International Law. A Treatise Volume I Part 45

-- 287_a_. To secure radio-telegraphic[587] communication between s.h.i.+ps of all nations at sea and the continents, a Conference met at Berlin in 1906, where Great Britain, Germany, the United States of America, Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Chili, Denmark, Spain, France, Greece, Italy, j.a.pan, Mexico, Monaco, Norway, Holland, Persia, Portugal, Roumania, Russia, Sweden, Turkey, and Uruguay were represented, and where was signed on November 3, 1906, the International Radio-telegraphic Convention.[588] This Convention, which consists of twenty-three articles, is accompanied by a Final Protocol, comprising six important articles, and by Service Regulations, embodying fifty-two articles. The more important stipulations of the Convention are the following:--Coast Stations and s.h.i.+ps are bound to exchange radio-telegrams reciprocally without regard to the particular system of radio-telegraphy adopted by them (article 3). Each of the contracting parties undertakes to cause its coast stations to be connected with the telegraph system by means of special wires, or at least to take such other measures as will ensure an expeditious exchange of traffic between the coast stations and the telegraph system (article 5). Radio-telegraph stations are bound to accept with absolute priority calls of distress from s.h.i.+ps, to answer such calls with similar priority, and to take the necessary steps with regard to them (article 9). An International Bureau shall be established with the duty of collecting, arranging, and publis.h.i.+ng information of every kind concerning radio-telegraphy, and for some other purposes mentioned in article 13.

[Footnote 587: See above, -- 173, and below, ---- 464 and 582, No. 4.]

[Footnote 588: See Martens, N.R.G. 3rd Ser. III. (1910), p. 147. But not all the signatory Powers have as yet ratified the Convention, ratification having been given hitherto only by Great Britain, Austria-Hungary, Belgium, Brazil, Bulgaria, Denmark, France, Germany, j.a.pan, Mexico, Monaco, Holland, Norway, Portugal, Roumania, Russia, Spain, Sweden and Turkey; and Tunis acceded to it. Italy has reserved ratification on account of her relations with the Marconi Wireless Telegraphy Co.]

[Sidenote: Radio-telegraphy between s.h.i.+ps at sea.]

-- 287_b_. To secure radio-telegraphic communication between such s.h.i.+ps at sea as possess installations for wireless telegraphy, an Additional Convention[589] to that mentioned above in -- 287_a_ was signed on November 3, 1906, by all the Powers who signed the forementioned Convention except by Great Britain, Italy, j.a.pan, Mexico, Persia, and Portugal. According to this additional Convention all s.h.i.+ps at sea which possess radio-telegraphic installations are compelled to exchange radio-telegrams reciprocally at all times without regard to the particular system of radio-telegraphy adopted.

[Footnote 589: See Martens, N.R.G. 3rd Ser. III. (1910), p. 158. But this Convention likewise has not yet been ratified by all the signatory Powers.]

It is to be hoped that in time all the Powers will accede to this Additional Convention, for its stipulation is of great importance in cases of s.h.i.+pwreck. If s.h.i.+ps at sea can refuse to exchange radio-telegrams, it is impossible for them to render one another a.s.sistance. It ought not to be possible for the following case[590] to occur, to which attention was drawn at the Berlin Conference by the delegate of the United States of America:--The American steamer _Lebanon_ had received orders to search the Atlantic for a wrecked vessel which offered great danger to navigation. The _Lebanon_ came within communicating reach of the liner _Vaderland_, and inquired by wireless telegraphy whether the _Vaderland_ had seen the wreck. The _Vaderland_ refused to reply to this question, on the ground that she was not permitted to enter into communication with a s.h.i.+p provided with a wireless apparatus other than the Marconi.

[Footnote 590: See Hazeltine, "The Law of the Air" (1911), p. 101.]

IX

THE SUBSOIL BENEATH THE SEA BED

[Sidenote: Five rules concerning the subsoil beneath the Sea Bed.]

-- 287_c_. The subsoil beneath the bed of the Open Sea requires special consideration on account of coal or other mines, tunnels, and the like, for the question is whether such buildings can be driven into that subsoil at all, and, if this can be done, whether they can be under the territorial supremacy of a particular State. The answer depends entirely upon the character in law of such subsoil. If the rules concerning the territorial subsoil[591] would have a.n.a.logously to be applied to the subsoil beneath the bed of the Open Sea, all rules concerning the Open Sea would necessarily have to be applied to the subsoil beneath its bed, and no part of this subsoil could ever come under the territorial supremacy of any State. It is, however, submitted[592] that it would not be rational to consider the subsoil beneath the bed of the Open Sea an inseparable appurtenance of the latter, such as the subsoil beneath the territorial land and water is. The rationale of the Open Sea being free and for ever excluded from occupation on the part of any State is that it is an international highway which connects distant lands and thereby secures freedom of communication, and especially of commerce, between such States as are separated by the sea.[593] There is no reason whatever for extending this freedom of the Open Sea to the subsoil beneath its bed. On the contrary, there are practical reasons--taking into consideration the building of mines, tunnels, and the like--which compel the recognition of the fact that this subsoil can be acquired through occupation. The following five rules recommend themselves concerning this subject:--

[Footnote 591: See above, ---- 173, 175.]

[Footnote 592: See Oppenheim in Z.V. II. (1908), p. 11.]

[Footnote 593: See above, -- 259.]

(1) The subsoil beneath the bed of the Open Sea is no man's land, and it can be acquired on the part of a littoral State through occupation, starting from the subsoil beneath the bed of the territorial maritime belt.

(2) This occupation takes place _ipso facto_ by a tunnel or a mine being driven from the sh.o.r.e through the subsoil of the maritime belt into the subsoil of the Open Sea.

(3) This occupation of the subsoil of the Open Sea can be extended up to the boundary line of the subsoil of the territorial maritime belt of another State, for no State has an exclusive claim to occupy such part of the subsoil of the Open Sea as is adjacent to the subsoil of its territorial maritime belt.

(4) An occupation of the subsoil beneath the bed of the Open Sea for a purpose which would endanger the freedom of the Open Sea is inadmissible.

(5) It is likewise inadmissible to make such arrangements in a part of the subsoil beneath the Open Sea which has previously been occupied for a legitimate purpose as would indirectly endanger the freedom of the Open Sea.

If these five rules are correct, there is nothing in the way of coal and other mines which are being exploited on the sh.o.r.e of a littoral State being extended into the subsoil beneath the Open Sea up to the boundary line of the subsoil beneath the territorial maritime belt of another State. Further, a tunnel which might be built between such two parts of the same State--for instance, between Ireland and Scotland--as are separated by the Open Sea would fall entirely under the territorial supremacy of the State concerned. On the other hand, for a tunnel between two different States separated by the Open Sea special arrangements by treaty would have to be made concerning the territorial supremacy over that part of the tunnel which runs under the bed of the Open Sea.

[Sidenote: The proposed Channel Tunnel.]

-- 287_d_. Since there is as yet no submarine tunnel in existence, it is of interest to give some details concerning the project of a Channel Tunnel[594] between Dover and Calais, and the preliminary arrangements between France and England concerning it. Already some years before the Franco-German War the possibility of such a tunnel was discussed, but it was not until 1874 that the first preliminary steps were taken. The subsoil of the Channel was geologically explored, plans were worked out, and a shaft of more than a mile long was tentatively bored from the English sh.o.r.e. And in 1876 an International Commission, appointed by the English and French Governments, and comprising three French and three English members, made a report on the construction and working of the proposed tunnel.[595] The report enclosed a memorandum, recommended by the Commissioners to be adopted as the basis of a treaty between Great Britain and France concerning the tunnel, the juridically important articles of which are the following:--

[Footnote 594: See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G.

XV. (1908), pp. 50-77; and Liszt, -- 26.]

[Footnote 595: See Parliamentary Papers, C. 1576, Report of the Commissioners for the Channel Tunnel and Railway, 1876.]

(Article 1) The boundary between England and France in the tunnel shall be half-way between low-water mark (above the tunnel) on the coast of England, and low-water mark (above the tunnel) on the coast of France.

The said boundary shall be ascertained and marked out under the direction of the International Commission to be appointed, as mentioned in article 4, before the Submarine Railway is opened for public traffic.

The definition of boundary provided for by this article shall have reference to the tunnel and Submarine Railway only, and shall not in any way affect any question of the nationality of, or any rights of navigation, fis.h.i.+ng, anchoring, or other rights in, the sea above the tunnel, or elsewhere than in the tunnel itself.

(Article 4) There shall be const.i.tuted an International Commission to consist of six members, three of whom shall be nominated by the British Government and three by the French Government....

The International Commission shall ... submit to the two Governments its proposals for Supplementary Conventions with respect--(_a_) to the apprehension and trial of alleged criminals for offences committed in the tunnel or in trains which have pa.s.sed through it, and the summoning of witnesses; (_b_) to customs, police, and postal arrangements, and other matters which it may be found convenient so to deal with.

(Article 15) Each Government shall have the right to suspend the working of the Submarine Railway and the pa.s.sage through the tunnel whenever such Government shall, in the interest of its own country, think necessary to do so. And each Government shall have power, to be exercised if and when such Government may deem it necessary, to damage or destroy[596] the works of the tunnel or Submarine Railway, or any part of them, in the territory of such Government, and also to flood the tunnel with water.

[Footnote 596: This stipulation was proposed in the interest of defence in time of war. As regards the position of a Channel Tunnel in time of war, see Oppenheim in Z.V. II. (1908), pp. 13-16.]

In spite of this elaborate preparation the project could not be realised, since public opinion in England was for political reasons opposed to it. And although several times since--in 1880, 1884, 1888, and 1908--steps were again taken in favour of the proposed tunnel, public opinion in England remained hostile and the project has had for the time to be abandoned. It is, however, to be hoped and expected that ultimately the tunnel will be built when the political conditions which are now standing in the way of its realisation have undergone a change.

CHAPTER III

INDIVIDUALS

I

POSITION OF INDIVIDUALS IN INTERNATIONAL LAW

Lawrence, -- 42--Taylor, -- 171--Heffter, -- 58--Stoerk in Holtzendorff, II. pp. 585-592--Gareis, -- 53--Liszt, ---- 5 and 11--Ullmann, -- 107--Bonfils, Nos. 397-409--Despagnet, No.

328--Merignhac, II. pp. 169-172--Pradier-Fodere, I. Nos.

43-49--Fiore, II. Nos. 568-712--Martens, I. ---- 85-86--Jellinek, "System der subjectiven offentlichen Rechte" (1892), pp.

310-314--Heilborn, "System," pp. 58-138--Kaufmann, "Die Rechtskraft des Internationalen Rechtes" (1899)--Buonvino, "Diritto e personalita giuridica intern.a.z.ionale" (1910)--Rehm and Adler in Z.V. II. (1908), pp. 53-55 and 614-618--Kohler in Z.V.

III. (1909), pp. 209-230--Diena in R.G. XVI. (1909), pp. 57-76.

[Sidenote: Importance of Individuals to the Law of Nations.]

-- 288. The importance of individuals to the Law of Nations is just as great as that of territory, for individuals are the personal basis of every State. Just as a State cannot exist without a territory, so it cannot exist without a mult.i.tude of individuals who are its subjects and who, as a body, form the people or the nation. The individuals belonging to a State can and do come in various ways in contact with foreign States in time of peace as well as of war. The Law of Nations is therefore compelled to provide certain rules regarding individuals.

[Sidenote: Individuals never Subjects of the Law of Nations.]

-- 289. Now, what is the position of individuals in International Law according to these rules? Since the Law of Nations is a law between States only and exclusively, States only and exclusively[597] are subjects of the Law of Nations. How is it, then, that, although individuals are not subjects of the Law of Nations, they have certain rights and duties in conformity with or according to International Law?

Have not monarchs and other heads of States, diplomatic envoys, and even simple citizens certain rights according to the Law of Nations whilst on foreign territory? If we look more closely into these rights, it becomes quite obvious that they are not given to the favoured individual by the Law of Nations directly. For how could International Law, which is a law between States, give rights to individuals concerning their relations to a State? What the Law of Nations really does concerning individuals, is to impose the duty upon all the members of the Family of Nations to grant certain privileges to such foreign heads of States and diplomatic envoys, and certain rights to such foreign citizens as are on their territory. And, corresponding to this duty, every State has by the Law of Nations a right to demand that its head, its diplomatic envoys, and its simple citizens be granted certain rights by foreign States when on their territory. Foreign States granting these rights to foreign individuals do this by their Munic.i.p.al Laws, and these rights are, therefore, not international rights, but rights derived from Munic.i.p.al Laws. International Law is indeed the background of these rights in so far as the duty to grant them is imposed upon the single States by International Law. It is therefore quite correct to say that the individuals have these rights in conformity with or according to International Law, if it is only remembered that these rights would not exist had the single States not created them by their Munic.i.p.al Law.

[Footnote 597: See above, ---- 13 and 63.]

And the same is valid as regards special rights of individuals in foreign countries according to special international treaties between two or more Powers. Although such treaties mostly speak of rights which individuals shall have as derived from the treaties themselves, this is nothing more than an inaccuracy of language. In fact, such treaties do not create these rights, but they impose the duty upon the contracting States of calling these rights into existence by their Munic.i.p.al Laws.[598]

[Footnote 598: The whole matter is treated with great lucidity by Jellinek, "System der subjectiven offentlichen Rechte" (1892), pp.