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CHAPTER II. OBLIGATIONS OF ABSTENTION

INTRODUCTORY

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.

2Johnson 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.

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for by statute in 1856, 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.8 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.

Jones vs. U. S. 137 U. S. 202, 220, (1890). See Moore's Digest, 1:299, 556-580.

5Ocean 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). "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.

SU. 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.

Treaty 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 law. 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.

13 See Chief Justice Marshall, in Am. Ins. Co. vs. Canter, 1 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. 1, 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.

of the government, and is beyond the power of municipal law to control.

USE OF FORCE AGAINST FOREIGN STATES OR THEIR SUBJECTS

The use of force may be resorted to (1) against a foreign state itself, as in intervention, war or general reprisals; (2) against subjects of a foreign state by way of special reprisals, or (3) against foreigners for breaches of municipal law. The use of force against aliens within the territorial jurisdiction in the usual process of enforcing municipal law may unquestionably be exercised, and gives rise to no duty of abstention. The law of peace, however, requires a government to abstain from using force against foreign states or their subjects outside of its territory.

Such a use of force against the foreign state or within its territory is known as intervention. In treaties with Cuba and Panama the United States has been specifically given the right to intervene.1

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(1) The Hague convention relating to the pacific settlement of international disputes, which recommends mediation, commissions of inquiry and arbitration in cases of disagreement,17 as well as numerous individual arbitration treaties,18 recognizes the duty to abstain from the use of force against foreign states. Another of the Hague conventions19 requires the United States to abstain from the use of armed force for the collection of contract debts. These treaties have been ratified and are law in the United States, but they are addressed to the political department of the government. The courts in applying the law will recognize sovereign acts of force even when prohibited by treaty. No power of municipal law can compel resort to arbitration or prohibit intervention or a resort to arms, but the definite statement in treaties of an obligation to abstain from the use of armed forces

16 Treaty with Cuba, 1903, Malloy, p. 362, permits intervention to preserve independence, and with Panama, 1903, art. 23, p. 1356, to protect the canal.

17 Hague conventions, 1899, i; 1907, i.

18 There are two kinds of individual arbitration treaties; special, relating to the arbitration of specified claims alone, as the treaty of Washington with Great Britain, of 1871; and general, requiring arbitration of all questions of a certain class. Conventions of the latter class were concluded with a large number of powers in 1908 to last for five years, recourse to the Hague court being provided for.

19 Hague conventions, 1907, ii.

undoubtedly, in itself, offers a sanction to the observance of this duty by the political authorities of government. The constitutional provision giving congress alone power to declare war appears also to prevent a hasty resort to arms. Experience has, however, demonstrated that the executive can create a situation from which congress can not recede.20 The use of force in cases not amounting to war, such as naval demonstration, or the employment of armed forces to protect embassies in time of insurrection, has generally been authorized by congress. Such action is not however, required by law. A number of cases have orcurred, notably the Boxer uprising in China, when armed force was used without express authorization, and its use subsequently ratified by congress.21

The use of force on foreign territory to suppress marauders and pirates and prevent maltreatment of citizens has been justified on the grounds of self defense. Thus Jackson's invasion of Florida in 1819, and various invasions of Mexican territory in pursuit of marauding Indians; the occupation of Amelia island by United States forces in 1817 to suppress a nest of pirates; the landing of troops in Vera Cruz, Mexico, 1914, and Peking, China, 1899; and the bombardment of Greytown, Nicaragua in 1854 to protect American citizens were justified by the political department of the United States government on this basis. Great Britain in the same manner attempted to justify the seizure in American waters and destruction of the Caroline, in 1837, against the vigorous protest of the United States.22

The determination of circumstances warranting intervention in self defense is in any case a political question and forms an exception to the general rule of international law that the state must abstain from the use of force on foreign territory. This general rule of abstention is recognized and enforced by United States law. In the Navy Regulations, the use of force in territorial waters and landing of armed troops, without express permission of the local authorties, is forbidden. Military law also requires strict respect for foreign territory.23. Instructions of the

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20 As in the Mexican war.

21 See Moore's Digest, 7;109-118, Navy regulations, 1913, sec. 1647. 22 For discussion of these and other cases relating to self defense as a justification for the violation of foreign territory, see Moore's Digest, 2;400-425.

23 Navy Regulations, 1913, Sec. 1645-1648. Army Regulations, 1913, Sec. 89, ch. 3, Dig. op. judge Ad. Gen. 1912, p. 90. Moore's Digest, 2;364. For similar duties in time of war toward neutrals, see infra. p. 212 et seq.

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