*CHAPTER II.

RIGHTS OF INDEPENDENCE AND EQUALITY.

[*162]

CXLIV. Some of the rights of nations appear to flow more directly from the first, and some more directly from the second of those propositions which have been laid down as together constituting the basis of International Law. (a)

CXLV. From the first proposition-namely, that States are recognised as free moral persons-seem to be more especially derived the rights incident to INDEPENDENCE, which are the following:

1. The right to a Free Choice, Settlement, and Alteration of the Internal Constitution and Government without the intermeddling of any foreign State.

2. The right to Territorial Inviolability, and the free use and enjoyment of Property.

3. The right of Self-preservation, and this by the defence which prevents as well as by that which repels attack.

4. The right to a free development of national resources by Commerce. 5. The right of Acquisition, whether original or derivative, both of Territorial Possessions and of Rights.

6. The right to absolute and uncontrolled jurisdiction over all persons and things within, and in certain exceptional cases without, the limits of the territory. Under this head may be considered the status of Christians in Mahometan or Infidel countries, not being subjects of those countries, and the question of Extradition of criminals.

*CXLVI. The limitations which the abstract Rights of one

nation may receive in their practical exercise, from the existence [*163]

of similar Rights in another nation, will be considered in a chapter on the doctrine of INTERVENTION.

CXLVII. From the second proposition-namely, that each State is a member of an Universal Community-seem to be more especially derived the Rights incident to EQUALITY, which are the following:

1. The Right of a State to afford protection to her lawful subjects wheresoever commorant; and under this head may be considered the question of debts due from the Government of a State to the Subjects of another State.

2. The Right to the Recognition by Foreign States of the National Government.

3. The Right to External marks of Honour and Respect.

4. The Right of entering into International Covenants or Treaties with Foreign States.

(a) Vide ante, p. 9.

Kaltenborn, kap. v. s. 9: Versuch einer wissenschaftlichen Systematick des

Völkerrechts.

RIGHT TO A FREE CHOICE OF GOVERNMENT.

CXLVIII. I. We will now consider the rights which flow asnecessary consequences from the INDEPENDENCE of States.

And, first, in the rank of internal and domestic rights, is the liberty incident to every Independent State, of adopting whatever form of government, whatever political and civil institutions, and whatever rulers she may please, without the interference or control of any foreign power. This elementary proposition of International Law is so unquestionable that it would be superfluous to cite authorities in support of it.(a)

CXLIX. This proposition, nevertheless, however true and however important, generally speaking, is not without some limitations in its practical application; because, rights on the part of other States, members of the same system, may control, to a certain extent, the right of unlimited liberty generally incident to a State in the establishment of its government, as the right of an individual in society to perfect liberty is, to a certain extent, limited by a similar right in his neighbour. The limitation of which this right is susceptible will be discussed hereafter in the chapter on INTERVENTION.

TERRITORIAL INVIOLABILITY-NATIONAL POSSESSIONS.

CL. II.-A State, like an Individual, is capable of possessing property. The property of a State is marked by the same characteristics relatively to other States, as the property of individuals relatively to other individuals; that is to say, it is exclusive of all foreign interference, and susceptible of free disposition.(a)

This property consists of Things (corpora), and of Rights to things (jura); or, in other words, it consists of things divided into those which are corporal or incorporeal, movable or immovable (res, bona, pecunia).(l)

(a) It is nowhere more faithfully enunciated than in Günther, i. 284, ss. 6, 7: "Keine nation ist befügt, sich in die handlungen der andern zu mischen, am wenigsten in die innere Staatsverfassung." The principle is recorded in many treaties: e. g., Treaty of the Pyrenees, 1659, (Art. 60-France promises not to interfere in the affairs of Portugal;) Peace of Lubeck, 1629, (Arts. 2, 3—the Emperor of Germany takes a similar engagement as to Denmark-a reciprocal one being taken by Denmark;) Peace of Neustadt, 1721, (Art. 7—Russia makes a like promise with respect to Sweden.) During the last twenty years most of the great European powers have, on various occasions, formally, at least, promulgated the same doctrine. Vide post, "INTERVENTION-Balance of Power."

(a) Heffters, s. 64.

(b) "Cum pupillus a tutore stipulatur rem salvam fore, non solum quæ in patrimonio habet, sed etiam quæ in nominibus sunt, eâ stipulatione videntur contineri." -Dig. 1. xlvi. t. vi. 9.

"In bonis autem nostris computari sciendum est non solum quæ dominii nostri sunt, et si bonâ fide a nobis possideantur vel superficiaria sint. Equè bonis ad

As in the case of Individuals, certain things belong by their nature so equally to every person, that they are incapable of being appropriated by any one person; so in the case of States, certain things belong so equally to all communities, as to be incapable of being appropriated by any one of them (extra commercium-extra patrimonium.)

All these Things and Rights taken together would be designated by the Roman law "universitas."(c) At present *we are concerned only with that portion of this collective whole which relates to [*166] real or territorial rights, and more especially with the right which flows from the above-mentioned characteristic of exclusiveness-namely, the Right of Territorial Inviolability.

CLI. A State in the lawful possession of a territory has an exclusive right of property therein, and no stranger can be entitled, without her permission, to enter within her boundaries, much less to interfere with her full exercise of all the rights incident to that supreme dominion, which has obtained from jurists the appellation of dominium eminens.

CLII. No individual proprietor can alienate his possessions from the State to which they belong, and confer the property of, or the sovereignty over, them to another country.(d) Whether and to what extent it may be competent to the sovereign of a territory to alienate any portion of it will be hereafter considered.

CLIII. This general principle of dominium eminens is applicable to all possessions, whether acquired, 1, by recent acquisition, through the medium of discovery and lawful occupation; 2, by lawful cession or alienation; 3, by conquest in time of war, duly ratified by treaty; or, 4, by prescription.

CLIV. National Territory consists of water as well as land; and, in order to examine carefully the former species of possession, we must consider whether, and to what extent, and under what limitations, the following waters may be the objects of national property and dominion :1. Rivers and Lakes.

2. The Open Sea.

3. The Narrow Seas.

4. The British Seas.

5. The Straits.

6. Portions of the Sea.

numerabitur, etiam si quid est in actionibus, petitionibus, persecutionibus: nam hæc omnia in bonis esse videntur."-Ib. 1. t. xvi. s. 49.

"Pecuniæ verbum non solum numeratam pecuniam complectitur: verum omnem omnino pecuniam, hoc est omnia corpora: nam corpora quoque pecuniæ appellatione contineri nemo est qui ambiget."-Ib. 178.

"Pecuniæ nomine non solum numerata pecunia; sed omnes res, tam soli quam mobiles, et tam corpora quam jura continentur."-Ib. 222.

(c) "Bonorum appellatio, sicut hæreditatis, universitatem quandam ac jus successionis, et non singulas res demonstrat."-Dig. lib. 1. t. xvi. 208.

(d) De Garden Traité de Diplomatic, t. i. p. 387.

T

[*167]

CHAPTER V.

PROPERTY OF A STATE-RIVERS.

CLV. No difficulty can arise with respect to Rivers and Lakes entirely enclosed within the limits of a State; but questions of some difficulty have arisen with respect to rivers which are not so enclosed, but which flow through more than one State. (a) The Roman law declared all navigable rivers to be so far public property that a free passage over them was open to everybody, and the use of their banks (jus littoris) for anchoring vessels, lading and unlading cargo, and acts of the like kind, to be incapable of restriction by any right of private domain. (b)

CLVI. The navigable rivers, however, were classed, according to that law, among the "res publica," and not, as might appear from a superficial view, among the "res communes," as the sea was. Rivers were the public property of the State, not common to the whole world like the ocean.(c)

CLVII. It has been contended, that the principle of this law has been engrafted upon International Law, and that it is a maxim of that law that the ocean is free to all mankind, and rivers to all riparian inhabitants. So that the nation which possessed both banks of a river where it disembogued itself into the sea, was not at liberty to refuse the nation or nations which possessed the banks of the river *higher up, [*168] from the use of the water, for the passage of vessels to the sea, and from the incidental use of the banks for the purposes mentioned above.(d) The opinion of Grotius(e) seems to be in favour of this position; for he held that, though the property and domain over the stream belonged to the riparian States, "at idem flumen quâ aqua profluens vocatur, commune mansit;"(f) and this upon two grounds: 1. Because this was one of the rights excepted and reserved, at the period when the right of property was introduced as a limitation upon the original community of possession, in which fiction this great man believed; but as the basis of this opinion clearly was and is now universally acknowledged to be a fiction, this reason, built upon the supposition of its being a truth, can be of no avail.(g) 2. Because the use of rivers belonged to the class of things "utilitatis innoxia," (h) the value of the stream being in no way whatever diminished to the proprietors by this innocent use of them by others, inasmuch as the use of them is inexhaustible.(i) Grotius,

(a) Grotius, 1. ii. c. ii. ss. 12-14, p. 191; c. iii. ss. 7-12, p. 207.
(b) Inst. 1. ii. tit. i. ss. 1-5; Dig. 1. i. tit. viii. s. 5.

(c) "Quædam enim naturali jure communia sunt omnium, quædam publica..
Et quidem naturali jure communia sunt omnia hæc: Aer, Aqua profluens, et Mare,
et per hoc littora maris . . . . Flumina autem omnia, et Portus, publica sunt.—
Inst. 1. ii. tit. i. ss. 1, 2.

(d) Wheaton's History of the Law of Nations, p. 502.

(e) Lib. ii. c. ii. s. 12, et seq. p. 191.

(ƒ) Vattel, 1. i. c. x. ss. 103, 104; 1. i. c. xxiii. s. 292.

(9) So Vattel, t. i. 1. ii. c. ix. s. 123: "-un reste de la communion primitive." (h) Grotius, 1. ii. c. ii. s. 11.

(i) Vattel, t. i. 1. ii. c. ix. s. 126: "Des choses d'un usage inepuisable."

as it will be necessary to remark hereafter, appears to have considered
the right of mere passage (jus transitus innoxii) by one nation over the
domain of another-whether that domain was an arm of the sea, or lake,
or river, or even the land-to be one of strict law, and not of comity;
but his opinion is not founded upon any sound or satisfactory reason;
and is at variance with that of almost all other jurists.(j) For, the rea-
son of the thing and the opinion of other jurists, speaking generally,
seem to agree in holding that the right can only *be what is called
(however improperly) by Vattel and other writers imperfect, and
[*169]
that the State, through whose domain the passage is to be made, must
be the sole judge as to its being innocent or injurious in its character. (k)
CLVIII. It may be conceded, however, that the right to the free
navigation of a river being once granted, the innocent use of the diffe-
rent waters which unite that river with the sea follows as a matter of
course, and by necessary implication. This proposition was stoutly
maintained by the States who were interested in the free navigation of
the Rhine, and who insisted that no other construction could be put upon
the expressions in the treaties of Paris and Vienna, declaring that river
to be free. "Au point où il devient navigable jusqu'à la mer,"() which
expressions included, not only the course of the Rhine Proper, which
lost itself in the sands, but the other channels through which this river
disembogued itself into the sea. (m)

CLIX. And it may also be admitted, that when this right of free navigation has been conceded, the maxim of Roman jurisprudence applies, and that the right of the shores is incident to the use of the water. Mr. Wheaton remarks, in his valuable history of the Law of Nations, that the laws of every country probably intended the same provision; and he adds a remarkable instance of the practical application of the principle in the following precedent of International Law:-"This" (he says) "must have been so understood between France and Great Britain at the Treaty of Paris, when a right was ceded to British subjects to navigate the whole river (the Mississippi), and expressly that part between the island of New Orleans and the western bank, without stipulating a word about the use of the shores, though both *of them belonged

then to France, and were to belong immediately to Spain. Had [170]

not the use of the shores been considered as incident to that of the water, it would have been expressly stipulated, since its necessity was too obvious to have escaped either party. Accordingly, all British subjects used the shores habitually for the purposes necessary to the navigation of the river; and when a Spanish governor undertook at one time to forbid this, and even cut loose the vessels fastened to the shores, a British vessel

() Monsieur Eugène Ortolan, however, a modern French author, who writes with care, good sense, and perspicuity, agrees with Grotius. See Des Moyens d'acquérir le Domaine International ou Propriété d'Etat entre les Naions, etc., p. 30 (Paris, 1851.)

(k) Puffendorf, 1. iii. c. iii. s. 8. Wheaton's Elem. of International Law, vol. i. pp. 229, 230. History of the Law of Nations, pp. 508-510. Puffendorf, 1. iii. c. iii. ss. 3-6. Wolff's Inst. ss. 310-312. Vattel, 1. i. s. 292; 1. ii. ss. 123-139. (1) De Martens et de Cussy, Rec. de Tr., t. iii. p. 179.

(m) Annual Register for 1826, pp. 259–263.

JULY, 1854.-11

+