International Law. A Treatise Volume I Part 27

[Footnote 275: The New Hebrides are materially likewise under a _condominium_, namely, that of Great Britain and France, although article 1 of the Convention of October 20, 1906--see Martens, N.R.G. 3rd Ser. I. (1909), p. 523--speaks only of "a region of joint influence"

with regard to the New Hebrides. See Brunet, "Le Regime International des Nouvelles-Hebrides" (1908), and Politis in R.G. XIV. (1907), pp.

689-759.]

[Footnote 276: As regards the proposed _condominium_ over Spitzbergen, see Waultrin in R.G. XV. (1908), pp. 80-105, and Piccioni in R.G. XVI.

(1909), pp. 117-134.]

(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]

[Footnote 277: See above, -- 50.]

(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.

[Footnote 278: See below, -- 216.]

[Footnote 279: Russia in 1905, by the Peace Treaty of Portsmouth, transferred her lease to j.a.pan.]

[Footnote 280: This transaction took place for the sum of 1,258,000 thaler, on condition that Sweden, after the lapse of 100 years, should be ent.i.tled to take back the town of Wismar on repayment of the money, with 3 per cent. interest per annum. Sweden in 1903--see Martens, N.R.G.

2nd Ser. x.x.xI. (1905), pp. 572 and 574--formally waived her right to retake the town.]

[Footnote 281: See, for instance, Perrinjaquet in R.G. XVI. (1909), pp.

349-367.]

[Footnote 282: By article 1 of the Treaty of London of May 9, 1906; see Martens, N.R.G. 2nd Ser. x.x.xV. (1908), p. 454.]

(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 Ca.n.a.l.

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.

[Footnote 283: See below, -- 184, and Boyd in R.G. XVII. (1910), pp.

614-624.]

(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_.

[Footnote 284: See above, -- 89.]

II

THE DIFFERENT PARTS OF STATE TERRITORY

[Sidenote: Real and Fictional parts of 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, ca.n.a.ls, 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]

[Footnote 285: See below, -- 450.]

[Footnote 286: See below, -- 390.]

[Footnote 287: See below, -- 264.]

[Sidenote: Territorial Subsoil.]

-- 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 a.s.serted. 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.

[Footnote 288: As regards the subsoil of the Open Sea, see below, ---- 287_c_ and 287_d_.]

[Sidenote: Territorial Atmosphere.]

-- 174. The s.p.a.ce 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 pa.s.sage 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 pa.s.sage of such waves[291] over its territory.

[Footnote 289: See Meili, "Die drahtlose Telegraphie, &c." (1908); Schneeli, "Drahtlose Telegraphie und Volkerrecht" (1908); Landsberg, "Die drahtlose Telegraphie" (1909); Kausen, "Die drahtlose Telegraphie im Volkerrecht" (1910); Rolland in R.G. XIII. (1906), pp. 58-92; Fauchille in Annuaire, XXI. (1906), pp. 76-87; Bonfils, Nos. 531{10} and 531{11}; Despagnet, No. 433 _quater_; Meurer and Boidin in R.G. XVI.

(1909), pp. 76 and 261.]

[Footnote 290: See below, ---- 287_a_, 287_b_, and 582, No. 4.]

[Footnote 291: The Inst.i.tute of International Law--see Annuaire, XXI.

(1906), p. 328--proposes by art. 3 of its "Regime de la Telegraphie sans fil" to restrict the power of the territorial State to exclude such waves from pa.s.sing over its territory to the case in which the exclusion is necessary in the interest of its security.]

(3) The s.p.a.ce 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 a.n.a.logously to the s.p.a.ce 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 s.p.a.ce of the atmosphere to an unbounded height, and to have the power to prevent the pa.s.sage 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 s.p.a.ce 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 s.p.a.ce 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 pa.s.s through its atmosphere, provided they comply with the rules enacted by the territorial State for the aerial traffic.[293]

[Footnote 292: The literature on aviation is abundant, see Holtzendorff, II. p. 230; Lawrence, -- 73; Bonfils, Nos. 531{1}-531{9}; Despagnet, Nos.

433 _bis_ and 433 _ter_; Merignhac, II. pp. 398-410; Nys, I. pp.

523-532; Grunwald, "Das Luftschiff, &c." (1908); Meili, "Das Luftschiff, &c." (1908); Meurer, "Luftschiffahrtsrecht" (1909); Meyer, "Die Erschliessung des Luftraums und ihre rechtlichen Folgen" (1909); Magnani, "Il diritto sullo spazio aereo e l'aeronautica" (1909); Leech, "The Jurisprudence of the Air" (1910), a reprint from the _Journal of the Royal Artillery_, vol. x.x.xVII.; Lycklama a Nijeholt, "Air Sovereignty" (1910); Hazeltine, "The Law of the Air" (1911); Bielenberg, "Die Freiheit des Luftraums" (1911); Catellani, "Il diritto aereo"

(1911); Sperl, "Die Luftschiffahrt, &c." (1911); Loubeyre, "Les principes du droit aerien" (1911); Fauchille in Annuaire, XIX. (1902) pp. 19-114, XXIV. (1911), and in R.G. VIII. (1901), pp. 414-485, XVII.

(1910), pp. 55-62; Zitelmann in the _Zeitschrift fur internationales Privat- und offentliches Recht_, XIX. (1909), pp. 458-496; Baldwin and Kuhm in A.J. IV. (1910), pp. 95-108, 109-132; Baldwin in Z.V. V. (1911), pp. 394-399.]

[Footnote 293: The Inst.i.tute of International Law is studying the question of aviation, and pa.s.sed, in 1911, at its meeting in Madrid, some rules concerning the "Regime juridiques des Aeronefs"; see Annuaire, XXIV. (1911).]

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.

[Sidenote: Inalienability of Parts of Territory.]

-- 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.

[Footnote 294: See below, -- 185.]

[Footnote 295: See below, -- 199.]

III

RIVERS