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powers the Government has to take the land of private owners for the erection of forts and magazines upon it. It is only when war breaks out between two states, and such possessions as we are considering become subject to belligerent capture, that International Law steps in to settle the nature and limits of proprietary rights over them. The laws of war decide the extent of their liability to hostile seizure, and the kind and degree of control that can be exercised over them when seized. We shall examine these questions when we come to deal with belligerent rights. Meanwhile we may mention here that vessels belonging to the state — public vessels as they are called to distinguish them from ships which are the property of private individuals — need not necessarily be adapted for warlike purposes. If they are owned by the state, manned by individuals in its service, and navigated under the command of its officers, they are state property. Even if hired by the state, they are public ships while the hiring lasts, provided that they are entirely given up for the time being to the service of the government and are under the control of its officers. Sometimes the word of the commander has been held to be sufficient evidence of state ownership.

§ 91.

Extent of a state's


We will now proceed to a consideration of the rules of International Law with respect to the important group of subjects connected with a state's territorial possessions. We will begin by endeavoring to answer territorial the question, Of what does a state's territory consist? It consists, first, of the land and water within that portion of the earth's surface which the state claims by legal title. All rivers and lakes which are entirely within its land boundaries are as much its territory as the soil they water. And if a river flows through several states, each possesses in

a full ownership that portion of the course which passes through its territory. But if one state holds the land on one bank of a river and another state possesses the opposite bank, the boundary line between them is drawn down the middle of the navigable channel, and includes the islands on either side.1 The same rule holds good of frontier lakes, such as Lake Ontario, whose northern shore is Canadian territory while its southern coast belongs to the United States. In all these cases it will be noticed that water is held to be appurtenant to land, not land to water. The rules concerning them are taken with scarcely any alteration from the Jus Gentium, and are part of that heritage of Roman Law with which Grotius and his fellow-workers endowed the international code.

Secondly, a state's territory includes the sea within a threemile limit of its shores. Along a stretch of open coast-line the dominion of the territorial power extends seawards to a distance of three miles, measured from low-water mark. The rule of the marine league was introduced at the beginning of the last century as a practical application of the principle laid down by Bynkershoek? and others, that a state's dominion over the sea should be limited to that portion of it which she can control from the land by means of her artillery, this being obviously all that can be needed to provide for her own safety. Her sovereign rights were to extend quousque tormenta exploduntur. And as at that time the furthest range of cannon was about three miles, the accepted maxim, Terre dominium finitur ubi finitur armorum vis, seemed to dictate the marine league as the appropriate distance. Opposing views gradually died out, and there can be no doubt that, whatever difficulties may still linger as to bays and indentations, the rule we are discussing rests upon the solid basis of general consent. It has been adopted not only in the domestic legislation of maritime states; but also in great international documents, like the North Sea Fisheries Convention of 1882, which defined territorial waters as those which came within three miles, measured from low-water mark along the coast of each of the signatory powers. A few attempts have been made in recent times to extend the limit in order to keep pace with the increased range of modern artillery. For instance, in 1863 Mr. Graham, the United States Consul at Cape Town, demanded the release of the Federal merchant vessel, the Sea Bride, which had been captured by the Confederate cruiser Alabama within four miles of the shore, but outside the three-mile limit. He based his demand upon the doctrine that since the invention of rifled cannon territorial waters extended to at least six miles. The British Governor of Cape Colony declined to interfere, on the ground that the rule of the marine league held good.? Mr. Graham's action was not seriously backed by his Government; and in 1875 the United States joined Great Britain in strenuously resisting the repeated claim of Spain to a six-mile zone off the coasts of Cuba, a claim denied again in 1880. It may be taken for granted that, in spite of a few tentative efforts at alteration, the rule of the three-mile limit is part and parcel of modern International Law. The Institute of International Law is, however, showing a tendency to reopen the question. A report upon the subject was presented at the Geneva session of 1892;5 but the full discussion of the matter was deferred to a future occasion. A revised report was prepared by Mr. T. Barclay for the session held at Paris in March, 1894. It drew a sharp distinction between territorial waters and waters over which a neutral state should be allowed to exercise such authority as is necessary for the enforcement of its neutrality. On the ground that the marine league is insufficient to protect coast fisheries, it suggested the extension of the territorial zone to six miles; and it gave to each neutral state the power of declaring to belligerents the number of marine miles it deems needful for the effective guarantee of its neutrality, provided that they do not exceed the range of cannon mounted on the shore. The maritime powers were recommended to meet in Congress in order to adopt these and other rules. The chief proposals of the Report were accepted by the Institute ; but it is doubtful whether the suggested Congress will ever be held. 1

1 Justinian, Institutes, II., i., 22, and Digest, XLI., i., 29; Wharton, International Law of the United States, I., 97.

? De Dominio Maris, Cap. II.

1 Hertslet, Treaties, XV., 795. 2 British State Papers, North America, United States (1864), LXII., 19-29. 3 Wharton, International Law of the United States, $$ 32, 327.

4 Bluntschli, Droit International Codifié, $ 302 ; Phillimore, Commentaries upon International Law, Pt. III., Ch. viii.

5 Annuaire de l'Institut de Droit International, 1892-1894, pp. 104-154. 6 Troisième Commission, Rapport par M. Barclay.


In the third place, a state is held to possess, in addition to the marine league, narrow bays and estuaries that indent its coast, and narrow traits both of whose shores are in its territory. The case of such straits is ruled by a simple deduction from the principles already laid down. If the passage is less than six miles across, it is wholly territorial water, because a marine league measured from either shore covers the whole expanse. If it is more than six miles across, a league on either side belongs to the territorial power and the midchannel is part of the open sea, which belongs to no state but is common to all for use and passage. With regard to bays and estuaries there is more doubt. The principle that such of them as are narrow should belong to the state which possesses the adjacent land, is universally admitted. For its own protection against possible enemies it is entitled to exercise the powers of ownership over what are really gates leading into its dominions. But when we come to define the exact extent of the waters which may properly be appropriated in pursuance of this principle, we find no general agreement. If the distance from point to point across the mouth of a bay is not more than six miles, that bay becomes territorial water under the accepted rule of the marine league. There is, however, a disposition to hold that the distance should be extended; but at present the common consent of nations has not fixed upon a generally accepted limit, though there is a considerable amount of authority in favor of ten miles. This was the rule adopted in the Fishery Convention of 1839 between Great Britain and France ;1 and it was embodied in the Report of Mr. Barclay, to which allusion has just been made, but the Institute by a large majority raised the limit to twelve miles. The mixed commission appointed under the provisions of the Convention of 1853 between the United States and Great Britain for the purpose of settling claims made by the citizens of each nation upon the government of the other, dealt with fishery disputes, and decided against the claim of Great Britain that the Bay of Fundy was British territorial water, on the ground, among others, that the distance from headland to headland across its opening was greater than ten miles. In 1888 a Fishery Treaty was negotiated at Washington between the two powers, but failed to come into operation on account of the refusal of the Senate of the United States to ratify it. It is, however, important for our present purpose, because it adopted the ten-mile line in the case of bays, creeks and harbors not otherwise specially provided for by its articles.3 But it cannot be said that there is a definite rule of International Law on this matter, as there is in the case of the marine league. The claims of states to large tracts of marginal waters — claims which are themselves relics of yet wider claims to dominion over oceans and seas increase the difficulty of the question. Some of them are dead or dormant; but when a valuable fishery is retained for native fishermen by the assertion of sovereignty over a bay of considerable size, or when considerations of self-protection or political advantage are prominent, we find that states insist upon and often obtain recognition of their demands, some of which are based upon very ancient precedent. Thus the Dutch claim to regard the Zuyder Zee as territorial water is generally recognized, and some writers hold that the United

1 Annuaire de l'Institut de Droit International, 1894-1895, pp. 281-331.


1 Hertslet, Treaties, V., 89.

Wheaton, International Law (Dana's ed.), note 142; Wharton, International Law of the United States, $ 305 a.

British State Papers, United States, No. 1 (1888).

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