The Law of Nations Treated According to the Scientific Method. Christian von Wolff

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СКАЧАТЬ only a matter of stipulative right; when such agreements are lacking, exclusion has no place. Since navigation and fishing in the sea are matters of pure will, and the right itself one of pure power, moreover since rights of pure power cannot be barred by prescription, even if you shall have used them a very long time ago, or even never before; one nation cannot by prescription bar the right of another to navigate or fish in the sea, although the latter has never before navigated or fished in the sea. But the situation is different if one nation shall have prevented another from navigating or fishing, or compelled the other to refrain therefrom, and there has been compliance with the prohibition or order, with adequate evidence of consent. For the loss of the right rests in fact on tacit agreement, by which the same is tacitly renounced in favour of the one prohibiting or ordering, and consequently the nation, which obeys the prohibition or order,

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      binds itself to the one prohibiting or ordering, that it will not seek to use the right against the other, and the latter acquires the right not to allow it to use the right against itself.

      § 127. Whether the sea is of itself subject to occupation

      § 175, part 2, Jus Nat.

      § 121, part 2, Jus Nat.

      § 136, part 2, Jus Nat.

      § 120.

      The open sea is of itself not subject to occupation. For let us suppose that the open sea is occupied by any nation, consequently that it can be subjected to its ownership. Since the right belongs to an owner to restrain any one not the owner from every act permitted by virtue of ownership, and not to allow that any other one may do anything without his consent which is allowable for him to do by virtue of ownership, and thus use his property; a nation which has occupied the open sea, or even a great part of it, is understood not to allow any other nation, or any one from any other nation, to navigate or fish at his will in the open sea or in a great part of it. But it is impossible to compel all nations, or any one from another nation, not to do whatever he wishes to, without the consent of the other, anywhere in the sea; a thing which no one can call in question, provided only he considers everything with sufficient care. Therefore it is inconsistent that any nation should have ownership in the sea, consequently the open sea is not among those things, the ownership of which can be acquired by occupation, therefore of itself it is not capable of occupation.

      § 121.

      § 120.

      It is absurd for any one to claim a right for himself which he cannot defend. Moreover, this reason why the sea does not belong to the category of things capable of occupation is a physical reason, not to be confused with the moral reason which prevents occupation, even if it were physically possible, of which we have spoken before. But do not persuade yourself that a nation can protect its ownership of the sea by the aid of a fleet or by forbidding descent to the sea from the shores adjacent to your territory; for it is not possible that all nations in general and any one from any nation anywhere can be restrained from navigating the sea or fishing in it anywhere. To act with an armed force against one nation or another, or to prevent access to the sea anywhere on the sea or at one place, is not the same as to exclude all nations in general from the use of the sea. The sea cannot be inhabited

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      as is the land; the case is quite different, in that the land can be divided among nations and can all become subject to occupation, nor does the sea have uses of the same sort as the land for individual men, of which it is impossible to deprive them. The use of the sea is restricted to very narrow limits, nor do all nations, much less single individuals, need it, or if they should need it, nevertheless they are compelled for more than one reason to refrain from it. Therefore the reasoning from land to sea is not valid.

      § 128. How far certain parts of the sea are subject to occupation

      §§ 198, 199, part 2, Jus Nat.

      § 120, part 2, Jus Nat.

      Parts of the sea can be occupied by nations which dwell near it, so far as they are able to protect the same. This is understood of bays and straits. For the use in the parts of the sea of this sort near the shores, which consists in fishing and collection of things produced in the sea, and not in navigation alone, is not inexhaustible, nor is the use which consists in navigation always innocent, since the sea furnishes a means of protection to maritime countries, and therefore it is to the advantage of the inhabitants that no one should be allowed to remain there with armed ships. Therefore there is no moral reason to prevent them from being occupied. And since others can be excluded from this same use, and can be forbidden to remain there, there is according to the hypothesis no physical reason that prevents them from being subjected to ownership. Since, therefore, for the sake of advantage nations have occupied portions of the earth, just as individuals have occupied farms, for the same reason it cannot be doubted that nations dwelling on the shores of the sea can occupy portions of the sea, so far as they can protect their ownership over the same. Which was the first proposition.

      It is plain for the same reason that the same thing is true concerning bays and straits. Which was the second proposition.

      De Jure Belli ac Pacis, lib. 2, c. 3, § 8.

      § 180, part 2, Jus Nat.

      § 106.

      Bays are recesses hollowed out in the earth like the backwaters of a river in a private estate, and a strait is a narrow place in the sea. Hence the bay is open to the high sea, from which it enters the land, but it has no exit; but a strait is open at either end. Grotius restricts the occupation of parts of the sea to the distance which can be seen from the

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      lands which nations have occupied. But no reason for this limitation is given, and it seems purely arbitrary. For the reason of the occupation is the advantage of the one occupying, so far as that is not limited by the necessary use of others, and it is absurd to desire to occupy more than can be protected, as will be perfectly plain from proof of the present proposition. How far the sea is subject to occupation, or can be subjected to ownership, presents no difficulty at all, provided only you should consider the matter without prejudice and partisan feeling. For there are no other reasons than those which are to be considered in the occupation of parts of the land by nations. If the sea could be inhabited as the land is, there would be no difference at all between occupation of tracts of the sea and of the land. And occupation of portions of the sea, as restricted in the proposition above, is altogether the same as occupation of rivers, so that, if any one presumes to deny that the sea can be thus occupied, he ought not to allow even the occupation of rivers. And hence Grotius says pertinently, in the passage cited, that bays and straits can be occupied as in the case of rivers. Hence two peoples who have a bay and a strait between them, can extend their ownership and sovereignty to its middle line, or in the bay according to their proportional share of the territory.

      § 129. Whether sovereignty over parts of the sea may be acquired at the same time

      § 85.

      § 128.

      Since nations occupying unclaimed lands acquire sovereignty over them together with ownership, moreover since certain parts of the sea can be occupied the same as lands, if any nation occupies a certain part of the sea, it acquires sovereignty over it together with ownership.

      § 121, part 2, Jus Nat.

      §§ 4, 32, part 8, Jus Nat.

      The right of restraining others from use of the sea cannot be attributed СКАЧАТЬ