CHAP. XIV Lease of the Panama Canal Zone its readiness to surrender under suitable conditions the lease of Wei-hai-wei, while France repeated an earlier declaration of its readiness to surrender the lease of Kwang-chau-wan pari passu with the surrender of the leases held by the other powers.1 The term "lease" is not mentioned in the treaty of 1903 by which (Article II) "the Republic of Panama grants to the United States in perpetuity the use, occupation and control" of the zone of land and adjacent territory for the construction of an interoceanic canal. Technically, Panama retained sovereignty over the territory, although it was expressly provided that the United States should be allowed to exercise over the territory "all the rights, power, and authority" which it would possess if it were sovereign. In compensation for the rights acquired, the United States agreed to make both a cash payment and a smaller annual payment during the life of the convention.2 The lease of Guantánamo and Bahia Honda from Cuba presented fewer administrative complications. The treaty of 1903 defining the relations between the United States and Cuba provided (Article VII) that, in order to enable the United States to maintain the independence of Cuba and to protect the people of the island, as well as to further the island's own defense, Cuba should sell or lease to the United States lands necessary for coaling or naval stations. The lease of the two areas was thereupon effected by means of an executive agreement defining the territory leased, followed by a second agreement fixing the conditions of the lease.3 1 Willoughby, China at the Conference, Chap. XIV. 2 Malloy, Treaties, II, 1349. 3 3 Ibid., I, 362, 358, 360. CHAPTER XV JURISDICTION OVER TERRITORY: NATIONAL BOUNDARIES of the The extent of a state's territorial domain is determined by a. Sources definite boundary lines, which mark at once the limits of the prop- law erty rights of the state and of its jurisdiction over persons. In the determination of these boundary lines, as in the case of the acquisition of title to the territory itself, international law has drawn heavily upon the jus gentium of the Roman law. So closely did the analogy between states as corporate persons and the individual citizens of the state seem to the early writers to hold, that wherever there was doubt as to a particular boundary line they did not hesitate to decide the case according to the time-honored principles of the civil law. The comparison between the two legal systems is instructive; but here, as elsewhere, it is the practice of states that must determine the actual law in force between them.1 It should be noted, however, that neither in municipal nor in international law have boundary lines been fixed upon any general principle of the common welfare of the group as opposed to the personal interests of the individual owner. In municipal law the disadvantages of the late comer as against the first comer, of the landless as against the landed interests, are largely offset by the highways of common property which everywhere intersect private property; whereas in international law boundaries have a distinct strategic value for political and economic purposes. These latter aspects of boundary lines will appear more clearly if discussed in connection with easements and servitudes. For the moment only the technical aspects will be presented. The existing boundary lines of European states have been b. Determidetermined for the most part by definite international conventions. Many of these conventions have been in the form of treaties of The civil law, like the English and American common law, may properly be resorted to as a test of the intrinsic value of the rules of international law, due allowance being made for the differences in the subjects to which the law is applied. The danger of such comparisons has been the tendency of the older writers to draw inferences from the one law to supply the deficiencies of the other, and thereupon to proclaim such inferences as rules of international law. See above, p. 51. nation of boundary lines CHAP. XV "Natural" and artificial boundaries peace following wars of conquest, or wars with disputed territory as their object; others have been in the form of voluntary agreements by which an amicable settlement of boundaries has been brought about. Since 1648 the map of Europe has been redrawn many times, whether by such general treaties as those of Westphalia in 1648, Vienna in 1815, or Paris in 1919, or by more restricted agreements between smaller groups of states. In many instances these conventional agreements merely confirm old lines fixed by prescription which, as was observed in connection with the occupation of territory, is the original ground of title. Other European boundaries are purely prescriptive, and it would be difficult to find the international document, if any, in which they were originally laid out. The boundary lines of the Western hemisphere have been determined partly by prescription at the time of the occupation of the territory by the colonizing states of Europe, and partly by conventions entered into at the time of the establishment of the independence of former colonies, or by subsequent treaties of cession. The boundaries of Africa are almost wholly conventional, following earlier prescriptive titles; those of Asia are partly conventional and partly prescriptive. It is common for writers to distinguish between natural and artificial boundaries, the former consisting of mountains, rivers, etc., while the latter consist of the geographic lines of longtitude and latitude. The distinction is, however, apt to be misleading, since it suggests that qualities which really belong to the mere surveyor's lines of demarcation are to be attributed to boundaries. as political lines of separation. The regional movements of civilization have not in fact conformed themselves in all cases to the physical contour of nature. As an abstract proposition it may well be questioned, for example, whether rivers are a "natural" boundary line, since they separate by political barriers groups which by the laws of economic life are "naturally" drawn together. Care should be taken, moreover, to test both by positive law and by constructive politics other misleading senses in which the term "natural boundaries" is used. Mountains which have a strategic value for purposes of defense have been called, as in the case of the Tyrolese. Alps, a "natural" frontier, although it may happen that in accepting them as a conventional boundary, as was done by the Treaty of St.-Germain in 1919, violence is done to those other frontiers, also said to be "natural," which include members of the same race and language. If by "natural" should be meant "desirable from XV an economic or social point of view," many of the present bound- CHAP. aries of states are admittedly unnatural, whatever natural landmarks there may be to designate them.1 water as a In the technical delimitation of boundary lines certain rules c. The have been worked out which may be regarded as the prescriptive divide or customary law of the subject holding good in the absence of boundary treaty stipulations. When a range of hills forms the boundary, the water divide or watershed constitutes the frontier line. This line, in undefined form, is frequently provided for in treaties, leaving to boundary commissions the more exact survey. The chief difficulty in the delimitation of such boundaries has arisen from the fact that the water divide is sometimes not identical with the highest crest of the range. This issue arose, for example, in connection with the Northeastern Boundary Dispute between the United States and Great Britain,2 and more recently between Chile and the Argentine Republic in connection with the watershed of the Andes.3 As a matter of geographic convenience, and in certain cases because of their strategic value as natural barriers, rivers have frequently been incorporated into the boundary lines of states. In the delimitation of the dividing line formed by a boundary river, the older rule laid down by Grotius and indorsed by Vattel was that the line followed the middle of the stream. This rule came to be modified at the beginning of the nineteenth century by substituting in the case of navigable rivers the middle of the main channel or strongest current down-stream, technically known as the "thalweg. The advantages of the latter rule were that the boundary line followed more closely the chief thoroughfare of commerce, and was at the same time less subject to change than the middle line between bank and bank. In the various boundary treaties of the United States involving rivers the terms used to describe the boundary have not been uniform, and several international disputes have arisen in consequence. The treaty of 1783 with Great Britain referred to the "middle" of boundary rivers;5 the treaty of 1795 1 For a discussion of boundary lines from the point of view of a "practical" delimitation as opposed to sociological theories, see Holdich, Political Fron tiers and Boundary Making, Chap. II. For an opposing view, see Lyde, Some Frontiers of To-morrow, Chap. II. 'See Moore, Arbitrations, I, 65-161. Ibid., V, 4854 ff. The derivation of this term is discussed by Westlake, Int. Law, 2nd ed., I, 144. 'Art. II, Malloy, Treaties, I, 586. d. Rivers as boundaries: the thalweg L CHAP. XV Effect of erosion and avulsion 1 with Spain to the "middle" of one river and to the "middle of the channel" of another; while in other treaties it is provided that the boundary shall follow the "middle of the main channel" or, in the more recent treaty of 1908 with Great Britain, "the center of the main channel or thalweg." 2 The gradual shifting of the thalweg from one side to the other by reason of imperceptible erosion or accretion of the banks of the river has, as a general rule, the effect of changing the boundary to a corresponding degree. If, however, the river should, by the process known as "avulsion," suddenly become diverted from its regular channel, the boundary line remains where it was before the change. This general rule presented technical difficulties in the settlement of the dispute between the United States and Mexico in connection with the boundaries of the Rio Grande and the Rio Colorado. A boundary convention of 1884 had made provision for the shifting of the mid-channel, because of slow erosion, without abandonment of the river-bed. The international commission appointed under the Chamizal Arbitration Convention of 1910 held that even rapid and obvious erosion should not affect the boundary where the old bed had not been abandoned. In some European treaties an effort has been made to give a greater degree of stability to river boundary lines by locating the thalweg definitely by means of fixed points which were to constitute permanent landmarks for the future. In the Treaty of Versailles of 1919 provision was made that the principal channel of navigable rivers should be the dividing line; but it was further provided that it should be left to the several boundary commissioners appointed by the treaty to determine whether the boundary line should follow subsequent changes of the channel or should be definitely fixed by the position of the channel at the time. (Art. 30).* 3 1 Arts. II, IV. Ibid., II, 1640. 2 Art. II. Ibid., I, 815. For the text of the convention, see Charles, Treaties, 91. For the award, see Am. Journal, V (1911), 785, and editorial comment, 709. It may be noted that the United States refused to accept the award, and that the question remains unsettled. The student will find a wealth of illustrative material in the numerous boundary disputes between the several States of the United States. In such cases the federal Supreme Court, having obligatory jurisdiction over the parties, has attempted to apply the principles of international law to the relations of the members of the federal union. While the decisions rendered are not precedents for the establishment of a rule of international law, since the parties involved are not technically states and the law applied is constitutional law, nevertheless they are valuable practical applications of rules deemed by |