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of the rights of jurisdiction on the part of the Holland West India Company, which, deprived of sovereign powers by the Dutch government, indulged in acts of sovereign authority over certain localities of the zone in litigation, governing commerce which for a long time was exercised by the Dutch controlling it, submitting it to the orders of the governor of the colony, and succeeding in causing the indigenous inhabitants to recognize partially the power of this functionary; that these acts of authority and of jurisdiction with regard to the merchants and the indigenous tribes were continued in the name of the British sovereignty when Great Britain took possession of the colony belonging to Holland, that such an effective affirmation of the rights of sovereign jurisdiction gradually developed and was uncontradicted, and that it came to be accepted little by little even by the indigenous independent tribes inhabiting the regions, which could not be regarded as included within the effective domain of the Portuguese sovereignty and thereafter of the Brazilian sovereignty; that in consequence of these successive developments of the power of jurisdiction, the acquisition of the sovereignty on the part of Holland at first and later on the part of Great Britain was effectuated over a certain part of the territory in litigation.
The same decision is interesting in its discussion as to what under certain circumstances constitutes insufficient possession, for it says:
The discovery of new ways of traffic in regions which belong to no state, can not be considered of itself a ground of sufficient efficacy for determining that the sovereignty of this region remains acquired by the state whose citizens have made the discovery; that to acquire the sovereignty of a region not within the domain of another state, it is indispensable to effectuate its occupation in the name of the state which proposes to acquire the domination; that occupation can only be considered as accomplished after the taking of effective possession, uninterrupted and permanent, in the name of the state, and that the simple affirmation of the rights of sovereignty, or the intention manifested to desire to render the obligation effective, can not suffice; that the taking of effective possession of one part of the region, while it may be esteemed as efficacious in order to acquire the sovereignty of the entire region when this constitutes a single organism, can not be esteemed efficacious for the acquisition of the sovereignty over an entire region when on account of its extent or of its physical configuration, it can not be considered as an organic unity de facto; that consequently, all things considered, one cannot admit as established that Portugal first and Brazil afterward have realized the effective taking of possession of all the territory contested, but one can recognize only that these states have put themselves in possession of certain localities of the same territory, and that they have there exercised their sovereign rights.
Necessarily, perhaps, involved in this discussion is the question as to the proper bounds of actual possession, and we find it stated in the decision of the arbitrators between Austria and Hungary, above referred to, that,
The opinion of the expert, in which the tribunal shares, rests upon the provisions of international law, which does not recognize rivers as having the character of frontiers, but accords it rather to mountains.
Jackson H. RALSTON.
NOTES ON RIVERS AND NAVIGATION IN INTER
When the entire course of a river passes through the territory of but a single state, it is generally agreed that a right of exclusive control is possessed by the territorial sovereign which may, therefore, bar the navigation of the stream by foreign nations. Any privileges of transit enjoyed by their vessels are always understood to be subject to the consent of the local state. Thus, with respect to such rivers as the Mississippi and the Hudson, foreign countries enjoy no right of navigation.?
IN NORTH AMERICA
The Mississippi When a river is navigable within two or more countries, questions arise as to the nature and extent of the duty of a riparian state to permit the navigation of the waters within its own territory by foreign vessels. It is to be ascertained whether the duty towards states not bordering on the river is identical with that towards other riparian countries; also whether there is a distinction between the obligation with respect to a riparian neighbor up stream, and that towards another down stream.3 The United States has long been confronted with these problems.
1 See, for example, Westlake, I. 144; Oppenheim, I. 226. But see contra, Bluntschli, Droit International Codifié, 5th ed., $ 314.
2 Declares Professor Moore: “ It is not doubted that rivers such as the Hudson and the Mississippi, which are navigable only within the territory of one country, are subject to that country's exclusive control.” (American Diplomacy, pp. 82-83.) See also, Mr. Foster, Secretary of State, to Sir Julian Pauncefote, British Minister, Dec. 31, 1892, U. S. For. Rel., 1892, 335, 337; Moore, Int. L. Dig.. I, 626-627.
3 Concerning the navigation of rivers generally, see E. Englehardt, “ Historie du
According to Article VIII of the treaty of peace between the United States and Great Britain of 1782-1783, it was agreed that the navigation of the Mississippi from its source to the ocean should remain forever open to the respective citizens and subjects of those countries.
As the consequence of its treaty with Great Britain of September 3, 1783, Spain acquired East and West Florida, thereby securing sovereignty over the territory on both sides of the Mississippi at its mouth.” The United States thereupon sought Spanish recognition of a right of navigation through the lower waters to the sea. After
droit fluvial conventionnel,” Paris: 1889; Communication to the Institute of International Law, Annuaire, IX, 156; A Bergès, "Du regime de navigation des fleures internationaux,” Toulouse: 1902; Bibliography in Clunet, Tábles Génerale, I, 462465, 882–883; Schuyler, American Diplomacy, 265–305, 319–366; J. B. Moore, American Diplomacy, 82-86; E. Nys, “Les fleures internationaux traversant plusieurs territoires ; " Rev. D. I. L. C., 2 ser., V, 517; Woolsey, 6th ed., 79-83 ; Oppenheim, I, 226-229; Westlake, 1, 142–159; Dana's Wheaton, 274–288; Lawrence, 186-189; Calvo, I, 433–465; Bonfils-Fauchille, 4th ed., 288–296; Martens, II, 345–355; Rivier, I, 221-229; Liszt, 3d ed., 216–228; Hall, 5th ed., 131-110.
4U. S. Treaties in Force, 1904, 290.
5 See letter from the Minister of Spain to Mr. Pickering, Sec. of State, May 6, 1797. Am. State Pap., For. Rel., II, 15.
6 Mr. Jefferson, Secretary of State, in support of the claim of his government, relied first upon Article V of the treaty between Great Britain and France of February 10, 1763, providing for free navigation of the Mississippi by the subjects of those countries; secondly, upon the treaty of peace between the United States and Great Britain of 1782-1783; and finally, upon the law of nature and nations.” He asserted that the sentiment was written in deep eharacters on the heart of man that “the ocean is free to all men, and their rivers to all their inhabitants.” Accordingly, he declared that: “When their rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the judgment of mankind.” He said that the writers on the subject were agreed that an innocent passage along a river was the natural right of those inhabiting its borders above; that although this right was regarded as an inherited one, inasmuch as the modification of its exercise depended to a large degree on the convenience of the nation through whose territory foreign vessels pa-sed, it was nevertheless: “ still a right as real as any other right, however well defined; and were it to be refused, or to be so shackled by regulations, not necessary for the peace or safety of its inhabitants, as to render its use impracticable to us, it would then be an injury, of which we should be entitled to demand redress. The right of the upper inhabitants to use this navigation is the counterpart to that of those possessing the shcres below, and founded in the same
protracted negotiations a treaty was concluded, Oetober 27, 179.3. With respect to the Mississippi it was declared in Article IV that:
llis Catholic Majesty has likewise agreed that the navigation of the said river, in its whole breadth, from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other Powers by special convention."
According to Article III of the Jay treaty, concluded with Great Britain the previous year, the United States had agreed that the Mississippi should, according to the treaty of peace of 1782–1783, he “ entirely open to both parties." 8 In 1796 the United States and Great Britain annexed to the Jay treaty an explanatory article with reference to the navigation of the rivers and waters of the contracting parties, to the effect that no stipulations in any convention subsequently concluded should be understood to derogate in any manner from the rights of commerce and navigation of their respective citizens and subjects for which provision had been made in their agreement of 1794.9
Spain protested, contending that this article was in derogation of the Spanish treaty of 1795, which, it was asserted, was the basis of the American right of navigation.10 It is to be observed that the treaties concluded by the United States with both Great Britain and Spain purported to secure rights of navigation for the contracting
natural relations with the soil and water.” He said also: “ We might add, as a fifth sine qua non, that no phrase should be admitted in the treaty which could express or imply that we take the navigation of the Mississippi as a grant from Spain. But, however disagreeable it would be to subscribe to such a sentiment. vet, were the conclusion of a treaty to hang on that single objection, it would be expedient to waive it, and to meet, at a future day, the consequences of any resumption they may pretend to make, rather than at present, those of a separation without coming to any agreement.”
( Instructions to Messrs. Carmichael and Short, Commissioners to negotiate a treaty with Spain, March 18, 1792. Am. State Pap., For. Rel., 1. 252-257.)
? II., 1, 547; L. S. Tre:yty Vol. (1776–1887), 1007.
10 See correspondence in May, 1797, between Mr. Pickering, Sec. of State, and the Spanish Minister. Am. State Pap., For. Rel., II, 14–15, 16–17.