Thus the principle of free navigation, which is a settled fact as regards all European and some African international rivers, becomes more and more extended over all other international rivers of the world. But when several writers maintain that free navigation on all international rivers of the world is already a recognised rule of the Law of Nations, they are decidedly wrong, although such a universal rule will certainly be proclaimed in the future. There can be no doubt that as regards the South American rivers the principle is recognised by treaties between a small number of Powers only. And there are examples which show that the principle is not yet universally recognised. Thus by article 4 of the Treaty of Washington of 1854 between Great Britain and the United States the former grants to vessels of the latter free navigation on the river St. Lawrence as a revocable privilege, and article 26 of the Treaty of Washington of 1871 stipulates for vessels of the United States, but not for vessels of other nations, free navigation "for ever" on the same river.[303]

However this may be, the principle of free navigation embodies the rule that vessels of all nations must be admitted without payment of any dues whatever. Yet this principle does not exclude the levy of dues from all navigating vessels for expenses incurred by the riparian States for such improvements of the navigability of rivers as embankments, breakwaters, and the like.[304]

I should mention that the Institute of International Law, at its meeting at Heidelberg in 1888, adopted a Projet de Règlement international de navigation fluviale,[305] which comprises forty articles.

§ 178a. Apart from navigation on rivers, the question of the utilisation of the flow of rivers is of importance. With regard to national rivers, the question can not indeed be raised, since the local State is absolutely unhindered in the utilisation of the flow. But the flow of not-national, boundary, and international rivers is not within the arbitrary power of one of the riparian States, for it is a rule of International Law[306] that no State is allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State. For this reason a State is not only forbidden to stop or to divert the flow of a river which runs from its own to a neighbouring State, but likewise to make such use of the water of the river as either causes danger to the neighbouring State or prevents it from making proper use[307] of the flow of the river on its part. Since, apart from special treaties between neighbouring countries concerning special cases, neither customary nor conventional detailed rules of International Law concerning this subject are in existence, the Institute of International Law, at its meeting at Madrid[308] in 1911, adopted the following "Réglementation internationale des cours d'eau internationaux au point de vue de leur force motrice et de leur utilisation industrielle ou agricole":—

I. When a stream of water forms the frontier of two States, neither State may, without the consent of the other, and in the absence of a special and valid legal title, make any changes prejudicial to the bank of the other State, nor allow such changes to be made by individuals, societies, &c. Moreover, neither State may on its own territory utilise the water, or allow it to be utilised, in such a manner as to cause great damage to its utilisation by the other State or by the individuals, societies, &c., of the other.

The foregoing conditions are also applicable when a lake is situated between territories of more than two States.

II. When a stream of water traverses successively the territories of two or of several States:—

(1) The point at which this stream of water traverses the frontiers of the two States, whether natural or from time immemorial, may not be changed by the establishments of one of the States without the assent of the other.

(2) It is forbidden to make any alteration injurious to the water, or to throw in injurious matter (coming from factories, &c.).

(3) Water may not be withdrawn by the establishments (especially factories for the working of hydraulic pressure) in such a quantity as to modify greatly the constitution, or, in other words, the utilisable character or the essential character, of the stream of water on its arrival at the territory nearer the mouth of the river.

The right of navigation by virtue of a title recognised by International Law cannot be restricted by any usage whatever.

(4) A State farther down the river may not make, or allow to be made, in its territory any constructions or establishments which might cause danger of flooding a State farther up the river.

(5) The foregoing rules are applicable in the same way to the case in which streams of water flow from a lake, which is situated in one territory, into the territory of another State or the territories of other States.

(6) It is recommended that the States concerned appoint common permanent Commissions which may give decisions, or at least may give their advice, when such new establishments are built, or when such modifications are made in the existing establishments, as may influence the flow of the stream of water situated on the territory of another State.

IV LAKES AND LAND-LOCKED SEAS

Vattel, I. § 294—Hall, § 38—Phillimore, I. §§ 205-205A—Twiss, I. § 181—Halleck, I. p. 170—Moore, I. §§ 135-143—Bluntschli, § 316—Hartmann, § 58—Heffter, § 77—Caratheodory in Holtzendorff, II. pp. 378-385—Gareis, §§ 20-21—Liszt, § 9—Ullmann, §§ 88 and 106—Bonfils, Nos. 495-505—Despagnet, No. 407—Mérignhac, II. 587-596—Pradier-Fodéré, II. Nos. 640-649—Nys, I. pp. 447-450—Calvo, I. §§ 301, 373, 383—Fiore, II. Nos. 811-813, and Code, Nos. 279 and 1000—Martens, I. § 100—Rivier, I. pp. 143-145, 230—Mischeff, "La Mer Noire et les détroits de Constantinople" (1901)—Hunt in A.J. IV. (1910), pp. 285-313.

§ 179. Theory and practice agree upon the rule that such lakes and land-locked seas as are entirely enclosed by the land of one and the same State are part of the territory of this State. Thus the Dead Sea in Palestine is Turkish, the Sea of Aral is Russian, the Lake of Como is Italian territory. As regards, however, such lakes and land-locked seas as are surrounded by the territories of several States, no unanimity exists. The majority of writers consider these lakes and land-locked seas parts of the surrounding territories, but several[309] dissent, asserting that these lakes and seas do not belong to the riparian States, but are free like the Open Sea. The practice of the States seems to favour the opinion of the majority of writers, for special treaties frequently arrange what portions of such lakes and seas belong to the riparian States.[310] Examples are:—The Lake of Constance,[311] which is surrounded by the territories of Germany (Baden, Würtemberg, Bavaria), Austria, and Switzerland (Thurgau and St. Gall); the Lake of Geneva, which belongs to Switzerland and France; the Lakes of Huron, Erie, and Ontario, which belong to British Canada and the United States; the Caspian Sea, which belongs to Persia and Russia.[312]

§ 180. In analogy with so-called international rivers, such lakes and land-locked seas as are surrounded by the territories of several States and are at the same time navigable from the Open Sea, are called "international lakes and land-locked seas." However, although some writers[313] dissent, it must be emphasised that hitherto the Law of Nations has not recognised the principle of free navigation on such lakes and seas. The only case in which such free navigation is stipulated is that of the lakes within the Congo district.[314] But there is no doubt that in a near future this principle will be recognised, and practically all so-called international lakes and land-locked seas are actually open to merchantmen of all nations. Good examples of such international lakes and land-locked seas are the fore-named lakes of Huron, Erie, and Ontario.

§ 181. It is of interest to give some details regarding the Black Sea. This is a land-locked sea which was undoubtedly wholly a part of Turkish territory as long as the enclosing land was Turkish only, and as long as the Bosphorus and the Dardanelles, the approach to the Black Sea, which are exclusively part of Turkish territory, were not open for merchantmen of all nations. But matters have changed through Russia, Roumania, and Bulgaria having become littoral States. It would be wrong to maintain that now the Black Sea belongs to the territories of the four States, for the Bosphorus and the Dardanelles, although belonging to Turkish territory, are nevertheless parts of the Mediterranean Sea, and are now open to merchantmen of all nations. The Black Sea is consequently now part of the Open Sea[315] and is not the property of any State. Article 11 of the Peace Treaty of Paris,[316] 1856, neutralised the Black Sea, declared it open to merchantmen of all nations, but interdicted it to men-of-war of the littoral as well as of other States, admitting only a few Turkish and Russian public vessels for the service of their coasts. But although the neutralisation was stipulated "formally and in perpetuity," it lasted only till 1870. In that year, during the Franco-German War, Russia shook off the restrictions of the Treaty of Paris, and the Powers assembled at the Conference of London signed on March 13, 1871, the Treaty of London,[317] by which the neutralisation of the Black Sea and the exclusion of men-of-war therefrom were abolished. But the right of the Porte to forbid foreign men-of-war passage through the Dardanelles and the Bosphorus[318] was upheld by that treaty, as was also free navigation for merchantmen of all nations on the Black Sea.

V CANALS

Westlake, I. pp. 320-331—Lawrence, § 90, and Essays, pp. 41-162—Phillimore, I. §§ 399 and 207—Moore, III. §§ 336-371—Caratheodory in Holtzendorff, II. pp. 386-405—Liszt, § 27—Ullmann, § 106—Bonfils, Nos. 511-515—Despagnet, No. 418—Mérignhac, II. pp. 597-604—Pradier-Fodéré, II. Nos. 658-660—Nys, I. pp. 475-495—Rivier, I. § 16—Calvo, I. §§ 376-380—Fiore, Code, Nos. 983-987—Martens, II. § 59—Sir Travers Twiss in R.I. VII. (1875), p. 682, XIV. (1882), p. 572, XVII. (1885), p. 615—Holland, Studies, pp. 270-298—Asser in R.I. XX. (1888), p. 529—Bustamante in R.I. XXVII. (1895), p. 112—Rossignol, "Le Canal de Suez" (1898)—Camand, "Étude sur le régime juridique du Canal de Suez" (1899)—Charles-Roux, "L'Isthme et le canal de Suez" (1901)—Othalom, "Der Suezkanal" (1905)—Müller-Heymer, "Der Panamakanal in der Politik der Vereinigten Staaten" (1909)—Arias, "The Panama Canal" (1911)—Hains, Davis, Knapp, Wambough, Olney, and Kennedy in A.J. III. (1909), pp. 354 and 885, IV. (1910), p. 314, V. (1911), pp. 298, 615, 620.

§ 182. That canals are parts of the territories of the respective territorial States is obvious from the fact that they are artificially constructed waterways. And there ought to be no doubt[319] that all the rules regarding rivers must analogously be applied to canals. The matter would need no special mention at all were it not for the interoceanic canals which have been constructed during the second half of the nineteenth century or are contemplated in the future. And as regards two of these, the Emperor William (Kiel or Baltic) Canal, which connects the Baltic with the North Sea, and the Corinth Canal, which connects the Gulf of Corinth with the Gulf of Ægina, there is not much to be said. The former is a canal made mainly for strategic purposes by the German Empire entirely through German territory. Although Germany keeps it open for navigation to vessels of all other nations, she exclusively controls the navigation thereof, and can at any moment exclude foreign vessels at discretion, or admit them upon any conditions she likes, apart from special treaty arrangements to the contrary. The Corinth Canal is entirely within the territory of Greece, and although the canal is kept open for navigation to vessels of all nations, Greece exclusively controls the navigation thereof.

§ 183. The most important of the interoceanic canals is that of Suez, which connects the Red Sea with the Mediterranean. Already in 1838 Prince Metternich gave his opinion that such a canal, if ever made, ought to become neutralised by an international treaty of the Powers. When, in 1869, the Suez Canal was opened, jurists and diplomatists at once discussed what means could be found to secure free navigation upon it for vessels of all kinds and all nations in time of peace as well as of war. In 1875 Sir Travers Twiss[320] proposed the neutralisation of the canal, and in 1879 the Institute of International Law gave its vote[321] in favour of the protection of free navigation on the canal by an international treaty. In 1883 Great Britain proposed an international conference to the Powers for the purpose of neutralising the canal, but it took several years before an agreement was actualised. This was done by the Convention of Constantinople[322] of October 29, 1888, between Great Britain, Austria-Hungary, France, Germany, Holland, Italy, Spain, Russia, and Turkey. This treaty comprises seventeen articles, whose more important stipulations are the following:—

(1) The canal is open in time of peace as well as of war to merchantmen and men-of-war of all nations. No attempt to restrict this free usage of the canal is allowed in time either of peace or of war. The canal can never be blockaded (article 1).

(2) In time of war, even if Turkey is a belligerent, no act of hostility is allowed either inside the canal itself or within three sea miles from its ports. Men-of-war of the belligerents have to pass through the canal without delay. They may not stay longer than twenty-four hours, a case of absolute necessity excepted, within the harbours of Port Said and Suez, and twenty-four hours must intervene between the departure from those harbours of a belligerent man-of-war and a vessel of the enemy. Troops, munitions, and other war material may neither be shipped nor unshipped within the canal and its harbours. All rules regarding belligerents' men-of-war are likewise valid for their prizes (articles 4, 5, 6).

(3) No men-of-war are allowed to be stationed inside the canal, but each Power may station two men-of-war in the harbours of Port Said and Suez. Belligerents, however, are not allowed to station men-of-war in these harbours (article 7). No permanent fortifications are allowed in the canal (article 2).

(4) It is the task of Egypt to secure the carrying out of the stipulated rules, but the consuls of the Powers in Egypt are charged to watch the execution of these rules (articles 8 and 9).

(5) The signatory Powers are obliged to notify the treaty to others and to invite them to accede thereto (article 16).

§ 184. Already in 1850 Great Britain and the United States in the Clayton-Bulwer Treaty[323] of Washington had stipulated the free navigation and neutralisation of a canal between the Pacific and the Atlantic Ocean proposed to be constructed by the way of the river St. Juan de Nicaragua and either or both of the lakes of Nicaragua and Managua. In 1881 the building of a canal through the Isthmus of Panama was taken in hand, but in 1888 the works were stopped in consequence of the financial collapse of the Company undertaking its construction. After this the United States came back to the old project of a canal by the way of the river St. Juan de Nicaragua. For the eventuality of the completion of this canal, Great Britain and the United States signed, on February 5, 1900, the Convention of Washington, which stipulated free navigation on and neutralisation of the proposed canal in analogy with the Convention of Constantinople, 1888, regarding the Suez Canal, but ratification was refused by the Senate of the United States. In the following year, however, on November 18, 1901, another treaty was signed and afterwards ratified. This so-called Hay-Pauncefote Treaty[324] applies to a canal between the Atlantic and Pacific Oceans by whatever route may be considered expedient, and its five articles are the following:—

Article 1

The High Contracting Parties agree that the present Treaty shall supersede the aforementioned Convention of April 19, 1850.

Article 2

It is agreed that the canal may be constructed under the auspices of the Government of the United States, either directly at its own cost, or by gift or loan of money to individuals or corporations, or through subscription to or purchase of stock or shares, and that, subject to the provisions of the present Treaty, the said Government shall have and enjoy all the rights incident to such construction, as well as the exclusive right of providing for the regulation and management of the canal.

Article 3

The United States adopts, as the basis of the neutralisation of such ship canal, the following Rules, substantially as embodied in the Convention of Constantinople, signed October 29, 1888, for the free navigation of the Suez Canal, that is to say:—

1. The canal shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable.

2. The canal shall never be blockaded, nor shall any right of war be exercised or any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect[325] it against lawlessness and disorder.

3. Vessels of war of a belligerent shall not revictual nor take any stores in the canal except so far as may be strictly necessary; and the transit of such vessels through the canal shall be effected with the least possible delay in accordance with the regulations in force, and with only such intermission as may result from the necessities of the service.

Prizes shall be in all respects subject to the same rules as vessels of war of belligerents.

4. No belligerent shall embark or disembark troops, munitions of war, or warlike materials in the canal, except in case of accidental hindrance of the transit, and in such case the transit shall be resumed with all possible despatch.

5. The provisions of this article shall apply to waters adjacent to the canal, within three marine miles of either end. Vessels of war of a belligerent shall not remain in such waters longer than twenty-four hours at any one time except in case of distress, and in such case shall depart as soon as possible; but a vessel of war of one belligerent shall not depart within twenty-four hours from the departure of a vessel of war of the other belligerent.

6. The plant, establishments, buildings and all works necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, for the purposes of this Treaty, and in time of war, as in time of peace, shall enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the canal.

Article 4

It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralisation or the obligation of the high contracting parties under the present Treaty.

Article 5

The present Treaty shall be ratified by his Britannic Majesty and by the President of the United States, by and with the advice and consent of the Senate thereof; and the ratifications shall be exchanged at Washington or at London at the earliest possible time within six months from the date hereof.

In faith whereof the respective Plenipotentiaries have signed this Treaty and thereunto affixed their seals.

Done in duplicate at Washington, the 18th day of November, in the year of Our Lord 1901.

(Seal) Pauncefote.
(Seal) John Hay.

On November 18, 1903, the so-called Hay-Varilla Treaty[326] was concluded between the United States and the new Republic of Panama, according to which, on the one hand, the United States guarantees and will maintain the independence of the Republic of Panama, and, on the other hand, the Republic of Panama grants[327] to the United States in perpetuity for the construction, administration, and protection of a canal between Colon and Panama the use, occupation, and control of a strip of land required for the construction of the canal, and, further, of land on both sides of the canal to the extent of five miles on either side, with the exclusion, however, of the cities of Panama and Colon and the harbours adjacent to these cities. According to article 18 of this treaty the canal and the entrance thereto shall be neutral in perpetuity, and shall be open to vessels of all nations as stipulated by article 3 of the Hay-Pauncefote Treaty.

VI MARITIME BELT

Grotius, II. c. 3, § 13—Vattel, I. §§ 287-290—Hall, §§ 41-42—Westlake, I. pp. 183-192—Lawrence, § 187—Phillimore, I. §§ 197-201—Twiss, I. §§ 144, 190-192—Halleck, I. pp. 157-167—Taylor, §§ 247-250—Walker, § 17—Wharton, § 32—Moore, I. §§ 144-152—Wheaton, §§ 177-180—Bluntschli, §§ 302, 309-310—Hartmann, § 58—Heffter, § 75—Stoerk in Holtzendorff, II. pp. 409-449—Gareis, § 21—Liszt, § 9—Ullmann, § 87—Bonfils, Nos. 491-494—Despagnet, Nos. 403-414—Mérignhac, II. pp. 370-392—Pradier-Fodéré, II. Nos. 617-639—Nys, I. pp. 496-520—Rivier, I. pp. 145-153—Calvo, I. §§ 353-362—Fiore, II. Nos. 801-809, and Code, Nos. 271-273, 1025—Martens, I. § 99—Bynkershoek, "De dominio maris" and "Quaestiones juris publici," I. c. 8—Ortolan, "Diplomatie de la mer" (1856), I. pp. 150-175—Heilborn, System, pp. 37-57—Imbart-Latour, "La mer territoriale, &c." (1889)—Godey, "La mer côtière" (1896)—Schücking, "Das Küstenmeer im internationalen Recht" (1897)—Perels, § 5—Fulton, "The Sovereignty of the Seas" (1911), pp. 537-740—Barclay in Annuaire, XII. (1892), pp. 104-136, and XIII. (1894), pp. 125-162—Martens in R.G. I. (1894), pp. 32-43—Aubert, ibidem, pp. 429-441—Engelhardt in R.I. XXVI. (1894), pp. 209-213—Godey in R.G. III. (1896), pp. 224-237—Lapradelle in R.G. V. (1898), pp. 264-284, 309-347.

§ 185. Maritime belt is that part of the sea which, in contradistinction to the Open Sea, is under the sway of the littoral States. But no unanimity exists with regard to the nature of the sway of the littoral States. Many writers maintain that such sway is sovereignty, that the maritime belt is a part of the territory of the littoral State, and that the territorial supremacy of the latter extends over its coast waters. Whereas it is nowadays universally recognised that the Open Sea cannot be State property, such part of the sea as makes the coast waters would, according to the opinion of these writers, actually be the State property of the littoral States, although foreign States have a right of innocent passage of their merchantmen through the coast waters.

On the other hand, many writers of great authority emphatically deny the territorial character of the maritime belt and concede to the littoral States, in the interest of the safety of the coast, only certain powers of control, jurisdiction, police, and the like, but not sovereignty.

This is surely erroneous, since the real facts of international life would seem to agree with the first-mentioned opinion only. Its supporters rightly maintain[328] that the universally recognised fact of the exclusive right of the littoral State to appropriate the natural products of the sea in the coast waters, especially the use of the fishery therein, can coincide only with the territorial character of the maritime belt. The argument of their opponents that, if the belt is to be considered a part of State territory, every littoral State must have the right to cede and exchange its coast waters, can properly be met by the statement that territorial waters of all kinds are inalienable appurtenances[329] of the littoral and riparian States.[330]

§ 186. Be that as it may, the question arises how far into the sea those waters extend which are coast waters and are therefore under the sway of the littoral State. Here, too, no unanimity exists upon either the starting line of the belt on the coast or the breadth itself of the belt from such starting line.

(1) Whereas the starting line is sometimes drawn along high-water mark, many writers draw it along low-water mark. Others draw it along the depths where the waters cease to be navigable; others again along those depths where coast batteries can still be erected, and so on.[331] But the number of those who draw it along low-water mark is increasing. The Institute of International Law[332] has voted in favour of this starting line, and many treaties stipulate the same.

(2) With regard to the breadth of the maritime belt various opinions have in former times been held, and very exorbitant claims have been advanced by different States. And although Bynkershoek's rule that terrae potestas finitur ubi finitur armorum vis is now generally recognised by theory and practice, and consequently a belt of such breadth is considered under the sway of the littoral State as is within effective range of the shore batteries, there is still no unanimity on account of the fact that such range is day by day increasing. Since at the end of the eighteenth century the range of artillery was about three miles, or one marine league, that distance became generally[333] recognised as the breadth of the maritime belt. But no sooner was a common doctrine originated than the range of projectiles increased with the manufacture of heavier guns. And although Great Britain, France, Austria, the United States of America, and other States, in Municipal Laws and International Treaties still adhere to a breadth of one marine league, the time will come when by a common agreement of the States such breadth will be very much extended.[334] As regards Great Britain, the Territorial Waters Jurisdiction Act[335] of 1878 (41 and 42 Vict. c. 73) specially recognises the extent of the territorial maritime belt as three miles, or one marine league, measured from the low-water mark of the coast.