The Elements of Politics

Henry Sidgwick

Chapter XV


§4. The distinction between offences against government and offences against individuals assumes special importance, and raises some special difficulties, when we pass to consider the international right of a community to its land. The modern nation, as we have seen, is inseparably connected with its territory---the very idea of a modern State involves the notion of dominion exercised over a certain portion of the earth's surface. Such dominion is of course distinguishable from private ownership so far as this extends; but it is so far analogous to private ownership from an international point of view, that it is commonly assumed to imply a right of exclusive use for members of the State exercising the dominion, even as regards portions of land which are kept common in use and management. But it must be observed that governmental ownership or dominion may reasonably be extended over parts of the earth's surface where there would be no reason for allowing the right of exclusive use: since the rationale of the two rights is essentially different, from the point of view of humanity at large. The main justification for the appropriation of land to the exclusive use, either of individuals or of groups of human beings, is that its full advantages as an instrument of production cannot otherwise be utilised; the main justification for the appropriation of territory to governments is that the prevention of mutual mischief among the human beings using it cannot otherwise be adequately secured. Thus, when piracy was a common danger of grave importance in the later mediæval and early modern period of European history, any State that kept the peace of the neighbouring seas by putting down pirates, rendered an important service to traders generally; in return for which it might reasonably claim to exercise governmental control over these seas, and to levy tolls and dues to recompense it for the trouble and cost to which it was put. But the claim that some States put forward to close the seas so controlled by them against foreigners could not thus be justified: against this claim the argument of Grotius, that ``the sea is large enough to suffice for all peoples for every use, either of drawing water, fishing, or navigation'', was doubtless valid during this period.

At present---piracy being reduced to a remote and occasional danger---the marine dominion of States is restricted by a rule generally accepted throughout the European group of States, to a narrow belt of water along the coast of a State's territory; and this is only allowed to be appropriated subject to a general right of peaceful navigation; while beyond this limit the sea is now held to be common to all nations for all purposes. The breadth of the recognised belt of ``territorial waters'' is usually stated to be a marine league, with a somewhat larger allowance in the case of gulfs and bays enclosed by the land of one State: it appears to have been originally determined by the supposed range of artillery. The exact limit must be always somewhat arbitrarily fixed: but the chief general grounds on which it should be determined may be stated to be (1) the need of as much control over the sea as is required for the security of the lives and property of the inhabitants of the land; (2) the desirability that the government of each country should have the power of regulating the fisheries on its coast, to prevent wasteful exhaustion of the supply.

The extent of the land belonging to different States is, of course, determined mainly by historical causes, with which we are not here concerned. New territory of any importance can only be acquired either (1) from other States through cession, or conquest ripened by prescription, in either case usually in consequence of war; or (2) through the extension of dominion over land hitherto unoccupied by any civilised State. Of both modes of acquisition I shall have more to say in subsequent chapters (XVI. and XVIII.); but as regards the latter, I may here notice certain questions which arise, somewhat similar to those dealt with in Chapter IV., where the acquisition of private rights of landownership was discussed.

In the first place, granting the accepted view that no State infringes the rights of others by taking exclusive possession of unoccupied land, it is difficult to lay down precisely wherein ``taking possession'' should be held to consist, or how much land should be held to be brought under dominion by any given act of occupation. On both these points it has been the practice of the West European nations---in the great process of expansion, by which more than a third of the land-surface of the globe has been brought under the sway of their civilisation---to make claims startlingly wide; and even, though to a lesser extent, to admit similar claims on the part of others. Thus ``it has been common to endeavour to obtain an exclusive right to territory by acts which indicate intention and show momentary possession, but which do not amount to continual enjoyment or control; and it has become the practice in making settlements upon continents or large islands to regard vast tracts of country in which no act of ownership has been done as attendant upon the appropriated land''. For instance, ``it has been maintained that the whole of a large river basin is so attendant upon the land in the immediate neighbourhood of its outlet that property in it is acquired by merely holding a fort or settlement at the mouth of a river''. Such claims as these cannot but appear extravagant when judged by the principle that we are now applying. It would seem that the strict right of a State to exclude other States from land can only be maintained by its exercising a tolerably effective and continuous governmental control over the territory in question; though it would be, generally speaking, unfriendly on the part of any State to occupy, in the neighbourhood of the settlements of another, land over which these settlements may be naturally expected to expand within a comparatively short time, or land specially important for the security of such settlements. Usage, no doubt, has allowed as legitimate much wider claims than our principle would admit; but I conceive that usage in this respect is likely to grow stricter as the world grows fuller.

But secondly, I do not think that the right of any particular community to the exclusive enjoyment of the utilities derived from any portion of the earth's surface can be admitted without limit or qualification, any more than the absolute exclusive right of a private landowner can be admitted. The rigour of this right has hitherto been mitigated, in modern States generally, by the practical allowance of free immigration; but if this should ever be sweepingly barred, I conceive that the right of exclusion would be seriously questioned in the case of States with large tracts of waste land suitable for cultivation; and that some compromise would be found necessary between the prescriptive rights of the particular State and the general claims of humanity. On the one hand, no well-ordered community could reasonably he required to receive alien elements without limit or selection; on the other hand, an absolute claim to exclude alien settlers adequately civilised, orderly, and self-dependent, from a territory greatly under-peopled, cannot be justified on the principle of mutual non-interference. On similar grounds I should hold that dominion over the sea ought not to be used for the purpose of excluding aliens from fishing in the seas controlled, provided they submit to the regulations necessary to prevent exhaustion of the fisheries, and pay an equitable share of the cost of such regulations.

Finally, it must be observed that in discussions among civilised States as to the occupation of new territory, the claims of the uncivilised tribes to the lands in some sort occupied by them have been usually ignored. Such claims, however, cannot be left out of account in any statement of the general principles of international duty. It does not indeed seem to me that the moral right of savages to their hunting-grounds can be allowed, in the interest of the human race, to override the claim of civilised races to expand: on the other hand, I regard it as the plain duty of the latter to make every effort to secure to the savages as full compensation as possible for the utilities of which they are deprived, and to extend to them such share of the advantages of civilisation as they are capable of receiving. To what extent, and by what means, this result can be brought about, I shall hereafter consider.

The preceding discussion has led us to take note of the large portion of the earth's surface that lies outside the territory of any State; the most important part of this is the open sea, which forms the common highway for the ships of all nations. To prevent confusion and friction it is expedient that members of any State should, as far as possible, continue to be governed by the law of their own community, when they are in this region of no-government. Hence (1) the civil relations of members of the same State should continue to, be governed by their own law; and (2) in any voluntary transactions between members of different communities, the obligations incurred by each should be the obligations that his own law would have imposed on him, unless it can be shown that he intended to incur further obligations; and (3) each government, in fulfilling its general duty of protecting its subjects from mischief outside the limits of civilised States, should show as much regard as possible for the governmental rights of other powers, by allowing, as a general rule, that wrongs inflicted by foreigners be redressed and punished by the courts of the latter---provided that tolerable redress can thus be attained.

There is, however, an important exception to the rule last stated. The crew of any vessel ordinarily forms an organised body under a (subordinate) government, to which it is expedient to grant extensive powers, in view of the possible absence, for considerable periods, of ordinary governmental control, and the special dangers of conflict and discordant action: and, for the maintenance of order, these powers should extend to the repression of wrongs committed or threatened by any person on board the vessel, to whatever State he may belong.

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