(4) The government of a Federal State composed of a certain number of smaller States, which it represents from an international point of view, may not plead, in order to avoid the responsibility which falls upon it, the fact that the constitution of the Federal State does not give it the right to control the member-States, nor the right to exact from them the discharge of their obligations.

(5) The stipulations mutually exempting States from the duty of giving their diplomatic protection ought not to comprise the cases of refusal of justice, or of evident violation of justice or of International Law.[269]

PART II THE OBJECTS OF THE LAW OFNATIONS

CHAPTER I STATE TERRITORY

I ON STATE TERRITORY IN GENERAL

Vattel, II. §§ 79-83—Hall, § 30—Westlake, I. pp. 84-88—Lawrence, §§ 71-72—Phillimore, I. §§ 150-154—Twiss, I. §§ 140-144—Halleck, I. pp. 150-156—Taylor, § 217—Wheaton, §§ 161-163—Moore, I. § 125—Bluntschli, § 277—Hartmann, § 58—Holtzendorff in Holtzendorff, II. pp. 225-232—Gareis, § 18—Liszt, § 9—Ullmann, § 86—Heffter, §§ 65-68—Bonfils, No. 483—Despagnet, Nos. 374-377—Pradier-Fodéré, II. No. 612—Mérignhac, II. pp. 356-366—Nys, I. pp. 402-412—Rivier, I. pp. 135-142—Calvo, I. §§ 260-262—Fiore, I. Nos. 522-530—Martens, I. § 88—Del Bon, "Proprietà territoriale degli Stati" (1867)—Fricker, "Vom Staatsgebiet" (1867).

§ 168. State territory is that definite portion of the surface of the globe which is subjected to the sovereignty of the State. A State without a territory is not possible, although the necessary territory may be very small, as in the case of the Free Town of Hamburg, the Principality of Monaco, the Republic of San Marino, or the Principality of Lichtenstein. A wandering tribe, although it has a Government and is otherwise organised, is not a State before it has settled down on a territory of its own.

State territory is also named territorial property of a State. Yet it must be borne in mind that territorial property is a term of Public Law and must not be confounded with private property. The territory of a State is not the property of the monarch, or of the Government, or even of the people of a State; it is the country which is subjected to the territorial supremacy or the imperium of a State. This distinction has, however, in former centuries not been sharply drawn.[270] In spite of the dictum of Seneca, "Omnia rex imperio possidet, singuli dominio," the imperium of the monarch and the State over the State territory has very often been identified with private property of the monarch or the State. But with the disappearance of absolutism this identification has likewise disappeared. It is for this reason that nowadays, according to the Constitutional Law of most countries, neither the monarch nor the Government is able to dispose of parts of the State territory at will and without the consent of Parliament.[271]

It must, further, be emphasised that the territory of a State is totally independent of the racial character of the inhabitants of the State. The territory is the public property of the State, and not of a nation in the sense of a race. The State community may consist of different nations, as, for instance, the British or the Swiss or the Austrians.

§ 169. The territory of a State may consist of one piece of the surface of the globe only, such as that of Switzerland. Such kind of territory is named "integrate territory" (territorium clausum). But the territory of a State may also be dismembered and consist of several pieces, such as that of Great Britain. All States with colonies have a "dismembered territory."

Another distinction is that between motherland and colonies. Colonies rank as territory of the motherland, although they may enjoy complete self-government and therefore be called Colonial States. Thus, if viewed from the standpoint of the Law of Nations, the Dominion of Canada, the Commonwealth of Australia, New Zealand, and the Union of South Africa are British territory.

As regards the relation between the Suzerain and the Vassal State, it is certain that the vassal is not, in the strict sense of the term, a part of the territory of the suzerain. Crete and Egypt are not Turkish territory, although under Turkish suzerainty. But no general rule can be laid down, as everything depends on the merits of the special case, and as the vassal, even if it has some footing of its own within the Family of Nations, is internationally for the most part considered a mere portion of the Suzerain State.[272]

§ 170. The importance of State territory lies in the fact that it is the space within which the State exercises its supreme authority. State territory is an object of the Law of Nations because the latter recognises the supreme authority of every State within its territory. Whatever person or thing is on or enters into that territory, is ipso facto subjected to the supreme authority of the respective State according to the old rules, Quidquid est in territorio, est etiam de territorio and Qui in territorio meo est, etiam meus subditus est. No foreign authority has any power within the boundaries of the home territory, although foreign Sovereigns and diplomatic envoys enjoy the so-called privilege of exterritoriality, and although the Law of Nations does, and international treaties may, restrict[273] the home authority in many points in the exercise of its sovereignty.

§ 171. The supreme authority which a State exercises over its territory makes it apparent that on one and the same territory can exist one full-Sovereign State only. Two or more full-Sovereign States on one and the same territory are an impossibility. The following five cases, of which the Law of Nations is cognisant, are apparent, but not real, exceptions to this rule.

(1) There is, first, the case of the so-called condominium. It happens sometimes that a piece of territory consisting of land or water is under the joint tenancy of two or more States, these several States exercising sovereignty conjointly over such piece and the individuals living thereon. Thus Schleswig-Holstein and Lauenburg from 1864 till 1866 were under the condominium of Austria and Prussia. Thus, further, Moresnet (Kelmis), on the frontier of Belgium and Prussia, is under the condominium of these two States[274] because they have not yet come to an agreement regarding the interpretation of a boundary treaty of 1815 between the Netherlands and Prussia. And since 1898 the Soudan is under the condominium of Great Britain and Egypt. It is easy to show that in such cases[275] there are not two States on one and the same territory, but pieces of territory, the destiny of which is not decided, and which are kept separate from the territories of the interested States[276] under a separate administration. Until a final settlement the interested States do not exercise each an individual sovereignty over these pieces, but they agree upon a joint administration under their conjoint sovereignty.

(2) The second case is that of the administration of a piece of territory by a foreign Power, with the consent of the owner-State. Thus, since 1878 the Turkish island of Cyprus has been under British administration, and the then Turkish provinces of Bosnia and Herzegovina were from 1878 to 1908 under the administration of Austria-Hungary. In these cases a cession of pieces of territory has for all practical purposes taken place, although in law the respective pieces still belong to the former owner-State. Anyhow, it is certain that only one sovereignty is exercised over these pieces—namely, the sovereignty of the State which exercises administration. On the other hand, however, the fact that in these cases pieces of territory have for all practical purposes been ceded to another State does not empower the latter arbitrarily to annex the territory without the consent of the State owning it in law. Austria-Hungary had therefore no right to annex, in 1908, without the previous consent of Turkey, the provinces of Bosnia and Herzegovina.[277]

(3) The third case is that of a piece of territory leased or pledged by the owner-State to a foreign Power. Thus, China in 1898 leased[278] the district of Kiauchau to Germany, Wei-Hai-Wei and the land opposite the island of Hong-Kong to Great Britain, and Port Arthur to Russia.[279] Thus, further, in 1803 Sweden pledged the town of Wismar[280] to the Grand Duchy of Mecklenburg-Schwerin, and the Republic of Genoa in 1768 pledged the island of Corsica to France. All such cases comprise, for all practical purposes, cessions of pieces of territory, but in strict law they remain the property of the leasing State. And such property is not a mere fiction, as some writers[281] maintain, for it is possible that the lease comes to an end by expiration of time or by rescission. Thus the lease, granted in 1894 by Great Britain to the former Congo Free State, of the so-called Lado Enclave, was rescinded[282] in 1906. However this may be, as long as the lease has not expired it is the lease-holder who exercises sovereignty over the territory concerned.

(4) The fourth case is that of a piece of territory of which the use, occupation, and control is in perpetuity granted by the owner-State to another State with the exclusion of the exercise of any sovereign rights over the territory concerned on the part of the grantor. In this way[283] the Republic of Panama transferred, in 1903, to the United States of America a ten-mile wide strip of territory for the purpose of constructing, administrating, and defending the so-called Panama Canal. In this case the grantor retains only in name the property of the territory, the transfer of the land concerned is really cession all but in name, and it is certain that only the grantee exercises sovereignty there.

(5) The fifth case is that of the territory of a Federal State. As a Federal State is considered[284] a State of its own side by side with its single member-States, the fact is apparent that the different territories of the single member-States are at the same time collectively the territory of the Federal State. But this fact is only the consequence of the other illogical fact that sovereignty is divided between a Federal State and its member-States. Two different sovereignties are here by no means exercised over one and the same territory, for so far as the Federal State possesses sovereignty the member-States do not, and vice versa.

II THE DIFFERENT PARTS OF STATE TERRITORY

§ 172. To the territory of a State belong not only the land within the State boundaries, but also the so-called territorial waters. They consist of the rivers, canals, and lakes which water the land, and, in the case of a State with a seacoast, of the maritime belt and certain gulfs, bays, and straits of the sea. These different kinds of territorial waters will be separately discussed below in §§ 176-197. In contradistinction to these real parts of State territory there are some things that are either in every point or for some part treated as though they were territorial parts of a State. They are fictional and in a sense only parts of the territory. Thus men-of-war and other public vessels on the high seas as well as in foreign territorial waters are essentially in every point treated as though they were floating parts of their home State.[285] And the houses in which foreign diplomatic envoys have their official residence are in many points treated as though they were parts of the home States of the respective envoys.[286] Again, merchantmen on the high seas are for some points treated as though they were floating parts of the territory of the State under whose flag they legitimately sail.[287]

§ 173. The subsoil beneath the territorial land and water[288] is of importance on account of telegraph and telephone wires and the like, and further on account of the working of mines and of the building of tunnels. A special part of territory the territorial subsoil is not, although this is frequently asserted. But it is a universally recognised rule of the Law of Nations that the subsoil to an unbounded depth belongs to the State which owns the territory on the surface.

§ 174. The space of the territorial atmosphere is no more a special part of territory than the territorial subsoil, but it is of the greatest importance on account of wires for telegraphs, telephones, electric traction, and the like; further on account of wireless telegraphy and of aviation.

(1) Nothing need be said concerning wires for telegraphs and the like, except that obviously the territorial State can prevent neighbouring States from making use of its territorial atmosphere for such wires.

(2) As regards wireless telegraphy,[289] the "International Radiographic Convention," signed at Berlin on November 3, 1906, represents an agreement[290] of the signatory Powers concerning the exchange of radio-telegrams on the part of coast stations and ship stations, but it contains no stipulation respecting the question in general whether the territorial State is compelled to allow the passage over its territory of waves emanating from a foreign wireless telegraphy station. There ought to be no doubt that no such compulsion exists according to customary International Law, and that therefore the territorial State can prevent the passage of such waves[291] over its territory.

(3) The space of the territorial atmosphere is of particular importance with regard to aviation, but no customary or conventional rules of International Law are as yet in existence which settle the very much controverted[292] matter. An international conference for the purpose of agreeing upon an international convention concerning aviation met in 1910 at Paris, but did not produce any result. The fact is that, since aviation is still in its infancy, practical experience is lacking concerning many questions which can only be settled when aviation has been more developed. It is tempting to apply the rules concerning the maritime belt and the Open Sea analogously to the space of the atmosphere, and, therefore, to distinguish between a zone of a certain height, in which the territorial State can exercise sovereignty, and, on the other hand, the atmosphere beyond that height, which is to be considered free like the Open Sea. This comparison between the atmosphere and the sea is, however, faulty for two reasons. Firstly, the Open Sea is an international highway that connects distant lands between which, except by sea, no communication would be possible, whereas the atmosphere is not such an indispensable highway. Secondly, navigation on the Open Sea comprises no danger whatever to the security of the different States and the lives and property of their inhabitants, whereas aviation threatens such danger to a great extent. The chief question at issue is, therefore, whether the territorial State should or should not be considered to exercise sovereignty over the space of the atmosphere to an unbounded height, and to have the power to prevent the passage of foreign aviators altogether, or to enact stringent rules with which they have to comply. It would probably be best for the States in conference to adopt such rules concerning the whole space of the atmosphere as are similar to those valid by customary International Law for the maritime belt, that is:—to recognise, on the one hand, sovereignty of the territorial State over the space of its atmosphere, but, on the other hand, to give a right to foreign States to demand from the territorial State that foreign private—but not public!—air-vessels may pass through its atmosphere, provided they comply with the rules enacted by the territorial State for the aerial traffic.[293]

Aviation through the atmosphere above the Open Sea will require special regulation on account of the dangers to the vessels of all nations traversing the sea, as will also aviation in general in time of war.

§ 175. It should be mentioned that not every part of territory is alienable by the owner-State. For it is evident that the territorial waters are as much inseparable appurtenances of the land as are the territorial subsoil and atmosphere. Only pieces of land together with the appurtenant territorial waters are alienable parts of territory.[294] There is, however, one exception to this, since boundary waters[295] may wholly belong to one of the riparian States, and may therefore be transferred through cession from one to the other riparian State without the bank itself. But it is obvious that this is only an apparent, not a real, exception to the rule that territorial waters are inseparable appurtenances of the land. For boundary waters that are ceded to the other riparian State remain an appurtenance of land, although they are now an appurtenance of the one bank only.

III RIVERS

Grotius, II. c. 2, §§ 11-15—Pufendorf, III. c. 3, § 8—Vattel, II. §§ 117, 128, 129, 134—Hall, § 39—Westlake, I. pp. 142-159—Lawrence, § 92—Phillimore, I. §§ 125-151—Twiss, I. § 145—Halleck, I. pp. 171-177—Taylor, §§ 233-241—Walker, § 16—Wharton, I. § 30—Moore, I. §§ 128-132—Wheaton, §§ 192-205—Bluntschli, §§ 314, 315—Hartmann, § 58—Heffter, § 77—Caratheodory in Holtzendorff, II. pp. 279-406—Gareis, § 20—Liszt, §§ 9 and 27—Ullmann, §§ 87 and 105—Bonfils, Nos. 520-531—Despagnet, Nos. 419-421—Mérignhac, II. pp. 605-632—Pradier-Fodéré, II. Nos. 688-755—Nys, I. pp. 438-441, and II. pp. 109-131—Rivier, I. p. 142 and § 14—Calvo, I. §§ 302-340—Fiore, II. Nos. 755-776, and Code, §§ 283-285 and 976-982—Martens, I. § 102, II. § 57—Delavaud, "Navigation ... sur les fleuves internationaux" (1885)—Engehardt, "Du régime conventionnel des fleuves internationaux" (1879), and "Histoire du droit fluvial conventionnel" (1889)—Vernesco, "Des fleuves en droit international" (1888)—Orban, "Etude sur le droit fluvial international" (1896)—Berges, "Du régime de navigation des fleuves internationaux" (1902)—Lopez, "Regimen internacional de los rios navigables" (1905)—Huber in Z.V. I. (1906), pp. 29 and 159—Hyde in A.J. IV. (1910), pp. 145-155.

§ 176. Theory and practice agree upon the rule that rivers are part of the territory of the riparian State. Consequently, if a river lies wholly, that is, from its source to its mouth, within the boundaries of one and the same State, such State owns it exclusively. As such rivers are under the sway of one State only and exclusively, they are named "national rivers." Thus, all English, Scotch, and Irish rivers are national, and so are, to give some Continental examples, the Seine, Loire, and Garonne, which are French; the Tiber, which is Italian; the Volga, which is Russian. But many rivers do not run through the land of one and the same State only, whether they are so-called "boundary rivers," that is, rivers which separate two different States from each other, or whether they run through several States and are therefore named "not-national rivers." Such rivers are not owned by one State alone. Boundary rivers belong to the territory of the States they separate, the boundary line[296] running either through the middle of the river or through the middle of the so-called mid-channel of the river. And rivers which run through several States belong to the territories of the States concerned; each State owns that part of the river which runs through its territory.

There is, however, another group of rivers to be mentioned, which comprises all such rivers as are navigable from the Open Sea and at the same time either separate or pass through several States between their sources and their mouths. Such rivers, too, belong to the territory of the different States concerned, but they are nevertheless named "international rivers," because freedom of navigation in time of peace on all of those rivers in Europe and on many of them outside Europe for merchantmen of all nations is recognised by International Law.

§ 177. There is no rule of the Law of Nations in existence which grants foreign States the right of admittance of their public or private vessels to navigation on national rivers. In the absence of commercial or other treaties granting such a right, every State can exclude foreign vessels from its national rivers or admit them under certain conditions only, such as the payment of a due and the like. The teaching of Grotius (II. c. 2, § 12) that innocent passage through rivers must be granted has not been recognised by the practice of the States, and Bluntschli's assertion (§ 314) that such rivers as are navigable from the Open Sea must in time of peace be open to vessels of all nations, is at best an anticipation of a future rule of International Law, it does not as yet exist.

As regards boundary rivers and rivers running through several States, the riparian States[297] can regulate navigation on such parts of these rivers as they own, and they can certainly exclude vessels of non-riparian States altogether unless prevented therefrom by virtue of special treaties.

§ 178. Whereas there is certainly no recognised principle of free navigation on national, boundary, and not-national rivers, a movement for the recognition of free navigation on international rivers set in at the beginning of the nineteenth century. Until the French Revolution towards the end of the eighteenth century, the riparian States of such rivers as are now called international rivers could, in the absence of special treaties, exclude foreign vessels altogether from those parts of the rivers which run through their territory, or admit them under discretionary conditions. Thus, the river Scheldt was wholly shut up in favour of the Netherlands according to article 14 of the Peace Treaty of Munster of 1648 between the Netherlands and Spain. The development of things in the contrary direction begins with a Decree of the French Convention, dated November 16, 1792, which opens the rivers Scheldt and Meuse to the vessels of all riparian States. But it was not until the Vienna Congress[298] in 1815 that the principle of free navigation on the international rivers of Europe by merchantmen of not only the riparian but of all States was proclaimed. The Congress itself realised theoretically that principle in making arrangements[299] for free navigation on the rivers Scheldt, Meuse, Rhine, and on the navigable tributaries of the latter—namely, the rivers Neckar, Maine, and Moselle—although more than fifty years elapsed before the principle became realised in practice.

The next step was taken by the Peace Treaty of Paris of 1856, which by its article 15[300] stipulated free navigation on the Danube and expressly declared the principle of the Vienna Congress regarding free navigation on international rivers for merchantmen of all nations as a part of "European Public Law." A special international organ for the regulation of navigation on the Danube was created, the so-called European Danube Commission.

A further development took place at the Congo Conference at Berlin in 1884-85, since the General Act[301] of this Conference stipulated free navigation on the rivers Congo and Niger and their tributaries, and created the so-called "International Congo Commission" as a special international organ for the regulation of the navigation of the said rivers.

Side by side with these general treaties, which recognise free navigation on international rivers, stand treaties[302] of several South American States with other States concerning free navigation for merchantmen of all nations on a number of South American rivers. And the Arbitration Court in the case of the boundary dispute between Great Britain and Venezuela decided in 1903 in favour of free navigation for merchantmen of all nations on the rivers Amakourou and Barima.