Page 53 - Law of Peace, Volume ,

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rather than the exercise of only one of them. islands, its inland waters, lakes, and rivers within its fron-
5 7. Relationship between Jurisdiction to hescribe and Jurisdiction tiers; the territorial waters along its coast; and the air space '
to Edorce above this land and these waters. Similarly, by a special ar-
(1) A state having jurisdiction to prescribe a rule of law does not rangement, the United States exercises jurisdiction over
necessarily have jurisdiction to enforce it in all cases. the trust territories which have been placed under its con-
(2) A state does not have jurisdiction to enforce a mle of law
prescribed by it unless it had jurisdiction to prescribe the rule. trol s and bases or zones over which it exercises personal
(3) Jurisdiction to prescribe in Subsection (2) includes jurisdic- or, to some extent, territorial jurisdiction unde; certain
tion to prescribe the applicable rule of conflict of laws. ... treaties. 6 Finally, by means of a fiction, international law
5 8. Effect of Lack of Jurisdiction accepts the idea that every state exercises "territorial
Action by a state in prescribing or enforcing a rule that is does not jurisdication" over its ships, wherever these may be.
have jurisdiction to prescribe or jurisdiction to enforce, is a violation 4-3. Acquisition of Sovereignty over Temtory. Quite
of international law. ... naturally, in order to legitimately exercise jurisdiction
h. This chapter will examine some of the factual bases based on territory, a state must have sovereignty over this
of jurisdiction generally accepted in the international legal territory. Thus, it is imperative that attention be focused
system as adequate foundation for a state's prescription on the means by which sovereignty over territory can be
and enforcement of rules of municipal law. Thus, atten- acquired. Given the interrelationship of several of these
tion will be focused on state jurisdiction based on territo- ,methods of territorial acquisition 7 with many of the basic
ry, the nationality of the accused, agreement with the ter- concepts of conflict management, they should be of sig-
ritorial state, the protection of certain state interests, and nificant interest to the military attorney.
the concept of universality. a. Discovery and contiguity.
4-2. Jurisdiction Based on Territory. a. A state has ju- THE ISLAND OF PALMAS CASE WED STATES
risdiction over everything within its territorial boundaries. AND THE NETHERLANDS)
A derogation from territorial sovereignty cannot be recog- Scott, Hague Court Reports 2d 83 (1932) (Perm. Ct. Arb. 1928)
nized unless its legal basis is established in each particular 2 U.N. Rep. Intl. Arb. Awards 829
case. 1 The United States Supreme Court, as early as [Palmas, an island about two miles long by three fourths of a mile
1812, observed this general principle when Justice wide, with a population of 750, having at the time little strategic or eco-
nomic value, lies about 48 miles southeast of Midanao in the Philip
Marshall stated, "It is an admitted principle of interna- pines (then part of the United States territory) and about 51 miles from
tional law that a nation possesses and exercises within its Nanusa in the Netherlands Indies. Situated at about 5" 35' N., 126" 36'
own territory an absolute and exclusive jurisdiction, and E., it lies within the boundaries of the Philippines as ceded by Spain to
that any exception to this right must be traced to the con- the United States in 1898. At the time of a visit by General Leonard
sent of the nation, either express or implied." 2 Thus,no Wood in 1906, United States authorities learned that The Netherlands
state may exercise its police powers in another state, even also claimed sovereignty over Palmas (or Miangas, as it was often
against its own citizens, without the consent of this state. called). By a "Special Agreement" signed January 23, 1925, the two
states submitted to the Swiss jurist Max Huber, as arbitrator acting for
The jurisdiction to perform any governmental acts within the Permanent Court of Arbitration, the question "whether the Island
a state's borders belongs exclusively to that state, unless of Palmas (or Miangas) in its entirety forms a part of territory belonging
and until it consents to the exercise of jurisdiction by a to the United States of America or of Netherlands territory."]
HUBER,Arbitrator: The United States, as successor to the rights of
foreign state. 3 The territorial basis of jurisdiction is Spain over the Philippines, bases its title in the fmt place on discovery.
universally accepted throughout the world, and it is the The existence of sovereignty thus acquired is, in the American view,
basic system adopted in the law of the United States, Eng- confied not merely by the most reliable cartographers and authors,
land, and many other countries. 4 but also by treaty, in particular by the Treaty of Munster, of 1648, to
b. What are the areas where the United States exercises which Spain and the Netherlands are themselves Contracting Parties.
its jurisdiction without valid international objection? Clearly, As, according to the same argument, nothing has occurred of a nature,
in international law, to cause the acquired title to disappear, this latter ti-
they include all the land area of the United States and its tle was intact at the moment when, by the Treaty of December loth,
1898, Spain ceded the Philippines to the United States. In these circum-
1. Colombian-Peruvian Asylum Case, [I9501 I.C.J. 226. stances, it is, in the American view, unnecessary to establish facts show-
2. Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, at ing the actual display of sovereignty precisely over the Island of Palmas
136 (1812).
3. For ample, the British government properly protested the 5. These are the former Japanese mandated islands (Micronesia) in
seizure of Sun Yet Sen in London in 1896 by the Chinese legation with the Pacific, held by the U.S. under Articles 77, 82, and 83 of the U.N.
the intended purpose of forceably taking him back to China. 1 L. Op- Charter. In 1975, a segment of Micronesia, the Commonwealth of the
penheim, International Law 796 (8th ed. Lauterpacht 1955). Serbia Northern Mariana Islands, entered into a commonwealth status with the
showed a similar sensitivity to its jurisdiction when it rejected that por- U.S. The future status of other elements of this island chain, the
tion of the Austrian ultimatum of 1914 which demanded that Austria be Marshalls, the Carolines, and the Palau Islands, was in the process of
allowed to conduct an investigation in Serbian territory independent of negotiations.
the Serbian government. Serbia maintained that such a demand was not 6. The many Status of Forces Agreements entered into by the
"in accordance with international law" and asked that it be referred to United States around the world are examples of this type of special ar-
the Hague for adjudication." 1 Halsey, Literary Digest History of World rangement. See chap. 10, irtfra.
War I 70-72 (1919). 7. Most notably, the concepts of prescription and conquest. See
4. J. Brierly, The Law of Nations 232 (5th ed. 1955). paras. 4-3 6 and e, irtfra.