« PreviousContinue »
able 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 title by conquest. 1
(d) Transfer of territory by cession may be by gift, exchange, sale, or other agreement.
(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.” 2
(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.3
(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.
1 In case of the United States, while the President may after declaration of war conquer and hold foreign territory, the joint action of the President and Senate is necessary to make the title complete by treaty. į 2 Treaties of U. S., 444.
8 Woolsey, 496; Hertslet, 2745, 2791.
(4) Cession of jurisdiction over a given portion of territory as surety for the performance of a certain act, by lease, by annexation agreements, as payment of an indemnity or the like, are methods of acquiring temporary jurisdiction which frequently become permanent.
(e) Prescription, or the acquisition of territory by virtue of long-continued possession, is similar to prescription in public law as applied to the acquisition of property by persons. The recognition of this principle prevents many disputes over jurisdiction of territory which originally may have been acquired in a manner open to question, e.g. the holding of the territory by the states parties to the partition of Poland may through long-continued possession be valid by prescription if not by the original act.
In regard to prescription, it should be observed that (1) it is a title valid only against other states. The inhabitants do not necessarily lose rights originally possessed. (2) This method avoids perpetual conflicts on ground of defect of original title. (3) Prescription may be considered as effective when other states have for a considerable time made no objection, threatening the exercise of jurisdiction by the state in possession. While some authors deny this right, it is generally admitted in fact, and by most of the leading authorities acknowledged in theory."
(f) When land areas in the neighborhood of the boundary of a state are changed, territory may be acquired by accretion. (1) Land formed by alluvium or other cause near the coast of a state is held to belong to that state. Lord Stowell, in 1805, held that mud islands formed by alluvium from the Mississippi River should for international law purposes be held as part of the United States territory. In general, alluvium becomes the property of the state to which it attaches, following the Roman law.3 (2) Where a river is the boundary, the rule is well-established that islands formed on either side of the deepest channel belong to the state upon that side of the channel ; an island formed mid-stream is divided by the old channel line. (3) When a river's channel is suddenly changed so as to be entirely within the territory of either state, the boundary line remains as before in the old channel. So also the boundary line of territory is not changed, even if the bed ofʻa lake be changed.
1 See discussion in Hall, § 36, note 1, p. 124. 2 The “ Anna,” 5 C. Rob., 373. 8" Institutes," II., 1, 20.
$ 48. Qualified Jurisdiction Two degrees of qualified territorial jurisdiction are exercised in the protectorate and the sphere of influence.
(a) Protectorates. The protecting state usually acquires the jurisdiction over all external affairs of the protected community, often including territorial waters, and assumes the direction of its international relations. A measure of jurisdiction of those internal affairs which may lead to international complications is also generally assumed by the protecting state, e.g. treatment of foreigners in the protected territory, relations of protected subjects in foreign countries, use of flag, etc. The conditions of protected states vary greatly, hardly the same description holding for any two. It may be safe to say that (1) the protecting state cannot be held responsible for the establishment of any particular form of government, (2) a reasonable degree of security and justice must be maintained. As to what constitutes a “reasonable degree,” the circumstances of each case must determine; then the protecting state is bound to afford such justice and security and (3) must be able to exercise within the protected area such powers as are necessary to meet its responsibilities.
(6) The term “sphere of influence” has been used since the Berlin Conference, 1884–1885, to indicate a sort of attenuated protectorate in which the aim is to secure the rights without the obligations. First applied to Africa in the partition of the unexplored interior among the European powers, — Great Britain, Germany, France, Italy, Portugal, — it has since been extended to other regions. This doctrine of mutual exclusion of each from the “spheres ” of all the others cannot be held to bind any states not party to the agreement.
The method of exercise of “influence,” while vary. ing, usually consists in making with the native chiefs treaties which convey privileges other than the cession of sovereignty. These privileges are often commercial, and may be with the state direct or agreements with some company to whom the state has delegated a portion of its authority, as in the African trade companies.
The “spheres of influence,” gradually with the growth of power of the influencing state and the necessity of protecting the “sphere," against other states, become less vague in their relations to the influencing state and merge into protectorates or some other more stable condition.
This “sphere of influence” idea, as well as the “ Hinterland Doctrine,” can be of only temporary importance, owing to the limited area still open to occupation. It is maintained that within the “sphere” the influencing state has jurisdiction to the exclusion of another state, and that it has a right to occupy the territory later, if advisable. The influencing state disclaims all obligations possible.
§ 49. Maritime and Fluvial Jurisdiction Wheaton states as a general principle of maritime and fluvial jurisdiction, “ Things of which the use is in
See Lawrence, 153, 161, 164-167 ; Reinsch, “World Politics," pp. 60, 113, 184.