STRAITS

[§ 150 A special situation arises where a large inland sea, such as the Black Sea, having, nevertheless, a connection with the ocean, is surrounded by the territories of two or more States, and finds an outlet to the ocean through the territorial waters of one of them. In this particular case the magnitude of the water area involved, its connection with the ocean, its importance as a means of access to certain countries adjacent to it, and the resulting general interest of maritime powers that it be dealt with as the high seas, have combined to justify the insistent demand that the Black Sea be not partitioned among the surrounding States and regarded as territorial. Deemed, therefore, non-territorial, the right of Turkey to control the sole access thereto through the Bosphorus and the Dardanelles was, even before The World War, looked upon as proportionally limited.1

Where a strait or narrow passage connecting two open seas constitutes the boundary between two States, the line of demarcation is said to be "governed by substantially the same principles as that of the limits of territorial jurisdiction in and over rivers.” 2 It is believed, therefore, that the principle of thalweg is applicable in such case and that the boundary line should follow the middle of the main channel, if there be one.3

A strait may be a part of the territorial waters of the bordering States although it has a width of more than six marine miles at either terminus, or throughout its course. The United States and Great Britain exercise dominion over the waters of the Straits of Fuca, the breadth of which at its narrowest part is about ten marine miles.1

It may be doubted whether there is a practice marking a precise limit of the width of straits which may be regarded as territorial when the adjacent shores belong to different States. The society of nations is rather concerned with the matter of navigation through such waters as are acknowledged to belong to the

1 Woolsey, 6 ed., 78–79; Dana's Wheaton, § 182; Oppenheim, 2 ed., I, § 181; Bonfils-Fauchille, 7 ed., §§ 499-503; Árticles I, II, and III of treaty of London, of March 13, 1871, Nouv. Rec. Gén., XVIII, 303, 305, annexing thereto Articles XI, XIII, and XIV of the Treaty of Paris, of March 30, 1856, Nouv. Rec. Gén., XV, 770, 775-776.

2 Statement in Moore, Dig., I, 658.

3 Louisiana v. Mississippi, 202 U. S. 1, 50; Art. X of Rules adopted by the Institute of International Law, March 31, 1894, Annuaire, 330-331, Moore, Dig., I, 659, J. B. Scott, Resolutions, 115.

Mr. Wharton, Acting Secy. of State, to Secy. of the Treasury, May 22, 1891, 182 MS. Dom. Let. 79, citing Hall, 3 ed., 140, Moore, Dig., Ï, 658.

littoral States. The interests of that society might, however, be generally opposed to the claim that any strait, however broad, which could, at the present time, be subjected to control by means of guns placed on either or both shores, should be regarded as subject to the exercise of rights of sovereignty throughout its broad

extent.

Where a strait, such as Long Island Sound, separates the territories of a single proprietor, and also forms no necessary channel of communication for international commerce between the bodies of water with which it forms a connection, the general maritime interest in the extent of the claim of that proprietor becomes relatively small, and does not appear to limit by any exact test its assertion of rights of sovereignty. It should be observed that in the Rules on the Definition and Régime of the Territorial Sea, adopted by the Institute of International Law in 1894, it was declared that straits of which the shores belong to the same State and which are indispensable to maritime communication between two or more States other than the littoral State, always form a part of the territorial waters of that State, regardless of the distance between the coasts.3

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§ 151. Determination of Boundaries.

A dispute between States respecting a boundary may be adjusted by any of the means, amicable or otherwise, by which international differences are settled. If diplomacy fails, and recourse be had to arbitration or to the offices of a joint tribunal, the special agreement or compromis providing for the employment of such an agency usually defines with exactness the problems involved, and the nature of the duties of the tribunal. Sometimes that agreement announces certain principles of international law which the court is to respect.5 As in other classes of cases, and

1 Following the proposal of Sir Thomas Barclay in his report to the Institute of International Law in 1912, Annuaire, XXV, 375, 386, and in his Report to the International Law Association in 1895, Report of Seventeenth Conference at Brussels, 113, the Naval War College, in 1913, concluded that "Straits, when not more than twelve miles in width, are under the jurisdiction of the adjacent State or States." Int. Law Topics, 1913, 47.

2 Id., 46. See, also, in this connection, Mahler v. Transportation Co., 35 N. Y. 352, 355; also Dana's Wheaton, 262.

3 Annuaire, XIII, 330, J. B. Scott, Resolutions, 115. The language of the original text with respect to the distance between the coasts is: "quel que soit le rapprochement des côtes."

Recourse to Arbitration by the United States, Territorial Differences, infra, § 563.

5

See, for example, convention of Jan. 24, 1903, between the United States

DETERMINATION OF BOUNDARIES

[§ 151 subject to the same exceptions, an agreement to adjust a controversy relating to a boundary by reference to an international tribunal, serves to impose upon the contracting parties an obligation to abide by the award.

Even when there is no disagreement as to the principles governing the course of a boundary, or after a judicial tribunal has indicated how it should be drawn, the actual demarcation or delimitation of the line may give rise to special technical problems. For their solution it is not uncommon to arrange by convention for the appointment of experts to mark the boundary according to given directions, and to agree that the line thus established shall be deemed to be the true boundary. Provision is sometimes made that in case such experts disagree, separate reports shall be made to the contracting States, which shall thereupon take further steps to reach an agreement.2

The decisions of domestic tribunals as to the extent of the national domain cannot affect the adverse claims of a foreign State; and they may also serve seriously to embarrass the proper department of the same Government in the assertion of rights of sovereignty. Matters of such a character are, therefore, regarded as raising questions essentially political rather than judicial. Hence the decisions of the political department of a State are, in the case of the United States, deemed to be binding upon the courts. Of the extent of the territorial limits announced by the and Great Britain for the settlement of the Alaskan Boundary dispute, For. Rel. 1903, 488, Malloy's Treaties, I, 787; also Article IV of Convention of Feb. 2, 1897, between Great Britain and Venezuela for the settlement of the British Guiana-Venezuelan Boundary Dispute, Brit. and For. State Pap., LXXXIX, 57; Moore, Dig., I, 297.

3

See, for example, convention between the United States and Mexico, of July 29, 1882, providing for an international commission to re-locate the international boundary in certain places, Malloy's Treaties, I, 1141; also convention between the United States and Great Britain, of April 11, 1908, concerning the Canadian international boundary, id., 815. Cf. Art. 35 of treaty of peace with Germany of June 28, 1919, relative to the settlement of the new frontier line between Belgium and Germany.

See, for example, Article IX of convention between the United States and Great Britain, of April 11, 1908, for the more complete definition and demarcation of the boundary between the United States and the Dominion of Canada, Malloy's Treaties, I, 826.

3 In Jones v. United States, 137 U. S. 202, 212–213, it was declared by Mr. Justice Gray in the course of the opinion of the Court: "Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government. This principle has always been upheldby this court, and has been affirmed under a great variety of circumstances. Gelston v. Hoyt, 3 Wheat. 246, 324; United States v. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat. 52; Foster v. Neilson, 2 Pet. 253, 307, 309; Keane v. McDonough, 8 Pet. 308; Garcia v. Lee, 12 Pet. 511, 520; Williams v.

former, the latter take judicial notice. This is true whether a boundary is the subject of international controversy, or a question arises as to what State or authority therein is to be regarded as possessing rights of sovereignty over any particular geographical area. The decisions of the political department in such matters are likewise binding upon the nationals of the same State.3

b

Certain Limitations of the Right of Control over What Pertains to the Territory of a State

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§ 152. In General. Servitudes.

The supremacy of a State as sovereign over what constitutes the national domain, embracing the land and territorial waters Suffolk Ins. Co., 13 Pet. 415; United States v. Yorba, 1 Wall. 412, 423; United States v. Lynde, 11 Wall. 632, 638. It is equally well settled in England. The Pelican, Edw. Adm. appx. D; Taylor v. Barclay, 2 Sim. 213; Emperor of Austria v. Day, 3 DeG., F. & J. 217, 221, 233; Republic of Peru v. Peruvian Guano Co., 36 Ch. D. 489, 497; Republic of Peru v. Dreyfus, 38 Ch. D. 248, 356, 359." Cf., also, Pearcy v. Stranahan, 205 U. S. 257; Oetjen v. Central Leather Co., 246 U. S. 297.

1 Jones v. United States, 137 U. S. 202, 214, where it was said: "All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings."

Foster v. Neilson, 2 Pet. 253, 307; Garcia v. Lee, 12 Pet. 511; Williams v. Suffolk Ins. Co., 13 Pet. 415, 420; United States v. Reynes, 9 How. 127; United States v. Texas, 143 U. S. 621; Jones v. United States, 137 U. S. 202, 212-213; In re Cooper, 143 U. S. 472, 502-505; Reg. v. Keyn, 2 Ex. D. 63; Pearcy v. Stranahan, 205 U. S. 257, 265. Compare concurring opinion of Mr. Justice White, id., 273.

In the course of the opinion of the Court in In re Cooper, supra, at 503, it was declared that: "We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, 'since we have no more right to decline the jurisdiction which is given than to usurp that which is not given.""

Cf., also, Cordova v. Grant, 248 U. S. 413, where the plaintiff's title to land depended on whether the international boundary along the Rio Grande had shifted with the river. The defendant asserted that the United States, although exercising de facto jurisdiction over the locus, had conceded the boundary to be unsettled, having by treaty agreed to adjust it by an international commission with exclusive jurisdiction to settle it. It was held that this circumstance did not oust the United States District Court of jurisdiction in the particular case, because the United States had rejected the action of the commission under the treaty, and had also waived objections based on comity to the litigation.

'Poole v. Fleeger, 11 Pet. 185; Robinson v. Minor, 10 How. 627; Mr.

IN GENERAL. SERVITUDES

[$ 152 and superjacent air space, must be recognized as a fundamental principle of international law, to which the United States avows attachment. There exist, however, certain definite limitations which in practice are acknowledged to restrict the territorial sovereign in the exercise of rights of control, and which vary somewhat according to the nature of the thing over which those rights are asserted. It will be seen that with respect to certain of its territorial waters a State is not deemed to enjoy the same measure of control that it commonly asserts over its lands, and again, that the restrictions to which it is subjected in relation to different classes of water areas are not identical in kind or extent. Thus the duty of a State to yield to foreign vessels a so-called innocent passage along its marginal seas differs widely from that to accord them any privileges of navigation through a river forming an international boundary.

At the present time there is evidence of fresh demands upon the individual State to make concessions heretofore not regarded as obligatory. It is called upon to permit, under conditions not hurtful to itself, foreign powers to make limited use of the air space over the national domain,2 and to afford them also certain privileges of transit by land.3

When the limitation of the right of control is so widely recognized and uniformly applied that every foreign power may reasonably demand observance of it for the benefit of itself or its nationals, it becomes unnecessary to record the fact in treaties. When, however, the limitation is one which is commonly acknowledged to be applicable without discrimination solely in favor of States possessed of a special geographical or economic relationship to the particular area concerned, the need of an appropriate convention is usually conceded. In such case the duty of the territorial sovereign to agree specifically with other States within the favored class, with respect at least to certain limitations, seems to be recognized. Nevertheless, it will be found that the restrictions of a treaty may be such as the territorial sovereign is far from acknowledging the slightest obligation to agree to impose upon itself, and which it yields on grounds of expediency, or in return for a substantial concession. Thus

Buchanan, Secy. of State, to Mr. Calderon de la Barca, July 27, 1847, MS. Notes to Spain, VI, 155, Moore, Dig., I, 746.

1Cf. The Supremacy of the Territorial Sovereign over the National Domain, In General, infra, § 199.

3

Cf. Air Space over the National Domain, In General, infra, § 188.

Cf. Transit by Land, In General, infra, § 194.