freely open to all nations; since the navigation, both of Chap. IV. the Atlantic Ocean and the Mediterranean Sea, is free to all. Thus it has already been stated that the navigation of the Dardanelles and the Bosphorus, by which the Mediterranean and Black Seas are connected together, is free to all nations, subject to those regulations which are indispensably necessary for the security of the Ottoman Empire. In the negotiations which preceded the signature of the treaty of intervention, of the 15th of July, 1840, it was proposed, on the part of Russia, that an article should be inserted in the treaty, recognizing the permanent rule of the Ottoman Empire, that, whilst that empire is at peace, the Straits, both of the Bosphorus and the Dardanelles, are considered as shut against the ships of war of all nations. To this proposition it was replied, on the part of the British government, that its opinion respecting the navigation of these Straits by the ships of war of foreign nations rested upon a general and fundamental principle of international law. Every State is considered as having territorial jurisdiction over the sea which washes its shores, as far as three miles from lowwater mark; and, consequently, any strait which is bounded on both sides by the territory of the same sovereign, and which is not more than six miles wide, lies within the territorial jurisdiction of that sovereign. But the Bosphorus and Dardanelles are bounded on both sides by the territory of the Sultan, and are in most parts less than six miles wide; consequently his territorial jurisdiction extends over both those Straits, and he has a right to exclude all foreign ships of war from those Straits, if he should think proper so to do. By the Treaty of 1809, Great Britain acknowledged this right on the part of the Sultan, and promised to acquiesce in the enforcement of it; and it was but just that Russia should take the same engagement. The British government was of opinion, that the exclusion of all foreign ships of war from the two Straits would be more conducive to the maintenance of peace, than an understanding that the Strait in question should be a general Part II. thoroughfare, open, at all times, to ships of war of all countries; but whilst it was willing to acknowledge by treaty, as a general principle and as a standing rule, that the two Straits should be closed for all ships of war, it was of opinion, that if, for a particular emergency, one of those Straits should be open for one party, the other ought, at the same time, to be open for other parties, in order that there should be the same parity between the condition of the two Straits, when open and shut; and, therefore, the British government would expect that, in that part of the proposed Convention which should allot to each power its appropriate share of the measures of execution, it should be stipulated, that if it should become necessary for a Russian force to enter the Bosphorus, a British force should, at the same time, enter the Dardanelles. $191. The Dardanelles. It was accordingly declared, in the 4th article of the Convention, that the co-operation destined to place the Straits of the Dardanelles and the Bosphorus and the Ottoman capital under the temporary safeguard of the contracting parties, against all aggression of Mehemet Ali, should be considered only as a measure of exception, adopted at the express request of the Sultan, and solely for his defence, in the single case above mentioned; but it was agreed that such measure should not derogate, in any degree, from the ancient rule of the Ottoman Empire, in virtue of which it had, at all times, been prohibited for ships of war of foreign powers to enter those Straits. And the Sultan, on the one hand, declared that, excepting the contingency above mentioned, it was his firm resolution to maintain, in future, this principle invariably established as the ancient rule of his Empire, and, so long as the Porte should be at peace, to admit no foreign ship of war into these Straits; on the other hand, the four powers engaged to respect this determination, and to conform to the above-mentioned principle. This rule, and the engagement to respect it, as we have already seen, were subsequently incorporated into the treaty of the 13th July, 1841, between the five great European Powers and the Ottoman Porte; and as the Chap. IV. right of the private merchant vessels of all nations, in amity with the Porte, to navigate the interior waters of the Empire, which connect the Mediterranean and Black Seas, was recognized by the Treaty of Adrianople, in 1829, between Russia and the Porte; the two principles -the one excluding foreign ships of war, and the other admitting foreign merchant vessels to navigate those waters-may be considered as permanently incorporated into the public law of Europe (k). § 192. forming territory of The territory of the State includes the lakes, seas, and Rivers rivers, entirely enclosed within its limits. The rivers part of the which flow through the territory also form a part of the the State. domain, from their sources to their mouths, or as far as they flow within the territory, including the bays or estuaries formed by their junction with the sea. Where a navigable river forms the boundary of conterminous States, the middle of the channel, or Thalweg, is generally taken as the line of separation between the two States, the presumption of law being that the right of navigation is common to both; but this presumption may be destroyed by actual proof of prior occupancy and long undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire river (1). $193. innocent rivers flowing States. Things of which the use is inexhaustible, such as the Right of sea and running water, cannot be so appropriated as to passage on exclude others from using these elements in any manner through which does not occasion a loss or inconvenience to the different proprietor. This is what is called an innocent use. Thus we have seen that the jurisdiction possessed by one nation over sounds, straits, and other arms of the sea leading through its own territory to that of another, or to other seas common to all nations, does not exclude others from the right of innocent passage through these communications. The same principle is applicable to rivers flow () Wheaton, Hist. Law of Nations, pp. 577-583. See p. 288, ante. (1) Vattel, Droit des Gens, liv. i. ch. 22, § 266. Martens, Précis du Droit Part II. ing from one State through the territory of another into the sea, or into the territory of a third State. The right of navigating, for commercial purposes, a river which flows through the territories of different States, is common to all the nations inhabiting the different parts of its banks; but this right of innocent passage being what the text-writers call an imperfect right, its exercise is necessarily modified by the safety and convenience of the State affected by it, and can only be effectually secured by mutual convention regulating the mode of its exercise (m). $194. Incidental right to use the rivers. It seems that this right draws after it the incidental the banks of right of using all the means which are necessary to the secure enjoyment of the principal right itself. Thus the Roman law, which considered navigable rivers as public or common property, declared that the right to the use of the shores was incident to that of the water; and that the right to navigate a river involved the right to moor vessels to its banks, to lade and unlade cargoes, &c. The public jurists apply this principle of the Roman civil law to the same case between nations, and infer the right to use the adjacent land for these purposes, as means necessary to the attainment of the end for which the free navigation of the water is permitted (n). $195. These rights are imperfect. $196. Modification of these rights The incidental right, like the principal right itself, is imperfect in its nature, and the mutual convenience of both parties must be consulted in its exercise. Those who are interested in the enjoyment of these by compact. rights may renounce them entirely, or consent to modify them in such manner as mutual convenience and policy dictate. A remarkable instance of such a renunmay ciation is found in the Treaty of Westphalia, 1648, confirmed by subsequent treaties, by which the navigation of the river Scheldt was closed to the Belgic provinces, (m) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, §§ 12-14; cap. 3, §§ 7— Vattel, Droit des Gens, liv. ii. ch. 9, §§ 126-130; ch. 10, §§ 132-134. Puffendorf, de Jur. Naturæ et Gentium, 12. lib. iii. cap. 3, §§ 3—6. (n) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, § 15. Puffendorf, de Jur. Naturæ et Gentium, lib. iii. cap. 3, § 8. Vattel, Droit des Gens, liv. ii. ch. 9, § 129. in favour of the Dutch. The forcible opening of this Chap. IV. navigation by the French on the occupation of Belgium by the arms of the French Republic, in 1792, in violation of these treaties, was one of the principal ostensible causes of the war between France on one side, and Great Britain and Holland on the other. By the Treaties of Vienna, the Belgic provinces were united to Holland under the same sovereign, and the navigation of the Scheldt was placed on the same footing of freedom with that of the Rhine and other great European rivers. And by the Treaty of 1831, for the separation of Holland from Belgium, the free navigation of the Scheldt was, in like manner, secured, subject to certain duties, to be collected by the Dutch government (o). $196a. On the 16th July, 1863, a treaty was entered into between Belgium Redemption and most of the European Powers, by which Belgium agreed to sup- tolls. of the Scheldt press the tolls on the Scheldt. Holland had renounced her claims to the tolls on the 12th of May of the same year, in consideration of an indemnity paid to her by Belgium (p). The suppression of the tolls was to apply to every flag, and they were never to be re-established. Belgium also agreed to abolish tonnage dues in her ports, and to reduce the pilotage rates previously charged; but this was only to apply to countries which were parties to the treaty (9). As a compensation, the signatory powers agreed to indemnify Belgium against the claims she had become liable to, under the treaty with Holland, and to pay her a total sum, assessed in certain proportions among the contracting parties (~). Vienna European § 197. By the Treaty of Vienna in 1815, the commercial Treaties of navigation of rivers, which separate different States, or respecting flow through their respective territories, was declared to the great be entirely free in their whole course, from the point rivers. where each river becomes navigable to its mouth; provided that the regulations relating to the police of the navigation should be observed, which regulations were (6) Wheaton, Hist. Law of Nations, pp. 282-284, 552. (p) Hertslet, Map of Europe by Treaty, vol. ii. p. 1532. (4) The United States were not a party. (r) Hertslet, Map of Europe by Treaty, vol. ii. p. 1550. |