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PART I. OBLIGATIONS IN TIME OF PEACE
The obligations imposed upon states in time of peace are in general derived from one fundamental conception, which may be summarized as the principle of territorial independence or territorial sovereignty.
Modern international law was impossible until the idea that government and jurisdiction are inseparable from territory had received recognition. It is true that these propositions are not universally held now. The principle that jurisdiction extends by race or nationality and by the nature of the act rather than by territory is still asserted and acted upon in claims of jurisdiction over citizens abroad and over any one committing offenses against the state or its citizens. It is, however, believed that these claims are to be regarded as exceptions to the general rule of territorial jurisdiction. The triumph of the theory of territoriality in jurisdiction and government is assured by the fact that power of coercion, physical force, is the foundation of both of them, and effective coercion is by the nature of things exclusive within one territory. We will therefore regard the following propositions as the norms of the law of peace: (1) A state occupies a definite portion of territory. (2) Within that territory it may organize itself, dispose of its land, resources and wealth, and control the conduct of the inhabitants with perfect freedom. This may be stated by saying that within its territory it has unlimited powers of government, property and jurisdiction. (3) Outside of that territory its power ceases.
10n the theory and necessity of territorial sovereignty see J. W. Burgess, Political Science and Comparative Constitutional Law, Boston, 1898, 1;52; Joseph Story, Commentaries on the Conflict of Laws, 8th ed., Boston, 1883, pp. 8-9, 21-24; J. W. Salmond, Jurisprudence; 2nd ed., London, 1907; p. 99; Justice 0. W. Holmes, in American Banana Co. vs. United Fruit Co., 213 U. S. 347 (1909) ; W. E. Hall, International Law, 4th ed., London, 1895, pp. 20-21, 45-46. J. E. Feraud-Giraud, Etats et Souverains devant les tribunaux étrangers, Paris, 1895, 1;31-36 discusses the necessary exemption of states from foreign jurisdiction.
These conditions are in fact imaginary. They could in completeness be realized only if all states were as isolated as the planets. This not being true, they are subject to numerous exceptions, necessitated by the inevitable peaceful intercourse of states and their subjects, and the necessary concurrent extension of authority by all states over the high seas, which are within the territory of no state, and which by physical facts can not be so appropriated. States better than human individuals accord with Herbert Spencer's theory of liberty, but even in their case we must modify this absolute right of liberty by the proviso that a like liberty be accorded to others.
It is the determination of these exceptions to the ideal condition of absolute territorial independence which forms the body of the law of peace. Were there no exceptions, obviously there would be no more need for law regulating relations between states than there is for law regulating relations between the inhabitants of the earth and the inhabitants of Mars. Consisting of rules governing exceptions to the general rule, the law is ordinarily expressed in terms of rights. Thus we speak of the state's right to a limited jurisdiction over its subjects abroad, and over its merchant vessels on the high seas, and its exclusive right of jurisdiction over its ambassadors, public vessels and armed forces abroad. We propose, however, to look at the matter from the reverse side of duties. We are not interested in the laws of the United States providing for the exercise of rights as such ; but as they indicate the limits of these rights, and imply an obligation of the United States not to exceed them.
The obligations of states under international law may be classified under five heads: (1) abstention, (2) acquiescence, (3) prevention, (4) vindication, (5) reparation. A state is under the obligation to abstain, with a few exceptions, from the exercise of authority outside of its territory, to acquiesce in the exercise, within its territory, of authority by foreign states in a few cases, to prevent its citizens and public officers from doing acts injurious to foreign states and their subjects, to vindicate its sovereignty and position in the family of nations by treating violations of international law by foreign persons or officers in a manner prescribed by international law, and to make reparation for breaches of international law by its citizens or public officers.
2 Herbert Spencer, Social Statics, together with Man versus the State, New York, 1910, p. 36.
OBLIGATIONS OF ABSTENTION
The obligations of abstention are derived from the fundamental principles of international law. The state is bound to abstain from the exercise of sovereignty and jurisdiction over acts or persons in any but its own territory, with a few excep. tions. These duties relate primarily to the conduct of the government. If the government chooses to ignore them by sovereign acts such as intervention or conquest, municipal law can have no restraining effect. Statutes, treaties, and court decisions, have, however, expressed legal limitations upon the extension of power outside of the territory, and, until changed by a sovereign act, are laws enforcing the duty of abstention as against the government. By their mere statement as law, these limitations tend to be observed by the sovereign power, and, of course, may be enforced by coercive measures as against inferior officers of government.
The obligations of abstention may be considered under the three heads, (1) acquisition of territory, (2) use of force against foreign states or their subjects, (3) exercise of jurisdiction outside of the territorial limits.
ACQUISITION OF TERRITORY
(1) The right to acquire unoccupied territory or territory occupied only by savages is generally recognized by international law and has been affirmed by the law of the United States. In the Declaration of the Berlin congress of 1885 it was provided that territory in Africa should only be acquired with effective title after notification and actual occupation. The United States signed this declaration, but as it was not submitted to the senate for ratification it is not a binding treaty. The claims of the Indians to territory has been held to be no bar to the rights of acquisition by civilized nations through discovery and occupation, in a number of cases. The acquisition of unoccupied guano
? islands by action of citizens of the United States was provided
1See Moore's Digest 1;267.
2 Johnson vs. McIntosh, 8 Wheat. 543 (1823); Martin vs. Waddell, 16 Pet. 367; Mortimer vs. N. Y. Elevated R. R. Co., 6 N. Y. S. 89 (1889); Ketchum vs. Buckley, 99 U. S. 188.
for by statute in 1856,3 under conditions designed to prevent such acquisition of islands already under the sovereignty of foreign states, but the fact that another government had formerly occupied an island and subsequently abandoned it was held no bar to its acquisition under this act.*
(2) The acquisition of land by accretion, or the gradual and imperceptible building up of territory by rivers or ocean tides has been upheld as conferring legitimate title by the United States courts in the case of private owners and states of the union,' a view which implies an acquisition of sovereignty over such accretions by the United States. This method of acquisition was supported in an English case which acknowledged the sovereignty of the United States over mud islands formed near the mouth of the Mississippi.
(3) Prescription has been held to confer good title to territory claimed by states, and by individuals as against the government. It has also been impliedly recognized as founding good title in various boundary treaties of the United States.
(4) The acquisition of land by conquest was denounced in resolutions proposed at the International American congress in Washington, 1889-1890, which stated that the principle of conquest shall not, during the continuance of this treaty of arbitration, be recognized as admissable under American Public Law."'10 The United States acceded to the resolution, but as the plan of
3Act. Aug. 5, 1856, Rev. Stat. 5570-5578.
4 Jones vs. U. S. 137 U. S. 202, 220, (1890). See Moore's Digest, 1:299, 556-580.
50cean City Association vs. Schwer, 46 Atl. Rep. 690, (N. Y. 1900); Mulry vs. Norton, 100 N. Y. 424; Wallace vs. Driver, 61 Ark. 429; Jeffries vs. East Omaha Land Co., 134 U. S. 178, 191, (1890); St. Louis vs. Rutz, 138 U. S. 226, (1891); Nebraska vs. Iowa, 143 U. S. 359, 368, (1892).
6 The Anna, 5 Rob. 373. (1805). See Moore's Digest, 1;269-273.
"Rhode Island, vs. Mass., 4 How. 591, 639, (1846); Handly's Lessee vs. Anthony, 5 Wheat. 378, (1820); Indiana vs. Ky., 136 U. S. 479, (1890); 159 U. S. 275, (1895); 163 U. S. 520, (1897), 167 U. S. 270.
&U. S. vs. Chavez, 175 U. S. 509, 522, (1899); Peabody vs. U. S. 175 U. S. 546; Chavez vs. U. S. 175 U. S. 552.
9Trea with Great Britain, 1818, art. 3, Malloy p. 632; 1827, art. 1, p. 644. See also treaty between Great Britain and Venezuela, 1897, adopted as a basis of the boundary arbitration demanded by the United States, Art. 4 affirmed that fifty years prescription gave good title. See Moore's Digest, 1:293.
10 See Moore's Digest, 1;292: 7;318.
arbitration upon which it was contingent did not become effective, the resolution did not become laws The courts have held that under the constitution congress has no power to declare wars for conquest
and the president to wage them for that purpose, hence the United States can not acquire new territory by conquest.11 Territory under military government or occupation is, therefore, not territory of the United States for purposes of internal administration. This interpretation of constitutional law is, however, no guarantee against the seizure of foreign territory by conquest, for the courts will recognize a forced cession or sale of territory concluded by treaty and they have specifically held that acquisition by conquest is proper by international law, even though prohibited by the law of the United States. 12
(5) Acquisition of territory by treaty, whether from forced cession, desire of the population, or purchase has been upheld as inherent in the treaty making power of the government,13 and has been the usual means by which the United States has acquired territory.14
The law of the United States thus permits of acquisitions of territory by occupation, accretion, prescription, and treaty, while it requires the government to abstain from acquiring land by conquest. The question is, however, a political rather than a legal question, and so the courts have held.15 If the political department of government indicates by suitable evidence that it regards new territory as acquired, the courts will follow it. The duty to abstain from acquiring land occupied by other states is, therefore, one left to the discretion of the political department
11 Flemming vs. Page, 9 How. 603, (1849). Contra see Am. Ins. Co., vs. Canter, 1 Pet. 511, (1828). See Self-Denying Ordinance in reference to Cuba. Apr. 20, 1898. 30 stat. 739 sec. 4.
12On thus subject see Flemming vs. Page 9, How. 603, (1849); U. S. vs. Hayward, 2 Gall. 485; U. S. vs. Rice, 4 Wheat. 246; Moore's Digest, 1;290: 7;257-265, 315. Neely vs. Henkel 180 U. S. 109, 119-170 (1900) Moore's Digest 1;535.
13See Chief Justice Marshall, in Am. Ins. Co. vs. Canter, i Pet. 511, (1828).
14Treaties with France 1803, Malloy p. 508, ceding La.; Spain 1819, p. 1651, ceding Fla.; Mexico, 1848, p. 1107, 1853, p. 1121, ceding southwestern territory; Russia, 1867, p. 1521, ceding Alaska, Spain, 1898, p. 1690, ceding Philippines and Porto Rico, Panama, 1903, p. 1351, granting Canal Zone. See also Joint Resolutions of Congress, Mch. I, 1845, 5 stat. 797 ; Dec. 29, 1845, 9 stat. 108, admitting Texas to the Union, and July 7, 1898, incorporating Hawaii.
15 Jones vs. U. S., 137 U. S. 202, (1890); Foster vs. Neilson, 2 Pet. 253.