Nations that the present condition of things is in conformity with international order. These examples show why a certain number of years' cannot be, once for all, fixed to create the title by prescription. There are indeed immeasurable and imponderable circumstances and influences besides the mere run of time 2 at work to create the conviction on the part of the members of the Family of Nations that in the interest of stability of order the present possessor should be considered the rightful owner of a territory. And these circumstances and influences, which are of a political and historical character, differ so much in the different cases that the length of time necessary for prescription must likewise differ. Six modes of losing State XVII Loss OF STATE TERRITORY Hall, § 34-Phillimore, I. §§ 284-295-Holtzendorff in Holtzendorff, § 244. To the five modes of acquiring sovereignty over territory correspond five modes of losing itTerritory. namely, cession, dereliction, operation of nature, subjugation, prescription. But there is a sixth mode of losing territory-namely, revolt. No special details are necessary with regard to loss of territory through 1 Vattel (II. § 151) suggests that the members of the Family of Nations should enter into an agreement stipulating the number of years necessary for prescription, and David Dudley Field proposes the following rule (52) in his Outlines of an International Code: "The uninterrupted possession of territory or other property for fifty years by a nation excludes the claim of every other nation." 2 Heffter's (§ 12) dictum, "Hun. dert Jahre Unrecht ist noch kein Tag Recht" is met by the fact that it is not the operation of time alone, but the co-operation of other circumstances and influences which creates the title by prescription. subjugation, prescription, and cession, except that it is of some importance to repeat here that the historical cases of pledging, leasing, and giving territory to another State to administer are in fact, although not in theory, nothing else than cessions of territory. But operation of nature, revolt, and dereliction must be specially discussed. § 245. Operation of nature as a mode of losing Operation corresponds to accretion as a mode of acquiring territory. Just as through accretion a State may become enlarged, so it may become diminished through the disappearance of land and other operations of nature. And the loss of territory through operation of nature takes place ipso facto by such operation. Thus, if an island near the shore disappears through volcanic action, the extent of the maritime territorial belt of the respective riparian State is hereafter to be measured from the low-water mark of the shore of the continent, instead of from the shore of the former island. Thus, further, if through a piece of land being detached by the current of a river from one bank and carried over to the other bank, the river alters its course and covers now part of the land on the bank from which such piece became detached, the territory of one of the riparian States may decrease through the boundary line being ipso facto transferred to the present middle or mid-channel of the river. § 246. Revolt followed by secession is a mode of Revolt. losing territory to which no mode of acquisition corresponds.2 Revolt followed by secession has, 1 See above, §§ 171 and 216. The possible case where a province revolts, secedes from the mother country, and, after having successfully defended itself against the attempts of the latter to Derelic tion. as history teaches, frequently been a cause of loss of territory. Thus the Netherlands fell away from Spain in 1579, Belgium from the Netherlands in 1830, the United States of America from Great Britain in 1776, Brazil from Portugal in 1822, the former Spanish South American States from Spain in 1810, Greece from Turkey in 1830, Cuba from Spain in 1898, Panama from Colombia in 1903. The question at what time a loss of territory through revolt is consummated cannot be answered once for all, since no hard and fast rule can be laid down regarding the time when it can be said that a State broken off from another has established itself safely and permanently. The matter has, as will be remembered, been treated above (§ 74), in connection with recognition. It may well happen that, although such a seceded State is already recognised by a third Power, the mother country does not consider the territory to be lost and succeeds in reconquering it. § 247. Dereliction as a mode of losing corresponds to occupation as a mode of acquiring territory. Dereliction frees a territory from the sovereignty of the present owner State. Dereliction is effected through the owner State's complete abandonment of the territory with the intention of withdrawing from it for ever, thus relinquishing sovereignty over it. Just as occupation requires, first, the actual taking into possession (corpus) of territory and, secondly, the intention (animus) to acquire sovereignty over it, so dereliction requires, first, actual abandonment of a territory, and, secondly, the intention to give up sovereignty over it. Actual abandonment alone does not involve dereliction as long as it must be presumed that the owner has the will and ability 1 See above, § 222. to retake possession of the territory. Thus, for instance, if the rising of natives forces a State to withdraw from a territory, such territory is not derelict as long as the former possessor is able and makes efforts to retake possession. It is only when a territory is really derelict that any State may acquire it through occupation. History knows of several such cases. But very often, when such occupation of derelict territory occurs, the former owner protests and tries to prevent the new occupier from acquiring it.2 See above, § 228. * See Hall, § 34, where the case of Santa Lucia and that of Delagoa Bay are discussed. Former Claims to CHAPTER II THE OPEN SEA I RISE OF THE FREEDOM OF THE OPEN SEA Grotius, II. c. 2, § 3-Pufendorf, IV. c. 5, § 5-Vattel, I. §§ 279–286— Hall, § 40-Westlake, I. pp. 161-162-Phillimore, I. §§ 172–179— Taylor, §§ 242-246-Walker, Science, pp. 163-171-Wheaton, §§ 186-187-Hartmann, § 64-Heffter, § 73-Stoerk in Holtzendorff, II. pp. 483-490-Bonfils, Nos. 573-576-Despagnet, No. 410 -Pradier-Fodéré, II. Nos. 871-874—Calvo, I. §§ 347-352-Fiore, II. Nos. 718-726—Martens, I. § 97—Perels, § 4—Azuni, “Diritto maritimo" (1796), I, c. I. Article III.-Cauchy," Le droit maritime international considéré dans ses origines," 2 vols. (1862)—Nys, "Les origines du droit international" (1894), pp. 377-388-Castel, "Du principe de la liberté des mers" (1900), pp. 1-15. open § 248. In antiquity and the first half of the Middle Ages navigation on the Open Sea was free to everybody. According to Ulpianus,1 the sea is to everybody by nature, and, according to Celsus,2 the sea, like the air, is common to all mankind. Since no Law of Nations in the modern sense of the term existed during antiquity and the greater part of the Middle Ages, no importance is to be attached to the pronouncement of Antoninus Pius, Roman Emperor from 138 to 161:-"Being3 the Emperor of the world, I am consequently the law of the sea." Nor 1 L. 13, pr. D. VIII. 4: mari quod natura omnibus patet. * L. 3 D. XLIII. 8: Maris communem usum omnibus homi nibus ut aeris. 3 L. 9 D. XIV. 2: ¿yà pèv roÛ κόσμου κύριος, ὁ δὲ νόμος τῆς Oaλáσơŋs. |