第17章 STATE SOVEREIGNTY(4)

These are not countries in which fortresses areor are likely to beconstructedin any large numberThe conditions of climate and other difficulties renderthem defences of no great valuebut either Power is engaged at vast outlayin creating a system of railways within its own countriesand we can seeeven now that any fresh railway constructed within the border of the onecountry gives rise at least for criticism and private complaint on the partof the otherI do not think we can doubt that if International Law had notbeen perfectly clear and precise on the subject of these rightsallegedto flow from the Sovereignty of statesthey would conduce to every varietyof complaint followed by every variety of warWhat really enables statesto exercise their Sovereignty in this way is nothing but the legal rule itself.

So also with regard to commercial systemsThey differ enormously in contiguouscommunitiesThere is no question that of old the English Navigation Lawswere bitterly disliked by a great part of Europeand now there is a standingdifference between a number of communities on the subject of Free Trade andProtectionand but for the rule affirming the unrestricted right to adoptsuch commercial system as a country pleasesthis difference of economicalopinion would undoubtedly be most dangerousAs the law standsa state maydirectly and deliberately legislate against the particular industries ofanotherand so far as we are concerned we have so fully acquiesced in thisprinciple that we allow our colonies to exercise the privileges once grudginglyconceded to independent statesand to exclude our manufactures by prohibitoryfiscal provisions.

The third of MrHall's rules states theta sovereign state has an unlimitedpower to occupy unappropriated territoryHere is a very great question,which was the fertile source of quarrel in the seventeenth and eighteenthcenturiesand which perhaps may assume a new importance in the twentieth.

The discovery of the American continent and the growth of maritime adventuregave fresh interest to a subjectwhich had been left in neglected obscurity,and the rising international system was not at first ready with rules tomeet itThe first tendency of International Law was to attribute an exaggeratedimportance to priority of discoveryIt was thought by the earlier juriststo be the same thing in principle as the Roman Inventiothe form of occupationby which under the Law of Nature property was acquired in a valuable object,such as a jewelbelonging to nobodyBut in our days prior discoverythoughstill held in considerable respectis not universally held to give an exclusivetitleThe United States indeed have not unreservedly agreed to the degradationof first discovery from its old considerationIn 184that Government protestedagainst the ground taken by the British Foreign Office that a discovery madeby a private individualin the prosecution of a private enterprisegivesno international rightBut the American Secretary of State in the same despatchadmitted it to be a point not yet settled by the usage of nationshoer fardiscovery of a territory which is either unsettled or settled only by savagesgives a right to it(Whartoni5.But this inconvenience of resting rightsupon mere discovery has caused more distinct forms of occupation or annexationto be preferred to itNearly all titles of discovery are of old dateandmany of these are matters of historical disputewhile at the same time theworld is so well known that new titles of discovery are rareOn the whole,some kind of formal annexation of new territory is now regarded as the bestsource of titleIt is still allowed that prior discoveryif established,may give legal importance to acts and signs otherwise ambiguous or withoutvalidityA cairn of stonesa Flagstaff or the remains of onemay meanlittle or nothing if found on a desolate coastbut if it can be shown tohave been put up by the first discoverersit may obtain great significanceand importanceAll discovery is now disregardedunless it be followed byacts showing an intention to hold the country as your ownthe most conclusiveof these acts being the planting upon it some civil or military settlement.

A great distinction is now drawn between appropriators of new territorywho are furnished with a general or special authority to effect the annexation,and appropriators who have no such authorityIf the state to which the commissionedappropriator belongs should afterwards ratify the appropriationa good internationaltitle would be acquired by itand so also if authority to appropriate onbehalf of the state had been originally givenIn the case of an uncommissionednavigatorsomething more than a mere formal assumption of possession isrequiredFor exampleif a body of adventurers establish themselves in apreviously unappropriated countrydeclaring it at the same time to belongto the state of which they are subjectsthis state may ratify their actand declarationand the title is made completebut if an uncommissionednavigator takes possession of a new country in the name of his Sovereign,and then sails away without forming a settlementthe modern doctrine isthat this originally imperfect title cannot afterwards be completed by ratification,and is liable meanwhile to be set aside by the independent acts of othersovereigns.