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TERRITORIAL PROPINQUITY

In an exchange of notes of November 2, 1917, between Secretary of State Lansing and Viscount Ishii, Special Ambassador of Japan, occurs the following paragraph:

The Governments of the United States and Japan recognize that territorial propinquity creates special relations between countries, and consequently, the Government of the United States recognizes that Japan has special interests in China, particularly in the part to which her possessions are contiguous.

That states are more interested in the immediate neighborhood of their frontiers than in remote parts of the world, and are apt to carry on a disproportionate commerce and intercourse or even to expand in such regions, are facts familiar to all students of history and diplomacy; but that geographical position should create special legal capacities is a doctrine perhaps more unfamiliar and seemingly in conflict with certain traditionally repeated maxims, such as the equality of states. If peculiar geographic relationship gives rise to peculiar legal privileges and responsibilities, an absolute equality of states can not be assumed, although equality before the law or equal protection of the law might still be recognized. The fact is unquestionable that on frequent occasions the geographic position of territory has been offered and accepted as a justification for exceptional proceedings, admitted, in some cases, to be otherwise contrary to the requirements of international law.

In its recognition of territorial propinquity, the Lansing-Ishii agreement does not stand alone. An inspection of the cases shows that they may be classified according as geographic proximity has been mentioned to justify (1) the annexation of territory, (2) the enjoyment of special economic privileges, (3) the exercise of extraterritorial jurisdiction, or (4) the protection of special political inter

ests. Territorial, economic, jurisdictional, and political interests have each been presented on occasion as deserving special consideration in neighboring territory.

1. ANNEXATION OF TERRITORY

(a) CONTIGUITY The claim to unoccupied territory on the ground of proximity is familiar in international law, though it has not always passed without protest. The principle is described as contiguity or continuity, according as the territory in question is or is not separated by water.!

The right of a state to islands within its maritime belt has been universally recognized, and Lord Stowell's well-known decision in the case of the Anna, besides asserting that islands formed of alluvium beyond the three-mile limit belong to the mainland, suggests that the same is true of those occupying a strategic position.

The German Prize Code : recognizes “islands situated not more

1 The claim to dominion of portions of the sea itself has been attributed to proximity. Grotius, De Jure Belli ac Pacis, ii, c. 3, secs. x, xi; Bynkershoek, De Dominio Maris, c. 2, par. 1; Pufendorf, De Jure Naturae et Gentium, Carew, trans., iv, c. 5, secs. 7, 8; Heffter, Europäisches Völkerrecht, sec. 74. A limited jurisdiction over contiguous waters, beyond the maritime belt, was implied in the American objection to the hovering of war vessels about its coasts while neutral. In a note of December 16, 1915, Secretary of State Lansing contended that “This government has always regarded the practice of belligerent cruisers patrolling American coasts, in close proximity to the territorial waters of the United States

as vexatious and uncourteous to the United States.” The British Government was “surprised” at this “claim to distinguish between different parts of the high seas." Note, March 20, 1916.) The United States, however, reaffirmed its attitude with references to earlier precedents and to an analogy: “In time of peace the mobilization of an army, particularly if near the frontier, has often been regarded as a ground for serious offense and been made the subject of protest by the government of a neighboring country. In the present war it has been the ground for a declaration of war and the beginning of hostilities.” (Note, April 26, 1916.) This JOURNAL, Spec. Supp., 10: 377, 379, 385. For German references to the Russian mobilization on her frontier as a “threatening measure," see ultimatum, July 31, 1914, and declaration of war, August 1, 1914, Naval War College, International Law Documents, 17: 100. See also German note, January 12, 1917, United States White Book, No. 4, p. 314.

2 The Anna, 5 C. Rob. 373 (1805); Scott, Cases, p. 684. : Prisenordnung, September 30, 1909; Reichsgesetzblatt, August 3, 1914, Art. 3a.

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than six sea miles from the coast" as belonging to a neutral state on the mainland for the purpose of measuring the maritime belt, free from belligerent operations, and Dana + asserts that “islands adjacent to the coast, though not formed by alluvium or increment, are considered as appurtenant, unless some other Power has obtained title to them by some of the recognized modes of acquisition."

Peru, following a suggestion of Lord Palmerston in 1834, asserted that the proximity of the Lobos Islands to Peru would give her a prima facie claim to them, although they were over twenty miles distant.5 A similar basis was offered by Venezuela as a claim to the Aves Islands, by Hayti to Navassa,” and among others, by Spain and later Argentine to the Falklands, although the latter are almost two hundred and fifty miles from the mainland. All of these claims gave rise to considerable controversy, the result of which seems to support Mr. Fish's contention in the Navassa case that the utmost to which the argument amounts "is a claim to a constructive possession, or rather to a right of possession; but in contemplation of international law such claim of a right to possession is not enough to establish the right of a nation to exclusive territorial sovereignty (Vattel, Bk. 1, Chap. xviii, sec. 208),"9 which, according to Mr. Webster in the Lobos Island case, must be supported by “unequivocal acts of absolute sovereignty and ownership."

" 10

• Dana, note to Wheaton's International Law, sec. 178. See also Halleck, International Law, 1: 138; Westlake, International Law, 1904, 1: 116, who considers the possibility that an island, even within the three-mile limit, might be possessed by a non-contiguous state on account of prior occupation.

5 British and Foreign State Papers, 31: 1097; Moore's Digest of International Law, 1: 266, 575.

6 Mr. Marcy, Secretary of State, to Mr. Eames, Minister to Venezuela, January 24, 1855, Sen. Ex. Doc. 25, 34th Cong., 3d Sess., p. 4; Sen. Ex. Doc. 10, 36th Cong., 2d Sess., p. 225; Moore, 1: 571.

? Mr. Fish, Secretary of State, to Mr. Preston, Haytian Minister, December 31, 1872; Moore, 1: 266, 577.

8 Decree of Buenos Ayres, June 10, 1829, British and Foreign State Papers, 20: 314.

• Moore, International Arbitrations, 4: 3354; Moore, Digest, 1: 266..

10 Mr. Webster, Secretary of State, to Mr. Orma, Peruvian Minister, August 21, 1852, Sen. Ex. Doc. 109, 32d Cong., 1st Sess., p. 12; Moore, 1: 575.

(6) CONTINUITY

The continuity of unoccupied or savage territory with that occupied by a civilized state has been stated as grounds for territorial claims, especially in the modern "hinterland" and "sphere of influence" 11 theories. The colonial charters in America commonly granted jurisdiction "from sea to sea” 12 and Calhoun in 1844 felt able to assert: "That continuity furnishes a just foundation for a claim of territory, in connection with those of discovery and occupation, would seem unquestionable.” 13

The present law, in view of the generally accepted Declaration of the West African Conference of 1885,14 would seem to justify no claims to territory beyond that effectively controlled, although the adjacent state may justly claim the right of notification, with an option to make good the constructive claim by actual occupation.

11 The term “sphere of influence" or "sphere of actionhas been employed in numerous agreements between European Powers to indicate uninhabited or savage regions upon which an option is gained by one Power as against the other. For references to these agreements, of which Great Britain has concluded some twenty with Germany, France, Portugal, Italy, Congo, and Russia since 1885, see Cobbett, Cases, 1: 113. Hall says, “The term sphere of influence ... indicates the regions which geographically are adjacent to or politically group themselves naturally with possessions or protectorates but which have not actually been so reduced into control that the minimum of the powers which are implied in a protectorate can be exercised with tolerable regularity” (Higgins ed., 1917, p. 131). The term 'sphere of interest, on the other hand, has ordinarily been used to refer to particular interests within more or less civilized states, of states already having interests adjacent thereto. In these agreements geographical proximity has commonly been referred to. (Infra, notes 83 et seq.) On the hinterlanddoctrine, see Great Britain, note, June 14, 1890, Parliamentary Papers, Africa, No. 5 (1890), and regulations proposed by Sir Thomas Barclay, International Law and Practice, London, 1917, p. 73.

12 Papers relating to the Treaty of Washington, 5: 5, 21-22; Moore, 1: 265.

13 Mr. Calhoun, Secretary of State, to Mr. Pakenham, British Minister, September 3, 1844, Sen. Ex. Doc. 1, 29th Cong., 1st Sess., p. 149; House Ex. Doc. 2, ibid.; Calhoun's Works, 5: 432; Moore, 1: 264.

14 British and Foreign State Papers, 76: 19 (Arts. 34, 35). The United States has not become a party to this convention. Foreign Relations, 1885, p. 442; Moore, 1: 268. See also, Cobbett, Cases, 1: 108; Westlake, International Law, London, 1904, 1: 104; Hall, International Law, Higgins ed., p. 116.

(c) CONQUEST The effective occupation of practically all available territory at the present time by civilized or semi-civilized peoples leaves little room for territorial expansion by a theory of propinquity, unless the theory embraces regions thus occupied.144 To assert that it does so, advocates have not been lacking.

President Johnson said, in 1868:

Comprehensive national policy would seem to sanction the acquisition and incorporation into our Federal Union of the several adjacent continental and insular communities as speedily as it can be done peacefully, lawfully, and without any violation of national justice, faith or honor. . . . The conviction is rapidly gaining ground in the American mind that with the increased facilities for intercommunication between all portions of the earth, the principles of free government, as embraced in our Constitution, if faithfully maintained and carried out, would prove of sufficient strength and breadth to comprehend within their sphere and influence the civilized nations of the world.15

As is indicated by the last sentence, these claims were doubtless closely associated with the thought of an idealistic expansion of the United States, regarded as an embodiment of the principles of federalism and representative government.154 The Monroe Doctrine as a guarantee of the "free and independent condition" of peoples as

16a On rare occasions, territory has been voluntarily ceded on grounds of propinquity to the receiving state. Thus, by a treaty of July 1, 1890, Great Britain ceded Heligoland to Germany, the Marquis of Salisbury explaining that “It was probably retained by this country in 1814, because of its proximity to Hanover, the crown of which was then united to that of England.” (Parliamentary Papers, Africa, No. 6 (1890].) By the treaty of April 8, 1904 (Art. 5), Great Britain ceded to France the Iles de Los, opposite Kanakry, the Marquis of Lansdowne explaining that “Their geographical position connects them closely with French Guiana and their possession by any power other than France might become a serious menace to that colony." (Martens, N. R. G., II, 32: 12. See also statement by M. Delcassé, ibid., 32: 48.)

16 Richardson, Messages, 6: 688; Moore, 1: 591. See also the remarks of Senator Douglas in 1845, quoted, A. B. Hart, The Monroe Doctrine, Boston, 1916,

p. 133.

15 @ As in John Fiske’s well known essay on “Manifest Destiny,” American Political Ideas, New York, 1885, p. 151.

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