CHAPTER XI JURISDICTION 46. Jurisdiction in General Jurisdiction is the right to exercise state authority, and for the purposes of international law may be classified as (a) territorial or land jurisdiction, (b) fluvial and maritime, (c) aërial, and (d) jurisdiction over persons. 47. 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 which were not considered in early treatises, and 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 title to all property within its territorial jurisdiction. As regards its own subjects, it has the paramount title which is recognized in the right of eminent domain, or the right to appropriate private property when necessary for public A state may also in its corporate capacity hold absolute ownership in property, as in its forts, arsenals, ships, etc. use. The state also has the right to enforce a lien on the land and what appertains to it in the form of taxes. 48. 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 title to land hitherto unknown By right of discovery of a new land. 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 constitute a valid title. 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 title by occupation is held to extend to the adjacent unoccu pied territory to which the state might potentially extend By effective the exercise of its authority, or where it may from time to time exercise its authority in an undisputed manner. Title by occupation extends as a rule to that area, and continued not under the jurisdiction of another state, occupation of a which is necessary for the safety of the occupied territory. 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 forward during the later 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 title to the unexplored interior. While the uncivilized peoples living within an area to which a civilized state claimed jurisdiction by virtue of Uncivilized peoples the rightful occupants of the soil. 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 preëmption. . . . The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil, and exercise such a degree of sovereignty as circumstances required, has never been questioned." 1 (c) Conquest in the technical sense of the status of a territory which has come permanently under By conquest of the jurisdiction of the enemy is distinct from usually a result military occupation, which is a simple fact supof military ported by force. a territory, occupation. Military occupation may pass into conquest (1) by actual occupation for a long period, with intention on 13 Kent Com. 379, 380; 1 Gould and Tucker, 484. 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 reasonable ness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, in which the in habitants 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, ex change, sale, or other agreement. By cession through transfer by gift, exchange, sale, or other agreement. (1) The transfer by gift is simple, and carrie such obligations as the parties interested may undertake. In 1850, by a treaty with Grea Britain, "Horse-shoe Reef," in Lake Erie, wa 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 maintai a light therein; and provided no fortification be erected of said Reef." 2 (2) Transfer of territory by exchange is not common i modern times. By the Treaty of Berlin, 1878, a portion o Bessarabia, given to Roumania by the Treaty of Paris, 1856 was given back to Russia, and Roumania received in exchang a portion of Turkey.3 (3) Transfer of territory by sale has been frequent. From 1311, when the Markgraf of Brandenburg sold three village to the Teutonic knights, down to the nineteenth century instances of sale might be found, but the nineteenth centur In case of the United States, while the President may after declaratio of war conquer and hold foreign territory, the joint action of the Preside and Senate is necessary to make the title complete by treaty. 2 Treaties of U. S. 444. 3 Woolsey, 496; Hertslet, 2745, 2791. 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. Barthélemy 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, by lease, by annexation agreements, as payment of an indemnity or the like, are methods of acquiring temporary jurisdiction which frequently becomes permanent. By prescription, or long-con tinued possession. (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 |