第21章 TERRITORIAL RIGHTS OF SOVEREIGNTY.(4)

The jurisdiction of a state over a portion of the sea nearest its coasts,either as a fragment of ancient claims or under the rule of InternationalLawis often said to exist by virtue of a fiction under which water is treatedas landYou will find on examining the opinions of the judges in the 'Franconia'case that the admissibility or otherwise of such a fiction fills considerablespace in the argumentsConverselythe full Sovereignty of a state overthe portions of land which it includesand which are covered by waterriversand lakesmight be supposed to exist under the Law of NatureBut this apparentnatural completeness of Sovereignty is limitedas is seen in one case whichhas had more than its share of attention from international writersWherever,as often happens in a river of great lengthit passes through the territoryof a considerable number of statesit has been asserted that each one ofthose states has a right of navigation to the seaand it has even been claimedthat wholly foreign states can navigate the river from its mouth up to anyone of the co-riparian sovereigntiesIt is the fact that such a right asI hare described has been exercised in all great European rivers for manycenturiesand I believe the reason to be one which every traveller alongsuch a river as the Rhine will at once understandThe command of a portionof the river was not valued in former days for the purpose of obstructingor closing itits advantage consisted in the tolls which were exacted froma vessel as it passed from one sovereignty to anotherand the long riverswere burdened with obligatory payments of this kind down to the mouthOfcourse the burden was excessively heavy on the Rhine owing to the numberof semi-sovereignties or fractional sovereignties which abounded within thelimits of the EmpireIn one instance a portion of the Rhine was absolutelyclosed under a provision of the Treaty of WestphaliaThe Scheldtor passagethrough the Dutch territory at the mouthwas closed to every other co-riparianPowerand was free only to the Dutch themselvesThere was some pretextfor this exceptional rulebecause no doubt this portion of the Rhine wasmainly the work of Dutch industryfor the river enters there into the giganticconstructions which have been made by Dutch engineers and by Dutch labourersfor the purpose of protecting or recovering the Dutch territory from theseaThe closing of the Scheldt washowevernever in favour with the internationalwritersand was for a great length of time strongly objected toIt hasa gloomy celebrityfor it was the forcible opening of this passage by theFrench in favour of the Flemings and against the Dutch which led to the entranceof our own country into the war of the French Revolution.

Some writers on International Law have asserted that the innocent navigation,as the phrase runsof a river circumstanced like the Rhineexisted by nature.

This was controverted by the othersand the question is one of the greattopics of argument in International LawThe discussionas sometimes happens,has been much embarrassed by the use of terms of dubious meaningThose whodenied the right generallyallowed that there was an imperfect right tothe privilege claimedThese terms 'perfectand 'imperfect rightdescendto us from the Roman Lawwhere an imperfect law is a law without a sanction.

John Austin has examined these terms 'imperfectand 'perfect law,and assertsthat in such cases the lawgiverthough he has indicated his intentionhasforgotten or accidentally omitted to impose penalties on disobedienceSucha use of words is altogether out of place in International Lawbecause inthat system there is never any direct sanctionsince there is no commonsovereign(consequently 'imperfect lawand 'imperfect righthave graduallyattained a different sense in later International LawSometimes the wordswere used to imply that it would be fair and reasonable to concede the libertyclaimedsometimes it seems to have meant that a state alleged to lie underan imperfect obligation may concede the privilegebut might consult itsown convenience as to the method of concessionIf this way of expressingthe conflicting doctrines had always been followedit is a not inconvenientbasis for practically settling the questionMany states will acknowledgean imperfect duty which would refuse to allow a perfect right in any senseof the words.

On this basishoweverthat of imperfect righttab passage of rivershas been largely regulated by treatyThe Rhine and the Elbe were placedunder special regulations in 181and 1815after the close of the greatwarby which all the states along their banks had a right of access to theseaIn 182there began a violent dispute between England and the UnitedStates as to the power of navigating the StLawrenceThe StLawrence isin point of fact the outlet by which the water of the great lakes or fresh-waterinland seas escapes from the continent of America into the AtlanticEnglandclaimedas owner of the territory near the mouthto close the StLawrenceat pleasurethough she never exercised the power which she assumedOn theother handthe United Statesas sovereign owners of valuable territoryabutting on some of the great lakesassumed a free right of navigation tothe mouth of the StLawrenceBoth Powers claimed more than they hoped toobtainThe language of the English Foreign Office assumed that England hada perfect right to forbid the navigation of the riverThe United Statesseemed to assert that the whole river was open to themselvesand perhapsto navigators of all civilised statesThe controversy ended in 185muchin the same way as the disputes about passage down the Rhineand the principleshere applied were shortly afterwards applied to the great rivers of SouthAmericaThey were all thrown openthe Paranathe Uruguayand the Amazons.