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War, lair of. El dominico español Fr. Francisco de Vitoria y los principios
modernes sobre el derecho de la guerra. Dr. D. Fidel Abad y Cávia. R. de dr. int y política exterior, 4:241.
Du droit de passage en temps de guerre. J. Dumas. R. générale de dr. int. public, 1903, No. 3. Wireless telegraphy. La télégraphie sans fil en temps de guerre et le droit international. Lieutenant Boidin. R. générale de dr. int. pub., 1909, No. 3.
W. CLAYTON CARPENTER.
THE ARCTIC AND ANTARCTIC REGIONS AND THE
LAW OF NATIONS
The announcement of the discovery of the North Pole raised in several quarters, among others the British and the Canadian Parliaments, the question whether the act of discovery gave to the United States any right of possession over the North Pole.
In searching for the answer to this question, it is necessary to ascertain the rules of the Law of Nations that govern analogous
What was previously presumed, proved to be correct, that at the North Pole there is no land, but only ice resting on the deep sea, and in order to reach the Pole, it must be approached for a long distance over the ice resting on the deep sea.
What is the law applicable to the sea ? Originally formulated by Queen Elizabeth, and more fully expounded by the Hollander, Hugo Grotius, the freedom of the high seas was controverted in the reign of Charles the First by the publication of the treatise Mare Clausum written some years before by England's ablest jurist of that time, John Selden.1
At various times all or almost all the nations of the world have taken a hand in the controversy of the freedom of the high seas. And each state has argued on the side that at the time seemed best for its own individual interests. But in the long run the family of nations has pronounced without equivocation in favor of the freedom
Naturally if the North Polar Sea were open there would be no question of its being as free as any part of the broad Atlantic and Pacific Oceans.
The North Polar Sea, however, is covered with ice. Ice, unlike the water of the high seas, is a solid substance upon which mankind
of the seas.
1 Walker: A History of the Law of Nations, Vol. I, p. 161; Oppenheim: International Law, Vol. I, p. 303.
can build habitations and live for an indefinite period of time. Thus during the Russo-Japanese War, the Russians built during the winter seasons a railroad on the ice over Lake Baikal and established a station mid-way across the frozen lake. And over that piece of railroad they forwarded many thousands of men and great quantities of stores and implements of war. In that sense it might be urged that men might permanently occupy the ice cover of the Polar Sea. But the ice at the North Pole is never at rest. It is in continual motion. It moves slowly in a direction from Bering's Strait towards the Atlantic Ocean. Consequently any habitation fixed upon it would be continually moving. And such possible occupation would be too precarious and shifting to and fro to give any one a good title. And so the rules of the Law of Nations that recognize the freedom of the high seas, would seem to apply naturally to a moving and shifting substance like the North Polar Sea ice at all points beyond the customary three-mile limit from the shore.
In the Antarctic, however, conditions are different from the Arctic. For in the former area, the South Pole and the region around is covered not by a deep sea as at the North Pole, but by land. This land, whose continental proportions were first made known to the world by the discoveries of Commodore Charles Wilkes of the American Navy, is being explored bit by bit by men of many nations. In this work of discovery many Americans besides Wilkes, such as Palmer and Pendleton, have had an active share. Naturally whatever claim of priority of discovery is due to the work of these Americans redounds to the advantage of our country.
But discovery alone is not sufficient to give a good title to a new, unoccupied land. The custom among nations for centuries, that gradually crystallized into a part of the Law of Nations, is that in order to perfect the right given by discovery, it must be followed hy occupation.
Queen Elizabeth, in a famous reply to Mendoza, the ambassador of Philip the Second of Spain, took the view that discovery must be followed by effectual occupation to give a good title of possession. The Queen said, she did not understand why either her subjects or those of any other European Power should be debarred from traffick in the Indies: that she did not acknowledge the Spaniards to have any title by donation of the Bishop of Rome, so she knew no right they had to any places other than those they were in actual possession of; for their having touched only here and there upon a Coast, and given names to a few rivers and capes, were such insignificant things as could in no ways entitle them to property (proprietas) further than in the parts where they actually settled and continued to inhabit.
2 Edwin Swift Balch: Antarctica.
In this view of the rules of the Law of Nations, Spain later eventually concurred. During the controversy over Nootka Sound, in a declaration on the 4th of June, 1790, signed by Count de Florida Blancas, that he sent to the courts of Europe, the King of Spain said that he limited his claims to the continent, islands and seas which belong to His Majesty, so far as discoveri es have been made and secured to him by treaties and immemorial possession, and uniformly acquiesced in, notwithstanding some infringements by individuals who have been punished upon knowledge of their offences.*
Mr. Westlake, who held the Whewell Chair of International Law at Cambridge University from 1888 to 1908, sums up the idea of title by discovery that yas held when the new world was being discovered. He says, it was not imagined that any title could be gained by a discovery made by subjects without authority from their governments. The title, though for shortness it might be spoken of as one by discovery, was always understood to be one by discovery and occupation, and occupation, with the consequent acquisition of dominion, could in the nature of things be only the act of a state.
In the Antarctic Continent none of the nations who can bring forward the claim of discovery to various parts of that continent, have as yet perfected, or even attempted seriously, owing to the
8 Camdeni Annales, Anno 1580: tr. in Twiss's Law of Nations, p. 208. * Cited by Westlake: International Law, Pt. I, p. 103. 5 Ib., p. 99.