International Law Part 10

(_e_) =Prescription=, or the acquisition of territory by virtue of long-continued possession, is similar to prescription in public law as applied to the acquisition of property by persons. The recognition of this principle prevents many disputes over jurisdiction of territory which originally may have been acquired in a manner open to question, _e.g._ the holding of the territory by the states parties to the part.i.tion of Poland may through long-continued possession be valid by prescription if not by the original act.

In regard to prescription, it should be observed that (1) it is a t.i.tle valid only against other states. The inhabitants do not necessarily lose rights originally possessed. (2) This method avoids perpetual conflicts on ground of defect of original t.i.tle. (3) Prescription may be considered as effective when other states have for a considerable time made no objection, threatening the exercise of jurisdiction by the state in possession. While some authors deny this right, it is generally admitted in fact, and by most of the leading authorities acknowledged in theory.[130]

(_f_) When land areas in the neighborhood of the boundary of a state are changed, territory may be acquired by =accretion=. (1) Land formed by _alluvium_ or other cause near the coast of a state is held to belong to that state. Lord Stowell, in 1805, held that mud islands formed by _alluvium_ from the Mississippi River should for international law purposes be held as part of the United States territory.[131] In general, _alluvium_ becomes the property of the state to which it attaches, following the Roman law.[132] (2) Where a river is the boundary, the rule is well-established that islands formed on either side of the deepest channel belong to the state upon that side of the channel; an island formed mid-stream is divided by the old channel line.

(3) When a river's channel is suddenly changed so as to be entirely within the territory of either state, the boundary line remains as before in the old channel. So also the boundary line of territory is not changed, even if the bed of a lake be changed.

-- 48. Qualified Jurisdiction

Two degrees of qualified territorial jurisdiction are exercised in the protectorate and the sphere of influence.

(_a_) =Protectorates.= The protecting state usually acquires the jurisdiction over all external affairs of the protected community, often including territorial waters, and a.s.sumes the direction of its international relations. A measure of jurisdiction of those internal affairs which may lead to international complications is also generally a.s.sumed by the protecting state, _e.g._ treatment of foreigners in the protected territory, relations of protected subjects in foreign countries, use of flag, etc. The conditions of protected states vary greatly, hardly the same description holding for any two. It may be safe to say that (1) the protecting state cannot be held responsible for the establishment of any particular form of government, (2) a reasonable degree of security and justice must be maintained. As to what const.i.tutes a "reasonable degree," the circ.u.mstances of each case must determine; then the protecting state is bound to afford such justice and security and (3) must be able to exercise within the protected area such powers as are necessary to meet its responsibilities.

(_b_) The term "=sphere of influence=" has been used since the Berlin Conference, 1884-1885, to indicate a sort of attenuated protectorate in which the aim is to secure the rights without the obligations. First applied to Africa in the part.i.tion of the unexplored interior among the European powers,--Great Britain, Germany, France, Italy, Portugal,--it has since been extended to other regions. This doctrine of mutual exclusion of each from the "spheres" of all the others cannot be held to bind any states not party to the agreement.

The method of exercise of "influence," while varying, usually consists in making with the native chiefs treaties which convey privileges other than the cession of sovereignty. These privileges are often commercial, and may be with the state direct or agreements with some company to whom the state has delegated a portion of its authority, as in the African trade companies.

The "spheres of influence," gradually with the growth of power of the influencing state and the necessity of protecting the "sphere," against other states, become less vague in their relations to the influencing state and merge into protectorates or some other more stable condition.

This "sphere of influence" idea, as well as the "Hinterland Doctrine,"

can be of only temporary importance, owing to the limited area still open to occupation. It is maintained that within the "sphere" the influencing state has jurisdiction to the exclusion of another state, and that it has a right to occupy the territory later, if advisable. The influencing state disclaims all obligations possible.[133]

-- 49. Maritime and Fluvial Jurisdiction

Wheaton states as a general principle of maritime and fluvial jurisdiction, "Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss or inconvenience to the proprietor."[134] While the tendency of international policy is toward unrestricted freedom of river navigation, yet the principle as enunciated by Wheaton cannot be said to be established in practice. The American and Continental writers have generally favored the principle enunciated by Wheaton. English writers have contended against this position as a right, but admit that the principle is becoming established by numerous treaties and conventions.

As to the sea, the principle may be said to be established.

-- 50. Rivers

The jurisdiction of rivers is a question which is not identical with the right of navigation of rivers, and may best be considered apart. The question of jurisdiction is one of general international principle, while the question of river navigation is one of particular provision, in many instances.

The rivers fall under three cla.s.ses:--

1. Rivers which traverse only one state.

2. Rivers which traverse two or more states.

3. Rivers upon the opposite banks of which different states have jurisdiction.

(_a_) =Rivers which traverse only one state= are exclusively within the jurisdiction of that state. This jurisdiction may extend even to the forbidding of the use of a river to other states, and justifies the state in prescribing such regulations for its use as it may deem fit.

(_b_) =Rivers flowing through two or more states= are for those parts within the boundaries of each state under its jurisdiction for the purposes of police, tolls, and general regulations. The right of absolute exclusion of the co-riparian states by any one of the states through which a river flows has been the subject of much discussion, and authorities of great weight can be found upon either side.

(_c_) =When two states have jurisdiction= upon opposite banks of a river, the jurisdiction of each state extends to the middle of the main channel or _thalweg_. Before the Treaty of Luneville (Art. VI.), 1801, it had been common to consider the limit of jurisdiction of the two states the middle of the river, a line much more difficult to determine, and more changeable than the channel line. The _thalweg_ has been frequently confirmed as the accepted boundary where no conventions to the contrary existed.[135]

-- 51. The Navigation of Rivers

The laws of jurisdiction of rivers are generally accepted. The early idea that there was a natural _right of navigation_, and _innocent pa.s.sage_ has received less support during the nineteenth century than formerly. The history of river navigation during the nineteenth century, as shown in the discussions between the representatives of various nations, and in the treaties and conventions agreed upon, as well as in treaties and declarations voluntarily made in regard to navigation of rivers, seem to furnish general rules.

1. That international law gives to other states no right of navigation of rivers wholly _within_ the jurisdiction of another state.

2. That when a river forms the _boundary_ of two or more states it is open to the navigation of each of the states.

3. That when a river pa.s.ses _through_ two or more states, international law gives no right to one of the states to pa.s.s through the part of the river in the other state or states. There is a strong moral obligation resting upon the states below to allow freedom of navigation through the river to the states upon the upper course of the river. The right of _innocent use_, _innocent pa.s.sage_, _freedom of river navigation_, has been maintained on various grounds and in various forms, by many authorities.[136] Those who take a position opposed to this claim, a.s.sert that the navigation of rivers is, and properly should be, to avoid more serious complications, a matter of convention.

In fact, since the French Revolution, the subject has so frequently been a matter of convention[137] as to establish the general principles, that in case of no special restrictions, river navigation is free, subject to such regulations as the state having jurisdiction may deem necessary, and that the privilege of navigation carries with it the use of the river banks, so far as is necessary for purpose of navigation.[138]

-- 52. Enclosed Waters

(_a_) The rule in regard to =waters wholly within= the territory of a state such as lakes, etc., is that the jurisdiction is exclusively in that state.

(_b_) =Gulfs, bays, and estuaries= are regarded as within the jurisdiction of the state or states enclosing them, provided the mouth is not more than six miles in width. A line drawn from headland to headland on either side of the mouth is considered as the coast line of the state, and for purposes of maritime jurisdiction the marine league is measured from this line. Waters having wider openings into the sea have been claimed on special grounds, as the claim of the United States to territorial jurisdiction over the Chesapeake and Delaware bays.

France and Germany claim jurisdiction over gulfs having outlets not over ten miles in width. Between states parties to treaties special claims have been made and allowed. These treaty stipulations do not necessarily bind states not parties to the treaty, _e.g._ treaty between Great Britain and France, 1839. "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fis.h.i.+ng upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland."[139]

The present tendency is toward a restricted jurisdiction and the acceptance of the six-mile limit of width of mouth, though there is a reasonable claim that some ratio should be fixed for very large interior water areas to which the entrance, though more than six miles, is yet relatively narrow.

(_c_) =Straits= less than six miles in width are within the jurisdiction of the sh.o.r.e state or states. In case two sh.o.r.es are territory of different states, each state has jurisdiction to the middle of the navigable channel.

Where a state owns both sh.o.r.es of a strait which does not exceed six miles in width, the strait is within its territorial jurisdiction, though other states have the right of navigation. This right of navigation is in general conferred upon both merchant and war vessels of states at peace with the territorial power. These vessels must, however, comply with proper regulations in regard to navigation. The claim to exclusive jurisdiction over such narrow straits has been abandoned.

The claim of the king of Denmark to jurisdiction over the Danish Sound and the Two Belts, which ent.i.tled him to levy tolls upon vessels pa.s.sing through, was based on prescription and fortified by treaties as early as the one with the Hanse towns in 1368. Against these tolls, as an unjust burden upon commerce, the United States protested in 1848, at the same time maintaining that Denmark had not the right of exclusive jurisdiction. The European states in 1855 paid a lump sum in capitalization of the sound dues. The United States, refusing to recognize the right of Denmark to levy tolls, paid $393,011 in 1857 in consideration of Denmark's agreement to keep up lighthouses, etc.

The navigation of the Bosphorus and Dardanelles has been a subject of discussion and treaty since 1774, when Russia compelled Turkey to open these straits to the pa.s.sage of merchant vessels. War vessels were excluded till 1856 when, by convention attached to the Treaty of Paris, such vessels were admitted for special purposes of service to the emba.s.sies at Constantinople and protection of improvements on the Danube waterway. By the Treaty of 1871 the Sultan may admit other war vessels, if necessary for carrying out terms of the Treaty of Paris. The United States has never acknowledged that the Sultan had the right to exclude its war vessels, though always asking permission of the Sultan to pa.s.s the Dardanelles.

As a generally accepted principle the law may be stated as follows: straits connecting free seas are open to the navigation of all states, subject of course to reasonable jurisdiction of the territorial power.

(_d_) =Ca.n.a.ls= connecting large bodies of water have been regarded as in most respects subject to jurisdiction similar to that of straits. Yet as these ca.n.a.ls are constructed at a cost, they must also be given exemptions from certain restrictions which properly apply to natural channels.

The position of the Suez Ca.n.a.l as an international waterway gives some indication of existing practice.

It is to be noted, (1) that the ca.n.a.l is an artificial waterway; (2) that M. de Lesseps, a foreigner, in 1854, under authorization of the Viceroy, undertook its construction as a business venture; (3) that it is wholly within the territory of Egypt.

The case is then one of an artificial waterway, constructed by private capital, wholly within the territory of a state.

The negotiations continued from 1869, when the ca.n.a.l was opened, to 1888, when a convention was signed by the Six Great Powers, and by the Netherlands, Spain, and Turkey, by which the status of the ca.n.a.l was defined. By Article I. of the Conventional Act, "The Suez Maritime Ca.n.a.l shall always be free and open, in the time of war as in the time of peace, to every vessel of commerce or of war, without distinction of flag.

"Consequently, the High Contracting Parties agree not in any way to interfere with the free use of the Ca.n.a.l, in time of war as in time of peace.

"The Ca.n.a.l shall never be subjected to the exercise of the right of blockade."

By Article IV., the ca.n.a.l is not to become the base of hostile action.

The marine league is to be respected in the action of foreign vessels.

The twenty-four hour period was to elapse between the sailing of hostile vessels.