International Law

§ 36. Application of the Right

Besides the general rights of independence, equality, jurisdiction, property, and intercourse, the right of existence in its exercise may lead to certain acts for which the general principles of international law do not provide rules.[90]

(a) In face of actual dangers immediately threatening its existence, a state may take such measures as are necessary for self-preservation, even though not sanctioned by international law. Such measures, however, must be from "a necessity of self-defense, instant, overwhelming, and leaving no choice of means and no moment for deliberation," and further "must be limited by that necessity and kept clearly within it."[91] The wide discussion of the case of the Virginius involved the principle of the limits of the right of self-defense.[92]

(b) The right to act in a manner which international law does not sanction or denies, even though it may be strictly to preserve the existence of the state so acting, cannot be upheld as freeing it from responsibility for such acts, and these acts may be regarded as hostile by states affected by them.

(c) As the domestic acts of a state are not within the province of international law, a state has the right to administer its internal affairs in such manner as it may determine fit to secure and further its existence. It may adopt any form of government; may plan for its growth by developing its resources, by encouraging immigration; may strengthen defenses and forces; may regulate trade, commerce, and travel. While acts of this character may work injury to other states, they are not in general just grounds for war, but may properly be met by like acts on the part of other states.

§ 37. Extension of the Right to Subjects of the State

As the subjects of a state are necessary for its existence, the right of self-preservation has been held to justify certain acts of states to secure to their subjects in their relations with foreign states such rights as the foreign states would accord to their own subjects under similar circumstances. That a local tribunal within a purely domestic division of a state cannot secure to foreigners rights to which they are entitled, in no way frees that state, whose sovereignty extends over such domestic division, from responsibility for violation of the foreigner's right. International law recognizes only the personality of the sovereign political unity, and cannot cognize the administrative and other subdivisions. Hall says, "States possess a right of protecting their subjects abroad which is correlative to their responsibility in respect of injuries inflicted upon foreigners within their dominions."[93] "Fundamentally, however, there is no difference in principle between wrongs inflicted by breach of a monetary agreement and other wrongs for which the state, as itself the wrong-doer, is immediately responsible. The difference which is made in practice is in no sense obligatory; and it is open to governments to consider each case by itself, and to act as seems well to them on its merits."[94]

CHAPTER IX

INDEPENDENCE

§ 38. Manner of Exercise of the Right

Strictly, there can be no limitation or restriction of independence, for it is a recognized principle that independence must be absolute and inalienable. In fact, every state voluntarily accepts either formally by treaty or tacitly by practice, many conditions which restrain it in the exercise of its powers. The independence of the state is not thereby violated, since the restraint is exercised by the state itself, and is not an act of external control. The number of these restraints which states voluntarily assume is continually increasing, owing to the closer relations of humanity.

The exercise of the right of independence involves the privilege of making treaties, alliances, contracts, and municipal laws, so far as these do not violate international law or the right of independence as possessed by other states. A state may go to war to maintain its independence. The international rights of a state are in general closely related to the right of independence, and derive force from this relationship.

§ 39. Balance of Power

Undoubtedly the idea of establishing a relationship among "neighboring states more or less connected with one another, by virtue of which no one among them can injure the independence or essential rights of another without meeting with effectual resistance on some side and consequently exposing itself to danger"[95] is not a modern idea. Ancient states united to prevent the growth of some neighboring power to such magnitude as would threaten their independence.[96] From the beginning of the modern period of international law, Peace of Westphalia (1648), the idea of maintaining an equilibrium among the powers of Europe has had great influence, and until the latter part of the nineteenth century was regarded as one of the fundamental principles of European international practice. Many treaties aim to preserve this balance among the European powers, and the words "balance" and "equilibrium" often appear.[97] The Treaty of Utrecht in its provision between Spain and Great Britain, July 13, 1713, gives as its object ad firmandam stabiliendamque pacem ac tranquillitatem christiani orbis justo potentiæ equilibro. The idea that independence was to be preserved by some balance of power reappears in successive treaties. This idea of the balance of power has led to most diverse action. Unjust rulers have made it the cloak for action entirely outside the sanction of international law. Many times it has "served as the pretext for a quarrel, and repeatedly made hostilities general which would otherwise have been shut up within a comparatively small area."[98] The feeling that the balance of power was a necessary policy for the preservation of European states, led to the idea that states should be constrained to certain lines of action, which would prevent, in many cases, normal growth. Frequently the independence of a state was violated to anticipate an action which might disturb the European equilibrium. The partitions of Poland show a violation of the principles of international law for the sake of giving equal compensation to the parties to it.

The doctrine of the balance of power is not a principle of international law, but merely a maxim of European political practice pretending to state the means of maintaining the independence of European states.[99]

§ 40. Monroe Doctrine

Another maxim of political action is that which has become known as the "Monroe Doctrine." While enunciated by a single state, it had in view the maintenance of the independence of the states of the American continent. For many years after the Revolutionary War the opinion prevailed that Europe viewed with disfavor the growth of the American republic. The Holy Alliance, formed on the downfall of Napoleon, was followed by several congresses of European powers, at one of which, held at Verona in 1822, the subject of helping Spain recover her revolting colonies in America was discussed. This led to the declaration of President Monroe in his message of Dec. 2, 1823, that there should be, (1) no more European colonies on these continents, (2) no extension of the European political system to any portion of this hemisphere, (3) no European interposition in the affairs of the Spanish-American republics. This doctrine has been repeatedly affirmed by the United States, and in some instances very liberally interpreted. It in no way embodies a principle of international law, though the European and other states may regard it as expressing the attitude of the United States upon the points covered, and if desirous of avoiding friction, govern themselves accordingly. If it were a principle of international law, the United States would not be justified in changing its attitude upon the doctrine, but probably it would not be seriously maintained that the United States might not enunciate another policy setting aside the Monroe Doctrine. Reddaway well says, "that it produced its desired effect as an act of policy, but in no way modified the Law of Nations."[100] This doctrine cannot be considered as outlining a principle of non-intervention, as has sometimes been claimed, but it rather announces a policy of intervention on the part of the United States to anticipate intervention by other powers.

The doctrine has always failed of legislative indorsement, and has been strenuously opposed by European powers. That it has been recognized, however, to a certain extent, appears by the course of events.[101] It was recently applied in the case of the intervention by the United States in the dispute over the boundary between Venezuela and British Guiana. Great Britain and the United States settled the difficulty by a submission to arbitration.[102]

§ 41. Non-intervention

With the right of independence goes the correlative obligation of non-intervention, i.e. of refraining from all acts that would forcibly limit the freedom of another state. This obligation of non-intervention does not extend to the limitation of acts involving no display or threat of force, as in the case of mediation and arbitration. Nor can it be claimed that the obligation of non-intervention can be urged against measures undertaken by a state to preserve its fundamental right to existence. There is no right of intervention, as has been sometimes argued, though an act of intervention may be sometimes justifiable in itself.[103] Intervention is the attempt of one or more states, by means of force, to coerce another state in its purely state action. The making of an alliance between two may influence a third state in its action, but it cannot be considered an intervention, nor is the tender of friendly offices in the settlement of a dispute to which a state is a party, intervention; but when a state directly interferes with the exercise of the authority in another state or by another state, it constitutes intervention. Intervention may vary greatly in degree and in character, whether it be armed or diplomatic. Each case must be considered separately on its merits, and if in any degree a justifiable measure, it must be on the highest grounds, and the motives of the intervening state must be pure. While it is still necessary to discuss the question of intervention in its various forms, yet, as Hall says: "It is unfortunate that publicists have not laid down broadly and unanimously that no intervention is legal, except for the purpose of self-preservation, unless a breach of the law as between states has taken place, or unless the whole body of civilized states have concurred in authorizing it."[104]

§ 42. Practice in Regard to Intervention

The nineteenth century might be called the century of interventions, for its whole political history has been closely related to the application of measures of intervention of the most varied sort. Naturally, all authorities do not agree as to the causes underlying the action of the several states, nor as to the nomenclature which should be used in describing these measures. A review of some of the cases of intervention during the nineteenth century shows that while the doctrine of non-intervention has been more and more widely professed, the practice has been strongly influenced by political expediency.

Intervention for any cause may always be regarded by the state whose independence is impinged as a hostile act, and a ground for war, thus putting the matter outside the international law of peace.[105]

(a) Intervention for Self-preservation. As the right of existence is the first right of a state and universally admitted, intervention may sometimes be used as a means of maintaining this existence. In such a case it is clearly a matter of policy as to the means which a state shall use, and if it resorts to intervention rather than other means, it must have ample grounds for its action in the particular case. A case of intervention on the grounds of self-preservation which has caused much debate is that of England in the two attacks upon Copenhagen in 1801 and 1807, on the ground that it was necessary for English supremacy of the seas, which formed her chief defense, to prevent the union of the Danish forces with those of the other powers. Intervention cannot be justified by any appeal to general principles which inhere in the act itself. "The facts of intervention are acts of the political existence of states. Good or bad, according as the intervention is injurious or beneficial."[106] Of intervention as a method of state action, Sir W. Harcourt says: "It is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in case of Intervention, as in that of Revolution, its essence is illegality, and its justification is its success. Of all things, at once the most injustifiable and the most impolitic is an unsuccessful Intervention."[107] Non-intervention is the obligation which international law enjoins. It gives no sanction to a "right of intervention" which would be entirely inconsistent with the right of independence. The question of intervention is one of state policy only, and is outside the limits of the field of international law. Intervention is a method of state action which is justifiable only in rare cases, and less and less justifiable as the growing mutual dependence of states makes possible other methods less open to objection. International law at the present day undoubtedly regards intervention when strictly necessary to preserve the fundamental right of the intervening state to its existence as a permissible act though contravening the right of independence in another state.

(b) Intervention to prevent Illegal Acts. As international law must rest upon the observance of certain general principles, it may in extreme cases be necessary to intervene in order that these principles may be respected by certain states in their dealings with other states which, though weaker in physical force, have equal rights in international law. How far any state will act as champion of the law of nations is a question which it must decide for itself. Unquestionably international law would look with favor upon measures necessary for its own preservation.

(c) Intervention by General Sanction. Some authorities have maintained that intervention when sanctioned by a group of states is justifiable. It is probable that a group of states would be less liable to pursue an unjust course than a single state, and that intervention under such sanction would be more liable to be morally justifiable. It is, however, no more legal than the same act by a single state; and if general consent is the only sanction, while the act may be expedient, advantageous, and morally just, it cannot be regarded as upheld by international law, nor can a single act of this kind establish a principle. The several cases of such intervention under general sanction can hardly be regarded as sufficiently similar to establish a principle even upon the Eastern Question in Europe.[108] It may be concluded that while general sanction of a considerable group of states may, for a given interference, free a state from moral blame and warrant the act as a matter of policy, yet it does not give any international law sanction for intervention by general consent.

(d) Other Grounds of Intervention. Many reasons have been advanced as justifying such measures as intervention.

(1) Intervention to carry out provisions of treaties of guaranty was formerly common, e.g. intervention by one state to preserve the same form of government in the other or to maintain the ruling family. It is now held that no treaty can justify interference in the internal affairs of a state not party to the treaty.

In general, intervention, because of treaty stipulations, even when the state subject to the intervention is a party to the treaty, is a violation of independence unless the treaty provides for such measures, in which case the state has become a protected state or entered into relations by which it has not full state powers. Such treaties must be clearly state acts and not acts of individuals "who from their position have the opportunity of giving to their personal agreements the form of a state act."[109] While there is still difference of opinion as to the question of intervention under treaty sanction, the weight of opinion seems to be decidedly to the effect that such intervention has no ground of justification in international law.

(2) Intervention to preserve the balance of power, which was regarded as a necessary means for the preservation of European peace, has been considered as justifiable till recent times. Since the middle of the nineteenth century the position has received less and less support, though advanced in behalf of the preservation of the Turkish Empire and the adjustment of the Balkan states. In 1854 Great Britain and France, on the appeal of the Sultan for assistance against the Russian aggressions, determined to aid him, "their said Majesties being fully persuaded that the existence of the Ottoman Empire in its present Limits is essential to the maintenance of the Balance of Power among the States of Europe."[110] The attitude at the present time is stated by Lawrence. "The independence of states is not to be violated on the ground of possible danger to some imaginary equilibrium of political forces."[111]

(3) Interventions upon the broad and indefinite ground of humanity have been common and were generally upheld by the writers to the time of Vattel. Since his day opposition to intervention of this kind has gradually obtained favor. What the grounds of humanity are, and which nation's ideas of humanity shall be accepted as standard, have been questions difficult to settle to the general satisfaction of states. For a state to set itself up as judge of the actions of another state and to assume that it has the right to extend its powers to settling and regulating affairs of morals, religion, and the relations of public authority to the subjects in another state, on the ground of maintaining the rights of mankind as a whole, is to take a ground which the conduct of any modern state, even the most civilized, would hardly warrant. While it is admitted that a state or states may sometimes interfere to prevent one state from unduly oppressing another, as in the intervention of the powers in Greece in 1827, yet it is generally held that to interfere because the internal affairs of a given state are not conducted in a manner pleasing to the foreign state is to give a sanction to an act that would result in far more evil than good. Such intervention has often taken place. The "Holy Alliance," in attempting to guard Europe from "the curse of Revolution," advocated in practice a most dangerous form of intervention.[112] Indeed, much of the European history of the nineteenth century is but a history of successive interventions. In spite of all this, as Walker says, "the rule regularly progresses towards more general recognition, that non-intervention in the internal affairs of a state is a law which admits of no exception to foreign powers, so long as the operations of that state are confined in their effect to the limits of the national territory."[113]

Nevertheless, the United States interfered in the affairs of Cuba on the ground of humanity. The President, in his message of April 11, 1898, says, after a long statement of the facts: "I have exhausted every effort to relieve the intolerable condition of affairs which is at our doors. Prepared to execute every obligation imposed upon me by the Constitution and the law, I await your action."[114] By joint resolution of Congress of April 20, 1898, demand was made upon Spain to relinquish its authority in Cuba, and the President was authorized to use land and naval forces to carry the resolution into effect.[115]

(4) In time of civil war, on invitation of both parties, a foreign state may act as mediator, but unless the revolting party has been recognized, this is mediation in a domestic sense rather than intervention in the sense of international law.

Under other conditions there is a diversity of view as to the proper course of action.[116] Some deny with Vattel, G. F. de Martens, Heffter, Fiore, Bluntschli, Woolsey, and others maintain or permit intervention in civil war at the request of one of the parties, though some of the authorities do not permit intervention except on the invitation of the parent state and not on that of the rebelling party. Bluntschli (§ 476) and Woolsey (§ 42) admit intervention only in behalf of the party representing the state; Vattel and some others permit intervention in behalf of the party which the intervening state considers to have the right of the contest, thus opening the arbitration of the contest to a foreign state. Both of these positions are receiving less and less of sanction. Intervention in behalf of the established state implies a doubt as to which power within the state is the de facto power, and as Hall says: "the fact that it has been necessary to call in foreign help is enough to show that the issue of the conflict would without it be uncertain, and consequently that there is a doubt as to which side would ultimately establish itself as the legal representative of the state."[117] It is plain to see that intervention in behalf of the rebelling party is a violation of the independence of the existing state. It is equally clear that international law does not give a foreign state a right to judge upon the justice or merits of domestic questions in another state.

The principle may now be regarded as established by both theory and practice that the invitation of neither party to a domestic strife gives a right to a foreign state to intervene, and that no state has a right to judge as to the merits of the contest and to interfere in behalf of the party it thinks in the right. Indeed, intervention because of civil war only is in no case justifiable, though the consequences of such a disturbance may warrant intervention upon other grounds.[118]

(5) Intervention on the ground of financial transactions is not now sanctioned. A state may make any injustice done its subjects by a foreign state a matter of diplomatic negotiations. It has sometimes been held that contracts running between a state and the subject or subjects of another state may, if violated, become grounds of just intervention, and that the subjects had a right to demand action by their sovereign. This ground is manifestly insufficient, though each state is judge as to what measures it will take in a given case. International law does not guarantee the payment of loans which are merely personal transactions between the individual and the state in its corporate capacity, nor can the public law of one state be expected to hold in another. Interference on such grounds is a matter of expediency and not a matter of right.

(e) Conclusion. In general, the best authorities seem to agree that at the present time, owing to the ease with which other measures may be taken, intervention can be admitted only on the single ground of self-preservation. The numerous cases of intervention upon varied grounds amply show that any other ground would be open to wide abuse, as has often been the case. For general purposes of remedy for injury such measures as retorsion, reprisals, embargo, and pacific blockade may be taken when a state deems it expedient and is willing to assume the responsibility for such measures.[119] While intervention is, for the sake of preserving the existence of a state, a justifiable measure, it is not a right, but merely a means sometimes justifiable to preserve a right,—the right of a state to exist, which alone supersedes the obligation of non-intervention.

CHAPTER X

EQUALITY

§ 43. Equality in General

The equality of states was an early premise of international law. This equality, however wide may have been its meaning, as interpreted by some of the earlier writers, can now be held to extend only to legal status. A state from its very being as a sovereign unity must be legally equal to any other state. Only those states members of the international circle are regarded as possessed of this equality from the point of view of international law. So far as legal attributes as states extend, the states members of the international circle are equal, yet that their weight in the world of affairs may vary by virtue of other circumstances must be admitted. The legal status of states is the same; regardless of the form of state organization, whether monarchy or republic; regardless of origin, whether by division or union of former states or even if created in a region hitherto outside the jurisdiction of any state; regardless of area, population, wealth, influence, etc.; regardless of relations to other states provided sovereignty is not impaired; regardless of any change in the form of state organization, as from a republic to a monarchy or even of a temporary lapse in the exercise of sovereignty.

§ 44. Inequalities among States

While all states, members of the family of states, are equal in international law so far as their legal attributes are concerned, they may be very unequal in other respects.

(a) One of the oldest marks of inequality is that of court precedence, which for many years was a fertile source of difficulty, and was at last settled to the extent of ranking by title of diplomatic representative by the Congress of Vienna in 1815.[120]

(b) Inequalities in matters of ceremonial of various kinds have not disappeared. These may be based upon tradition or conventional grounds, and frequently give rise to difficulties if disregarded. These ceremonials may be (1) political as between the sovereigns in their official personal capacity as emperors, kings, dukes, etc., (2) court and diplomatic in interstate negotiations, (3) treaty as in alternat or in the alphabetical signing of treaties, (4) maritime ceremonial in salutes, etc.

(c) Inequalities in weight of influence in affairs.

(1) In Europe there is distinctly recognized in political practice an inequality of the states, and they are classed as "the great powers," "the minor powers," and sometimes such states as those of the Balkan peninsula are referred to as "the little powers" or "third-rate states." These divisions are based merely upon political grounds, and states may pass from one division to another as their wealth, area, or influence increases or decreases.

At the present time "the great powers," generally mentioned officially upon the continent in the alphabetical order of their names in French, i.e. Allemagne, Angleterre, Autriche, etc., are Germany, Great Britain, Austria, France, Italy, and Russia. During the sixteenth and seventeenth centuries Spain was numbered with "the great powers." Sweden was so ranked in the seventeenth century. Italy was counted with "the great powers" after 1870. The union of several powers upon certain lines of policy, since early in the nineteenth century, has been called "the concert of Europe," "the primacy of the great powers," etc. It was not the purpose of these great powers to establish new rules of international law; but as enunciated by the five powers, Nov. 15, 1818, it was "their invariable resolution never to depart, either among themselves, or in their relations with other states, from the strictest observation of the principles of the Rights of Nations."[121]

That the practice of the Great Powers has not been strictly in accord with these expressed principles, a glance will show. The immediate action of Austria, Russia, and Prussia in the Congress of Troppau, 1820, carried the principle of interference in the internal affairs of states so far that Great Britain found itself compelled to dissent. This continuance of the policy of the Holy Alliance in putting down movements in favor of popular liberty, wherever arising, led to gross violations of international rights. Nor did Great Britain become a party to the acts of the Congress of Verona in 1822, which led to intervention to prevent changes in the internal organization of Spain in 1823. The struggles of the Greeks for independence at about this time were naturally regarded by those upholding the ideas of the Holy Alliance as dangerous to those states desiring to prevent revolutionary movements. But the narrow policy of the Alliance was gradually losing support. The opposition of Great Britain and the death of Alexander of Russia in 1825 hastened its speedy fall. Meantime the idea of a collective authority in the Great Powers had been maintained. This began to be exercised in behalf of the Greeks in 1826, and has throughout the nineteenth century been repeatedly exercised in the same behalf, sometimes unselfishly, often from motives of mixed character. During the latter half of the nineteenth century the Great Powers have continually kept a close surveillance over Grecian affairs, and enforced their judgments in regard to Greece by force (destruction of Turkish fleet at Navarino, 1827); by providing form of government and naming monarch (1829 and later); by fixing and changing boundaries (1829 and often); by pacific blockade (1827, 1850, 1886, 1897); by regulating financial affairs, and by other means of varying degree of force.[122]

The Eastern question has particularly occupied the Concert, and the disposition of the territory once within the Turkish jurisdiction has offered a fertile field for varying policy.

The establishment of Belgium as a neutral state by the treaty to which Belgium was itself a party afforded another example of the influence of the Great Powers.

Since 1839 Egypt has also been subject to frequent control by the Great Powers.

Since 1885 the unappropriated portion of Africa has been brought into the range of action of the Concert by the theory of the sphere of influence.

The Concert of the Great Powers shows then a policy which is liable to change with expediency. The two great treaties of the Concert are those of Paris, 1856, and Berlin, 1878. Of these Holland says, "The treaties of Paris and of Berlin thus resemble one another, in that both alike are a negation of the right of any one Power, and an assertion of the right of the Powers collectively, to regulate the solution of the Eastern question."[123] The fact that the action of the Great Powers has been regarded as binding and tacitly accepted in Europe in certain questions in the East, Egypt, Greece, and Belgium does not give the sanction of international law to the action. The most that can be said is that it is an alliance of a loose character, whose authority is in proportion to the force behind its decisions.[124]

(2) Another feature in European politics giving rise to further inequalities in practice was introduced by the alliance of Germany and Austria in 1879 and Italy in 1883, which is now commonly known as the Triple Alliance. This belt of powers separating Eastern from Western Europe has materially affected the action of other powers.

The "friendly understanding" between France and Russia soon after the Triple Alliance affords a measure of counter-check upon the action of the other powers.

In spite of all these alliances and counter-alliances, the recognition of the weight of the decisions of the congresses and conferences of the Great Powers upon those subjects which are held to affect "the peace of Europe" have an influence comparable to that which might be assigned to a "Supreme Court of International Appeal."[125]

The United States upon the American continent in its enunciation of the Monroe Doctrine, and the subsequent interpretation of it, has assumed a position as arbiter among the American states in some respects similar to that of the European Concert among the European states. This attitude of the United States has weight in international practice, but cannot be regarded as a part of international law.

CHAPTER XI

JURISDICTION

§ 45. Jurisdiction in General

Jurisdiction is the right to exercise state authority, and for the purposes of international law may be classified as, (a) territorial or land jurisdiction, (b) fluvial and maritime, and (c) jurisdiction over persons.

§ 46. Territorial Domain and Jurisdiction

The word "territory" is sometimes used as equivalent to domain or dominion or to an expression covering the sphere of state control. Territory is also used in the stricter sense of the land area over which a state exercises its powers. In this stricter sense, territorial jurisdiction refers to the exercise of state authority over the land within its boundaries and those things which appertain to the land. The growing international importance of railroads, telegraph, and other modern means of communication has introduced new topics not considered in early treatises, and these are still under discussion.

The fundamental law of territorial jurisdiction is that a state has within its boundaries absolute and exclusive jurisdiction over all the land and those things which appertain thereto. Certain exemptions are specially provided in international law to which all states are considered as giving express or tacit consent. In other respects than those mentioned under exemptions, the state may, as sovereign, exercise its authority at discretion within the sphere it has set for itself. The state has, as against all other states, an exclusive title to all property within its territorial jurisdiction. As regards its own subjects, it has the paramount title which is recognized in the right of eminent domain, or the right to appropriate private property when necessary for public use. A state may also in its corporate capacity hold absolute ownership in property, as in its forts, arsenals, ships, etc.

The state also has the right to enforce a lien on the land and what appertains to it in the form of taxes.

§ 47. Method of Acquisition

The method of acquisition of territorial jurisdiction is a subject which has received much attention in international law, particularly because of the remarkable expansion of the territorial area of states within the modern period of international law since 1648.

The methods commonly considered are: (1) discovery, (2) occupation, (3) conquest, (4) cession, (5) prescription, (6) accretion.

(a) In the early period of European expansion through discovery, the doctrine that title to land hitherto unknown vested in the state whose subject discovered the land was current. Gross abuse of this doctrine led to the modification that discovery without occupation did not constitute a valid title. As the field of discovery has grown less, the importance of a definition of occupation has decreased.

(b) Occupation is held to begin at the time of effective application of state authority, and strictly continues only during the exercise of such authority. In fact, however, the title by occupation is held to extend to the adjacent unoccupied territory to which the state might potentially extend the exercise of its authority, or where it may from time to time exercise its authority in an undisputed manner. Title by occupation extends as a rule to that area, not under the jurisdiction of another state, which is necessary for the safety of the occupied area or is naturally dependent upon it, as to the territory drained by a river of which a given state holds the mouth.

The "Hinterland Doctrine," brought forth during the latter years of the nineteenth century, advances the idea that no such limits as above shall bound the area which can be claimed on ground of occupation, but that coast settlements give a prima facie title to the unexplored interior.

While the uncivilized peoples living within an area to which a civilized state claimed jurisdiction by virtue of occupancy were often unjustly treated, they however "were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil of their own will, except to the government claiming the right of preëmption.... The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil, and exercise such a degree of sovereignty as circumstances required, has never been questioned."[126]

(c) Conquest in the technical sense of the status of a territory which has come permanently under the jurisdiction of the enemy is distinct from military occupation, which is a simple fact supported by force.

Military occupation may pass into conquest (1) by actual occupation for a long period, with intention on the part of the occupier to continue the possession for an indefinite period, provided there has not been a continued and material effort upon the part of the former holder to regain possession. If, after a reasonable time, this effort to regain possession seems futile, the conquest may be regarded as complete. Each state must judge for itself as to the reasonableness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, to which the inhabitants acquiesce, a subjugated territory is incorporated under a new state. (3) A treaty of peace or act of cession may confirm the title by conquest.[127]

(d) Transfer of territory by cession may be by gift, exchange, or sale.

(1) The transfer by gift is simple, and carries such obligations as the parties interested may undertake. In 1850, by a treaty with Great Britain, "Horse-shoe Reef," in Lake Erie, was ceded to the United States for the purpose of the erection of a lighthouse, "provided the Government of the United States will engage to erect such lighthouse, and to maintain a light therein; and provided no fortification be erected on said Reef."[128]

(2) Transfer of territory by exchange is not common in modern times. By the Treaty of Berlin, 1878, a portion of Bessarabia, given to Roumania by the Treaty of Paris, 1856, was given back to Russia, and Roumania received in exchange a portion of Turkey.[129]

(3) Transfer of territory by sale has been frequent. From 1311, when the Markgraf of Brandenburg sold three villages to the Teutonic knights, down to the nineteenth century, instances of sale might be found, but the nineteenth century has numerous instances which have established the principles. Napoleon sold Louisiana to the United States in 1803, the Prince of Monaco made a sale to France in 1851, Russia sold Alaska to the United States in 1867, the Netherlands sold African colonies to Great Britain in 1872, Sweden sold the island of St. Bartholomy to France in 1877, the United States bought the Philippines in 1898. The fact of the sale is not a matter of international law, but is purely within the range of the public law of the countries concerned. The change of jurisdiction of the area gives rise to certain possible complications which may involve principles of international law, though generally the conditions of sale settle such questions.

(4) Cession of jurisdiction over a given portion of territory as surety for the performance of a certain act, payment of an indemnity or the like, has for some years been a method of acquiring temporary jurisdiction which frequently becomes permanent.

(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 partition 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 title 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 title. (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 assumes the direction of its international relations. A measure of jurisdiction of those internal affairs which may lead to international complications is also generally assumed 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 constitutes a "reasonable degree," the circumstances 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 partition 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 classes:—

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 passage 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 passes through two or more states, international law gives no right to one of the states to pass 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 passage, 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, assert 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 fishing 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 shore state or states. In case two shores are territory of different states, each state has jurisdiction to the middle of the navigable channel.

Where a state owns both shores 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 entitled him to levy tolls upon vessels passing 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 passage 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 embassies 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 pass 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) Canals connecting large bodies of water have been regarded as in most respects subject to jurisdiction similar to that of straits. Yet as these canals 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 Canal as an international waterway gives some indication of existing practice.

It is to be noted, (1) that the canal 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 canal 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 canal was defined. By Article I. of the Conventional Act, "The Suez Maritime Canal 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 Canal, in time of war as in time of peace.

"The Canal shall never be subjected to the exercise of the right of blockade."

By Article IV., the canal 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.

By Article VII., the powers might keep two war vessels in the "ports of access of Port Said and Suez," though "this right shall not be exercised by belligerents."

By Article X., the territorial jurisdiction for general administrative purposes is affirmed, and likewise for sanitary measures in Article XV.[140]

This Suez Canal of such great international importance is by this convention within the jurisdiction of Egypt, but the powers have assumed to provide that this jurisdiction shall not be exercised in such a way as to prevent innocent passage.