64. EXEMPTION FROM LOCAL JURISDICTION OF SOVEREIGNS SOJOURNING IN THEIR OFFICIAL CAPACITY IN FOREIGN COUNTRIES. 65. EXEMPTIONS OF STATE OFFICERS. (a) Wide immunity allowed diplomatic agents. (b) Exemptions granted to consuls to facilitate effective performance of their duties. (c) A foreign army entering a state, by permission of its sovereign, is free from that sovereign's jurisdiction. (d) A vessel of war in a foreign state free from local jurisdiction. 66. SPECIAL EXEMPTIONS. (a) In certain Oriental states special exemptions regulated by treaty. (1) General rules in regard to penal matters. (2) General rules in regard to civil matters. (b) Mixed courts in Egypt. 67. EXTRADITION. (a) Persons liable to extradition vary according to treaties. (b) Limitations as to jurisdiction over a person extradited. (c) Conditions necessary for a claim for extradition. (d) Procedure in cases of extradition based on definite principles. 68. SERVITUDES. (a) International servitudes, positive and negative. 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) aerial, 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 over those things which appertain to the land. The growing international importance of railroads, telegraph, and other appurtenances 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 use. A state may also in its corporate capacity hold absolute ownership in property, as in its forts, arsenals, ships, etc., or may extend ownership to other forms of property provided this does not imperil international rights. 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. By right of discovery of a new land. (a) In the early period of European expansion through discovery, the doctrine that title to land hitherto unknown 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 to jurisdiction. As the field of discovery has grown less, the importance of a definition of occupation has decreased. (b) Occupation was held to begin at the time of effective application of state authority, and strictly to continue only during the exercise of such authority. In fact, however, the title by occupation was also held to extend to the adjacent unoccupied territory to which the state might potentially extend the exercise of its authority, or where it might from time to time exercise its authority in an undisputed manner. Title By effective by occupation extended as a rule to that area, not under the jurisdiction of another state, which was necessary for the safety of the occupied area or was naturally dependent upon it, as to the territory drained by a river of which a given state held the mouth. (1) The "Hinterland Doctrine," brought forward during the later years of the nineteenth century, advanced the idea that no such limits as above should bound the area which could be claimed on ground of occupation, but that coast settlements gave a prima facie title to the unexplored interior. Uncivilized peoples the rightful occupants of the soil. 66 (2) While the uncivilized peoples living within an area to which a civilized state claimed jurisdiction by virtue of 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 at 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 judicially questioned." 1 By conquest of (c) Conquest in the technical sense of the status of a territory which has come permanently under the jurisdiction of the enemy is distinct from military occupation, which is a simple fact supported by force. a territory, usually a result of military occupation. Military occupation may pass into conquest (1) by actual occupation for a long period, with intention on 13 Kent Com. 379, 380; 5 U. S. Comp. Sts. §§ 3980 et seq. 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 reasonableness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, in 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. By cession through transfer 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, Great Britain ceded to the United States "Horse-shoe Reef" in Lake Erie, 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 modern times, instances of sale might be found, but from the nineteenth century numerous instances occurred which have established the principles. 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. 21 Treaties of U. S. 663. 3 IV Herts et, 2745, 2791. |