in possession. While some authors deny this right, it is generally admitted in fact, and by most of the leading authorities acknowledged in theory.1

(f) When land areas in the neighborhood of the boundary of a state are changed, territory may be acquired by accretion. (1) Land formed by alluvium or other cause near the coast of a state is held to belong to that state. Lord Stowell, in 1805, held that mud islands formed by alluvium from the Mis

By accretion,

or change in

land areas near the boundary

of a state.

sissippi River should for international law purposes be held as part of the United States territory.2 In general, alluvium becomes the property of the state to which it attaches, following the Roman law.3 (2) Where a river is the boundary, the rule is well established that islands formed on either side of the deepest channel belong to the state upon that side of the channel; an island formed mid-stream is divided by the old channel line. (3) When a river's channel is suddenly changed so as to be entirely within the territory of either state, the boundary line remains as before in the old channel. So also the boundary line of territory is not changed, even if the bed of a lake be changed.4

49. Qualified Territorial Jurisdiction

Two degrees of qualified territorial jurisdiction are exercised in the protectorate and the sphere of influence.

(a) The protecting state usually acquires the jurisdiction over all external affairs of the protected community, often including territorial waters, and assumes the direction of its international relations. A measure of jurisdiction of those in ternal affairs which may lead to international complications

3 "Institutes," II, 1, 20

1 See discussion in Hall, note 1, p. 120. The "Anna," 5 C. Rob., 373; Scott, 684. Cooley v. Golden, 52 Mo. App. 52; Scott, 129; Missouri v. Nebraska 196 U. S. 23; Nebraska v. Missouri, 197 U. S. 577,

In protectorates.

is also generally assumed by the protecting state, e.g. treatment of foreigners in the protected territory, relations of protected subjects in foreign countries, use of flag, etc. The conditions of protected states vary greatly, hardly the same description holding for any two. It may be safe to say that (1) the protecting state cannot be held responsible for the establishment of any particular form of government; (2) a reasonable degree of security and justice must be maintained. As to what constitutes a “reasonable degree,” the circumstances of each case must determine; then the protecting state is bound to afford such justice and security and (3) must be able to exercise within the protected area such powers as are necessary to meet its responsibilities.

In a sphere of influence.

(b) The term "sphere of influence" has been used since the Berlin Conference, 1884-1885, to indicate a sort of attenuated protectorate in which the aim is to secure the rights without the obligations. First applied to Africa in the partition of the unexplored interior among the European powers-Great Britain, Germany, France, Italy, Portugal-it has since been extended to other regions. This doctrine of mutual exclusion of each from the "spheres" of all the others cannot be held to bind any states not party to the agreement.

The method of exercise of "influence," while varying, usually consists in making with the native chiefs treaties which convey privileges other than the cession of sovereignty. These privileges are often commercial, and may be with the state direct or agreements with some company to whom the state has delegated a portion of its authority, as in the African trade companies.

The "spheres of influence," gradually with the growth of power of the influencing state and the necessity of protecting the "sphere," against other states, become less vague in

their relations to the influencing state and merge into protectorates or some other more stable condition.

This "sphere of influence" idea, as well as the "Hinterland Doctrine," can be of only temporary importance, owing to the limited area still open to occupation. It is maintained that within the "sphere" the influencing state has jurisdiction to the exclusion of another state, and that it has a right to occupy the territory later, if advisable. The influencing state disclaims all obligations possible.1

50. Maritime and Fluvial Jurisdiction

Wheaton states as a general principle of maritime and fluvial jurisdiction: "Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss or inconvenience to the proprietor." 2 "2 While the tendency of international policy is toward unrestricted freedom of river navigation, yet the principle as enunciated by Wheaton cannot be said to be established in practice. The American and Continental writers have generally favored the principle enunciated by Wheaton. English writers have contended against this position as a right, but admit that the principle is becoming established by numerous treaties and conventions. As to the sea, the principle may be said to be established.

51. Jurisdiction of Rivers

The jurisdiction of rivers is a question which is not identical with the right of navigation of rivers, and may best be considered apart. The question of jurisdiction is one of general international principle, while the question of river

1See Lawrence, 153, 161, 164–167; Reinsch, "World Politics," pp. 60, 113, 184. Wheat. D., § 193, p. 274.

navigation is, in many instances, one of particular provision.

The rivers fall under three classes:

1. Rivers which traverse only one state.

2. Rivers which traverse two or more states.

3. Rivers upon the opposite banks of which different states have jurisdiction.

Rivers which

(a) Rivers which traverse only one state are exclusively within the jurisdiction of that state. This traverse only jurisdiction may extend even to the forbidding of the use of a river to other states, and justifies the state in prescribing such regulations for its use as it may deem fit.

one state.

Rivers which

traverse two

(b) Rivers flowing through two or more states are for those parts within the boundaries of each state under its jurisdiction for the purposes of police, tolls, and general regulations. The right of absolute exor more states. clusion of the co-riparian states by any one of the states through which a river flows has been the subject of much discussion, and authorities of great weight can be found upholding either side.

Rivers with

under jurisdiction of two

(c) When two states have jurisdiction upon opposite banks of a river, the jurisdiction of each state extends to the middle of the main channel or thalweg. Before the opposite banks Treaty of Luneville (Art. VI), 1801, it had been common to consider the limit of jurisdiction of the two states the middle of the river, a line much more difficult to determine, and more changeable than the channel line. The thalweg has been frequently confirmed as the accepted boundary where no conventions to the contrary existed.1

different states.

'Ed. Engelhardt, "Du régime conventionnel des fleuves internationaux,” Ch. II.; Scott, 129; 1 Moore, § 128.

52. The Navigation of Rivers

The laws of jurisdiction of rivers are generally accepted. The early idea that there was a natural right of navigation, and innocent passage received less support during the nineteenth century than formerly. The history of river navigation during the nineteenth century, as shown in the discussions between the representatives of various nations, and in the treaties and conventions agreed upon, as well as in treaties and declarations voluntarily made in regard to navigation of rivers, seems to furnish general rules:

(a) 1. That international law gives to other states no right of navigation of rivers wholly within the jurisdiction of another state.

General rules for river navigation.

2. That when a river forms the boundary of two or more states it is open to the navigation

of each of the states.

3. That when a river passes through two or more states, international law gives no right to one of the states to pass through the part of the river in the other state or states. There is a strong moral obligation resting upon the states below to allow freedom of navigation through the river to the states upon the upper course of the river. The right of innocent use, innocent passage, freedom of river navigation, has been maintained on various grounds and in various forms, by many authorities.1 Those who take a position opposed to this claim assert that the navigation of rivers is, and properly should be, to avoid more serious complications, a matter of convention.

(b) In fact, since the French Revolution, the subject has so frequently been a matter of convention 2 as to establish the

1 Grotius, II, ii, 12-14; Pufendorf, III, 3, 4; Vattel, §§ 104, 126-130, 132-134; Bluntschli, § 314; Calvo, §§ 259, 290-291; Fiore, §§ 758, 768; Carnazza-Amari, "Traité," § 2, Ch. VII, 17; Heffter, § 77; Wheat. D., § 193. Wheat. D., §§ 197-204; 1 Moore, § 129; Pradier-Fodéré, "Traité," §§ 727-755.