THE LEGAL POSITION OF THE DARDANELLES.
THERE is a prospect of a discussion in the House of Com- mons being raised, at the instance of Sir Henry Wolff, on the bearings of the war on the custodianship of the Bosphorus and the Dardanelles. We hope that Members who mean to join in the discussion will previously take the trouble to examine for themselves the question,—What is the legal posi- tion of these Straits, Treaties apart I—although we do not sup- pose that the correct answer will open a straight path through all difficulties. to the settlement of the question of their ownership or custody. Inter arm, silent leges ; and neither Russia, nor Turkey, nor England might consent to abide by the ruling of Professors and text-writers, however eminent, on a subject about which they have fought and squabbled since the begin- ning of the century. It is not, we own, to be settled by turning to Wheaton, or laying a case before Professor Holtzen- dorff or Professor Bluntschli. If these Powers were told that International Lair was against them, so much the worse for International Law might be their reflection, and they might say that paramount considerations of national interest over- powered rules made for ordinary circumstances. But we are inclined to believe that many younger politicians, now that the question is coming to the front, would like to look at it with their own eyes, without any bias, and apart from the associations of Treaties framed by statesmen of a past generation, and that they are nevertheless barely able to do so. It is a case of not. seeing the wood for the trees, and something more. Articles of the Treaties of 1809, 1841, 1856, or 1871 come to the mind of politicians with long memories or wide reading; and it has become, if we may say so, natural to look at the problem through the coloured and artificial light of Treaties and diplomatic traditions. The plain teaching of International Law has been so scribbled over with the glosses of diplomacy as not to be legible at first sight. • So long as the Black Sea was practically surrounded by Turkish territory—and such was its condition until late in last century—the legal position of the Straits was clear. In these cirournstances, the Black Sea was a true mare clansum- Turkish lake, in fact ; and it was competent for the Porte to impose what restrictions on the navigation of the Dardanelles; the Sea of Marmora, and the Bosphorus it was pleased to fix. If it did not wish, as of course it did not, foreign ships-of-war to cruise in the Black Sea, it had but to say so, and there was nothing in Vette' or Bynkershoek to limit or qualify its right. The Sultan was master of the navigation of the Black Sea as much as we are of that of the Thames. "The ancient rubs of the Ottoman Empire," to which reference is made in the preambles to so many Treaties, excluding Russian and other ships-of-war, was but the ordinary application of a principle to which no exception could be taken by any jurist. In course of time, owing especially to the growth of the Russian Empire, the Black Sea ceased to be a Turkish lake ; and now about one-half of the coast-line, from Poti to Akermann, is owned by its immemorial foe. What was the effect of those great territorial changes in the point of view of International Law ? The Black Sea did not, perhaps, thereby become exactly a mare liberum, a sea which all vessels had as much right to navigate as the open ocean. It perhaps was rather in the category of those seas which writers on International Law have agreed to regard as being subject to the regulations made by the littoral States. The Porte alone could not say what restrictions should be placed on the entrance of vessels through the Straits; but the Porte and Russia acting conjointly could. The Porte could no more rightfully obstruct the entrance of Russian vessels than one landowner could block up a way which an- other had through his land ; and the famous Treaty of Kain- ardji granting a free passage to Russian vessels through the Straits only adopted the rules of theoretical writers. But both Powers could have agreed to make any restrictions which they deemed proper with respect to the admission of the ships of other States. Meantime, apart from territorial rearrange- ments, the character of the Black Sea, in the eye of commerce and diplomacy, has signally changed. Odessa has become a great sea-port ; the Danube, the Don, the Dneiper, and Bog are great arteries of commerce ; and the whole world goes with its ships to the shores of the Black Sea to obtain corn, hemp, tallow, timber, iron, wax, and honey. The Sea has, in point of fact, become a commercial resort of all nations. It has become, too, an open sea in the eye of diplomacy. By secret eapitulaiies, dating as far back as the reign of Charles I., English ships were permitted to enter and navigate the Black Sea, and this right was confirmed to us by the Treaty of 1799. By the accession of Turkey to the Treaty of Amiens, by the Treaty of Adrianople in 1829, the Treaty of Commerce with England in 1838, that of 1841, and many others, the navigation of that sea was practically thrown open to the world. Then came the declaration in the Treaty of 1856:— " The Black Sea is neutralised ; its waters and its ports, thrown open to the mercantile marine of every nation, are formally and in perpetuity interdicted to the flag of war, either of the Powers possessing its coasts, or of any other Power." "Free from any impediment, the commerce in the ports and waters of the Black Sea shall be subject only to regulations of health, customs, and police, framed in a spirit favourable to the development of commercial transactions." The Treaty of London repealed these clauses, substituting a declaration that "the Black Sea is open as heretofore to the mercantile marine of all nations," and giving the Porte power to admit vessels-of-war in time of peace, for the purpose of maintaining the stipulations of the Treaty of 1856. Now, what in ordinary circumstances, and apart from the limitations introduced by Treaties, would have been the effect of throw- ing open the Black Sea to commerce ? The answer may be given in the words of two eminent authorities :—" If the navigation," says Wheaton, " ef the two seas thus connected Eby Straits] is free, the navigation of the channel by which they are connected ought to be free also. Even if such Strait be bounded on both sides by the territory of the same Sovereign, and is at the same time so narrow as to be com- manded by cannon-shot from both shores, the exclusive terri- torial jurisdiction of that Sovereign over such strait is controlled by the right of other nations to communicate with the sea thus connected." Speaking of straits connecting mers libres, a recent writer on International Law, M. Oalvo, says that "they must remain absolutely free to all ships, even as the waters to which they lead." Of course, this doctrine— almost universally accepted—is an answer to those who, mis- conceiving the teaching of International Law, justify the existing restrictions by the fact that the Bosphorus is only one and. a half to a quarter of a mile across, and that the Porte is ruler of both shores. It is an answer to the argu- ment's of the same character used by this country in the course of the negotiations with Russia previous to the Treaty of 1840, in justification of the restrictions imposed on the latter. And if any further argument were required to show the abuse which has been made in this controversy of the marine league rule, and the little support which, when properly understood, it gives to the existing prohibitions, it is supplied by a decision of the highest English Criminal Court. In the Franconia' case, the Court for Crown Cases Reserved had lately occasion to examine minutely the meaning of that rule ; and the opinion of the majority of the Judges was that the rights of property did not extend one inch below low-water mark ; that we had no complete dominion within the three-mile zone ; that vessels had the right to pass through these so-called territorial waters ; and that we could not punish m our Courts a foreigner in a foreign ship who had feloniously killed an Englishman one foot from our shores. And if such is the circumscribed nature of the maritime dominion of England, why should we invest Turkey with greater ? It is obvious, too, that if the common contention were correct, it would hold good of the Sound, which is not more than five miles across, If this view were correct, Denmark alone at one time in her history, and Denmark and Sweden now, might choose to forbid our men-of-war entering or leaving the Baltic, a pretension which would not be tolerated for a moment by any Naval Power—a pretension which this country repudiated in 1807- Still we can readily imagine that many persons will feel that though the prohibitions still retained and defended by Lord Derby are anomalous and indefensible, the position of Turkey is peculiar, and that she may fairly object to seeing a fleet of ironclads passing her capital, arsenals, and public buildings, at short range. Mr. Bright gave expres- sion to this general feeling, when he proposed that "the block system" should be applied to the navigation of the Bosphorus and Dardanelles, and that only a certain number of men-of- war shall be allowed to be between the Straits at the same time. Now, it is no mean argument in favour of this sugges- tion that writers of International Law have laid down such a limitation on the freedom of navigation through straits connecting open or free seas. They have recognised the right of the State owning the shores of such strait to take measures of police, and to enforce regulations not prohibitive, with respect to the through traffic, for its safety,—" a right of property burdened with a natural ser- vitude for the general benefit of navigation," as one writer expresses it. Of course, we cannot admit that the really best settlement of the question of the Straits would be any which would leave Turkey custodian and owner of both sides of the Bosphorus. The fittest portier, to use Metternich's expression, a Conference could appoint would be some minor Power whose impartiality could not be suspected. But failing that arrange- ment, it is important to note that International Law has recog- nised a way in which the just claims of Russia and Turkey can be reconciled ; that the present arrangement is an anomaly and an exception, and that we must expect that it will have the evanescence of anomalous and unjust arrangements.
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