States to establish similar regulations, in respect to their own waters (a). 2. It may, perhaps, be thought that these considerations do not The marine apply, with the same force, to those portions of the sea which wash league. the coasts of any particular State, within the distance of a marine league, or as far as a cannon-shot will reach from the shore. The physical power of exercising an exclusive property and jurisdiction, and of excluding the action of other nations within these limits, exists to a certain degree; but the moral power may, perhaps, seem to extend no further than to exclude the action of other nations to the injury of the State by which this right is claimed. It is upon this ground that is founded the acknowledged immunity of a neutral State from the exercise of acts of hostility, by one belligerent Power against another, within those limits. This claim has, however, been sometimes extended to exclude other nations from the innocent use of the waters washing the shores of a particular State, in peace and in war; as, for example, for the purpose of participating in the fishery, which is generally appropriated to the subjects of the State within that distance of the coasts. This exclusive claim is sanctioned both by usage and convention, and must be considered as forming a part of the positive law of nations (b). sounds. 3. As to straits and sounds, bounded on both sides by the Straits and territory of the same State, so narrow as to be commanded by cannon-shot from both shores, and communicating from one sea to another, we have already seen that the territorial sovereignty may be limited, by the right of other nations to navigate the seas thus connected. The physical power which the State, bordering on both sides the sound or strait, has of appropriating its waters, and of excluding other nations from their use, is here encountered by the moral obstacle arising from the right of other nations to communicate with each other. If the Straits of Gibraltar, for example, were bounded on both sides by the possessions of the same nation, and if they were sufficiently narrow to be commanded by cannon-shot from both shores, this passage would not be the less freely open to all nations; since the navigation, both of the Atlantic Ocean and the Mediterranean Sea, is free to all. Thus it has already been stated that the navigation of the Dardanelles and the Bosphorus, by which the Mediterranean and Black Seas are connected together, is free to all nations, subject to those regu (a) Vide supra, pt. ii. ch. 2, pp. 282 seq. (b) Martens, Précis du Droit des Gens Moderne de l'Europe, § 153. The Dardanelles. lations which are indispensably necessary for the security of the Ottoman Empire. In the negotiations which preceded the signature of the treaty of intervention, of the 15th of July, 1840, it was proposed, on the part of Russia, that an article should be inserted in the treaty, recognising the permanent rule of the Ottoman Empire, that, whilst that empire is at peace, the Straits, both of the Bosphorus and the Dardanelles, are considered as shut against the ships of war of all nations. To this proposition it was replied, on the part of the British Government, that its opinion respecting the navigation of these Straits by the ships of war of foreign nations rested upon a general and fundamental principle of international law. Every State is considered as having territorial jurisdiction over the sea which washes its shores, as far as three miles from low-water mark; and, consequently, any strait which is bounded on both sides by the territory of the same sovereign, and which is not more than six miles wide, lies within the territorial jurisdiction of that sovereign. But the Bosphorus and Dardanelles are bounded on both sides by the territory of the Sultan, and are in most parts less than six miles wide; consequently his territorial jurisdiction extends over both those Straits, and he has a right to exclude all foreign ships of war from those Straits, if he should think proper so to do. By the Treaty of 1809, Great Britain acknowledged this right on the part of the Sultan, and promised to acquiesce in the enforcement of it; and it was but just that Russia should make the same engagement. The British Government was of opinion, that the exclusion of all foreign ships of war from the two Straits would be more conducive to the maintenance of peace, than an understanding that the Strait in question should be a general thoroughfare, open, at all times, to ships of war of all countries; but whilst it was willing to acknowledge by treaty, as a general principle and as a standing rule, that the two Straits should be closed for all ships of war, it was of opinion, that if, for a particular emergency, one of those Straits should be open for one party, the other ought, at the same time, to be open for other parties, in order that there should be the same parity between the condition of the two Straits, when open and shut; and, therefore, the British Government would expect that, in that part of the proposed Convention which should allot to each Power its appropriate share of the measures of execution, it should be stipulated, that if it should become necessary for a Russian force to enter the Bosphorus, a British force should, at the same time, enter the Dardanelles. It was accordingly declared, in the 4th Article of the Conven tion, that the co-operation destined to place the Straits of the Dardanelles and the Bosphorus and the Ottoman capital under the temporary safeguard of the contracting parties, against all aggression of Mehemet Ali, should be considered only as a measure of exception, adopted at the express request of the Sultan, and solely for his defence, in the single case above mentioned; but it was agreed that such measure should not derogate, in any degree, from the ancient rule of the Ottoman Empire, in virtue of which it had, at all times, been prohibited for ships of war of foreign Powers to enter those Straits. And the Sultan, on the one hand, declared that, excepting the contingency above mentioned, it was his firm resolution to maintain, in future, this principle invariably established as the ancient rule of his Empire, and, so long as the Porte should be at peace, to admit no foreign ship of war into these Straits; on the other hand, the four Powers engaged to respect this determination, and to conform to the abovementioned principle. This rule, and the engagement to respect it, as we have already seen, were subsequently incorporated into the treaty of the 13th July, 1841, between the five great European Powers and the Ottoman Porte; and as the right of the private merchant vessels of all nations, in amity with the Porte, to navigate the interior waters of the Empire, which connect the Mediterranean and Black Seas, was recognised by the Treaty of Adrianople, in 1829, between Russia and the Porte, the two principles-the one excluding foreign ships of war, and the other admitting foreign merchant vessels to navigate those waters-may be considered as permanently incorporated into the public law of Europe (c). These principles were again affirmed by the Treaty of Paris of 1856, the London Conference of 1871, and the Treaty of Berlin, 1878. part of the The territory of the State includes the lakes, seas, and rivers, Rivers entirely enclosed within its limits. The rivers which flow through forming the territory also form a part of the domain, from their sources territory of to their mouths, or as far as they flow within the territory, in- the State. cluding the bays or estuaries formed by their junction with the sea. Where a navigable river forms the boundary of conterminous States, the middle of the channel, or 'thalweg,' is generally taken as the line of separation between the two States, the presumption of law being that the right of navigation is common to both; but this presumption may be destroyed by actual proof of prior occu (c) Wheaton, Hist. Law of Nations, pp. 577-583. See ante, pp. 292 seq. Right of innocent pancy and long undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire river (d). Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others rivers flowing from using these elements in any manner which does not occasion through passage on different States. Incidental right to use the rivers. a loss or inconvenience to the proprietor. This is what is called an innocent use.' Thus we have seen that the jurisdiction possessed by one nation over sounds, straits, and other arms of the sea leading through its own territory to that of another, or to other seas common to all nations, does not exclude others from the right of innocent passage through these communications. The same principle is applicable to rivers flowing from one State through the territory of another into the sea, or into the territory of a third State. The right of navigating, for commercial purposes, a river which flows through the territories of different States, is common to all the nations inhabiting the different parts of its banks; but this right of innocent passage being what the textwriters call an 'imperfect right,' its exercise is necessarily modified' by the safety and convenience of the State affected by it, and can only be effectually secured by mutual convention regulating the mode of its exercise (e). There is by no means unanimity of opinion, however, among jurists as to the right of innocent passage.' Many assert it; but there are not a few who deny it as a matter of strict law (f). On the whole, modern views and practice, as a French writer says, favour freedom of navigation, subject to such precautionary measures as may be necessary to safeguard the riparian States, and to their respective rights of jurisdiction, police, customs regulations, &c. (g). It seems that this right draws after it the incidental right of the banks of using all the means which are necessary to the secure enjoyment of the principal right itself. Thus the Roman law, which considered navigable rivers as public or common property, declared that the right to the use of the shores was incident to that of the water; and that the right to navigate a river involved the right to (d) Vattel, Droit des Gens, liv. i. ch. 22, § 266. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. ii. ch. 1, § 39. Heffter, Das Europäische Völkerrecht, §§ 66-77. Cf. Buttenurth v. St. Louis Bridge Co. (1888), 123 Illinois, 535; Scott, Cases, p. 121; and Iowa v. Illinois (1893), 147 U. S. 1, where the phrase "middle of the Mississippi River was taken to mean the "middle of the main channel" or "thread of the stream." (e) Grotius, De Jur. Bel. ac Pac. lib. ii. cap. 2, §§ 12-14; cap. 3, $$ 7-12. Vattel, Droit des Gens, liv. ii. ch. 9, §§ 126-130; ch. 10, $$ 132-134. Pufendorf, De Jur. Naturæ et Gentium, lib. iii. cap. 3, §§ 3-6. (f) Cf. Westlake, Int. Law, vol. i. (1904), pp. 158-9, where the opposing authorities are tabulated. (g) H. Bonfils, Droit Int. Public, $ 524. moor vessels to its banks, to lade and unlade cargoes, &c. The public jurists apply this principle of the Roman civil law to the same case between nations, and infer the right to use the adjacent land for these purposes, as means necessary to the attainment of the end for which the free navigation of the water is permitted (h). The incidental right, like the principal right itself, is imperfect These rights in its nature, and the mutual convenience of both parties must be are imperfect. consulted in its exercise. Those who are interested in the enjoyment of these rights may Modification of these rights renounce them entirely, or consent to modify them in such manner by compact. as mutual convenience and policy may dictate. A remarkable instance of such a renunciation is found in the Treaty of Westphalia, 1648, confirmed by subsequent treaties, by which the navigation of the river Scheldt was closed to the Belgic provinces, in favour of the Dutch. The forcible opening of this navigation by the French on the occupation of Belgium by the arms of the French Republic, in 1792, in violation of these treaties, was one of the principal ostensible causes of the war between France on one side, and Great Britain and Holland on the other. By the Treaties of Vienna, the Belgic provinces were united to Holland under the same sovereign, and the navigation of the Scheldt was placed on the same footing of freedom with that of the Rhine and other great European rivers. And by the Treaty of 1831, for the separation of Holland from Belgium, the free navigation of the Scheldt was, in like manner, secured, subject to certain duties, to be collected by the Dutch Government (i). of the Scheldt On the 16th July, 1863, a treaty was entered into between Redemption Belgium and most of the European Powers, by which Belgium tolls. agreed to suppress the tolls on the Scheldt. Holland had renounced her claims to the tolls on the 12th of May of the same year, in consideration of an indemnity paid to her by Belgium (k). The suppression of the tolls was to apply to every flag, and they were never to be re-established. Belgium also agreed to abolish tonnage dues in her ports, and to reduce the pilotage rates previously charged; but this was only to apply to countries which were parties to the treaty (1). As a compensation, the signatory Powers agreed to indemnify Belgium against the claims she had become liable to, under the treaty with Holland, and to pay her a iii. (h) Grotius, De Jur. Bel. ac Pac. lib. ii. cap. 2, § 15. Pufendorf, De Jur. Naturæ et Gentium, lib. cap. 3, § 8. Vattel, Droit des Gens, liv. ii. ch. 9, § 129. (i) Wheaton, Hist. Law of Nations, pp. 282-284, 552. (k) Hertslet, Map of Europe by Treaty, vol. ii. p. 1532. (1) The United States was not a party. |