And except as otherwise provided in the three following articles, all other divisible rights and obligations must be so apportioned that each portion of the divided nation shall have that share which it would have had without the division; and, until such apportionment, the whole of such rights and obligations adhere to each portion in common with the other portion or portions. See 1 Phill. Int. Law, 157; Halleck, 78; 1 Kent's Com., 25, 26; Terret v. Taylor, 9 Cranch's U. S. Supreme Ct. Reports, 50; Bluntschli, § 49. Apportionment of property. 25. Where a nation is, from any cause, divided into two or more, its property is to be apportioned as follows, unless otherwise agreed: 1. Immovables, appropriated to public use, such as public buildings and establishments, and charitable and religious houses, pass to the portion of the nation holding the territory in which they are situated; and such portion is not bound to make compensation to the other therefor, except where the property served the uses of the population of the other, and they incur new expenses to supply its loss. 2. Ships of war, arms, equipments and munitions, military and naval, must be divided in proportion to the population. 3. Public lands, other than those provided for by subdivision 1 of this article, the public funds, and in general, such national property as serves only indirectly the objects of public utility, form a common fund, which must be divided in proportion to the population, with this qualification, that immovables must always be appropriated to the portion in whose territory they are situated, and their value considered in the partition. See Bluntschli, §§ 56–58. Apportionment of debts. 26. Where a nation is, from any cause, divided into two or more, each portion has the right to have the debts of the original nation provided for from the prop erty of the original nation; and debts not so provided for must be apportioned in proportion to the revenues raised in the different portions of the territory. Bluntschli (59) makes the debts secured by mortgage or hypothecation of immovables rest on that portion of the nation which takes the immovables. We suggest, as a fairer rule, that the common debts be first provided for out of the common property. 66 CHAPTER IV. TERRITORY. ARTICLE 27. "Territory" defined. 29. Adjacent islands. 30. Boundary by a stream or channel. 31, 32. Boundary by inland lakes, &c. 33. Wilderness. 34. Power to determine boundaries. 35. Exception. 36. Injuring boundaries, marks or monuments. 37. Less of territory, and acquisition of territory. 38. Acquisition by occupation. 39, 40. Extent of occupancy. 41-43. Accretion. 44. Reclaiming land washed away. 45. Ownership of islands. 46. Changes of stream. 47. Transfer or cession. Territory" defined. 27. The territory of a nation is the land and water which it possesses, or has a present right to possess, as defined and limited by actual and peaceful occupation, by special compact, or by the provisions of this Code. Territory is here used in the sense of sovereignty and jurisdiction, and not in the sense of property; and therefore it is limited by occupation. Ortolan (Régles Int. et Dipl. de la Mer,) distinguishes between: (1.) Ports and Roadsteads; (2.) Gulfs and Bays; (3.) Straits and closed Seas; (mers esclaves ;) and (4.) Parts of the Sea adjacent to the coasts within a certain distance. In respect of the first, he says a nation has a right of property, and may declare them closed, treating, however, all nations alike. The same rule he applies also to gulfs, &c., the mouths of which are not more than double cannon-shot across, or are protected by forts or islands. But this principle seems to extend to the waters bordering the coast; and no distinction is therefore recognized in the above article and article 51. During the Franco-Prussian war, (1870,) the American government objected to the hovering of armed vessels off the coast, awaiting the exit from American ports of merchant vessels of the enemy. The quasi-territorial jurisdiction over land and water within the lines of an army or fleet, beyond the ordinary territorial limits, is provided for in Title VIII., on NATIONAL JURISDICTION. Boundary by the sea. 28. The limits of national territory, bounded by the sea, extend to the distance of three marine leagues' outward from the line of low-water mark; and where bays, straits, sounds, or arms of the sea,' are inclosed by headlands not more than six leagues apart,' such limits extend three leagues outward from a line drawn between the two headlands. Inasmuch as cannon shot can now be sent more than two leagues, it seems desirable to extend the territorial limits of nations accordingly. The ground of the rule is, the margin of the sea within reach of the land forces, or from which the land can be assailed. Mahler v. Transportation Company, 35 New York Rep., 352; Lawrence's Wheaton, p. 320; Vattel's Law of Nations, 130; Hautefeuille, Droit des Nations Neutres, (2nd ed.,) 89. See Church v. Hubbart, 2 Cranch U.S. Sup. Ct. Rep., 187, 235. Bluntschli (§ 303) says that where the sea boundaries of adjacent nations overlie each other, each nation is bound to respect the sovereignty of the other on the common area; but such cases will be provided for by articles 30, 31 and 32. It is believed that no definite rule has heretofore been laid down on this point. See Halleck's Int. Law, p. 132; Lawrence's Wheaton, p. 322. The distance between the headlands of Delaware Bay is about fifteen miles. Adjacent islands. 29. Islands in the sea, beyond the distance specified in the last article, are presumed to be part of the territory of the nation possessing the adjacent main land. Halleck, p. 131, § 15. The limit of distance seems to be necessarily indefinite. Islands newly formed by accretion are provided for by articles 41 and 45. Boundary by a stream or channel. 30. The limits of national territory, bounded by a river, or other stream, or by a strait, sound, or arm of the sea, the other shore of which is the territory of another nation, extend outward to a point equidistant from the territory of the nation occupying the opposite shore; or if there be a stream or navigable channel, to the thread of the stream, that is to say, to the midchannel; or, if there be several channels, to the middle of the principal one. "Thalweg." Bluntschli, § 298. French treaties. The The right to the use of the whole river or bay, for navigation, &c., is nevertheless an easement or servitude common to both nations. Fame, 3 Mason's U. S. Circuit Ct. Reports, 147. Boundary by inland lake, &c. 31. The limits of national territory, bounded by a lake, or other inland water, not being a stream, extend outward to a straight line drawn from the points at which such territory touches the land of other nations on the shore, at low-water mark; except where such line would fall within less than three marine leagues of the shore of another nation. The same. 32. Where the line mentioned in the last article would fall within less than three marine leagues of the shore of another nation, at low-water mark, it must so deflect as to run that distance from such shore, unless the distance between the opposite shores is less than six marine leagues, in which case the boundary line runs equidistant from the two shores. Wilderness. 33. Where two nations have settled upon the same continent without intervening settlements, and no large stream or body of water, or range of mountains intervenes between their settlements, the boundary between them is presumed to be equidistant from the nearest settlements; but, where there is such water or mountain range, the one which is most nearly equidistant from such settlements is presumed to be the boundary. 1 Phill. Intern. Law, 251–254. See Bluntschli, § 297. Power to determine boundaries. 34. Coterminous nations have jurisdiction jointly to determine and establish the boundaries between their respective territories; and it is their duty to do so, and to mark the same clearly.' 1 Poole v. Fleeger, 11 Peters' U. S. Sup. Ct. Rep., 185; Latimer v. Poteet, 14 Id., 4. * Bluntschli, § 296. Exception. 35. The foregoing provisions as to boundaries do not apply where the boundary is otherwise defined by special compact.' 1 A boundary agreed upon by the collectors of revenue cannot be regarded as valid. The Fame, 3 Mason's U. S. Circt. Ct. Rep., 147. Injuring boundaries, marks, or monuments. 36. Willfully removing, concealing, injuring or falsifying any monument, mark or sign, made or adopted by the concurrence of two or more nations for indicating a boundary between them, is a public offense. The regulations between France and the Grand Duchy of Luxembourg, Oct. 15, 1853, for preservation of boundary marks, (6 De Clercq, 386, Art. XI.,) provides that, offenders are to be prosecuted and judged according to the law of the State in which they are found; and that, for this purpose, proceedings had in either State shall, as far as necessary, have equally "foi en justice" in the other. Loss of territory, and acquisition of territory. 37. A nation may lose territory : 1. By abandonment; 2. By destruction; 3. By transfer; or, 4. By conquest. A nation may acquire territory: 1. By occupation; 2. By accession; 3. By transfer; or, 4. By conquest. |