and extending criminal jurisdiction, although by nature self-executing, require legislation to make them effective because of historical traditions and constitutional interpretation.33 But the evidence in support of such historical traditions seems meager; and really authoritative constitutional interpretation is lacking.

Forfeitures and the jurisdiction to decree forfeitures bear many resemblances to crimes and criminal jurisdiction. There is an interesting example of the amplification of jurisdiction over forfeiture proceedings by treaty in the convention of 1862 with Great Britain for the suppression of the slave trade. The convention provided in detail for the reciprocal visit and search of suspected slavers in certain areas of the high seas, indicated what should be regarded as prima facie evidence of being engaged in the slave trade, provided for the return of persons arrested to the country of the ship's flag for trial and punishment, and incorporated instructions for ships employed in suppressing the trade and regulations for the mixed courts to be set up at Sierra Leone, Good Hope, and New York to entertain forfeiture proceedings.35 The treaty with its annexes occupied eleven pages of the Statutes at Large. The statute passed to give effect to the treaty occupied only one-half page and did but little more than to authorize the appointment of judges for the mixed courts and fix their salaries.36 Apparently the treaty was assumed to be self-executing as to its more detailed provisions.

Another interesting illustration of the fixing of jurisdiction in forfeiture proceedings by treaty was passed upon by the Supreme Court in the case of United States v. Forty-Three Gallons of Whiskey, decided in 1876. An act of 1834, as amended by an act of 1864,37 prohibited with appropriate penalties and forfeitures the introduction of liquor into the Indian country and the sale of liquor to Indians. Article VII of a treaty of cession of 1863 with the Chippewa Indians provided that "the laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States."38 The case arose out of a proceeding to forfeit a quantity of liquor alleged to have been introduced into Crookston, Polk County, Minnesota, with intent to sell to the Chippewa Indians. It was objected that the liquor had been seized in territory

Cf. In the Matter of Metzger (1847), 1 Barb. 248. The cases cited arose before the Act of 1848, in 9 Stat. L. 302. See also United States v. Rauscher (1886), 119 U. S. 407, 419; Charlton v. Kelly (1913), 229 U. S. 447, 464.

33 Wright, Control of American Foreign Relations, 355; also this Journal, Vol. 12, pp. 64, 83.

subject to the jurisdiction of Minnesota and not in or near any Indian country. The court below sustained a demurrer, but the Supreme Court reversed the court below and directed that the demurrer be overruled.39 Delivering the opinion of the court, Mr. Justice Davis said:

The power to define originally the "Indian country," within which the unlicensed introduction and sale of liquors were prohibited, necessarily includes that of enlarging the prohibited boundaries, whenever, in the opinion of Congress, the interests of Indian intercourse and trade will be best subserved.

It is true, Congress has not done this: but the Constitution declares a treaty to be the supreme law of the land; and Chief Justice Marshall, in Foster and Elam v. Neilson, 2 Pet. 314, has said, "That a treaty is to be regarded, in courts of justice, as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision." No legislation is required to put the seventh article in force; and it must become a rule of action, if the contracting parties had power to incorporate it in the treaty of 1863. About this there would seem to be no doubt. From the commencement of its existence, the United States has negotiated with the Indians in their tribal condition as nations, dependent, it is true, but still capable of making treaties. 40

The recent liquor treaties do not by their terms stipulate for legislative execution. The only express reference to legislation is the stipulation in Article VI that the treaty shall automatically lapse if either party is prevented from giving full effect to its provisions by judicial decision or legislative action." There is nothing in the nature of Article II which requires legislative interposition. It would seem, therefore, that whether the article is self-executing or not is to be determined solely by construction.

The construction of Article II requires at the outset a thorough understanding of the peculiar situation with which the treaties attempt to deal. It must be appreciated that there is no international usage or agreement defining precisely either the extent of territorial waters or the scope of jurisdiction for various purposes in the marginal seas.42 While the American executive has upheld the three-mile limit with a degree of consistency, and American courts have adopted it from time to time on appropriate occasions, there is an absence of general agreement on the three-mile or any other line. Though widely approved as marking the minimum extent of territorial claims, the three-mile line is neither an all-sufficient nor an arbitrary boundary.

39 93 U. S. 188.

40 93 U. S. 188, 196.

"Query: Will the treaties lapse under Article VI if the decision in United States v. The Sagatind, supra, is approved and Congress fails to act?

42 See Crocker, The Extent of the Marginal Sea (1919); Paulus, "La mer territoriale," Revue de Droit International, 3d series, V, 397 (1924); Wilson, Les eaux adjacentes aux territoires des états (1925); and this JOURNAL, Vol. 20, pp. 340, 341–2.

In this situation, for the prevention of liquor smuggling, Article II redefines certain jurisdictional limits in the marginal seas. It creates no new inhibitions, but at most attempts to make existing inhibitions, with the penalties and forfeitures already prescribed by law, effective in the newly defined zone. To say that this cannot be accomplished by treaty in the United States would be to recognize an unprecedented limitation upon the treaty power. To conclude that it has not been done by these treaties would be to adopt an interpretation leading to some rather extraordinary results.

The provision in Article II that the other contracting state will "raise no objection" to visit and search in the one-hour zone eliminates the only serious jurisdictional obstacle. It is clear that the executive may go ahead, in reliance upon the treaties, to visit, search, and seize. It may visit, search, and seize, not only those foreign vessels which have committed or are committing an offense within United States territorial waters, but also those which are attempting to commit an offense. Unless the treaties make the inhibitions of United States revenue and prohibition laws effective in the one-hour zone, there must result a rather extraordinary situation in which the executive is expressly authorized by international agreement to search and seize foreign vessels which are guilty of no offense. Such a situation is not lightly to be assumed if the liberal principles of interpretation always invoked in construing treaties may fairly lead to a different result.

It is perhaps of some significance that Article II is drafted in rather obvious contrast with Article IV, which clearly is not self-executing, and that it is followed by Article III, embodying the quid pro quo for the concessions made, which is just as obviously a self-executing stipulation. It is some evidence of the treaty-making authority's intention and understanding that these treaties were concluded and promptly invoked as law without seeking aid from Congress. There can be little doubt, indeed, that the treaties were expected to facilitate the suppression of smuggling at once and without further legislation.

It is unfortunate that the liquor treaties could not have been less ambiguously drafted. It will be equally unfortunate if the question of their effect is decided without a thorough examination of all aspects of the problem. It has not been possible within the compass of this comment to subject the treaty texts to the close analysis which they require, nor to do more than sketch the precedents which deserve to be studied. It is hoped that enough has been written to suggest that the problem is one which merits a more searching consideration than it appears to have received thus far, either from the executive departments or from the courts.

THE MOSUL DISPUTE

BY QUINCY WRIGHT

Of the Board of Editors

The Mosul dispute involved the disposition of some 35,000 square miles of territory with a population of about 800,000. Iraq's claim to the territory had been substantially supported by the unratified Treaty of Sèvres, but no agreement being reached at Lausanne in 1923, the treaty there negotiated and later ratified provided for maintenance of the military status quo and submission to the League of Nations Council, if nine months further negotiation proved fruitless. Under this article, the League Council was seised of the dispute, on request of Great Britain, August 6, 1924, and gave a decision on December 16, 1925, awarding the territory to Iraq provided Great Britain negotiate a new treaty with that state ensuring the continuation of the mandate for at least twenty-five years, unless Iraq becomes a member of the League at an earlier date.2

The Council's consideration of the question proceeded in three stages. At Geneva, in September, 1924, it authorized a technical commission to investigate the facts of the disputed area on the spot (M. Wirsen, Swede, chairman; Count Teleki, Hungarian; Col. Paulis, Belgian) and at Brussels, in October, it appointed a Council committee to attempt mediation and report on the question (Sweden, rapporteur, Spain, Uruguay), and fixed a provisional frontier line slightly south of the northern boundary of the Turkish vilayet of Mosul defining the military status quo.3 At Geneva, in September, 1925, it examined the Wirsen commission's ninety page report recommending the Brussel's line provided Great Britain retained the man1 "The frontier between Turkey and Iraq shall be laid down in friendly arrangement to be concluded between Turkey and Great Britain within nine months.

"In the event of no agreement being reached between the two governments within the time mentioned, the dispute shall be referred to the Council of the League of Nations.

"The Turkish and British Governments reciprocally undertake that, pending a decision to be reached on the subject of the frontier, no military or other movement shall take place which might modify in any way the present state of the territories of which the final fate will depend upon that decision." Treaty of Lausanne, Art. 3, par. 2.

2 League of Nations Monthly Summary, Dec. 1925, Vol. 5, pp. 325-326. The new treaty was promptly negotiated, was approved by the British Parliament on Feb. 18, 1926, and the disputed territory was finally awarded to Great Britain by the Council on March 11, 1926. Great Britain then began negotiations with Turkey which resulted in the signature of an agreement on June 5, 1926, whereby Turkey recognized the boundary with slight rectifications in return for 10% of Iraq oil royalties and neutralization of the frontier. The Iraq minister of war signed the agreement as well as plenipotentiaries from Great Britain and Turkey.

'League of Nations Official Journal, Oct. 1924, pp. 1291, 1360, 1463; Nov. 1924, pp. 1659, 1670.

date for twenty-five years, and accorded cultural autonomy to the Kurds, requested an advisory opinion of the Permanent Court of International Justice on the Council's powers and procedure under the Lausanne Treaty, and dispatched another special commission (General Laidoner of Esthonia) to the Mosul frontier to report on alleged violations of the military status quo. At Geneva, in November and December, 1925, it examined the Court's advisory opinion holding the Council competent under the Lausanne Treaty to give a final decision by unanimous vote, not counting the votes of the disputing states, examined General Laidoner's report holding that Turkish action north of the Brussel's line was of a character to cause “agitation and nervousness" among the Christian population south of that line, and accepted a report of the committee of three holding that the Council being competent by the Court's opinion, and mediation having failed, a decision should be given substantially in accordance with the Wirsen commission's report.

5

Apart from settling the dispute, the discussions have served to clarify certain knotty questions of procedure in the Council and the Court and to illustrate some tendencies in the progress of pacific settlement of international disputes.

The controversy was undoubtedly looked upon as an important one by both Iraq (represented by Great Britain) and Turkey, and in both cases national integrity seems to have been the most important consideration. Iraq felt that if the Turkish frontier were advanced beyond the natural barrier of the mountains, she would be unable to prevent further advances. In addition, the fact that the Mosul area supplies wheat, road-making material and sources of water necessary for irrigation upon which central and southern Iraq's agriculture is dependent, was important.

Turkey, on the other hand, regarded Mosul as within the terms of her National Pact of 1920,7 all other parts of which had been achieved. Furthermore, she was afraid that Kurdish nationalism would thrive in Mosul under the British mandate policy, with a consequent disturbing effect upon her own large Kurdish population.

The prospect of oil in the area increased the eagerness of each to possess it, but this consideration seems to have been less important than the others mentioned.

Study of the relative needs of each country for the area for strategic, political or economic reasons throws little light upon the legal title to it, but each did present a legal claim. Iraq claimed it on the ground that it had

Ibid., Oct. 1925, pp. 1310, 1377, 1383, 1434.

5 League of Nations Monthly Summary, Dec. 1925, Vol. 5, p. 325.

This opinion is based on personal conversations in Iraq and Turkey during the fall of 1925, as well as upon the Wirsen commission's report and statements of the British and Turkish representatives at Geneva.

7 Printed in Current History, Nov. 1922, p. 280.