of Nature. Revolt. § 245. Operation of nature as a mode of losing territory corresponds to accretion as a mode of acquiring it. Just as through accretion a State may be enlarged, so it may be diminished through the disappearance of land and other operations of nature. And the loss of territory through operation of nature takes place ipso facto by such operation. Thus, if an island near the shore disappears through volcanic action, the extent of the maritime territorial belt of the respective littoral State is thereafter to be measured from the low-water mark of the shore of the continent, instead of from the shore of the former island. Thus, further, if through a piece of land being detached by the current of a river from one bank and carried over to the other bank, the river alters its course and now covers part of the land on the bank from which such piece became detached, the territory of one of the riparian States may be decreased through the boundary line being ipso facto transferred to the new middle or mid-channel of the river. § 246. Revolt followed by secession is a mode of losing territory to which no mode of acquisition corresponds.1 But as history teaches, it has frequently been a cause of loss of territory. Thus the Netherlands fell away from Spain in 1579, Belgium from the Netherlands in 1830, the United States of America from Great Britain in 1776, Brazil from Portugal in 1822, the former Spanish South American States from Spain in 1810, Greece from Turkey in 1830, Cuba from Spain in 1898, Panama from Colombia in 1903. The question at what time a loss of territory through revolt is consummated cannot be answered once for all, since no hard and fast rule can be laid down regarding the time when a State 1 The possible case where a province revolts, secedes from the mother country, and, after having successfully defended itself against the attempts of the latter to re conquer it, unites itself with the territory of another State, is a case of merger by cession of the whole territory. which has broken off from another can be said to have established itself safely and permanently.1 It may well happen that, although such a seceded State has already been recognised by a third Power, the mother country does not consider the territory to be lost, and succeeds in reconquering it. tion. § 247. Dereliction as a mode of losing territory corre- Derelicsponds to occupation as a mode of acquiring it. Dereliction frees a territory from the sovereignty of the present owner-State. It is effected through the ownerState completely abandoning territory with the intention of withdrawing from it for ever, thus relinquishing sovereignty over it. Just as occupation 2 requires, first, the actual taking into possession (corpus) of territory, and, secondly, the intention (animus) of acquiring sovereignty over it, so dereliction requires, first, actual abandonment of a territory, and, secondly, the intention of giving up sovereignty over it. Actual abandonment alone does not involve dereliction as long as it must be presumed that the owner has the will and ability to retake possession of the territory. Thus, for instance, if the rising of natives forces a State to withdraw from a territory, such territory is not derelict as long as the former possessor is able, and makes efforts, to retake possession. It is only when a territory is really derelict that any State may acquire it through occupation.3 History knows of several such cases. But very often, when such occupation of derelict territory occurs, the former owner protests, and tries to prevent the new occupier from acquiring it. The cases of the island of Santa Lucia and of Delagoa Bay may be quoted as illustrations: (a) In 1639 Santa Lucia, one of the Antilles Islands, 1 The matter has, as will be remembered, been treated above (§ 74), in connection with recognition, * See above, § 222. * See above, § 228. was occupied by England, but in the following year the English settlers were massacred by the natives. No attempt was made by England to retake the island, and France, considering it no man's land, took possession of it in 1650. In 1664 an English force under Lord Willoughby attacked the French, drove them into the mountains, and held the island until 1667, when the English withdrew, and the French returned from the mountains. No further step was made by England to retake the island, but she nevertheless asserted for many years to come that she had not abandoned it sine spe redeundi, and that, therefore, France in 1650 had no right to consider it no man's land. Finally, however, she resigned her claims by the Peace Treaty of Paris of 1763.1 (b) In 1823 England occupied, in consequence of a so-called cession from native chiefs, a piece of territory at Delagoa Bay, which Portugal claimed as part of the territory owned by her at the bay, maintaining that the chiefs concerned were rebels. The dispute was not settled until 1875, when the case was submitted to the arbitration of the President of France. The award was given in favour of Portugal, since the interruption of the Portuguese occupation in 1823 was not to be considered as abandonment of a territory over which Portugal had exercised sovereignty for nearly three hundred years.2 1 See Hall, § 34, and Moore, i. $ 89. 2 See Hall, § 34. The text of the award is printed in Moore, Arbitrations, v. p. 4984. CHAPTER II THE OPEN SEA I RISE OF THE FREEDOM OF THE OPEN SEA Grotius, ii. c. 2, § 3-Pufendorf, iv. c. 5, § 5-Vattel, i. §§ 279-286-Hall, § 40-Westlake, i. pp. 164-167-Phillimore, i. §§ 172-179-Taylor, §§ 242246-Walker, Science, pp. 163-171-Wheaton, §§ 186-187-Hershey, No. 202-Hartmann, § 64-Heffter, § 73-Stoerk in Holtzendorff, ii. pp. 483-492-Bonfils, Nos. 572-576 - Despagnet, No. 401-PradierFodéré, ii. Nos. 871-874-Nys, ii. pp. 171-177-Mérignhac, ii. pp. 498505-Calvo, i. §§ 347-352-Fiore, ii. Nos. 718-727-Martens, i. § 97Perels, § 4-Azuni, Diritto maritimo (1796), i. c. 1. Article 3-Reddie, Researches... in Maritime International Law, i. (1844), pp. 79111-Cauchy, Le Droit maritime international considéré dans ses Origines, 2 vols. (1862)-Nys, Les Origines du Droit international (1894), pp. 379387-Castel, Du Principe de la Liberté des Mers (1900), pp. 1-15—Fulton, The Sovereignty of the Seas (1911) pp. 1-56-Stier-Somlo, Die Freiheit der Meere und das Völkerrecht (1917), pp. 34-59. Claims to Sea. § 248. In antiquity and the first half of the Middle Former Ages, navigation on the open sea was free to everybody. Control According to Ulpianus,1 the sea is open to everybody by over the nature, and, according to Celsus, the sea, like the air, 2 is common to all mankind. Since no Law of Nations in the modern sense of the term existed during antiquity and the greater part of the Middle Ages, no importance is to be attached to the pronouncement of Antoninus Pius, Roman Emperor from 138 to 161 :'Being the Emperor of the world, I am consequently 1 1 L. 13, pr. D. viii. 4: mari quod natura omnibus patet. L. 3, D. xliii. 8: Maris com munem usum omnibus hominibus ut * L. 9, D. xiv. 2: ἐγὼ μὲν τοῦ the law of the sea.' Emperors of the old Nor is it of importance that the sidered to be the successors of the Roman Emperors, These claims were more or less successfully asserted for several hundreds of years. They were favoured by a number of different circumstances, such as for instance the maintenance of an effective protection against piracy; and numerous examples can be adduced which show that they were more or less recognised. Thus Frederick III., Emperor of Germany, had in 1478 to ask the permission of Venice for a transportation of corn from Apulia through the Adriatic Sea.1 Again, Great Britain, in the seventeenth century, compelled foreigners to take out an English licence for fishing in the North Sea; and when in 1636 the Dutch attempted to fish without such licence, they were attacked, and compelled to 1 See Walker, History, i. p. 163. |