International Law. A Treatise Volume I Part 29

[Footnote 310: As regards the utilisation of the flow of such lakes and seas, the same is valid as that concerning the utilisation of the flow of rivers; see above, -- 178_a_.]

[Footnote 311: See Stoffel, "Die Fischerei-Verhaltnisse des Bodensees unter besonderer Berucksichtigung der an ihm bestehenden Hoheitsrechte"

(1906).]

[Footnote 312: But the Caspian Sea is almost entirely under Russian control through the two treaties of Gulistan (1813) and Tourkmantschai (1828). See Rivier, I. p. 144, and Phillimore, I. -- 205.]

[Sidenote: So-called International Lakes and Land-locked Seas.]

-- 180. In a.n.a.logy 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.

[Footnote 313: See, for instance, Rivier, I. p. 230; Caratheodory in Holtzendorff, II. p. 378; Calvo, I. -- 301.]

[Footnote 314: Article 15 of the General Act of the Congo Conference.

(See Martens, N.R.G. 2nd Ser. X. p. 417.)]

[Sidenote: The Black Sea.]

-- 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 a.s.sembled 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 pa.s.sage 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.

[Footnote 315: See below, -- 252.]

[Footnote 316: See Martens, N.R.G. XV. p. 775.]

[Footnote 317: See Martens, N.R.G. XVIII. p. 303.]

[Footnote 318: See below, -- 197.]

V

Ca.n.a.lS

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--Merignhac, II. pp. 597-604--Pradier-Fodere, 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--a.s.ser in R.I. XX.

(1888), p. 529--Bustamante in R.I. XXVII. (1895), p.

112--Rossignol, "Le Ca.n.a.l de Suez" (1898)--Camand, "etude sur le regime juridique du Ca.n.a.l de Suez" (1899)--Charles-Roux, "L'Isthme et le ca.n.a.l de Suez" (1901)--Othalom, "Der Suezka.n.a.l"

(1905)--Muller-Heymer, "Der Panamaka.n.a.l in der Politik der Vereinigten Staaten" (1909)--Arias, "The Panama Ca.n.a.l"

(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.

[Sidenote: Ca.n.a.ls State Property of Riparian States]

-- 182. That ca.n.a.ls 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 a.n.a.logously be applied to ca.n.a.ls. The matter would need no special mention at all were it not for the interoceanic ca.n.a.ls 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) Ca.n.a.l, which connects the Baltic with the North Sea, and the Corinth Ca.n.a.l, which connects the Gulf of Corinth with the Gulf of aegina, there is not much to be said.

The former is a ca.n.a.l 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 Ca.n.a.l is entirely within the territory of Greece, and although the ca.n.a.l is kept open for navigation to vessels of all nations, Greece exclusively controls the navigation thereof.

[Footnote 319: See, however, Holland, Studies, p. 278.]

[Sidenote: The Suez Ca.n.a.l.]

-- 183. The most important of the interoceanic ca.n.a.ls is that of Suez, which connects the Red Sea with the Mediterranean. Already in 1838 Prince Metternich gave his opinion that such a ca.n.a.l, if ever made, ought to become neutralised by an international treaty of the Powers.

When, in 1869, the Suez Ca.n.a.l 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 ca.n.a.l, and in 1879 the Inst.i.tute of International Law gave its vote[321] in favour of the protection of free navigation on the ca.n.a.l by an international treaty. In 1883 Great Britain proposed an international conference to the Powers for the purpose of neutralising the ca.n.a.l, 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:--

[Footnote 320: See R.I. VII. pp. 682-694.]

[Footnote 321: See Annuaire, III. and IV. vol. I. p. 349.]

[Footnote 322: See Martens, N.R.G. 2nd, Ser. XV. p. 557. It must, however, be mentioned that Great Britain is a party to the Convention of Constantinople under the reservation that its terms shall not be brought into operation in so far as they would not be compatible with the transitory and exceptional condition in which Egypt is put for the time being in consequence of her occupation by British forces, and in so far as they might fetter the liberty of action of the British Government during the occupation of Egypt. But article 6 of the Declaration respecting Egypt and Morocco signed at London on April 8, 1904, by Great Britain and France (see Parliamentary Papers, France, No. 1 (1904), p.

9), has done away with this reservation, since it stipulates the following:--"In order to ensure the free pa.s.sage of the Suez Ca.n.a.l, his Britannic Majesty's Government declare that they adhere to the stipulations of the Treaty of October 29, 1888, and that they agree to their being put in force. The free pa.s.sage of the ca.n.a.l being thus guaranteed, the execution of the last sentence of paragraph 1 as well as of paragraph 2 of article 8 of that treaty will remain in abeyance."

(See Holland, Studies, p. 293, and Westlake, I. p. 328.)]

(1) The ca.n.a.l 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 ca.n.a.l is allowed in time either of peace or of war. The ca.n.a.l 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 ca.n.a.l itself or within three sea miles from its ports. Men-of-war of the belligerents have to pa.s.s through the ca.n.a.l 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 ca.n.a.l 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 ca.n.a.l, 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 ca.n.a.l (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).

[Sidenote: The Panama Ca.n.a.l.]

-- 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 ca.n.a.l 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 ca.n.a.l 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 ca.n.a.l by the way of the river St. Juan de Nicaragua. For the eventuality of the completion of this ca.n.a.l, 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 ca.n.a.l in a.n.a.logy with the Convention of Constantinople, 1888, regarding the Suez Ca.n.a.l, 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 ca.n.a.l between the Atlantic and Pacific Oceans by whatever route may be considered expedient, and its five articles are the following:--

[Footnote 323: See Martens, N.R.G. XV. p. 187, and Moore, III. ---- 351-365. According to its article 8 this treaty was also to be applied to a proposed ca.n.a.l through the Isthmus of Panama.]

[Footnote 324: See Moore, III. ---- 366-368.]

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 ca.n.a.l 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 ca.n.a.l.

Article 3