International Law Part 9

(3) Semi-public.

56. +Personal, General--Nationality.+

57. +Natural-born Subjects.+

58. +Foreign-born Subjects.+

59. +Acquired Nationality.+ (_a_) By marriage.

(_b_) By naturalization.

(_c_) By annexation of territory.

(_d_) Effect of naturalization.

(_e_) Incomplete naturalization.

60. +Jurisdiction over Aliens.+ (_a_) Over subjects abroad.

(1) Emigration laws.

(2) Recall of citizens.

(3) Penal jurisdiction.

(4) Protection of subjects.

(_b_) Over aliens within territory.

(1) Exclusion.

(2) Expulsion.

(3) Conditional admission.

(4) Settlement.

(5) Taxes.

(6) Sanitary and police jurisdiction.

(7) Penal jurisdiction.

(8) Maintenance of public order.

(9) Military service.

(10) Freedom of commerce.

(11) Holding property.

(12) Freedom of speech and worship.

(_c_) Pa.s.sports.

61. +Exemptions from Jurisdiction--General.+

62. +Sovereigns.+

63. +State Officers.+ (_a_) Diplomatic agents.

(_b_) Consuls.

(_c_) Army.

(_d_) Navy.

64. +Special Exemptions.+ (_a_) In Oriental countries.

(1) Penal matters.

(2) Civil matters.

(_b_) In Egypt.

65. +Extradition.+ (_a_) Persons liable.

(_b_) Limitations.

(_c_) Conditions.

(_d_) Procedure.

66. +Servitudes.+ (_a_) International.

(_b_) General.

-- 45. Jurisdiction in General

Jurisdiction is the right to exercise state authority, and for the purposes of international law may be cla.s.sified as, (_a_) territorial or land jurisdiction, (_b_) fluvial and maritime, and (_c_) jurisdiction over persons.

-- 46. Territorial Domain and Jurisdiction

The word "territory" is sometimes used as equivalent to domain or dominion or to an expression covering the sphere of state control.

Territory is also used in the stricter sense of the land area over which a state exercises its powers. In this stricter sense, territorial jurisdiction refers to the exercise of state authority over the land within its boundaries and those things which appertain to the land. The growing international importance of railroads, telegraph, and other modern means of communication has introduced new topics not considered in early treatises, and these are still under discussion.

The fundamental law of territorial jurisdiction is that a state has within its boundaries absolute and exclusive jurisdiction over all the land and those things which appertain thereto. Certain exemptions are specially provided in international law to which all states are considered as giving express or tacit consent. In other respects than those mentioned under exemptions, the state may, as sovereign, exercise its authority at discretion within the sphere it has set for itself. The state has, as against all other states, an exclusive t.i.tle to all property within its territorial jurisdiction. As regards its own subjects, it has the paramount t.i.tle which is recognized in the right of eminent domain, or the right to appropriate private property when necessary for public use. A state may also in its corporate capacity hold absolute ownership in property, as in its forts, a.r.s.enals, ships, etc.

The state also has the right to enforce a lien on the land and what appertains to it in the form of taxes.

-- 47. Method of Acquisition

The method of acquisition of territorial jurisdiction is a subject which has received much attention in international law, particularly because of the remarkable expansion of the territorial area of states within the modern period of international law since 1648.

The methods commonly considered are: (1) discovery, (2) occupation, (3) conquest, (4) cession, (5) prescription, (6) accretion.

(_a_) In the early period of European expansion through =discovery=, the doctrine that t.i.tle to land hitherto unknown vested in the state whose subject discovered the land was current. Gross abuse of this doctrine led to the modification that discovery without occupation did not const.i.tute a valid t.i.tle. As the field of discovery has grown less, the importance of a definition of occupation has decreased.

(_b_) =Occupation= is held to begin at the time of effective application of state authority, and strictly continues only during the exercise of such authority. In fact, however, the t.i.tle by occupation is held to extend to the adjacent unoccupied territory to which the state might potentially extend the exercise of its authority, or where it may from time to time exercise its authority in an undisputed manner. t.i.tle by occupation extends as a rule to that area, not under the jurisdiction of another state, which is necessary for the safety of the occupied area or is naturally dependent upon it, as to the territory drained by a river of which a given state holds the mouth.

The "Hinterland Doctrine," brought forth during the latter years of the nineteenth century, advances the idea that no such limits as above shall bound the area which can be claimed on ground of occupation, but that coast settlements give a _prima facie_ t.i.tle to the unexplored interior.

While the uncivilized peoples living within an area to which a civilized state claimed jurisdiction by virtue of occupancy were often unjustly treated, they however "were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil of their own will, except to the government claiming the right of preemption.... The United States adopted the same principle, and their exclusive right to extinguish the Indian t.i.tle by purchase or conquest, and to grant the soil, and exercise such a degree of sovereignty as circ.u.mstances required, has never been questioned."[126]

(_c_) =Conquest= in the technical sense of the status of a territory which has come permanently under the jurisdiction of the enemy is distinct from military occupation, which is a simple fact supported by force.

Military occupation may pa.s.s into conquest (1) by actual occupation for a long period, with intention on the part of the occupier to continue the possession for an indefinite period, provided there has not been a continued and material effort upon the part of the former holder to regain possession. If, after a reasonable time, this effort to regain possession seems futile, the conquest may be regarded as complete. Each state must judge for itself as to the reasonableness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, to which the inhabitants acquiesce, a subjugated territory is incorporated under a new state. (3) A treaty of peace or act of cession may confirm the t.i.tle by conquest.[127]

(_d_) Transfer of territory by =cession= may be by gift, exchange, or sale.

(1) The _transfer by gift_ is simple, and carries such obligations as the parties interested may undertake. In 1850, by a treaty with Great Britain, "Horse-shoe Reef," in Lake Erie, was ceded to the United States for the purpose of the erection of a lighthouse, "provided the Government of the United States will engage to erect such lighthouse, and to maintain a light therein; and provided no fortification be erected on said Reef."[128]

(2) _Transfer of territory by exchange_ is not common in modern times.

By the Treaty of Berlin, 1878, a portion of Bessarabia, given to Roumania by the Treaty of Paris, 1856, was given back to Russia, and Roumania received in exchange a portion of Turkey.[129]

(3) _Transfer of territory by sale_ has been frequent. From 1311, when the Markgraf of Brandenburg sold three villages to the Teutonic knights, down to the nineteenth century, instances of sale might be found, but the nineteenth century has numerous instances which have established the principles. Napoleon sold Louisiana to the United States in 1803, the Prince of Monaco made a sale to France in 1851, Russia sold Alaska to the United States in 1867, the Netherlands sold African colonies to Great Britain in 1872, Sweden sold the island of St. Bartholomy to France in 1877, the United States bought the Philippines in 1898. The fact of the sale is not a matter of international law, but is purely within the range of the public law of the countries concerned. The change of jurisdiction of the area gives rise to certain possible complications which may involve principles of international law, though generally the conditions of sale settle such questions.

(4) _Cession of jurisdiction_ over a given portion of territory as surety for the performance of a certain act, payment of an indemnity or the like, has for some years been a method of acquiring temporary jurisdiction which frequently becomes permanent.