International Law. A Treatise Volume I Part 32

STRAITS

Vattel, I. -- 292--Hall, -- 41--Westlake, I. pp. 193-197--Lawrence, ---- 87-89--Phillimore, I. ---- 180-196--Twiss, I. ---- 183, 184, 189--Halleck, I. pp. 165-170--Taylor, ---- 229-231--Walker, -- 17--Wharton, ---- 27-29--Wheaton, ---- 181-190--Moore, I. ---- 133-134--Bluntschli, -- 303--Hartmann, -- 65--Heffter, -- 76--Stoerk in Holtzendorff, II. pp. 419-428--Gareis, -- 21--Liszt, ---- 9 and 26--Ullmann, -- 88--Bonfils, Nos. 506-511--Despagnet, Nos.

415-417--Pradier-Fodere, II. Nos. 650-656--Nys, I. pp.

451-474--Rivier, I. pp. 157-159--Calvo, I. ---- 368-372--Fiore, II.

Nos. 745-754, and Code, Nos. 280-281--Martens, I. -- 101--Holland, Studies, p. 277.

[Sidenote: What Straits are Territorial.]

-- 194. All straits which are so narrow as to be under the command of coast batteries erected either on one or both sides of the straits, are territorial. Therefore, straits of this kind which divide the land of one and the same State belong to the territory of such State. Thus the Solent, which divides the Isle of Wight from England, is British, the Dardanelles and the Bosphorus are Turkish, and both the Kara and the Yugor Straits, which connect the Kara Sea with the Barents Sea, are Russian. On the other hand, if such narrow strait divides the land of two different States, it belongs to the territory of both, the boundary line running, failing a special treaty making another arrangement, through the mid-channel.[355] Thus the Lymoon Pa.s.s, the narrow strait which separates the British island of Hong Kong from the continent, was half British and half Chinese as long as the land opposite Hong Kong was Chinese territory.

[Footnote 355: See below, -- 199.]

It would seem that claims of States over wider straits than those which can be commanded by guns from coast batteries are no longer upheld. Thus Great Britain used formerly to claim the Narrow Seas--namely, the St.

George's Channel, the Bristol Channel, the Irish Sea, and the North Channel--as territorial; and Phillimore a.s.serts that the exclusive right of Great Britain over these Narrow Seas is uncontested. But it must be emphasised that this right _is_ contested, and I believe that Great Britain would now no longer uphold her former claim,[356] at least the Territorial Waters Jurisdiction Act 1878 does not mention it.

[Footnote 356: See Phillimore, I. -- 189, and above, -- 191 (King's Chambers). Concerning the Bristol Channel, Hall (-- 41, p. 162, note 2) remarks: "It was apparently decided by the Queen's Bench in Reg. _v._ Cunningham (Bell's "Crown Cases," 86) that the whole of the Bristol Channel between Somerset and Glamorgan is British territory; possibly, however, the Court intended to refer only to that portion of the Channel which lies within Steepholm and Flatholm." See also Westlake, I. p. 188, note 3.]

[Sidenote: Navigation, Fishery, and Jurisdiction in Straits.]

-- 195. All rules of the Law of Nations concerning navigation, fishery, and jurisdiction within the maritime belt apply likewise to navigation, fishery, and jurisdiction within straits. Foreign merchantmen, therefore, cannot[357] be excluded; foreign men-of-war must be admitted to such straits as form part of the highways for international traffic;[358] the right of fishery may exclusively be reserved for subjects of the littoral State; and the latter can exercise jurisdiction over all foreign merchantmen pa.s.sing through the straits. If the narrow strait divides the land of two different States, jurisdiction and fishery are reserved for each littoral State within the boundary line running through the mid-channel or otherwise as by treaty arranged.

[Footnote 357: The claim of Russia--see Waultrin in R.G. XV. (1908), p.

410--to have a right to exclude foreign merchantmen from the pa.s.sage through the Kara and the Yugor Straits, is therefore unfounded. As regards the Kara Sea, see below, -- 253, note 2.]

[Footnote 358: As, for instance, the Straits of Magellan. These straits were neutralised in 1881--see below, -- 568, and vol. II. -- 72--by a treaty between Chili and Argentina. See Abribat, "Le detroit de Magellan au point de vue international" (1902); Nys, I. pp. 470-474; and Moore, I. -- 134.]

It must, however, be stated that foreign merchantmen cannot be excluded from the pa.s.sage through territorial straits only when these connect two parts of the Open Sea. In case a territorial strait belonging to one and the same State connects a part of the Open Sea with a territorial gulf or bay, or with a territorial land-locked sea belonging to the same State--as, for instance, the Strait of Kertch[359] at present, and formerly the Bosphorus and the Dardanelles[360]--foreign vessels can be excluded therefrom.

[Footnote 359: See below, -- 252.]

[Footnote 360: See below, -- 197.]

[Sidenote: The former Sound Dues.]

-- 196. The rule that foreign merchantmen must be allowed inoffensive pa.s.sage through territorial straits without any dues and tolls whatever, had one exception until the year 1857. From time immemorial, Denmark had not allowed foreign vessels the pa.s.sage through the two Belts and the Sound, a narrow strait which divides Denmark from Sweden and connects the Kattegat with the Baltic, without payment of a toll, the so-called Sound Dues.[361] Whereas in former centuries these dues were not opposed, they were not considered any longer admissible as soon as the principle of free navigation on the sea became generally recognised, but Denmark nevertheless insisted upon the dues. In 1857, however, an arrangement[362] was completed between the maritime Powers of Europe and Denmark by which the Sound Dues were abolished against a heavy indemnity paid by the signatory States to Denmark. And in the same year the United States entered into a convention[363] with Denmark for the free pa.s.sage of their vessels, and likewise paid an indemnity. With these dues has disappeared the last witness of former times when free navigation on the sea was not universally recognised.

[Footnote 361: See the details, which have historical interest only, in Twiss, I. -- 188; Phillimore, I. -- 189; Wharton, I. -- 29; and Scherer, "Der Sundzoll" (1845).]

[Footnote 362: The Treaty of Copenhagen of March 14, 1857. See Martens, N.R.G. XVI. 2nd part, p. 345.]

[Footnote 363: Convention of Washington of April 11, 1857. See Martens, N.R.G. XVII. 1st part, p. 210.]

[Sidenote: The Bosphorus and Dardanelles.]

-- 197. The Bosphorus and Dardanelles, the two Turkish territorial straits which connect the Black Sea with the Mediterranean, must be specially mentioned.[364] So long as the Black Sea was entirely enclosed by Turkish territory and was therefore a portion of this territory, Turkey could exclude[365] foreign vessels from the Bosphorus and the Dardanelles altogether, unless prevented by special treaties. But when in the eighteenth century Russia became a littoral State of the Black Sea, and the latter, therefore, ceased to be entirely a territorial sea, Turkey, by several treaties with foreign Powers, conceded free navigation through the Bosphorus and the Dardanelles to foreign merchantmen. But she always upheld the rule that foreign men-of-war should be excluded from these straits. And by article 1 of the Convention of London of July 10, 1841, between Turkey, Great Britain, Austria, France, Prussia, and Russia, this rule was once for all accepted. Article 10 of the Peace Treaty of Paris of 1856 and the Convention No. 1 annexed to this treaty, and, further, article 2 of the Treaty of London, 1871, again confirm the rule, and all those Powers which were not parties to these treaties submit nevertheless to it.[366]

According to the Treaty of London of 1871, however, the Porte can open the straits in time of peace to the men-of-war of friendly and allied Powers for the purpose, if necessary, of securing the execution of the stipulations of the Peace Treaty of Paris of 1856.

[Footnote 364: See Holland, "The European Concert in the Eastern Question," p. 225, and Perels, p. 29.]

[Footnote 365: See above, -- 195.]

[Footnote 366: The United States, although she actually acquiesces in the exclusion of her men-of-war, seems not to consider herself bound by the Convention of London, to which she is not a party. See Wharton, I. -- 29, pp. 79 and 80, and Moore, I. -- 134, pp. 666-668.]

On the whole, the rule has in practice always been upheld by Turkey.

Foreign light public vessels in the service of foreign diplomatic envoys at Constantinople can be admitted by the provisions of the Peace Treaty of Paris of 1856. And on several occasions when Turkey has admitted a foreign man-of-war carrying a foreign monarch on a visit to Constantinople, there has been no opposition by the Powers.[367] But when, in 1902, Turkey allowed four Russian torpedo destroyers to pa.s.s through her straits on the condition that these vessels should be disarmed and sail under the Russian commercial flag, Great Britain protested and declared that she reserved the right to demand similar privileges for her men-of-war should occasion arise. As far as I know, however, no other Power has joined Great Britain in this protest. On the other hand, no protest was raised when, in 1904, during the Russo-j.a.panese war, two vessels belonging to the Russian volunteer fleet in the Black Sea were allowed to pa.s.s through to the Mediterranean, for n.o.body could presume that these vessels, which were flying the Russian commercial flag, would later on convert themselves into men-of-war by hoisting the Russian war flag.[368]

[Footnote 367: See Perels, p. 30.]

[Footnote 368: See below, vol. II. -- 84.]

IX

BOUNDARIES OF STATE TERRITORY

Grotius, II. c. 3, -- 18--Vattel, I. -- 266--Hall, -- 38--Westlake, I. pp. 141-142--Twiss, I. ---- 147-148--Taylor, -- 251--Moore, I. ---- 154-162--Bluntschli, ---- 296-302--Hartmann, -- 59--Heffter, -- 66--Holtzendorff in Holtzendorff, II. pp. 232-239--Gareis, -- 19--Liszt, -- 9--Ullmann, -- 91--Bonfils, Nos. 486-489--Despagnet, No. 377--Pradier-Fodere, II. Nos. 759-777--Merignhac, II. p.

358--Nys, I. pp. 413-422--Rivier, I. -- 11--Calvo, I. ---- 343-352--Fiore, II. Nos. 799-806, and Code, Nos.

1040-1049--Martens, I. -- 89--Lord Curzon of Kedleston, "Frontiers"

(Romanes lecture of 1907).

[Sidenote: Natural and Artificial Boundaries.]

-- 198. Boundaries of State territory are the imaginary lines on the surface of the earth which separate the territory of one State from that of another, or from unappropriated territory, or from the Open Sea. The course of the boundary lines may or may not be indicated by boundary signs. These signs may be natural or artificial, and one speaks, therefore, of natural in contradistinction to artificial boundaries.

_Natural_ boundaries may consist of water, a range of rocks or mountains, deserts, forests, and the like. _Artificial_ boundaries are such signs as have been purposely put up to indicate the way of the imaginary boundary-line. They may consist of posts, stones, bars, walls,[369] trenches, roads, ca.n.a.ls, buoys in water, and the like. It must, however, be borne in mind that the distinction between artificial and natural boundaries is not sharp, in so far as some natural boundaries can be artificially created. Thus a forest may be planted, and a desert may be created, as was the frequent practice of the Romans of antiquity, for the purpose of marking the frontier.

[Footnote 369: The Romans of antiquity very often constructed boundary walls, and the Chinese Wall may also be cited as an example.]

[Sidenote: Boundary Waters.]

-- 199. Natural boundaries consisting of water must be specially discussed on account of the different kinds of boundary waters. Such kinds are rivers, lakes, landlocked seas, and the maritime belt.

(1) Boundary rivers[370] are such rivers as separate two different States from each other.[371] If such river is not navigable, the imaginary boundary line runs down the middle of the river, following all turnings of the border line of both banks of the river. On the other hand, in a navigable river the boundary line runs through the middle of the so-called _Thalweg_, that is, the mid-channel of the river. It is, thirdly, possible that the boundary line is the _border line_ of the river, so that the whole bed belongs to one of the riparian States only.[372] But this is an exception created by treaty or by the fact that a State has occupied the lands on one side of a river at a time prior to the occupation of the lands on the other side by some other State.[373] And it must be remembered that, since a river sometimes changes its course more or less, the boundary line running through the middle or the _Thalweg_ or along the border line is thereby also altered. In case a bridge is built over a boundary river, the boundary line runs, failing special treaty arrangements, through the middle of the bridge. As regards the boundary lines running through islands rising in boundary rivers and through the abandoned beds of such rivers, see below, ---- 234 and 235.

[Footnote 370: See Huber in Z.V. I. (1906), pp. 29-52 and 159-217.]

[Footnote 371: This case is not to be confounded with the other, in which a river runs through the lands of two different States. In this latter case the boundary line runs across the river.]

[Footnote 372: See above, -- 175.]

[Footnote 373: See Twiss, I. ---- 147 and 148, and Westlake, I. p. 142.]

(2) Boundary lakes and land-locked seas are such as separate the lands of two or more different States from each other. The boundary line runs through the middle of these lakes and seas, but as a rule special treaties portion off such lakes and seas between riparian States.[374]

[Footnote 374: See above, -- 179.]

(3) The boundary line of the maritime belt is, according to details given above (-- 186), uncertain, since no unanimity prevails with regard to the width of the belt. It is, however, certain that the boundary line runs not nearer to the sh.o.r.e than three miles, or one marine league, from the low-water mark.

(4) In a narrow strait separating the lands of two different States the boundary line runs either through the middle or through the mid-channel,[375] unless special treaties make different arrangements.