Private and Public State Property. Eminent Domain. CHAPTER VI. RIGHT OF PROPERTY AND TERRITORIAL RIGHTS. § 30 The term Property, as Grotius defines it, is an appellation given to that which man calls his own, and which consists of Jus Personale and Jus Reale. * Whilst the former of these terms has reference to movable effects, called personal property, which can be disposed of without any interference of municipal law, the latter of those two terms refers to immovable goods, called real property, the alienation of which is regulated by the formalities of law. In an analogous manner, the Property of a State is considered to be either Private Property or Public Property. The Private Property or Domains of a State are of no concern to International Law. Such property is solely regulated through internal legislation, by virtue of which the Government of a State disposes of these properties with the same absolute right as any individual can dispose of his own personal effects. The Public Property or Public Domains of a State constitute property which, as being connected with the external Sovereignty Rights of a State, is subject to International Law as well as to the Internal Public Law of the State concerned. There is another kind of proprietary right, which is peculiar to the status of a State, as Body Politic, namely the right of disposing, by virtue of the attributes of internal Sovereignty, in certain extraordinary cases of public interest or necessity or for the public safety,—of property belonging to private individuals residing within * GROTIUS. Introduction to Dutch Jurisprudence. Liv. I. Ch. I. Sect. VIII. the jurisdiction of the State. This right, which is called Eminent Domain (dominium eminens), is also regulated by the Internal Public Law of each State. Rights. The Territorial Rights of a State comprehend: Territorial 1st. All within the limit of the State, mainland as well as the islands adjacent to its coasts, also the seas, lakes and rivers, which are conterminous with the territory comprised within the boundaries of the State; all, of course, with the exception of those portions of territories or waters, which are called enclaves, being situated within the boundaries of one State whilst belonging to the domain of another State. 2nd. The Colonies and Possessions outside the original boundaries of the Mother: State, independent of geographical situation or position. 3rd. Under the Jurisdiction of a State come also, besides the territorial properties above mentioned, the mouths and estuaries of rivers, the bays and a certain portion of the sea, called the Territorial Waters, being within the range of the coastdefences of a State or within a distance of one marine league (3 English marine miles) from any land belonging to the State's territory. This is called the Maritime Territorial Jurisdiction. † * PHILLIMORE. Comm. Intern. Law. Edit. 1879. Vol. I, page 221. WHEATON. Edit. Dana. §§ 161-163. VATTEL. Droit des Gens. Edit. Pradier Fodéré. Vol. I. § 235. HEFTTER. Europ. Völker. § 64. ORTOLAN. Domaine International. §§ 13 et seq. HALLECK. Intern. Law. Edit. Sir Sherston Baker. 1878. Vol. I, page 129. + GROTIUS. De Jure Belli ac Pacis. Liv. II. Chapt. III. § 10-14 VATTEL. Droit des Gens. Liv. I. § 289. MARTENS. Précis de Droit des Gens. § 40. KLUBER. § 130. WHEATON. Ed. Dana. §§ 177–181. WOOLSEY. Edit. 1879. § 56. The Treaties between Great Britain and the United States, of 1818, and between Great Britain and France of 2nd August, 1839, settle the limits of exclusive fishery for each of the contracting States at one league or 3 English marine miles. The British Act of 1833 àssumes the marine league as the limit of maritime territorial jurisdiction. Compare Chapt. XI. Alienation of Ter The Territorial Property of a State may be ritorial Property alienated in either of the two following ways, viz., either to private individuals or corporations or to another State. In the former case the State retains its sovereignty and jurisdiction, with the right of eminent domain. In the latter case, Territorial Property being alienated by cession to another State, the Sovereignty Right, together with all its international consequences, is transferred along with the land to the State acquiring it, and the political nationality of the inhabitants of the ceded territory is exchanged for that of the new State. Acquisitition of §31. Indisputed territorial possession exists in the following cases, viz. : 1st. Possession from time immemorial or contemporaneous with the origin of the State. 2nd. By international treaties, through cession, transfer, purchase, gift or exchange. 3rd. Occupation of territory voluntarily abandoned by a former occupant; or of unoccupied territory without settled inhabitants or recognized owner. 4th. By right of conquest, legally established as possession and recognized as such after the conqueror has entered into peaceful possession, by virtue of a treaty of peace; for until then the conquest is merely an occupation by armed forces. 5th. By alluvial increase of the Territorial Property (incrementum). Islands, formed by drift of river or sea-tides, belong to the Nation by whose land's mud or whose water's sand they were caused. 6th. By Usucapion and Prescription. The right of possession once legally acquired continues for an unlimited period, unless it be . expressly stipulated otherwise by a treaty of temporary cession. * tion. §32. The occupation and taking possession of Right of Oceupaproperty which has no owner, is a natural right, as all things on earth are for the use of man, and any individual has an equal right to anything that has not fallen into the possession of another. The appropriation of territories must be followed by a de facto occupation. Right of property is not constituted either by the simple discovery of an island or any tract of land, nor by a temporary occupation after the discovery, if followed by total abandonment for an indefinite length of time. † The principle that only continued de facto occupation of a territory constitutes the right of property is essential, and it is indispensable for the legitimation of the right of property claimed by those Nations which have occupied countries originally inhabited by savages or semi-barbarous natives, on the ground that these nomadic tribes did not comply with the natural obligation implied by territorial possession, viz., the cultivation of the ground. While living in an unsettled state, hunting and wandering from one place to another, these natives overran the land without occupying or inhabiting it, wherefore they do not suffer any real wrong when a civilized industrious Nation occupies a portion of the waste land with a view to make the neglected ground contribute to the support of the human race by judicious exploitation. On this principle Colonial Possessions are established. * PHILLIMORE. Comm. Int. Law. Vol. I. §§ 255-260. WHEATON. Edit. Dana. Pt. II. Chapter IV. † Vattel. Droit des Gens. Edit. Pradier Fodéré. 1863. Vol. I. § 208, page 491. MARTENS. Précis du Droit des Gens. Vol. I. § 37. KLUBER. 126, HEFTTER. Droit Intern, de l'Europe. § 70. . II The occupation of any Terra Firma is supposed to include the presumption of possession of its adjacent unoccupied islands, on the principle that, when two things are conterminous or in close connection, the more valuable annexes to itself that which is less valuable. Thus the possession of an island gives no right or claim on any portion of the opposite mainland. * By an Act of Congress of the United States of America, which was approved on 18th August 1856, a general rule has been established with. regard to the discovery and the use of guano islands by citizens of the United States (U. S., Laws, XI, 119), regulating the discovery and peaceful possession taken of deposits of guano on islands, rocks or keys, not being within the lawful jurisdiction of any other Government and not occupied by the citizens of any other Government. Such island, rock or key, may, at the discretion of the President of the United States aforementioned, be considered as appertaining to the said United States, securing the citizens of the United States the use of the san for removing the guano deposits which they have discovered and legally taken possession of beyond the jurisdiction of any foreign State, with condition to sell or ship the guano to citizens of the United States only, and at rates fixed by Statutes. Nevertheless such islands, rocks or keys are not made part of the territory of the United States, and all acts done and offences or crimes committed thereon, or in the waters adjacent thereto, are to be held and deemed to have been done or committed on the high seas, on board a ship or vessel belonging to the United States, and be ATTEL. Dro't es Geus. Edit. Pradier Fodéré, 1863. Liv. I. Chapts. VII and XVII. GROTIUS. Dutch Jurisprudence. Book II. Ch. I-X. CALVO Droit Intern. Vol. I. Liv. V. |