that the doctrine of international servitude originated in the peculiar and now obsolete conditions prevailing in the Holy Roman Empire, and that this doctrine, being little suited to the principle of sovereignty which prevails in States under a constitutional government and to the present international relations of Sovereign States, had found little, if any, support from modern publicists. It is hardly to be expected that this opinion of the Court will induce theory and practice to drop the conception of State servitudes, which is of great value because it fitly covers those restrictions on the territorial supremacy of the State by which a part or the whole of its territory is in a limited way made perpetually to serve a certain purpose or interest of another State. That the doctrine of State servitudes originated in the peculiar conditions of the Holy Roman Empire does not make it unfit for the conditions of modern life if its practical value can be demonstrated. Further, the assertion that the doctrine is but little suited to the principle of sovereignty which prevails in States under a constitutional government, and has, therefore, found little, if any, support from modern publicists, does not agree with the facts. Lastly, the statement that a servitude in International Law predicated an express grant of a sovereign right, is not based on any other authority than the contention of the United States, which made this unfounded statement in presenting their case before the Tribunal. The fact is that a State servitude, although to a certain degree it restricts the sovereignty (territorial supremacy) of the State concerned, does as little as any other restriction upon the sovereignty of a State confer a sovereign right upon the State in favour of which it is established.

[Footnote 382: See the official publication of the case, pp. 115-116; Hogg in _The Law Quarterly Review_, XXVI. (1910), pp. 415-417; Richards in _The Journal of the Society of Comparative Legislation_, New Series, XI. (1910), pp. 18-27; Lansing in A.J. V. (1911), pp. 1-31; Balch and Louter in R.I. 2nd Ser. XIII. (1911), pp. 5-23, 131-157.]

[Sidenote: Subjects of State Servitudes.]

§ 204. Subjects of State servitudes are States only and exclusively, since State servitudes can exist between States only (_territorium dominans_ and _territorium serviens_). Formerly some writers[383] maintained that private individuals and corporations were able to acquire a State servitude; but nowadays it is agreed that this is not possible, since the Law of Nations is a law between States only and exclusively. Whatever rights may be granted by a State to foreign individuals and corporations, such rights can never constitute State servitudes.

[Footnote 383: Bluntschli, § 353; Heffter, § 44.]

On the other hand, every State can acquire and grant State servitudes, although some States may, in consequence of their particular position within the Family of Nations, be prevented from acquiring or granting some special kind or another of State servitudes. Thus neutralised States are in many points hampered in regard to acquiring and granting State servitudes, because they have to avoid everything that could drag them indirectly into war. Thus, further, half-Sovereign and part-Sovereign States may not be able to acquire and to grant certain State servitudes on account of their dependence upon their superior State. But apart from such exceptional cases, even not-full Sovereign States can acquire and grant State servitudes, provided they have any international status at all.

[Sidenote: Object of State Servitudes.]

§ 205. The object of State servitudes is always the whole or a part of the territory of the State the territorial supremacy of which is restricted by any such servitude.[384] Since the territory of a State includes not only the land but also the rivers which water the land, the maritime belt, the territorial subsoil, and the territorial atmosphere, all these can, as well as the service of the land itself, be an object of State servitudes. Thus a State may have a perpetual right of admittance for its subjects to the fishery in the maritime belt of another State, or a right to lay telegraph cables through a foreign maritime belt, or a right to make and use a tunnel through a boundary mountain, and the like. And should ever aërostation become so developed as to be of practical utility, a State servitude might be created through a State acquiring a perpetual right to send military aerial vehicles through the territorial atmosphere of a neighbouring State. It must, however, be emphasised that the Open Sea can never be the object of a State servitude, since it is no State's territory.

[Footnote 384: The contention of the United States, adopted by the Hague Arbitration Tribunal, in 1910, in the case of the North Atlantic Coast Fisheries, that a State servitude conferred a sovereign right upon the State in favour of which it is established, was refuted above in § 203, p. 275.]

Since the object of State servitudes is the territory of a State, all such restrictions upon the territorial supremacy of a State as do not make a part or the whole of its territory itself serve a purpose or an interest of another State are not State servitudes. The territory as the object is the mark of distinction between State servitudes and other restrictions on the territorial supremacy. Thus the perpetual restriction imposed upon a State by a treaty not to keep an army beyond a certain size is certainly a restriction on territorial supremacy, but is not, as some writers[385] maintain, a State servitude, because it does not make the territory of one State serve an interest of another. On the other hand, when a State submits to a perpetual right enjoyed by another State of passage of troops, or to the duty not to fortify a certain town, place, or island,[386] or to the claim of another State for its subjects to be allowed the fishery within the former's territorial belt;[387] in all these and the like[388] cases the territorial supremacy of a State _is_ in such a way restricted that a part or the whole of its territory is made to serve the interest of another State, and such restrictions are therefore State servitudes.[389]

[Footnote 385: See, for instance, Bluntschli, § 356.]

[Footnote 386: Thus by article 32 of the peace treaty of Paris, 1856, and by the Convention of March 30, 1856, between Great Britain, France, and Russia, annexed to the peace treaty of Paris--see Martens, N.R.G. XV. pp. 780 and 788--Russia is prevented from fortifying the Aland Islands in the Baltic. See below, § 522, and Waultrin in R.G. XIV. pp. 517-533. See also A.J. II. (1908), p. 397.]

[Footnote 387: Examples of such fishery servitudes are:--

(_a_) The former French fishery rights in Newfoundland which were based on article 13 of the Treaty of Utrecht, 1713, and on the Treaty of Versailles, 1783. See the details regarding the Newfoundland Fishery Dispute, in Phillimore, I. § 195; Clauss, pp. 17-31; Geffcken in R.I. XXII. p. 217; Brodhurst in _Law Magazine and Review_, XXIV. p. 67. The French literature on the question is quoted in Bonfils, No. 342, note 1. The dispute is now settled by France's renunciation of the privileges due to her according to article 13 of the Treaty of Utrecht, which took place by article 1 of the Anglo-French Convention signed in London on April 8, 1904 (see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 29). But France retains, according to article 2 of the latter Convention, the right of fishing for her subjects in certain parts of the territorial waters of Newfoundland.

(_b_) The fishery rights granted by Great Britain to the United States of America in certain parts of the British North Atlantic Coast by article 1 of the Treaty of 1818 which gave rise to disputes extending over a long period. The dispute is now settled by an award of the Hague Permanent Court of Arbitration given in September (1910). That the Court refused to recognise the conception of State servitudes, was pointed out above, § 203. See above, § 203, and the literature there quoted.]

[Footnote 388: Phillimore (I. § 283) quotes two interesting State servitudes which belong to the past. According to articles 4 and 10 of the Treaty of Utrecht, 1713, France was, in the interest of Great Britain, not to allow the Stuart Pretender to reside on French territory, and Great Britain was, in the interest of Spain, not to allow Moors and Jews to reside in Gibraltar.]

[Footnote 389: The controverted question whether neutralisation of a State creates a State servitude is answered by Clauss (p. 167) in the affirmative, but by Ullmann (§ 99), correctly, I think, in the negative. But a distinction must be drawn between neutralisation of a whole State and neutralisation of certain parts of a State. In the latter case a State servitude is indeed created.]

[Sidenote: Different kinds of State Servitudes.]

§ 206. According to different qualities different kinds of State servitudes must be distinguished.

(1) Affirmative, active, or positive, are those servitudes which give the right to a State to perform certain acts on the territory of another State, such as to build and work a railway, to establish a custom-house, to let an armed force pass through a certain territory (_droit d'étape_), or to keep troops in a certain fortress, to use a port or an island as a coaling station, and the like.

(2) Negative, are such servitudes as give a right to a State to demand of another State that the latter shall abstain from exercising its territorial supremacy in certain ways. Thus a State can have a right to demand that a neighbouring State shall not fortify certain towns near the frontier, that another State shall not allow foreign men-of-war in a certain harbour.[390]

[Footnote 390: Affirmative State servitudes consist _in patiendo_, negative servitudes _in non faciendo_. The rule of Roman Law _servitus in faciendo consistere nequit_ has been adopted by the Law of Nations.]