exhaustible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss or inconvenience to the proprietor."1 While the tendency of international policy is toward unrestricted freedom of river navigation, yet the principle as enunciated by Wheaton cannot be said to be established in practice. The American and Continental writers have generally favored the principle enunciated by Wheaton. English writers have contended against this position as a right, but admit that the principle is becoming es tablished by numerous treaties and conventions. As to the sea, the principle may be said to be established. § 50. Rivers The jurisdiction of rivers is a question which is not identical with the right of navigation of rivers, and may best be considered apart. The question of jurisdiction is one of general international principle, while the question of river navigation is one of particular provision, in many instances. The rivers fall under three classes: 1. Rivers which traverse only one state. 2. Rivers which traverse two or more states. (a) Rivers which traverse only one state are exclusively within the jurisdiction of that state. This jurisdiction may extend even to the forbidding of the use of 1 Wheat., D., § 193, p. 274. a river to other states, and justifies the state in prescribing such regulations for its use as it may deem fit. (b) Rivers flowing through two or more states are for those parts within the boundaries of each state under its jurisdiction for the purposes of police, tolls, and general regulations. The right of absolute exclusion of the co-riparian states by any one of the states through which a river flows has been the subject of much discussion, and authorities of great weight can be found upon either side. (c) When two states have jurisdiction upon opposite banks of a river, the jurisdiction of each state extends to the middle of the main channel or thalweg. Before the Treaty of Luneville (Art. VI.), 1801, it had been common to consider the limit of jurisdiction of the two states the middle of the river, a line much more difficult to determine, and more changeable than the channel line. The thalweg has been frequently confirmed as the accepted boundary where no conventions to the contrary existed.1 § 51. The Navigation of Rivers The laws of jurisdiction of rivers are generally accepted. The early idea that there was a natural right of navigation, and innocent passage has received less support during the nineteenth century than formerly. The history of river navigation during the nineteenth century, as shown in the discussions between the representatives of various nations, and in 1 Ed. Engelhardt, "Du régime conventionnel des fleuves internationaux," Ch. II. the treaties and conventions agreed upon, as well as in treaties and declarations voluntarily made in regard to navigation of rivers, seem to furnish general rules. 1. That international law gives to other states no right of navigation of rivers wholly within the jurisdiction of another state. 2. That when a river forms the boundary of two or more states it is open to the navigation of each of the states. 3. That when a river passes through two or more states, international law gives no right to one of the states to pass through the part of the river in the other state or states. There is a strong moral obligation resting upon the states below to allow freedom of navigation through the river to the states upon the upper course of the river. The right of innocent use, inno cent passage, freedom of river navigation, has been maintained on various grounds and in various forms, by many authorities. Those who take a position opposed to this claim, assert that the navigation of rivers is, and properly should be, to avoid more serious complications, a matter of convention. In fact, since the French Revolution, the subject has so frequently been a matter of convention2 as to establish the general principles, that in case of no special restrictions, river navigation is free, subject to such regulations as the state having jurisdiction may deem 1 Grotius, II., ii., 12-14; Pufendorf, III., 3, 4; Vattel, §§ 104, 126130, 132-134; Bluntschli, § 314; Calvo, §§ 259, 290-291; Fiore, §§ 758, 768; Carnazza-Amari, "Traite," § 2, Ch. VII., 17; Heffter, § 77; Wheat., D., § 193. 2 Wheat., D., §§ 197-204; Whart., § 30; Pradier-Fodéré, "Traite," §§ 727-755. necessary, and that the privilege of navigation carries with it the use of the river banks, so far as is necessary for purpose of navigation.1 § 52. Enclosed Waters (a) The rule in regard to waters wholly within the territory of a state such as lakes, etc., is that the jurisdiction is exclusively in that state. (b) Gulfs, bays, and estuaries are regarded as within the jurisdiction of the state or states enclosing them, provided the mouth is not more than six miles in width. A line drawn from headland to headland on either side of the mouth is considered as the coast line of the state, and for purposes of maritime jurisdiction the marine league is measured from this line. Waters having wider openings into the sea have been claimed on special grounds, as the claim of the United States to territorial jurisdiction over the Chesapeake and Delaware bays. France and Germany claim jurisdiction over gulfs having outlets not over ten miles in width. Between states parties to treaties special claims have been made and allowed. These treaty stipulations do not necessarily bind states not parties to the treaty, e.g. treaty between Great Britain and France, 1839. "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fishing upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not. exceed ten miles in width, be measured from a straight line drawn from headland to headland.” 2 The present tendency is toward a restricted jurisdiction and the acceptance of the six-mile limit of width of mouth, though there is a reasonable claim that some ratio should be fixed for very large interior water areas to which the entrance, though more than six miles, is yet relatively narrow (c) Straits less than six miles in width are within the jurisdiction of the shore state or states. In case two shores are territory of different states, each state has jurisdiction to the middle of the navigable channel. Where a state owns both shores of a strait which does not exceed six miles in width, the strait is within its territorial jurisdiction, though other states have the right of navigation. This right of navigation is in general conferred upon both merchant and war vessels of states at peace with the territorial power. These vessels must, however, comply with proper regulations in regard to navigation. The claim to exclusive jurisdiction over such narrow straits has been abandoned. The claim of the king of Denmark to jurisdiction over the Danish Sound and the Two Belts, which entitled him to levy tolls upon vessels passing through, was based on prescription and fortified by treaties as early as the one with the Hanse towns in 1368. Against these tolls, as an unjust burden upon commerce, the United States protested in 1848, at the same time maintaining that Denmark had not the right of exclusive jurisdiction. The European states in 1857 paid a lump sum in capitalization of the sound dues. The United States, refusing to recognize the right of Denmark to levy tolls, paid $393,011 in 1857 in consideration of Denmark's agreement to keep up lighthouses, etc. |