CHAPTER XIV THE RIGHT OF INDEPENDENCE: JURISDICTION OVER TERRITORY a. Jurisdic territory as distinct For purposes of scientific treatment the jurisdiction of a state over the persons within its territory may be distinguished from tion over the jurisdiction of the state over the territory itself. As a practical matter the two forms of state authority, or the two methods persons by which the state gives effect to its right of independence, are on many points legally indistinguishable. Both the citizen body and the territorial domain of the state are essential elements of its corporate character. The membership of the former is, in general, determined by the fixed boundaries of the latter. The exercise of effective control over individual citizens is dependent upon their presence upon the territory of the state. Aliens who owe no formal allegiance to the state come under the authority of its laws by entering within its physical limits. Jurisdiction over persons, therefore, necessarily raises the collateral question of jurisdiction over territory, whether the connection between the two be close or remote. Nevertheless it is a convenient and not wholly arbitrary rule of international jurisprudence to regard the territory of the state as something distinct from the state itself, and to treat it as if it were national property possessed by the state in much the same way that property in land is held by individual citizens within the state. The jurisdiction of a state over its territory must as a matter of constitutional law be distinguished from property rights in the land itself. In feudal times the exercise of sovereignty was coincident with the ultimate ownership by the king of the land included within the boundaries of the state. The sovereignty of the king thus implied a property right in the land as well as a personal right to the allegiance of the tenant.1 In modern times the state appears as a corporate person distinct from the person of 'Vattel thought it necessary even in his day to denounce the views of certain writers who regarded the prince as the real owner (propriétaire) of the empire, and in whose eyes "the kingdom is the inheritance of the prince, in the same manner as his fields and his flocks" Law of Nations (Eng. trans.), I, § 61. Nature of jurisdiction territorial CHAP. XIV Sovereignty and own ership its ruler; it possesses an ultimate authority within its territorial borders without being the actual owner of the land itself. It may, indeed, own definite portions of the territory in its capacity as a public corporation, in which case it exercises over the particular area both territorial jurisdiction and the rights of private ownership. Or again the state may possess a right of eminent domain by which it has the power to withdraw a given area of land from private use for purposes of state. But these are exceptional cases, leaving the general rule intact, that the territorial jurisdiction of the state is, in point of constitutional law, a right of political control, of ultimate authority, not a right of property. It is an imperium as distinct from a dominium in the sense of Roman law.1 This distinction has, however, not yet been fully recognized by international law. The reason is twofold. In the first place, international law deals only with the relations of states, and does not take cognizance of the constitutional relations between the individual state and its citizens except in so far as these are indirectly presented in connection with claims asserted by the state itself. Since the members of the state are not recognized by international law in their individual capacity, any rights which belong to them must, as Hall expresses it, "be clothed in the garb of state rights before they can be put forward internationally." When, therefore, a state asserts its right to sovereignty over a disputed area of territory the claim differs in no appreciable way from the assertion of a right of complete ownership, and its merits are determined by the same rules of law, whether the state does or does not happen to be the actual owner of the land from the point of view of constitutional law.3 In the second place, owing to the fact that at the time Grotius wrote the conception of the sovereignty of the state as distinct from the ownership of the property of the state was not clearly understood, it seemed both logical and convenient to transfer to international law the traditional rules of the Roman law with regard to the rights of property between individuals. These rules remain to this day the basis of the territorial rights of states, in spite of the fact that many of them are applied with difficulty to 'See Oppenheim, International Law, I, § 168. The analogy of trust estates under municipal law may be helpful. The state is the legal owner at international law, holding title as trustee for its individual citizens. XIV the concrete situations of international life. The attempt, for CHAP. example, to apply the rules of the Roman law to international problems, such as the acquisition of unoccupied territory in the New World, led to numerous disputes, for the solution of which the principles of the Roman law were entirely inadequate.1 It will be profitable, therefore, both for the sake of a clear understanding of the facts of the law and for an appreciation of the law's intrinsic character, to make comparison on occasion between the property rights of individuals under municipal law and the parallel rights of states under international law. Title to its territorial domain may be obtained by a state either through the acquisition of land not hitherto belonging to any other state or through the transfer of land from one state owner to another. The former method confers an original title, the latter a derivative title. International jurisprudence is undecided as to the number and character of the titles to property, but in actual practice five titles appear to be recognized by states: occupation, accretion, prescription, cession, conquest. b. Acquisi tion of title to territory occupation Occupation is both in legal theory and in practical usage the Title by most important mode of acquiring territory as between states. Grotius referred to it as "the only natural and original mode of acquisition." To him, as to Vattel, occupation represented a tacit form of agreement by which the division of lands among the peoples of the earth was brought about, once they came to realize that their original common ownership was inadequate to meet their needs. Thus arose the rights of property between nations, which in the due course of time became absolute by prescription. This theory, however, of the primitive settlement of states is only of academic interest at the present day. Occupation as a title to territory obtained its important place in international law in connection with the claims of existing European states to acquisitions of territory in the New World opened up by explorers after the discovery of the American continent in the fifteenth century; and it continued to be an acute issue until the definitive partition of Africa toward the close of the nineteenth century. The prob 'See Oppenheim, International Law, I, § 210. The term "title" has long been in use by statesmen and writers to describe rights or legal claims to territory. See, e.g., Moore, Digest, I, §§ 80, 81. The student of jurisprudence should note the more restricted use of the term in private law. 3 De Jure Belli et Pacis (Eng. trans.), Bk. II, Chap. III, § IV; Chap. II, § II, V. Droit des Gens (Eng. trans.), Bk. I, § 207. CHAP. Discovery does not give valid title lem presented was, Upon what grounds might the claims put forward by European states to the ownership of territory in unoccupied lands be adjudged valid? The question raised issues both as to the law and as to the facts, and in both respects there was ample ground for controversy. For the law was in the making, and it had no more than the opinions of jurists behind it; while the facts were often difficult to ascertain, even where there was a desire for justice on both sides. Not until the eighteenth century did discovery as a basis of title to unappropriated lands cease to be asserted as sufficient of itself to give validity. The two preceding centuries, being an age of discovery, furnish numerous instances of claims based upon nothing more than the fact that a single navigator landed upon the soil and in the name of his sovereign "took possession" of it. Extravagant claims met, however, with equally sweeping denials. The famous bull, Inter Caetera, issued by Alexander VI May 4, 1493, suggesting a division of the New World between Spain and Portugal by a line drawn one hundred leagues west of the Azores and Cape Verde Islands,' was not taken seriously by the competitors of the two favored states. Spain, England, and France each claimed the coast of America, north of the Gulf of Mexico, on the basis of first discovery by a vessel flying their national flag.2 By the time of Vattel the rule appears to have been recognized that mere discovery could give no more than a temporary inchoate title, which would lapse unless followed within reasonable time by an effective possession. "Navigators," said Vattel, "setting out upon voyages of discovery and bearing with them a commission from their sovereign, when coming across islands or other uninhabited lands, have taken possession of them in the name of their nation; and this title has usually been respected, provided actual possession has followed shortly after."3 In a case before the Supreme Court of the United 'The bull marking off the line of demarcation was withdrawn the same year in favor of another which left the parties to their original rights. A treaty was thereupon concluded between them, June 7, 1494, moving the line to three hundred and seventy leagues west of the Cape Verde islands. See Cambridge Modern History, I, 23-24; Hyde, Int. Law, I, 165, n. 1. For the text of the bull, see Davenport, European Treaties Bearing on the History of the United States and its Dependencies to 1648. 'In the charter given by the British Crown to the London Company in 1609 the grant of land was made to extend "up into the land, throughout from sea to sea, west and northwest,'' beyond the limits of known discovery. A similar grant of territory without known limits was made in the charter obtained by the Plymouth Company in 1620. MacDonald, Select Charters, 11, 23. Law of Nations (Eng. trans.), I, § 207. XIV States in 1828, Chief Justice Marshall doubtless went too far in CHAP. declaring that "discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments." 1 He entered, however, the qualification that the "title might be consummated by possession.' of occu By occupation, in international law, is meant the settlement by Conditions a state of territory hitherto unappropriated, with the object of pation incorporating the territory into the national domain and exercising sovereignty over it. The territory thus appropriated must be, in law, res nullius, which is interpreted as requiring not that the territory be uninhabited, but that it be not already occupied by a people or state whose political organization is such as to cause its prior rights of occupancy to be recognized. No clear line has been drawn by international law between the civilized and uncivilized peoples whose prior sovereignty will or will not be recognized under the circumstances. But, in general, international law has not recognized the title of wandering tribes or even of settled peoples whose civilization has been regarded as below the European standard. Vattel's theoretical justification may be open to question, but he correctly stated the law when he said that the uncertain occupancy by wandering tribes of the vast regions of the New World "cannot be held as a real and lawful taking of possession; and when the Nations of Europe, which are too confined at home, come upon lands which the savages have no special need of and are making no present and continuous use of, they may lawfully take possession of them and establish colonies in them. In the case of Johnson and Graham's Lessee v. McIntosh, the Supreme Court of the United States was presented with a claim to land, based upon grants made by certain Indian tribes, which conflicted with the claims of Virginia under her charter of 1609. The court held that such rights as were possessed by the Indians at the time of their grant were no more than rights of occupancy left in their enjoyment after the discovery and annexation of the territory by the British Crown. "While the different nations of Europe respected the rights of the natives, as occupants," said the court, "they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in 'Johnson and Graham's Lessee v. McIntosh, 8 Wheaton, 543 (1823). Below, p. 223. 'Law of Nations (Eng. trans.), I, § 209. 38 Wheaton, 543 (1823). Scott, Cases, 175; Evans, 281. |