Modern International Law Problems. are ideas and rules common to both interna tional and private law. Many of the princi ples regulating contracts or torts are equally applicable whether States or private persons are concerned. In many matters the State is in truth the individual writ large." (Macdonell, ubi sufra.) And even where this as sumption was not in vogue, the feudal ideal, wherever it existed, tended to make the boundary between rights of dominant owner ship hard to draw. But the theory itself only diverted attention from the real issues to be determined. In the Portuguese case, for in stance, with referente to Delagoa Bay, reli ance was placed on texts in the Code (7, 32, 4) which favored a title, unsupported by re cent acts or exercise of authority. Would any civilized nation nowadays submit to a claim of this kind? Again, according to Roman law, possession of a part, which is not severable from the rest of the property is possession of the whole. Can this conception be applied to modern international relations? Is the presence of a government at one point in a territory — the existence of a fort, for ex ample, or a custom house — inconsistent with the independence of the inhabitants in other parts of it? Every one knows that it is not. Or again, can the regulations of private law as to prescription be applied to international law. It is obvious that no hard and fast line can be laid down.
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ternational prescription; and no full definition of the degree of control which will confer territorial property on a nation has been at tempted. The great nations in both hemis pheres claim, and are prepared to defend, their right to vast tracts of territory which they have in no sense occupied and often have not fully explored. The modern doctrine of " Hin terland," with its inevitable contradictions, in dicates the unformed and unstable condition of international law as applied to territorial claims resting on constructive occupation or control."
In order to make the Roman doctrine of occupation square with the facts, fictions had naturally to be resorted to, and so there were introduced distinctions as to national occupations conferring sovereignty, while in dividual occupations did not do so; as to occupation per ttniversitatem and occupatio perfundos; and between actual and construc tive occupation and occupation by reason of contiguity. The theory of a primitive divi sion of land played its part in the evolution that was going on.
11 It may be admitted," says Mr. Gallatin (Ore gon Case, Barrow 4, c. 6, § 2), " as an abstract principle, that in the origin of society, first occu pancy and cultivation were the foundations of the right of private property and private sovereignty. .... As in every society it had soon become ne cessary to make laws regulating the manner in which its members should be permitted to occupy and to acquire vacant land within its acknow '•There are essential differences," says Lord ledged boundaries, so also nations found it indis Salisbury, P. P. 1896 — 0.8105 — p. 12 "be pensable, for the preservation of peace and for tween individual and national rights to land which the exercise of distinct jurisdiction, to adopt, make it almost impossible to apply the well-known particularly after the discovery of America, some laws of real property to a territorial dispute. general rules, which should determine the ques Whatever the primary origin of his rights, the tion, ' who had a right to occupy.'" national owner, like the individual owner, relies Nowadays, however, " effective occupa usually on effective control by himself or through tion " is insisted upon. The term marks a his predecessor in title, for a sufficient length of decided advance on the old theories; and oc time. But in the case of a nation, what is a suffi casionally we get a statement of the real issue cient length of time, and in what does effective which is the presence or absence of control. control consist? In the case of a private in For example, in the English "case," with dividual, the interval adequate to make a valid respect to Delagoa Bay, it was argued that title is defined by positive law'. There is no the erection by the Portuguese of a fort at enactment or usage or accepted doctrine which lays down the length of time required for in the mouth of the river Zambesi did not ne
