Imágenes de páginas
PDF
EPUB

privileges due to its personality, and immunity from any action on the part of other states which would be in derogation of its sovereignty.

In 1825 Chief Justice Marshall maintained that: "No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only by consent. * * * As no nation can prescribe a rule for others, none can make a law of nations." 27

27 The Antelope, 10 Wheat. 66, 6 L. Ed. 268.

[blocks in formation]

26. A state, as a public person, may hold property in the sense of absolute ownership, and the treatment of such property, both in peace and in war, may be determined by the status of the owner, rather than by the locus and nature of the thing itself.

In time of peace, public property, as vessels belonging to one state within the ports of another state, or the official residences of diplomats, receive special exemptions.1 In the time of war, public property of one belligerent state is liable to special severity of treatment by the other belligerent. Cash, funds, and property liable to requisition, and belonging strictly to the state, is liable to be taken, while similar property belonging to private persons, if appropriated, must be made good at the conclusion of peace.2 Neutral public property also receives special

1 Vavasseur v. Krupp, L. R. 9 Ch. Div. 351, Scott's Cases, 182 seq. "As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise, by means of any of its courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction." The Parlement Belge, L. R. 5 P. Div. 197.

2 Hague Convention, Laws and Customs of War on Land, art. 53, Appendix, p. 544.

exemption in time of war. A neutral public vessel is exempt from visit and search, to which a neutral private vessel is liable. On the other hand, in time of war the neutral state cannot give the same privileges to certain public vessels of the belligerents as in time of peace, e. g., in permitting equipment in the neutral port; while private vessels in time of war are generally allowed the same privileges as in time of peace.

The public property appertaining to a given territory, passes from one state to another on the transfer of sovereignty, but the status of private property would remain unchanged so far as it was not repugnant to the laws of the new sovereign.3

3 "By the cession public property passes from one government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power-and the latter is involved in the former-to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws affecting possession, use, and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed." Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U. S. 542, 5 Sup. Ct. 1005, 29 L. Ed. 270.

"No proceedings affecting the rights of the new sovereign over public property can be taken, except in pursuance of his authority on the subject." More v. Steinbach, 127 U. S. 70, 8 Sup. Ct. 1067, 32 L. Ed. 51.

The nature of the transfer is indicated in the Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, 1898: "Whereas, the government of the Republic of Hawaii having in due form signified its consent, in the manner provided by its Constitution, to cede, absolutely and without reserve, to the United States of America, all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and owner

7

Under the right of eminent domain, a state, in accordance with the laws, has the right to resume, when public interest requires it, possession of any property within the state.

DOMAIN.

27. The term "domain," or sometimes "territory," is used to cover the sphere within which a state may exercise its sovereignty.

The word "territory," from its derivation and history, naturally emphasizes the idea of sovereignty over land, which is an essential condition of state existence. The word "domain" refers rather to the entire range of exercise of dominion. It is accordingly becoming more common to use the word "territory" in the stricter sense as applying to the land of a state, over which the sovereignty is more absolute than over the water or atmosphere. While the term "maritime territory" is sometimes used, it seems to involve a contradiction, as would "aërial territory."

Domain may accordingly be
(a) Territorial,

(b) Maritime or fluvial, or
(c) Aërial,

(a) As against all other states, a state has exclusive title to all its land and its appurtenances, and a paramount title as regards its own subjects, as is shown in the right of eminent domain. The territorial domain its coterminous with the land. belonging to the state or under its sovereignty for the time being.

(b) In general, the sovereignty over maritime and fluvial domain is limited, and rights of the state to the neighboring sea and certain other waters are not exclusive. Wheaton says:

"Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others

ship of all public, government, or crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining." 30 Stat. 750.

from using these elements in any manner which does not occasion a loss or inconvenience to the proprietor."

(c) The principle enunciated by Wheaton above applies in a general way to aërial domain.

ACQUISITION OF TERRITORIAL DOMAIN.

28. The title to territorial domain is now usually based on occupation, prescription, accretion, conquest, or cession.

The methods of acquisition of title to territorial domain have been variously classified. Some writers recognize only two or three methods, from which others are derived; others enumerate a large number.5 The methods most commonly accepted at present are (a) occupation; (b) prescription; (c) accretion; (d) conquest; (e) cession.

(a) Occupation is the basis of the title to the original territorial domain of many states. An inchoate title is obtained by discovery of land hitherto unknown to civilized states; but, in order that this title may be good against other states, it must be followed by occupation, or by some other act which may be

4 Wheaton, International Law, § 193.

5 Ullman, Volkerrecht, § 81, derives all forms from cession and occupation.

"On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

"The exclusion of all other Europeans necessarily gave to the

« AnteriorContinuar »